PIM v The State of Western Australia
[2009] WASCA 131
•31 JULY 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PIM -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 131
CORAM: WHEELER JA
PULLIN JA
BUSS JA
HEARD: 15 OCTOBER 2008 & 16 FEBRUARY 2009
DELIVERED : 31 JULY 2009
FILE NO/S: CACR 59 of 2008
BETWEEN: PIM
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :YEATS DCJ
File No :IND BUN 86 of 2006
Catchwords:
Criminal law - Sexual offences - Whether jury directed that it was irrelevant to ask the appellant questions about the complainant's alleged motive to make false accusations
Criminal law - Whether trial judge constrained defence counsel in address to jury
Criminal law - Uncharged acts -Whether as a matter of law a direction had to be given concerning the use the jury could make of uncharged acts evidence - Whether in circumstances a direction was required - Confused state of the law - The effect of s 31A of the Evidence Act - Whether a direction had to be given
Criminal law - Uncharged acts - Whether a direction had to be given that uncharged acts had to be proved beyond reasonable doubt
Legislation:
Criminal Appeals Act 2004 (WA), s 30(4)
Evidence Act 1906 (WA), s 31A, s 106HB, s 106K
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant: Mr T F Percy QC & Ms A N Blackburn (15 October 2008) & Mr S B Watters (16 February 2009)
Respondent: Mr J Mactaggart
Solicitors:
Appellant: D G Price & Co
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275
Buiks v The State of Western Australia [2008] WASCA 194
Buttsworth v The Queen [2004] WASCA 69; (2004) 29 WAR 1
Cook v The Queen [2000] WASCA 78; (2000) 22 WAR 67
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373
Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482
Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
DTS v The Queen [2008] NSWCCA 329
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
FDP v The Queen [2008] NSWCCA 317
GBT v The State of Western Australia [2009] WASCA 19
Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106
Green v The Queen (1971) 126 CLR 28
Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292
Horsman v The State of Western Australia [2008] WASCA 190
Kailis v The Queen (1999) 21 WAR 100
KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221
Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108
Munmurrie v The State of Western Australia [2007] WASCA 184
Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457
Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1
Perry v The Queen [1982] HCA 75; (1982) 150 CLR 580
Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461
Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303
R v ATR [2008] QCA 385
R v Beserick (1993) 30 NSWLR 510; (1993) 66 A Crim R 419
R v Best [1998] 4 VR 603; (1998) 102 A Crim R 56
R v BJC (2005) 13 VR 407; (2005) 154 A Crim R 109
R v Dolan (1992) 58 SASR 501
R v DWB [2008] VSCA 223
R v EF [2008] VSCA 213
R v Grech [1997] 2 VR 609; (1996) 88 A Crim R 489
R v GS [2003] NSWCCA 73
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v J (No 2) [1998] 3 VR 602
R v Kemp [1995] QCA 386; [1997] 1 Qd R 383
R v McKenzie‑McHarg [2008] VSCA 206
R v ML [2009] VSCA 106
R v S, PC [2008] SASC 285; (2008) 102 SASR 199
R v Sadler [2008] VSCA 198
R v UC [2008] QCA 194
R v Vonarx [1999] 3 VR 618
R v W [1997] QCA 415; [1998] 2 Qd R 531
Rinaldi v The State of Western Australia [2007] WASCA 53
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528
Thomas v The Queen (1960) 102 CLR 584
Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234
Upton v The State of Western Australia [2008] WASCA 54
Table of Contents
Wheeler JA's reasons
The chronology of ground 4
Ground 4, as formulated
The standard of proof of uncharged acts: HML v The Queen
The "uncharged acts"/ discreditable conduct in this case
Pullin JA's reasons
Video evidence and the witnesses at trial
The prosecution evidence
The testimony of the complainant's mother
The testimony of Sergeant Jennifer Sara
The forensic tactics adopted by counsel for the appellant
The appellant's testimony
Questions put to the appellant by both counsel about why the complainant made allegations about the appellant
The address to the jury by counsel for the appellant
Prosecutor's address to the jury
The trial judge's address to the jury
Application by appellant's counsel for redirection
The jury's verdicts
The appellant's grounds of appeal
Ground 1 - Direction that the case was not a 'dangerous' case to decide
Ground 2 - The Palmer case issue
Ground 3 - Whether the trial judge 'constrained' defence counsel in his address to the jury
Ground 4 - Whether a direction was necessary concerning uncharged acts.
Buss JA's reasons
The State's case at trial
The appellant's case at trial
The grounds of appeal
The merits of grounds 1, 2 and 3
Ground 4: the so‑called 'uncharged acts'
Belt incident:
The 'pants off' episode:
Indecent request:
Hands down pants episode:
The vaseline incident:
The shower incident and threat:
Threat to harm:
Threat after count 6:
Appellant's evidence that he had shown the complainant a pornographic magazine:
Ground 4: the extent of the learned trial judge's reference to 'uncharged acts'
Ground 4: application to adduce additional evidence and the affidavit of the appellant's trial counsel
Ground 4: the appellant's submissions
Ground 4: the nature of relevance
Ground 4: the common law principles, established before HML, relating to propensity evidence, relationship evidence and the doctrine of res gestae.
Ground 4: the decision in HML
Ground 4: various decisions of intermediate courts of appeal since HML
Ground 4: evidence admissible under s 31A of the Evidence Act
Ground 4: directions in relation to evidence admissible under s 31A of the Evidence Act
Ground 4: the standard of proof in relation to evidence admissible under s 31A of the Evidence Act
Ground 4: the learned trial judge's summing up
Ground 4: its merits
A comment on Wheeler JA's reasons
Result
WHEELER JA: I agree with Pullin JA in relation to grounds 1, 2 and 3 of the grounds of appeal. I also agree with his Honour's reasons in relation to ground 4, save that for reasons which I will develop, it appears to me to be likely that the primary reason for admission, and likely use which a jury would make, of the evidence the subject of this ground is not as "circumstantial evidence" as usually understood. I agree also with the additional observations of Buss JA at [337] that the directions which the learned trial judge actually gave to the jury were favourable to the appellant.
Although I am reluctant to add to the torrent of words written in various jurisdictions concerning evidence of discreditable conduct or uncharged acts, particularly as adduced in sexual assault cases, it is, I think, necessary for me to make some further observations in relation to ground 4. They are as follows.
The chronology of ground 4
It is almost always relevant, although not necessarily decisive, in considering whether a failure to give a direction contended for on appeal resulted in any, or any substantial, miscarriage of justice, to have regard to the conduct of trial counsel. Trial counsel in this case did not contend that her Honour should have given any particular directions in relation to the evidence the subject of ground 4. It is desirable to explain the ample opportunity which those advising the appellant had to consider whether any directions were necessary, so as to give due weight to the failure to seek a direction in this case.
The complainant's evidence‑in‑chief took the form of an edited version of a visual recording of an interview, which was admissible pursuant to s 106HB of the Evidence Act1906 (WA). That interview took place on 26 March 2006. Section 106HB provides that neither the accused nor his counsel is entitled to have possession of or a copy of such a visually‑recorded interview, but that such an interview can only be admitted if a transcript of it has been given to the accused and both he and counsel have, in accordance with the regulations, been given a reasonable opportunity to view the recording itself. It is not clear when those things were done. It is likely to have been prior to March 2007, when orders were made for editing of the visually‑recorded interview in accordance with an agreement which had apparently been reached between counsel for the appellant and counsel for the State. It must have been, at the latest, by September 2007, when the agreed editing was complete.
The complainant's cross‑examination and re‑examination were the subject of a pre‑recording on 22 June 2007 pursuant to s 106K of the Evidence Act. The rest of the appellant's trial commenced on 3 December 2007.
By the time of trial, therefore, the accused and his counsel had had access, not to a deposition or witness statement or proof of evidence recording what it was expected the complainant would say in her evidence, but to a transcript containing every word of the complainant's evidence‑in‑chief, cross‑examination, and re‑examination. Although the time intervals vary, proceedings of this kind are standard in sexual assault cases involving children in Western Australia. An accused person is not called upon, at short notice, to respond to a mass of detail, some of which he may be hearing for the first time. Rather, as in this case, the accused and those advising him have in their possession, many weeks or months before other witnesses are called, and before the accused decides whether to give or call evidence (and self‑evidently prior to any judicial direction to the jury), the entirety of the complainant's evidence, including evidence of any discreditable or uncharged acts.
The appellant was convicted on 7 December 2007. The appellant's appeal notice was lodged on 18 April 2008. The draft grounds of appeal which were lodged with that notice are not contained in the appeal book. However, on 22 May 2008, the appellant lodged the appellant's case, containing what would ordinarily be the final version of the grounds upon which the appellant sought to rely, together with detailed written submissions which would enable a single judge of appeal to determine whether leave to appeal should be granted. The grounds contained in the appellant's case were grounds 1 to 3 only. They were settled by senior counsel.
The day before the hearing of the appeal, which was listed for 15 October 2008, the court received a faxed notice of proposed ground 4. This was, of course, at least 12 months after the accused's trial counsel had seen the complainant's recorded evidence, 10 months after the trial, and five months after senior counsel had settled the grounds of appeal.
The State did not object to the addition of ground 4, and senior counsel commenced to argue it. During the course of the argument, it became clear that senior counsel was not entirely sure in some respects which acts he submitted were evidence of bad character or bad disposition, and therefore required some direction. Counsel did not suggest that any of the acts were evidence of propensity, as that expression was understood at common law or in s 31A of the Evidence Act. His submission seemed to be, "[w]e say they are just admissible as common law relationship evidence" (at ts 41). Some of the evidence, he accepted, was part of the res gestae.
From about page 45 of the transcript through to the end of the transcript of that day's hearing at page 57, it becomes progressively plainer that, even at the time of coming to make oral submissions, the appellant's senior counsel had not formulated in his own mind, and was not able therefore to articulate precisely, which evidence was of concern, the purposes for which the evidence was admissible (as he appears to have conceded it was), the dangers to which that evidence gave rise, and what direction was required from her Honour, either as a matter of binding authority in all cases or as a matter of discretion in the particular case. The matter was adjourned for further submissions, and in order to enable counsel for the appellant to consult with trial counsel about whether there was any particular reason why the evidence had not been the subject of a request by him, to the trial judge, to give a direction of some kind.
At the resumption of the adjourned hearing, the court received an affidavit from the appellant's trial counsel. He confirmed that he and the State prosecutor jointly agreed to the manner in which the visually‑recorded interview should be edited and that the editing was completed by about September 2007. The editing was achieved "quite quickly and without any undue arguing". He could not specifically recall discussing with the State prosecutor whether any of the uncharged acts should remain in the interview, but, in his view, they were admissible either as propensity or relationship evidence or as part of the res gestae. So far as any decisions in relation to directions were concerned, par 10 of his affidavit reads:
Upon reading the transcript of the trial, it would appear that like the Judge and prosecutor I too overlooked the need for there to be a direction given to the jury about the uncharged acts. There was no decision on my part in not calling for such a direction due to some tactical or other reason.
It is to be noted that counsel did not say that he considered that any particular direction should have been given, or that the trial was, from his perspective, unfair. The history of the matter thus far demonstrates that no person involved in the trial or the appeal considered the evidence the subject of ground 4 to be of the slightest interest or importance. So far as counsel was able to advise us, it was not the subject of any closing submissions by either counsel. In those circumstances, it seems highly improbable that there was any real risk that the jury would give undue weight to that evidence, or otherwise misuse it.
Ground 4, as formulated
There are two propositions at the heart of the appellant's written submissions. Paragraphs 40 and 41 submit that evidence admitted as "common law relationship evidence" requires a direction of the kind referred to in Cook v The Queen [2000] WASCA 78; (2000) 22 WAR 67, which is discussed by Pullin JA. I agree with what Pullin JA has written about that matter.
The other proposition is that when propensity or tendency evidence is admitted pursuant to s 31A, the trial judge must warn the jury that "it must not reason that simply because the accused has previously behaved in a similar way to the offence alleged, he/she is automatically guilty of the offences in question" (appellant's supplementary submissions par 42). Obviously, the key word here is "automatically". The point of propensity evidence pursuant to s 31A is that it is, properly, adduced to demonstrate that an accused has a particular disposition or tendency which, given appropriate circumstances, it may be inferred will influence him to behave in a particular way. That is, one of the factors which the jury may take into account in relation to evidence admitted pursuant to s 31A is that, because the accused has previously behaved in a similar way to the offence alleged, it may follow from that fact, together with other facts, that he is guilty of the offence.
The appellant's submissions are based upon cases in which it has sometimes been suggested that the danger with propensity evidence is that the jury will reason that because an offender has offended in the past, he is "automatically" guilty of the offence charged. Put baldly as that, the suggestion is that if the only evidence at the trial of a person accused of sexually assaulting a child in a particular way on 14 July 2009, is that the same person sexually assaulted the child in a different way on a date some years previously, then even in the absence of any direct or circumstantial evidence that the accused had committed any offence at all on 14 July 2009, the jury would, nevertheless, convict. That, of course, would be a startlingly stupid piece of reasoning, and despite the fact that directions warning against such reasoning have often been given, it seems to me that a direction of the kind suggested is calculated to confuse. It is calculated to confuse because, without lengthy and subtle explanation, the jury may overlook the significance of the word "automatically" in that direction, and think they are being directed either to disregard the evidence altogether, or, in any event, not to use it for a purpose for which it may properly be used. I would reject the submission that a trial judge is required to give a direction in the terms formulated by the appellant's submissions.
When properly understood, the possible concerns about misuse of evidence of this kind are rather more nuanced: see, for example, the discussion in cases referred to in Cross on Evidence, par [21,145] ‑ [21,150]. Sometimes it may be necessary to give a direction which addresses one or more of those concerns. If it is suggested, on appeal, that a particular direction was necessary, an appellant must articulate the proposed direction, and identify with clarity the risk which called for the direction. That was not done in this case.
The standard of proof of uncharged acts: HML v The Queen
Counsel who appeared at the resumed hearing on 16 February 2009 did not refer to the decision of the High Court in HML v The Queen [2008] HCA 16; (2008) 235 CLR 334. The court raised with both counsel whether anything in that decision was of relevance, and both counsel sought and were granted leave to file further supplementary written submissions.
The appellant's submissions concerning HML at par 6 read:
The Respondent's submissions ... address the 'standard of proof as to "uncharged acts"'. However, the applicable standard of proof is not raised or challenged by the Appellant.
Paragraph 10, confusingly, asserts that it is implicit in the particulars of ground 4 that the trial judge "should have directed the jury about the standard of proof ... ". It does not appear to me that such an assertion was "implicit" in any of the particulars. There is no reference, in the conclusion to the written submissions, to the standard of proof. The conclusion returns to the theme that the trial judge should have given a direction about the use to which the uncharged acts could be put. It does not suggest what the direction should have been.
The question of the direction, if any, which should be given concerning the standard of proof of "uncharged acts" was a matter which the appellant did not address in the grounds of appeal, and appeared on his written submissions, read as a whole, to have been deliberately and expressly refraining from addressing. It is my view therefore that it is not appropriate to express any concluded views concerning what direction ought to be given in Western Australia in relation to that issue. However, I note that Buss JA has considered the matter, and I therefore do so briefly.
Tentatively, I would be inclined to agree with the view expressed at [62] in R v Sadler [2008] VSCA 198, by the Court of Appeal of Victoria, that "as a matter of stare decisis we consider that the ratio of [HML] must still be understood as limited to Pfennig jurisdictions". If that is so, however, it is difficult to see why a judge should nevertheless (as suggested in Sadler) ordinarily direct the jury that they should not conclude from the evidence of uncharged acts that the accused had a sexual interest in the complainant unless they are satisfied of those acts beyond reasonable doubt. There are difficulties with such a direction, in States where, as in Western Australia, the common law enunciated in Pfennig does not apply.
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 established that the "beyond reasonable doubt" standard of proof applies to the material facts constituting the elements of the offence, but generally does not apply to evidence and intermediate facts unless the intermediate facts are "indispensable links in a chain of reasoning towards an inference of guilt" (at 579 ‑ 580 per Dawson J, with whom Mason CJ, Toohey and Gaudron JJ agreed). None of the various reasons of members of the court in HML cast doubt on Shepherd. It was relied upon by Gleeson CJ at [5] and Crennan J at [477]. Hayne J, with whom Gummow J generally agreed, referred to Shepherd at [195], but considered that the evidence of uncharged acts was "a step" (and presumably an indispensable step) in proof of the prosecution case; if it were not, it would not be admissible pursuant to Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 (at [196]). For that reason, his Honour concluded that the jury could use the evidence in that way only if persuaded of its truth beyond reasonable doubt. Heydon J's discussion of the Pfennig test and the basis of admission of evidence of uncharged acts (at [285]) suggests that his Honour's reasoning was similar to that of Hayne J. However, although his Honour appears to have assumed it would have been an error not to have directed the jury that the sexual interest had to be established beyond reasonable doubt (see, for example, [339]), it does not seem to me that his Honour addressed the issue directly. Kiefel J at [512] held that the jury would require "the usual directions" with respect to the use of circumstantial evidence and "clear directions as to proof of the sexual interest as an intermediate fact". It appears from her Honour's reasons that whether there needs to be a direction concerning proof beyond reasonable doubt may depend upon the purpose for which the evidence is tendered (at [502] and [510]).
It appears to me that those members of the High Court who held that evidence of this kind should be the subject of a "beyond reasonable doubt" direction, did so because of a link between the admission of the evidence for a particular purpose under the strict Pfennig test, its status as an intermediate fact, and the direction as to indispensible intermediate facts required by Shepherd. That reasoning suggests that the same conclusion ought not to follow where the test for admission and the purpose for which the evidence can be used is different, as it is in relation to s 31A.
However, as I have noted, it is, in my view, inappropriate to express any concluded view on this issue in circumstances where it forms no part of the ground of appeal, the appellant did not wish to raise it, and the court had the benefit in argument only of a brief reference in the respondent's written submissions.
I deal with it in these reasons only for the purpose of indicating that, in my view, the issue is very much an open one.
The "uncharged acts"/ discreditable conduct in this case
That brings me finally to the purpose for which the evidence of discreditable acts was admitted, the use the jury could have made of it, and the direction, if any, which her Honour should have given about the use to which it could be put. An example of a very full direction, or suggested direction, in relation to evidence of this kind is to be found in an article by Mr David Ross QC, "Evidence of Uncharged Criminal Acts" (2006) 80 Australia Law Journal 188, at 198. The author concludes that directions which some authority suggests as being desirable, include the following:
2.You have heard the complainant give evidence about events other than those which are charged.
3.The purpose of that evidence, according to the prosecution, is (to put the evidence about the offence in context or to show the relationship between the accused and the complainant or to show that he accused had a sexual desire of feeling for the complainant). [I would add, or all of the above, or for other reasons, for example, to explain lack of resistance.]
4.Those items of evidence of uncharged acts are these (detail given of each act). The first act is capable of showing (concept, relationship or sexual desire). (Then go through each uncharged act and its evidential capacity.)
5.Look at each uncharged act individually. Scrutinise each with great care. (Point to evidence of uncertainties and inconsistencies.) Then decide whether you are satisfied or not satisfied that it occurred.
6.If you are not satisfied about any of these uncharged acts you must then decide whether the prosecution has failed to prove (context, relationship or sexual desire).
7.Even if you are satisfied of each uncharged act and that it shows (context, relationship or sexual desire) you can only use that evidence for the limited purpose that I have explained.
8.You must not reason that if the accused committed the uncharged acts, that he or she is the sort of person who would commit the offence charged.
I accept that one can collect together authorities which suggest that all of these directions are desirable. In my view, it is necessary only to endeavour to insert into that list of suggested directions the various uncharged acts the subject of ground 4, and the various contentions, in some cases, made about them, to realise that the risk of a jury being distracted by subsidiary issues, if a too detailed direction were given, is a very real one. A direction of that kind is, it seems to me, inconsistent with the concerns which have long been expressed by the High Court about the undesirability of directions which invite juries closely "to analyse their own mental processes" (Thomas v The Queen (1960) 102 CLR 584 at 606; Green v The Queen (1971) 126 CLR 28 at 33; Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373 at 396; in relation to directions of this type, KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 at [37] ‑ [39] (McHugh J), [98], [109] (Kirby J)). Although there are many dicta, of which the appellant's submissions collect only some, to the effect that it is desirable to set out some or all of these matters in a direction, it does not seem to me that any authority to which we have been referred requires (as opposed to suggests) that any of them must be given in every case.
At trial, no express attention seems to have been given to the question of why this evidence was adduced, and what use could have been made of it. Although the evidence of some of the uncharged acts may well have been admissible as circumstantial evidence, I do not think that it was adduced, or that its principal use was likely to have been, as circumstantial evidence, accepting as the definition of circumstantial evidence "any fact ... from the existence of which the ... jury may infer the existence of a fact in issue" (Cross on Evidence [1,100]).
It appears to me that it is likely that the primary reason that it was accepted on all sides that at least some of this evidence was admissible, was simply that of intelligibility. Recorded interviews admitted pursuant to s 106HB are necessarily different from traditional evidence‑in‑chief. They are less traumatic for a complainant; they are less formal, occur sooner after the events in question, and avoid undue repetition of the experience of talking about those events. They are also fairer to the accused; the complainant's account is sooner after the events in question, the accused has a reasonably long period within which to consider the complainant's evidence exactly as the jury will see it, and the accused can watch for any possibility of leading or suggestion in the interview. However, because they take the form of an interview, which takes place at a time when the interviewing officers may know no more than the mere fact that there is a complaint of an offence of some kind, the details of the offences charged often emerge in a way that is disjointed, and in the context of a great quantity of background detail. It is necessary, in editing them, to do so in a way that leaves the complainant's narrative intelligible, and that preserves so far as possible the flavour of the interview - whether hesitant or confident, vague or detailed, and so on. Often some discreditable material will be "edited in" as part of that process. It is likely that the editing in this case was simply a process directed to ensuring an end product which both counsel considered reasonably intelligible and accurate and not unduly prejudicial.
To the extent that there was a purpose for any evidence, of any greater significance than simple intelligibility, it may have been as relevant to rebutting "defences" of accident or innocent explanation. It is the very common experience in this court, to find that, when first questioned, a person accused of offences of this kind may often indicate that he is aware that he either has or may have done something which is or may be regarded as wrong. Partial admissions and ambiguous remarks of this kind are often sought to be explained at trial as references to sleep disorder or extreme clumsiness. Alternatively, a complainant's evidence may be assessed to be the product of some exaggeration or misunderstanding. Many cases involve an assertion, for example, that an accused's finger may have "slipped" into a child's vagina, or that his hands may have "slipped" into her pants, in circumstances where he has been sleeping in close proximity with her, he has been bathing her, or he has been engaged in some form of innocent horseplay, often involving tickling. It is apparently not unusual during the course of such horseplay for an accused person's clothing to fall off, or open, revealing his penis. On other occasions, there are odd misunderstandings involving pornographic literature; in an attempt to reassure or explain matters to a complainant who has found such material, the accused may be interpreted, in his view mistakenly, as having made an explicit sexual advance. One might have expected that defences of this kind would be unusual, and perhaps they are when all cases of sexual assault are concerned, but this court necessarily deals with those cases in which an appellant has been convicted, and it seems to me that the defence has been relatively popular at least amongst that portion of accused persons.
A trial judge, of course, has a duty to put an accused person's defence fairly to a jury, and will necessarily therefore, in a neutral tone, invite the jury to consider with care explanations of the kind referred to above. It will therefore be necessary for the State to attempt to prove that no such innocent explanation is open. One of the most persuasive ways of achieving that end is by demonstrating that behaviour of broadly the same kind has occurred on a sufficient number of occasions to suggest that any possibility of accident can be ruled out. The s 106HB interview is edited at a time when the State does not know what the accused may say by way of defence, or even what the accused's counsel may open to the jury. A possible defence of innocent association can therefore rarely be ruled out.
The present case had elements of accident and/or innocent explanation. The appellant had written letters to the complainant's mother describing his actions as "ungodly", expressing regret, and suggesting that he felt like "scum". The appellant's evidence was that he had a particularly sensitive conscience, and had been referring, in those letters, to two occasions. One of them corresponded in part to the complainant's account of count 2, save that he asserted that the towel he was wearing came off accidentally and that there was no request that the complainant touch his penis. As to the other, he said that he had, on one occasion (regrettably, he admitted) asked her whether she would like to look at a Playboy magazine, she having accidentally on an earlier occasion come across some "girly magazine" which he had stored in his car. At trial, the suggestion was made to the jury by the appellant's counsel that the complainant had had no difficulty in concocting a story, because she had based it, albeit very loosely, on some incidents which had in fact occurred. The State, on the other hand, could point to the fact that the complainant's story was substantially more detailed, and covered quite different incidents, in an attempt to rebut that suggestion. The evidence of the uncharged acts, together with the complainant's direct evidence of the counts in the indictment, taken together, could assist a jury to rule out any possible explanation that there had been some largely innocent behaviour which the complainant had either misunderstood or exaggerated.
In my view, a direction which drew attention to the sorts of matters to which I have referred, in any detail, would have been very far from a direction favourable to the appellant. However, it was not necessary for such a direction to be given.
PULLIN JA: This is an appeal against five convictions recorded by Judge Yeats on 7 December 2007 after a trial before a jury in the District Court.
The convictions were in relation to five of six counts in an indictment which read:
(1)On 21 February 2003 at [a country town], [the appellant] made a threat to unlawfully kill [the complainant].
(2)On or about 21 February at [a country town] 2003 [the appellant] indecently dealt with [the complainant] a child under the age of 13 years, by asking her to touch his penis.
(3)On a date unknown between 21 February 2003 and 2 April 2003 at [a country town] [the appellant] incited or encouraged [the complainant], a child under the age of 13 years, to engage in sexual behaviour.
(4)On a date unknown between 21 February 2003 and 2 April 2003 [the appellant] sexually penetrated [the complainant], a child under the age of 13 years, by inserting his finger into her vagina.
(5)On the same date and place as Count (4), [the appellant] made a threat to unlawfully kill [the complainant].
(6)On 2 April 2003 at [a country town] [the appellant] indecently dealt with [the complainant], a child under the age of 13 years, by asking her to show him her vagina.
The appellant was acquitted on count 1.
The grounds of appeal allege that the trial judge erred in law in:
1)her directions to the jury;
2)failing to give certain directions; and
3)'constraining' counsel for the accused in the submissions he could make to the jury.
Video evidence and the witnesses at trial
The evidence‑in‑chief of the complainant was in the form of a video‑recorded interview which was conducted by a female police officer and a female officer from the Department of Child Protection on 24 March 2006. The interview ran over two days, but it was agreed between the parties that only the interview on 24 March 2006 should form the basis of the evidence‑in‑chief. On 27 March 2007, a judge made orders for editing the video and for pre‑recording cross‑examination. As a result of agreement between the parties, the video of the interview on 24 March 2006 was edited. The cross‑examination was conducted by the appellant's counsel, Mr M Laurino, before the trial. This was also recorded on video tape. Mr Laurino and the prosecuting authorities agreed on the editing of the video‑recorded interview of the complainant. The video tapes were played to the jury during the trial.
On 31 March 2006, the police executed a search warrant at the appellant's house in a country town. This search was the subject of a video recording and this video was played to the jury. The appellant was then taken to the police station and interviewed. This interview was videoed and the video of the interview was also played to the jury as part of the prosecution case.
The evidence led by the prosecutor at trial consisted of the video recordings and the oral testimony of three witnesses. The witnesses were:
1)Sergeant Jennifer Lynette Sara, a policewoman who gave evidence about a complaint made concerning the appellant by the complainant's mother on 18 July 2003;
2)a detective senior constable who was present when the appellant's premises were searched and who interviewed the appellant on 31 March 2006; and
3)the complainant's mother.
The appellant elected to give oral testimony and he was cross‑examined. No other witnesses were called, although a statement of a witness who examined the appellant's motor vehicle was read to the court by agreement between the parties.
The prosecution evidence
The complainant was born on 23 March 1992 and she was therefore 10 years old in February 2003 when the first offence was committed and 11 years old on the last date referred to in the indictment.
The combined evidence of the complainant and her mother was that the appellant had met the complainant's mother in October 2001 when he attended at the complainant's mother's workplace to repair a television set. The appellant and the complainant's mother then commenced a relationship. The appellant was approximately 44 years old. The complainant was then 9 years old. The appellant continued to live at his house in a country town and the complainant and her mother and sister continued to live at a house in another country town.
On Friday 21 February 2003, by arrangement with the complainant's mother, the appellant picked the complainant up after school and took her to stay with him at his house for the night. They stayed there alone. On the Friday evening they watched a video and the complainant's evidence was that the appellant threatened to kill her at some stage during the evening. This was the evidence in support of count 1. The jury returned a verdict of not guilty on this count.
The complainant gave evidence that, at different stages during the complainant's stay in the country town on 21 and 22 February 2003, the appellant asked the complainant to show him her 'private parts' (ts 54) and 'at some stage' (ts 52) he chased and hit the complainant with a belt (B/G AB 89). These incidents were not made the subject of any charge in the indictment.
During the evening of 21 February 2003, the complainant gave evidence that they watched a video. At some stage the appellant made the complainant a Milo drink and she fell asleep (ts 57 ‑ 58). Her evidence‑in‑chief was that she woke to find that her pants were off her body (ts 59). Sometime later, the appellant drove with the complainant to a store and she was asked to go and buy some Vaseline so that he could get 'excited for her' (AB 45 ‑ 46).
The complainant gave evidence that at some stage during the occasion of her stay at the appellant's home, the appellant had a shower and appeared dressed only with a towel wrapped around his waist. He invited the complainant to play ping‑pong with him and during the course of the game, the complainant said that he removed the towel and exposed his penis to her. She described it as 'straight up' and he asked her to touch his penis (ts 27). That evidence was in support of count 2, on which the appellant was found guilty.
The precise chronology of events in relation to this charge and the other charges is somewhat difficult to follow, partly because of the way the questioning was conducted by the police officer and the Child Protection officer and partly because the complainant had difficulty in recalling the precise sequence of events and was unable to give evidence of the dates when the offences occurred. The dates or approximate dates when the offences occurred can however be identified by other evidence. For example, the complainant's mother was able to identify the date when the complainant stayed with the appellant at his country home (ts 130). The last date in the indictment was also identified by the mother. However, despite uncertainty about dates the complainant was clear on the circumstances constituting the offences or alleged offence.
Later (it is not clear whether this was on 22 February 2003 or at a later date) the complainant said that the appellant, with the complainant in the car, went to collect the complainant's sister who was working at a food store, and dropped the sister at her home. The appellant then took the complainant in his car to a nearby boat ramp on a beach. According to the complainant, he locked the doors in the car and then placed his hand inside her jeans and pants and sexually penetrated her by inserting his finger into her vagina. The complainant said that she resisted and screamed (ts 76 ‑ 78). This evidence was in support of count 4 in the indictment on which the appellant was found guilty.
The appellant then drove the complainant home and on the way the complainant said the appellant was angry and threatened to kill her by saying 'If you tell anyone about what's happened I will shoot you' (B/G AB 125). There is no dispute that the appellant owned or possessed firearms and that the complainant knew this. That evidence was in support of count 5 and the appellant was found guilty of this charge.
On another date, which is not clear from the complainant's evidence, but sometime between 21 February 2003 and 2 April 2003, the complainant was at home alone and her mother had gone out. The appellant came into the complainant's home and went to her bedroom and sat on her bed reading a magazine. The complainant and the appellant then went to the kitchen and the appellant placed the magazine in front of the complainant and showed her a photograph of a naked woman squatting over a bottle with the neck of the bottle inserted in her vagina (B/G AB 135 ‑ 143). The complainant said that the appellant asked her if she could do what the naked woman was doing (B/G AB 139). That was the evidence led in support of count 3 (inciting or encouraging the complainant to engage in sexual behaviour). The appellant was found guilty of this charge.
Finally, the complainant gave evidence that once again the appellant was reading a magazine depicting naked women and the appellant then asked the complainant to show him her vagina. The date of this offence is unclear but at one stage in her cross‑examination the complainant said that this happened a week or so before she complained to her mother about the appellant's inappropriate behaviour. The complainant's mother said that that occurred on 3 April 2003. The appellant was found guilty of this charge (count 6).
The testimony of the complainant's mother
The complainant's mother gave evidence identifying the date in February 2003 when the complainant went to stay with the appellant at his country home (ts 130), thereby fixing the date in relation to counts 1 and 2. She also testified that the complainant made complaint to her on 3 April 2003, thereby enabling the prosecution to fix the date in relation to count 6. The mother's evidence was that the complainant was preparing a school assignment about Egypt on 3 April 2003 and she broke down and disclosed that the appellant had behaved in an inappropriate manner toward her (ts 112).
The mother also gave evidence that at about the same time as the complaint told her about the appellant, her relationship with the appellant was breaking up. A couple of days after the complainant told her about the appellant, the appellant telephoned the mother and during the conversation she said to the appellant:
Well, how are you going to tell the church what you have done to [the complainant] (ts 114)?
Her evidence was that there was a deathly silence and the appellant then 'admitted to being the scum of the earth' (ts 114).
The complainant's mother testified that on 18 July 2003 she went with the complainant to a police station to complain about the appellant's conduct towards the complainant. Before that date the appellant had sent or delivered cards and letters to the complainant's mother. The first was a letter placed under the mother's door mat the morning after the telephone conversation. It read:
I can't begin to tell you how sorry I am to you both. My actions were not just totally inappropriate but completely ungodly. I do not ask for your forgiveness but I do tell you (completely?) how sorry I am to [the complainant] and you. You were right. I realised more than two weeks ago I had overstepped in my actions and realised the only way to overcome the things I had said to [the complainant] was to completely withdraw from you all. I tried to get an argument happening the week before but you didn't catch on (ts 118).
The letter contained some parts which the complainant's mother had difficulty deciphering and it ended up stating 'I am complete scum. I'm so sorry' (ts 118) (exhibit 11).
Another letter, which became exhibit 13, contained a biblical quotation from Titus from the Bible. It began:
God bless you and your girls. I wanted to give you something (indecipherable). Again I tell you how sorry I am and that I state to you and God I never set out to ever engage to have sex or do anything to [the complainant]. I only ever told her about sex from a man's perspective, and I know the heritage I have and I know the (indecipherable) I have caused to you all because I never realised how low tide feels to a human being, how you can just let go of everything you know and love, but I know I deserve to feel and be treated like scum (ts 119 ‑ 120).
Another letter, exhibit 14, written to the mother said 'It's so difficult not to have you in my life, but I reckon my sin did all this' (ts 121).
The mother gave evidence that in July 2003 she went to the police station and made a report to the police officer, Sergeant Sara, about the appellant's conduct with the complainant.
The testimony of Sergeant Jennifer Sara
Sergeant Sara gave evidence that the complainant and the complainant's mother attended the police station on 18 July 2003. She made notes of the allegations made by the mother. The complainant was asked to leave the room while this report was made (ts 162). She noted that the offences were alleged to have occurred between 21 February 2003 and 22 February 2003. Sergeant Sara said that the complainant's mother referred to the 'wishes of her daughter not proceeding at that time' (ts 168). A police offence report was prepared dated 28 July 2003. No report was made by the mother of any threat by the appellant to kill the complainant (ts 169).
The forensic tactics adopted by counsel for the appellant
The unedited video‑recorded interviews of the complainant ran for about seven and a half hours. Before the trial, Mr Laurino, who was both solicitor and counsel for the appellant, had a number of discussions with the Director of Public Prosecutions' file manager and with trial prosecuting counsel regarding the editing of the videos. Mr Laurino is an experienced general practitioner. He was admitted in 1981. He has appeared as counsel in the Supreme Court in criminal trials and has briefed counsel in others. The prosecution advised Mr Laurino that the complainant's interview on 29 March 2006 would not be played. The editing of the other long interview with the complainant was a joint effort between Mr Laurino and the prosecutor. The edited video ran for approximately three hours. An affidavit sworn by Mr Laurino was filed in this appeal for reasons which will be mentioned later, but in his affidavit he said that in his view the 'uncharged acts' were admissible either as 'propensity' or 'relationship' evidence or 'as part of the res gestae' and that in consequence he did not object to evidence of the 'uncharged acts' being led.
At the trial Mr Laurino put to the complainant in cross‑examination that she was having problems at school; she was being bullied; and was 'under the pump at school', which the complainant took to be an accusation that this led her to make up false accusations against the appellant. The complainant said 'I would never make that up because I loved [the appellant] like my father before and I would never make something like that up' (ts 37). Counsel for the appellant put it to the complainant:
See, I'm saying to you that the reason you mentioned [the appellant] on that day, when your mother asked you what was wrong, was to try and get some attention from her. She had been paying you no attention at all for weeks (ts 140)?
The complainant denied this.
Mr Laurino put it to the complainant that her mother and the appellant had had an argument 'and so the appellant was not her mother's favourite person' (ts 40). The complainant said that she did not know that they had had an argument. Counsel put it to the complainant that 'It was easy to blame [the appellant]', to which the complainant said:
No, it wasn't, because I loved him and I hate admitting that because I hate him now, but I loved him before, and he promised me the world and he promised that I'd actually have a dad for once in my life, and why would I want to ruin that? And my mum actually loved someone (ts 40).
Thus, Mr Laurino at the trial sought to adduce evidence via cross‑examination of the complainant in order to ground a later submission to the jury that the complainant had a motive or reasons for making false accusations against the appellant.
Another forensic tactic adopted by Mr Laurino was to point out inconsistencies in the complainant's evidence or to point out that certain incidents were not the subject of complaint to her mother. As a result Mr Laurino drew out from the complainant in cross‑examination the fact that full details of the offences were not complained about to her mother. The complainant admitted that she had not told her mother all of the details. Counsel for the appellant put it to the complainant 'and isn't that because your mother caught you on the hop? You really didn't have time to think about specific details?' (ts 40). The complainant denied this. Counsel put it to the complainant that her mother wanted to know about the details and the complainant said that she did, but 'I don't know why you're asking this because I wouldn't lie'. In furtherance of this tactic there was extensive cross‑examination of the complainant about the purchase of the Vaseline. The incident was not the subject of any charge but what was said by the appellant at the time it was purchased revealed that the appellant had a sexual interest in the complainant. Mr Laurino sought to show inconsistency in the complainant's account of events. The complainant gave evidence in cross‑examination that the appellant said that the Vaseline was for 'secret men's business', but that when she was interviewed in 2003 she did not say that any such comment was made. Mr Laurino put it to the complainant that this was an embellishment added after she had been given sex education lessons at school.
There was also extensive cross‑examination about the complainant's evidence that the appellant hit her with a belt. This appears to have been res gestae evidence, that is, it was an incident by which the complainant was able to identify the weekend and the events she related about it. Mr Laurino's tactic in cross‑examination was to seek to demonstrate that the evidence she gave about the mark made by the belt was not plausible.
Evidence‑in‑chief had also been led via the edited video that the appellant had invited the complainant to join him when he was having a shower. This was properly admitted as evidence of the appellant's sexual interest in the complainant. Mr Laurino cross‑examined the complainant to point out the fact that the complainant had not told anyone about this. She agreed that she had not told anyone. It was further put to the complainant by Mr Laurino that she had not told her mother about the appellant putting his hand down her pants or about the incident where the appellant had asked her to squat and pose like 'the naked lady in the magazine'. It was put to the complainant that this was because 'these things had not happened' (ts 47 ‑ 48).
Counsel also put to the complainant details of the evidence that the appellant later gave in evidence. The details will be referred to below, but in effect, it was put to the complainant that the appellant never threatened to kill her and did not commit any of the offences.
The appellant's testimony
The appellant gave evidence that the complainant stayed with him at his country home on the night of 21 February 2003. He therefore admitted that he had had the opportunity to commit the offence. He denied that he made any threat to kill. He admitted that on this weekend he had a game of ping‑pong while he had a towel around his waist. He gave evidence that the towel came off accidentally, but said that he did not ask the complainant to touch his penis.
He gave evidence that he had some Playboy magazines which were on the floor of his car (ts 176). The appellant said that he asked the complainant to get a camera out of the car, and she said to him that she had seen a 'girlie magazine' in the car and had looked through it (ts 178).
The appellant then said that on another occasion he went to his vehicle and brought one of the Playboy magazines to the complainant and he asked her whether 'she would again like to look at it' (ts 179). He said:
I think I went to show it to her and I could just see by her reaction that she didn't want to have any part of it and I could see it distressed her and I realised, you know, what my actions were doing to her, and I took the magazine out and put it straight back in the vehicle and not long after that [the complainant's] mother came home (ts 179).
He said that this was, he believed, after the weekend when the complainant stayed with him at his house.
He agreed that he went to the boat ramp with the complainant. However, he denied that he sexually penetrated the complainant.
He admitted that he was confronted on the telephone by the complainant's mother about his conduct towards her daughter. He admitted that he wrote letters to the complainant's mother. He was asked why he had written the letters. This followed questions he was asked in examination‑in‑chief about whether he had threatened the complainant after what had 'happened with the magazines' (ts 194). When asked why he wrote the letters he said:
I could have completely ignored it or I could have denied it. I at that stage absolutely adored [the complainant's mother] and loved her and I absolutely adored and loved her girls and I believe I always treated them with respect and love and I was just - I was totally devastated that a single action like that could lead to the consequences and further, what's happened, and I'm not sorry I wrote - and I can't say that I wouldn't do the same thing again, because I don't think my actions were - they were terrible actions (ts 194).
Questions put to the appellant by both counsel about why the complainant made allegations about the appellant
Mr Laurino's last question in examination‑in‑chief of the appellant was:
Do you know why [the complainant] has made the allegations she has - not what you have admitted to, the allegations she has? (ts 195).
His answer was:
No, I don't. I don't. I'm not going to say anything to discredit [the complainant], because [the complainant] I knew I really adored. All I can say, that [the complainant's mother] and I were looking at getting married. That was on the cards. [The complainant] had had her mother to herself for four or five years. [The complainant's sister] had come back on the scene probably six months before and then I was also on the scene. I don't know. I'm not answering for that girl because I don't know, but I can only imagine that maybe she thought that all the attention from her mother was not going to be there any more and I can answer her, Michael; I can't answer for her (ts 195).
Counsel for the prosecution then commenced cross‑examination and the following questions and answers appear in the transcript:
[The appellant], let's just take up that last point, shall we?‑‑‑Yes, sir.
Just excuse me for a moment while I tidy up bits and pieces. Now, your relationship with [the complainant] you have described as good?‑‑‑I believed it was good, yes.
You have described [the complainant] as a fun child, fun to be with?‑‑‑That's the girl that I liked.
That your relationship with her was like father and daughter?‑‑‑To the best that I would know, yes.
And you were ?‑‑‑I didn't have that authority but I had that love for her.
You were protective of her like a father would be?‑‑‑When I had the opportunities, I believe so, yes.
Yes, and you have just said that you can't speak for [the complainant]?‑‑‑I can't.
No, but you have indicated - notwithstanding that you can't speak for [the complainant], you have indicated that it was this lack of attention that she was going to get from her mother that was going to cause this?‑‑‑I was asked a question by Mr Laurino. I gave you the best answer I could do. I can't speak for her because I'm not her.
Well, let's go back to the proposition that I think your evidence was putting, and that's what I'm trying to clarify with you. You're saying that [the complainant] must have felt that she was going to lose attention from her mother?‑‑‑That's only my speculation.
Right?‑‑‑I can't - honestly, I can't - I'm not her. I have not spoken to her since (ts 195 ‑ 196).
The address to the jury by counsel for the appellant
Mr Laurino began by saying to the jury that this was a 'distasteful case'; that the appellant was charged with the type of things that involve behaviour that any right‑thinking person would find abhorrent. He said:
[I]t's a dangerous type of case to be deciding upon, because one can be so outraged, so incensed by what you hear that your decisions are made out of strong emotions and that strong sense of outrage that you feel (ts 271)
and at (ts 289):
I'm going to remind you that we're in a criminal trial here, and you just cannot allow yourselves to be overtaken by the emotions we all naturally feel when we're hearing allegations of the type that have been made here by a little girl, an 11‑year‑old girl, but it's a dangerous case to be deciding on, and you need to approach your job analytically, logically and coldly.
Mr Laurino said that the jury should not allow emotion to play any part in their reasoning. He referred to the issue of 'credibility and believability' (ts 276) and then a point was reached in his address where the following is revealed by the transcript:
From our point of view what we are saying is that on listening to the evidence are you persuaded beyond reasonable doubt of what [the complainant] says has happened, and I'm asking you also not to base your thinking upon the proposal or the question of why would this 11 year old girl say these things if they are not true. I mean, that's a natural question I would ask myself, I think, but you are in a criminal court, because that sort of question is neither logical or fair. That's why, because what you are doing.
YEATS DCJ: Mr Laurino - could you go into the jury room just for a moment, members of the jury?
(At 3.45 pm the jury retired)
YEATS DCJ: Mr Laurino, I would have thought that's exactly the kind of question they have to ask. They have to say - they have to look at this little girl, everything they know about her, and one of the questions is why would she make these allegations if they're not true? The prosecution never puts that because it's not proper, but I don't think it can be put that they cannot do that. I don't want to have to correct you, so I don't want you to continue down that track.
That's exactly - it's an assessment of her. Is she a little girl that lies, is she a little girl that sat there for a day and a half on her videos? I mean, they have looked at her. They have to assess her truthfulness and one of the issues is would she sit there and lie like that endlessly. Mr Cogin, I will hear from you. I have never heard a counsel put that to a jury before and it sort of startled me.
COGIN, MR: I have problems with the submission, because I think it is an issue which - I mean, you see, it's a different proposition from a Palmer question in a video record of interview.
YEATS, DCJ: Yes. Yes, you don't ask the accused why would
COGIN, MR: No, you don't - that's right, because that reverses the onus of proof.
YEATS DCJ: Yes.
COGIN, MR: But when it comes to assessing credibility that of course is one of the logical things that they have to consider. So I don't think the submission that the jury can say - you can't say to the jury, 'You can't do that.'
YEATS, DCJ: If you want to make the submission, Mr Laurino, the trouble is that I would contradict you, and that might not assist your client. That's the reason I sent the jury out. Can you continue without dwelling on that?
LAURINO, MR: I can. I don't necessarily agree with what your Honour is saying.
YEATS, DCJ: Well, then you make it and I will put my view to them which I think would be necessary, because I don't think they are hampered in their assessment of credibility by any rules that, 'You can't look at that issue.' That's one of the issues that they may find arises and that's a matter for them. It's not one that people usually judge, but to say, 'You have to narrow your framework and never ask that question', I think that's just wrong.
LAURINO, MR: Yes, because I suppose Palmer is saying to us in its own way you can't ask the accused to answer that question.
YEATS, DCJ: That's right.
LAURINO, MR: Yes.
YEATS, DCJ: It's an unfair question to the accused, but for a jury that has to make a judgment and sitting as a judge who has had to make judgments in other cases, it's one of the things you look at.
LAURINO, MR: All right, no. Yes, I will
YEATS, DCJ: The kind of person she is.
LAURINO, MR: Yes.
YEATS, DCJ: It's part of all of that assessment of her. Are you able to continue without
LAURINO, MR: Well, would your Honour have a problem if I rephrase this approach along the basis you cannot ask an accused to provide an explanation as to why she might say these things.
YEATS, DCJ: Yes, I'm happy for you to say that. Do you want to retract what you said before?
LAURINO, MR: I will (ts 277 ‑ 278).
The jury returned and the transcript reveals the following:
YEATS DCJ: You probably didn't mind getting up and walking around, ladies and gentlemen. Mr Laurino wants to just correct something and we will move on. Yes, thank you, Mr Laurino.
LAURINO, MR: Yes, her Honour quite correctly pointed out a path I was taking which was wrong, because I suggested to you that it would be inappropriate for you to ask yourselves why would she say these things if they weren't true. The more appropriate question, or the more appropriate approach is it's inappropriate to ask the accused to explain why would she say these things if they weren't true, because if you go to the accused with that sort of question you are effectively changing the onus of proof. You are asking [the appellant] then to provide you with an explanation as to why she would lie and you are asking him effectively to prove his innocence or to somehow show he is innocent, and of course that's very contrary to these rules that I'm talking to you about (ts 279).
Mr Laurino's address then concentrated on the inconsistent accounts of the incidents the subject of the charges, that is the inconsistencies between what the complainant's mother told Sergeant Sara, including the fact that there was no complaint to the police in 2003 about the threat to kill.
Further on he submitted that the jury had to take account of the possibility of 'concoction, of fabrication' (ts 283). He then said that there were some 'glaring problems' with the complainant's evidence (ts 284). He addressed the jury concerning the evidence about the belt and remarked that the complainant said that she had a red mark which hurt her for a week and a half 'yet it left no bruise' and that:
It's hard to accept things could happen like that. Without more I would say its neither plausible or convincing. Just because she tells us of this thing doesn't mean you have to accept it (ts 284).
Mr Laurino pointed out that the complainant had said that she gave evidence that she was staying three nights at the appellant's house in February, but she later conceded that it was one night (ts 285). Mr Laurino referred to the evidence about the complainant waking to find that her pants were at the foot of her bed. He said it was 'a ridiculous proposition' that her pyjamas were removed because she was a light sleeper and that this incident 'just didn't happen' (ts 286). He also pointed to the inconsistency of accounts concerning the towel incident. He pointed out that Sergeant Sara had noted that the 'towel fell off' and that 'now', according to the complainant's mother, she was told that the towel was 'taken off' and that the complainant said that the towel was 'taken off' (ts 286).
He referred to the evidence of the complainant concerning count 1 and the threat to kill. He said this threat was made in circumstances which, according to the complainant, came 'out of the blue' (ts 287). He said:
Everything else before this point has been absolutely appropriate, but seeing some dirty magazines has so incensed him, so frightened him, that he has got to threaten her with a gun to shoot her? Why? Why would he react like that? (ts 287)
This submission appears to have resonated with the jury because they acquitted on this charge.
Mr Laurino also referred to the Vaseline incident. He pointed to the fact that there was no reference to the appellant's comment, 'To get excited for you', in the police notes in 2003, but in 2006:
[W]hen she's three years older, when she has had health education classes … when she's wiser about sexual matters, including other uses of Vaseline … it's suddenly in her statement. It's suddenly in her evidence (ts 288).
He then concluded by saying that serious doubt had been cast over the complainant's evidence and submitted to the jury that 'all of the charges become contaminated. It brings into serious doubt everything else she said'. He asked rhetorically 'How hard is it to concoct a story, make up a story' (ts 290). He said:
There was some truth in it. The places, the towel coming off, the showing of the magazine. There was truth in it and so it was so much easier to come up with, the truth sprinkled with fiction (ts 290).
Prosecutor's address to the jury
It is not necessary to summarise the prosecutor's address to the jury because no ground of appeal refers to it.
The trial judge's address to the jury
It is not necessary to provide a detailed summary of the whole of the judge's instructions on the law and observations about the evidence. However, a broad outline of the structure of the summing up and the aspects of the summing up relevant to the grounds of appeal are set out below.
The summing up began with the usual directions about the need for impartiality and the exclusion of feelings of sympathy or prejudice. Her Honour then said:
Mr Laurino kept talking about how dangerous this case is. Ladies and gentlemen, let me assure you it is not dangerous. It is exactly the kind of case we are faced with quite often. We have often heard recently about sexual abuse in Aboriginal communities, but what we don't hear about the amount of it that is coming before our courts in Western Australia because the press doesn't cover these cases. They keep the identity of the alleged complainants - can't be revealed and so we don't have press coverage, but let me assure you there is nothing dangerous about this case. It is a case where there is an allegation that has to be looked at and you may find it is quite a serious allegation when you recall [the complainant's] evidence (ts 300).
This was followed by the usual directions about the presumption of innocence, the burden of proof and the standard of proof. Her Honour directed the jury that they had a responsibility to examine the evidence on each charge and reach a separate verdict as to each charge. A direction was given of the fact that because they might find the accused guilty of one charge it did not mean that he was necessarily guilty of the other charge, or if they were to find him not guilty of a charge, it did not follow that he was not guilty of another. The jury was informed that it had to bring in separate verdicts. Her Honour also said:
You are entitled to accept totally what a witness said to you or you could accept part of the witness's evidence and find another part of that witness's evidence you don't accept (ts 302).
However, later in the summing up, her Honour referred to the need to exercise caution concerning the complainant's evidence:
Look at it very carefully. You could only accept [the complainant's] evidence and rely on it if you are satisfied beyond reasonable doubt that she is telling the truth (ts 309).
Her Honour also referred to the fact that the video‑recorded evidence had been edited and said 'Our system is that the prosecution and the defence counsel together agree on the edits so don't think that [the prosecutor] has edited it and brought it in without Mr Laurino's agreement. That is how the editing is done' (ts 304). Her Honour pointed out to the jury that 'there was no report to Sergeant Sara about any threats to kill' (ts 306).
There was an Edwards lie direction concerning the appellant's denial that he had a belt with a buckle and the evidence of the fact that he was later found to be wearing one when the police searched his house (ts 308).
Her Honour gave detailed directions on the law concerning each of the counts.
No direction was given to the jury about the use the jury could make of what the appellant describes as 'uncharged acts' which are referred to below.
Application by appellant's counsel for redirection
After the jury had retired, Mr Laurino said:
I think it would be wrong to suggest to the jury that these types of cases are not dangerous to be deciding upon because they are cases where the emotions are heightened and we're relying at the end of the day on one word upon another. I think this expression 'they are dangerous cases to be deciding upon' when I used it - and certainly you referred to me using that word a few times - was more in the sense of they are dangerous because you come and the emotions come into play and those emotions can affect the decision‑making proceed [sic]. That's why they are dangerous, not for other reasons perhaps. They are no different to any other case in many respects of judges and juries having to sit and judge the evidence before them. They are dangerous because of that emotional element (ts 319).
Her Honour said that she was not going to tell the jury that the cases were 'dangerous' and added:
I certainly have directed them that their natural emotions must stay right out of it (ts 319).
No application was made by either counsel for directions to be given about 'uncharged acts'. Her Honour was persuaded to give a further direction concerning the mother's evidence but that is not relevant for the purposes of this appeal.
The jury's verdicts
As indicated earlier, the jury then found the appellant not guilty on count 1 and guilty on all of the other counts.
The appellant's grounds of appeal
The appellant's grounds of appeal are that the trial judge erred in law by:
(a)informing the jury that the case was not a dangerous case, and by commenting that child sexual abuse in Western Australia is common (ground 1);
(b)failing to direct the jury that it was not to approach the case by asking whether the accused had satisfactorily explained or accounted for the complainant's allegations against him (ground 2);
(c)effectively constraining defence counsel as to what he was and was not permitted to put to the jury in his final submissions (ground 3);
(d)failing to give a direction to the jury about the use of 'uncharged acts' (ground 4).
Ground 1 - Direction that the case was not a 'dangerous' case to decide
The trial judge did not err when she told the jury that this was not a 'dangerous case to decide'. Her Honour made the obvious point that it was the type of case courts are faced with quite often. There is nothing about this case which made it 'dangerous' or more difficult to decide that any other case where the issues are largely determined on an oath against oath contest. In fact, treating sexual offence cases as though they carry some special difficulty not encountered anywhere else may be an explanation for the complex and confusing law which has developed in this area and which is discussed in detail below.
For counsel for the accused to tell the jury that this was a 'dangerous' case to decide, was to give the jury the wrong impression and to try and persuade them to approach the case in some kind of special, unspecified and undefined way. Her Honour was right to correct this impression and did not err in doing so.
It is true that it was not necessary for her Honour to mention sexual abuse cases in Aboriginal communities as an example, but the mere mention of this type of case, which was at the time receiving some press coverage, did not amount to an error of law. Ground 1 should be dismissed.
Ground 2 - The Palmer case issue
The background to this ground of appeal is set out above. Counsel for the appellant was entitled to question the complainant to try and gain answers suggesting that the complainant had a motive to make false accusations against the appellant. See Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 [6] ‑ [7].
At the end of his examination‑in‑chief, Mr Laurino asked the appellant, in effect, to offer his opinion as to why the complainant might make false accusations against him. As Brennan CJ, Gaudron and Gummow JJ said in Palmer at [7], any opinion from the appellant about why he thought that the complainant should lie was irrelevant. The question by Mr Laurino should have been, but was not, objected to by the prosecutor. In turn, the prosecutor should not have followed up and asked the appellant to speculate what the complainant 'must have felt' because the answer to that question was also irrelevant and should have been objected to. In fact the appellant quite correctly said that to ask him that question was to ask him to speculate. The fact that these questions were asked was dealt with by the trial judge, albeit in an unusual way, during the course of the address to the jury by Mr Laurino.
As set out above, Mr Laurino said to the jury that it was not to base its thinking:
[U]pon the proposal or the question of why would this 11‑year‑old girl say these things if they are not true. I mean, that's a natural question I would ask myself, I think, but you are in a criminal court, because that sort of question is neither logical or fair (ts 277).
The judge then asked for the jury to go to the jury room and, in effect, pointed out to Mr Laurino that he was prejudicing his client's case. Her Honour said that the question he had told the jury they could not ask was 'exactly the kind of question they have to ask' (ts 277).
The exchange that took place reveals that the trial judge had a very clear understanding of what is and is not permitted. Her Honour's comments reflected what was said in Palmer's case, namely that it was permissible for the accused to raise questions about the complainant's motive to lie but that it is not permissible to ask the accused whether he can think of any reason why the complainant might lie.
When the jury returned after the discussion between the parties, the rather unusual course was followed where counsel for the appellant then explained to the jury what the trial judge had said the correct position was. He said that 'Her Honour quite correctly pointed out a path I was taking which was wrong'. He explained that it had been pointed out that it was not inappropriate for the jury to ask themselves why the complainant would say things that were not true and that what was inappropriate was to ask the accused to explain 'why would she say these things if they weren't true, because if you go to the accused with that sort of question you are effectively changing the onus of proof' (ts 279).
Therefore, the errors made by defence and prosecuting counsel in asking questions to elicit irrelevant evidence was corrected when the jury was told by counsel for the appellant that the trial judge directed that the correct legal position be stated. The trial judge informed the jury that 'Mr Laurino wants to just correct something and we will move on' (ts 279). It would have been preferable for the trial judge to have spoken the words rather than, in effect, informing the jury that counsel would state what the trial judge's direction was. Although unusual and not the course usually to be followed, a direction was given by this indirect method and so the ground which alleges that the trial judge erred by failing to direct the jury cannot be sustained. Even if that is wrong, the provisions of s 30(4) of the Criminal Appeals Act 2004 (WA) should be applied. In the circumstances, there was no substantial miscarriage of justice.
Ground 3 - Whether the trial judge 'constrained' defence counsel in his address to the jury
This ground relates to the incident discussed in ground 2. The trial judge interrupted defence counsel as revealed in the section of the transcript set out earlier in these reasons. Only in exceptional circumstances should it be necessary for a judge in the presence of a jury to interrupt the speech by counsel. The speaker's train of thought may be disrupted and the jury's attention may be inappropriately diverted. Interventions for the purpose of correcting or clarifying something said by counsel should usually be made in the absence of the jury at a break in the proceedings or after counsel's address, so that the point can be dealt with in an orderly fashion. See R v Tuegel [2000] 2 All ER 872, 888. However, there may be some circumstances where a judge may wish to interrupt a speech by counsel so as to avoid a miscarriage of justice.
In this case it is clear that the trial judge intervened to prevent prejudice to the appellant's case. Counsel for the appellant had told the jury that it was not for them to consider whether there were reasons which might have led the complainant to make false allegations. That disadvantaged the appellant because it was entirely permissible for the appellant to raise questions about whether the complainant had any motive for bringing a false complaint against the appellant. It was in fact a line pursued by defence counsel in his cross‑examination of the complainant. In the circumstances, the trial judge's intervention was for the benefit of the appellant. If the trial judge had waited until summing up, the jury would have been misled by the submission made by Mr Laurino which would have been in their minds for the balance of his address. In fact, after the intervention, counsel for the appellant then made submissions about the sort of motives that may have led the complainant to make false allegations. Counsel for the appellant also had the opportunity to make it clear that there was no onus on the appellant to prove that there was a motive for making a false complaint.
The intervention did not 'constrain' defence counsel. Once the intervention occurred he realised his error and proceeded with submissions based on a correct understanding of the law. This ground should be dismissed.
Ground 4 - Whether a direction was necessary concerning uncharged acts.
The appellant refers to evidence given by the complainant revealing conduct by the appellant concerning the complainant which the appellant contends could have been but was not the subject of a criminal charge to be tried by the jury. The evidence particularised by the appellant in the written submissions of this appeal was in relation to the following:
(a)The 'pants off' episode
The complainant gave evidence that when she went to sleep on 21 February 2003, she had her pyjama pants on. She said that she woke in the morning to find that they had been removed. The inference was open that it was the appellant who removed them.
(b)Indecent request
The complainant gave evidence that when staying at the appellant's home, the appellant asked the complainant whether he could 'see your vagina' and said 'show me like your vagina or your breast or else'.
(c)Hands down pants
The complainant gave evidence that when the appellant would come over to her house, he would sometimes try to put his hands down her pants.
(d)The Vaseline incident
The complainant gave evidence that the appellant asked her to buy Vaseline and when she asked him what it was for, he said 'its because I want to get excited for you'.
(e)The shower incident
The complainant gave evidence that when the appellant was having a shower on one occasion, the appellant asked whether she wanted to come in and join him in the shower.
Other incidents were as follows:
(f)The incident where the appellant showed the complainant a Playboy magazine
The complainant gave evidence that she was shown a Playboy magazine. This was evidence deliberately elicited from the complainant in cross‑examination. The appellant also gave evidence about this. In effect, counsel for the appellant wanted the evidence in to support his claim that this was the only thing he did which amounted to the 'ungodly' actions he was referring to and apologising for in his letters.
(g)Threat after shower
On the occasion when the complainant said the appellant asked if she would join him in the shower, her mother arrived home at that moment and the appellant threatened her that he would put a gun down her throat if she told her mother.
(h)On an occasion when the appellant was reading a magazine which she described as 'yucky' and 'gross', the appellant said 'if you don't look at it with me I'll hurt you' (AB 137). This appears to relate to count 3. Other evidence given by the complainant in relation to this was that the appellant said 'If you tell your mum … I'll shoot you in the head' (ts 43).
(i)The belt incident
The complainant gave evidence about being struck with a belt. It was submitted that this amounted to an assault.
Incidents (a) to (f) were uncharged sexual acts. Incidents (g) to (i) were uncharged criminal acts but they were not sexual acts.
The evidence of other sexual conduct by the appellant in GBT, which was not the subject of any count against him (that is, the uncharged acts), was, without doubt, 'propensity evidence', as defined in s 31A(1). The evidence of the uncharged acts appears to have been admitted generally at the trial. It satisfied the requirements of s 31A(2).
Unfortunately, the reasons in GBT do not refer to s 31A, the earlier decisions of this court in Noto, Upton and Dair or the reasons of McHugh J in KRM. It is plain from those authorities that if 'propensity evidence', as defined in s 31A(1), is admitted generally at a criminal trial then no propensity warning is required. The very purpose of the evidence is to prove that the accused is the type of person who is likely to have committed the counts in the indictment. I am therefore of the opinion that the observation in GBT that
[i]n view of the fact that there were uncharged acts, it was appropriate to warn the jury that it should not reason that because the accused engaged in other misconduct, he was the kind of person who was likely to have committed those offences [45],
is inconsistent with the earlier decisions of this court. The observation is, with respect, erroneous and should not be followed.
Ground 4: the standard of proof in relation to evidence admissible under s 31A of the Evidence Act
Section 31A of the Evidence Act does not deal with the standard of proof in relation to evidence admissible under that provision.
Before the decision in HML, it was well‑established that although the guilt of an accused on the charge against him or her must be proved beyond reasonable doubt, an uncharged act which has been admitted generally may be considered together with the other evidence and, for that purpose, does not have to be proved to a particular standard. It may be considered together with the other evidence which, as a whole, must prove the accused's guilt beyond reasonable doubt if he or she is to be convicted. But if the uncharged act is an indispensible link in a chain of evidence necessary to prove the accused's guilt, then the uncharged act must be proved beyond reasonable doubt before he or she may be convicted. See Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 579 (Dawson J); Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, 210 (Deane, Dawson & Gaudron JJ); Best, 618 (Callaway JA). Consistently with the principle established by these authorities, in Buttsworth, the Court of Criminal Appeal of Western Australia (Murray, Templeman, Wheeler, Miller & McKechnie JJ) said:
Generally, there is no need to do more than to refer to the need, before the jury has regard to the extraneous conduct, to find the facts established by truthful and accurate evidence. Only if the evidence has the sort of direct relevance to the proof of facts constituting the offence charged that it might be regarded as providing links in a chain of proof of guilt, should the jury be specifically directed that they may not so use the evidence in question unless satisfied of the facts established by that evidence beyond reasonable doubt. In this case it is apparent that in this regard the trial Judge made no error of law [44].
I agree, with respect, with the analysis of HML made by Nettle, Redlich and Dodds‑Streeton JJA in Sadler [59] ‑ [67] and with the observation of Nettle JA in EF [2]. See [251] ‑ [254], [268] above.
There is some analogy between s 398A of the Crimes Act 1958 (Vic) and s 31A.
In my opinion, until the High Court provides further guidance on the point, where evidence of uncharged sexual acts is admitted under s 31A:
(a)a trial judge should, ordinarily, proceed on the basis that there is a real risk that the jury may use the evidence as a sufficiently important step in reasoning towards a verdict of guilty on the offence or offences charged to require particular mention in his or her summing up; and
(b)the judge should, ordinarily, direct the jury in his or her summing up that they should not conclude, on the basis of the evidence of the uncharged sexual acts, that the accused had a sexual interest in the complainant unless they are satisfied beyond reasonable doubt of the existence of the sexual interest.
It does not, however, necessarily follow that there will be a miscarriage of justice if a trial judge does not, in a particular case, give the direction I have mentioned. The whole of the trial judge's summing up must be examined, in the context of the particular facts and circumstances and the evidence and course of the trial as a whole, in order to determine whether there has been a miscarriage.
My observations at [317] above do not apply to evidence of uncharged acts of a non‑sexual nature. The principle enunciated in Shepherd (and applied in Buttsworth) may, of course, apply to such evidence in the circumstances of a particular case.
Ground 4: the learned trial judge's summing up
The learned trial judge, in her summing up, instructed the jury, relevantly and in substance, as follows:
(a)If after considering all of the evidence the jury had a reasonable doubt as to the guilt of the appellant on a particular charge or charges, it was their duty to return a verdict of not guilty in relation to the charge or charges in question. If, on the other hand, after considering all of the evidence the jury were satisfied beyond reasonable doubt of his guilt on a particular charge or charges, then it was their duty to return a verdict of guilty in relation to the charge or charges concerned (ts 301 - 302).
(b)When, in the course of her directions, her Honour used the word 'satisfied', she meant satisfied beyond reasonable doubt. Her Honour said, in particular, that when she explained the elements of each count and she said the jury must be satisfied of particular matters then she meant satisfied of those matters beyond reasonable doubt (ts 302).
(c)Although there were six separate counts in the indictment, it was the responsibility of the jury to examine the evidence on each charge and reach a separate verdict as to each charge (ts 302). Her Honour added:
So, ladies and gentlemen, the fact that you might find [the appellant] guilty of one charge does not mean he is necessarily guilty of any other charge or if you were to find him not guilty of a charge, it doesn't mean he is necessarily not guilty of another. You must bring in separate verdicts (ts 302).
(d)Her Honour said in relation to evaluating and accepting the whole or part of the evidence of a witness:
You will need to look carefully at the evidence that the witnesses have given and you need to look carefully at each witness. You are entitled to accept totally what a witness said to you or you could accept part of the witness's evidence and find another part of that witness's evidence you don't accept. Those are matters entirely for you. It seems to me you are looking at two matters when you are judging the witnesses, that is, truthfulness and reliability (ts 302).
(e)Her Honour reminded the jury that the complainant had made a limited complaint to her mother on 3 April 2003, and her mother put those allegations (or some of them) to the appellant a few days later by telephone, but it was not until nearly three years later, in March 2006, that the complainant made a full statement to the police (ts 307). Her Honour directed the jury that the delay necessarily caused some prejudice for the appellant in his defence, and said:
[L]adies and gentlemen, I must direct you that you must exercise some caution when you consider [the complainant's] evidence. Look at it very carefully. You could only accept [the complainant's] evidence and rely on it if you are satisfied beyond reasonable doubt that she is telling the truth (ts 309).
(f)Her Honour directed the jury that there is no requirement that the evidence of a child or a person alleging a sexual assault must be corroborated or supported by any other evidence. She then said:
Depending on your view of [the complainant], if you accept her evidence as truthful and reliable, you are entitled to convict [the appellant] on that evidence alone so long as you are satisfied of guilt beyond reasonable doubt (ts 309).
(g)After referring to the evidence of the complainant and the appellant in relation to the alleged threats to kill, the subject of counts 1 and 5, her Honour directed the jury in relation to these counts, relevantly, as follows:
Before you could convict [the appellant] of either of these charges you would have to be satisfied of three things. First, you must be satisfied that the words were used by [the appellant], that he actually threatened to kill her; secondly, you must be satisfied that the words he used objectively speaking constituted a threat to kill and if he said those words, ladies and gentlemen, then I think you would have no difficulty with those. It is a question of whether you are satisfied he said those words.
The third element is this: [y]ou must be satisfied the threat was seriously made, intended to be taken seriously. The third element relates to those occasions sometimes when people are affected heavily by alcohol. There is a stream of abuse out of their mouths, 'I'll kill you,' and it is not really a serious threat to be taken seriously. Sometimes people even jokingly say, 'I'll kill you'; for example, when somebody in public embarrasses you or something, people say, 'I'll kill you for that.'
…
So, ladies and gentlemen, you could only convict [the appellant] of these offences if you are satisfied that the threats were made, were seriously made, intended to be taken seriously. If you are left in any reasonable doubt about that, you would have to acquit him and bring in verdicts of not guilty on these charges (ts 312 ‑ 313).
(h)After referring to the evidence of the complainant and the appellant in relation to the indecent dealings, the subject of counts 2 and 6, her Honour directed the jury in relation to these counts, relevantly, as follows:
So what is 'indecent dealing'? There are three parts or elements of each of these charges and you must be satisfied of each of those before you could convict. First of all, you would have to be satisfied in each case that [the appellant] dealt with [the complainant], secondly, you would have to [be] satisfied that what he did was indecent and, thirdly, you would have to be satisfied that [the complainant] was then under the age of 13 years.
There seems no dispute about her age. Her mother told you she was born on 23 March 1992 and even if you are not a mathematical genius, you would work out that she would have turned 11 in 2003, therefore it would appear she was 10 years old on count 2 and had just turned 11 years old in count 6. You should have no difficulty being satisfied that at the time she was under the age of 13 years but that is a matter of fact for you.
Now, ladies and gentlemen, the words 'dealt with' have a very broad meaning. They are ancient words that have been used in sexual cases involving children since back into the Nineteenth Century. They have a number of different meanings. For the purpose of this trial rather than go through all these meanings and how they might apply I am going to make it simple for you and in this case I direct as a matter of law if you are satisfied in count 2 that [the appellant] asked [the complainant] to touch his exposed penis, that would as a matter of law amount to dealing with her.
If in count 6 you are satisfied [the appellant] asked [the complainant] to show him her vagina, that would as a matter of law involve dealing with her. So the issue, ladies and gentlemen, is did he do those things and that is the issue for you. Don't concern yourselves about the meaning of 'dealt with'. If he did those things, as a matter of law he would have dealt with her.
If you are satisfied that [the appellant] did deal with [the complainant] on each of those occasions, then you have to go on and consider whether what he did was indecent. 'Indecent' has no fixed meaning under the law. Indecency and standards of decency change over time and what might have been indecent back in 1950 would not necessarily be considered indecent today.
You represent the community and it is for you to make a judgment. 'Indecent' means behaviour that is unbecoming or offensive to community standards so that is a matter for you to judge, but, ladies and gentlemen, I would think that for a man the age of [the appellant] to ask a 10‑year‑old to touch his exposed erect penis ‑ if you found that happened, I think you would have no difficulty being satisfied that was indecent and if you are satisfied that he actually did ask an 11‑year‑old girl to show him her vagina, again I think you would have no difficulty [being] satisfied that that was indecent, but that is a matter for your judgment. The defence says that neither of these things happened (ts 314 ‑ 315).
(i)After referring to the evidence of the complainant and the appellant in relation to count 3, which alleged that the appellant had incited or encouraged the complainant, a child under the age of 13 years, to engage in sexual behaviour, her Honour said:
There are two elements of this charge. First, you must be satisfied beyond reasonable doubt that [the appellant] incited or encouraged [the complainant] to engage in sexual behaviour and, secondly, you must be satisfied that [the complainant] was a child under the age of 13 years, and I have already directed you about age.
To incite means to urge or stimulate a person to do something. To encourage means to make a person sufficiently confident that they might do an act. 'Sexual behaviour' is defined in the Criminal Code as sexual penetration ‑ it has a number of definitions but one is sexual penetration of a person, to penetrate the vagina with an object.
So, ladies and gentlemen, you consider all of the evidence. You could not convict the accused of count 3 unless you are satisfied that [the appellant] either incited, that is, urged [the complainant], or encouraged [the complainant], that is, gave her confidence to do an act, to penetrate her vagina with a bottle. To penetrate her vagina with a bottle would be to engage in sexual behaviour. If you are left in any reasonable doubt about whether he did that, you must acquit him and bring in a verdict of not guilty on count 3 (ts 316).
(j)After referring to the evidence of the complainant and the appellant in relation to count 4, which alleged that the appellant sexually penetrated the complainant, a child under the age of 13 years, by inserting his finger into her vagina, her Honour said, relevantly:
There are only two elements of this offence. You would have to be satisfied that he sexually penetrated [the complainant] and she was then a child under the age of 13 years. Consent is totally irrelevant to these charges when a child is this young. There is no element about consent. That applies to all of the charges on the indictment.
…
You consider all the evidence. You cannot convict [the appellant] of count 4 unless you are satisfied that he did penetrate her vagina with his fingers as she alleged. Any degree of penetration is sufficient. He needn't put his fingers entirely in. Even any part of his finger going in would be sufficient. If you are left in any reasonable doubt about that, you must acquit [the appellant] and bring in a verdict of not guilty on count 4 (ts 317).
(k)Her Honour then gave the jury this direction in relation to the complainant's evidence:
In a trial of this nature that depends so almost completely on the evidence of [the complainant] even if you prefer the prosecution evidence, you should not convict unless you are satisfied beyond reasonable doubt of the truthfulness of [the complainant's] evidence. Even if you don't positively believe the accused man ‑ I am not suggesting you wouldn't, but even if you reached the point where you didn't positively believe him, you cannot find an issue against him contrary to that evidence if it raises a reasonable doubt (ts 317 ‑ 318).
Ground 4: its merits
In the present case, the complainant gave evidence of eight incidents of uncharged acts, namely, the belt incident, the 'pants off' episode, the indecent request, the hands down pants episode, the vaseline incident, the shower incident and threat, the threat to harm and the threat after count 6. See [187] ‑ [216] above. Also, the appellant gave evidence that he had shown the complainant a pornographic magazine. See [217] ‑ [219] above. The complainant's evidence‑in‑chief was pre‑recorded and edited by agreement between the appellant's trial counsel and the prosecutor. The edited version was tendered in evidence and shown to the jury. The appellant's trial counsel did not request the learned trial judge to exclude any of the evidence of the uncharged acts contained in the edited video record. Counsel proceeded on the basis that the evidence of the uncharged acts was admissible as 'propensity evidence' or 'relationship evidence' under s 31A of the Evidence Act or as part of the res gestae. Before this court, counsel for the appellant accepted that the evidence in question was admissible on that basis. Counsel were, at least in this respect, correct.
The appellant's trial counsel did not request the learned trial judge to give the jury a direction in relation to the evidence of the uncharged acts.
The evidence of the uncharged acts demonstrated the nature of the relationship between the appellant and the complainant and, also, the character of the appellant and a tendency that he had. Each of the incidents (except the belt incident) was relevant to the facts in issue, as follows:
(a)the complainant's evidence as to the 'pants off' episode, the indecent request, the hands down pants episode, the vaseline incident and the shower incident, if accepted by the jury as truthful and reliable, revealed a sexual interest by the appellant in the complainant;
(b)the appellant's evidence that he had shown the complainant a pornographic magazine, if accepted by the jury, revealed inappropriate behaviour with sexual connotations by the appellant towards the complainant; and
(c)the complainant's evidence as to the threat accompanying the shower incident, the threat to harm and the threat after count 6, if accepted by the jury, revealed the appellant's propensity to use intimidation to enable him to continue his wrongful conduct against the complainant and to avoid detection or the making of a complaint.
The evidence of each of the incidents of uncharged acts (except the belt incident) had significant probative value, either by itself or taken with other evidence to be adduced at the trial. If accepted by the jury as truthful and reliable, it could rationally affect, directly or indirectly, the assessment of the probability of the existence of the facts in issue in relation to one or more of the counts in the indictment. In my assessment, fair-minded people would think that the interests of justice required the admissibility of the evidence of the incidents in question despite any risk of an unfair trial. In any event, the appellant's counsel and the State's counsel were agreed (both at trial and on this appeal) that the evidence was admissible.
The evidence in relation to the belt incident was admissible as part of the res gestae relating to counts 1 and 2.
The evidence of the uncharged acts (except the belt incident), if accepted by the jury as truthful and reliable, disclosed either criminal or disreputable conduct by the appellant towards the complainant.
As I have mentioned, counsel for the appellant contended before this court that the learned trial judge should have given the jury a direction similar to the direction given by the trial judge in Buttsworth. That direction is set out in the Court of Criminal Appeal's reasons, as follows:
You may be wondering what the purpose of that evidence is and it's evidence that is referred to as relationship evidence or of extraneous sexual conduct in the sense that it's talking about matters that were done but is not the subject of any charges. So I need to give you a direction as to the use that you may make of that evidence and it's appropriate that I give that to you now and it is this: the evidence of extraneous sexual conduct, and I'm here talking about the first three matters, is admitted solely to establish the relationship between the accused and the complainant as part of the context and setting in which the offences charged are alleged to have occurred.
Even if you accept that evidence, that's the evidence of the extraneous sexual conduct or part of it, the commission of the offences charged can only be proved by the evidence relating to them and not by evidence relating to the extraneous conduct. You must not reason that because the accused engaged in sexual conduct with the complainant on one or more occasions he was the kind of person who was likely to have done so on the occasion with which he has been charged [26].
However, the Court of Criminal Appeal in Buttsworth did not approve the trial judge's direction. Their Honours said:
As can be seen from what we have written above, the directions were favourable to the applicant. They did not, as they might, refer specifically to bolstering the credit of the complainant and explaining the nature of her evidence about what had occurred on the occasion charged, explaining it in a way which was consistent with its truth and accuracy, making it more likely that the jury might accept it in proof of the facts alleged [27].
The contention of counsel for the appellant in the present case, based on the trial judge's direction in Buttsworth, should be rejected.
As I have mentioned, counsel for the appellant asserted, in the alternative, that the learned trial judge should have given the jury the direction prescribed by Anderson J in Cook. In that case, the applicant was convicted on six counts in an indictment which alleged sexual misconduct involving two complainant children. The complainants were unrelated. Evidence was led from both complainants that there were incidents of sexual misconduct, other than those forming the basis of the counts in the indictment, involving oral, penile and digital penetration. The applicant appealed against his conviction on a number of grounds including that the trial judge's directions as to the use that may or may not be made of the uncharged acts were insufficient; in particular, the trial judge should have expressly directed the jury not to reason that the applicant committed the offences charged because he was the kind of person who was likely to have done so. The appeal was dismissed. Anderson J (with whom Pidgeon & Wallwork JJ agreed) said, relevantly:
In this case, the generalised relationship evidence was admissible on several of these particular grounds. It revealed a continuing and strong sexual interest by the applicant in each complainant and showed the actual existence of a sexual relationship between the applicant and each complainant. Insofar as it revealed a process of seduction over a period of time, it helped to explain why there was no immediate complaint by B on the happening of any specific incident. In the case of S with respect to counts 6 and 7, the relationship evidence regarding the applicant and S helps to explain how it was that the applicant might think he would get away with acts of sexual molestation whilst piggybacking S in the presence of her father and whilst in the swimming pool with S. In the case of the bathtub incident, it tended to rule out innocent washing and accident. Likewise, in the case of the piggybacking incident, it tended to rule out accident. In summary, it was evidence which would enable the jury to 'understand the context of the incidents that were the subject of the charges', if I might use the words of McHugh and Hayne JJ in Gipp at 1027.
The relationship evidence in this case was, therefore, plainly admissible and it is not now contended on behalf of the applicant that it ought not to have been admitted. But because the evidence was prejudicial and admitted for a limited purpose, it was necessary that the jury be instructed how to use it. The principle is clear and has been stated many times in many cases, some of the more recent of which are R v Grech [1997] 2 VR 609; R v J (No 2) [1998] 3 VR 602; R v Dolan (1992) 58 SASR 501; R v Kemp [1997] 1 Qd R 383; R v W [1998] 2 Qd R 531; Kailis v The Queen (1999) 21 WAR 100; R v S (supra); Gipp v The Queen (supra); BRS v The Queen (1997) 191 CLR 275.
What is perhaps not quite so easy to decide in any given case is what should be the content of the direction. I think this must largely be dictated by the facts of the case, although it is possible to formulate in general terms what may be described as the minimum requirements. What emerges from the cases is a broad consensus that the directions to the jury must leave them with an understanding of at least three things: (1) the jury may have regard to the evidence of extraneous sexual conduct only if they find it reliable and believe it to be true; (2) the evidence is relevant only to show the nature of the relationship between the accused and the complainant so as to place the evidence which is the subject of the charge in a real light; and, (3) the evidence is not direct evidence of the offence charged so that if the jury is not satisfied that the conduct the subject of the charge has been proved, they cannot use the evidence of uncharged conduct to convict the accused [66] ‑ [68].
Cook is distinguishable from the present case. The trial in Cook occurred before the introduction of s 31A of the Evidence Act, and the relationship evidence in that case was not admitted generally at the trial but 'for a limited purpose' [67]. In the present case, the trial occurred after the introduction of s 31A, the appellant's counsel and the State's counsel agreed (at trial and on this appeal) that the evidence of the uncharged acts was admissible, and the trial was conducted (with the consent of both counsel) on the basis that the evidence was admissible generally.
As I have mentioned, counsel for the appellant asserted, in the further alternative, that the learned trial judge should have given the jury a direction as to the use to which the evidence of the uncharged acts could be put.
The nature and extent of any directions required in relation to propensity evidence or relationship evidence which is admitted under s 31A of the Evidence Act depends on the character of the evidence in question, whether the evidence is admitted generally or for a particular or limited purpose, and the circumstances of the particular case.
In my opinion, in the present case, the learned trial judge should have instructed the jury in relation to the evidence of the uncharged acts (except the belt incident), as follows:
(a)Her Honour should have referred to the evidence of the incidents of uncharged acts (except the belt incident) and explained its relevance to the facts in issue at the trial. See [323] above.
(b)Her Honour should have directed the jury that they could not conclude, from the evidence of the incidents with sexual connotations, that the appellant had a sexual interest in the complainant, unless they were satisfied beyond reasonable doubt of the existence of the sexual interest.
(c)Also, her Honour should have directed the jury that they could not use the evidence of the incidents in substitution for evidence of the events charged in the indictment; that is, the jury could not convict the appellant of a count alleged in the indictment unless the State satisfied them beyond reasonable doubt that he had committed the specific acts alleged against him in the count.
(d)Further, her Honour should have directed the jury that if they accepted the complainant's evidence in relation to any incident as truthful and reliable, it was open to them to conclude that:
(i)the complainant, in giving evidence of comparable counts in the indictment, was not purporting to describe isolated events; and
(ii)the occurrence of the particular incident increased the likelihood that the appellant had committed the comparable counts in the indictment.
The learned trial judge did not refer to each of the incidents. Her Honour did not explain their relevance or how they might be used, and she did not give the directions which, in my opinion, should have been given.
It does not, however, necessarily follow that there will be a miscarriage of justice if a trial judge fails, in a particular case, to give directions of the kind I have mentioned at [334] above. The whole of the trial judge's summing up must be examined, in the context of the particular facts and circumstances and the evidence and course of the trial as a whole, in order to decide whether a miscarriage has occurred.
I am satisfied that, in the circumstances of the present case, the learned trial judge's failure to give the directions I have mentioned did not occasion a miscarriage of justice. I am of that opinion because the directions which her Honour actually gave in her summing up were favourable to the appellant in that they required the jury to focus solely upon the complainant's direct evidence in relation to the specific acts alleged against the appellant in the indictment, and they required the jury not to act on any of the complainant's evidence on any matter unless satisfied beyond reasonable doubt that the evidence was truthful and reliable. In particular:
(a) Her Honour gave the jury a 'separate consideration warning'. She instructed them to examine the evidence on each count separately and to reach a separate verdict on each count (ts 302).
(b)Her Honour directed the jury to exercise some caution in considering the complainant's evidence. It was necessary for them to look at her evidence carefully, and they should only accept her evidence and rely on it if they were satisfied beyond reasonable doubt that she was telling the truth (ts 309).
(c)Her Honour directed the jury that if they accepted the complainant's evidence as truthful and reliable, they were entitled to convict the appellant on that evidence alone, so long as they were satisfied of his guilt beyond reasonable doubt (ts 309).
(d)As to the alleged threats to kill, the subject of counts 1 and 5, her Honour directed the jury, relevantly, that they could only convict on these counts if they were satisfied beyond reasonable doubt that the words in question were actually used by the appellant (ts 312). This necessarily required the jury not to convict unless they were satisfied beyond reasonable doubt that the complainant's evidence as to the appellant having made those threats to kill was truthful and reliable.
(e)As to the indecent dealings, the subject of counts 2 and 6, her Honour directed the jury, relevantly, that they could only convict on these counts if they were satisfied beyond reasonable doubt that (as to count 2) the appellant had asked the complainant to touch his exposed penis and (as to count 6) the appellant had asked the complainant to show him her vagina. This necessarily required the jury not to convict unless they were satisfied beyond reasonable doubt that the complainant's evidence as to the conduct alleged against the appellant in counts 2 and 6 was truthful and reliable (ts 315)
(f)As to the alleged incitement or encouragement of the complainant to engage in sexual behaviour, the subject of count 3, her Honour directed the jury, relevantly, that they could only convict on this count if they were satisfied beyond reasonable doubt that the appellant had urged or encouraged the complainant to penetrate her vagina with a bottle (ts 316). This necessarily required the jury not to convict unless they were satisfied beyond reasonable doubt that the complainant's evidence as to the occurrence of that conduct was truthful and reliable.
(g)As to the alleged sexual penetration of the complainant, the subject of count 4, her Honour directed the jury, relevantly, that they could only convict on this count if they were satisfied beyond reasonable doubt that he penetrated the complainant's vagina with at least part of his finger as she alleged (ts 317). This necessarily required the jury not to convict unless they were satisfied beyond reasonable doubt that the complainant's evidence as to the alleged conduct was truthful and reliable.
(h)Finally, in this context, her Honour directed the jury that the State's case against the appellant depended 'almost completely on the evidence of [the complainant]', and that they should not convict unless they were satisfied beyond reasonable doubt of the truthfulness of her evidence (ts 317 ‑ 318). See also, to similar effect, her Honour's supplementary direction in relation to the alleged influence of the complainant's mother on the complainant's evidence (ts 330).
I should, for completeness, mention three other matters.
First, none of the uncharged acts in the present case was, in my opinion, an indispensible link in a chain of evidence necessary to prove the appellant's guilt on any of the counts in the indictment. The complainant gave direct evidence of the specific conduct alleged against the appellant.
Secondly, no 'propensity warning' was required. The evidence of each of the incidents of uncharged acts was admitted generally and (except for the belt incident) was available to prove that the appellant was the type of person who was likely to have committed the counts in the indictment.
Thirdly, I am not persuaded that the appellant's trial counsel agreed to any of the evidence of the uncharged acts being adduced in order to advance the appellant's case. No such purpose is discernible from the unchallenged evidence in Mr Laurino's affidavit. Further, on my examination of the trial record, the evident object of the appellant's trial counsel in cross‑examining the complainant on the uncharged acts was to endeavour to attack her credibility in relation to the uncharged acts and generally, and, thereby, create a reasonable doubt as to the truthfulness or reliability of her evidence concerning the counts in the indictment and the uncharged acts. The appellant's trial counsel was merely attempting to diminish the probative force of the whole of the complainant's evidence which, in his view, was admissible. He was not seeking to gain an advantage for the appellant by agreeing to adduce evidence that he believed was otherwise inadmissible.
A comment on Wheeler JA's reasons
Since I have written the reasons set out above, I have received and read the proposed reasons for judgment of Wheeler JA. Her Honour asserts that it is inappropriate to express any concluded views concerning the directions that should be given in Western Australia as to the standard of proof relating to uncharged acts, where evidence of uncharged acts is admitted in the prosecution of an accused for sex offences against a child. She then notes that I have considered the matter and therefore she will do so briefly. See [20] above. Some points need to be made about these observations.
First, the question as to the directions that should be given in Western Australia as to the standard of proof relating to uncharged acts, where evidence of uncharged acts is admitted in the prosecution of an accused for sex offences against a child, was raised in the course of the hearing of this appeal and was the subject of supplementary written submissions by counsel for the State and, at least on one view, by counsel for the appellant. Secondly, both Pullin JA and I have considered the matter. As to Pullin JA's reasons, see [149] ‑ [158] above. Thirdly, this issue arises regularly (whether recognised or not) in the course of criminal trials in the District Court. This court has a responsibility to endeavour to provide coherent guidance for trial judges and counsel.
Result
I would dismiss the appeal.
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