"R" v The State of Western Australia
[2006] WASCA 101
•9 JUNE 2006
"R" -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 101
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 101 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:186/2005 | 21 APRIL 2006 | |
| Coram: | STEYTLER P WHEELER JA MCLURE JA | 9/06/06 | |
| 41 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | "R" THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Evidence Admissibility and relevancy Whether evidence should be excluded in judicial discretion Where evidence not objected to at trial for tactical reasons Turns on own facts |
Legislation: | Evidence Act 1906 (WA), s 36BD Criminal Code (WA), s 570D |
Case References: | Ahmad v The Queen [2002] WASCA 70 Driscoll v the Queen (1977) 137 CLR 517 Kilby v The Queen (1973) 129 CLR 460 R v Freeman [1980] VR 1 R v McNeill [1907] VLR 265 R v Norcott [1917] 1 KB 347 R v Osborne [1905] 1 KB 551 R v Swaffield (1998) 192 CLR 159 Stapleton v The Queen (2002) 136 A Crim 6 R 65 Suresh v The Queen (1998) 72 ALJR 769 T ( A child) v The Queen (1998) 20 WAR 130 TKWJ v The Queen (2002) 212 CLR 124 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : "R" -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 101 CORAM : STEYTLER P
- WHEELER JA
MCLURE JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : EATON DCJ
File No : IND 1585 of 2003
Catchwords:
Criminal law - Evidence - Admissibility and relevancy - Whether evidence should be excluded in judicial discretion - Where evidence not objected to at trial for tactical reasons - Turns on own facts
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Legislation:
Evidence Act 1906 (WA), s 36BD
Criminal Code (WA), s 570D
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr L P Rayney
Respondent : Ms L Petrusa
Solicitors:
Appellant : Ian MacFarlane
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Ahmad v The Queen [2002] WASCA 70
Driscoll v the Queen (1977) 137 CLR 517
Kilby v The Queen (1973) 129 CLR 460
R v Freeman [1980] VR 1
R v McNeill [1907] VLR 265
R v Norcott [1917] 1 KB 347
R v Osborne [1905] 1 KB 551
R v Swaffield (1998) 192 CLR 159
Stapleton v The Queen (2002) 136 A Crim 6 R 65
Suresh v The Queen (1998) 72 ALJR 769
T (a child) v The Queen (1998) 20 WAR 130
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Case(s) also cited:
TKWJ v The Queen (2002) 212 CLR 124
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1 STEYTLER P: The appellant was tried by a jury on two counts of indecently recording a child under the age of 13 years (counts 1 and 2), one count of showing offensive (pornographic) material to a child (count 3), four counts of sexual penetration of a child under the age of 13 years and one count of indecent dealing with a child under the age of 13 years. The child was the step-daughter of the appellant's daughter. The offences occurred between 31 December 2001 and 26 April 2003, in the case of counts 1 and 2, and on about 12 April 2003 in the case of the remaining counts. The appellant was convicted on all counts. He appeals against that conviction.
Advance notice of the defence case
2 It is not in dispute that, in advance of the trial before the jury, the then counsel for the appellant informed the State prosecutor that the appellant contended that his daughter, "J", had induced the complainant to fabricate allegations against him because she wanted his money. This contention is recorded in a letter dated 22 June 2005 sent by the prosecutor in response to a request by the then counsel for the appellant that a letter dated 10 November 2003, sent to him by the solicitors for J, be tendered into evidence at the trial by consent. In this last-mentioned letter, the solicitors for J had recorded, amongst other things, their client's denial of "unconscionable conduct" in relation to the appellant's will.
Pre-recorded evidence of the complainant
3 The evidence of the complainant was given, in advance of the trial before the jury, on 4 June 2004. Her evidence was recorded on videotape and played to the jury on 28 June 2005. She was then 9 years old, having been born on 24 November 1995.
4 The complainant said that she lived in two houses, one belonging to her mother and the other to her father. Her father, "CL", was married to J and they had two small children, "C" and "E". She said that she had often visited the appellant, who lived by himself. She had stayed overnight at his house a few times, sometimes on her own and sometimes with C and E. She also said that the appellant regularly visited CL and J's home.
5 The complainant described an occasion upon which the appellant visited her father's home. Because he often gave her lollies, she asked the appellant if he had any. He said that he did and so she "went in a pocket". She said that there were lollies in there and she "felt something not like a lolly". She asked what it was and the appellant told her that he would tell
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- her when she got to his house. When she did get to his house, he told her that it was a "willie".
6 The complainant also gave evidence concerning occasions when she had stayed overnight at the appellant's home on which he had watched videotapes of "people having sex". She said that he had allowed her to watch them also. She said that, on the last occasion that she had stayed at the appellant's home, the two of them had watched a videotape of people having sex. He asked her if she wanted to do what she had seen on the video. She said, "Okay" and the two of them then did what they had seen on the video. She described the offences the subject of counts 4 to 8 on the indictment. The complainant was asked whether, after returning to her father's house, she had told anyone what had happened. She said that she hadn't. When asked why not, she said, "Because I just didn't want to". She was asked why she didn't want to and said, "I don't know. I just didn't really want to".
7 The complainant also gave evidence concerning counts 1 and 2. She told of an occasion when she and C had been at the appellant's home. The appellant told her and C to take their clothes off and that he would videotape them. They took their clothes off and he videotaped them while they were running around and "just dancing around and that kind of stuff". The following exchange then took place:
"Did he seem to be videotaping any particular things that you were doing or any parts of you?---Yes.
What things or what parts?---The rude parts.
How could he see the rude parts?---Because we were dancing around.
Were you showing him your rude parts?---Yes.
Why did you do that?---Because he told us to."
8 The complainant was cross-examined at some length concerning the alleged offences. It was put to her, in the course of the cross-examination, that the appellant had never done "any of … [the] rude things" of which she had spoken. She said that he had. It was also put to her that J and CL were "trying to get money off … [the appellant] for what they say happened to … [her]" (with which she agreed) and that they had "taken Court proceedings" (about which she did not know).
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Opening address of the prosecutor
9 In the course of his opening address, shortly prior to the playing of the videotape of the complainant's evidence, the prosecutor explained to the jury how it was that the offences had been discovered. He told them of an occasion upon which the appellant had come to talk to J at her home. He said that the appellant had told J that he thought that he had been seduced by the complainant, that she had been touching his private parts by putting her hand in his pockets to take lollies out of them, that she had rubbed herself against his groin area and that she had otherwise displayed overt sexual behaviour. The prosecutor also said that the appellant had told J that he was worried because the complainant was convinced that they had had sex on the previous Saturday night, that he had been watching a pornographic film when he believed the children were asleep, that the complainant had inadvertently walked in and seen the film and that she had mistakenly reached a conclusion that she and the appellant had had sex because of what she had seen.
10 The prosecutor went on to say that J was left in a state of mental turmoil, that she did not want to believe that her father had molested her step-daughter and that she convinced herself that he had not done so. He said that she telephoned CL and told him of the conversation. That evening, CL and J went to the appellant's home and spoke to him about what had taken place earlier in the day. He said that the appellant denied touching the complainant, but that the appellant then began to shake his head and cry and said, "Maybe I have done something. Maybe it’s the tablets I'm on that have done something to my mind". The prosecutor told the jury that, although CL did not want to believe that the appellant had molested his daughter, he was worried. The prosecutor then went on to say the following:
"[CL] was the first to speak to … [the complainant]. He asked her if the accused had done anything to her straight out. [The complainant] … started to cry and said that … [the appellant] would go to gaol if she told anyone. Despite her father's attempts to reassure her, she wouldn't tell him anything and he left her on the bed crying. He then went downstairs and asked his wife to go upstairs and speak to … [the complainant].
[J] … went upstairs and she found … [the complainant] lying on the bed curled up in what she describes as a foetal position and crying. She asked her what was wrong and … [the complainant] reiterated that she couldn't tell. She said that she
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- promised … [the appellant] that she wouldn't, but … [J] said that she had had a coffee with … [the appellant] and he said it was okay to tell her.
[The complainant] … then said, 'Me and … [the appellant] have had sex'. [J] … asked her what she meant and she went into a little – this is … [the complainant] – more detail, describing some of the allegations which are now the subject of charges in this trial. She begged her mother not to call the police because she didn't want … [the appellant] to go to gaol. She said that if he did all the pets, in particular the dog that the accused man had, would die because there would be no one to look after them. These revelations made … [J] physically ill. However, she recovered her composure and she went and telephoned the police to report to them what … [the complainant] had said.
[CL] … reacted in a rather different way. He recalls that something inside him snapped and he went from the house on foot around to … [the street] where the accused was. He was so angry that his wife rang triple 0 police emergency because she was afraid that he was going to go around to … [the appellant's] house and kill him. Indeed, [CL] … was so angry that that was one of the things that crossed his mind.
The police arrived at the accused's house before … [CL] got there. They told him to leave and he did leave but the police then left and … [CL] came back. He climbed over the roof of the accused man's house and threw a stone block through a window at the back. He yelled out at the accused, 'Hand yourself in or I'll fucking kill you'. Needless to say, the accused stayed inside the house. [CL] … eventually left and went back home, came to his senses."
11 No objection was taken by the then counsel for the appellant to anything said by the prosecutor in the course of his opening.
J's evidence
12 In her evidence J said that, on the Saturday upon which the offences the subject of counts 3 to 8 were said to have happened, her children had stayed overnight at the appellant's home. On the following Thursday (17 April 2003), the appellant came to her home. He told her that they needed to talk. He said that he thought that he had been "seduced by a 7-year-old". When told that this was ridiculous, he went on to say that he
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- thought that the complainant was "a little hussy", that she was always pulling her knickers to the side and that she was always playing with herself. He also told J of an occasion when he had "walked out" at her home and seen the complainant sucking C's "willie" in the spa. She said that she knew that this last event could not have happened because the children were never in the spa by themselves. The appellant also told her that the complainant used to put her hand in his pocket to get lollies and that she had started to linger, and that he had put this down to curiosity. He told J that the complainant believed that the appellant and the complainant had had sex on the Saturday night and that he thought that she had got that idea as a result of the complainant seeing a soft porn video that he had been watching. He said that she had been sleeping in the room where he had been watching the video and had woken up and seen it in a half-asleep state.
13 Later that day, after J had told CL what the appellant had said to her, J and CL went to the appellant's home. He was then in a distressed state of mind. He continued to maintain that he was innocent of any indecent conduct towards the complainant. J and CL told the appellant that they did not believe that he had done anything and that they would support him. Towards the end of the conversation, the appellant began to cry and said, "Maybe I have done it". He had been put on new medication for a heart condition and suggested that the pills might have warped his mind. J said that she and CL had reassured him that they would support him. She went on to say, "We still hadn't spoken to … [the complainant] and he was very believable and this story that he offered us, I suppose we could have believed it" (transcript 241).
14 That evening, CL spoke to the complainant. Having done so, he told J that she should speak to the complainant. She did so. The following exchange then occurred in the course of J's evidence (transcript 243):
"Where was … [the complainant]?---She was in our bed.
How did she seem when you first saw her?---She was under the doona and she was, like huddled up like in a foetal position and she was sobbing.
In a foetal position you said?---Yes.
What did you do or say when you saw that?---I lay on the bed next to her and I was just patting her head and I said to her, 'Come on, baby, you know, what's wrong? You can tell me,'
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- and she said, 'No, I can't. I can't tell you,' and I said, 'Well, you know, you can tell me,' and she said, 'No, I can't, I've made a promise with … [the appellant],' and I said to her, … 'Yeah, you can tell me, there's no – you know, there's no problem,' and she said, 'Well, I can't because I've made a promise,' and I explained to her that sometimes, you know, a promise isn't a promise and sometimes she'd … [said] to me things and she'd say, you know, 'Promise you won't tell daddy,' and I'd say to her, 'But you know I'm going to tell daddy,' so I said, 'It's a promise like that,' and she said, 'Well, how do you know?' and I said, 'Well, I know because I had coffee with … [the appellant] today and he told me that it was okay for you to tell me the promise, the secret,' and that's when she said to me that her and … [the appellant] had had sex.
How did you react to that?---I kind of didn't. It was just like someone had punched me in the stomach but I sort of kept myself together and I said to her, you know, … 'what do you mean you had sex?' sort of thing, and she said to me that she'd watched a video with … [the appellant] and that afterwards he'd licked her fanny. I felt really quite ill and I don't know why but the first thing I could think of was what did … [the appellant] do with his willie and she said to me that, 'He'd tried to put it in me but it was hurting and I started crying so we stopped.'"
15 There had not, until that point, been any objection to any of this evidence. However, at this point the then counsel for the appellant objected to the evidence upon the basis that it was hearsay. The trial Judge asked the prosecutor whether the evidence was being led "as complaint evidence". The prosecutor responded by saying that it was being led as complaint evidence, but that it was also led as evidence "to explain what the witness did next and as evidence of the relevant state of mind of the complainant". The trial Judge allowed the questioning to proceed, saying that he would explain why it was admissible and what it could be used for a little later. The following exchange then occurred (transcript 244):
"Did she say anything else?---No, she didn't. I got up then. That was all I really wanted to hear to be honest.
What did you do?---I vomited and then I went downstairs and as I went down the stairs … [CL] was like at the bottom – at the bottom of our stairs there's like a, you know, like a foyer area,
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- like a square, like you know, vacant area. [CL] … was down there. I said to … [CL], 'I'm going to fucking kill him.'
Who did you mean?---My dad.
What did you do then?---I rang the police … and I said to them that they needed to come over because my daughter has been abused."
16 J said that, while she was telephoning the police, CL left the house. She believed that he had gone to the appellant's home. She rang the police again in order to tell them this. She waited a while and, because the police had not arrived, she rang triple 0 and told the police that the situation was urgent. She gave them her father's address.
17 J went on to say that her father spent two nights in the remand prison, after he had been arrested. She said that she had told the appellant and his solicitor that he was safer in gaol. She said that this was because "we knew what he'd done and the situation was very volatile". This evidence was objected to by the then counsel for the appellant, but only because J had used the word "knew" rather than "believed". The trial Judge clarified with J that what she meant by the word "knew" was that she "believed emphatically" that something had happened. She confirmed this (transcript 250).
18 J also gave evidence that, after collecting her father from the remand prison, she had taken him to Fremantle Hospital because she was concerned at his mental state. There, she and her aunt, "M", had discussed with him the need to protect his valuables at his home, because his window was broken and he was to stay overnight at the hospital. She said that he gave them permission to remove his valuables. On the following morning, J and M went to the appellant's house and removed a number of items of value, including a video camera bag. They then went to J's home. There, they found a videotape inside the bag. J, M and CL watched the videotape. It contained images of the complainant and C dancing naked, including what J referred to as "a picture of … [the complainant's] fanny".
19 J went to the hospital to speak to her father. She told him that she had seen the video. When he asked, "What video?", she said that she "explained to him that it was a video of him masturbating, watching … " (transcript 256). She was then stopped by the prosecutor, before going on to say that the appellant had told her "that he'd made it because … his
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- girlfriend in Thailand … ". The then counsel for the appellant objected to this evidence and J's evidence in that respect was cut short. There followed a debate as regards the admissibility of this evidence, in the course of which the prosecutor said, without contradiction from the then counsel for the appellant, that his understanding of the defence in relation to the videotape was that the appellant had made the parts that included the masturbation (the prosecutor said that he had not anticipated that J would refer to this) but that the appellant would assert that it was not him who had videotaped the children. However, the trial Judge had earlier ruled that the contents of the videotape, so far as they showed the appellant masturbating while watching a pornographic film, should be excised because their probative value was exceeded by their prejudicial effect. The issue was consequently left by the prosecutor after having J confirm only that the appellant had told her that he had made a videotape for his girlfriend (transcript 268).
20 J also said that, while her father was in Fremantle Hospital, he had been very depressed and quite suicidal and she had consequently suggested to him that he should make a new will. He had previously said to her that his ex-wife was still the beneficiary of his will and that he did not want that situation to continue. He wrote out a new will and J and one of the nurses witnessed it.
21 J dropped her father off at a hotel (the "Clipper Inn" hotel), as she did not think that he should return to his home. She said that she left him there while she went to meet a friend and to get the appellant some food. When she and her friend returned to the hotel with the food, the appellant was walking out the door. He handed her a note and said, "Yeah, I know what I've got to do". J responded by saying "Okay, goodbye". Then, when she was in her car, she read the note. She said that it was a suicide note containing words to the effect, "Tell … [M] that I love her and that I'm really sorry and that this is the best thing for everyone".
22 J was cross-examined at some length by the then counsel for the appellant. She was effectively asked to repeat her evidence that, on the Thursday upon which the issue had first been raised by the appellant, she had believed that he had done nothing wrong and that she had, that evening, reassured him that she believed that nothing was wrong. She was also cross-examined concerning the conversations which she and CL had had with the complainant and as regards their respective reactions to it. The cross-examination included the following exchange (transcript 300):
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- "And as a result of that conversation [with the complainant] you came down the stairs?---Yes.
And said words to the effect of, 'I'm going to fucking kill him'?---Yes.
Right. Now, at this particular stage the only information you have in front of you is what the child says to you and what my client says to you. Is that correct?---Yes.
So effectively what you've done at this particular point in time is believed the child?---I believed at that point in time – yeah, I believed something had happened. I didn't believe – I didn't know whether I believed everything … [the complainant] had said or anything that my dad had happened (sic) but I knew that something had happened."
- It was also put to J that CL had been "very, very angry" (transcript 304).
23 J had acknowledged, in her evidence, that she had taken steps to deceive the appellant into believing that she was trying to help him (amongst other things, with the sale of his house) when, in fact, she had been hoping to persuade him to admit what he had done to the complainant so that the complainant would not have to give evidence. It was put to her that this was "conniving" conduct, that M had taken part in the "campaign of deceit" and (transcript 329) that the "conniving" course of action had been designed to "try and get … [the appellant] to admit something". It was also put to her that one or more of J, CL and M had put onto the videotape those sections of it on which the children appeared naked. She emphatically denied that this was so. Finally, so far as is presently relevant, it was put to J that, at the time at which she asked the appellant to prepare a new will, she was "after … [the appellant's] money" (transcript 311). J denied this. She was also shown a copy of the writ which had been issued in civil proceedings against the appellant arising out of the allegations concerning the complainant and in which she and CL were shown as bringing the proceedings on the complainant's behalf.
M's evidence
24 "M" confirmed J's evidence concerning the circumstances in which she and J had gone to the appellant's home in order to collect his valuables. She also confirmed that she, J and CL had looked at the videotape together and that it had included footage of the children naked. It was put to her in cross-examination that she and J had "set off on a
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- course to deceive … [the appellant]" (transcript 387) and that she had been involved in a deceitful "scheme with … [J] to entrap … [the appellant] to get him to make certain admissions" (transcript 400). M denied this. She was also cross-examined about the videotape (which, she said, encompassed footage of the children running around naked and "a lot of other trash" (transcript 396)).
CL's evidence
25 CL's evidence concerning the conversation which he and J had with the appellant on 17 April 2003 was broadly similar to that which had been given by J. He said that, after that conversation, he and J picked up the children from a friend's home and took them home. He said that he took the complainant to his bedroom and told her that he needed to ask her a few questions. Then, he asked her whether the appellant had "touched … [her] fanny". She responded by saying that she could not tell him because the appellant would go to gaol. He said that she became very upset and that he knew that something had happened. He asked J to speak to the complainant and said that, after she had done so, she had told him that she was going to kill the appellant.
26 CL said that he ran to the appellant's house, feeling extremely angry. When he got there, he saw that the police were at the house. He spoke to them and told them what had happened. They responded with words to the effect, "Look, we'll sort things out, we'll look after this". CL said that he moved away from the house until the police left, a "fairly short time" after he had arrived. He then went to the house and demanded to speak with the appellant, who would not let him in. He threw a brick through the window and shouted to the appellant that, if he did not hand himself in, he was going to kill him. He said that he then calmed down and left.
27 CL was cross-examined at some length by the then counsel for the appellant. The cross-examination focused, amongst other things, on the fact that CL had been "very, very angry" after he had talked to the complainant and that his anger had continued for some time. It was also put to him that, after his immediate anger had calmed down, his emotion had become one of revenge. He was asked about telephone messages that he had left for the appellant in the course of which he had told the appellant, untruthfully, that J had taken an overdose of drugs and had died in hospital.
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28 CL was cross-examined, in some detail, as regards his conversation with the complainant concerning what had been done to her by the appellant.
29 It was also put to CL, in the course of cross-examination, that, after 17 April 2003,he had gone to the appellant's house and that he had "had … [the] video in … [his] possession on … [his] own without anybody else being in the house" (transcript 461). He denied that that was so. It was then put to him that he had been so angry, and so filled with revenge, that he had himself put on the videotape those parts of it which recorded the children naked. He denied that that was so.
30 Finally, so far as is presently relevant, CL was cross-examined concerning the civil action which had been commenced against the appellant, seeking damages arising out of what was said to have been done by the appellant to the complainant.
Evidence of the police officers
31 Four police officers gave evidence at the trial. The evidence of two of them, Constable Michelle Williams and Senior Constable Kevin Miller, is relevant to the appeal.
32 Constable Williams said that, on the night of Thursday 17 April 2003, she was on duty with a Constable Cattanach. They were called out to J's home. She had a conversation with J which was "essentially about the matters that … [had] led to … [the] trial". She said that, as a consequence of what she was told, she and Constable Cattanach went to the appellant's home. They saw CL in an alleyway, some 50 metres from the house. They urged him to return home and he appeared to do so. She and Constable Cattanach then went to the appellant's house and spoke to him. She said that the conversation was brief and was predominantly about whether or not he felt safe in his house. The appellant told the police officers that he would lock up the house and stay inside and call them if there should be any further problems. They then returned to J's home, where they had a more lengthy conversation with her about allegations of sexual assault concerning her step-daughter. They did not then interview the complainant.
33 Constable Williams said that, later that evening, she and Constable Cattanach received a call to return to the appellant's home. By the time at which they arrived there, two detectives from Fremantle were already there. One of these was Senior Constable Miller. The four police officers searched the premises in order to ensure that no one other than the
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- appellant was at the house. She said that, after that, there was a conversation between Senior Constable Miller and the appellant. Immediately after it, she noted down the contents of the conversation. With the consent of counsel for the appellant, she read from her notes at the trial. They were to the effect that Senior Constable Miller had asked the appellant what he thought had "brought this on". Her notes recorded that the appellant had said something like the following (transcript 475 - 476):
"---These are pretty serious allegations; sexual penetration. [The complainant] … was staying at my place and she said to me, 'Can we play that game again?'. I asked her what she meant and when she told me I told her not to tell anyone this or … [I] will go to gaol. I stewed on it for a week and knocked off work early today to talk to my daughter about it. I rang my daughter yesterday but she was at work. I went to my daughter's house this afternoon and told her what … [the complainant] said. [J] … and … [CL] came over earlier and we discussed it. I told them to take her to a doctor to be checked.
Detective Miller:
What made your granddaughter say these things … ?---She caught me watching a video, you know, just soft porn. She can be a bit promiscuous, flaunting herself around and that.
Detective Miller stopped the conversation by saying, 'Don't tell me any more.'"
She said that that was the end of the conversation.
34 There was no objection to any of this evidence. There was also very limited cross-examination of Constable Williams. She was asked only if she remembered the appellant asking her if the police had a safe house where he could stay and also whether he had then told her that that he was going to his son's house, in respect of which he provided contact details.
35 In his evidence, Senior Constable Miller said that he had been on duty at Fremantle on 17 April 2003. He said that he had a telephone call "to attend for a complaint of a sexual nature". He and Detective Walker went to the appellant's home shortly after midnight. He said that Constables Cattanach and Williams also arrived there and that they spoke to the appellant, "who had a complaint of someone trying to get into his house". He said that all four police officers searched the backyard and
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- inside the house and that he then had a conversation with the appellant in front of his house. He said that he directed Constable Williams to take notes of the conversation, that he later read those notes and that he was satisfied that they were an accurate record. He said that he could still recall what had been said. His evidence was as follows (transcript 495 - 496):
" … I asked what brought all this on. He said to me that they are very serious allegations; sexual penetration. He said that he stewed over it for a week and he knocked off work early that day to talk to his daughter. He tried to ring her but she was at work and he also went round to her house and later that day they came over to his house where he advised her to take the child to a doctor to be checked."
"I see. What happened next?---I asked what – 'What made your granddaughter say these things?' And he then went on to say that, 'She asked me if we could play a game and when I asked her what she meant by that game I told her not to say anything or … [I] will go to gaol. She caught me – she saw me watching which was soft porn and she can be a little bit promiscuous, flashing herself in front of me and that.'
What did you then say?---I asked … [the appellant] not to say any more.
What happened then?--- … [The appellant] got into his vehicle and drove off.
37 The trial Judge asked Senior Constable Miller why it was that he had told the appellant not to say any more at that stage. He responded by saying:
"I did that because in actual fact when I attended I had no idea what the nature of the complaint was. In fact at the time … [the appellant] was my complainant and I was worried for his safety."
- Senior Constable Miller was asked by the prosecutor whether he had cautioned the appellant before speaking to him. He said that he had not.
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- He was then asked what had "specifically" motivated him to tell the appellant not to say any more. He responded as follows (transcript 497):
"Because I felt that he was incriminating himself to me and the fact that I hadn't really any knowledge of any complaint at all made from anyone."
The appellant's evidence
39 In his evidence, the appellant denied any of the wrongdoing attributed to him. He said that, on the Sunday following the night of the alleged offences the subject of counts 3 to 8, the complainant, after waking up that morning, asked him if they could play the game that they had played on the previous night. The following exchange then occurred between the appellant and his counsel (transcript 558):
"What game did she describe?---I asked her what game it was. She described the game to be – she said, 'You know, the one where you lick my fanny and I suck your willie.' And I was rather shocked and I didn't have time to respond. She went on and she said, 'And you take your willie and put it in my fanny and then put it in my bum.' I was totally shocked and then the conversation moved away to, 'When can we have breakfast? Can we watch another DVD?' and I was just left sitting there in total shock.
Did you say anything to her about that at all?---Yes. I said, 'We did not watch a movie like that.' I told her, you know – sorry, not watch a movie like that – Did not watch a – 'We did not play a game like that.'
Did the subject of a movie come up?---Yes. During the day – no, not during the day, during the conversation the topic was brought up, she asked me did I like the video that I had been watching and I said, 'What video?' because to the best of my knowledge the child was asleep, and I think her words were, 'The rude video,' or some such, and I said, 'How did you see that movie?' and she said, 'I peeped at it when you were asleep.'
(Page 18)
- Anything else?---Not that I can … recall."
40 The appellant said that he was concerned about what the complainant had said and that he felt that it was necessary that he should speak to his daughter with regard to it. He was able to do so on the afternoon of Thursday 17 April 2003. He told her that he felt that he had been mentally seduced by a 7-year-old girl. He also told her of the incident involving the complainant and C that he said that he had seen while the two were sitting in the spa. He also told her of the occasion on which the complainant had reached into his pocket in order to take out a lolly and had touched his genitals.
41 The appellant said that, that evening, he was visited by J and CL. He told them that he had not done anything of a sexual nature to the complainant. He broke down because of the stress brought about by his concern that, if the complainant told anyone what she had told him, he might be sent to prison.
42 The appellant's evidence focused heavily upon the anger which CL had shown to him after talking to the complainant later that evening and on the appellant's fear for his wellbeing as a consequence. He said that, still later that evening, he was telephoned by J and told not to open his door. As a result of that conversation, he said, he went out to the back of his house into the garage, locked the garage and crawled underneath his car in hiding. He said that he did so because he had feared that CL "was coming around to seek some kind of revenge" (transcript 570). He stayed under the car until he heard a police siren in front of his house. He went outside and spoke to two police officers. He said that they were there for 10 or 15 minutes. He was told that the police had sent CL home.
43 The appellant said that, later that night, he woke up to hear somebody trying to enter his house. He feared that CL had returned and hid behind some cupboards in the kitchen. He heard CL calling out for him. Then, he heard the sound of breaking glass and saw that a large limestone brick had been thrown through his main bedroom window.
44 It was put to the appellant, in the course of his evidence-in-chief, that, on the day before that on which he gave evidence, he had read the notes which had been taken by Constable Williams. He said that he had. He was then asked whether or not the notes were accurate. He said that they were.
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45 The appellant recalled having been taken to the "Clipper Inn" hotel after his discharge from Fremantle hospital. He said that he was "rather disturbed" because he felt that the hotel was too close to CL, who had threatened to kill him on the night of 17 April. However, he denied that he had written out a suicide note and given it to his daughter.
46 The appellant gave evidence of two telephone calls that he had received from CL on the night of 26 April, while he was in the "Clipper Inn" hotel. He said that, in the first of them, he was told that he was "living on borrowed time" and that, in the second, he was told that he would "fill a fisherman's bait bag nicely". He also spoke of a telephone call that he had received at about midnight on 3 May 2003. He did not answer it, and CL left a message for him to the effect that J had taken a large overdose of tablets and was not expected to make it through the night. He said that, on the following morning, a message was left for him that J had died.
47 The appellant also gave evidence to the effect that his daughter, while claiming to help him to sell his house, had in fact tried to prevent him from selling it and disposing of his assets (transcript 631).
48 In the course of cross-examination, the appellant said that he did not recall having had a conversation with J concerning the contents of the videotape. He acknowledged that the videotape contained sexual material involving him (presumably a reference to masturbation) and other sexual material but denied that he had recorded the indecent footage of the two children. He said that he had no immediate recollection of recording the sexual footage but that he probably had done so. He also said (transcript 747) that, while at the "Clipper Inn" hotel, J had told him that, if he did not hand himself in to the police, she would give them the videotape. He said that he felt that he was "being blackmailed".
Closing submissions by the then counsel for the appellant
49 In his closing submissions to the jury, the then counsel for the appellant dealt first with counts 1 and 2. He said that the appellant had made a video recording, but that the offensive material concerning the complainant and C was not filmed by him. He told the jury that they were "not seeing what … [the appellant] recorded". He said that three people had had access to the appellant's house after the appellant had left it in the early hours of 18 April. These were J, CL and M. He said that the hole in the window had been big enough for someone to "get to the locks" in order to open it.
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50 As to count 3, the then counsel for the appellant told the jury that the complainant had seen the pornographic videotape that the appellant had been watching by accident and against his will. As to the remaining counts, he suggested that the complainant had transposed what she had seen on the video to what she imagined had been done to her by the appellant. He stressed that it was the appellant himself who had raised the issue and that there was "nothing more here than the words of the child and three adults … [J, CL and M], that have set this course of action off". He went on to say (transcript 32):
"To be perfectly blunt with you, what set this course of action off is quite unreasonable and ill-informed.
In relation to … [J], she, through her own admission set off on a course of deceit. Now, whether it was a scheme of deceit or a course of deceit it matters not, ladies and gentleman; it was deceit set upon by her own admissions, and that was to go on and last several months. It was only when she could no longer control the sale of my client's home that her true colours were actually shown. She tried to blackmail him using the videotape. My client's evidence is that he felt he was being blackmailed. To go to a motel room or a hospital or wherever it actually occurred and say, 'Here's a video. If you don't hand yourself into the police, I'm going to give it to them', is it anything other than blackmail? She produced a will and got my client to sign it while he was in an extremely vulnerable state of mind.
You've got to remember at the particular point in time my client is in Fremantle Hospital. He'd been admitted there because of the state of mind he was in. He has very little recollection, although he does say he did sign a will. He says he remembers writing it. To that end, he says the will is his. But you'd have to wonder what makes a person just buy a will and put it in front of somebody and tell them to make it out. She hugged him in court. There's evidence that she says she hugged him in court when she saw him one time. She's a party to a civil suit against her father. She says that her father gave her a suicide note at Rockingham motel but no note has been produced. You'd have to wonder about that, ladies and gentlemen, given that at the particular time … [J and CL] were in very, very close contact with the police. For her, the best solution was for my client to commit suicide; a very drastic solution, I put to you, ladies and gentlemen.
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- As I said earlier, she misled my client in relation to the selling of the house and she also recruited … [M] in this deceit. At page 325 of the transcript it was stated, 'And was … [M] a party to this misleading of my client?' The answer given by … [J] was, 'Yeah, … [M] knew what was going on.' … [M], on the other hand, denies that she was involved in any scheme of deceit with … [J]. However, it was put to her that she was involved in a course of deceit."
51 In dealing with the evidence of CL, the then counsel for the appellant said the following (transcript 33):
"[H]e set off on a course of conduct which started on 17 April and in my submission, ladies and gentlemen, was still going strong on at least 3 May. All the emotions rage, irrationality, they're all going through his mind. I mean, you've got to wonder what sort of person would ring somebody up and tell them that their daughter had taken an overdose and then follow it up with another call to say that she was dead. [CL] … can't remember whether he made one or two phone calls. Actually, they weren't phone calls, they were messages. But you'd have to wonder what sort of person does something like that."
52 The then counsel for the appellant also said that CL had not been in a rational state of mind and that "pulling stunts that he did, including the overdose, does him no credit whatsoever … ".
The "masturbation" issue
53 Immediately prior to the trial Judge's address to the jury, the then counsel for the appellant raised with the trial Judge the fact that J had referred to "masturbation" by the appellant on the videotape. He made the submission that (transcript 790), "given that the jury may have an inkling of the rest of the material on the tape, that it simply goes through to the keeper … ". The trial Judge said that that was his inclination also.
The trial Judge's address to the jury
54 I will set out those aspects of the trial Judge's address to the jury that are relevant to the appeal.
Complaint by the complainant
55 He addressed the issue of complaint at some length. He explained to the jury (transcript 808) that, in sexual matters, evidence can be given to
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- the effect that, soon after the commission of the offence, the victim made complaint to some other person. He said that, in this case, the complainant had not complained to her mother or anyone else until the issue was raised with her by her parents. He went on to say that the fact that a complaint was made does not serve to prove that the thing complained of did in fact occur. He said that the complainant's complaint had not been spontaneous. He went on to say (transcript 808 - 810):
"In matters involving sexual offences, the fact that someone complains of having been sexually offended against is said to demonstrate consistency on their part; consistency of conduct on the part of the person making the complaint. You are … allowed to hear somebody has complained because it's said to be consistent. You would expect somebody who had been sexually penetrated without their consent, for example, to complain to someone immediately afterwards that that's what had happened, that's why you hear evidence of this nature.
Evidence of complaint by somebody who's the victim of an offence – in this case a child so consent has no role to play, as I say – evidence of complaint may be used to bolster or to support the credibility of that person. In this case there is no evidence of what we lawyers call fresh or early complaint; in other words, there's no spontaneous complaint to somebody, a passer-by or a parent or somebody in authority that something has happened. In fact, in this case it wasn't spontaneous, as I have pointed out.
There is, as I say, no fresh or early complaint in the sense that because what had apparently been said to the child about … not telling others about what had happened, at least that's what's alleged by the prosecution, it's a matter for you to decide whether … [the complainant's] complaint to her mother in response to her mother's inquiries and assurances given by her mother does in the circumstances of this case serve to bolster or support her credibility.
The law requires that I tell you that where evidence is given or a question is asked of a witness which tends to suggest an absence of complaint by her that I should tell you that the absence of complaint by her or delay in complaining does not necessarily indicate that the allegations that the offences were committed are false, and I should point out to you that there may be good
- reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence.
In this case … [the complainant] was asked in the course of her evidence whether when she got home from … [the appellant's] house she told anyone about what had happened. She said that she didn't and explained that she didn't want to. The evidence given by … [J] and … [CL] about what the child said to them about … [the appellant] going to gaol may serve to explain why she did not say anything to anyone when she came home. It may indicate that she was protecting someone that was very close to her and that she regarded very highly.
When she was relieved of the burden of having to protect him it would seem that she felt free to tell about what had happened. What she said, according to … [J], about what had happened to her cannot be used by you as evidence that the things complained of actually did in fact occur. The proof of those acts is to be found in the evidence of … [the complainant] herself.
It is a matter for you to decide whether you accept her evidence and as to whether you are satisfied to the requisite standard, as I have explained it to you. The evidence of what she said to her mother in the bedroom, if you accept that it was said, may only be used to bolster or support … [the complainant's] credibility if you find that in all of the circumstances of this case it does have that effect. If you find that it doesn't support or bolster her credibility, then you can put … that evidence to one side because it doesn't have any independent probative force in terms of proving that the events complained of to her mother did in fact occur. The proof of the events complained of in the indictment is to be found if you are satisfied by it in the evidence of … [the complainant] herself."
The videotape
56 When he came to deal with the videotape, the trial Judge told the jury that what they had seen was an excerpt from the original videotape (transcript 816). He also reminded the jury that the then counsel for the appellant had told them that the recording was not an original recording
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- and that the appellant had said that he had recorded more than what had been seen by the jury.
J's knowledge of what had been done
57 The trial Judge reminded the jury, also, of J's evidence to the effect that she and CL had known what the appellant had done. He mentioned that he had earlier told the jury that what J had meant was that she emphatically believed that something untoward had happened to the child. He went on to say (transcript 823):
"So when she said she knew what he had done it was a statement of her belief because she wasn't in a situation of being able to know without [sic] absolute certainty[.] [S]he was relying upon what was said to her both by … [the appellant] and the child."
The trial Judge's redirection
58 After the trial Judge had finished his summing up, the prosecutor asked him to redirect the jury in respect of the issue of complaint. The prosecutor suggested that, while the complainant's credibility should not have been adversely affected by the failure spontaneously and immediately to make a complaint, it was not appropriate for the jury to be told that the evidence concerning the making of a complaint bolstered her credibility.
59 The then counsel for the appellant told the trial Judge that he had no complaint concerning the direction, or as regards any other direction given by the trial Judge, but said that if the trial Judge wished to give a redirection, he would "leave it at that".
60 The trial Judge then gave the following redirection (transcript 844 - 845):
"Finally, with respect to [the] question of fresh or early complaint. You will recall that I said that there was a category of evidence called fresh or early complaint that was particular to sexual assault charges. It's evidence that you hear in relation to sexual assault charges because it's said to demonstrate consistency of conduct. I said that it is said to be consistent if a person who has been sexually assaulted or dealt with complains shortly after … being sexually assaulted or dealt with. It's said that consistency of conduct is said to … bolster or support the
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- credibility of the person even though the fact that somebody complained about something isn't evidence that it in fact occurred.
Now, on reflection and having discussed the matter with counsel, this is a case where what was said, as I said to you, by … [the complainant] was not spontaneous. It appears that she wouldn't have said anything at all had it not been for the fact that her parents prevailed upon her to say something. She was reassured by her mother about – that it was okay to say these things because she thought that if she said these things according to her then certain things would happen to … [the appellant].
Now, in that sense there's no fresh or early complaint and on reflection the evidence doesn't fall into that category so it can't be used as I suggest it might be by you to bolster or support her credibility. Her credibility is to be judged by you by reference to what you saw on the tape, by her demeanour, by her consistency of what she said and other things but the fact that she made complaint to her parents which was not spontaneous which was made only when her parents questioned her, on reflection is not evidence of the things complained of and cannot be used in the circumstances of this case to support her credibility.
In fact, so far as her credibility is concerned, it's simply neutral, I would have thought."
61 At that point, the trial Judge was asked by the prosecutor to correct his comment that the evidence was "neutral" and to inform the jury, instead, that it was a matter for them to decide whether or not it adversely affected the complainant's credibility. The trial Judge then said the following to the jury (transcript 845 - 846):
"Yes, as matter of law it's neutral because I'm actually retracting what I said to you earlier to the effect that it may be used by you to bolster and support her credibility. I mean, her overall credibility is a matter for you to judge and that in doing so you have regard to everything that she said and her demeanour and you compare what she said, it's internal consistency and it's consistency with what others have said. All of those factors impinge upon a person's credibility.
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- But for reasons which I have just outlined you may not use the evidence of what otherwise might be fresh or early complaint to bolster or support her credibility".
Grounds of appeal
62 There are four grounds of appeal. They read as follows:
"1. The learned trial Judge erred in law in:
a. permitting hearsay evidence to be given by … [J] on the basis that it was 'recent complaint' evidence when it was not;
b. permitting hearsay evidence to be given by … [CL] on the basis that it was 'recent complaint' evidence when it was not; and
c. misdirecting the jury as to the use that could be made of that evidence.
2. There was a miscarriage of justice by admitting the evidence of Constable Williams and Senior Constable Miller regarding admissions by the Applicant in contravention of Section 570D of the Criminal Code.
3. The learned trial judge erred in law in permitting … [J] to give:
a. opinion evidence that the Applicant was guilty;
b. hearsay evidence;
c. inadmissible evidence regarding the contents of a video tape;
d. inadmissible evidence concerning the Applicant's mental state; and
e. inadmissible evidence concerning a purported suicide note made by the Applicant.
4. There was a miscarriage of justice in the failure to delete evidence of an uncharged act from the pre-recorded evidence of the complainant."
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Grounds 1 and 3(a)
63 I propose to deal, first, with grounds 1 and 3(a).
64 There is no issue, in this case, as regards the proposition that this was not a case in which the evidence of J and CL concerning what had been said to them by the complainant was admissible solely upon the ground that it was a "recent complaint" by her of sexual offences committed against her. This was conceded by counsel for the respondent upon the ground that the complaint was not made voluntarily because it was adduced by "inducing" questions of her: R v Osborne [1905] 1 KB 551 at 556, 561 per Ridley J; but cfR v McNeill [1907] VLR 265 at 268 - 269; R v Norcott [1917] 1 KB 347 at 351 and R v Freeman [1980] VR 1 at 4 - 5.
65 Evidence concerning a complaint, when admissible, is not admissible as evidence of the facts in issue but ordinarily only because it demonstrates consistency with the conduct alleged against the accused and therefore tends to buttress the complainant's credit as a witness: Freeman at 5; Kilby v The Queen (1973) 129 CLR 460 at 472 and Suresh v The Queen (1998) 72 ALJR 769 at [4] per Gaudron and Gummow JJ. However, evidence of that kind might be relevant upon some other basis as, indeed, it was said to be in this case, after the then counsel for the appellant had, somewhat belatedly, objected to its hearsay character. I have mentioned that, in response to the objection, the prosecutor said that the evidence was led as complaint evidence and also in order to explain what J did next.
66 There is, in this respect, no doubt that J's state of mind, and that of CL, was relevant and, in order to understand their conduct, the jury needed to know what had induced that state of mind. I have mentioned that, in advance of the trial, the then counsel for the appellant had informed the prosecutor that the defence would be that J had induced the complainant to fabricate allegations against the appellant because she wanted his money. I have also mentioned that there had also been suggestions of "unconscionable conduct" by J in relation to the appellant's will. At the trial, the then counsel for the appellant sought to rely upon the evidence given by J concerning her request to her father to make a will and also upon her evidence to the effect that she had told the appellant that, if he handed himself in, she would not deliver the videotape to the police. As will be apparent, he relied also on the "course of deceit" to which she had admitted concerning the sale of the appellant's home and suggested that she had been party to the manufacture of incriminating
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- evidence in the form of the videotape, with which, he said, J had tried to "blackmail" the appellant.
67 The then counsel for the appellant also relied upon the anger which CL had experienced, upon his conduct on the night of 17 April 2003 and upon his conduct in telling the appellant, untruthfully, that J had taken an overdose of drugs and had died in hospital. I have also mentioned that he relied upon the fact that J and CL had been responsible for initiating the civil action that had been commenced against the appellant. All of these things were said to reflect adversely on CL's credit. I have mentioned that CL, too, was suggested to have been a party to the manufacture of evidence against the appellant.
68 In these circumstances, the evidence of J and CL concerning their state of mind at material times was plainly relevant. It also seems to me that the evidence of what J had been told by the complainant, and what she had told CL, was also relevant in order to explain why they had the state of mind described by them. For similar reasons, it seems to me that the evidence of J and CL as regards their belief of what had been said by the complainant was also relevant.
69 However, counsel for the appellant contended that, if all of this evidence was relevant, it should nonetheless have been excluded upon the basis that its probative value was exceeded by its prejudicial effect: Driscoll v The Queen (1977) 137 CLR 517 at 541 per Gibbs J and R v Swaffield (1998) 192 CLR 159 at [54] per Toohey, Gaudron and Gummow JJ.
70 As to the evidence of complaint by the complainant, it seems to me, as I have said, that this evidence was relevant, and thereby probative, because it explained the state of mind of each of J and CL. Without that explanation their subsequent conduct might have been taken by the jury to reflect badly on their characters and, hence, on their credibility in circumstances in which their credibility was under direct challenge by the appellant. It also seems to me that, in circumstances in which the trial Judge made it plain to the jury that the evidence of complaint could not be used as evidence of the truth of what was said by the complainant, and in which the jury was also told that that evidence could not be used to bolster or support the complainant's credibility, the prejudicial value of the evidence was outweighed by its probative value.
71 The evidence of each of J and CL to the effect that they believed what had been said by the complainant (which evidence was given on a
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- number of occasions and in different ways), was undoubtedly prejudicial to the appellant, given that J was the appellant's daughter and that there had been evidence which established that CL had previously had a good relationship with the appellant. Also, as will be apparent, that evidence was graphically given. However, the evidence of belief, was, as I have said, undoubtedly relevant in explaining J and CL's subsequent conduct for the reasons which I have already given in referring to their evidence concerning what had been said to them by the complainant. It is also important to bear in mind that only two objections were made in respect of all of this evidence. The first, as I have said, was as regards the hearsay nature of the evidence of what had been said by the complainant. The second related to J's evidence that she "knew", rather than believed what the appellant had done. There was otherwise no objection to the evidence of J and CL concerning the opinion that they had formed or their state of mind as a consequence of it. Instead, as I have said, each was cross-examined on their evidence in that respect, seemingly for the tactical purpose of establishing that each of them had subsequently had a motive to fabricate evidence against the appellant, in particular by adding incriminating material to the videotape.
72 In Suresh, at [23], McHugh J said:
"The appellant wanted the evidence of the complaint to be admitted because its admission was perceived as giving the appellant a better chance of acquittal than if the tender of the evidence had been rejected. The admission of the complainant's statement to her school friends therefore did not deny the accused a fair trial or result in a miscarriage of justice. On the contrary, by not objecting to the admission of the statement and then using it to support the defence theory of the case, the appellant exercised his right to a fair trial. It would undermine the system of adversarial criminal justice if the admission of technically inadmissible evidence, not objected to for rational forensic reasons, could result in the quashing of a conviction because the forensic tactics had failed to bring about the accused's acquittal."
- In the same case at [54], Kirby J said:
"What is to be done when retrospect suggests that a trial strategy was seriously misguided, may have inflamed a jury but was consciously determined? Given the adversarial nature of our legal system, it is ordinarily necessary to hold a litigant to
- the way in which the case is presented by that litigant's legal representatives. This is true of criminal as well as of civil litigation (R v Birks (1990) 19 NSWLR 677 at 684; R v Miletic [1997] 1 VR 594 at 598)."
73 In this case, as I have said, the evidence now complained of seems deliberately to have been allowed without objection, and to have been cross-examined on, for tactical reasons. The fact that that tactic did not work is no basis, now, for suggesting that the evidence should have been ruled to be inadmissible.
74 Counsel for the appellant sought to draw some assistance, in this last respect, from the fact that the appellant's counsel at trial was relatively inexperienced. Kirby J touched upon this issue in Suresh, at [54]. He said that, because serious mistakes can sometimes arise from incompetence, ignorance or inexperience, courts of criminal appeal have developed rules to safeguard accused persons from the risk of miscarriage where serious default on the part of legal representation is shown. However, he went on to say:
" … [T]his does not mean that every tactical decision, considered with hindsight to have been misjudged, opens the door to a ground of challenge to the jury's verdict. Such a rule would be intolerable and unworkable. It would seriously undermine the finality of litigation which is important in criminal as it is in civil trials."
- Kirby J also said, at [56]:
"The object of the foregoing approach is not to punish an accused for an erroneous tactical decision made by that person's legal representative. It is to put an end to what would otherwise be an infinite regression of argument which would be destructive of finality of trials and of certainty in the administration of justice. It is not to hold the accused rigidly to rules of a game which ordinarily must be played by others over whom, as courts recognise, effective control by the accused is often more theoretical than real. It is to accept the realities within which a criminal trial takes place, reserving complaints about alleged miscarriages of justice arising from the conduct of the trial by a party's legal representatives to really serious cases of incompetence, ignorance and inexperience."
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75 I am not persuaded that this is the kind of case in which a court would be justified in interfering, merely as a result of the inexperience of trial counsel. The case against the appellant was very strong. The videotape was important evidence against him. Given that he denied making the relevant portions of the videotape, it is difficult to see what other defence he could raise then that he had been "set up" by one or other of J, CL and M. The decision to allow, and even to expand upon, evidence of the anger of J and CL arising out of what they had heard was not unreasonable.
76 That leaves the trial Judge's direction concerning the complaint evidence. As will be apparent, he explained why evidence of recent complaint was admissible in a case of this kind, but then went on to say that this was not such a case because it had not been spontaneous. However, both before and after giving the direction required by s 36BD of the Evidence Act 1906 (WA), he told the jury that it was a matter for them to decide whether the complainant's complaint to her mother served, in the circumstances of the case "to bolster or support her credibility". As will also be apparent, it was only after the trial Judge had been corrected by the prosecutor that he informed the jury that, because the complaint had not been spontaneous, it could not be used by the jury to bolster or support the complainant's credibility.
77 While these directions were, with respect, initially confusing and erroneous, it seems to me that they were sufficiently corrected and that the jury was left with the understanding that the evidence could not be used for the impermissible purpose of bolstering the complainant's credibility.
78 Finally, I should mention that counsel for the appellant also contended that the redirection fell short of what was required because it left the jury with the idea that the evidence of complaint showed consistency in the evidence of the complainant. However, as I read what was said by the trial Judge in the course of his redirection (transcript 844 - 845, the relevant part of which has been extracted above), he made it plain, especially in the first three paragraphs of the extract, that the evidence of complaint did not fall within the category of "fresh or early" complaint (he had told the jury this in his original directions – see transcript 808 - 809, the relevant part of which has also been extracted above). While he mentioned that the complainant's credibility was to be assessed by reference (amongst other things) to the consistency of what she said, this was plainly a reference to the consistency of her oral evidence. Similarly, when heard in context, the later reference to consistency with what others had said must have been understood to have
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- related to matters other than what was said by J and CL concerning the complaint.
79 Grounds 1 and 3 (a) have consequently not been made out.
Ground 3(b)
80 Ground 3(b) does not particularise what is the hearsay evidence to which it refers. However, five instances were complained of by counsel for the appellant in the course of his submissions.
81 The first of these relates to evidence which had been given by J of her discussions with a doctor regarding the disclosure which had been made by the appellant to her, and of what had subsequently transpired. The doctor was the family's doctor and, after the initial discussion between J and the appellant on 17 April 2003, J had told him "about what happened" (transcript 237). The doctor told J that he wanted to speak to the appellant. J then told her father that the doctor wanted to talk to him about tests that he had had in respect of his heart. This evidence was led in order to explain why it was that J and CL had gone to see the appellant that evening. She said that she had been concerned at his mental state following his meeting with the doctor. None of this evidence was objected to.
82 J also gave evidence that, when she and CL went to speak to the appellant that evening, the appellant had told them that the doctor had said that the police would probably have to be called. While that evidence was objected to as being hearsay, I am not at all persuaded that it gave rise to any prejudice given that, immediately after mentioning this, J said, in the course of her evidence, that the appellant had also said that the complainant "was very convincing and that he was worried that an innocent man may have to go to gaol and that … he loved the kids and he would never touch them … ".
83 The second instance in respect of which complaint is made relates to evidence of the discussion between J and CL in between each of their conversations with the complainant on 17 April 2003. The only evidence in that respect was evidence to the effect that CL had told J that she needed to go and speak to the complainant and evidence from J that she had asked CL how she should open up the conversation (to which, she said, he had responded by saying that she should not worry about it and that she would work it out when she got "up there"). There was no objection to any of this evidence and, in my opinion, no prejudice followed from its admission.
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84 The third instance related to evidence from J that she believed that the appellant had spent two nights on remand in prison. This evidence appears to have been given in order to explain the sequence of events. However, the following exchange then occurred in the course of J's evidence-in-chief:
"Had you had anything to do with that?---Partly, yes.
In what way?---Part of a condition of the bail was that my father's passport had to be surrendered and I'd actually had a conversation that I actually thought it was safer for him to stay in gaol at that point in time.
Who did you have the conversation with?---With … [the solicitor for the appellant] and my father."
- As I have earlier mentioned, she went on to say, when asked why she thought it was safe for the appellant to stay in gaol, that this was because she and CL "knew" what he had done "and the situation was very volatile". I have previously mentioned that there was no objection to any of this evidence other than as regards the use of the word "knew". That is hardly surprising, given the nature of the defence as I have outlined it, particularly in so far as it focussed upon the antagonism which had been shown towards the appellant by CL.
85 The fourth incident relates to the evidence that one of the appellant's bail conditions had been that he was required to surrender his passport. While it was unnecessary for that evidence to be given, the context in which that evidence was adduced seems to me to have resulted in little or no prejudice and, again, there was no objection to it.
86 The last of the incidents complained of relates to the evidence that was given by J to the effect that, after dropping her father off at the "Clipper Inn" hotel, she had telephoned a friend in Perth. She said, in the course of her evidence (transcript 273) that, even though her friend "didn't know what was happening at that stage", he had said that he would come down to Rockingham because she was "really upset". Once again, given the nature of the defence that was being advanced, and the absence of any objection to this evidence, there was no reason why it should have been excluded.
87 Ground 3(b) has consequently not been made out.
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Ground 3(c)
88 I have mentioned that evidence was given by J concerning the contents of the videotape, in the course of which she mentioned that the children had been dancing and that there was a picture of the complainant's "fanny". When asked what sort of picture that was, she responded by saying that she did not believe that the picture had been "appropriate". This evidence is said to have been inadmissible. However, there was never any dispute as regards the proposition that the recording was inappropriate. Indeed, no other categorisation of it could have been made. Given that fact, the fact that the appellant disputed making the videotape and the fact that there was no objection to this evidence, I am not persuaded that any prejudice resulted from its admission.
89 Evidence was also led from each of J and M to the effect that the viewing of the videotape had made her feel ill (M had said that it had made her vomit, see transcript 376). Counsel for the appellant contended that this evidence, too, was inadmissible and that M's reaction may have been influenced by the fact that part of the videotape (not shown to the jury) had depicted the appellant masturbating while watching a pornographic movie on a television screen. Once again, none of this evidence was objected to. Moreover, it was open to the jury to form their own impression of the contents of the videotape, which was tendered as an exhibit at the trial. In those circumstances, I am not persuaded that the admission of J and M's evidence in that respect gave rise to any miscarriage.
90 Next, counsel for the appellant submits that the evidence that the appellant had been masturbating on the videotape (evidence which, as I have said, emerged unexpectedly) was so prejudicial as to have justified the immediate aborting of the trial. Counsel for the appellant also complains of the fact that no direction was given to the jury to disregard that evidence at the time that it was given. The suggestion was made that the trial Judge had reinforced the inadmissible evidence by telling the jury, in the course of his summing up, that the tape that they had seen was an "excerpt". Counsel for the appellant also complained of the fact that, when the appellant was cross-examined, he was asked whether or not he had made a video for a girlfriend in Thailand. He said that he had. He was then asked whether or not it contained sexual material and responded by saying that it did (transcript 731).
91 When the evidence concerning the masturbation emerged, the then counsel for the appellant did not ask that any direction be given in respect
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- of it. He said nothing at all about that evidence. When the appellant was cross-examined with respect to the making of a video for his Thai girlfriend, his only objection was one to the effect that a distinction should be drawn between the material that was to be sent to the girlfriend and that which related to the children. Evidence was then led from the appellant, in the course of cross-examination, to the effect that the videotape had contained other sexual material involving him.
92 When the time came for the trial Judge to make his summing up to the jury, the then counsel for the appellant reminded him that he had been asked to consider the fact that the word "masturbation" had "slipped out" during the evidence of J. I have mentioned that he urged the trial Judge to allow this evidence to go "through to the keeper", given that the jury might have "an inkling of the rest of the material on the tape" (presumably a reference to the fact that the masturbation had occurred while the appellant was watching pornographic images on a video, rather than while watching the children). He said that any further reference to that evidence would merely highlight it.
93 In circumstances in which, in the atmosphere of the trial, the then counsel for the appellant neither sought that the trial be aborted nor that any direction be given to the jury in respect of this evidence, and in which the tape is said to have been used to "blackmail" the appellant, it seems to me that it is now too late to suggest either that the trial should have been aborted on that account or that the trial Judge erred in the course of his summing up to the jury by failing to deal with the issue. This is not a case in which there has been incompetence or inexperience on the part of counsel for the appellant sufficient to result in a miscarriage.
94 Ground 3(c) has consequently not been made out.
Ground 3(d) and (e)
95 Ground 3(d) complains of evidence which was led from J to the effect that, after she had picked up her father from gaol, she thought that he was "a bit psychotic", that she had telephoned the Fremantle Hospital and that she had been advised to bring the appellant to the hospital. The appellant also complains, by that ground, of evidence led from J to the effect that the appellant stayed overnight at the hospital and that she had thought that he was very depressed and quite suicidal. All of this evidence is said to have been inadmissible and prejudicial.
96 Ground 3(e) refers to the evidence of the suicide note said to have been given to J by the appellant and also to her evidence that she had then
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- believed that it was "the right thing" for the appellant to kill himself. This evidence, too, is said to have been inadmissible and prejudicial.
97 None of this evidence was objected to. J's evidence concerning the admission of the appellant to Fremantle Hospital and his mental state at the time, was given partly in order to explain why it was that she had asked him to prepare a will, bearing in mind that the appellant had previously suggested, in pre-trial correspondence, that she had fabricated evidence against the appellant for financial motives. The evidence complained of by ground 3(e) (to which, again, no objection was made) was, as I have said, specifically relied upon by the then counsel for the appellant in his closing address to the jury.
98 These grounds, too, have consequently not been made out.
Ground 2
99 I have said that ground 2 challenges the admission of the evidence of Constable Williams and Senior Constable Miller regarding admissions made by the appellant on the night of 17 April 2003. The appellant relies upon s 570D of the Criminal Code (WA) which relevantly reads as follows:
"570D. Accused’s admissions in serious cases inadmissible unless videotaped
(1) In this section –
'admission' means an admission made by a suspect to a member of the Police Force or an officer of the Corruption and Crime Commission, whether the admission is by spoken words or by acts or otherwise;
'serious offence' means an indictable offence of such a nature that, if a person over the age of 18 years is charged with it, it can not be dealt with summarily and in the case of a person under the age of 18 years includes any indictable offence for which the person has been detained.
(2) On the trial of an accused person for a serious offence, evidence of any admission by the accused person shall not be admissible unless –
(a) the evidence is a videotape on which is a recording of the admission; or
- (b) the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for there not being a recording on videotape of the admission; or
(c) the court is satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence.
- (3) Subsection (2) does not apply to an admission by an accused person made before there were reasonable grounds to suspect that he or she had committed the offence.
(4) For the purposes of subsection (2), 'reasonable excuse' includes the following –
(a) The admission was made when it was not practicable to videotape it.
… "
101 The difficulty with this submission is that it was made, for the first time, in the appeal. I have mentioned that Senior Constable Miller said in evidence that he had not known of the allegations against the appellant and that, as soon as the appellant began to expand upon them, he had told the appellant not to say any more. It is true, as counsel for the appellant points out, that Constable Williams, who did know of the allegations, did nothing to stop the appellant from asking the questions which had led to the making of the admissions. However, there were only two such questions and Constable Williams was never asked why it was that she did not object, at least, to the second of the questions asked, and, hence, whether there was a reasonable excuse for not videotaping the conversation or whether there were exceptional circumstances, as to which see T (a child) v The Queen (1998) 20 WAR 130 at 140 per Ipp J
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- and cf Ahmad v The Queen [2002] WASCA 70 at [29] per Wallwork J and Stapleton v The Queen (2002) 136 A Crim 6 R 65 at [28] - [29].
102 In the course of his written submissions, counsel for the appellant raised a number of subsidiary matters, notwithstanding that none of these was covered by any ground of appeal.
103 He said that the fact that CL was not charged for the offences arising out of his conduct on 17 April 2003 would have given the impression to the jury that he was justified in his actions and that the police tacitly condoned what he did. It is enough to say, in this respect, that there was no evidence whether CL was or was not charged in respect of the offences. In any event, as I have said, CL's conduct was relied upon by the defence as establishing an irrational and vengeful state of mind.
104 Mention was also made of the fact that the notes taken by Constable Williams were never shown to the appellant, that he was not asked to sign or adopt them, and that no caution was administered to him. Once again, none of these matters was raised at, or prior to, the trial. In the circumstances as they were recounted by Senior Constable Miller, there was no need for the notes to be shown to the appellant or to administer any formal caution to him. Moreover, the accuracy of the notes was not disputed.
105 Finally, counsel for the appellant suggested that, because the trial Judge told the jury of the process whereby police officers interview prospective witnesses, and then have their statements typed, immediately before referring to the conversation between the appellant and the two police officers, the jury might have wrongly concluded that evidence given by police officers from notes of conversations is a usual practice. In my opinion, nothing turns on this, even if it can be said that this is not a usual practice. As I have said, the accuracy of the notes was not in question. Moreover, Senior Constable Williams did not rely upon the notes in giving his evidence.
106 Ground 2 has consequently not been made out.
Ground 4
107 The evidence at the trial established that the complainant was interviewed by a police officer on three occasions during April and May 2003. The questions asked, and the answers given, were recorded in handwriting and later typed.
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108 I have said that the complainant's evidence was pre-recorded on 4 June 2004. At that time, the indictment against the appellant (dated 27 October 2003) contained 11 counts. These included two counts of penile/anal penetration (counts 1 and 7) alleged to have occurred on different dates. The complainant's evidence covered only eight of the 11 counts charged. She gave no evidence concerning count 1 and said, in respect of count 7, that the penetration had hurt.
109 When the complainant was cross-examined, defence counsel sought to establish the existence of a prior inconsistent statement in that one of the records of interview recorded her as saying that an act of anal penetration "didn't hurt". In fact, there was no prior inconsistent statement because the complainant had been referring, in the written statement, to count 1 and not to count 7. However, neither defence counsel nor the prosecutor appreciated that at the time of the cross-examination.
110 On 28 July 2004, a new indictment was lodged, containing only the current eight counts. The charge that had been count 1 under the original indictment was not included in the new indictment. There consequently remained only one charge of penile/anal penetration, being that charged in count 7.
111 The police officer who had interviewed the complainant, Constable Leisa Reynolds, was called as a witness by the prosecutor. It was put to her, in the course of cross-examination, that the complainant had told her, in effect, that the incident of anal/penile penetration had not hurt. She responded by saying that that was correct (transcript 505).
112 When the prosecutor came to re-examine Constable Reynolds, there was some debate concerning this issue. The error under which the parties had been labouring at the time of the evidence given by the complainant was drawn by the prosecutor to the trial Judge's attention and to the attention of the then counsel for the appellant (who had not represented the appellant at the time of the cross-examination of the complainant). The prosecutor sought leave to adduce additional evidence from Constable Reynolds to show that, when the complainant had said that the anal penetration had not hurt, she was referring to a different occasion than that charged in the new indictment. The trial Judge ruled that, because the uncharged offence had not, at any time during the trial, been part of the State case against the appellant, the dictates of fairness required that the proposed re-examination not be permitted.
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113 The trial Judge addressed the issue during the course of his summing up to the jury. He mentioned that the complainant had been cross-examined about the statement that she had made to a police officer in May 2003 and that it had been put to her that she had said, in that statement, that, when the appellant had put his "willie" in her "bum", it didn't hurt. He went on to say that the jury might recall that her oral evidence as to anal penetration was that it had hurt. He then said (transcript 814):
"For reasons which I will not now go into the evidence given by the police officer as to what … [the complainant] said, to the effect that the insertion of a willie into her bum didn't hurt, should be disregarded by you.
Her evidence is the evidence in the prerecording. She complained that the event referred to in count 7 did hurt. She should not be regarded as having said anything to the contrary. It’s a matter for you to decide whether the act complained of did in fact occur. The suggestion that she had said in a previous statement that it did not hurt … should be disregarded by you entirely. It can of itself have no impact upon her credibility and is not evidence of what she felt at the time of the alleged penetration. Her evidence in that regard is what she said in the prerecording."
114 Counsel for the appellant contends that, arising out of all of this, there was a real possibility that the jury would have concluded that there must have been another occasion upon which penile/anal penetration occurred. I am not at all persuaded that this is so. There was no evidence of any other occasion of that kind and nothing that was said by the trial Judge would have led to the drawing of any such inference. All that the jury was told, in effect, was that the complainant's statement that the event had not hurt should be disregarded, was not evidence at the trial and could have no impact upon her credibility. Counsel for the appellant made no complaint as regards the trial Judge's direction in this respect.
115 Ground 4 has consequently not been made out.
Conclusion
116 I would dismiss the appeal
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117 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Steytler P. I agree with those reasons and have nothing to add.
118 MCLURE JA: I agree with Steytler P.
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