Nth v The State of Western Australia
[2020] WASCA 22
•27 FEBRUARY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NTH -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 22
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 18 DECEMBER 2019
DELIVERED : 27 FEBRUARY 2020
FILE NO/S: CACR 219 of 2018
BETWEEN: NTH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S: CACR 220 of 2018
BETWEEN: NTH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: HERRON DCJ
File Number : IND ALB 14 of 2017
Catchwords:
Criminal law - Appeal against conviction - Multiple counts of indecent dealing with a child - Where appellant convicted of some counts and acquitted of other counts - Whether verdicts factually inconsistent - Whether trial judge erred in failing to discharge juror who was overheard making a comment to another juror
Evidence - Propensity evidence - Where State relied on appellant's prior convictions as establishing a sexual interest - Whether jury required to be satisfied of sexual interest beyond reasonable doubt - Whether prior convictions had significant probative value in proof of all charged offences
Criminal law and sentencing - Express error - Whether sentencing judge characterised the appellant's reason for ceasing offending as an aggravating factor - Whether open to sentencing judge to be satisfied beyond reasonable doubt of reason for ceasing offending
Legislation:
Evidence Act 1906 (WA), s 31A
Result:
On the conviction appeal:
Leave to appeal on grounds 1 - 4 refused
Leave to appeal on ground 5 granted
Appeal dismissed
On the sentence appeal:
Leave to appeal on ground 2 granted
Appeal upheld
Appellant resentenced to 7 years 8 months' imprisonment
Category: B
Representation:
CACR 219 of 2018
Counsel:
| Appellant | : | T F Percy QC & A Mundy |
| Respondent | : | J A Scholz |
Solicitors:
| Appellant | : | Chambers Legal |
| Respondent | : | Director Of Public Prosecutions (WA) |
CACR 220 of 2018
Counsel:
| Appellant | : | T F Percy QC & A Mundy |
| Respondent | : | J A Scholz |
Solicitors:
| Appellant | : | Chambers Legal |
| Respondent | : | Director Of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
AJE v The State of Western Australia [2012] WASCA 185; (2012) 225 A Crim R 242
Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427
DPJB v The State of Western Australia [2010] WASCA 12
Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
Haruna v The Queen [2013] WASCA 170; (2013) 278 FLR 194
Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Law v The Queen [2019] WASCA 81
LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178
Lilley v The State of Western Australia [2019] WASCA 164
MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
PIM v The State of Western Australia [2009] WASCA 131; (2009) 40 WAR 489
R v Bauer (a pseudonym) [2018] HCA 40; (2018) 92 ALJR 846
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
The State of Western Australia v Jackson [2019] WASCA 118
The State of Western Australia v Shephard [2018] WASCA 140
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41
TABLE OF CONTENTS
Introduction
The State case at trial
The defence case at trial
The judge's directions to the jury
The verdicts
Conviction appeal: grounds of appeal
Grounds 1 and 2: inconsistent verdicts
The evidence
Counts 8 - 9: offending against DB
Counts 13 - 21: offending against RN
Ground 1: the appellant's submissions
Ground 2: the appellant's submissions
Legal principles
Ground 1: disposition
Ground 2: disposition
Ground 3: failure to discharge or question juror
The course of the trial
The appellant's submissions
Legal principles
Disposition
Ground 4: standard of proof for propensity evidence
Ground 5: were the 1978 convictions admissible in relation to all counts?
The appellant's submissions
Legal principles
Disposition
Conclusion on the conviction appeal
Sentence appeal: introduction
The facts found by the judge
Personal circumstances
Victim impact
Sentencing remarks
Grounds of appeal
Ground 2: the appellant's submissions
Ground 2: the respondent's submissions
Ground 2: disposition
Resentencing
Conclusion
JUDGMENT OF THE COURT:
Introduction
The appellant was tried on 18 counts of unlawfully and indecently dealing with a child under the age of 14 years and 5 counts of unlawfully and indecently dealing with a child under the age of 13 years. These 23 counts involved eight complainants. He was convicted of 12 counts, including at least one relating to each complainant, and acquitted of the other 11 counts.
The eight complainants were all children of friends of the appellant. The offending was alleged to have occurred over the period from 1970 to 1987. Each of the complainants gave evidence.
The appellant was sentenced to a total effective sentence of 8 years 8 months' imprisonment.
The appellant appeals against both conviction and sentence.
He advances five grounds of appeal in his appeal against conviction. Grounds 1 and 2 assert that the convictions on particular counts are inconsistent with the acquittals on other counts involving the same complainant. Ground 3 contends that a miscarriage of justice arose from the judge's failure to discharge a juror who had been overheard to make a remark during a break in the trial. Grounds 4 and 5 complain of aspects of the trial judge's direction as to propensity evidence. The propensity evidence, led by the State, was in the form of the appellant's previous convictions for offences of unlawful and indecent dealing with two of the complainants the subject of these charges. For the reasons that follow, in our opinion, none of the grounds has been made out.
The appellant advances four grounds of appeal in his appeal against sentence. In our respectful opinion, the appellant has demonstrated that the judge erred in finding: (1) that the appellant only ceased offending because he no longer had the opportunity to do so; and (2) that this fact was an aggravating factor. That error requires this court to resentence the appellant on all counts. Consequently, it is not necessary to determine the other grounds of appeal. We would resentence the appellant to a total effective sentence of 7 years 8 months' imprisonment.
The State case at trial
The State case was that the appellant unlawfully and indecently dealt with eight different children, all of whom were children of the appellant's friends. The appellant lived with his wife and two daughters in Albany. Five of the children were daughters of members of the appellant's spearfishing group, whose families often went on camping trips to places around Albany. Some of the offences were alleged to have been committed on such camping trips, while others were alleged to have been committed in Albany in the home of either the appellant or one of his friends. The offending was alleged to have spanned a total period of about 17 years, from 1970 to 1987.
It is convenient to outline the State case on each count of which the appellant was convicted, to provide context for the consideration of ground 5 concerning the use of the appellant's previous convictions as propensity evidence.
Count 5 involved JD. On her evidence, this was the last occasion on which the appellant touched her. The offence was alleged to have been committed between 5 October 1973 and 5 October 1974, when JD was 12 years old. The appellant was walking along a beach near Albany with JD and some other children. He was entertaining the children with some games involving wrestling, tumbling and piggybacking. At one point, the appellant fell on top of JD, pinned her arms down, put his hand on her vagina and rubbed her vagina on top of her clothing.[1] JD's evidence was that while he was rubbing her vagina he was doing 'sexual type body movements', being 'whole body simulated movements'.[2] The incident was witnessed by LN, who described the appellant 'dry humping' JD.[3]
[1] ts 133, 151 - 152, 227 - 229.
[2] ts 151.
[3] ts 133, 246 - 247, 250.
Counts 6 and 7 involved DH. The offences were alleged to have been committed, consistently with DH's evidence, between 14 March 1975 and 14 March 1978, when DH was between 9 and 11 years old. In relation to count 6, the appellant went to DH's place to collect his daughter from Brownies. Before taking his daughter home, the appellant gave DH a ride on his motorbike. He stopped the bike under a tree near the water pipeline on Mount Clarence and moved DH into a position where she was facing him on the motorbike. He pulled her underpants down and looked at her vagina.[4] In relation to count 7, DH was riding the appellant's four-wheeled Odyssey beach buggy at a beach near Albany, sitting between the appellant's legs. DH was steering the buggy. The appellant moved his hands from DH's waist to her vagina, on top of her clothing.[5]
[4] ts 134, 322 - 323, 330 - 331.
[5] ts 134, 321 - 322.
Count 9 involved DB. The offence was alleged to have been committed between 23 May 1976 and 23 May 1979, when DB was between 7 and 9 years old. The incident happened on a camping trip when DB was riding between the appellant's legs on the Odyssey beach buggy. She was steering the buggy. The appellant put his hands inside DB's underwear and inside her vagina.[6]
[6] ts 135, 355 - 357, 373.
Count 10 involved LN. The offence was alleged to have been committed between 20 November 1971 and 20 November 1973, when LN was 7 or 8 years old. LN gave evidence that she was about 8 years old at the time.[7] During a camping trip, LN was riding with the appellant on the appellant's motorbike. He rubbed LN's vagina on the outside of her clothing.[8]
[7] ts 243.
[8] ts 135, 243 - 245, 248 - 249.
Counts 11 and 12 involved MB. Both offences were alleged to have occurred between 17 August and 31 October 1976, when the appellant was performing electrical work at MB's parents' house. MB was 10 years old at the time. In relation to count 11, while the appellant was working in the garage, MB went to say hello to him. He put his hands inside her underwear, touched her vagina and told her not to tell anyone.[9] Count 12 happened a few days later. MB was in her bedroom playing the piano. The appellant came into the room and stood behind her. He put his hands on her neck and shoulders, then moved them down the front of her body, stopping at her waist.[10]
[9] ts 135 - 136, 385 - 386.
[10] ts 136, 387.
The incident the subject of counts 18, 19 and 21, involving RN, occurred when RN was at home in the swimming pool. The offences were alleged to have occurred between 10 July 1978 and 10 July 1980, when RN was 12 or 13 years old. When the incident occurred, RN's parents were not home. The appellant went into the pool and sat next to her on the steps. He touched her vagina beneath her bathers (count 18), made her masturbate his penis (count 19) and inserted a finger into her vagina (count 21).[11]
[11] ts 137, 409 - 412, 431 - 432.
Count 22 involved CM. The offence was alleged to have occurred between 6 January 1981 and 6 January 1982, when CM was 9 years old. The incident occurred when CM and her family were on a camping trip near Shark Bay with the appellant's family. After finding CM alone near a rock pool feeding the fish, the appellant asked CM what she was wearing underneath her clothing. He proceeded to touch her chest and rub and play with her nipple.[12]
[12] ts 137, 291 - 294, 304.
Count 23 involved KD. The offence occurred between 7 February 1986 and 7 February 1987, when KD was 8 years old. KD was on a camping trip at Warroora Station, near Ningaloo Reef. While taking KD on a motorbike ride over sand dunes to dispose of rubbish, the appellant put his hands into her pants and touched her vagina beneath her underwear.[13]
[13] ts 137, 447 - 450.
The State case relied primarily upon the oral evidence of each of the complainants. However, there was also corroborative evidence in relation to one count (namely count 5), and evidence of occasion and opportunity in relation to some other counts. Further, in relation to all counts, the State relied, in the manner explained below, on the appellant's prior convictions of unlawful and indecent dealing against two of the complainants, DH and DB. Further, it was the State case that, and the judge directed the jury that, if any count were proved beyond reasonable doubt, the conduct the subject of that count was cross‑admissible as propensity evidence on the other counts.
The appellant made the following admissions under s 32 of the Evidence Act 1906 (WA) as to his two prior convictions:[14]
[14] Exhibit 13.
1.On 7 July 1978, [the appellant] was convicted following his pleas of guilty in the Children's Court at Albany to two charges of indecent dealing with a child under the age of 14 years.
2.The facts for those offences were as follows:
1.On 24 June 1978, the complainant, [DB], aged 9 years, was with the [appellant] at Mount Clarence, Albany, on motorbikes, with the permission of parents as all parties know each other. They then returned to the [appellant's] home where he later, with the complainant, put the bikes in the shed at the rear of the home. The complainant was sitting between his knees on the bike and the [appellant] unzipped the complainant's jeans, placed his hand beneath her jeans and underpants and felt her around the vaginal area. The [appellant] then heard his daughter approach and as a result pulled the complainant's zip up and they both left the shed. When interviewed he admitted the offence and stated he was under a doctor's care for his nerves.
2.Between 1 September and 31 December 1977, the [appellant] and the complainant, [DH], aged 12 years, were at Torbay Beach west of Albany. The [appellant] took the complainant for a ride on a trail bike along the beach. About two miles away from the others, he rode up a bush track to a dead end and put his hand between the complainant's legs in the vaginal region after undoing the zip on the jeans she was wearing. The complainant protested, and the [appellant] ceased his actions. When interviewed the [appellant] admitted the offence.
3.The court dismissed the charges on a recommendation that the [appellant] seek psychiatric help.
We will refer to these convictions as the 1978 convictions.
The State case was that the 1978 convictions demonstrated the appellant's tendency to be sexually interested in, or attracted to, young girls who were known to him through his friendships with their parents, and his willingness to act upon that sexual interest by offending against them in a sexual manner whenever circumstances and opportunity allowed him to do so.[15] The State case was that if the jury were satisfied of this sexual interest, they might consider that it was more likely that what a complainant was saying happened to her on another occasion did in fact happen.[16]
[15] ts 130, 597; ts of closings 3, 4, 17, 23.
[16] ts 130; ts of closings 4.
Ground 5 challenges the use of the 1978 convictions in this manner, contending that these convictions had significant probative value in relation to only some of the offences, whereas the State invited, and the judge permitted, the jury to use them in relation to all of the various offences.
The defence case at trial
The appellant did not give or call any evidence at trial. His case was that none of the incidents occurred.[17] The jury could not be satisfied beyond reasonable doubt as to the accuracy, truthfulness and credibility of each of the complainants, particularly taking into account the significant period of time that had elapsed since the incidents were alleged to have occurred.[18] His case was that the State case rose no higher than one of bare allegation.[19]
[17] ts 139, 627.
[18] ts 627; ts of closings 36.
[19] ts 139 - 140, 142, 144; ts of closings 25, 44, 46.
The appellant's case was that the complainants were motivated to make false allegations against him because they wanted to make claims of financial compensation. He pointed to a Facebook group of which the complainants were all members. He said their evidence was contaminated and not independent of each other.[20]
[20] ts 142 - 143, 627 - 628; ts of closings 28, 33 - 34, 35.
In relation to DH and DB, the appellant's case was that it was implausible that they would not tell the police about the events the subject of counts 6 - 9 when they reported the offending the subject of the 1978 convictions.[21]
[21] ts 628; ts of closings 25.
More generally, the appellant's case was that it was implausible that the appellant would have offended in open public areas where there was a risk a member of the public might see what he was doing. In relation to those incidents alleged to have occurred in private homes, it was implausible that the appellant would have offended when there was a risk that someone would walk in or find out what was happening or hear what was happening.[22]
[22] ts 628.
The judge's directions to the jury
The appellant complains about the judge's directions as to the 1978 convictions. He also asserts inconsistent verdicts in relation to the counts in respect of which DB and RN were the complainants. The appellant's grounds of appeal make no other complaints as to the judge's directions. In light of this, it is only necessary to detail limited aspects of the judge's careful and comprehensive directions; other parts of the directions need only be briefly mentioned.
The judge described the main issues in the trial as being whether:[23]
(1)the jury were satisfied beyond reasonable doubt that the events described by each of the complainants happened;
(2)the jury were satisfied beyond reasonable doubt as to the truthfulness, accuracy and reliability of the evidence of each of the complainants; and
(3)given the delay in reporting the allegations, the memory of what each complainant said happened to her many years ago when she was a child was reliable and credible, or fallible or false.
[23] ts 561.
The judge gave conventional directions as to the jury's role as fact-finder, how they might assess evidence including questions of credibility and reliability, the onus and standard of proof, the presumption of innocence, the appellant's right to silence and the drawing of inferences.[24]
[24] ts 561 - 567, 624 - 625, 629.
The judge told the jury, on a number of occasions, that they needed to carefully scrutinise the evidence of each of the complainants.[25]
[25] ts 563, 584, 592, 593, 626, 629.
His Honour said that they may accept part of a witness's evidence and reject other parts of that witness's evidence.[26] The judge also told the jury that they needed to look at each charge separately, their verdicts did not have to be the same on each charge, and if they found the appellant guilty on one charge it did not follow that he was guilty on another charge.[27]
[26] ts 563, 604.
[27] ts 564, 571, 600, 603, 604.
His Honour explained the elements of the offence of unlawful and indecent dealing with a child under the age of 13 years - the offence charged on each of counts 1 to 5 - before explaining the State and defence cases in respect of those counts.[28]
[28] ts 572 - 577.
The judge then explained the elements of the offence of unlawful and indecent dealing with a child under the age of 14 years - the offence charged on each of counts 6 to 23 - before explaining the State and defence cases in respect of those counts.[29] Relevantly, his Honour explained the State case in relation to the counts in respect of which DB and RN were the complainants (counts 8 ‑ 9 and 13 ‑ 21, respectively) as follows:[30]
[29] ts 577 - 582.
[30] ts 580, 581 - 582.
In relation to counts 8 and 9, the allegations concerning [DB], the younger sister of [DH], the State alleges the incident, the subject of count 8, occurred when her parents went to Perth for a Roger Whittaker concert and she stayed at the [appellant's] house.
She stayed in the study which had a set of bunk beds. The [appellant] positioned her across the bunks and rubbed his penis on her vagina. She said she couldn't recall what age she was at the time but might have been eight or nine or seven. [The appellant's] penis was erect.
In relation to count 9, [DB] said the incident occurred when she was riding the Odyssey bike with [the appellant] when their families were camping. She was steering the bike, positioned in between the [appellant's] legs, who was sitting behind her. There was a car in front of them, with the other kids in the car. The [appellant] put his hands inside her underwear and inserted a finger inside her vagina.
…
I now turn to explain the State case in relation to counts 13 to 21, the counts involving [RN] ... It is the State case that [RN's] parents were friends with [the appellant] and his wife. [RN's] father was also a business partner with [the appellant]. The families often socialised together and went camping with each other.
[The appellant's wife's] eldest daughter, [S], was the same age as [RN] and they were friends with each other. [RN] said the first time she remembered the [appellant] offending against her was when she was at the [appellant's] house, playing pool with [S], in a downstairs area under the house. There were some other girls there but she couldn't remember who they were.
As she was taking a shot, the [appellant] came up behind her and pushed against her and put his hands around the front of her and touched her vagina. She can't remember whether it was on the top of or underneath her clothing. He rubbed her vagina with his hand and felt something hard pushing in to her. That is the incident, the subject of counts 13 and 14.
The next incident she spoke about, which is the subject of counts 15 and 16, occurred in an office at the end of the house. She said she recalled sitting on a bed or a couch and the [appellant] was sitting next to her. She would have been around nine, 10 or eight. She remembered being in the room but now [sic] how she got in there. The [appellant] touched her vagina and … made her touch his penis which was erect. He touched [RN's] vagina, inside her pants and put her hand on his penis, on the top of his clothing.
The next incident occurred on a camping trip to Walpole when she was about 12 or 13. Everybody was staying in a chalet. There were four single beds out the back where the children were sleeping, and everyone was in that room. She was beneath the blankets while her mother and father were sitting in the room. The [appellant] sat on her bed and touched her vagina beneath her clothing. That is the incident the subject of count 17.
The last incident about which [RN] gave evidence is the subject of counts 18 to 21. It's the State's case that the incident occurred at [RN's] house when she was in the swimming pool. Her parents weren't home at the time. Her brother may have been at home but she couldn't recall where she [sic] was.
[RN] said she remembered the [appellant] coming into the pool, and they were sitting on the steps together in the shallow end. The [appellant] touched her vagina and inserted a finger into her vagina, which hurt her. He pulled his penis out, which was erect, and put it in her mouth, and grabbed and pushed her head. He also took [RN's] hand and put it on his penis.
This is the only time [RN] said that the [appellant] put his penis into her mouth. She also said that although he digitally penetrated her on other occasions, it hadn't hurt her like it did this time. The offending stopped when [RN's] brother called out to her.
It is the State case that [the appellant] also offended against [RN] on a trip the family took to Bali when [RN] was 13 or 14. She was in the swimming pool and had her period. [The appellant] approached her in the pool and touched her vagina and then stopped. This was the last time the State says the [appellant] offended against [RN]. The [appellant] is not charged in relation to that offending.
The judge gave a careful and detailed Longman direction, about which no complaint is, or could reasonably be, made.[31] In the course of that direction, his Honour specifically referred to counts relating to DB and RN of which the appellant was ultimately acquitted.
[31] ts 584 - 593.
In relation to count 8, involving DB, his Honour said:[32]
During his record of interview, [the appellant] often said the matters police were questioning him about happened too long ago for him to remember. For example, he's no longer able to remember whether [DB] stayed with him when her parents went to a Roger Whittaker concert in Perth.
Therefore, the [appellant] has been denied the opportunity to confirm exactly where he was during those periods or locate witnesses. Because of the passage of time, persons who may have been called as defence witnesses are no longer available, or they might be deceased, or because they can't be identified.
[32] ts 591.
In relation to counts 13 ‑ 16 and 20, involving RN, his Honour said:[33]
In relation to count 13, the incident [RN] alleges occurred when she was playing pool at the [appellant's] house, when she says the [appellant] came up behind her and put his hands around the front of her and touched her on the vagina as she was taking a shot, she said she couldn't remember whether he touched her on top of or underneath her clothing. She said she remembered something happening in an office at the end of the house and being in the room with the [appellant]. She remembered sitting on something but doesn't know whether it was a bed or a couch.
She doesn't remember how she came to be in the room. She can't remember what she was wearing. She said she remembered the [appellant] touching her vagina, inside her pants, while he was sitting next to her. And he took her hand and put it on his penis. That is the incident, the subject of counts 15 and 16.
…
She couldn't remember whether the incident which happened at the swimming pool at her home, when she says the [appellant] forced her to give her[sic] oral sex, happened on a week day or a weekend. She wasn't sure of her age, maybe 11, 12 or 13. She said that dates and times are vague, as the incidents happened over 40 years ago. But what she says the [appellant] did to her, she relives them over in her head every day.
[33] ts 588 - 589.
Also in the course of the Longman direction, the judge referred to count 8 (involving DB) and counts 13 and 14 (involving RN) when directing the jury as to the inability for the appellant to adequately test the evidence of each of the complainants. Specifically, his Honour said:[34]
So, for example, there were no interior photographs taken of the rooms in the [appellant's] house at the time. Photographs were not taken of the rooms and the layout of the pool room, the study where the bunk beds were at the time.
There are no photographs of the rooms, for example, showing where the bunk beds were and how many bunk beds they - how many bunk beds there were and where they were positioned in relation to each other. [DB] and [RN] have each drawn rough sketches of what they can remember was the layout of the study or the rooms, but there are no photographs or accurate diagrams showing exactly what the layout of the rooms was at the time the offending is alleged to have occurred.
[34] ts 589.
The judge gave detailed directions to the jury about how they could use the evidence of the 1978 convictions. He explained that the 1978 convictions were part of the evidence the jury could take into account in determining whether the State had proved beyond reasonable doubt that the appellant unlawfully and indecently dealt with a girl on any of the counts on the indictment.[35] He recited the s 32 admissions, outlined at [18] above, and explained that those admissions were themselves proof of the facts admitted without any other evidence.[36] His Honour then directed the jury as follows:[37]
[35] ts 595.
[36] ts 595 - 596.
[37] ts 596 - 600.
It is important you understand the use which you can make of the evidence as to the conduct of the [appellant] in 1977 and '78 towards [DH] and [DB] when considering whether the [appellant] is guilty of an offence against any of the complainants.
The State led this evidence to show that the [appellant] was sexually attracted to [DB] and [DH] when they were young girls, and also to young girls more generally, in a way you might think abnormal between an adult male and young girls. In July 1978, the [appellant] was aged 39. [DH] in 1978 was aged 12, and [DB] was aged nine.
The State also led the evidence to demonstrate a tendency on the [appellant's] part to be sexually interested in or attracted to young girls who were known to him through his friendships with their parents, and a willingness on his part to act on that sexual interest by offending against them in a sexual manner whenever circumstances and opportunity allowed him to do so.
It is open to you to consider whether the [appellant's] conduct in 1977 and 1978 revealed a sexual interest in female children who were known to him through his friendships with their parents, and whether he had a tendency or a propensity to act on that sexual interest and engage in sexual conduct with the children whenever circumstances and opportunity allowed him to do so.
And if you were satisfied that that was the case, you would be entitled to have regard to that evidence when you come to consider the State's allegation against the [appellant] that he unlawfully and indecently dealt with all or any of the complainants in relation to the allegations on the counts on the indictment.
Before you can use the evidence in the way suggested by the State, you need to be satisfied that the [appellant] has demonstrated a sexual interest in, or an attraction to young female children who were known to him through his friendships with their parents, and that he had a tendency or propensity to act on that sexual interest and engage in sexual conduct with the girls whenever circumstances and opportunity allowed him to do so.
That is, the [appellant] was willing to give effect to his sexual interest in, or attraction to young females who were children of his friends by engaging in sexual conduct with them. The [appellant] has admitted the conduct which formed the basis for the convictions recorded on 7 July 1978.
If you're not so satisfied of the suggested sexual interest and the tendency or willingness to act on it, then the evidence concerning the previous unlawful and indecent dealing is irrelevant and you should pay no regard to it, you should ignore it.
These are matters for you to consider. It is for you to assess the evidence and decide whether it shows that the [appellant] had such a tendency, and if so whether it assists the State's case on the charge that you are considering.
The evidence about the previous convictions for unlawfully and indecently dealing with [DB] and [DH] can be considered by you in determining whether or not the [appellant] committed any of the offences charged on the indictment either against [DB] or [DH], or against any of the other complainants.
It is a matter for you to decide whether you're satisfied that the previous convictions and conduct show the suggested sexual interest in young girls who are known to the [appellant] through his friendships with their parents, and had a tendency or willingness to act on that sexual interest by offending against the girls in a sexual manner whenever circumstances and opportunity allowed him to do so.
And if you do make that finding, it is also a matter for you to decide whether such a finding assists you in determining the guilt or innocence of the [appellant] on the charge in the indictment you are considering. These are matters for you to decide on the evidence.
… It is for you to determine whether, bearing in mind the date of the other conduct of which the [appellant] was convicted and the nature and circumstances of it, you are satisfied that it shows the [appellant] at the time of the charge against him on indictment you are considering had a sexual interest in young girls known to him through his friendship with their parents on which he was prepared to act by engaging in sexual conduct with them, whether it makes him the type of person who is more likely to have committed the acts charged in the indictment.
In relation to the prior offending, you must carefully consider any time gap between that offending and the alleged offending on the indictment that you are considering. This is a matter entirely for you. It is for you to determine what significance you attribute to the past incidents of which the [appellant] was convicted. But you must be cautious in your approach to this evidence.
The evidence as to the conduct in 1977 and 1978 does not establish that, on the date or during the period alleged in the count you are considering, the [appellant] committed the offence charged.
If a person has, in the past, demonstrated a sexual interest in young girls known to him through his friendship with their parents, on which he was prepared to act by engaging in sexual conduct with them when opportunity and circumstances allowed, you may think it would be a matter of potential relevance when you consider whether the [appellant] is involved in the particular charge on the indictment that you are considering.
However, you must remember that the evidence of the prior conduct is not direct evidence of the offence charged. And, unless you are satisfied that the evidence, as a whole, proves the guilt of the [appellant] beyond reasonable doubt, you cannot use the evidence of the prior unlawful dealing to convict the [appellant].
You must be satisfied that the evidence referred to does establish a tendency. Even if you are satisfied that the [appellant] had that tendency, you cannot convict him on that basis alone. The tendency or propensity cannot prove, in itself, the count on the indictment.
The [appellant], while admitting the conduct of which he was convicted in 1978 on his own pleas of guilty, of course, denies that he committed any of the offences alleged or engaged in any sexual conduct with any of the complainants. He said in the video record of interview that being charged with the offending scared the hell out of him and got rid of his tendencies and he didn't commit any further offences after that.
Bear in mind that it does not follow that, because a person did something on one occasion, that he would, or did, do it again. Even if a tendency, a propensity, is revealed, you must also, of course, bear in mind that people do not necessarily act in accordance with their inclinations or tendencies at every opportunity.
Now, if the evidence has the effect contended for it by the State, members of the jury, there are still restrictions on the use of that evidence. First, you cannot use the evidence of the prior conduct to make up for any deficiencies you found in the evidence required to prove each element of the offence.
Secondly, if you are satisfied the [appellant] had the tendency, you could not reason that it followed that the State's other evidence ought thereby be accepted as reliable.
Thirdly, if you are satisfied the [appellant] had the tendency, you cannot simply say that it follows that he committed the offence. And if you do, that would, of course, be very wrong. You cannot substitute the evidence for the evidence of the offence charged.
And fourthly, at the end of the day, to convict the [appellant] of a charge, you must be satisfied the State's evidence as to each element of that charge is truthful and accurate - that is, reliable - and the [appellant's] denial is untruthful and you are satisfied it must be rejected. You cannot use the evidence in substitution for evidence of the events charged, in the count on the indictment that you are considering.
Again, members of the jury, just by way of a final caution, to proceed from being satisfied that the [appellant's] prior conduct established a tendency, directly, to guilt of the offences here, would not only be wrong in law and contrary to your oath or affirmation, but it would be dangerous. The [appellant] cannot be found guilty, unless you, the members of the jury, are satisfied beyond reasonable doubt that the acts said to constitute the count on the indictment that you are considering occurred.
Are you satisfied beyond reasonable doubt as to the truthfulness, accuracy and reliability of the evidence of the complainant in relation to the count that you are considering, having regard to the long period of time which has elapsed since the offence is alleged to have been committed? The ultimate question for you to decide is whether, having regard to the whole of the evidence, the offence charged has been proven beyond reasonable doubt. (emphasis added)
The judge also gave directions as to: (1) the cross-admissibility of evidence between different counts;[38] (2) the complainants' evidence of other uncharged sexual conduct;[39] (3) recent complaint;[40] (4) evidence of distress;[41] (5) delay in the making of a complaint;[42] (6) admissions said by the State to have been made in a pre-text phone call from DB to the appellant;[43] (7) prior inconsistent statements, and the defence case in respect of them;[44] (8) the appellant's video record of interview;[45] and (9) the need to rely only on the evidence and not to speculate.[46]
[38] ts 600 - 604.
[39] ts 604 - 608.
[40] ts 609 - 610.
[41] ts 610.
[42] ts 611 - 614.
[43] ts 614 - 616.
[44] ts 616 - 621.
[45] ts 621 - 623.
[46] ts 624 - 626.
The judge concluded his directions with a summary of the State and defence cases.[47]
[47] ts 627 - 629.
At trial, defence counsel did not complain in relation to any aspect of the judge's directions.[48]
[48] ts 630.
The verdicts
The appellant was acquitted of counts 1 - 4 and convicted of count 5, all involving JD. He was convicted of both counts 6 and 7, involving DH. Counts 8 and 9 involved DB. The appellant was acquitted of count 8 and convicted of count 9. He was convicted of count 10, involving LN. He was also convicted of counts 11 and 12, involving MB. Counts 13 to 21 involved RN. The appellant was convicted of counts 18, 19 and 21, and acquitted of the remaining counts. He was convicted of counts 22 and 23, involving, respectively, CM and KD.
Conviction appeal: grounds of appeal
The appellant appeals against his conviction on five grounds, in the following terms:
1.The conviction on Count 9 was unsafe and unsatisfactory and not reasonably open to the jury, having regard to the verdict of acquittal on Count 8.
2.The convictions on Counts 18, 19 and 21 were unsafe and unsatisfactory and not reasonably open to the jury, having regard to the verdicts of acquittal on Counts 13, 14, 15[,] 16, 17 and 20.
3.A miscarriage of justice occurred when the learned Trial Judge failed to discharge, or alternatively question, a juror in relation to information which suggested that the juror may have formed a concluded view before the conclusion of the evidence and charge to the jury.
4.A miscarriage of justice occurred when the learned Trial Judge failed to direct the jury they must be satisfied beyond reasonable doubt of the Appellant's sexual interest and the tendency or propensity to act on it.
5.A miscarriage of justice occurred when the learned Trial Judge directed the jury that the evidence of the 1978 convictions could be used as tending to support the prosecution case in relation to those counts other than the counts in respect of the complainants to whom the 1978 convictions related and those counts which involved the use of a motorcycle.
We will deal with the grounds in turn. It is convenient to deal with grounds 1 and 2 together.
Grounds 1 and 2: inconsistent verdicts
The evidence
As the appellant contends that the verdicts on the counts relating to two of the complainants, DB and RN, are inconsistent, we will outline the evidence concerning those counts.
Counts 8 - 9: offending against DB
DB was three years younger than her sister DH, who was the complainant on counts 6 and 7. Her family and the appellant's family were friends, often socialising together and going on camping or fishing trips. DB gave evidence that the appellant offended against her on numerous occasions other than those charged. She said that after Brownies on Thursday nights the appellant would take her on a motorbike ride up to the water pipeline on Mount Clarence. She would sit on the back and he would position her hands in his crotch, in his pants. Once they got up there, he would get her to masturbate him. Sometimes her hand got wet. They would then return to DB's family home and the appellant would take his daughter home. DB said this happened 'pretty much every Thursday' from when she started Brownies when she was 6 or 7 years old to when she was about 9 or 10 years old. The appellant told her it was 'our secret', and not to tell anybody.[49] DB also gave evidence that 'things happened' in a shed where the appellant kept his motorbikes and under his house off the driveway.[50]
[49] ts 350 - 351, 370, 373 - 374.
[50] ts 357.
As to count 8, DB gave evidence that her mum and dad went to Perth to see a Roger Whittaker concert. DB stayed at the appellant's house. She was in the study, which was a room at the end of a passageway with a set of bunks. DB was positioned across the bunks with no clothes on her bottom half. The appellant rubbed his erect penis up against her vagina. No one else was in the room. She could not recall how she came to be in the room or positioned across the bunks, whether he or she removed her clothes or how long the incident lasted. However, she distinctly remembered something about a pillow. She could have been 7, 8 or 9 years old at the time, but could not recall. After the incident, the appellant got up and went back into the lounge room with the rest of the family, as if nothing had happened.[51]
[51] ts 353 - 355, 371.
As to count 9, DB gave evidence that she went on a camping trip out bush. She was riding the Odyssey bike with the appellant on a bush track. Ahead of them was a car with the rest of the kids. She could not recall who was driving the car, but said that the kids were hanging over the back seat watching DB drive the Odyssey. She estimated the distance between the car and the Odyssey to be about the same distance as between the witness box and the back of the courtroom. She was positioned between the appellant's legs steering the Odyssey and operating its throttle, which was located on the steering wheel. While she was doing this, the appellant put his hands inside her underwear and his finger inside her vagina. He moved his finger around; she could not recall for how long. She could not recall if anything was said. She would have been around 7, 8 or 9 years old at the time.[52]
[52] ts 355 - 357, 373.
DB also gave evidence of a phone call she made to the appellant on 9 May 2016, the same day she made her police statement in relation to the offending. The phone call and a transcript of it were admitted into evidence.[53] The State case was that the phone call contained admissions by the appellant as to the offending against DB. The prosecutor highlighted the following passages of the phone call, among others, in closing:[54]
(1)When DB put the Roger Whittaker concert incident to the appellant, he responded, 'I'm ashamed'.
(2)When DB asked how the Odyssey bike incident made the appellant feel, he responded, 'Ashamed that I even did it'.
(3)The appellant said, 'I can't remember the incidences [sic] like you can'. DB responded, 'Mm, but you know you did it', to which the appellant said, 'Long ago, yeah'.
[53] Exhibits 23.1, 23.2.
[54] ts of closings 13 - 16. See exhibit 23.2, pages 3, 4, 9.
In cross-examination, DB denied that she was financially motivated.[55] She also denied that, in 1978, she had told the police everything that the appellant had done, and was now enlarging her story.[56]
Counts 13 - 21: offending against RN
[55] ts 361.
[56] ts 363, 370 - 371, 376 - 377.
RN was the same age as one of the appellant's daughters. RN's family was good friends with the appellant's family. They used to go camping a lot together and RN's dad and the appellant were business partners in properties.[57]
[57] ts 401.
In relation to counts 13 and 14, RN gave evidence that, when she was about 8 or 9 years old, she went over to the appellant's house to play with the appellant's daughter. She and a couple of other girls, whose names she could not recall, were playing pool in a games room under the house. The appellant came up behind RN when she was having her shot, pushed up against her and rubbed her vagina with his hand. RN could not recall whether it was on top of or underneath her clothing, or how long it continued. She recalled feeling something hard pushing into her from behind, but she was not sure where on her body.[58] In cross-examination, she said she did not remember the incident well, she just remembers it happening.[59]
[58] ts 402 - 404, 430.
[59] ts 430.
In relation to counts 15 and 16, RN gave evidence that, when she was 8, 9 or 10 years old, she was at the appellant's house in an office at the end of the hallway. She was sitting on something - it may have been a sofa or a bed - next to the appellant. No one else was in the room. The appellant touched RN's vagina inside her pants and made her touch his penis, which was erect, on the top of his clothing. She was in the room for what seemed like a long time. RN could not recall how she came to be in that room or what she was wearing. She said 'I can't remember what actually happened. I know he touched me and he made me touch him'.[60] She thought the appellant was wearing blue tradie work shorts.[61]
[60] ts 405.
[61] ts 404 - 406, 430.
In relation to count 17, RN gave evidence that she was on a camping trip in Walpole when she was about 12 or 13 years old. It was just her family and the appellant's family on the trip. The kids were sharing a chalet with four single beds. RN was sitting on her bed under the covers. Her parents and the other kids were in the room along with the appellant, who was sitting sideways on RN's bed. The appellant reached under the covers and touched RN's vagina on top of her clothing and possibly under it too. The touching went on for what seemed like forever, during which time RN was thinking 'why can't anyone see what he's doing to me'.[62]
[62] ts 406 - 408.
In relation to counts 18 - 21, RN gave evidence that she was at home with the appellant when she was 11, 12 or 13 years old. RN's parents were not at home. Her brother may have been at home or out on his pushbike. She was in the swimming pool wearing yellow bikini bathers. The appellant came into the pool area and sat next to RN on the steps near the entrance to the shallow end of the pool. The appellant touched RN's vagina underneath her bathers and put his finger inside her vagina (counts 18 and 21). This really hurt her. He pulled his erect penis out from his shorts and put it in her mouth, holding her head while he did this (count 20). He also made her put her hand on his penis and she thought he was moving her hand (count 19). She could not remember the order in which these things happened but thought the incident may have lasted 10 minutes. She could not remember whether anything was said but did remember that he had a 'horrible smile on his face'. The incident ended when RN's brother called out her name.[63]
[63] ts 409 - 412, 431 - 432.
RN also gave evidence about the last time the appellant did anything to her. RN's family and the appellant's family were in Bali. RN was about 14 years old. She was in the swimming pool and had her period. It was the same year she first got her period. The appellant approached her in the pool, touched her vagina and then stopped.[64] The appellant was not charged in relation to this conduct.
Ground 1: the appellant's submissions
[64] ts 412 - 413, 414.
The appellant submits that the quality of DB's recollection of events was no better in respect of count 9 than it was in respect of count 8, having regard to the following:[65]
(1)DB was able to identify the locations of the incidents for both counts - on a bed in the appellant's study (count 8) and on the appellant's Odyssey motorbike whilst on a bush track (count 9);
(2)in respect of both counts, DB was unsure of her age at the time, though she thought she may have been 7, 8 or 9 years old;
(3)DB was able to provide detailed accounts as to how she was positioned when the offending took place; and
(4)DB also recalled, in respect of both counts, where other persons were at the time the offences took place - the appellant's wife and daughter in the lounge room (count 8) and the children hanging out the back of the car in the vehicle ahead (count 9).
[65] Appellant's submissions [22].
The appellant submits that, by reason of the acquittal on count 8, the jury must have entertained a reasonable doubt as to DB's accuracy and honesty generally. He submits that it can be inferred from the verdict of acquittal on count 8 that the jury were not satisfied as to DB's honesty. In a context in which the appellant's guilt on both counts fell to be determined exclusively on DB's evidence, and the fundamental precondition for any conviction on count 9 was an acceptance of DB's evidence as being truthful and accurate, the acquittal on count 8 meant the conviction on count 9 was unsafe, unsatisfactory and not reasonably open to the jury.[66]
Ground 2: the appellant's submissions
[66] Appellant's submissions [23], [26], [27]; appeal ts 5, 8, 9 - 10.
The appellant submits that the quality of RN's recollection was no different between counts 13 - 21, having regard to the following:[67]
(1)she was able to identify the locations of the incidents;
(2)she was able to provide detailed accounts as to how she and the appellant were positioned when the offending took place;
(3)she recalled where other people were at the time the offences took place (if they were present at all); and
(4)she was able to describe the surrounding circumstances of the offending.
[67] Appellant's submissions [50].
The appellant submits that there is no logical or reasonable basis upon which the jury could properly have convicted on counts 18, 19 and 21, after having acquitted on the other counts involving RN.[68] In circumstances where the evidence of counts 13 - 21 relied solely on RN's evidence, was not supported by any corroborative evidence and involved no distinguishing features, he submits that the jury must have had a reasonable doubt as to the honesty of RN's account in light of the verdicts of acquittal.[69]
[68] Appellant's submissions [49].
[69] Appellant's submissions [52] - [53]; appeal ts 13.
In light of the acquittal on count 20, the appellant submits that the jury must have had a reasonable doubt as to RN's version of events concerning the swimming pool incident.[70] He submits that there is 'absolutely nothing which could distinguish' count 20 from counts 18, 19 and 21.[71] He also points to statements in this court that it may be more difficult to reconcile differing verdicts when the offences were alleged to have occurred at the same time or as one course of conduct. In all these circumstances, he submits that the convictions on counts 18, 19 and 21 were unsafe, unsatisfactory and not reasonably open to the jury.[72]
Legal principles
[70] Appellant's submissions [52].
[71] Appeal ts 11.
[72] Appellant's submissions [54].
An appellant alleging factual inconsistency faces a high hurdle. Such an appellant must satisfy the court that, as an exercise of fact‑finding, in logic and reasonableness, the verdicts cannot stand together, meaning that no reasonable jury who had applied their minds properly to the facts of the case could have arrived at the conclusion.[73] If there is a proper way by which the appellate court may reconcile the verdicts, allowing the court to conclude that the jury performed their functions as required, the verdicts will not be inconsistent in the relevant sense.[74] If there is some evidence to support the verdicts said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.[75]
[73] MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, 366; DPJB v The State of Western Australia [2010] WASCA 12 [8], [77].
[74] MacKenzie (367); DPJB [8], [78].
[75] MacKenzie (367), DPJB [78].
Even where the appellate court is not persuaded that the verdicts may be reconciled in the sense we have explained, the verdicts are not necessarily inconsistent.[76] In a passage that has been adopted in this court many times, in DPJB v The State of Western Australia, Owen JA made the following points:[77]
[76] MacKenzie (367 ‑ 368); DPJB [10], [81].
[77] DPJB [81].
1.If a jury returns an acquittal in relation to a count in respect of which a prosecution witness has given evidence, it does not follow that the jury must have concluded that the witness was generally untruthful or his or her credibility was compromised: [R v] Markuleski [[2001] NSWCCA 290; (2001) 52 NSWLR 82] [67]; R v KET [1998] VSCA 73 [29]. The jury might not have disbelieved the witness but thought the evidence lacked the requisite particularity as to time, place or circumstances to justify a conviction: Duniam v The Queen [1997] TASSC 107. Similarly, the jury might have regarded the witness's evidence as generally credible but thought that, in relation to some issues, the witness's recollection was faulty: R v LR [2005] QCA 368; [2006] 1 Qd R 435; R v J (No 2) [1998] 3 VR 602, 628.
2.The court should be aware of the possibility that the jury may have taken a 'merciful' view of the facts and acquitted the accused on some counts for which, on the evidence, the accused ought to have been convicted: Lefroy [v The Queen [2004] WASCA 266; (2004) 150 A Crim R 82] [18]; MacKenzie (367 - 368). Although the jury's actions may be logically questionable, it is perhaps understandable and the court should not shut its eyes to the fact that it is part and parcel of the administration of justice by juries: Markuleski [227]; R v Kirkman (1987) 44 SASR 591, 593.
3.In assessing whether differing verdicts can stand together, the presence or absence of corroboration may be a relevant point of differentiation. For example, in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 the accused was charged with nine sexual offences against a male youth. Those offences were said to have occurred on four separate occasions. The jury acquitted the accused on seven counts relating to three of the occasions, but convicted him of two counts committed on the other occasion. The High Court dismissed his appeal on the ground of inconsistent verdicts. The differing verdicts were explicable on the basis that the two counts in respect of which the accused was convicted were the only counts which were substantially supported by the evidence of another witness.
4.The fourth point is closely related to the third. The presence or absence of evidence adduced by the accused which casts doubt on the prosecution case in respect of a particular count may explain differing verdicts. For example, in Lefroy the accused was charged with six counts of indecent dealing. The complainant was a pupil of the accused, a school teacher. Two of the counts were said to have taken place in the classroom while other students were present, two were said to have taken place at the accused's home and two were alleged to have taken place in a public shower block during a camping trip. The accused was convicted of the two counts which were said to have taken place in his home, but acquitted of the other four. The Court of Criminal Appeal found that the differing verdicts could be explained by the fact that the accused adduced evidence showing that other students had not seen anything untoward happen in the classroom and that the public showers were seldom used during camping trips to that location.
5.It may be more difficult to reconcile differing verdicts when the offences were said to have occurred at the same time or been part of one course of conduct. For example, in R v LR the accused was charged with six counts of rape. Three counts related to the alleged penetration of the complainant's mouth and three related to the penetration of her vagina. The prosecution case was that the accused had forced himself on the complainant and carried out the offences in one episode. The accused admitted two counts of oral penetration but claimed that it was consensual. He denied any vaginal penetration. The jury convicted the accused of two counts in relation to the oral penetration, but acquitted him in relation to the three counts of vaginal penetration and the remaining count of oral penetration. The court took the view that it was extremely difficult to identify any rational basis upon which the verdicts could be reconciled. If the jury did not regard the complainant's evidence as sufficiently reliable to be satisfied that four acts of non‑consensual penetration occurred, it was difficult to see how they could have been satisfied that the two admitted acts of oral penetration said to have been committed in the same course of conduct were non‑consensual.
6.In reconciling verdicts the court should have regard to the way in which evidence was given by the witnesses. There may be subtle differences in the way the evidence was presented that led to differing verdicts: Markuleski [70]; Strickland v The Queen [2000] WASCA 68 [10]. The court should also be aware that pauses and other indications of indecision might not have been recorded in the transcript but nevertheless have been observed by the jury: R v J (1994) 75 A Crim R 522, 540. In other words, the appellate court should not ignore the fact that differing verdicts may be explicable by the peculiar advantage that is available to the jury from hearing the evidence first-hand which is not available to an appellate court.
Ground 1: disposition
The appellant has fallen well short of meeting the high hurdle involved in establishing inconsistency of verdicts as between counts 8 and 9. As already noted, if there is a proper way by which the appellate court may reconcile the verdicts, the verdicts will not be inconsistent. Here, there are several features of the evidence concerning counts 8 and 9 respectively that were materially different in a way that allows the verdicts to be reconciled. Any one of these differences would be sufficient to justify different verdicts on counts 8 and 9. The combination of these features means that the differing verdicts may readily be reconciled.
First, there were many details of the circumstances relating to count 8 that DB could not remember. These include how she came to be in the appellant's study; how she came to be positioned across the bunk; and whether the appellant or she removed her clothes. The jury may have adopted a cautious approach and, on account of DB's inability to recall these details, not been satisfied to the required standard of the reliability of her account in relation to count 8. Contrary to the appellant's submissions, such reasoning would involve no adverse conclusion as to DB's honesty.
Secondly, count 8 was the subject of a specific aspect of the judge's Longman direction, in the passage set out at [33]. In that passage, the judge explained a specific opportunity concerning count 8 that was denied to the appellant by reason of the delay in this case. That warning may have induced the jury to take a cautious approach in evaluating whether they were satisfied beyond reasonable doubt in relation to count 8.
Thirdly, it was open to the jury to find that, during the pre-text phone call, the appellant made an unequivocal admission concerning count 9, but that his response concerning count 8 was more ambiguous and could not be relied upon as an admission.
Fourthly, the offences the subject of the 1978 convictions occurred while each complainant was sitting on a motorbike or trail bike with the appellant. Count 9 was said to have occurred while DB was riding the Odyssey beach buggy with the appellant. As the appellant accepted,[78] it was open to the jury to attribute greater weight to the 1978 convictions in relation to count 9, as against count 8, given the closer factual resemblance between the circumstances of the 1978 convictions and the circumstances of count 9.
[78] Appeal ts 9.
The appellant's submission that the jury's verdict of acquittal on count 8 demonstrates a lack of satisfaction as to DB's honesty, which the appellant accepted was an essential element of his argument on ground 1,[79] lacks any reasonable foundation. It is well established that a verdict of not guilty on some counts does not necessarily reflect a view that the complainant was untruthful or unreliable.[80] A verdict of acquittal may simply reflect a cautious approach on the part of the jury. There may, in an individual case, be any number of matters that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to a particular aspect of the complainant's evidence.[81] The four points already made illustrate that in the context of this case.
[79] Appeal ts 11.
[80] MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 [34], [35], [89].
[81] MFA [34].
For these reasons, ground 1 is without merit. We would refuse leave to appeal in respect of it.
Ground 2: disposition
Again, the appellant has fallen well short of reaching the high hurdle involved in establishing inconsistency of verdicts as between the convictions on counts 18, 19 and 21, and the acquittals on counts 13 ‑ 17 and 20. As explained below, the verdicts may readily be reconciled.
On the complainant's evidence concerning counts 13 and 14, the offences occurred while the complainant was playing pool in a games room with a couple of other girls present. The jury acquitted the appellant of all counts in relation to which the relevant complainant said the offence occurred in the presence of others, with the exception of count 5, in relation to which another person present gave corroborating evidence.
The fact that the alleged offence was said to have occurred in the presence of others was potentially relevant to the jury's deliberation in at least two ways. First, it may have given rise to doubt as to whether the appellant would have acted in the alleged fashion in the presence of others. Secondly, the jury might take into account the absence of any corroborating evidence from persons said to have been present. Thus, the fact that, on the complainant's evidence, there were other people present when the appellant committed counts 13 and 14 is, in itself, comfortably sufficient to reconcile the different verdicts on those counts with the verdicts of guilty on counts 18, 19 and 21, where, on the complainant's account, no one else was present when the offence was committed.
The same is true of the verdict of acquittal in relation to count 17. The complainant's evidence was that that offence occurred in the presence of her parents, as well as other children. The jury may have been hesitant to accept that the appellant was so brazen as to have engaged in the conduct described by the complainant while her parents were close by in the same room.
Given that the complainant said in relation to counts 13 and 14 that she did not remember the incident well,[82] and given that the complainant's evidence as to counts 15 and 16 included her statement, 'I can't remember what actually happened',[83] it was well open to the jury, adopting a cautious approach to proof beyond reasonable doubt, to draw back from a conclusion of guilt in relation to those counts.
[82] ts 430.
[83] ts 405.
The appellant's submission that there is 'absolutely nothing which could distinguish'[84] count 20 from counts 18, 19 and 21 is mere assertion; it ignores the obvious difference in the character of the conduct of count 20. Counts 18, 19 and 21 involved conduct that fitted into the pattern of the appellant's offending against other girls as reflected by the 1978 convictions and the other offences of which the jury found the appellant guilty. By contrast, count 20 involved the appellant inserting his penis into the complainant's mouth. The jury were entitled to take the view that this was conduct of a materially different and arguably more serious character that did not fit comfortably with the pattern of the appellant's offending against others. The acquittal on count 20 is consistent with the adoption by the jury of a cautious approach to their task.
[84] Appeal ts 11.
For these reasons, ground 2 lacks any arguable merit. We would refuse leave to appeal in respect of it.
Ground 3: failure to discharge or question juror
The course of the trial
On the sixth day of the trial, following the close of the defence case, defence counsel noted that during the luncheon adjournment the appellant's daughter had overheard a conversation between two jurors on the street outside the court. A male juror in a burgundy jumper had said to a female juror, 'imagine that going on while your daughter is at Brownies'.[85]
[85] ts 548. MFI 37.
Defence counsel submitted that this comment demonstrated that the juror may have reached a concluded view about the matter.[86] He requested that the juror be brought in for questioning to ascertain whether he had formed a concluded view about the matter.[87] In the event that he had, defence counsel requested that the juror be discharged.[88]
[86] ts 548, 549.
[87] ts 549, 552.
[88] ts 550.
The judge decided not to bring the juror in for questioning. His Honour considered that the issue could be adequately resolved by emphasising to the jury that they needed to keep an open mind at all times.[89] In exchange with counsel in the course of submissions, the judge:
(1)suggested that the comment was indicative of no more than robust discussion between jurors;[90]
(2)raised concerns that bringing the juror in for questioning may put the juror on edge or put pressure on him, make the juror feel that he was at fault, potentially having an impact on how that juror approached his deliberations in the jury room and, if he were discharged, have an impact on the juror to whom he was talking;[91] and
(3)suggested that it would be inappropriate to inquire into discussions between jurors.[92]
[89] ts 554.
[90] ts 549, 553.
[91] ts 549 - 551.
[92] ts 551 - 552.
When the jury returned after the luncheon adjournment, the judge directed them that they were, as a matter of law, required to keep an open mind until the close of his charge. His Honour told them that they could not form any concluded views until the ballot was conducted and their deliberations commenced.[93]
The appellant's submissions
[93] ts 555.
The appellant submits that the overheard conversation potentially reflected a concluded view.[94] Consequently, the correct approach in the circumstances was to have questioned the male juror, in order to assist in the determination of whether he had reached a concluded view about the matter.[95] In the absence of the judge having made any such inquiry, the appellant submits that there was objectively a reasonable apprehension of bias, which apprehension was never cured.[96] The appellant submits that, by failing to make any inquiry with the juror who expressed what appeared to be a concluded view, in circumstances where the judge's previous directions to the jury not to form a concluded view had effectively been disregarded, a miscarriage of justice may have occurred.[97]
Legal principles
[94] Appeal ts 16, 18.
[95] Appellant's submissions [63] - [64]; appeal ts 16 - 17.
[96] Appellant's submissions [66]; appeal ts 18.
[97] Appellant's submissions [67].
Section 115 of the Criminal Procedure Act 2004 (WA) confers a power to discharge an individual juror. The power may be exercised if a judge is satisfied that the juror should not be required or allowed to continue in the jury.[98]
[98] Criminal Procedure Act 2004 (WA), s 115(2).
One basis on which a judge may be so satisfied is that a juror has demonstrated partiality. The test to be applied by a trial judge in deciding whether to discharge a juror, or a jury as a whole, on the ground that they have demonstrated partiality is set out in Webb v The Queen.[99] In VIM v The State of Western Australia,[100] this court summarised the test as follows:[101]
In Webb … the High Court held that the test to be applied for determining whether an irregular incident involving a juror warrants the discharge of the juror or, indeed, the whole jury, is whether the incident is such that, notwithstanding any proposed or actual warning of the judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge their task impartially.
[99] Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41. See Haruna v The Queen [2013] WASCA 170; (2013) 278 FLR 194 [66].
[100] VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1.
[101] VIM [247].
The court in VIM continued:[102]
Webb was a case in which a woman juror had given a bunch of flowers to a person at the courthouse with a request that it be given to the deceased victim's mother. The trial judge held that the question was whether there was a real danger that the position of the accused had been or might have been prejudiced by what had occurred. He dismissed the application, stressing to the jury the need for them to have regard only to the evidence, which they were to consider in a dispassionate manner, putting aside all feelings of sympathy or emotion.
Whilst holding that the 'real danger of prejudice' test was not the appropriate test, on then applying the 'reasonable apprehension' test, the majority nonetheless concluded that the ground of appeal failed. Mason CJ and McHugh J said (at 56):
'Although, by her own admission, the juror was an impulsive person and had disobeyed an earlier warning not to communicate with persons associated with the case, we think that a fair-minded and informed person would not apprehend bias on her part. While her sympathy for the deceased's mother had caused her to act as she did, that sympathy had not manifested itself in any act of hostility towards the accused or of partiality to the Crown. Its significance lay in the fact that it indicated that the juror was or might be incapable of examining the evidence dispassionately and impartially. But the public ventilation of the incident, the juror's apology, the recognition of the seriousness of what she had done, the general attentiveness and diligence of the juror, and the strength and detail of the judge's second warning were countervailing factors of considerable strength. A fair-minded person would assume that the juror would do her best to follow the judge’s direction to look at the evidence "coldly, dispassionately and above all, objectively and using [her] common sense". When a fair-minded observer also considered the opinion of the judge - the person on the spot - that the juror would be able to approach the issues dispassionately, we think that a fair-minded person would not have an apprehension of bias or lack of impartiality on the part of the juror. It follows that this ground of appeal fails.'
…
As Mason CJ and McHugh J pointed out in Webb (at 53), in considering whether a reasonable apprehension of bias exists, it is necessary to consider the likely effect of the judge’s directions, as well as the irregularity in question.
[102] VIM [248] - [249], [251].
Bearing in mind that the trial judge will usually have a better appreciation of the circumstances in their context than an appellate court relying on the transcript, some leeway must be given to the decision of the trial judge. Subject to that, this court must decide for itself whether what occurred has given rise to a miscarriage of justice.[103]
Disposition
[103] Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427, 440 ‑ 441; Haruna [68].
The mere fragment of conversation that was overheard falls well short of giving rise to a reasonable apprehension that the juror did not or would not discharge their task impartially. That fragment of conversation, without any known context, is entirely equivocal and falls well short of demonstrating that the juror had reached a concluded view as to any count on the indictment.
The circumstances did not call for the judge to question the juror concerning whether the juror had already formed a concluded view. To the contrary, to have done so would, in our view, have been inappropriate. In our respectful opinion, the approach adopted by the trial judge, when the issue was raised at trial, was impeccable. For the following three reasons, the judge's failure to question the juror was not erroneous and did not give rise to a miscarriage of justice. First, there was insufficient foundation for the conduct of an inquiry or for bringing the juror in to be questioned. Secondly, the judge's concerns as to that course, reflected in the observations outlined at [78] above, were well‑founded. Thirdly, the judge directed the jury that they were required to keep an open mind until they retired to consider their verdicts.[104]
[104] ts 555.
There is nothing in the circumstances of the case to justify a departure from the fundamental tenet that the jury will act in accordance with the directions of the trial judge.[105] There is no basis to conclude that the judge's failure to question the juror gave rise to a miscarriage of justice.
[105] Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 [13]; LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178 [333].
There is no substance in ground 3. We would refuse leave to appeal in respect of it.
Ground 4: standard of proof for propensity evidence
Ground 4 complains of the trial judge's failure to direct the jury that they must be satisfied beyond reasonable doubt of the appellant's sexual interest and the tendency or propensity to act on it.
In the italicised passages of the portion of the judge's directions set out at [36] above, the judge told the jury that they must determine whether they were satisfied, by the evidence of the 1978 convictions, that the appellant had a sexual interest in young female children who were known to him through his friendship with their parents, and that he had a tendency or propensity to act on that sexual interest and engage in sexual conduct with the girls whenever circumstances and opportunity allowed him to do so. The judge told the jury that, unless they were so satisfied, they could not use the 1978 convictions as propensity evidence. By ground 4, the appellant complains that the judge should have directed the jury that they needed to be so satisfied beyond reasonable doubt, which his Honour failed to do.[106]
[106] Appellant's submissions [72], [78].
The appellant refers to the judge's observations in the course of an exchange at trial with counsel concerning his Honour's then proposed direction as to the 1978 convictions. In the course of that exchange, the judge expressed the view that what had been said by the High Court in R v Bauer (a pseudonym)[107] had overtaken earlier Western Australian appellate authority[108] as to the standard of proof of sexual interest.[109]As will be seen, we agree with his Honour's observation.
[107] R v Bauer (a pseudonym) [2018] HCA 40; (2018) 92 ALJR 846 [80], [86].
[108] PIM v The State of Western Australia [2009] WASCA 131; (2009) 40 WAR 489 [317]; AJE v The State of Western Australia [2012] WASCA 185; (2012) 225 A Crim R 242 [67].
[109] ts 509 - 510.
The appellant submits that Bauer 'might not have general applicability' to s 31A of the Evidence Act.[110] He submits that the only correct approach is to direct the jury that they need to be satisfied beyond reasonable doubt of the appellant's alleged sexual interest in young girls and the propensity to act on it.[111]
[110] Appellant's submissions [75].
[111] Appellant's submissions [78].
In Bauer, seven justices of the High Court said that no error was shown in the trial judge's course in not warning the jury that they needed to be satisfied of uncharged acts beyond reasonable doubt. Their Honours observed that, ordinarily, proof of the accused's tendency to act in a particular way will not be an indispensable intermediate step in reasoning to guilt.[112] Their Honours also observed that trial judges:[113]
should not ordinarily direct a jury that, before they may act on evidence of uncharged acts, they must be satisfied of the proof of the uncharged acts beyond reasonable doubt. Such a direction should not be necessary or desirable unless it is apprehended that, in the particular circumstances of the case, there is a significant possibility of the jury treating the uncharged acts as an indispensable link in their chain of reasoning to guilt.
[112] Bauer [80], referring to Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 584 - 585.
[113] Bauer [86].
In these passages, the court refers to uncharged acts as acts not the subject of the charges at trial, tendered for tendency or propensity reasoning.[114] Thus these observations apply to the 1978 convictions. The appellant did not suggest otherwise.
[114] Bauer [48] - [52].
The appellant submits that, in these passages, the High Court's references to the ordinary position is a reference to cases 'with few complicating factors'.[115] The appellant was unable to be more specific in his submission as to the ambit of the ordinary case.[116] These submissions sought to avoid the obvious meaning and effect of the High Court's observations in Bauer, which is as follows. Ordinarily, proof of a tendency to act in a particular way will not be an indispensable intermediate step in reasoning to guilt.[117] In that ordinary case, the trial judge should not direct the jury that before they act on evidence of uncharged acts they must be satisfied as to those acts beyond reasonable doubt.[118] Only when, in the particular circumstances of the case, there is a significant possibility of the jury treating the uncharged acts as an indispensable link in their chain of reasoning to guilt should such a direction be given.[119]
[115] Appeal ts 21, 25.
[116] Appeal ts 22 - 23.
[117] Bauer [80].
[118] Bauer [86].
[119] Bauer [86].
The appellant accepts that the 1978 convictions were 'technically' not an indispensable link in a chain of reasoning to guilt.[120] However, he submits that, given the complexity of the trial, there was a significant risk that the jury might use the 1978 convictions in that way.[121]
[120] Appeal ts 24.
[121] Appeal ts 23, 27 - 28.
In our view, there was no significant possibility of the jury using the 1978 convictions as an indispensable step in reasoning to guilt.
The State case, as put by the prosecutor in opening and closing and as summarised by the trial judge, invited the jury to accept the honesty and reliability of the direct evidence given by each complainant. The State case did not invite inferential reasoning. Nothing in the manner in which the prosecutor put the State case in closing, or the way in which the judge summarised the State case in his summing up, suggested that the jury should use the 1978 convictions as an indispensable step in reasoning to guilt, or gave rise to a significant risk that they might do so.
Whether there was a significant risk that the jury might have used the 1978 convictions as an indispensable step in reasoning to guilt must be evaluated by reference to, and in the light of, the directions given by the trial judge to the jury. The judge's direction concerning the manner in which the jury might use the 1978 convictions included telling the jury of the following:
(1)The evidence of the 1978 convictions was not direct evidence of the offence charged. Unless the jury were satisfied that the evidence as a whole proved guilt, the 1978 convictions could not be used to convict the appellant.[122]
(2)The 1978 convictions could not be used to make up for any deficiency in the evidence required to prove each element of the offence.[123]
(3)The jury could not reason that it followed from the appellant's tendency (if they were satisfied as to the tendency) that the State's other evidence, as to the elements of the offence, ought thereby be accepted.[124]
(4)Before convicting the appellant of a charge, the jury must be satisfied that the State's evidence as to each element of that charge was truthful and reliable. The 1978 convictions could not be used in substitution for evidence of the events charged.[125]
[122] ts 599.
[123] ts 599.
[124] ts 600.
[125] ts 600.
In all the circumstances, there was no significant risk that the jury might use the 1978 convictions as an indispensable link in a chain of reasoning to guilt.
The appellant submits that the jury's different verdicts on counts 8 and 9 might indicate the use of the 1978 convictions as making the decisive difference in favour of conviction on count 9.[126] We do not accept this submission. The difference in the verdicts on counts 8 and 9 provides an insecure and inadequate foundation for concluding that there is a significant possibility that the 1978 convictions were an essential step in the jury's reasoning to guilt. The appellant's submission is speculative; as already outlined, there are a number of material differences between the evidentiary landscape concerning counts 8 and 9.
[126] Appeal ts 28.
We are not persuaded that ground 4 has a reasonable prospect of succeeding. Consequently, we would refuse leave to appeal in respect of it.
Ground 5: were the 1978 convictions admissible in relation to all counts?
The appellant's submissions
Ground 5, as amended at the hearing of the appeal, contends that the judge erred in directing the jury that the 1978 convictions could be used to support the State case on all counts, when he should have directed the jury that the 1978 convictions tended to support only the counts relating to the complainants to whom the 1978 convictions related and those involving the use of a motorcycle.[127] In oral submissions, the appellant clarified the scope of ground 5, identifying the counts in relation to which he contends the 1978 convictions lacked significant probative value. These are counts 5, 11, 12, 18, 19, 21 and 22.[128]
[127] Appellant's submissions [98], [103]; appeal ts 32.
[128] Appeal ts 32 - 33.
The appellant's submissions rely heavily on the decision in McPhillamy v The Queen,[129] which was delivered after the conclusion of the appellant's trial.
[129] McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045.
The appellant submits that the facts concerning the 1978 convictions had little in common with the bulk of the offending alleged by the other complainants, detailing a number of differences between each such count and the 1978 convictions.[130]
[130] Appellant's submissions [97].
The appellant points to recent statements in the High Court[131] to the effect that where the tendency evidence relates to sexual misconduct with persons other than the complainant, it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together.[132] He asserts that, in the present case, there is an insufficient link.[133]
Legal principles
[131] McPhillamy [31]; Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 [64]; Bauer [58].
[132] Appellant's submissions [93].
[133] Appellant's submissions [95] - [98]; appeal ts 33 - 34, 35 - 36.
As the appellant accepts,[134] the s 31A application made by the State prior to trial was not contested. Consequently, it cannot be said that the admission of the 1978 convictions involved a wrong decision on a question of law. Rather, the appellant's complaint is of a miscarriage of justice, arising from the judge's direction concerning the use to which the 1978 convictions could be put. That is consistent with a proper approach. Whether the propensity evidence occasioned a miscarriage of justice is concerned with the use made of the evidence at the trial.[135]
[134] Appellant's submissions [99].
[135] McPhillamy [11]; Lilley v The State of Western Australia [2019] WASCA 164 [62].
By the time of his sentencing, the appellant was almost 80 years of age.[150] The appellant was married in 1966 and had two daughters, who were aged 52 and 48 at the time of his sentencing.
[150] ts 737.
He was born and raised in Albany, where he lived all his life. He grew up in a supportive and happy family environment. The appellant attended high school in Albany until he was aged 15. He undertook an electrical contractor's apprenticeship, obtaining his licence in 1962.[151] He operated his own electrical business from that time until being taken into custody.
[151] ts 738.
Apart from the 1978 convictions, the appellant had no other criminal history.
The appellant was not in good health at the time of his sentencing. In February 2018, he had suffered a heart attack requiring emergency surgery. He was taking a significant volume of medication each day in consequence of the heart attack. On 24 September 2018, he had been hospitalised again by reason of chest pain and shortness of breath.[152] As at the time of his sentencing, the appellant's general practitioner considered it likely that the appellant would need surgery for a prostatic condition from which he suffered. The appellant had suffered from diverticulitis since 2013 and was booked to have a colonoscopy in the month or so following the sentencing. The appellant also suffered from stress, weight loss, sleeplessness and anxiety associated with the charges, for which he had been prescribed medication.[153]
[152] ts 741.
[153] ts 742.
A number of character references were provided to the judge. They attested to the appellant's integrity, the support that the appellant provided to his family, including some members of his family suffering significant medical conditions causing disability, and his involvement and considerable voluntary work in community activities, sporting clubs and the mentoring of electrical apprentices.[154]
[154] ts 748.
Victim impact
The judge received victim impact statements from all eight victims of the appellant's offending. The judge gave a detailed summary of each victim impact statement.[155] The victim impact statements catalogued a variety of enduring and significant adverse consequences arising from the appellant's offending. They included ongoing feelings of guilt and shame; a sense of isolation; ongoing impact on the victim's experience of personal intimacy; adverse effects on social relationships; anxiety and depression; and excessive protectiveness by the victim of her children.
[155] ts 745 - 748.
Sentencing remarks
After outlining the facts, the judge observed that the appellant's offending involved a degree of planning and premeditation, in that he planned to be alone with his victims only for the purpose of offending against them.[156] The judge made the following observations:[157]
I am satisfied that you preyed on the girls to satisfy your own depraved sexual interest in them. You were not deterred from your convictions in 1978 from continuing to offend against young girls. Although you have not offended against any girls since 1987, I am satisfied that is mainly because the daughters of your friends grew older, and there [was] no longer the opportunity for you to be in their presence and offend against them.
Also, after people became aware of your offending in 1978, parents would have been wary about letting their daughters be in your presence. I do not accept your explanation through your counsel, and to the psychiatrist, Ms Paige, that the reason you have not reoffended is because you have taken steps to rehabilitate yourself and control your sexual interest in young girls.
[156] ts 735.
[157] ts 735.
The judge then turned to deal with the issue of the seriousness of the offending which, he said, was demonstrated by the following factors:[158]
[158] ts 735 - 737.
(1)The appellant's repeated and persistent sexual offending against children who came into his company only because of his friendship with their parents. His victims also trusted the appellant because of his friendship with their parents, thus the offending involved a gross abuse of trust.
(2)The offending occurred on various occasions between 1974 and 1987, a period of 13 years.
(3)The appellant offended against eight different children.
(4)His victims were aged between 8 and 13 years. He was aged from his early 30s to late 40s, so there was a significant age disparity.
(5)The offending was not opportunistic; it was planned and premeditated. The appellant arranged to be alone with the children so that he could offend against them.
(6)The appellant knew that the children he offended against were frightened of him and did not fully understand what he was doing to them, which allowed the offending to continue over a prolonged period of time and on a persistent basis.
(7)The judge then said as follows, which is the subject of ground 2 of the appeal:[159]
The only reason the offending ultimately stopped is because your children grew up and your friends no longer had young daughters coming into contact with you. After the convictions in 1978, friendships were ended and there was a reduced opportunity for you to come into contact with young girls.
(8)The appellant was not deterred by his convictions in 1978 from continuing to offend. He was unable to resist acting on his sexual interest in young girls, thinking he could get away with it.
(9)The appellant's offending against RN caused her significant pain. The offending against DB and KD was also particularly serious.
(10)The appellant's victims were vulnerable; as children they should have felt safe when they were with him.
(11)The appellant's offending has had an adverse impact on his victims and reduced the enjoyment of their childhood. It is likely they will suffer lifelong consequences from his offending.
[159] ts 737.
The judge identified the following mitigating factors:[160]
(1)The appellant's age, being almost 80 years of age.
(2)The appellant's poor health, as detailed in [139] above.
(3)Apart from the 1978 convictions, there had been no other offending.
(4)The appellant had lived a prosocial life, raising a family, operating a successful business over many years, and being an engaged member of his community.
(5)Although carrying little weight, the appellant had suffered some degree of adverse publicity associated with the charges.
[160] ts 737 - 738.
The judge observed that, while there were references in the report of the clinical psychologist, Ms Paige, to the appellant's remorse, his Honour did not accept that the appellant was remorseful.[161]
[161] ts 739 - 740.
The judge found that the appellant's risk of reoffending was low. In that regard, he accepted Ms Paige's opinion, although he did not accept all of the reasons outlined by her for that opinion. In the judge's view, the main reason for the low risk of reoffending was that there was now a limited opportunity for him to offend, given his age and that his friends no longer had young children with whom he was regularly in contact.[162]
[162] ts 745.
The judge observed that personal deterrence had limited relevance to the appellant's sentencing, principally because of his advanced age and the reduced opportunity that he has to offend again.[163]
[163] ts 749.
The judge observed that general deterrence was an important sentencing consideration in cases of this type, meaning that mitigating circumstances would be given less weight than might otherwise be the case.[164]
[164] ts 749.
The judge found that the circumstances of the appellant's offending were so serious that only a sentence of immediate imprisonment was appropriate.[165] There is not, and could not reasonably be, any challenge to that conclusion.
[165] ts 750.
The judge then imposed the following individual sentences:
Count
Offence
Complainant
Term
Con/cum
5
Unlawful and indecent dealing with a girl under 13 years
JD
18 months
Con
6
Unlawful and indecent dealing with a girl under 14 years
DH
16 months
Con
7
Unlawful and indecent dealing with a girl under 14 years
DH
18 months
Con
9
Unlawful and indecent dealing with a girl under 14 years
DB
2 years 8 months
Cum
10
Unlawful and indecent dealing with a girl under 14 years
LN
18 months
Con
11
Unlawful and indecent dealing with a girl under 14 years
MB
2 years 4 months
Con
12
Unlawful and indecent dealing with a girl under 14 years
MB
16 months
Con
18
Unlawful and indecent dealing with a girl under 14 years
RN
2 years 6 months
Con
19
Unlawful and indecent dealing with a girl under 14 years
RN
2 years
Con
21
Unlawful and indecent dealing with a girl under 14 years
RN
3 years 4 months
Head sentence
22
Unlawful and indecent dealing with a girl under 14 years
CM
18 months
Con
23
Unlawful and indecent dealing with a girl under 14 years
KD
2 years 8 months
Cum
The judge then turned to totality and the manner in which the sentences were to be structured. The judge recognised that the appellant's advanced age must be given weight, so that the overall sentence was reduced.[166] His Honour also recognised that the appellant would experience hardship arising out of his knowledge that a lengthy sentence of imprisonment was likely to reduce any reasonable expectation the appellant might have of a useful life after his release.[167] However, the judge observed that the appellant's offending was very serious, involving offending against multiple young girls whose parents trusted him to properly care for them when in his company. The appellant's offending involved preying upon and sexually offending against vulnerable young girls over a prolonged period of approximately 13 years. It involved a degree of planning and premeditation, creating the opportunities to allow him to offend when his victims were alone with him.[168]
[166] ts 751.
[167] ts 751.
[168] ts 751.
The judge took into account that the appellant had been able to lead a normal life since the offending occurred, not having had to account for it closer to the time when it occurred.[169]
[169] ts 752.
The judge found that, taking into account all the circumstances, in order to achieve a just sentence a total sentence of 8 years 8 months' imprisonment was appropriate.[170] Consequently, he ordered that the sentences imposed for counts 9, 21 and 23 be served cumulatively upon each other, with the remaining sentences to be served concurrently with each other.[171]
[170] ts 752.
[171] ts 752.
The judge ordered that the appellant be eligible for parole and backdated the commencement of the sentence to 29 October 2018, to take into account the time the appellant had already spent in custody.[172]
[172] ts 752.
Grounds of appeal
The appellant advances 4 grounds of appeal, in the following terms:
1.The sentences imposed in respect of … Counts 22 and 23 were manifestly excessive in all the circumstances of the case.
2.The learned Sentencing Judge erred by finding as a fact in aggravation of the offending, that the Appellant only desisted from his course of offending as a result of lack of opportunity to do so. This finding was not reasonably open on the evidence.
3.The learned Sentencing Judge erred in finding that personal deterrence had any role to play in the imposition of sentence.
4.[Abandoned]
5.[Abandoned]
6.The overall total effective sentence of eight years and eight months infringed the totality principle, having regard to the circumstances of the case, including the Appellant's age and state of health.
It is only necessary to deal with ground 2 which, as explained below, must be upheld, with the result that this court must resentence the appellant in relation to all counts.
Ground 2: the appellant's submissions
Ground 2 asserts that the judge erred by finding as a fact in aggravation of the offending that the appellant only desisted from his course of offending as a result of a lack of opportunity to do so, such finding not being reasonably open on the evidence. The appellant submits that, because the judge used this finding as an aggravating factor, the judge had to be satisfied beyond reasonable doubt as to the fact.[173]
Ground 2: the respondent's submissions
[173] Appellant's submissions [50], referring to R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [27]; appeal ts 47, 51.
The respondent does not contend that it was open to the judge to be satisfied beyond reasonable doubt that the reason the appellant stopped offending was that he no longer had any opportunity to do so. Nor does the respondent contend that such a finding would properly be considered an aggravating factor.[174] The gravamen of the respondent's answer to ground 2 is its contention that the judge did not find that the appellant's cessation of offending due to a lack of opportunity was an aggravating factor, increasing the seriousness of his offending. Rather, the impugned finding was in the nature of the absence of a mitigating factor which had been advanced on behalf of the appellant - that he had voluntarily ceased offending.[175]
Ground 2: disposition
[174] Appeal ts 59.
[175] Respondent's submissions [5], [13]; appeal ts 57.
In the passage of the judge's reasons set out at [142] above, the judge responded to and rejected defence counsel's contention that the appellant had voluntarily ceased offending as a result of his own steps to rehabilitate himself. Had his Honour's reference to reasons for the cessation of the appellant's offending ended there, the judge's approach would be unexceptionable.
However, his Honour then turned, as he put it, to 'deal with the issue of the seriousness of the offending which is demonstrated by the following factors'.[176] The judge then catalogued a number of matters, as detailed in [143] above. The judge referred to 11 matters, of which the finding as to the only reason the offending ultimately stopped was the seventh. All of the other matters are, by their nature, plainly aggravating factors.
[176] ts 735.
Consequently, the structure of the judge's sentencing remarks compels the conclusion that the judge found that one of the aggravating features of the appellant's offending was the fact that the only reason the offending stopped was because the appellant's friends no longer had young daughters with whom he came into contact.
While it was well open to the judge to not accept defence counsel's assertions as to the reasons the offending ceased, in our respectful view it was not open, on the limited material before the judge, to be satisfied beyond reasonable doubt that the reason the appellant ceased offending was as found by the judge. Naturally, the evidence at trial had focused on the events the subject of the offending. Consequently, it provided an insecure foundation for drawing an inference beyond reasonable doubt as to why no further offending occurred in the more than 30 years between the last offence and the time of the trial. Moreover, there was no sufficient evidentiary basis for a conclusion that, after 1987, the appellant no longer came into contact with pre‑adolescent girls, whether through family relationships or otherwise. Indeed, there was material suggesting the contrary, in the form of references from people who attested to many years of spending time with the appellant with their children.
Counsel for the appellant clarified at the hearing of the appeal that ground 2 does not raise the question of whether the judge's finding as to the reason for the appellant's ceasing to offend is properly regarded as an aggravating factor.[177] There is room for doubting that it is and, consequently, whether any weight is properly to be attributed to it. Nevertheless, if, in the view of this court, the judge made an error that is material, this court does not assess whether and to what degree the error influenced the outcome; rather, this court must proceed to a resentencing of the appellant.[178] In circumstances where the judge found that the reason the appellant ceased offending was an aggravating factor, in our view it must be accepted that his Honour's error was capable of affecting the sentence and, thus, was material.[179]
[177] Appeal ts 47.
[178] Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 [42].
[179] Law v The Queen [2019] WASCA 81 [127].
Consequently, ground 2 of the sentence appeal must be upheld, and the appellant must be resentenced by this court on all counts.
Resentencing
This court has the material necessary for resentencing.
In resentencing, it is important to bear in mind that, for each offence, the maximum penalty is 7 years' imprisonment, not the higher maximum applicable under the current statutory regime.
The following general principles are well established.
The primary sentencing considerations for sexual offending against children are punishment of the offender and personal and general deterrence, having regard to the need to protect vulnerable children. Matters personal to the offender are of less mitigatory weight than might otherwise be the case. The fact that an offender is otherwise of good character has only little weight because the offences are of a kind that, until revealed, generally do not impact on other people or upon their perception of the offender.[180]
[180] See, for example, The State of Western Australia v Shephard [2018] WASCA 140 [41].
There is no tariff for offences of the kind committed by the appellant, or for sexual offences generally, because of the great variation that is possible in the circumstances of the offending and the offender. The sentence to be imposed in a particular case depends on its individual facts and circumstances, the relevant maximum penalties and all relevant sentencing factors.
The appellant's offending involved a combination of a number of serious elements. His offending was sustained, occurring over a period of about 15 years. Significantly, the appellant offended against eight different victims. His offending involved a gross breach of trust; he took advantage of family friendships to offend against his victims. He also took advantage of the vulnerability of his young victims. The appellant's offending was planned and premeditated. He was a mature adult when he committed his offences, meaning there was a very significant age disparity. His offending has had enduring adverse impacts on his victims. That reinforces the significance of his having offended against eight different victims in the evaluation of the overall criminality of the appellant's offending.
The appellant did not have the significant mitigating benefit of pleas of guilty. Nor has he shown any remorse. The major mitigating factors are the appellant's age, his health issues, and his positive contribution to the community through his employment and community and voluntary work. However, as already noted, the nature of the appellant's offending means that these mitigating factors are to be given less weight than might otherwise be the case.
We would impose the following sentences of immediate imprisonment on each of the individual offences:
Count 5
18 months' imprisonment
Count 6
12 months' imprisonment
Count 7
15 months' imprisonment
Count 9
2 years 8 months' imprisonment
Count 10
18 months' imprisonment
Count 11
2 years' imprisonment
Count 12
15 months' imprisonment
Count 18
2 years 6 months' imprisonment
Count 19
2 years' imprisonment
Count 21
3 years' imprisonment
Count 22
14 months' imprisonment
Count 23
2 years 3 months' imprisonment
Given the number of the appellant's offences, the totality principle plays a significant role in determining the total effective sentence. In our view, a total effective sentence of 7 years 8 months' imprisonment is appropriate for the overall criminality involved in all of the appellant's offending, viewed in its entirety, having regard to all relevant facts and circumstances including those relevant to the offender, and having regard to all relevant sentencing factors and the total effective sentences imposed in broadly comparable cases.
We would order that counts 9, 11 and 21 be served cumulatively on each other, with the balance of the sentences to be served concurrently with each other and concurrently with the new sentence for count 21, resulting in a total effective sentence of 7 years 8 months' imprisonment. The new sentence for count 21 is the head sentence.
We would order that the appellant be eligible for parole and that the new sentence for count 21 be backdated to commence on 29 October 2018.
Conclusion
We would make the following orders.
On the conviction appeal:
(1)Leave to appeal on grounds 1 - 4 is refused.
(2)Leave to appeal on ground 5 is granted.
(3)The appeal is dismissed.
On the sentence appeal:
(1)Leave to appeal on ground 2 is granted.
(2)Leave to appeal on grounds 1, 3 and 6 is refused.
(3)The appeal is upheld.
(4)The sentences imposed on 31 October 2018 are set aside. In substitution, the appellant is sentenced as set out in [172], [174] and [175] above.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SL
Associate to the Honourable Justice Beech27 FEBRUARY 2020
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