Pienaar v Walsh - [2011] WASC 166

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: PIENAAR -v- WALSH [2011] WASC 166

CORAM: ALLANSON J

HEARD: 20 JUNE 2011

DELIVERED : 30 JUNE 2011

FILE NO/S: SJA 1006 of 2011

BETWEEN: ADRIAAN GIDEON PIENAAR
Appellant
AND
TRAVIS PETER WALSH
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P G MALONE
File No  :MI 3631 of 2010

Catchwords:

Evidence - Admissibility of statement - Consent to tender - Admissibility of statement called for in cross-examination - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 14(2)
Criminal Code (WA), s 24
Criminal Procedure Act 2004 (WA), s 144, sch 3 cl 7(1)

Result:

Leave to appeal refused on grounds 3 and 6
Leave to appeal granted on grounds 1, 2, 4 and 5
Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr A G Elliott
Respondent: Ms C A Fletcher

Solicitors:

Appellant: Shadgett Legal
Respondent: Director of Public Prosecutions (WA)

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

Alchin v Commissioner for Railways (1935) 35 SR (NSW) 498
Chaudhry v The Queen [2007] WASCA 37
Daniels v The State of Western Australia [2010] WASCA 200
De Domenico v Mallon [2010] WASC 285
North Australian Territory Co v Goldsborough Mort & Co [1893] 2 Ch 381
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476
Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Soma [2003] HCA 13; (2003) 212 CLR 299
Stack v The State of Western Australia [2004] WASCA 300; (2004) 29 WAR 526
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

ALLANSON J: On 5 January 2011 the appellant was convicted of one count of unlawful and indecent assault. He seeks leave to appeal against that conviction on six grounds. The application for leave was heard at the same time as the appeal.

The facts

The prosecution case

The prosecution alleged that the offence occurred at a mine site north of Telfer in Western Australia. The complainant worked as a chef at the site. The appellant was a leading hand/electrician.
On 8 January 2010, shortly before 2.30 am, the complainant had been on a shift break. She was returning to the kitchen to work when she decided to go to the toilets which were located some distance from the kitchen. On the way, she met the appellant. They had previously met, but had not socialised.
The appellant and the complainant began a conversation about general matters, including the fact that the appellant was up late doing his washing because he was flying out that day. The appellant walked alongside the complainant as they walked in the direction of the toilets. As they were walking he reached over and placed his right arm on her right shoulder and began to touch or caress her neck. The complainant shrugged him off. They continued to walk together until they reached the toilets. The appellant then took hold of her shoulder and pulled her towards him. He attempted to kiss her, or at least that is what she believed he was trying to do. The complainant raised her hand, turned her face away, and said 'no, absolutely not'. The appellant then said 'okay', but asked for 'just a hug'. The complainant agreed. She wanted to defuse the situation and was expecting just a friendly hug. But while they hugged she felt the appellant nibbling or chewing on her right earlobe. She pushed him away and went into the toilets for a short while.
When she came out of the toilets the appellant was still there. She said she had to get back to work, wished him a good night, and returned to the dining room and food preparation area where she worked. There she spoke to a work mate, Haslie Anderson, and told him what had occurred. Later that day she reported the incident to her site manager, Nicholas Hall.

The defence case

The appellant gave a different account. He agreed that he had met the complainant and they had walked together towards the toilets. He agreed that they had hugged, but said that this occurred after the complainant came out of the toilets, and was instigated by her. He denied that he nibbled her earlobe.
There were no witnesses to the events other than the appellant and the complainant.

The course of the trial

The trial began on 1 September 2010. At the beginning of the trial, the prosecutor informed the court that Mr Anderson would not be called. He had been served with a summons, but the prosecution had been unable to contact him since. He was a temporary worker at the mine site and he may have returned to New Zealand. He was not answering on the telephone number the police had. Accordingly, the prosecution intended to rely only on the complaint to Mr Hall, some four hours later.
Mr Elliott, who was counsel for the appellant at trial and also on appeal, then said that he was expecting and relying on the prosecution calling Mr Anderson. He continued:
The simple fact is that the first complaint evidence is important to us, because of the terms of it, and it is intended to cross‑examine the complainant concerning the terms of her first complaint and differences between that complaint and complaints made subsequently. To now learn that the first complaint witness isn't here, isn't available for cross‑examination, seriously damages my capacity to properly cross‑examine the complainant and to follow that through.
The magistrate offered a short adjournment to allow the prosecution and defence an opportunity to discuss the evidence of Mr Anderson, and whether some evidence might be admitted by consent. He told the parties of his concern that if some accommodation could not be reached and there was an application for an adjournment, it may be for no good reason if nobody knew where Mr Anderson was.
Counsel for the appellant said that the appellant did not want the case adjourned. The appellant was no longer able to work on the mine site because of his bail conditions, and it was affecting his earnings. Counsel continued:
The simple fact is that on an application by me for admission of the statement, on the basis that the witness is unavailable, it would have to be conceded by the sergeant.
The prosecutor responded immediately that he had the original statement, it was signed, dated and witnessed, and he was happy to have it tendered. The magistrate mentioned the possible difficulty of receiving evidence which could not be tested by cross‑examination. The prosecutor continued:
I'm happy to tender that by consent, your Honour, if that's what [counsel] was hoping for, and I do apologise. As I say, a summons was served on 3 June.
The magistrate said:
You've served him with a summons and he's chosen not to respond, yes. Okay. So that can be tendered by consent.
Counsel for the appellant then said:
Thank you, sir, yes.
He then proceeded to discuss another issue relating to the trial.
Despite that exchange, there was no immediate tender of Mr Anderson's statement. As the matter progressed, that proved to be unfortunate. There was a fundamental misunderstanding between the parties and the court about what had happened. Had there been an immediate tender of the statement, the misunderstanding would have been immediately resolved. Instead, it only became apparent at the end of the complainant's evidence.
In leading the evidence of the complainant, the prosecutor, without objection, led from her that when she went to her work area after her encounter with the appellant, she spoke to Mr Anderson. The complainant said:
I've explained to him the situation and the first thing that Haslie said to me was ‑ he laughed. I didn't know how to take that at first. Maybe ‑ I didn't know if he was laughing because he thought it was stupid or if he had no idea what to say and I cannot recall Haslie saying anything else to me and then between speaking to Haslie and when Mr Hall, my site manager at the time, started work, was the decision I made to report it to him when he started work.
Counsel for the accused cross‑examined the complainant about the recent complaint. Specifically, he asked her whether she had told Mr Anderson that she had been groped. She denied saying that. Counsel did not attempt to put Mr Anderson's statement to the complainant and point out that it was inconsistent with her answer.
In the course of her cross‑examination, the complainant was also asked about the statement she had made to the police following these events. Specifically, counsel for the appellant asked her whether she had said in that statement that the appellant had been caressing her. She said yes. She was asked if when she spoke to one of the supervisors at the mine she told him that the appellant was caressing her and she replied:
Yes. I might not have used that word. I might have used 'rubbing' or 'massaging', but yes, I did.
Later, she was asked about what was said before she and the appellant hugged. She testified that she said to him 'just a hug'. Counsel asked her if she was sure and then said:
When you gave your statement to the police you didn't mention ever saying that.
There was a short break in the proceedings. On resumption, counsel for the appellant asked for the witness to have her statement. She then confirmed from her statement that it did not record her telling the police that she had said 'just a hug'. She also agreed that there was another inaccuracy in her police statement, in that it recorded her meeting the appellant alongside the dining area when it was alongside the wet mess.
In re‑examination, the prosecutor tendered the original of the complainant's statement to the police. Counsel for the appellant objected. The magistrate admitted the statement over objection, on the basis that the appellant had called for the statement in the course of cross‑examination.
Following the evidence of the complainant, the prosecutor also tendered Mr Anderson's statement. That resulted in the following exchange:
ELLIOTT, MR: I don't require Mr Anderson's to be tendered your Honour.
PROSECUTOR: Well, he's agreed to having it tendered by consent and I'll seek to tender that by consent.
ELLIOTT, MR: Well, no, that's not right. I didn't agree to tender it by consent. I said that I was prejudiced by the fact that he wouldn't be called. Now, the stage is being reached where I've been able to cross‑examine on materials from that statement and I don't insist myself on it going in.
The magistrate then said that his understanding of what was discussed earlier was that there would be a tender by consent, and on that basis there had been no need to consider an adjournment.
Mr Elliott clarified his position in this way:
What I said, with respect, sir, was that as far as I was concerned, if I insisted on it going in because the maker was absent, that the sergeant would have a lot of difficulty opposing that, and I didn't at any stage ‑ and I'm confident that the transcript will support me here. I didn't at any stage say, well, I'm content for the sergeant to tender it. I intended to, and I thought I did, reserve the right to myself and the sergeant didn't take it - ‑ ‑
The exchange continued. The effect of it was that Mr Elliott's understanding was that he had not consented to its tender, but had consented to the trial proceeding without Mr Anderson on the basis that if he called for the statement to be tendered it would go in by consent. Both the magistrate and the prosecutor had understood the position quite differently. In particular, the magistrate had understood Mr Elliott to consent, and while surprised that the tender did not take place immediately, had assumed it was simply deferred.
Mr Elliott then attempted to withdraw consent, while not conceding it had in fact been given.
It was not necessary to resolve both the disputed tenders immediately, as the matter was going to be adjourned part heard. That gave the magistrate the opportunity to consider transcript and see what in fact had been said.
The hearing resumed on 5 January 2011. It commenced with the magistrate ruling on the two disputed tenders.
First, the magistrate ruled that Mr Anderson's statement was admissible as evidence of recent complaint. He said:
I form the view that it is admissible, you did consent to it. Whatever you later on might have decided, it wasn't the position and as I say, in an overall sense, I don't think it's a particularly important issue anyway.
His Honour then ruled that the complainant's statement to the police was also admissible on the basis that counsel had called for the document and cross‑examined on it, and accordingly it was appropriate that it be allowed into evidence if the prosecutor called for its tender. He limited its admissibility to questions of consistency or credibility.

The content of the disputed statements

In his statement, after some brief introductory paragraphs, Mr Anderson said the following:
I was in the larder for a few minutes before a female colleague I know as [the complainant] came in.
[The complainant] started telling me that a man had just groped her outside. She sounded upset as her voice was shaking.
[The complainant] said to me that a man had just grabbed her outside and tried to kiss her. She said that she told him not to try and kiss her.
She said that she had given him a hug to try and get him to leave her alone and when she hugged him he started nibbling on her ear.
Mr Anderson said that later that morning he saw the complainant talking to all the bosses.
The complainant's police statement is largely consistent with the evidence she gave. Importantly, in both her evidence and her statement she says that when the appellant looked as if he was about to kiss her she put up her hand, turned her head away, and said 'no, absolutely not'. In both her evidence and her statement she says the appellant asked for 'just a hug' and she agreed. In her statement she says that the appellant 'grabbed my right ear lobe with his teeth and then started sucking my ear lobe. I pushed [him] away and went into the toilet'. In her evidence she said the appellant 'nibbled, chewed on my ear lobe, and I put both my hands into his chest and just pushed him away'.
There are some inconsistencies but they are relatively minor.

The magistrate's decision

The magistrate gave oral reasons for decision to convict. It is not necessary to deal with all of his reasons for the purposes of this appeal. The magistrate recognised that if he was to convict, he had to have a positive belief about the honesty and accuracy of the complainant's evidence on the essential facts, so that he could rely on that evidence and be satisfied beyond reasonable doubt. He would also have to positively disbelieve the appellant, because if he had some doubts about the truthfulness of the appellant's evidence, the appellant would be entitled to be acquitted.
There was no independent evidence of any significance.
In examining the evidence of the complainant, the magistrate had regard to the statement of Mr Anderson, and also to the appellant's statement to the police. In particular, in considering the complainant's evidence, he said:
She has the assault at a relatively innocuous level and she was a pretty good actor on that theory [that is, the defence case] because a relatively short time after she is making ‑ she is upset, she is making a complaint to Mr Anderson. (emphasis added)
Later, the magistrate said that, while there were inconsistencies in her statement,
it seems to me that the ring of consistency was always there, both through the complaints to Mr Anderson, to Mr Hall, to police, and to this court, that [the complainant] was approached by [the appellant]. She was on a break, she was going to the toilet. (emphasis added)
Later, again the magistrate referred to the immediate complaint to Mr Anderson while the complainant was upset, and said:
In my view the answer is that the incident happened and [the complainant] is upset and she complains immediately. She would have to be a very good actor and incredibly mischievous, none of which she gave me the impression of, and certainly she didn't appear in the witness box as somebody who acted inappropriately or gave me the sense that she was play acting or being insincere or anything.
She makes the complaint immediately. Sure, there's a reference to groping, but then there's the reference by Mr Anderson:
'Laura said a man just grabbed her outside and tried to kiss her. She told him not to try and kiss her, then she gave him a hug to try and get him to leave her alone. When she hugged him, he started nibbling on her ear.'
Yes, of course, there's a reference to groping, but there's then an account from Mr Anderson that is consistent with what [the complainant] has been saying then and ever since, and of course she persisted in a complaint to Mr Hall. Again, one can look at some changes there, but again in my view a broad consistency.
In rejecting the appellant's account of what had happened the magistrate referred to the complainant 'immediately or very soon after' complaining to Mr Anderson.
More generally, the magistrate recognised that there were inconsistencies in the complainant's evidence but was satisfied nonetheless that she was telling the truth. I am satisfied from the transcript of the reasons that it was important to his Honour's reasoning that the complainant's evidence was consistent with the recent complaint made to Mr Anderson, and with her upset demeanour when she spoke to Mr Anderson. It is not so apparent that the statement to the police was significant to the decision.

The grounds of appeal

Ground 1

The appellant asserts that the magistrate erred in law in admitting the statement of Mr Anderson into evidence. There are several aspects to the ground. First, that Mr Anderson did not attend to testify. Second, that any supposed consent to the use of the statement was on a particular basis, that is, the tender being necessary to prove a prior inconsistent statement by the complainant. Third, that any consent was withdrawn.
It was not in dispute that, unless there was some relevant common law or statutory exception, it is a central requirement of a criminal trial that evidence be given orally by witnesses who may be cross‑examined. The Criminal Procedure Act 2004 (WA) provides in s 144(1):
In the trial of a charge, the accused is entitled to defend the charge and to cross‑examine any witness called by the prosecutor and to call, examine and re‑examine any witness.
The only relevant statutory exception which might arise in this case is in sch 3 cl 7(1)(e) of the Criminal Procedure Act. Under that clause:
A court dealing with a charge may admit into evidence a statement of a witness … if the court is satisfied that the statement complies with clause 4 … and ‑
(e)that all the parties consent and that the interests of justice do not require the presence of the witness.
Clause 7(5) further provides that a court may refuse to admit a statement if it is satisfied that the admission of the statement would be unfair.
His Honour did not expressly deal with the requirements of sch 3 cl 7. The witness statement of Mr Anderson does however comply with cl 4. The central question is whether the appellant did in fact consent to its tender.
The problem is simply stated, but not so easily resolved. Looking objectively at everything that had happened before the actual tender occurred, the court could reasonably come to the view that the appellant had consented. Apart from what was said, the appellant had not objected when the evidence of recent complaint was led in examination‑in‑chief, and had cross‑examined expressly by reference to Mr Anderson's statement.
On the other hand, before the actual tender, the appellant had insisted that he did not consent. Further, I have no doubt that it was a misunderstanding and that counsel for the appellant had never intended to consent to the tender, or to convey the impression that he had consented. He had sought to preserve the option of tendering the statement if that was required as evidence of a prior inconsistent statement by the complainant.

The application of cl 7(5) has previously been considered: see Chaudhry v The Queen [2007] WASCA 37; Daniels v The State of Western Australia [2010] WASCA 200. I am not, however, aware of any previous consideration of cl 7(1)(e) ‑ neither counsel referred me to any relevant authority. What does cl 7(1)(e) require?
First, cl 7(1)(e) requires that the parties consent. The normal meaning of consent, as a verb, is 'give assent; agree; comply or yield'.
Second, cl 7(1) must be construed in the context of the Act as a whole, and having regard to the context, the general purpose and the policy the Act, and the need for consistency and fairness: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 381 ‑ 382. In particular, s 144 of the Act recognises an important principle, that the accused is entitled to cross‑examine the witnesses called against him. The importance of this right has been long recognised: see Stack v The State of Western Australia [2004] WASCA 300; (2004) 29 WAR 526 [77] ‑ [84] and the cases there collected. Clause 7(1)(e) provides an exception to that entitlement.
Third, it is a general principle that Parliament does not intend to interfere with fundamental principles or rights, including entrenched general law rights, without expressing its intention clearly: Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277, 304; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 [30].
Having regard to those principles, it is my opinion that, in providing this exception to the entitlement of an accused person to cross‑examine, the legislature intended that it operate where there is actual consent. It is insufficient that the court or the other party may believe, however reasonably, that a party has consented if that party has not agreed.
There is no doubt that at the time the prosecutor came to tender Mr Anderson's statement, the appellant objected. Further, in my opinion, his apparent agreement prior to that time was the result of a misunderstanding. He did not ever actually consent.
I uphold ground 1.

Ground 2

The appellant claims in this ground that the magistrate erred in law in admitting the statement of the complainant into evidence on the basis that it had been called for, and in relying on it as a basis for preferring her evidence over that of the appellant. At the hearing of the appeal, the respondent conceded that his Honour erred. In my opinion, the concession was properly made.
In the course of the complainant's evidence, counsel for the appellant requested that she be shown her witness statement. Counsel had a copy of that statement. Under the Criminal Procedure Act, the appellant was entitled to a copy of it. Asking for the witness to be shown the original for the purposes of cross‑examining on whether there was an inconsistency between her oral evidence and that statement was not a call for the document.
When her statement was shown to her, the complainant agreed that her evidence was inconsistent with the statement she made to police. The statement could not be further proved in evidence unless it was otherwise admissible: North Australian Territory Co v Goldsborough Mort & Co [1893] 2 Ch 381, 385 ‑ 386; Alchin v Commissioner for Railways (1935) 35 SR (NSW) 498, 509 ‑ 510; R v Soma [2003] HCA 13; (2003) 212 CLR 299 [55].
It appears that his Honour made very limited use of the complainant's statement to the police. He referred to inconsistencies between what she said in her evidence and her police statement. He also, however, referred to her general consistency in the complaints to Mr Anderson and Mr Hall (witnesses to recent complaint), to the police, and to the court.
I uphold ground 2.

Grounds 4 and 5

Ground 4 alleges that the learned magistrate erred in law in preferring the evidence of the complainant; and ground 5 that he erred in law in relying upon the statement of the complainant and the statement of Mr Anderson in order to conclude that there was consistency in her account. The two grounds stand or fall with grounds 1 and 2.
The appellant is not simply challenging the magistrate's findings of fact. This is apparent in the allegation in each ground that the error is one of law. Rather, the appellant submits that the magistrate determined contested issues of fact by reference to inadmissible evidence. In my opinion these grounds are made out for the reasons given with regard to grounds 1 and 2.

Ground 3

In ground 3 the appellant alleges that the learned magistrate erred in law and in fact in dismissing inconsistencies between the complainant's initial complaints and statements in her evidence when deciding whether her account was accurate. Counsel submitted that the ground has an independent importance. If the court was satisfied, having regard to those inconsistencies, that the appellant could not have been convicted then I should allow the appeal and substitute a verdict of acquittal.
Some of the inconsistencies referred to are trivial. More generally, his Honour acknowledged that there were inconsistencies in what the complainant said. He also was satisfied that she was not embellishing or overstating her complaint and that, overall, she was consistent and truthful. None of the matters to which the appellant refers are such that the complainant could not be believed as to the essential facts of her complaint. These were the sort of credibility issues where the magistrate had the distinct advantage of seeing the witnesses, hearing the evidence presented and 'getting a feel for the case and the people involved': De Domenico v Mallon [2010] WASC 285 [9].
Each of these inconsistencies was relied on by the appellant at trial. His Honour recognised them but took the view that they were not essential to the complainant's credibility, and that there was a 'ring of consistency' in the complainant's accounts. I agree.

Ground 6

Finally, the appellant appeals on the ground that the magistrate erred in law in finding that the prosecution had proved that the appellant was aware the complainant was not consenting. That is, the appellant may have been acting under an honest and reasonable but mistaken belief that the complainant consented to his kissing or nibbling her ear.
The magistrate accepted the complainant's evidence. She said that she resisted the appellant's attempt to kiss her by raising her hand, turning her face and saying 'no, absolutely not', but agreed to 'just a hug'. The magistrate considered whether the appellant could have had an honest and reasonable but mistaken belief that he had the complainant's consent to do what he did. He concluded that the appellant 'couldn't possibly have been under an honest and reasonable view that he had the permission to nibble [the complainant's] ear, even if he did have permission to hug her'.
The appellant said that the incident described by the complainant did not occur at all. He said that he was standing drinking a Milo when the complainant came out of the toilet, walked up to him and put her arms around his neck without any warning. He pushed her away. He denied that at any time he sucked or nibbled her earlobe.
I doubt that on either the complainant's or the appellant's evidence, there was any evidence on which the defence under s 24 of the Criminal Code (WA) could arise. The appellant has not shown any error of law in the magistrate's finding.

The proviso

I have found that the magistrate erred in admitting the statement of Mr Anderson and the statement made by the complainant to the police. It is necessary to consider the operation of s 14(2) of the Criminal Appeals Act 2004 (WA). Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
In considering the application of s 14(2), I have regard to what the High Court said in Weiss v The Queen[2005] HCA 81; (2005) 224 CLR 300 [39].
First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt.
The more significant statement was that of Mr Anderson. It was admitted as evidence of recent complaint. That is, it was evidence bolstering the credibility of the complainant. Further, the magistrate had regard to Mr Anderson's evidence of the complainant's demeanour. There was no other evidence that she was upset immediately after the incident.
Without that evidence, the prosecution case relies upon the testimony of the complainant, and evidence of a complaint made some hours later to Mr Hall, the site manager. I am satisfied that the evidence, improperly admitted, was material to the verdict.
Further, the error in admitting Mr Anderson's statement resulted in a denial of the appellant's entitlement to cross‑examine a witness whose evidence was admitted against him. Accordingly, I do not consider that no substantial miscarriage of justice has occurred.

Conclusion

For the reasons set out above, I grant leave to appeal on each of grounds 1, 2, 4 and 5. I refuse leave on grounds 3 and 6.
The result of upholding grounds 1, 2, 4 and 5 is that I would allow the appeal. If the complainant's evidence is accepted, there is sufficient evidence to justify a conviction. There should be a retrial.