Osborne v The State of Western Australia

[2013] WASCA 106

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   OSBORNE -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 106

CORAM:   McLURE P

BUSS JA
MAZZA JA

HEARD:   19 MARCH 2013

DELIVERED          :   19 APRIL 2013

FILE NO/S:   CACR 249 of 2012

BETWEEN:   DARRYL JAMES OSBORNE

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :GOETZE DCJ

File No  :IND 1467 of 2011

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial on multiple counts of sexually penetrating and indecently dealing with children under the age of 13 years - Longman direction - Whether the trial judge's Longman direction was adequate - Whether a trial judge, in giving a Longman direction, is bound to state specific examples of forensic disadvantage

Legislation:

Criminal Code (WA), s 320(2), s 320(4)

Result:

Application for an extension of time to appeal dismissed
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr S B Watters

Respondent:     No appearance

Solicitors:

Appellant:     LMB Barristers & Solicitors

Respondent:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

SPB v The State of Western Australia [2012] WASCA 136

1. McLURE P:  I agree with Buss JA.

2. BUSS JA:  The appellant has applied to this court for an extension of time to appeal, and leave to appeal, against conviction.

3. He was charged on indictment with 25 counts, including four counts of sexually penetrating a child under the age of 13 years, contrary to s 320(2) of the Criminal Code (WA) (the Code), and 17 counts of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Code. There were seven male complainants in relation to the sexual penetration and indecent dealing offences.

4. The appellant pleaded not guilty to all of the sexual penetration and indecent dealing counts.  On 15 August 2012, after a trial in the District Court before Goetze DCJ and a jury, he was convicted on all of these counts, except for count 14.

5. Earlier, the appellant had pleaded guilty to the other four counts in the indictment.

6. The appellant's application for an extension of time to appeal, and leave to appeal, relates to the offences of which he was convicted by the jury.

The application for an extension of time

1. The last date for the appellant to appeal against conviction was 5 September 2012.  He did not file his appeal notice until 1 November 2012.

2. The appellant relies on an affidavit sworn 1 November 2012 by his then solicitor, Matthew Alexander Holgate, and an affidavit sworn 14 November 2012 by his counsel, Simon Barry Watters, in support of the application for an extension of time.

3. I will consider the merits of the proposed ground of appeal before deciding whether an extension should be granted.

The counts in the indictment

1. Counts 1 ‑ 6 related to a boy, B.

2. Count 1 alleged that on a date unknown between 1 January 2008 and 31 December 2010, the appellant penetrated B's anus with the appellant's finger.  Count 2 alleged that on a date unknown between 1 January 2009

and 31 December 2010, the appellant penetrated B's anus with the appellant's finger.  Counts 3 and 4 alleged that on a date unknown between 1 January 2010 and 31 December 2010, the appellant penetrated B's anus with the appellant's finger (count 3) and on the same unknown date the appellant touched B's penis (count 4).  Counts 5 and 6 alleged that on a date unknown between 1 January 2010 and 31 December 2010, the appellant penetrated B's anus with the appellant's finger (count 5) and on the same unknown date the appellant touched B's penis (count 6).

1. Counts 7 and 8 related to a boy, T. 

2. Count 7 alleged that on 16 September 2010, the appellant touched T's penis.  Count 8 alleged that on 10 March 2011, the appellant touched T's penis.

3. Counts 9 and 10 related to a boy, BA. 

4. Counts 9 and 10 alleged that on 10 March 2011, the appellant touched BA's penis (count 9) and on the same date the appellant tickled BA's bottom (count 10).

5. Counts 11, 12 and 13 related to a boy, BV. 

6. Each of counts 11, 12 and 13 alleged that on a date unknown between 1 January 2010 and 31 December 2010, the appellant touched BV's penis.

7. Counts 14, 15 and 16 related to a boy, C.

8. Count 14 alleged that on a date unknown between 1 January 2010 and 31 December 2010, the appellant touched C's bottom.  Each of counts 15 and 16 alleged that on a date unknown between 1 January 2010 and 7 April 2011, the appellant touched C's bottom.

9. Counts 17 ‑ 20 related to a boy, M.

10. Each of counts 17 and 18 alleged that on a date unknown between 1 January 2010 and 31 December 2010, the appellant touched M's penis.  Each of counts 19 and 20 alleged that on a date unknown between 1 January 2011 and 13 April 2011, the appellant touched M's bottom.

11. Count 21 related to a boy, K, and alleged that on 30 January 2011 the appellant touched K's bottom.

12. Each of counts 22 and 23, to which the appellant pleaded guilty, alleged that he had indecently recorded a boy under the age of 13, by using a mobile telephone to take a photograph of the boy while the boy was naked.  Each of counts 24 and 25, to which the appellant also pleaded guilty, alleged that he had in his possession child exploitation material.

The State's case at trial

1. The appellant is the father of two boys who attended a school in Western Australia.  He often assisted at the school as a 'parent helper'.  The offences occurred while the appellant was acting in this capacity.

2. The State alleged that there was a 'common thread' in the evidence of each of the complainants, namely that the appellant touched them inappropriately when there were other people in the vicinity.  According to the prosecutor, this was 'part of the thrill' for the appellant and 'added to the pleasure of what he was doing' (ts 208).

3. The State alleged that the appellant had a sexual interest in young boys.  This was evidenced by numerous photographs on the appellant's mobile telephone of young boys undressing.  The focus of the photographs was their genitals or buttocks.  Also, the appellant had a large collection of pornographic images featuring young boys. 

4. Although a number of the complainants believed the appellant's behaviour was 'weird', they did not tell their teachers or parents about it.  The prosecutor submitted that this was understandable because of their youth and the status of the appellant as a trusted person at the school (ts 216).

The appellant's case at trial

1. The appellant gave sworn evidence in his defence at the trial.  He denied having inappropriately touched any of the complainants.  He maintained that he had not committed any of the counts alleging sexual penetration or indecent dealing.  However, the appellant admitted possessing the child pornography.

The appellant's arrest and the provision of information about the complaints

1. On 25 March 2011, the appellant was arrested by the police in connection with the offences in question.  On or about that date he was informed of the substance of the allegations against him.

The proposed ground of appeal

1. The appellant relies on one proposed ground of appeal.

2. It alleges that the trial judge erred 'by failing to give the jury a Longman direction that was adequate in all the circumstances'.

3. The proposed ground appears on its face to relate to all of the counts of sexual penetration and indecent dealing.  However, counsel for the appellant said, in his oral submissions, that the proposed ground 'really only goes to counts 1 and 2' and that 'strictly speaking, the Longman direction would only attach to the earlier counts', that is counts 1 and 2 (appeal ts 3). 

4. According to counsel, if there was merit in his submissions in relation to the alleged inadequacy of the Longman direction, in the context of counts 1 and 2, there would have been 'a wash‑over effect regarding the other charges' because his Honour gave the jury a propensity direction to the effect that it could use its findings on one count when considering another count (appeal ts 3).

The appellant's submissions

1. Counsel for the appellant submitted in essence:

   (a)The trial judge failed to give the jury 'an unmistakable and firm direction of law' concerning 'the loss of forensic [advantage]' as a result of the delay in his being informed of the substance of B's allegations (the complainant in counts 1 and 2).

   (b)His Honour's statement to the jury that it needed to be 'alert' to the forensic disadvantage was inadequate.

   (c)His Honour's direction as to the actual forensic disadvantage suffered by the appellant was 'too general'.

   (d)His Honour failed adequately to mention 'any actual or specific forensic disadvantage caused to the appellant'.

2. Counsel accepted at the hearing that the appellant did not give evidence of any specific prejudice he had actually suffered as a result of the delay in relation to counts 1 and 2 (appeal ts 4 ‑ 5).  Nevertheless, it was contended that his Honour was in error in failing to give the jury some 'specific examples of the forensic disadvantage' occasioned to the appellant by the delay (appeal ts 5 ‑ 7).  Indeed, counsel submitted that the giving of examples was essential and that a trial judge makes an error of law in giving a Longman direction if he or she does not state specific examples of forensic disadvantage (appeal ts 6 ‑ 7).

The trial judge's directions

1. The trial judge directed the jury, in the course of his summing up, as follows:

   Each complainant, though, is the only witness as to the allegation against the accused, concerning matters relevant to that complainant.  As such, their evidence is important and crucial to the State's case and so you should scrutinise each complainant's evidence in order to assess whether you find their evidence to be truthful, accurate and reliable.  You need to consider any inconsistencies that you may find in their evidence and have regard to matters about which they were not sure.

   You may act on a complainant's evidence if you are satisfied as to the truthfulness, accuracy and reliability of it.  It is a matter for you.

   You should also be alert to the forensic disadvantage suffered by [the appellant] on the older counts by reason of the delay in those matters being notified to the authorities and then to [the appellant].

   So, for instance, count 1 on the indictment relating to [B],  is a date between 1 January 2008 to 31 December 2010.  [The appellant] wasn't told of the alleged offending until he was arrested on 25 March 2011.

   So the disadvantage is not only not knowing when the alleged offence is said to have occurred, with some precision, but also that the usual way of testing a complainant's evidence is very often by reference to the surrounding circumstances and the details which, whilst not necessarily significant themselves, may help to indicate whether a complainant is or is not truthful, accurate and reliable.

   It is difficult for an accused, in these circumstances, to be able to recall the surrounding circumstances of the alleged offending, especially when you've got a wide period in which it's said to have occurred and you go back some time in that wide period.

   Here, of course, [the appellant] denies all the alleged offending.  But on the older charges, he's been denied the chance to assemble soon after the events are alleged to have occurred, evidence as to what he and other potential witnesses were doing.

   So there are two aspects to this. The first is the loss of a chance to adequately test the complainant's evidence and the second is an inability to adequately prepare a defence.

   Had the earlier complaints been made known to him soon after the alleged events, [the appellant] could have explored pertinent details at that time and perhaps to have called evidence at trial to throw doubt on a complainant's evidence or to confirm his denial of the alleged offending.  Opportunity is now lost by the delay in informing him of the earlier charges.  The fairness of the trial on the earlier counts has therefore been impaired by this delay and that's a forensic matter for you to take into account.  And obviously the disadvantage is greater as the offences are  older (ts 570 ‑ 571).

2. After his Honour completed his summing up, the prosecutor (but not defence counsel) raised with his Honour, in the absence of the jury, the adequacy of the Longman direction:

   O'CONNOR, MS:   … The other thing then, your Honour, just in terms of factual ‑ just when your Honour was giving that forensic disadvantage direction, the Longman, your Honour then ‑ your Honour talks about scrutinising the witnesses evidence carefully.  And then your Honour talks about forensic disadvantage of the accused.  And you said he's got a greater disadvantage.  But then your Honour didn't take it back to:  therefore, it's very important that you scrutinise the evidence.  So your Honour sort of left that hanging, if you like.  But that's something for them to take into account.  But the point of that direction is that therefore they must scrutinise the evidence of each complainant very carefully.

   GOETZE DCJ:  All right.  Okay (ts 577).

3. The trial judge then gave the jury these additional directions, relevantly:

   Now, ladies and gentlemen, when I was addressing you earlier, I pointed out that with some of these older complaints that are over a wide period of time, that there is some forensic disadvantage to [the appellant] in the way in which this delay occasioned to him in him being informed of the alleged offences.

   Now, you can still proceed to deal with the offences, and you must, but in doing that you need to remember that the evidence of each complainant is crucial to the State's case, because there's only the complainant who can tell you what did or did not occur.  And you must therefore scrutinise their evidence, with care, to determine whether, given the forensic disadvantage to [the appellant], you find the evidence nonetheless to be truthful, accurate and reliable and, if you do, then you can act upon it.  Now, that's a matter for you to determine once you've assessed the evidence.

   … 

   In the end, you can only find [the appellant] guilty of a particular offence if you believe that the complainant has given a truthful, accurate and reliable version of what occurred.  It is only then that you can be satisfied beyond reasonable doubt that [the appellant] is guilty.

   [The appellant] says these alleged offences did not occur, and the complainants consciously or unconsciously have been influenced in their evidence through hearing about false complaints from others.

   Now, I've already gone through with you what each boy said about discussion et cetera at the school.  If you find that the evidence is that one boy knew what another boy was saying and was simply copying that evidence, then that evidence must be put to one side and ignored.  The State must satisfy you beyond reasonable doubt that the evidence of each complainant in the count that you are considering is not just merely jumping on the bandwagon, but rather is evidence of a true complaint.

   You cannot say to yourselves that ‑ even if you are satisfied beyond reasonable doubt that he committed offences against one complainant, that therefore he must have committed the other offences alleged by another complainant and so you will convict him.  You must be satisfied that the evidence of each of the complainant is independent, truthful, accurate and reliable before you convict the accused on any count that you are considering (ts 579, 584 ‑ 585).

The Longman direction:  applicable legal principles

1. In SPB v The State of Western Australia [2012] WASCA 136, I examined the circumstances in which a judge in a criminal trial is obliged to give a Longman direction to the jury, and the content of the direction.  It is unnecessary to reproduce the applicable legal principles.

The merits of the proposed ground of appeal

1. The trial judge gave the jury, in substance, the following relevant directions:

   (a)B was the only witness to the allegations in counts 1 and 2.

   (b)B's evidence was crucial to the State's case on these counts.

   (c)The appellant had suffered forensic disadvantage in relation to counts 1 and 2 because of the delay in the appellant being informed about the allegations.

   (d)The fairness of the trial on counts 1 and 2 had been impaired by the delay.

   (e)The appellant had lost the chance adequately to test B's evidence and he had also lost the ability adequately to prepare a defence.  The appellant was disadvantaged by the delay in that:  he did not know, with some precision, when counts 1 and 2 were said to be have been committed; his recollection of the surrounding circumstances at the time of the alleged offending was impaired; and he had a diminished ability to test the truthfulness, accuracy and reliability of B's evidence by reference to those surrounding circumstances.

   (f)The appellant had been denied the chance of assembling, soon after the alleged offending, evidence as to what he and B had been doing at the material time.

   (g)If the allegations in counts 1 and 2 had been made known to the appellant soon after the alleged offending, the appellant could have explored pertinent details at that time and he could perhaps have called evidence at the trial to throw doubt on B's evidence or to confirm the appellant's denial of the offending.

   (h)The jury must scrutinise B's evidence (including any inconsistencies and uncertainties) with care in order to assess whether, given the forensic disadvantage suffered by the appellant, B's evidence was truthful, accurate and reliable.

   (i)The jury could act on B's evidence if it was satisfied as to its truthfulness, accuracy and reliability.

   (j)The jury could not find the appellant guilty on counts 1 and 2 unless it believed that B had given independent, truthful, accurate and reliable evidence as to what had occurred.

2. The appellant's experienced defence counsel did not request his Honour to give the jury any Longman redirection or additional direction (ts 585).

3. The trial judge's instruction to the jury to the effect that it must scrutinise B's evidence with care, in order to assess whether, given the appellant's forensic disadvantage, B's evidence was truthful, accurate and reliable, would have been understood by the jury as an imperative instruction to undertake that task.

4. His Honour's directions as to the appellant's impaired capacity, by reason of the delay, to test B's evidence and to marshal a defence were related or tailored adequately to the facts and circumstances of the case. 

5. As I have mentioned, the appellant gave evidence denying that any of the alleged offences had occurred and he did not give evidence of any particular forensic disadvantage he had encountered.  In these circumstances, the only prejudice reasonably to be presumed or inferred from the relevant delay was prejudice of the kind identified by the trial judge. 

6. His Honour's Longman direction was (contrary to counsel for the appellant's submission) 'unmistakable and firm' as to the forensic disadvantage suffered by the appellant as a result of the delay.  Also (contrary to counsel's submission), his Honour's direction was not 'too general' in its identification of the kind of prejudice reasonably to be presumed or inferred from the relevant delay.

7. Counsel for the appellant's contention that the trial judge erred by failing to give the jury some 'specific examples of forensic disadvantage', occasioned to the appellant by the delay, is without merit.  Counsel was unable to cite any authorities in support of the proposition that a trial judge makes an error of law, in giving a Longman direction, if he or she does not state specific examples of forensic disadvantage.  This is not surprising. 

8. The Longman direction has not been reduced to a formulaic or ritual incantation, divorced from the facts and circumstances of the particular case.  There is no requirement that, as a matter of law, a trial judge must, in each and every case, state specific examples of forensic disadvantage.  Where it is necessary to give a Longman direction, the direction should be crafted to the facts and circumstances of the particular case, with the object of ensuring a fair trial and avoiding the perceptible risk of a miscarriage of justice.  Some of the content of a direction in one case may not be required or appropriate in another case.

1. In my opinion, the Longman direction given by his Honour in the present case (including the additional direction given in response to the submissions made by the prosecutor) was adequate to ensure a fair trial for the appellant and to avoid any perceptible risk of a miscarriage of justice.

Conclusion

1. The proposed ground of appeal does not have a reasonable prospect of success.  I would therefore refuse to grant an extension of time to appeal.  The application should be dismissed.

1. MAZZA JA:  I agree with Buss JA.