PLR v The State of Western Australia [No 2]
[2015] WASCA 149
•31 JULY 2015
PLR -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2015] WASCA 149
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 149 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:219/2014 | 3 JULY 2015 | |
| Coram: | McLURE P MAZZA JA CHANEY J | 31/07/15 | |
| 38 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Conviction on count 2 set aside and verdict of acquittal entered Application for leave to appeal on grounds 2, 3, 4, 5 and 6 refused Application to adduce additional evidence refused | ||
| B | |||
| PDF Version |
| Parties: | PLR THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against conviction Child sexual offences Verdict unreasonable or cannot be supported Factual inconsistency Whether warning to scrutinise evidence of the complainant with great care required Black direction Whether jury required to be informed that the trial judge had the power to discharge them Whether verdict properly arrived at Recent complaint Application to adduce additional evidence Fresh evidence New evidence |
Legislation: | Criminal Appeals Act 2004 (WA), s 30(3)(a) Criminal Code (WA), s 329 Criminal Procedure Act 2004 (WA), s 114 |
Case References: | Beamish v The Queen [2005] WASCA 62 Black v The Queen [1993] HCA 71; (1993) 179 CLR 44 Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348 MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13 Millar v The Queen [2003] WASCA 211 Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 R v Muto & Eastey [1996] 1 VR 336 R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 Winmar v The State of Western Australia [2007] WASCA 244 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PLR -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2015] WASCA 149 CORAM : McLURE P
- MAZZA JA
CHANEY J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : DERRICK DCJ
File No : IND 1393 of 2013
Catchwords:
Criminal law - Appeal against conviction - Child sexual offences - Verdict unreasonable or cannot be supported - Factual inconsistency - Whether warning to scrutinise evidence of the complainant with great care required - Black direction - Whether jury required to be informed that the trial judge had the power to discharge them - Whether verdict properly arrived at - Recent complaint
Application to adduce additional evidence - Fresh evidence - New evidence
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(a)
Criminal Code (WA), s 329
Criminal Procedure Act 2004 (WA), s 114
Result:
Appeal allowed
Conviction on count 2 set aside and verdict of acquittal entered
Application for leave to appeal on grounds 2, 3, 4, 5 and 6 refused
Application to adduce additional evidence refused
Category: B
Representation:
Counsel:
Appellant : Mr A O Karstaedt
Respondent : Mr J McGrath SC
Solicitors:
Appellant : NR Barber Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Beamish v The Queen [2005] WASCA 62
Black v The Queen [1993] HCA 71; (1993) 179 CLR 44
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13
Millar v The Queen [2003] WASCA 211
Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303
R v Muto & Eastey [1996] 1 VR 336
R v Nguyen [2010] HCA 38; (2010) 242 CLR 491
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Winmar v The State of Western Australia [2007] WASCA 244
1 McLURE P: This is an appeal against conviction. The appellant was charged on indictment with one count of indecent dealing with a child (M), who he then knew to be a lineal relative, by licking M's genitals contrary to s 329(4) of the Criminal Code (WA) (Code) (count 1); one count of sexually penetrating M, a child who he then knew to be his lineal relative, by introducing his penis into M's mouth contrary to s 329(2) of the Code (count 2); and one count of sexually penetrating M, a child who he then knew to be his lineal relative, by penetrating M's anus with his fingers contrary to s 329(2) of the Code (count 3).
2 Each count was the subject of a circumstance of aggravation, being that M was a child under the age of 16 years. All the offences allegedly occurred on a date unknown between 31 August 2012 and 1 June 2013 at Hillarys. In that period, the complainant, M, was aged between 3 and 4 years.
3 The trial was conducted before Derrick DCJ and a jury over four days in October 2014. The jury reached a unanimous verdict of not guilty on count 1, a majority verdict of guilty on count 2, and a majority verdict of not guilty on count 3.
4 The appellant relies on six grounds of appeal. They are that:
(1) the verdict of the jury on count 2 should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported;
(2) the verdict of guilty on count 2 is unsafe and unsatisfactory because it is factually inconsistent with the acquittal of the appellant on counts 1 and 3;
(3) there was a miscarriage of justice because the trial judge failed to give a warning of a kind which brought home to the jury the need to scrutinise with great care the evidence of the complainant;
(4) there was a miscarriage of justice because the trial judge did not direct or inform the jury when he gave a perseverance direction or, at the latest, when he gave the majority verdict direction, that he had the power to discharge them from delivering the verdict if they were unable to reach genuine agreement;
(5) further or in the alternative to ground 4, the verdict on count 2 is unsafe and unsatisfactory because of a likelihood that it was not properly arrived at, that the jury felt under pressure and that the verdict was a result of a compromise;
(6) there was a miscarriage of justice because the trial judge directed the jury that the evidence of an alleged complaint on 19 June 2013 by the complainant qualified as recent complaint evidence that showed consistency of conduct.
5 Leave to appeal on ground 1 has been granted. The application for leave on the remaining grounds was referred to the hearing of the appeal. The appellant also applies for leave to adduce additional evidence in the appeal and to add a ground 7 which relies on this additional evidence in support of a further claim of a miscarriage of justice.
6 It was necessary to read all the trial transcript and listen to the complainant's evidence in order to determine ground 1. The flow of the evidence is best appreciated chronologically rather than with the orthodox approach of separately summarising the State and defence cases. I will confine the chronology to evidence that is unchallenged or that forms part of the evidence adduced by the State, with particular focus on the evidence of the complainant's mother, G.
The evidence at trial
7 The appellant and G were married in about 2002. In 2008 G was pregnant with M, the complainant. By this time the marriage had deteriorated and the pair separated and divorced prior to the birth of the complainant.
8 The complainant was born on 10 September 2008. At that time G was living in Perth. From around May 2008 until August 2009 the appellant lived in South Africa.
9 During the pregnancy the appellant assisted with medical and other costs and sent many emails, texts and messages to G inquiring about how the pregnancy was going. One of G's messages to the appellant said not to come back to Australia to see his son because he would not be welcome.
10 After the complainant's birth the appellant continued to show interest in M's progress during his infancy and wanted to know why he was not registered with the appellant's surname.
11 The appellant saw the complainant for the first time in December 2008 and then again in January 2009. In August 2009 the appellant married L, with whom he had been in a relationship since June 2008, and left South Africa to live in Melbourne.
12 In June 2010 G, who was then engaged to J, told the appellant that the complainant would be calling J 'daddy'. The appellant made it clear to G that he wished to be known as 'daddy'.
13 In around July 2010 the appellant was still living in Victoria and G was still living in Perth. The appellant had been interacting with M on Skype. When Skype communications with M were cut off by G, the appellant commenced legal proceedings in the Family Court which made orders for the appellant to have access visits with M.
14 From September 2010 onwards, the appellant flew from Melbourne to Perth nearly every month to spend time with the complainant. He first started seeing the complainant regularly when the complainant was aged 2.
15 There were extensive and at times acrimonious disputes between the appellant and G which had to be resolved in the Family Court from time to time. The disputes related to the type and frequency of the appellant's access to the complainant.
16 As a result of Family Court orders, the length of the appellant's visits increased and started to include the appellant's wife, L, and the appellant's extended family and friends. There was also a Family Court order that the complainant was to call the appellant 'Daddy Larry'.
17 In the first quarter of 2011, the appellant had access to the complainant for two hours on a Saturday and a Sunday with G present on all occasions (ts 262). G refused access during times outside that mandated by the Family Court (ts 262 - 263). In February 2011, G requested that the appellant's Skype calls with M be shorter. In May 2011, the appellant was seeking monthly access visits and G was proposing quarterly visits (ts 263 - 264).
18 Through 2011 G reduced the length of the appellant's access visits, based on legal advice that her travel time needed to be taken into consideration (ts 265). In due course the Family Court ordered G to stop deducting her travel time (ts 266).
19 G accepted that many of her meetings with the appellant at the time of handing over the complainant were extremely acrimonious (ts 266). This is confirmed in a video (exhibit 5) of an incident which G accepted was fairly typical of her interactions with the appellant at handover (ts 269).
20 Eventually the Family Court ordered that the complainant could stay overnight with the appellant on a monthly basis. G's attitude to that order was extremely negative (ts 271).
21 Between the period September 2012 to May 2013 the appellant had eight overnight visits with the complainant (September 2012, October 2012, November 2012, December 2012, February 2013, March 2013, April 2013 and May 2013). L accompanied the appellant on the first two visits and a January 2013 visit (when G refused access) but not thereafter due to financial constraints.
22 For the visits in November and December 2012 and all those in 2013, the appellant and the complainant stayed at Hillarys Boat Harbour Resort (the Hillarys Resort). All the offences were alleged to have been committed during overnight stays at the Hillarys Resort.
23 Shortly before the first overnight visit in September 2012, the complainant had injured his penis. The appellant, on instructions from G, had to apply cream to the complainant's penis during that overnight visit.
24 Around the end of 2012, G wanted overnight access to cease. In January 2013, the appellant and L flew to Perth to see the complainant, but G refused access. As a result, the appellant and G went back to the Family Court. G applied to stop overnight contact. Instead, the Family Court permitted that contact to continue and increased the length of the visits. The court ordered that the appellant could drop the complainant off at day-care on the Monday morning following Sunday overnight visits.
25 At the time of the February 2013 visit, G said to the appellant words to the effect 'I know you have the law on your side but you've got no idea the length a scorned woman will go to'.
26 On 20 April 2013 the appellant's entitlement to access with the complainant was refused by G. G's husband, J, threatened to hit the appellant for refusing to leave his property.
27 In April 2013, after J had threatened to hit the appellant, the appellant took out a personal safety intervention order (PSIO) against J. That made G very upset with the appellant.
28 On 17 to 21 May 2013 the appellant had his last access visit with the complainant.
29 On 24 May 2013 the appellant brought a contravention application in the Family Court which was heard on that day. The appellant indicated at the Family Court hearing that he would be open to discontinuing the contravention application and the PSIO if G agreed to access handovers occurring at a public place.
30 On Friday 24 May 2013, G sent a text message to the appellant at 18.17 requesting confirmation that the appellant had withdrawn the PSIO by close of business on Wednesday (29 May 2013).
31 On 27 May 2013, G sent a further text message to the appellant seeking confirmation that he had withdrawn the PSIO.
32 G's evidence at trial was that on 28 May 2013 the complainant told her that 'Daddy Larry touches my winkie', the term used by the complainant for his penis (ts 245). According to G, the complainant told her on 29 May 2013 that the appellant smacks his (the complainant's) bottom and touches his winkie (ts 246).
33 On 29 May 2013, G sent a text message to the appellant at 21.44 saying '[t]his is the fourth communication I have sent you … Have you withdrawn your application for a personal safety intervention order?'. There is no mention of the complainant's allegations against the appellant.
34 On 30 May 2013, G left a voice message on the appellant's phone about withdrawing the PSIO. The appellant responded by text message at 19.46 in which he described G's voice message as aggressive and threatening and advised her that the PSIO was withdrawn. G responded by text message at 19.54 on the same day saying the order had not been withdrawn as at lunch time on 30 May 2013 and 'if you've done it supply the proof'. Again G made no mention of any allegation by the complainant of any improper conduct by the appellant.
35 On 1 June 2013, G and J had a discussion with the complainant after the complainant had visited his psychologist and before going to the police station. G and J said they asked the complainant whether there was anything else he had not told them and the complainant said that 'Daddy Larry licks him between his balls' (ts 246, 296). No other complaint was made.
36 On 1 June 2013 G made a statement to police about the complainant's allegations against the appellant.
37 On 6 June 2013 G sent a text message to the appellant stating that their internet was down so they would not be able to Skype but that she would leave her telephone so the appellant could call the complainant. There was no mention of the complainant's allegations.
38 On 7 June 2013, the complainant participated in a visually recorded interview conducted by officers of the Child Assessment Interview Team. Notwithstanding questions designed to elicit all incidents of sexual misconduct by the appellant, the complainant made no allegations that gave any hint of the conduct the subject of counts 2 and 3.
39 After the first interview, G was told by the Child Assessment Interview Team not to question the complainant further about the allegations. On 10 June 2013 G raised the subject of the allegations with the complainant despite having been told not to do so.
40 On 11 June 2013, G gave a witness statement to police concerning the complainant's allegations against the appellant.
41 G gave evidence that on 19 June 2013 the complainant told G and J that 'Daddy Larry told [the complainant] that he went to the sink to make rainbow liquid and when … he came back that Daddy Larry's winkie was big and hard, and that he put it in [the complainant's] … mouth and the liquid came out' (ts 249). He also said Daddy Larry had lied because the liquid was not rainbow, it was white. J gave evidence to the same effect.
42 G gave evidence that on 21 June 2013 the complainant asked her '[w]hy does Daddy Larry put his fingers in my bottom?' (ts 249).
43 On 3 July 2013 G signed the witness statement given on 11 June 2013. Her witness statement made no mention of what the complainant had allegedly said to her on 19 June 2013, which became the subject of count 2, and on 21 June 2013, which became the subject of count 3. G gave evidence that she had spoken to Detective Michael Fisher at the end of June 2013 and told him that the complainant had made other disclosures to which he responded that she could not change the content of her witness statement (ts 281). The evidence of Detective Fisher was that when G signed her statement on 3 July 2013 she had not, as at that date, raised with him any further allegations made by the complainant against the appellant (ts 312 - 313).
44 The appellant was charged with count 1 on 14 June 2013 and released on bail. One of his bail conditions was that the appellant not have contact with the complainant (the non-contact bail condition). On 23 August 2013 the non-contact bail condition was removed by the court.
45 On 2 September 2013 G filed an affidavit in the Family Court referring to the allegations said to have been made by the complainant to G on 19 and 21 June 2013 (and other uncharged acts). As a result, on 18 September 2013 the Family Court ordered that the appellant's time, and contact, with the complainant be suspended.
46 On 18 September 2013 the Family Court also ordered, inter alia, that G not ask any questions of the complainant about the alleged sexual abuse. It was explained to G that the order was made because the court did not want her to contaminate the complainant's evidence. Following this order, G spoke with the complainant about the allegations when he brought them up (ts 279).
47 On 19 September 2013 G made a statement to the Office of the Director of Public Prosecutions (DPP) and to the police for the purpose of having the non-contact bail condition reinstated. G said nothing in that statement about the allegations the subject of counts 2 or 3 (ts 283).
48 On 24 October 2013 G made a further statement to police about the complainant's allegations. There was no mention in that statement of what the complainant allegedly said to her in June 2013 in relation to the conduct that became the subject of counts 2 and 3 (ts 281).
49 On 14 April 2014 the complainant spoke with the prosecutor, Erin O'Donnell (ts 310).
50 On 15 April 2014 the complainant participated in a second visually recorded interview with a person from the Child Assessment Interview Team. On 29 April 2014 the indictment was amended to add counts 2 and 3.
51 On 5 May 2014 G made a further police statement. This is the first occasion she mentions in a police statement the complaint the subject of count 2.
52 On 21 May 2014 a District Court hearing before Schoombee DCJ was conducted for the purpose of taking the complainant's evidence. He was aged 5 at that time.
53 The complainant's evidence, which was not given on oath or affirmation, comprised the first and second interviews and his pre-recorded evidence before Schoombee DCJ.
Complainant's first interview
54 The first interview was conducted by two officers (Matthew and Sarah) in two parts, the first lasting 15 minutes and the second 21 minutes. The complainant was fidgety for much of the interview and reluctant to engage. There are very long silences. Towards the end of the first part Matthew said he had met the complainant's mum, and continued:
Q. And we also met your step-dad [J].
A. He's not a step-dad.
Q. He's not your step-dad. Who is he?
A. … (indistinct) …
SARAH: So what - - what do you call him?
A. Daddy.
Q. He's daddy. Okay. And how many daddies do you have?
A. (No audible response)
Q. I can't see, that's under your jumper. How many's that?
A. Two.
Q. Two. Two daddies. Okay. So you've got Daddy and - -
A. And Daddy Larry.
55 Before the interview was suspended the complainant was non-responsive to questions about what he had told his mother about Daddy Larry and he made an inaudible response that contained the word 'sad'.
56 At the commencement of the second part of the first interview, the complainant was asked what it was about talking about Daddy Larry that made him sad. The following exchange occurred:
A. Um, because he touches my … (indistinct) …
Q. Cos he touches your 'winky'. Okay. What's your - - what's your 'winky'?
A. My two balls. My two balls.
Q. Your two balls. Okay. Do you have another name for your 'winky?
A. (No audible response)
Q. Remember before we started filming, we said you can use any words in this room without getting in to any trouble. What - - okay. What do you use your 'winky' for?
A. For weeing.
Q. For weeing, okay. Okay. So you said Daddy Larry touches you on your winky. Where does he touch you on your winky?
A. My two balls.
Q. Can you tell Sarah and I about a time that Daddy Larry touched you on your winky and your two balls?
A. Not … (indistinct) … sometimes Daddy does, I don't know the other parts he does.
Q. Okay.
SARAH: Um, can you tell us about the last time that it happened?
A. (No audible response)
Q. Darling, can you sit up for me, so your feet aren't banging the table.
MATTHEW: that's a good boy.
SARAH: That's it. Thank you.
MATTHEW: So can you tell us all about the last time Daddy Larry touched you on the winky and your two balls?
A. I just don't know that part.
…
MATTHEW: What does he touch your winky with?
A. With his tongue and his hands.
Q. So what does he - - what does he do with his hands and with his tongue?
A. Lick my two balls and my winky.
57 The complainant said he was wearing nothing at the time and Daddy Larry was wearing just jocks. The interview continued:
Q. How come you had no clothes on?
A. Cos - - cos I'm not getting dressed yet.
Q. Okay. Cos you weren't dressed yet. Okay. So what was the first thing that happened?
A. Um, he touched my winky.
Q. Okay. With what?
A. With his tongue and his hands.
Q. Okay. Tell me what he does with his tongue? How does he touch it with … (indistinct) …
A. Um, he lick it.
Q. Mm hm.
A. Um, he licks it, it makes … (indistinct) … he makes my winky go big.
Q. Oh. Makes it go big.
A. Yeah.
Q. What does that feel like when he makes it go big?
A. Um - I don't know.
MATTHEW: What does he do to make it go big?
A. He pulls the skin, oh, to the bottom.
…
SARAH: How many times has that happened?
A: (No audible response)
Q. How many's that?
A. Ten.
58 The last question is vague, as is the response. The next question contains an assumption:
Q. Ten times. So how old were you the first time it happened?
A. (No audible response)
Q. You were three. Okay. Okay. And you said the last time it happened you were at Hillarys Boat Harbour.
A. Hillarys Boat Harbour Resort.
…
Q. Oh, okay. Can you remember what you were doing just before this happened?
A. No.
Q. Can you remember what part of the day it was?
A. Um, um, no.
Q. Okay. Um, and how - - how did it make you feel when Daddy Larry did that?
A. Um, I don't know.
Q. Mm. So how often do you see Daddy Larry?
A. I don't know.
…
Q. No. Okay. All right. And, so you said this happened the last time you saw him? Yeah. Um, can you remember another time that Daddy Larry has done this?
A. I can't. You can't remember everything.
Q. I know, it's hard to remember everything isn't it. I know.
MATTHEW: Okay, if we just put him on the table again. It's making a bit of noise again.
SARAH: Okay. All right. Do you remember the first time that this happened?
A. (No audible response)
Q. No. Okay. Okay. So just thinking about the last time that this happened, yeah, that you were just telling me about, um, can you tell me any more about what happened and how it happened?
A. (No audible response)
MATTHEW: Can you remember what happened after Daddy Larry touched you on the winky and balls?
A. (No audible response)
SARAH: Um, how did it make you feel?
A. … (indistinct) …
Q. Sorry darling?
A. … (indistinct) … sad.
Q. Sad. Okay. Did Daddy Larry know that you were sad?
A. Um, no.
Q. No. Did he say anything to you afterwards about what happened?
A. No.
Q. No. Okay. So you said that, um, he made your winky go big. What was the next thing that happened?
A. I don't know.
Q. Okay. Cos you said that he used his fingers as well?
A. Yeah.
Q. What did he do with his fingers?
A. I don't know. I don't know.
Q. You mean like so how did his fingers touch you?
A. … (indistinct) … I don't know.
59 The complainant did not notice anything different about the appellant's body. He was asked what made the appellant stop touching the complainant's winkie to which the response was '[n]othing'. The interview continued:
Q. Okay. This - - this last time, how - - how long was he doing that for?
A. (No audible response)
Q. That's a really hard question isn't it?
A. (No audible response)
Q. What's that? Ten. Okay. Ten what?
A. Ten times.
60 The complainant said the first person he told about Daddy Larry touching his winkie was his mother. When asked when and why he told her he said 'long, long, long, long time' and because he did not want to keep a secret. He said Daddy Larry told him it was a secret (ts 23).
61 Just prior to the end of the first interview was the following exchange:
MATTHEW: So is there anything else about the time Daddy Larry touched you on your winky? Is there anything else you want to tell us about that time?
A. Um, I don't know.
Q. And Daddy Larry ever done anything else similar to that?
A. (No audible response)[.]
The complainant's second interview
62 The complainant, who was interviewed by a woman named Erin, was even more distracted and reluctant to engage in the second interview. He kept burying his head in the chair for lengthy periods. The interview was in four parts. The first lasted 10 minutes. The following exchanges occurred prior to the first suspension:
Q. … What do you want to tell us about Larry?
A. He's a bad person.
Q. Mm hm. What happened that makes you say that Larry is a bad person?
A. Um - -
Q. Matthew?
A. I can't remember. Mum always remembers, I don't always remember.
63 When asked why he had come to speak to the interviewer, the complainant said he could not remember all the things and 'I don't remember a thing of it' (ts 6). The interview was suspended. He persisted with those responses at the resumption of the second part of the interview which lasted 15 minutes. When asked again what happened, the following exchange occurred:
A. I still can't remember.
Q. Tell me the bits that you do remember?
A. He put liquid in my mouth.
Q. Pardon?
A. He put liquid in my mouth.
Q. He put liquid in your mouth?
A. Mm.
Q. Okay. So when he put - -
A. When he put - - that's when he put my - his winky in my mouth.
Q. Okay and did he put liquid in your mouth one time or more than one time?
A. I don't know.
Q. Don't know?
A. Just once.
64 The complainant said that Daddy Larry was not wearing anything when he put his winkie in the complainant's mouth (ts 9). He also said twice that the incident took place in room 2052 at the Hillarys Resort (ts 10).
65 Just prior to the second break the complainant was asked how the appellant put liquid in his mouth to which he responded:
A. The liquid went straight like.
Q. Yeah. Where did the liquid come from?
A. From the winky.
Q. Oh okay?
A. I didn't know what … (indistinct) …
Q. And when you say that it came from his winky, what do you mean?
A. Er, I don't know, because I need the toilet.
66 The interview was suspended. The third part of the interview took eight minutes. The complainant was requested to the tell the interviewer everything that happened when the appellant put his winkie in the complainant's mouth. The complainant responded:
A. It does only like two things.
Q. Yeah?
A. Nothing.
Q. Tell me about these two things?
A. Only the liquid.
Q. Pardon?
A. Only the liquid.
Q. Only the liquid, yeah, okay. You said that the liquid came from his winky. What happened after it went in your mouth?
A. He lied to me because he - cos he said it was rainbow but it was white.
Q. Oh okay, so it was white was it?
A. Yep.
Q. Yeah?
A. … (indistinct) … no hands, white.
Q. So tell me - -
A. … (indistinct) ... at the end.
Q. Yeah. Tell me about the liquid? What else happened when the liquid went in your mouth?
A. Um, it was - it was a - um, I don't know.
Q. Hm?
A. I don't know if it was hot or warm or cold.
Q. Okay. Hot or warm or cold. That's all right. What happened to the liquid after it went in your mouth?
A. Went into … (indistinct) … and it was really yucky.
Q. Yeah? Okay?
A. But then I spat it out into his eye, then … (indistinct) … thing to do then I spit it in his eye.
Q. Okay, tell me about the part where you spat it into his eye?
A. Cos I didn't like what he was doing and then I spat it into his eye.
Q. Okay. And what else happened?
A. And then I kicked him in the leg.
Q. Mm hm. Okay. And what happened after that?
A. Um.
Q. What happened after you spat it in his eye?
A. I was really very sensible, and old Erin said that I did do right thing to do. Cos I spat it in his eye.
67 The person referred to as 'old Erin' is the DPP prosecutor. It is clear she had also discussed these subjects with the complainant. The interview continued:
Q. Okay, who said it was the right thing to do?
A. Old Erin.
Q. Oh okay. All right. So tell me what was happening before the liquid went in your mouth?
A. He's put - - all his five fingers into my bum and he twisted it and it really hurt.
Q. He put all five fingers into your bum? Oh okay?
A. And then he twisted it.
Q. Okay. Tell me about the part where he put his fingers into your bum?
A. … (indistinct) ...
Q. And when you say it went into your bum, what do you mean?
A. I can't - I don't know.
Q. Okay. Tell me about the part where he twisted it?
A. I don't know.
Q. Hey [M], when he say that he put all five fingers into your bum, where do you mean?
A. Inside.
Q. Inside, yeah? Inside where?
A. Inside my bum.
Q. Inside your bum, okay. And what else happened when he put his fingers inside your bum?
A. That is a lot of words.
Q. Pardon?
A. That is a lot of words.
Q. A lot of words?
A. Yep.
Q. What else happened?
A. I don't know.
Q. Mm?
A. I don't know.
Q. All right. Tell me about what happened before he put his fingers in your bum?
A. Um, he licked my winky.
Q. He licked your winky?
A. Mm hm.
Q. Okay. Remember I wasn't there when this happened so tell me all about how he licked your winky?
A. He did it with his tongue.
Q. Mm hm?
A. And he put his winky in my mouth, it was so bony.
Q. What - when he put his winky in your mouth it was bony?
A. Mm hm.
Q. Okay, and what happened when it was bony?
A. Really hurt my tooths. The one - and then … (indistinct) ...
Q. Okay?
A. Something bad happened to me when I was a baby.
…
Q. Yeah, all right, what's really important is that we talk about this time that we've been talking about okay? You said that when he put his winky in your mouth it was bony. What do you mean by bony?
A. I don't know.
Q. What could you see?
A. Nothing. Hey, that's like - that's 35, a two and a five.
…
Q. What happened when he had his winky in your mouth?
A. I don't know. And that's the end.
68 The interview was suspended. The last part of the interview, which took five minutes, includes the following:
Q. Hey, [M], when this was happening did Daddy Larry say anything to you?
A. I don't know.
Q. Don't know? Did he say anything before it happened?
A. No.
Q. No? And after the liquid went in your mouth and you spat it in his eye, did he say anything after?
A. I think he said, 'Oh, oh its stinged him'.
Q. Okay. Did Daddy Larry say anything after that?
A. … (indistinct) …
Q. No? Okay. And so is there anything else - -
A. What does that say?
Q. Is there anything else that happened that day? No? Okay. Is there anything else that you want to tell me about that we haven't spoken about yet? No? So what - what happened after this had stopped?
A. Um, I don't know.
Q. No? All right. Did anything else happen with Daddy Larry in that time? No? Are there any other times that you need to tell me about, that we haven't spoken about yet? No? Okay. Who is the first person that you told about the time that the liquid went in your mouth?
A. The first time, when it was night time - -
Q. Pardon?
A. Cos I talked about it when we got back from Hilary's [sic] Boat Harbour Resort, I talked to my mum and my dad.
Q. Okay, you talked to them when you got home? Yeah? Was that when you got home after this time happened? Yeah? Okay. And what did you tell your mum and your dad?
A. About things, I told them the truth.
69 There are a number of occasions in the first and second interviews when the complainant's answer cannot be transcribed but is followed by a question based on the interviewer's understanding of the answer. I have been unable to verify the accuracy of the interviewers' understandings from viewing the interviews.
The complainant's pre-recorded evidence
70 In his examination-in-chief the complainant was asked about what he had said to the interviewer (new Erin) at the second interview about count 2 as follows:
O'DONNELL, MS: Now, I'm going to ask you some questions about the interview you did with new Erin. Do you remember talking about a time when Daddy Larry put liquid in your mouth? You don't remember that at all?---No.
Do you remember what you talked about with Erin the interview?---Yep.
What was it that - - - ?---Daddy Larry.
What did you say about Daddy Larry in the interview with Erin?
…
O'DONNELL, MS: Do you remember what you talked to Erin about? Do you remember saying something to do with a rainbow?
SCHOOMBEE DCJ: [M], you're shaking your head, so - so you can't remember saying something about a rainbow? No? So can you tell us anything now about a rainbow?---I just don't know.
O'DONNELL, MS: [M], can you remember talking about a time when Daddy Larry said something about a rainbow?---No (ts 50 - 51).
71 After a suspension of proceedings, the prosecutor questioned the complainant about count 2:
O'DONNELL, MS: [M], when you had your interview with Erin, the other Erin, you told her that Daddy Larry put liquid in your mouth. Do you remember that?---Yep.
Okay. What colour was that liquid?--- White but he lied cos he said it was rainbow but it wasn't. It was white.
How could you see that it was white?---Because I saw the drop.
SCHOOMBEE DCJ: Sorry, I couldn't hear the last word. You saw the what?---Drop.
You saw the drop. I see.
O'DONNELL, MS: Where was the drop?---It was going down from my mouth to my tummy.
And when this was happening, what were you wearing?---Just pants and a T-shirt.
What was Daddy Larry wearing?---Nothing.
Was he wearing anything at all?---No (ts 56).
72 The complainant was cross-examined by counsel for the appellant, Judith Fordham. He did not remember his winkie being sore when he was visiting Daddy Larry (ts 67). He was insistent that only his mother put cream on his winkie, not Daddy Larry (ts 68). Counsel returned to the subject:
Do you remember mummy saying to Daddy Larry, 'Here’s some cream. It needs to go on [M's] winkie'?---No, my mum didn’t say that.
Okay. Daddy Larry doesn’t touch your winkie with his tongue, does he?---No (ts 68).
73 The trial judge then asked the following question:
So I just want to make sure that I understood your question correctly, [M]. So when Judith said to you that Daddy Larry has not touched your winkie with his tongue, is that true? Do you agree with that or do you not agree with that? She says he's never touched your winkie with his tongue?---He hasn't (ts 69).
74 The complainant was shown exhibit 1.8 - a photograph of rainbow coloured bath water with white foam on top. The complainant was cross-examined on the subject as follows:
Now, do you know what that is?---The bath going rainbow.
The bath - - - ?---Going rainbow, because - - -
- - - going rainbow. How did the bath go rainbow?---Because - because I and - me - I and Daddy Larry, we put so many different colour tablets in it and it just went rainbow.
It went - - - ?---Rainbow.
Okay. So it went rainbow, and then it went white on top, didn’t it?---Yep.
Okay. And is that what it looked like when the rainbow stuff was put in the water and went white? Is that how it looked?---Well the bubbles were white.
Yes, and the rest was rainbow?---Yeah (ts 73 - 74).
75 The cross-examination continued:
Okay. Now, when you were talking to [new] Erin you said to Erin - I’m just looking for it; that Daddy Larry put some liquid in your mouth and he lied to you because he said it was rainbow but it was white. Do you remember saying that to Erin - - - ?---Um.
- - - in the video?---Yes.
Okay. That picture that you have there, is that the rainbow liquid that you were talking about?---No, because it was in the box.
I see. What is liquid? What does that mean? Can you tell us what 'liquid' means, what - - - ?---I don’t know (ts 75).
76 When asked again what liquid was, the complainant replied, 'I just don't know' (ts 75). The cross-examination continued:
FORDHAM, MS: Do you remember saying that to Erin about liquid coming from Daddy Larry’s winkie?---No.
You don’t remember saying that?--- No.
Okay. You haven’t seen any liquid coming from Daddy Larry’s winkie, have you, not ever?---I have.
Daddy Larry has never put his winkie in your mouth, has he?---He has.
Not ever, ever?---He has.
Did somebody tell you that?---No, I know it.
And how did it come about that you knew it; that you know it - did somebody tell you about it first?---No (ts 75 - 76).
77 The complainant was again shown the photograph of the rainbow colours in the bathwater and white foam on top and asked:
So the foam was white, did you get it in your mouth?---(No audible answer).
What did it taste like?---(No audible answer).
Not very nice?---It wasn't nice.
Or was it yummy?---It wasn't nice (ts 82).
78 The complainant was also cross-examined about count 3 as follows:
Okay. Now, when you were talking to new Erin, you said to new Erin that Daddy Larry put all his five fingers into your bum. Do you remember saying that to new Erin?---Yes.
How come when you were talking to Sarah in the other video how come you didn’t say anything about that? Do you know why you didn’t say anything about that to Sarah? Was it maybe you - well, you tell us. How come you didn’t say that to Sarah when she asked you about what Daddy Larry had done? Do you know why? Okay. Would it be because Daddy Larry didn’t put five fingers in your bum?---No, but he did.
Okay. But you say - but when you talked to Sarah, how come you didn’t mention that?---(Indistinct).
…
FORDHAM, MS: [M], I want to ask you about that, about the fingers. Do you remember saying to Erin that Daddy Larry put all his five fingers into your bum and he twisted it, do you remember saying that to Erin?---(No audible answer).
You don’t remember saying that?---(No audible answer).
Daddy Larry didn’t put fingers into your bum, did he?---He did.
What, right in?---Yes.
All five of them - do you mean four - - - ?---Yeah.
- - - fingers and a thumb, is that what you mean?---Yes.
So he put all his four fingers and his thumb - - - ?---Yeah.
- - - right in your bum?---Yes.
How far in?---Very far.
Very, okay. Was it all the way up to his wrist? Up to here?---Yes.
Or was it all the way up to his elbow?---Up to his wrist.
It was right up to his wrist, was it?---Mm hmm (ts 80 - 81).
79 The complainant said his mother and daddy told him he needed to tell the truth (ts 61, 84 - 85) and that his mother did not tell him what he needed to remember (ts 62, 84 - 85). He also said that mummy and daddy had not spoken to him about Daddy Larry (ts 63) and that his mummy was not angry with Daddy Larry at pick-ups and drop offs (ts 82). The last two answers are contradicted by the evidence of G and the appellant.
Other relevant evidence
80 Investigating officer, Detective Fisher, gave evidence that some time after 3 July 2013 G informed him that the complainant was making additional disclosures but did not advise him of the content of the disclosures, just that something was being said.
81 When G signed her witness statement on 3 July 2013 he explained to her that she could add anything if she felt the statement was incomplete. G did not indicate to him that anything had been left out and did not raise any further allegations prior to signing her statement.
82 The rooms at which the appellant and the complainant stayed at the Hillarys Resort were 104, 105, 112, 113, 214 and 320. There was no room 2052.
83 The appellant gave evidence in his defence. He denied all the allegations made against him. He said that he and the complainant would put coloured tablets into the bathwater and that white foam would come from the tablets and from the complainant emptying small bottles of shampoo into the bathwater. Foam from the bath had got into the complainant's mouth and the complainant had said 'yucky' and 'yuk' (ts 343). It was routine for the complainant to have a rainbow-coloured bath when staying with the appellant at the Hillarys Resort and that was the only 'rainbow experience' the appellant had with the complainant (ts 381).
84 L also gave evidence. She attended the overnight visits in September and October 2012. After those visits, she made the decision not to travel due to budgetary concerns. The appellant had never tried to discourage her from going to Perth with him.
85 The defence also called Thomas Bachauer who spent time with the appellant and the complainant when they were together. He spoke of a positive and happy interaction between the two.
Unreasonable verdict/unsafe and unsatisfactory
86 This court must allow the appeal if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported: s 30(3)(a) of the Criminal Appeals Act 2004 (WA).
87 Courts frequently express their conclusion on whether a verdict is unreasonable or not supported by the evidence in terms of a verdict that is 'unsafe or unsatisfactory': M v The Queen (1994) 181 CLR 487, 492.
88 In M, the plurality held that the test for an unsafe or unsatisfactory verdict was whether the court thought that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (493). In answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or that the jury had the benefit of having seen and heard the witnesses (493). The plurality explained the application of the test as follows:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (494 - 495).
89 The question before the court is whether it was open to the jury as a matter of fact to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt: Libke v The Queen (2007) 230 CLR 559 [113]. See also, R v Nguyen (2010) 242 CLR 491 [33], SKA v The Queen (2011) 243 CLR 400 [14].
90 The appellant also claims the guilty verdict on count 2 is unsafe and unsatisfactory because it is factually inconsistent with the not guilty verdicts on counts 1 and 3. The appellant has to satisfy the court that the verdicts cannot stand together, meaning thereby that no reasonable jury who applied their minds properly to the facts in the case could have arrived at the conclusion: MacKenzie v The Queen (1996) 190 CLR 348, 366. If there is a proper way by which the court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, the verdicts will not be inconsistent in the relevant sense: MacKenzie (367). In essence, the question is whether the different verdicts in the case represent an affront to logic and common-sense.
91 Where multiple offences are alleged involving one complainant, verdicts of not guilty on some counts do not necessarily reflect a view that the complainant was untruthful or unreliable or reflect a want of confidence in the evidence of the complainant. A verdict of not guilty may reflect a cautious approach by the jury to the discharge of a heavy responsibility. The significance of a verdict of not guilty must be considered in light of the facts and circumstances of each case.
92 Further, verdicts might be explicable on the basis that one or more of them is merciful or that they accord with the jurors' innate sense of fairness and justice: MacKenzie (367 - 368); MFA v The Queen (2002) 213 CLR 606 [34]; Phillips v The Queen (2006) 225 CLR 303 [71].
Ground 1 - unreasonable verdict
93 Even making full allowance for the advantages enjoyed by the jury, in my view there is a significant possibility that the appellant is innocent of the offence of which he has been convicted. That assessment is based on the cumulative effect of multiple matters.
94 First, even on the State case, the complainant did not complain of conduct of the type the subject of count 2 (or count 3) on at least the first five occasions on which he made sexual misconduct allegations against the appellant. In particular, he did not complain of those matters on 28 and 29 May 2013 when he complained to G about aspects of count 1; on 1 June 2013 when G and J asked the complainant whether there was anything else he had not told them; on 7 June 2013 when the complainant participated in the first interview with officers from the Child Assessment Interview Team; or on 10 June 2013 when G again raised with the complainant the sexual assault allegations he had made against the appellant.
95 Second, on at least two of the occasions listed above, the complainant did not complain of counts 2 or 3 in response to open ended questions designed to elicit all incidents of sexual misconduct by the appellant.
96 Third, the complainant gave evidence of the allegation the subject of count 2 (and count 3) many months after the first interview and after he had discussed the allegations on multiple occasions with G and to a lesser extent J.
97 Fourth, the complainant's evidence in the second interview is vague and unsatisfactory. The interviewer did not fully explore whether the three types of conduct occurred as part of a single episode or whether the events of which he spoke were the only instances of conduct of that type. The prosecution cannot benefit from the large gaps in the evidence. It is also unsafe to conclude from the complainant's answers in the first and second interviews that there had been multiple acts of conduct the subject of count 1. The complainant's evidence is incapable of supporting a finding, beyond reasonable doubt, that the appellant committed any uncharged acts.
98 The questions and answers in the second interview are really only consistent with the proposition that the conduct the subject of counts 1, 2 and 3 formed part of a single incident. Any other conclusion gives a strained meaning to the word 'before'.
99 However the jury was left to speculate on whether the conduct the subject of the first interview (licking the complainant's genitals) was separate and additional to the same conduct referred to in the second interview and, if so, which was the conduct the subject of count 1. Although not supported by the evidence beyond reasonable doubt, the prosecution submitted that the same conduct (licking the appellant's winkie) the subject of the second interview could be an uncharged act. As discussed below, the trial judge gave a direction to that effect.
100 The alternative (that count 1 was committed as part of a single episode with counts 2 and 3) would have undermined the reliability of the evidence relating to counts 2 and 3. That is, the reliability of the evidence relating to count 2 (and count 3) would be undermined by the complainant's evidence in the first interview. In that interview he was asked if he could remember what he was doing just before the appellant licked his winkie and he said no (ts 17). He was asked what was the next thing that happened and he said he did not know (ts 19). He was asked if he touched any other part of Daddy Larry's body and he said no (ts 21). He was asked if Daddy Larry touched any other part of his body and he said '[j]ust my winkie' (ts 21). He was asked if he could see Daddy Larry's winkie and he said no (ts 21). He was asked if there was anything else he wanted to say about the time Daddy Larry touched him on his winkie and he said he did not know (ts 24).
101 Further, the trial judge gave a direction which assumed it was open to the jury to conclude that the complainant's evidence in the second interview of the appellant licking the complainant's winkie and the appellant putting his winkie into the complainant's mouth concerned uncharged acts that were not the acts the subject of counts 1 and 2 (ts 456). If that be open (which it is not), the jury could not be satisfied beyond reasonable doubt of the offence the subject of count 2 because what the complainant said in the second interview, referred to again in the pre-recorded evidence, is the sole evidence in support of count 2. There is no evidence at all of multiple acts of that type.
102 Fifth, I am not satisfied from the very young complainant's answers in the first and second interview and the pre-recorded evidence that he understood the meaning of all the terms he used to describe what the appellant had allegedly done. In that category, I include 'liquid', 'balls', and 'bony'.
103 Sixth, it is significant that rainbow liquid and white foam featured prominently in the complainant's bathing ritual when he was on access visits with the appellant.
104 Seventh, in addition to doubts arising from the evidence of the complainant, I have doubts about the credibility of G's evidence of the fact, timing and content of the complainant's complaints which was relied on to buttress the credibility of the complainant's evidence. I also accept there is a real risk that the complainant's evidence was (from his perspective) unconsciously contaminated by suggestions from G. My reasons are as follows.105 Prior to the complainant's birth, G had a negative attitude to the prospect of the appellant having or establishing a father/son relationship with the complainant. G did not recognise the appellant, the biological father, as the real father, in name, title and otherwise. G's negative attitude led to hostility to, and active obstruction of, the appellant's attempts to spend time with the complainant. That obstruction was overcome by orders obtained by the appellant from the Family Court. G's hostility and obstructionism continued as the Family Court made orders from time to time enlarging the appellant's entitlements in relation to the type and length of access. In February 2013, G said to the appellant words to the effect that she knew he had the law on his side 'but you've got no idea the length a scorned woman will go to'.
106 The concern about G's credibility is heightened and widened by her conduct after the complainant allegedly made the first complaint on 28 May 2013. Shortly after the complaint on 28 May 2013 G initiated communications with the appellant concerning Family Court matters without raising the complaint with the appellant. G also engaged in discussions with the complainant about the abuse allegations notwithstanding what she was told by the Child Assessment Interview Team.
107 Further, G's conduct following the complaints made on 19 and 21 June 2013 relating to the conduct the subject of counts 2 and 3 respectively raises serious concerns. The nature and degree of the perversion of the misconduct involved a very significant escalation from the conduct the subject of count 1, yet the allegations do not appear in G's witness statement of 3 July 2013. Having regard to her longstanding, acrimonious tussle with the appellant concerning his access to the complainant and her demonstrated strong-minded opposition to it (underscored in exhibit 5), it is difficult to accept she could be fobbed off by police in the way she described. Further, the investigating officer, Detective Fisher, said G did not, on or before she signed the 3 July statement or at any time, advise him of the content of the further allegations. Having regard to their content, he would be expected to have remembered and acted upon the allegations if he had been told of them. On 2 September 2013, G swore an affidavit for filing in the Family Court in which she referred to (inter alia) the counts 2 and 3 complaints. Notwithstanding the Family Court order made on 18 September 2013, G continued to discuss the allegations with the complainant. Although belatedly raised for the first time in the Family Court, there is no mention of those allegations in G's 19 September 2013 statement to the DPP and police for the purpose of having the non-contact bail condition reinstated or in her statement to police on 24 October 2013.
108 For these reasons, I am satisfied that the verdict of guilty on count 2 is, having regard to the evidence, unreasonable and cannot be supported. I would uphold ground 1.
Ground 2 - inconsistency
109 Viewed in isolation, the acquittal on count 1 can be explained by the complainant's denial of the offence in cross-examination. Viewed in isolation, the verdict on count 3 may be explained by the strong implausibility of the complainant's description of the details of the offence. Otherwise, the general credibility evidence is equally applicable to all counts.
110 The central issue is whether the unreliability associated with the specific aspects of the complainant's evidence impacting on counts 1 and 3 must, not may, carry over to count 2. I would answer that in the negative, even when the conduct the subject of counts 1, 2 and 3 is considered as a single episode. I would refuse leave to appeal on ground 2.
Ground 3 - warnings
111 The principles relating to the giving of warnings are set out in Winmar v The State of Western Australia [2007] WASCA 244 [21] - [24]. Two factors must be present. First, there must be some aspect of the evidence which gives rise to a perceptible risk of miscarriage of justice. Second, the risk of miscarriage of justice must be one which is not necessarily obvious to the lay mind, or perhaps one to which a lay person may give inadequate weight. It must derive from a factor of which the judge has special knowledge, experience or awareness.
112 Where a particular form of warning has been identified by the High Court as necessary in a particular case, or particular categories of cases, there is no difficulty. The court is required to follow authority and the only issue is whether the case at hand falls within or is closely analogous to the category of cases calling for the warning [24]. It is not suggested that the circumstances in this case fall within the category of cases in which a Longman warning (Longman v The Queen (1989) 168 CLR 79) is inevitably required.
113 The appellant claims the trial judge erred in failing to warn the jury of the need to scrutinise with great care the evidence of the complainant. According to the appellant, such a warning was required because the complainant was very young at the time of the alleged offence, at the time of the first and second interviews and at the time of giving evidence; the evidence on count 2 was vague and confusing; the complainant's evidence contained inconsistencies which adversely reflected on his credibility; the complainant's evidence was uncorroborated; there was a possibility that his memory of events had become corrupted by his discussions with his mother about the allegations; and there were credibility issues associated with G's evidence.
114 In this case the trial judge in his summing up adverted to all of the matters on which the appellant relies in support of the necessity for a warning with the exception of the last two matters. However, the trial judge referred to these matters in some detail in his summary of the defence case (ts 475 - 477). Further, the defence case was unequivocally clear during the trial.
115 The summing up included the following:
In short, you do have a situation here of a very young boy giving an account of events which are alleged to have occurred at least a number of months previously, when he was of course even younger. And that is something that you will, I suggest, need to give careful consideration to when you are assessing the credibility of the complainant's evidence (433).
116 The summing up was adequate in the circumstances of this case. The perceptible risk of a miscarriage would necessarily be obvious to the lay mind and does not derive from something of which judges have special knowledge, experience or awareness.
117 I would refuse leave to appeal on ground 3.
Grounds 4 and 5
118 The factual background is as follows. The trial was listed for four days from Monday 27 October to Thursday 30 October but ran over to Friday 31 October 2014. The jury retired to consider its verdict at 1.42 pm on the Friday. At about 2.51 pm, the trial judge stated he had received a note from the jury (the first note) which read:
If the jury can reach a verdict for two charges, but cannot for the remaining charge, what happens? (ts 485).
119 The trial judge directed the jury as follows:
Members of the jury, experience has shown that juries can often arrive at a unanimous verdict if they are given more time to consider and discuss the issues. At this point, a unanimous verdict on all counts is required. If that situation changes, I will let you know. But for the time being, may I ask you to retire to continue your deliberations (ts 486).
120 The jury returned at around 3.39 pm with a request that a large section of transcript be read to them. That occurred and the jury retired again at 4.50 pm.
121 At 5.35 pm the jury foreman was asked whether the jury had reached a unanimous verdict on any of the charges. He responded:
Potentially, yes, but I would need to double check to make sure that is a final answer (ts 503).
122 The trial judge then asked if there was a chance of the jury reaching a unanimous verdict on any of the charges on the indictment with further time, to which the answer was yes. The jury retired again at 5.36 pm.
123 Based on an observation made by the trial judge, it appears the jury had complained that the jury room was hot (ts 503).
124 At 7.15 pm the jury were called back and asked whether they had reached a unanimous verdict on any of the counts on the indictment. The answer was yes. They were then asked if there was a chance of the jury reaching a unanimous verdict on those counts on which they had not yet reached a unanimous verdict with further time. The foreman's answer was 'I would have to say no' (ts 504).
125 The trial judge then gave a majority verdict direction as follows:
[A]s you have now been considering your verdict for a significant period of time, the law provides that it is possible for you to reach a majority decision on which at least 10 of you agree. So if 10 or more of you agree on a verdict of not guilty, that is the verdict. If 10 or more of you agree on a verdict of guilty, that is the verdict (ts 504).
126 The trial judge also directed the jury on the way the verdicts would be taken. The jury retired at 7.18 pm. The jury spoke in loud voices when they were leaving court after the majority verdict direction. Around two minutes later, the jury were ready to return and deliver their verdicts.
127 After the jury gave a majority verdict of guilty in respect of count 2, they then gave an incorrect verdict in respect of the circumstance of aggravation on count 2, namely that the complainant was a child under the age of 16 years. The jury said: 'Not guilty' (ts 507). The trial judge instructed the clerk to put count 2 to the jury again from the beginning. The second time count 2 was put to the jury, the jury said that the verdict of guilty on the circumstance of aggravation was not unanimous but was a majority verdict (ts 508). This response was consistent with a direction given by the trial judge (ts 481).
128 At no stage after the jury retired did the trial judge inform or direct the jury that he had the power to discharge them from delivering a verdict. The appellant says a full Black direction (Black v The Queen (1993) 179 CLR 44, 51 - 52), also referred to by the appellant as a perseverance direction, should have been given when responding to the first note from the jury a little over an hour after they retired to consider their verdicts. Alternatively, the direction should have been given at the time of the majority verdict direction. The model Black direction includes references to the trial judge's power to discharge the jury from giving a verdict.
129 The appellant relies on the decision of the Victorian Court of Appeal in R v Muto & Eastey [1996] 1 VR 336. Under the Victorian statutory regime, a majority verdict direction could not be given until after at least six hours deliberation. So too, the jury could not be discharged from giving a verdict until after six hours deliberation. It is difficult to understand why the court held that the jury had to be given a full Black direction at any time before the six hours had elapsed.
130 In this jurisdiction, a majority verdict direction can be given, and the trial judge has the power to discharge the jury from giving its verdict, after at least three hours deliberation (Criminal Procedure Act 2004 (WA), s 114(2) and s 114(3)).
131 A failure to give a Black direction does not always lead to the conclusion that there has been a miscarriage of justice; the exercise of the power to discharge a jury is a matter for a trial judge applying his or her experience to the particular circumstances: Millar v The Queen [2003] WASCA 211 [36] - [37].
132 Further, I am not satisfied that informing a jury of the power to discharge it from giving a verdict is a mandatory aspect of a Black direction in the circumstances. The purpose of that information is to provide context for the perseverance aspect of the direction. The issue in Black was the inclusion of references in the direction under challenge to the inconvenience and expense occasioned by the failure to reach a unanimous or majority verdict, as the case may be.
133 It was not necessary to inform the jury of the power to discharge it from giving a verdict in this case. The jury had been deliberating for just over an hour when the first jury note was responded to by the trial judge. In any event, the first note does not state that the jury had in fact reached a unanimous verdict in respect of two counts and could not reach a unanimous verdict in respect of one count. At no time before or after the first note was there any communication from the jury that indicated any stalemate or impasse in the jury's deliberations. It is also significant that neither counsel nor the trial judge apprehended anything untoward in the course of the deliberations to indicate that the jury had or might have reached a deadlock or were fatigued or disgruntled. Nothing of significance can be inferred from the fact that the jury spoke in loud voices when they left the court after the majority verdict direction.
134 The circumstances in Millar are not analogous. In Millar, the jury informed the court on two separate occasions during their deliberations that they were unable to reach a unanimous verdict and on one occasion that they were unable to reach a majority verdict. The jury also asked whether or not there was another option to that of being given more time to consider their verdicts [28], [40]. The failure to tell the jury of the option that they might be discharged was held to give rise to a real danger that the jury might have felt pressured to reach a verdict.
135 The judge did not err in failing to direct the jury of his power to discharge them from delivering a verdict. Ground 4 does not have reasonable prospects of succeeding. I would refuse leave on this ground.
136 Moreover, there is no arguable factual foundation for the claim in ground 5 that there was a likelihood that the verdict on count 2 was not properly arrived at, that the jury felt under pressure, or that the verdict was the result of a compromise. Leave to appeal on ground 5 is refused.
Ground 6
137 This ground relates to G's evidence that the complainant made a complaint concerning count 2 on 19 June 2013. The appellant contends it was not a 'recent complaint' that was capable of buttressing the credibility of the complainant.
138 After referring to the complaint evidence, including that relating to count 2, the trial judge directed the jury as follows:
So what use are you permitted to make of the evidence? The State was permitted to adduce the evidence of the complainant's complaints to [G] and [J] for a limited purpose only. It was not permitted to adduce the evidence of the complaints on the basis that the evidence could be accepted by you as proof that the conduct complained of occurred.
Evidence of reasonably prompt complaint is not proof that the conduct complained of did occur. It is not separate, or additional, or corroborative evidence that the offence was committed. Clearly, a person including a young child can make up a story, and then complain about it relatively promptly if they wish …
The reason why the State was permitted to adduce the evidence of the complainant's complaints to his mother and stepfather was to attempt to show consistency of conduct on the part of the complainant. You are permitted in assessing the honesty and reliability of the complainant's evidence as to the alleged offences to take into account how the complainant acted within a reasonably short time after the alleged commission of the offences (460 - 461).
139 There are two separate but related issues in this ground. The first is the admissibility of the complaint evidence and the second is the purpose for which it was admitted. There was no objection to the admission of the evidence. I infer that was a forensic decision driven in large part by the fact that the evidence of the complaint on 19 June 2013 was central to the appellant's suggestibility defence to the charges.
140 The only real issue is whether the trial judge erred in directing the jury that the evidence was relevant to the jury's assessment of the credibility of the complainant's evidence. Evidence of complaint is admissible for that purpose if the complaint was made at the first reasonable opportunity: M (513 - 515). What is the first reasonable opportunity depends upon all the circumstances of the case. The delay between count 2 and the complaint was, on the State case, a maximum of eight months. It could have been much shorter. The fact that the complaint about count 2 was made around three weeks after the complaint about count 1 does not render the evidence inadmissible, but goes to its weight. In all the circumstances, the appellant's trial counsel was correct not to dispute the State's claim that it was recent complaint evidence.
141 I am not persuaded this ground has reasonable prospects of succeeding. Accordingly, leave to appeal is refused.
Application to amend/adduce additional evidence
142 The appellant seeks leave to adduce as additional evidence in the appeal affidavits of Julian Dowse sworn on 20 May 2015, Rensche Diggeden sworn on 27 May 2015 and L sworn on 27 May 2015 in support of proposed ground 7. Proposed ground 7 is to the effect that the evidence, being fresh or new evidence, gives rise to a miscarriage of justice.
143 Evidence is 'fresh' if it did not exist at the time of the trial or could not have then been discovered with reasonable diligence: Beamish v The Queen [2005] WASCA 62 [9]; Mickelberg v The Queen (2004) 29 WAR 13 [411]. Evidence will be 'new' if it was available at the trial or could, with reasonable diligence, then have been discovered: Beamish [9]; Ratten v The Queen (1974) 131 CLR 510, 517.
144 Where the evidence is fresh, the court must be satisfied that in the light of all the admissible evidence, including the evidence at trial, there is a significant possibility that the accused is innocent.
145 Where the evidence is new, it must be strong enough to show that the appellant is innocent or raise such a doubt that the court concludes that the appellant should not have been convicted.
146 With the exception of an entry on G's facebook at the time of sentencing, which is fresh evidence, the evidence in question is new evidence. The respondent contends that the affidavits contain much inadmissible material. There is merit in a number of the challenges. However, it is unnecessary to resolve questions of admissibility. The new and fresh evidence adds nothing of any significance to the evidence adduced at trial. I would refuse leave to adduce the additional evidence in the appeal.
Conclusion
147 I would allow the appeal on ground 1, set aside the appellant's conviction on count 2 and enter a verdict of acquittal.
148 MAZZA JA: I agree with McLure P.
149 CHANEY J: I agree with McLure P.
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