MLS v The State of Western Australia
[2018] WASCA 56
•27 APRIL 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MLS -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 56
CORAM: BUSS P
MAZZA JA
PRITCHARD J
HEARD: 5 SEPTEMBER 2017
DELIVERED : 27 APRIL 2018
FILE NO/S: CACR 195 of 2016
BETWEEN: MLS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: SWEENEY DCJ
File Number : IND 985 of 2015
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted at a retrial of three counts of child sex offending - Pretext telephone call made by the complainant to the appellant - Whether the appellant made implied admissions against interest in the pretext call - Whether the prosecutor's conduct at the retrial occasioned a miscarriage of justice - Whether the trial judge gave the jury appropriate directions correcting an erroneous submission by the prosecutor
Legislation:
Criminal Appeals Act 2004 (WA), s 30
Criminal Code (WA), s 329(2), s 329(4)
Result:
Leave to appeal granted on grounds 2 and 3
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr P D Yovich SC |
| Respondent | : | Mr J A Scholz & Ms G N Beggs |
Solicitors:
| Appellant | : | Perrella Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Birks v The State of Western Australia [2007] WASCA 29; (2007) 33 WAR 291
Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293
Goedecke v The State of Western Australia [2013] WASCA 25
JJS v The State of Western Australia [2014] WASCA 136
KBT v The Queen [1997] HCA 54; (1997) 191 CLR 417
King v The Queen [2012] HCA 24; (2012) 245 CLR 588
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
R v Birks (1990) 19 NSWLR 677
R v Soma [2003] HCA 13; (2003) 212 CLR 299
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319
Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115
The State of Western Australia v McBride [2015] WASC 275
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657
Wood v The Queen [2012] NSWCCA 21; (2012) 84 NSWLR 581
JUDGMENT OF THE COURT:
This is an appeal against conviction.
The appellant was charged on indictment in the District Court with six sexual offences against a girl, LMM, who was his de facto child. Those counts were as follows:
(1)On a date unknown between 11 May 1996 and 25 December 1996 at [a town] [the appellant] sexually penetrated LMM, a child who he then knew to be his de facto child, by penetrating her vagina with his finger
And that LMM was a child under the age of 16 years.
(2)On a date unknown between 11 May 1996 and 25 December 1996 at [a town] [the appellant] indecently dealt with LMM, a child who he then knew to be his de facto child, by placing her hand on his penis
And that LMM was a child under the age of 16 years.
(3)On a date unknown between 31 March 1997 and 1 October 1997 at [a town] [the appellant] sexually penetrated LMM, a child who he then knew to be his de facto child, by penetrating her vagina with his finger
And that LMM was a child under the age of 16 years.
(4)On a date unknown between 20 April 1997 and 20 October 1997 at [a town] [the appellant] sexually penetrated LMM, a child who he then knew to be his de facto child, by penetrating her vagina with his finger
And that LMM was a child under the age of 16 years.
(5)On a date unknown between 26 December 2002 and 30 April 2004 at [a town] [the appellant] indecently dealt with LMM, a child who he then knew to be his de facto child, by rubbing her clitoris over her clothes
And that LMM was a child under the age of 16 years.
(6)On 14 November 2006 at [a town] [the appellant] indecently dealt with LMM, a child who he then knew to be his de facto child, by sitting her on his knee and moving her up and down while his penis became erect
And that LMM was a child under the age of 16 years.
Counts 1, 3 and 4 are contrary to s 329(2) of the Criminal Code (WA) (the Code). Counts 2, 5 and 6 are contrary to s 329(4) of the Code.
The appellant was tried before Schoombee DCJ and a jury between 14 and 18 March 2016. The jury was unable to agree on verdicts with respect to counts 1, 2 and 5. The appellant was acquitted of counts 3 and 4, but convicted of count 6[1] (the first trial).
[1] ts 378 - 380.
A retrial of counts 1, 2 and 5 was held before Sweeney DCJ and a jury between 5 and 8 September 2016. The appellant was convicted of all three charges[2] (the retrial).
[2] ts 587 - 588.
This appeal concerns only the convictions at the retrial; in other words, there is no challenge to the conviction on count 6.
The grounds of appeal, as amended at the hearing, allege various errors or miscarriages of justice. Ground 1 concerns alleged implied admissions made by the appellant in a 'pretext' telephone call with LMM on 2 January 2015. Ground 2 focuses upon statements made by the State prosecutor in her closing address. Ground 3 alleges that Sweeney DCJ failed to give the jury appropriate curative directions in respect of the statements made by the prosecutor.
We would dismiss the appeal. Our reasons are as follows.
Legal representation at the first trial and the retrial
The prosecutor at the first trial was also the prosecutor at the retrial. The prosecutor did not appear in the appeal.
Defence counsel at the first trial was also defence counsel at the retrial. Defence counsel did not appear in the appeal.
LMM's evidence at the first trial and the retrial
LMM was aged 24 years at the time of the first trial. Her evidence at the first trial was electronically recorded. At the retrial the electronic recording of LMM's evidence at the first trial was played in the presence of the jury (without opposition from defence counsel) and tendered as part of the State's case.
Overview of the defence case at the first trial and the retrial
The appellant elected not to give evidence at the first trial or the retrial.
On 5 January 2015, the appellant participated in an electronically recorded interview with the police. The prosecutor tendered the interview as part of the State's case at the first trial and the retrial.
At the first trial defence counsel called two witnesses who gave evidence as to the appellant's prior good character. Defence counsel did not adduce any evidence at the retrial.
The appellant's defence at the first trial and the retrial was that none of the offending had occurred.
The first trial
Although the focus of this appeal must be on what occurred or did not occur at the retrial, it is necessary to understand how the first trial was conducted and, in particular, how the pretext call was dealt with at the first trial. Its treatment at the first trial informs and explains the manner in which it was dealt with at the retrial.
LMM's evidence was in essence as follows.
LMM's parents are MRC (her mother) and SM (her father). There were two children of their marriage. LMM, their elder child, was born in late 1991. Her brother, CM, was born about two years later.
MRC and SM divorced when LMM was aged about 3 years.[3] In 1996, MRC and the appellant married.[4] MRC and the appellant have one child together, a boy, LC. He is about three years younger than CM.[5]
[3] ts 58.
[4] ts 59, 63.
[5] ts 59, 64.
After their marriage, MRC and the appellant moved to an address in a town (the first house). LMM lived there with her brothers.[6]
[6] ts 60, 64.
LMM gave evidence that when she moved to the first house she did not sleep very well and that, in the mornings, she would go into MRC and the appellant's bedroom and sleep in their bed.
Count 1 allegedly occurred on one of these occasions. LMM said she awoke one morning in MRC and the appellant's bed. The appellant was touching her vagina with his fingers. She recalled him touching her clitoris and then reaching over her head to get a tube of white cream, which he then put on his fingers. The appellant then penetrated her vagina with one of his fingers. As he did so, he asked LMM if she liked it and if it felt good. LMM recalled that the appellant switched between penetrating her vagina with his finger and rubbing her clitoris.[7] LMM said her mother was not in the bed when this offence occurred.
[7] ts 67.
LMM gave evidence that the incident the subject of count 2 occurred one morning about a couple of weeks after count 1. Again, LMM was in MRC and the appellant's bed with the appellant. Her mother was not present. On this occasion, LMM said the appellant rolled her onto her left side so that she was facing him. He took her right hand and placed it onto his penis and testicles, over his underwear. The appellant then put his hand over hers and squeezed it. Consequently, she squeezed his penis and testicles.[8]
[8] ts 68 - 69.
LMM said counts 1 and 2 occurred before her fifth birthday.[9]
[9] ts 68.
Count 3 allegedly occurred when LMM was 5 years old. LMM gave evidence that she was asleep in her bed. She awoke to find the appellant sitting on a wooden stool next to her bed. He was rubbing her clitoris. He then penetrated her vagina with his middle finger.[10]
[10] ts 69.
Count 4 allegedly occurred a few weeks later. Again, LMM was asleep in her bed. She awoke to find the appellant's pointer finger in her mouth. He removed his finger and put his hand inside her pyjama pants and underwear and rubbed her clitoris. The appellant then penetrated her vagina with his middle finger.[11]
[11] ts 70.
Count 5 allegedly occurred when LMM was 11 or 12 years old. By then, the family had moved to another address in the town (the second house). LMM gave evidence that, at this time, her mother was working at a nearby business and, occasionally, she travelled interstate. LMM said that, every time her mother was away, the appellant would interfere with her.[12] Count 5 was one of those occasions.
[12] ts 71.
LMM gave evidence that she awoke one night when she heard footsteps approaching her bedroom. She recalled that the floorboards creaked. LMM said the appellant entered her bedroom and got into her bed. He pulled her on top of him and placed her legs on either side of his hips. The appellant moved her up and down against his erect penis. Next, he reached around and touched her vagina over her pyjama pants. He then took his other hand and pulled down her pyjama pants and underwear. LMM began to cry and attempted to get off him. The appellant asked her what was wrong. She said she was tired. The appellant responded, '[b]ut I miss mum so much'. LMM said she became 'quite hysterical'. The appellant got up and left because LMM's brothers' room was next door.[13]
[13] ts 71 - 73.
With respect to count 6, LMM testified that on 14 November 2006 she met with her father. After that meeting she went home. There, the appellant said he wanted a cuddle. He sat on a chair at the dining room table and pulled LMM onto his lap so that she was facing him with her legs on either side of his body. He then pulled up her dress and moved her up and down against him. After a short time, LMM felt the appellant's erect penis rubbing against her.[14]
[14] ts 74 - 75.
LMM testified that, at both the first house and the second house, the appellant gave her what he called their 'special cuddles'. This involved the appellant sitting on one of the dining room chairs and pulling her on top of him so she faced him with her legs on either side of his hips. She said he would then move her up and down against him. This happened 'multiple times a week'.[15]
[15] ts 71.
LMM did not complain immediately about any of the appellant's sexual behaviour towards her. However, when she was in year 9 at school, she told a friend of hers, RL, about some of the things the appellant had done.[16] LMM did not make a complaint to the police until June 2014.
[16] ts 86.
LMM gave evidence that on 2 January 2015, after she had spoken to the police, she made the pretext call to the appellant. Their conversation was recorded on equipment provided by a police officer and played to the jury. The recording of the pretext call was tendered in evidence.[17] We will set out the material parts of the conversation later in these reasons.
[17] ts 87 - 88, exhibit 6.
Detective Senior Constable Jane Hannan said she arrested the appellant on 5 January 2015.[18] Later that day, at a police station, she interviewed the appellant. The interview was electronically recorded. The recording was played to the jury and admitted as an exhibit.
[18] ts 255.
In the interview, the appellant denied having sexually abused LMM at any time between 1996 and 2006.[19] The allegations the subject of each count on the indictment were put to him in detail. The appellant denied sexually penetrating LMM or indecently dealing with her, as alleged or at all.[20]
[19] Blue and green AB 158.
[20] Blue and green AB 245 - 247 (counts 1 and 2), 249 - 255 (counts 3 and 4), 272 - 281 (count 5) and 282 (count 6).
In the interview, the appellant gave an account of his recollection of the pretext call. This is of some relevance to ground 2. We will elaborate on this aspect of the interview when dealing with that ground.[21]
[21] Blue and green AB 192 - 194, 257, 258, 262, 287 - 288.
The appellant said that since he had known LMM, up until she left home at the age of 17, he had observed her masturbate on many occasions.[22] He referred to her as a 'chronic masturbator'.[23] He said MRC had also made those observations and that the matter had been discussed between them.
[22] Blue and green AB 230 - 233, 236 - 237, 260 - 261.
[23] Blue and green AB 256.
The appellant said that, in the pretext call, he put to LMM 'you were a masturbator'.[24] LMM denied 'ever having masturbated'.[25]
[24] Blue and green AB 257.
[25] Blue and green AB 258, 262.
The appellant told Detective Hannan in the interview that LMM's description, in the context of the allegation later charged in count 1, of how he had put his hand down her pants, was a description of 'the way she masturbated'.[26]
[26] Blue and green AB 246.
The appellant accepted, in the context of the allegation later charged in count 5, that it was possible he had entered LMM's bedroom, told her he 'missed mum so much' and pulled LMM on top of him, but he had no memory of those things.[27] He denied touching her vagina.[28]
[27] Blue and green AB 281.
[28] Blue and green AB 278, 280.
The other witnesses to testify for the State were MRC, CM, RL, another of LMM's friends, RS, LC and Detective Hannan. It is unnecessary to summarise their evidence, save to note that MRC said she had never observed LMM masturbating.
The pretext call
The whole of the pretext call was tendered in evidence at both trials. It proceeds as follows.
After introductions, LMM said to the appellant that she needed to have a conversation with him.[29] She said that over 'the past few years I've been seeing a psychologist'. The appellant acknowledged that he was aware of this.[30] LMM told the appellant that the psychologist had suggested that she have a conversation with him in order 'to understand some things and … move on with my life a bit'.[31] LMM raised with the appellant 'some things that happened between the two of us when I was younger'.[32] She discussed with the appellant an incident which had allegedly occurred at the first house. The conversation was as follows:[33]
[29] Blue and green AB 139.
[30] Blue and green AB 140.
[31] Blue and green AB 140.
[32] Blue and green AB 140.
[33] Blue and green AB 140 - 141.
LMM (L): Um, okay. Um, so when, um, you and Mum got married and we moved into the [first] house, um, I know that, um, I, you know, slept badly as a kid, um, and I used to come into, um, yours and Mum's bed - - -
THE APPELLANT (A): Yeah.
(L):In the mornings.
(A):Yeah.
(L):Um, so one particular morning, um, from, from my memory, um, I remember waking up to you touching my vagina.
(A):You might've thought that, yeah.
(L):Um, and I remember, um, you reaching across, um, to the bedside table and, um, putting some sort of cream on your fingers and then also putting that on my vagina.
(A):No, I don't remember doing that, dear, um, [LMM].
(L):Okay.
(A):You might've been having a dream.
(L):Okay. Um, some other things that I remember, um, um, our cuddles.
(A):Yeah.
(L):Um, so you would lift me up onto your lap with me facing you ‑ ‑ ‑
(A):Yes, yes. I did that, yes.
(L):With, with, with my legs on either side of you.
(A):Yeah. I used to give you cuddles, yeah.
(L):Yeah. Um, but during these cuddles you would, um, move me up and downwards against you.
(A):Oh, yeah. Well, you might have memories of things like that.
(L):Okay.
(A):Yeah. Go on.
(L):A few other things I remember, um - - -
(A):Yeah.
(L):Also in the [first] house I remember, um, a few times waking up to you in my bedroom, um, and again you would be touching my vagina with your fingers.
(A):You, you must've been having dreams, [LMM].
(L):I, I don't think - - -
(A):I used to, I used to cuddle you, but, um, ah, nothing like that ever happened. You, you were probably having dreams, sweetheart.
(L):I don't think they were dreams.
(A):Alright.
(L):Um, because this continued.
(A):Yeah.
LMM then raised an incident which was said to have occurred at the second house. The conversation was as follows:[34]
[34] Blue and green AB 141 - 142.
(L):Um, so we then moved into the [second] house.
(A):Yeah.
(L):Um, and those, you know, the, the cuddles continued as we've talked about. Um, one particular event I remember very well at the [second] house, um, was, I think this was when Mum was away at a conference for a few nights.
(A):Mmm.
(L):And, um, on the last night she was away you came into my room. Um, this was when I still had the double bed in there. And - - -
(A):Yeah.
(L):Um, you got into bed with me and you pulled me on top of you and - - -
(A):Oh, oh, sweetheart. I don't remember that. I don't remember doing that. I used to go in and read you stories.
(L):No. you used to come in and tell me that you missed Mum.
(A):Yeah.
(L):And then you used to touch me. And you pulled me up, this particular time you pulled me on top of you and I started - - -
(A):I don't remember any of this, ah, [LMM].
(L):I started crying and telling you that I was tired, and you tried to calm me down, and eventually you left.
(A):I don't remember that, ah, [LMM].
(L):Okay.
(A):I remember giving you cuddles.
(L):Okay. Um okay.
Later in the conversation, the appellant volunteered to 'go along' with LMM to see her 'psychiatrist'.[35]
[35] Blue and green AB 142, 143.
Towards the end of the conversation, LMM asked the appellant if there was anything he wanted to say. The appellant responded, telling LMM that she masturbated 'a lot'.[36] He said LMM's mother and he 'used to witness you doing it'.[37] The appellant added:[38]
[36] Blue and green AB 143.
[37] Blue and green AB 143.
[38] Blue and green AB 144.
Yeah. Yeah. See, there, there may be some connection there that, where you were thinking of something or, I don't know.
LMM denied masturbating, saying 'it freaks me out'.[39]
[39] Blue and green AB 143.
The pretext call - first trial - prosecutor's opening address
The prosecutor outlined, in her opening address at the first trial, the allegations of sexual misconduct made by LMM against the appellant, and then referred to the pretext call. She quoted those parts of the call in which LMM discussed with the appellant the sexual acts said to constitute counts 1, 2 and 5. The prosecutor also referred to those parts of the pretext call where the appellant alleged that LMM had masturbated frequently when she was a child.[40]
[40] ts 43 ‑ 45.
The prosecutor made no comment to the jury about the relevance of the pretext call. Nothing was said to the effect that the appellant had made implied admissions against interest in relation to the sexual conduct the subject of counts 1, 2 and 5.
The pretext call - first trial - defence counsel's opening address
Defence counsel exercised the appellant's right to open the defence case immediately after the prosecutor's opening address. Although the prosecutor had been silent as to the relevance of the pretext call, defence counsel confronted the issue. He told the jury that the State wanted them 'to accept that [the appellant] has made admissions in this phone call'. Defence counsel said the appellant had 'done anything but make admissions' in the pretext call.[41] He contended, in essence, that when the appellant's statements were considered in context the jury would not find that the appellant had made admissions. Defence counsel told the jury that the words 'you might have thought that…' were not, in context, an admission. He described the context in which the appellant said those words, as follows:
[41] ts 51.
[The appellant] knows she's been seeing a psychologist, there's been serious issues in her life up to this point, wanting to be supportive of her, answered all of her questions, engaged in conversation, offered to help her, genuinely concerned about her, I suggest, had no idea this was being recorded.[42]
[42] ts 52.
Defence counsel then outlined the appellant's defence which was, in essence:
1.a denial that any of the sexual conduct alleged by LMM had happened;
2.LMM and MRC had colluded to make false accusations against the appellant; and
3.LMM's delay in making the allegations to the police was indicative of their falsity.[43]
[43] ts 53.
The pretext call - first trial - trial judge raises the admissibility of the call
On the opening day of the first trial, prior to arraignment, Schoombee DCJ raised the pretext call with the prosecutor and defence counsel. Her Honour asked the prosecutor to specify what admissions were allegedly made by the appellant in the call.[44]
[44] ts 11.
The prosecutor said the pretext call was relevant to the State's case with respect to counts 1, 2 and 6.
As to counts 1 and 2, the prosecutor referred her Honour to that part of the pretext call where the appellant agreed that LMM had come into the bed he shared with MRC. The prosecutor said that this was an admission of part of the factual circumstances in relation to those counts.[45] The prosecutor described the appellant's statement as an agreement 'with an underlying fact in relation to counts 1 and 2'[46] and showed the jury that the appellant had the opportunity to commit those offences.[47]
[45] ts 17.
[46] ts 18.
[47] ts 18.
With respect to count 1, the prosecutor alleged that the appellant's response 'you might have thought that, yeah', to the accusation that LMM awoke to him touching her vagina, was an implied admission as to that conduct.[48]
[48] ts 19.
With respect to count 6, the prosecutor drew her Honour's attention to that part of the pretext call where the appellant admitted cuddling LMM and lifting her onto his lap so that she faced him with her legs on either side of him. The prosecutor said the appellant's answer was an admission as to the type of cuddle in the course of which the appellant committed count 6.[49] The prosecutor put it this way:
[49] ts 15 ‑ 16.
And the State would say that that one going back to cuddles, certainly tends to prove that the occasion occurred. And ultimately it's whether or not the jury find in all of the circumstances as they'll hear about the trial, whether or not it was indecent. But in the circumstances of the cuddle, certainly it's an admission of a type of cuddle that's performed which is the essential factual basis of the cuddle, which is a question of whether or not the accused man had an erection at the time. And going …
SCHOOMBEE DCJ: Sorry, but I take your point that if she was 14 with regard to count 6, that that sort of puts the factual scenario of what happened in a different context.[50]
[50] ts 20.
The relevant part of the pretext call in which the appellant admitted that he lifted LMM onto his lap with her facing him and her legs on either side of him impliedly occurred at the first house and not the second house where count 6 was allegedly committed.
The pretext call - first trial - defence counsel's response to the trial judge
When defence counsel was called upon by Schoombee DCJ to respond, he said this about the pretext call:[51]
[51] ts 21.
I have given this matter some thought before your Honour raised it and I've taken instructions from my client. I haven't specifically raised an objection to it because we say it's entirely consistent with the defence case that [the appellant] denies the allegations.
Defence counsel pointed out to her Honour that the conversation in the pretext call concerning 'cuddles' was in the context of events which occurred at the first house and not when LMM lived at the second house; that is, when count 6 was alleged to have been committed.[52]
[52] ts 22 - 24.
Her Honour then enquired of defence counsel whether the pretext call could be seen or interpreted as the appellant saying, in effect, 'None of this happened and I'm happy to go to the psychologist with you'. Her Honour added, 'So to some extent it could be seen also as positive to your client's case'.[53] Defence counsel reiterated his initial position that he was not seeking to have the pretext call ruled inadmissible, and he confirmed that he had clear instructions on the point.[54]
[53] ts 24.
[54] ts 24.
Her Honour clarified with defence counsel whether he wanted the pretext call ruled inadmissible. He responded, 'No your Honour'.[55]
[55] ts 24.
Her Honour ruled that the pretext call should be played. Her Honour accepted that the appellant's admissions concerning LMM sitting on his lap were relevant to count 6. She also accepted that it was open to the jury to conclude that the appellant's statement 'you might have thought that' was an implied admission of the sexual conduct pleaded in count 1.
Her Honour noted that no objection was made by defence counsel to the admission of the pretext call on the basis of counsel's contention that the appellant's statements were to his advantage; in particular, the statements in which '[the appellant] quite freely discusses [the allegations] with her, repeatedly says, "you must have dreamt these things" or, "you might remember them" and also offers to go to the psychologist with her'.[56]
[56] ts 25.
The pretext call - first trial - prosecutor's closing address
The prosecutor made several references, in her closing address at the first trial, to the pretext call. She submitted that the appellant's statement 'you might have thought that, yeah' was an implied admission by him to having touched LMM's vagina because he failed expressly to deny the allegation.[57]
[57] Closing address, 17 March 2016 ts 16 - 17.
The prosecutor also submitted that the appellant made an implied admission to having touched LMM's vagina in her bedroom at the first house because, again, he failed expressly to deny the allegation.[58]
[58] Closing address, 17 March 2016 ts 17 - 18.
The prosecutor referred to the questions LMM asked the appellant in the pretext call concerning the allegations the subject of count 5. It was alleged that count 5 occurred at the second house. The prosecutor submitted that the appellant's failure expressly to deny the allegations constituted an implied admission of them.[59]
[59] Closing address, 17 March 2016 ts 20 - 21.
Also, the prosecutor referred to the appellant having admitted that he cuddled LMM in a manner similar to the context in which it was alleged that count 6 had occurred.[60]
[60] Closing address, 17 March 2016 ts 23 - 24.
It is apparent that the prosecutor's submissions, to some extent, went beyond the matters she raised with her Honour at the beginning of the trial, when the subject of the admissibility of the pretext call was raised. Defence counsel did not object to or complain about it.
The pretext call - first trial - defence counsel's closing address
Defence counsel submitted, in his closing address at the first trial, that it was 'an extremely long bow to draw' to suggest that the appellant had made any admissions in the pretext call.[61]
[61] Closing address, 17 March 2016 ts 32.
Defence counsel also submitted that, in the context of the pretext call having been made 'out of the blue'[62] and against the background of LMM suffering from 'depression, anxiety, self‑image issues and self‑harming',[63] it was evident (especially from the tone of his responses) that the appellant was genuinely concerned for her mental wellbeing[64] and that the exchange between LMM and the appellant was a conversation and not an accusation.[65] In these circumstances, it was submitted that the appellant was endeavouring to be kind to LMM and did not wish to confront her.[66] Defence counsel pointed out that reference in the pretext call to LMM sitting on the appellant's lap was in relation to events which occurred at the first house and not the second house where count 6 was allegedly committed.[67]
[62] Closing address, 17 March 2016 ts 32.
[63] Closing address, 17 March 2016 ts 32.
[64] Closing address, 17 March 2016 ts 33.
[65] Closing address, 17 March 2016 ts 32.
[66] Closing address, 17 March 2016 ts 34.
[67] Closing address, 17 March 2016 ts 35.
Defence counsel submitted that at no point in the pretext call did the appellant make any admissions. He submitted that it was significant that the pretext call was unexpected and that the appellant had no time to prepare any concocted stories.[68]
[68] Closing address, 17 March 2016 ts 39.
He also suggested that when the appellant told LMM that she was masturbating 'a lot', it was evident from the call that she denied it 'because of embarrassment'.[69]
[69] Closing address, 17 March 2016 ts 39.
Later in his closing address, defence counsel submitted to the jury that the appellant's statements in his interview with police on 5 January 2015 about LMM masturbating a lot were not recent inventions, having regard to what he said in the pretext call.[70]
[70] Closing address, 17 March 2016 ts 43.
Although not a submission expressly made by defence counsel, a reading of the closing address indicates that defence counsel developed a theme to the effect that the appellant was consistent in what he had said in the pretext call and in his interview with police and that the attitude he displayed towards LMM on both occasions involved genuine concern for her.
The pretext call - first trial - trial judge's summing up
Schoombee DCJ referred to the pretext call in her summing up, but did not specifically direct the jury as to how they might use the call.
Her Honour mentioned the pretext call in summarising the State's case:
The State also relies on the statements made by [the appellant] during the pretext call and says that [sic] amount to implied admissions. When [LMM] put to [the appellant] that she remembered waking up a few times in her bedroom with him touching her vagina with his fingers, he told her that [she] 'must be having dreams'.
When [LMM] put to [the appellant], in the phone call, that he gave her cuddles with her sitting on his lap, facing him and moving her up and down, [the appellant] said, 'You might have memories of things like that'.
When [LMM] put to [the appellant] that he got into bed with her and pulled her on top of him and said that he missed her mother, [the appellant] said, 'I don't remember that'.
The State says that if these things had indeed not happened, [the appellant] would have been much more emphatic in his denials and would have said things like, 'What are you talking about?' or 'You are wrong' or 'I would never do such a thing'.[71]
[71] ts 350 ‑ 351.
Her Honour also mentioned the pretext call in summarising the defence case:
The defence says you have to consider the pretext call and the interview with the police in their proper context. [LMM] told [the appellant] at the beginning of the pretext call that her psychologist had suggested that she should have this conversation in order for her to understand some things and she put to [the appellant] matters on the basis that these were her memory.
The defence says it was that context that [the appellant] repeatedly replied that she might have thought that or she might have memories like that. [The appellant] tried to be kind to her and support her in her memories and offered to go to the psychologist with her. The defence says this is why he did not tell her that she was totally wrong or that these things never happened. He tried to be delicate and respectful with her when he said that he did not remember such things.
The defence says there was nothing sinister in the manner in which [the appellant] responded to the memories which [LMM] said she had. [LMM] did not accuse him of these things. She simply said these were her memories.[72]
[72] ts 352.
Neither the prosecutor nor defence counsel took any exception to her Honour's directions in relation to the pretext call. No additional direction or redirection was sought.
The pretext call - directions hearing before the commencement of the retrial
On 5 September 2016, at a directions hearing before the commencement of the retrial, the prosecutor informed Sweeney DCJ in relation to the pretext call as follows:
And … there's a pretext call which was played to [LMM at the first trial]. I have been corresponding with my learned friend in relation to that and he would like the entire call to be played again, so I'll do that (ts 405).
Defence counsel did not dispute that he wanted the whole of the pretext call to be played again at the retrial.
The pretext call - retrial - prosecutor's opening address
The prosecutor referred to the pretext call, in her opening address at the retrial, as follows:
Now, following the involvement of the police, [LMM] made a telephone call to [the appellant]. That call was made on 2 January [2005] and that call was recorded. As you'll hear … during that telephone call, [LMM] spoke with [the appellant] about a number of things, including going into his and her mother's bedroom in the mornings and what happened when her mother was away.
Now, in particular, at one point during the telephone call, this exchange occurred, and this is [LMM] speaking:
Um, so one particular morning, um, from my memory, um, I remember waking up to you touching my vagina.
And [the appellant] responded by saying:
You might have thought that, yeah.
[LMM] also said that she remembered [the appellant] putting some cream on his fingers and then also putting that on her vagina, and [the appellant] responded by saying:
No, I don't remember doing that, dear, um, [LMM].
And he also said:
You might have been having a dream.
And in relation to [the appellant] getting into bed with [LMM] and pulling her on top of him, [the appellant] said:
I don't remember that. I don't remember doing that.
During the telephone call, [the appellant] also offered to go along and see [LMM's] psychologist. And when [LMM] asked [the appellant], was there anything he wanted to say, [the appellant] said:
Um, well, ah, ah, both your mother and I - and I, um, you, um, you were masturbating a lot.
And [the appellant] also said:
Well, your mother and I used to witness you doing it.
And as you will hear, during that telephone call, [LMM] said that she never masturbated once in her life (ts 428 ‑ 429).
The pretext call - retrial - defence counsel's opening address
Once again, defence counsel exercised the appellant's right to open the defence case immediately after the prosecutor's opening address. Defence counsel made these submissions about the pretext call:
But it leads me to this pretext call that you've heard about. It was in fact on the Friday, 2 January 2015, this telephone call, and it was a telephone call which [LMM] made to [the appellant] arranged by the police with the intention of recording it. It's called a pretext call.
And you've heard the learned prosecutor refer to some of the things that were said in that call and I ask that you listen very carefully to that call when it's played to you and appreciate how [the appellant] responds to that call, because of course, he doesn't know it's being recorded. He doesn't know that the police were involved.
But what [the appellant] says in that call is that [LMM] may have memories of certain things; doesn't mean it happened. And you'll see there's genuine concern about her psychological state and an offer to go with her to see a psychologist.
And the other thing to bear in mind when you listen to that call is although [the appellant] didn't know it was being recorded, [LMM] well knew that it was, and so when [the appellant] in that call refers to her being a chronic masturbator, bear in mind when she denies that why she might, and I'll have more to say about that later. So she was well aware that this was being recorded (ts 437 ‑ 438).
The pretext call - retrial - prosecutor's closing address
The prosecutor made detailed submissions, in her closing address at the retrial, in relation to the pretext call:
Now, the other evidence you have, which I suggest supports in a very real sense what [LMM] has told you is the telephone call. That telephone call occurs on 2 January [2015] and [the appellant's] wife leaves the family home on 5 January [2015]. Now, curiously [the appellant] did not speak with his wife about that telephone call. And you might remember he was asked about that by the police in the interview, asked whether he had told [MRC] about the call and he said, 'No'.
Now, you might think that the first thing [the appellant] would do after getting a phone call from his stepdaughter where she's asking about him touching her would be that he would go straight to his wife but he doesn't do that and it's very odd I suggest. We have to wonder, well, I suggest why is because he was hoping it would all go away and he said that as much, he just put the blame back on [LMM].
But irrespective of that, this is what happens in the telephone call and you might remember this … So [LMM] asked:
…
Um so when um you and mum got married and we moved into the [first] house um I know that um - I know you know I, you know, slept badly as a kid um and I used to come into um yours and mum's bed?‑‑‑Yeah.
In the mornings?---Yeah.
Um so one particular morning um from my memory um I remember waking up to you touching my vagina?---You might have thought that, yeah.
Um and I remember um you reaching across um to the bedside table and um putting some sort of cream on your fingers and then also putting that on my vagina?---No, I don't remember doing that, dear um [LMM].
Okay?---You might have been having a dream.
The very first thing she says, she's gone in the [first] house … she wakes up, remembers waking up to him touching her vagina, the very first thing [the appellant] says:
You might have thought that, yeah.
It's not a no. It's not a what are you talking about. It's not a, no, it didn't happen. It's not a, no, I'd never do such a thing but -
You might have thought that.
And when she woke up he was touching her vagina. And again, when asked about the cream:
I don't remember doing that, dear um [LMM].
Again, it's not a no. It's not it didn't happen. It's not I wouldn't have done that. It's:
I don't remember doing that.
And then [the appellant] adds about having a dream. Now, my learned friend may well say, well, [the appellant] was just, I don't know, being kind to [LMM] about saying that she might have thought something or that she was dreaming and that [the appellant] tried to put I suppose a gentle spin on things. Presumably because she was seeing a psychologist. And [LMM] mentions that straight from the outset in that telephone call.
Well, quite frankly how on earth saying she might have thought that or:
You might have been having a dream.
As opposed to saying it didn't happen, if it didn't happen, could be a gentle spin is beyond me. It doesn't help [LMM]. What helps [LMM] is the truth. And the first thing [the appellant] says is:
You might have thought that.
And the thing is any sort of suggestion about that really doesn't wash and it doesn't wash because [the appellant] is clearly able to say in that telephone call that no to when a suggestion of conduct happening has occurred.
You just might remember [LMM] also talks about waking up when she's in her bedroom with him touching her vagina with his fingers. Then the first thing he says is:
You might have been having dreams?---I don't think.
And then [the appellant] says:
I used to - I used to cuddle you but um ah nothing like that ever happened. You were probably having dreams, sweetheart.
So he could say, no, conduct didn't happen when it did happen.
But as I said, that first comment that [the appellant] says to [LMM] when she is in mum and his bedroom, about, 'I woke up to you touching my vagina'. 'You might have thought that, yeah', tells you absolutely everything, I suggest, members of the jury.
It's an extraordinary thing to say and it really is, I suggest an implied admission of wrongdoing. An admission of touching [LMM's] vagina. And not only might [LMM] have thought that [the appellant] was touching her vagina, but she told you that that is in fact what [the appellant] did.
And that he went further than touching. He actually penetrated her. And as for what happened when [LMM's] mother was away at a conference, you might remember this exchange and telephone call:
One particular event I remember very well at the [second] house, um, was - I think this was when mum was away at a conference for a few nights.
Mm.
And, um, on the last night she was away, you came into my room. Um, this was when I - I still had a double bed in there and - - -
Yeah.
- - - um, you got into bed with me and pulled me on top of you and - - -
Oh, oh sweetheart, I don't remember that. I don't remember doing that. I used to go in and read you stories.
No, you used to come in and tell me that you missed mum.
Yeah.
And then you used to touch me. And you pulled me up - this particular time you pulled me on top of you and I started - - -
I don't remember any of this, ah, [LMM].
I started crying and telling you that I was tired and you tried to calm me down and eventually you left.
I don't remember that, ah, [LMM].
Again it's not a, 'No'. It's not a, 'Didn't happen'. It's not a, 'You're wrong', it's, 'I don't remember this'.[73]
[73] Closing address, 7 September 2016 ts 13 - 16.
The pretext call - retrial - defence counsel's closing address
Once again, defence counsel submitted, in his closing address at the retrial, that it was 'an extremely long bow to draw' to suggest that the appellant had made any admissions in the pretext call.[74] Defence counsel's full submissions in his closing address in relation to the pretext call were as follows:
[74] Closing address, 7 September 2016 ts 46.
I want to now just come to the pretext call and then I'll just about be finished, ladies and gentlemen. The pretext call on 2 January 2015 - the prosecution ask you to draw the inference that [the appellant] has impliedly admitted some of these allegations that [LMM] has put to him.
With respect, I suggest that is an extremely long bow to draw.
Going to the telephone call, because we've got a transcript of this call, what's apparent, first of all - and you would well recall this, I suggest, is that [the appellant], who was completely taken unawares by this phone call, there was a call out of the blue and he says as much in his interview.
[LMM] in this call was very calm and very matter-of-fact. I suggest she didn't show any emotion throughout this entire call. [The appellant] demonstrated no temper, no anger. [The appellant] was genuinely concerned about [LMM's] mental state, and this call begins at page 3 of the transcript. This is before any suggestion of her memories. She says:
Um, so as you might know from mum mentioning, um, the past few years I've been seeing a psychologist.
Yeah.
And she has suggested that at some point I have this conversation with you, um, in order, basically, just for me to be able to understand some things and, um, move on with my life a bit.
So you're [the appellant]; this is what you've just heard your stepdaughter say to you. Are you assuming from the outset that she's going to be making allegations of sexual abuse against you? No, and from her tone and his tone in the call, I suggest to you it was very clear that he is genuinely concerned about her mental wellbeing.
So when the question, the allegations of - well, they're not even allegations, they're memories. The first one is:
So one particular morning, um, from, from my memory, um, I remember waking up to you touching my vagina.
[The appellant] says:
You might have thought that, yeah?
Is that an admission? Is that someone just saying, 'Well, okay, you might have had that memory. Yeah? Go on,' and when he says 'yeah' I'm suggesting we've got a question mark at the end of that. You would have got that from his tone, I suggest. She says:
Um, and I remember you reaching across, um, to the bedside table and, um, putting some sort of cream on your fingers and then also putting that on my vagina.
[The appellant's] answer:
No, I don't remember doing that, dear, um, [LMM].
Why would you immediately assume that something sinister or indecent is implied by that? Why would that be your immediate assumption, because that's what I suggest the prosecution's asking you to do, is to assume that because as a stepfather he put some cream on her vagina that that must definitely be indecent, definitely. There's no other possible explanation.
Well, there - actually, there are and it could have been for any reason, any - any medicinal or therapeutic reason. We don't know, but the point is that [the appellant], when he's answering this, isn't saying, 'You've got that memory because I indecently dealt with you.' He's not saying that, and to imply that, I suggest, is a long bow. And [the appellant] qualifies that answer straight after. Because after he says:
No, I don't remember doing that, dear, um, [LMM].
[LMM] says:
Okay.
[The appellant] says, 'You might have been having a dream.' So he was just trying to, well, you know, he's not saying, 'That never happened. It could never have possibly happened.' He's not protesting too much, which is what I'd referred to earlier in the interview. He's not like that.
He's not trying to distance himself from any sinister spin on it because he's done nothing wrong. He hasn't done these things that you are here to determine.
And this - and then, of course, the reference to - at page 5 of the transcript of that call:
And, um, on the last night she was away you came into my room. Um, this was when I still had the double bed in there and ‑ ‑ ‑
Yeah?
And you got into the bed with me and you pulled me on top of you and - - -
Oh, oh, sweetheart, I don't remember that. I don't remember doing that. I used to go in and read you stories.
And she says:
[No], you used to come in and tell me that you missed mum.
[The appellant]:
Yeah?
And then you used to touch me, and you pulled me up - this particular time you've pulled me on top of you and I started - - -
I don't remember any of this, uh, [LMM].
I started crying and telling you I was tired, and you tried to calm me down and eventually you left.
I don't remember that, ah, [LMM], okay? I remember giving you cuddles.
Now, to imply from that that he is admitting what [LMM] says happened, I suggest to you, is just a bit too far. Because you can tell from his tone and you can tell from the context of this call as to why she's calling that he's not assuming that he has done anything indecent or improper with her.
And in his interview at page 144 when he was referring to this telephone call he told the - Detective Hannan:
She was not accusing me of anything.
That was his interpretation of this that I've just read to you. Now, all of us with the benefit of having heard what [LMM] had to say might look at this and go, well jeez, like the prosecutor wants you to conclude that he's made an admission. He did not for a moment think she was accusing him of anything improper, anything illegal, any sexual abuse.
And it's suggested to you, well, after this call the first thing you do is phone [MRC] and tell her. Well, not necessarily, and you've heard about the relationship between [the appellant] and [MRC] from [the appellant's] interview. I suggest to you if [the appellant] didn't think that she was accusing him of anything that if [LMM] was not accusing him of anything in that call he wouldn't have any need to speak to [MRC] about the call.
And in any event, less than three days later [MRC] did have a conversation with him in which [the appellant] told her about this topic of masturbation in this call. So it's not like he was hiding anything from [MRC].[75]
[75] Closing address, 7 September 2016 ts 46 - 49.
The pretext call - retrial - trial judge's summing up
The relevant parts of Sweeney DCJ's summing up to the jury are as follows.
Her Honour explained to the jury, in the context of the appellant's electronically recorded interview with the police, that 'admissions' by the appellant meant 'statements made by [the appellant] admitting some fact which forms part of the State's case against him' (ts 555).
Her Honour told the jury that the State's case relied upon their acceptance of LMM's evidence. It was necessary that the jury scrutinise her evidence with special care. Even if the jury was satisfied that LMM was an honest witness, who was doing her best to tell the truth and not setting out to fabricate, she was nevertheless giving evidence about matters said to have occurred a long time ago. The jury must be satisfied that LMM was reliable in her account about the essential details (ts 557 ‑ 558).
The jury would need to be satisfied that LMM had a clear memory that was grounded in reality and that she knew for a fact that the acts of the appellant, as alleged in the indictment, had actually happened (ts 559).
The jury were entitled to act upon LMM's evidence to convict the appellant if they were satisfied as to the truth and accuracy of her evidence, but it would be unsafe to convict the appellant on the basis of her evidence alone unless, having examined her evidence carefully and having taken full account of her Honour's Longman warning and all of the other factors that her Honour had mentioned, the jury was satisfied beyond reasonable doubt as to the truth and accuracy of LMM's evidence in relation to the count under consideration (ts 560).
Her Honour instructed the jury that there was no evidence which supported LMM's account of any of the offences alleged in the indictment (ts 560).
Her Honour informed the jury that the State relied upon the pretext call and asserted that the appellant had impliedly admitted that the offending conduct had happened consistently with LMM's evidence (ts 560).
Her Honour explained the nature of an inference. She then said that no inference could be drawn against the appellant unless the jury was satisfied that it was 'the only inference that [was] reasonably available on the whole of the evidence' (ts 561).
It was the State's case that in the pretext call the appellant 'said things that … amount to implied admissions, so not straight out admissions, but admissions that you would imply as a result of what was said'. The State relied upon what the appellant said and what he did not say (ts 562 ‑ 563). Her Honour commented:
When [LMM] said to [the appellant] that one particular morning she had woken up to him touching her vagina his response was, 'You might have thought that, yeah'. When she said to him, 'You would lift me onto your lap facing you with my legs either side of you' he replied, 'Yeah, I used to give you cuddles, yeah'. And when she said, 'Yeah, but during those cuddles you would move me up and downwards against you' he replied, 'Oh, yeah. Well, you might have memories of things like that'.
…
The State's case is that coupled with those comments [the appellant] stayed very calm during the telephone call. He didn't demand to know what on earth she was talking about. He didn't say to her, 'I would never, ever do anything like that to you'.
The State is asking you to infer from the combination of what he said and what he did not say that he was acknowledging that such occasions did occur. So the State is asking you to rely upon this evidence as an implied admission, in other words as in effect a confessional statement made by [the appellant], that if he was agreeing that she might have memories of things like that, then such a thing had actually occurred, which he then went on to give an innocent explanation to.
I've already directed you about the drawing of inferences … I'll remind you before you draw an inference against [the appellant] you must be satisfied it's the only inference reasonably available on the whole of the evidence.
Before you could use those statements against [the appellant] as implied admissions you'd need to be satisfied that the only reasonable inference to be drawn from them based on the entirety of the evidence of the case is that [the appellant] was impliedly admitting sexual misconduct towards [LMM] (ts 562 ‑ 563).
The jury could not find the appellant guilty of any count on the strength of the pretext call. The jury could not be satisfied that any particular incident had occurred unless the jury was satisfied that LMM's evidence about the incident was true and accurate. If, however, the jury was satisfied that the appellant had impliedly admitted in the pretext call that the alleged touching had occurred, the jury could use the implied admission as evidence supporting LMM's credibility generally (ts 563).
Her Honour reiterated that before the jury could find the appellant guilty of a particular count the jury would need to be satisfied beyond reasonable doubt 'that that specific offence occurred and you could only be satisfied of that if you accept [LMM's] account of that particular alleged offence' (ts 565 ‑ 566).
Her Honour noted that in the pretext call the appellant had suggested to LMM that 'her having chronically masturbated might be forming some connection in her mind that makes her have memories and think these things happened'. The appellant did not appear to be suggesting that LMM was deliberately lying, but rather that 'her chronic masturbation may have caused some confusion in her mind about the source of these apparent memories and thoughts' (ts 566 ‑ 567).
After referring to defence counsel's suggestion that in 2006 LMM had engaged in 'attention seeking behaviour' when she told two of her friends that 'she'd been sexually abused by [the appellant]', her Honour continued:
It all comes back to your assessment of whether you consider [LMM] to have been both an honest witness … and also a reliable witness who's given an account that is accurate and whether the State has proved its case to you (ts 567).
Her Honour summarised the appellant's case in relation to the pretext call as follows:
The defence case is that [the appellant's] reaction in … the telephone call … is of a man who's genuinely stunned at the accusations and seems to not really grasp that he could possibly be genuinely being accused of doing these things.
The defence case is [that] the tone of the phone call, if you listen to it again, is that [the appellant is] worried about [LMM], that he knows she's been seeing a psychologist, that he offers to come and talk to the psychologist to help her through this and that he's searching for answers as to why she has these questions for him. But he's doing his best to answer them gently (ts 578).
Neither the prosecutor nor defence counsel requested her Honour to give the jury an additional direction or a redirection (ts 583, 585 ‑ 586).
The grounds of appeal
As we have mentioned, the appellant relies on three grounds of appeal.
The grounds, as amended, read:
1.The trial judge erred in leaving it open to the jury [to] conclude that the appellant had made implied admissions in a 'pretext' telephone call [LMM] made to him on 2 January 2015, when on the evidence it was not open to conclude that the appellant had made any implied admissions, or alternatively there was a miscarriage of justice when the trial judge left it open to the jury to conclude that the appellant had made implied admissions.
2.There was a miscarriage of justice occasioned by the conduct of the trial prosecutor.
Particulars
(a)The prosecutor submitted to the jury in her closing address that the appellant had made implied admissions in the pretext call on 2 January 2015, when in fact the appellant had denied any offending and the comments sought to be relied on as implied admissions of offending were not capable of being so regarded.
(b)The prosecutor invited the jury to engage in a false line of reasoning to the effect that the appellant lied to police about what he had said in the pretext call in an electronically [recorded] interview with them on 5 January 2015, and thus that he was not to be believed, when a fair reading of the contents of his police interview could not support the contention that he had lied to police about what he had said in the pretext call.
(c)The prosecutor misstated relevant passages in the appellant's police interview in relation to count 3 on the indictment, suggesting that the appellant told police he could not remember whether he had committed the acts the subject of count 3, and then described the suggestion that the appellant could not remember whether or not he had done those acts as 'ludicrous', when the appellant had expressly and repeatedly denied any sexual touching on the occasion of count 3 or of [LMM] at all.
(d)The prosecutor submitted to the jury that the appellant had engaged in sexual acts of which he had previously been acquitted.
3.The trial judge erred in failing to give the jury appropriate curative directions correcting the prosecutor's erroneous submissions complained of in ground 2, or alternatively there was a miscarriage of justice when the trial judge failed to give those directions.
On 24 March 2017, Mazza JA granted leave to appeal on ground 1 and referred the application for leave to appeal on grounds 2 and 3 to the hearing of the appeal.
Ground 1 of the appeal: its merits
We have listened to the audio recording of the pretext call and we have read the transcript of the call.
In The State of Western Australia v McBride,[76] Corboy J summarised the applicable legal principles where the State alleges that an accused impliedly made admissions against interest, including by not expressly denying propositions or suggestions put to the accused in a pretext call:
[76] The State of Western Australia v McBride [2015] WASC 275 [11].
(a)A statement made in the presence of an accused person is not evidence against that person of the facts stated, except to the extent that the accused accepted the statement, so as to make it, in effect, his own: R v Christie [1914] AC 545 [554] (Lord Atkinson).
(b)An accused person may accept a statement made in his or her presence by word or conduct. The admission may be inferred from positive acts or from demeanour - for example, silence in the face of a direct accusation.
(c)It is for the trial judge to determine whether the evidence permits an inference to be drawn that an accused person has made an admission by his or her conduct. It is for the jury to determine whether the inference ought to be drawn.
(d)A question asked of a person who is accused or suspected of having committed an offence is admissible if the accused was invited, or might reasonably have been expected, to respond in some way indicative of denial or of acceptance: Woon v R (1964) 109 CLR 529 (541) (Windeyer J). Silence is not evidence of an admission unless it is reasonable to expect that if the statements made were untrue, they would be met with an immediate denial: Wiedemann v Walpole [1891] 2 QB 534 (539) (Bowen LJ).
(e)Accordingly, no inference adverse to an accused person can be drawn from their silence where the person has been warned that they are not obliged to answer any question put to them. Similarly, evidence that an accused person did not deny allegations made by a police officer prior to a caution being given may be excluded: see Hall v R [1971] 1 All ER 322.
(f)The Privy Council distinguished Hall in Parkes v The Queen [1976] 3 All ER 380 on the basis that it was the victim's mother and not a police officer who made an accusation to the accused person. Lord Diplock cited with approval the following passage from the judgment of Cave J in R v Mitchell (1892) 17 Cox CC 503:
Now the whole admissibility of statements of this kind rests upon the consideration that if a charge is made against a person in that person's presence it is reasonable to expect that he or she will immediately deny it, and that the absence of such a denial is some evidence of an admission on the part of the person charged, and of the truth of the charge. Undoubtedly, when persons are speaking on even terms, and a charge is made, and the person charged says nothing, and expresses no indignation, and does nothing to repel the charge, that is some evidence to show that he admits the charge to be true (508).
The notion of speaking on 'even terms' has been subsequently used as a point of distinction: see, for example, Phipson on Evidence (18th ed, 2013) 4-20.
(g)Where it is alleged that an accused person has made an admission by his or her silence, the jury must be directed that they must be satisfied that the accused heard the accusation, and that the circumstances in which the accusation was made were such that the accused person should have been expected to deny the allegation.
(h)Ordinarily, an ambiguous or equivocal statement will not be left to the jury to determine whether it was, in fact, an admission, either because it is irrelevant or because it is excluded as a matter of discretion: see Cross on Evidence (10th ed, 2015) [33595], fn 534. In R v Williams [1987] 2 Qd R 777, Andrews CJ observed:
Where however, nothing in the surrounding circumstances is shown which could reasonably be thought to compel a denial by a person interrogated or where he gives an answer which is ambiguous, neutral, equivocal or otherwise not plainly inconsistent with a consciousness of innocence it ought not to be left to the jury with a direction to the effect that it is left to them as a fact for their consideration and thus that they might regard it as probative and press it into service of the Crown.
As a rule it would be excluded because it is irrelevant. If, however, it is only by some tenuous reasoning as to its relevance that a ruling that it is technically admissible might be made, which could happen in some circumstances, its sheer lack of weight would cry out for its exclusion in the proper exercise of a judicial discretion (780 ‑ 781).
In the present case, the question of law for the trial judge was whether what the appellant said and did not say in the pretext call was capable of constituting an implied admission by him of the truth of any of LMM's assertions in the call that the appellant had engaged in sexual misconduct against her.
If what the appellant said and did not say in the pretext call was capable of constituting an implied admission by him of the truth of any of LMM's assertions, the question whether an adverse inference should be drawn from what the appellant said and did not say had to be determined by the jury.
An adverse inference could only be drawn against the appellant if, in the circumstances, it was the only reasonable inference open.
Defence counsel is an experienced criminal defence lawyer. As we have mentioned, defence counsel appeared for the appellant at the first trial and at the retrial.
At the first trial the prosecutor adduced the whole of the pretext call into evidence. Defence counsel informed Schoombee DCJ that he had considered the matter and had clear instructions not to oppose the tender.
At the retrial the prosecutor adduced the whole of the pretext call into evidence at the request of defence counsel. Defence counsel did not merely fail to object to the call being tendered as part of the State's case. He wanted the prosecutor to tender the call.
At the retrial (consistently with his approach at the first trial), defence counsel did not object to the prosecutor's characterisation of what the appellant said and did not say in the pretext call, on the basis that her characterisation was not open or on any other basis. Also, defence counsel did not seek an additional direction or a redirection in relation to her Honour's instructions to the jury concerning the prosecutor's submission that the appellant had made implied admissions against interest in the call.
Section 30(1) of the Criminal Appeals Act 2004 (WA) provides that s 30 applies in the case of an appeal against a conviction by an offender.
By s 30(2), unless under s 30(3) this court allows the appeal, it must dismiss the appeal.
Section 30(3) provides:
The Court of Appeal must allow the appeal if in its opinion ‑
(a)the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported; or
(b)the conviction should be set aside because of a wrong decision on a question of law by the judge; or
(c)there was a miscarriage of justice.
The statutory direction in s 30(3) that this court must allow the appeal is conditional upon this court forming the opinion specified in par (a), par (b) or par (c).
As to s 30(3)(b), 'a wrong decision on a question of law' includes misdirections on matters of substantive law and, also, misdirections on matters of adjectival law. The question under s 30(3)(b) is whether the error constitutes a miscarriage of justice in the sense of a departure from trial according to law. See Weiss v The Queen;[77] Filippou v The Queen.[78]
[77] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ) [17] ‑ [18].
[78] Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [13] (French CJ, Bell, Keane & Nettle JJ).
In Simic v The Queen,[79] Gibbs, Stephen, Mason, Murphy and Wilson JJ said, in effect, that the phrase 'a wrong decision on a question of law' by the judge refers to a wrong decision on a material point of law.
[79] Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319, 327 - 328.
If a trial judge fails to give a direction which is required by law and the failure may have resulted in the conviction of the accused, the trial has not been conducted according to law and the conviction constitutes a miscarriage of justice. See KBT v The Queen (Brennan CJ, Toohey, Gaudron & Gummow JJ).[80]
[80] KBT v The Queen [1997] HCA 54; (1997) 191 CLR 417, 424.
As to s 30(3)(c), the expression 'miscarriage of justice', having regard to its historical context, refers to 'any departure from trial according to law, regardless of the nature or importance of that departure': Weiss [18] (original emphasis). See also King v The Queen (French CJ, Crennan & Kiefel JJ).[81] Section 30(3)(c) covers cases where, as a consequence of irregularity or otherwise, an accused has not received a trial according to law or has not received a fair trial. See Weiss [45]; Filippou [14]. When the expression 'miscarriage of justice' in s 30(3)(c) is understood in that manner, the word 'substantial', in the context of the expression 'substantial miscarriage of justice' in the proviso in s 30(4), has work to do. See Weiss [18]; King [53].
[81] King v The Queen [2012] HCA 24; (2012) 245 CLR 588 [53].
Section 30(3)(b) may overlap in some circumstances with s 30(3)(c). See AK v The State of Western Australia;[82] Gassy v The Queen.[83]
[82] AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 [47] (Gummow & Hayne JJ), [86] (Heydon J).
[83] Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293 [19] (Gummow & Hayne JJ).
Where evidence is received at a criminal trial without objection and the trial judge makes no ruling on its admission, there is no wrong decision by the judge on a question of law, within s 30(3)(b). See R v Soma;[84] Birks v The State of Western Australia.[85] That proposition applies with even greater force where the evidence is received by consent. The admission of the evidence can only be challenged on appeal on the basis that its admission occasioned a 'miscarriage of justice', within s 30(3)(c).
[84] R v Soma [2003] HCA 13; (2003) 212 CLR 299 [11] (Gleeson CJ, Gummow, Kirby & Hayne JJ), [79] (McHugh J).
[85] Birks v The State of Western Australia [2007] WASCA 29; (2007) 33 WAR 291 [45] (Buss JA; Steytler P & Pullin JA agreeing).
The Australian criminal justice system involves a contest between the State or the Crown and the accused. In general, the accused is bound by the conduct of his or her counsel. The accused's counsel has a broad discretion in the conduct of the defence. As Gleeson CJ (McInerney J agreeing) noted in R v Birks:[86]
[86] R v Birks (1990) 19 NSWLR 677, 683.
Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case.
See also TKWJ v The Queen;[87] R v Taufahema.[88]
[87] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [8] (Gleeson CJ).
[88] R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [168] (Kirby J).
An apparently rational decision made by the accused's counsel in the course of the trial will not result in an unfair trial or a miscarriage of justice merely because it may appear then or later on appeal that the decision was not carefully considered, was unwise, or produced consequences which operated to the disadvantage of the accused. See Stanoevski v The Queen;[89] TKWJ.[90]
[89] Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115 [21] (Gaudron, Kirby & Callinan JJ).
[90] TKWJ [16] ‑ [17] (Gleeson CJ), [95] (McHugh J), [107] (Hayne J; Gummow J agreeing).
An appellate court does not examine whether a decision taken by the accused's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage. Rather, the appellate court is concerned only with whether counsel's decision is capable of explanation on that basis. That is, could there be any reasonable explanation for the decision? The test is objective in character. See TKWJ.[91]
[91] TKWJ [17] (Gleeson CJ), [27] (Gaudron J; Gummow J agreeing), [107] (Hayne J; Gummow J agreeing).
So, in the present case, if this court concludes, on an objective appraisal of the record of the retrial, in the context of the record of the first trial, that defence counsel's request that the prosecutor tender the whole of the pretext call was an apparently rational decision made in furtherance of a forensic strategy, no miscarriage of justice will have been occasioned by its reception into evidence.
In our opinion, the statements made by the appellant in the pretext call, combined with his failure expressly to deny LMM's allegations of sexual misconduct in the call, were capable of constituting an implied admission by him that he had engaged in sexual misconduct against LMM as alleged by her in the call. The appellant said in his police interview that the call from LMM came 'out of the blue' (EROI 48). It would be expected, as a matter of common human experience, that upon being confronted by LMM with (on the appellant's case) a false allegation that as a child she had awoken to the appellant touching her vagina (in a manner that was, by necessary implication, sexual), the appellant would have responded either with an immediate and unconditional denial or an expression of shock and indignation. Instead, the appellant responded by saying 'you might have thought that, yeah'. Later, when confronted with other allegations, the appellant responded by saying 'you might have memories of things like that' and 'I don't remember that'. The statements made by the appellant in the call, combined with his failure expressly to deny LMM's allegations, were not ambiguous or equivocal so as to require their exclusion either on the basis that they were irrelevant or as a matter of discretion. We have arrived at these conclusions upon our assessment of the audio recording and the transcript of the call in the context of the uncontested evidence as to the relationship between the appellant and LMM.
Also, the statements made by the appellant in the pretext call, combined with his failure expressly to deny LMM's allegations of sexual misconduct and his assertion that LMM had been a chronic masturbator who might or must have imagined the allegations in a dream or dreams, were capable of constituting an implied admission against interest in that the appellant was attempting to persuade LMM that her memories of his sexual misconduct against her were false. The statements made by the appellant in the call, combined with his failure expressly to deny LMM's allegations and his assertion that LMM had been a chronic masturbator who might or must have imagined the allegations in a dream or dreams, were not ambiguous or equivocal so as to require their exclusion either on the basis that they were irrelevant or as a matter of discretion. Once again, we have arrived at these conclusions upon our assessment of the audio recording and the transcript of the call in the context of the uncontested evidence as to the relationship between the appellant and LMM.
Further and in any event, defence counsel's request at the retrial that the whole of the pretext call be received into evidence can reasonably be explained, on an objective appraisal, as a considered and rational decision made in furtherance of a forensic strategy, in that:
(a)The appellant's case in relation to the pretext call, as conducted by defence counsel at the first trial, was reasonably capable of being viewed (at least in part) as a successful strategy in that, although the jury convicted the appellant of count 6, the jury acquitted him of counts 3 and 4 and was unable to agree on verdicts with respect to counts 1, 2 and 5.
(b)The pretext call included a number of self‑serving statements by the appellant in addition to the alleged implied admissions; in particular, the appellant's assertions that LMM had been a chronic masturbator, LMM might or must have imagined the sexual misconduct in a dream or dreams, and the appellant was willing to meet with LMM and her psychologist.
(c)The appellant's statements in the pretext call were consistent with his statements in his police interview and, accordingly, demonstrated consistency in circumstances where the appellant had no reason to suspect that the pretext call was being recorded.
(d)The appellant's statements in the pretext call were capable of bearing the interpretation advanced by defence counsel to the jury in his closing address.
(e)The admission of the whole of the pretext call into evidence enabled defence counsel to make submissions to the jury about the consistency of the appellant's accounts without the appellant having to give sworn or affirmed evidence at the retrial and be subject to cross‑examination.
This objective appraisal is confirmed by defence counsel's approach to the pretext call at the first trial.
As we have mentioned, on 14 March 2016, at a directions hearing before the commencement of the first trial, there was a discussion between Schoombee DCJ, the prosecutor and defence counsel in relation to the admissibility of the pretext call.
Defence counsel said:
I have given this matter some thought … and I've taken instructions from my client. I haven't specifically raised an objection to [the admissibility of the pretext call] because we say it's entirely consistent with the defence case that [the appellant] denies the allegations (ts 21).
Later, at the directions hearing, defence counsel reiterated:
As I say, we're not seeking to have [the pretext call] ruled inadmissible … I've clearly got instructions on that (ts 24).
At the first trial, the State relied upon the alleged implied admissions in the pretext call in a manner that was not materially different from the manner in which the State relied upon those alleged implied admissions at the retrial. The fact that defence counsel requested the prosecutor to tender the whole of the pretext call at the retrial indicates that defence counsel remained of the view that its tender would be of assistance in achieving a forensic advantage for the appellant.
Ground 1 fails.
Grounds 2 and 3 of the appeal: their merits
Ground 2 contains four complaints about the prosecutor's closing address. Counsel for the appellant contended that the matters the subject of the complaints occasioned a miscarriage of justice at the retrial.
The prosecutor in a criminal trial represents the State. The prosecutor must act 'with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one': Whitehorn v The Queen.[92]
[92] Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657, 663 ‑ 664 (Deane J).
As Mazza JA (McLure P agreeing generally & Newnes JA agreeing) noted in Goedecke v The State of Western Australia:[93]
[93] Goedecke v The State of Western Australia [2013] WASCA 25 [36].
Consistently with a prosecutor's duty, in a closing address a prosecutor should not (inter alia) tell a jury something that is not evidence (R vCallaghan [1993] QCA 419; [1994] 2 Qd R 300, 306; offer a personal opinion (KNP v The Queen [2006] NSWCCA 213; (2006) 67 NSWLR 227 [32]), introduce false lines of reasoning or invite a jury to speculate about the evidence. As to these last two points see Wood v The Queen [2012] NSWCCA 21.
See also JJS v The State of Western Australia.[94]
[94] JJS v The State of Western Australia [2014] WASCA 136 [134] (Martin CJ; Pullin JA agreeing & Buss JA relevantly agreeing).
In Wood v The Queen,[95] McClellan CJ at CL (Latham & Rothman JJ agreeing) said that asking questions, even in a rhetorical manner, and inviting the jury when considering its verdict to consider whether the accused had provided satisfactory answers to the questions, was an impermissible course for a prosecutor to follow because it reversed the onus of proof.
[95]Wood v The Queen [2012] NSWCCA 21; (2012) 84 NSWLR 581 [605].
If a prosecutor breaches his or her duty at trial it will be necessary for an appellate court to evaluate the significance of the breach in the context of the trial as a whole, including whether any objection to the prosecutor's course of conduct was taken by defence counsel. See Whitehorn (664); Goedecke [35], [37]; JJS [134].
A judge is bound to give a direction to the jury if, in the circumstances of the particular case, the direction is necessary to avoid a perceptible risk of a miscarriage of justice. See Carr v The Queen;[96] Longman v The Queen;[97] Tully v The Queen.[98] This is an incident of the judge's duty to ensure a fair trial for the accused. See RPS v The Queen.[99]
[96] Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, 324 ‑ 325 (Brennan J).
[97] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, 86 (Brennan, Dawson & Toohey JJ).
[98] Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234 [123] (Callinan J), [158] (Crennan J).
[99] RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41] (Gaudron A-CJ, Gummow, Kirby & Hayne JJ).
In the present case, as to particular (a) of ground 2, the prosecutor submitted in her closing address that the appellant had made implied admissions against interest in the pretext call. Counsel for the appellant argued that the prosecutor should not have put that submission because the comments made by the appellant in the call were incapable of constituting implied admissions. For the reasons we have given, in considering ground 1, there is no merit in particular (a) of ground 2. The statements made by the appellant in the pretext call, combined with his failure to deny LMM's allegations in the call, were capable of constituting an implied admission by him that he had engaged in sexual misconduct against LMM as alleged by her in the call. It follows that particular (a) of ground 2 and (to the extent that it relates to particular (a) of ground 2) ground 3 fail.
As to particular (b) of ground 2, the prosecutor submitted in her closing address that the appellant had not told the police the 'whole story' in his police interview.[100] The prosecutor continued:
[100] Closing address, 7 September 2016 ts 19.
[The appellant] in that telephone call I've just read excerpts from, said more than, 'I don't remember anything like that'. He said [LMM] might have thought when she woke up that he was touching her vagina. Might have been dreaming, but he didn't tell the police either of those things.
And you would think, members of the jury, that a conversation that [the appellant] had with his stepdaughter just a few days prior about him touching her would be engrained in his memory and he clearly wasn't, I suggest, being truthful when he said what he said.[101]
[101] Closing address, 7 September 2016 ts 19.
The prosecutor's submission on this issue was, in substance, that the appellant had, in effect, lied by omission to the police.
During his police interview the appellant mentioned the pretext call to the police officers. The following exchange occurred:
[THE APPELLANT]: [LMM] actually called me. She probably told you.
S/CON HANNAN: Okay. No. Tell me about what - - -
[THE APPELLANT]: She didn't tell you?
S/CON HANNAN: Well, what, tell me what, what, what do you mean she called you?
[THE APPELLANT]: I think it was yesterday. I'm pretty sure it was yesterday or might have been the day before.
S/CON HANNAN: So yesterday was Sunday.
[THE APPELLANT]: Yeah.
S/CON HANNAN: Okay.
[THE APPELLANT]: And she asked me a whole bunch of questions ‑ ‑
S/CON HANNAN: Okay.
[THE APPELLANT]: And it was relating to, um, um, abuse type questions.
S/CON HANNAN: Mmhmm. What, what do you remember about that? What did she talk about? Do you remember any of the context of the conversation?
[THE APPELLANT]: Yes. Um, she asked me, um, a bunch of question [sic] about, um, ah, touching her - - -
S/CON HANNAN: Mmhmm. .
[THE APPELLANT]: Touching her up - - -
S/CON HANNAN: Mmhmm.
[THE APPELLANT]: And, um, ah, cuddling her - - -
S/CON HANNAN: Mmhmm.
[THE APPELLANT]: That, that, that's mainly the - - -
S/CON HANNAN: Okay. And - - -
[THE APPELLANT]: Line of questions.
S/CON HANNAN: So that, that was a call that she's made to you.
[THE APPELLANT]: Yes.
S/CON HANNAN: Um, how did that, what, was that out of the blue, or was, ah, how did - - -
[THE APPELLANT]: It was out of the blue.
S/CON HANNAN: And how did that make you feel, or what, what was your response to that?
[THE APPELLANT]: Well, I answered all her questions - - -
S/CON HANNAN: Mmhmm.
[THE APPELLANT]: Some in the affirmative and some not.
S/CON HANNAN: Okay. .
[THE APPELLANT]: Um, how did I feel? I was, sort of, stunned a bit like I felt when you knocked on my door.
S/CON HANNAN: Mmhmm.
[THE APPELLANT]: Um, I felt the same feeling.
S/CON HANNAN: Mmhmm.
[THE APPELLANT]: Um, how do you describe, um, it's just stunned, sort of ‑ ‑ ‑
S/CON HANNAN: Mmhmm.
[THE APPELLANT]: Ah, ah, aghast type of feeling.
S/CON HANNAN: Sure. Do you remember specific, um, you said that she asked you questions. Do you remember anything specific that she said to you or asked you?
[THE APPELLANT]: Um, yes. Um, she mentioned different places. She mentioned [the first house] - - -
S/CON HANNAN: Mmhmm.
[THE APPELLANT]: And [the second house].
S/CON HANNAN: Right. So, and that, obviously, fits into the timeframe between nineteen ninety-six and - - -
[THE APPELLANT]: Yeah.
S/CON HANNAN: Two thousand and six. They're the two - - -
[THE APPELLANT]: Yes.
S/CON HANNAN: Locations where - - -
[THE APPELLANT]: Yeah.
S/CON HANNAN: You were living as a family.
[THE APPELLANT]: Yeah.
S/CON HANNAN: Okay. What, what can you tell me about what was said? Can you tell me, can you remember anything that was said or what you said?
[THE APPELLANT]: Well, she, she was asking, she wasn't making any acc-, accusations or, or ‑ ‑ ‑
S/CON HANNAN: Mmhmm.
[THE APPELLANT]: Um, claims or anything. She was asking the questions.
S/CON HANNAN: Okay.
[THE APPELLANT]: She said, um, can you remember doing this in, in [the first house].
S/CON HANNAN: What, when you say this, did she say what or ‑ ‑
[THE APPELLANT]: Ye-, yes.
S/CON HANNAN: Yeah.
[THE APPELLANT]: She said, um, yeah, touching her up.
S/CON HANNAN: Touching her up?
[THE APPELLANT]: Yeah.
S/CON HANNAN: Explain to me what you mean by touching her up?
[THE APPELLANT]: Well, she actually said, um, um, ah, putting my hand on her vagina.
S/CON HANNAN: Mmhmm. You putting your hand on her vagina?
[THE APPELLANT]: Yes.
S/CON HANNAN: She a- - - -
[THE APPELLANT]: That's, that's the way she asked the question.
S/CON HANNAN: Okay. And what, what did you say?
[THE APPELLANT]: I said, well, no, I don't remember anything like that.
S/CON HANNAN: Mmhmm.
[THE APPELLANT]: She asked me other questions regarding cuddling her, which I answered in the affirmative.
S/CON HANNAN: Mmhmm.
[THE APPELLANT]: I said, yes, I used to, um, ah, cuddle you.
S/CON HANNAN: Mmhmm.
[THE APPELLANT]: Um, it was about the only part I did agree with ‑ ‑ ‑
S/CON HANNAN: Okay (EROI 48 ‑ 50).
In our opinion, although the appellant did not tell the police in his police interview everything that he had said to LMM in the pretext call, the police officers (who were, of course, aware of everything that had been said) did not (on a fair assessment of the interview considered as a whole) request the appellant to provide a comprehensive and detailed account of the call.
It is true that Detective Hannan said to the appellant:
What … can you tell me about what was said [in the pretext call]? Can you tell me, can you remember anything that was said or what you said? (EROI 49).
However, when the appellant responded by stating that LMM was asking questions, the exchange between the appellant and Detective Hannan diverged and focused on a number of specific issues.
The appellant did on several occasions during his police interview say that LMM must have been imagining or dreaming (EROI 100, 111, 118). Those statements were edited from the version of the interview that was tendered as part of the State's case at the retrial.
We are satisfied, in the circumstances, that although the prosecutor was entitled to submit in her closing address that the appellant had not told the 'whole story' in his police interview, she was not entitled to submit that the appellant was being untruthful by omitting to tell the police officers that in the pretext call:
He said [LMM] might have thought when she woke up that he was touching her vagina. Might have been dreaming … [102]
[102] Closing address, 7 September 2016 ts 19.
There was an inadequate basis in the evidence for the prosecutor's submission that the appellant had, in effect, lied by omission to the police in relation to this issue.
We note, however, that in her closing address the prosecutor:
(a)reminded the jury that the appellant did not have to prove anything (ts 21);
(b)did not rely upon the appellant's alleged lies as evidence of a consciousness of guilt, but as evidence bearing upon the appellant's credibility (ts 23);
(c)informed the jury that the State's case relied upon their acceptance of LMM's evidence (ts 3, 13);
(d)did not reverse the onus of proof; and
(e)did not invite the jury to engage in impermissible reasoning.
Sweeney DCJ instructed the jury in her closing address, in relation to the appellant's alleged lies generally, as follows:
Now, the State attributes lies to [the appellant] in his interview and in his telephone conversation with [LMM] in which he accused her of chronically masturbating. He did the same in his interview with the police. He also in his interview with the police described his response to her in the phone call as consisting of him telling her that he couldn't remember these things happening. When the State says in fact that that was a very selective version of the truth because in fact he tried to persuade her that she was dreaming and that her masturbation might have something to do with this.
You'll make up your own mind about whether he has told any lies and if so whether he did so deliberately. A lie of course is a deliberate falsehood. [I]f a person fails to have a memory of something that's not a lie, it has to be a deliberate falsehood. If you find [the appellant] did tell any lie it's for you to decide what significance it has in relation to the issues in the case (ts 556 ‑ 557).
Her Honour then directed the jury that if it found that the appellant had told any deliberate lies, that finding may be a factor in the jury's assessment of the credibility of the appellant's account in his police interview. However, her Honour also directed the jury that it must not follow a process of reasoning to the effect that 'just because a person is shown to have told a lie about something that that of itself amounts to evidence of guilt' (ts 557).
Defence counsel did not request her Honour to give the jury an additional direction or a redirection in relation to the prosecutor's submission.
In our opinion, her Honour's instruction to the jury in her closing address in relation to the appellant's alleged lies was adequate to guard against any risk of a miscarriage of justice arising from the prosecutor's submission.
Particular (b) of ground 2 and (to the extent that it relates to particular (b) of ground 2) ground 3 fail.
As to particular (c) of ground 2, the appellant complains that the prosecutor, in her closing address, misstated the appellant's comments in his police interview. Also, that the prosecutor misled the jury about what the appellant meant when he uttered the words 'I don't know'. Further, that as a result the prosecutor gave the jury an inaccurate and unfair impression as to what the appellant had actually said in his police interview. Finally, that the prosecutor's misstatement of the appellant's comments made it inappropriate for her to submit that the appellant's professed inability to recall was 'ludicrous'.
In his police interview, the following exchange occurred between the appellant and one of the interviewing police officers:
S/CON HANNAN: Mmhmm.
[THE APPELLANT]: You say it was quite cold your relationship, but at the same time you used to give her fairly affectionate cuddles.
S/CON HANNAN: Yeah.
[THE APPELLANT]: And that continued on for some time through her childhood.
S/CON HANNAN: Yeah. Yeah. Yeah.
S/CON HANNAN: So you had - - -
[THE APPELLANT]: But - - -
S/CON HANNAN: A bond of some sort.
[THE APPELLANT]: Oh, we did. Yeah, Um, ah, b-, but it was never, um, a-, as a father, daughter. W-, we were, father daughter relationships are ‑ ‑ ‑
S/CON HANNAN: Mmhmm.
[THE APPELLANT]: Are normally very, very close - - -
S/CON HANNAN: Mmhmm.
[THE APPELLANT]: In a normal family. [LMM] and I were never that close.
S/CON HANNAN: Mmhmm. So on this occasion, did you go into [LMM's] room, um, with the hope of maybe having sex with her?
[THE APPELLANT]: Oh, no. No. No. No.
…
S/CON HANNAN: She is saying that you have gone in there and you have got on her bed and then you've pulled her on top of you. And when I asked you that earlier you said that, that might of happened.
[THE APPELLANT]: Yeah. Um, I've got no specific memory of it.
S/CON HANNAN: Mmhmm.
[THE APPELLANT]: But I may of gone in there to give her a cuddle.
S/CON HANNAN: Mmhmm.
[THE APPELLANT]: That, that's possible. I, I can't remem-, um - - -
S/CON HANNAN: And at that time, might of you said to her that you miss your, miss her mum? As in you miss - - -
[THE APPELLANT]: Yeah. That would have been the truth.
S/CON HANNAN: Okay.
[THE APPELLANT]: Had, had I said that - - -
B S/CON HANNAN: Mmhmm.
[THE APPELLANT]: I'm not saying it is that. But - - -
S/CON HANNAN: No.
[THE APPELLANT]: Had I said that, that would have been the truth.
S/CON HANNAN: Okay. She is saying that you've positioned her on top of you and that you've started to move her up and down against you. And that you tried to take off her pyjama pants - - -
[THE APPELLANT]: And, oh, yeah.
S/CON HANNAN: And underwear - - -
[THE APPELLANT]: Oh, yeah.
S/CON HANNAN: And that you were fingering her with your other hand.
[THE APPELLANT]: Oh, it's not true. I, I'm not sure why, where she is getting this. '
S/CON HANNAN: Mmhmm. She is saying that you were rubbing on the outside of her vagina.
[THE APPELLANT]: Not true.
S/CON HANNAN: She is not saying that you penetrated her at this stage. She is saying that you, you've been rubbing her vagina. And then she's struggled to get, um, out of this position and that you pull her back down towards you and that you asked her what was wrong.
[THE APPELLANT]: Well I've got to agree that's very specific.
S/CON HANNAN: Yeah.
[THE APPELLANT]: But I've got no memory of it.
S/CON HANNAN: Mmhmm. And that she started crying and she said that she was tired.
[THE APPELLANT]: Alright.
S/CON HANNAN: She told you that she was tired and that she - - -
[THE APPELLANT]: I have got no memory of that.
S/CON HANNAN: No. Could it have happened?
[THE APPELLANT]: I don't know (EROI 133 - 135).
In her closing address (correctly formatted), the prosecutor read from, and made submissions on, parts of the appellant's police interview, as follows:
- sorry. I'll read this again. Question:
She's not saying that you penetrated her at this stage. She's saying that you - you've been rubbing her vagina and that she struggled to get, um, out of this position and that you pull her back down towards you and that you asked her what was wrong?---Well, I've got to agree that's very specific.
Yeah?---But I've got no memory of it.
Mm. And that she started crying and she said she was tired?---All right.
She told you she was tired and that - - -?---I've got no memory of that.
No? Could it have happened?---I don't know.
The question is:
She's not saying that you penetrated her at this stage, she's saying that you, you'd been rubbing her vagina and then she struggled to get out of this position and you pull her back down towards you and that you asked her what was wrong.
As to that ‑ 'But I've got no memory of that'.
As to that ‑ 'Could it have happened?' ‑ 'I don't know'.
And again the fact that he's got no memory of that, he doesn't know when confronted with the allegations, I suggest speaks volumes. And that the accused man would have no memory of that, I suggest is absolutely ludicrous.
Surely, members of the jury, you would remember if you went into your stepdaughter's bedroom and you pulled her on top of you and you were rubbing against her vagina whilst your spouse was away for work - and the thing is, members of the jury, [LMM] remembers and she has told you.[103] (emphasis added)
[103] Closing address, 7 September 2016 ts 17 - 18.
The prosecutor's repetition of the questions and answers, which we have emphasised in that passage, omitted some words. However, the omission is immaterial because the omitted words do not alter or detract from the meaning or effect of the answers given by the appellant in the interview.
The prosecutor read the whole of the relevant passage from the interview immediately before she repeated the emphasised questions and answers and made the submission that the appellant's professed inability to recall was 'ludicrous'. In the circumstances, there could have been no confusion as to what the appellant meant when he uttered the words 'I don't know'. The jury would not have been misled. The prosecutor did not give the jury an inaccurate or unfair impression as to what the appellant had actually said in his police interview.
The prosecutor's use of the word 'ludicrous' was, no doubt, colourful and emphatic, but we are not persuaded that, in the circumstances, it was unfair to the appellant. There was a proper basis in the evidence for the prosecutor to contend that the appellant's professed inability to recall was implausible and should be rejected.
Defence counsel dealt with the appellant's police interview in his closing address and put the appellant's position in relation to the things he said and did not say in the interview firmly and effectively (ts 28 ‑ 33).
Her Honour summarised the appellant's police interview in her summing up. She reminded the jury that the appellant had, on numerous occasions in his interview, denied interfering sexually with LMM and that it was a matter for the jury what they made of his statements in the interview.
Defence counsel did not request her Honour to give the jury an additional direction or a redirection in relation to the prosecutor's statements to the jury.
In our opinion, the prosecutor's submission was properly open on the evidence and her submission did not occasion a miscarriage of justice.
Particular (c) of ground 2 and (to the extent that it relates to particular (c) of ground 2) ground 3 fail.
As to particular (d) of ground 2, counsel for the appellant complained that the prosecutor submitted to the jury, in her closing address, that the appellant had engaged in sexual acts with LMM of which he had been acquitted at the first trial.
The relevant passage from the prosecutor's closing address reads:
You just might remember [LMM] also talks about waking up when she's in her bedroom with him touching her vagina with his fingers. Then the first thing he says is:
You might have been having dreams?---I don't think.
And then [the appellant] says:
I used to - I used to cuddle you but um ah nothing like that ever happened. You were probably having dreams, sweetheart.
So he could say, no, conduct didn't happen when it did happen.[104]
[104] Closing address, 7 September 2016 ts 15.
Particular (d) is concerned with the prosecutor's statement in that passage '[s]o he could say, no, conduct didn't happen when it did happen' (emphasis added).
At the retrial, Sweeney DCJ informed the jury in her opening remarks:
[T]his case is a re-trial. The trial has occurred before. I'm not going to explain to you the reason why, it is in fact irrelevant to you. There may be many reasons why a trial requires to go back to trial, and it's important that you try and guess while you think it's a re-trial because you could guess very incorrectly and it won't assist you to guess. But it may become obvious to you as we go along (ts 419).
The fact that the retrial was a retrial would have become obvious to the jury because the State relied on the material facts of the offence charged in count 6, of which the appellant was convicted at the first trial, as propensity evidence.
The jury was not informed of the appellant's acquittal at the first trial of the charges in counts 3 and 4.
Defence counsel did not request her Honour to give the jury an additional direction or a redirection in relation to the prosecutor's submission.
In our opinion, it is unclear what the prosecutor was intending to convey when she said, '[s]o he could say, no, conduct didn't happen when it did happen' (emphasis added).
However, we are satisfied that the jury would not have understood from the impugned statement in the prosecutor's submission that the prosecutor was asserting that the appellant had engaged in sexual acts of which he had previously been acquitted.
Particular (d) of ground 2 and (to the extent that it relates to particular (d) of ground 2) ground 3 fail.
Conclusion
We would grant leave to appeal on grounds 2 and 3. However, none of the grounds of appeal has been made out. The appeal must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DR
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICE BUSS26 APRIL 2018
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