NSG v The State of Western Australia
[2019] WASCA 194
•4 DECEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NSG -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 194
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 24 OCTOBER 2019
DELIVERED : 4 DECEMBER 2019
FILE NO/S: CACR 204 of 2018
BETWEEN: NSG
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GETHING DCJ
File Number : IND 1698 of 2016
Catchwords:
Criminal law - Appeal against conviction - Sexual offences committed against daughter - Whether lay opinion evidence improperly admitted at trial - Whether trial judge failed to adequately direct the jury as to inferences - Whether non‑disclosure by prosecution or incompetence of defence counsel gave rise to a miscarriage of justice - Whether guilty verdicts are unreasonable and unsupported by the evidence - Turns on own facts
Legislation:
Criminal Code (WA), s 183, s 197
Criminal Appeals Act 2004 (WA), s 30(3)(a)
Result:
Application for an extension of time to appeal dismissed
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | B M Murray |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Gibbs v The State of Western Australia [2018] WASCA 68
Huggins v The State of Western Australia [2018] WASCA 61
Longman v The Queen (1989) 168 CLR 79
R v Apostilides (1984) 154 CLR 563
Wells v The State of Western Australia [2017] WASCA 27
JUDGMENT OF THE COURT:
Summary
On 25 July 2017, the appellant was convicted of sexual offences committed against his daughter between 1973 and 1983. On 1 September 2017, he was sentenced to a total effective sentence of 9 years' imprisonment, with eligibility for parole, backdated to 25 July 2017. On 19 October 2018, he filed an appeal notice against his convictions, seeking an extension of time in which to commence the appeal.
The appellant appeals on a number of grounds, none of which have any reasonable prospect of succeeding. There would, therefore, be no utility in extending the time for the appellant to commence the appeal. The extension application should be dismissed, leave to appeal should be refused on all grounds and the appeal should be dismissed.
Offences of which the appellant was convicted
The appellant was tried on an indictment containing 13 counts of offences against the same complainant.
The appellant was convicted of offences against s 183 and s 197 of the Criminal Code (WA) (the Code).
At material times, s 183 of the Code relevantly provided:
Any person who unlawfully and indecently deals with a child under the age of fourteen years or who incites such a child to deal with him or another is guilty of a crime …
The term 'deal with' includes doing any act which, if done without consent, would constitute an assault as hereinafter defined.
At material times, s 197 of the Code relevantly provided:
Any person who carnally knows a … girl who is, to his knowledge, his … daughter … is guilty of a crime …
It is immaterial that the carnal knowledge was had … with the consent of the … girl.
The appellant was convicted on 7 counts and acquitted of 6 counts. The offences of which he was convicted were as follows:
Count
Charge
Date of offending
Age of complainant
3
Indecent dealing with a child under 14 years, by penetrating her vagina with his finger (Code s 183)
Unknown b/n 1/1/75 and 31/12/75
9 - 10 years
6
Unlawful carnal knowledge of daughter (Code s 197)
Unknown b/n 9/3/73 and 31/12/77
7 - 12 years
7
Indecent dealing with a child under 14 years, by procuring her to masturbate him (Code s 183)
Unknown b/n 1/1/78 and 31/12/79
12 - 14 years
8
Indecent dealing with a child under 14 years, by penetrating her vagina with his finger (Code s 183)
Unknown b/n 1/1/78 and 31/12/79
12 - 14 years
9
Unlawful carnal knowledge of daughter (Code s 197)
Unknown b/n 1/1/78 and 31/12/79
12 - 14 years
10
Unlawful carnal knowledge of daughter (Code s 197)
Unknown b/n 13/1/78 and 31/12/79
12 - 14 years
13
Unlawful carnal knowledge of daughter (Code s 197)
Unknown b/n 1/1/83 and 30/4/83
17 years
Family relationships and residences
The complainant is the child of the appellant, who was married to her mother at the time of the offending. She was born in 1965.[1] The complainant had an older sister, to whom it will be convenient to refer as S, and a younger sister, to whom it will be convenient to refer as C.[2]
[1] Trial ts 104, 301.
[2] Trial ts 105 - 106, 300 - 301.
The appellant worked as a farmer throughout the alleged offending period. The family lived on a farm located between Bunbury and Brunswick Junction until about 1972. They then moved to a farm located between Collie and Darkan, where they lived until about 1976.[3]
[3] Trial ts 106 - 108, 302 - 303, 349 - 350. There was a period or periods when they stayed with the complainant's maternal grandparents in Collie.
The family moved to a house in Geraldton in about 1976, where the complainant went to high school until the third term of year 9. At this time, the appellant was farming a property near Mullewa and another property near Eneabba.[4] When they lived in Geraldton, the appellant owned a small plane, which was used to fly to the property near Mullewa.[5]
[4] Trial ts 109 - 110, 303, 307 - 308, 309 - 310, 351 - 352.
[5] Trial ts 132 - 133, 308 - 309, 352 - 353.
When the complainant was in year 9 at school, she, her mother and her sisters moved to a house in a Perth suburb. The appellant would come and go from this house. The complainant's mother began a relationship with a man it is convenient to refer to as H, and moved to live with him in Byford in September 1980. The complainant attended a high school in Perth where she completed year 12 in 1982. One of her friends at high school was a boy to whom it is convenient to refer as R. The complainant and her sister, S, moved to a unit in Como in 1983.[6]
[6] Trial ts 110 - 111, 148, 304 - 305, 353 - 354, 355 - 356.
The State's case
Complainant's evidence-in-chief
The complainant's evidence described the appellant's serious sexual abuse of her from 1968, when she was just under 3 years old, until 1983, when she was 17 years old.
The complainant gave evidence of the following specific events, which were the subject of counts of which the appellant was convicted:
(1)At the house on the farm located between Collie and Darkan, the complainant was required to clip, scrub and file the appellant's fingernails. On one occasion while she did so, the appellant put two fingers into the complainant's vagina (count 3).[7]
(2)When the complainant was about 9 years old, she was with the appellant in a shearing shed at the property between Collie and Darkan. The shearing shed was about 250 meters away from the house, where other family members were. The appellant pulled the complainant's pants down and sexually penetrated her vagina with his penis (count 6).[8]
(3)In 1979, the appellant would often make the complainant masturbate his partially exposed penis, the end of which was covered by a hanky, as they flew in the appellant's plane from Geraldton to the property near Mullewa. On the occasion the subject of the charge, there was no hanky and the appellant placed his hand over the complainant's hand on his penis and masturbated to ejaculation. This was the first occasion on which the complainant was aware that the appellant ejaculated (count 7).[9]
(4)On one occasion, the complainant and appellant were at the beach in Geraldton. They were in the water and the appellant had his finger in the complainant's vagina. At this time the complainant's sister, C, accidentally kicked the complainant as C was catching a wave, splitting the complainant's lip. The appellant was really angry that this had occurred (count 8).[10]
(5)On another occasion at the beach in Geraldton, the appellant was playing chasey with the complainant and her sisters. The complainant ran ahead of her sisters and was caught by the appellant. The appellant pulled down the complainant's shorts and bathers and sexually penetrated her vagina with his penis in the sand dunes (count 9).[11]
(6)One evening when the appellant and complainant were alone at the property near Mullewa, the complainant observed the appellant appearing to want to have sex. The complainant ran away and described the appellant 'hunting' her over a number of hours. He did not catch her, and eventually she was able to sneak back into her bedroom. However, the next day the complainant went and lay by the appellant as he was on a bed on the veranda of the homestead. The complainant said that she had just given up. The appellant tried to anally penetrate the complainant, but she guided his penis into her vagina instead (count 10).[12]
(7)The last time the appellant sexually penetrated the complainant's vagina was in her unit in Como in 1983. After the sexual activity ended, the complainant's friend, R, arrived and asked if something was going on as the complainant and appellant left the bedroom. The complainant did not answer him (count 13).[13]
[7] Trial ts 121 - 122.
[8] Trial ts 115 - 117.
[9] Trial ts 133 - 135.
[10] Trial ts 137.
[11] Trial ts 136 - 137.
[12] Trial ts 138 - 139, 145 - 147.
[13] Trial ts 148 - 149.
The complainant did not tell anyone about the sexual abuse at the time it occurred. She described non-sexual family violence committed by the appellant, including by pointing a gun at the complainant and her mother, and said that she was too scared to speak up to him.[14]
[14] Trial ts 119 - 120, 159.
The complainant also described her father regularly giving her beer and her drinking beer as a child.[15]
[15] Trial ts 117 - 118, 131 - 132, 147, 170.
The complainant confronted the appellant about the sexual abuse when she was about 19 or 20 years old, and he was staying at her unit. She yelled at him that he knew what he had done was wrong. The appellant got angry and pushed her onto the floor but did not say anything.[16]
[16] Trial ts 161, 162.
The first time the complainant told anyone about the sexual abuse was when she sought counselling in about 1992.[17]
[17] Trial ts 158.
The complainant reported the sexual offences to police in August 2015.[18]
Complainant's evidence under cross-examination
[18] Trial ts 106, 162.
In cross-examination, the complainant described her parents' relationship when she was a child as 'a terrible marriage', 'awful' and a 'really unhealthy relationship'.[19] She described arguments and periods where the appellant would not be present. By the time the complainant was in year 11, her mother and the appellant had separated. Her mother was living in Byford, in a relationship with H.[20]
[19] Trial ts 187, 191.
[20] Trial ts 191, 209 - 210.
The complainant accepted that she had maintained contact with the appellant when she was living as a young adult in various locations in the metropolitan area. The appellant would stay with the complainant on occasions, and at one time the complainant took a train to the goldfields and visited the appellant for three weeks. On another occasion, the appellant arranged for the complainant to travel to the Philippines, where she met a woman with whom the appellant was in a relationship. The incident the subject of count 13 was the appellant's last act of sexual abuse against her.[21]
[21] Trial ts 193 - 199.
The complainant also accepted that one of the last occasions she saw the appellant was as a young adult when she and the appellant argued over her attempt to use a Mercedes vehicle parked at the complainant's home.[22] The last time she saw the appellant was at a Christmas function, sometime in the seven years prior to trial, after her paternal grandfather had died.[23]
[22] Trial ts 200 - 201.
[23] Trial ts 213.
The complainant said that at the time she made her complaint to the police, her mother and the appellant had been in Family Court proceedings for a very long time. The complainant's mother was annoyed about the appellant not giving support for the complainant and her sisters, and had been demanding money and property from the appellant when they separated.[24]
[24] Trial ts 212, 215 - 216.
The complainant gave evidence that, in 2010 - 2012, she was treated for a very serious medical condition. The appellant telephoned her and they had one of the few conversations in the 5 - 6 years prior to trial that she had with the appellant. The complainant informed the appellant of her condition, and told him that she missed him and loved him. She explained that she had said those things because she thought she was going to die. The complainant accepted that she was in financial difficulty at this time, but could not recall whether or not she had specifically told the appellant this.[25]
[25] Trial ts 269 - 272.
The complainant said that she only told her mother about the sexual abuse after the appellant was arrested in 2016.[26]
[26] Trial ts 272 - 273.
The complainant accepted that there was a time when she was in a relationship with R when she had stolen money from him. She wanted to use the money to escape the country and start a new life, but had gambled it away.[27]
[27] Trial ts 273 - 274.
The complainant was cross-examined about the above incidents of sexual abuse, and other incidents relating to counts of which the appellant was acquitted. She maintained her account of those incidents.
Complainant's evidence in re-examination
In re-examination, in response to a question asked by the prosecutor, the complainant said that her going to the police had nothing to do with getting money. The prosecutor asked the complainant why she went to the police in 2015. The complainant said that she was getting calls from the appellant and her mother about their Family Court case, and could not believe that they were still fighting over money after divorcing when she was 17. She wanted it all to stop, and went to see a lawyer. The complainant told the lawyer about the sexual abuse, and the lawyer gave her some advice. The complainant went away and thought about the advice and, a couple of weeks later, went to the police.[28]
Evidence of DSC Day
[28] Trial ts 274 - 277.
Detective Senior Constable Day gave evidence to the effect that the complainant attended Fremantle Police Station on 16 August 2015.[29] The case was allocated to DSC Day on around 24 September 2015.[30] An interview was arranged for 3 December 2015, when the complainant had completed some exams, and a statement was obtained over several interviews.[31] The appellant was arrested at Perth Airport when he arrived from the Philippines on 9 March 2016.[32] The complainant was advised of his arrest and bail conditions at about that time.[33]
[29] Trial ts 287.
[30] Trial ts 288.
[31] Trial ts 283, 287.
[32] Trial ts 289 - 290.
[33] Trial ts 291 - 292.
A schedule of Landgate records showing ownership details of various properties was tendered through DSC Day.[34]
[34] Exhibit 9, Trial ts 285 - 286.
In cross-examination, DSC Day said that the appellant did not have a criminal record other than for a speeding offence for which he was fined $40.[35]
Evidence of the complainant's mother
[35] Trial ts 293.
The complainant's mother gave evidence that she married the appellant in January 1964, and was divorced from the appellant in March 1980.[36] She confirmed the birth dates of the complainant, S and C, and said that C, who was ill throughout her life, died in 2003.[37]
[36] Trial ts 300 - 301.
[37] Trial ts 300.
The complainant's mother gave evidence that, during their marriage, the appellant drank a lot and was violent, brutal and demanding. She described incidents of serious violence inflicted on her by the appellant, including in front of the children. The complainant's mother said that she could not recall seeing the appellant be violent towards the complainant.[38] Nor could she recall seeing the appellant give the complainant beer to drink while she was at school.[39]
[38] Trial ts 306 - 307.
[39] Trial ts 313 - 314, see also cross-examination at 317 - 318.
The complainant's mother gave evidence that there were court proceedings between her and the appellant after their divorce, which settled only shortly prior to the appellant's trial.[40]
[40] Trial ts 316 - 317.
The complainant's mother did not ever see the appellant doing anything of a sexual nature with the complainant. The complainant did not tell her mother that the appellant had done anything of a sexual nature. The complainant and her mother had never discussed the complainant making allegations of sexual misconduct in an attempt to get money from the appellant.[41]
[41] Trial ts 317.
In cross-examination, the complainant's mother said that she could not recall the appellant ever pointing a gun at her or the children.[42] Under cross-examination, the complainant's mother said, in effect, that the family law proceedings between her and the appellant had been going on since the mid 1980s and concluded with orders made in May 2016. The complainant's mother pursued the proceedings in order to get money for her and her children. The appellant had agreed to make payments in the 1980s, but made only one of the agreed payments. There were a number of times when the appellant did not attend court. The complainant's mother would contact the appellant demanding money while the proceedings were on foot.[43]
[42] Trial ts 319 - 320.
[43] Trial ts 320 - 321, 323 - 324, 332 - 334.
The complainant's mother could not recall alleging family violence in affidavits filed in the Family Court proceedings. She did not report it to police, and could not recall seeing the appellant be violent towards the children. The complainant's mother was aware of the appellant having affairs in the 1970s, and said that she just wanted to get away when she moved to Perth.[44]
[44] Trial ts 322 - 323.
The complainant's mother accepted in cross-examination that she first became aware of the charges against the appellant in May 2016, about the same time as the Family Court proceedings came to an end.[45]
[45] Trial ts 331.
In re-examination, the complainant's mother said that she never reported the family violence to police because she was too frightened. She did not stand up to the appellant because he was too violent, and could not be talked to when he had drunk alcohol.[46]
Evidence of R
[46] Trial ts 335.
R gave evidence to the effect that he was friends with the complainant at school, and their friendship continued after high school. He would sometimes drop by the complainant's Como unit when he was studying geology.[47]
[47] Trial ts 339.
In 1983, in late summer, R pulled up alongside the complainant's unit. He walked over to the unit. The door was open and he could see the complainant and the appellant coming out of a bedroom through the screen door. The complainant was a little out of breath, as if she had 'been rushing doing something'. The complainant came out first, with her father behind her.[48]
[48] Trial ts 340.
R asked what was going on, as it seemed a bit odd to him. He had not met the appellant before. The complainant 'kind of brushed off' this question, and said that she and her dad had been looking for an earring. The appellant stayed for about five minutes. The appellant then went upstairs and may have had a shower. Sometime later, when the appellant was not there, the complainant and R went to sit in the car outside the unit. R thought that the complainant was going to say something to him, but stopped.[49]
[49] Trial ts 341 - 342.
In cross-examination, R said that he had subsequently lived as a couple with, and was engaged to, the complainant but things had not worked out. He accepted that in his statement to police he had said 'it's a bit vague and hazy'.[50] R also said that he remembered seeing the appellant on another occasion at a house the complainant was at in Rivervale, and that the complainant had told him that the appellant would sometimes stay at the Como unit and sometimes contribute to the rent.[51]
[50] Trial ts 342 - 344.
[51] Trial ts 345 - 346.
The appellant's evidence at trial
The appellant elected to give evidence at trial. He said that he was 76 years old and had been a pensioner since he was 69 years old. At the time of trial, he generally lived in the Philippines with his de facto wife and a 5-year-old child. He was arrested for the charged offences at Perth Airport when he returned to visit his aged mother.[52] He was subject to bail conditions that he not contact the complainant and not leave Western Australia.[53]
[52] Trial ts 347 - 348.
[53] Trial ts 382.
The appellant denied ever engaging in any sexual activity with the complainant.[54] He said that the complainant had never accused him of sexually abusing her.[55]
[54] Trial ts 349.
[55] Trial ts 358 - 359.
The appellant's evidence was that his marriage was over by the time the complainant's mother and their daughters moved to Perth. He had been having an affair when the family was living in Geraldton. He sometimes visited the family in Perth, staying overnight on one or more occasions, to check on their welfare. He sometimes stayed with the complainant at her Como unit, 'basically' because he was helping her to pay the rent. He also gave the complainant money so that she could pay the rent at her subsequent residences.[56]
[56] Trial ts 353 - 357.
The appellant said that the complainant's mother commenced Family Court proceedings against him in which she sought money from him. The proceedings went continuously from the 1980s to 2016. During the time of these proceeding he was mostly living outside Australia, in the United Kingdom and the Philippines.[57] The appellant said that, in a telephone conversation in mid-2013, the complainant's mother threatened him that he would be very sorry if he did not pay up.[58]
[57] Trial ts 357 - 358.
[58] Trial ts 405 - 406.
The appellant did not have a criminal record in Australia, the Philippines or the United Kingdom, other than a $40 fine for speeding.[59]
[59] Trial ts 359 - 361.
The appellant denied the allegations that he drank to excess and inflicted family violence on the complainant's mother or the complainant,[60] except for one occasion when he assaulted the complainant's mother, which he was told led to her hospitalisation.[61]
[60] Trial ts 362 - 364, 369 - 370.
[61] Trial ts 369; see also his evidence in cross-examination at trial ts 421 - 423.
The appellant accepted that there were occasions when he and the complainant flew alone in his aircraft from Geraldton to the property near Mullewa. He denied ever allowing her to fly the plane, and gave evidence that the turbulence on the journey was such as to usually require him to fly with both hands. He denied sexual contact with the complainant on any trip.[62]
[62] Trial ts 383 - 387.
In Geraldton, the family home was near a popular public beach. The appellant accepted he would go to the beach with his daughters but denied any sexual contact with the complainant.[63]
[63] Trial ts 388 - 390.
The appellant gave evidence of the complainant staying with him for about 3 weeks at a location in the Goldfields in around 1989 or 1990.[64]
[64] Trial ts 399 - 400.
The appellant gave evidence of an occasion when the complainant took a Mercedes car without his permission. That was the last occasion he saw the complainant prior to trial, other than at C's funeral and a family Christmas occasion sometime in 2004 - 2006.[65]
[65] Trial ts 398 - 399, 401 - 403.
The appellant said that his last contact with the complainant before he was arrested was around 2013, when she telephoned him and told him about her medical condition and said that she missed him.[66]
[66] Trial ts 396 - 397.
The appellant essentially maintained this account in cross‑examination.
The appellant also adduced evidence from a person, conveniently referred to as M, who was said to have been present and involved in an incident where the complainant was digitally penetrated when she was 7 - 12 years of age. This incident was the subject of count 2 on the indictment, of which the appellant was acquitted. It is unnecessary to detail that witness' evidence, other than to note that he said the incident did not occur.
First ground of appeal: lay opinion evidence
The appellant's first ground of appeal is that the trial judge erred 'by allowing lay persons opinion to go unchecked before the jury when experts in flight and mind were obvious'.[67]
[67] Appellant's Case, par 18.
The first aspect of this ground relates to evidence which the complainant gave as to count 7, where she alleged that the appellant made her masturbate him while they were flying in the plane.[68] The appellant submits that the trial judge 'allowed the testimony of "lay persons" as though they were expert when in fact it was the mind of a child speaking nonsense about aircraft and flight'.[69] There is no merit to this submission. The complainant was not giving expert opinion evidence as to aviation, but was merely recounting the events which she experienced in the plane with the appellant.
[68] Trial ts 134 - 135, identified in the Appellant's Case par 40 - 41.
[69] Appellant's Case, par 40.
The second aspect of the ground submits that the trial judge should have ensured counsel considered 'the use of experts in underpinning the presumption of the mental state of witnesses when the indicators present'.[70] The appellant refers to a passage of the transcript where his trial counsel cross-examined the complainant about her serious medical condition. The appellant makes an assertion, unsupported by any evidence, that treatment for that condition 'is reported to affect the mind resulting in transposed memories by the complainant'.[71]
[70] Appellant's Case, par 42.
[71] Appellant's Case, par 42 - 43.
The second aspect of this ground is also without merit. No witness, qualified or otherwise, gave expert or psychiatric evidence in the trial. It was not the role of the trial judge to direct counsel as to the witnesses that they should call.[72] In any event, there is no evidence before this court which could support a contention that the complainant might have experienced 'transposed memories'.
[72] See R v Apostilides (1984) 154 CLR 563, 575.
Second ground of appeal: inferences directions
The appellant's second ground of appeal contends that the trial judge erred 'by failing to adequately direct the jury causing them to err in finding fact'.[73]
[73] Appellant's Case, par 44.
The appellant's submissions refer to the trial judge's directions as to the drawing of inferences. The trial judge directed the jury that they could not guess or speculate or look for theories that were not supported by the evidence, but could draw inferences from the facts. His Honour explained that an inference is a logical conclusion or deduction from other facts. He directed that the jury must bear in mind that the appellant is presumed to be innocent, and that the State bears the burden of proof beyond reasonable doubt, when considering an inference. The trial judge directed that, before drawing an inference against the appellant, the jury must be satisfied that it is the only rational and reasonable inference that can be drawn from the facts established by the evidence.[74]
[74] Trial ts 505 - 506.
The trial judge illustrated the process of drawing inferences with a factual example involving whether he might infer that a neighbour was home.[75] Since the appellant's submissions are based on this illustration, it is convenient to set it out in full:
Assume I'm at home one night and I want to speak to my neighbour whom I know well. I know that my neighbour has a fixed routine of going to bed at 10 pm. I telephone my neighbour at 8 pm. The phone rings for a couple of seconds and no one answers.
From that I might draw the conclusion that no one is at home. However, it's quite possible that someone is at home but my friend is busy and does not get to the phone in time to answer it and that is quite a reasonable inference. So for the purposes of a criminal trial I could not draw the inference from the fact that the phone wasn't answered that no one was at home because that's not the only inference that's reasonably available.
However, assume that after I've phoned my neighbour and there's been no answer I walk over to my neighbour's house. There's no car in the driveway where his car is normally parked. I knock loudly at the door and no one answers. There are no lights on inside the house. I cannot hear any noise coming from inside the house, but I know that my neighbour has a fixed routine of going to bed at 10 pm.
In those circumstances I could conclude that the only reasonable inference from my knowledge and the facts that I've observed is that no one is at home. On those facts there is no other rational or reasonable inference and I can draw that conclusion even though I have not physically been inside the house and searched every room and confirmed that no one is there.
[75] Trial ts 506.
The trial judge explained that in considering whether to draw an inference, the jury did not consider facts in isolation or on a piecemeal basis. Rather, the jury was to consider all the facts and circumstances as a whole to determine whether the particular inference adverse to the appellant was the only rational and reasonable inference the facts would enable them to draw.[76]
[76] Trial ts 506 - 507.
The appellant's submissions focus on the illustration referred to at [62] above. He contends that this illustration indicates that seven items are 'required to convert circumstantial and or inferential evidence into a findable fact'.[77] The appellant submits:[78]
In every instance where claims were on oath there is less than the requisite 7:1 ratio. The jury reached unreasonable verdicts because they failed to understand the judge's direction.
The appellant submits that the trial judge 'failed to appreciate the jury would struggle with the direction on circumstantial and inferential evidence leading in the unreasonable verdict'.[79]
[77] Appellant's Case, par 46.
[78] Appellant's Case, par 47.
[79] Appellant's Case, par 48.
The appellant's submissions have no merit. The trial judge's illustration clearly did not mandate a '7:1 ratio' before an inference could be drawn from facts established by the evidence. In any event, the State's case against the appellant did not require the drawing of an inference as to any element of the charged offences. Rather, the State's case was based on the direct evidence of the complainant. The fact that the complainant's evidence was uncorroborated did not preclude the jury from believing her evidence as to what occurred. Nor did it preclude the jury from being satisfied beyond reasonable doubt that the appellant had committed the offences of which he was convicted on the basis of that evidence.
There is no complaint made about any other aspect of the trial judge's directions.
Third ground of appeal: alleged prosecutorial non-disclosure
The appellant's third ground is that a miscarriage of justice occurred 'through the failure of the DPP to fully comply with its obligations to disclose all of the relevant evidence'.[80] The undisclosed evidence particularised in the appellant's submissions is:[81]
(1)the witness statement and recorded police interview of M.
(2)the witness statement and recorded police interview of H.
[80] Appellant's Case, par 20.
[81] Appellant's Case, par 54 - 55.
However, there is no evidence before this court that this or other relevant material, to the extent that it was in the possession of the prosecution, was not disclosed to the appellant. In any event, M was called as a witness by the appellant. There is no evidence before this court to suggest that the contents of any statement or recorded interview with H (who was not said to be present at the time of any of the offending) could have been material to any issue at trial. There is no evidentiary basis for the appellant's contention that a miscarriage of justice arose from a failure by the prosecution to comply with disclosure obligations.
Fourth ground of appeal: incompetence of counsel
The appellant's fourth ground of appeal is, in substance, that a miscarriage of justice arose through errors made by his trial counsel.[82] A number of alleged errors are identified in the appellant's written submissions.
[82] Appellant's Case, par 21.
The relevant general principles as to when a miscarriage of justice may arise through incompetent representation were recently summarised by this court in Huggins v The State of Western Australia.[83] We adopt that comprehensive analysis without repeating it, noting the following passage of the reasons in that case:[84]
An appellant who seeks to demonstrate that the conduct of his or her counsel caused a miscarriage of justice undertakes a heavy burden which is not easily discharged. This is a consequence of the adversarial nature of a criminal trial and the role played by counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel even if that was not in accordance with the wishes of the client. It is not a ground for setting aside a conviction that decisions made by counsel were made without or contrary to instructions or involved errors of judgment or even negligence. It is not the province of appellate courts to review the wisdom or prudence of the conduct of a trial by trial counsel. For example, an apparently rational decision by trial counsel as to what evidence to call or not to call does not give rise to a miscarriage of justice simply because an appellate court thinks it worked to the probable disadvantage of the appellant. (citations omitted)
[83] Huggins v The State of Western Australia [2018] WASCA 61 [375] - [401].
[84] Huggins [376].
None of the matters raised by the appellant even arguably establish a miscarriage of justice from trial counsel's conduct.
A number of the complaints lack any evidentiary foundation:
(1)The appellant asserts that his trial counsel refused his requests to call expert evidence of a flight instructor about matters concerning the flight of light aircraft, to call evidence about 'transposed memories' of the complainant or to call the woman who was his de facto wife at the time of trial.[85] However, there is no evidence before this court as to the instructions which the appellant gave in relation to those matters, or what relevant evidence might have been adduced at trial if additional witnesses had been called.
(2)The appellant contends that his trial counsel failed to cross‑examine witnesses about inconsistencies between their evidence and statements made to police.[86] However, there is no evidence before us as to the existence of material prior inconsistent statements, or the instructions which the appellant's trial counsel had in relation to those matters.
[85] Appellant's Case, par 59, 65, 67, 68.
[86] Appellant's Case, par 61, 69.
The appellant complains that his trial counsel did not ask witnesses if they had been told or asked to say anything in their evidence.[87] However, there is no material before this court to suggest that the answers to those questions might have assisted the appellant's case. In the absence of any forensic basis for thinking that witnesses had been coached, it was a rational forensic decision not to ask questions of this kind.
[87] Appellant's Case, par 61, 64.
The appellant complains that his trial counsel failed to request a voir dire in relation to his recorded interview with police.[88] However, the interview was not played to the jury, so there was no occasion for a ruling about its admissibility. To the extent that the appellant's complaint is that the recorded interview was not played, there is nothing before this court to suggest that it contained any admissible material.
[88] Appellant's Case, par 63.
Further, nothing in our review of the transcript suggests that the appellant's trial counsel failed to effectively put the appellant's defence to the jury.
Fifth ground of appeal: unreasonable verdict
The appellant's fifth ground of appeal in effect contends that the guilty verdicts were unreasonable and unsupported by the evidence.[89]
[89] Appellant's Case, par 22 - 24.
Section 30(3)(a) of the Criminal Appeals Act 2004 (WA) requires this court to allow an appeal against conviction if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.
The general principles governing an appeal on this ground are well established.[90] In summary:
(1)The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
(2)The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(3)That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
(4)In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses.
(5)A doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
(6)If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict.
(7)The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act is a serious step, not to be taken without regard to the advantage enjoyed by the jury over an appellate court which has not seen or heard the witnesses called at trial.
[90] See Wells v The State of Western Australia [2017] WASCA 27 [13] and cases there cited; Gibbs v The State of Western Australia [2018] WASCA 68 [28] - [34].
There is no merit to this ground of appeal. As with many cases where historical sexual offending against children is alleged, there were no independent witnesses to the offences of which the appellant was convicted. The complainant gave evidence which, if accepted, clearly established the elements of the offences of which the appellant was convicted. Her evidence was uncorroborated, save to the limited extent that her account of the events immediately following the conduct the subject of count 13 was supported by R's evidence. The appellant gave evidence denying that any of the conduct occurred. However, the mere fact that the prosecution case depended on acceptance of the complainant's uncorroborated evidence, which was disputed by the appellant, does not mandate a conclusion that the jury must have entertained a reasonable doubt about the appellant's guilt.
The jury were required to find the appellant not guilty of a charge if they believed his evidence that he did not engage in the charged sexual conduct or thought there was a reasonable possibility that his evidence was true or if they found that his or any other evidence gave rise to a reasonable doubt as to whether he engaged in that conduct. In order to find the appellant guilty of a count, it was necessary for the jury to reject the appellant's evidence that he did not engage in the charged conduct, to be satisfied beyond reasonable doubt that the complainant's account was true and reliable and to be satisfied beyond reasonable doubt on the basis of her evidence that he did engage in the charged conduct. The jury's guilty verdicts turned on their assessment of the appellant's and complainant's evidence about incidents which were alleged to have occurred in the absence of any other witnesses.
There was nothing about the complainant's evidence of the conduct which formed the basis of the counts of which the appellant was convicted that was inherently improbable or inconsistent with other evidence. The long delay between the alleged offending and the complaint to police meant that it was necessary for the jury to scrutinize her evidence with great care, cognizant of the forensic disadvantage to the appellant consequent upon that delay.[91] However, neither the character nor content of the complainant's evidence or any other evidence was such as to preclude the jury from believing the complainant's evidence in relation to those counts.
[91] Longman v The Queen (1989) 168 CLR 79.
A significant part of the appellant's case at trial was that the complainant had invented the allegations in order to gain some advantage for her mother in the long-running Family Court proceedings. It was open to the jury to reject that suggestion, which was denied by the complainant and not supported by any evidence other than the appellant's evidence of a vague threat made by the complainant's mother years before the complainant went to the police. The complainant's mother denied ever having a discussion with the complainant about alleging sexual offences in order to get money from the appellant.
The fact that the complainant did not say anything about the offending at the time it occurred, and did not go to police until decades thereafter, is not an uncommon reaction of victims of serious child sexual abuse. There was evidence that the appellant was a violent and domineering parent and that, combined with the normalisation of sexual conduct which was said to have begun at a very young age and a subsequent sense of shame as the complainant came to appreciate the conduct was wrong, is readily capable of explaining why she did not complain at the time.
While the complainant maintained some contact with the appellant after the commission of the alleged offences such contact, bearing in mind the familial relationship and the circumstances in which it occurred, did not undermine the credibility of her allegations.
Nor was the character or content of the appellant's evidence or the other evidence at trial such as to preclude the jury from rejecting his evidence.
In our view, it was open to the jury to reject the appellant's evidence, to accept the truth and accuracy of the complainant's evidence beyond reasonable doubt and to be satisfied beyond reasonable doubt on the basis of the complainant's evidence that the appellant committed the offences of which he was convicted. We are not persuaded that the jury must have had a reasonable doubt about the appellant's guilt of those offences. In the present case, where the issues were contested on credibility grounds, the jury had a significant advantage over this court as a result of having observed the complainant and the appellant give their evidence. This court faces considerable limitations in determining, from a review of the transcript, a question which turns on the assessment of the credibility and reliability of witnesses giving competing accounts of events. Recognising those limitations, our review of the evidence does not lead us to doubt the correctness of any of the jury's guilty verdicts. Even if we had experienced some doubt about the appellant's guilt, the jury's advantage in seeing and hearing the evidence would be capable of resolving that doubt. Having reviewed and assessed the whole of the evidence admissible against the appellant at his trial, and paying full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, we are not satisfied that it would be dangerous to permit the verdicts of guilty to stand, or that there is a significant possibility that an innocent person has been convicted.
Orders
For the above reasons, none of the appellant's grounds of appeal have any reasonable prospect of succeeding. There would be no utility in extending the time for the appellant to appeal. The following orders should be made in the appeal:
(1)The application for an extension of time to appeal is dismissed.
(2)Leave to appeal is refused on all grounds of appeal.
(3)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZMM
Research Associate/Orderly to the Honourable Justice Mitchell4 DECEMBER 2019
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