Nautiyal v The State of Western Australia
[2019] WASCA 174
•8 NOVEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NAUTIYAL -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 174
CORAM: MAZZA JA
BEECH JA
VAUGHAN JA
HEARD: 23 OCTOBER 2019
DELIVERED : 8 NOVEMBER 2019
FILE NO/S: CACR 222 of 2018
BETWEEN: GAURAV NAUTIYAL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BURROWS DCJ
File Number : IND 1843 of 2017
Catchwords:
Nil
Legislation:
Criminal Appeals Act 2004 (WA), s 30(4)
Evidence Act 1906 (WA), s 31A
Result:
Leave to appeal on ground 1 granted
Appeal upheld
Convictions set aside
Retrial ordered
Category: B
Representation:
Counsel:
| Appellant | : | T A Game SC & A J C Mossop |
| Respondent | : | A L Forrester SC & G N Beggs |
Solicitors:
| Appellant | : | David Manera |
| Respondent | : | Director Of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
AJE v The State of Western Australia [2012] WASCA 185
Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50
Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469
Banks v The State of Western Australia [2018] WASCA 130
BBH v The Queen [2012] HCA 9; (2012) 245 CLR 499
BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275
Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314
Castle v the Queen [2016] HCA 46; (2016) 259 CLR 449
Collins v The Queen [2018] HCA 18; (2018) 92 ALJR 517
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
Hofer v The Queen [2019] NSWCCA 244
Kalbasi v Western Australia [2018] HCA 7; (2018) 264 CLR 62
KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221
Lane v The Queen [2018] HCA 28; (2018) 92 ALJR 689
Longman v The Queen [1989] HCA 60 (1989) 168 CLR 79
Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457
OKS v Western Australia [2019] HCA 10; (2019) 93 ALJR 438
R v Bauer [2018] HCA 40; (2018) 92 ALJR 846
SPW v The State of Western Australia [2012] WASCA 41
The Queen v GW [2016] HCA 6; (2016) 258 CLR 108
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
JUDGMENT OF THE COURT:
The appellant appeals against his conviction of two counts of sexually penetrating the complainant without her consent.
The appellant advances two grounds of appeal, both of which assert errors in the trial judge's directions to the jury. The first complains of the adequacy and fairness of the judge's direction concerning evidence led by the State of uncharged acts or other conduct on the part of the appellant. The second complains of the direction concerning the use to which evidence of complaint could be put. Leave to appeal was granted in relation to the second, and the question of leave on the first was referred to the hearing.[1]
[1] Order of Mazza JA, 4 March 2019.
For the reasons that follow, in our opinion both grounds of appeal have been made out. Consequently, we would uphold the appeal, quash the conviction and order a retrial.
The charges
The appellant was charged that on a date unknown between 15 March 2017 and 18 April 2017, he sexually penetrated the complainant without her consent by:
(1)engaging in cunnilingus (count 1); and
(2)penetrating her vagina with his penis (count 2).
Overview of the parties' cases at trial
The appellant was a part‑owner of the car rental business at which the complainant had worked as a car cleaner for many years.
The State alleged that, on the day on which both offences occurred, the appellant induced the complainant to go with him to his residence. There, on the State case, the appellant engaged in cunnilingus and then penetrated the complainant's vagina with his penis, in both cases without her consent. The State called as witnesses the complainant, her partner Mr Culverwell and another employee, Ms Dunne.
The appellant's case at trial was that the act of cunnilingus did not occur, but sexual penetration occurred consensually. He gave evidence and called his wife, another employee and a witness concerning the Christmas party referred to below.
The evidence at trial
The confined nature of both grounds of appeal makes it unnecessary to detail the evidence at trial beyond the two topics with which the grounds are concerned.
Evidence concerning the other acts
The State adduced evidence from the complainant and others of various conduct on the part of the appellant comprising, in broad summary:
(1)regular kissing or hugging of the complainant by the appellant at work;
(2)an incident in the kitchen of the workplace;
(3)an incident of touching or groping of the complainant by the appellant at a work Christmas party; and
(4)a comment made by the appellant to the complainant.
We will refer to this evidence as the other conduct evidence.
With one exception the defence case was that these events had not occurred. The exception was that, as will be seen, the appellant admitted that there had been platonic hugging and cheek kissing from time to time.
As to the first category of conduct, the complainant gave evidence that:
(1)Regularly, substantially every day, the appellant would come to the workplace area where the complainant worked and kiss her on the cheek and give her a hug.[2] For the initial period, she thought he was 'just a nice guy'.[3]
(2)On one occasion, the appellant kissed her on the lips and put his tongue in her mouth, saying, 'You'll like it'.[4] She told him 'to fuck off'.[5] This incident occurred in about March 2017.[6]
(3)Another employee, Ms Dunne, gave evidence that she had seen the appellant kiss the complainant on the cheek in her work area, from time to time.[7]
[2] ts 36 - 37.
[3] ts 37.
[4] ts 36.
[5] ts 36.
[6] ts 38.
[7] ts 149.
In his evidence, the appellant said that he had hugged the complainant, and kissed her on the cheek or forehead, from time to time, but had never kissed her on the lips until the day of the alleged incident.[8]
[8] ts 214.
The complainant gave evidence of an incident in the kitchen of her workplace, to the following effect:
(1)While she was in the kitchen, at the sink washing dishes, the appellant approached her and pushed his groin area into her back or bottom, 'like he was having sex with [her]'.[9] Ms Dunne; Ms Chook, the yard manager; and Mr Batchi, the appellant's partner in the business, were all present when this incident occurred.[10]
(2)She said to him 'Fuck off, you disgust me'.[11] She subsequently reported the matter to the manager.[12]
(3)The incident in the kitchen was probably before the kissing on the mouth incident.[13]
[9] ts 38.
[10] ts 39.
[11] ts 39.
[12] ts 39.
[13] ts 39.
Ms Dunne gave evidence that she observed an incident in the kitchen where the appellant approached the complainant and pushed up behind her while she was facing the sink. The front of his body was in contact with the back of hers.[14] Mr Batchi and Ms Chook were also present.[15] Ms Dunne told Mr Batchi that she considered this to be not appropriate.[16]
[14] ts 150.
[15] ts 150.
[16] ts 150.
Neither Ms Chook nor Mr Batchi were called as witnesses.
The appellant denied that any such incident or contact had occurred.[17]
[17] ts 254.
Ms Dunne gave evidence of an incident she observed at a work Christmas party. She thought it was the 2016 Christmas party.[18] She saw the appellant 'groping' the complainant, 'arms around her, under her breasts and just, yeah, groping … like an octopus'.[19]
[18] ts 151.
[19] ts 151.
The complainant did not give any evidence about an incident at a Christmas party.
The complainant's partner, Mr Culverwell, gave evidence that he attended a Christmas party at which he observed the appellant, on more than one occasion, approach the complainant, put his hand in the middle of her back and run his hand up her back, trying to pull her close to him.[20] The complainant pulled away. Mr Culverwell then went over and spoke to the appellant, following which the conduct stopped.[21]
[20] ts 167 - 168.
[21] ts 168.
The appellant denied any such conduct at the Christmas party.[22] He called a witness, Mr Pal (also known as Mr Singh) who said that the appellant had hugged males and females alike, being very friendly, and had not treated anybody differently.[23]
[22] ts 181.
[23] ts 284.
The complainant gave evidence that, on one occasion when she was in her work bay and the appellant was taking his wife to her car, as he walked past the complainant he said to her, 'I'd like to fuck you'.[24]
[24] ts 39.
The appellant denied having said anything of this kind to the complainant.[25] The appellant's wife denied that the appellant had said, 'I'd like to fuck you' to the complainant in her presence, saying that she would have slapped the appellant had this occurred.[26]
The complaint
[25] ts 228 - 229.
[26] ts 294.
The evidence concerning the making of the complaint may be summarised as follows.
The complainant's evidence was that the incident occurred on 28 March 2017.[27] She said that, after the incident at the appellant's house, she returned to work with the appellant, who drove his car.[28] She went straight to her office.[29] She said that following the incident she felt very uneasy, disgusted and scared.[30] She gave evidence that, at the end of April or early May, she spoke to Ms Dunne, who came to her house. There the complainant told Ms Dunne that '[the appellant] raped me'.[31]
[27] ts 40.
[28] ts 49 - 50.
[29] ts 50.
[30] ts 51.
[31] ts 53.
She said that she did not want anyone to know, and that she felt embarrassed and disgusted, but she was 'forced to have to report it'.[32]
[32] ts 115.
Ms Dunne gave evidence that on 1 May 2017 she went to the complainant's house to check on her, after the appellant had asked her to do so.[33] When she arrived she saw the complainant on the floor, crying and inconsolable.[34] When she asked the complainant what was wrong, the complainant responded, 'I can't tell you'.[35] Ms Dunne continued to ask, following which the complainant said that the appellant had raped her.[36] It took the complainant about 15 minutes to say that.[37]
[33] ts 153.
[34] ts 153 - 154.
[35] ts 154.
[36] ts 154.
[37] ts 154.
The same day, Ms Dunne telephoned the police.[38]
Prosecutor's closing submissions
[38] ts 154 - 155.
In his introductory remarks, the prosecutor identified the central issue - whether there was an absence of consent - and the prosecution's central submission on that issue - that the jury should accept the complainant's evidence that the two acts of penetration occurred without consent. The prosecutor then referred to the complainant's evidence of matters providing the background to what happened in the house. The prosecutor observed that the jury might think that those background matters were of some significance.[39] The prosecutor invited the jury to find as a fact that, on a number of occasions, the appellant made sexual advances or engaged in sexual‑type conduct with the complainant, and that she repeatedly rejected those advances.[40]
[39] ts of closings, 3.
[40] ts of closings, 3.
After referring to some of the evidence concerning the kitchen incident, the incident in the work bay, and the Christmas party incident, the prosecutor said as follows:[41]
Now, what do you make of those other incidents? At law they're called 'uncharged acts'. He's not charged with those on the indictment. The State submits that they are relevant in showing the nature of the relationship between the accused and the complainant. So what happened in the house on the particular day is not in a vacuum. It's in a context and that context is the relationship between the accused and the complainant leading up to that incident.
It was a relationship of boss and employee, of owner of the business referred to today as Mr Chairman and a car cleaner, and I'd submit that that's a very significant power imbalance which was used by the accused to his favour. We say that their relationship was one of repeated unwanted advances by the accused to the complainant. It was not reciprocated. She did not want it. She did not give back.
I ask you to accept the evidence of the complainant, of Sharlene [Ms Dunne] and of Brad [Mr Culverwell] of that long history of incidents. They may be described as harassment. There's no particular term of art for that particular conduct, but shows, in the State's submission, that the accused was sexually attracted to the complainant. (emphasis added)
[41] ts of closings, 3 - 4.
The prosecutor made further reference to aspects of the evidence concerning these incidents. He submitted that the evidence of the complainant's partner concerning the Christmas party incident showed 'at least a strong, friendly attraction' between the appellant and the complainant.[42]
[42] ts of closings, 4.
The prosecutor then made the following submissions:[43]
What I say in summary about the incidents prior to the incident at the house is that they show a relationship between the accused and the complainant of a power imbalance where the accused is prepared to act on that power imbalance to satisfy his sexual attraction to the complainant.
Another reason it's important is this, accepting that those things - those other acts took place. We have a history of him trying it on and she's saying no, to put it in the vernacular and in summary.
Then all of a sudden she says yes and goes off to his house while his wife's away. This is a woman in her fifties in a long term relationship and suddenly she changes her mind and decides to have a fling and then on the defence case later complains about it saying it was rape, complains to her friend Sharlene [Ms Dunne] and to her partner.
Remember, she did not initially take it to the police. The complaint was on 1 May and it only happened, on the evidence, when Sharlene [Ms Dunne] and her partner Brad [Mr Culverwell] insisted on it. If she was wanted to make a false complaint out of - trying to act out a revenge or whatever, you might think she would have reported it willingly to the police. She might well have said a whole lot of other things happened, but she didn't.
She has been consistent in what she said in the statement and in court and unchallenged in cross examination about that. She hasn't said - hasn't agreed with the propositions that are put to her in cross examination about the defence version of events. (emphasis added)
[43] ts of closings, 4 - 5.
The prosecutor submitted to the jury, on a number of occasions, that, having previously consistently rejected the appellant's advances, it was unlikely that the complainant would have consented on the occasion of the incident the subject of the charges.[44]
[44] ts of closings, 6, 7.
In his closing address, the prosecutor did not rely on the complainant's complaint to Ms Dunne as a recent complaint.
Discussion prior to judge's summing up
Counsel's addresses concluded on the afternoon of 5 September 2018. The judge directed the jury the following morning. On 5 September 2018, after the jury had retired for the day, the judge inquired of counsel as to appropriate directions to be given. The prosecutor submitted that the 'standard directions' concerning, relevantly, complaint and uncharged acts should be given.[45] He submitted that the complaint was 'sufficiently recent', being somewhere between four to five weeks after the alleged event.[46] The prosecutor also told the judge that the State relied on the complainant's distressed state at the time she spoke to Ms Dunne.[47]
[45] ts 309.
[46] ts 310.
[47] ts 310.
The judge asked the prosecutor questions concerning the other conduct evidence.[48] The prosecutor said that this evidence was part of the State submission that there was evidence of sexual attraction which, the State suggested, should be inferred from the conduct the subject of that evidence.[49]
[48] ts 311.
[49] ts 311.
The judge foreshadowed to defence counsel her intention to give a direction as to the complainant's complaint, including that it showed consistency of conduct on the part of the complainant.[50] Defence counsel made no objection to what was proposed.[51]
[50] ts 312.
[51] ts 312.
The judge's summing up
Direction concerning the other conduct evidence
The judge gave the following summary of the evidence concerning the appellant's other conduct:[52]
[52] ts 330 - 331.
Now, in this case, [the complainant] also gave evidence that she had worked for ACE Rent a Car for a number of years. The accused man became the owner of the business and in the beginning, she describes that she thought that he was being a nice guy.
Each morning he would come and give her a hug and a kiss on the cheek. She said over time, he began to come up behind her and grab her around the waist and bring his arms up towards her breasts.
She said on one occasion, which she thought was on March 2017, he said words to the effect of, 'You've got a big arse'. He grabbed her, kissed her on the lips and put his tongue in her mouth and she told him to fuck off.
This conduct, she said, occurred in the area where she cleaned the cars, and you've seen footage of that area. She described another incident which occurred in the work kitchen area, where she said the accused man came up behind her when she was at the kitchen sink, washing dishes, facing towards the sink.
She said he pushed his groin area in to her back and bottom, like he was having sex with her, and laughed. She said she was humiliated and embarrassed and ran out. And she said the kitchen incident was before the kissing incident, which had occurred in March.
She also described an incident which occurred near her work bay when the accused man walked past with his wife and said, 'I'd like to fuck you'.
You've also heard evidence in relation to the Christmas Party incident from Ms Dunne and from Mr Culverwell. In relation to the Christmas party incident, Ms Dunne said that she observed - this is at 151 - the accused man to be groping her -
- pretty much groping her. Arms around her -
- and she was speaking about [the complainant] -
under her breast and, yeah, just groping.
She said:
His hands went on her bum, under her bosoms, around her just like an octopus.
And Mr Culverwell described seeing the accused man approach [the complainant] and run his hand up and down her back. So that's what everyone has termed the Christmas incident.
The judge then told the jury that she would direct them as to how they may, and may not, use this evidence, which she referred to as 'the other conduct evidence'.[53]
[53] ts 331.
The judge said that the first point to be made was that the appellant denied that he did anything of a sexual nature towards the complainant before what occurred on the day of the incident.[54]
[54] ts 331 - 332.
The judge directed the jury that before they made use of the other conduct evidence, they must be satisfied that the evidence of it is true, in other words, that the complainant's evidence in relation to it was honest, accurate and reliable.[55]
[55] ts 332.
The judge told the jury that, if they were so satisfied, they may use the other conduct evidence in two ways. The first is that it was relevant background evidence as to the relationship between the complainant and the appellant.[56] The second was that it may assist the jury 'to evaluate the evidence relating to the offences set out in the indictment'.[57] The judge elaborated:[58]
For example, it might find - it may provide context, helpful or even necessary for an understanding of the narrative. It may explain the statement or event or conduct that would otherwise appear curious or unlikely. It may cut down or reinforce the plausibility of something a witness has said. It may assist you to use your common sense and experience of life to evaluate the evidence relevant to another particular offence.
Now, the State rely on this evidence to show that the accused man had a sexual interest in [the complainant] which he acted upon when he had sex with her, without her consent they say, in the house in March.
They submit that the evidence is relevant when you consider the defence case that there was no conduct of a sexual nature between the pair until the date of the charged sexual acts. They say it is unlikely that [the complainant] would suddenly willingly participate in these sexual acts when she had been rebuffing Mr Nautiyal's advances in the past.
So they say it contextualises the situation [the complainant] was in. She was an employee, he was the boss. It is relevant to show why she continued to work even after the charged acts. She was a woman, on the State's case, who was frightened of her employer and had been subjected to many months of sexual harassment by him, at least one of which was witnessed by other people in the kitchen. However, she received no assistance to stop the conduct.
So it enables you to contextualise all of the circumstances and to consider not only the events in a vacuum, and to consider the plausibility of the suggestion that these events occurred and this was the first sexual conduct between the two. (emphasis added)
[56] ts 332.
[57] ts 332.
[58] ts 332 - 333.
The judge then reminded the jury that the defence case was that none of the other conduct - the Christmas party incident, the kitchen incident, the kissing in the cleaning area, and the comment, 'I want to fuck you' - occurred.[59]
[59] ts 333.
The judge next observed that, having told the jury how they may use the other conduct evidence, she needed to direct the jury on how they must not use this evidence. As to that, her Honour said as follows:[60]
The other conduct evidence cannot in itself prove the offences the subject of the indictment. You can't use the other conduct evidence in substitution in any way for the evidence of the incidents charges in the two offences set out in the indictment.
Any finding you make in relation to the other conduct evidence cannot and must not lead automatically to a finding of guilt on the two offences the subject of the indictment.
You must not reason that simply because Mr Nautiyal did an act of a sexual nature, if you find he did, to [the complainant] on other occasions that he must have therefore committed the two offences before you in the current trial. It does not follow that because a person has on some previous occasion committed an act that he did the same or a similar act on a later occasion.
The ultimate question for you to decide, members of the jury, is whether, having regard to the whole of the evidence, the State has proven beyond reasonable doubt that Mr Nautiyal committed the acts constituting each of the two counts on the indictment. You must not convict Mr Nautiyal on either of the counts unless the State satisfies you beyond reasonable doubt that he committed the specific acts comprising the offence alleged against him in the particular count. (emphasis added)
[60] ts 333.
The judge reiterated that the State case was that the other conduct evidence showed the appellant's sexual interest in the complainant in the direction concerning inferences[61] and in summarising the State case.[62]
Recent complaint
[61] ts 338.
[62] ts 340.
The trial judge directed the jury concerning the complainant's making of a complaint in the following terms:[63]
Now, you heard evidence that [the complainant] made a complaint about the accused's conduct to her friend, Sharlene Dunne, on 1 May. Now, this is on any account of when the event happened, a number of weeks later.
[The complainant] continued to go to work during this time and it was only after she left work on 1 May, following that meeting that you've seen the video footage of, and when Ms Dunne went to visit her that night, that she told Ms Dunne that she had been raped by Mr Nautiyal, after Ms Dunne repeatedly asked her what was wrong.
Now, proof that a complaint was made can never be proof that the event occurred. Evidence of complaint is not to be taken as proof that the conduct complained of occurred. It is not separate, or additional, or corroborative evidence that the crimes were committed.
The State lead the evidence to show consistency of conduct, it's something you can take in to account in considering [the complainant's] credibility and the truthfulness of her evidence.
But you can't treat is as separate or additional to her evidence. It is [the complainant's] evidence of what happened which you saw, and you heard her give evidence of in the house that day, that you must consider.
The fact that she told Ms Dunne the same thing, cannot add to the truthfulness of her evidence. If the story is not true, repetition will not make it true. However, in judging her credibility and the truthfulness of her evidence, you're entitled to know how she acted after the events, to see whether she acted in a way which you might expect a woman in her position to act after the events of which she has given evidence, by telling someone about it. (emphasis added)
[63] ts 335 - 336.
The judge immediately then turned to the question of the complainant's distress at the time of making the complaint, saying:[64]
You heard evidence as to [the complainant's] condition when she spoke to Ms Dunne. Ms Dunne said that [the complainant] was crying inconsolably when she told her what had happened to her. It is for you to decide as a matter of fact, whether you accept whether [the complainant] was genuinely distressed and if so, the nature and extent of that.
If you find that she showed signs of distress it's important for you to understand how that evidence may be properly used in the course of your deliberations. You must appreciate that signs of distress may result from anyone of several possible causes.
It may have been caused by the commission of the offences, as the State contends. It may be that it was a consequence of remorse on [the complainant's] part that having consented, or because she was distressed about the bag incident of 26 April and being confronted about that incident at the meeting at 10 am on 1 May.
As the defence suggests, it may have been simulated. You'll have to make up your own assessments about the evidence. Evidence of distress itself cannot be used to confirm the truth of the complaints made by [the complainant]. Just as the evidence of the complaint to Ms Dunne, if you accept it, can't be used to confirm the allegations contained in the indictment.
However, if you find it was genuine distress and if you find it was consistent only with her allegations, it can be used as an aid to you, in assessing the consistency of [the complainant's] conduct.
Depending on the view which you take, it may indicate to you that her behaviour at the time was consistent with the events related to you by her.
However, you must exercise caution in making your own assessment because of the potential number of causes that could have given rise to indications of distress.
[64] ts 336.
As already noted, there are two grounds of appeal, both of which assert that aspects of the judge's direction gave rise to a miscarriage of justice. We will deal with them in turn.
Ground 1: the judge's direction concerning the other conduct evidence
Appellant's submissions
Ground 1 contends that the trial judge erred in law in directing the jury as to the other conduct evidence in that:
(a)her Honour failed to direct adequately in relation to the uncharged acts; and
(b)her Honour failed to fairly summarise the evidence in relation to each of the acts the subject of the other conduct evidence.
The appellant's submissions in support of ground 1(a) are to the following effect:
(1)The prosecutor's closing address to the jury did not make clear the precise use, or uses, of the other conduct evidence that was invited by the prosecution.[65]
(2)Neither the prosecutor's closing address, nor the judge's summing up, made clear the extent to which the prosecution invited propensity reasoning based on the other conduct evidence.[66]
(3)In submitting that the other conduct evidence demonstrated that the appellant had a sexual interest in the complainant, which interest he acted upon in committing the offences, the prosecution was, or may have been taken to be, inviting propensity reasoning. That aspect of the State submission was repeated by the trial judge in her summing up.[67]
(4)The propensity relied on was not adequately described and the use to be made of it not adequately explained.[68]
[65] Appellants' submissions [42].
[66] Appellants' submissions [42] - [44].
[67] Appellants' submissions [44].
[68] Appellants' submissions [46], [53].
In support of ground 1(b), the appellant submits that the judge gave a detailed description of the State's evidence in support of each incident, but did no more than make the generalised observation that the appellant denied the conduct.[69] The appellant contends that the judge failed to direct the jury as to:[70]
(1)the fact that the only evidence of the complainant rejecting or rebuffing the workplace incident and the kitchen incident came from the complainant herself, notwithstanding her evidence that she made complaints to others in the workplace;
(2)the fact that the appellant's wife had denied the comment alleged to have been made in her presence;
(3)the fact that the complainant had not given any evidence herself as to the Christmas party incident, and those that had given evidence about it gave no evidence that the conduct was rebuffed or rejected; and
(4)the fact that Mr Singh had not observed the appellant to be acting differently towards anyone at the time of the Christmas party incident.
Respondent's submissions
[69] Appellants' submissions [54] - [61].
[70] Appellants' submissions [63].
The respondent contends that ground 1(a) of the appeal presupposes:
(1)that the State relied on the other conduct evidence as propensity evidence; and
(2)that the trial judge gave a propensity direction to the jury;
but neither of these presuppositions is correct.
The respondent's submissions are to the following effect:
(1)The other conduct evidence was admissible under the common law. It was relied on by the prosecution for two purposes:[71]
(a)to demonstrate that the offending occurred against a background of sexual harassment in the workplace by the appellant towards the complainant, that context impacting on the complainant's willingness to complain after the event, and explaining her continued attendance at work after the offending; and
(b)to rebut the appellant's evidence that the complainant consented to engaging in sexual activity.
(2)The critical issue at trial was whether absence of consent was proved. The uses invited by the prosecution of the other conduct evidence were to be understood in that framework.[72]
(3)Mere use of the words 'sexual interest' does not, of itself, invite or engage propensity reasoning, particularly where the defence case was that consensual sexual intercourse had occurred.[73] The prosecutor's reference to sexual interest went to motive - it did not invite propensity reasoning.[74] Moreover, a finding of sexual interest could not be used as propensity evidence in a manner that was probative of the real issues at trial.[75]
(4)On a fair reading of the direction as a whole, the judge did not invite or permit the jury to engage in propensity reasoning based upon the other conduct evidence.[76] To the contrary, in the passage set out at [41] above, the judge instructed the jury that they must not engage in propensity reasoning.[77]
[71] Respondent's submissions [2].
[72] Appeal ts 21.
[73] Respondent's submissions [4]; appeal ts 24.
[74] Appeal ts 24, 29.
[75] Appeal ts 29.
[76] Respondent's submissions [4]; appeal ts 31.
[77] Appeal ts 25, 27, 30 - 31.
As to ground 1(b), because, contrary to the appellant's case, the other conduct evidence was not central to the State case, the judge's summing up of this evidence cannot be said to have been inadequate, in the sense of giving rise to a miscarriage of justice.[78]
Disposition
[78] Respondent's submissions [7].
In directing the jury, the judge must give the jury such warnings as may be called for by the circumstances of the particular case, including warnings against following impermissible paths of reasoning.[79] The judge must give a warning to the jury whenever a warning is necessary in order to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case.[80]
[79] Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 [49].
[80] Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, 330; Longman v The Queen [1989] HCA 60 (1989) 168 CLR 79, 86; The Queen v GW [2016] HCA 6; (2016) 258 CLR 108 [50]; Banksv The State of Western Australia [2018] WASCA 130 [42].
Evidence of uncharged acts, or other conduct, may be admitted under s 31A of the Evidence Act 1906 (WA), or under the common law, for one or more different purposes. It is of critical importance that the purpose(s) of the evidence be identified, and the jury directed accordingly.[81] Generally speaking, where evidence is admissible for one purpose, but inadmissible for another, the judge should direct the jury that they must not use the evidence for the purpose for which it is inadmissible if that use of the evidence would be adverse to the accused.[82] Where evidence is relevant and admissible for other reasons, but which incidentally discloses the accused's propensity, a warning to the jury not to engage in propensity reasoning is ordinarily required.[83]
[81] Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [64] - [65]; Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 [22]; AJE v The State of Western Australia [2012] WASCA 185 [54].
[82] Noto v The State of Western Australia [22] citing BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275, 305; Banks v The State of Western Australia [42].
[83] Noto v The State of Western Australia [22] citing KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221, 235.
As already noted, on appeal, the respondent disavows propensity reasoning, contending that it had no role in the State case. The respondent contends that:
(1)at trial, the prosecutor's remarks to the jury, considered as a whole, did not invite propensity reasoning; and
(2)in any event, the judge's summing up made clear to the jury that they must not engage in propensity reasoning.
Thus, the critical issue is whether, taking into account the prosecution address to the jury and the judge's summing up, there was a perceptible risk that the jury might use the other conduct evidence as a basis for propensity reasoning. Resolution of that issue requires close attention to the terms of the prosecutor's address and of the judge's summing up, and to the manner in which each might have been taken by the jury.
At trial, defence counsel did not make any complaint concerning the judge's discretion.[84] That counts against a conclusion that a direction concerning propensity evidence was required, but it is not decisive. As this court explained in Banks v The State of Western Australia:[85]
Whether the judge's failure to give a propensity warning occasioned a miscarriage of justice is to be assessed taking into account the summing up as a whole and the conduct of the parties [Castle v The Queen [2016] HCA 46; (2016) 259 CLR 449 [63]]. In this regard, the failure of the appellant to have complained of an inadequacy in the judge's directions is relevant. While that is not fatal to an appeal, it may indicate that, in the context of the atmosphere of the trial, it did not seem to those present that there was any reasonable ground for concern regarding the adequacy and fairness of the summing up [Mahmood v The State of Western Australia [2009] WASCA 220 [65]; Sayed v The Queen [2012] WASCA 17 [76]].
[84] ts 346.
[85] Banks v The State of Western Australia [43].
Notwithstanding the absence of complaint at trial by the appellant's counsel, for the reasons that follow, in our opinion, in light of the prosecutor's closing address and the judge's summing up, there was a perceptible risk that the jury might use the other conduct evidence as a basis for propensity reasoning.
The State relied on the other conduct evidence in more than one way, without always clearly delineating the different uses of that evidence which it invited.
The State invited the jury to use the other conduct evidence to assist in understanding the relationship between the appellant and the complainant, as part of the context in which the competing accounts of what occurred on the day in question were to be evaluated. An aspect of that was the State's submission to the jury that:
(1)based on the other conduct evidence, the jury should find that the complainant had repeatedly rebuffed the appellant's previous advances; and
(2)in those circumstances, it was unlikely that, on the day in question, she would have consented to his sexual activity, and to engaging in sexual intercourse with her.[86]
[86] ts of closings, 3 - 4, 6, 7.
In our view, nothing in this use of the other conduct evidence involves or invites propensity reasoning, or gives rise to a perceptible risk of such reasoning. If this were the only use invited by the State, we do not think a direction as to propensity reasoning would have been required. However, as explained below, the prosecutor also invited the jury to use the other conduct evidence in a different manner or, at the least, there was a perceptible risk that the jury would have taken the prosecutor to be doing so.
In closing, the prosecutor said to the jury that the other conduct 'shows … that the [appellant] was sexually attracted to the complainant'.[87] Shortly thereafter, in the passage set out at [30] above, the prosecutor submitted that, in summary, the prior conduct evidence showed a relationship between the appellant and the complainant of a power imbalance where the appellant is 'prepared to act on that power imbalance to satisfy his sexual attraction to the complainant'.[88]
[87] ts of closings, 4.
[88] ts of closings, 4.
In our view, that submission invites propensity reasoning, or, at the least, the jury may well have so interpreted it. This submission might have led the jury to reason that:
(1)the appellant has previously exhibited a sexual interest in the complainant;
(2)he has previously acted on that sexual interest, and has done so regardless of whether the complainant was a willing participant; and
(3)those circumstances make it more likely that the appellant acted in the manner alleged in the two counts, as supported by the evidence of the complainant.
In our view, the fact that, in a case primarily concerned with the issue of consent, there is room for doubting the cogency of such reasoning does not dispel the risk that the jury might have been led, by what the prosecutor said, to engage in it.
The respondent's submission that the prosecutor's reference to sexual interest went only to motive and did not invite propensity reasoning does not assist it. As Crennan and Kiefel JJ observed in BBH v The Queen,[89] in the present context there is little, if any, distinction between motive and propensity. Ordinarily at least, evidence of uncharged acts, or other conduct, led to show that the accused had a sexual interest in the complainant invites propensity reasoning.[90]
[89] BBH v The Queen [2012] HCA 9; (2012) 245 CLR 499 [153].
[90] HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 [242], [506]; BBH [52], [153]; AJE [56].
In the passage set out at [30], immediately following the submission referred to in [62] above, the prosecutor made a submission to the effect outlined at [60] above. He introduced this submission by referring to it as '[a]nother reason', it - meaning the other conduct evidence - is important. That language suggests two distinct uses of the other conduct evidence:
(1)that the appellant had previously acted on a sexual interest in the complainant; and
(2)to make more unlikely the giving of consent by the complainant.
In our view, the jury is likely to have interpreted what the prosecutor said in this manner.
For these reasons, in our opinion, the prosecutor's closing address to the jury gave rise to a real risk that the jury might use the other conduct evidence as a basis for propensity reasoning.
In our respectful opinion, the judge's direction did not eliminate, or materially reduce, that risk. The judge's direction concerning the manner in which the jury may use the other conduct evidence is set out at [40] above. The italicised portion of that passage identifies the State's reliance on the other conduct evidence as showing that the appellant had a sexual interest in the complainant, on which he acted in having sex with her without her consent.
Against this, the State submits that, in substance, the four paragraphs set out in the passage at [40], taken as a whole, invite a single use of the evidence - as context revealing the unlikelihood that the complainant would suddenly willingly participate in sexual acts with the appellant when she had rebuffed his previous advances.[91] We do not accept this submission. First, when any evidence is capable of giving rise to propensity reasoning, even if flawed or of debatable cogency, particular care is needed in directing the jury as to the use(s) to which they may, and may not, put the evidence. The passage of the judge's direction at [40] did not, with respect, make clear whether it referred to a single use of the evidence, or to two different potential uses of it. Secondly, as already explained, in our view, the jury were likely to have understood the prosecutor's closing address to invite two distinct uses of the evidence, one of which involved reasoning from a finding that the appellant had previously acted on his sexual interest in the complainant. There is a real risk, if not a high probability, that the jury would have understood the judge's reference to what the State had said in the same manner.
[91] Appeal ts 30.
Further, we do not accept the respondent's submission that, in the passage set out at [42] above, the judge effectively told the jury that they must not engage in propensity reasoning. In this passage, the judge told the jury that they must not go automatically from the other conduct evidence to a finding of guilt. Such a direction is conventionally and appropriately given in a case in which propensity reasoning is permissible. That is because, where propensity reasoning is permissible, the propensity evidence can be used as a circumstance making it more likely that the accused committed the charged act, but it cannot be used as a substitute for proof that the accused did so. By contrast, where, as here, propensity reasoning is impermissible, the jury must be told that they must not reason that acceptance of the prior conduct evidence makes it more likely that the accused committed the act(s) of which he is charged. Thus, there is a difference between telling the jury not to go automatically from propensity evidence to a conclusion of guilt, and telling the jury that propensity reasoning is impermissible.[92] The judge's direction in this case did not do the latter.
[92] See, for example, Banks [49].
For these reasons, in our respectful opinion, the judge's direction did not foreclose the perceptible risk, created by the prosecutor's closing address, that the jury would use the other conduct evidence as a basis for propensity reasoning. The respondent did not challenge the contention that, if the combined effect of the prosecutor's address and the judge's summing up permitted propensity reasoning, there was a miscarriage of justice.
The respondent did not rely on the proviso in the event ground 1 succeeded.
Consequently, for the above reasons, we would grant leave to appeal on ground 1 and uphold ground 1(a).
The success of ground 1(a) makes it unnecessary to determine ground 1(b) and ground 2. Nevertheless, as we would, independently of ground 1(a), also uphold the appeal on the basis of ground 2, it is appropriate to explain why that is so. Ground 1(b) need not be considered any further.
Ground 2 - the judge's direction as to recent complaint
Appellant's submissions
Ground 2 contends that the judge erred in law in directing the jury that they could use the evidence of complaint to show consistency of conduct in the assessment of the credibility and truthfulness of the complainant's evidence.
The appellant's submissions in support of ground 2 are to the following effect:
(1)The parties did not treat the evidence concerning the complainant's complaint as 'recent complaint'. Rather, the suggestion that it was a recent complaint arose only after closing addresses and immediately prior to the trial judge's directions.[93]
(2)The evidence of complaint was not recent complaint, for two reasons:
(a)first, taking into account all the circumstances, the complaint was not made at the earliest reasonable opportunity - the complainant had many opportunities to make an earlier complaint to Ms Dunne, or others, prior to 1 May 2017;[94] and
(b)secondly, the complaint was made in circumstances that meant it was not spontaneous.[95]
(3)Consequently, the judge erred in directing the jury that the evidence of complaint could be used to show consistency of conduct in its assessment of the credibility and truthfulness of the complainant's evidence.
(4)The judge's directions in this respect were significant, because the State's case turned on the credibility of the complainant, who was the only State witness on the critical issue of consent.[96]
Respondent's submissions
[93] Appellant's submissions [75] - [76].
[94] Appellant's submissions [78].
[95] Appellant's submissions [79].
[96] Appellant's submissions [82].
The respondent concedes that:[97]
(1)the complaint made by the complainant to Ms Dunne was not 'recent complaint';
(2)the judge ought not to have given a recent complaint direction; and
(3)consequently, a miscarriage of justice occurred.
[97] Respondent's submissions [8].
However, the respondent contends that there was no substantial miscarriage of justice. In support of that contention, the respondent makes the following submissions:
(1)As the appellant in effect concedes, the evidence of the complainant's complaint was admissible, it being relevant to a factual issue at trial. In particular, the complaint's evidence was relevant to the defence case that the time of her complaint, and the circumstances of its making, demonstrated that the complaint was false.[98]
(2)The judge's purpose in giving the direction was evidently to prevent the jury from engaging in impermissible reasoning, unfavourably to the appellant, by using evidence of the complaint as independent corroboration of the charged offences.[99] The judge warned the jury that the making of a complaint can never be proof that the event occurred, and that the complaint is not separate or additional or corroborative evidence.[100]
(3)The judge's direction could not have enhanced the credibility of the complainant in a manner as to deprive the appellant of the possibility of an acquittal.[101] Nowhere did the judge explicitly tell the jury that they could treat the making of the complaint as enhancing the complainant's credibility.[102] In this sense, the judge gave a 'very muted' recent complaint direction that was materially different from a conventional recent complaint direction.[103] The respondent submits that, at its highest, the direction allowed the jury to consider whether the complainant acted consistently with how the jury would expect a victim of sexual assault to act by making a complaint. The judge's direction did not prevent the jury from engaging in the process of reasoning urged by defence counsel at trial.[104]
(4)Further, the respondent emphasises that the jury was reminded of the appellant's argument at trial that the complainant's apparent distress at the time of making the complaint was not genuine, suggesting she was not a credible witness.[105]
(5)The jury would either have been satisfied beyond reasonable doubt that in making her complaint the complainant was honest, or the jury would not have been so satisfied. The judge's misdirection as to recent complaint 'would not have made one shred of difference' to the jury's determination of the critical question.[106]
Recent complaint - applicable legal principles
[98] Respondent's submissions [10] - [11].
[99] Respondent's submissions [13].
[100] Respondent's submissions [21].
[101] Respondent's submissions [19] - [20].
[102] Appeal ts 32 - 34.
[103] Appeal ts 34 - 35.
[104] Respondent's submissions [25].
[105] Respondent's submissions [23].
[106] Appeal ts 37, see also 38 - 39.
The relevant legal principles were summarised in SPW v The State of Western Australia.[107] In broad summary:
(1)The doctrine of recent complaint is an exception to the rule against prior consistent statements and the rule against hearsay.
(2)When evidence of a complaint is admissible as recent complaint, it is not admissible as evidence of the facts in issue. Rather, it is admissible to buttress the complainant's credit as a witness by demonstrating consistency of conduct.
(3)The notion of 'recent', in the context of recent complaint, refers to the temporal proximity between the occurrence of the alleged offence and the making of the complaint. A condition of admissibility is that the complaint was made at the first reasonable opportunity after the occurrence of the alleged offence. Whether that condition is satisfied involves an evaluative judgment, taking into account all the relevant facts and circumstances.
(4)Another condition of admissibility is that the complaint was made freely and voluntarily. It must not have been elicited by questioning that was, in substance, suggestive, inducing or leading.
Disposition
[107] SPW v The State of Western Australia [2012] WASCA 41 [49] - [58].
We accept the respondent's concession that, with respect, the judge erred in giving a recent complaint direction, as the complainant's complaint was not made at the first reasonable opportunity. We also accept the respondent's concession that a miscarriage of justice was thereby occasioned.
For the following reasons, we do not accept the respondent's contention that there was no substantial miscarriage of justice. In short, that is because:
(1)It is a necessary, although not sufficient, condition of the application of the proviso that the appellate court is persuaded that the evidence properly admitted at trial proved the accused's guilt beyond reasonable doubt.[108] If the appellate court is not so satisfied, there will always be a substantial miscarriage of justice.[109]
(2)In our opinion, this court cannot be satisfied that the appellant's guilt was proved beyond reasonable doubt at the trial because:
(a)The critical issues at trial turned on credibility issues involving the conflicting oral evidence of the complainant and the appellant.
(b)The erroneous direction related to the manner in which the jury were to assess the complainant's credit. It made available to the jury a mode of reasoning that would enhance the complainant's credibility when such reasoning was impermissible.
(c)That being so, the verdict cannot be taken to have demonstrated that guilt was proved to the criminal standard.
(d)Bearing in mind the natural limitations of proceeding only upon the record, in the circumstances of this case, this court is not otherwise in a position to resolve the conflict in oral evidence and so cannot conclude that the appellant's guilt was proved beyond reasonable doubt at trial.
[108] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [44]; Kalbasi v Western Australia [2018] HCA 7; (2018) 264 CLR 62 [12], [13]; Lane v The Queen [2018] HCA 28; (2018) 92 ALJR 689 [38]; OKS v Western Australia [2019] HCA 10; (2019) 93 ALJR 438 [31].
[109] Kalbasi [13].
There were two critical issues at the trial. The first was whether the episode of cunnilingus described by the complainant had occurred. The second was whether sexual intercourse between the complainant and the appellant occurred without the complainant's consent. On both issues, acceptance of the complainant's credibility was essential to the State case.
The appellant gave evidence at trial which, if accepted or if giving rise to a reasonable doubt, would lead to verdicts of acquittal. Thus, resolution of credibility issues surrounding conflicting oral testimony was critical to the jury's determination of their verdicts. As explained below, that presents a significant obstacle to the application by this court, proceeding only on the record, of the proviso.
The judge's erroneous direction related to the manner in which the jury were to evaluate the complainant's credibility. It is true, as the respondent emphasises, that the judge did not expressly say that the making of the complaint enhanced the complainant's credibility. However, the judge told the jury that they were entitled to take the complaint into account in considering her credibility and the truthfulness of her evidence.[110] In effect, the judge told the jury that they could take the making of the complaint as showing 'consistency of conduct'.[111] Her Honour told the jury that they were entitled to consider whether, by telling someone about it, the complainant had acted in a way which you might expect a woman in her position to act after the events of which she has given evidence.[112] In so directing the jury, the judge permitted the jury to treat the making of the complaint as showing consistency of conduct, by implication thereby enhancing the complainant's credibility.
[110] ts 335.
[111] ts 335.
[112] ts 335 - 336.
It is not to the point, as the respondent emphasises, that the judge did not explicitly say that the complainant's evidence could be used to enhance the complainant's credibility. In our view, a licence to do so was implicit in what the judge told the jury concerning the complaint evidence. At the least, there was a real risk that the jury would have so interpreted what the judge told them.
In this manner, the judge made available to the jury a mode of reasoning that would enhance the complainant's credibility, when such reasoning was unavailable and impermissible.
There are natural limitations on an appellate court's ability to determine whether the accused's guilt has been proved beyond reasonable doubt, particularly in cases in which the credibility of witnesses is of importance, because the appellate court has not seen and heard the witnesses give their evidence.[113] The respondent did not suggest that this was one of those extreme cases in which oral evidence contrary to the prosecution case can be rejected by the appellate court, based on the record, as obviously false.[114] Rather, the respondent contends, as outlined in [78](5) above, that the proviso applies because the erroneous direction had no effect on the verdict.
[113] Weiss [41]; Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469 [29], [32]; Kalbasi [15]; OKS [31]; Hofer v The Queen [2019] NSWCCA 244 [56].
[114] As to such cases, see Castle v the Queen [2016] HCA 46; (2016) 259 CLR 449 [66]; Hofer [58].
The respondent's submission summarised at [78](5) above cannot be accepted, for the reasons in [89] ‑ [91] below.
The submission invites attention to whether the misdirection would have made a difference to the jury's verdict, asserting that it would not have done so. On the prevailing majority view in the High Court, that would appear not to be the correct enquiry. The majority in Kalbasi observed that the appellate court's determination of whether the proviso applies does not turn 'on its estimate of the verdict that [might have been returned] had the error not occurred',[115] although they also said that in every proviso case the appellate court must consider the nature and effect of the error.[116] On this approach, the proper question is as explained in the following paragraph.
[115] Kalbasi [12], referring to Weiss [35]. Compare Kalbasi [62] ‑ [64] (Gageler J), [158] (Edelman J); Lane [55] (Gageler J); Collins v The Queen [2018] HCA 18; (2018) 92 ALJR 517 [41] (Edelman J).
[116] Kalbasi [15].
As already noted, in a case such as this, where the error does not relate to a fundamental error or presupposition of a trial, a critical question is whether, notwithstanding error, guilt was proved to the criminal standard on the admissible evidence at the trial that was had.[117] Because the error related to the jury's assessment of the credibility of the complainant, and because that was the critical issue in the trial, the verdict cannot be taken to demonstrate that guilt was proved to the criminal standard.[118] As noted in [87], the respondent does not otherwise suggest the credibility issues can be resolved by reference to the record. Consequently, there is no other basis on which it could be said that the appellant's guilt was proved to the criminal standard.
[117] Weiss [44]; Kalbasi [12]; OKS [31].
[118] Collins v The Queen [36]; OKS [29], [31]; see also Hofer [57].
In any event, to the extent that attention is directed to whether the misdirection might have affected the jury's verdict, the result is the same. It cannot be assumed, and has not been demonstrated, that the misdirection had no effect on the jury's verdict in circumstances where (i) the complainant's credibility was critical, (ii) the misdirection made available to the jury a mode of reasoning that enhanced her credibility and (iii) such reasoning was impermissible.[119]
[119] See, by analogy, OKS [31].
Consequently, in our opinion, in circumstances where the complainant's credibility was at the heart of the trial and where the appellant had given evidence to the contrary, 'the natural limitations of proceeding on the record'[120] mean that it has not been demonstrated that guilt was proved beyond reasonable doubt, so it cannot be said that no substantial miscarriage of justice occurred.
[120] OKS [31], citing Weiss [41].
For these reasons, ground 2 is made out.
Conclusion
For the above reasons, we would make the following orders:
(1)Leave to appeal on ground 1 is granted.
(2)The appeal is upheld.
(3)The appellant's convictions on 7 September 2018 are set aside.
(4)There be a retrial on both counts.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
Associate to the Honourable Justice Beech
8 NOVEMBER 2019
33
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