RJH v The State of Western Australia
[2012] WASCA 137
•6 JULY 2012
RJH -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 137
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 137 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:40/2012 | 1 JUNE 2012 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 6/07/12 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application for an extension of time to appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | RJH THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against conviction Sexual offences against children Substantial delay between the occurrence of the alleged offences and the appellant being informed of the complainants' complaints Longman warning Whether the trial judge's directions were adequate to ensure a fair trial |
Legislation: | Criminal Code (WA), s 329(2), s 329(4), s 329(5), s 329(9)(a), s 329(10)(a) |
Case References: | SPB v The State of Western Australia [2012] WASCA 136 Wimbridge v The State of Western Australia [2009] WASCA 196 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RJH -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 137 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : EATON DCJ
File No : IND 245 of 2010
Catchwords:
Criminal law - Appeal against conviction - Sexual offences against children - Substantial delay between the occurrence of the alleged offences and the appellant being informed of the complainants' complaints - Longman warning - Whether the trial judge's directions were adequate to ensure a fair trial
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Legislation:
Criminal Code (WA), s 329(2), s 329(4), s 329(5), s 329(9)(a), s 329(10)(a)
Result:
Application for an extension of time to appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : No appearance
Solicitors:
Appellant : David McKenzie Legal Pty Ltd
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
SPB v The State of Western Australia [2012] WASCA 136
Wimbridge v The State of Western Australia [2009] WASCA 196
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1 McLURE P: I agree with Buss JA.
2 BUSS JA: On 8 September 2010, the appellant was convicted, after a trial in the District Court before Eaton DCJ and a jury, on 17 counts in an indictment.
3 He has applied to this court for an extension of time to appeal, and leave to appeal, against conviction.
The application for an extension of time
4 The appellant was sentenced on 15 September 2010. The last date for appealing against conviction was 6 October 2010. He did not file his appeal notice until 28 February 2012. The appellant has filed affidavits sworn by his solicitor, David John McKenzie, in support of his application to extend time.
5 The principles applicable to the exercise of this court's discretion to extend time in these circumstances are set out in Wimbridge v The State of Western Australia [2009] WASCA 196.
The affidavits filed in support of the application
6 The appellant did not file his initiating process until more than 16 months after the last date for appealing.
7 Mr McKenzie deposes, in an affidavit sworn 27 February 2012, that:
(a) The appellant 'privately funded' an opinion from counsel as to whether there was any merit in his appealing against conviction or sentence. Counsel provided the opinion on 20 September 2010. The opinion was 'negative on both fronts'.
(b) The appellant was, subsequently, granted legal aid to obtain another opinion as to the merit of an appeal against conviction.
(c) On 2 February 2012, a different counsel instructed by Mr McKenzie pursuant to the grant of legal aid (namely, Mr Watters) advised that there was 'merit in an appeal against conviction'.
8 Mr McKenzie swore a further affidavit on 11 April 2012 in which he deposed, with greater particularity, as to the delay in filing the appeal notice. Mr McKenzie said that on 2 December 2010 he obtained a grant of legal aid on behalf of the appellant for the provision of a further
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- opinion as to whether there was merit in an appeal against conviction. However, Mr McKenzie did not instruct Mr Watters to provide this opinion until about mid-January 2012. The extraordinary delay was wholly attributable to Mr McKenzie's dilatoriness.
The counts in the indictment
9 The indictment alleged that the appellant had committed nine counts of sexual penetration of a child under the age of 16 years who he then knew to be his de facto child, contrary to s 329(2) read with s 329(9)(a) of the Criminal Code (WA) (the Code). These offences comprised counts 3, 4, 11, 12, 13, 14, 15, 16 and 17. The complainant was a girl, S.
10 The indictment also alleged that the appellant had committed three counts of indecent dealing with a child under the age of 16 years who he then knew to be his de facto child, contrary to s 329(4) read with s 329(10)(a) of the Code. These offences comprised counts 1, 2 and 5 and related to the girl, S.
11 The indictment also alleged that the appellant had committed three counts of procuring a child under the age of 13 years to do an indecent act, contrary to s 320(5) of the Code. These offences comprised counts 6, 7 and 9. The complainant was a boy, T.
12 The indictment also alleged that the appellant had committed two counts of procuring a child under the age of 16 years who he then knew to be his de facto child to do an indecent act, contrary to s 329(5) read with s 329(10)(a) of the Code. These offences comprised counts 8 and 10 and related to the girl, S.
13 Count 1 alleged that on a date unknown between 21 June 2001 and 22 June 2002, the appellant inserted his tongue into S's mouth.
14 Count 2 alleged that on a date unknown between 21 June 2001 and 23 June 2002, the appellant rubbed S's clitoris with his thumb.
15 Count 3 alleged that on the same date and at the same place as in count 2, the appellant penetrated S's vagina with his penis.
16 Count 4 alleged that on a date unknown between 21 June 2001 and 21 June 2003, the appellant rubbed S's clitoris with his fingers.
17 Count 5 alleged that on or about 28 August 2004, the appellant rubbed his penis against S's vagina.
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18 Count 6 alleged that on a date unknown between 19 May 2004 and 20 July 2005, the appellant procured T to expose his penis to another.
19 Count 7 alleged that on the same date and at the same place as in count 6, the appellant again procured T to expose his penis to another.
20 Count 8 alleged that on the same date and at the same place as in count 6, the appellant procured S to touch T's penis.
21 Count 9 alleged that on the same date and at the same place as in count 6, the appellant procured T to have S touch his penis.
22 Count 10 alleged that on the same date and at the same place as in count 6, the appellant procured S to expose her genitals to another.
23 Count 11 alleged that on a date unknown between 19 May 2004 and 21 June 2005, the appellant penetrated S's vagina with his finger.
24 Count 12 alleged that on a date unknown between 19 May 2004 and 21 June 2006, the appellant placed his penis into S's mouth.
25 Count 13 alleged that on the same date and at the same place as in count 12, the appellant again placed his penis into S's mouth.
26 Count 14 alleged that on a date unknown between 19 May 2004 and 21 June 2006, the appellant inserted his penis into S's vagina.
27 Count 15 alleged that on a date unknown between 19 May 2004 and 30 November 2006, the appellant penetrated S's vagina with his finger.
28 Count 16 alleged that on the same date and at the same place as in count 15, the appellant licked S's clitoris.
29 Count 17 alleged that on a date unknown between 19 May 2004 and 30 November 2006, the appellant placed his penis into S's mouth.
The age of the appellant and the complainants
30 The appellant was born in 1968. At the time of the offending he was aged between 33 and 38.
31 The complainant, S, was born in 1992. At the time of the offending against her, she was aged between 9 and 14.
32 The complainant, T, was born in 1993. At the time of the offending against him, he was aged between 10 and 12.
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The making of complaint
33 A complaint in relation to the offences alleged in the indictment was not made to police until 4 February 2008. The allegations were not brought to the appellant's attention until 4 September 2009.
The appellant's case at trial
34 The appellant gave sworn evidence at the trial.
35 He denied that any of the offending had occurred. He said that he had never engaged in any sexual activity with S or T.
The proposed ground of appeal
36 The proposed ground of appeal alleges that the trial judge erred by failing to give the jury 'an adequate Longman direction' in relation to each count in the indictment.
The appellant's submissions
37 Counsel for the appellant's written submissions reflected the particulars of the proposed ground of appeal, namely:
1.1 The learned trial Judge should have warned the jury of the actual prejudice suffered by the Appellant as a result of the passage of time since the events occurred and directed their attention to the specific difficulties and forensic disadvantage which arose as a result of the complainants' failure to complain for many years;
1.2 The learned trial Judge should have clearly warned the jury of the loss of chance the Appellant suffered to test the complainants' evidence;
1.3 The learned trial Judge should have warned the jury of the loss of chance to adequately marshal a defence suffered by the Appellant.
38 At the hearing, counsel for the appellant was invited to draw the court's attention to any particular forensic disadvantage suffered by the appellant as a result of the relevant delay.
39 Counsel referred to count 3, which alleged that the appellant had penetrated S's vagina with his penis. The State's case in relation to this count was as follows. On a date between 21 June 2001 and 23 June 2002 the appellant and the complainant were at home. The appellant kissed the complainant while she was sitting in the lounge room. Soon afterwards, he carried her to a bedroom. He placed her on a bed and removed her
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- clothing. The appellant then removed his clothing and lay on top of the complainant. He inserted part of his penis into the complainant's vagina. His penis slid out and after several unsuccessful attempts again to penetrate the complainant's vagina with his penis, the appellant lay on top of the complainant and rubbed his penis against her. Counsel argued that if the relevant delay had not occurred then 'clothing could have been tested, bedding could have been tested for her DNA or anything like that, the absence of which may have provided an argument in his favour' (appeal ts 3 - 4).
40 Counsel also said, in response to further questioning from the court, as to any particular forensic disadvantage suffered by the appellant as a result of the relevant delay:
Your Honours, in answer to the question about what other matters I don't think there are any other matters I can put forward other than … what I would perhaps loosely call DNA matters that I was going to seek to address with regard to the various counts. I probably don't need to take your Honours to those specifically. They are set out in the summing up with regard to where incidents occurred, that is, for example, rubbing on clothing, ejaculating in the mouth, things like that (appeal ts 6).
The trial judge's directions
41 The trial judge gave these directions to the jury in the course of his summing up:
Now, the State asks you to accept both of those two witnesses, [S] and [T] as witnesses of truth. [S's] evidence is the only evidence offered by the State as to all counts, with the exception of those which the prosecutor referred to as the [T] incident. It follows, with respect to those which rely upon her evidence alone, that you would need to be satisfied beyond reasonable doubt as to her truthfulness and accuracy before you could convict [the appellant] on any of those counts.
You should scrutinise [S's] evidence very carefully before doing so, if you are to do so. Please bear in mind that the matters complained of in the indictment are said to have occurred quite some years ago when the complainants were respectively in their teens. The passage of time may have affected their recollection of events, as sometimes happens.
An honest witness can be wrong in his or her recollection. No complaint, as I mentioned a few moments ago, was made to authorities or to anyone else at the time of these alleged events. There may be, as I've explained, good reasons for that.
Nevertheless, because complaint of these events was only made to police on 4 February 2008, and the matter was only brought to [the appellant's]
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- attention for the first time on 4 September 2009, about one year ago, it's likely to be the case that [the appellant] has lost opportunities to effectively investigate and test each complaint; opportunities which perhaps may have been available to him, had the complaints been made at the time or shortly after.
The effluxion of time may have impacted adversely upon his ability to defend these charges because both he and his witnesses have been asked to recall events from several years ago. Documents or photos - and there are some before you - but there may be documents or photos that may have existed at the time which might have been of some assistance to the defence, but are no longer in existence or obtainable.
It is for such reasons that you must take particular care when considering the evidence of the complainants [S and T] before arriving at any conclusion of guilt. You should, when considering their evidence, have regard to the matters that I've just mentioned to you, and scrutinise their evidence with great care. In a case such as this, it would be dangerous to convict without doing so; what's required is that you subject all the evidence of the two of them to careful and considered scrutiny.
That's because of the impact, as I've said, largely of the effluxion of time. I'm not suggesting that you can't convict on the evidence of either one or the other alone, clearly you can, but you need to be satisfied beyond reasonable doubt as to the truthfulness and accuracy of each of those two witnesses [S and T]. And that will require, as I say, that you scrutinise their evidence very carefully; as I say it could be dangerous to convict if you were not to do that - that is to scrutinise their evidence carefully (ts 674 - 675).
The Longman warning: applicable legal principles
42 Recently, in SPB v The State of Western Australia [2012] WASCA 136, I reviewed the circumstances in which a judge in a criminal trial is obliged to give a Longman warning to the jury, and the content of the warning. It is unnecessary to reproduce the review.
The merits of the proposed ground of appeal
43 The trial judge directed the jury, in essence, that:
(a) The matters alleged against the appellant in the counts in the indictment occurred some years previously.
(b) The passage of time may have affected the complainants' recollection of events.
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- (c) As a result of the long delay between the alleged offences and the complaint by S and T being brought to the appellant's attention, it is likely that the appellant has lost opportunities effectively to investigate and test each matter alleged in the counts in the indictment.
(d) These lost opportunities may have been available to the appellant had S and T made a prompt complaint.
(e) The relevant delay may have adversely affected the appellant's ability to defend the charges because he and his witnesses had been asked to recall events from several years previously.
(f) Also, as a result of the delay, photographs and other documents which may have existed at the time, and which might have been of some assistance to the defence, were no longer in existence or able to be obtained.
(g) By reason of these likely lost opportunities, the jury must take particular care when considering the evidence of S and T. The jury was required to subject their evidence to careful and considered scrutiny.
(h) Although the jury could convict the appellant solely on the evidence of one or other of the complainants, it would be dangerous to convict on that basis without subjecting all of the evidence of the complainants to careful and considered scrutiny.
(i) The jury could not convict the appellant on any count unless it was satisfied beyond reasonable doubt as to the truth and accuracy of the evidence of the complainant in question.
44 At trial, the appellant's experienced defence counsel did not request his Honour to give the jury a redirection or an additional direction.
45 In my opinion, the proposed ground of appeal has no reasonable prospect of success.
46 The trial judge gave directions as to the loss of a chance adequately to test the appellant's evidence and the loss of a chance adequately to marshal a defence. These directions were related or tailored adequately to the facts and circumstances of the case. The appellant gave evidence denying that any of the alleged offences had occurred. He did not give evidence of any particular forensic difficulty he had encountered.
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- Accordingly, the only prejudice reasonably to be presumed or inferred from the relevant delay was the prejudice identified by his Honour; namely, the diminished recollection of the appellant and his witnesses in relation to relevant events at the time; the loss of the chance more effectively to test the complainants' evidence; and the loss of the chance to obtain documents or photographs which might have been of some assistance in his defence.
47 Counsel for the appellant complained that, in some parts of his directions, the trial judge used the words 'may' and 'should' instead of 'must'. However, in my opinion, it is apparent, upon reading the relevant passages in the summing up as a whole, that his Honour gave the jury an emphatic warning.
48 His Honour referred, in substance, to the likelihood of the appellant having lost the opportunity adequately to test the complainants' evidence and the likelihood of the appellant having lost the chance adequately to organise his defence. These forensic disadvantages are actual notwithstanding that they involve the loss of a chance. This would have been readily apparent to the jury.
49 Further, his Honour's instructions that the jury:
(a) 'should' scrutinise the complainants' evidence 'with great care';
(b) was 'required' to 'subject all the evidence of the [complainants] to careful and considered scrutiny'; and
(c) would be 'require[d]' to 'scrutinise [the complainants'] evidence very carefully',
would have been understood, in context, as an imperative instruction to undertake that task. The relevant context included the giving of those instructions in conjunction with a statement that 'it would be dangerous to convict' if the jury convicted without scrutinising the complainants' evidence with great care.
50 Counsel for the appellant's argument to the effect that if the relevant delay had not occurred then the appellant would have had an opportunity to arrange for DNA testing to be carried out on 'bedding' and 'clothing', and on rinses or swabs that could have been obtained from S's mouth or vaginal area or the appellant's genitals, is misconceived. Any possibility of obtaining exculpatory evidence (that is, evidence of the absence of the appellant's DNA on S's clothing or in rinses or swabs taken from her, or
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- evidence of the absence of the complainant's DNA on the appellant's bedding or clothing or in swabs taken from him) would have been lost in the ordinary course (for example, by showering or washing) within a very short period (measured in hours or a few days). Counsel's argument raises a point that is unrelated to the occurrence of any material delay, let alone a substantial delay.
51 In my opinion, the Longman warning given by the trial judge was adequate to ensure a fair trial and to avoid any perceptible risk of a miscarriage of justice.
Conclusion
52 The proposed ground of appeal is unmeritorious. I would therefore refuse to grant an extension of time to appeal. The application should be dismissed.
53 MAZZA JA: I agree with Buss JA.
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