RWN v The State of Western Australia
[2024] WASCA 131
•30 OCTOBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: RWN -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 131
CORAM: BUSS P
MAZZA JA
DALTON AJA
HEARD: 9 & 11 OCTOBER 2024
DELIVERED : 11 OCTOBER 2024
PUBLISHED : 30 OCTOBER 2024
FILE NO/S: CACR 81 of 2024
BETWEEN: RWN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S: CACR 82 of 2024
BETWEEN: RWN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram: QUAIL P
File Number : PE 7357 - 7361 of 2023
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted after trial of two counts of sexual penetration without consent and three counts of unlawful and indecent assault - Trial before a judge alone in the Children's Court - Whether there was no evidence to support the trial judge's factual finding that the complainant was sexually inexperienced and was a virgin - Whether an exhibit tendered in evidence was admissible - Whether a miscarriage of justice occurred at the trial because defence counsel failed to object to the tender of the exhibit - Whether the trial judge made a wrong decision on a question of law, alternatively whether there was a miscarriage of justice, because the trial judge failed to direct himself not to take into account in considering his verdicts the complainant's assertion in the exhibit that at the time of the offending she was a virgin
Legislation:
Criminal Appeals Act 2004 (WA), s 30
Evidence Act 1906 (WA), s 36BC
Result:
Appeal allowed
Judgments of conviction set aside
Retrial before a different judge
Category: B
Representation:
CACR 81 of 2024
Counsel:
| Appellant | : | F Merenda & N J Terry |
| Respondent | : | N R Sinton |
Solicitors:
| Appellant | : | The Defence Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
CACR 82 of 2024
Counsel:
| Appellant | : | F Merenda & N J Terry |
| Respondent | : | N R Sinton |
Solicitors:
| Appellant | : | The Defence Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Bull v The Queen (2000) 201 CLR 443
Gonzales v The Queen [2007] NSWCCA 321
HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
Nguyen v The Queen [2020] HCA 23; (2020) 269 CLR 299
Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107
R v Gay [1976] VR 577
R v Ignjatic (1993) 68 A Crim R 333
R v Lewis [2003] NSWCCA 180
R v Soma [2003] HCA 13; (2003) 212 CLR 299
Shaw v The Queen (1952) 85 CLR 365
Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Velkoski v The Queen [2014] VSCA 121; (2014) 45 VR 680
BUSS P:
I agree with Dalton AJA.
MAZZA JA:
I agree with Dalton AJA.
DALTON AJA:
At the conclusion of the hearing of this appeal on 11 October 2024 the court made orders including that the appeal against conviction was allowed; the convictions below were set aside, and a retrial was ordered, before a different judge of the Children's Court of Western Australia.[1] These are my reasons for joining in the orders made.
[1] In these circumstances the court did not hear submissions on, and did not deal with an appeal against sentence.
The appellant was convicted in the Children's Court of Western Australia of two counts of sexual penetration without consent and three counts of unlawful and indecent assault. The convictions were after a trial without a jury before the President of the Children's Court.
At the time of the offending the complainant was 14, and the appellant was 15. They went to the same school, and were in a romantic relationship; they had kissed and cuddled, but the relationship was not more sexual than that. The offending is alleged to have occurred on an occasion when they went to the movies, and then spent time in some shopping centres.
At the trial both the complainant and the appellant gave evidence. The complainant's evidence was that, without her consent, the appellant behaved in a sexually aggressive way both during the movie itself, and afterwards when they both went into a disabled toilet in order to 'make out'. If what the complainant alleges is true, the offending, particularly in the toilet cubicle, was accompanied by physical force. The appellant gave evidence that sexual contact of a type broadly similar to that alleged by the complainant occurred at the times and places alleged by the complainant. However, the appellant swore that it was the complainant who initiated, and took the lead in, a series of quite
adventurous sexual interactions. The appellant swore that those interactions included penile/vaginal sex; the complainant said that did not occur.
The trial judge made credit findings against the appellant, and (more importantly in view of the rule in Liberato v The Queen[2]) in favour of the complainant. He found that the complainant's version of events was plausible; but that the appellant's was not. The trial judge made a finding of fact that the complainant was naïve, sexually inexperienced and a virgin at the time of the offending. This factual finding was the basis for at least three important strands of the trial judge's reasoning as to credit. First, the trial judge accepted the complainant's evidence that when the appellant invited her to go to the toilet cubicle to 'make out', she thought that they were going into the cubicle to kiss. That is, her naivety explained why she co‑operated to the extent of going into the toilet cubicle with the appellant. Secondly, the trial judge thought that the complainant's naivety and sexual inexperience made it quite implausible that she would have taken the lead in the series of sexual interactions which occurred, beginning in the movie theatre itself, but later in the toilet cubicle. Lastly, the trial judge thought that the complainant's inexperience in sexual matters accounted for the fact that she did not immediately take offence at the conduct, and did not complain for some 17 days afterwards: he thought that time was explained by her coming to terms with what had happened; 'processing' it.
[2] Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507.
Initially there was only one ground of appeal: that there was no evidence to support the judge's factual finding that the complainant was sexually inexperienced and was a virgin. The case was listed to be heard on 9 October 2024. Before this hearing, in its written submissions, the State conceded the appeal on this basis.
At the hearing on 9 October 2024, the court indicated to the parties that it was not persuaded that the concession was correct, or that the ground of appeal articulated an appellable error within the terms of s 30 of the Criminal Appeal Act 2004 (WA). In particular, a document had been admitted into evidence before the trial judge from which the necessary implication was that the complainant was a virgin ‑ exhibit 5.
The document was a photograph of a string of text messages which had been exchanged between the complainant and the appellant 18 days after the alleged offending. It reads:
[The complainant]: U sexually assaulted me [name], at the theatre, just cuz we were dating doesn’t mean u had automatic consent to stick your hand down my pants, or force me to stroke you, or deepthroat you, technically i didnt consent to anything cuz you never asked me. I get that ur hypersexuality is a coping mech but that doesnt mean u can SA your partners, if i see you at school ever ill give you your chain,
[The appellant]: the fuck?
[The complainant]: It was sexual assault [name]
I never consented
[The appellant]: you did
[The complainant]: If you actually managed to put it inside me and took my virginity it woukd have been rape
[The appellant]: you did
[The complainant]: No i didnt (emphasis added)
This document was tendered by the State through the complainant, in her evidence‑in‑chief.
Matters having been explored at the hearing on 9 October 2024, the court invited the appellant to seek leave to add two further grounds of appeal to the following effect:
Ground 2: A miscarriage of justice occurred at the trial because defence counsel failed to object to the admission of exhibit 5 into evidence.
Ground 3: The trial judge made a wrong decision on a question of law by failing to direct himself not to take into account in considering his verdicts the complainant's assertion in exhibit 5 that at the time of the offending she was a virgin; alternatively, there was a miscarriage of justice at the trial in that his Honour took that assertion into account in arriving at his verdicts.
Leave was given and the hearing of the appeal was then adjourned until 11 October 2024.
At the resumed hearing, the appellant was given leave to amend ground 1 of the appeal to say that the trial judge's misuse of the evidence before him gave rise to a miscarriage of justice. The appellant argued on the basis of this amended ground, rather than the two which had been added on 9 October 2024. The difficulty with ground 1 is as explained above: there was evidence before the trial judge tendered on an unrestricted basis which supported his factual finding. While various submissions were made about this by the appellant, I think they involved hindsight justification and did not deal with what actually happened at trial.
In opening statements at the trial, the tender of exhibit 5 was foreshadowed. In answer to questions from the trial judge, counsel for the accused said that the document was not to be evidence of recent complaint (ts 42). I cannot see that it could have been a recent complaint. The trial judge expressed scepticism as to the relevance of the document, but matters were left there (ts 42).
There was some recent complaint evidence led in the case. The recipient of the recent complaint was one of the complainant's school friends. The recent complaint was partly oral and partly by text message. The dates were somewhat uncertain; there was no evidence that there was any oral complaint before the date of the first text message between these two friends. That date was some 17 days after the alleged offending. In this first text message to her friend, the complainant describes the physical acts which she says occurred, and says that they were without her consent. She asks her friend 'is that technically rape?' (exhibit 4). There were oral discussions between the two friends after this message was sent.
The evidence was that between the alleged offending, and the day after exhibit 4 was sent, the complainant and appellant had continued their romantic relationship as it had been before the events which were the subject matter of the trial. That is, they continued to kiss or cuddle but there was no more sexual contact than that. Exhibit 5, the complainant's text message ending their relationship, was sent on the day after exhibit 4 was sent.
On appeal, the appellant said that exhibit 5 was tendered and admissible on the basis that it was part of the narrative which would help the trial judge understand the context in which a somewhat delayed recent complaint was made after the alleged offending, but was not to be used testimonially, that is, it was not to be used as containing statements which were true.
There are three things to be said about this submission. The first is that although the trial judge questioned the relevance of the document which became exhibit 5 (ts 42), no submissions were ever made to him about its admissibility. Secondly, the transcript records no limitation on the use of exhibit 5, and so far as counsel appearing on the appeal were able to discover, there was no agreed limitation between trial counsel on the use which the court was to make of exhibit 5. The third thing to say about this submission is that it is wrong as a matter of substance. The messages in exhibit 5 were not relevant in the way suggested. They did not assist in understanding the delay in making the recent complaint. The reverse is true; the questions asked by the complainant as part of exhibit 4, and the discussions which followed between the complainant and her friend, might help to explain why the complainant continued the relationship with the appellant for 17 days after the alleged offending, and then sent the first message in exhibit 5 when she did, in the terms she did.
At the resumed hearing on 11 October 2024, counsel for the appellant put forward another basis which he said justified exhibit 5 having been received into evidence. It was said to contain an admission because the appellant, by the words 'you did', appeared to contradict only assertions as to consent, not assertions as to the acts which the complainant said occurred. Thus it was submitted, exhibit 5 was relevant as an admission of the acts which are alleged in the first message sent by the complainant. I reject this submission.
To begin with, it deals with the message thread as one indissoluble document when it was not; it was a series of separate messages and the emphasised passage, which was the part upon which this appeal was based, could not be an admission.
Further, it is clear from discussions between the trial judge and counsel at the beginning of the case that, in the main, the case was about whether there had been consent to physical acts which both sides of the record accepted took place. It is true that there was a dispute about whether penile/vaginal intercourse took place, and some more minor disputes about physical acts. However, none of the disputed physical acts are described in the complainant's first message in exhibit 5. That is, all the physical acts alleged in the first message in exhibit 5 were uncontentious between the parties.
Furthermore, to amount to an admission, the words 'you did', must be interpreted as meaning that the complainant did consent to each of the several acts described in the complainant's first message. Then, an inference must be drawn that because there is no challenge to the occurrence of the physical acts described, they are admitted by the appellant. I do not consider that the exchange of messages supports such an inference. The appellant was a 15 year old responding to a text message, not a lawyer drafting a comprehensive set of denials to multiple allegations. The words in the appellant's first message, 'the fuck', are clearly a denial of at least some part of the initial message. The exchange of messages is not sufficiently clear and unambiguous to draw an inference from what is not said by the appellant in his message 'you did'.
At the 11 October 2024 hearing, it seemed to be suggested by counsel appearing for both the appellant and the respondent, that there was some basis in 'fairness' for admitting exhibit 5 because it contained denials by the appellant of lack of consent, or perhaps of all the allegations made. These submissions miss the point. Evidence is not to be admitted according to subjective notions of what is fair, but according to the rules of evidence. If the allegations in the first and third text messages in the thread were admissible on some basis, then it might well be that the denials would be fairly admitted as part of a 'mixed statement' in the sense that that term is used in Nguyen v The Queen.[3] Here, there was no basis to admit the accusations in the first and third messages. Thus, no occasion arose to consider whether or not there was a mixed statement, or any other broader notions of fairness to the appellant.
[3] Nguyen v The Queen [2020] HCA 23; (2020) 269 CLR 299.
As the reasons of the trial judge show, there is information contained in the emphasised passage of exhibit 5 which was relevant to the issues in the trial. One aspect of that relevance is illustrated by the way the trial judge in fact used the text. Another way in which the emphasised passage was relevant was that it supported the complainant's evidence that there had been no penile/vaginal sex.
While the information in the emphasised text message was relevant, it was not in admissible form. The text message was an out of court statement, and it was relevant only if it was used testimonially. Thus, it was caught by the rule against hearsay. It also offended the rule against self‑corroboration. The admission of the emphasised text message into evidence was significantly prejudicial to the case run by the appellant below. There was an added dimension of unfairness because defence counsel could not cross‑examine as to the truth of the contents of the text message without seeking leave ‑ s 36BC of the Evidence Act 1906 (WA).
In my view then, the emphasised passage in exhibit 5 was significantly against the case the appellant made below, and was inadmissible. There could have been no legitimate forensic purpose in trial counsel for the appellant allowing the document into evidence.[4]
[4] R v Ignjatic (1993) 68 A Crim R 333, 338 cited in TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, [81].
Whether or not counsel's conduct will result in a miscarriage of justice must be determined having regard to the following statement in HCF v The Queen:
Beech‑Jones CJ at CL recently provided a convenient summary concerning those errors or irregularities that will amount to a miscarriage of justice in observing that, if the error or irregularity 'is properly characterised as a "failure to observe the requirements of the criminal process in a fundamental respect" then it would follow that the conviction would not stand regardless of any assessment of its potential effect on the trial', but otherwise there is no miscarriage unless the error or irregularity is 'prejudicial in the sense that there was a "real chance" that it affected the jury's verdict ... or "realistically [could] have affected the verdict of guilt" ... or "had the capacity for practical injustice" or was "capable of affecting the result of the trial"'.[5] (footnotes omitted)
[5] HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978, [2].
In my view the failure to object to the tender of evidence does not amount to a miscarriage of justice of the first type discussed in the above paragraph, so that this court must look to see whether or not the failure to object was prejudicial in the sense discussed above. Here, because the verdict was given after a trial by judge alone, the court can see for itself that the inadmissible evidence was highly influential in affecting the result of the trial. A miscarriage of justice is established. Ground 2 must therefore succeed.
Ground 3 is a more difficult point. In R v Soma,[6] the majority of High Court judges expressed the view that when evidence was received by a court without objection, the trial judge could not be said to have made a wrong decision on any question of law in admitting the evidence.[7] Nonetheless, the court accepted that the admission of evidence which should have been excluded, because its prejudicial value outweighed its probative value, caused a miscarriage of justice. I think the issues of principle which arise in this case are similar to those dealt with in Soma and accordingly I consider the alternative formulation of ground 3, rather than the question of whether the decision to admit exibit 5 was a wrong decision on a question of law.
[6] R v Soma [2003] HCA 13; (2003) 212 CLR 299.
[7] Gleeson CJ, Gummow, Kirby and Hayne JJ at p 304, [11], and McHugh J at p 324, [79].
In Pemble v The Queen,[8] the High Court was concerned with whether or not a particular version of events which favoured the accused ought to have been left to the jury when a solicitor acting for the accused had disclaimed that version. The case is authority to the effect that the duty of a judge in a criminal case is different from that in a civil case: in a criminal case the trial judge 'must be astute to secure for the accused a fair trial according to law' ‑ p 117. In Velkoski v The Queen,[9] the Victorian Court of Appeal recognised that this authority applied to the admission of evidence, when defence counsel did not take an available objection. The court said:
When irrelevant or inadmissible evidence emerges during the examination of a witness, a trial judge may have to intervene, unless it becomes plain that the course is one agreed to by the parties, and that it will not create the risk of an unfair trial. There will be other circumstances in which the trial judge, in the interests of ensuring a fair trial, will be obliged to question the admissibility of evidence although no objection is taken. ‑ [221]
[8] Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107.
[9] Velkoski v The Queen [2014] VSCA 121; (2014) 45 VR 680, [218] ff.
In Velkoski it was held that where a sensible agreement between counsel had been reached, and there was a deliberate decision of defence counsel not to object to evidence, 'the trial judge was under no duty to examine the basis for the agreement or satisfy herself that the forensic reasons justified that course' - [221]. Similarly in Suresh v The Queen,[10] the High Court dismissed an appeal even though inadmissible evidence had been admitted at the trial. There had been no objection by defence counsel because 'the appellant wanted the evidence of the complainant to be admitted because its admission was perceived as giving the appellant a better chance of acquittal than if the tender of evidence had been rejected' ‑ [23].
[10] Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769, [13], [23].
In Gonzales v The Queen,[11] the New South Wales Court of Criminal Appeal commented that the status of evidence which was inadmissible, but was admitted without objection, was 'not entirely clear'. However, the court recognised that, 'at least in criminal proceedings there may be occasions on which a trial judge is obliged to question the admission of evidence although no objection is taken, in the interests of ensuring a fair trial'.[12]
[11] Gonzales v The Queen [2007] NSWCCA 321, [23].
[12] At [23] and the authorities cited there, including Shaw v The Queen (1952) 85 CLR 365, 381. See also R vLewis [2003] NSWCCA 180, [68] and R v Gay [1976] VR 577, 584.
Here, initially the trial judge did question the relevance of exhibit 5, and expressed dissatisfaction with the information he received. Unfortunately, this point seems to have been lost as the trial progressed. Because the information in the emphasised passage of exhibit 5 was prejudicial to the appellant, and because none of the information in exhibit 5 was admissible, the trial judge ought to have questioned the State's tender. He did not, and the evidence was admitted. The trial judge ought then, in considering his verdict, have given himself a notional direction to disregard the evidence.[13] Ground 3 must succeed.
[13] Section 119 Criminal Procedure Act 2004 (WA).
I would add three further observations. First, the submissions on this appeal were in large part directed to the use counsel below sought to make of exhibit 5. Essentially, it was said that as neither counsel sought to make testimonial use of the exhibit, it was not wrong to admit it into evidence, just wrong to use it testimonially.
This approach to the difficulties in this case was misconceived and unhelpful. The document was either admissible or not. If there was some non‑testimonial use to which it might legitimately have been put, that ought to have been made clear to the trial judge.[14] However, as discussed, there was no legitimate use ‑ testimonial or otherwise ‑ of the document at the time it was tendered.
[14] Cf Bull v The Queen (2000) 201 CLR 443, [76] ‑ [78].
Secondly, argument proceeded on the basis that exhibit 5 was one document, and that the messages it contains were all to be treated in the same way. There is no warrant for this approach.
Thirdly, as there may be a retrial, I record that depending upon what matters are raised in the evidence of the complainant and the appellant at any new trial, it may be that some part of exhibit 5 might become relevant and admissible on any new trial.[15]
[15] For example, as a prior inconsistent statement.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
WH
Research Associate to the Honourable President Buss
30 OCTOBER 2024
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