Provost v The State of Western Australia

[2007] WASCA 231

PROVOST -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 231

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASCA 231
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:101/2007	Heard:	10 OCTOBER 2007
Coram:	WHEELER JA	Delivered:	31/10/07
No of pages:	8	Judgment Part:	1 of 1
Result:	Leave to appeal refused in relation to ground 1 Leave to appeal granted in relation to ground 2
Category:	B
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Parties:	ANTHONY WILLIAM PROVOST THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Application for leave to appeal Turns on own facts
Legislation:	Nil
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PROVOST -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 231 CORAM : WHEELER JA HEARD : 10 OCTOBER 2007 DELIVERED : 1 NOVEMBER 2007 FILE NO/S : CACR 101 of 2007 BETWEEN : ANTHONY WILLIAM PROVOST

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : O'BRIEN DCJ

File No : IND 265 of 2007

Catchwords:

Criminal law - Application for leave to appeal - Turns on own facts

Legislation:

Nil

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Result:

Leave to appeal refused in relation to ground 1

Leave to appeal granted in relation to ground 2

Category: B

Representation:

Counsel:

Appellant : Mr A J Maughan
Respondent : No appearance

Solicitors:

Appellant : Andrew Maughan
Respondent : No appearance

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

Nil

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1 WHEELER JA: On 10 October, I heard oral submissions in support of the application for leave to appeal in respect of ground 1 of this proposed appeal. I had already indicated that I would grant leave in respect of ground 2. I remain of the view, having heard submissions, that leave should be granted only in respect of ground 2.

2 The appellant was convicted after trial by majority verdict on two counts on an indictment which charged sexual penetration of his sister, then a child under the age of 16 years. Count 1 was an alleged digital penetration, while count 2 alleged that he had penetrated her vagina with his penis.

3 It was accepted that, at the time of the incident in question, the complainant was 15 years of age. The appellant was 22 years of age. The complainant and the appellant had been out, with others, on the evening in question. When they got home, their mother was in the kitchen and there was some conversation. It seemed that all of the witnesses accepted that the appellant was very drunk.

4 The complainant went into the appellant's room to watch a movie. It was there that the offences were alleged to have occurred.

5 There was evidence of a complaint the following day to two young friends of the complainant. It was also the complainant's evidence that she had sent a text message to the appellant's girlfriend to the effect that she could send the appellant to gaol. She said that, at the appellant's request, she then, however, sent the appellant's girlfriend another message to the effect that she was only trying to "break them up". She said that the appellant sent her other messages asking her not to tell anyone what he had done, and apologising. She said that she had shown her mother these messages, but she assumed, for reasons which she gave, that her mother had deleted the messages. There was evidence from two other young women of having either seen a text message (in the case of one), or heard part of a telephone conversation on a car speaker (in the case of the other), which may have been considered to have demonstrated a consciousness of guilt on the part of the appellant.

6 The appellant denied that he had touched the complainant in a sexual way, or had had sex with her. He said that with the amount of alcohol he had had to drink, he would have been unable to have sex with anyone. He said that his sister was "blackmailing" him. He agreed that the complainant had been in his bedroom. He said that she had asked if she could watch a DVD and he had agreed, but that he had gone to sleep

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almost immediately after he got into bed. He told police that the complainant had been messaging him, asking why he had behaved in the way that he had and that he did not know what she was talking about and kept asking her to the effect of, "What did I do? I'm sorry".

7 The evidence of the complainant's mother was, in some respects, inconsistent with the evidence of both the complainant and the appellant, and, in some respects, inconsistent with that of the appellant. For example, she said that she had an amiable conversation with the two of them when they returned home, while the appellant's account was that she had been angry with him because they were late. She said that, when she checked on the two of them in the bedroom, the appellant was wearing clothes, which she described. He, on the other hand, had said that he had removed his clothes and was wearing only his boxers. The complainant had also said that he was wearing only boxers. The appellant's mother said that they had arrived home at 1.35 am, while both the complainant and the appellant had said that it was around 2 o'clock. However, her evidence was, in important respects, inconsistent with that of the complainant and more consistent with that of the appellant. In particular, her evidence was that she had checked on the two children approximately 15 minutes after they got home and, by that time, they were both asleep. There would then have been little opportunity for the offences to have occurred as the complainant described them. Further, she denied being shown any text messages of the kind described by the complainant.

8 Against that background, I turn to proposed ground 1, which is to the effect that the trial miscarried as a consequence of the learned trial judge's bias towards the State in her direction to the jury. It appears to me, having read the direction several times, that this ground has no prospect of success. The submissions in support of it point to a number of observations made by her Honour which were unfavourable, or potentially unfavourable, to the appellant. That is not surprising. At a number of the points identified, her Honour was summarising the State case. Her Honour also, however, summarised the defence case.

9 The appellant's counsel in oral submissions pointed to matters which were, in his submission, important to the defence case and which were not put to the jury in her Honour's direction. One was that certain inconsistencies, or apparent inconsistencies, in the appellant's evidence might be explained by reason of his drunken state at the time and by reason of the time elapsed since the events were alleged to have occurred. The other was that, rather than saying to the jury that there were "two

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versions" of events in the bedroom, her Honour should have suggested that there were three versions, one being that of the appellant's mother.

10 I am not sure that, given that the appellant's mother's account was, in important respects, consistent with his, it would have been of assistance to the appellant for her Honour to have described it as a "third version" of events. In relation to this latter point, it seems to me that what her Honour was plainly suggesting to the jury was that there was a version of events in which sexual offending had occurred and a version of events in which it had not. There is, it seems to me, nothing in the second of these two points.

11 As to the first point, it may be that her Honour did omit to mention drunkenness expressly, as a possible explanation for inconsistencies in the appellant's account. However, the omission of one matter does not make a direction unbalanced or biased. The direction must be considered as a whole, and the omission assessed in the light of its significance to the case as a whole. In order to demonstrate why, in my view, this ground has no prospect of success, I now briefly describe her Honour's direction to the jury.

12 Her Honour began with the usual observations about the respective roles of judge and jury and the fundamental principles of the burden and standard of proof. She warned the jury against prejudice or sympathy. In that context, she explained that they might feel sympathy for the complainant, who appeared to be traumatised by the cross-examination process, or that they might feel sympathy for the appellant, who was obviously having a "tough time" at around the time of the alleged offences. She warned them that those matters should not distract them from a dispassionate assessment of the evidence. She explained to them that they could only draw an inference adverse to the appellant if it was the only reasonable inference able to be drawn. She then explained the elements of the offences.

13 Turning to the evidence, her Honour identified the "critical issue" as being whether the incident happened as alleged by the complainant. She explained that the State must therefore prove beyond reasonable doubt both the truth and the reliability of the complainant's account. She suggested to the jury, applying her observations both to the complainant's evidence and the appellant's videotaped record of interview, that they might consider that it was particularly difficult for young people to talk about matters of such sensitivity. Although her Honour did not put forward the appellant's drunkenness as a potential reason for

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inconsistencies in his evidence, she did observe that, when the appellant was speaking to police and was asked to recall what had happened at a time when he had been drunk, the jury might consider that his memory might well have been affected by alcohol. In relation to possible inconsistencies which the jury might find, her Honour said - again applying this observation to witnesses generally - that they should weigh up carefully any inconsistencies and consider whether they affected credibility or reliability, or whether they could be explained away as being of no relevance or resulting from innocent error.

14 Having made those general comments about the fact-finding process, her Honour turned to the evidence. She summarised the evidence of the complainant. In doing so, she referred to one inconsistency between what she had said at an earlier time and what she said in cross-examination, about the sequence of turning off the light and putting the DVD into the play station. Her Honour noted that that was an example of an inconsistency and, referring back to what she had earlier said, asked the jury to consider whether it mattered, whether it was significant to credibility, or whether it boiled down just to faulty recollection. Her Honour described that as a "minor example of an inconsistency". At one point in summarising the complainant's evidence, her Honour made the observation, "You may think she was a young woman who had difficulty in expressing herself".

15 Her Honour turned to the evidence of the young friends, to whom recent complaint had been made. She explained the purpose for which recent complaint evidence could be used. In relation to the evidence of the text messages which she alleged she had shown her mother, her Honour said, " ... if you accept [the complainant's] evidence that all the data or almost all the data was erased, there is no direct evidence as to who did that and you may well be indulging in speculation if you attempt to make a finding in relation to that". It is suggested on behalf of the appellant that her Honour, in that passage, accepted - or suggested that the jury should accept - that the data had been erased. However, her Honour was clearly doing no more than explaining to the jury the undesirability of speculation if they were to accept the complainant's account in relation to the erasing of data.

16 Her Honour explained to the jury the inferences that they might be able to draw from the evidence of the text messages and of the telephone conversations seen or overheard by the two young female witnesses. She explained to the jury that the inference of guilty knowledge on the part of the appellant might be open if they accepted that he had sent a text saying,

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"Are you going to send me to gaol?" On the other hand, she noted that an inference might be open that, having heard about what the complainant was alleging, he was concerned, as an innocent man, about the possibility of going to gaol.

17 Her Honour then turned to the account given by the appellant when interviewed by police. She told the jury that it was open to him to tell the police that he did not want to talk to them, but that he voluntarily participated in that interview. She noted that he strenuously denied having dealt sexually with his sister during the interview. Her Honour further summarised the account given by the appellant in the course of that interview. Her Honour commented at the conclusion of that summary, "Despite what you may think were very intensive questions by the police [the appellant] strongly maintained throughout the interview that he had not touched or had sex with [the complainant]".

18 Having made that observation, which was favourable to the appellant, her Honour then went on to note that there were "two versions" of events about what had happened in the bedroom. She then said that she was going to give the jury "an important direction" about that. Her Honour then went on to explain that it was not just a question of preferring one account over the other and that, before they could convict, they must be satisfied beyond reasonable doubt of the complainant's account. She explained that, even if they preferred the evidence of the complainant, they still had to be satisfied beyond reasonable doubt of its truth before they could convict.

19 Pausing there, it can be seen that her Honour appropriately directed the jury about the usual matters, straightforwardly summarised the evidence, and at one point in summarising the evidence of the complainant on the one hand and the interview given by the appellant on the other, made a comment which might be considered to have been in the first instance favourable to the complainant, and in the second instance favourable to the appellant.

20 Her Honour then turned to the addresses of counsel and said, "By way of summary, what the state prosecutor suggests to you ... ". A number of the passages which are referred to in the appellant's submissions in support of the proposed ground 1 extract passages from the summary of the State submissions. It is not suggested that the summary was inaccurate. It is not suggested that the summary referred to any matter which it was not open to the jury, on the evidence, to consider. Having concluded that summary, her Honour then turned to summarise

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the defence case. Again, it is not suggested that the summary was inaccurate. Save for her Honour's failure to refer, during the course of that summary, to the appellant's intoxication as one possible explanation for inconsistencies, it is not suggested that her Honour omitted any matter of significance from her summary.

21 Immediately following her summary of the defence case, her Honour directed the jury that their verdict must be unanimous, and explained the method of taking the verdict. Those matters, of course, were explained very briefly. Immediately following that, her Honour asked counsel whether there was any matter of fact in respect of which she had erred, and neither counsel wished to raise any matter. Once the jury had retired, her Honour invited counsel to raise any matter of law and, again, neither counsel raised any matter. Although the failure of counsel to raise any issue is, of course, not decisive, it is of some significance that counsel who had appeared for the appellant at his trial did not suggest to her Honour that there was any way that she had either overstated the prosecution case, or misstated, or inadequately stated, the defence case.

22 In short, a reading of her Honour's direction leaves one with the impression that it was a conventional direction in all respects. Both the prosecution and defence case were put to the jury by her Honour, and her Honour made relatively limited comments of her own, some of which were favourable to the appellant and some of which were not. The appellant's submissions, written and oral, do not reveal any matter of significance to the defence case in respect of which her Honour failed to direct the jury. The contention of bias has no reasonable prospect of success.