NYL v The State of Western Australia
[2022] WASCA 41
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NYL -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 41
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 3 MARCH 2022
DELIVERED : 1 APRIL 2022
FILE NO/S: CACR 125 of 2021
BETWEEN: NYL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: MASSEY DCJ
File Number : IND 1626 of 2020
Catchwords:
Criminal Law - Sexual offences against a child - Appeal against conviction of two counts of indecent dealing with a child of or over 13 years of age and under the age of 16 years - Whether verdicts of guilty are unreasonable or unsupported by the evidence - Whether verdicts of guilty are inconsistent with verdicts of not guilty on other counts
Legislation:
Criminal Code (WA), s 321, s 321A
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | D Grace QC |
| Respondent | : | B M Murray |
Solicitors:
| Appellant | : | Timpano Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Bailey v The State of Western Australia [2018] WASCA 169
DPJB v The State of Western Australia [2010] WASCA 12
Gibbs v The State of Western Australia [2018] WASCA 68
KND v The State of Western Australia [2017] WASCA 36
Liberato v The Queen (1985) 159 CLR 507
Longman v The Queen (1989) 168 CLR 79
M v The Queen (1994) 181 CLR 487
Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123
Wells v The State of Western Australia [2017] WASCA 27
JUDGMENT OF THE COURT:
Summary
The appellant was charged with one count of having a sexual relationship with a child under 16 years, contrary to s 321A(3) of the Criminal Code 1913 (WA) (Code). This charge alleged that, between 1 May 2001 and 1 July 2002 at a metropolitan suburb, the appellant had a sexual relationship with the complainant, a child under the age of 16 years.
The appellant was tried by judge and jury and was found 'not guilty' of that charge. However, he was convicted in the alternative of two offences of indecently dealing with the complainant, a child of or over the age of 13 years and under the age of 16 years. That is an offence contrary to s 321(4) of the Code. The appellant was also found 'not guilty' of four alternative offences of sexual penetration of the complainant.
On 24 August 2021, the appellant was sentenced for the two indecent dealing offences to a total effective sentence of 2 years 3 months' immediate imprisonment, with eligibility for parole.
The appellant now appeals against his convictions of the two indecent dealing offences. Ground 1 contends that the 'guilty' verdicts are unreasonable or cannot be supported having regard to the evidence. Ground 2 contends that the verdicts of 'guilty' were inconsistent with the verdicts of 'not guilty', giving rise to a miscarriage of justice. The application for leave to appeal on these grounds was referred to the hearing of the appeal.
For the following reasons, there is no merit in either ground of appeal. Leave to appeal should be refused on both grounds and the appeal should be dismissed.
Statutory context
At the time of the alleged offending, s 321A(3) of the Code created an offence in the following terms:
A person who has a sexual relationship with a child under the age of 16 years is guilty of a crime[.]
Section 321A(1) defined 'a sexual relationship' in the following terms:
For the purposes of this section a person has a sexual relationship with a child under the age of 16 years if that person, on 3 or more occasions each of which is on a different day, does an act in relation to the child which would constitute a prescribed offence.
A 'prescribed offence' for the purpose of s 321A was defined in s 321A(11) of the Code to include an offence under s 321(2) or s 321(4) of the Code. Section 321(2) made it an offence to sexually penetrate a child of or over the age of 13 years and under the age of 16 years. Section 321(4) made it an offence to indecently deal with a child of or over the age of 13 years and under the age of 16 years.
Section 321A(9) of the Code provided for alternative verdicts where a person was charged with having a sexual relationship with a child under the age of 16 years, in the following terms:
Upon an indictment charging a person with an offence under subsection (3), if the jury is not satisfied the accused person is guilty of that offence, the accused person may be convicted of one or more prescribed offences if the offence or offences are established by the evidence.
Relevant relationships
There is no controversy in this case as to the relevant relationships.
The complainant was born in May 1987. Her parents separated in 1990 and the complainant initially lived with her mother, but by 2001 was staying overnight at her father's house from time to time.[1] The appellant, who was in his 40s in 2001, had separated from his wife and was a friend of the complainant's parents. In 2001, the appellant was staying as a boarder at the house of the complainant's father. The appellant had previously had an affair with the complainant's mother.
[1] Trial ts 263, 405.
In mid-late 2001, the complainant moved in to live with her father while the appellant was still living at her father's house.[2] Subsequently, the appellant moved out of the complainant's father's house and returned to live with his wife after reconciling with her. The complainant returned to live with her mother in 2003 when she was 16 years old.[3]
[2] Trial ts 188.
[3] Trial ts 267 - 268.
State case at trial
The State's case was that the appellant allegedly committed prescribed sexual offences against the complainant on four separate days:[4]
1.In mid-2001, when the complainant was 14 years old, there was an occasion where the appellant and the complainant were lying on the appellant's bed in her father's house, listening to music. The appellant moved the complainant's G-string to one side and pushed his penis around the outside of her vagina. The complainant pushed the appellant away and told him that she did not want to 'lose [her] virginity' to him.
2.The following Saturday night, after the complainant had had sex with her boyfriend, the appellant and complainant were again in the appellant's bedroom. The appellant performed three acts of sexual penetration on the complainant by engaging in cunnilingus, digitally penetrating the complainant's vagina, and penetrating the complainant's vagina with his penis.
3.On a Tuesday night after the appellant had moved out, and while the complainant's father was away, the appellant arrived at the complainant's father's house and climbed in through her bedroom window. The appellant's penis penetrated the complainant's vagina and he ejaculated.
4.On a later occasion, the appellant took the complainant to a motel where he sexually penetrated her vagina with his penis.
The prosecutor explained to the jury that the offence against s 321A(3) of the Code would be established if they found that the appellant committed a prescribed offence on three or more of these four occasions.
[4] Trial ts 121 - 122.
The State's case was that the appellant regularly engaged in sexual activity with the complainant over the relevant period. The prosecutor accepted that the complainant was a willing participant in the sexual activity with the appellant but emphasised that consent was not a defence to the charge because she was a child.[5]
[5] Trial ts 122.
The State's case was that the complainant disclosed the sexual relationship to her mother in 2003, when she was 16 years old. The State also contended that the appellant confessed to having a sexual relationship with the complainant in a subsequent telephone conversation with the complainant's mother and in a recorded discussion with the complainant's father.[6] Evidence of the complainant's disclosure was not adduced or led as recent complaint evidence, but rather explained how the conversations in which the appellant allegedly made those admissions arose.[7]
[6] Trial ts 122 - 123.
[7] Trial ts 515 - 516.
Appellant's case at trial
The appellant's case at trial was that none of the alleged sexual acts occurred, and that he never had a sexual relationship with the complainant. Senior counsel for the appellant at trial set out a number of matters which he contended reflected adversely on the complainant's credibility. He contended that the jury could not be satisfied, beyond reasonable doubt, on the complainant's evidence that any of the prescribed offences occurred. The appellant denied making any admissions of sexual activity with the complainant to either of the complainant's parents.[8]
[8] Trial ts 128 - 136, 377, 378.
Complainant's evidence at trial
The complainant described the family relationships and explained that, when the appellant began living with her father, she was living with her mother but spending more and more time with her father.[9] She described becoming close with the appellant when he was having an affair with her mother. She also described speaking on the telephone with the appellant daily and having 'late night deep and meaningfuls' and late-night cuddles with the appellant before things 'got sexual'.[10]
The first incident
[9] Trial ts 139 - 141.
[10] Trial ts 141 - 142.
The complainant described the first incident as occurring in around June 2001, just after her 14th birthday. This was the first time that there was any sort of sexual interaction between the appellant and the complainant. The complainant and the appellant were lying on the bed in the appellant's bedroom of the complainant's father's house. She was in her underwear, wearing a bra and G-string, and the appellant was under the blankets wearing a G-string. They were listening to music and '[k]ind of spooning'. The appellant pulled the complainant's G-string to one side and was rubbing the top of his erect penis around the outside of her vagina. The complainant flinched and told the appellant that she could not 'lose [her] virginity to a 44-year-old man'. The appellant and the complainant continued 'spooning' and listening to music. She remained in his bedroom for most of the night and there was no other sexual activity during that night. The complainant believed that her father was away at a running club at this time.[11]
[11] Trial ts 142 - 144.
The complainant said that she and the appellant 'continued to get closer and closer, mentally, physically, spiritually'. She also said that they exchanged constant text messages and phone calls and that it 'was basically like a secret relationship'. The complainant had sex with her boyfriend for the first time so that she could 'go back [to the appellant] the following week'.[12]
The second incident
[12] Trial ts 144.
About a week after the first incident, the complainant came to her father's house to find the appellant playing his guitar in his bedroom with incense burning and candles lit. The complainant said that they 'started getting cosy in the bed' and she took off her jeans, so that she was wearing a bra and G-string. The complainant told the appellant that she had had sex for the first time during the week.[13]
[13] Trial ts 145 - 146.
In her evidence-in-chief, the complainant described the appellant performing cunnilingus on her and penetrating her vagina with his penis. The appellant was not wearing a condom, but this did not concern the complainant as he had told her that he had had a vasectomy. She did not know whether he ejaculated.[14] Under cross-examination, the complainant also described the appellant digitally penetrating her vagina during this incident.[15]
[14] Trial ts 146 - 147.
[15] Trial ts 206.
The complainant gave the following account of what happened next in her evidence-in-chief:[16]
What happens after that?---Well, we had sex and then we - we actually fell asleep and panicked when my - my dad actually walked in the room. And was quite suspicious obviously. I didn't have a - a shirt on or - the blanket was up here, but obviously he could see my bra straps. So it was a matter of once dad left the room, I - I jumped up and went into my room pretty fast.
[16] Trial ts 147.
However, in cross-examination the complainant said that she did not think her father walked in on them during the second incident, and thought she was confusing different incidents.[17]
The third incident
[17] Trial ts 207 - 210.
The complainant described the third incident as occurring after the appellant had moved back in with his wife. It happened on a Tuesday night when her father was at his running club. The appellant arrived by arrangement and the complainant was waiting for him in her underwear, wearing a bra and G-string. The appellant climbed in through her bedroom window and fell onto her bed. The complainant described what occurred in the following terms:[18]
Okay. So clothes come off. I ended up jumping on top of him this particular occasion. He said to me 'Slow down. Slow down, I'm going to come.' I didn’t slow down to which he did ejaculate pretty fast.
The fourth incident
[18] Trial ts 147 - 148.
The complainant described the appellant taking her to a motel where he penetrated her vagina with his penis. The appellant told the complainant that the motel room they were in was the same room that he used to bring her mother to.[19]
Other sexual activity
[19] Trial ts 149 - 150.
The complainant said that there were multiple other occasions when the appellant engaged in sexual activity with her, but she could not be specific. This occurred at least weekly when the appellant was living with her father and became rarer when he returned to live with his wife. The complainant was not sure when the sexual activity stopped, but thought it may have been around early 2002, or the end of 2001.[20]
[20] Trial ts 150 - 151.
In cross-examination, the complainant said that the appellant was uncircumcised and that she had seen what she understood to be a vasectomy scar on his scrotum just under his penis.[21] She accepted that she had told police that the scar was on his penis.[22]
Cross-examination
[21] Trial ts 184.
[22] Trial ts 199 - 201.
During a lengthy cross-examination, the complainant conceded the following matters on which the appellant now relies to attack the credibility and reliability of her evidence:
1.The complainant had regularly used drugs, including:[23]
[23] Trial ts 157 - 158, 160, 230, 245.
(a)cannabis from the age of 12 up to and including the time of trial; and
(b)methylamphetamine from the age of 15 until sometime prior to trial.
The complainant had also sold cannabis and was facing drugs and weapons charges at the time of trial.[24]
[24] Trial ts 244 - 245.
2.The complainant had suffered from mental illness, including bipolar disorder, diagnosed when she was 14 years old, and borderline personality disorder, diagnosed in 2018 or 2019.[25] This had resulted in two admissions to the psychiatric ward of a hospital in Bunbury in 2016 and 2018 and one admission to the psychiatric ward of a hospital in Armadale in 2018.[26] She had experienced auditory hallucinations.[27] As a child, she had self‑harmed after the appellant had moved out of her father's house.[28]
[25] Trial ts 159, 161.
[26] Trial ts 160 - 161, 170, 173, 177; see also re-examination at trial ts 256 - 257.
[27] Trial ts 161.
[28] Trial ts 182 - 183.
3.At the time of the alleged offending, the complainant was experiencing family dysfunction, including:
(a)not getting on with her mother, who had divorced her third husband, was drinking heavily, was abusive towards the complainant and was suffering from breast cancer;[29]
[29] Trial ts 223 - 224.
(b)being required to look after her younger brother as a result of her mother's difficulties;[30] and
[30] Trial ts 223 - 224.
(c)the fact that her older brother was using methylamphetamine and had offered some to the complainant (which she did not accept at that stage).[31]
[31] Trial ts 224, 226.
4.The complainant felt distressed when the appellant moved back in with his wife and felt that he was deserting her.[32]
[32] Trial ts 161 - 162, 246.
5.When the complainant reported the offences to police in April 2019,[33] she was facing a number of difficulties in her life including the fact that:[34]
[33] Trial ts 179.
[34] Trial ts 170 - 172, 174, 177 - 178.
(a)her grandmother was ill;
(b)her relationship with her then current partner (who herself suffered from significant personality disorders and drug use) had ended;
(c)she had interactions with the Department of Communities in relation to contact with her two young children from a previous relationship; and
(d)she was trying to live off a Centrelink pension while supporting a drug habit.
6.The complainant did not tell police about the fourth incident in the motel. She had only recalled this incident a couple of months prior to trial and had told the prosecutor about it only during the week prior to trial.[35]
7.The complainant had not previously told police about her father walking in on her and the appellant in bed.[36]
8.The complainant had once falsely told a teacher that her mother had punched her and given her a bloody nose.[37]
9.The complainant had once told her mother that her father had 'touched her' as she got out of the shower, which, at the trial, the complainant said was true. However, the complainant had previously told her mother that it was a lie in order to save her father.[38]
[35] Trial ts 179.
[36] Trial ts 210.
[37] Trial ts 224 - 225.
[38] Trial ts 247.
Evidence of the complainant's mother
The complainant's mother described her cancer diagnosis in 1999, and the breakdown of her marriage to her third husband about a week and a half into her radiotherapy.[39] She also described having a 'clandestine affair' with the appellant from around October 1999 until January 2001,[40] and how the complainant developed 'a bit of … hero worship' for the appellant at about this time.[41] She explained how the appellant came to board with the complainant's father in January 2001, and how the complainant spent a lot more time over at her father's house until moving there in the second or third quarter of 2001.[42]
[39] Trial ts 264 - 265.
[40] Trial ts 265, 279.
[41] Trial ts 266.
[42] Trial ts 267.
In mid-2003, when she was 16 years old, the complainant had a conversation in her mother's kitchen, where she told her mother that she had been in a relationship with the appellant.[43] The complainant's mother was 'furious' and called the appellant on his mobile phone. He called her back from a public telephone. The complainant's mother asked the appellant whether he had 'had sex with' the complainant. The appellant responded, 'yes'. The complainant's mother asked, 'Did you even love her', to which the appellant responded, 'Yes'. The complainant's mother called the appellant a 'pus-sucking, parasitic paedophile' and threatened to call the police.[44]
[43] Trial ts 268.
[44] Trial ts 269 - 270, 285.
Straight after her conversation with the appellant, the complainant's mother called the complainant's father and told him what the complainant had told her. The complainant's father subsequently gave the complainant's mother a copy of a recording which he had made of a discussion with the appellant, which the complainant's mother retained.[45]
[45] Trial ts 270.
The complainant's mother gave evidence that she had had no contact with police in 2003. The complainant was taking drugs and self‑harming at that stage and her parents felt that she was not well enough to make a report to the police. The complainant also did not want to approach the police at that time.[46]
[46] Trial ts 270 - 271.
In cross-examination, the complainant's mother confirmed a number of the difficulties facing the complainant, including:
1.the complainant's drug use;[47]
2.the drug use of the complainant's older brother;[48]
3.the complainant's difficulty with her mother's alcohol use;[49]
4.the need for the complainant to look after her younger brother while her mother was very ill;[50]
5.that the complainant took her mother's divorce in 1999 'fairly hard';[51]
6.the complainant's challenges with drugs, gender identity, divorce and domestic violence as an adult;[52]
7.the complainant falsely telling her teacher that her mother had hit her and given her a bloody nose;[53] and
8.the complainant expressing concern at the age of 12 years about the way her father touched her in the change rooms at 'Little Athletics', which she described as tickling.[54]
[47] Trial ts 273.
[48] Trial ts 274.
[49] Trial ts 277.
[50] Trial ts 279.
[51] Trial ts 279.
[52] Trial ts 287.
[53] Trial ts 275.
[54] Trial ts 285 - 286.
Evidence of the complainant's father
The complainant's father described the complainant as being very upset after the appellant moved out of his house. She was self‑harming and seeing a psychologist.[55] He described the complainant moving back in with her mother at the age of 16 after he and the complainant had a fight over the complainant's drug use.[56]
[55] Trial ts 305.
[56] Trial ts 306 - 307, 317.
A couple of days after receiving the disclosure from the complainant's mother, the complainant's father went to see the appellant at the appellant's workplace. He asked the appellant whether he had 'had sex with' the complainant when she was 14 years old. The appellant told the complainant's father that his workplace was not the place to discuss it, and that he would come around and see the complainant's father after work.[57]
[57] Trial ts 307, 320.
The complainant's father set up a video camera against the window where the two men were to sit outside and recorded the meeting. The complainant's father gave evidence that:[58]
At one part of the meeting I asked him if he had - if there was a sexual thing between him and [the complainant] and his answer was, 'I don't know how you'd define it.' And there was some conversation and then I asked him if it did happen. He said, 'I didn't know how to stop it.' I asked him again and he said, 'It did, yes.'
All right. And did he say anything else after saying, 'Yes, it did, yes,' as you said?---He did. He said, 'I know I run the risk of you beating the shit out of me and I wouldn't blame you to a degree.'
[58] Trial ts 308.
The recording has poor sound quality, and parts of the long conversation between the appellant and the complainant's father are indistinct. The appellant gives a long account of his understanding of the difficulties being experienced by the complainant when he was living at the house, including her apparent drug and alcohol use and her expressing suicidal ideation. The appellant said that the complainant's mother was using 'this incident at the moment' to destroy him and his family.[59] The following exchange then occurs:[60]
[59] Recording ts 10; exhibit 6 and exhibit 8 at about 27.15 - 28.30.
[60] Recording ts 10 - 11; exhibit 6 at about 28.30 - 30.00.
Complainant's father: Was there a sexual thing going on between you?
Appellant:I don't know how you'd define it.
Complainant's father: Sex or not?
Appellant:[indistinct] [father's first name] I didn't take, it was all …
Complainant's father: [indistinct]
Appellant:'No, stop, stop, stop,' and at the point, I had to stop it and I had to get out of there. There was some physical contact. It was not derived - it was not, you gotta believe me [father's first name]. I know you know me, I know you know me. You know - it's not - I know it's something you don't want to hear. I wouldn't want to hear.
Complainant's father: I didn't [indistinct]
Appellant:I know I understand that. But there was no, I never, ever meant for - or derived to take anything. It was all how in the hell did I get into that corner.
Complainant's father: But it did happen.
Appellant:At the end of the day, I didn’t know what to do.
Complainant's father: But it did happen.
Appellant:It did yes.
And I - I know I run the risk of you smashing the fuck out of me - I wouldn't- I wouldn't blame you to a degree but all I can hope is - is that in your heart, and I know you know I am not a manipulator, really - at least maybe for [indistinct] how I got myself painted into that corner and didn't know what to do to stop it. Which is why I ran, because this has got to stop. I didn't want - if I wanted it to continue and that is what I was after I would've stayed.
The accuracy of the transcript, which we have reproduced above, was disputed at trial, particularly as to whether the appellant answered, 'It did yes' to the complainant's father's statement, 'But it did happen'. On appeal, senior counsel for the appellant indicated that neither he nor counsel for the State could decipher those words.[61]
[61] Appeal ts 3.
The transcript was not before the jury. The evidence of the discussion is the audio-visual recording (exhibit 8) and the enhanced audio recording (exhibit 6).
Using headphones, we have watched and listened to the audio‑visual recording and listened to the enhanced audio-recording, and the transcript quoted above appears accurate to us. We note that at the hearing of the appeal, senior counsel for the appellant indicated that it was appropriate for this court to listen to recordings in that manner.[62] We can clearly hear the appellant respond (albeit quietly), 'It did yes' after the complainant's father says, 'But it did happen' (at 29.39 of exhibit 8). There may be room for doubt as to whether the appellant said, 'It did yes', or, 'It did yeah'. However, we have no doubt that the appellant admitted that 'it did happen'. That is consistent with the oral evidence of the complainant's father as to what was said, summarised at [36] above.
[62] Appeal ts 5.
The complainant's father said that he discussed the question of whether there should be some police action with the complainant's mother. They decided that their concern was for the complainant's safety, given her self-harming and suicidal ideation and given the concern of her psychologist. They decided that it was better to put everything on hold until the complainant was better.[63]
[63] Trial ts 312.
While the complainant's father described seeing interactions between the appellant and complainant outside on some occasions,[64] he denied ever walking in on the appellant and complainant in bed together at his house.[65]
[64] Trial ts 306 - 307.
[65] Trial ts 316.
Police evidence
Detective First Class Constable Benjamin Rooney gave uncontroversial evidence about the complainant's approach to police and the taking of her statement in 2019, and the arrest of the appellant on 3 January 2020.
Detective Rooney accepted that he may have told the complainant that she needed to identify three separate incidents before a charge against the appellant could proceed. The complainant was initially only able to provide sporadic details but was able to give details of the first three incidents as time went on.[66]
[66] Trial ts 348 - 351. The complainant also said that it was 'difficult for me to delve into my brain and pull out three incidents' at trial ts 210.
Appellant's evidence
The appellant gave evidence at trial and denied having any sort of sexual contact with the complainant. He denied that any of the four incidents said to constitute the sexual relationship occurred.[67]
[67] Trial ts 362, 367, 372.
The appellant gave evidence that the complainant's father was often absent from home, and the complainant began to rely on him for emotional support. He also gave evidence that he became aware of the complainant's drug and alcohol use, her self-harming and her desire to commit suicide.[68]
[68] Trial ts 366 - 368.
The appellant confirmed that he had had a vasectomy by the time of the alleged offending but denied having a scar on his penis.[69] A medical report was tendered by consent indicating that, on examination on 6 April 2021, the appellant had an uncircumcised penis with no visible scar or scar remnants.[70]
[69] Trial ts 370.
[70] Trial ts 447 - 449; exhibit 11.
The appellant said that, when he moved back in with his wife, the complainant was begging him to stay at her father's house and threatened that, if he left, she would tell people that he had raped her or that they had 'had sex'.[71]
[71] Trial ts 371.
The appellant said that the complainant was aware of his affair with her mother, and that he was terrified that she would inform his wife (who did not know of the affair). He said that he feared the complainant would ruin the work he and his wife had done in rebuilding their relationship.[72]
[72] Trial ts 371 - 372.
The appellant denied ever having a telephone conversation with the complainant's mother in 2003 in which the mother accused him of 'having sex' with the complainant. He further denied admitting that he had done so.[73]
[73] Trial ts 377.
The appellant admitted that the complainant's father came to his workplace and told him that the complainant had alleged that she was 'having sex' with the appellant. The appellant's evidence was that he denied to the complainant's father having done so. The appellant accepted that he had said that his workplace was not the time and place to discuss the issue.[74]
[74] Trial ts 377 - 378.
The appellant denied ever having admitted to engaging in any form of sexual activity with the complainant in the recorded discussion with her father. He said, in effect, that, in the passage quoted at [37] above, he was apologising for not having informed the complainant's father of the difficulties the complainant was facing, out of fear that the complainant would tell his wife about his affair with the complainant's mother.[75]
[75] Trial ts 378 - 382.
The appellant maintained the above account in cross-examination.[76]
[76] Trial ts 419.
Evidence of the appellant's wife
The appellant's wife gave evidence as to the general nature of her relationship with the appellant, and what she had observed of the complainant and her parents, including the mother's alcoholism.[77]
[77] Trial ts 450 - 454.
The appellant's wife described an incident she observed at the complainant's mother's house, when the complainant was upset and said that she did not want to go to her father's house that weekend. The complainant said that she did not like the way her father touched her, made her feel uncomfortable and watched her.[78]
[78] Trial ts 454.
The appellant's wife also described meeting the complainant in a park weeks or months after the appellant had moved out of the complainant's father's home and returned to her. At that meeting, the complainant said, 'Well, my mum said you'll never make him happy, and we'll have him back by Christmas'. The complainant then 'stormed off'.[79]
[79] Trial ts 459 - 460.
The appellant's wife gave evidence that the appellant had a vasectomy and had a small scar on his scrotum area but did not have a scar on his penis.[80]
[80] Trial ts 460.
Character evidence
The appellant called good character evidence from three witnesses.
Verdicts
The jury found the appellant 'not guilty' of the offence of having a sexual relationship with the complainant, as charged in the indictment.[81]
[81] Trial ts 547.
The jury were then asked for verdicts on the alternative offences of sexual penetration and indecent dealing. The alternative offences were the prescribed offences particularised by the prosecution as constituting the four incidents. The third incident was left to the jury as a count of indecent dealing, as the complainant did not expressly say that the appellant's penis penetrated her vagina in that incident.[82]
[82] Trial ts 521.
The appellant was found 'guilty' of each of the indecent dealing offences, constituting the first and third incidents respectively. He was found 'not guilty' of the three sexual penetration offences constituting the second incident and the sexual penetration offence constituting the fourth incident.[83]
[83] Trial ts 547 - 548.
Appeal ground 1: unreasonable verdict
The appellant's first ground of appeal contends that the verdicts of 'guilty' are, having regard to the evidence, unreasonable or cannot be supported.[84]
General principles
[84] Criminal Appeals Act 2004 (WA) s 30(3)(a).
The general principles governing an appeal on the ground of unreasonable verdict, derived from the decision of the High Court of Australia in M v The Queen,[85] are well established. In summary:[86]
1.The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
2.The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
3.That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
4.In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses.
5.A doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
6.If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict.
7.The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.
[85] M v The Queen (1994) 181 CLR 487.
[86] See Wells v The State of Western Australia [2017] WASCA 27 [13] and cases there cited; Gibbs v The State of Western Australia [2018] WASCA 68 [28] - [34].
The functional demarcation between the province of the jury and the province of the appellate court was described by the High Court in Pell v The Queen.[87] The court emphasised that the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community.[88] By contrast:[89]
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt. (citation omitted)
Appellant's submissions
[87] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123.
[88] Pell [37] - [38].
[89] Pell [39].
The appellant submits that the complainant's evidence lacks credibility 'for reasons which are not explained by the manner in which it was given', sufficient for this court to have a reasonable doubt about the appellant's guilt. The appellant submits that the complainant's evidence, upon the record itself, lacks probative value and that this court should conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted.[90]
[90] Appellant's Submissions [21].
The appellant points to the complainant's delay in making a complaint to police and the consequent forensic disadvantage he suffered as a consequence. He notes the Longman warning[91] and Liberato direction[92] that the trial judge gave the jury.[93]
[91] After Longman v The Queen (1989) 168 CLR 79.
[92] After Liberato v The Queen (1985) 159 CLR 507.
[93] Appellant's Submissions [22].
The appellant submits that the complainant's evidence, on the record itself, displays that she was not a credible witness. The appellant contends:[94]
Her unfortunate mental illness, her history of lying and making false complaints, her attention-seeking behaviour, her illicit drug use and her obviously complex psychological condition all give rise to serious doubts about her veracity. Further, the alleged admissions are non-specific and the veracity of the evidence supporting that such admissions were made by the Applicant is seriously in question.
[94] Appellant's Submissions [28].
The appellant submits that, on the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that he was guilty of any of the offences.[95]
Respondent's submissions
[95] Appellant's Submissions [30].
The State submits that the complainant gave clear and consistent evidence about the first and third incidents. The sexual character of her relationship with the appellant was supported by evidence of his conduct, which the jury could reasonably regard as amounting to admissions as to that fact. The State contends that, although the matters raised by the appellant had the capacity to undermine the complainant's credibility and reliability, the jury were entitled to give those matters such weight as they thought appropriate. The State says that the jury enjoyed a very considerable advantage of having seen and heard the witnesses give their evidence, and that the appellant has failed to establish that the jury must have entertained a reasonable doubt as to his guilt of either of the indecent dealing offences.
Disposition
The appellant gave evidence denying that he had ever had any sort of sexual contact with the complainant. To convict the appellant of any of the prescribed offences left as alternative offences, the jury had to positively reject the appellant's evidence. He could not be found guilty of any of those prescribed offences if there was a reasonable possibility that his account was true.
Appellant's admissions to the complainant's parents
In addition to the complainant's evidence, there was evidence from both of the complainant's parents that, shortly after the complainant's initial disclosure in 2003, they separately spoke to the appellant. Both parents say that the appellant admitted to engaging in sexual activity with the complainant. While the appellant denied making either admission, his conversation with the complainant's father was recorded. On the most favourable view of that recorded conversation from the appellant's perspective, the appellant's answers to the father's direct questions were a rambling obfuscation. It was reasonably open to the jury to conclude that the appellant's answers to the father's questions were inconsistent with his evidence at trial and constituted an admission that he had engaged in some kind of sexual activity with the complainant.
In the passage quoted at [37] above, the complainant's father asked the appellant whether there was 'a sexual thing' going on between 'you' (which in context was a reference to the appellant and the complainant). On the appellant's evidence at trial, the answer to this question was a straightforward 'no'. The appellant's actual answer when asked by the complainant's father was, 'I don’t know how you'd define it'. The jury could regard that answer to be inconsistent with the appellant's evidence that there was no sexual activity of any kind between him and the complainant.
The complainant's father then asks another direct question: 'Sex or not?'. Again, on the appellant's evidence at trial the answer to that question was a straightforward, 'Not'. The appellant's rambling and somewhat incoherent answer involves his saying that 'I had to stop it and I had to get out of there'. That answer can be taken as implicitly conceding that there was some form of sexual activity which the appellant felt he had to stop. That implication is reinforced by the appellant's statement that '[t]here was some physical contact', which, in the context of the recorded discussion, the jury could reasonably take to be a reference to physical contact of a sexual nature. The meaning of the appellant's subsequent reference to the contact not being 'derived' is not entirely clear. However, the appellant's next statement that this was not something that the complainant's father wanted to hear, or that the appellant would want to hear, also tends to confirm that the appellant is at least implicitly admitting to engaging in some form of sexual activity with the complainant.
The complainant's father then says, 'But it did happen'. The reference to 'it' in the context of the previous conversation must be to sexual activity between the appellant and the complainant. Once again, the obvious response, given the appellant's evidence at trial, would be to say that it did not happen. The appellant's response is that, 'At the end of the day, I didn't know what to do'. This answer can be taken to accept that some form of sexual activity did occur and that the appellant did not know what to do about it.
The complainant's father then repeats, 'But it did happen'. As noted at [40] above, it appears to us from the recording that the appellant responded to this question, 'It did yes/yeah'. It was at least open to the jury to take the view that this was his response, and that this response was an express admission by the appellant that he had engaged in sexual activity with the complainant. That understanding is reinforced by the immediately following statement by the appellant that he knew that he ran the risk of the complainant's father 'smashing the fuck out of [him]', and that the appellant would not blame the complainant's father 'to a degree' if he did.
The appellant then refers to not knowing 'what to do to stop it' and he 'ran' because he knew 'this has got to stop'. He further says that, 'If I wanted it to continue and that is what I was after I would've stayed'. Here the appellant appears to us to be saying that he knew his sexual activity with the complainant had to stop and that is why he moved out of the complainant's father's house.
The jury could take the passage quoted at [37] above, as a whole, to constitute an admission by the appellant that he engaged in sexual activity with the complainant and left because he knew that it was wrong and he did not know what else to do to stop it. That is consistent with what the complainant's father understood the appellant to be saying, noted at [36] above. Listening to and watching the recording, that is the conclusion which we draw.
In addition, the complainant's mother gave evidence of asking the appellant whether he 'had sex with' the complainant, to which he responded, 'Yes'. The jury could reasonably accept that evidence and reject the appellant's denial that the telephone conversation ever occurred. There is no dispute that the complainant disclosed the alleged sexual activity with the appellant to her mother in 2003. It would be a natural reaction for the complainant's mother to call the appellant and ask if it was true. It is hardly surprising that the conversation was, as the complainant's mother put it, 'emblazoned' on her memory.[96] Senior counsel for the appellant accepted that whether the mother's evidence in this regard should be accepted was quintessentially a jury question.[97]
[96] Trial ts 284.
[97] Appeal ts 10.
On appeal, senior counsel for the appellant suggested that the complainant's mother's evidence about this conversation with the appellant was false and motivated by her animosity towards the appellant.[98] However, that was not put to the complainant's mother during cross-examination on this topic, which focussed on the fact that the mother made no record of the conversation some 18 years earlier.[99] Further, the mother's answers to other questions, such as those noted at [33] above, could be regarded as contrary to the complainant's interest. The mother's evidence does not appear to be tailored to support the prosecution case. Further, it seems inherently unlikely that the mother's reaction to the end of a short relationship with the appellant would persist for 19 years and lead to her giving false evidence against a person charged with a very serious criminal offence. In our view, it was open for the jury to regard the complainant's mother as an honest witness, whose evidence about her conversation with the appellant was credible, reliable and should be accepted.
Impact of the appellant's prior admissions on the credibility of his denials
[98] Appeal ts 10.
[99] Trial ts 284 - 285.
On the above basis, the jury could reasonably have found that, in 2003, the appellant admitted to engaging in sexual activity with the complainant. The admissions were not specific as to any particular conduct or charge. However, those admissions, and the appellant's obfuscation in response to the father's direct questions, were inconsistent with the appellant's evidence at trial that he had not engaged in any sort of sexual conduct with the complainant. Those admissions and that obfuscation provided a proper basis for the jury to positively reject the appellant's evidence at trial on the basis that it was untruthful.
In oral submissions, senior counsel for the appellant conceded that, if the jury accepted that the admissions were made, they could provide a basis for the jury to reject the appellant's evidence.[100]
Credibility and reliability of the complainant's evidence
[100] Appeal ts 9.
In addition to providing a basis for rejecting his evidence, the appellant's admissions tended to bolster the credibility of the complainant's evidence that she and the appellant had engaged in sexual activity.
As senior counsel for the appellant accepted in argument,[101] there was no evidence at trial, other than the appellant's denial, which was inconsistent with the complainant's evidence that the appellant committed the offences of which he was convicted. Further, as senior counsel also accepted,[102] the complainant's evidence, if accepted as credible and reliable, established each element of the offences of which the appellant was convicted. The complainant's evidence as to the commission of those offences was clear, and there was no evidence that it was inconsistent with her prior statements or conduct.
[101] Appeal ts 8.
[102] Appeal ts 8.
The effect of the appellant's submissions is the suggestion that the family dysfunction experienced by the complainant, the substance abuse by the complainant and her family members, the complainant's psychiatric illness and past incidents of the complainant telling lies about other matters meant that her evidence was incapable of being believed to the criminal standard.[103]
[103] Appeal ts 8.
In seeking to satisfy the court of that matter, senior counsel for the appellant set himself a formidable task. He asks this court to reach a conclusion that the complainant's evidence of the indecent dealing offences lacks the requisite credibility or reliability without having seen or heard her give evidence.
The matters referred to by the appellant were capable of affecting the jury's assessment of the complainant's evidence. However, in our view those matters did not, either individually or in combination, preclude the jury, which had the advantage of seeing and hearing the complainant give evidence over two days, from finding that the complainant's evidence as to the indecent dealing offences was credible and reliable.
There was no evidence, either from the complainant herself or from a qualified expert, that the complainant's psychological and psychiatric conditions made her evidence unreliable. While the complainant reported experiencing auditory hallucinations, there was no evidence suggesting that she ever held delusional beliefs, or that her psychiatric illness affected the reliability of her memory.
There was also no evidence that the complainant's drug use affected or made unreliable her recollection of events. The complainant's evidence was that cannabis could affect her recall of things when she was under its influence but otherwise that it did not do so. She accepted that a period on methylamphetamine had severely impacted on her pre-existing mental health issues but did not say that it made her memory unreliable.[104]
[104] Trial ts 159.
The complainant admitted to having told two lies in relation to matters not concerning the appellant. First, she admitted having falsely told a teacher that her mother had struck her in order to explain a bloody nose. Secondly, the complainant said that she had truthfully told her mother of her concern about her father's conduct and then untruthfully told her mother that she had lied in order 'to save [her] dad'.[105] Both lies were told by the complainant as a child, neither concerned the appellant or the events the subject of the charge and the complainant never accepted that she had made false allegations of serious sexual offences. While the jury could take account of these lies in assessing the complainant's evidence about the charged acts, the admitted lies did not preclude the jury from being satisfied that the complainant's evidence about the charged conduct was credible and reliable.
[105] Trial ts 247.
It appears from the transcript that the complainant was generally candid in recounting the many difficulties which she experienced in her life. Senior counsel for the appellant pointed[106] to some reticence by the complainant, who was facing drugs charges, to admit in evidence that she had dealt drugs.[107] However, the complainant did admit to selling cannabis. She accepted the proposition put to her by the appellant's trial counsel that, when interviewed by police in relation to her current charges, she had admitted to police that 95 g of cannabis found in her possession was for sale and supply.[108] Senior counsel for the appellant also pointed to the complainant indicating that she did not want to talk about her father's conduct.[109] However, she answered questions when instructed by the trial judge that she was required to do so.[110] The evidence to which senior counsel for the appellant points does not gainsay the proposition that the complainant was generally candid in her evidence about matters which she might perceive reflected adversely upon her.
[106] See appeal ts 36 - 37.
[107] Trial ts 231, 245.
[108] Trial ts 244.
[109] Appeal ts 37 - 38.
[110] Trial ts 247.
Further, the complainant's answers appear to demonstrate insight into the contributors to many of the difficulties which she has experienced in her life. That is illustrated by the following passage of the complainant's cross-examination:[111]
Is it the case you blame [the appellant] for ruining your life?---I don't blame him for ruining my complete life. I do however blame him for my - he took something from me and I never got a chance to know what it was to get it back.
What, your virginity?---No, my dignity and self-respect.
You blame him for - you don't - you don't think drugs wrecked your life, you think it was [the appellant]?---No, no. Drugs definitely contributed to my mental illness. But I'm sorry. I do blame him for my lack of trust and faith in men.
[111] Appeal ts 252.
The complainant was subjected to a lengthy cross-examination, which appears from the transcript to have been aggressive. Throughout that cross-examination, she maintained her account of the sexual abuse relied on by the State to constitute the sexual relationship charged in the indictment. The jury had the benefit, which this court does not, of watching and listening to the complainant give her evidence. They could well have had regard to the manner in which she did so to dispel any doubts created by matters capable of reflecting adversely on the credibility or reliability of the complainant's evidence.
In oral submissions, senior counsel for the appellant submitted that the complainant's evidence about the third incident was implausible. He submitted that the complainant's evidence was that she and the appellant fell asleep in her bed and were awoken by her father driving into the carport. The complainant said that the appellant had to sneak out through the window. Counsel said that the evidence was that the carport was immediately adjacent to the bedroom window, so the complainant's father must have seen the appellant if that had occurred.[112] However, it is apparent from the transcript that the complainant is there describing another occasion, and not the third incident.[113] In any event, the complainant did not give evidence that the appellant left through the window immediately, while her father was still in the carport.
[112] Appeal ts 28.
[113] Trial ts 149.
Senior counsel also referred to the evidence about the scar on or about the appellant's penis.[114] The complainant had told police that there was a scar on his penis. However, her evidence at trial was that the scar was on his scrotum near his penis. A medical report indicated that no scar was visible as at April 2021. However, the appellant's wife gave evidence of observing a small scar on his scrotum area.[115] That provides some support for the complainant's evidence as to the presence of a visible scar at the time of the alleged offending.
Conclusion
[114] Appeal ts 28.
[115] Trial ts 460.
In this case, the jury had a very considerable advantage over this court in the assessment of the credibility and reliability of the complainant's evidence about the indecent dealing offences. The jury saw and heard the complainant give evidence over two days and be subject to a searching cross-examination by the appellant's trial counsel. In our view, the jury's advantage in seeing and hearing the evidence is capable of resolving any doubt that this court may have as to the veracity of the complainant's evidence about the indecent dealing offences.
In any event, the complainant's evidence about the indecent dealing offences was clear and consistent. It was not contradicted by any evidence other than the appellant's denials. Evidence of the appellant's admissions to the complainant's parents in 2003 provided a proper basis for the jury to reject the appellant's evidence in this regard. Evidence of those admissions also bolstered the credibility of the complainant's evidence as to the sexual activity which occurred between her and the appellant.
In our view, the jury were entitled, after evaluating and weighing the complainant's evidence and the appellant's denials, in the context of the trial record as a whole:
1.to be satisfied beyond reasonable doubt that the complainant's evidence in relation to the occurrence of the indecent dealing offences was truthful, accurate and reliable; and
2.to reject the appellant's denials in relation to the alleged offending.
The jury, acting reasonably, were entitled to conclude beyond reasonable doubt, on the basis of the complainant's evidence, that the appellant indecently dealt with the complainant, a child of or over the age of 13 years and under the age of 16 years, during the first and third incidents. The trial record does not support the conclusion that the jury must have entertained a doubt about the appellant's guilt of those offences. The verdicts of 'guilty' were not unreasonable and were supported by evidence that the jury was entitled to accept.
Our review and assessment of the whole of the evidence does not cause us to doubt the appellant's guilt of the offences of which he was convicted. We are not satisfied that it would be dangerous to permit the verdicts of 'guilty' to stand, or that there is a significant possibility that an innocent person has been convicted.
In our view, there is no merit in ground 1.
Appeal ground 2: inconsistent verdicts
The appellant's second ground of appeal contends that the verdicts of 'guilty' of the two indecent dealing offences were inconsistent with the verdicts of 'not guilty' of the other offences.
General principles
The principles applicable to an appeal brought on the ground that a verdict is inconsistent with other verdicts of the jury are well established. The test to be applied by an appellate court is whether the inconsistency is of such a character that the verdicts cannot stand together as an exercise in fact finding based on logic and reasonableness. In other words, can it be concluded that the different verdicts cannot have been the product of the deliberations of a reasonable jury applying their minds properly to the fact‑finding process in relation to each of the counts?[116] As was noted by Buss P, with whom the other members of the court agreed, in KND v The State of Western Australia:[117]
It is necessary for the appellant to satisfy this court that the verdicts cannot stand together; that is, that no reasonable jury whose members properly applied their minds to the facts of the case could have arrived at the verdicts in question. If there is a proper way in which this court may reconcile the verdicts, and thereby conclude that the jury performed its functions as required by law, the verdicts will not be inconsistent in the relevant sense. The critical issue is whether it was logically and reasonably open to the jury to acquit on two counts and convict on the other.
[116] Bailey v The State of Western Australia [2018] WASCA 169 [40] and cases there cited.
[117] KND v The State of Western Australia [2017] WASCA 36 [36].
Although there are no hard and fast rules for determining whether different verdicts can stand together, Owen JA in DPJB v The State of Western Australia set out several points that emerge from the authorities:[118]
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: Markuleski [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 [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.
[118] DPJB v The State of Western Australia [2010] WASCA 12 [81], adopted by this court in Bailey [42] - [43].
Owen JA then concluded that:[119]
It seems, therefore, that the task of the court in these cases is to review the evidence and to determine whether, as a matter of logic and reasonableness, the different verdicts can stand together. All of the circumstances of the case must be taken into account in making that assessment. It also seems to me that an inability to identify with precision a single factor or a combination of factors that positively explains why the jury acquitted on one or more counts and convicted on others is not necessarily fatal to the integrity of the convictions. The question is whether it was logically and reasonably open to the jury to reach the conclusions that they did.
Appellant's submissions
[119] DPJB [82].
The appellant submits that this was a case where the jury simply had to assess whether it believed the complainant to the requisite standard in relation to each of the charges.[120] The appellant accepts that there may be an argument as to consistency arising from the late complaint about the fourth incident in the motel room. However, the appellant contends that there is no logical reason why the jury would have rejected the complainant's evidence in relation to the second incident but been satisfied beyond reasonable doubt that her evidence in relation to the first and third incidents was credible and reliable.
[120] Appellant's Submissions [33].
The appellant submits that, if the jury rejected a material component of the complainant's evidence concerning the second or fourth incidents or both of them, that would irreparably damage the complainant's credibility in relation to the first and third incidents. In such circumstances it would not be reasonably open to the jury to find beyond reasonable doubt that the appellant committed the indecent dealing offences.[121]
Respondent's submissions
[121] Appeal ts 13 - 14.
The respondent submits that the jury's verdicts were consistent with the jury finding the complainant's evidence to be generally credible and reliable but, applying the Longman direction they had been given, gave the appellant the benefit of the doubt in relation to the second and fourth incidents.
The State says that the factors which could have led the jury, while generally accepting the complainant's evidence, to have a doubt about whether the fourth incident occurred were the complainant's recent recollection and late disclosure of that incident (about a week prior to trial).
The State says that the factors which could have led the jury, while generally accepting the complainant's evidence, to have a doubt about whether the second incident occurred were:
1.the complainant's account in her evidence-in-chief of her father walking in on her and the appellant in bed during that incident;
2.the complainant's subsequent evidence in cross-examination that her father did not walk in on them during the second incident and that she was mixing up different events;
3.the fact that the complainant did not mention her father walking in during the second incident in her police statement; and
4.the father's evidence that he had never walked in on the appellant and complainant in bed.
The State contends that the verdicts can logically stand together and are not inconsistent.
Disposition
As senior counsel for the appellant accepted in oral argument,[122] the 'not guilty' verdict in relation to the fourth incident at the motel room is readily explicable by the complainant's late recollection and disclosure of that offence. This late disclosure impacted not only on the reliability of that memory, but also on the opportunity for the police and the appellant to investigate the matter. The complainant disclosed this incident to the prosecutor only about a week before trial. That left little opportunity for investigation of matters such as any bank or motel records which might exist to confirm or rebut the evidence that the appellant stayed at the motel during the relevant period. In light of the Longman direction, which largely focussed on issues of forensic disadvantage arising from delay, the late disclosure and limited opportunity for investigation of the fourth incident, the jury could have been left with a reasonable doubt about whether the appellant was guilty of that offence.
[122] Appeal ts 12.
To find the appellant guilty of any of the three alleged sexual penetration offences comprising the second incident, the jury had to be satisfied beyond reasonable doubt that the particular offence they were separately considering occurred on that occasion.
It was evident that the complainant recalled the general history of sexual offending against her but, in light of its frequency, had difficulty in isolating different incidents of that offending. The complainant's answers in cross-examination to questions about her father walking in during the second incident indicated that she was confusing different incidents. The complainant also omitted any reference to the alleged digital penetration in her evidence-in-chief. This could suggest to the jury that there was an element of reconstruction involved in the complainant's recollection of the second incident, and that she may be combining separate events into one incident. That could give rise to a reasonable doubt as to whether each of the particular offences said to comprise the second incident occurred on that occasion.
In finding the appellant 'not guilty' of the three offences constituting the second incident, the jury could also have taken account of the evidence of the complainant's father that he had never walked in on the appellant and complainant in bed.
The above issues did not arise in relation to the complainant's evidence about the indecent dealing offences during the first and third incidents. The matters discussed above readily explain the different verdicts in relation to different alleged offences. In our view, it was logically and reasonably open to the jury to find the appellant 'guilty' of the indecent dealing offences and 'not guilty' of the sexual penetration offences.
There is no inconsistency between the jury's 'not guilty' verdict on the offence against s 321A(3) of the Code on which he was indicted and the 'guilty' verdicts on the indecent dealing offences. For the appellant to be found guilty of having a sexual relationship, the State had to prove that prescribed offences occurred on three or more different days. The jury's verdicts on the alternative offences indicate that it was only satisfied, beyond reasonable doubt, that the appellant had committed prescribed offences on two different days.
For these reasons, in our view there is no merit in ground 2.
Orders
For the above reasons, the following orders should be made in this appeal:
1.Leave to appeal is refused on both grounds of appeal.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Mitchell
1 APRIL 2022
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