RLB v The State of Western Australia
[2021] WASCA 73
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: RLB -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 73
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 7 APRIL 2021
DELIVERED : 30 APRIL 2021
FILE NO/S: CACR 195 of 2019
BETWEEN: RLB
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: SCOTT DCJ
File Number : IND 2030 of 2018
Catchwords:
Criminal law - Appeal against conviction - Seven counts of indecent dealing with a child over the age of 13 years and under the age of 16 years - Where appellant was in an incestuous relationship with the complainant's mother - Whether leading of evidence of the incestuous relationship resulted in a miscarriage of justice - Whether absence of an order for judge alone trial resulted in a miscarriage of justice - Whether judge erred in law by failing to adjourn and abort the trial - Where two applications to discharge the jury - Whether additional evidence sought to be led on appeal demonstrates that a miscarriage of justice has occurred - Whether verdicts of guilty were unreasonable and cannot be supported having regard to the evidence
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(a)
Criminal Procedure Act 2004 (WA), s 118(2)
Result:
Application for an extension of time to appeal refused
Appellant's application for leave to adduce additional evidence refused
Leave to appeal on grounds 1 - 5 refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | Mr R G Wilson |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Lewis v The State of Western Australia [No 2] [2008] WASCA 155
Birks v The State of Western Australia [No 2] [2007] WASCA 29; (2007) 33 WAR 291
Huggins v The State of Western Australia [2018] WASCA 61
Kitto v The State of Western Australia [2019] WASCA 161
Lawson v The State of Western Australia [No 2] [2018] WASCA 204
LBC v The State of Western Australia [2011] WASCA 201
Le-Ta v The State of Western Australia [2020] WASCA 14
Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1
Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125
MEN v The State of Western Australia [2020] WASCA 118
Oblak v The State of Western Australia [2007] WASCA 176
R v Soma [2003] HCA 13; (2003) 212 CLR 299
Steele v The State of Western Australia [2018] WASCA 133
Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769
Taylor v The State of Western Australia [2020] WASCA 113
Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1
JUDGMENT OF THE COURT:
Introduction
Between 3 July 2019 and 8 July 2019, the appellant was tried by jury and convicted of seven counts of indecent dealing with a child over the age of 13 years and under the age of 16 years. The complainant is the daughter of JJW, who is the appellant's half-sister.
It was not in issue at the trial that the appellant and JJW were in an incestuous sexual relationship during the period of the appellant's alleged offending against the complainant.
On the first day of the trial, prior to its commencement, the appellant applied to adjourn the trial to permit him to apply for trial by judge alone. The essential ground of the foreshadowed application for trial by judge alone was to avoid the risk of prejudice said to arise from the jury's knowledge of the appellant's incestuous relationship with JJW. The judge dismissed the application.
The appellant's case at trial was that the alleged offences did not happen and that the complainant made up the allegations to punish him for the damage that his incestuous relationship with JJW caused the complainant and their family.
At the trial, the appellant called JJW as a witness for the defence. In the course of JJW's testimony, the appellant's counsel brought two applications to discharge the jury, both of which were rejected.
Details of the charges and proceedings against the appellant and JJW regarding their incestuous relationship were ultimately adduced by the appellant's counsel in re‑examination of JJW, after she had made references to those proceedings in cross‑examination and after the second application to discharge the jury had been rejected.
The appellant appeals against his convictions on five grounds:
(1)The evidence led by the prosecution relating to the appellant's incestuous relationship with JJW was unfairly prejudicial, resulting in an unfair trial and a miscarriage of justice.
(2)The absence of an order for a trial by judge alone resulted in a miscarriage of justice.
(3)The trial judge erred in law in failing to adjourn and abort the trial.
(4)Additional evidence led on appeal demonstrates that a miscarriage of justice has occurred.
(5)The verdicts of guilty were unreasonable and cannot be supported having regard to the evidence.
For the reasons that follow, there is no merit in any of these grounds. Leave to appeal on each ground should be refused and the appeal against conviction dismissed.
Indictment - IND 2030 of 2018: the charges the subject of this appeal
By District Court Indictment 2030 of 2018, the appellant was charged with seven counts of indecent dealing with a child over the age of 13 years and under the age of 16 years, which occurred on three separate dates between 31 January 2009 and 1 April 2009.
Indictment - IND 2031 of 2018: the incest charges
By District Court Indictment 2031 of 2018, the appellant and JJW were each charged with an offence that on 1 January 2009 they engaged in incestuous consensual sexual penetration.
On 2 July 2019, the appellant and JJW both pleaded guilty and were sentenced for their respective offences. Both were sentenced to a term of 12 months' imprisonment, suspended for 12 months.
The appellant's application to adjourn the trial
On appeal, the appellant challenges the rejection of his counsel's application to adjourn the trial. The application involved attention to the evidence that was proposed to be led as to the appellant's incestuous relationship with JJW, of which the appellant also complains on appeal. Consequently, we will outline the course of submissions on the adjournment application in some detail.
Summary
On 3 July 2019, the first day of the appellant's trial in respect to the charges the subject of District Court Indictment 2030 of 2018, counsel for the appellant made an application to adjourn the trial.[1]
[1] ts 9.
Counsel for the appellant explained that the application was being made so that the appellant could bring an application for the trial to be by judge alone.[2]
[2] ts 17.
In deciding the adjournment application, the judge focused on whether evidence of the appellant's incestuous relationship with JJW, or evidence which would lead the jury to speculate, was prejudicial and, if so, whether the prejudice could be cured by a direction.
The judge refused the application, finding that the prejudice could be adequately dealt with by a direction about the permissible use of the evidence.
It was, in substance, agreed between the parties, after the judge's decision, that the State would lead evidence of the incestuous relationship, but not of the complainant seeing them having sex on two occasions. It was also, in effect, agreed between the parties not to lead evidence of the proceedings the subject of District Court Indictment 2031 of 2018. However, as will be seen, at the trial evidence of both matters ultimately emerged.
Appellant's submissions on adjournment application
The appellant's counsel pointed to particular paragraphs (76 - 78) of the complainant's first statement dated 26 November 2015, evidently led to provide context to the allegation comprising count 3, which he submitted would give rise to the reasonable inference of a sexual relationship between the appellant and JJW.[3] He submitted that, given the familial relationship between them, this could result in the jury thinking that the appellant was prepared to commit crimes and that his morality was questionable.[4]
[3] ts 13 - 16.
[4] ts 16.
Counsel for the appellant then stated that the defence, as well as the State, would be best served if all the evidence was adduced in a trial before a judge sitting alone.[5] He said that this would allow the complainant to say everything that was relevant to her and all the surrounding circumstances without the risk of saying something about the appellant's incestuous relationship with JJW which would give rise to an application to discharge the jury.[6]
[5] ts 16.
[6] ts 26.
Counsel for the appellant was, he said, aware that he could not make the application for a judge alone trial, given that he was by then aware who the trial judge was.[7] To avoid this, counsel for the appellant proposed that the trial be adjourned to a trial listing hearing, so that the application could be made.
[7] ts 17.
Counsel for the appellant also mentioned that the appellant's defence was that he did not behave in a sexual way towards the complainant.[8] Counsel also raised, as a potential argument for the defence, the complainant's motive to lie, stating that the allegations were raised out of either jealousy or revenge because of the appellant's relationship with JJW.[9] Counsel for the appellant then referred to paragraphs in the complainant's statements which, he said, supported the potential motive to lie argument.[10]
[8] ts 17.
[9] ts 17.
[10] ts 17 - 20.
Counsel for the appellant then turned to other matters for the judge to consider in deciding the application to adjourn the trial. First, he pointed out that the State only proposed to call two witnesses, the complainant and the investigating officer, and therefore there would be less prejudice to the State in the trial being adjourned when compared to other cases.[11] Secondly, counsel said that the appellant had raised with him in the last few days the question of whether he could call JJW as a witness.[12] Counsel for the appellant remarked that he had not yet spoken to JJW or decided whether it was a course of action that the defence wanted to pursue.
[11] ts 21.
[12] ts 21.
Counsel for the appellant also stated that he and the prosecutor had not discussed the parts of the complainant's statements which the appellant wanted excluded from the trial until the day previous.[13]
State's submissions on adjournment application
[13] ts 24.
The State opposed the application to adjourn the trial. The prosecutor stated that the complainant had prepared herself emotionally to give her testimony on the first day of the trial and she also had a strong preference to give her testimony in open court.[14]
[14] ts 26.
The judge asked the prosecutor whether the State intended to adduce evidence of the incestuous relationship between the appellant and JJW. The prosecutor submitted that in order for the State to have a fair trial, the contextual evidence about the relationship needed to be led.[15] In response to further questions from the judge, the prosecutor confirmed that the State intended to lead evidence that would allow the jury to speculate about whether the relationship was sexual and agreed that the judge would need to give an appropriate direction.[16]
[15] ts 27.
[16] ts 27 - 28.
The judge asked the prosecutor what the State's position was regarding whether a jury could make permissible use of the complainant's evidence concerning her mindset in respect to the relationship between the appellant and JJW and its incestuous nature.[17] The prosecutor said that the State proposed not to lead the complainant's evidence of her direct observations of the appellant and JJW having sex on two occasions, but would lead evidence of the fact that they were in a relationship as context for how the three of them ended up in the same bed.
[17] ts 29.
When pressed by the judge to articulate how the State was going to present the relationship between the appellant and JJW, the prosecutor said that the jury should not make anything of the relationship other than that there was a relationship and that they sometimes slept in the same bed.[18] The judge and the prosecutor then discussed striking the balance between evidence that could lead the jury to speculate about the nature of the relationship and allowing the complainant to provide context to her assertions.[19] The prosecutor observed that the particular difficulty in the case was that the complainant's observations about the relationship were inextricably intertwined with her allegations.[20] The judge agreed that it posed a significant problem and that it would be difficult to separate the complainant's observations from her allegations.[21]
[18] ts 30.
[19] ts 30 - 31.
[20] ts 31.
[21] ts 31.
The judge observed that given the difficulties with the complainant's evidence, it may be better for the State to lead the entirety of her evidence rather than being selective and leaving the jury to speculate.[22]
[22] ts 31.
In response to the judge's enquiry, the prosecutor submitted that the prejudice arising from the evidence of the incestuous relationship and the jury viewing the appellant as a person of bad character could be adequately addressed by a direction.[23]
[23] ts 34.
Counsel for the appellant stated that the proposal, suggested earlier by the judge, that the entirety of the complainant's evidence be led at trial was not how the parties had agreed to run the trial but that there was some attraction to the defence in the proposal because it would allow everyone to say everything they wanted to about the relationship and the circumstances.[24]
[24] ts 37.
Counsel for the appellant further stated that if there was going to be evidence before the jury that would allow a conclusion that the relationship was sexual, then all the evidence should be allowed in.[25]
[25] ts 38.
The judge asked counsel for the appellant whether, if the State so accepted, the appellant was content to proceed with the trial if the State led all of the evidence, except the evidence that could indicate the incestuous nature of the relationship. The appellant's counsel said that the appellant was so content, commenting that that was the basis on which the appellant had hoped the trial would proceed.[26]
Decision on adjournment application
[26] ts 39.
After a brief adjournment, the judge stated that he was satisfied that the jury would be able to follow directions about the permissible use of the evidence of the incestuous relationship and to put aside any considerations that they were told were irrelevant.[27] His Honour stated that he would have been favourable to allowing the adjournment if he had not been satisfied that the prejudice to the appellant could be cured by a direction.[28]
[27] ts 40.
[28] ts 41.
The judge further stated that the jury was going to need to be told the exact nature of the relationship between the appellant and JJW.[29] Counsel for the appellant responded that, in those circumstances, he would need to discuss with the appellant how he was to give evidence. It was agreed that the evidence would not start until the next day.
[29] ts 41 - 42.
Thereafter there was considerable further discussion between the court and counsel as to the extent to which, and the manner in which, evidence of the incestuous relationship between the appellant and JJW would be led.
The judge raised the possibility of an alternative approach for the State not to lead evidence about the incestuous relationship. His Honour questioned whether that evidence was even relevant to the State's case.[30]
[30] ts 43.
Counsel for the appellant and the judge then agreed that if a reasonable inference could be drawn about the incestuous nature of the relationship, it would be better that it be clear to the jury rather than obliquely referred to.[31]
[31] ts 43 - 44.
In response to the judge's enquiry, the prosecutor explained that the incestuous relationship was relevant to the State's case because it provided the appellant the opportunity to do what he did to the complainant on two occasions.[32] The judge then asked if the State could lead evidence from the complainant that did not refer, directly or indirectly, to the incestuous nature of the relationship, but only to the fact that it was not uncommon for the three of them to sleep together in the same bed.[33] When the prosecutor observed that leading evidence this way would raise what he thought were his Honour's concerns, namely that it would lead to speculation by the jury, his Honour responded that there must be a way that the incestuous nature of the relationship could be 'kept out'.[34] The prosecutor then confirmed that that was the way he was planning to run the State case and that he would not lead evidence of the complainant seeing the appellant and JJW having sex.[35]
[32] ts 44.
[33] ts 45.
[34] ts 45.
[35] ts 46 - 47.
Counsel for the appellant then sought and obtained confirmation from the judge that the State would (i) lead evidence from the complainant about her knowledge of the incestuous nature of the relationship, but (ii) leave out her evidence of the sexual acts that she observed, thereby leaving open to the defence the motive to lie argument.[36]
[36] ts 48.
State's opening address
The State opened with the following summary of the evidence to be led.
The complainant was 13 years old at the time of the alleged offending and was living in Como with her mother, JJW.
The appellant lived in Thornlie and spent a lot of time with JJW.
The appellant and JJW had a sexual relationship.[37]
[37] ts 67.
On New Year's Eve 2008/2009, the appellant showed a sexual interest in the complainant for the first time.[38] During the course of a party they both attended, the appellant became flirtatious with her, holding her hips and cuddling her from behind a number of times. While they were wrestling later in the night, the appellant pulled the complainant on top of him and held her by the hips. The appellant, JJW and the complainant slept in the same bed that night.[39]
[38] ts 67.
[39] ts 68.
On the complainant's evidence, it was a regular thing for the three of them to all sleep in the same bed.[40] The prosecutor observed that while this may seem strange, it had to be borne in mind that the appellant and JJW were in a sexual relationship during this period.
[40] ts 68.
In February 2009, the appellant moved into a new residence in Thornlie. This is where it was alleged the offences occurred.
On a date in February 2009, the complainant and JJW visited the appellant's new residence. During the course of the night, all three were on a couch and JJW had fallen asleep. The appellant positioned himself behind the complainant and touched her on the breasts (count 1).[41]
[41] ts 68.
The appellant then manoeuvred the complainant so that they were facing each other. He then grabbed her hand and used it to masturbate himself (count 2).[42]
[42] ts 69.
The appellant subsequently woke up JJW and went to his bedroom with her. The complainant stayed on the couch for about an hour and then went, as she was accustomed to doing, to join them in the bed.[43] When she got into the bed, JJW was asleep but the appellant was awake. He proceeded to grind his penis against her bottom (count 3).[44]
[43] ts 69.
[44] ts 69.
On a date between February and March 2009, all three were again in the same bed. The appellant, who was in the middle of the bed, grabbed the complainant's hand and used it to rub his penis (count 4).[45]
[45] ts 69.
On a separate date between February and March 2009, after JJW had fallen asleep on the couch, the appellant took the complainant to his bedroom and started cuddling her on his bed. He reached under her top and touched her breasts (count 5).[46] He then reached down her pants and rubbed on the outside of her vagina for about five minutes (count 6).[47] He then put her on top of him, touched her on the bottom and thrust his penis against her genitals, simulating sex (count 7).[48]
[46] ts 70.
[47] ts 70.
[48] ts 70.
In June 2009, JJW kicked the complainant out of home.[49] This was because she told JJW's partner at the time, Mr G, about the relationship between JJW and the appellant. The complainant stayed with her grandmother, the mother of the appellant and JJW, and returned to live with JJW in August 2009.
[49] ts 70.
The appellant did not sexually interfere with the complainant after she was kicked out. On the State's case, this was because the appellant was fearful that she would expose him.[50]
[50] ts 71.
Appellant's opening address
The appellant's case was that the alleged offences did not happen.[51] Counsel said that the complainant created the allegations because she thought the appellant's relationship with JJW was unacceptable and she wanted to hurt and punish him.[52]
[51] ts 72.
[52] ts 72.
Counsel's opening also included the following.
The appellant admitted that he and JJW had a sexual relationship.[53]
[53] ts 72.
On New Year's Eve, the complainant both saw and heard the appellant having sex with JJW and this made her very unhappy.[54]
[54] ts 72.
Counsel emphasised that the question for the jury was not as to the morality of, or as to any aspect of, the relationship between the appellant and JJW. Rather, the issues for the jury related to the seven allegations made by the complainant against the appellant.[55] Counsel told the jury that any emotional or moral judgment they formed as to the relationship between the appellant and JJW should be put to one side.[56] Counsel emphasised that the State case relied solely on the complainant's evidence, pointing to the absence of evidence of admissions, and of eyewitnesses or forensic evidence.[57]
[55] ts 73.
[56] ts 73.
[57] ts 74.
Counsel invited the jury to pay particular attention, when the complainant gave evidence, to any sign of anger, jealousy or emotions.[58]
[58] ts 75.
Counsel for the appellant then referred to the following as evidence that the jury may hear from the complainant.
The complainant had a crush on the appellant and was jealous that the appellant was paying more attention to JJW.[59]
[59] ts 75.
When the complainant discovered the relationship, she was angry about it, enough to expose it to Mr G, with the aim of destroying the relationship between him and JJW.[60] The complainant pursued this aim with the intention of punishing the appellant and JJW.[61]
[60] ts 75.
[61] ts 75.
Direction as to the incestuous relationship
After the appellant's opening address, the judge directed the jury regarding the appellant's sexual relationship with JJW and the permissible use of the evidence. The direction was as follows:[62]
Ladies and gentlemen, before we get started with respect to the evidence, I just want to underline what counsel have said in respect to what you've been told in opening and what you'll hear during the course of evidence about the sexual relationship between the accused man and the complainant's mother, who are half-siblings - half‑brother, half‑sister. Whatever view you might hold with respect to a sexual relationship between a half-brother and a half-sister is entirely irrelevant.
Now, this is going to take some mental gymnastics because you may have differing views. Bottom line is it just doesn't matter. It would be entirely wrong for any of you to take an adverse view of [the appellant] because of that relationship. It cannot be used by you in determining whether any of these charges in this indictment have been proved beyond reasonable doubt, which is the burden that's cast upon the State.
In criminal cases, it is so commonplace that a judge has to tell members of the jury who have heard some evidence that is simply inadmissible against a particular accused that they cannot use it in a manner that is adverse to or in relation to their consideration of the evidence of that accused.
Now, that happens in most cases that juries hear … evidence … that they need to be told that they've got to disregard in a certain way. That's the judge's job and it's the jury's job … as I said to you at the start, your job is to clinically and coldly examine the evidence that relates to a particular count in determining whether you're satisfied beyond reasonable doubt it is proved.
I've given you a strict instruction that the matters to which I've referred are not relevant and are not to be used in an impermissible way and it would be very wrong for any of you to do so.
[62] ts 76.
The complainant's evidence
The evidence given by the complainant can be summarised as follows.
The complainant was born on 14 August 1995.
When she was 11 or 12 the appellant became more involved in her mother's life.
In the period from 2008 to 2009, her mother and the appellant spent 'quite a lot of time' together, '[p]robably nearly every week, every second weekend'.[63] The appellant quite often came to the address in Como where the complainant lived with her mother.[64] At that time, the appellant was living with his father in a house in Thornlie.
[63] ts 80.
[64] ts 103.
On New Year's Eve 2008/2009, the complainant and her mother went to the appellant's father's house in Thornlie. At the time, the complainant was 13 years of age. Everyone, including the complainant, drank alcohol that evening. In addition to the complainant, JJW and the appellant, also present were a friend of the appellant and the friend's son.
That evening, while the complainant was alone in the kitchen with the appellant, he cuddled her from behind, grabbed her waist and brought her into a cuddle repeatedly.[65] Later that night, the appellant, the complainant and the friend's son had a water fight outside. The appellant fell onto the ground and pulled the complainant on top of him while they were wrestling over the hose. The appellant held the complainant by the hips and she felt that he was looking at her in a different way. The complainant's mother said 'what are the two of you doing' and told the complainant to get off the appellant.[66]
[65] ts 83 - 84.
[66] ts 83.
The appellant's friend and his son left. The complainant, her mother and the appellant went to bed in the appellant's bedroom. At one point, she left the bedroom and returned to see the appellant and her mother having sex in the bed.[67]
[67] ts 85: It was this incident that was the subject of the charge in indictment 2031 of 2019.
In February 2009, the appellant moved to a house in a different street in Thornlie. All of the offences against the complainant were said to have occurred at that house in the period from February to March 2009, while the complainant was 13 years old.
Counts 1 - 3
On the weekend the appellant moved into his Thornlie property, he invited the complainant and her mother to the house. They were the only three people in the house that night.[68]
[68] ts 87 - 88.
The appellant had an L-shaped couch in his sunken lounge room. After they had been drinking alcohol and watching television, they fell asleep on the couch.[69] The appellant was lying next to the complainant, who was facing away from him. The complainant's mother was lying on the other side of the couch. The complainant woke to the appellant cuddling her from behind, touching her breasts on top of her clothes, and then putting his hand under her top and touching and squeezing her breasts and nipples (count 1).[70]
[69] ts 86 - 88.
[70] ts 86, 90 - 91.
The appellant then pushed the complainant's shoulder down so that she was lying on her back and then pulled her over onto her side so that she was facing him. He took her hand, put it on his stomach and then put it down his board shorts. She heard the Velcro come undone. The appellant started rubbing his penis with the complainant's hand and she could feel it becoming erect (count 2).[71] The complainant told the appellant to leave her alone and that she was tired. He let go of her hand.
[71] ts 87, 91 - 92.
The appellant got up, did his pants up and went and lay on the floor next to the complainant's mother. The two of them got up and went to the appellant's bedroom together.
The complainant stayed on the couch for about an hour and then went to the appellant's bedroom. She said that she did this because she did not want anything to happen to herself, if she stayed alone on the couch, and also she wanted to prevent the appellant and her mother from having sex. The complainant got into the bed and lay next to the appellant, with JJW on the other side of him. The appellant started cuddling the complainant and thrusting his penis against her buttocks on top of her clothing (count 3). He told her he was happy that she had come to bed.[72]
Count 4
[72] ts 93 - 94.
On a subsequent occasion, the complainant, her mother and the appellant were in bed together in the appellant's bedroom at his house. The complainant lay on one side of the appellant, with her mother on the other side. The appellant put the complainant's hand under his pants and rubbed his penis with her hand (count 4). The complainant fell asleep. She woke when she felt JJW's hand on her hand, which was still on the appellant's penis. As soon as she felt her mother's hand, the complainant removed her hand from the appellant's penis.[73]
Counts 5 - 7
[73] ts 96 - 97.
On a different night, the complainant and her mother were again at the appellant's house. The complainant and the appellant went to bed alone in the appellant's bedroom, while JJW was asleep on the lounge. The complainant said that she did this because at that time she had a crush on the appellant.
While they were in bed, and the complainant was lying on her side, the appellant cuddled her from behind. He felt her breasts under her top, then lifted her bra above her breasts and squeezed her breasts and nipples (count 5). He then put his hand down her pants and underwear and rubbed and touched her vagina, without penetrating her (count 6), and while doing so he was calling her 'baby' and 'babe'. The appellant then pulled the complainant on top of him. He grabbed her backside and thighs, pushing her backside against his penis and then started grinding his penis on her vagina, while they both remained clothed (count 7). While he did this, the appellant told the complainant she was 'sexy', called her 'babe' and 'baby' and moaned and kissed her cheek.[74] He eventually stopped and she got off him.
Other matters
[74] ts 102.
On another occasion between March and June 2009, the complainant walked into a bedroom at the Como house and saw the appellant and her mother partially naked, believing that they were having sex.[75]
[75] ts 102 - 103.
On 31 March 2009, after saying something to her grandmother about her mother's relationship with the appellant, the complainant decided to stay at her grandmother's house for a few days before returning home.[76]
[76] ts 103 - 104; 119.
Sometime after that, the complainant told her stepfather, Mr G, about what had occurred between JJW and the appellant. In June 2009, the complainant was 'kicked out' of the house in Como and went to live with her grandmother.[77] She returned to the house in Como in August 2009 and later moved out permanently in 2013.[78]
[77] ts 104 - 105.
[78] ts 105.
The central thrust of counsel for the appellant's cross-examination of the complainant was that she had made up the allegations against the appellant because she wanted to punish him for his relationship with her mother.[79] The complainant denied that this was so.[80]
[79] ts 121, 126.
[80] ts 121, 126, 131.
The complainant accepted counsel's suggestion that she had a crush on the appellant, flirted with him, and felt that it was unfair that he was affectionate to her mother and she was not getting the same attention.[81]
[81] ts 110.
She accepted that she felt jealous when she saw the appellant and her mother cuddling and then having sex on New Year's Eve 2008/2009.[82]
[82] ts 115.
The complainant denied that she had told Mr G about her mother's relationship with the appellant in order to get back at her mother. Rather, the complainant said that she felt Mr G, who was still in a sexual relationship with her mother, deserved to know the truth.[83]
[83] ts 116, 130.
Counsel for the appellant cross-examined the complainant about the fact that, on 31 March 2009 when she was at her grandparents' house, in telling her grandmother of the relationship between the appellant and her mother, the complainant did not mention that the appellant had done things to her. The complainant said that this was because she had blamed herself for what had occurred.[84]
[84] ts 119, 139.
The complainant adhered to her evidence in relation to each of the incidents when counsel put to her, in detail, that each of them had not occurred.[85]
[85] ts 122 - 128.
The defence evidence
The appellant's evidence
The appellant accepted that he and JJW formed a sexual relationship as adults and that the complainant became aware of it.[86] He agreed that he lived with his father in a property in Thornlie until early 2009 when he moved into his own property, also in Thornlie.[87]
[86] ts 150 - 151.
[87] ts 151.
The appellant also agreed that, as the complainant had said in her evidence, on New Year's Eve 2008/2009 there was a party at his father's house which the complainant attended with her mother, himself, his friend and his friend's son.[88] He denied that he cuddled or touched the complainant or pulled her on top of him during a water fight.[89]
[88] ts 153.
[89] ts 153.
He agreed that he had an L-shaped couch at his property in Thornlie. However, the couch was not big and what the complainant had described as counts 1 and 2 was not physically possible. He denied all of the offending alleged by the complainant. He did not recall any occasion when she fell asleep on the couch in his house.[90]
[90] ts 154.
The appellant denied that the complainant had ever got into bed with him and JJW or that there had ever been an occasion when the complainant was in bed with him.[91] He denied that there was ever an occasion when he was spooning her from behind and pressing or grinding his penis against her.[92] He also denied that he put her hand on his penis or that there was any situation when his penis was being touched by her hand and being touched by JJW at the same time.[93]
[91] ts 155.
[92] ts 155.
[93] ts 155.
The appellant also denied the allegations relating to counts 5, 6 and 7.[94] He described the proposition that he was in bed with the complainant as 'an absurd notion'.[95]
[94] ts 156.
[95] ts 156.
In cross-examination, the appellant agreed that in the months leading up to New Year's Eve, he was spending more time with JJW and consequently more time with the complainant.[96] While he acknowledged the sexual nature of his relationship with JJW, he denied that they ever slept in the same bed.[97] When asked whether the complainant sometimes flirted with him, the appellant said that he had only become aware of that in hindsight.[98] He agreed that the complainant walked in on him and JJW having sex on New Year's Eve 2008/2009.[99]
[96] ts 170.
[97] ts 170 - 171.
[98] ts 175.
[99] ts 175.
The appellant denied that the complainant visited his house in Thornlie on the weekend he moved in. He accepted that she visited with JJW not long after this.[100] The appellant agreed that during their relationship JJW would come over and that on occasions the two of them would watch television on the couch. However, his evidence was that she never fell asleep and she never stayed the night.[101]
[100] ts 178 - 179.
[101] ts 179 - 181.
He repeated his denials as to what had occurred on New Year's Eve,[102] and as to the allegations the subject of counts 1 - 3,[103] count 4[104] and counts 5 - 7.[105]
JJW's evidence and the applications to discharge the jury
[102] ts 183.
[103] ts 184 - 185.
[104] ts 185.
[105] ts 185.
JJW gave evidence that she, the appellant and the complainant never slept in the same bed.[106] She said that the couch at the appellant's house was very small, and produced a brochure depicting a couch which she thought was similar in size to the one he had.[107] She did not recall any occasion where she, the appellant and the complainant were asleep on the couch. She denied falling asleep on the couch in the period between 2008 and 2009.[108]
[106] ts 202, 234.
[107] ts 202 - 203, exhibit 6.
[108] ts 203 - 204.
In the period from January to April 2009, after the appellant moved into his property, she and the complainant visited him there, usually on weekends in the early afternoon.[109] They often stayed for dinner but did not stay overnight.[110]
[109] ts 207.
[110] ts 207.
JJW denied that that there was any occasion where the three of them were in bed and she reached towards the appellant's penis and came in contact with her daughter's hand.[111] She denied ever seeing the appellant in bed with her daughter.[112] She did not recall there being a water fight on New Year's Eve or saying words to the effect of 'get off him' to her daughter.[113]
[111] ts 209.
[112] ts 209.
[113] ts 211.
In the course of cross-examination, the prosecutor asked JJW whose idea it was for her to bring to court the brochure that became exhibit 6. She said it was her idea and that she did it independently.[114] When asked why she did that, she said that she had held onto the brochure for four or five months '[b]ecause in the other court case … it's running along similar lines, I went to present it to my lawyer to give an indication, so she could have an idea. And it wasn't useful to her, so I still had it.'[115]
[114] ts 213.
[115] ts 213.
Over objection from the appellant's counsel, the prosecutor put to JJW that she did not believe the complainant in relation to her allegations against the appellant. The judge ruled that the question could be asked on the basis that it was directed to impartiality although it was not relevant to the jury's determination of whether they were satisfied beyond reasonable doubt as to the complainant's evidence.[116]
[116] ts 216.
In response to the suggestion that she did not believe the complainant in relation to her allegations against the appellant, JJW said '[n]ot anymore, no. Originally I did, yes.'[117]
[117] ts 216.
As will be seen, at the conclusion of JJW's testimony, the judge gave a direction regarding this response.
Counsel for the appellant then made an application to discharge the jury, essentially on the basis of JJW's reference to the 'other court case'. Counsel pointed to JJW's statement that the other proceedings were 'similar to this trial', submitting that the present trial involved an allegation of indecent dealing with a child, leaving the implication that the other proceedings were of a similar character.[118] The appellant's counsel also submitted that the appellant was prejudiced because the jury were led, by JJW's evidence, to speculate that a criminal offence had been committed.[119] Counsel also referred to JJW's response about her initial belief in the complainant's allegations, suggesting that that was not relevant and was highly prejudicial.[120]
[118] ts 218 - 219.
[119] ts 221.
[120] ts 223.
The judge refused the application to discharge the jury. His Honour found that the prejudice was not significant enough to warrant discharging the jury in circumstances where it had already been conceded that the appellant and JJW were in an incestuous relationship. Further, the judge considered that JJW's evidence of her belief about the complainant's allegations could be dealt with by an appropriate direction.[121] As will be seen, the judge gave such a direction at the completion of JJW's evidence, which is set out at [115] below.
[121] ts 224 - 225.
In response to an enquiry from the appellant's counsel, the judge said that a question in re-examination as to whether JJW and the appellant were charged in relation to their relationship and pleaded guilty would be admissible.[122] Counsel said he would take instructions on the matter, but favoured the course of asking the question.[123] Counsel said that, if the question were asked, he would not have had the benefit of putting the issue to the complainant in supporting the appellant's motive to lie argument - by putting to the complainant that she provided her statement which resulted in the charge against JJW, reinforcing that she made the allegations as a way of seeking revenge.[124]
[122] ts 225.
[123] ts 226.
[124] ts 226 - 227.
Before the jury were asked to return, the judge requested that the prosecutor handle cross-examination of JJW with particular care, his Honour observing that 'there's an anxiousness in the way in which she's giving her evidence which could really result in something being blurted out, which is going to really worry the justice of this case'.[125]
[125] ts 229.
After cross‑examination of JJW, and before re-examination, the appellant's counsel renewed his application for the discharge of the jury.
Counsel suggested that the crux of the application was JJW's evidence that 'we need restraining orders' if she attempted to make contact with the complainant.[126] Counsel suggested it was unclear from this evidence whether restraining orders were needed against her, or against the appellant, or multiple parties and that none of this was relevant or assisted as to the credibility of either JJW or the appellant.[127] Counsel also referred to JJW's mention of disclosure when asked when she had discussed the allegations made by the complainant with the appellant.[128]
[126] ts 255; see ts 251.
[127] ts 255.
[128] ts 255, referring to the evidence at ts 251 - 252.
The appellant's counsel also referred to the fact that JJW had referred to 'Tuesday' in her evidence, which was the day on which she and the appellant had been sentenced for the incestuous relationship offences.[129]
[129] ts 256.
The appellant's counsel submitted that the cumulative effect of these matters and the matters the subject of the first application to discharge the jury meant that the appellant could not get a fair trial.[130] As the judge noted, that was because, the appellant submitted, there was a risk that the jury had become aware that there had been previous proceedings in which at least JJW had been involved and potentially also the appellant.[131]
[130] ts 256.
[131] ts 257.
The judge refused the application. His Honour did not consider JJW's reference to disclosure to be a matter of significance, given that she had made references to a range of matters. Further, the judge observed that the jury had no information that would enable them to conclude that JJW's reference to 'Tuesday' was a reference to the other proceedings. Also, none of the other matters raised, considered together, meant that the interests of justice required that the trial be terminated.[132]
[132] ts 258 - 259.
Counsel for the appellant foreshadowed, in the absence of the jury, that he would ask in re-examination questions to the effect that both JJW and the appellant pleaded guilty to the incestuous relationship offences.[133]
[133] ts 259, 261.
In re‑examination, JJW gave evidence to the following effect:[134]
(1)she and the appellant were charged with having sex with each other;
(2)as part of the disclosure process in relation to those charges, she was provided with a copy of the complainant's statement;
(3)when, earlier in her evidence she referred to 'the other case' or 'the other matter', she was referring to those charges against them;
(4)both she and the appellant pleaded guilty to the charges against them; and
(5)the charges were dealt with on the preceding Tuesday and that was the occasion on which she had spoken to the appellant.
[134] ts 261 - 262.
The judge's direction concerning JJW's evidence
At the conclusion of JJW's evidence and the defence case, the judge gave the jury a direction concerning JJW's evidence as to her belief in the complainant's allegations, referred to at [102] above. His Honour said as follows:[135]
You will recall during the course of her evidence in cross-examination with Mr Tooker, where Mr Tooker … put to her that she didn't believe her daughter … about what had happened, the subject of these proceedings. And she said something like, 'I did believe her then, but I don't believe her now'.
Now, the position with … those two responses, are that, insofar as whether she believed her daughter or whether she didn't believe her daughter, is not relevant to whether you are satisfied beyond reasonable doubt that [the appellant] committed any of the offences, the subject of the indictment. And that is because what [JJW's] belief is is not relevant. It might be relevant in other ways, but it's not relevant to your deliberations as to whether you're satisfied that [the appellant] committed any of the offences.
That's because … [f]or [the appellant] to be found guilty of any of these charges involves what you accept. You are the sole judges of the fact. What another party believes, for whatever reason, is not a matter that can take the place of or add to the matters to which you are tasked to perform, and what evidence you accept and what evidence you don't accept are matters entirely for you, and not for someone else.
[135] ts 263.
The summing up
As no ground of appeal challenges any aspect of his Honour's charge to the jury, it is only necessary to outline a few aspects of it.
The judge gave a detailed Longman direction.[136]
[136] ts 275 - 278.
His Honour referred to the defence case that the complainant had a motive to make up a story as to what she said the appellant did to her, namely that she made up the allegations to punish the appellant for the relationship he had with her mother and the impact that the relationship had on her family. The judge told the jury that the appellant did not have to prove any such motive and did not have to prove anything in the trial.[137]
[137] ts 278 - 279.
The judge reiterated to the jury his warning to them about the use they could and could not make of the sexual relationship between the appellant and JJW. His Honour said as follows:[138]
I want to remind you … about what I said earlier about the sexual relationship between [the appellant] and his half-sister, [JJW], who was the [complainant's] mother. It is, of course, an incestuous relationship between them, and you may hold a view as to the propriety of such a relationship between half-siblings.
However, the fact of [the appellant] being involved in that relationship is entirely irrelevant to your consideration of the evidence in this case and your determination as to whether you are satisfied beyond reasonable doubt that he committed any of the offences for which he is charged in the indictment.
It would be entirely wrong of you to take any adverse view of him in your consideration as to whether any count in this indictment against him is proved. You must not take any adverse view of him in considering your important task in determining on the evidence whether you're satisfied beyond reasonable doubt that he committed an offence alleged against him.
That's not to say that the circumstances of the relationship between [JJW] and [the appellant] is irrelevant. You know that that is a contextual set of circumstances that has an effect on [the complainant] … But it's the propriety of the relationship in respect to which you must not take an adverse view as to [the appellant] when you are considering the evidence.
[138] ts 281 - 282.
In summing up the defence case, the judge referred to matters relied on by the defence in pointing to the complainant's motive to fabricate the allegations against the appellant. Those matters included the devastating effect on the family of the relationship between the appellant and JJW.[139] The defence also relied on the appellant's evidence, which was maintained in the face of cross‑examination.[140]
[139] ts 286.
[140] ts 286 - 287.
Grounds of appeal
The appellant advances five grounds of appeal which, in substance, are as follows:
(1)Unfair prejudice and an unfair trial arose through the evidence led by the prosecution concerning the offences relating to the appellant's incestuous relationship with JJW.
(2)The failure to have a trial by judge alone resulted in a miscarriage of justice.
(3)The trial judge erred in law in failing to adjourn the trial and then in failing to abort the trial.
(4)Additional evidence adduced by the appellant on appeal demonstrates that a miscarriage of justice has occurred.
(5)The verdicts of guilty upon which the convictions are based are unreasonable and cannot be supported having regard to the evidence.
The appellant requires an extension of time to appeal, as the last date for filing an appeal was 28 August 2019 but the appeal was not commenced until 16 December 2019. We will deal with the merits of the appeal before returning to the question of an extension of time.
Ground 1: evidence of the appellant's incestuous relationship with JJW
Ground 1 complains that unfair prejudice to the appellant was occasioned by the leading, by the State, of evidence of his incestuous relationship with JJW.
The appellant's submissions on appeal adopt the submissions advanced by his counsel in the application for an adjournment of the trial made on the first day the trial was listed.[141] As outlined above, in the adjournment application, the appellant's counsel submitted that if the State led evidence of, or capable of giving rise to the reasonable inference of, a sexual relationship between the appellant and JJW, the appellant's trial could be prejudiced because of the risk that the jury would think that he was a person who was prepared to commit crimes and was of questionable morality.[142] On appeal the appellant contends that the State, in opening, raised the issue of his relationship with JJW and subsequently led evidence of it, which resulted in the jury not considering the parties' cases fairly and objectively.[143] He submits that evidence of the existence of his sexual relationship with JJW served no purpose other than creating prejudice against him.[144]
[141] Appellant's submissions [6].
[142] ts 16.
[143] Appellant's submissions [10] - [11].
[144] Appeal ts 4.
There is no merit in these submissions.
As can be seen from the detailed outline of the course of the trial set out above, the appellant's counsel did not at any stage object to the leading, by the State, of evidence of a sexual relationship between the appellant and JJW. As a result, there cannot be said to have been any wrong decision on a question of law by the trial judge. The appeal can only be allowed if it is established that there was a miscarriage of justice.[145] Ordinarily at least, there is no miscarriage of justice if the failure to object to inadmissible evidence can objectively be said to have been justified by rational forensic reasons.[146]
[145] R v Soma [2003] HCA 13; (2003) 212 CLR 299 [11], [79]; Birks v The State of Western Australia [No 2] [2007] WASCA 29; (2007) 33 WAR 291 [44] - [46]; LBC v The State of Western Australia [2011] WASCA 201 [10] - [11], [39].
[146] Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769 [23]; Oblak v The State of Western Australia [2007] WASCA 176 [6] - [9]; LBC [10] - [11], [39]; Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1 [25].
For two independent reasons, in our opinion the admission of evidence of the sexual relationship between the appellant and JJW did not occasion a miscarriage of justice.
First, if objection had been taken, the objection would have been overruled because the evidence was admissible. It could not reasonably be doubted that the evidence was relevant. It provided necessary context for the complainant's evidence, including her evidence that some of the appellant's offending occurred while the three of them were in the same bed. Given the competing accounts given by the complainant, on the one hand, and the appellant and JJW on the other, there was also a fact in issue as to opportunity - whether there were occasions when the complainant was at the appellant's house overnight, on his couch or in his bed. Evidence of the sexual relationship between the appellant and JJW was also relevant to that fact in issue.
In effect, the appellant complains that the prejudicial effect of the evidence outweighed its probative value. The principles concerning the judge's discretion to exclude evidence on the ground that its prejudicial effect outweighs it probative value were recently summarised in Le-Ta v The State of Western Australia as follows:[147]
A trial judge's discretion to exclude admissible evidence where the prejudicial effect of the evidence outweighs its probative value is well‑established. In this context, it is important to understand what is meant by 'prejudice'. Evidence is not prejudicial simply because it tends to prove the guilt of the accused. Prejudice arises from the risk of improper use of the evidence. Evidence will be prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task. As Nettle J has explained, by this discretion, evidence is excluded where and because its capacity to lead a jury to reason correctly to a verdict of guilt is outweighed by its capacity to lead the jury to reason incorrectly to a conclusion of guilt. (footnotes omitted)
[147] Le-Ta v The State of Western Australia [2020] WASCA 14 [44].
Whether and to what extent evidence is, in the relevant sense, prejudicial - in other words the existence and extent of its capacity to lead the jury to reason incorrectly to a conclusion of guilt - must be evaluated taking into account the trial judge's directions as to the use(s) to which the evidence may and may not be put. In that regard, as recently explained in Taylor v The State of Western Australia, the law proceeds on the basis that, with rare exceptions, jurors follow directions given by the trial judge:[148]
With rare exceptions, a criminal trial on indictment proceeds on the fundamental assumption that jurors are true to their oath or affirmation and understand and obey the trial judge's directions. The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. As the High Court observed in Dupas v The Queen, what is vital to the criminal justice system is 'the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations'. That is consistent with the 'experience and wisdom of the law … that, almost universally, jurors approach their tasks conscientiously'. (footnotes omitted)
[148] Taylor v The State of Western Australia [2020] WASCA 113 [78].
In this case, the judge gave the jury a direction in clear terms, both at the beginning of the trial[149] and in the course of his Honour's summing up,[150] concerning the sexual relationship between the appellant and JJW. In the direction, which is set out at [63] above, the judge told the jury that:[151]
(1)any view they might have about the existence of a sexual relationship between a half-brother and a half-sister is entirely irrelevant;
(2)it would be wrong for them to take an adverse view of the appellant because of that relationship;
(3)it was common in jury trials for a judge to direct a jury that particular evidence was irrelevant or inadmissible and that they must disregard it;
(4)their job was to 'clinically and coldly' examine the evidence relating to each count to determine whether they were satisfied beyond reasonable doubt it is proved; and
(5)he had given them a 'strict instruction' that the matters to which he had referred were irrelevant and it would be very wrong for any of the jury to use them in an impermissible way.
[149] ts 76.
[150] ts 281 - 282; see [124] above.
[151] ts 76.
The appellant accepts that the judge's directions were appropriate and adequate. However, he submits that no direction could remove the prejudice arising from the jury's knowledge of the incestuous relationship, because the subject matter was such that a juror could not remove it from their thinking.[152] We do not accept this submission. There is no sound reason in the present case to depart from the fundamental tenet that the jury understood and applied the judge's direction. The existence of the incestuous relationship is not, by its nature or in the circumstances of the case, so overwhelmingly prejudicial that a jury would be unable or unwilling to act on the judge's direction. In light of the direction, there is no perceptible risk that the jury might have used the evidence of the sexual relationship between the appellant and JJW in an impermissible manner. Consequently, the admission of the evidence did not occasion a miscarriage of justice.
[152] Appeal ts 4, 5.
Secondly, the appellant's failure to object to this evidence can readily be seen to have been founded upon a calculated and rational forensic decision. In simple terms, the existence of the sexual relationship between the appellant and JJW was a significant element of the defence case because, on the defence case, it gave rise to the complainant's motivation for making up the allegations against the appellant. That was the central theme of the defence case, reflected in the appellant's counsel's opening address,[153] cross-examination of the complainant[154] and in the closing address to the jury.[155]
[153] ts 72, 75.
[154] ts 121, 126.
[155] Closing address ts 15 - 16.
Consequently, even if, contrary to our opinion, the evidence of the sexual relationship between the appellant and JJW had been inadmissible, or liable to be excluded in the exercise of the probative‑prejudice discretion, no miscarriage of justice would have been occasioned. That is because the admission of the evidence is readily capable of being seen to have been the result of a calculated and rational forensic decision by the appellant's counsel, by whose conduct of the trial the appellant is bound.
For these reasons, there is no merit in ground 1.
Ground 2: the absence of an order for a trial by judge alone
Ground 2 asserts that the 'failure' to have a trial by judge alone resulted in a miscarriage of justice.
The appellant submits that due to the nature of the evidence to be adduced at trial, namely the evidence of the sexual relationship between the appellant and JJW, the trial should have been held before a judge rather than a jury, so as to avoid the potential for prejudice.[156]
[156] Appellant's submissions [12] - [13]; appeal ts 4 - 5.
For two reasons, there is no merit in this complaint.
The starting point is that the appellant did not apply for a trial by judge alone. As already noted, on the morning of the first day of the trial the appellant's counsel applied for an adjournment to enable such an application to be made. In doing so, the appellant's counsel correctly recognised that no application for a trial by judge alone could then have been made because the identity of the trial judge was known.[157] Thus the judge did not err, as no application for a trial by judge alone was made and no such application could then have been made.
[157] Criminal Procedure Act 2004 (WA) s 118(2).
Secondly, and in any event, in our view, had any such application been made before the identity of the trial judge was known, the application would have failed. The principles to be applied in the exercise of the power to order a trial by judge alone were identified in Steele v The State of Western Australia[158] and need not be repeated. Relevantly for present purposes:
(1)An application under s 118 will only be granted if the court is affirmatively satisfied that it is in the interests of justice to order a trial by judge alone.
(2)That will be so if it is necessary to ensure a fair trial according to law for the accused. In other words, a judge alone trial will be necessary if there is a real and substantial doubt as to whether the accused will receive a fair trial according to law.
(3)Whether there is such a doubt must take account of directions that may be given by the trial judge. In that context, the court applies the precepts outlined in [130] above.
[158] Steele v The State of Western Australia [2018] WASCA 133 [11].
The basis for the application in the present case was, and is said to lie in, the risk of prejudice to the appellant arising from impermissible reasoning by the jury in relation to the sexual relationship between the appellant and JJW. For the reasons in [130] - [132] above, that risk was well able to be mitigated by appropriate directions from the trial judge, as occurred when the judge gave his directions.
For these reasons, there is no merit in ground 2.
Ground 3: refusal of the adjournment and refusal of the applications to discharge the jury
Ground 3 has two limbs: a complaint as to the refusal of the adjournment of the trial and a complaint as to the refusal of the applications to discharge the jury. It is convenient to deal with the two limbs separately.
Refusal of the adjournment
The appellant submits that the failure to adjourn the trial resulted in serious injustice to him.[159]
[159] Appellant's submissions [25].
The power to adjourn a trial is a discretionary power to be exercised by the court in the interests of justice taking into account all of the circumstances. The correctness of the trial judge's decision on an adjournment application can only be challenged on appeal by demonstrating error in the sense explained in House v The King.[160] No such error is revealed in the judge's decision to refuse the adjournment application.
[160] Lewis v The State of Western Australia [No 2] [2008] WASCA 155; (2008) 37 WAR 483 [40].
As the appellant's counsel before the trial judge recognised,[161] the essential basis for the adjournment application was to enable an application for trial by judge alone to be made in circumstances where such an application was precluded because the identity of the trial judge was known. That is an unpromising framework for an allegation of error in the judge's refusal to grant the adjournment application. In any event, as explained above, in our view the interests of justice did not require a trial by judge alone. Consequently, it cannot be said that the judge erred in refusing the application to adjourn the trial to enable an application for trial by judge alone, or that a miscarriage of justice thereby arose.
Refusal of the applications to discharge the jury
[161] ts 17.
The appellant submits that the failure to abort the trial and discharge the jury resulted in an injustice to him that could not be cured by direction.[162]
[162] Appellant's submissions [26].
The first application to discharge the jury relied essentially on JJW's evidence, given in a non-responsive answer to a question in cross‑examination, referring to 'the other court case'.[163] Counsel also relied on JJW's evidence that she initially believed the complainant's allegations although no longer did.[164]
[163] ts 217 - 221.
[164] ts 222 - 223, referring to the complainant's evidence at ts 216.
When evidence that is not admissible is inadvertently received in a trial, the position is as explained by this court in Kitto v The State of Western Australia:[165]
[165] Kitto v The State of Western Australia [2019] WASCA 161 [66] - [69], recently applied in Taylor v The State of Western Australia [70].
The inadvertent reception of inadmissible evidence of a prior conviction, which is plainly prejudicial to the accused, does not, in and of itself, necessarily require the trial judge to discharge the jury on the basis that a fair trial is no longer possible. In R v Glennon, Mason CJ and Toohey J said:
Reception of inadmissible evidence of a prior conviction has been said to offend against one of the most deeply rooted and jealously guarded principles of our criminal law. And the wrongful reception or transmission of such evidence by or to the jury is calculated to set the prospect of a fair trial at risk. It is then for the trial judge to decide whether it is necessary to discharge the jury in the interests of securing a fair trial and, if the trial proceeds and results in a conviction, for a court of criminal appeal to decide whether the accused has been deprived of a fair trial. (emphasis added) (footnotes omitted)
Thus, where there is an inadvertent reception of inadmissible, prejudicial evidence, the trial judge has a discretion as to whether to discharge the jury or allow the trial to continue, with or without directions. The techniques for dealing with such prejudicial evidence, apart from discharging the jury, include (1) telling the jury to ignore the evidence, and (2) telling the jury to treat the case as if the evidence had not been given. Directions in this context are an aspect of the general law's requirement that a warning should be given whenever a warning is necessary 'to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case'. The 'possibility of a miscarriage of justice' is both the occasion for giving a warning to the jury and the determinant of its content.
The majority in Crofts v The Queen observed:
No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript. (emphasis added)
The question for the judge on the appellant's application to 'abort' the trial was, having regard to the statutory language of s 116(2) of the Criminal Procedure Act, whether it was 'in the interests of justice' to do so. This required his Honour to consider whether there was a real and substantial (as distinct from a remote) risk that the appellant would not receive a fair trial according to law by reason of the jury having heard by inadvertence the evidence his Honour had earlier excluded. In doing so, it was necessary for his Honour to bear in mind the techniques for dealing with such circumstances referred to above, including any remedial directions that may be given to the jury. (footnotes omitted)
Thus the question is whether, taking into account directions given by the trial judge, there was a miscarriage of justice arising from receipt of the evidence. That turns upon whether, in this court's assessment, there was a real and perceptible, as distinct from remote or fanciful, risk that the impugned evidence might lead the jury to reason impermissibly or otherwise result in an unfair trial.
We are not persuaded that JJW's evidence referred to in [148] above gave rise to any real or perceptible risk of that kind. The jury had already heard evidence of the incestuous relationship between JJW and the appellant. The receipt of the additional information that they had been charged and pleaded guilty to an offence for that conduct added little to the matters already in evidence and did not give rise to any real risk of impermissible reasoning.
We agree, with respect, with the judge's conclusion that JJW's evidence that she originally believed the complainant could properly be dealt with by a direction. His Honour gave an appropriate direction immediately after JJW completed her evidence. Having regard to that direction, there is no real or substantial risk that the evidence gave rise to a perceptible risk of impermissible reasoning.
The crux of the second application was said to be JJW's evidence that 'we need restraining orders, if I try and make any movements towards [the complainant]'.[166] This evidence was, as already noted, given in a non-responsive answer in the course of cross-examination. It may, as the respondent submits, have been capable of being seen by the jury as bearing on the weight to be given to JJW's evidence and the extent of her possible bias against the complainant. In any event, the evidence did not give rise to any perceptible risk of impermissible reasoning.
[166] ts 251.
Considering the cumulative effect of all of the matters upon which counsel for the appellant relied in the course of the two applications to discharge the jury, in our view there was no perceptible risk of impermissible reasoning or an unfair trial.
For these reasons, ground 3 fails.
It is convenient to deal next with ground 5.
Ground 5: were the verdicts unreasonable and unable to be supported?
The appellant submits that his convictions are unreasonable in that they were not supported by the evidence at trial and that the jury acting rationally on the whole of the evidence ought to have had a reasonable doubt.[167]
[167] Appellant's submissions [29].
Beyond asserting that conclusion, the appellant points to three matters in support of ground 5:[168]
(1)the complainant's evidence 'of being intoxicated' on New Year's Eve 2008/2009, and on the night on which counts 1 - 3 occurred;
(2)the absence of forensic or other corroborating evidence; and
(3)the fact that the appellant was 'only convicted by a majority verdict'.
[168] Appellant's submissions [31] - [34].
These matters fall a very long way short of meeting the high hurdle faced by an appellant in demonstrating that a verdict is unreasonable or cannot be supported having regard to the evidence.
The third of these matters can be dealt with very briefly. The fact that the appellant was convicted by majority verdicts does not bear, at all, on whether the verdicts were unreasonable.
The principles relevant to an appeal ground of this kind were recently outlined in MEN v The State of Western Australia.[169] We apply those principles without repeating them. Among the relevant principles are the following:
(1)The question for the appeal court is whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(2)That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt as to the accused's guilt.
(3)In answering that question, the appeal court must pay full regard to the fact that the jury was entrusted with the primary responsibility of determining guilt or innocence and to the advantage that the jury had of seeing and hearing the witnesses.
[169] MEN v The State of Western Australia [2020] WASCA 118 [403] - [410].
We turn to the first matter on which the appellant relies - the complainant's evidence that she was 'intoxicated'. The first step is to more closely identify what she said in her evidence as to her consumption of alcohol and its effects on her.
The complainant gave evidence that she drank alcohol on New Year's Eve 2008/2009. She said that she was tipsy at the start of the night but then the effect of alcohol started to wear off.[170] The complainant's evidence was that on the night that counts 1 - 3 occurred, all three of them had been drinking alcohol.[171] She did not give evidence, and no witness gave evidence, that she was intoxicated.
[170] ts 81 - 82.
[171] ts 86, 88.
The complainant's evidence that, to that extent, she was drinking alcohol both on New Year's Eve 2008/2009 and on the night that counts 1 - 3 occurred is of little significance in the context of the evidence as a whole and the issues at trial. It was not part of the defence case that, and there was no evidence to suggest that, the complainant was mistaken or confused in her recollection as to what had occurred. No suggestion was made, in cross-examination or in closing address, that the complainant was intoxicated or otherwise affected by alcohol to an extent that undermined the reliability of her memories of the events. The central issue at trial was the complainant's honesty, not the reliability of her memories of what had occurred.
As can be seen from the outline in [68] - [79] above, the complainant gave detailed evidence as to the events on New Year's Eve and on the night the subject of counts 1 - 3. The extent of that detail, and the evident clarity with which the complainant recounted that detail in her evidence, counts firmly against a suggestion that, at the times in question, she was so intoxicated as to undermine the reliability of her recollection. It was well open to the jury, who had the significant advantage of seeing and hearing the complainant give her evidence, to be satisfied beyond reasonable doubt as to the honesty and reliability of the complainant's evidence in its critical respects.
The lack of forensic evidence in no way detracts from that position. Given the complainant did not report her complaints to the police until 2015, the absence of forensic evidence did not in any sense undermine the complainant's evidence.
The absence of corroboration was a matter that the jury were required to consider in determining whether they were satisfied beyond reasonable doubt as to the charges and it is a matter to which this court must give careful consideration in performing its function under s 30(3)(a) of the Criminal Appeals Act.
Nevertheless, we are satisfied that a jury, acting reasonably, was entitled:
(a)to accept the evidence of the complainant in all material respects;
(b)to reject the evidence of the appellant in all material respects; and
(c)to the extent that the evidence of JJW relevantly undermined the complainant's evidence or relevantly supported the appellant's evidence in material respects, to reject JJW's evidence.
The trial record does not require the conclusion that the jury must necessarily have entertained a reasonable doubt about the appellant's guilt on the charged offences. The verdicts of guilty were not unreasonable. They were supported by evidence that the jury was entitled to accept and inferences that the jury was entitled to draw. Our assessment of the matters complained about by the appellant in the appeal does not persuade us that the jury, acting reasonably, should have decided that the State had not proved the charged offences to the criminal standard. After paying full regard to the consideration that the jury was the tribunal of fact entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that the jury had the very significant benefit of having seen and heard the witnesses, we do not have a reasonable doubt as to the appellant's guilt on any of the charged offences or as to the correctness of his conviction on any of those charges. It would not be dangerous, in the circumstances, to permit the verdicts of guilty to stand.
For these reasons, ground 5 is without merit. Leave to appeal on this ground should be refused.
Ground 4: additional evidence adduced on appeal
The appellant seeks to adduce additional evidence on appeal, namely the following:
(1)the appellant's affidavit sworn 22 July 2020;
(2)affidavits from the appellant's father and the appellant's father's partner;
(3)an invoice from his telephone provider, namely Telstra, dated 27 February 2009; and
(4)a letter from Mr Gavin Willson of Australian Polygraph Services, which the appellant describes as a 'lie detector test'.[172]
[172] Appellant's submissions [27].
The principles relevant to the receipt by this court of additional evidence on appeal are well-established. They were outlined in Huggins v The State of Western Australia.[173] In summary:
(1)At common law, there is a well-established distinction between fresh evidence, on the one hand, and new evidence, on the other. Fresh evidence is evidence that either did not exist as at the date of the trial or could not, with reasonable diligence, have been obtained or discovered for use at the trial. New evidence is evidence that could, with reasonable diligence, have been obtained or discovered for use at the trial.
(2)Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of new as distinct from fresh evidence, unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted.
(3)Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of fresh as distinct from new evidence, unless there is a 'significant possibility' that, on the basis of all of the admissible evidence (that is, the fresh evidence and the evidence given at trial), a jury, acting reasonably, would have acquitted the appellant.
(4)Although the common law principles concerning new and fresh evidence are not necessarily determinative of the manner in which the discretion conferred by s 40(1)(e) will be exercised, those principles will, ordinarily, be weighty, and it will be a rare case in which an exercise of the statutory discretion produces an outcome different from that produced by the application of the common law principles.
[173] Huggins v The State of Western Australia [2018] WASCA 61 [387] - [397].
There is nothing in the evidence, in the appellant's submissions, or in the nature of the proposed additional evidence, to suggest that it did not exist or could not with reasonable diligence have been obtained for use at the trial. We are satisfied that the proposed additional evidence is properly characterised as new as distinct from fresh evidence. Thus, ordinarily at least, in order to establish a miscarriage of justice, the appellant must demonstrate that the new evidence establishes that he is innocent or that it raises such a doubt that this court is satisfied that the appellant should not have been convicted.
In our opinion, the appellant has fallen well short of meeting that high hurdle. Indeed, in our view it does not satisfy the hurdle ordinarily applicable to fresh evidence, namely that there is a significant possibility that, on the basis of all of the admissible evidence, a jury acting reasonably would have acquitted the appellant.
The affidavits from the appellant's father and the appellant's father's partner are to the effect that, in 2008 and 2009, there were no occasions in which the complainant and JJW shared a bed with the appellant at the appellant's father's home. That evidence does not assist the appellant's case. That is because it is consistent with the complainant's evidence. Her evidence was that all of the offences occurred at the appellant's house, not at the appellant's father's house. It was also her evidence that the only occasion in which she, JJW and the appellant went to bed in the appellant's bedroom at his father's house was on New Year's Eve.[174] It was common ground, between the complainant, JJW and the appellant, that (i) on the New Year's Eve occasion, the only people there were the three of them, the appellant's friend and the appellant's friend's son; and (ii) the appellant's friend and his son left late that night. Thus the fact that the appellant's father and his partner did not observe this occasion is neutral.
[174] ts 85.
The Telstra invoice indicates that calls were made by the appellant to JJW on Friday 6 February 2009 at 4.49 pm and 5.30 pm and on Saturday 7 February 2009 at 7.39 pm (for 30 seconds). The appellant contends that this shows that JJW and therefore the complainant were not at his house on that weekend.[175]
[175] WAB 13, 16; appeal ts 6.
Taken at its highest the invoice may be taken to show that, the appellant having made a 30 second call to JJW's mobile number at 7.39 pm on 7 February 2009, there is an inference that they were not together at that time. That does not establish they were not together later that night. Nor does anything in the Telstra invoice indicate any calls between JJW and the appellant on Sunday 8 February 2009.
Further, and in any event, a doubt as to the complainant's evidence that the first incident occurred on the weekend that he moved in[176] by no means necessarily gives rise to any doubt as to the honesty and reliability of the complainant's evidence as to the events that she recounted.
[176] ts 86.
Finally, we turn to the letter from Mr Gavin Willson. That letter fails, by some margin, to raise such a doubt as to satisfy us that the appellant should not have been convicted. Nor does it mean that there is a significant possibility that on the basis of all the admissible evidence a jury acting reasonably would have acquitted the appellant. There is no sworn evidence from Mr Willson. In any event, the result would be the same had he sworn an affidavit to the effect of what is said in his letter. Reliance on evidence of lie detectors and polygraphs faces substantial obstacles.[177] Where, as here, a party seeks to adduce expert evidence of a character that has not been previously recognised by the courts, the party offering the novel scientific evidence has the burden of demonstrating that it has been accepted as reliable among impartial and disinterested experts within the scientific community.[178] There being no such demonstration, the evidence is not admissible in this court and would not have been admissible at trial.
[177] Lawson v The State of Western Australia[No 2] [2018] WASCA 204 [28].
[178] Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1 [288]. The decision of the Court of Criminal Appeal was overturned by the High Court in Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 on grounds not relevant for the present purposes.
For the above reasons, the proposed new evidence does not establish that a miscarriage of justice has occurred. Consequently, the application to adduce additional evidence should be refused, and leave to appeal on ground 4 should be refused.
Application for a suppression order
The appellant also applies for a suppression order.
These reasons are anonymised to avoid identification of the complainant. Had the appeal against conviction succeeded, and there had been an order for a retrial, the reasons would have been suppressed in order to protect the fairness of the retrial. However, in circumstances in which the appeal against conviction is dismissed, there is no ground to suppress the reasons or any other aspect of the appeal.
Conclusion
For the reasons already given, none of the appellant's grounds of appeal against conviction has any merit. Consequently, no purpose would be served by the grant of an extension of time within which to appeal. We would make orders as follows:
(1)The application for an extension of time to appeal is refused.
(2)The application for leave to adduce additional evidence is refused.
(3)Leave to appeal on grounds 1 - 5 is refused.
(4)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JR
Research Associate to the Honourable Justice Beech
30 APRIL 2021
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