Singh v The State of Western Australia - [2010] WASCA 95

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: SINGH -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 95

CORAM: McLURE P
BUSS JA
JENKINS J

HEARD: 12 MARCH 2010

DELIVERED : 17 MAY 2010

FILE NO/S: CACR 161 of 2009

BETWEEN: BALBINDER SINGH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :FENBURY DCJ
File No  :IND 179 of 2009

Catchwords:

Criminal law - Appeal against conviction - Whether cross-examination and comment by prosecutor infringed right to silence - Effect of misdirection by trial judge on fresh complaint - Whether verdicts unreasonable or cannot be supported by evidence - Turns on own facts

Legislation:

Criminal Code (WA), s 322(2), s 322(4), s 323
Evidence Act 1906 (WA), s 36BD

Result:

Leave to appeal is granted on grounds 1, 2 and 3
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr D Grace QC
Respondent: Mr K M Tavener

Solicitors:

Appellant: D G Price & Co
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Harman v The State of Western Australia [2004] WASCA 230; (2004) 29 WAR 380
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
McKinnon v The State of Western Australia [2010] WASCA 51
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365

McLURE P: This is an application for leave to appeal, and if leave is granted, an appeal against the appellant's conviction after trial on two counts of indecent dealing with a child under his care, supervision or authority contrary to s 322(4) of the Criminal Code (WA) (the Code), two counts of sexually penetrating a child under his care, supervision or authority contrary to s 322(2) of the Code and two counts of indecent assault contrary to s 323 of the Code.
The appellant is a physiotherapist who operated a physiotherapy practice in Marangaroo and Balga. On 22 May 2008 the complainant, who was aged 17, was employed by the appellant as a receptionist at the Marangaroo practice. The complainant worked in that position until 19 July 2008.
The appellant provided free physiotherapy treatment to the complainant. On the complainant's evidence at trial, the offences the subject of counts 1 to 4 were committed during four separate physiotherapy treatment sessions which occurred on unspecified dates and times between 26 June 2008 and 20 July 2008. Counts 5 and 6 occurred on 29 July 2008.
The complainant gave evidence that the appellant introduced her to physiotherapy treatment by coming up behind her while she was working at Marangaroo and rubbing her neck and shoulders (ts 40). The appellant would tell the complainant her muscles were tight and offer free treatment which he provided. In total, the appellant treated the complainant around 10 times (ts 85). One of those treatment sessions was on 19 June 2008.
On 26 June 2008 the appellant used eczema cream on the complainant in a treatment session for the first time. On that date the complainant told the appellant she was suffering from eczema and they both went to the pharmacy next door to the Marangaroo practice to purchase eczema cream for which a prescription was required. The complainant agreed that the first offence occurred some time after the eczema cream was first used (ts 181).
The complainant's evidence in relation to count 1 was that during a treatment session the appellant was rubbing eczema cream into her while she was laying on her stomach. He put his hands underneath her and massaged her breasts and said 'You like me playing with you don't you?' (ts 47, 48).
In relation to count 2, the complainant said that some time after count 1, the appellant was rubbing cream into the complainant's upper chest and breast area and her nipple became exposed from underneath her bra. The appellant said 'It's okay. I've seen them many times before'.
The complainant's evidence in relation to count 3 was that during another treatment session the appellant was massaging the complainant's legs and her bottom area. The appellant then slipped his hand into her underwear and put his fingers between her vaginal lips and said 'The muscles are tight there' (ts 54).
In relation to count 4 the complainant said that during another physiotherapy session and when she was lying on her back, the appellant was applying eczema cream and began massaging her breasts and stomach area. The appellant then inserted his finger into the complainant's vagina (ts 55 ‑ 56).
On 8 July 2008 the complainant was told during a performance appraisal that she was not meeting the required standard. The complainant became upset and gave two weeks' notice. The complainant's final day at work was 19 July 2008.
On 29 July 2008 at around 5.20 pm, the appellant telephoned the complainant and asked her to pay the pharmacist for the eczema cream. He also asked her to stop in at the practice to say hello to him (ts 58). The complainant arrived at the practice around 6.00 pm (ts 58, 386). The appellant provided her with physiotherapy treatment during which he removed the complainant's bra and rubbed her breasts with eczema cream (count 5). He also massaged the top of the complainant's genital area (count 6). The appellant offered the complainant money if he was allowed to do things to her (ts 57 ‑ 62).
The complainant drove home after the treatment session and according to her mother, arrived home she thought, somewhere between 6.30 pm and 6.45 pm (ts 244). The complainant was in a distressed condition for the remainder of the evening according to the evidence of both the complainant's mother and Constable Tomkins who attended on the complainant later that evening.
The appellant was arrested by police on 31 July 2008. He participated in a visually recorded interview in which he made admissions about providing physiotherapy treatment to the complainant and rubbing eczema cream into affected areas. He denied any sexual impropriety. Further, on the same date police executed a search warrant at the Marangaroo premises. The police were searching for documentary records relating to the complainant's employment with and physiotherapy treatment provided by the appellant, who was present and advised of the purpose of the search. The Marangaroo practice diary was provided by the appellant to one of the police officers (Detective Constable Leonie Dyer) who examined but did not seize it. Police officer Dyer gave evidence that she did not seize it because she was satisfied it was of no evidentiary value (ts 304).
The appellant gave evidence at trial. His case at trial was, in substance, that none of the conduct complained of took place, that there was a lack of opportunity for the offences the subject of counts 1 to 4 to have taken place between 26 June 2008 and 20 July 2008, and that the complainant's evidence should not be accepted by the jury beyond reasonable doubt having regard to:
(i)various inconsistencies in the complainant's evidence;
(ii)the improbability of the complainant's allegations in light of her visiting the appellant on 29 July 2008;
(iii)the lack of time for the appellant to have committed the offences the subject of counts 5 and 6 having regard to when the complainant arrived at his practice and when she arrived home.
The appellant also relied on evidence of his good character and attacked the adequacy of the police investigation. The defence criticised the failure of the police to undertake fibre testing, the failure to seize the complainant's clothing for DNA testing, the failure to seize the Marangaroo practice diary and the failure to question the complainant by reference to that diary and other practice records.
There are four grounds of appeal. Grounds 1 and 2 overlap and are based on an accused's right to silence. In ground 1 the appellant contends there was a miscarriage of justice because he was cross‑examined about his failure to produce certain documents to police and about his failure to tell the police that Ravinder Phagura (sometimes referred to in evidence as 'Rav') worked full‑time at Marangaroo from 1 July 2008. The implication of the cross‑examination being that it provided a basis for the jury to infer the appellant's defence was a new invention or was rendered suspect or unacceptable.
The appellant contends in ground 2 that there was a miscarriage of justice as a result of the failure of the trial judge to direct the jury that no adverse inference could be drawn from the fact that he did not produce documents to police and did not, when questioned by police, mention that Mr Phagura worked full‑time at Marangaroo from 1 July 2008.
In ground 3 the appellant claims the trial judge made an error of law or there was a miscarriage of justice as a result of the judge commenting to the jury that the complainant's evidence in respect of counts 1 and 2 was, according to the prosecution, supported by a fresh complaint.
The final ground of appeal is that the convictions are, having regard to the evidence, unreasonable or cannot be supported. This ground is based on the alleged lack of opportunity for the incidents the subjects of counts 1 to 6 to take place. I propose to commence with ground 4 because the issues and evidence at trial are relevant to the consideration of grounds 1 and 2.

Ground 4

The appellant volunteered information to police during his video‑taped interview on 31 July 2008 and the tape was tendered in evidence. The appellant said he was giving the complainant physiotherapy treatment, he thought, about once a week at Marangaroo (AB 90). The interview continued:
Q. And when ‑ you said once a week you'd treat her.
A. Yeah.
Q. Would that be, I don't know, at ‑ between clients or when exactly would it be.
A. Um. Probably would have been between because, um, I couldn't do it when clients are there.
Q. Yeah.
A. So ‑ Yeah.
Q. So you ‑ what you're saying is like filling the gaps,
A. Yes.
Q. Like you were busy and then‑‑‑
A. Yeah, yeah, yeah, yeah, yeah, yeah. Filling the gaps. So if there was a gap there then sure (AB 90 ‑ 91).
It was put to the appellant that the complainant said she received physiotherapy treatment from the appellant sometimes twice a week. He responded:
I don't ‑ I honestly don't know. I don't think so. I only work twice a week so you know what I mean (AB 91).
The appellant admitted treating the complainant's neck, between her shoulder blades, shoulders, middle back, lower back, buttock muscles and leg muscles although he did not treat 'all of the areas every time' (AB 94, 95). He also admitted applying eczema cream, not as part of the physiotherapy treatment, but as a favour (AB 119).
The appellant also spoke to police about the meeting with the complainant, at his request, on the evening of 29 July 2008 (AB 100 ‑ 108). He admitted that he gave the complainant physiotherapy treatment, undid her bra, applied eczema cream, accepted he might have asked the complainant to take off her pants so he could look at her lower back and might have massaged her legs. The appellant agreed that the complainant arrived about 6.00 pm and left around 6.15 pm or 6.20 pm (AB 110).
The appellant also explained to police that in the absence of a patient, there would normally be two people at the Marangaroo practice, the physiotherapist (either the appellant or Rav but not both of them) and the receptionist (the complainant) (AB 112 ‑ 113). On occasions the appellant's wife would be present to do the accounts as she was the practice manager.
It would be open to the jury to conclude from the appellant's statements in the video record of interview that he admitted having the opportunity to commit offences 1 to 4 in the period between 26 June 2008 and 20 July 2008 (the relevant period). He thought he had provided physiotherapy treatment to the complainant about once a week and did not reject the possibility that it may occasionally have been twice a week. The appellant worked for just over three weeks after 26 June 2008. The uncontradicted evidence at trial established that the appellant attended at the Marangaroo practice on nine days in the relevant period (Friday 27 June 2008, Monday 30 June 2008, Tuesday 1 July 2008, Thursday 3 July 2008, Tuesday 8 July 2008, Wednesday 9 July 2008, Thursday 10 July 2008, Friday 11 July 2008 and Tuesday 15 July 2008). He provided physiotherapy services to clients on seven of those days (27 June 2008, 30 June 2008, 1 July 2008, 3 July 2008, 8 July 2008, 10 July 2008 and 15 July 2008). In particular, he provided physiotherapy services at Marangaroo on five days in the week commencing Monday 23 June 2008, three days in the week commencing Monday 30 June 2008, two days in the week commencing Monday 7 July 2008 and one day in the week commencing Monday 14 July 2008.
The appellant had not kept records of the treatments he gave the complainant save for that given on 19 June 2008. The complainant was extensively cross‑examined by reference to the diary for the Marangaroo practice. She was taken to the page for each day from and including 19 June 2008 to 19 July 2008 with the object of attempting to establish that there was no, or no reasonable opportunity, for offences 1 to 4 to have been committed. The complainant was asked to identify from that diary the days and periods of the day that the appellant and Mr Phagura worked at the Marangaroo practice. The complainant was unable to be specific as to the dates and times when she received physiotherapy treatment from the appellant. Thus the cross‑examination was restricted to opportunities for treatment that ranged between 'possible', 'impossible' and shades in between. On the complainant's evidence, there was adequate opportunity for the complainant to have received physiotherapy treatment on four separate occasions in the relevant period.
In his examination‑in‑chief the appellant gave unequivocal evidence (by reference to the practice diary for Marangaroo and to a lesser extent Balga, his personal diary and his independent recollection) that he did not give physiotherapy treatment to the complainant on any of the days on which he attended at the Marangaroo practice in the relevant period. The appellant's evidence at trial was categoric, inconsistent with his admissions in the video record of interview and may be thought to stretch credulity.
The legal principles governing the disposition of this ground are well known, uncontroversial and do not need to be repeated. See M v The Queen (1994) 181 CLR 487; MFA v The Queen (2002) 213 CLR 606; Libke v The Queen (2007) 230 CLR 559. It was clearly open to the jury, in law and in fact, to be satisfied beyond reasonable doubt that the appellant had adequate opportunity to provide physiotherapy treatment to the complainant at the Marangaroo practice on at least four separate occasions in the period between 26 June and 20 July 2008.
As to counts 5 and 6, the complainant gave evidence that after paying for the eczema cream at the pharmacy she arrived at the Marangaroo practice shortly after 6.00pm. After finishing with a patient and exchanging pleasantries with the complainant, the appellant started rubbing her shoulders and neck before offering to provide physiotherapy treatment. The complainant did not recall what time she arrived home (ts 215) and did not accept her mother's estimation of around 6.30 pm to 6.45 pm (ts 223). In his video record of interview the appellant estimated that he was with the complainant from around 6.00 pm to 6.15 pm ‑ 6.20 pm. In his evidence at trial he said the complainant was with him for 'probably 15 minutes max' (ts 391). Either way, there was adequate opportunity for the conduct to have occurred.
This ground has no prospect of succeeding, and I would refuse leave.

Grounds 1 and 2

The appellant was cross‑examined about the documents relied on by him to support the claim that he did not have the opportunity to commit offences 1 to 4.
The appellant was also cross‑examined about his evidence that Mr Phagura worked full‑time at the appellant's physiotherapy rooms in Marangaroo from 1 July 2008 which he also relied on to support the claim that he did not have the opportunity to commit offences 1 to 4.
The cross‑examination on those subjects is as follows:
And you say these documents prove your innocence, effectively‑‑‑I say that those documents are true and accurate.
Do you agree you could have walked into a police station at any time and handed these documents over to Detective Leonie Dyer---Mr Nicholls, you saw the search warrant as much as I did. I offered that diary to the police officers, Mr Nicholls. If they chose not to take it, that's not for me to then walk in and give it to them again. I've given that [personal] diary immediately to Gerald Yin [the appellant's solicitor].
…
You didn't produce your personal diary on that particular occasion---May not have had it on me, Mr Nicholls. Nor was I asked for it, Mr Nicholls.
And would you agree with this, in your video interview you said absolutely nothing about Rav working full-time from 1 July onwards‑‑‑ …
…
You said nothing about Rav working full-time from 1 July onwards---Give me the transcript, I can make it for sure. And give me a lot of time to read through every single thing. I don't remember everything I said.
…
You also said nothing off camera to Detective Dyer or any of the detectives there about Rav being full-time from 1 July onwards---Mr Nicholls, now, that's ‑ you know, Mr Nicholls, if I did, how would I prove my innocence, Mr Nicholls?
You're now convinced he was working full-time from 1 July onwards---I think the diary makes it fairly obvious, Mr Nicholls.
14 months later and you're certain he's there from ‑ from 1 July onwards‑‑‑Well, 14 months later, Mr Nicholls, the diary doesn't lie and hasn't changed, so---
You haven't filled in those diaries or those records at all since‑‑‑Mr Nicholls, I take great offence to that accusation.
Just asking the question, Mr Singh---No, Mr Nicholls---
Yes or no---Go on, repeat it, go on.
You haven't filled in those records at all since 1 July---I have ‑ since 1 July?
Sorry, since last year, you haven't altered the documents in any way‑‑‑Mr Nicholls, I will say this again, I promise you from the date that the police officers came into my office with the search warrant I have not touched that diary or altered any record in any shape, way or form. I promise you that, Mr Nicholls (ts 415 ‑ 417).
The prosecutor returned to the theme in his address to the jury. He said:
The appointment book was, of course, looked at by police when they attended during the search video on the search warrant on 31 July. It didn’t seem to offer a lot of assistance at the time. You’ll see the detective’s evidence.
You might recall that she said it wasn't clear exactly who was working. And certainly [the appellant] didn’t make any attempt at that time to say, 'Oh, look, this is who was working on that day. This is who was working on that day', or that he was categorically clear as to who was working or who was in the practice at any one time.
At no time did [the appellant] also ever say that Ravinder worked full-time from 1 July onwards and there was plenty of opportunity to do that in the two interviews which took place. He knew [the complainant] at that time was saying she'd been treated up to 10 times and usually twice a week (ts 597).
There was no objection to the cross‑examination. The trial judge did not give any direction to the jury about the appellant's right to silence after the cross‑examination or during his summing up at the conclusion of the trial. Further, there was no request for a direction on that topic at the conclusion of the trial judge's summing up.

However, senior counsel for the appellant at trial requested the trial judge to summarise the evidence of the appellant's wife and Ravinder Phagura because it rebutted any suggestion that the documents had been tampered with (ts 554 ‑ 556). The trial judge did so and he directed the jury as follows:
I didn't mention anything about the evidence of Rav or Mrs Kaur. Two witnesses called on behalf of the defence case and you will remember their evidence. It would be quite fresh in your mind, I am sure. It's a matter for you what you thought of their evidence. Their evidence was to the effect that, amongst other things, that there'd been no tampering with any documents and that the work diary and the other documentation that is before you can be relied upon, in terms of what it says. And they each gave explanations about what the diary meant and who was where and when and it's been pointed out that there's not been any real suggestion that what they said was untrue (ts 563).
Further, the trial judge gave the jury a direction concerning the appellant's right to silence at the commencement of the trial. He said:
[A]n accused person does not have to say anything in a criminal trial. Does not have to talk to the police, accept [sic] to give a name and address. The law says that an accused person has a right to silence. You would have heard that phrase. And if the accused exercises that right to silence, you could not hold it against him in any way. It's not evidence of anything whatsoever (ts 10).

The right to silence

A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence: Petty v The Queen (1991) 173 CLR 95, 99 (Mason CJ, Deane, Toohey & McHugh JJ). An incident of that right to silence is that:
(a)no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or provide such information;
(b)it should not be suggested, either by evidence led by the State or by questions asked or comments made by the trial judge or the prosecutor, that an accused's exercise of the right of silence may provide a basis for inferring a consciousness of guilt.
Thus, it must not be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable: Petty (99).
In order to understand the scope and application of the right to silence, it is of assistance to consider the facts and outcome in Petty. M and P were charged with murder. In a record of interview with police and in a conversation with C, M said that he and P had agreed to murder the victim, that he (M) had assaulted the victim but that P later killed him in M's absence. M's case at trial was that the victim died in the course of a struggle with M who acted in self‑defence and without any intention of causing injury. C was cross‑examined at the committal proceedings by M on the basis that no relevant conversation between M and C had taken place. In cross‑examination at trial it was put to C that M had informed him of his trial version of events. On re‑examination at trial C was permitted to give evidence that he had not been cross‑examined in the committal proceedings along the lines pursued by M at trial. The trial judge gave the following direction:
If [M] had remained silent, if he had said nothing but not guilty, if he had not made a statement to the police in his record of interview, if he had not made a statement here in court right up to the moment when you bring back your verdict, you would be directed that no inference or conclusion of guilt can be drawn from that silence. I direct you, therefore, that you are not permitted to draw any inference or conclusion of guilt from [M's] failure to raise this explanation that [the victim's] death was an accident at some earlier stage. But that does not mean that, as [M] has chosen not to remain silent and as he did offer at least one version of what happened when he made his record of interview … you cannot take into account in judging the weight to be given to this explanation now put forward (117).
The High Court in Petty held that it is not permissible to rely on silence as a basis for assessing the weight to be given to an accused's evidence. However, the majority concluded that the trial judge's comments should be, and would have been, understood by the jury as referring not to mere silence but to what was, in effect, a persistence in the unwithdrawn allegation that P had killed the victim. Further, the majority said it was open to the trial judge to go further and point out to the jury that the allegation of murder by another, which M had made to the police and allowed to remain unwithdrawn and unqualified right up to the trial, was inconsistent with the defence raised at the trial (103). The appeal was dismissed.
Harman v The State of Western Australia [2004] WASCA 230 is another case where an accused had not exercised his right to silence and had made a prior (positive) statement that was inconsistent with his evidence at trial. A submission by the prosecutor that the accused had used the intervening period between the making of the prior inconsistent statement and his giving evidence at trial to fabricate a different defence did not offend the principle in Petty.
The right to silence is connected with the absence of any right in the State to compulsorily interrogate suspects: Petty (118). The right is to remain silent in the face of questioning by police or other authorities.
However, documents and other forms of real evidence can be the subject of compulsory seizure. Indeed, the Marangaroo practice diary could have been seized pursuant to the search warrant executed at the Marangaroo premises on 31 July 2008. The transcript of the search was tendered in evidence. The appellant drew the police officer's attention to the diary. The police officer thought it was of no evidentiary value.
Both parties accepted that the right to silence extends to things that can be the subject of compulsory seizure. Accordingly, I will proceed on the basis that the appellant had a right not to volunteer the diaries to police (and I interpolate a right to remain silent about their evidentiary significance).

Analysis

The cross‑examination of the appellant about the documents explored the relationship, if any, between the failure to volunteer the diaries to police at the time of their investigation and whether the appellant had altered the documents after July 2008. The only issue to which that cross‑examination was directed was the opportunity of the appellant to commit offences 1 ‑ 4 in the relevant period. There was no explicit or direct assertion that the appellant had altered the records. At its highest, there is an implication that that was a possibility. That possibility was subsequently abandoned by the prosecutor. It was not pursued by him in cross‑examination of Mr Phagura or the appellant's wife. It was not the subject of comment during the prosecutor's address to the jury.
After the summing up, senior counsel for the appellant referred to 'the suggestion that the book might have been tampered with' (ts 556) and sought a direction concerning the evidence of Mr Phagura and the appellant's wife. The trial judge gave the requested direction (set out above).
I am satisfied that any potential prejudice to the appellant arising from a suggestion that he had altered the record was effectively negatived by the evidence of the search, Constable Dyer's evidence which was consistent with the appellant's evidence on this subject, the prosecution's failure to raise the issue again and the trial judge's direction on the subject.
The position in relation to Mr Phagura is slightly different. It was put to the appellant in cross‑examination that he had not told police on 31 July 2008 that Mr Phagura was working full‑time from 1 July 2008. The prosecutor referred to that matter again in his closing address. The forensic purpose and effect of the observations must be understood in the context of the live issues at trial. It was not part of the appellant's case that Mr Phagura's change of status from part‑time to full‑time employee from 1 July 2008 resulted in Mr Phagura undertaking all the physiotherapy work at the Marangaroo practice in the relevant period or being in attendance at all times during working hours. Indeed, the complainant's evidence and the appellant's evidence relating to Mr Phagura's presence at the Marangaroo practice to provide physiotherapy services in the relevant period was largely, if not wholly, consistent. Moreover, the evidence of the complainant and the appellant on this topic was consistent with that of Mr Phagura whose evidence was not challenged by the prosecutor. That is, the prosecutor was not challenging the truth or accuracy of the appellant's evidence about Mr Phagura's change of employment status.
The appellant's case at trial was that he did not have the opportunity to provide any physiotherapy services to the complainant in the relevant period and he supported that evidence by reference to the Marangaroo practice diary and Mr Phagura's change of employment status which was revealed in, and consistent with, that diary. In the context of the live issues as they had emerged by the end of the trial, the prosecutor's questions and statements in his address to the jury concerning Mr Phagura (and the Marangaroo practice diary) can only reasonably be seen as relating to the failure of the appellant to rely on those matters when addressing the issue of opportunity in his exchanges with police on 31 July 2008.
The appellant had not exercised his right to remain silent when questioned by police. To the contrary, the appellant made positive statements to police which are capable of constituting an admission that he did have the opportunity to provide physiotherapy treatment to the complainant on at least four occasions in the relevant period. The appellant's reliance at trial on the diaries and Mr Phagura's change of employment status to positively assert lack of any opportunity is inconsistent with such an admission.
Petty would appear to be authority for the proposition that an accused who elects to answer police questions does not thereby waive his right to silence even if he makes a positive statement that is subsequently contradicted at trial. Accordingly, the prosecutor was wrong to frame his questions and comments on the basis of the appellant's mere failure to provide the diaries and information about Mr Phagura's change of employment status to police when he was being questioned by them. Although the prosecutor did not expressly identify what the failures signified, it would have been apparent to the jury that it could reflect on the credibility of the appellant's evidence at trial.
However, it would have been permissible for the prosecutor to tell the jury that the appellant's reliance on the diaries and Mr Phagura's change of employment status to support his evidence at trial that he did not provide physiotherapy treatments to the complainant in the relevant period was inconsistent with the appellant's statements in the video record of interview, and thus his evidence at trial should be disbelieved. This would not have escaped the attention of a reasonable jury. Indeed, the prosecutor invited the jury to assess the credibility of the appellant's evidence at trial by reference to what he told police (ts 600) and noted the lengths to which the appellant went at trial in an attempt to reconcile the two (ts 601).
Thus, the only reasonable inference capable of arising from the prosecutor's questions and comment is the same as that legitimately arising from any prior inconsistent statements made by the appellant, namely that his evidence at trial should be disbelieved. The fact that the same inference could legitimately be drawn by reference to exactly the same facts cannot give rise to any prejudice to the appellant. Any other outcome would be a triumph of form over substance. It is apparent that experienced senior counsel for the appellant did not perceive any potential prejudice to the appellant beyond the suggestion of tampering with the records. Moreover, there is no potential prejudice in the omission of the trial judge to give a direction concerning the right to silence because that direction would have to be balanced by the alternative characterisation and consequence of the same facts. I am not persuaded that the errors resulted in any miscarriage of justice.
Further, even if the errors do give rise to a miscarriage, they are of a technical nature and would and should have had no significance in determining the verdict that was returned by the trial jury: Weiss v The Queen (2005) 224 CLR 300 [43]. There is no arguable basis that there was such a serious breach of the pre‑suppositions of a trial as to deny the application of the proviso: Weiss [46]; Wilde v The Queen (1988) 164 CLR 365, 373. Accordingly, there is no substantial miscarriage of justice.

Ground 3

Shortly after the events on the evening of 29 July 2008, the complainant complained to her mother about the appellant's conduct. Evidence that the victim of a sexual offence complained of the conduct to a third party is admissible to buttress the complainant's credibility if certain conditions are met. I will assume without deciding (see McKinnon v The State of Western Australia [2010] WASCA 51 [14] ‑ [15]) that the complaint must have been made as speedily as could reasonably be expected. Both the State and the appellant accepted that this requirement was complied with only in relation to counts 5 and 6. Although I have doubts about the correctness of the common position of both parties (particularly when regard is had to the fact that the complainant was under the supervision or authority of the appellant at the time of the commission of counts 1 ‑ 4), I will proceed on that basis.
After directing the jury about the limited purpose for which 'fresh complaint' could be used, the trial judge continued:
Now, that fresh complaint evidence is obviously again, only relates to counts 5 and 6. You do know that the complainant did not complain after any of the other alleged four incidents, picked up in counts 1, 2, 3 and 4 (ts 537).
The trial judge immediately went on to explain the evidentiary significance of a failure to complain (see s 36BD of the Evidence Act 1906 (WA)). Later the trial judge directed the jury about the facts of the individual offences, commencing with counts 1 and 2. In the course of that direction, the trial judge said:
With respect to each count, the main or primary issue seems to be whether the alleged conduct occurred. Did the accused do the act or engage in the conduct the prosecution says?

As I've said, to prove this, the prosecution relies on the evidence of [the complainant] exclusively and her evidence is, according to the prosecution, supported by her fresh complaint (ts 545).

That general statement is inconsistent and inaccurate. It is inconsistent with the specific direction to the jury that there was no evidence of fresh complaint in relation to counts 1 ‑ 4. It is inaccurate in that the prosecution did not contend that the complaint evidence supported all counts. Further, defence counsel in his address to the jury relied on the complainant's failure to complain about counts 1 ‑ 4 as a ground for impugning her credibility (ts 613). The complainant was cross‑examined about her failure to complain about those counts (ts 217 ‑ 218). The trial judge directed the jury at some length on the consequences of her failure to complain. Finally, senior counsel did not seek a redirection arising out of the trial judge's misstatement.
In all the circumstances, I am satisfied the jury would have been left in no doubt that there was no fresh complaint evidence to support counts 1 ‑ 4. I would dismiss this ground.

Conclusion

I would grant leave to appeal in relation to grounds 1, 2 and 3 but dismiss the appeal.
BUSS JA: I agree with McLure P.
JENKINS J: I agree with McLure P.