SGH v The State of Western Australia
[2016] WASCA 161
•16 SEPTEMBER 2016
SGH -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 161
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 161 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:165/2015 | 1 JULY 2016 | |
| Coram: | BUSS P MAZZA JA MITCHELL JA | 16/09/16 | |
| 42 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed New trial ordered | ||
| B | |||
| PDF Version |
| Parties: | SGH THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against conviction Consciousness of guilt Whether jury could infer that the appellant had knowledge of the offences because he was the offender Miscarriage of justice caused by the prosecutor's invitation to the jury to do so Where no objection taken or curative direction given at trial Fresh evidence Whether significant possibility that the jury would have acquitted the appellant |
Legislation: | Criminal Appeals Act 2004 (WA), s 30(4), s 39, s 40 Criminal Code (WA), s 320(2) |
Case References: | Anderson v The State of Western Australia [2014] WASCA 230 ARK v The State of Western Australia [2014] WASCA 45 Beamish v The Queen [2005] WASCA 62 Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314 DPJB v The State of Western Australia [2010] WASCA 12 Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 Goedecke v The State of Western Australia [2013] WASCA 25 JJS v The State of Western Australia [2014] WASCA 136 Lawless v The Queen (1979) 142 CLR 659 Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659 Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 Mannah v The State of Western Australia [2016] WASCA 19 Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 Pearce v The State of Western Australia [2014] WASCA 156 Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 Rinaldi v The State of Western Australia [2007] WASCA 53 RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 Smith v The State of Western Australia [2014] WASCA 90 Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234 Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 Wood v The Queen [2012] NSWCCA 21; (2012) 84 NSWLR 581 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SGH -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 161 CORAM : BUSS P
- MAZZA JA
MITCHELL JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : O'NEAL DCJ
File No : IND 124 of 2015
Catchwords:
Criminal law - Appeal against conviction - Consciousness of guilt - Whether jury could infer that the appellant had knowledge of the offences because he was the offender - Miscarriage of justice caused by the prosecutor's invitation to the jury to do so - Where no objection taken or curative direction given at trial - Fresh evidence - Whether significant possibility that the jury would have acquitted the appellant
Legislation:
Criminal Appeals Act 2004 (WA), s 30(4), s 39, s 40
Criminal Code (WA), s 320(2)
Result:
Appeal allowed
New trial ordered
Category: B
Representation:
Counsel:
Appellant : Mr A E Eyers & Ms K Kumar
Respondent : Mr J McGrath SC
Solicitors:
Appellant : Anthony Eyers
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Anderson v The State of Western Australia [2014] WASCA 230
ARK v The State of Western Australia [2014] WASCA 45
Beamish v The Queen [2005] WASCA 62
Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314
DPJB v The State of Western Australia [2010] WASCA 12
Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
Goedecke v The State of Western Australia [2013] WASCA 25
JJS v The State of Western Australia [2014] WASCA 136
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
Mannah v The State of Western Australia [2016] WASCA 19
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
Pearce v The State of Western Australia [2014] WASCA 156
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
Rinaldi v The State of Western Australia [2007] WASCA 53
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Smith v The State of Western Australia [2014] WASCA 90
Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234
Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657
Wood v The Queen [2012] NSWCCA 21; (2012) 84 NSWLR 581
1 BUSS P: This is an appeal against conviction.
2 The appellant was convicted, after a trial before O'Neal DCJ and a jury, of two counts in an indictment.
3 Count 1 alleged that, on an unknown date between 31 March 1996 and 1 July 1996, at a Western Australian country town (the Town), the appellant sexually penetrated the complainant, a child under the age of 13 years, by penetrating her vagina with his finger, contrary to s 320(2) of the Criminal Code (WA) (the Code).
4 Count 2 alleged that, on the same date and at the same place as in count 1, the appellant sexually penetrated the complainant, a child under the age of 13 years, by penetrating her vagina with his finger, contrary to s 320(2) of the Code.
5 The complainant in each count was the daughter of the appellant's former partner. At the time of the alleged offending, the appellant was aged 41 and the complainant was aged 9.
6 The trial judge sentenced the appellant to a term of 3 years 4 months' immediate imprisonment on each count. The individual sentences were ordered to be served concurrently and backdated to 1 September 2015. A parole eligibility order was made.
The orders made by this court
7 On 8 August 2016, this court made, relevantly, the following orders:
1. Leave to appeal on ground 1 granted.
2. Appellant's application dated 15 December 2015 for leave to adduce additional evidence in the appeal dismissed.
3. State's application dated 1 March 2016 for leave to adduce additional evidence in the appeal dismissed.
4. Appeal allowed.
5. Judgments of conviction set aside.
6. There be a new trial of the appellant on the counts in the indictment.
8 We said that reasons for making those orders would be published later. These are my reasons.
The background facts, the State's case at trial and the appellant's case at trial
9 The background facts, the State's case at trial and the appellant's case at trial are set out in the reasons of Mitchell JA. I will not repeat them except to the extent necessary to explain my reasons.
10 I will refer to:
(a) the complainant's father as 'A';
(b) the complainant's sister as 'M';
(c) the woman with whom A was, at material times, in a relationship as 'K'; and
(d) the appellant's son from a previous relationship as 'D'.
11 I note that:
(a) on 12 December 2002, the complainant made a complaint about the alleged offending;
(b) the appellant gave sworn evidence at the trial and denied that any of the alleged offending had occurred;
(c) the appellant's son, D, gave evidence that, when the alleged offending happened, all three children (that is, the complainant, M and D) were on a bed, D was next to the appellant and nothing untoward occurred between the appellant and the complainant;
(d) the trial judge directed in his summing up that if the jury were to accept the evidence of the appellant and D then they would acquit the appellant on both charges in the indictment (ts 164);
(e) his Honour directed in his summing up that if the evidence of the appellant or D left the jury with a reasonable doubt as to the appellant's guilt on a charge in the indictment then the jury must acquit him on that charge (ts 164);
(f) the State accepted at the trial that the jury could not convict the appellant of an offence unless the jury was satisfied beyond reasonable doubt about the truth and reliability of the complainant's evidence; and
(g) his Honour directed in his summing up that the jury was at liberty to act upon the complainant's evidence and convict the appellant if the jury was satisfied as to the truth and accuracy of her evidence, but it would be unsafe to convict the appellant on the complainant's uncorroborated evidence unless, having scrutinised her evidence with great care, having considered the circumstances relevant to that evidence and having taken full account of his Honour's Longman warning, the jury was satisfied beyond reasonable doubt as to its truth and accuracy (ts 164).
The grounds of appeal
12 Initially, the appellant relied on two grounds of appeal.
13 Ground 1 alleged, in effect, that fresh evidence obtained by the appellant after his trial reveals that his conviction on each of the counts involved a 'serious miscarriage of justice'.
14 Ground 2 alleged, in effect, that in her closing address at the trial the prosecutor implied that the appellant possessed guilty knowledge of the offences, when that submission was not supported by the evidence, and, in the circumstances, the submission occasioned a 'serious miscarriage of justice'.
15 On 20 December 2015, Mazza JA granted leave to appeal on ground 2 and referred the application for leave to appeal on ground 1 to the hearing of the appeal.
16 At the hearing of the appeal, counsel for the appellant applied for leave to amend the grounds of appeal by the addition of new grounds 3 and 4.
17 Proposed ground 3 alleges that the trial judge erred in failing to give the jury a 'curative direction correcting the prosecutor's erroneous submission complained of in [ground 2]'.
18 Proposed ground 4 alleges that his Honour erred in failing to direct the jury on 'the permissible line of reasoning to be used when considering the prosecutor's submission that the appellant possessed guilty knowledge of the offences'.
19 I would grant leave to amend by the addition of proposed grounds 3 and 4, and grant leave to appeal on those grounds.
20 It is convenient to deal with grounds 2 and 3 before addressing grounds 1 and 4.
Grounds 2 and 3: the course of the trial
21 During the complainant's evidence-in-chief, defence counsel (who was not counsel for the appellant in the appeal) made a formal admission, on behalf of the appellant, as follows:
In mid 2008, probably July or August, I was made aware that [the complainant] had made allegations of a sexual nature against me (ts 52).
22 Senior Sergeant Sharon Bird was the investigating police officer.
23 In 2003, Senior Sergeant Bird was seconded to the Armadale Detectives' Office. At that time the appellant was residing in South Australia.
24 On 8 January 2003, Senior Sergeant Bird made a telephone call from Armadale to an address in Adelaide. She spoke to the appellant's mother-in-law. Senior Sergeant Bird wanted to speak to the appellant. The mother-in-law did not provide Senior Sergeant Bird with the appellant's contact details. Senior Sergeant Bird asked the mother-in-law to request the appellant to contact her.
25 Senior Sergeant Bird said in her evidence-in-chief that on 17 January 2003 the appellant contacted her by telephone. She told him that she was 'investigating a matter' and she 'required to speak to him about the matter to ascertain what had happened' (ts 108). The appellant told Senior Sergeant Bird that he would be visiting his family in Western Australia within the next 12 months and he would contact her then to discuss the matter. Senior Sergeant Bird did not divulge to the appellant 'the actual type of matter' that she was investigating (ts 108). To the best of Senior Sergeant Bird's knowledge, the appellant did not attend the Armadale Detectives' Office within the next 12 months. He '[handed] himself in to the police' on 22 April 2014 (ts 109).
26 Senior Sergeant Bird was not cross-examined.
27 During the appellant's examination-in-chief the following exchange occurred between the trial judge, defence counsel and the appellant:
SULLIVAN, MR: In terms of the matters that you're here in court about, when did you first get notified about what [were] the allegations?
O'NEAL DCJ: So you're talking about the criminal charges as opposed to the Family Court proceedings?
SULLIVAN, MR: Yes.
O'NEAL DCJ: When did [the accused] first become aware of the complaint that [the complainant] had made?
SULLIVAN, MR: Yes.
O'NEAL DCJ: Is that right?
SULLIVAN, MR: Yes. I'll rephrase that in answer to his Honour's question?---Well, unofficially, I got a phone call in 2003, I think.
A phone call in 2003?---Yep.
And is - in that phone call you were advised of - - - ?---By someone, yeah.
And did you take that phone call seriously?---No, I didn't. No.
Now, without going into a lot of the background, why did you not take that phone call seriously?---At the time we were getting a lot of prank phone calls about the [Family Court] proceedings with the girls and, well, I just thought it was one of [A's] friends just being funny.
So when did you first take the allegations seriously … ?---In 2008.
What happened in 2008?---I put in for a police clearance.
And what happened when you put in for your police clearance?---That's when I found out there were - there were charges.
So you found out in 2008. You were living in Adelaide at that time?---Yes (ts 121 - 122). (emphasis added)
28 The appellant implicitly accepted in those answers that in the telephone call he 'unofficially' received from 'someone' in 2003, the 'someone' asserted that the complainant had made allegations of a sexual nature against him.
29 The appellant did not, either later in his examination-in-chief or in his re-examination, add to the evidence he gave about the 'unofficial' telephone call he received from 'someone' in 2003 and his belief that it was a 'prank' by one of A's friends.
30 The prosecutor cross-examined the appellant about the 2003 telephone call:
Now, you said that you didn't take the phone call from the police officer seriously?---Nah.
Thought it was someone making a funny phone call?---We had them at least every week then, crank phone calls from either [A] or [K].
So you're saying [A] made crank phone calls to you?---Yeah.
Right. And then you get a phone call, is that what you're saying; you got a phone call from the police?---Yes, as far as I remember, yeah.
But you heard the evidence of Senior Sergeant Bird?---Yes, I did.
You telephoned her?---I honestly don't think I did. I - it could have been a missed phone call and I rang it back but I did think she rang me.
You heard her evidence yesterday?---Yes, I did, yeah.
And you heard that she referred not only to her - used not only her own memory but referred to file notes of those conversations?---I heard her say that, yeah.
And you're saying she's lying?---No, no. I just thought that she did ring me. Whether I got a missed call and rang back the number, I'm not positive, but I honestly thought she rang me. If I rang her and it was the police station, then I would have taken it a bit serious.
You would have taken it seriously if you phoned her at the police station?---If I - if I knew it was the Armadale Police Station that she said, yes.
You couldn't make any inquiry into it being the Armadale Police Station; you couldn't phone the Armadale Police Station from the phone number - from a central number to check whether it was true?---I could have but I didn't. I just took it as a prank call. As I said, we were getting them every week. It was just - I was used to getting prank calls either from her - either from [A] or [K] so I just thought it was one of [A's] mates trying to put a scare up us.
Is it fair to say that you had a fairly acrimonious relationship with [A] and [the complainant] at that time?---With [A]; not with [the complainant], no (ts 127 - 128). (emphasis added)
31 In that passage, the appellant:
(a) accepted that the telephone call he 'unofficially' received from 'someone' in 2003 was, in fact, from Senior Sergeant Bird; and
(b) confirmed that he thought, at the time, that the telephone call was a 'crank' call from one of A's friends, and he did not take it seriously.
32 It was not appropriate for the prosecutor to put to the appellant that he was asserting Senior Sergeant Bird had lied in giving evidence that the appellant had telephoned her in January 2003. The appellant merely said that, as far as he could remember, Senior Sergeant Bird had telephoned him.
33 The prosecutor did not ask the appellant about the content of his telephone conversation with Senior Sergeant Bird.
34 The prosecutor did not explore with the appellant whether he was informed by anyone, on one or more occasions, in 2003 or before mid-2008, that the complainant had made allegations of a sexual nature against him and, if so, who had informed him of the complaint and what his belief was as to the accuracy or reliability of that information.
35 The prosecutor did not put to the appellant that his evidence concerning the 2003 telephone call was inconsistent with the formal admission made by defence counsel on his behalf. Also, the prosecutor did not put to the appellant that he was never informed, in 2003 or before mid-2008, that the complainant had made allegations of a sexual nature against him. Further, the prosecutor did not put to the appellant that the only reason he had an awareness of the alleged offending, in 2003 or before mid-2008, was a consciousness of guilt arising from his having, in fact, committed the offences as alleged by the complainant.
36 According to the formal admission made by defence counsel on behalf of the appellant, the appellant became aware in mid-2008 that the complainant had made allegations of a sexual nature against him. It was implicit in the admission that the appellant had not been aware before mid-2008 that the complainant had made those allegations. The appellant's evidence to the effect that, as a result of the 2003 telephone call, he became aware 'unofficially' that the complainant had made a complaint about him, may have been the product of the appellant's realisation, in mid-2008 or later, that the 2003 telephone call was in fact a genuine conversation with a real police officer, and the matter which the police officer was investigating in 2003 must have been the complainant's complaint against him.
37 The appellant's evidence in relation to the 2003 telephone call, and the evidence generally as to the state of the appellant's awareness, as at 2003, in relation to the complainant's complaint, was ambiguous.
38 In her closing address, the prosecutor referred to Senior Sergeant Bird's and the appellant's evidence about the 2003 telephone call and the appellant's evidence as to when he became aware that the complainant had made allegations of a sexual nature against him:
Now, you've just heard the evidence of the accused. He says he thought it was a prank. Senior Sergeant Bird had a phone call from him a week, more than a week after she's left a phone message with his mother-in-law.
Recall [Sergeant Bird's] evidence that she only told [the accused] it was an inquiry. She didn't tell him the nature of the charges. But was it his evidence, ladies and gentlemen, today that he knew then of the charges but didn't take it seriously until 2008?
How could he know the nature of the charges? She didn't tell him. Well, he apparently didn't come back to Perth all of that time and didn't present himself to police until 22 April 2014 and he only did so because he needed to get a police clearance for his business.
…
Now, [the accused] says he knew of the charges in 2003. How? He didn't hear it from the investigating officer. But you've also heard evidence that the very latest that he knew about the charges was 2008 but it took him until 2014 to present himself to the police (closing ts 12 - 13). (emphasis added)
39 In that passage, the prosecutor stated that the appellant had said in evidence that 'he knew of the charges in 2003'.
40 The appellant actually said, in substance, that:
(a) he had 'unofficially' been informed by 'someone' in 2003, who he accepted in cross-examination was Senior Sergeant Bird, but who he thought at the time was one of A's friends making a 'prank' or 'crank' call; and
(b) he therefore did not take seriously, at the time, the person's assertion that the complainant had made allegations of a sexual nature against him.
41 The prosecutor did not expressly state the source of the appellant's knowledge of 'the charges in 2003'. However, it was implicit in her submissions that the prosecutor was inviting the jury:
(a) to find that the appellant believed, in 2003, that the 2003 telephone call related to sexual offending by him against the complainant in that he had a consciousness of guilt arising from his having, in fact, committed the offences; and
(b) to take that finding into account in deciding whether the State had proved the appellant's guilt beyond reasonable doubt.
42 The trial judge addressed these issues in his summing up as follows:
With respect to the evidence of [the accused] and his credibility, [the prosecutor] reminded you of his evidence that he learned about [the complainant's] complaint or first heard it suggested in a telephone call that he had with someone he thought was claiming to be a police officer in 2003 but that he regarded that as a prank and was not aware that he was speaking to a real police officer. [The prosecutor] asks you to compare that to the unchallenged evidence of Senior Sergeant Bird who gave evidence based on the notes she made at the time when she tried to contact [the accused] and eventually received a call from him. She had not managed to get a number for [the accused] at the time so it wasn't a question of simply hitting a recall or a respond button but she received a call from him, from [the accused], after she spoke to his mother-in-law, and she told you that she didn't tell him any details of the complaint. [The prosecutor] asks you to consider how then [the accused] could have known, two years after the Family Court proceedings had stopped, that [the complainant] was complaining about his conduct unless he, in fact, knew that because of his role in it (ts 159 - 160). (emphasis added)
43 In that passage his Honour stated the following. First, the appellant gave evidence that he became aware of the complainant's complaint during a 'prank' telephone call from someone who was, in fact, a police officer (Senior Sergeant Bird), but who the appellant thought at the time was someone claiming, falsely, to be a police officer. Secondly, the prosecutor asked the jury to compare the appellant's account of that conversation with the unchallenged account of Senior Sergeant Bird; in particular, her evidence that she did not inform the appellant about the complainant's allegations. Thirdly, the prosecutor wanted the jury to consider how the appellant could have known that the complainant was making allegations of a sexual nature against him, unless the appellant knew because he had, in fact, committed the offences.
44 The third point made by the trial judge in the passage in question expressly stated what was implicit in the prosecutor's submissions, namely that the appellant had knowledge of 'the charges in 2003' because he had, in fact, committed the offences.
Grounds 2 and 3: the relevant legal principles
45 The prosecutor in a criminal trial represents the State. The prosecutor must act 'with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one': Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657, 663 - 664 (Deane J).
46 As Mazza JA (McLure P agreeing generally & Newnes JA agreeing) noted in Goedecke v The State of Western Australia [2013] WASCA 25 [36]:
Consistently with a prosecutor's duty, in a closing address a prosecutor should not (inter alia) tell a jury something that is not evidence (R vCallaghan [1993] QCA 419; [1994] 2 Qd R 300, 306; offer a personal opinion (KNP v The Queen [2006] NSWCCA 213; (2006) 67 NSWLR 227 [32]), introduce false lines of reasoning or invite a jury to speculate about the evidence. As to these last two points see Wood v The Queen [2012] NSWCCA 21.
- See also JJS v The State of Western Australia [2014] WASCA 136 [134] (Martin CJ, Pullin JA agreeing & Buss JA relevantly agreeing).
47 In Wood v The Queen [2012] NSWCCA 21; (2012) 84 NSWLR 581, McClellan CJ at CL (Latham & Rothman JJ agreeing) said that asking questions, even in a rhetorical manner, and inviting the jury when considering its verdict to consider whether the accused had provided satisfactory answers to the questions, was an impermissible course for a prosecutor to follow because it reversed the onus of proof [605].
48 If a prosecutor breaches his or her duty at trial it will be necessary for an appellate court to evaluate the significance of the breach in the context of the trial as a whole, including whether any objection to the prosecutor's course of conduct was taken by defence counsel. See Whitehorn (664); Goedecke [35], [37]; JJS [134].
49 A judge is bound to give a direction to the jury if, in the circumstances of the particular case, the direction is necessary to avoid a perceptible risk of a miscarriage of justice. See Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, 324 - 325 (Brennan J); Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, 86 (Brennan, Dawson & Toohey JJ); Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234 [123] (Callinan J), [158] (Crennan J). This is an incident of the judge's duty to ensure a fair trial for the accused. See RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41] (Gaudron A-CJ, Gummow, Kirby & Hayne JJ).
Grounds 2 and 3: their merits
50 The merits of grounds 2 and 3 must be evaluated in the context of two critical issues identified by the trial judge in his summing up; namely, the jury could not convict the appellant of an offence unless:
(a) the jury was satisfied beyond reasonable doubt about the truth and reliability of the complainant's evidence in relation to the alleged offence; and
(b) the jury rejected the appellant's sworn evidence that the alleged offending had not occurred,
and, also, in the context of his Honour's Longman warning and the whole of the evidence at the trial.
51 At the trial, defence counsel's formal admission, on behalf of the appellant, was that the appellant became aware in mid-2008 that the complainant had made allegations of a sexual nature against him. As I have mentioned, it was implicit in the admission that the appellant had not been aware before mid-2008 that the complainant had made those allegations.
52 Senior Sergeant Bird's evidence was that on 17 January 2003 the appellant contacted her by telephone. During their conversation she did not divulge to him the kind of matter that she was investigating; that is, she did not inform him that the complainant had made allegations of a sexual nature against him. As I have mentioned, Senior Sergeant Bird was not cross-examined.
53 In my opinion, the jury could not find that the appellant was aware, in 2003, that the complainant had, in fact, made allegations of a sexual nature against him, unless it was open to the jury:
(a) to reject the appellant's evidence that in 2003 he 'unofficially' received a telephone call, which at the time he believed was a 'prank' or 'crank' call and which at the time he did not take seriously, from 'someone' who asserted that the complainant had made allegations of a sexual nature against him; and
(b) to accept Senior Sergeant Bird's evidence that during her telephone conversation with the appellant on 17 January 2003 she did not divulge to him the kind of matter she was investigating; and
(c) either:
(i) to find that in 2003 the appellant was aware that the complainant had made allegations of a sexual nature against him because there was other evidence as to his having been informed, in or before 2003, of the complaint; or
(ii) to find that in 2003 the appellant was aware that the complainant had made allegations of a sexual nature against him because he believed, in 2003, that the 2003 telephone call was in fact a genuine conversation with a real police officer and because there was evidence which permitted an inference to be drawn that the appellant believed, in 2003, that the 2003 telephone call related to sexual offending by him against the complainant in that he had a consciousness of guilt arising from his having, in fact, committed the offences.
55 Also, I am satisfied that it was open to the jury to accept Senior Sergeant Bird's evidence that during her telephone conversation with the appellant on 17 January 2003 she did not divulge to him the kind of matter that she was investigating. A finding by the jury to that effect would have been based on an assessment of Senior Sergeant Bird's credibility and reliability in the context of the absence of any challenge to her evidence on the point.
56 There was no other evidence to the effect that in 2003 the appellant was aware that the complainant had made allegations of a sexual nature against him because he had been informed, in or before 2003, of the complaint.
57 I am satisfied that it was open to the jury to find, by the acceptance of Senior Sergeant Bird's evidence and by the rejection of the appellant's evidence, in the context of the whole of the evidence at the trial, that the appellant believed, in 2003, that the 2003 telephone call was in fact a genuine conversation with a real police officer.
58 However, in my opinion, there was an insufficient foundation in the evidence for an inference to be drawn that the appellant believed, in 2003, that the 2003 telephone call related to sexual offending by him against the complainant in that he had a consciousness of guilt arising from his having, in fact, committed the offences.
59 As I have mentioned:
(a) the prosecutor did not ask the appellant about the content of his telephone conversation with Senior Sergeant Bird;
(b) the prosecutor did not explore with the appellant whether he was informed by anyone, on one or more occasions, in 2003 or before mid-2008, that the complainant had made allegations of a sexual nature against him and, if so, who had informed him of the complaint and what his belief was as to the accuracy or reliability of that information;
(c) the prosecutor did not put to the appellant that his evidence concerning the 2003 telephone call was inconsistent with the formal admission made by defence counsel on his behalf;
(d) the prosecutor did not put to the appellant that he was never informed, in 2003 or before mid-2008, that the complainant had made allegations of a sexual nature against him; and
(e) the prosecutor did not put to the appellant that the only reason he had an awareness of the alleged offending, in 2003 or before mid-2008, was a consciousness of guilt arising from his having, in fact, committed the offences as alleged by the complainant.
60 In my opinion, fairness required the prosecutor:
(a) to ask the appellant about the matter specified in par (a) of [59] above;
(b) to explore with the appellant the matter specified in par (b) of [59] above; and
(c) to put to the appellant the matters specified in pars (c), (d) and (e) of [59] above,
and to obtain answers supporting a finding that the appellant believed, in 2003, that the 2003 telephone call related to sexual offending by him against the complainant in that he had a consciousness of guilt arising from his having, in fact, committed the offences, before inviting the jury, in her closing address, to make that finding and to take it into account in deciding whether the State had proved the appellant's guilt beyond reasonable doubt.
61 Also, as I have mentioned, the appellant's evidence in relation to the 2003 telephone call, and the evidence generally as to the state of the appellant's awareness, as at 2003, in relation to the complainant's complaint, was ambiguous.
62 In the circumstances, it was not open to the jury to infer that, in 2003, the appellant had the relevant awareness in that he had a consciousness of guilt arising from his having, in fact, committed the offences. The drawing of that inference would not have been a logical conclusion based on objective facts. It would have involved mere conjecture.
63 It is not reasonably arguable, on a proper understanding of his evidence, that the appellant made an admission against interest at the trial, arising from the timing of his awareness of the complainant's complaint, that revealed a consciousness of guilt. There was no admission against interest that was probative of the appellant's guilt on either or both of the counts in the indictment. The appellant's evidence as to the timing of his awareness of the complainant's complaint did not, either alone or in combination with any other evidence, corroborate or support the complainant's allegations.
64 It is relevant, in evaluating whether a miscarriage of justice has occurred as a consequence of the matters complained of in grounds 2 and 3, that defence counsel did not seek any additional directions or redirections from the trial judge in relation to those matters. However, it was not suggested by counsel for the State (and it could not reasonably have been suggested) that there was any forensic advantage to the appellant's case in defence counsel not seeking any additional directions or redirections from his Honour.
65 In my opinion, the prosecutor's implied submission in her closing address, and her implied invitation to the jury to accept, that the appellant possessed guilty knowledge of the offences, was not supported by the evidence and, in the circumstances, sought impermissibly to enhance the State's case and to prejudice the appellant's defence.
66 I consider that the trial judge erred in expressly stating, in his summing up, what was implicit in the prosecutor's closing address, namely that the appellant had knowledge of 'the charges in 2003' because he had, in fact, committed the offences and in failing to give the jury a direction which corrected the prosecutor's implied submission and implied invitation. Absent a curative direction from his Honour, there was a real risk that the jury may have accepted the prosecutor's implied invitation, in her closing address, to find that the appellant possessed guilty knowledge of the offences and to take that factor into account in deciding whether the State had proved the appellant's guilt beyond reasonable doubt. The curative direction was necessary, in the context of the whole of the evidence adduced and the issues at the trial, to avoid a perceptible risk of a miscarriage of justice.
67 Grounds 2 and 3 have, in substance, been made out.
Ground 4
68 It is unnecessary to deal with ground 4.
Ground 1
69 Ground 1 relied on information which the complainant's stepmother, K, provided to the appellant after he was convicted of the offences.
70 The evidentiary material relating to K which the prosecutor disclosed to the appellant before the trial, the uncontentious facts concerning the prosecutor's dealings with K at that time, the additional evidence sought to be relied on by the appellant and the additional evidence sought to be relied on by the State are set out or summarised in the reasons of Mitchell JA. It is unnecessary to repeat them.
71 Section 39(1) of the Criminal Appeals Act2004 (WA) provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. By s 39(3), however, s 39(1) does not affect the power of an appeal court to admit evidence pursuant to s 40 of the Act. Section 40(1) provides, relevantly:
For the purposes of dealing with an appeal, an appeal court may do any or all of the following -
(a) order the production of any record or thing, whether or not an exhibit, that is or may be relevant to the appeal;
(b) order a witness who would have been compellable at the trial in the lower court, whether or not called at the trial, to attend and be examined before the appeal court;
…
(d) subject to the Evidence Act 1906 section 9, admit the evidence of a witness, including a convicted appellant, who is a competent but not compellable witness;
(e) admit any other evidence.
72 In Rinaldi v The State of Western Australia [2007] WASCA 53, Steytler P said, in relation to s 40(1)(a), (b), (d) and (e):
While these provisions afford the Court a discretion, which is not expressed to be limited in any way, to do any of the things provided for, it is most improbable that the legislature intended that they 'should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction': CDJ v VAJ (1998) 197 CLR 172 at [111] per McHugh, Gummow and Callinan JJ (dealing with the provisions of s 93A(2) of the Family Law Act 1975 (Cth)) and see also De La Espriella-Velasco at [150] per Pullin JA. The common law principles have, of course, been developed over many years in order to meet the ends of justice and the considerations giving rise to them will plainly be material to the exercise of the statutory discretion, which must be exercised judicially. While the common law principles touching upon the distinction between new and fresh evidence are not necessarily determinative of the manner of exercise of the statutory discretion, the considerations giving rise to those principles will ordinarily be weighty, so much so that it will be a rare case in which an exercise of the statutory discretion produces a different outcome to that produced by application of the common law principles [84].
73 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. See Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 - 676 (Mason J); DPJB v The State of Western Australia [2010] WASCA 12 [66] (Owen JA, McLure P relevantly agreeing).
74 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 fact finding tribunal, acting reasonably, would have acquitted the accused. See Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 399 (Gibbs CJ), 402 (Mason & Deane JJ); Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273 (Mason CJ), 301 - 302 (Toohey & Gaudron JJ).
75 In the present case, counsel for the State conceded, correctly, that the additional evidence is fresh, as distinct from new, evidence.
76 In ARK v The State of Western Australia [2014] WASCA 45, I made the following observations (Mazza JA agreeing) in relation to this court's approach to and assessment of additional evidence admitted in an appeal:
The appellate court must decide on the relevance of the additional evidence. It must decide on the credibility of oral evidence and on the authenticity of documentary evidence. In some situations, the appellate court must decide whether it believes the additional evidence. In other situations, the appellate court will merely decide whether the evidence is capable of belief, and is likely to be believed, by reasonable people. After deciding on the relevance and credibility or authenticity of the additional evidence, the appellate court will evaluate its cogency in the context of the evidence adduced at the trial. The evidence which forms part of the trial record must be taken by the appellate court in the sense in which, having regard to the verdict, the jury must have accepted it. See Rattan v The Queen [1974] HCA 35; (1974) 131 CLR 510, 518 (Barwick CJ, McTiernan, Stephen & Jacobs JJ agreeing). See also Lawless (665) (Barwick CJ) [139].
77 In Rattan v The Queen [1974] HCA 35; (1974) 131 CLR 510, Barwick CJ (McTiernan, Stephen & Jacobs JJ agreeing) explained the manner in which an appellate court must approach additional evidence where the court is considering whether a judgment of conviction should be set aside outright in that innocence is shown or the existence of an appropriate doubt is established:
[T]he court will consider all the material itself, forming and acting upon its own belief in, or disbelief of, the evidence, and upon its own view of the facts of the case including the evidence at the trial, though, as I have said, taking the facts as proved at the trial in the sense which having regard to its verdict the jury must have taken them. Of course, if it is concluded that there was a miscarriage in the sense that the court itself is satisfied of innocence or entertains a reasonable doubt as to guilt, there will be no question of a new trial. The verdict of guilty will be quashed and the appellant discharged.
Further, when the material before the court satisfies the court of a miscarriage of this kind, it will not matter that the new material or some part of it is not fresh evidence, in the sense that it was not or could not have been available at the time of the trial. Thus, until the court decides that there is no miscarriage of this kind, it will not need to consider whether or not any part of the new evidence satisfied the criterion of fresh evidence. The court's acceptance that guilt beyond reasonable doubt is not established, means inevitably that to maintain the verdict of guilty would be a miscarriage of justice. Also, as I have already said, it will not matter in such a case that the trial was fair and without blemish (518 - 519).
78 However, if the appellate court itself is not satisfied of innocence and does not entertain a reasonable doubt as to guilt, or if the appellant's claim is confined to a new trial (and not an outright acquittal), the approach of the appellate court to additional evidence which is fresh, as distinct from new, will be different. In those circumstances, the appellant's case will be that a miscarriage of justice occurred at the trial because the fresh evidence was not before the jury for consideration. See Rattan, where Barwick CJ elaborated:
In this situation, the court must as before decide the credibility and the cogency of the fresh evidence in order to determine whether, when the fresh evidence, if believed by the jury, is taken with the evidence given at the trial in that sense most favourable to the accused which reasonable men might properly accept, it is likely that a verdict of guilty would not have been returned. In considering the material before it for this purpose, the element of credibility will be satisfied if the court is of opinion that the evidence is capable of belief and likely to be believed by a jury. The court in this instance will not be directly acting upon its own view of the evidence but rather upon that view most favourable to an appellant, which in the court's view a jury of reasonable men may properly take (519).
79 In Rattan, Barwick CJ summarised the position as follows:
To sum up, if the new material, whether or not it is fresh evidence, convinces the court upon its own view of that material that there has been a miscarriage in the sense that a verdict of guilty could not be allowed to stand, the verdict will be quashed without more. But if the new material does not so convince the court, and the only basis put forward for a new trial is the production of new material, no miscarriage will be found if that new material is not fresh evidence. But if there is fresh evidence which in the court's view is properly capable of acceptance and likely to be accepted by a jury, and which is so cogent in the opinion of the court that, being believed, it is likely to produce a different verdict, a new trial will be ordered as a remedy for the miscarriage which has occurred because of the absence at the trial of the fresh evidence (520).
80 The additional evidence sought to be relied on by the appellant in the appeal included, relevantly, an affidavit of K sworn 13 December 2015. At the hearing of the appeal, K was cross-examined on her affidavit by counsel for the State.
81 The additional evidence sought to be relied on by the State comprised an affidavit of the prosecutor at the trial, Marina Greenshields, sworn 1 March 2016, and an affidavit of a paralegal who assisted the prosecutor in the preparation of the State's case for the trial, Heidi Anne Valuks, sworn 24 February 2016. Counsel for the appellant did not require either Ms Greenshields or Ms Valuks to attend for cross-examination.
82 I agree with Mitchell JA, for the reasons he gives, that:
(a) K's evidence to the effect that she told the prosecutor and the paralegal, before the trial, that if K was required to give evidence at the trial she would 'tell the truth and it's not going to help your case', should be rejected;
(b) the evidence of Ms Greenshields and Ms Valuks that K did not tell them that her evidence would be unhelpful to the State's case should be accepted;
(c) K's evidence about her conversations with the prosecutor and the paralegal is not credible or reliable, and the evidence of Ms Greenshields and Ms Valuks in relation to those conversations is to be preferred; and
(d) there was no material non-disclosure by the prosecutor, at or before the trial, of any relevant evidentiary material.
83 I agree with Mitchell JA's analysis of K's other evidence about her alleged conversations in December 2002 with the complainant. Like Mitchell JA, I am of the view that K's evidence as to her conversations with the complainant in December 2002 involved a significant degree of reconstruction and was influenced by her conflict with A and her subjective beliefs as to what was likely to have occurred.
84 In my opinion, K's additional evidence is not credible or reliable. When the additional evidence is evaluated in the context of K's previous statements and the whole of the evidence at the trial, the additional evidence is not reasonably capable of belief, and is unlikely to be believed, by reasonable people.
85 I am satisfied that a miscarriage of justice did not occur at the appellant's trial because K's additional evidence was not before the jury for consideration. The additional evidence does not give rise to a significant possibility of a different verdict.
86 Ground 1 fails.
The proviso
87 As I have mentioned, grounds 2 and 3 have, in substance, been made out. I am not persuaded that no substantial miscarriage of justice has actually occurred. Counsel for the State did not submit otherwise. The proviso in s 30(4) of the Criminal Appeals Act is not engaged.
88 MAZZA JA: I agree with Buss P.
89 MITCHELL JA: These are my reasons for joining in orders allowing this appeal, made on 8 August 2016.
Summary
90 The appellant was convicted of two counts of sexually penetrating the 9-year-old daughter of his former partner on a single occasion in 1996, when they were watching television with other children in a bedroom. A complaint was made about the incident to police in December 2002. Police did not pursue the appellant (who was then living in South Australia) until he handed himself in to police in 2014. The appellant gave evidence at trial in which he recalled the occasion of the alleged offence, but denied that anything untoward occurred on that occasion. The jury returned a majority guilty verdict on both counts.
91 The appellant's principal complaint on appeal is that the prosecutor implied to the jury during her closing address that the appellant had impliedly admitted possessing guilty knowledge of the offence, when the evidence was not capable of supporting that conclusion. I am satisfied that this ground is made out, and that the prosecutor's submission, combined with the absence of correction by either defence counsel or the trial judge, gives rise to a miscarriage of justice. The appeal should be allowed and the appellant's convictions set aside on this ground.
92 The appellant also contends that fresh evidence has emerged since his trial which gives rise to a miscarriage of justice. The fresh evidence principally concerns evidence of what the complainant told her father's former partner about the incident in December 2002, which differs in some respects from the complainant's evidence at trial. I accept the State's concession that the evidence is to be characterised as fresh evidence. However, the cogency, credibility and relevance of the fresh evidence of the father's former partner is not such as to give rise to a significant possibility that the jury, acting reasonably, would have acquitted the appellant had her evidence been adduced at trial. The fresh evidence ground of appeal is not made out in those circumstances.
93 My reasons for these conclusions follow.
People and locations
94 The complainant was born in 1986 to her mother, P, and father, A. The complainant had a sister, M, who was about two years younger than the complainant. P and A separated in 1995, when the complainant was 8 years old. After the separation, the complainant continued to live with her mother P and sister M in the family home in a country town, but would still see and spend time with her father.
95 Not long after the separation, the complainant's mother, P, began a relationship with the appellant. By March 1996, P, the appellant, the complainant and M were living together in a different house in the same town. D, who was the appellant's son from a previous relationship, also lived at the house for a time. D was about the same age as the complainant's younger sister, M.
96 In 1997, the complainant and M went to stay with their father, A, in Perth. At that time, A was in a relationship with K. A and K had a son, T, who was born in 1999.
The prosecution case
97 The State's case was that, on an unknown date in April, May or June 1996 when the complainant was 9 years old and M and D were 7 years old, the complainant, M and D were all watching a television show in a bedroom in the front of the family home. The complainant was sitting on a bed with the appellant, M was sitting on the floor, and D was sitting on a couch in the bedroom. The complainant's mother, P, was not home at the time.
98 The prosecution case was that the appellant told the complainant to change into a nightie and come under the covers with him. The State alleged that the appellant rubbed the complainant's vagina inside and out with his fingers, and continued to do so until she left the room, despite her asking him to stop because it hurt.
99 The State alleged that the next day or very soon thereafter, when A was visiting P, the appellant approached the complainant and said words to the effect:
Don't tell your mother. I made a mistake. I thought you were your mum. I was missing your mum.
100 The prosecutor told the jury that the complainant did not tell anybody about the incident until around 1998, when she told a friend and another boy not much older than her what the appellant had done. In around 2001, the complainant wrote a note about what had happened and placed it in her photo album. In December 2002, T was playing with the photo album on the floor of M's bedroom. A and K took the note from T and read it, initially thinking that it had been written by M as it was found in her room.
101 When the complainant, who was then 16 years old, came home that day, her father, A, asked her about the note, still thinking that it was written by M. The complainant told A that she had written the note and been sexually assaulted by the appellant. A immediately reported the incident to police.
102 In their opening statements, the prosecutor and the appellant's trial counsel each said that the only contentious issue in the case was whether the alleged incident had occurred at all.
103 The State called three witnesses:
1. the complainant, who gave an account of the event consistent with the State's opening;
2. A, who gave uncontentious evidence about where members of the family were living at various times, and described finding the note and making a report to police; and
3. Sergeant Bird of Western Australia Police, who described the complaint being made on 12 December 2002, and contacting the appellant (who was then living in South Australia) in January 2003.
104 Sergeant Bird also explained that the police practice at that time was not to seek extradition of persons in relation to matters of this kind. The appellant handed himself into police in Western Australia in April 2014.
105 The complainant's two-page note was also tendered. It read in part:
I hate [the appellant] and what he did to me. I hate the fact that I think about it every day, him with his hands on me and it scares me.
106 The note was tendered by the prosecutor without objection from (indeed at the request of) the appellant's trial counsel. The trial judge allowed that to occur on the basis that, while the note was not strictly relevant, the tender would 'dispel any speculation or risk of speculation as to exactly what its contents were' (ts 17).
107 In cross-examination, the complainant accepted that she had written a number of letters to her mother, and had discussions with a family law counsellor, in which she was critical of P and the appellant but did not allege sexual offending. The complainant accepted that she visited Adelaide and stayed with the appellant on two occasions after the alleged offending, first when her mother was dying of cancer and on a second occasion after she had passed away. The complainant was asked about several aspects of the sexual offending, and rejected the proposition that it did not occur.
The defence case
108 The appellant gave evidence that he recalled a time he was watching television in the bedroom with the complainant, M and D, which he described as a 'one-off'. He said that all three children were on the bed, and they were all resting against the bedhead. The appellant denied lifting the complainant's nightie or putting his hands down her underwear.
109 D also gave evidence. He described the children and the appellant watching television, resting against the bedhead, and said that he did not notice anything out of the ordinary and did not see any pushing or shoving or hear any harsh words.
Grounds 2 - 4: closing statements by prosecutor
110 It is convenient to deal firstly with grounds 2 - 4, which are the grounds on which the appeal should, in my view, succeed.
111 The appellant's second ground of appeal contends that the prosecutor implied to the jury during her closing address that the appellant possessed 'guilty knowledge' of the offences the subject of his convictions, when such a submission was not supported by the evidence and when the matter had not been put to the appellant in cross-examination. The appellant argues that this misstatement amounted to a serious miscarriage of justice.
112 The particulars to the ground identify the evidence and submissions at trial about the circumstances in which the appellant became aware of the complainant's allegations.
113 Ground 3 alleges that the trial judge erred in failing to give a curative direction to correct the error in the closing submissions. Ground 4 alleges, in the alternative, that the trial judge erred in failing to direct the jury on the permissible line of reasoning to be used when considering the prosecutor's submission. The particulars indicate, in effect, that the jury ought to have been directed that they could only treat the appellant's evidence as an implied admission if they were satisfied that the only source of the appellant's knowledge was his involvement in the offences.
Appellant's formal admission
114 During the course of the prosecutor's examination of the complainant, she was asked whether the appellant had ever spoken to her about the incident (ts 42). In the absence of the jury, the appellant's trial counsel raised a 'concern' about the question, by reason of the complainant's answers to earlier questions containing evidence which had surprised both counsel. He queried the relevance of the question (ts 43 - 44).
115 The prosecutor's answer indicated that the evidence would be relevant as it would show the appellant had:
knowledge of the incident and had knowledge that … there were charges outstanding for him in Western Australia (ts 44).
- The prosecutor indicated that she intended to lead evidence of two conversations to establish that knowledge, which she said occurred in 2008. The trial judge asked whether there was any issue that in 2007 or 2008 the appellant learned of the outstanding charges, to which the appellant's trial counsel responded:
There's no issue in 2007, 2008. If there's any suggestion though, the concern I have is the suggestion that somehow [the appellant] wasn't aware of the complaint but in some other circumstances actually knew about it.
The reason I say that is 2003, the suggestion is the investigating officer said there's complaint but didn't give any details.
In mid 2008, probably July or August, I was made aware that [the complainant] had made allegations of a sexual nature against me (ts 52).
Sergeant Bird's evidence
117 Sergeant Bird gave evidence that she attempted to contact the appellant, who she understood to be living in South Australia. On 8 January 2003, she called a telephone number she had for the appellant and spoke to the appellant's mother-in-law (ts 107). The appellant's mother-in-law did not provide the appellant's contact details. Sergeant Bird asked the appellant's mother-in-law to pass on a message to contact her.
118 Sergeant Bird gave evidence that the appellant contacted her on 17 January 2003. She said:
I told him that I was investigating a matter that I was looking into and that I required to speak to him about the matter to ascertain what had happened … He said to me that he had family in Western Australia, that he was a permanent resident in South Australia, but he had two daughters here, I think [names redacted], and grandchildren and that he would be visiting in the next 12 months and would contact me to discuss the matter. I did not divulge the actual type of matter that it was in that phone call (ts 108).
119 Sergeant Bird was not cross-examined.
The appellant's evidence
120 During the appellant's evidence-in-chief, the following exchange occurred:
SULLIVAN, MR: In terms of the matters that you're here in court about, when did you first get notified about what was the allegations?
O'NEAL DCJ: So you're talking about the criminal charges as opposed to the Family Court proceedings?
SULLIVAN, MR: Yes.
O'NEAL DCJ: When did he first become aware of the complaint that [the complainant] had made?
SULLIVAN, MR: Yes.
O'NEAL DCJ: Is that right?
SULLIVAN, MR: Yes. I'll rephrase that in answer to his Honour's question?---Well, unofficially, I got a phone call in 2003, I think.
A phone call in 2003?---Yep.
And is - in that phone call you were advised of - - - ?---By someone, yeah.
And did you take that phone call seriously?---No, I didn't. No.
Now, without going into a lot of the background, why did you not take that phone call seriously?---At the time we were getting a lot of prank phone calls about the [Family Court] proceedings with the girls and, well, I just thought it was one of [A's] friends just being funny.
So when did you first take the allegations seriously […] ?---In 2008.
What happened in 2008?---I put in for a police clearance.
And what happened when you put in for your police clearance?---That's when I found out there were - there were charges.
So you found out in 2008. You were living in Adelaide at that time?---Yes (ts 121 - 122).
121 The appellant was cross-examined about whether he had called Sergeant Bird or she had called him (ts 127 - 128). In the course of that evidence, the appellant reiterated that he had thought the call was a prank.
Counsel's closing submissions
122 In the course of her closing submissions, the prosecutor referred to the appellant's evidence about the call which he thought was a prank in 2003. The prosecutor then referred to Sergeant Bird's evidence:
Recall her evidence that she only told him it was an inquiry. She didn't tell him the nature of the charges. But was it his evidence, ladies and gentlemen, today that he knew then of the charges but didn't take it seriously until 2008?
How could he know the nature of the charges? She didn't tell him. Well, he apparently didn't come back to Perth all of that time and didn't present himself to police until 22 April 2014 and he only did so because he needed to get a police clearance for his business (closing ts 12).
123 After referring to the fact that, unlike other witnesses, the accused was present in court for all the evidence, 'which may be coloured by what he's heard in court', the prosecutor said:
Now, he says he knew of the charges in 2003. How? He didn't hear it from the investigating officer. But you've also heard evidence that the very latest that he knew about the charges was 2008 but it took him until 2014 to present himself to the police (closing ts 13).
124 Defence counsel did not take issue with the prosecutor's statement that the appellant knew about the 'charges' in 2003. He described the evidence about the phone call in 2003 as a 'distraction' (closing ts 21 - 22).
Trial judge's direction
125 The trial judge addressed this issue in the following terms when summarising the prosecutor's closing submissions, indicating that the prosecutor:
reminded you of [the appellant's] evidence that he learned about [the complainant's] complaint or first heard it suggested in a telephone call that he had with someone he thought was claiming to be a police officer in 2003 but that he regarded that as a prank and was not aware that he was speaking to a real police officer (ts 159 - 160).
126 After referring to the evidence of Sergeant Bird, including that she said that she didn't tell the appellant any details of the complaint, the trial judge said that the prosecutor asked the jury:
to consider how then [the appellant] could have known, two years after the Family Court proceedings had stopped, that [the complainant] was complaining about his conduct unless he, in fact, knew that because of his role in it (ts 160).
Applicable principle
127 The relevant principles were summarised by Mazza JA in Goedecke v The State of Western Australia,1 in the following terms:
The fundamental duty of a prosecutor representing the State is to 'act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one' …
When a prosecutor fails to carry out his or her duty, a miscarriage of justice may occur because an accused may have been denied the right to a fair trial. I say 'may occur' because not every failure leads to a miscarriage of justice. A judgment is required by an appellate court as to its importance having regard to the context of the overall trial.
Consistently with a prosecutor's duty, in a closing address a prosecutor should not (inter alia) tell a jury something that is not evidence, offer a personal opinion, introduce false lines of reasoning or invite a jury to speculate about the evidence.
Although not decisive to the determination of whether speculation by the prosecutor has given rise to a miscarriage of justice, it is relevant to consider whether the matter was raised with the trial judge by defence counsel. If no objection was taken to the comment, an appellate court may well infer that in the context of the trial it was not prejudicial to the appellant's right to a fair trial. It would usually be expected that when a comment is thought to give rise to the risk of a miscarriage of justice, defence counsel would say so and seek a direction from the trial judge to the prosecutor to correct the comment, a direction to the jury to ignore the comment or the discharge of the jury. (citations omitted)
Disposition of grounds 2 - 4
128 The Director correctly identified the critical issue as being whether the evidence left it reasonably open for the jury to conclude that the appellant was, in 2003, aware of the allegations made by the complainant because he committed the charged offence (appeal ts 76).
129 The Director submits that it was open to the jury to accept Sergeant Bird's evidence, to the effect that the appellant returned her call and she gave no information to the appellant as to the nature of the matter she was investigating. The Director submits that there was no evidence that any police officer, other than Sergeant Bird, made contact with the appellant prior to 2008, when it was formally admitted that he was aware of the complainant's complaint against him. The Director submits that it was open to the jury to reject the appellant's evidence that he believed that Sergeant Bird's phone call in 2003 was a prank associated with P's Family Court proceedings against A, when the evidence of A and the appellant was that those proceedings ended in 2000 (ts 101 - 102, 128).
130 Although it is ambiguous, the passage from the appellant's evidence-in-chief can reasonably be construed as accepting that he was told about the complainant's complaint in a phone call he received, and took to be a prank, in 2003. In this part of his evidence, the appellant is not expressly or implicitly stating that he was aware of the complaint in 2003 because he committed the offence. The only evidence which supported the conclusion that the appellant was aware of the complaint in 2003 was his own evidence about the phone call. This was not a case where there was independent evidence of an accused's relevant knowledge which a jury might accept, and a separate attempt by the accused to explain how the knowledge was innocently acquired which a jury might reject. In the present case, if the jury rejected the appellant's evidence about the phone call, there was no other evidence of his having knowledge of the complaint at any time prior to 2008.
131 The Director also submits that there was no evidence that, prior to 2008, the appellant received information from any other source that the complainant had made a complaint or as to the nature of that complaint.
132 That submission is correct. However, a reason for that state of affairs is that no one asked the appellant whether he was aware of the complainant's complaint from any other source prior to 2008. There were a variety of possible means by which the appellant could have obtained that knowledge which were not addressed by, and therefore not excluded by, the evidence. A and K were clearly aware of the complaint, and might have told either the appellant or other family members, who could have relayed the information onto the appellant. These matters were not explored in evidence.
133 The prosecutor did not explore the extent of the appellant's knowledge of the 'nature' of the complaint in 2003, and never put to the appellant that he acquired his knowledge of the complaint because he committed the offence, rather than from some other source. In my view, fairness required the prosecutor to put that to the appellant in cross-examination before using the appellant's alleged knowledge of the complaint in 2003 as a basis for inviting the jury to reject his denial of the offence. The manner in which the trial had been conducted to that point did not provide the appellant or his trial counsel with reason to apprehend that the prosecutor would advance such a submission, which may need to be countered by additional evidence. Further, and for present purposes more importantly, the fact that the proposition was not put to the appellant by either counsel means that there was simply no evidence as to whether or not the appellant could have learnt of the complaint in 2003 other than by having committed the offence.
134 The Director submits that it was open to the jury to conclude that when the appellant received the phone call from Sergeant Bird, he realised that it related to the complainant's allegations against him, and this knowledge arose from his having committed the offences of which she complained. The conclusion that the appellant could not have been aware of the complainant's complaint by any other means is inherent in that proposition. The absence of any evidence about alternative sources of information does not provide an evidentiary foundation for that conclusion. As neither the appellant nor other witnesses were asked about the existence of alternative sources of knowledge about the complaint, there was no more than an absence of evidence about the ways in which the appellant could have been aware of the complainant's allegations.
135 Further, even if the appellant had committed the charged offence, he would not necessarily have known that it was reported to the police in 2003. He could have been aware of the complainant having made a complaint without having committed the offence. The prosecutor invited the jury to adopt fallacious reasoning when she suggested that knowledge of the complaint equated to, or gave rise to an inference of, first-hand knowledge of the offending.
136 The appellant's trial counsel did not object to the prosecutor's submission, but there was no potential forensic advantage in declining to do so, and the unfairness of the submission is apparent from the transcript. The trial judge did not give any curative direction, which should have indicated that it was not open to the jury to find that the appellant had implicitly admitted committing the offence. In the absence of a curative direction there was a risk that the jury would conclude, from the absence of any challenge to the prosecutor's statement, that the appellant had admitted to having knowledge which he could only have acquired if he committed the offence. That risk arose in a finely balanced trial where the jury could only find the appellant guilty if satisfied of the reliability of the complainant's uncorroborated account in the face of the appellant's denial, and no obviously compelling reason for rejecting the appellant's denial is apparent from my review of the transcript.
137 In my view, the evidence did not leave it reasonably open to conclude that the appellant was aware, in 2003, of the allegations made by the complainant because he was the offender. The prosecutor's closing address implied that the appellant had admitted knowledge that he could only have acquired if he had committed the alleged offences. The trial judge's summary of the prosecutor's submissions made express the prosecutor's implication. Absent a corrective direction by the trial judge, there was a risk that the jury would understand that the appellant had admitted possessing knowledge which he could only have acquired by committing the offence, when the evidence was not capable of supporting that conclusion. The jury might have used that conclusion to inform its assessment of the appellant's and complainant's evidence.
138 In all the circumstances, the prosecutor's submission and the absence of any corrective direction from the trial judge deprived the appellant of a fair trial and thereby gave rise to a miscarriage of justice. The State correctly concedes that the proviso is not applicable in these circumstances, so that the appeal must be allowed and the appellant's conviction set aside.
139 Given this conclusion it is unnecessary to deal with ground 4, which is premised on this court finding that it was reasonably open for the jury to conclude that the appellant impliedly admitted having committed the offence.
Ground 1: new evidence and material non-disclosure
140 The appellant's first ground of appeal contends that:
Evidence has emerged since the conclusion of the appellant's trial and its unavailability to the appellant for the use in his conduct of the trial amounted to a serious miscarriage of justice.
141 It is also strictly unnecessary to deal with ground 1. However, I will do so for the sake of completeness.
142 This ground relies on information K, the complainant's step-mother, provided to the appellant after his conviction. I shall identify the evidentiary material relating to K which the prosecutor disclosed to the appellant prior to trial, the uncontentious facts concerning the prosecutor's dealings with K prior to trial and the nature of the new evidence before dealing with the merits of the ground.
K's 2003 statement
143 K provided a written statement to police, which was signed on 14 February 2003. In that statement, K describes the various living arrangements before describing the location of the complainant's note in the following terms:
21. In early December 2002 I was visiting [A] at his house.
22. [M] was at school but [the complainant] had finished.
23. [The complainant] was in year 11 and finished the school year about 5 weeks earlier than [M].
24. At about 10 am [T] was playing in [M's] bedroom. I walked in there. [T] had picked up a piece of paper off of the floor. [A] walked into the bedroom. I took the paper of[f] [T] and had a look at it.
25. I then handed it to [A] who read it.
26. I thought it was [M's] letter.
27. [The complainant] came home around 10 am. [A] and I asked her what was going on with [M] because I thought the note was [M's]. So did [A].
28. [A] showed [the complainant] the note. [The complainant] then admitted it was her note.
29. I spoke to [the complainant] about the note and why she wrote it.
30. [A] rang the police.
31. [A] and I were in a de facto relationship until August 1999.
144 K's 2003 statement was provided to the appellant as part of the prosecutor's pre-trial disclosure. K's name was included in the list of witnesses on the back of the indictment.
Proofing of K prior to trial
145 Prior to the trial, the State's officers had some difficulty in locating K's current address. K was eventually contacted by a paralegal employed in the Office of the Director of Public Prosecutions on 17 August 2015. The paralegal and the prosecutor who appeared for the State at trial attended K's residence on 18 August 2015 for a proofing session. The prosecutor made some notes of the conversation on a copy of K's 2003 statement, and the paralegal served K with her subpoena for trial.
Other events prior to trial
146 On 19 August 2015, K telephoned the paralegal. The details of that conversation are disputed, but it is common ground that K expressed some reluctance about giving evidence at the appellant's trial. The paralegal relayed an account of this conversation to the prosecutor, and suggested that the prosecutor speak to K. Later on the same day, the paralegal received another call from K, following which the paralegal sent a text message to the prosecutor which relevantly read:
[K] has spoken to her lawyer. He has settled her down. She is good to go. No need to get in touch with her.
147 The prosecutor responded with a text message thanking the paralegal.
148 On Monday 24 August 2015, a psychologist who was treating K contacted the Director's office and eventually spoke to the prosecutor. The psychologist advised the prosecutor that K had a social anxiety disorder and would not be able to give evidence in open court. The prosecutor asked the psychologist to send a report to her. The prosecutor telephoned the appellant's trial counsel, advised him of K's social anxiety disorder and asked whether the appellant would consent to a special witness order. The appellant's trial counsel indicated that he would agree to a special witness order, subject to what the psychologist's report stated.
149 Later on 24 August 2015, K telephoned the prosecutor. Again, the details of that conversation are contentious. However, it appears to be common ground that K sought to be excused from attending the trial for medical reasons and was told that she should obtain a medical certificate for that purpose.
150 On the evening of 24 August 2015, the psychologist emailed the prosecutor a report which indicated that K was suffering from social anxiety disorder and depression and was in a fragile emotional state, and recommended that she not be required to give evidence.
151 On 25 August 2015, the prosecutor telephoned the appellant's trial counsel and advised him of K's situation. On the same day, she wrote to the appellant's trial counsel to disclose information provided by witnesses, including K, during proofing sessions.
152 The prosecutor's letter to the appellant's trial counsel indicated that K had said, in relation to pars 28 and 29 of her 2003 statement:
I believe [the complainant]. She was a really sweet kid who didn't tell lies. [M] could sometimes tell lies but [the complainant] never did.
- The prosecutor's letter noted that K and A had separated and that K had remarried, referring to an argument one Christmas after which T went to live with A. The letter indicated that K had said:
I don't wish to help [A] but this happened to a little girl and it was wrong.
As discussed today, I was contacted by [K's] psychologist … who advised me that she has a social anxiety disorder. He has now sent me a report requesting that she be excused from giving evidence. In addition, [K] contacted me to advise that she is 7 weeks pregnant and has begun spotting. She visited her GP this morning and was told that she is likely to lose the baby. She further told me that her GP will be providing a medical certificate that she is not well enough to give evidence. Attached is the Psychologist's report. Would your client agree to [K] being excused from attendance? Would your client agree to [K's] statement being read into evidence?
154 Later on 25 August 2015, the appellant's trial counsel emailed the prosecutor indicating that, given the materials provided, he did not require K to be called as a witness and 'would not propose that her statement be read in'.
155 K sent a medical certificate to the paralegal on 27 August 2015, which was handed by the prosecutor to the appellant's trial counsel on 31 August 2015.
Evidence on which the appellant seeks to rely
156 K contacted a legal representative of the appellant on 2 December 2015. That contact resulted in K swearing an affidavit on 13 December 2015.
157 In the affidavit, K describes giving her 2003 statement, and does not contend that anything in that statement is incorrect. She describes the proofing session, and indicates a number of 'corrections' she would make to the prosecutor's proofing notes. None of those corrections are critical for present purposes. K says that, after the proofing session, she decided that she did not want to get involved. In her 2015 affidavit, she deposes:
After the above meeting and during a telephone conversation I said to one of the two ladies that I did not want to attend court. I cannot remember who I said this to. I said to her words to the effect, 'If I go to court, I'm going to tell the truth and it's not going to help your case'. The lady responded that they would only ever want me to tell the truth or something along those lines. She did not seek to clarify what I had meant by 'it's not going to help your case'.
158 Both the paralegal and the prosecutor deny that K ever told them that her evidence would not help the State's case.
159 After describing the provision of the psychologist's report and the medical certificate to the Director's office, K describes what she had in mind when she said that the truth would not help the prosecution case.
160 Paragraphs 22 - 28 of the 2015 affidavit describe the relationship between A and the appellant. In my view, K would not have been able to give admissible evidence about the matters dealt with by those paragraphs at trial.
161 Paragraphs 29 - 41 of the 2015 affidavit provide a more detailed account of the discovery of the complainant's note in December 2002 and of what the complainant told K about the incident at that time. The account which K attributes to the complainant differs in some material respects from that given by the complainant at trial. Most significantly, the account which K attributes to the complainant involves a brief assault without any indication of penetration. In her 2015 affidavit, K describes the complainant saying:
The Appellant walked into the room [and] sat down next to her.
He put his hand down her pants and he pulled his hand out and then put it down again and pulled out again quickly.
[The complainant] never ever mentioned to me during this conversation or any conversations afterwards that penetration occurred.
From the way [the complainant] described it, I got the impression it happened very quickly.
162 If K's account had been disclosed to the appellant's trial counsel in these terms, he could have put to the complainant the statements attributed to her by K and, if she denied making them, have sought to prove the prior inconsistent statements through K under s 21 of the Evidence Act 1906 (WA). Admissions by the complainant or evidence from K that prior inconsistent statements had been made could have impacted on the jury's assessment of the credibility and reliability of the complainant's evidence. However, the appellant's trial counsel would have reason to be cautious about adducing this evidence, which tends to support the complainant's account to some extent and is inconsistent with the appellant's denial that any sexual offending occurred.
Principles governing appeals on the basis of new or fresh evidence
163 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.2
164 For this purpose, 'fresh' evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered. 'New' evidence is evidence which was available at the trial or which could, with reasonable diligence, then have been discovered. There is no miscarriage of justice in the failure to call evidence at trial if that evidence was then available, or, with reasonable diligence, could have been available unless the new evidence establishes that the accused should not have been convicted.3
165 The State concedes that the additional evidence on which the appellant seeks to rely may be categorised as 'fresh' rather than 'new'. The basis for that concession is that it would be reasonable for the appellant's trial counsel not to independently contact K once he had received her witness statement, the proofing notes and material related to her medical condition. That is, from the appellant's perspective, the evidence could not have been obtained with reasonable diligence. The appellant's contention and State's concession that the evidence is fresh are made irrespective of whether or not K in fact made the statement 'if I go to court, I'm going to tell the truth and it's not going to help your case'. I accept the submission that the additional evidence is to be regarded as fresh on this basis.
166 The unavailability of fresh evidence gives rise to a miscarriage of justice if the appellate court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the evidence had been before it at trial.4
167 In deciding whether the fresh evidence is such as to satisfy the appeal court that there has been a miscarriage of justice, the appeal court has the responsibility of examining the fresh evidence in order to satisfy itself whether the evidence is relevant, credible and cogent. If the evidence is not credible and cogent it may be rejected. The role of this court in considering an appeal based on fresh evidence is to determine whether the evidence is capable of being accepted as true by a reasonable jury.5
Cogency of evidence of material non-disclosure
168 I do not accept K's evidence that she told the prosecutor or paralegal that, if she was required to give evidence, she was 'going to tell the truth and it's not going to help your case'.
169 The appellant's experienced appeal counsel did not seek to cross-examine either the prosecutor or the paralegal. The fact that the appellant did not challenge their affidavit evidence counts in favour of its acceptance.
170 It is apparent from the letter written by the prosecutor of 25 August 2015 that she was well aware of her disclosure obligations and was diligent in discharging them. The terms in which the letter is expressed strongly suggest that the prosecutor would have disclosed the statement if it had been made. One would also expect the prosecutor to have asked K about what it was about her evidence that she considered would not assist the prosecution case. Neither K nor the prosecutor suggested that a conversation of this kind occurred.
171 K's evidence about the making of the statement is very vague, and does not indicate the person to whom or the time at which the statement was made. K's oral evidence was also inconsistent with her 2015 affidavit. In her affidavit, she described making the statement in a telephone conversation, while in her oral evidence she recalled making the statement when the prosecutor and paralegal attended her house (appeal ts 21 - 22). K also said that, after reading her 2015 affidavit in court, 'I believe it must be on the phone but, to be honest, I thought I said it while she was there' (appeal ts 23).
172 K's evidence on appeal was to the effect that she was upset and reluctant to give evidence at trial because of inaccuracies she perceived in the proofing notes. However, K was unable to recall whether she received the proofing notes before or after trial (appeal ts 23 - 24).
173 It was also clear from K's oral evidence that she has a very acrimonious relationship with A, and her perceptions of A appear to be colouring her perception and recollection of events concerning his daughter (appeal ts 25, 28). She appeared to be a very emotional witness.
174 Having regard to all of the evidence, I am not satisfied that K ever told the prosecutor or paralegal that if she came to court, she would 'tell the truth and it's not going to help your case', or that there was any material non-disclosure by the prosecutor of evidentiary material which was relevant to the case. I do not regard K's evidence about her conversations with the prosecutor and paralegal as reliable, and prefer the State officers' evidence where it is inconsistent with K's. I accept the prosecutor's and paralegal's evidence that K did not tell them that her evidence would be unhelpful to the prosecution, and reject K's evidence to the contrary.
Cogency of evidence about prior inconsistent statements
175 My rejection of K's evidence about the recent conversation which she alleges occurred in 2015 leads me to treat her evidence as to conversations with the complainant in December 2002 with circumspection.
176 The conversation in December 2002 occurred 12 years before K recorded it in her 2015 affidavit. There is no evidence that she made and retained any earlier record of the details of that conversation.
177 K gave evidence that she relayed her conversations with the complaint in December 2002 both to the police in 2002 - 2003 and to the prosecutor in 2015 (appeal ts 15, 29 - 30). However, she would not say unequivocally that she told either the police or prosecutor what is set out in paragraphs of her 2015 affidavit which describe that conversation (appeal ts 17 - 18, 30).
178 My assessment is that K's evidence as to the details of the conversations she had with the complainant in December 2002 involved a significant degree of reconstruction, influenced by her conflict with A and her beliefs as to what occurred.
Disposition of ground 1
179 I do not think K sought deliberately to mislead the court. However, having regard to the whole of her evidence, including the matters specifically referred to above, a reasonable jury could not have considered K's account in 2015 of a conversation she had with the complainant in December 2002 to be reliable. The potential use of her evidence from the appellant's perspective would be to prove a prior inconsistent statement by the complainant. In my view the cogency, credibility and relevance of the additional evidence is not such as to give rise to a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the additional evidence had been adduced at trial. I would therefore dismiss ground 1.
Orders
180 For the above reasons, I joined in making orders set out at [7] of Buss P's reasons. I would also make orders granting the appellant leave to add grounds 3 and 4, and grant leave to appeal on those grounds.
1Goedecke v The State of Western Australia [2013] WASCA 25 [33], [35] - [37].
2 See Lawless v The Queen (1979) 142 CLR 659, 675 - 676; DPJB v The State of Western Australia [2010] WASCA 12 [66]; Anderson v The State of Western Australia [2014] WASCA 230 [36]; Pearce v The State of Western Australia [2014] WASCA 156 [26].
3Beamish v The Queen [2005] WASCA 62 [9] - [13].
4Smith v The State of Western Australia [2014] WASCA 90 [159].
5 See Mannah v The State of Western Australia [2016] WASCA 19 [95] - [97].
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