Murphy v The State of Western Australia
[2021] WASCA 129
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MURPHY -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 129
CORAM: MAZZA JA
BEECH JA
SMITH J
HEARD: 17 FEBRUARY 2021
DELIVERED : 21 JULY 2021
FILE NO/S: CACR 52 of 2020
BETWEEN: JAMES MURPHY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: O'NEAL DCJ
File Number : IND XX of 2017
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted after trial of two counts of sexually penetrating a child under the age of 13 years contrary to s 320(2) of the Criminal Code (WA) - Whether trial judge erred in failing to adequately direct jury in respect of delay of complaint and forensic disadvantage suffered as a result - Whether trial judge erred in inviting jury to speculate
Legislation:
Criminal Code (WA), s 320(2)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | J G Fordham |
| Respondent | : | B M Murray |
Solicitors:
| Appellant | : | Oswald Legal (Joondalup) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
B v The Queen [1992] HCA 68; (1992) 175 CLR 599
Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343
DWM v The State of Western Australia [No 2] [2019] WASCA 143
Eravelly v The State of Western Australia [2018] WASCA 139
Hill v The State of Western Australia [2019] WASCA 209
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
LNN v The State of Western Australia [2021] WASCA 39
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
R v AH [1997] 42 NSWLR 702
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
SPB v The State of Western Australia [2012] WASCA 136
JUDGMENT OF THE COURT:
On 19 June 2019, the appellant was convicted after a two‑day trial by judge and jury in the District Court of two counts of sexually penetrating a child under the age of 13. Later that day, the appellant was sentenced to 3 years 6 months' imprisonment on count 1, and 3 years' imprisonment on count 2. His Honour ordered that the sentences be served concurrently. Thus, the total effective sentence imposed upon the appellant was 3 years 6 months' immediate imprisonment. The appellant was made eligible for parole and the sentences were ordered to commence on 19 June 2019. The appellant became eligible for parole on 18 March 2021.[1]
[1] ts 292.
The appellant now seeks an extension of time to appeal and, if the extension is granted, to appeal against his convictions. The extension of time is required because the appellant's appeal notice was filed on 17 April 2020, almost 9 months out of time. The application for an extension of time is supported by the affidavit of the appellant's solicitor, Adam Timothy Oswald, sworn 17 April 2020. The affidavit does not satisfactorily explain the lengthy delay in filing the appeal. Whether an extension is granted will depend upon the merits of the appeal.
The appellant advances two grounds of appeal. Ground 1 complains that the judge's Longman direction was inadequate. Ground 2 asserts that an aspect of the judge's direction invited the jury to speculate in respect of matters when there was relevantly no evidence of them.
For the reasons that follow, in our opinion neither of the appellant's grounds has merit. The extension of time should be refused and the appeal dismissed.
Background
The alleged victim in this case, whom we will refer to as T, was born in September 1996. At the time of the alleged offending, the appellant was in a relationship with T's aunt. The appellant was born in 1942. There is a 54‑year age difference between the appellant and T.
Originally, the appellant was charged with five offences of sexually penetrating T. After a trial in the District Court between 9 and 10 October 2018, he was found not guilty of three counts (counts 1, 4 and 5), but the jury could not reach a verdict in relation to the remaining two counts.[2]
[2] ts 174 - 175.
The State retried the appellant in relation to what had previously been counts 2 and 3, which were set out as counts 1 and 2 on a 'dummy' indictment as follows:[3]
1.On a date unknown between 15 September 2002 and 15 September 2006, at [a regional town], [the appellant] sexually penetrated [T], a child under the age of 13 years, by engaging in cunnilingus. [formerly count 2]
2.On a date unknown between 15 September 2002 and 15 September 2006, at [another regional town], [the appellant] sexually penetrated [T], a child under the age of 13 years, by penetrating her vagina with his finger. [formerly count 3]
[3] BGAB 1.
Each of these charges is contrary to s 320(2) of the Criminal Code (WA).
The grounds of appeal
The appellant originally advanced three grounds of appeal. Ground 1 alleges that the trial judge 'failed to direct the jury adequately in respect of the delay before the complaint was made and the resulting forensic disadvantage suffered by the appellant'.[4] Ground 2 alleges that the learned trial judge erred in inviting the jury to speculate about the possibility of other uncharged sexual acts having been committed by the appellant, and that such behaviour explained why she may not have recalled the details of the particular acts alleged in the charges.[5] Ground 3 was abandoned at the hearing of the appeal.[6] Each of grounds 1 and 2 is particularised. We will refer to these particulars later in our reasons.
[4] WAB 13.
[5] WAB 14.
[6] Appeal ts 3.
The question of whether leave to appeal should be granted on the grounds of appeal was referred to the hearing of the appeal.[7]
[7] Order of Buss P dated 16 June 2020; WAB 3.
It must be said that the appellant's case is inadequate. The appellant's case does not set out, in summary form, the State's case at trial, the defence case, the issues to be decided by the jury, the relevant parts of the summing up and such matters as to whether any exception was taken by defence counsel to his Honour's directions.
While counsel for the appellant has filed a schedule pursuant to Practice Direction 7.4, it is in no way a substitute for the matters referred to in the previous paragraph.
Summary of the evidence adduced at trial
T's evidence was pre-recorded on 26 July 2018 and an edited version was played to the jury at the appellant's trial.[8] At the time of the pre‑recording, T was 21 years of age.[9]
[8] BGAB 108 - 154 (or pre‑recording ts 1 - 46).
[9] BGAB 109.
T testified to this effect:
(a)She is the youngest of six children born to her mother, RB, and her father, NT.[10]
(b)Up until the age of 9 years, she lived in a regional town in Western Australia.[11]
(c)When she was 5, her parents separated. She then lived with her mother and two of her siblings.[12]
(d)The appellant is related to T's mother by marriage. T had always known the appellant.[13]
(e)During the period of the alleged offending, the appellant lived in two locations close to the regional town in which T resided. In the first location he lived in a house on stilts, and in the second location he lived in a caravan.[14]
(f)She had a close relationship with the appellant. T described him as 'the favourite uncle'. T said that he would come to town and visit her family and that '[he] always gave us money, take us out bush'. He let T ride in his truck and in an old green 'army type' vehicle which was fitted with a black bull bar.[15]
[10] BGAB 110.
[11] BGAB 110.
[12] BGAB 111.
[13] BGAB 111 - 112.
[14] BGAB 112.
[15] BGAB 113.
T was unable to say precisely how old she was, or the order in which counts 1 and 2 were committed. At one point in her examination‑in‑chief, she said that the offences occurred when she was 8 or 9 years old.[16] In cross-examination, she confirmed that they were committed when she was between the ages of 6 and 9 years and before she left the regional town in which she had resided since birth.[17] The dates in the indictment were framed to encompass the period in which T was between 6 and 9 years old.[18]
[16] BGAB 129.
[17] BGAB 132.
[18] BGAB 1.
In respect of count 1, T said that she recalled going with the appellant to a trucking yard to clean his truck. T said that she and the appellant were in the sleeping compartment in the truck. There, while she was lying on her back, the appellant touched her vagina and engaged in conduct which amounted to an act of cunnilingus. T said that she recalled wearing basketball shorts at the time but she was not sure what type of t-shirt she was wearing.[19]
[19] BGAB 118 - 119.
In respect of count 2, she recalled that it occurred on an occasion when the appellant drove her and others one night into a big shed in which 'piles of sugar' were stored. There, she and the other children played in the sugar. T said that the appellant turned the vehicle's lights off and on and told scary stories 'for fun'. T said that, at one point, she was sitting in the back seat of the appellant's green coloured vehicle when the lights were turned off and the shed went dark. She became scared and jumped into the front driver's seat of the vehicle and sat on the appellant's lap. She said another child was in the front passenger seat. While T was on the appellant's lap, he put his hand down her basketball shorts, beneath her underwear, and touched the area of her clitoris with his fingers.[20]
[20] BGAB 120 - 121.
Apart from the alleged commission of counts 1 and 2, T testified about other (uncharged) occasions when the appellant touched her vaginal area, exposed his penis to her and other children and got her and the other children to touch his penis while they were swimming in a creek. T said the appellant 'used to get us to do that all the time' and '[the appellant] did it a lot of times'.[21] This evidence was adduced by the State, without objection, 'to put [T's] evidence in context'[22] (the context evidence).
[21] BGAB 123 - 125.
[22] Summing up ts 273.
T said that she had a 'very tiny memory' of going to the police station and speaking to 'a lady' about what had happened to her when she was younger, but she did not recall what was said. However, in January 2017, T said that she saw the appellant. T said that she was 'really shocked' by this sighting and 'just so much memories came back'. Later in 2017 she went to the police.[23]
[23] BGAB 128 - 129.
Under cross-examination:
(a)T confirmed that she did not know how old she was when she first spoke to the police, but she estimated that it was 'around 2004 or 2005'.[24]
[24] BGAB 134.
(b)T confirmed that after she went to the police the first time, 'nothing happened' to the appellant.[25]
[25] BGAB 134.
(c)In respect of count 1, T confirmed that she has no memory of how she came to be inside the appellant's truck. T agreed that there were no other kids or adults around at the time.[26]
[26] BGAB 136.
(d)T said that although the surrounding circumstances of the incident which constituted count 1 were 'a bit of a blur', she maintained that the appellant touched her clitoris and licked her vagina.[27]
(e)T essentially confirmed the surrounding circumstances of count 2 and the appellant's penetration of her vagina with his finger. T agreed that in the statement she gave to the police in 2017, she said that when the appellant committed count 2 there were two girls sitting in the front seat of the vehicle. T said that there could have been two girls, but she could now only recall there being one girl in the front seat.[28]
(f)T said that while she remembered count 2, the events surrounding it were 'a bit of a blur'. She agreed that she could not really recall the finer details of the offence.[29]
(g)T agreed that, at the time count 2 was allegedly committed, the appellant was 'chubby and fat', but that she was 'tiny at the time' and could sit on the appellant's lap between him and the steering wheel.[30]
(h)T confirmed the events which constituted the contextual evidence.
(i)T said that she was unaware of allegations that the appellant had behaved in a sexually inappropriate way with one of her sisters until after she spoke to the police in 2017.[31] T denied the proposition that her recollection of the appellant's sexually inappropriate behaviour towards her were, in fact, memories of what occurred to her sister.[32]
(j)T said that she was 'certain' that the events she had described had happened and that she was sure that she was not remembering what someone else had told her.[33]
(k)T refuted suggestions put to her by defence counsel that the offences the subject of counts 1 and 2, and the context evidence, did not occur.[34]
Evidence of RB
[27] BGAB 137.
[28] BGAB 141.
[29] BGAB 141.
[30] BGAB 142 - 143.
[31] BGAB 150.
[32] BGAB 150.
[33] BGAB 152.
[34] BGAB 152 - 153.
RB testified to this effect:
(a)She has six children, her two youngest being S and T.[35]
(b)RB had known the appellant since she was 15 years of age.[36]
(c)The appellant and RB's eldest sister, P, had been in a relationship.[37]
(d)When T was a young child, under the age of 13, the appellant owned an old green 'Land Rover' and lived at the second location.[38] He would see S and T 'around every second weekend or school holiday weekends'.[39] The children would go with him, on occasions, overnight.[40]
(e)RB allowed the appellant to take her children with him overnight because she thought 'he was a good friend of ours and we respected him'.[41]
(f)The first time RB heard about the allegations T had made against the appellant was in 2005.[42]
(g)In addition to taking S and T on overnight trips, he took another of her daughters, C, on overnight trips.[43]
[35] ts 230.
[36] ts 231.
[37] ts 231 ‑ 232.
[38] ts 232.
[39] ts 233.
[40] ts 233.
[41] ts 234.
[42] ts 234.
[43] ts 234.
In cross‑examination:
(a)RB agreed that the appellant would sometimes take one of her sons out with him, and on other times took out two of T's cousins.[44] She agreed that, on occasions, the appellant would take two children out at a time,[45] and to her knowledge, he never took just one child at a time.[46] RB estimated that T might have gone on outings with the appellant six to eight times.[47]
(b)RB said that she was present when T saw the appellant in 2017. She denied speaking with T about anything the appellant may have done sexually to S. RB could not recall if T spoke to her about the appellant touching her.[48]
Evidence of Senior Constable Grant Earnshaw
[44] ts 235.
[45] ts 236.
[46] ts 236.
[47] ts 236.
[48] ts 237.
Senior Constable Earnshaw testified that records he had obtained showed that, in 2005, an allegation of historic child sexual abuse was made in relation to T against the appellant. The record showed that a female detective took a statement from T in October 2005, but the matter did not proceed further.[49]
[49] ts 239.
In cross‑examination, Senior Constable Earnshaw accepted that no enquiries were made by police to identify or speak to potential eyewitnesses to the offence the subject of count 2.[50]
Other evidence adduced by the prosecution
[50] ts 241.
By consent, the prosecutor read to the jury the statements of Detective Sergeant Timothy Lines and Detective Senior Constable Nathan Munn.
Detective Sergeant Lines stated that, in the early afternoon of 2 September 2005, he went to a place occupied by the appellant. There, he located two vehicles, one of which was a green coloured Datsun Patrol registered in the name of the appellant. He took photographs of the vehicle and the appellant's caravan. Through Detective Sergeant Lines, the prosecutor tendered photographs of the two vehicles.[51] It was an agreed fact that the acquisition date of the Patrol vehicle was 29 January 2003.[52]
[51] ts 243 - 244; exhibits 1 and 2.
[52] ts 244.
Detective Senior Constable Munn stated that, on 12 July 2017, he arrested and charged the appellant.[53]
[53] ts 244 - 245.
Immediately prior to the close of the State's case, the prosecutor (with the consent of defence counsel) informed the jury that, on 17 September 2007, the appellant was convicted of six counts of indecent dealing with a child under the age of 13 years contrary to s 320(4) of the Code. An agreed statement of facts relating to these offences was then read to the jury. In summary, the six convictions related to three separate complainants, all girls, one of whom was T's sister, S. In relation to the first victim, when she was 10 years old, the appellant put his hand on her vagina on the outside of her shorts while she sat on his lap steering his Toyota four wheel drive utility (count 1). When the first victim was 12 years old, the appellant, again while she was sitting on the appellant's lap driving the Toyota utility, placed his hand on her breasts underneath her clothes (count 2). In relation to the second victim, when she was 10 or 11 years of age, the appellant took her and two female children for a drive in his Nissan vehicle. He invited her to sit on his lap and steer the vehicle. The appellant placed his hand onto her vagina on the outside of her clothing (count 3).
In relation to S, when she was 8 years old, the appellant took her swimming in a river. At one point, the appellant touched her vagina on the outside of her bathers (count 4). On another occasion, when S was about 10 years old, the appellant took her swimming at a different location. Again, the appellant placed his hand on her vagina outside her clothing (count 5). Then, when S was about 12 years old, the appellant took her and some of her relatives up to another swimming area. Here, the appellant tried to touch S's vaginal area, and when she swam away, he touched her chest.[54]
[54] ts 247 - 249.
This evidence was adduced without objection as tendency evidence, and to show that the appellant had a sexual interest in young girls and was prepared to act on it (the tendency evidence).
The appellant declined to give or adduce evidence
The appellant elected not to give evidence, and no evidence was adduced on his behalf.[55]
[55] ts 249.
The closing addresses
Towards the end of the first day of the trial, both the prosecutor and defence counsel addressed the jury.[56]
[56] ts 250.
In his closing address, the prosecutor focused on the real issue in dispute, being whether the jury was satisfied beyond reasonable doubt that the appellant sexually penetrated T as alleged in counts 1 and 2.
The prosecutor submitted that, at the relevant time, the appellant had a tendency to sexually offend against young girls who were part of his extended family or lived in his community and were aged between 8 and 12 years old.[57]
[57] Closing address ts 1 ‑ 2.
The prosecutor submitted that the appellant was trusted by RB and T, in that he had a very close relationship with T, and RB and T had no qualms about the appellant being in close physical proximity to T.[58] The prosecutor submitted that the appellant had the opportunity to commit the alleged offences and that he groomed T by giving her things and money.
[58] Closing address ts 2.
The prosecutor noted that, although T made a complaint to the police in October 2005, the delay between the occurrence and the alleged offences and the appellant being charged with them has made it difficult for the appellant to defend the charges. Accordingly, the prosecutor told the jury that they 'must pay very close attention to what [T] said in her evidence'.[59]
[59] Closing address ts 4.
The prosecutor, in substance, submitted that T was a reliable and truthful witness notwithstanding that she could not remember all of the surrounding details of the alleged offences.
The prosecutor referred to the context evidence. He submitted that it was brazen behaviour by the appellant, and that the appellant normalised that type of behaviour towards T.
In her closing address, defence counsel submitted that the jury could not be satisfied beyond reasonable doubt that the appellant had sexually penetrated T as T had alleged.[60] She emphasised that T had stated that there were gaps in her evidence and that her recollection was, on occasion, blurry.
[60] Closing address ts 11.
Defence counsel suggested that there were 'improbabilities and inconsistencies that strike at the very heart of the implausibility of her account'.[61] For example, defence counsel submitted that it was implausible that, after a brief and chance sighting of the appellant in 2017, 'so many memories' of what the appellant had done to her 'some 11 to 15 years ago' started coming back to T. Defence counsel described T's evidence as 'a recovered memory' and submitted that it was 'a very shaky basis' to persuade the jury of the appellant's guilt beyond reasonable doubt.[62]
[61] Closing address ts 12.
[62] Closing address ts 12.
Defence counsel drew to the jury's attention that T was unable to provide police with the names of the other children who were present at the time count 2 was allegedly committed, nor could T provide details as to how she got into the cab of the truck or how her clothes were removed leading up to the commission of count 1.[63]
[63] Closing address ts 13.
Defence counsel drew the jury's attention to what she suggested was an inconsistency between T's statement made to police in 2017, and her evidence in respect of count 2, regarding the number of children who were seated in the front seat of the appellant's vehicle at the time of the commission of the offence.[64] She also suggested that the offending the subject of count 2 was 'very brazen and extremely risky behaviour' by the appellant which did not ring true.[65]
[64] Closing address ts 14.
[65] Closing address ts 14.
In relation to the contextual evidence, defence counsel asserted that it was unlikely that the appellant would allow that number of children to touch his penis.[66]
[66] Closing address ts 15.
With respect to the propensity evidence, defence counsel submitted that the appellant's touching of the victims the subject of this evidence was 'not [at] the same level as what [T] says he did to her'.[67] She suggested that T's memory of what had allegedly occurred to her had been 'corrupted', either by the passage of time, by what she saw the appellant do to her sister, or possibly by what she had been told by others.[68]
[67] Closing address ts 16.
[68] Closing address ts 16.
Defence counsel contended that the appellant's prior convictions do not 'logically answer the implausibility of [T's] account'.[69]
[69] Closing address ts 18.
Defence counsel urged the jury to consider how difficult it was to test T's evidence. Her submissions on this point were as follows:[70]
Consider how difficult it is to test [T] about details such as what date it was or even what year it was, or on who else was there, how difficult it is for [the appellant] to recall precisely what he was doing on the days in question, and the difficulties posed by the problems with being able to speak to potential eyewitnesses and to investigate and present possible alibis. [The appellant] can't now assemble evidence regarding where or what he was doing at the time these incidents are supposed to have happened.
For example, consider that when [T] says that [the appellant] performed cunnilingus on her at the trucking yard many years ago, we can't answer that by saying, well, [T] was tested for DNA and it came up negative for [the appellant], because there's no forensic testing that can be done this far down the track, because when [the appellant] is forced to meet, for the first time, charges brought 12 to 16 years down the track, your common sense and life experience tells you that a delay of that type causes special problems for [the appellant] and once these allegations are made it's very hard to defend them.
If someone says you did something 12 to 16 years ago, and you don't have a date, let alone a year, put yourself in that position for a minute. How on earth do you go about defending that? And we can't say to [T], for example, you didn't go with [the appellant] on that date, because we don't even have a date. We don't have a year. We also don't have the identities of potential eyewitnesses or their accounts because [T] couldn't identify for the police which children were supposed to have been present during the incident at the sugar mill, so we can't ask them, for example, what, if anything, they saw or heard.
So I ask you to take into account those problems when evaluating the State's case.
[70] Closing address ts 18 - 19.
Defence counsel submitted that T's evidence revealed 'a fundamental lack of detail and an implausible course of events'.[71]
[71] Closing address ts 20.
Trial judge's discussions with counsel prior to the summing up
It was common ground at the trial that his Honour would be required to give a direction in accordance with Longman v The Queen.[72] After counsel had completed their closing addresses and in the absence of the jury, his Honour discussed with counsel the content of this direction. His Honour sought assistance from counsel as to any specific instances of forensic disadvantage suffered by the appellant by reason of the passage of time between the occurrence of the events in question and when he was formally notified of them.[73] In the course of these discussions, defence counsel accepted that the point she made in her closing address about the absence of DNA testing in respect of the events constituting counts 1 and 2 was not a specific forensic disadvantage to which his Honour should refer.[74] Defence counsel referred to the appellant's inability to (1) recall dates, (2) marshal an alibi, or (3) speak to potential witnesses in relation to count 2, as specific forensic disadvantages suffered by the appellant as a result of delay.[75]
[72] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79.
[73] ts 250.
[74] ts 251.
[75] ts 252.
Ground 1
Ground 1 is as follows:[76]
[76] WAB 13 - 14.
1.The learned trial judge erred in law in that he failed to direct the jury adequately in respect of the delay before the complaint was made and the resulting forensic disadvantage suffered by the appellant.
Particulars
a.He failed to specify the manner in which the delay may have affected the appellant, but merely commented generally to the difficulty of bringing forward matters of defence and adequately testing the complainant's evidence such as finding out where he was and what he was doing, and to locate possible witnesses (TS 280).
b.He failed to emphasise that the jury was bound to follow his direction.
c.He failed to refer, in the course of his directions about delay, (TS 279‑280) to the fact that[:]
i.the events were alleged to have happened 12 ‑ 16 years previous to trial and 11 ‑ 15 years before the appellant was charged, possible dates of offending thus spanning four years;
ii.[Abandoned][77]
iii.the complainant recalled virtually no detail of the circumstances other than location and the acts complained of. Had a timely complaint been made, the complainant would have recalled more surrounding detail and therefore the appellant would have had something to test;
iv.had a timely complaint been made, the dates would have been more precise and thus permitted the accused to explore alibi evidence;
v.[Abandoned][78]
vi.the memories of the appellant, the complainant and her mother would have deteriorated with the passage of time; and
vii.the appellant was thereby denied the opportunity to test the truthfulness, accuracy and reliability of the complainant's evidence by reference to the surrounding circumstances.
d.[Abandoned][79]
[77] Appeal ts 13.
[78] Appeal ts 3.
[79] Appeal ts 3.
The ground concerns his Honour's Longman direction and, in essence, complains of its adequacy 'in respect of the delay before the complaint was made and the resulting forensic disadvantage suffered by the appellant'.
The particulars to ground 1 allege, in essence, that the learned trial judge failed to emphasise to the jury that the instructions he gave them concerning forensic disadvantage suffered by the appellant were a direction that the jury was bound to follow (particular (b)). The appellant's written submissions claimed:[80]
The learned trial judge did not say his remarks were a direction until once towards the end of those remarks (ts 280). He did not tell the jury they were bound to follow his direction.
[80] Appellant's written submissions, par 4; WAB 17.
By particular (a), the appellant complains that his Honour failed to specify how delay forensically disadvantaged the appellant, but merely commented generally about the difficulty the appellant had in bringing forward matters of defence and adequately testing T's evidence.
Particular (c), as argued, complains that his Honour failed, in the course of his Longman direction, to refer to the matters specified in (i), (iii), (iv), (vi) and (vii).
Ground 1 - the Longman direction
At the outset of his summing up, his Honour told the jury that it was their duty to apply the law as he explained it to the facts as they found them.[81] His Honour clearly and correctly directed the jury as to the onus and standard of proof, the appellant's right to silence and that the jury must not speculate about matters that were not in evidence.
[81] ts 260.
His Honour directed the jury that the real issue for them to decide with respect to each charge was whether the State had proved beyond reasonable doubt that the appellant had sexually penetrated T as alleged. The jury were left in no doubt that they could not convict the appellant unless they found T's evidence to be both honest and reliable. His Honour noted, correctly, that defence counsel did not suggest that T was a dishonest witness; rather, it was submitted on behalf of the appellant that her evidence was unreliable.[82]
[82] ts 266.
His Honour gave unchallenged directions to the jury as to how it could use the contextual evidence and the propensity evidence adduced by the State.[83]
[83] ts 273 - 275.
The impugned Longman direction is in these terms:[84]
The State asks you to accept [T] as a witness of truth. She is, of course, the only witness against the accused as to the happening of the events alleged in the indictment. While there has been other evidence as to opportunity, for example, the evidence of [RB], no one has corroborated the complainant's evidence as to the offences themselves. Therefore, the position is that you must be satisfied beyond reasonable doubt about the truthfulness of [T's] evidence before you could convict the accused.
Because of the crucial nature, in this case, of her evidence and because of the seriousness of the allegations that she makes, you should scrutinise her evidence with special care. You should take carefully into account that these events are alleged to have happened some 14 or 15 years ago. They're allegations of serious sexual crimes. There's no corroboration, no other evidence that the particular events happened.
[T] was a young girl at the time, and human memory is fallible. The longer the delay, the more opportunity there is for error, and particularly, that's so for events occurring in childhood. It's a matter of common experience. The longer you believe something to have happened, the more convinced you are that it has happened, and that can be so even if you're mistaken in your recollection.
You must also bear in mind all the matters that might have an impact on the reliability of the evidence of [T]. [Defence counsel] submitted to you that these matters include [T] witnessing indecent dealing by the accused against her sister, [S]. Also bear in mind that because of the long delay, the evidence of the complainant, [T], can't be adequately tested. By reason of the delay, the accused has lost the opportunity to bring forward matters of defence and to test the evidence of the complainant.
For example, if the matter had been pursued closer to the time of the alleged offending, it might have been possible to learn who it was, that is, which children who were said to be present for the events with respect to count 2 and to interview them, or it might have been possible to discover whether anyone else was present in respect of the time and circumstances said to be connected with count 1 at the truck depot, or for the accused to make inquiries as to where he was and what he was doing on the occasions alleged.
The direction which I give you is based on the experience of courts of the difficulty that accused people have in cases such as this. Because of the long delay, it's particularly important that you scrutinise the complainant's evidence with special care. You are at liberty to act upon it to convict the accused if you're satisfied of the truth and accuracy of it, but it would be unsafe to convict the accused on the uncorroborated evidence of the complainant unless, having scrutinised your evidence with great care, having considered the circumstances relevant to that evidence to which I have referred and taking full account of the warning that I've just given you, you're satisfied beyond reasonable doubt as to its truth and accuracy with respect to the elements of the offences charged here.
Ground 1 - legal principles
[84] ts 275 - 276.
Having regard to the long delay between the commission of the alleged offences, between September 2002 and September 2006, and when the appellant became aware of the allegations in 2017, there is no question that a Longman warning was required.
The legal principles applicable to such a warning are well established and have been discussed by this court on numerous occasions, including in such cases as SPB v The State of Western Australia;[85] RMD v The State of Western Australia;[86] Eravelly v State of Western Australia[87] and DWM v The State of Western Australia [No 2].[88]
[85] SPB v The State of Western Australia [2012] WASCA 136 [41] ‑ [53].
[86] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [114] ‑ [137].
[87] Eravelly v The State of Western Australia [2018] WASCA 139.
[88] DWM v The State of Western Australia [No 2] [2019] WASCA 143 [29] ‑ [35].
For present purposes, it is sufficient to repeat what was said by Buss P and Mazza JA in DWM [No 2]:[89]
[89] DWM [No 2] [29] ‑ [35].
The relevant principles which dictate when a warning is required were recently summarised by this court in Eravelly v The State of Western Australia, in these terms:
The position may be summarised as follows. The judge must give a warning to the jury about its assessment of particular evidence whenever a warning is necessary in order to avoid a perceptible risk of a miscarriage of justice. As the High Court has recently explained, in such cases the risk is perceptible to the court because judicial experience has shown that evidence of this description or character may be unreliable. A perceptible risk of that kind arises when there is a feature of the evidence which may adversely affect its reliability, the significance of which may not be apparent to a lay jury.
Put another way, a direction is required where it is necessary for alerting the jury to difficulties with particular classes of evidence, or, we would add, particular evidence, with which they are unlikely to be familiar. (citations omitted)
A Longman direction is an example of such a warning.
The circumstances in which a Longman direction is regularly given involve significantly delayed and, at least generally, uncorroborated complaints by alleged victims of sexual offences, who are often young children at the time of the alleged offending.
The primary rationale for giving a Longman direction is that a jury might fail to appreciate that, as a result of a substantial delay between the occurrence of the alleged offence and the accused being informed of the complaint, the accused will have suffered forensic disadvantage by losing the chance adequately to test the complainant's evidence and the chance adequately to marshal a defence.
When a Longman direction is necessary, the trial judge must direct the jury to the effect that, as a result of the substantial delay, the accused has lost the chance adequately to test the complainant's evidence and the chance adequately to marshal a defence. The jury must be instructed to the effect that, although it can convict solely on the complainant's evidence if satisfied beyond reasonable doubt as to the truth and accuracy of his or her evidence, it must scrutinise the complainant's evidence with great care and take into account any facts and circumstances (including the forensic disadvantage suffered by the accused as a result of the substantial delay) which have a logical bearing on the truth and accuracy of that evidence. It is essential that the warning be given as a direction which the jury is bound to follow. A mere comment will not suffice.
However, a Longman direction has not been reduced to an immutable formula or a ritual incantation, divorced from the facts and circumstances of the particular case. When the warning is necessary it must be crafted, by reference to the facts and circumstances of the particular case, with the object of ensuring a fair trial and avoiding the perceptible risk of a miscarriage of justice. (citations omitted)
As stated by Pritchard JA in DWM [No 2], there is no principle which requires a trial judge to list each and every particular kind of forensic disadvantage which an accused may have suffered. However, it is necessary for the trial judge to refer to the nature of the forensic disadvantage the accused has suffered and to relate those to the potential for a miscarriage of justice.[90]
Ground 1 - disposition
[90] DWM [No 2] [141] (Pritchard JA); Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343 [13] (Gleeson CJ).
As to particular (b), there is no merit in the complaint that his Honour failed to emphasise that the jury was bound to follow his directions.
It is trite to say that the impugned direction must be considered as a whole. At the outset of his closing remarks to the jury, his Honour told the jury that their duty was to apply the law as he explained it to the facts as they (the jury) found them. His Honour then told the jury that they had to follow what he said about the law, but that nothing he said about the facts of the case restricted their right and responsibility to decide the facts.[91]
[91] ts 260.
His Honour told the jury that it must be satisfied beyond reasonable doubt about the truthfulness of T's evidence before they could convict the appellant. His Honour emphasised to the jury the crucial nature of T's evidence and that her allegations were uncorroborated.
His Honour told the jury that they must bear in mind all of the matters that might have an impact on the reliability of T's evidence. In the context of this direction, the learned trial judge told the jury to bear in mind that T's evidence could not be adequately tested by reason of the delay, and that the appellant had lost the opportunity to bring forward matters of defence and to test the evidence of the complainant.
His Honour then directed the jury's attention to specific examples of how the appellant lost the opportunity to bring forward matters of defence and to test the evidence of the complainant.
Immediately after this, his Honour referred to what he had said as a direction, based on the experience of the courts of the difficulty faced by people accused of the type of offences allegedly committed by the appellant. His Honour then told the jury to scrutinise T's evidence with great care and that it would be unsafe to convict the appellant unless, having subjected T's evidence to that scrutiny and having taken full account of the warning he had just given, they were satisfied beyond reasonable doubt of the truth and accuracy of T's evidence.
Immediately after the passage quoted at [57] above, the judge summed up the real issue as whether, having regard to the pleas of not guilty, the inconsistencies in T's evidence and the warning he had just given as to the effect of delay, the jury were satisfied beyond reasonable doubt as to guilt of each offence.
Thus, the judge referred to what he had told the jury as a direction and twice referred to it as a warning. We do not accept the appellant's contention that it was incumbent on the judge to begin his remarks as to delay by telling the jury that he was about to give them a direction they were bound to follow, failing which there was a perceptible risk that the jury might take the judge's statements as mere comment.[92] Contrary to the assertions of the appellant, the terms and content of his Honour's Longman direction, when read as a whole, is unmistakeably a direction and not mere comment. It is fanciful to think that the jury might have understood it otherwise. His Honour's use of the word 'should' in the second paragraph of the direction, when viewed in the context of the direction as a whole, would not have left the impression that the jury were not bound to follow the direction. Particular (b) fails.
[92] Appeal ts 7, 12.
As to particular (a), there is nothing inadequate about his Honour's treatment of the forensic disadvantage suffered by the appellant as a result of the substantial delay in the appellant being informed of the allegations. His Honour, as required by authority, unequivocally instructed the jury that the appellant had suffered forensic disadvantage because T's evidence could not adequately tested and as the appellant had lost the opportunity to bring forward matters of defence. His Honour explicitly referred to the specific matters of disadvantage raised by defence counsel in her closing address, being those matters referred to in the second‑last paragraph of the direction. The assertion that his Honour 'merely commented generally to the difficulty of bringing forward matters of defence and adequately testing the complainant's evidence' is not borne out by what his Honour actually said. It ignores his Honour's reference to these specific matters of disadvantage. Particular (a) fails.
As to particular (c), his Honour was not obliged to refer to each and every kind of forensic disadvantage that may be contemplated. Nor was his Honour bound to state the obvious. Rather, the judge was obliged to draw to the jury's attention any features of the evidence affecting its reliability the significance of which may not be apparent to a jury. The judge's direction amply discharged that obligation.
In respect of particular (c)(i), his Honour told the jury that the events the subject of the charges 'happened some 14 or 15 years ago'. Plainly, his Honour did not fail to refer to the delay.
Having regard to the dates specified in the indictment (and the evidence adduced at trial, the addresses of counsel and the summing up), being on an unknown date when T was aged between 6 and 9 years, it was obvious to the jury that the appellant could not know the precise date on which either offence occurred. As his Honour explained, the appellant was hampered from being able to discover witnesses who could have shed light on the offence the subject of counts 1 or 2, nor could he make inquiries as to where he was and what he was doing on the occasions alleged. Particular (c)(i) fails.
As to particular (c)(iii), the fact that the complainant recalled little of the surrounding detail of the offences was a matter which was, again, obvious and had been well canvassed by counsel, particularly defence counsel who sought to make forensic advantage of it. His Honour told the jury that, because of the long delay, T's evidence could not be adequately tested. In the circumstances, nothing more needed to be said. Particular (c)(iii) fails.
As to particular (c)(iv), his Honour told the jury that had the complaint been made earlier, the appellant would have been able to 'make inquiries as to where he was and what he was doing on the occasions alleged'. Thus, again, this particular overlooks or ignores what the judge said in his direction to the jury. Particular (c)(iv) fails.
As to particular (c)(vi), his Honour told the jury that T's memory as a young person at the time of the alleged commission of the offences was, as with all human memory, fallible and that the longer the delay, the more opportunity there was for error, particularly for events occurring in childhood. The judge elaborated, observing that the longer you believe something to have happened, the more convinced you are that it did happen, and this can apply even where the person is mistaken. Insofar as this particular asserts that his Honour was required to tell the jury that the memories of the appellant and RB deteriorated over time, these points were obviously encompassed by what his Honour said and would have been so understood by the jury. Particular (c)(vi) fails.
Finally, particular (c)(vii) is no more than a catch‑all and an unfounded assertion based on other particulars contained in particular (c), including, it appears, the abandoned particulars. It adds nothing to the other particulars.
Ground 1 has no reasonable prospects of success.
Ground 2
Ground 2 reads as follows:[93]
The learned trial judge erred in fact and in law in that he invited the jury to speculate.
Particulars
a.He mentioned the possibility of sexual acts having happened to the complainant for some time where there was little if any supporting evidence.
b.He spoke of the behaviour thus becoming normalized, the child accepting of or resigned to such behaviour, thus explaining why she may not recall details of a particular act, where there was no supporting evidence (TS 277‑278).
Ground 2 - background
[93] WAB 14.
Earlier in these reasons, we referred to the context and tendency evidence adduced by the State.[94] This evidence was admitted without objection. The appellant does not suggest that he has suffered any miscarriage of justice by reason of the admission of this evidence.
[94] See [16], [26] and [27] above.
His Honour, as he was obliged to do, directed the jury as to the uses of this evidence. No complaint is made of the direction in respect of the tendency evidence. Ground 2 is concerned with his Honour's direction in respect of the context evidence. No complaint is made about the direction other than the appellant's contention that his Honour invited the jury to speculate about the effect of the context evidence.
Ground 2 - the direction
His Honour's directions as to the context evidence as transcribed comprised three paragraphs as follows:[95]
This is my direction to you as to how, as a matter of law, you can use evidence about sexual acts that aren't the subject of a charge on the indictment here. First, evidence that acts of sexual abuse by [the appellant] that were described by [T] in her evidence, weren't isolated acts, but there have been other sexual events that had occurred on a number of occasions, can be used by you, if you accept it, to put her evidence in context.
Now, I should make it clear that [T] didn't say that there were other events of sexual penetration, but she described other kinds of indecent dealing by [the appellant]. If you accepted, for example, that sexual acts had been happening to [T] for some time, or she had been exposed to sexual behaviour by [the appellant], it would help explain her reaction to it, or perhaps, in fact, a lack of reaction to the events that she described in her evidence to you.
If events or matters come to be routine or normalised, you might conclude that someone - particularly, perhaps, a young child - might become, if not used to, then, accepting of or resigned to those things happening. Similarly, it would explain why details of a particular act might not be especially memorable. You can probably all think of examples in your own life of things that happen fairly often so that it becomes difficult to describe or to distinguish one such event with particular details that stand out from similar events.
[95] ts 273 - 274.
At trial, defence counsel took no exception to these directions.
Ground 2 - the appellant's submissions
The appellant's written submissions in support of the ground are sparse and, in essence, do little more than repeat the ground as particularised.
In oral submissions, counsel for the appellant focused on these parts of his Honour's direction:[96]
If you accepted, for example, that sexual acts had happened to [T] for some time, or if she had been exposed to sexual behaviour by [the appellant], it would help explain her reaction to it, or perhaps, in fact, a lack of reaction to the events that she described in her evidence to you.
If events or matters come to be routine or normalised, you might conclude that someone - particularly, perhaps, a young child - might become, if not used to, then, accepting of or resigned to those things happening. Similarly, it would explain why details of a particular act might not be especially memorable. (emphasis added)
[96] Appeal ts 21 - 22.
Counsel for the appellant submitted that these parts of his Honour's direction (especially the italicised portion) went beyond merely instructing the jury how, as a matter of law, they could use the context evidence. The appellant contends that the italicised portion should be understood as a comment on T's evidence. The appellant submitted that, in doing so, his Honour was 'verging into the territory of expert evidence and … there isn't evidence in the case to support his Honour's remarks'.[97] Counsel for the appellant asserted that questions of whether events become normalised, or not particularly memorable for a young child, is beyond a jury's common experience and 'is more properly the subject of expert evidence where it requires, if you like, special knowledge'.[98]
Ground 2 - disposition
[97] Appeal ts 22. See also appeal ts 23 - 24.
[98] Appeal ts 25.
There is no merit in ground 2.
As Buss P and Mazza JA observed in Hill v The State of Western Australia,[99] evidence (including evidence of criminal or disreputable conduct by the accused) may be given at a criminal trial if it is relevant in placing the evidence as to the facts and circumstances of a charged offence into their true context as part of the essential background against which the complainant's evidence and any evidence of the accused must be evaluated.[100]
[99] Hill v The State of Western Australia [2019] WASCA 209 [68].
[100] See B v The Queen [1992] HCA 68; (1992) 175 CLR 599, 602 ‑ 603 (Mason CJ), 610 (Deane J) and R v AH [1997] 42 NSWLR 702, 708 (Ireland J, Hunt CJ at CL and Levine J agreeing).
In LNN v The State of Western Australia,[101] this court explained that the word 'context' can cover a variety of different uses of evidence, including:
(1)The evidence may enable a complainant to give a full account so that their evidence of the accused's conduct on the day of the offence in a familial setting would not appear 'out of the blue' and inexplicable on that account.
(2)The evidence may show grooming of the complainant from a young age, or otherwise explain the complainant's compliance with the offending and his or her failure to complain.
(3)The evidence may explain why an accused might feel able to act with impunity, having gotten away with similar offending before.
(4)The evidence may explain why the complainant is unable to give details of a specific incident which formed part of regular repeated sexual offending by the accused.
(5)The evidence may form an integral part of an account of a connected series of events, and may be necessary to render the complainant's account complete and intelligible.
[101] LNN v The State of Western Australia [2021] WASCA 39 [175].
It is clear from the prosecutor's closing address that the context evidence led in this case was used for the purposes referred to at [89(2)] and [89(4)].
There can be no issue that his Honour was required to direct the jury as to how it could use the context evidence given by T. In our view, the direction given by his Honour and set out at [82] above, when read as a whole, did no more than explain to the jury how it could use the context evidence. We will explain this by reference to each of the three paragraphs of the direction.
By the first paragraph of the direction, his Honour clearly and unequivocally stated its purpose:
This is my direction to you as to how, as a matter of law, you can use evidence about sexual acts that aren't the subject of a charge on the indictment here.
After this sentence, his Honour then identified to the jury the evidence the subject of the direction, being:
[O]ther sexual events that had occurred on a number of occasions.
This was patently a reference to the context evidence.
In the second paragraph of the direction, his Honour:
(1)reminded the jury that the context evidence comprised other kinds of indecent dealing and not acts of sexual penetration; and
(2)told the jury that if they accepted T's evidence that the appellant had subjected T to sexual acts 'for some time', or that she 'had been exposed to sexual behaviour by the appellant', it would 'help explain her reaction to it, or perhaps, in fact, a lack of reaction to the events [the subject of the charges]'.
Contrary to the submissions of counsel for the appellant, the third paragraph of the direction is a continuation of the matters raised in the second paragraph, whereby his Honour was instructing the jury as to further potential uses of the context evidence if they accepted it. These potential uses of the context evidence and the directions given by his Honour were in accordance with authority. His Honour was not, as the appellant contends, commenting on T's evidence. Nor did he invite the jury to speculate. The judge was not usurping the jury's function of finding the facts; rather, his Honour was appropriately identifying for the jury which modes of reasoning were available and permissible, leaving them to perform the fact‑finding function.
Furthermore, we do not accept the appellant's submission that the jury could not conclude from their own common experience that, if behaviour is routine or normalised, a child might come to accept or be resigned to that behaviour and may not recall the detail of a particular manifestation of it. In our opinion, these are plainly matters of ordinary human experience which do not require expert evidence.
Ground 2 has no reasonable prospect of succeeding.
Conclusion and orders
As neither ground of appeal has any merit, it would be pointless to grant the extension of time sought by the appellant.
The orders that we would make are as follows:
(1)The application for an extension of time to appeal is refused.
(2)Leave to appeal 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.
NF
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza
21 JULY 2021
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