MSK v The State of Western Australia
[2022] WASCA 55
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MSK -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 55
CORAM: BUSS P
MAZZA JA
VAUGHAN JA
HEARD: 2 MARCH 2022
DELIVERED : 1 JUNE 2022
FILE NO/S: CACR 157 of 2021
BETWEEN: MSK
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GILLAN DCJ
File Number : IND 938 of 2020
Catchwords:
Criminal law - Appeal against conviction - Historic child sex offence - Unlawfully and indecently dealing with a child under the age of 14 - Where complaint raised over 30 years after offence - Where complainant of a very young age - Whether conviction unreasonable and not supported by the evidence - Turns on own facts
Criminal law - Appeal against conviction - Historic child sex offence - Unlawfully and indecently dealing with a child under the age of 14 - Whether incompetence of counsel gave rise to a miscarriage of justice - Whether defence counsel's failure to call character evidence capable of reasonable explanation - Whether defence counsel's limited cross-examination capable of reasonable explanation - Turns on own facts
Legislation:
Evidence Act 1906 (WA), s 8(1)(f)
Result:
Leave to appeal granted on ground 1
Leave to appeal refused on ground 2
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | S D Freitag SC and A N Blackburn |
| Respondent | : | G N Beggs |
Solicitors:
| Appellant | : | DG Price & Co |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Dayananda v The State of Western Australia [2021] WASCA 11
Donaldson v The State of Western Australia [2007] WASCA 216; (2007) 176 A Crim R 488
Fennell v The Queen [2019] HCA 37; (2019) 93 ALJR 1219
GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698
George v The State of Western Australia [2020] WASCA 139
Hamilton v R (1993) 68 A Crim R 298
Huggins v The State of Western Australia [2018] WASCA 61
Jago v The State of Western Australia [2022] WASCA 2
Jeffrey v The State of Western Australia [2018] WASCA 219
Joyce v Anderson [2020] WASCA 48; (2020) 91 MVR 334
Liyanage v The State of Western Australia [2021] WASCA 220
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
LTC v The State of Western Australia [2021] WASCA 60
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
McMahon v The State of Western Australia [2010] WASCA 143
Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1
MEN v The State of Western Australia [2020] WASCA 118
OTR v The State of Western Australia [2021] WASCA 200
Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123
R v Bracewell (1978) 68 Cr App R 44
R v Stalder [1981] 2 NSWLR 9
Sethi v The State of Western Australia [2020] WASCA 173
Smith v The State of Western Australia [2021] WASCA 17
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 125
WMT v The State of Western Australia [2021] WASCA 104
Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482
ZHA v The State of Western Australia [2020] WASC 101
JUDGMENT OF THE COURT:
Overview
On 1 September 2021, following a trial in the District Court before Gillan DCJ and a jury, the appellant was convicted on a single count that, on an unknown date between 14 April 1989 and 27 September 1989, he procured S, a child under the age of 14 years, to unlawfully and indecently deal with him contrary to s 183 of the Criminal Code (WA) as then in force.
S, the complainant, was three years old at the time of the alleged offending. The appellant was the then boyfriend of S's mother. During a visit by S and her mother to the appellant's house the appellant allegedly directed S to perform fellatio on him.
The appellant was sentenced to a term of 21 months' immediate imprisonment and was made eligible for parole.
The appellant appeals against the conviction. He relies on two grounds:
1.The appellant alleges that the verdict of guilty should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported. In particulars in support of ground 1 the appellant pointed to:
(a)S's young age at the time of the alleged offence;
(b)the inherent implausibility of the allegations and the complainant's professed detailed memory of the events and surrounding circumstances;
(c)the lack of any corroboration; and
(d)the delay in the matter coming before the court.
2.There was a miscarriage of justice occasioned by the incompetence of defence counsel. There are two aspects to this allegation. First, the ground complains about the failure to call available good character evidence. Second, it is said that defence counsel failed to cross-examine the complainant's mother adequately.
For the reasons that follow, while we would grant leave to appeal on ground 1, the ground fails. Both aspects of ground 2 are without merit. Accordingly, the appeal must be dismissed.
The parties' respective cases at trial
In examining the trial record it is convenient to commence with the parties' opening addresses to the jury.
The prosecution's case
The prosecutor explained that the trial was about a single incident of alleged sexual offending against a three-and-a-half-year-old girl that happened over 30 years ago (ts 22).
The complainant, S, was born in April 1986 and lived in a regional town with her mother and brother, L. At the time of the alleged offence the brother, L, was about six years old. From about 1988 to 1990 S's mother was in a relationship with the appellant. At the time of the alleged offending the appellant was aged about 31. The prosecutor noted that some adults have no memories from when they were aged three and a half. However, the prosecutor said that S had retained memories from her early childhood and could remember quite a lot about when she was three and a half (ts 23).
The prosecutor said that the incident the subject of the trial was something that stood out in S's mind for good reason: it was a significant event (ts 23).
The appellant lived in a double storey townhouse with his son. S's mother took S and L to visit the appellant's townhouse on a number of occasions. The sexual offending was alleged to have occurred on one of the visits. There was no witness to the event apart from S. However, S's mother and L were in the townhouse at the time (as was the appellant's son). It was daytime. L and the appellant's son were playing in a room upstairs; the appellant was in his upstairs bedroom; S's mother was downstairs near the kitchen. S needed to go upstairs to use the toilet. When S walked past the appellant's bedroom he asked S to come in and lock the door. She did so (ts 24 - 25).
The appellant had no shirt on. When S approached, the appellant pulled down a sheet covering his lower body. The appellant was naked and had an erection. The appellant pulled S close to him and instructed her to suck his penis, telling her to 'suck it like a lollipop'. S put her mouth over the appellant's penis. She moved her head up and down. After a short while S felt wetness in her mouth. The appellant told S to swallow it and S did so. The next thing S remembered was her mother calling her name. S unlocked the door, experiencing a little difficulty in doing so, and exited the bedroom (ts 25 - 26).
S did not say anything to her mother about the incident. A short while after S left the bedroom S, her mother and L left the townhouse (ts 26). According to S, they never went back to the appellant's townhouse after the incident. Several months later the relationship between the appellant and S's mother ended (ts 27).
The matter was reported to the police in 2018 (ts 27).
The prosecutor made it plain that the State's case depended on S's testimony, stating that 'in order to find [the appellant] guilty of the offence you would need to accept [S's] evidence as honest, reliable and accurate when it comes to the sexual act' (ts 27).
The defence case
Defence counsel emphasised that the case went back 30 years and was based on the evidence of a single witness who was three and a half at the relevant time (ts 28 - 29). He asked the jury to bring their life experience to not only what S stated she was remembering but what she could remember. The jury were invited to look very carefully at what S said and how she said it and to make an assessment. Defence counsel said that everything in terms of the jury's deliberations would turn on what assessment the jury made of S's evidence (ts 29).
The evidence
This was a short trial. There were three witnesses called by the prosecutor: S, S's mother and the investigating police officer, Detective Kelly Ellis. The only witness called by the defence was the appellant.
The evidence of S as the complainant
At the time of trial S was 35 years old (ts 36).
S was asked about her memories from when she was three years of age. S gave evidence that (ts 37, 39 - 40):
1.She lived with her mother and brother in a particular street in a suburb of a regional town before moving when she was four.
2.She attended a home day care with a lady named Deirdre.
3.She had no contact with her father.
4.Her next-door neighbour was a lovely old lady named Ruth.
5.Her mother's friend lived down the street with her daughter who S played with (although the daughter was younger than S).
6.There was a big tree out the back of the house in which she lived and a table and chair set that S and her brother played at.
7.The house that she lived in with her mother and brother had three bedrooms and she had her own bedroom.
8.She walked her brother to school with their mother.
S could also remember her teacher in grade 1. However, she could not remember the names of her teachers in pre-primary (when she was four). S could, however, remember that she had two teachers in pre‑primary (ts 40).
S was asked about the appellant. She described him as being in a relationship with her mother. S last saw the appellant before she moved when she was three or four. S confirmed that she had been to the appellant's house. S did not 'remember exactly' where the appellant's house was but remembered what the house looked like. S described the appellant's house as a small brown brick double-storey unit with white writing on the outside of the units. When asked whether she had been to the appellant's house one time or more than one time, S said '[o]nly once that I can remember' (ts 38). Later S said that she recalled the ground outside the townhouse as being gravel that her mother parked on (ts 44).
As well as having been to the appellant's home, S could remember seeing the appellant at the home where she lived with her mother and brother (ts 41).
S was asked about the time she remembered attending the appellant's house. S could not remember seeing the appellant before that (ts 41). The appellant and his son were at the house; S attended with her mother and brother. S said that the appellant's son's name was 'Michael' - the same as the appellant's name - although the appellant was called 'Mick' (ts 39). Michael, the appellant's son, was a little bit older than L (ts 41). It was daytime. In terms of the inside of the appellant's house, S remembered the stairs and a cream carpet. S also remembered that there were two bedrooms, both upstairs - as was the toilet. There was a downstairs kitchen with a breakfast bar (ts 39).
L went upstairs to play with Michael, the appellant's son. S was downstairs with her mother, who was sitting at the breakfast bar. S described this as being 'underneath the stairs'. S pictured her mother smoking and maybe holding a glass of wine. At some point S went upstairs to go to the toilet and try to play with the boys. After using the toilet S went to find the boys. S did not go into the room; she was just at the door. Michael had a toy box and was pulling toys out of the box. L told S that she could not play with them and to go away. S left (ts 41 - 42).
S went into a hallway outside the bedroom doors. While there the appellant called her into his room. He was in his bedroom on the bed (ts 42 - 43).
S was asked what she remembered about the bedroom. S said that she remembered the bed. The head of the bed was against the window. S referred to seeing blue sky (which was why she knew it was daytime), white bed sheets and a cream carpet. The appellant was alone in his bedroom (ts 43).
The prosecutor then took S through a series of photographs of the townhouse that S had been shown recently (Ex 1; ts 43 - 47). S acknowledged that there were aspects in the photographs that she did not remember (ts 45). However, S identified the breakfast bar (ts 46), the appellant's bedroom (ts 46) and Michael's bedroom (ts 46 - 47).
Returning to the incident, S's evidence was that the appellant called her into his bedroom. The appellant got her to shut the door and lock it; S did not know how to lock the door, but the appellant told her what to do. The appellant was already on the bed and was smiling. S described the appellant as 'coaxing' her to get her to come over to him. S went to the left bottom corner of the bed - the left side as one looked at the bed but the right side if lying on the bed. The appellant got S to get up on the bed saying 'come on' or 'come up' and saying 'good' like S was a good girl. S could see that the appellant was naked from the waist down although the sheets were around him. She could not remember whether the appellant had anything on the top half of his body. S then described seeing the appellant's penis which was erect. However, S said that, at the time, she did not know about erections. S said that at the time she just thought it was 'really big' and 'poking out' - 'like in the air basically'. At this stage the appellant had his hand on his penis showing it to S (ts 47 - 50).
S's evidence as to what happened once she was on the bed was:
That's when he - like he grabbed my head and - and put his dick in my mouth and - yeah, he forced it in there like and just - and, you know, and told me I was good and to - yeah, suck on it like a lollipop and - and then like I thought because I was so little I thought he wee'd in my mouth but he just like he - now I know that he was like - he ejaculated and - and he held my head there and made me - like I swallowed it. (ts 49 - 50)
S was between the appellant's legs but could not say whether she was sitting or kneeling (ts 77). The appellant had one arm behind his head and the other arm was holding S's head. The appellant pushed his penis down into S's throat. That did not go on for very long. S did not move in any way. But the appellant moved his penis back and forth while it stayed in S's mouth (ts 50 - 51).
At the time S did not understand that this was not okay (ts 50).
S's mother started banging on the door. She called S's name and said to open the door. S went to pull away from the appellant and open the door. However, the appellant tried to hold her saying 'don't open the door' or 'stay here'. But S pulled away from the appellant and unlocked and opened the door. She saw her mother outside the door. S could not remember much about what happened after she opened the door. S was 'pretty sure' that they left straight away (ts 51 - 52). In re‑examination S said that she saw the appellant cover himself with the sheets as she went to the bedroom door (ts 77 - 78).
After she opened the appellant's door, S did not say anything to her mother about what had happened. At that time S did not know that what had happened was a bad thing (ts 52).
S did not remember ever going back to the appellant's house. However, she did see the appellant again (ts 53).
S reported the incident to the police in 2018 (ts 53).
In cross-examination S said that the event occurred when she was three or four (ts 55, 56). It was more than 30 years ago (ts 56). S did not remember going to another home occupied by the appellant when she was two years old (ts 57). S also confirmed that she knew the appellant as 'Mick' and his son as 'Michael' and that she only remembered going to the appellant's home on the one occasion (ts 58). S did not recall the appellant babysitting her at that house or at all. Nor did S recall the appellant changing her nappy on one occasion with S's mother (ts 58 - 59) or visiting the appellant's house with her mother on at least six occasions (ts 75).
S denied only recalling the white writing on the bricks to the appellant's townhouse having been shown the photographs in Exhibit 1 (ts 59). S also said that she remembered the breakfast bar, being where her mother was sitting, and the stairs - the latter being a 'big thing' to a three-year-old (ts 60 - 62). S distinctly recalled needing to go to the toilet but said her memory was vaguer on whether she actually went to the toilet (ts 62). She was unable to say how long she had been at the appellant's house before going up the stairs (ts 63).
Defence counsel suggested that the bedroom S had identified as the appellant's bedroom was the appellant's son's bedroom. S rejected that suggestion (ts 71 - 72, 76; see also ts 62).
In cross-examination it was suggested that there was a toilet downstairs in the townhouse. In re-examination S clarified that she did not know there was a toilet downstairs (ts 77).
When cross-examined about the alleged offending and the events immediately before and after the alleged offending S gave evidence that was broadly consistent with her evidence-in-chief (ts 72 - 75). S provided one further detail. S said that, while she could not remember exactly, she thought the appellant was bare bodied on top (ts 73). S denied defence counsel's suggestion that there was no lock on the appellant's bedroom door (ts 73). S also clarified that, when she opened the bedroom door to her mother, her mother did not come all the way into the room; while S could not remember exactly what happened she was pretty sure that they then left the appellant's home (ts 75). But S could not recall whether the appellant said anything to S's mother or whether S's mother said anything to the appellant. Nor could S remember what happened immediately after S's mother came to the door (ts 75). S also said that she did not recall seeing the appellant on that day prior to going into his bedroom (ts 74).
Under cross-examination S admitted that her memory was not perfect (ts 75). S also accepted that she was an adult trying to remember something when she was around three to three and a half, although going on to say: 'I wouldn't say it's the case that I'm trying to remember it, it's more of a case that the memory's never left' (ts 75). The 'it' referred to the whole memory of the incident (ts 78). Earlier, in referring to her recollection that the appellant had one hand behind his head and the other hand on S's head, S said that she could picture the image in her head. S denied that the picture had been formed recently. S said that she had never forgotten it since that time (ts 74).
S said that she could remember the actual incident, it was not possible that she had misinterpreted something that was innocent and it was not possible that the sexual assault did not happen at all (ts 76).
S's mother's evidence
S's mother confirmed that she was in a relationship with the appellant for approximately eight to 12 months. She was, however, unable to say when the relationship began. The appellant visited her at her home; and S's mother visited the appellant at his home with her children. S's mother said that she visited the appellant at his home four times a week for a couple of months. She did not recall visiting the appellant at his home without her children and did not recall spending the night there (ts 80 - 81).
S's mother recalled that the appellant's son had the name 'John', that he lived with the appellant and was older than her children (ts 81).
When asked about the appellant's home, S's mother said that it was double storey. She did not recall how many bedrooms there were. Nor did S's mother recall anything about the inside of the house. She was unsure whether she had ever been in the appellant's bedroom at any time (ts 81). At this time S's mother was a smoker and she drank alcohol. When she visited the appellant, they would often listen to music or chat (ts 82).
S's mother last had contact with the appellant around 1989 (ts 81). There were no further visits to the appellant's home after 26 September 1989 (ts 87).
S's mother confirmed that S was about three or four when she went to day care at a private residence operated by a person named Deirdre (ts 82).
There was a very limited cross-examination of S's mother. Nothing raised in the cross-examination is material to the matters raised in the appeal. However, the absence of cross-examination as to whether S's mother was able to corroborate S's evidence about how the alleged incident ended is relied on in support of ground 2.
The evidence of the investigating police officer
Detective Ellis confirmed that she had overall responsibility to investigate the complaint made against the appellant. The complaint was made in November 2018 (ts 94). Otherwise Detective Ellis' evidence-in-chief was confined to the formal proof of S's birth certificate and the obtaining of various photographs and plans (ts 95).
In cross-examination Detective Ellis confirmed that she had shown S photographs of the outside of the appellant's townhouse (Ex 3; ts 97 - 98). Detective Ellis also obtained floorplans. However, these were floorplans of an adjoining townhouse. The witness was told that the floorplans as obtained were a mirror image of the appellant's townhouse, but she did not independently verify that this was the position (ts 98 - 100).
The appellant's evidence
It is appropriate to outline the appellant's evidence. However, the appellant's evidence is of lesser significance to the appeal. The argument on appeal in support of ground 1 focussed on the reliability of the complainant's evidence. It was not suggested that the appellant's evidence was such that the jury, acting rationally, must have entertained a reasonable doubt as to proof of the appellant's guilt of the offence as alleged.
The appellant was 62 at the time of trial (ts 106).
The appellant denied the alleged offending (ts 110, 120 - 121, 123).
The appellant admitted knowing the complainant (ts 106). He knew her in 1988 and 1989 when he was in a relationship with S's mother (ts 107). He last saw the complainant more than 32 years ago (ts 110). At the time the appellant was living in the regional town in various homes. Those homes included the townhouse at which the offending was alleged to have occurred. The appellant said that he occupied the townhouse for two or three months in 1989, initially putting his occupation as commencing during May or June but later stating that he left the townhouse in September 1989 (ts 107 - 108, 112, 114, 119).
Defence counsel asked the appellant about his son. The appellant said that his son's name was 'John' (ts 109). In cross-examination the appellant said that his son's middle name was 'Michael' but went on to say that the son had never been called Michael in his life. The appellant accepted that he had been known as 'Mick' including by S's mother and her family (ts 120).
There was a degree of confusion about some of the photographs that had been shown to S. When the appellant was taken to the photograph that S had identified as being of the appellant's bedroom (photograph 9 within Exhibit 1) the appellant said that this was not a photograph of the unit he had lived in but was rather a photograph of an adjoining unit. The appellant identified the photograph said by S to be of his bedroom as being a photograph of the equivalent to his son's room - being a room with a walk-in-robe (ts 109, 111, 116 - 117, 119). Later, however, the appellant said that his bedroom also had a walk‑in‑robe (ts 119).
The appellant said that there were no locks on any of the rooms in the townhouse including his bedroom - it being a modern home there were no locks on any rooms apart from the front door (ts 110, 120).
The appellant initially denied that his son had a toy box but then said he did not know whether his son had something that he kept his toys in. The appellant said that most of his son's toys were kept in his wardrobe (ts 122).
In cross-examination the appellant said that he was 99.9 per cent sure that the townhouse had a downstairs toilet in the laundry. However, he never used it; the appellant said that he used the toilet in the upstairs bathroom. The appellant accepted, however, that the floor plan for the adjoining unit did not show a downstairs toilet (ts 113 ‑ 115, 122). The appellant was also cross-examined about the breakfast bar. The appellant denied that there was a breakfast bar under the stairs. He said that there was an oval shaped dining table in that location (ts 115 - 116).
The prosecutor did, however, obtain two concessions from the appellant which confirmed evidence given by S. In cross-examination the appellant confirmed that:
1.In his bedroom at the townhouse there was a window behind the head of the bed (ts 119).
2.The appellant slept on the right-hand side of the bed - so if someone was looking at the bed from the foot of the bed he would appear on the left (ts 119).
The parties' closing addresses
The prosecutor's closing address
The prosecutor addressed the jury on six topics: (1) trials concerning child sexual offending; (2) the credibility and reliability of witnesses in general; (3) the appellant's evidence; (4) S's evidence; (5) delay in making a complaint; and (6) opportunity and whether the appellant would have taken the risk of getting caught.
In the course of his address the prosecutor emphasised that the jury would need to accept S's evidence about the alleged sexual act to find the appellant guilty (ts 2 - 3). The jury was invited to look at S's evidence very closely (ts 3, 8). The prosecutor said that S could remember quite a lot for someone so young (ts 6). This was said to be a very unusual encounter, something that would stick out in her mind, with an account that was 'quite rich' in detail, and where the appellant confirmed some salient details such as the window location and where the appellant lay in a bed (ts 7).
By contrast the prosecutor invited the jury to find that the appellant was not truthful when it came to the essential facts of the case - meaning that his evidence should be put aside (ts 5 - 6). The prosecutor made specific mention of the appellant's evidence that there was a downstairs toilet and the appellant's denial that the photograph identified by S as being of the appellant's bedroom was a photograph of the apartment he had occupied (ts 5).
Defence counsel's closing address
Defence counsel reminded the jury that the appellant had given evidence that he did not commit the offence. Counsel said, however, that whether there was a downstairs toilet and other such matters had nothing to do with the appellant's credibility. In any event, according to defence counsel, the case was all about S: it was 'all about [S], nothing else' (ts 11).
Defence counsel said that the case concerned an alleged single brief episode on an unspecified date some 29 to 30 years ago. Counsel made the point that S was giving evidence as an adult of alleged events when she was between three and three and a half. Defence counsel identified that (ts 11 - 14):
1.There was an inconsistency between S's mother (who said she and her children visited the appellant's home up to four times a week) and S (who only recalled being there once).
2.S's mother was otherwise unable to remember a lot.
3.S said that the appellant's son's name was 'Michael' when he always went by his name of 'John'.
The prosecution case was said to be a thin pencil outline without colour or context. Defence counsel said that when the evidence was tested in cross-examination the response was largely one of 'I can't remember'. Counsel focussed on what was said to have happened when S's mother came to the bedroom door. Counsel argued that it beggared belief that the appellant was upstairs, naked with an erection, while S's mother was downstairs drinking a glass of wine and his son and L were playing in the room next door. Counsel invited the jury to consider the scenario where S's mother was banging on the locked bedroom door, it was opened by S, but S was unable to recall what happened then. Defence counsel pointed out that the jury did not hear S's mother say '"I recall that. I went over there." Nothing. There's no evidence'. It was said to beggar belief that this would be the case with a three-year-old in a locked bedroom with the appellant. Counsel went on to suggest that the risk associated with the events as alleged was so high as to make it implausible that the events had happened (ts 12 - 14).
Defence counsel also referred to the forensic disadvantages that arose because of the delay in the prosecution of the matter - for example he was unable to cross-examine S on a range of matters which might be corroborated by S's mother - and emphasised that memory was not infallible and could be malleable (ts 14 - 15).
The jury was asked to return a verdict of not guilty on the basis that the State had failed to prove its case beyond reasonable doubt (ts 15).
The trial judge's directions to the jury
On appeal the appellant raised no issue about the trial judge's directions to the jury or her Honour's summing up of the case.
The trial judge gave directions in appropriate terms. This included directions as to the onus and standard of proof in orthodox terms (ts 140 - 141). The trial judge also gave a comprehensive Longman direction (ts 146 - 150). The jury were informed that: (1) they would have to be satisfied beyond reasonable doubt that S's evidence in relation to the offence was honest, accurate and reliable; (2) there was no independent corroboration of S's evidence; and (3) S's evidence must be scrutinised with special care, taking into account all the facts and circumstances which had a logical bearing on the truth of S's evidence (ts 146, 149 - 150).
The trial judge also informed the jury, correctly, that they were entitled to take into account what S could remember from such a young age when assessing her memory. But the trial judge also said that the jury should keep in mind that S could not recall some matters (including what happened immediately after S's mother came into the bedroom). And S recollected that the appellant's son went by the name Michael whereas the other witnesses said he was called John (ts 143). The trial judge also made general observations as to the fallibility of human memory and the effect of a long delay on memory (ts 147).
Ground 1: Whether verdict of guilty unreasonable or cannot be supported
Relevant legal principles
Whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported, is a question of fact.[1]
[1] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492; Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482 [56]; GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698 [25].
In MEN v The State of Western Australia[2] this court summarised the general principles governing the determination of appeals alleging that a jury's verdict is unreasonable or cannot be supported having regard to the evidence. Relevantly:
(a)The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
(b)The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(c)That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
(d)In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses.
(e)A doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
(f)If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict.
(g)The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial.[3]
[2] MEN v The State of Western Australia [2020] WASCA 118 (MEN) [403] - [410] (referred to with approval in LTC v The State of Western Australia [2021] WASCA 60 [71] - [72]). To similar effect see Jago v The State of Western Australia [2022] WASCA 2 [144].
[3] MEN [403].
The critical question for this court - whether on this court's assessment it was open to the jury, acting rationally, to be satisfied beyond reasonable doubt that the accused was guilty - involves an assessment of the whole of the evidence. In answering the critical question, this court must bear steadily in mind the jury's advantage in resolving conflicts in the evidence of various witnesses.[4]
[4] MEN [408] - [409].
This court's reasons must disclose its assessment of the capacity of the evidence to support the verdict. The nature and extent of the court's task, in a particular case, will be informed by: (1) the elements of the offence; (2) the accused's defence; (3) the issues in contest at the trial; (4) the manner in which the trial was conducted; (5) the way in which the case was ultimately left to the tribunal of fact; (6) whether the tribunal of fact was a judge (who must state the principles of law that he or she has applied and the findings of fact on which he or she has relied) or a jury (which does not give reasons); and (7) the particulars of the ground of appeal.[5]
[5] Dayananda v The State of Western Australia [2021] WASCA 11 [52] - [53]; Smith v The State of Western Australia [2021] WASCA 17 [42] - [43]; OTR v The State of Western Australia [2021] WASCA 200 [249] - [250]; Liyanage v The State of Western Australia [2021] WASCA 220 [98].
The functional demarcation between the province of the jury and the province of an appellate court was described by the High Court in Pell v The Queen.[6] The High Court emphasised that the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard in the context of the trial is within the province of the jury as representative of the community.[7] By contrast:
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence … proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.[8] (emphasis added) (citations omitted)
The parties' submissions
[6] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 (Pell) [36] - [39]. See also Fennell v The Queen [2019] HCA 37; (2019) 93 ALJR 1219 [81].
[7] Pell [37] - [38].
[8] Pell [39].
The appellant submitted that four aspects of the evidence led to the conclusion that the verdict of guilty was unreasonable or cannot be supported, namely: (1) the very young age of the complainant at the time of the alleged offence; (2) the inherent implausibility of the allegations; (3) the lack of any corroboration in relation to the complainant's evidence; and (4) the extreme delay in the matter coming before the court.[9] In respect of the first factor, the appellant initially submitted that the complainant's memory of surrounding facts in relation to the alleged incident was not detailed.[10] However, as developed at the appeal hearing, senior counsel for the appellant contended that S's detailed memory and description of the events and circumstances was implausible having regard to S's age at the time of the alleged offence and the time that had passed.[11]
[9] Appellant's submissions par 13 WAB 11.
[10] Appellant's submissions par 16 WAB 12.
[11] Appeal ts 3 - 6, 11.
Senior counsel for the appellant emphasised that it was a combination of all four factors which rendered the verdict unreasonable and unable to be supported having regard to the evidence.[12]
[12] Appeal ts 2.
Relevantly, it was no part of the appellant's case on appeal that the events as described by the complainant were impossible.[13] It was accepted that, if the jury accepted S's evidence beyond reasonable doubt, they could convict. But senior counsel for the appellant emphasised the requirement for this court to make an independent assessment of the evidence and determine whether it would be dangerous to allow the verdict to stand. In this respect senior counsel invited close attention to the reliability of S's evidence given the four factors that had been identified.[14]
[13] Appeal ts 6.
[14] Appeal ts 6 - 7, 10, 12.
The State submitted that it was open to the jury to accept S's evidence of the offending, to reject the appellant's denials of the offending, and to be satisfied beyond reasonable doubt that the offence occurred. In opposing the appeal, the State contended that none of the matters raised by the appellant, either individually or collectively, required the conclusion that the jury must necessarily have entertained a doubt about the appellant's guilt. Nor, in the State's submission, was there anything that ought to give this court a reasonable doubt about the correctness of the verdict.
The State emphasised that:
1.The four factors relied on by the appellant in support of ground 1 were all matters that were raised by defence counsel at the time of trial and were matters that the jury were invited to have regard to when considering S's evidence.
2.The jury had the distinct advantage of seeing and hearing both S and the appellant give evidence and, as the verdict made plain, in the jury's assessment S was a credible and reliable witness, while the appellant was not.
Disposition
The critical issue
The appellant's defence was that the offence as alleged had not occurred at all. This, in substance, framed the main issue for the jury's determination as is relevant to the evaluation of ground 1. The jury had to consider the credibility, reliability and accuracy of S's evidence as to the alleged sexual offending. In particular, there was a substantial contest about whether S's memory was reliable so far as the alleged incident was concerned. The jury accepted S's evidence. As is made clear in Pell, in evaluating whether the verdict of guilty was unreasonable or cannot be supported having regard to the evidence this court must proceed on the assumption that S's evidence was assessed by the jury to be credible and reliable.
In framing the issue by reference to S's evidence we acknowledge that the appellant gave evidence denying the offending. But it was not in contest, on appeal, that it was open to the jury to reject the appellant's denial having seen and heard him give evidence - as the jury plainly did by their verdict of guilty. In this respect senior counsel for the appellant confirmed that ground 1 was confined to the question of the reliability of S's evidence.[15]
[15] Appeal ts 11.
Accordingly, the critical question is whether the jury must have had a reasonable doubt as to the truth, accuracy and reliability of S's evidence that the appellant procured S to put her mouth on his erect penis.
The remarkable features of the case against the appellant
At the outset it must be acknowledged that S's tender age at the time of the alleged sexual offending, together with the passage of some 32 years between the alleged events and the trial, is a remarkable feature of the case. So too is the detail of much of S's recollection as to the events and her associated observations as a mere three-year-old. For example, S gave evidence as to the substance of particular things that were stated by the appellant, where other persons were in the apartment and what they were doing, and various external and internal features of the appellant's apartment. However, this occurred in a context where S gave evidence of recollections of other aspects of her three-year-old life. And, importantly, in two respects the appellant's evidence confirmed S's recollection of matters observed at the time of the alleged offending (see [59] above).
There was no expert evidence at trial as to the capacity of a normal adult person to recall events from very early in one's lifetime. The jury had to rely on their individual and collective life experience and apply that in their evaluation of S's evidence.
There is some force in the appellant's challenge to S's professed recollection of apparently mundane surrounding circumstances. It is one thing to accept that a three-year-old might give reliable evidence as to surrounding circumstances that are intertwined with a memorable occurrence - as the alleged offending described by S undoubtedly would have been. But it is another thing to accept that a 35-year-old adult could recall observing, as a three-year-old some 32 years earlier, the gravel on which her mother parked and the white writing on the exterior of the appellant's apartment building. That is particularly so where S's evidence was that there was only one occasion on which she visited the appellant's apartment that she could remember.
So too there is some force in the appellant's criticism that S's evidence was given from her now perspective as an adult. For example, the verbalisation of S's picture of her mother sitting at the breakfast bar smoking and perhaps drinking a glass of wine has the hallmark of interpreting what is now appreciated from S's adult perspective rather than recounting what was S's then observation and understanding as a three-year-old child. It was, however, inevitable that this would be the case given the long delay. S's recollection of the events and her observations as a three-year-old child were provided through the prism of her current age and understanding.
In relation to the two preceding considerations there are some basic propositions that it is as well to remember.
First, it is open to a jury to accept some but not all of a witness' evidence. In this case it would have been reasonably open to the jury to conclude that they did not accept S's professed detailed recollection as to minor surrounding details (eg the gravel and the writing) as long as they were satisfied beyond reasonable doubt as to the truth, accuracy and reliability of S's evidence as to the sexual offending. So too it would have been open to the jury to consider S's evidence as evidence from an adult perspective of her now recollection of events that occurred and observations that were made when S was a child. That said, it would be expected that, to the extent that the jury may have rejected some aspects of S's evidence, the jury would take that into account in assessing the credibility, reliability and accuracy of S's evidence as to her recollection on the critical issue.
Second, as we have previously referred to, in evaluating the weight to be given to particular evidence - and resolving apparent conflicts in the evidence as a whole - it is open to the jury to consider the extent to which a witness might have reason to remember a particular matter. Evidence as to surrounding detail that is intertwined with a memorable occurrence could reasonably be seen by the jury to be more accurate and reliable than evidence as to other detail unconnected to any unmemorable occurrence. So, for example, the jury might well have assessed S's evidence that she was told to suck the appellant's penis 'like a lollipop' as being qualitatively different to some of S's recollections of more mundane matters that were said to have been observed in relation to the apartment.
The sufficiency and quality of the evidence of the sexual offending
Before considering further the four aspects of the evidence relied on by the appellant in support of ground 1, it is necessary to say something about the sufficiency and quality of the evidence of the alleged sexual offending as a whole.
S's evidence has already been referred to (see [17] – [41] above). S's evidence in relation to the events in the appellant's bedroom was particularly clear and detailed. It was, on S's account, a memory that had never left S despite her extremely young age at the time of the events and the passage of many years since the events. S had a picture of and was able to recount particular aspects of the events. These included the position of the bed within the appellant's bedroom, where the appellant lay on the bed and how the appellant held S while he inserted his penis in her mouth. S also recalled what she was told to do (suck on the appellant's penis like a lollipop) and the sensation of the appellant's ejaculate. S had a comprehensive recollection of how she came to be in the appellant's bedroom. In the latter regard it is to be expected that any person, even a young child, will have more cause to recall mundane events when they immediately precede a memorable occurrence. In other respects S's evidence was vague or mistaken. S had a limited recollection of what happened after she opened the bedroom door to her mother. And S had an erroneous recollection about the name of the appellant's son.
On our reading of the trial record, it would have been open to the jury to have found S to be a careful witness. S stated that she did not know there was a downstairs toilet notwithstanding a suggestion made to the contrary. More generally, in giving evidence S appears meticulous in identifying the limits of her recollection. S said, for example, that the subject occasion was the one time that she recalled going to the appellant's house - thereby admitting of the possibility that there were other such visits of which S had no recollection. In this regard it was common ground between S's mother and the appellant that S attended the appellant's house on many other occasions (a circumstance meaning it was reasonably open to the jury to infer that some of S's detailed recollection of the more mundane aspects of the appellant's apartment was acquired from a combination of visits rather than the single visit that S recalled). Nevertheless, emphasising her desire for accuracy in her evidence, S stated that her actual recollection of visiting the appellant at his home was restricted to this single occasion. S also freely admitted that she did not remember what happened once she opened the bedroom door. That was in sharp contrast to the more vivid evidence S gave as to the alleged sexual offending itself - evidence based on a 'picture in [S's] head' which she had 'never ever forgotten'.[16]
[16] ts 74.
In addition to her evidence as to the incident the subject of the indictment, S was seemingly able to remember a number of the features of her life as a three-year-old.
It was not suggested, on appeal, that anything of significance arose from S's evidence about the appellant's son's name. Nor could it have been. The jury was entitled to reject, as mistaken, this aspect of S's evidence. But the rejection of this aspect of S's evidence did not vitiate the credibility, reliability and accuracy of S's evidence as a whole. Similarly, in our opinion, S's limited recollection as to events after opening the bedroom door does not impact on the cogency of her evidence as a whole. S's evidence was that, at the time, she did not know that what had happened was a bad thing. There is nothing inherently incredible in a three-year-old child not understanding that what had occurred was wrong. With that mindset what occurred after the bedroom door was opened was likely to be less memorable. It was reasonably open to the jury to take this view of S's evidence. In any case, on appeal the appellant did not rely on S's limited recollection after opening the bedroom door. Instead the matter that informed ground 1 was the absence of corroborative evidence from S's mother.
S's mistake as to the appellant's son's name and the vagueness of part of S's evidence did not undermine the general reliability of S's evidence. Nor did it require a reasonable doubt as to the reliability of S's evidence as to the sexual offending by the appellant.
The four factors relied on by the appellant in support of ground 1
The contention that the verdict of guilty is unreasonable or cannot be supported having regard to the evidence rests on four factors: S's very young age at the time of the alleged offence; inherent implausibility; the lack of any corroboration; and delay. While, ultimately, it is necessary to stand back and consider the combined force of all four matters, it is convenient to initially consider the factors individually. It is also convenient to first address inherent implausibility and the issue of corroboration. S's age and the issue of delay should be considered together.
The appellant argued that the brazenness of the alleged conduct made the allegations inherently implausible. The apartment was small. On S's account the offending occurred while S's mother was downstairs and the appellant's son and L were playing in a nearby room. There were no previous incidents and no grooming behaviour. These matters, of themselves, do not establish that the verdict was unreasonable or cannot be supported having regard to the evidence. Oftentimes opportunistic offending is brazen. Standing alone such alleged inherent implausibility does not amount to an inconsistency, discrepancy or other inadequacy such that the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of guilt. There was nothing in S's account of the circumstances of the offending that was so inherently implausible as to render S's account unreliable.
Nor, in our opinion, is the inherent implausibility of S's professed detailed memory of surrounding events and observations such that the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of guilt. It was reasonably open to the jury to reject S's professed detailed recollection as to minor surrounding detail but still be satisfied beyond reasonable doubt as to the truth of S's evidence as to the sexual offending. Alternatively, it was reasonably open to the jury to infer that some of S's detailed recollection was acquired from a combination of visits. That is all the more so where, as senior counsel for the appellant accepted,[17] defence counsel did not cross-examine S on the basis that her professed detailed memory was implausible or incredible.
[17] Appeal ts 4, 10.
There was no corroboration of S's evidence. As a matter of law no corroboration was required. It is not unusual for cases of alleged historic child sexual offending to depend on the complaint's evidence and for there to be no other direct evidence to corroborate the complainant's account. The appellant argued, nevertheless, that S's evidence put her mother at the scene in the immediate aftermath of the alleged offending. The suggestion was that, in all the circumstances, it was to be expected that there would be a degree of available corroborative evidence - the situation being such that a mother upon the bedroom door being opened would have made inquiries as to what was going on. Accordingly, the absence of any corroborative evidence on the part of the mother was said to undermine the credibility and reliability of S's evidence.
The mother gave no evidence at all about the alleged sexual offending. The most that S's mother said was that she was unsure whether she had ever been in the appellant's bedroom at the apartment. Accordingly, insofar as S referred to her mother banging on the bedroom door and calling S's name before S opened the door, S's evidence was not supported by any evidence on the part of S's mother. But, by the same token, S's evidence was not undermined by any evidence on the part of S's mother. The absence of corroborative evidence was only potentially significant to the extent that it might have been expected that S's mother should have recalled the event and given evidence about it - the lack of such evidence thereby adversely affecting S's credibility and reliability. Defence counsel made a submission to the jury along those lines (see [65] above). The submission was evidently rejected given the jury's verdict.
It was reasonably open to the jury to accept S's evidence as to the sexual offending despite the lack of corroborative evidence from S's mother. There was nothing in the evidence to suggest that, on the bedroom door being opened, either S or the appellant acted in a manner that might have excited the mother's suspicion or concern. With the benefit of hindsight it might be thought to be odd that the appellant was alone with a three-year-old girl in a locked bedroom. At the time, however, the appellant was in a relationship with S's mother. S and her family visited the appellant regularly. It was reasonably open to the jury to find that, from S's mother's perspective, the event was unremarkable and had been forgotten - meaning that the absence of corroborative evidence was entirely neutral so far as the credibility and reliability of S's evidence was concerned. That was all the more so given the extended passage of time and S's mother's evidence that she was unsure whether she had ever been in the appellant's bedroom at the apartment.
The delay should be considered together with S's age at the time of the offending. Delay of itself did not require a reasonable doubt as to the reliability of S's evidence. Indeed, the appellant did not contend to the contrary - submitting only that the extreme delay was a relevant consideration in relation to whether the jury could properly have reached the decision to find the appellant guilty.[18] That must be accepted. This was a case where Longman v The Queen applied.[19] Among other things, it was dangerous to convict on S's evidence alone unless the jury, scrutinising the evidence with great care and considering the circumstances relevant to its evaluation, were satisfied of its truth, reliability and accuracy. The same considerations inform this court's review of the sufficiency and quality of the evidence in determining whether, in all the circumstances, it would be dangerous to permit the conviction to stand. But while, in this respect, delay is a relevant consideration, it is the lengthy delay coupled with S's very young age at the time of the alleged offending that demands close consideration of S's evidence.
[18] Appellant's submissions par 26 WAB 13.
[19] See Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, 91.
S's very young age at the time of the alleged offending is a circumstance that causes us substantial pause when evaluating whether the jury must have entertained a reasonable doubt about the appellant's guilt. In argument counsel for the State accepted that memories from three years of age would be at the threshold of what a normal adult might be able to recollect years later.[20] While, as mentioned, there was no expert evidence on the subject - meaning that on this issue the jury had to draw on their individual and collective life experience - as a matter of common experience it was reasonably open to the jury to accept that a 35-year-old adult in S's position could remember events from childhood when three years old. That was all the more so where, as here, those events (if they occurred) would have been memorable. It was, however, not enough to accept that a 35-year-old adult in S's position could remember such events. The jury had to be satisfied beyond reasonable doubt as to the credibility, reliability and accuracy of S's evidence that the appellant did procure S to take his erect penis into her mouth.
[20] Appeal ts 37, 39.
The substantial pause we have referred to in the preceding paragraph - one arising from S's age at the time of the alleged offence - is significant in evaluating ground 1. In M v The Queen the plurality (Mason CJ, Deane, Dawson & Toohey JJ) observed that, in most cases, a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.[21] But their Honours also went on to state:
It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage occurred.[22]
[21] M v The Queen (494).
[22] M v The Queen (494).
In our view, this is such a case. The concern we have expressed proceeds from theoretical reasoning about the capacity of an adult to recall events when a young child; it is not grounded in observation as to S's capacity to recall memories from when she was three years old or the specific evidence and personal characteristics attributable to S. In this respect the jury had a considerable advantage over this court in as much as the jury saw and heard S give evidence. There are many benefits in seeing and hearing a witness give evidence.[23] In this case the jury's advantage in seeing and hearing S's evidence was capable of resolving the concern we have expressed. In accepting the truthfulness, accuracy and reliability of S's evidence as to the sexual offending, the jury is likely to have been affected by their impression of S's truthfulness, accuracy and reliability when recounting these events from her distant childhood - both generally (insofar as the prosecutor led evidence as to other matters S recalled from her early childhood) and as to the specifics of the alleged offending. In giving this evidence, the tone and pace of S's delivery, her facial expression and her body language were all capable of influencing the jury's assessment of S's truthfulness, accuracy and reliability as to the critical allegation. The jury, having seen and heard the evidence being given, was in a position to evaluate S's evidence in a manner which this court cannot.
[23] See eg Joyce v Anderson [2020] WASCA 48; (2020) 91 MVR 334 [128] - [130], [209].
The appellant did not identify inconsistencies, discrepancies or inadequacies in S's evidence beyond her young age at the time of the events and the ensuing delay. When the evidence as a whole is evaluated, particularly in the light of the features of the evidence referred to in [92] - [94] above, it was open to the jury to be satisfied beyond reasonable doubt as to the truthfulness, accuracy and reliability of S's evidence as to what happened in the appellant's bedroom. S's then age and the protracted time that passed thereafter did not require a reasonable doubt as to the truthfulness, accuracy or reliability of S's evidence that the appellant put his erect penis into her mouth and stimulated himself to ejaculation. To the extent that a doubt may have arisen as to the truthfulness, accuracy or reliability of S's evidence due to her then age and the ensuing delay, the jury's advantage in seeing and hearing S's evidence as a whole was capable of resolving that doubt.
The appellant relied on the combined force of the four factors to contend that the verdict of guilty was unreasonable or cannot be supported. Individually, for reasons already given, no single factor compels that conclusion. Standing back, considering the combined force of the four factors relied on, the position is no different. There is, in our view, no real force in either of particular (b) (inherent implausibility) or particular (c) (lack of corroboration). Nor, aside from when considered with S's very young age, does particular (d) (delay) have any particular strength. By contrast, particular (a) (S's age) is a circumstance that potentially meant that S's evidence might have lacked probative force. Considered alone, for the reasons already given, we are not satisfied that S's young age at the time of the alleged offending, required a reasonable doubt as to the truthfulness, accuracy or reliability of S's evidence. That remains the position even when S's young age is considered together with the other three factors. The other factors do not, in our view, add materially - or perhaps at all - to the weight of the appellant's case as presented by reference to particular (a).
Conclusion in relation to ground 1
In our view, the jury was entitled, after evaluating and weighing the competing evidence in the context of the trial record as a whole:
1.First, to reject the appellant's denial of the alleged offending.
2.Second, to accept, beyond reasonable doubt, as truthful, accurate and reliable S's evidence that when she was three years old the appellant put his erect penis into her mouth and stimulated himself to ejaculation.
Accordingly, the jury, acting reasonably, was entitled to be satisfied beyond reasonable doubt, upon the combined force of evidence which they were entitled to accept, that the appellant had unlawfully and indecently dealt with S as alleged in the indictment.
Having undertaken an independent assessment of the whole of the evidence at trial, both its sufficiency and quality, the trial record does not require a conclusion that the jury must necessarily have entertained a doubt about the appellant's guilt. The verdict of guilty was not unreasonable. It was supported by evidence that the jury was entitled to accept and inferences that the jury was entitled to draw. Our assessment of the combined force of the four matters relied on by the appellant in support of ground 1, in the context of the trial record as whole, does not persuade us that the jury, acting rationally, must have had a reasonable doubt about the appellant's guilt. On the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence the subject of the indictment. After paying full regard to the consideration that the jury was the tribunal of fact entrusted with the primary responsibility of determining guilt or innocence, and the circumstance that the jury had the significant benefit of having seen and heard the witnesses, we do not have a reasonable doubt as to the appellant's guilt or the correctness of his conviction.
Ground 1 had a reasonable prospect of succeeding given the very young age of S, as complainant, at the time of the offence. There should be leave to appeal in respect of ground 1. Despite the grant of leave, ground 1 fails and should be dismissed.
Ground 2: Whether miscarriage of justice due to incompetence of counsel
Relevant legal principles
There are a number of recent decisions in this court which have summarised the law relating to a ground of appeal which alleges a miscarriage of justice by reason of defence counsel's conduct of the defence case. For present purposes it suffices to refer to Huggins v The State of Western Australia,[24] Jeffrey v The State of Western Australia,[25] George v The State of Western Australia[26] and WMT v The State of Western Australia.[27] We adopt, without repeating, what was said by the court in those cases.
[24] Huggins v The State of Western Australia [2018] WASCA 61 [375] - [401].
[25] Jeffrey v The State of Western Australia [2018] WASCA 219 [104] - [105], [172] - [180].
[26] George v The State of Western Australia [2020] WASCA 139 [107] - [111].
[27] WMT v The State of Western Australia [2021] WASCA 104 [16] - [18], [64] - [65], [71], [250].
It is, however, important to remember that:
An appellant who seeks to demonstrate that the conduct of his or her counsel caused a miscarriage of justice undertakes a heavy burden which is not easily discharged. This is a consequence of the adversarial nature of a criminal trial and the role played by counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel even if that was not in accordance with the wishes of the client. It is not a ground for setting aside a conviction that decisions made by counsel were made without or contrary to instructions or involved errors of judgment or even negligence. It is not the province of appellate courts to review the wisdom or prudence of the conduct of a trial by trial counsel. For example, an apparently rational decision by trial counsel as to what evidence to call or not to call does not give rise to a miscarriage of justice simply because an appellate court thinks it worked to the probable disadvantage of the appellant.[28] (citations omitted)
[28] Huggins v The State of Western Australia [376].
The incompetence of defence counsel is not of itself a ground of appeal. Rather, the relevant ground of appeal is that there was a miscarriage of justice. In this context miscarriage of justice has two aspects: process and outcome. As to process, a miscarriage of justice will occur without regard to whether defence counsel's conduct may have affected the outcome if the conduct of defence counsel has deprived the accused of a fair trial according to law. In other cases, where irregular conduct on the part of defence counsel does not deprive an accused of a fair trial, the question of whether a miscarriage of justice has occurred raises two issues. First, did defence counsel's conduct result in a material irregularity in the trial? Second, is there a significant possibility that the irregularity affected the outcome?
Within this framework, as will be seen, the appellant's ground 2 was in the second category. It was not contended that defence counsel's conduct deprived the appellant of a fair trial according to law. Rather, insofar as the appellant submitted that defence counsel's forensic decisions were incapable of reasonable explanation, the overriding contention was that there was a material irregularity in the trial arising from defence counsel's conduct and that there was a significant possibility that the irregularity affected the outcome.
Insofar as an appellant contends that there was a miscarriage of justice by reason that defence counsel's conduct resulted in a material irregularity in the trial:
1.Ordinarily, subject to sub-par 3 below, a decision made by defence counsel will not give rise to a miscarriage of justice where it is capable of reasonable explanation on the basis that it was taken to obtain a forensic advantage or avoid a forensic disadvantage.
2.The court does not examine whether the decision taken by defence counsel was in fact taken for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage. Rather, the 'capable of reasonable explanation' test is objective in character.
3.The generality of the statement in sub-par 1 above is subject to the caveat identified by Gaudron J in TKWJ v The Queen:
It may be that, in the circumstances, the forensic advantage is slight in comparison with the importance to be attached to the defect or irregularity in question. If so, the fact that counsel's conduct is explicable on the basis of forensic advantage will not preclude a court from holding that, nevertheless, there was a miscarriage of justice.[29] (citations omitted)
Similarly, if defence counsel's error plainly affected the result of the trial, there will be a miscarriage of justice even though the error involved a forensic choice or judgment.[30]
4.To demonstrate a miscarriage of justice it will not be enough to show only that a forensic choice or judgment taken by defence counsel was unreasonable. It will also be necessary to show a significant possibility that the irregularity affected the outcome of the trial.
The parties' submissions
[29] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 125 [28]. See also [25], [33].
[30] McMahon v The State of Western Australia [2010] WASCA 143 [27] (referred to with approval in Huggins v The State of Western Australia [381]).
The appellant submitted that in two specific areas defence counsel conducted the defence in an incompetent way such that a miscarriage of justice occurred.[31] It was contended that:
1.Defence counsel's decision not to call good character evidence - such evidence being available - was incapable of reasonable explanation.[32]
2.Defence counsel's failure to cross-examine the complainant's mother in relation to the incident the subject of the charge was incapable of reasonable explanation.[33]
[31] Appellant's submissions par 27 WAB 13.
[32] Appellant's submissions pars 29 - 32 WAB 15.
[33] Appellant's submissions pars 33 - 37 WAB 15 - 16.
The submission that the matters as identified were 'incapable of reasonable explanation' is revealing. The case as presented on behalf of the appellant does not contend that defence counsel's conduct deprived the appellant of a fair trial according to law. The appellant seeks to demonstrate that defence counsel's conduct resulted in a material irregularity in the trial. Accordingly, the appellant's ground 2 falls within the second category identified at [115] above. The appellant must show both: (1) a material irregularity in the trial arising from defence counsel's conduct; and (2) a significant possibility that the irregularity affected the outcome.
As to the omission to call good character evidence, the appellant acknowledged that, if such evidence was called, he might have been subjected to cross-examination about a prior criminal record. It was said, however, that this was relatively minor and concerned non-sexual offending. The appellant contended that the benefit of the jury hearing good character evidence about him, and the trial judge giving a 'good character direction', would have outweighed any damage to his credibility by reason of the convictions.
As to the omission to cross-examine S's mother in relation to the incident, the appellant emphasised the possible forensic benefit in eliciting admissions that S's mother was unable to corroborate S's evidence. For example, by eliciting evidence that S's mother could not remember banging on the appellant's bedroom door or demanding to be let into the room. The appellant contended that such cross-examination would have supported a submission to the jury that, if such things had occurred, they would have been memorable to an adult in the position of S's mother. Accordingly, the circumstance that S's mother did not recall these matters made S's evidence less likely to be truthful, accurate and reliable.
Senior counsel for the appellant submitted that defence counsel had nothing to fear from cross-examining S's mother on this subject matter insofar as S's mother had said in a witness statement that she 'never suspected that anything like this had ever occurred'.[34]
[34] Appeal ts 19 - 20 (referring to S's mother's statement dated 1 January 2019 par 17 BGAB 35).
The State submitted that the appellant was bound by the conduct of his defence counsel at trial. It was said that the decisions now challenged on appeal were entirely within defence counsel's remit and were objectively rational forensic decisions. In any event there was no significant possibility that the decisions affected the outcome of the trial. Accordingly, no miscarriage of justice arose.
For the purpose of ground 2, the State was prepared to accept that the persons who provided written character references for the appellant at sentencing would have been prepared to give character evidence at trial in accordance with their references.[35] However, the State pointed out that of the 18 character references only two were from persons acquainted with the appellant at the time of the alleged offending.[36] More substantially, the State pointed out that there was other material, known to defence counsel, which supported the proposition that the appellant was of bad character. In her witness statement, S's mother levelled allegations of domestic violence and sexual offending against the appellant in relation to her.[37] The State argued that, if defence counsel had put good character in issue, then there would have been a risk that the character witnesses would have been cross-examined about their knowledge of the appellant's domestic violence and sexual offending against S's mother and that the prosecutor would have applied to re-open the prosecution's case to adduce evidence from S's mother about the appellant's offending against her.[38]
[35] Respondent's submissions par 66 WAB 37.
[36] Respondent's submissions pars 74 - 75 WAB 39 - 40.
[37] S's mother's statement dated 1 January 2019 pars 7, 18 BGAB 34, 36. The investigating police officer confirmed that the alleged incident was investigated: Detective Ellis' witness statement pars 6, 7 BGAB 37.
[38] Respondent's submissions pars 69 - 71 WAB 38 - 39.
Senior counsel for the appellant acknowledged that S's mother alleged that she had been sexually assaulted by the appellant. However, senior counsel disputed that this evidence would be admissible if good character was put in issue. Senior counsel also submitted that, to the extent there was a risk that such questioning might be allowed, defence counsel could have dealt with the issue at a directions hearing.[39]
Disposition
Miscarriage of justice: the omission to adduce evidence of good character
[39] Appeal ts 24 - 26.
The decision as to whether or not to adduce evidence of good character is one that falls within defence counsel's remit.[40] Accordingly, in evaluating whether in this case there was a miscarriage of justice, the initial issue is whether there was a material irregularity in the trial by reason of the failure to adduce good character evidence.
[40] Sethi v The State of Western Australia [2020] WASCA 173 [62], [65] - [67]; WMT v The State of Western Australia [66], [340].
At his sentencing hearing, the appellant relied on 18 character references. Of the 18 character references:
1.Only two of the referees knew the appellant at the time of his alleged offending - they were the appellant's son (a child at the time of the relevant events) and a former police officer who met the appellant in around 1989 and subsequently became good friends with the appellant and his wife.
2.Fifteen of the remaining referees consisted of various family members in addition to the appellant's son - they comprised the appellant's wife, two brothers-in-law, a sister-in-law, two step‑daughters, the husband of a step-daughter, two daughters‑in-law, four nieces, a granddaughter and another person who described herself as a 'friend and relative by marriage'.
3.One of the referees was a former work colleague.
Given the State's concession, it may be assumed, favourably to the appellant, that each of these persons would have been prepared to give character evidence for the appellant at the trial in terms of his or her written reference.
This court set out the applicable principles in relation to adducing evidence of an accused's good character in ZHA v The State of Western Australia.[41] We adopt those principles in their entirety. In what follows it is only necessary to refer expressly to some of the principles.
[41] ZHA v The State of Western Australia [2020] WASC 101 [183] - [197] (referred to with approval in WMT v The State of Western Australia [22], [397]).
Good character evidence is admissible in relation to the likelihood of the accused having committed the offence and the credibility of an accused who denies his or her guilt. Relevantly:
(a)as to guilt, a person of good character is assumed to be less likely to commit an offence and therefore less likely to have committed the offence in question; and
(b)as to credibility, a person of good character is assumed to be more likely to be an honest witness and therefore a person whose evidence should be accepted.[42]
[42] ZHA v The State of Western Australia [186].
Conformably with the use that may be made of good character evidence, there are cases which recognise the potential value of evidence of good character, particularly in cases concerning alleged sexual offending against children.[43] Equally, however, there has been recognition in the courts that sexual offending by adults of previously unblemished reputation, and who appear to their friends, relatives and business and social acquaintances to be of impeccable character, is all too frequent.[44] Thus, as senior counsel for the appellant acknowledged,[45] the benefit of a good character direction may be balanced by a reminder to the effect that people do commit crimes for the first time and that evidence of previous good character is not a defence in itself and cannot prevail against evidence of guilt.[46]
[43] ZHA v The State of Western Australia [193] - [194]; WMT v The State of Western Australia [84] - [85].
[44] ZHA v The State of Western Australia [195]; WMT v The State of Western Australia [86].
[45] Appeal ts 22.
[46] Donaldson v The State of Western Australia [2007] WASCA 216; (2007) 176 A Crim R 488 [80].
In some cases there is an evident forensic reason not to adduce good character evidence. Senior counsel for the appellant recognised this in as much as, anticipating that the State might refer to the appellant's prior criminal record, senior counsel sought to neutralise any perceived forensic disadvantage by suggesting that the appellant's prior offending was relatively minor and not of a kind which would impact on the decision to call good character evidence. That has force in relation to the bulk of the appellant's prior convictions - most of which were for traffic related offences. But the appellant also had a 1984 spent conviction for resisting arrest and 1990 spent convictions for common assault and criminal damage.[47] As it transpired, however, the State did not only rely on the appellant's criminal history as providing a rational forensic decision not to call good character evidence; the State also directed attention to allegations of domestic violence and sexual offending made by S's mother against the appellant.
[47] BGAB 31, 33.
In this respect, S's mother's witness statement contained statements that:
I broke up with [the appellant] after he became violent towards me and also subjected me to a sexual assault.
I reported this matter and although it went through to the court process I wasn't able [to] cope with the stress of a trial and ended up withdrawing the charges.
…
[The appellant] and I broke up due to his violent behaviour and I haven't seen or heard from [the appellant] in over twenty five years.[48]
[48] S's mother's statement dated 1 January 2019 pars 7, 8, 18 BGAB 34, 36.
Defence counsel was well aware of these allegations and their potential to adversely affect the appellant's defence. Pre-trial, defence counsel foreshadowed seeking a directions hearing to object to associated evidence before the then prosecutor informed the court that the State did not intend to adduce evidence of the details of the incident.[49] And, at the start of the trial, the prosecutor confirmed that the information in the brief about the way in which the relationship between the appellant and S's mother ended (as reproduced at [133] above) was not going to be the subject of evidence.[50]
[49] ts 8.
[50] ts 33.
If defence counsel called witnesses to give evidence as to the appellant's alleged good character, it would have been open to the State to rebut that evidence by adducing evidence of bad character.[51] In particular:
1.the prosecutor may have cross-examined the character witnesses to adduce evidence of the appellant's bad character; and
2.in accordance with s 8(1)(f) of the Evidence Act 1906 (WA), the prosecutor may have called evidence that the appellant was of bad character or had been convicted of or charged with other offences notwithstanding that the prosecution's case may already have been closed.
[51] See WMT v The State of Western Australia [73] - [74].
The prosecutor might have adduced evidence of the appellant's prior criminal history.[52] That alone had implications. First, it would have negated, to a significant extent, much of the good character evidence. The references were in absolute terms that did not acknowledge the appellant's prior criminal history. For example, one referred to the appellant as someone who 'has always been an honourable and responsible man'.[53] Another referred to the appellant as a person who 'has always had a strong moral and ethical compass'.[54] Second, the more serious convictions - those for resisting arrest, common assault and criminal damage - occurred five years before and one year after the alleged offending. There were limited post-2000 convictions. So far as, with two exceptions, the good character witnesses were speaking of their experience of the appellant from a time after (and, for some of the character witnesses, well after) the alleged offending, the appellant's prior criminal history would have enabled the prosecutor to contend that the appellant, while more recently a respectable family man, had been capable of behaving very differently in and around the time of the alleged offending in 1989.
[52] See Evidence Act s 8(1)(e), s 8(1)(f).
[53] BGAB 39.
[54] BGAB 41.
In addition to the appellant's prior criminal history, there was S's mother's potential evidence of having suffered domestic violence and sexual offending at the hand of the appellant.
Senior counsel for the appellant submitted that this evidence was inadmissible as not being evidence of character. In this context 'character' refers to a person's inherent moral qualities or disposition.[55] While, strictly speaking, a witness called to give evidence of an accused's character can speak only of the accused's general reputation, character evidence is often adduced beyond the scope of general reputation.[56] In this respect, much of what is contained in the character references does not go to the appellant's general reputation. The references speak primarily to the witnesses' personal experiences with the appellant as opposed to his general reputation. Accordingly, the appellant's submission would, if accepted, potentially have consequences for the good character evidence relied on in support of this aspect of ground 2.
[55] Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 [33].
[56] ZHA v The State of Western Australia [183] - [184], [190] - [192].
The appellant's admissibility contention is grounded in the principles that govern the reception of good character evidence. It is doubtful whether the same strictures apply where evidence of bad character is sought to be introduced by way of rebuttal. There is authority for the proposition that evidence may be adduced of an accused's bad acts where character has been put in issue notwithstanding the rule as to the inadmissibility of evidence of good acts for the accused in chief.[57]
[57] R v Bracewell (1978) 68 Cr App R 44, 52; R v Stalder [1981] 2 NSWLR 9, 19 - 20; Hamilton v R (1993) 68 A Crim R 298, 299.
It is, however, inappropriate and unnecessary in the context of this appeal to attempt to decide whether evidence of the kind alluded to by S's mother was inadmissible. In part that is because, evidence of good character not having been adduced, the detail of S's mother's available evidence is not before the court. More substantially, it is not to the point to attempt to finally determine the question of admissibility: the relevant question is whether defence counsel could reasonably have concluded that there were risks attending calling evidence of the good character of the appellant.[58] It is enough if, had good character evidence been adduced, there was a real risk that the prosecution would have been permitted to adduce evidence in rebuttal that would have been prejudicial to the accused.[59]
[58] TKWJ v The Queen [113]. See also at [82] (the allegation of miscarriage of justice failing because counsel decided not to adduce character evidence because of the 'possibility' that it might lead to the introduction of the accused's bad character).
[59] ZHA v The State of Western Australia [197] (referring to TKWJ v The Queen).
We are satisfied that, viewed objectively in the circumstances at the time of the trial, there was such a real risk in relation to S's mother's allegations of domestic violence and sexual offending. The authorities referred to at [139] above support the reception of the evidence. To the extent that this might give rise to a risk of prejudice it is a risk that will usually be eliminated by a strong direction to the jury that the rebuttal evidence can only be used on the issue of good character.[60]
[60] TKWJ v The Queen [90].
Senior counsel for the appellant argued that the risk presented by the calling of good character evidence could have been dealt with at a directions hearing. How this might have occurred, and what it meant for ground 2, was not developed in any meaningful way. Presumably the contention was that defence counsel should have conferred with the prosecutor to determine whether the prosecutor would have sought to adduce the evidence of bad character if defence counsel adduced the evidence of good character. Defence counsel would then have asked the trial judge to rule pre-emptively on the admissibility of the bad character evidence at a directions hearing. Any such ruling would be necessarily hypothetical unless and until defence counsel irrevocably committed to adducing the good character evidence.
Three things may be said about this submission. First, it exceeds the bounds of particular (a) of ground 2. Ground 2(a) asserts a miscarriage of justice by failure to call good character evidence. But this is a complaint about defence counsel not seeking a possible ruling at a directions hearing rather than the failure to adduce good character evidence. Second, it assumes that a ruling would be forthcoming and that the ruling would be favourable to the appellant. The possible existence of a procedural avenue which might have provided a more certain basis for defence counsel's decision on whether to adduce good character evidence does not assist the appellant. The onus is on the appellant to prove a material irregularity in the trial. The appellant does not discharge that onus by showing that there is a procedural mechanism by which the trial judge might possibly have removed some of the uncertainty which impacted the forensic decision to be made by defence counsel. Third, there is substantial uncertainty about whether the trial judge would have provided a ruling of the kind sought; and, if so, whether the ruling would have been favourable to the appellant.
As to the third matter, we have already referred to the authorities which support the reception of evidence as to S's mother's allegations of domestic violence and sexual offending by way of rebuttal on the appellant calling good character evidence (see [139] above). Separately, it has not been demonstrated that the trial judge would have been prepared to give a hypothetical pre-emptive ruling of the kind proposed. Assuming, in favour of the appellant, that the trial judge had been prepared to make a hypothetical pre-emptive ruling of the kind proposed, the trial judge would need to have been satisfied that a ruling ought to be made one way or the other. Plainly there was no obligation requiring the trial judge to provide such a hypothetical pre-emptive ruling. The trial judge may well have declined to do so insofar as there were a number of considerations which may have been influenced by the course of the trial. For example, much might turn on precisely what was said of the appellant's disposition and behaviour when the good character witnesses gave their oral evidence.
If defence counsel had sought a hypothetical pre-emptive ruling of the kind posited by senior counsel for the appellant, it might, or might not, have been made. It might, or might not, have been favourable to the appellant. It has not been demonstrated that a ruling would have been forthcoming and that any ruling would have been favourable to the appellant so that he could have adduced good character evidence without risk that the prosecutor might adduce evidence as to S's mother's allegations of domestic violence and sexual offending. At bottom this is no more than a contention that the trial could have been conducted differently by defence counsel availing himself of a possible procedural avenue. It cannot and does not ground a miscarriage of justice.
Returning to the initial issue, we are not satisfied that there was a material irregularity in the trial by reason of the omission to adduce good character evidence. To the contrary, for the following four reasons we consider that the omission to call good character evidence was capable of reasonable explanation as an apparently rational decision made to avoid a forensic disadvantage.
First, following the introduction of good character evidence, the prosecutor could call evidence as to the appellant's prior criminal history. While, as senior counsel for the appellant submitted, much of that was minor and unlikely to adversely affect the appellant's defence, that is not the case with the convictions for resisting arrest, common assault and criminal damage. The timing of those convictions was significant given the timing of the alleged offence the subject of the indictment. It would have been open to the prosecutor to contend that, irrespective of the appellant's good character in recent times, he was a different kind of person at the time of the alleged offence.
Moreover, none of the written references relied on in support of particular (a) contained any indication that the potential character witnesses were aware of the appellant's prior criminal record. Had the referees been called as character witnesses they would very likely have been cross-examined as to the appellant's prior criminal record. The benefit of the good character evidence would have been undermined. So too the fact of the historical convictions - coupled with the character references speaking to the appellant's more recent good character - would have emphasised the absence of good character evidence going to the appellant's inherent moral qualities and disposition as at the time of the alleged offending.
Second, for the reasons we have given, there was a real risk that if good character evidence was called the prosecutor might have sought to adduce evidence of S's mother's allegations that the appellant subjected her to domestic violence and sexual offending. It is self-evident that any defence counsel would have viewed that prospect as being prejudicial to the appellant. It is true that the trial judge would have directed that the evidence was only admissible on the issue of the appellant's character. But, even so, any defence counsel would have viewed this evidence as being forensically disadvantageous to the appellant. If confirmation of that be required it is demonstrated by the circumstance that defence counsel for the appellant foreshadowed seeking a directions hearing to object to the evidence associated with the mother's allegations.
Third, the bad character evidence would have been introduced towards the end of the trial, it being raised in the cross-examination of the character witnesses and in response. The prosecutor would have referred to the bad character evidence in his closing address. The trial judge would have mentioned the bad character evidence and its relevance in the context of a direction concerning the evidence of good character. Accordingly, the focus towards the end of the trial would have been on the appellant's character - a matter of potential disadvantage to the appellant given the nature of the rebuttal evidence.
Fourth, for the reasons given at [154] - [155] below, the good character evidence was of modest value which would, in any case, be undermined by rebuttal evidence of alleged bad character. In making the forensic decision whether or not to call the good character evidence it was material that the potential benefit was limited; such benefit as might be derived was clearly outweighed by the potential disadvantage associated with the possible rebuttal evidence available to the prosecutor.
In all the circumstances, defence counsel could reasonably have concluded that the possible benefit of calling good character evidence was outweighed by potential forensic disadvantage. There was no material irregularity in the trial due to the omission to call good character evidence. The absence of good character evidence was reasonably capable of explanation as a rational forensic decision to avoid forensic disadvantage. There is no miscarriage of justice as asserted in particular (a) to ground 2.
Even if, contrary to our view, there was a material irregularity, we are satisfied that there is no significant possibility that the omission of the good character evidence affected the outcome of the trial.
The use that a jury might make of good character evidence will vary greatly according to the circumstances of the case. In this case the good character evidence was likely to be of marginal, if any, benefit for the following reasons:
1.First, as already mentioned, had good character evidence been introduced, any positive effect was likely to be significantly diminished, depriving it of effective persuasive force, as a result of the cross-examination of the good character witnesses - and the adducing of further evidence from S's mother and the investigating police officer - as to the appellant's prior criminal history and the allegations of domestic violence and sexual offending against S's mother.
2.Second, 16 of the character references were from family members of the appellant. Consistent with the partisan nature of the suggested character witnesses, their references lack objectivity. For example, a number of the references expressed shock and disbelief about the outcome of the trial - seven even referring to the conviction as a miscarriage of justice - and expressed hope that the appellant will be successful in an appeal. This, in our view, significantly reduced the evidentiary value of the suggested good character evidence.
3.Third, only two of the character references were from persons who knew the appellant at the time of the alleged offending. The remainder were unable to provide any insight into the appellant's character as at the time of the alleged offence. One of two referees able to speak of the appellant's character as at the late 1980s was the appellant's son - who, apart from his lack of objectivity, was a child at the relevant time. The other was a relatively casual acquaintance of the appellant at the time of the offending who established a more meaningful relationship with the appellant and his wife subsequently. In referring to having known the appellant as 'an honest, hardworking, respectable and law-abiding person'[61] it appears that this referee was unaware of the appellant's prior criminal record.
[61] BGAG 56.
The appellant has not demonstrated that there is a significant possibility that, had the suggested good character evidence been adduced, the verdict would have been different. The evidence is, at best, of modest weight in relation to whether the appellant was likely to have committed the alleged offence or whether his denial of the offence was true.
Particular (a) to ground 2 is without merit.
Miscarriage of justice: the limited cross-examination of S's mother
Identification of the lines of cross-examination to be pursued with a particular witness is a decision that falls within a defence counsel's remit. There is no suggestion, in this case, that the limited cross-examination of S's mother deprived the appellant of a fair trial. Accordingly, the allegation of miscarriage of justice turns on whether, by reason of the limited cross-examination, there was a material irregularity and a significant possibility that such material irregularity affected the outcome of the trial.
The complaint by particular (b) to ground 2 is confined to defence counsel's decision not to cross-examine S's mother in relation to S's recollection of what occurred after the alleged offending finished, ie S's mother's banging on the locked bedroom door, her demands for the door to be opened, and the eventual opening of the door by S. The appellant contended that, had there been such cross-examination, defence counsel might have submitted in closing that, if events had occurred as described by S, S's mother would have remembered these things happening. So far as S's mother was unable to recall any such events, S's account was less likely to be truthful, accurate and reliable.
The limited cross-examination of S's mother is capable of reasonable explanation: the mother's evidence-in-chief had established that she did not recall the incident described by the complainant in as much as S's mother did not recall whether she had been in the appellant's bedroom at any time. Accordingly, there was already an adequate evidentiary platform for defence counsel to make a submission to the jury to the effect of that suggested by the appellant on appeal. Indeed, defence counsel did so in substance (see [65] above). Defence counsel relied on the absence of corroborative evidence from S's mother, saying that S's evidence beggared belief.
It was open to defence counsel, as a reasonable exercise of his forensic judgment, to decide not to pursue the suggested line of cross-examination. Cross-examination carried the risk that an unexpected answer might detract from the submission that defence counsel could put in his closing address based on the paucity of S's mother's recollection as recounted in examination-in-chief. For example, S's mother might have explained why any such event was unremarkable and not something she would remember. The limited cross-examination was reasonably capable of explanation as a rational tactical decision to avoid the forensic risk of evidence being elicited which might impact adversely on the use that could otherwise be made of the confined evidence given in examination-in-chief.
For these reasons the limited cross-examination of S's mother did not constitute a material irregularity in the trial. Nor, in our opinion, is there a significant possibility that, had defence counsel conducted an extended cross-examination of S's mother of the kind referred to by the appellant on appeal, the verdict would have been different. At the most, defence counsel might have obtained a firm 'I do not recall' when S's mother was asked about her recollection, if any, of the aftermath of the events in the appellant's bedroom. Such a response would not have added materially to the existing absence of any corroborative evidence that grounded the line of argument which was pressed by defence counsel in his closing address.
Particular (b) to ground 2 is without merit.
Conclusion and orders
There should be leave to appeal on ground 1 but not on ground 2. Ground 2 did not have a reasonable prospect of succeeding. While there should be leave to appeal on ground 1, ground 1 has failed. Accordingly, the appeal must be dismissed.
The appropriate orders to give effect to these reasons are:
1.The appellant has leave to appeal on ground 1.
2.Leave to appeal on ground 2 is refused.
3.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AT
Associate to the Honourable Justice Vaughan
1 JUNE 2022
2
19
0