Priest v The State of Western Australia
[2007] WASCA 234
•5 NOVEMBER 2007
PRIEST -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 234
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 234 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:120/2006 | 8 OCTOBER 2007 | |
| Coram: | WHEELER JA PULLIN JA EM HEENAN AJA | 4/11/07 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | BENJAMIN JOHN PRIEST THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Sexual offences, assaults and threats to kill Whether any evidence that complainant had an ulterior motive to complain to police and to give false testimony Relevance of dysfunctional relationship Relevance of the fact the complainant did not leave the appellant Whether trial judge's directions revealed error |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PRIEST -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 234 CORAM : WHEELER JA
- PULLIN JA
EM HEENAN AJA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : O'BRIEN DCJ
File No : IND 618 of 2005
(Page 2)
Catchwords:
Criminal law - Sexual offences, assaults and threats to kill - Whether any evidence that complainant had an ulterior motive to complain to police and to give false testimony - Relevance of dysfunctional relationship - Relevance of the fact the complainant did not leave the appellant - Whether trial judge's directions revealed error
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr J A Thomson
Respondent : Mr D Dempster
Solicitors:
Appellant : Kott Gunning
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 WHEELER JA: I agree with Pullin JA.
2 PULLIN JA: This is an appeal against conviction. On 18 May 2006 in the District Court, the appellant was convicted after a trial before Judge O'Brien and a jury, of eight offences of sexual penetration, two offences of assault occasioning bodily harm, two offences of threatening to unlawfully kill and one offence of unlawful and indecent assault.
Evidence at trial
3 The following summary of the evidence given at trial is largely taken from the written submissions filed by the appellant and the respondent. The charges concern one female complainant with whom the appellant had a relationship. The convictions arose out of events which occurred upon four separate occasions in 2004.
St Patrick's Day offences - 17 March 2004
4 The appellant and the complainant had visited a nightclub together. The complainant said that she was embarrassed by the way the appellant behaved himself and that they had argued. When they went back to her place of residence afterwards, she said that the argument continued. They got into the same bed but the complainant's evidence was that she did not want to have sexual contact with the appellant. However, she said the appellant climbed on top of her and penetrated her with his penis, while she was protesting and tried to push him off (count 1). She said the appellant then forced her to suck his penis (count 2), then she said the appellant penetrated her vagina again from behind (count 3). The appellant accepted that the various incidents of sexual contact occurred, but claimed that they had been entirely consensual. The next day the complainant complained to her housemate and friend, Ms Kerr, about the appellant's conduct on the previous evening. Ms Kerr gave evidence that on or about 17 March 2004 a complaint was made to her by the complainant that the appellant had wanted sex, that the complainant said 'no', that the appellant would not 'take no for an answer' and had forced himself on her.
April offence
5 The second occasion giving rise to a count on which the appellant was convicted, occurred after the complainant had been out to a nightclub. She said that during the evening she had received text messages on her mobile phone from the appellant, in effect accusing her of chasing other men. After leaving the nightclub, she spoke to the appellant on her
(Page 4)
- mobile phone and had an argument with him. This led to the complainant going round to the appellant's house, where she said she found the appellant had been drinking. The complainant said she continued arguing with the appellant who told her to leave. In response, as she was preparing to leave, she made a jibe about the appellant. The appellant allegedly jumped up and followed the complainant to her car outside. The complainant said that the appellant grabbed her by the throat, holding her against the car, abused her and threatened to kill her (count 4). The appellant denied that he made any threats or grabbed the complainant, but said there had been some loud discussion at the car. Following the threats the subject of count 4, the complainant left the appellant's premises and made several attempts to contact her friend, Mr Francisco. Mr Francisco gave evidence confirming this.
6 The complainant suffered injuries, including a bruise to her face. The complainant complained about this injury to her friend, Mr Francisco, the next day.
Taxi offences - 10 October 2004
7 In October 2004 the appellant and the complainant agreed to go out on a date together in order to try and restore their relationship. They met at the complainant's house and then went to the Hip-E Club in Leederville, but the evening deteriorated into bickering. The appellant and the complainant took a taxi home afterwards. The complainant gave evidence that during the taxi journey home, the appellant punched her in the nose (count 13). After the taxi arrived at the place where the appellant had parked his car, the complainant said she refused to get out of the taxi with the appellant and asked to be driven elsewhere. The appellant left the taxi and then followed it in his car. He caused the taxi to pull over and then punched in the windscreen. It was the complainant's evidence that as the taxi driver was writing down the number of the appellant's car, he said:
Yeah, it's a good fucking thing you've written down that number because when she ends up dead on TV next week like Sarah Spiers you'll know that I was the one who fucking murdered her.
- That threat was the subject of count 14. The appellant denied that he punched the complainant, but said that he did argue with her in the taxi. He said that at one stage he tried to put his arm around her but she said that nothing was going to happen. The appellant accepted that he had followed the taxi and punched the windscreen in frustration, but denied that he had threatened to kill the complainant. The taxi driver, Mr Hall,
(Page 5)
- gave evidence of the appellant's assault upon the complainant while in the taxi and also gave evidence that the appellant had threatened to kill the complainant.
Home visit offences - 11 November 2004
8 The last offences arose after the complainant said that she and the appellant had ended their relationship. She was at home on the evening of 11 November 2004, preparing to go out, when the appellant came to her house. She let him in, but continued to prepare to go out in her bathroom. She said the appellant appeared in the bathroom doorway and put his hand between her legs from behind and touched her vagina (count 15). She said she told the appellant that she was 'not going there' and went into the kitchen. She said that in the kitchen, the appellant pulled her knickers down and digitally penetrated her (count 16). He then penetrated her with his penis (count 17), and told her to suck his penis, which she did, because she felt intimidated (count 18). The appellant then engaged in cunnilingus (count 19) and then penetrated her again with his penis (count 20). The appellant said that all of the sexual contact on this occasion was consensual.
9 When the appellant was leaving the complainant's home, he assaulted her. This assault included striking her in the face, causing an injury (count 21). After the appellant had left her home, the complainant telephoned Ms Sphinx and Ms Kerr and asked for assistance. Ms Kerr gave evidence confirming that on the night in question she went to the complainant's home where she saw that the complainant had red marks on her face and was visibly shaking. Ms Kerr then followed the complainant in her vehicle until she was safely away from her home. The complainant drove to the home of her friend Ms Spinx, where she made a complaint of sexual misconduct against the appellant. Ms Spinx gave evidence confirming this. Dr Nixon gave evidence of injuries found on the complainant during his examination on 12 November 2004.
Other evidence
10 For the purposes of two of the grounds of appeal, I should briefly mention some other evidence about the relationship between the appellant and the complainant. The first of this was evidence via the production into evidence of SMS text messages sent by the appellant to the complainant. At times the appellant was capable of displaying some charm. For example, on 6 October 2004, the appellant sent to the complainant three SMS messages which read:
(Page 6)
- I do love you.
… Is there any chance of us again? I do want you and want to love you. There are a lot of things I like about you, babe. I want you.
… Your love, your touch, the way you smile, the way you look after and hold yourself, the way you turn bad situations into good and how you do good and how you out everyone before you help everyone - help everyone out before you, how you can make me feel so great most of the time, the way your heart and love feels. I don't know lots of things. I just want honesty and some love, and things would be great.
11 However, charming is not the description to apply to the content of many other SMS messages the appellant sent to the complainant. I will not quote all of these, but I will quote three of them, sent to the complainant on 6 October 2004. They read:
You're a dirty fucking two-faced lying whore. You make my guts sick. You got what you want so I hope you're happy. If I ever see you again I'll spit in your face, you dirty tramp.
… You've been fucking around with me for ages. I know. Fuck you, you dirty thing. You couldn't lie straight in bed, but you can bullshit a lot and make it sound good. You fucking whore.
… The person you try to be with, and I hope they play around on you, all of them, because that's what you deserve, you two-faced lying bitch, and you're right about it, there is nothing I like about you, your saggy tits, stretch marks, those fucking zits, and that you smell your curry. Tell me, have I missed anything?
12 Finally, I refer to an earlier portion of the cross-examination of the appellant by the prosecutor at the trial. This reads:
Would you say you liked [the complainant], Mr Priest?---Sure.
And you respected [the complainant], Mr Priest?---I did, yes.
Can I ask you, Mr Priest, when you respect someone do you call them names?---Not generally, no.
You called [the complainant] names, didn't you?---I have done, yes.
You called her a whore, didn't you, Mr Priest?---At the latter part of her - our time together, yep.
You called her maggot, didn't you, Mr Priest?---It's been used, yep.
You called her a two-faced bitch, haven't you, Mr Priest?---Yep.
(Page 7)
- You've called her a two-faced lying bitch, haven't you, Mr Priest?---Yes.
You called her a dirty tramp, haven't you?---Yep.
You called her a toe rag, haven't you?---Yep.
These are the names you called the woman you've just told us you respected. Is that right?---Yeah.
Submissions of the parties about the credibility of the complainant
13 The appellant, via counsel, invited the jury to conclude that the complainant was not truthful. One reason advanced in closing submissions was, in effect, that a person who had been 'violated physically and sexually' by the appellant would not be likely to continue to 'see him'. It was clear from these submissions that the appellant was inviting the jury to conclude that if the complainant continued to 'see' the appellant then it was unlikely that the appellant had assaulted the complainant, had non-consensual sex with her or threatened to kill her, as the complainant alleged and which the appellant denied.
14 Counsel for the prosecution made some general observations on this point. She said that 'people do stay in these sorts of relationships for all sorts of reasons, and often those reasons are not ones that the majority of us can ever truly comprehend … We might not understand why but we know it happens'. Counsel for the prosecution continued, 'So trying to understand it isn't going to help you with your verdicts. It would merely be speculating, and what you need to do is to look at the evidence that has been presented to you in this courtroom'.
15 What the trial judge said in summing up will be referred to below when dealing with the second and third ground of appeal.
Grounds of appeal
16 The appellant's grounds of appeal read as follows:
1. The trial Judge erred in law by directing the jury that the complainant's motive in making the complaints did not matter if the jury were satisfied beyond reasonable doubt of the elements of the offence under consideration, thereby suggesting that the jury need not consider the complainant's motive in making the complaints in determining whether they were satisfied beyond reasonable doubt of the elements of the offences under consideration. (T762F-763A).
2. The trial Judge erred in law and in fact by in effect:
- (a) directing the jury to consider an issue which was irrelevant (and which the prosecutor in her closing address accepted as irrelevant) having regard to the conduct of the trial, namely the reason why the complainant stayed in a relationship with the appellant; and
(b) directing the jury that an inference adverse to the appellant was available in respect of that issue.
Particulars
(1) The trial Judge in effect directed the jury to consider the reason why the complainant stayed in a relationship with the appellant (T 760C).
(2) The complainant gave no evidence about this matter, as the trial Judge herself accepted (T 760C).
(3) The complainant's only evidence about the general nature of her relationship with the appellant concerned the state of the relationship, not the reason why she stayed in that relationship. (See T 128B, 135C-F, 136B-C, 148E-149B, 223B-D, 249A-250B, 290D-E, 323F, 362A-363A, 428C-430A).
(4) In her closing address, the prosecutor expressly warned the jury not to consider the question of why the complainant stayed in a relationship with the appellant (Transcript of Closing Addresses, 3B-D).
(5) In general comments to the jury before referring to particular counts, the trial Judge in effect commented to the jury that they should regard the relationship between the complainant and the appellant as abusive, illogical, unreasonable and foolish, when the complainant did not give evidence that she regarded the relationship in such a way (T 760-761B).
(6) In directing the jury in respect of particular counts, the trial Judge in effect repeated and elaborated upon the comments in particular (5) by in effect commenting to the jury that the reason why the complainant stayed in the relationship, despite it being abusive, illogical, unreasonable and foolish, was that the appellant emotionally manipulated the complainant by providing expressions of love after abusing the complainant, when the complainant did not provide evidence that this was why she stayed in the relationship (T 768C, 773F-774A, 793C).
(Page 9)
- 3. Further or alternatively to ground 2, the trial Judge erred in law and in fact by in effect directing the jury that an inference adverse to the appellant could be drawn as a matter of the jury's common experience as to the reason why the complainant stayed in a relationship with the appellant, in circumstances where there was no evidence about this issue.
Particulars
- See particulars to ground 2.
17 The appellant submits that the trial judge erred in a direction to the jury concerning the appellant's suggestion that the complainant had an ulterior motive for making complaints to the police and in her evidence about the offences. The appellant contended that she had motive for making complaints about the offences in order to obtain criminal injuries compensation. The appellant complains about the following passage in the trial judge's directions. It reads:
But really her motive does not matter if you are satisfied beyond reasonable doubt of the elements of the offence under consideration. So in effect the defence suggest to you that [the complainant] set up the accused on 11 November 2004, that this was a premeditated and to some extent a concerted plot to set him up and then to go to the police and then to bring up all of these other incidents to bolster her case against him.
18 The appellant complains that this direction not only stated that the jury need not be concerned with the contention that the complainant had a profit motive which prompted her to make a false complaint to the police and to falsely testify, but entirely removed from the jury's consideration any question of motive.
19 The appellant submitted to this court that showing bias or partiality based on a motive to testify in a particular way, is a common way to impugn the credibility of a witness. The appellant's submissions may be accepted as correct if her Honour's directions in the circumstances did result in the jury being told to disregard any evidence which raised an issue about motive in making the complaints. However, the fact is that there was no evidence that the complainant had any motive for making a false complaint to the police. It is true that counsel for the appellant in effect put it to the complainant that her motive in making a complaint to the police was so she could recover criminal injuries compensation. It was also contended at trial that the complainant was a 'woman scorned' and that this also provided her motivation. During the appeal this latter
(Page 10)
- aspect was not referred to. However, the complainant gave evidence that she had no knowledge of the existence of a right to criminal injuries compensation prior to the appellant being charged. That evidence was not contradicted. Furthermore, the passage in the trial judge's summing up complained of by the appellant does not reveal fully what her Honour had to say to the jury. Immediately before the comment complained of, the trial judge had instructed the jury in the following terms:
There is also a suggestion by the defence that her motive in going to the police was to profit from an application for criminal injuries compensation and there was some evidence about her financial situation and what she knew of his court case that was being settled. But her evidence is that she didn't get any information about criminal injuries until after the accused was charged, so what you make of that is a matter for you.
Grounds 2 and 3 - the trial judge's directions about the relationship between the complainant and the appellant
21 To understand grounds 2 and 3 it is necessary to set out in full what the trial Judge had to say in summing up about the relationship between the complainant and the appellant. This had a bearing on the issue about the credibility of the complainant as identified during the submissions of counsel which are referred to earlier in these reasons. The passage from the summing up is rather lengthy, but I will set it out in full:
Just let me say a few brief words about the nature of the relationship between [the complainant] and the accused. It would seem on any account, [the complainant's] or the accused, that this was not a straightforward relationship. It was pretty complex. Some of you might even describe it as dysfunctional a lot of the time. If you accept [the complainant's] account of the relationship, it was a fairly destructive one. On [the complainant's] account of the relationship it was marked over a period of months by the accused's almost obsessive jealousy; by his controlling behaviour; by his unpredictable conduct and by, you might think, emotional manipulation. Not words that [the complainant] used, but that's the impression that you might have got from her account of the relationship.
(Page 11)
- It would seem to be undisputed that when it came to texting [the complainant], at least, the accused would vacillate between abusive and insulting text messages that you might consider to be extremely degrading and humiliating, on the other hand to expressions of love. You might think the accused showed a vulnerable and a soft side. You know, one of the texts was about him breaking down and crying. Even though you're looking at just words on a phone screen as it turns out on a transcript you get an idea from those words, as well as from what the witnesses were saying, of the nature of their relationship.
[The complainant's] evidence is that there was violence in her relationship some of which occurred when she says these offences happened and some of which you have heard about which weren't connected with any of the offences before you. There is evidence from witnesses who saw bruising and injuries on [the complainant], and I will come to that in more detail. The question that's probably hanging over all of your heads is why she persevered with this relationship given her account of the [sic] what happened in the relationship?
She actually wasn't asked the question strangely enough. She wasn't asked the question but that doesn't mean that you can't come to some conclusions about this, why she persevered in the relationship despite what she says was very destructive, hurtful, humiliating behaviour. You may never know the answer to that, members of the jury, but her evidence is that she did persevere. You will know that it's a fact of life that people do stay in abusive relationships for reasons which to the outsider are completely illogical, completely incomprehensible, unreasonable, inexplicable and downright foolish if you're judging things from the outside.
All of those adjectives might apply to [the complainant] and, as I have said, you may never know the answer as to why she stuck with that relationship if you accept her account of what happened. But people do stay in such relationships and you know this from your own experience in life from people you have observed or heard about. They stay in these abusive relationships despite good advice from family and friends and sometimes you just can't understand why it has happened.
Members of the jury, if you judge [the complainant] to be foolish or stupid for sticking with this man despite what she says happened that should not necessarily lead to a rejection of her evidence. If you find that the relationship was abusive, and it seems that even on the accused's account there was some verbal abuse, verbal damage as he described it, even if you find the relationship was marked by abuse, verbal or physical, you shouldn't reason that because [the complainant] stayed in the relationship that she deserved what she got or that she was asking for it. That would be a mistake.
They are feelings that might well to the surface when you're thinking about the evidence but you have got to look at the evidence dispassionately and objectively and don't come to the conclusion that she deserved what she
(Page 12)
- got or she was asking for it because she stuck with this man and therefore her evidence should be rejected because that is not a proper analysis of the evidence and you wouldn't be acting as jurors in an appropriate way if you reasoned on that basis.
22 As is clear from what is set out earlier in these reasons, it is clear that the relationship between the complainant and the appellant was explored in the evidence and made the subject of comment by both counsel. The ground of appeal contends that the trial judge directed the jury to consider an issue which was irrelevant, namely why the complainant stayed in a relationship with the appellant.
23 There can be little doubt that some jurors might have had in mind that judging from their life experience, a woman who was treated as she was on 17 March 2004 or in April 2004, would not have stayed in a relationship with the appellant and thus, those jurors might have been more inclined to believe the appellant when he denied that the later charged offences occurred. On the other hand, some other jurors from their life experience were likely to have known couples in a relationship where one mistreated the other. What her Honour said was that if the jury formed the view that the complainant was 'foolish or stupid' to stay in a relationship with the appellant that this was not a reason which must necessarily lead the jury to reject her evidence. That was an entirely correct observation. When her Honour said that it was a fact of life that people do stay in abusive relationships which to the outsider are incomprehensible, unreasonable or down-right foolish, she was speaking plain commonsense. Her Honour did not say to the jury that they must try and determine why it was that the complainant stayed in the relationship. Her Honour did say that the jury was not precluded from coming to some conclusions about why the complainant persevered in the relationship. This was not erroneous. The jury had been given information about the relationship and they were entitled to form a view about why she persevered even though she was not expressly asked why she had done so. However, it was not essential that the jury reach a conclusion on the subject. Indeed, her Honour said that 'you may never know the answer to that'.
24 Ground 2 therefore has no merit.
25 Her Honour did not give a direction (as ground 3 contends) that 'an inference adverse to the appellant could be drawn as a matter of the jury's common experience as to the reason why the complainant stayed in a relationship with the appellant'. Ground 3 must therefore be dismissed.
(Page 13)
26 The appellant's appeal must be dismissed.
27 EM HEENAN AJA: I have had the advantage of reading, in draft, the reasons for decision of Pullin JA. I agree with those reasons and that this appeal should be dismissed.
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