RKT v The State of Western Australia
[2017] WASCA 13
•20 JANUARY 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: RKT -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 13
CORAM: BUSS P
NEWNES JA
MAZZA JA
HEARD: 16 AUGUST 2016
DELIVERED : 20 JANUARY 2017
FILE NO/S: CACR 210 of 2015
BETWEEN: RKT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :LEVY DCJ
File No :IND 1616 of 2014
Catchwords:
Criminal law - Sexual offences against child under the age of 16 years - Appeal against conviction
Criminal law - Evidence - Hearsay - Where no rational forensic reason for defence counsel not to object - Whether evidence resulted in material prejudice - Whether prejudice cured by directions of trial judge
Legislation:
Criminal Appeals Act 2004 (WA), s 30(4)
Criminal Code (WA), s 329
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S Vandongen SC
Respondent: Mr J McGrath SC
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Blum v The State of Western Australia [No 2] [2012] WASCA 40
Hughes v The State of Western Australia [2015] WASCA 164; (2015) 299 FLR 197
Kometer v The State of Western Australia [2012] WASCA 220
R v Soma [2003] HCA 13; (2003) 212 CLR 299
Subramaniam v The Public Prosecutor [1956] 1 WLR 965
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302
BUSS P: I agree with Mazza JA.
NEWNES JA: I agree with Mazza JA.
MAZZA JA: This is an appeal against conviction.
The appellant was charged on indictment with three sexual offences against his daughter, A, in an incident which was alleged to have occurred on 11 March 2014 at their home in a suburb of Perth. A was 13 years old at the time of the alleged offences.
Counts 1 and 2 alleged that the appellant indecently dealt with A, a child under the age of 16 years, contrary to s 329(4) of the Criminal Code (WA) (the Criminal Code). Count 3 alleged that the appellant sexually penetrated A, a child under the age of 16 years, contrary to s 329(2) of the Criminal Code.
The appellant was tried before Stewart DCJ and a jury between 2 and 4 June 2015 (the first trial). However, the jury was discharged when it was unable to reach verdicts on any of the counts on the indictment. A retrial was ordered.
Prior to the retrial, a directions hearing was held on 14 October 2015 before Scott DCJ (the directions hearing).
The appellant's retrial before Levy DCJ and a jury took place between 19 and 21 October 2015 (the retrial). The appellant was found guilty on all three counts.
On 24 November 2015, Levy DCJ imposed a total effective sentence of 3 years' immediate imprisonment with eligibility for parole.
The appellant relies on one ground of appeal. The ground alleges a miscarriage of justice by reason of the admission at trial of inadmissible hearsay evidence given by A without objection from the appellant's counsel. Leave to appeal has been granted in respect of this ground.
Outline of the prosecution case
The prosecution case was as follows. The appellant is A's biological father. The appellant and A's mother separated and divorced when A was very young. A had primarily lived with the appellant since she was about three or four years of age (ts 208).
On the evening of 11 March 2014, A was living with her father in their home in a suburb of Perth. At about 9 pm, A retired for the night to her bedroom. A fell asleep on her double bed (ts 209).
Sometime during the night, the appellant entered A's bedroom and lay next to her on her bed. It was not unusual for the appellant to do this. A woke up and felt something wet touching her bottom. She rolled over and said to the appellant, 'What are you doing?' to which he replied something to the effect of, 'What? What are you on about?' A then realised that what she felt touching her was the appellant's penis.
A then pretended to go back to sleep. Sometime later, the appellant grabbed A's hand and placed it around his penis. He then began to thrust his penis into her hand (count 1). The appellant then put his hand over A's breast (count 2). The appellant then put his hand down the front of A's pants and stroked her clitoris (count 3) (ts 209).
A said that she got up and went to the toilet. While she was in the toilet, she noticed some wetness on her underwear which was not urine nor vaginal fluid. She returned to her bedroom and told the appellant that if he ever did 'that' to her again she would kill him. A spent the night sleeping on a couch in the living room. The appellant came into the room and asked A something along the lines of, 'What are you on about?' to which A said that she did not want to talk to the appellant, but wanted to talk to the appellant's sister whom she referred to as Aunt N. For convenience, I will refer to her in these reasons by that name. Aunt N lived nearby (ts 210)
A went to school the following morning. On her way, she disclosed to a friend what had happened. After school, A went to Aunt N's house and told her what had occurred the previous night. A described her interaction with Aunt N in the visually‑recorded interview of 4 April 2014 as follows:
… [I] went to my aunty's house and I told her about it and she kind of stood up and I got scared because I didn't know what she was going to do and she's like 'What the fuck? Are you serious? My brother? He wouldn't do that' and I started crying again and she was just like 'I'll go and talk to him'. So she was gone for like an hour … [when Aunt N returned] [she] took me out the front and she said that it was just a misunderstanding and that dad had a wet dream and I said, 'Yeah, okay, well that must have been it then' but in my head I was like 'No, that's not what a proper wet dream is', you know. Like you would know if you were doing that to someone (BAB 41). (emphasis added)
The italicised part of this extract is the impugned evidence the subject of the appeal.
A lived with the appellant for about a week after the alleged offences. She left to live with her mother after disclosing what had allegedly occurred (BAB 41 ‑ 43).
On 6 June 2014, the appellant was interviewed by Detective Senior Constable Edmonds. The appellant denied committing the offences. He admitted that he had slept in the same bed as A 'a hundred times in ten years' (BAB 118), mainly on the hottest nights because her bedroom had the best fan in the house (ts 211).
The appellant also said that the last time he slept in A's room was, 'I'd have to guess and say it would be that date that we're talking about'. He said that night he was pretty sure he was wearing 'jocks' (ts 211, BAB 138).
When asked by Detective Edmonds whether he could recall having a conversation with Aunt N about having a wet dream, the appellant said 'possibly' and that 'the last 10 weeks have been a … bit of a blur' (ts 212, BAB 133). The appellant later said in the interview that he would not have had a wet dream since he was 18 or 20 years of age (ts 212, BAB 144). The appellant did not admit that he told his sister that A's allegations were a misunderstanding or that he had a wet dream.
The prosecutor identified the real issue in the case to be whether the State could prove beyond reasonable doubt that 'what [A] says happened, happened' (ts 212). Proof of this element depended upon the uncorroborated evidence of A. A also referred to another occasion on which she said that the appellant watched her while she was taking a shower. This incident, which was not the subject of any charge, was adduced by the State as evidence that the appellant had a sexual interest in A. A's evidence at the retrial comprised two visually‑recorded interviews which took place on 4 April 2014 and 10 February 2015 and an audio‑visual recording of the evidence she gave at the first trial on 2 June 2015. Each of these recordings was edited. The edits were made in accordance with orders that were made by Levy DCJ on 19 October 2015 (ts 193). The evidence the subject of the appeal was not objected to and was not edited.
At the first trial, A confirmed the truth of both visually‑recorded interviews (ts 55, 63). In her examination‑in chief, she confirmed that Aunt N spoke to her about the appellant having a wet dream (ts 68).
In addition, the State called two other witnesses. A's mother gave brief and uncontroversial testimony as to the history of her relationship with the appellant and A, and her interaction with A after the alleged offences were committed. The State tendered the appellant's video record of interview on 6 June 2014 through Detective Edmonds. In that interview, the appellant said he had slept with A in her bed a hundred times (BAB 118). He was asked by Detective Edmonds if he could have committed the offences in his sleep (see BAB 143 ‑ 144). Aunt N did not give evidence at either trial.
The defence case
The appellant elected to testify in his own defence at both trials. His evidence‑in‑chief was brief on both occasions. It amounted to defence counsel putting to him the various allegations which the appellant then denied (ts 268 ‑ 269). Under cross‑examination in the retrial, the appellant accepted that he spoke to Aunt N the day after the alleged offence, but denied that she told him that A had made an allegation of sexual impropriety against him (ts 282). When asked if he thought the alleged offences occurred while he was asleep, he replied, 'I don't think so at all' (ts 302).
In re‑examination at the retrial, the appellant confirmed that he did not think that the alleged offending could have happened while he was asleep (ts 304 ‑ 305).
The editing of the visually‑recorded interviews
A's visually‑recorded interviews were edited before the first trial at the initiative of the prosecutor and without objection from defence counsel (ts 166 ‑ 167). An order consenting to the editing of the two interviews was made by Stewart DCJ on 2 June 2015 (ts 167). The impugned evidence was not the subject of objection by defence counsel and was not edited from the recording of the 4 April 2014 interview.
Several issues were raised at the directions hearing on 14 October 2015. One issue was whether the State could adduce at the retrial the audio‑visual recording of A's evidence at the first trial. Scott DCJ ruled in favour of the State. No issue has been taken in this appeal with that decision. Defence counsel then raised the editing of the visually‑recorded interviews at the first trial. Defence counsel told Scott DCJ that his client had 'criticised' him for editing the interviews and that he now opposed edited versions being shown to the jury at the retrial (ts 170).
Scott DCJ queried this proposed course, as may be seen in the following exchange:
SCOTT DCJ: So even though some of the evidence is clearly inadmissible, you oppose the edits?
HARRIS, MR: Yes.
SCOTT DCJ: All right.
HARRIS, MR: The inadmissible stuff doesn't hurt anyone.
SCOTT DCJ: I don't care. It doesn't matter if it doesn't hurt anyone; it's not admissible, is it? Why is that hearsay evidence that is the subject of the edits admissible?
HARRIS, MR: Well, if you don't - right, well, let's put it this way. No doubt, the judge, the trial judge would exercise that close [sic]. He has power to, but it's got to be the trial judge (ts 171).
The hearsay evidence referred to by Scott DCJ in the above exchange is not the evidence the subject of the ground of appeal. Rather, his Honour is referring to hearsay evidence which had been edited for the first trial.
Defence counsel did not maintain his position. Ultimately, defence counsel told his Honour that he 'only' wanted 'a paragraph … to be put in from one of the recordings' (ts 187). That 'paragraph' turned out to be a portion of A's visually‑recorded interview on 10 February 2015 which has no bearing on this appeal (BAB 69 ‑ 70, appeal ts 5 ‑ 6).
In the end, the jury in the retrial was shown A's visually‑recorded interview of 4 April 2014 (including the impugned evidence) with the same edits that had been made for the first trial.
Levy DCJ raises the potentially inadmissible nature of the impugned evidence
As I have said, the impugned evidence was led at the retrial without objection. Nothing was said about it until the appellant's cross‑examination by the prosecutor.
In cross‑examination, the appellant said that A came to stay with him on the weekend after the alleged offences had occurred. He said that at this point he 'didn't know anything was wrong' and that 'life went on like normal' (ts 282). The prosecutor cross‑examined him about whether he had spoken to his sister by this stage. The appellant agreed that he spoke to Aunt N on 12 March 2014 (the day after the alleged offence), but she did not tell him that A had made 'a sexual allegation' against him (ts 282).
At the first trial, the appellant testified that his sister had 'proceeded to barrel [him]' and 'give [him] a hard time on the phone' (ts 100). Further, his sister told him that he had 'rolled over and put [his] hand on [A's] boob when [the appellant] was asleep' (ts 101).
It is evident that the appellant's answers in the retrial appear to contradict what he had said at the first trial. The prosecutor sought to cross‑examine the appellant on the issue. At this point, his Honour intervened.
In the absence of the jury, his Honour inquired of the prosecutor the extent of the proposed cross‑examination. In the course of this discussion, his Honour referred to A's evidence that she had been told by Aunt N that the appellant had a wet dream. His Honour expressed the view that A's evidence was 'hearsay upon hearsay', but noted that no objection had been taken to it (ts 285). When asked about this evidence by his Honour, defence counsel said that he agreed that the evidence was 'hearsay on hearsay'. When Levy DCJ inquired about why there had been no prior objection, defence counsel replied, 'Well, that was a mistake' (ts 286).
Further discussion ensued, in which the prosecutor commented that defence counsel had not sought the exclusion of the impugned evidence (ts 296). His Honour repeated the view that he regarded the evidence as inadmissible (ts 298). When asked to comment, defence counsel said, 'Well, inadmissible evidence can't be admissible because it wasn't objected to. And it's still inadmissible' (ts 298).
After the defence case closed, and in the absence of the jury, his Honour said:
I'm reinforced in my view that all of the evidence relating to conversations between [A] and [Aunt N] were not admissible, because it was in the context of not what it was alleged that [the appellant] had said to [Aunt N], but rather what [Aunt N] had told [A] (ts 307).
Jury questions on the impugned evidence
On the morning of the final day of the trial, before counsel's closing addresses were delivered, the jury sent his Honour two notes. Only one is relevant to this appeal. It read:
Your Honour, members of the jury wish to find out if there's any evidence about what was discussed between the accused and [Aunt N]. Can this information [be] made available to the jury? If not, why was [Aunt N] not a witness (ts 313).
In the course of discussions with counsel about the jury's note, the prosecutor conceded that there was no evidence that the appellant had told Aunt N, 'It's all a wet dream and a misunderstanding' (ts 320 ‑ 323).
In the course of these discussions, defence counsel said, 'I think you should abort the trial, sir' (ts 324). The prosecutor opposed this course. Ultimately, his Honour did not discharge the jury. No complaint is made about that decision.
After reading the note and observing it had three parts, his Honour answered the jury's questions as follows:
I'm going to answer each of those parts separately, and ultimately the answers to the questions are relatively short. As to the question of whether there's any evidence about what was discussed between the accused and [Aunt N], the short answer to that is no, there is no evidence of what was discussed. What was actually discussed, there is no evidence of that. There is evidence of a conversation, but what was actually discussed there is no evidence of. The second part to that is: Can this information be made available to the jury? Well, the answer to that is that the evidence you heard is the only evidence you're going to hear in this trial. Anything else that you have not heard you cannot speculate about. You cannot speculate what was actually discussed between [Aunt N] and [the appellant], because you've heard no evidence of it, and it would not be in accordance with your oath or affirmation to then go down the path of speculating what may or may not have been said. It's fundamental that you do not do that; it would not be true to your oaths. The third part of that question - the letter is: If not, why was [Aunt N] not a witness? Now, to a degree I've also answered that. You can't speculate about that. You can't speculate about why she was or was not a witness in this case. This simple - the simple proposition is that she was not called by either the prosecution or the defence, and that's the end of it (ts 330 ‑ 331).
Trial counsel made no complaint about his Honour's answer.
Trial counsel then addressed the jury. Neither of them referred to the impugned evidence.
In a break during the summing up, his Honour, in the absence of the jury, raised the impugned evidence with counsel. His Honour expressed the view that there were two ways to treat it. Either his Honour could instruct the jury to completely disregard the evidence or he could 'simply leave it alone' on the basis that 'I'm just highlighting this inadmissible evidence'. Both counsel expressed the view that it was better for his Honour to 'leave it alone' (ts 344 ‑ 345). His Honour made no reference to the evidence in his summing up to the jury. However, in the context of directing the jury about what could amount to a 'dealing', in the context of an 'indecent dealing', his Honour directed the jury that, whatever the alleged act was, it must be 'a deliberate or willed act' (ts 350).
The submissions
The appellant submitted that:
(a)The impugned evidence was clearly hearsay and therefore inadmissible.
(b)There was no objective, rational, forensic reason for defence counsel's failure to object to it.
(c)The evidence materially prejudiced the appellant because it was capable of being impermissibly used by the jury as evidence that the appellant had ejaculated, which was a fact capable of providing significant support to A's allegations.
(d)The alleged material prejudice was not cured by any direction given by the trial judge. In particular, his Honour's answers to the jury's questions were inaccurate and did not expressly warn the jury that they could not use the impugned evidence as evidence of the truth of what the appellant was alleged to have told Aunt N.
(e)The material prejudice was not overcome by the appellant's answers in his video record of interview with the police in which he said that he 'possibly' had a wet dream.
Accordingly, notwithstanding defence counsel's failure to object, the appellant suffered a miscarriage of justice, as a result of which the convictions should be set aside and a new trial ordered.
The respondent accepted that the impugned portion of A's evidence about her conversation with Aunt N was hearsay and inadmissible for the purpose of establishing the truth of what was contained in that conversation. However, the respondent submitted, albeit faintly, that the evidence was admissible to establish why A had agreed to return to the appellant's home in the days following the commission of the alleged offences. In any event, the appellant has not suffered a miscarriage of justice because the appellant's defence counsel 'positively sought its admission' in accordance with instructions given to him by the appellant. The respondent asserted that it was objectively plausible that the decision not to edit the now‑impugned evidence 'was strategic and tactical in nature, based upon instructions from the appellant himself' (WAB 27). Further, his Honour's answers to the jury's questions overcame any potential prejudice to the fairness of the trial. The respondent also submitted that the impugned evidence may have worked to the appellant's advantage in that his Honour directed the jury that the alleged indecent acts had to be deliberate or willed. Thus, it is said, the impugned evidence opened up a potential explanation for the sexual contact alleged by A. If the ground is made out, the respondent submitted that nonetheless no substantial miscarriage of justice has occurred and this court should dismiss the appeal: s 30(4) Criminal Appeals Act 2004 (WA).
Legal principles
The appellant accepts that because the impugned evidence was adduced without objection, there has been no wrong decision on a question of law by the trial judge. In order for the ground to succeed, the appellant must demonstrate that he has suffered a miscarriage of justice by reason of its admission: R v Soma [2003] HCA 13; (2003) 212 CLR 299 [42].
Where evidence is admitted without objection, it will be difficult for an appellant to establish a miscarriage of justice. This is because, generally, an appellant is bound by the way defence counsel conducted the trial: TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [8], [24] ‑ [33], [43] and [102] ‑ [104].
At least two issues arise when it is alleged that evidence adduced without objection gave rise to a miscarriage of justice. First, was the evidence technically admissible? Second, if it was inadmissible, was the failure to object for rational forensic reasons. When addressing this second question, this court is concerned with whether counsel's decision was objectively capable of explanation on that basis. Moreover, there will be no miscarriage of justice unless the inadmissible evidence occasioned material prejudice to the appellant: Blum v The State of Western Australia [No 2] [2012] WASCA 40 [60] and [61], and Kometer v The State of Western Australia [2012] WASCA 220 [29].
Was the evidence inadmissible?
The appellant submits that the impugned evidence was hearsay.
A generally accepted statement of the rule against hearsay is found in Subramaniam v The Public Prosecutor [1956] 1 WLR 965, 970, as follows:
Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.
The rule is subject to various common law and statutory exceptions which are not material to this case.
In my opinion, the impugned evidence given by A in the visually‑recorded interview of 4 April 2014 was hearsay and inadmissible. A repeated what Aunt N supposedly said she had been told by the appellant. Aunt N did not testify and the appellant, while accepting that there was a conversation, gave no evidence as to its content. A was not present when the appellant allegedly made the statement. The impugned evidence was relevant for no other reason than to establish the truth of what was said in the statement. In other words, that the appellant had had a wet dream on the night in question when he was lying next to A in her bed.
I do not accept the State's submission that the evidence was admissible to show why A agreed to return home after the alleged offences. This is because it is clear from A's evidence that she did not accept the truth of what Aunt N had told her. The statement had no apparent bearing on A's decision to return home after the commission of the alleged offences.
Forensic decision
In this case, defence counsel's failure to object to the hearsay evidence might possibly be attributable to several factors. It may be that defence counsel did not appreciate the hearsay nature of the evidence. It may also be, based on what defence counsel said in the directions hearing, that he did not think that the inadmissible portions of A's evidence 'hurt' the appellant. It may even be, as the State points out, that the appellant himself instructed defence counsel not to object to this evidence. As to this, it is difficult to see how an accused, not versed in the law, could rationally make a technical decision of this nature and why defence counsel would be bound to act on such an instruction. In the end, once his Honour pointed out the hearsay nature of the impugned evidence, defence counsel said that he had made a mistake. Whatever the possible explanations, the test which must be applied is, as I have already said, an objective test. As Gaudron J put it in TKWJ v The Queen [27]:
An appellate court does not inquire whether the course taken by counsel was, in fact, taken for the purpose of obtaining forensic advantage, but only whether it is capable of explanation on that basis.
The effect of the hearsay evidence was that the appellant admitted ejaculating while in bed with his 13‑year‑old daughter, albeit involuntarily. The evidence was capable of showing that the appellant was sexually aroused at the time. It was also capable of corroborating A's evidence that she felt wetness on her bottom before the offences were actually committed and that she later detected something on her underwear that was neither urine nor vaginal fluid.
Although the State asserted that the evidence was led, in effect, for a rational forensic purpose, it did not specify in its written submissions what that purpose was. In oral argument, it was suggested that the evidence was capable of supporting a defence to the charges based on an unwilled act. Even assuming that the appellant ejaculated while having a wet dream, this occurred before the commission of the alleged offences and, if it occurred, does not indicate that the offences themselves were unwilled. Indeed, it is very difficult to see how any of the acts alleged to have constituted the three offences could be said to have been unwilled.
The appellant's defence at trial was that each act did not happen. He did not run an alternative defence that, if the act the subject of each offence occurred, it was unwilled. At no stage did defence counsel suggest this to the jury. His Honour's direction to the jury on counts 1 and 2 - that an unwilled act was not a dealing - was routine and only concerned accidental touching. It was the first and last time any concept of unwilled act was mentioned.
I am unable to discern any objective forensic reason for not objecting to the impugned evidence. There was nothing in the impugned evidence that was rationally capable of advancing the appellant's case. To the contrary, there was a risk that, absent an appropriate direction from the trial judge, the evidence might be used impermissibly by the jury as support for A's testimony.
His Honour's directions
This takes me to his Honour's directions and, in particular, his response to the jury's questions. The issue to be determined is whether the risk of prejudice caused by the admission of the hearsay evidence was overcome by his Honour's directions. If the answer to this is yes, the appellant will not have suffered a miscarriage of justice.
Although A testified as to what she had been told by Aunt N concerning the conversation her aunt had with the appellant, it was obvious that A was not present at the time of the conversation and was not a party to it. Given there was no evidence from the appellant about the content of the conversation, the only other person able to give a first‑hand account of it was Aunt N. The jury's questions indicate that they considered that there may be a gap in the evidence about the content of the conversation between the appellant and Aunt N. At the very least, the questions reveal that the jury was uncertain about whether there was any evidence that they could take into account about the conversation between the appellant and Aunt N.
His Honour's answer to the jury's questions was, to my mind, clear, emphatic and unequivocal and in the form of a binding direction - there was no evidence of what was said during the conversation between the appellant and Aunt N. There is no other way the answer could reasonably be understood. If the jury had contemplated taking into account the impugned evidence, his Honour's response would have made it clear that they could not do so.
The appellant argued that the answer his Honour gave - that there was no evidence of what was actually discussed between the appellant and Aunt N - was misleading because of A's hearsay evidence. I do not accept this submission. It involves too literal an approach to the question. The question, in substance, sought his Honour's direction about what evidence, if any, they were, in law, permitted to take into account.
Further, the appellant submitted, in effect, that the damage caused by the impugned evidence had already been done and that his Honour's directions would not have been effective to cure the risk of prejudice it created. I do not accept this submission. It is well established that a jury will faithfully apply a trial judge's directions unless the contrary is shown: Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302 [65]. The inadmissible evidence was not of such a nature or magnitude that a jury could not be expected to follow his Honour's directions.
It is relevant but not decisive that defence counsel did not take exception to the answers his Honour gave to the jury's questions. By this time, defence counsel was acutely aware of his Honour's view that the impugned evidence was inadmissible hearsay. Indeed, defence counsel had accepted that it was inadmissible. The fact defence counsel took no exception lends some support to the view that his Honour's answers were sufficient to guard against any perceptible risk of a miscarriage of justice by reason of the inadmissible evidence.
After his Honour answered the jury's questions, the impugned evidence was not mentioned again in the presence of the jury - by counsel in their closing addresses or by his Honour. In the absence of the jury, his Honour queried with counsel whether he should draw the jury's attention to the evidence and direct them that it was inadmissible. Both counsel agreed with his Honour that any direction would simply draw unnecessary attention to the impugned evidence. His Honour's approach, particularly in light of the answers he had given to the jury's questions, made any such direction unnecessary.
For these reasons, although the impugned evidence was inadmissible and defence counsel's failure to object to it was not for an objectively rational forensic purpose, the evidence did not give rise to a miscarriage of justice. His Honour's directions to the jury were sufficient to overcome the risk of prejudice caused by the admission of the evidence.
The ground of appeal has not been made out.
As I have not upheld the ground of appeal, it is unnecessary to consider the application of the proviso in s 30(4) of the Criminal Appeals Act. However, in case I am wrong in failing to uphold the ground of appeal, I will deal with the respondent's submission. In doing so, the question of whether the proviso should be applied would fall to be determined on the basis that the evidence was inadmissible and occasioned a risk of prejudice to the appellant which was not overcome by his Honour's directions to the jury.
In Hughes v The State of Western Australia [2015] WASCA 164; (2015) 299 FLR 197, this court set out the relevant principles as to the proper application of the proviso. I respectfully adopt that statement of principles, which is in these terms:
Pursuant to s 30(3)(c) and s 30(4) of the Criminal Appeals Act 2004 (WA), the Court of Appeal must allow the appeal if in its opinion there was a miscarriage of justice unless it considers that no substantial miscarriage of justice has occurred. The appellant bears the onus of establishing a miscarriage of justice. The responsibility for raising and establishing the proviso (that no substantial miscarriage of justice has occurred) rests with the State.
Both statutory criterion bear two aspects, outcome and process: Nudd v The Queen (2006) 80 ALJR 614 (which focuses on the notion of a miscarriage of justice) and Weiss v The Queen (2005) 224 CLR 300 (the leading authority on the proviso). The close overlap between the two statutory expressions makes it difficult at times to know the precise basis of an outcome. See, for example, Holland v The Queen (1993) 67 ALJR 946, 951 - 952, 954. The leading authority on non-disclosure, Mallard v The Queen (2005) 224 CLR 125, is also illustrative of the challenges in that regard.
As in White v The Queen [2006] WASCA 62 [192] - [193], we propose to approach this appeal on the basis that the breaches of the statutory (and common law) duty of disclosure in this case give rise to a miscarriage of justice that requires the court to allow the appeal unless it considers no substantial miscarriage of justice has occurred.
Weiss, a case in which prejudicial inadmissible evidence was adduced at trial by the prosecution, is authority for the following propositions which address the 'outcome' aspect of the proviso. First, the appellate court must itself decide whether a substantial miscarriage of justice has occurred. Second, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. In particular, the task is not to be undertaken by attempting to predict what a jury, whether the jury at trial or some hypothetical future jury, would or might do. Third, the standard of proof of criminal guilt is beyond reasonable doubt [35], [39].
In particular, the appellate court must make its own independent assessment of the evidence adduced at trial (and any evidentiary material not disclosed) and determine whether, making due allowance for the natural limitations that exist in an appellate court proceeding, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty [41].
Generally, the appellate court's task must be undertaken on the whole of the record of the trial, including the fact that the jury returned a guilty verdict. In that event, the issue is whether the error in question would, or at least should, have had no significance in determining the verdict that was returned by the trial jury [43]. Where the error or miscarriage arises from the absence of evidentiary material relevant to the charge at trial, the question is whether the additional material would, or at least should, have no effect on the verdict that was returned by the trial jury: White [193]. If the answer is uncertain or in the negative, the proviso cannot apply.
It is a necessary, but not always sufficient, condition of the exercise of the proviso that the appellate court is persuaded that the evidence properly admitted at trial (together with any relevant additional evidence) proved beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty: Weiss [44].
The 'process' aspect is engaged where the proviso should not be invoked even though the appellate court is satisfied beyond reasonable doubt of the accused's guilt of the offence on which the jury returned its verdict. Examples in this category include where there has been a significant denial of procedural fairness at trial; a serious breach of the presuppositions of a trial; a failure which departs from the essential requirements of a fair trial; or where the appellate court is deprived of the capacity justly to assess the strength of the case against the appellant [60] ‑ [67].
I have undertaken my own examination of the whole of the record of the trial. In my opinion, the State's case against the appellant was strong. A's evidence appeared materially consistent throughout, and she was not shifted in any material respect under cross‑examination. She made a prompt complaint. Aspects of her evidence were corroborated by the appellant. In particular, that the appellant frequently slept with A in her bed, and that he did so on the night in question. He agreed that A had 'seemed a little bit angry' during their interaction when he woke up (ts 300). He agreed that when he woke up, A was 'actually crying' and that she wanted to ring Aunt N (ts 301). However, I am not satisfied that the evidence in question would not have had, or should not have had, any significance in determining the verdict that was returned by the jury. In these circumstances, the proviso cannot apply. Had it been necessary to decide the point, I would not have applied the proviso.
Orders
The order that I would make is:
1.The appeal is dismissed.
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