PYN v The State of Western Australia
[2020] WASCA 116
•27 JULY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PYN -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 116
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 4 MARCH 2020
DELIVERED : 27 JULY 2020
FILE NO/S: CACR 16 of 2019
BETWEEN: PYN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GLANCY DCJ
File Number : IND 234 of 2018
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted after trial of three counts of sex offending against his de facto child - Whether the verdicts of guilty should be set aside because, having regard to the evidence, those verdicts are unreasonable or cannot be supported
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(a)
Criminal Code (WA), s 329(9)(a), s 329(10)(a)
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr D Grace QC & Mr T F Percy QC |
| Respondent | : | Mr R G Wilson |
Solicitors:
| Appellant | : | DG Price & Co |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434
Couzens v The State of Western Australia [2019] WASCA 54
Durani v The State of Western Australia [2012] WASCA 172
JJR v The State of Western Australia [2018] WASCA 51; (2018) 272 A Crim R 209
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1
Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394
R v Barton [2004] NSWCCA 229
R v D (1996) 86 A Crim R 41
R v DBB [2012] QCA 96
R v Nguyen [2010] HCA 38; (2010) 242 CLR 491
Sharma v The Queen [2011] VSCA 356
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Wells v The State of Western Australia [2017] WASCA 27
ZHA v The State of Western Australia [2020] WASCA 101
JUDGMENT OF THE COURT:
This is an appeal against conviction.
The appellant was charged on indictment with 3 counts.
Count 1 alleged that on a date unknown between 20 March 2005 and 21 March 2006 the appellant indecently dealt with E, a child whom he then knew to be his de facto child, by touching her breasts, and that E was under the age of 16 years, contrary to s 329(4) read with s 329(10)(a) of the Criminal Code (WA) (the Code).
Count 2 alleged that on another date unknown between 20 March 2005 and 21 March 2006 the appellant indecently dealt with E, a child whom he then knew to be his de facto child, by pressing his penis against her, and that E was under the age of 16 years, contrary to s 329(4) read with s 329(10)(a) of the Code.
Count 3 alleged that on a date unknown between 30 June 2007 and 1 July 2008 the appellant sexually penetrated E, a child whom he then knew to be his de facto child, by penetrating her vagina with his penis, and that E was under the age of 16 years, contrary to s 329(2) read with s 329(9)(a) of the Code.
E was born in 1993. At the time of the alleged offending she was aged between 13 and 15 years. The appellant was born in 1954. At the time of the alleged offending he was aged between 51 and 54 years.
The appellant pleaded not guilty.
On 26 November 2018, after a trial in the District Court before Glancy DCJ and a jury, the appellant was convicted as charged on all of the counts.
The appellant has appealed on the sole ground that the verdicts of guilty on which the convictions are based should be set aside because, having regard to the evidence, those verdicts are unreasonable or cannot be supported.
We would grant leave to appeal. However, the ground of appeal has not been made out. The appeal must therefore be dismissed.
The State's case at trial
At the trial the prosecutor called four witnesses. First, the complainant, E, who gave evidence of the allegations charged in the indictment. Secondly, E's mother, Y, who gave generally corroborative evidence. Thirdly, E's biological father, D. Fourthly, Detective First Class Constable Dugan, who was the investigating officer.
The State's case at trial was, in summary, as follows.
In 2003, Y and her two children from a former marriage, E and A, began living with the appellant at his home. The appellant's two children, L and R, also lived at the home.
Initially, E had little interaction with the appellant. When the appellant began working less their interaction increased. Although L and R lived at the appellant's home, R was much older than E and was not at home often. L was at home more frequently than R but not all of the time.
After about one year or so, the appellant began to behave inappropriately towards E. It was alleged that the appellant made lewd comments about E's appearance when she was going out, tapped her on the buttocks in the course of hugging her on multiple occasions, and invited E to join him in the spa when he was nude, as well as other inappropriate behaviour.
Count 1 occurred when the appellant hugged E between the kitchen bench and the dining table at the house. As they separated and she began to walk away, the appellant ran an open hand across E's breasts from left to right. This incident lasted a few seconds in the context of a hug lasting about 15 seconds. E could not remember exactly when this incident occurred, but it was the first occasion on which the appellant had touched her in that manner. Touching of that kind occurred on multiple occasions.
Count 2 occurred when the appellant was in the course of hugging E in a frontal embrace. The appellant had an erection which he pushed into E. This occurred near the back of the house. The appellant asked E if she was okay to which she responded 'yes'. She endeavoured to end the hug. E said that she remembered the incident because it surprised her. Afterwards, it was not uncommon for the same kind of incident to occur.
Count 3 occurred at night, after E had accessed a document on a computer. E was in bed. The appellant came into her room and sexually penetrated her by placing his penis into her vagina. Immediately before this offence was committed, E saw the appellant in the doorway of her room. He was nude. E's room was illuminated by a light pole outside the house. The appellant got onto E's bed. He was on his knees and grabbed her calves. E kicked and struggled. The appellant then got on top of her and began removing her shorts. E hit the appellant and pushed him upwards on the sternum and chest. The appellant put a finger and then his penis into her vagina. It was painful. E stopped struggling because she thought it would hurt less. After having intercourse with her for a time, the appellant stopped and walked away. After the appellant left her bedroom, E spent the night on a mattress underneath her bed. When E had a shower the next morning she was in pain. After the shower, she went to her bedroom and noticed blood on her sheets. She covered up the blood. However, when she came back to her bedroom later, her bed had been made and the sheets were clean. After having the shower, E disposed of the clothes she had been wearing at the time by placing them into the outside rubbish bin.
When the appellant committed count 3, E had been experiencing blackouts and had been admitted to hospital. She had mental health issues. There was evidence at the trial that E's first blackout occurred in March 2007. Her mother, Y, gave evidence that prior to March 2007 E had not had any medical issues.
After the sexual penetration occurred, E endeavoured to avoid the appellant. Some months later E moved into her biological father's house permanently. E's biological father, D, gave evidence that she moved into his house before August 2008. E's mother, Y, gave evidence that E had left the appellant's home by May 2008. The State contended that E's change of residence was consistent with her account as to the appellant's offending.
E continued to attend family events. In particular, E returned to the appellant's home on a weekly basis for family dinners. She attended a wine tour by the family and a 60th birthday celebration for the appellant in Thailand. E said she attended these family events because she enjoyed spending time with her mother, her brother and her stepsister. E maintained that she avoided the appellant on those occasions and went to the family events to keep up appearances. E explained comments of an endearing or loving nature that she wrote on a 60th birthday card for the appellant on the basis that the comments were expected of her and everyone else was writing something of that kind.
On the State's case, E's admitted problems with prescription and illicit drug use and her history of health issues and attempts at self-harm should not preclude the jury from accepting her version of events. Further, E's admitted lies about the extent of her psychiatric problems and about other matters did not, on the State's case, detract from the truthfulness and reliability of her version of events.
E's mother, Y, gave evidence of a conversation she had with the appellant. In particular, the appellant told her one morning that the night before he had had the best sex he had ever had. This reference was to a night when Y and the appellant had been drinking in a spa. Y had gone to bed and fallen asleep after the appellant had left their bedroom to get a glass of water. Y said in evidence that she did not have sex with the appellant on the night when he claimed he had had the best sex he had ever had. Y linked that statement to the morning that she had found blood on E's sheets and had washed them, but she was not sure that the morning occurred immediately after the night in question.
E kept a diary in which she related, amongst other things, details of a young girl in a white nightie who was violently sexually assaulted (but not by the appellant). Those details were part of a dream that E often had during her blackouts. She continued to have that dream from time to time. On the State's case, the dream was not inconsistent with E knowing the difference between reality and dreams.
The appellant's case at trial
The appellant's case at trial was, in essence, a denial of the State's allegations combined with a challenge to the veracity of E's evidence. The appellant gave evidence on oath.
The appellant's daughter, L, gave evidence to the effect that she did not see her father behave in an improper or inappropriate manner towards E and, further, that if sexual intercourse had occurred in E's bedroom she would have heard any protest made by E because of the proximity of E's bedroom to her bedroom. The State endeavoured to negate L's evidence by asserting that L would have been aged at least 17 at the material time and would have been absent from the house regularly for social reasons; that L was not present when certain events occurred; and that, on E's version, she did not make a loud noise or scream when the sexual penetration occurred. Further, the State argued that L was biased because, being a member of the police force when she heard about the allegations, L was required to report them and her explanation for failing to do so was not genuine.
Defence counsel argued that E was a young woman with a proven history of lying, a comprehensively dishonest witness and a cunning and sophisticated liar. It was submitted that E had lied to medical professionals about the extent of her drug use, had lied to her psychologist about having been raped twice by the appellant and had lied to a family friend, LC, about having been raped by L's boyfriend while being held down by L. It was also submitted that E had a fixation with sexual assault, as evidenced by the entries in her diary. Further, it was submitted that E had a poor memory, was very evasive about dates, and should not be believed when she asserted that she did not have a great deal to do with her family after she moved out of the appellant's home.
The defence argued that E's version of events was incredible because someone who had been so brutally raped would not have continued to return to the appellant's home regularly for dinner, to attend family functions or to go on family holidays. Also, E would not have made a speech about the appellant at his 60th birthday function nor written the comments that she wrote on the family birthday card for the appellant. Further, it was argued that E had an opportunity to complain about the appellant's rape of her, but had never done so until many years later.
The appellant's case was that the 'best sex' comment made by the appellant was to be evaluated in the context that it was not unusual for the appellant and Y to use the spa before bedtime or to have an alcoholic drink in the spa. The 'best sex' comment could not be fixed in time other than by reference to Y's uncertain evidence that she linked it to a time when she had found blood on E's sheets and recalled thinking that E was very young to be having a period.
The appellant relied upon his good character and reputation in the community as a person of honesty and integrity, of known truthfulness and with no criminal record. This evidence was relevant to the credibility of his denial of the offending and the unlikelihood of him having committed the charged offences.
Defence counsel emphasised E's considerable delay in making a complaint of rape and E's failure to make a complaint even though she had moved out of the appellant's home, ostensibly because of the appellant's offending. In particular, E had failed to make a complaint to her biological father, D, as to what had occurred. Also, the delay had impacted upon the ability of the appellant to challenge the allegations by reference to surrounding events and circumstances at the time.
The trial judge gave an extensive direction about the effect of delay and the dangers of accepting E's evidence in circumstances where the State's case depended upon the jury accepting E's evidence in all material respects and rejecting the appellant's evidence in all material respects.
The ground of appeal
As we have mentioned, the sole ground of appeal alleges that the verdicts of guilty on which the convictions are based should be set aside because, having regard to the evidence, those verdicts are unreasonable or cannot be supported.
The particulars of the ground assert:
(a)E's evidence lacked credibility.
(b)There were significant issues concerning E's credit which ought to have resulted in the jury not being satisfied beyond reasonable doubt of the truth of her evidence.
(c)There was no or no adequate direct evidence of corroboration of E's allegations.
(d)There was a real risk that E's allegations were the product of her imagination or a reflection of her dreams.
(e)The appellant's evidence was credible and his denial of the alleged offending could not be excluded beyond reasonable doubt in an 'oath on oath' case.
(f)The appellant's good character supported the credibility of his evidence and the unlikelihood of his having committed the offences.
On 6 May 2019, Mazza JA referred the application for leave to appeal to the hearing of the appeal.
The ground of appeal: the appellant's submissions
Counsel for the appellant submitted that E's evidence lacked credibility for reasons that are not explicable by the manner in which she gave her evidence. It was argued that E's evidence, upon the record itself, contained discrepancies, displayed inadequacies and otherwise lacked probative force. In the circumstances, this court should conclude that, even making full allowances for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted.
It was submitted that the trial was essentially a case involving 'oath against oath'. The State relied on some other evidence, namely the finding of blood on E's sheets by her mother, Y, and the appellant's comment to Y that the night before he had had the best sex he had ever had, in circumstances where Y denied having had sex with the appellant that night. According to counsel, by the end of the trial there was a real doubt about the contemporaneity of Y finding blood on E's sheets with the 'best sex' comment and with the time or date of the alleged sexual penetration the subject of count 3.
E accepted in evidence that she had had her first period when she was aged 12[1] and that the sexual penetration the subject of count 3 occurred when she was about 15.[2]
[1] Trial ts 117.
[2] Trial ts 491.
Y said in evidence that she could not be certain that the 'best sex' comment had been made on the day on which she found blood on E's sheets.[3] Also, Y said in evidence that she was not sure of the dates or the order of the 'best sex' comment, the finding of blood on E's sheets and E getting her first period.[4] E's evidence was that the blood on her sheets was caused by the sexual penetration the subject of count 3 and, by implication, was not as a result of her getting a period.
[3] Trial ts 227.
[4] Trial ts 240 ‑ 241.
Counsel for the appellant submitted that E's evidence, upon the record itself, revealed that she was not a credible witness. E had a proven history of lying, including lying to medical professionals about the extent of her drug use in order to obtain favourable treatment. Also, E had lied to her psychologist about having been raped twice by the appellant when, in fact, her own allegation was that she had been raped only once. Further, E lied to a family friend LC, who was a defence witness at the trial, about having been raped by L's boyfriend while L held her down.
It was submitted that, by virtue of E's diary entries about a violent rape being perpetrated on a young girl in a white nightie, it was established at the trial that E had recurrent thoughts about violence being perpetrated on her. E admitted in evidence that the incident she described in her diary was not the incident the subject of count 3, but merely a record of a recurring dream that she had.[5] According to counsel, there was a real question as to E's reliability as a witness, putting aside any issues of dishonesty. E had had blackouts and had been admitted to hospital from some time prior to the alleged incident the subject of count 3. E's recurring dream about a young girl being raped was, on counsel for the appellant's submission, contemporaneous with the commencement of E's blackouts.[6]
[5] Trial ts 137.
[6] Trial ts 115 ‑ 116, 121.
Counsel argued that E's reliability and honesty as a witness was called into question by the following factors:
(a)E's problem with prescription drugs over the years[7] and the lies she had admittedly told to medical professionals in order to obtain excessive quantities of prescription drugs and E's behaviour in 'doctor shopping' to obtain prescription drugs.[8]
[7] Trial ts 122 ‑ 123.
[8] Trial ts 123.
(b)E's regular hospital admissions over the years for drug and psychiatric issues.[9]
[9] Trial ts 128 ‑ 129.
(c)E's false allegations to her psychologist about being raped twice by the appellant.[10]
[10] Trial ts 130 ‑ 131.
(d)E's admitted lies to medical professionals about injecting methylamphetamine.[11]
(e)E's lies to staff at the Marian Centre in August 2008 about the number of times the appellant had sexually assaulted her.[12]
(f)E's acceptance that in August 2008 she may have told staff at the Marian Centre that she had auditory and visual hallucinations.[13]
(g)E's admitted lies to staff at the Marian Centre about her drug use, including her statements that she spent $500 a month on amphetamines, $600 on heroin and how often she had been raped.[14]
(h)E's diary entries about a fictional rape.[15]
(i)E's admitted lies to two different medical practitioners about financing her drug habit through prostitution.[16]
(j)E's continued association with the appellant by attending family functions, going on family holidays, posing for family photographs in which she looked happy, writing on a 60th birthday card indicating love and affection for the appellant and making a warm and positive speech about the appellant at his 60th birthday party in Thailand during 2014.
(k)E's delay in making a complaint to the police and in telling her mother. The complaint to police was not made until the end of 2016.[17] Also, E attended family functions regularly over a number of years without any suggestion of a complaint about the appellant's behaviour.
(l)L's evidence to the effect that she had not seen any of the type of behaviour alleged in any of the counts in the indictment. Also, L's evidence that she would have heard the incident described in count 3 as her bedroom adjoined E's bedroom and the dividing wall was thin.
(m)The unlikelihood that E, after a brutal rape of the kind described by her in her evidence, would have continued to live in the appellant's home without complaint and to behave for many years as if nothing of the kind alleged in the counts in the indictment had happened.
[11] Trial ts 132.
[12] Trial ts 133 ‑ 134.
[13] Trial ts 134.
[14] Trial ts 136.
[15] Trial ts 137.
[16] Trial ts 148.
[17] Trial ts 165.
Counsel for the appellant emphasised that the appellant was of prior good character. Defence witnesses gave evidence of his good reputation in the community including his reputation for honesty and integrity. It was submitted that the evidence of the character witnesses was powerful because it supported the evidence the appellant gave and the unlikelihood of the appellant having behaved in the manner alleged by E. Further, E's false allegation of rape, the subject of evidence from LC and L, was strong evidence as to E's lack of honesty and a tendency to confabulation. In addition, the fact that E, by her own admission, had a good relationship with her mother and her biological father when the incidents occurred, made it unlikely that she would not have complained if the events described by her had happened. The suggestion that the change in E's behaviour, as discerned by E's mother and E's biological father, was due to the events the subject of the charges was not supported on the whole of the evidence. There were many possible explanations for the change in E's behaviour. As the trial judge pointed out to the jury in her summing up, changes in behaviour can result from one of several possible causes and, in E's case, may have been attributable merely to adolescence.
It was argued that the delay between the occurrence of the alleged events the subject of the charges, on the one hand, and the appellant being informed of the allegations, on the other adversely affected the appellant's ability to bring forward matters of defence and to test E's evidence in other ways. Consequently, the appellant was disadvantaged at the trial.
According to counsel for the appellant, it would be dangerous, in the circumstances, to permit the verdicts of guilty to stand. This court should set aside the verdicts and enter judgments of acquittal.
The ground of appeal: its merits
This court has summarised on numerous occasions the law relating to a ground of appeal which alleges that the verdict of guilty on which a conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported, within s 30(3)(a) of the Criminal Appeals Act 2004 (WA). See, for example, Wells v The State of Western Australia;[18] and Couzens v The State of Western Australia.[19]
[18] Wells v The State of Western Australia [2017] WASCA 27 [13].
[19] Couzens v The State of Western Australia [2019] WASCA 54 [46] ‑ [54].
We note that, in some appeals, the fact that this court has not seen or heard the witnesses at trial may be a significant factor in the context of a ground of appeal which alleges that, having regard to the evidence, a verdict of guilty is unreasonable or cannot be supported. In M v The Queen,[20] Mason CJ, Deane, Dawson & Toohey JJ said:
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 (Chamberlain v. The Queen (No.2) (1984) 153 CLR at 618 ‑ 619; Chidiac v. The Queen (1991) 171 CLR 432 at 443 - 444). 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 (Chidiac v. The Queen (1991) 171 CLR at 443, 451, 458, 461 ‑ 462). Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.
See also R v Nguyen;[21] SKA v The Queen.[22]
[20] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 494 ‑ 495.
[21] R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33].
[22] SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [13].
We also note that in Pell v The Queen[23] the High Court formulated the function of this court in determining an appeal on the ground raised by the appellant in the present case, as follows:
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence ‑ the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt. (footnote omitted)
[23] Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394 [39].
The appellant relied upon the cumulative effect of the matters which he raised in his submissions.[24] We have evaluated the merits of the ground of appeal accordingly. However, for ease of exposition, we will deal in turn with the major matters referred to by the appellant in his submissions.
[24] Appeal ts 14, 21.
We will deal, first, with the appellant's contention that E was not an honest or credible witness having regard, in particular, to E's abuse of prescription and illicit drugs, her 'doctor shopping' and her admitted and alleged lies to medical practitioners and other health professionals.
E admitted in cross‑examination that she had a problem with prescription and illicit drugs. She had 'dabbled in party drugs' and had abused prescription medication.[25]
[25] Trial ts 122 ‑ 123.
E gave this evidence:
I started on antidepressants and then I was given anti‑anxiety medication which is diazepam, that was probably what I struggled with the most and then later on I was given prescriptions [for] tramadol which I also abused.[26]
[26] Trial ts 123.
E admitted that she would 'doctor shop' to obtain excessive quantities of prescription medication. She also admitted deliberately misinforming medical practitioners that she was suffering from an injury in order to obtain diazepam and tramadol. E admitted that she had been happy to tell lies to medical practitioners to obtain prescription medication.[27]
[27] Trial ts 123, 133.
However, E gave evidence that she no longer had a problem with prescription and illicit drugs and that that had been the position for a few years.[28]
[28] Trial ts 123.
E agreed in cross‑examination that she had told her psychologist and other health professionals that the appellant had raped her. She could not recall whether she had told any of the health professionals that she had been raped twice, but she could 'perhaps' have made that statement.[29] E said that she did not know whether she had told her psychologist, Amy Goldstein, that the appellant had raped her twice, but conceded that if that statement had been recorded by Ms Goldstein then she must have made the statement and, if she had made the statement, it would not have been true.[30] Defence counsel put to E in cross‑examination her admission form in relation to the Marian Centre. In the form, E had given a history of having been 'sexual[ly] assault[ed] two years ago by [the appellant] and again four - five months ago'. E said that this history would have been a lie because she had been raped only once.[31] E explained that she had lied because she thought that the Marian Centre would not look after her if the rape had happened a while ago. Consequently, she thought she needed to say that it had happened recently.[32]
[29] Trial ts 130.
[30] Trial ts 130 ‑ 131.
[31] Trial ts 133 ‑ 134.
[32] Trial ts 134.
E also admitted that she had lied to Ms Goldstein and health professionals at the Marian Centre about her use of drugs; in particular, about what drugs she was using. She told the lies because she wanted to be taken seriously when asking for help.[33] E gave evidence concerning the drugs and other substances she had abused and concerning the medical professionals to whom she had told lies, as follows:[34]
[33] Trial ts 132, 135.
[34] Trial ts 135 ‑ 136.
When you were admitted to the Marian Centre, you told them, didn't you, that you were taking intravenous cocaine?---I don't even know if you can take intravenous cocaine, but I wasn't doing that.
That you were smoking cannabis?---I had - I had definitely smoked cannabis, but I did openly admit to lying in that statement, that I told them I was using drugs that I wasn't, to be taken more seriously.
…
You told them that the cocaine was costing you $550 a month?---That was a lie. I wasn't able to really get my hands on cocaine.
So you actually - actually made up a figure to make it more convincing?---They asked me how much it would cost, so I just guessed how much I thought it would cost.
You are actually, aren't you, a compulsive liar, [E]?---No.
When it serves a purpose?---No.
You were asked how much you spent on amphetamine per month and you told them 500 a month?---I just guessed.
Guessed?---Yeah. They asked me to - when I told them and I lied about what drugs I was using - they asked me how much it would cost, and I had no idea how much that stuff would cost, so I just guessed.
You told them that you took ecstasy as well, at parties?---That's true.
Was that true at the time?---Yes.
That you smoked up to a packet a week?---Cigarettes?
Yes?---Yeah.
That - that you occasionally did butane sniffing?---I tried it once, but I didn't know how to do it, it didn't work.
And that you were taking heroin intravenously?---That was a lie.
And that you were spending 600 a month on heroin?---That would also be a lie.
These are the people who are admitting you to hospital to treat you?---Yes.
...
So you lied to them about the drugs?---Yes.
You lied to them about how often you were raped?---Yes.
And that that was - what - to get some sympathy?---No. I remember walking into the Marian Centre and seeing how sick the people there were, and I thought that if I couldn't match that, that I wouldn't be allowed to go - I wouldn't be able to get the help I needed.
E acknowledged in cross‑examination that she had lied when she told health professionals at the Marian Centre that she had financed her alleged drug use through prostitution. She explained that she felt it necessary to justify how she was able to obtain the money for the illicit drugs she had told the health professionals she was taking.[35]
[35] Trial ts 147 ‑ 148.
E gave this evidence in re‑examination:[36]
I was scared. Didn't know what to do. Didn't know what I could do. I was pretty young. And I just wanted people to take me seriously, I wanted people to realise that I was struggling. And I thought I had to make it worse than what it was, cos I thought if they just knew I was abusing prescription medication, that they would be like, 'Oh, that's not that bad'. Or, you know, 'This happened and it's not happening now, so what's the problem'. So I didn't know how to bring it up. I was young and I thought the best way would - to be if people thought that this was worse or that I had worse drug use than what I did.
[36] Trial ts 180 ‑ 181.
In our opinion, it was open to the jury to conclude that E was an honest and credible witness, notwithstanding that she had previously:
(a)abused prescription and illicit drugs;
(b)engaged in 'doctor shopping';
(c)lied to medical practitioners to obtain prescription medication;
(d)lied to health professionals about the types of drugs she had abused and how she had funded her drug abuse; and
(e)lied to health professionals about the number of times she had been raped by the appellant.
The jury had the very significant advantage of seeing and hearing E give evidence including evidence under cross‑examination. This court is at a substantial disadvantage in determining, from a review of the transcript and the exhibits, an issue which depended upon the assessment of the honesty and credibility of E and other witnesses giving competing accounts of relevant events.
It is true that E's honesty and credibility were critical at the trial. However, the matters about which the appellant complains were ventilated before the jury by the prosecutor and defence counsel in their closing addresses and by the trial judge in her summing up. Some of the references in the closing addresses and the summing up were more detailed and specific than others. That reflected, no doubt, the degree of importance attached to the various matters by the State and the defence at the trial.
For example:
(a)The evidence relating to E's abuse of prescription and illicit drugs was referred to in the closing addresses at ts 3, 15, 18 ‑ 19, 29 and 38 and in the summing up at ts 487 and 500.
(b)The evidence relating to E having engaged in 'doctor shopping' was referred to generally in the State's closing address at ts 3.
(c)The evidence relating to E having lied to medical practitioners to obtain prescription medication was referred to generally in the State's closing address at ts 3 and in the summing up at ts 488.
(d)The evidence relating to E having lied to health professionals about the types of drugs she had abused and how she had funded her drug abuse was referred to in the closing addresses at ts 3, 18 ‑ 19, 35 ‑ 36 and 39 and in the summing up at ts 488 and 490.
(e)The evidence relating to E having lied to health professionals about the number of times she had been raped by the appellant was referred to in the closing addresses at ts 3, 18, 34 ‑ 35, 39 and 46 and in the summing up at ts 488 and 490.
Our examination of the evidence given at the trial does not lead us to conclude that, having regard to the matters referred to at [59] above, the jury must have had a reasonable doubt as to the honesty and credibility of E's evidence in material respects. It was reasonably open to the jury to conclude that E had ceased abusing prescription and illicit drugs. It was also reasonably open to the jury to conclude that E was candid in admitting her lies - see, for example, the passages set out at [56] above and summarised at [57] above. We consider, having reviewed the trial record, that E's explanations as to the matters referred to at [59] above were plausible and reasonably capable of acceptance by a jury acting rationally. We are not persuaded, on the basis of our examination of the trial record, that the plausibility of E's evidence in material respects was attended by reasonable doubt. However, even if we had any doubt about the honesty and credibility of E's evidence, the jury's very significant advantage in seeing and hearing E and the other witnesses give evidence would be capable of resolving that doubt in favour of accepting E's evidence in all material respects.
By way of example in relation to that point, it was reasonably open to the jury, having seen and heard E give her evidence, to conclude that the vivid and detailed manner in which E described the circumstances and events constituting count 3 supported the veracity of her account.[37]
[37] Trial ts 93 ‑ 96.
We will deal now with the appellant's contention that E was not an honest or credible witness having regard, in particular, to the false allegation which E allegedly made to LC.
LC gave evidence, as a defence witness, that E had told him during the holiday in Thailand in 2014 that '[E's step-sister, L] had held [her] down while [L's] boyfriend raped [E] one night'.[38]
[38] Trial ts 413.
E denied in her evidence that she had ever made that accusation against L.[39]
[39] Trial ts 139 ‑ 140, 161.
LC said in evidence that, before the holiday in Thailand in 2014, he had met E only a couple of times, 'probably not many times', and that he knew the appellant's biological children much better than his step‑children.[40]
[40] Trial ts 411 ‑ 412.
It was open to the jury, in deciding whether to accept E's evidence that she had never made the accusation in question against L, to consider:
(a)whether or not E was likely to have told LC, who was a friend of the appellant with whom E was scarcely acquainted, that L had held her down while L's boyfriend had raped her; and
(b)LC's failure, after allegedly being made aware of the accusation in question, to take any action or tell anyone about the accusation.
The appellant gave evidence at the trial that, on a few occasions, he had said 'there's something dark about [E]'.[41]
[41] Trial ts 370.
LC accepted in his evidence that he had used that phrase to describe E in a speech LC made at celebrations for the appellant's 60th birthday in Thailand during 2014. LC agreed that the appellant had 'probably' used the phrase in relation to E in a previous conversation between LC and the appellant. LC said that he had known the appellant for 12 years and that they were 'good mates'. However, LC denied that he would tell a lie to assist or protect the appellant.[42]
[42] Trial ts 417.
In our opinion, it was open to the jury to conclude that E's denial in her evidence that she had ever made the accusation in question against L was honest, credible and reliable. It was also open to the jury to reject LC's evidence on the issue, having regard to the matters referred to at [68] ‑ [71] above.
The jury had the very significant advantage of seeing and hearing E and LC give evidence including evidence under cross‑examination. This court is at a substantial disadvantage in determining, from a review of the transcript and the exhibits, an issue which depended upon the assessment of the honesty, credibility and reliability of E and LC giving competing accounts on the relevant issue.
This issue was ventilated before the jury by the prosecutor and defence counsel in their closing addresses and by the trial judge in her summing up. See the closing addresses at ts 26, 37 and 46 ‑ 47 and the summing up at ts 490, 500.
Our examination of the evidence at the trial does not lead us to conclude that the jury must have had a reasonable doubt as to the cogency or reliability of E's denial. We are not persuaded, on the basis of our review of the trial record, that the plausibility of E's evidence on this issue was attended by reasonable doubt. However, even if we had any doubt about the cogency or reliability of E's denial, the jury's very significant advantage in seeing and hearing E and LC give evidence would be capable of resolving that doubt in favour of accepting E's denial.
We will deal now with the appellant's contention that E was not an honest or credible witness having regard, in particular, to E's post offence conduct.
E gave evidence that, after the commission of count 3, she endeavoured to avoid contact with the appellant. On occasions she ate dinner in her bedroom.[43] E remained living at the appellant's home for between two and six months.[44] She then began living with her biological father. E said that she would sometimes return to the appellant's home for dinner, but she never stayed there.[45] E also attended the appellant's 60th birthday celebration in Thailand during 2014 with other members of her family. By that time she was an adult.[46] E agreed that she attended family events including her step‑sister's (L's) graduation;[47] a visit to a winery when she was aged about 19 or 20;[48] and a holiday in Bali in 2011 or 2012.[49]
[43] Trial ts 99.
[44] Trial ts 100.
[45] Trial ts 101.
[46] Trial ts 101.
[47] Trial ts 149 ‑ 150.
[48] Trial ts 150.
[49] Trial ts 154.
E said in evidence that she felt under pressure to attend various family functions.[50] After she moved out of the appellant's home, she still loved her mother, her brother and her step‑sister. E continued to attend family functions because she enjoyed spending time with them. E explained that at that stage she was not ready to tell anyone what had happened to her and that if she did not attend family functions or remain involved with family events then people would ask questions.[51] E had no problems attending L's graduation because a lot of people were there.[52] If E had not attended the appellant's 60th birthday celebration in Thailand during 2014 her absence would have been noticed. When she attended the appellant's 60th birthday celebration she was with her brother and her step‑sister and spent as little time as possible with the appellant.[53] E agreed that she had made a speech at the appellant's 60th birthday celebration and she had posed for photographs. She wrote on and signed the birthday card in front of her siblings. The things she wrote were appropriate for a birthday card and were done to keep up appearances.[54]
[50] Trial ts 148.
[51] Trial ts 180 ‑ 182.
[52] Trial ts 149 ‑ 150.
[53] Trial ts 156.
[54] Trial ts 156 ‑ 161, 182 ‑ 183.
It is true that E did not make a complaint to the police until the end of 2016. However, E gave evidence that in about 2010 or 2011 her biological father had been informed through her school and that she had then told him herself about the offending.[55] E said that she did not tell her mother at the same time as she told her biological father because her mother was still in a relationship with the appellant.[56] Although she was close to her mother, E did not feel that she could tell her or anyone else.[57] In 2014, E's mother found out about the offending after E was admitted to Sir Charles Gairdner Hospital consequent upon her attempting suicide following her return to Perth after the appellant's 60th birthday celebration in Thailand.[58] E did not make a complaint to the police earlier than the end of 2016 because she was scared and she never thought that she would ever go to court. However, when she became an adult, E realised that she needed to go to the police.[59]
[55] Trial ts 102, 178 ‑ 179, 278.
[56] Trial ts 180.
[57] Trial ts 179.
[58] Trial ts 179.
[59] Trial ts 183.
The trial judge gave the jury an orthodox direction in her summing up, in accordance with s 36BD of the Evidence Act 1906 (WA), in relation to E's delay in making complaint, as follows:[60]
Now, delay is a relevant matter for you to consider, members of the jury. It is something for you to weigh its significance. But I need to point out to you that the absence of complaint or the delay in making a complaint that someone has been sexually assaulted does not necessarily indicate that the matters complained about did not happen.
A person such as [E] might have good reasons for not complaining. Bearing that in mind, it's for you to determine what degree of significance you give to the delay in complaint.
Now, you heard [E's] explanations for the delay and you saw her give those explanations. She said she didn't feel she could tell anyone at the time and she didn't want to bring anything up. That is for you to judge. Absence of complaint or delay in complaining does not necessarily mean that the allegation was false.
As I've said there may be good reasons why a victim of an offence, such as these, might hesitate in making or refrain from making a complaint of the offences alleged. …The fact that a complaint was made is not either independent or separate evidence of the truth of a complaint either.
[60] Trial ts 498 ‑ 499.
We are satisfied, having regard to:
(a)E's age at the time the offences were allegedly committed, namely between 13 and 15 years; and
(b)the appellant's status as E's step‑father, who continued to have an ongoing relationship with members of E's family whom she loved, including her mother and her step‑sister,
that it was open to the jury to accept E's evidence about, including her explanations for, her post offence conduct.
In our opinion, the evidence as to E's continuing attendance and conduct at family functions where the appellant was present and as to E's delay in making complaint did not, either alone or in combination with any of the other matters complained about by the appellant in the appeal, require the jury to reject E's evidence in any material respect or require the jury to entertain a reasonable doubt as to the appellant's guilt in relation to any of the charged offences.
We will deal now with the appellant's contention that E was not an honest or credible witness having regard, in particular, to the unlikelihood of the offending not having been noticed by her step‑sister, L.
At the trial the appellant relied upon the evidence of his daughter, L, that she had not noticed any of the alleged offending behaviour and her evidence that she would have heard the offending behaviour alleged in count 3.
The appellant argued at the trial that, having regard to L's evidence, it was implausible that the appellant could have committed the offences without L's knowledge.
As we have mentioned, E was born in 1993. Her brother, A, was born in 1990. L was born in 1986. The appellant's other child, R, was born in 1984. As I have mentioned, in 2003 the appellant and his children (L and R) and E's mother and her children (E and A) began living together at the appellant's home.
L gave evidence at the trial that she was aged 17 in 2003 when the families began living together. L slept at other people's homes from time to time. As from about 2004, L was employed and was also studying. L moved out of the appellant's home in 2005 for a period of about 6 months. After she turned 18 in August 2004, L would go out at night and occasionally stay out.[61]
[61] Trial ts 396 ‑ 399.
E said in evidence that the offence charged in count 1 occurred about 18 months or 'maybe, a bit more' after she had moved into the appellant's home.[62] E said in relation to the offence charged in count 3 that A and L were not at home on the night in question.[63] E said that, during the incident the subject of count 3, she did not say anything; she held her breath frequently; she made 'a kind of grunting, wailing noise'; and she gasped for air and held her breath again.[64]
[62] Trial ts 84.
[63] Trial ts 102, 169.
[64] Trial ts 95.
The jury was entitled to take into account, in assessing the honesty, credibility and reliability of L's evidence to the effect that:
(a)she had not noticed any of the alleged offending behaviour; and
(b)she would have heard the offending behaviour alleged in count 3,
the nature of L's relationship with the appellant; the degree of cogency of L's evidence to the effect that she was able to recall when E had her first period; the degree of cogency of L's evidence to the effect that she could recall the content of E's speech at the appellant's 60th birthday celebration; and, when she became aware of E's allegation of sexual offending by the appellant, L's failure to make a report to the police despite L's status at the time as a serving police officer.
We are satisfied, having regard to:
(a)E's evidence and L's evidence; and
(b)the jury's very significant advantage in seeing and hearing E and L give their evidence including evidence under cross‑examination,
that it was open to the jury to conclude that, even if L had not seen or heard anything which supported E's account in relation to the charged offences, the absence of supporting evidence from L did not, in the circumstances, materially affect E's honesty or credibility or the reliability of her account as to the offending.
We will deal now with the appellant's contention that, apart from the appellant's assertion that E was not an honest or credible witness, there was a real risk that E's allegations against the appellant were the product of her imagination or a reflection of her dreams.
E gave evidence that she could not recall the date on which her blackouts began.[65] However, E agreed in cross‑examination that she began to have blackouts at school in March 2007.[66] E said that it was 'all around the same time [as count 3]'.[67]
[65] Trial ts 116.
[66] Trial ts 121.
[67] Trial ts 122.
In a diary entry dated 24 February 2008, E described a recurring dream that she had while she was unconscious. In the dream a young girl, dressed in a white nightie, was in an empty room. The young girl was crying. Mascara dripped down her face. A man forcefully entered the room, threw the girl to the floor and raped the girl while the girl screamed.[68]
[68] Trial ts 115 ‑ 116; exhibit 5.
E said that the dream was different from what had happened to her in a number of ways. The diary entry did not represent her attempt to record what had actually happened with the appellant. E's evidence revealed a professed ability to understand and distinguish between a dream, on the one hand, and reality, on the other. E insisted that she knew the difference between a dream and reality, and that the appellant's sexual offending against her was an actual incident that had actually occurred.[69] The jury, having seen and heard E give her evidence, had a significant advantage in assessing the weight to be given to this evidence.
[69] Trial ts 181.
E denied in evidence that her memory had been adversely affected by her use of drugs.[70] She agreed, however, that when she used illicit drugs and abused prescription medication she had auditory and visual hallucinations. E explained that the hallucinations did not involve her being 'completely disconnected from reality' but, instead, she would 'feel like [she] was floating above the bed, when [she knew] that [she was] obviously not'.[71]
[70] Trial ts 122, 124.
[71] Trial ts 134.
Defence counsel put to E in cross‑examination that E had always had some problems with her mental health. E responded that it was only in her later adolescent years that she had problems with her mental health. She was taking prescribed antidepressant medication. She did not recall having attempted suicide as early as 2005.[72]
[72] Trial ts 122.
E's mother, Y, gave evidence that E had her first blackout in March 2007 and that, prior to March 2007, E did not have any medical difficulties.[73]
[73] Trial ts 211, 266 ‑ 267.
E's biological father, D, gave evidence that in March 2007 he had written to E's school regarding medical difficulties that E had experienced in the previous week.[74]
[74] Trial ts 283 ‑ 285.
We are satisfied, having regard to:
(a)the evidence of E, Y and D generally;
(b)E's specific evidence as to her ability to understand and distinguish between a dream, on the one hand, and reality, on the other; her denial that her memory had been adversely affected by her use of drugs; the characteristics of the hallucinations she had experienced when using illicit drugs and abusing prescription medication; and the nature and extent of her mental health problems;
(c)Y and D's specific evidence in relation to E's blackouts and her medical difficulties; and
(d)the jury's very significant advantage in seeing and hearing E, Y and D give their evidence including evidence under cross‑examination,
that it was open to the jury to conclude that there was no reasonable possibility that E's allegations against the appellant were the product of her imagination or a reflection of her dreams.
In our opinion, the evidence as to E's history of dreams, blackouts, use of illicit drugs and abuse of prescribed medication did not, either alone or in combination with any of the other matters complained about by the appellant in the appeal, require the jury to reject E's evidence in any material respect or require the jury to entertain a reasonable doubt as to the appellant's guilt in relation to any of the charged offences.
We will deal now with the appellant's contention that there was no evidence or inadequate evidence of corroboration in relation to E's allegations against the appellant.
Section 50(2)(a) of the Evidence Act provides that, on the trial of a person on indictment for an offence, the trial judge is not required, by any rule of law or practice, to give a corroboration warning to the jury in relation to any offence of which the person is liable to be convicted on the indictment. By s 50(2)(b), the trial judge must not give a corroboration warning to the jury unless the judge is satisfied that such a warning is justified in the circumstances.
In the present case, the trial judge did not give a corroboration warning to the jury. The appellant does not complain, on appeal, that a corroboration warning was justified in the circumstances and that her Honour should have given such a warning to the jury.
E's evidence as to when each of the charged offences occurred was not precise and contained some inconsistencies.
E gave this evidence about the timing of the alleged offences:
(a)E's family moved into the appellant's home when she was in year 5 at school and was aged about 11. She estimated that the offence alleged in count 1 occurred about 18 months or 'maybe, a bit more' after moving in.[75]
(b)E recalled an occasion when she went into a shed at the appellant's home and used a computer to access a document. She said that this occurred 'quite some time' after counts 1 and 2. The incident could have occurred a couple of months or a year afterwards.[76] The indictment pleaded that each of counts 1 and 2 was committed on an unknown date between 20 March 2005 and 21 March 2006. However, it was an agreed fact at the trial that the earliest the document in question could have been saved onto the appellant's computer was 17 June 2006.[77]
(c)E said that the offending the subject of count 3 occurred after she had accessed the document on the appellant's computer, but she was not completely sure.[78] E then said in cross‑examination that she was 'probably … under 17, older than 15, maybe. Not sure' and that it 'wouldn't surprise [her]' if she had previously estimated that it had occurred when she was aged about 14, but she did not think it had occurred when she was 12.[79]
(d)E accepted that it was more likely that the offending the subject of count 3 occurred when she was aged at least 14, perhaps 15,[80] and that she had previously asserted in a witness statement that it was 'late 2007 or early 2008'.[81]
(e)E said she moved out of the appellant's home and went to live with her biological father more than a couple of months, but less than 6 months, after the offending the subject of count 3.[82] E's mother initially asserted that E had moved out before May 2007, but later said that E had moved out in March 2008.[83] E's biological father gave evidence that E began to live with him sometime in 2008, possibly 6 months prior to his wife (who was not E's mother) separating from him in August 2008.[84]
[75] Trial ts 83 ‑ 84.
[76] Trial ts 90 ‑ 91.
[77] Trial ts 321.
[78] Trial ts 100.
[79] Trial ts 117.
[80] Trial ts 118.
[81] Trial ts 120.
[82] Trial ts 100.
[83] Trial ts 209, 239.
[84] Trial ts 276.
E gave evidence that on the morning after the commission of the offence charged in count 3, there was some blood on her bed sheets. E said she covered the blood with her sheet and doona. Later that day (in the evening), she noticed that her bed had been made and her sheets were clean.[85] It was put to E that the offending the subject of count 3 occurred some years after she had her first period. She responded 'I guess so, I'm not sure'.[86]
[85] Trial ts 99.
[86] Trial ts 118.
E's mother, Y, gave evidence that there was an occasion when E told her in the kitchen, 'I've got blood on my sheets'. Y thought at the time that E had had her first period.[87] However, neither E nor Y could recall at the trial when E had her first period or whether it had occurred when E was aged 12.[88] E was uncertain whether she had been asked by health professionals as to when she had had her first period and was uncertain whether she had told health professionals that it had been when she was aged 12. She then said 'if it's what I've told people and doctors, then sure'.[89] A medical record dated 1 March 2007, which was produced at the trial, indicated that E had given a medical history regarding her first period. The medical record was tendered and became exhibit 13. The record states, in a section headed 'developmental assessment', that E's age of menarche was 12.
[87] Trial ts 207.
[88] Trial ts 117, 167, 227.
[89] Trial ts 117.
Y gave evidence about an incident when the appellant said to her one morning, 'last night was the best sex I've ever had in my life' and that the comment was not characteristic of the appellant. Also, Y gave evidence that she remembered the comment because she recalled going to sleep immediately after being in the spa and that she and the appellant did not have sex that night. When Y asked the appellant what he was talking about, in stating that the previous night was the best sex he had ever had in his life, the appellant said nothing and walked away.[90]
[90] Trial ts 206 ‑ 207.
Y admitted that she was uncertain whether the appellant had made the comment in question on the same day as the day on which there was blood on E's sheets. However, Y maintained that it was 'very close',[91] that the two events 'were associated together' in her mind[92] and that the appellant made the comment in question in 'early 2007, maybe 2000 and - 2006' because she recalled that the appellant made the comment before E moved out of the appellant's home in May 2007.[93] Y conceded in cross‑examination that she could not swear that the appellant's comment and the incident involving blood on E's sheets occurred on the same day or in the same week, but maintained that they would have occurred in the same year.[94] Later in her evidence, Y agreed that E did not in fact move out of the appellant's home until about March 2008.[95]
[91] Trial ts 207.
[92] Trial ts 208.
[93] Trial ts 209.
[94] Trial ts 208, 227.
[95] Trial ts 239.
It is apparent that Y's evidence as to the timing of the appellant's comment and the timing of the incident involving blood on E's sheets was uncertain and inconsistent.
However, in our opinion, it was open to the jury to conclude that the uncertainty and inconsistency in Y's evidence as to timing did not reflect adversely upon her honesty or credibility, but was explicable on the basis of mistaken or inadequate recollection.
The appellant admitted in evidence that he had made a remark to L to the effect that 'last night was the best sex I've ever had in my life' and that Y had replied 'I know we - we didn't have sex last night', but the appellant could not recall when that conversation occurred.[96]
[96] Trial ts 332.
The appellant denied in evidence that he had committed any of the charged offences and also denied having made the lewd comments which E alleged he had made about her appearance.[97] Further, the appellant denied having touched E's buttocks or breasts while giving her hugs, denied having hugged E while he had an erection[98] and denied having invited E to get into the spa without bathers while he was naked and alone in the spa.[99] The appellant said that he had made 'nice remarks' about E's appearance. The appellant agreed, in cross‑examination, that he would make comments like, 'look out boys. Here she comes' when E was aged about 14.[100]
[97] Trial ts 329.
[98] Trial ts 377.
[99] Trial ts 331.
[100] Trial ts 363.
We are satisfied that it was open to the jury to conclude that:
(a)the appellant did in fact say to Y one morning, while E was living at the appellant's home, words to the effect that 'last night was the best sex I've ever had in my life';
(b)in response, Y said to the appellant, 'we didn’t have sex last night';
(c)Y and the appellant did not in fact have sex that night; and
(d)E did in fact say to Y, while E was living at the appellant's home, words to the effect of 'I've got blood on my sheets'.
If the jury so concluded, it was also reasonably open to the jury to conclude that the appellant's statement to the effect outlined at [114(a)] above, made in the circumstances outlined at [114(c)] above, increased the probability that the appellant had (as E asserted and as he denied) had sex with E.
We are also satisfied, having regard to:
(a)Y's evidence that the appellant said to her one morning, while E was living at the appellant's home, words to the effect that 'last night was the best sex I've ever had in my life';
(b)Y's evidence that Y and the appellant did not have sex that night;
(c)E's evidence as to the offending the subject of count 3; and
(d)E's evidence in relation to the appellant's comments about E's appearance; the appellant having touched E's buttocks at the end of long hugs; other occasions on which the appellant gave E hugs, after the commission of count 1, which involved touching E's breasts; the appellant hugging E, after the commission of count 2, while he had an erection; and the appellant inviting E to get into the spa without bathers while the appellant was naked and alone in the spa,[101]
that it was open to the jury to conclude that the appellant's comment to Y about having had the best sex he had ever had in his life constituted an admission against interest to the effect that on the previous night he had had sex with E.
[101] Trial ts 83 ‑ 85, 88 ‑ 89.
In particular, we are satisfied that it was open to the jury to arrive at that conclusion even though it is apparent that Y's evidence as to the timing of the appellant's 'best sex' comment and the timing of the incident involving blood on E's sheets was uncertain and inconsistent. In other words, it was not essential to any conclusion that the appellant's 'best sex' comment constituted an admission against interest that the comment was made on the morning on which there was blood on E's sheets.
In our opinion, the limited nature of direct evidence of corroboration in relation to E's allegations against the appellant did not, either alone or in combination with any of the other matters complained about by the appellant in the appeal, require the jury to reject E's evidence in any material respect or require the jury to entertain a reasonable doubt as to the appellant's guilt in relation to any of the charged offences.
We will deal now with the appellant's contention that the jury must have entertained a reasonable doubt as to his guilt in relation to each of the charged offences having regard to the 'powerful evidence' given by five character witnesses as to his honesty and reliability and as to the unlikelihood of him behaving in the manner alleged by E.
Good character evidence is admissible in relation to the credibility of an accused who denies his or her guilt and, also, the unlikelihood of the accused having committed the offence. It is convenient to reproduce material parts of the recent outline in ZHA v The State of Western Australia[102] of the principles as to good character evidence.
[102] ZHA v The State of Western Australia [2020] WASCA 101 [186] ‑ [196].
In Durani v The State of Western Australia,[103] it was pointed out that the assumptions which underpin these accepted areas of relevance are:
(a)as to guilt, a person of good character is assumed to be less likely to commit an offence and therefore less likely to have committed the offence in question; and
(b)as to credibility, a person of good character is assumed to be more likely to be an honest witness and therefore a person whose evidence should be accepted [107].
[103] Durani v The State of Western Australia [2012] WASCA 172.
Each of these assumptions is dubious. See Melbourne v The Queen; [104] Durani [107].
[104] Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 [47] ‑ [48] (McHugh J), [109] (Kirby J).
In Melbourne, McHugh J said that 'character' refers to a person's inherent moral qualities or disposition and is to be contrasted with reputation, which refers to the public estimation or repute of a person irrespective of the person's inherent qualities [33].
In Braysich v The Queen,[105] French CJ, Crennan and Kiefel JJ referred with approval to these observations of Gummow J in Melbourne:
The issues in the particular case and the nature of the evidence of 'good character' which is proffered will guide the process of reasoning of the tribunal of fact on the path to providing an answer to the ultimate question of whether the accused is guilty beyond reasonable doubt [72]. (footnote omitted)
[105] Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 [42].
There are cases which recognise the potential value of evidence of good character, particularly in cases concerning alleged sexual offending against children. In TKWJ v The Queen,[106] McHugh J said:
Evidence of good character almost always helps an accused person's defence. Sometimes it is the decisive factor in returning a verdict of not guilty [R v D (1996) 86 A Crim R 41]. It may demonstrate that it is unlikely that the accused committed the act charged, or it may support the credibility of the evidence of the accused in denying his or her guilt.
[106] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [94]. See also Melbourne [151].
In R v D,[107] to which McHugh J referred, the appellant was convicted of various sexual offences against his daughter. He gave evidence denying the allegation. For reasons which were not explained, the defence failed to call a number of character witnesses who were available to testify. Hunt CJ at CL, with whom Grove J and Barr AJ agreed, said that the proposed character evidence was impressive and 'could well have had a substantial effect upon the jury's verdict'.[108] Hunt CJ at CL said as follows:[109]
Evidence of good character can be of substantial benefit to an accused person. It may demonstrate that it is unlikely that, as a person of good character, he or she would have done the act charged. It may also support the credibility of the evidence of the accused denying guilt and hence the unlikelihood of his or her guilt. There is a vast difference in the likely effect upon a jury between the basic type of evidence which was in fact elicited at this trial [namely, evidence that the appellant had no criminal record] and the further evidence which was available … ; the jury is entitled to and may well in fact give greater weight to the evidence of witnesses who are able to speak directly to the good character of the accused than to evidence of the bare nature elicited in this case.
See also Durani[110] where other cases were identified.
[107] R v D (1996) 86 A Crim R 41.
[108] D (44).
[109] D (42 ‑ 43).
[110] Durani [130] ‑ [132], referring to R v Barton [2004] NSWCCA 229; Sharma v The Queen [2011] VSCA 356 and R v DBB [2012] QCA 96.
In the present case, each of the five character witnesses was a friend of the appellant who had known him for between about 15 and 40 years. Each of the witnesses gave evidence to the effect that the appellant was honest and of impeccable character. In the opinion of the witnesses, the appellant was not the type of person who would have committed the offences charged in the indictment.[111]
[111] Trial ts 428 ‑ 441.
However, the courts have recognised that sexual offending by adults of previously unblemished reputations, and who appear to their friends, relatives and business and social acquaintances to be of impeccable character, is all too frequently found to have occurred.[112]
[112] DBB [51]; Sharma [46]; Durani [120]; JJR v The State of Western Australia [2018] WASCA 51; (2018) 272 A Crim R 209 [108].
As Hayne J said in Melbourne [152], the use that a jury might make of evidence of good character will vary greatly according to the circumstances of the case. It will vary according to what is said about the previous character of the accused and what relationship, if any, that has to the case that is sought to be made against the accused.
In the present case, the jury had the very significant advantage of seeing and hearing the appellant give his evidence including evidence under cross‑examination. It was necessary for the jury to decide upon the weight to be given to the opinions of the five character witnesses having regard to the jury's impressions of the appellant in the witness box and the jury's assessment of the cogency of his evidence.
We are satisfied that it was open to the jury to conclude that the opinions of the five character witnesses should be accorded only modest weight in deciding whether the jury was satisfied beyond reasonable doubt that the appellant committed the charged offences in the privacy of his own home.
We are also satisfied, having regard to:
(a)the evidence of the five character witnesses;
(b)the appellant's evidence; and
(c)the jury's very significant advantage in seeing and hearing the appellant give his evidence including evidence under cross‑examination,
that the evidence of the five character witnesses did not preclude the jury from being satisfied as to the appellant's guilt.
In our opinion, the opinions of the five character witnesses did not, either alone or in combination with any of the other matters complained about by the appellant in the appeal, require the jury to entertain a reasonable doubt as to the appellant's guilt in relation to any of the charged offences.
The trial judge gave an extensive direction about the effect of E's delay in making complaint and about the impact of the delay in the appellant being informed of E's allegations upon his ability to bring forward matters of defence and to test E's evidence. No complaint is made in the appeal about her Honour's direction. The delay and the adverse impact of the delay upon the appellant did not, either alone or in combination with any of the other matters complained about by the appellant in the appeal, require the jury to entertain a reasonable doubt as to the appellant's guilt in relation to any of the charged offences.
A jury, acting reasonably, was not precluded by the state of the evidence from convicting the appellant of each of the charged offences. A jury, acting reasonably, was entitled:
(a)to accept the evidence of E in all material respects; and
(b)to reject the evidence of the appellant in all material respects.
We do not accept the appellant's submission that his evidence in denial of the allegations could not be excluded beyond reasonable doubt because there was 'no logical, rational, intellectual basis' for doing so or because his evidence in denial did not suffer from any 'inherent flaw'.[113] It is not necessary to identify an inherent flaw in evidence before the evidence it may be rejected. For the reasons we have already given, it was reasonably open to the jury to have regard to all of the evidence - including the appellant's - in evaluating whether the jury was satisfied beyond reasonable doubt as to the credibility and reliability of the critical parts of E's evidence, and - having had regard to all of the evidence - to conclude that the jury was so satisfied.
[113] Appeal ts 18 ‑ 20.
The trial record does not require the conclusion that the jury must necessarily have entertained a reasonable doubt about the appellant's guilt on the charged offences. The verdicts of guilty were not unreasonable. They were supported by evidence that the jury was entitled to accept and inferences that the jury was entitled to draw. Our assessment of the matters complained about by the appellant in the appeal, including the challenges to the honesty, credibility and reliability of E, does not persuade us that the jury, acting reasonably, should have decided that the State had not proved the charged offences to the criminal standard. After paying full regard to the consideration that the jury was the tribunal of fact entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that the jury had the very significant benefit of having seen and heard the witnesses, we do not have a reasonable doubt as to the appellant's guilt on the charged offences or as to the correctness of his conviction on those charges. It would not be dangerous, in the circumstances, to permit the verdicts of guilty to stand.
The ground of appeal fails.
Conclusion
We would grant leave to appeal. However, the ground of appeal has not been made out. The appeal must therefore be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KS
Associate to the Honourable Justice Buss27 JULY 2020
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