Siriphanuruk v The State of Western Australia

[2023] WASCA 56

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   SIRIPHANURUK -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 56

CORAM:   MAZZA JA

MITCHELL JA

ARCHER J

HEARD:   11 & 12 MAY 2022

DELIVERED          :   17 APRIL 2023

PUBLISHED           :   17 APRIL 2023

FILE NO/S:   CACR 105 of 2021

CACR 108 of 2021

BETWEEN:   THANYARAS SIRIPHANURUK

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   STAUDE DCJ

File Number            :   IND 2261 of 2019

Catchwords:

Criminal law - Appeals against conviction and order - Appellant convicted after trial of two counts of aggravated stalking, three counts of producing child exploitation material, one count of using electronic communication to expose person under age of 13 years to indecent matter, one count of extortion and five counts of distributing child exploitation material - Violence restraining orders made pursuant to s 63 Restraining Orders Act 1997 (WA)

Whether trial judge erred by admitting into evidence admissions made by appellant - Whether trial judge erred by refusing to adjourn trial - Whether trial judge erred by failing to consider alleged racial prejudice against appellant and alleged police corruption - Whether trial judge erred in his directions to jury - Whether jury had sufficient technical knowledge to decide case - Whether prosecutor’s cross-examination of appellant caused a miscarriage of justice - Whether trial judge’s summing up was unbalanced - Whether guilty verdicts are unreasonable or cannot be supported on the evidence

Whether violence restraining orders imposed on appellant are unreasonable and unnecessary

Legislation:

Criminal Investigation Act 2006 (WA), s 118, s 155
Restraining Orders Act 1997 (WA), s 63, s 63A

Result:

CACR 105 of 2021
Application for extension of time granted
Leave to appeal refused
Appeal dismissed

CACR 108 of 2021
Application for extension of time granted
Application to adduce additional evidence dismissed
Appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	S D Packham

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

Coughlan v The Queen [2020] HCA 15; (2020) 267 CLR 654

Dansie v The Queen [2022] HCA 25

Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555

Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

McKell v The Queen [2019] HCA 5; (2019) 264 CLR 307

R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308

R v D'Arcy [2005] QCA 292

R v Hillier [2007] HCA 13; (2007) 228 CLR 618

RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620

Siriphanuruk v The State of Western Australia [2021] WASCA 221

SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400

Table of Contents

The charges

Overview of the State's case

Counts 1 and 2 - aggravated stalking

Counts 3, 4 and 5 - producing CEM

Count 6 - using an electronic communication to expose R to indecent matter

Count 8 - extortion

Counts 7, 9, 10, 11 and 12 - CEM sent on various dates by the appellant to various recipients

The appellant's arrest

The State's evidence

Overview of the defence case

The real issue to be decided by the jury

Ground 1 - the 'confession'

Ground 1 - background

Staude DCJ's reasons in the voir dire

Ground 1 - admissibility of the appellant's admissions

Ground 1 - disposition

Ground 2 - alleged refusal to adjourn the trial

Ground 2 - appellant's submissions

Ground 2 - disposition

Ground 3 - alleged racial prejudice and police corruption

Ground 4 - trial judge's directions to the jury

Ground 4 - appellant's submissions

Ground 4 ‑ disposition

Ground 5 - technical knowledge

Ground 5 - disposition

Ground 6 - alleged derogatory language used by the prosecutor

Ground 6 - appellant's submissions

Ground 7 - was the trial judge's summing up unbalanced?

Ground 7 - appellant's submissions

Ground 7 - disposition

Ground 8 - Are the guilty verdicts reasonable?

Ground 8 - The evidence in more detail

RJ

Glenn Graham

Ricky Obal

R

A

Senior Constable Darren Lee

Sergeant Christopher Townsend

Gregory Snader

Senior Constable Craig McKellar

Adam Jenkins

Breanna Gibbs

Steven Davies

Sergeant David Clayton

Paul Francione

Detective Senior Constable Jason Vanderwiel

Covert operatives 774 and 902

Detective Jeffrey Robinson

The appellant

Good character evidence

Ms Wimunpol Siriphanuruk

Ground 8 - were the verdicts unreasonable?

Legal principles

Ground 8 - the appellant's submissions

Ground 8 - respondent's submissions

Ground 8 - disposition

The applications to adduce additional evidence

Conclusion and orders - appeal against conviction

Appeal against order - CACR 105 of 2021

Orders on CACR 105 of 2021

JUDGMENT OF THE COURT:

1. On 15 April 2021, the appellant was convicted, after a 21‑day trial before Staude DCJ and a jury, of 12 offences, being two counts of aggravated stalking (counts 1 and 2), three counts of producing child exploitation material (CEM) (counts 3, 4 and 5), one count of using electronic communication with intent to expose a person under the age of 13 years to indecent matter (count 6), one count of extortion (count 8) and five counts of distributing CEM (counts 7, 9, 10, 11 and 12). 

2. On 20 May 2021, the appellant was sentenced to a total effective sentence of 5 years' imprisonment, backdated to commence on 19 March 2019, with eligibility for parole.  In addition, lifetime violence restraining orders (the VROs) were made against the appellant in favour of the victims, RJ, A and R. 

3. The appellant commenced three appeals.  By CACR 104 of 2021, the appellant appealed against sentence.  By CACR 105 of 2021, she appeals against the making of the VROs.  By CACR 108 of 2021, the appellant appeals against her convictions. 

4. On 23 December 2021, the appeal against sentence was dismissed:  Siriphanuruk v The State of Western Australia [2021] WASCA 221 (the sentence appeal). In respect of CACR 105 of 2021, the coram that dismissed the sentence appeal referred the appellant's application for leave to appeal against the making of the VROs to the hearing of the appeal against conviction. The present proceedings concern the appeal against conviction and the appeal against the making of the VROs.  Both appeals were filed out of time.  As the delay in filing the appeals was relatively short and the respondent made no objection to the application, extensions of time will be granted in each appeal.

5. The appellant has filed, in the appeal against conviction, two applications to adduce additional evidence, filed on 20 December 2021, and 11 May 2022, respectively.  The second application was made by the appellant on the morning of the first day of the appeal hearing.  Counsel for the respondent did not oppose the court accepting the application and considering it.  Ultimately, the respondent submitted that both applications for leave to adduce additional evidence should be refused.[1]  In both applications, the appellant seeks to adduce, as additional evidence, documents written by Mr Richard Boddington, a person who appears to have expertise in computer forensics.  We will say more about these applications later in these reasons.

   [1] Appeal ts 5.

6. In these proceedings, the appellant is a litigant in person.  At her trial, the appellant had the services of an interpreter.  When she gave evidence, she did so largely in direct English.  The appellant was born in Thailand.  English is not her first language, but she claims to be well‑educated, indeed she says she has a number of degrees, including in medicine.  In this court and at trial she demonstrated a good command of spoken and written English.  She addressed the court at length during the hearing of the appeals.  Notwithstanding that her English is accented and, at times, she was required to repeat things she had said in order to be understood, she was well able to argue her case and comprehend the proceedings.  She did not seek the assistance of an interpreter and, in our view, such assistance was not required.[2]

   [2] In his closing address at trial, defence counsel described the appellant as speaking 'very good English', although, at times, she was 'very hard to understand' (ts 2046).

7. In the appeal against conviction, the appellant relies on eight grounds of appeal.  Grounds 1 to 7 allege various miscarriages of justice or errors on the part of the trial judge.  The State was not required to make either written or oral submissions in relation to them.  As we will explain, these grounds are without merit.  Ground 8, in substance, alleges that the verdicts of guilty were unreasonable or could not be supported on the evidence.  In relation to this ground, the court sought and received from the respondent written submissions.  These were supplemented by oral submissions at the hearing.  The respondent also filed, in respect of this ground, a comprehensive practice direction 7.4 schedule.  The court was assisted by the respondent's submissions and the schedule in understanding aspects of the evidence.  As we will explain, ground 8 is also without merit.

8. In the appeal against the VROs, the appellant's essential complaint is that his Honour erred in making the orders because, upon her release from prison, she will almost certainly be deported from Australia and will not pose any future risk of harassing, threatening or harming the complainants, RJ, A and R.  In respect of this appeal, the respondent made written and oral submissions.  For the reasons we will explain, the VROs were justified and the appeal against them must be dismissed.

9. We will consider the appeal against conviction first.

The charges

1. The appellant was charged as follows:

Count 1:	Between 26 July 2018 and 18 March 2019 at [a Perth suburb] and elsewhere, the appellant pursued RJ with intent to intimidate, contrary to s 338E(1) of the CriminalCode (WA) (the Code).
Count 2:	Between 26 July 2018 and 18 March 2019 at [another Perth suburb] and elsewhere, the appellant pursued A with intent to intimidate, contrary to s 338E(1) of the Code.
Count 3:	Between 26 July 2018 and 2 March 2019 at [a Perth suburb], the appellant produced child exploitation material, namely an edited pornographic image, contrary to s 218 of the Code.
Count 4:	Between 26 July 2018 and 2 March 2019 at [a Perth suburb], the appellant produced child exploitation material, namely an edited pornographic image, contrary to s 218 of the Code.
Count 5:	Between 26 July 2018 and 2 March 2019 at [a Perth suburb], the appellant produced child exploitation material, namely an edited pornographic image, contrary to s 218 of the Code.
Count 6:	On 23 February 2019 at [another Perth suburb], the appellant, being an adult, used electronic communication with intent to expose R, a person under the age of 13 years, to indecent matter, contrary to s 204B(3)(a) of the Code.
Count 7:	On 2 March 2019 at [a Perth suburb], the appellant distributed child exploitation material by sending it to [RJ] and others, contrary to s 219(2) of the Code.
Count 8:	On 3 March 2019, the appellant, with intent to extort or gain, caused [RJ] to receive a written demand that he give a sum of money, without reasonable cause and containing threats of injury or detriment if the demand was not complied with, contrary to s 397(1) of the Code.
Count 9:	On 4 March 2019 at [a Perth suburb], the appellant distributed child exploitation material by sending it to RJ and others, contrary to s 219(2) of the Code.
Count 10:	On 6 March 2019 at [a Perth suburb], the appellant distributed child exploitation material by sending it to RJ and others, contrary to s 219(2) of the Code.
Count 11:	On 6 March 2019 at [a third Perth suburb], the appellant distributed child exploitation material by sending it to RJ and others, contrary to s 219(2) of the Code.
Count 12:	On 14 March 2019 at [a Perth suburb], the appellant distributed child exploitation material by sending it to RJ and others, contrary to s 219(2) of the Code.

Overview of the State's case

1. The appellant was born in March 1980.  She is commonly known by the nickname 'Ming'.  At all material times, she was ordinarily resident in Singapore with her former husband and two children. 

2. RJ and A were married.  They have two children, one of whom is their daughter, R.  They also have a son, L.  During the period of the alleged offences, R was 12 years of age.  RJ and A had been separated for some years at the time of the alleged offences, but they maintained an amicable relationship and had not divorced.  Together they co‑parented both their children.

3. Around October 2016, RJ met the appellant on an online dating site called Thai Cupid.  In about May 2017, the appellant travelled to Western Australia and stayed with RJ at his house in a Perth suburb for three or four days.  During 2017, the appellant and RJ were in a romantic relationship.  From mid‑May 2017 onwards, the appellant visited Perth and RJ visited Singapore.

4. When the appellant stayed at RJ's home, she had access to his desktop computer.  She also had access to RJ's email account password.  According to the State, the appellant accessed a folder in RJ's email account containing emails RJ had exchanged with a woman, LL, with whom he had been in a relationship between 2012 and 2014.  The relationship had ended amicably.

5. On the State's case, the appellant wanted RJ to divorce A.  Over time, she became frustrated that RJ was not doing anything to progress the divorce.  In February 2018, the appellant asked RJ about his relationship with LL.  The appellant falsely alleged to RJ that she had been extorted by LL.  Subsequently, the appellant created a number of email accounts ostensibly belonging to LL and her estranged partner, Harry.

Counts 1 and 2 - aggravated stalking

1. As to counts 1 and 2, the State alleged the following. 

2. By July 2018, the relationship between the appellant and RJ had become strained over RJ's reluctance to progress his divorce from A. 

3. RJ (and A) then received threatening emails from a number of different email addresses, including:[3]

   •[email protected];

   •[email protected];

   •[email protected]; and

   •[email protected].

All these email addresses had been set up by the appellant and were used by her to stalk RJ and A.  Between 27 July 2018 and 22 October 2018, the appellant sent hundreds of emails contained in approximately 45 separate email chains from the abovementioned and other email addresses.  The emails were sent to RJ and A.  The appellant created the ruse that the emails were from LL and Harry.  The emails contained threats to kidnap R and perpetrate sexual violence against her and A, death threats to RJ and his family and specific information about places visited, things done and personal details of RJ and his family.  It is not necessary to describe in detail the content of these communications, many of which were read to the jury.  Many are very explicit and disturbing.

[3] In the trial transcript, there are variations as to the spelling of these and other email addresses, including as to capitalisation and, in the case of the harrynothinghill address, it is sometimes spelt as 'harrynottinghill'.  The names of various persons are also variously spelt.  For example, LL's estranged partner is sometimes referred to as Harry Jew or Dew.

1. The appellant pretended to assist RJ and A in dealing with the threats ostensibly coming from LL.  She told RJ that she had been a member of the Thai Army and that she would call on friends in the Thai Army who would liaise with the Philippine authorities to apprehend LL.  RJ communicated by text and email with people he believed were from the Thai and Australian militaries whom he thought could help him.   He also corresponded with someone that he believed to be a Philippine cybercrime officer.  One of the people he believed he was communicating with was a General in the Australian Defence Force, Angus Campbell.[4]  General Campbell was mostly referred to in the trial as Angus C or Angus Sze.  The appellant pretended to be the various officials mentioned and operated the email addresses and telephone numbers attributed to them.

   [4] While General Campbell is a real person, there is no evidence whatever that he had any role in the events the subject of the trial. 

2. In August 2018, RJ and A received death and kidnap threats.  The threats specifically related to the kidnap and sexual assault of R.  As a result of the threats, A left Australia with R and travelled to Italy where A's family lived.  Two days later, RJ left Australia with the appellant and his son.  RJ believed that LL was behind these threats. 

3. The threatening emails continued until 9 September 2018 when the appellant told RJ that LL had been arrested and gaoled in the Philippines.  At this point the threatening emails ceased for a time. 

4. In October 2018, the romantic relationship between RJ and the appellant effectively ended. 

5. Despite this, in mid‑November 2018, the appellant asked RJ if he would agree to apply for a partner visa for her.  RJ agreed, but did not progress the application.  Eventually, on 9 February 2019, RJ emailed the appellant telling her that he would not submit the application for a partner visa.  Later that day, RJ and A began to receive threatening emails from:[5]

   •[email protected];

   •[email protected];

   •[email protected];

   •[email protected];

   •[email protected];

   •[email protected]; and

   •[email protected].

   The appellant sent these emails using these email addresses. 

   [5] See fn 3 above.

6. Between 9 February 2019 and 17 March 2019, hundreds of emails were sent from these addresses in 117 separate email chains.  The majority of the emails were sent to RJ and A, but some were sent to R and R's school.  Some were copied by the appellant to herself.

7. The State alleged that the emails fitted broadly into eight categories:

   •Category 1, which the prosecutor referred to as involving 'surveillance',[6] were to the effect that someone was watching RJ, his family and house and tracking his movements.  These emails were often mixed with explicit threats, including threats of sexual violence to R and A. 

   •Category 2 was described as involving 'personal documents'.[7]  These emails attached personal identification documents such as scanned images of the passports of R and her brother.  These images, the State alleged, had been obtained by the appellant from RJ's desktop computer.  Between 10 February 2019 and 9 March 2019, 20 emails were sent which contained images either of, or derived from, images which were stored only on RJ's hard drive. 

   •Category 3 were 'threatening' emails.[8]  These emails contained explicit threats of sexual violence to R and A. 

   •Category 4 contained emails creating a 'false alibi'.[9]  These emails were copied into the private email accounts of the appellant.  Some emails also attached compromising images of the appellant.  It was ultimately the State's case that the appellant sent these messages and images in order to deflect suspicion away from her. 

   •Category 5 emails were referred to as 'the gang'.[10]  These emails purported to be from various members of an international gang who were targeting RJ and his family.  These emails were used to make the threats to RJ and his family seem credible. 

   •Category 6 were referred to as 'school emails'.[11]   These were emails, the State says, sent by the appellant to R's school. 

   •Category 7 were referred to by the prosecutor as 'nude images'.[12]  These emails included edited images of RJ, A and R, all of whom had their faces superimposed on images of naked bodies. 

   •Category 8 concerned emails that were sent directly to R.  One is the subject of count 6 which we will refer to below.

   [6] ts 95.

   [7] ts 95.

   [8] ts 96.

   [9] ts 96.

   [10] ts 96.

   [11] ts 96.

   [12] ts 96.

1. At about 7.50 am on 18 February 2019, police were dispatched to RJ's home address.  Police officers witnessed the appellant arguing with RJ.  The appellant was issued with a police order.  On 22 February 2019, RJ received a text message (one of many) ostensibly from Angus C, threatening to imprison RJ and A.  The State's case was that these messages were in fact sent by the appellant.  The emails and messages abruptly stopped when the appellant was arrested on 18 March 2019.

Counts 3, 4 and 5 - producing CEM

1. As to counts 3, 4 and 5, the State alleged that the appellant accessed RJ's desktop computer and obtained digital photographs of R, who was then aged 12 years.  Using picture editing software, the appellant excised R's face from an image and superimposed it on another image of a female body engaged in sexual activity, thereby creating a composite pornographic image which constituted CEM.  The image of R and the composite images were later found by police on a mobile telephone used by the appellant.  Count 3 depicted R's face superimposed onto an image of a female being vaginally penetrated by a sex toy.  Count 4 depicted R's face superimposed on an image of a female exposing her breasts and vagina.  Count 5 depicted R's face superimposed onto an image of a female engaging in sexual activity with two males. 

Count 6 - using an electronic communication to expose R to indecent matter

1. As to count 6, the State alleged that, on 23 February 2019, the appellant sent an email from [email protected] to an email address rarely used by R.  The email was titled 'Fuck you' and attached three videos containing adult pornography.[13]

Count 8 - extortion

[13] The three videos were not played to the jury.  Instead, the email that showed the thumbnails of the videos was tendered in evidence as exhibit 23.  There was no issue at trial that the videos were pornographic:  ts 773 ‑ 774.

1. As to count 8, the State alleged that, on 3 March 2019, the appellant sent a number of emails to RJ and A, among others, demanding that the sum of $US10,000 be paid into a Western Union account.  In the emails, the appellant stated that naked photographs of R were on every porn website and would only be deleted if the demand was met.  The emails further claimed that if the money was not paid within 24 hours, R would be in personal danger. 

Counts 7, 9, 10, 11 and 12 - CEM sent on various dates by the appellant to various recipients

1. In relation to counts 7, 9, 10, 11 and 12, the State alleged as follows.

2. As to count 7, on 2 March 2019, the appellant sent an email to 23 recipients attaching two CEM images she had produced, being the images the subject of counts 3 and 4.  The subject of the email was 'Pornstar' and included the text, 'My Filipino friends rape [R] to fuck'. 

3. As to count 9, on 4 March 2019, the appellant sent the same two CEM images to seven recipients.  The text of the email included hyperlinks and the sentence, 'Open the link.  Your daughter sells sex there'.

4. As to count 10, on 6 March 2019, the appellant sent an email to eight recipients attaching the same two CEM images that were contained in the emails the subject of counts 7 and 9.  This email contained a link to the pornographic website Pornhub, where the appellant had uploaded the images. 

5. As to count 11, on 10 March 2019,[14] the appellant sent an email to 23 recipients, including R's school principal, the school uniform shop and the school canteen, which included the same two CEM images.  In addition, this email attached R's scanned passport and some family photographs.  All of these images had been obtained by the appellant from RJ's desktop computer.  The text of this email included, in relation to R, 'She need no foods she eat cock to survive'. 

   [14] Although the indictment alleged that this email was sent on 6 March 2019, the offending email is dated 10 March 2019.  Nothing turns on the difference.  See BAB vol 1 155 - 158.

6. As to count 12, on 14 March 2019, the appellant sent an email to a number of recipients attaching the CEM image the subject of count 5.  The recipients of this email included RJ and A.  Also attached to the email were the same two images as in counts 7, 9, 10 and 11.

The appellant's arrest

1. On 18 March 2019, the appellant was arrested at Perth Airport.  She possessed two mobile telephones, one a Sony and the other a Samsung.  The State alleged that the Sony contained images that showed the creation of the doctored CEM images the subject of the charges.  It also alleged that the Sony contained the original pornographic images on which R's face had been superimposed.  The State alleged that the Samsung contained original images of R from which her face had been cropped.  The State's case was that the CEM had been created using an application called 'Picsart'. 

2. The appellant was later, on 18 March 2019, interviewed by police.  She was re‑arrested the following day.  It was alleged that on 19 March 2019, off‑camera, the appellant made generalised admissions that she had sent the emails.  She also signed a written statement to the same effect.

The State's evidence

1. The evidence adduced at trial will be described in more detail when we deal with ground 8.

2. RJ and A testified at trial.  RJ's evidence spanned over seven sitting days.  He was cross‑examined at great length.  R was not called to give evidence.  By consent, her police statement was read to the jury. 

3. Various police officers were called to testify as part of the State's case.  In addition, the State called several expert witnesses and tendered a large number of emails and text messages.  The State adduced evidence from men with whom the appellant had had contact in 2018 and 2019.  The State also tendered telephone and computer records obtained from a number of telecommunications providers.

Overview of the defence case

1. The appellant elected to give evidence at her trial.  She called other evidence, including good character evidence.  In essence, the defence case was that the appellant was not the source of the abusive and threatening messages and did not produce or send any CEM to RJ, A, R or R's school. 

2. In his opening address, defence counsel put it this way:[15]

   [The appellant is] a 40-year‑old woman of prior good character, she has no prior criminal history here or, as far as we're aware, anywhere else.

   She has two school‑aged children that reside with her former husband in Singapore.  She's very well educated.  She has a very good understanding of English, but not perfect.  You'll observe her demeanour during the trial.  The defence say this lady of good character and good education has been wrongly accused of the crimes that you've heard read against her at the instigation of a jealous former partner.

   Human relationships, you will know from our life experience, can start in a welter of romance and sometimes they last a lifetime.  But sometimes they don't last.  Sometimes you can separate and sometimes the feelings they had pass and are replaced by acrimonious and quite nasty motivations. 

   The point of it is that we say that this has actuated - this has caused the complaints against [the appellant].  And that she has pleaded not guilty because these charges are wrongly and mistakenly brought against her, rather than other people who may truly be involved.  People who, for some reason, will bear ill will against [RJ] and also bear ill will against [the appellant]. 

   [15] ts 103.

3. Defence counsel, in his opening address, told the jury that the main question to be decided in the case was 'the identity of the person who sent these emails - the identity of the person who had this stuff'.[16]

   [16] ts 107.

4. Defence counsel also said in opening that the State's case against the appellant on the question of identity was circumstantial.[17]  The defence case was that the jury would be unable to find that the only reasonable conclusion was that the appellant was the person who committed the acts the subject of the charges in the indictment.[18]

   [17] ts 107.

   [18] ts 2066 - 2067.

5. At various points in the trial, defence counsel posited that the perpetrator could have been RJ, LL or the appellant's ex‑husband, Terry.  In his closing address, he focused particularly on RJ.[19]

   [19] ts 655 - 658, 679, 2022 - 2023, 2031.

The real issue to be decided by the jury

1. As the trial judge noted in his summing up to the jury, there was no dispute that the alleged offences had been committed.  The real issue for the jury to decide was expressed by him in this way:[20]

   The real issue is whether it was the [appellant] and not someone else that committed them.

   [20] ts 2070.

2. The State's case as to the element of identity was circumstantial.  Plainly, the appellant could not be convicted of any count on the indictment unless the State proved, beyond reasonable doubt, that the appellant was the offender.  Necessarily, this required the jury to reject the appellant's denials and then, putting her evidence to one side, be satisfied, having regard to all of the other evidence, that the only reasonable inference open on the evidence was that she was the offender. 

3. We will first deal with grounds 1 to 7.

Ground 1 - the 'confession'

1. Ground 1 alleges that, 'The trial judge failed to exclude a "confession statement" that was only made because of duress, intimidatory pressure and threats', and that this resulted in a miscarriage of justice. 

2. We take the appellant to be challenging the admission into evidence of oral admissions made to police and to admissions made in a written statement (exhibit 52).  This material was admitted by the trial judge over objection by defence counsel and was the subject of a voir dire.

Ground 1 - background

1. The following summary is taken from the evidence adduced in the voir dire, much of which was ultimately adduced before the jury. 

2. On the evening of 18 March 2019, the appellant was arrested at Perth Airport, after disembarking a flight from Singapore.  She was conveyed to the Joondalup police station, where she was interviewed by Detective Senior Constable Jason Vanderwiel and another detective.  The interview was video‑recorded.  In the course of the interview, she was asked about a series of threatening emails that had been sent to RJ and A.  She made no admissions in this interview.[21]  Detective Vanderwiel seized two mobile telephones from the appellant, a Samsung SM‑G965F and a Sony Ericsson Xperia.

   [21] ts 1116 (voir dire).

3. Following this interview, the appellant was arrested and charged with breaching a police order.  She was kept in custody until her appearance in court the next day.

4. On 19 March 2019, after the appellant appeared in the Perth Magistrate's Court, she was rearrested following an examination of the contents of the seized mobile telephones.[22]

   [22] ts 1117 (voir dire).

5. The appellant was conveyed to the Joondalup police station, where she agreed to another video‑recorded interview with police.[23]

   [23] ts 1118 (voir dire).

6. According to Detective Vanderwiel, while he and Detective Jeff Robinson were conveying her to the interview room, the appellant stopped and made 'several unsolicited comments'.[24]

   [24] ts 1118 (voir dire).

7. According to Detective Vanderwiel, who later made notes, the appellant said, 'I don't want to run and I want my phones back.  Okay, I did it.  Just let me go.  I just want to go home and see my kids.  He [RJ] promised me.  He's [RJ] a bad man'.[25]

   [25] ts 1118 (voir dire).

8. Detective Vanderwiel said that he asked the appellant if she had sent the emails via an application, a Gmail application, or on the internet.  Detective Vanderwiel said that the appellant responded, 'On internet'.[26]  The appellant also said, 'Look, I'm sorry, I don't do it again.  I'll stop'.[27]  Detective Vanderwiel denied making any promises or inducements to the appellant to make admissions, including by telling her she could see her children or that he would return her mobile telephones to her.[28]

   [26] ts 1119 (voir dire) (emphasis added).

   [27] ts 1119 (voir dire).

   [28] ts 1119 (voir dire).

9. According to Detective Vanderwiel, he and Detective Robinson then conducted the video‑recorded interview with the appellant. 

10. During this video‑recorded interview, the appellant was shown various offensive messages and emails which she had allegedly sent.  The appellant did not make any admissions in respect of them.  She denied any wrongdoing in respect of RJ, A and R.  She was not asked about the admissions that she had made prior to the record of interview.  Detective Vanderwiel said, in effect, that during the interview, he tried to get her to make the admission 'on her own volition'.[29]  Later, under cross‑examination, he accepted that he could have put the admissions to her in the interview.[30] 

    [29] ts 1120 (voir dire).

    [30] ts 1131 (voir dire).

11. After the video‑recorded interview concluded, and after the video equipment had been switched off, the appellant, according to Detective Vanderwiel, said that she wanted the police officers to let her go and '[t]hat she'd done it.  That she was scared.  And she promised to stop'.[31]  The appellant told Detective Vanderwiel that she was scared of not seeing her children.[32]

    [31] ts 1120 (voir dire) (emphasis added).

    [32] ts 1121 (voir dire).

12. Detective Vanderwiel said that the appellant declined an invitation to do another video‑record of interview because she said she 'was scared', but agreed to provide a written statement in relation to the offending, which was described as a 'confession'.[33]  The 'confession' was handwritten by Detective Robinson and voluntarily signed by the appellant without any expression of reluctance.[34]  It is in these terms:[35]

    19/3/19

    1839 [6.39 pm]

    Thanyaras Siriphanuruk

    I am the above person and I have spoken to police today about some messages and emails sent to a man I know as [RJ], his ex‑wife [A] and his daughter [R].

    I have lied to the police about this because I am scared.

    I am sorry and I want to tell the truth.  I sent those emails and messages I was shown in the interview.  I am very sorry for the trouble I caused.

    [33] ts 1121 (voir dire).

    [34] ts 1121 (voir dire).

    [35] Exhibit 52.

13. Below the text is a signature.  It was not disputed that the appellant signed the statement.  Below the signature is the date '19/3/19', and below the date are the signatures and officer identification numbers of Detective Vanderwiel and Detective Robinson.

14. Under cross‑examination, Detective Vanderwiel rejected a number of propositions put by defence counsel, including that he deliberately ignored a request by the appellant for legal advice,[36] that she was not in a fit state to assert her rights (under the Criminal Investigation Act 2006 (WA)),[37] that she was threatened or sworn at,[38] and that she was offered an inducement that if she made admissions she would go home the following day.[39]

    [36] ts 1150 ‑ 1151 (voir dire).

    [37] ts 1151 (voir dire).

    [38] ts 1152 (voir dire).

    [39] ts 1153 (voir dire).

15. Detective Robinson testified that he participated in the video record of interview which took place on 19 March 2019.  He testified in the voir dire that, after the interview concluded and after the appellant was told that she was going into the lockup, the appellant said words to the effect that she had not told the truth in the interview; that she had lied; and that she had done so because she was scared.  According to Detective Robinson, the appellant said that she wanted to tell the truth.[40]  Detective Robinson said that he and possibly both he and Detective Vanderwiel gave the appellant the opportunity to participate in another video‑recorded interview but she declined 'because she was scared'.[41]  Detective Robinson said that he gave her the opportunity to 'do a written confession' which she agreed to.  He said that he sat with her and had a conversation about what she wanted to say.  As she spoke he drafted the statement after which he read it to her aloud.  He then gave her the statement to read which she did.  Detective Robinson ascertained that she had understood the statement after which she signed it.[42]  Detective Robinson and Detective Vanderwiel then signed the statement.

    [40] ts 1169 (voir dire).

    [41] ts 1170 (voir dire).

    [42] ts 1170 ‑ 1171 (voir dire).

16. Under cross‑examination Detective Robinson denied that he or others threatened the appellant that unless she signed the written confession her passport would be withheld or she would face (unspecified) consequences.[43]  Detective Robinson denied telling the appellant that if she did not sign she would be kept in the lockup.  Detective Robinson also refuted propositions put to him by defence counsel that, in relation to the written statement, he said to the appellant '[j]ust sign it, then tomorrow you can go home'.[44]

    [43] ts 1177 (voir dire).

    [44] ts 1184 (voir dire).

17. Under cross‑examination, Detective Robinson accepted that, after the confessional statement was signed, no further offer was made for her to participate in another video record of interview.[45]

    [45] ts 1189 (voir dire).

18. The appellant gave evidence in the voir dire.  She testified to the following effect.  After she was arrested on 18 March 2019 and up to the time she made the alleged oral admissions and the written confessional statement on 19 March 2019, she had not had anything to drink or eat apart from a chocolate bar.  Nor had she slept.  She described her state at the time of the interview as both tired and confused.[46]  The appellant denied making oral admissions either before or after the video record of interview.  She said that the police tricked her into signing the statement.[47]  The appellant said that she was told by Detective Robinson that, if she did not sign the statement, he would hold her passport 'from 10 to 20 years', and that she would next see her children '20 years later'.  The appellant testified that Detective Robinson did not allow her to read the statement, and she denied that she had been given the opportunity to read it.[48]  She also testified that Detective Robinson told her that if she signed the statement, she could go home the following day.[49]

    [46] ts 1220 (voir dire).

    [47] ts 1223 (voir dire).

    [48] ts 1225, 1227 (voir dire).

    [49] ts 1225 (voir dire).

19. The appellant described the behaviour of the detectives on 19 March 2019 as 'very aggressive'.[50]  She said that they swore a lot and she did not feel safe in their presence.  She said that she felt intimidated, threatened and degraded.[51]

    [50] ts 1223 (voir dire).

    [51] ts 1223 - 1224 (voir dire).

20. Under cross‑examination in the voir dire, the appellant essentially confirmed her evidence‑in‑chief.  She maintained that she had made no oral admissions before or after the video record of interview on 19 March 2019.[52]  She said that at the time of the making of the written statement, she was hungry, thirsty and tired from lack of sleep.  She said that she signed the statement only after she had been the subject of threats, promises and inducements, and that the police had tricked her.  The appellant maintained that she had not read the statement before she signed it, nor had it been read to her.

    [52] ts 1241, 1254 (voir dire).

Staude DCJ's reasons in the voir dire

1. On the morning of 26 March 2021, Staude DCJ delivered brief reasons in the voir dire.  He said that he would deliver reasons 'in full' later in the trial.[53]  His Honour's more detailed reasons were delivered on 1 April 2021.[54]

   [53] ts 1270.

   [54] ts 1746 - 1754.

2. His Honour ruled that both the oral admissions made just before and just after the video‑recorded interview on 19 March 2019 and the written statement were admissible.

3. His Honour found that the oral statements were, in fact, made.  His Honour found that these statements and the written statements were voluntary.  His Honour accepted the honesty and reliability of the evidence of Detectives Vanderwiel and Robinson.  He rejected the substance of the appellant's evidence.  While he accepted that on 19 March 2019, the appellant had had little to eat and little to no sleep since the previous day, his Honour found that she was in a fit state at the time she made the admissions based on the manner in which she answered questions in the video‑recorded interview.

1. Contrary to the evidence of the appellant, his Honour found that the appellant was:

   (a)informed of, and understood, her right to an opportunity to communicate, or attempt to communicate, with a relative or friend;[55]

   (b)cautioned on a number of occasions on 18 and 19 March 2019;[56] and

   (c)given a reasonable opportunity to communicate, or to attempt to communicate, with a legal practitioner.[57]

   [55] See s 137(3)(c) of the Criminal Investigation Act.

   [56] See s 138(2)(b) of the Criminal Investigation Act.

   [57] See s 138(2)(c) of the Criminal Investigation Act.

2. His Honour also held, in effect, that the appellant was able to understand and communicate in spoken English sufficiently.[58]

   [58] See s 138(2)(d) of the Criminal Investigation Act.

3. His Honour correctly found that the relevant oral statements, and the written statement, were admissions for the purposes of s 118(1) of the Criminal Investigation Act, and that the appellant was ultimately charged with an indictable offence that could not be dealt with by a court of summary jurisdiction.[59] By operation of s 118(3) of the Criminal Investigation Act, evidence of the oral and written admissions, which were not audio‑visually recorded, was not admissible at the appellant's trial unless there was a reasonable excuse for the absence of the audio‑visual recordings.

   [59] See s 118(2)(b) of the Criminal Investigation Act.

4. His Honour found that the prosecution had proved on the balance of probabilities that there was a reasonable excuse for not audio‑visually recording the oral admissions and the written admission.  With respect to the oral admission made before the video‑recorded interview, his Honour found that the admission was made spontaneously by the appellant, in effect, when it could not practically be audio‑visually recorded.  His Honour found that, despite the efforts of the interviewing officers, the appellant declined to repeat the admissions in the video‑recorded interview, but after the video‑recorded interview had been concluded, she reiterated them.  His Honour also found that the appellant was offered and declined a further interview to record the admissions she made after the video‑recorded interview had been completed.  He also found that she voluntarily accepted the opportunity to make a written statement.  In his Honour's view, there was nothing more that the police could reasonably have done in the circumstances. 

5. His Honour found that the written statement was written out by Detective Robinson, who read it to the appellant.  His Honour also found that the appellant was capable of reading the document for herself, and that she would have done so before she signed it.  His Honour said that he was satisfied that the statement accurately captured the admissions made orally by the appellant. 

6. His Honour said this about the situation facing Detectives Vanderwiel and Robinson in connection with the written admissions:[60]

   The officers were faced with an unusual situation of a suspect who had made spoken admissions that she had contradicted in her record of interview, but reiterated after the interview had ended.  The accused, as I have found, did not consent to a further recorded interview.

   It has been suggested that the officers could have obtained a recording of the accused expressly adopting her written statement but it is unlikely, having regard to all the circumstances, that the accused would have consented to do so.  There was no practical reason why an audio‑visual recording could not have been obtained.  The simple reasons for its absence is that the accused simply denied - declined to make the admissions on camera.

   [60] ts 1751.

7. His Honour continued:[61]

   I find that it was a reasonable excuse for the absence of the audio‑visual recording of the spoken and written admissions that the accused declined to make the admissions on camera when she was formally interviewed and also declined to make the admissions on camera after reiterating them following the conclusion of the interview.

   I consider that in the circumstances, the two detectives acted reasonably in inviting the accused to make a written statement and that was the best record they could obtain in circumstances where she had declined to make the admissions in a recorded interview.

   [61] ts 1752.

8. His Honour made these observations about the appellant's fitness to participate in her interactions with the interviewing officers on the afternoon of 19 March 2019:[62]

   In this case, the court has had the benefit of seeing the audio‑visually recorded interview and is able to inform an impression of the accused's fitness to participate in the interview and her capacity to deal with the at times robust questioning of the interviewing officers, in particular Detective Robinson.  This evidence informs the court's assessment of the accused's credibility.

   [The appellant] is an assertive woman.  She is highly educated and I find, based on my observations of her giving evidence in the voir dire, very intelligent.  She knew that she was being recorded.  She knew what her position was in terms of the reason for her arrest.  If she had wanted a lawyer or consular assistance, she would have insisted on that and - that is, she would have insisted that the police facilitate those contacts.

   She could have declined to participate in the interview or to answer any questions until legal counsel or consular assistance was made available to her but she chose to participate in the interview.  She did not make any admissions that incriminated her in the interview.  She was aware that the likely legal advice would be not to say anything to the police.

   I'm completely satisfied that [the appellant] knew and understood that she had a right to remain silent.  Where she did appear to request a lawyer, her request was ambiguous.  She said she wanted to understand the law.  I do not find that her statutory right to speak to a lawyer was denied or that any request for consular assistance was denied for that matter.

   [62] ts 1752 ‑ 1753.

9. His Honour rejected the appellant's evidence that she had been tricked into signing the document, nor did he accept her evidence that she did not read the written admission and that it had not been read to her.  He also rejected the appellant's evidence that she had been improperly induced to make the admissions including those that were contained in the written statement.  As to this document, his Honour found that:[63]

   The accused was not induced to make the admissions that were ‑ that are contained in the written statement.  She may have hoped that by coming clean she would be allowed to leave Perth but that was not a hope held out to her by Detective Vanderwiel as she contends.

   His Honour continued:[64]

   The admissions, spoken and written, were voluntary.  The evidence raises no real issue as to their reliability.  There is nothing in the conduct of the police that would make it unfair for all of the admissions to be received in evidence.  There is a reasonable explanation for them not being recorded.

   [63] ts 1753.

   [64] ts 1754.

10. His Honour also found that, even if the prosecution had failed to establish that there was a reasonable excuse for the absence of an audio‑visual recording of the appellant's admissions, he would nevertheless have allowed the admission of the otherwise inadmissible evidence pursuant to s 155 of the Criminal Investigations Act.  As to this, his Honour said:[65]

    [65] ts 1273 - 1274.

    If by a different factual analysis I found that there was no reasonable excuse for the police failing to capture the making of a written statement on camera, then pursuant to s 155 of the Criminal Investigation Act, I would rule that the evidence of the written statements should be admitted, as well as the evidence of the spoken admissions which give context to and an explanation for the making of the written statement.

    If it were found that the admissions were obtained improperly, it would, on my factual findings, only be on the basis that the police did not endeavour to have [the appellant] adopt her written statement on camera.

    I do not consider that there was any other conduct on the part of the interviewers that would constitute a breach of the Criminal Investigation Act being satisfied that the accused was given her statutory rights as a suspect and appropriately cautioned.

    In those circumstances, I would make the following findings by reference to s 155(3). The objection to the evidence on the grounds that the admissions were involuntary has not been made out.

    The remaining ground for objection is technical, being based on evidence that the police had means to record the admission that was contained in the written statement when, as a matter of fact, the accused had declined to be further interviewed.

    In terms of the defence objection, the court is not satisfied that the written admissions should be excluded on the grounds of unfairness.

    The seriousness of the offences in respect of which the evidence is relevant is high when the alleged conduct is viewed as a whole.

    The contravention of the [Criminal Investigation] Act which would have been committed by the police failing to offer the accused another recorded interview in order to enable her to adopt her written statement was clearly not intentional or reckless.

    The probative value of the evidence is high but at the same time it is not critical to the prosecution case which is prima facie capable of supporting the inference that the accused was the author of the offensive emails and messages.

    I consider moreover that the fact that the accused's admissions were captured in a signed written statement, that she was ‑ that was prepared and signed within 30 minutes of the conclusion of the formal interview, militates strongly in favour of admission.

11. His Honour acknowledged that under common law he was empowered to exclude the evidence of voluntary admissions on the grounds of fairness or if the prejudicial affect of the admission exceeded its probative value.[66]  His Honour found that there was nothing in the circumstances that suggested that the admissions were obtained unfairly or that the evidence should be excluded on the basis that their prejudicial value exceeded their probative value.[67]

    [66] ts 1274.

    [67] ts 1275.

Ground 1 - admissibility of the appellant's admissions

1. The appellant's submissions in support of ground 1 focus on the written statement signed by the appellant on 19 March 2019.

2. The appellant's written submissions, in effect, repeat the evidence that she gave at her trial and assert that his Honour was wrong to reject it.  The appellant also points to some inconsistencies in the evidence of Detective Vanderwiel and Detective Robinson.

3. The appellant also complains that she suffered prejudice as a result of the State's 'last minute' decision to adduce evidence of the written statement at her trial.  The appellant alleges that the State decided only to adduce the evidence a short time before the commencement of the trial.

Ground 1 - disposition

1. Underpinning the appellant's submissions in support of ground 1 (and indeed other grounds, most notably ground 8) is the contention that the testimony she gave about the circumstances in which the oral and written admissions occurred was true.  She does not grapple with his Honour's rejection of her evidence on all of the significant issues.  Apart from repeating the evidence she gave in the trial, she does not state why his Honour's findings of fact were erroneous.  There is no evidential basis upon which this court could find that the admissions were involuntary.  His Honour found that, while they were not recorded by audio visual means, there were reasonable grounds for failing to do so on the facts of the case.  Again, on the evidence, he found that there was no reason to invoke the common law discretion to exclude the admissions on the basis that their probative value was outweighed by the prejudice to the appellant or that the admissions had been obtained in any way unfairly.

2. His Honour plainly appreciated that the oral and written admissions had not been recorded by audio visual means and were, by reason of the operation of s 118 of the Criminal Investigation Act, inadmissible unless there was a reasonable excuse for the failure to record them in the specified manner or if s 155 of the Criminal Investigation Act applied.  It is clear from his Honour's oral reasons that he was well satisfied that the appellant made the admissions and that there was a reasonable excuse for them not being audio‑visually recorded.  He decided these issues having regard to the evidence he accepted and made findings of fact which were well open to him.  The appellant has not alleged, and it is not apparent to us, that his Honour incorrectly applied the relevant provisions of the Criminal Investigations Act.  The decision to admit the oral and written admissions was not erroneous.

3. Nor did the appellant suffer any prejudice by reason of the State apparently deciding to adduce the evidence of the written admission shortly before the commencement of the trial.  The necessity for a voir dire was known on 9 March 2021.  The voir dire itself was not conducted until 24 March 2021.  Defence counsel did not, at the time of voir dire, submit that he was not ready to proceed with it.  Indeed, it is clear from the manner in which the voir dire was conducted by defence counsel that he was well prepared for it.

4. For these reasons ground 1 has no reasonable prospect of succeeding.

Ground 2 - alleged refusal to adjourn the trial

1. The appellant expresses ground 2 in this way:

   The trial judge wrongly stopped the evidence being given and made an error about some procedural matters such as refusing an adjournment and allowing the trial to be delayed for the [defence] to show the evidence in full and seek for expert witness.  [The trial judge's decision] prevented the defence [from] being able to present all the evidence that [was] relevant to the jury.  If the jury had heard the full evidence they would have acquitted me.

2. In support of the ground, the appellant refers to parts of the transcript relating to defence counsel's cross‑examination of Detective Vanderwiel before the jury.[68]  During the cross‑examination of Detective Vanderwiel, defence counsel tendered a number of documents, some of which had previously been marked for identification.  Having tendered an email chain that had previously been MFI 28, defence counsel then sought to tender a disc containing four files of spreadsheet data.  Defence counsel explained that these were the spreadsheets of the call charge records of the Telstra and Vodafone accounts that had been disclosed to the defence.  Defence counsel stated that there was no dispute about their provenance.[69]

   [68] ts 1369 - 1370.

   [69] ts 1368.

3. Not surprisingly, the trial judge queried the utility of providing the jury with the four files of spreadsheets that were contained on the disc.[70]  Defence counsel explained that in due course he would take the officer to various calls which would require the spreadsheets to be examined.  The trial judge said that he had no difficulty with this but said that he had no knowledge of how much data was on the disc and that the jury could not be expected to receive in evidence data which they would ultimately not be taken to in the course of the trial.[71]  Defence counsel accepted this and accepted that to tender the disc containing all the data that was in it would unduly burden the jury.[72]  The trial judge suggested that defence counsel could take Detective Vanderwiel to entries on the spreadsheet without tendering the disc and the otherwise voluminous records it contained.  Ultimately, defence counsel said he would 'defer' to his Honour's suggestion.[73]  The cross‑examination then proceeded.  Defence counsel did not make an application to adjourn the trial.

Ground 2 - appellant's submissions

[70] ts 1368.

[71] ts 1368 ‑ 1369.

[72] ts 1369.

[73] ts 1370.

1. In support of ground 2 the appellant submits that the trial judge 'wrongly stopped evidence being given' and made a wrong decision in not admitting the 'telco data'.  She asserts that this data would have shown that someone tailed her, cloned her SIM card, spoofed her social network account and hacked her phone.  The appellant's written submissions go further than the ground itself and assert that the defence did not have time to present all the relevant evidence.  The written submissions assert that the call charge records were important to demonstrate 'anomalies' in the State's case that the appellant sent certain incriminating messages from locations in which she could not possibly be present.

Ground 2 - disposition

1. There is no merit in ground 2.

2. Insofar as the ground alleges that the trial judge erred in refusing to allow the tender of the disc containing the spreadsheets, the ground is misconceived.  His Honour did not refuse the tender of the disc.  Rather, he queried the necessity for the jury to be given voluminous documentary material without specifying the relevant portions of it.  His Honour, appropriately, suggested an alternative course to defence counsel, being to simply refer the witness to the relevant portions of the records.  This was a sensible suggestion that defence counsel ultimately accepted.  Put another way, defence counsel did not press the tender of the disc containing the spreadsheets and accordingly it cannot reasonably be said that the trial judge 'wrongly stopped evidence' or made 'a wrong decision'.  Indeed, to press for the tender a disc containing voluminous call charge records without explaining the relevance of doing so would have been completely unhelpful to the jury and would not have advanced the appellant's case.

3. As for the appellant's assertion that the trial should have been adjourned to, as the ground says, allow the defence 'to show the evidence in full and seek for expert witness', the trial judge was not asked to adjourn the trial for the purposes the appellant claims, nor is it apparent that his Honour should have done so.  The assertion in the ground of appeal that the trial judge prevented the defence being able to present all the relevant evidence to the jury is simply wrong.

4. Finally, in any event, it is not apparent how the disc containing voluminous call charge records and any additional expert evidence would have assisted the appellant.  We will discuss later in these reasons the alleged 'anomalies' in the State's case concerning the appellant's location at the time certain incriminating communications were said by the State to have been made by the appellant.  As will be seen, the alleged anomalies, when viewed in the context of all of the evidence, did not undermine the State's circumstantial case when viewed as a whole.

5. For these reasons, ground 2 has no reasonable prospect of succeeding.

Ground 3 - alleged racial prejudice and police corruption

1. As drafted, ground 3 states:

   The trial judge made an error, miscarriage of justice that his Honour failed to weigh up the prejudice to the appellant and the danger is that not just about racial prejudice but the fundamental world view that the justice system and misconduct police officers/corruption that happens in every country around the world.

2. The ground is not easy to comprehend.  The written submissions in support of the ground do not make the ground clearer.[74]

   [74] Appellant's case, par 3; WAB 31 ‑ 32.

3. Having regard to the ground and the appellant's submissions generally, she appears to allege that the verdicts of guilty were a result of racial prejudice and not the evidence.  In essence, she submits that the evidence adduced at trial did not support the convictions and that the only explanations for the verdicts are racial prejudice, discrimination by the prosecutor and the jury and police corruption.  In dealing with ground 8 we will deal with the appellant's contention that the verdicts of guilty were unreasonable or could not be supported by the evidence.  As will be seen, there is no substance to this contention.  Contrary to the appellant's submissions, the evidence against her was overwhelming and the verdicts of guilty were well justified by the evidence.

1. The allegations by the appellant of racial prejudice, discrimination by the prosecutor and the jury and corruption are nothing more than unsubstantiated assertions without any basis in the evidence or in the manner that the trial was conducted.

2. As for any issue of prejudice, as the State points out in its written submissions,[75] the jury were expressly told by the appellant's counsel,[76] the prosecutor[77] and the trial judge[78] to put aside any bias, prejudice or sympathy and to approach their decision with an open mind.  The appellant does not point to anything said by the prosecutor, the State's witnesses or the trial judge which could reasonably be interpreted as an appeal to the jury to decide the case other than objectively on the evidence.

   [75] Respondent's answer, par 39.1; WAB 75.

   [76] ts 109 ‑ 110, 2021, 2025 ‑ 2026.

   [77] ts 1999.

   [78] ts 88 ‑ 89, 2071 ‑ 2072, 2121.

3. We will not refer to everything said to the jury during the trial about the necessity to decide the case free of prejudice and emotion.  However, we will refer to statements made by the trial judge on the subject.

4. In his preliminary remarks shortly after the jury were empanelled, his Honour directed the jury that feelings, one way or the other, for and against people that were involved in the case, do not play a part in its decision‑making.[79]

   [79] ts 89.

5. Shortly after the trial judge began his summing up to the jury, he directed them in these terms:[80]

   Now, when I say, members of the jury, that you must judge the case on the evidence I mean that you should do so putting aside any sympathies or prejudices that the evidence may have aroused.  It can be hard sometimes to own one's prejudices or biases.  It's a constant issue for judges dealing with bias and often it's unconscious.  We're products of our own experience and often we don't know when biases might be operating to incline us one way or the other.

   But your object should be to work out your verdicts in a rational, objective and dispassionate manner.  So as counsel have exhorted you to do, I direct you to put aside your emotional reactions to the evidence, any biases or prejudices that you may have or have felt and to approach your decision making in an entirely rational and objective manner …

   So I simply direct you to guard against allowing any sympathy or prejudice to affect your decision making and that includes any feelings that arise by reference to [the appellant's] own circumstances.  And remember too that you are not here to judge the lifestyles of [RJ] or [the appellant].  There's obviously been evidence of things that you may have found objectionable for one reason or another according to your own values, but as [defence counsel] has said this is not a court of morals.  It's a court that is convened in order to decide whether certain allegations of criminal offending are proved beyond reasonable doubt.

   [80] ts 2071 ‑ 2072.

6. Towards the end of the summing up, the trial judge referred expressly to a submission made by defence counsel in the course of his closing address concerning racial stereotyping.  His Honour addressed the subject in this way:[81]

   There were comments made by [defence counsel] in his closing that there seemed to be an undercurrent of racial stereotyping in the prosecution case.  I did not understand that comment to mean that the State's case was racist, but that the case fitted a negative stereotype of a greedy Asian gold‑digger to use [defence counsel's] words, exploiting a vulnerable middle‑aged Caucasian man.  I don't know whether such a stereotype exists or indeed whether there is a stereotype of middle‑aged Australian men seeking to obtain the company of Asian women by blandishments of one kind or another.  But I credit you, members of the jury, with sufficient common sense to know that the State's position is based on the evidence and is not motivated by any prejudice.  It's for you to decide your verdict on the evidence dispassionately.

   [81] ts 2121.

7. Criminal trials proceed on the fundamental assumption that jurors are true their oath or affirmation and understand and obey the trial judge's directions.  As Keane JA observed in R v D'Arcy:[82]

   High authority confirms that the law does not proceed upon a sceptical view of the intelligence or integrity of juries, or their ability rationally to determine issues of guilt or innocence strictly by reference to the evidence adduced at trial.  Rather, the law proceeds upon the assumption that jurors may be relied upon to determine issues of guilt or innocence in accordance with their sworn oath.  The administration of criminal justice necessarily depends upon the compliance by jurors with directions from the trial judge to base their verdict on the evidence given before them on the trial and to disregard information otherwise acquired.

   [82] R v D'Arcy [2005] QCA 292 [28].

8. See also Gilbert v The Queen.[83]

   [83] Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 [13] (Gleeson CJ & Gummow J), [31] (McHugh J).

9. The appellant's generalised assertions, founded upon what she describes as 'the fundamental world view' that the justice system and police officers are corrupt, are baseless.

10. For these reasons ground 3 has no reasonable prospect of succeeding.

Ground 4 - trial judge's directions to the jury

1. Ground 4 states:

   The trial judge failed to properly direct the jury on some aspect of the law relating to the case, concerning a defence raised by the evidence that there [is] reasonable doubt to acquit the appellant.  That incomplete circumstantial evidence that will not prove guilt.  Testing the evidence by questions, it could never be sufficient to prove guilt and must suspend judgment and prejudice.  The trial judge and jury wrongly prejudice and has accumulate that should be examined and must be based on clear reasoning absent of any prejudice at all.

2. The ground of appeal is unclear as to how precisely the trial judge failed to direct the jury.  The written submissions in support of the ground refer to the judge's directions concerning prejudice, including racial prejudice.  Insofar as the directions concern prejudice, for the reasons given in respect of ground 3 there is no merit whatever in these contentions.  They do not need to be addressed further.

3. This leaves for consideration whether the trial judge's directions as to circumstantial evidence were adequate and whether the trial judge properly summed up the defence case.

Ground 4 - appellant's submissions

1. The appellant's submissions in support of ground 4 are broadly expressed.  Once again the appellant refers to anomalies in the telephone data.  The appellant also refers to evidence of her SIM card being cloned, and to what she says is evidence that someone tailed her and set her up.

Ground 4 ‑ disposition

1. It is well established that the fundamental task of a trial judge is to ensure a fair trial of the accused.  This requires the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case.  Subject to any applicable statutory provisions, a judge is required to identify the issues in the case and to relate the law to those issues.  The judge must also put fairly before the jury the case which the accused makes.[84]

   [84] RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41] (Gaudron ACJ, Gummow, Kirby & Hayne JJ).

2. In the present case, the trial judge delivered to the jury over the course of two sitting days an admirably clear and comprehensive summing up.[85]  The summing up included orthodox directions as to the onus and standard of proof and emphasised that the appellant did not bear any onus of proof.  His Honour instructed the jury unambiguously that the real issue to decide in each count was the issue of identity, that is, whether the State had proved that the appellant was the offender.  His Honour directed the jury that the State's case as to this element was circumstantial.  His Honour's directions as to the drawing of inferences and circumstantial evidence,[86] while succinct, were in orthodox terms and were plainly correct.  Those directions emphasised that the jury could not return a verdict of guilty unless the inference of guilt was the only reasonable inference that could be drawn from the facts that the jury found to have been proved.

   [85] ts 2068 ‑ 2090, 2099 - 2122.

   [86] ts 2099 - 2100.

3. After outlining the State's case his Honour summarised the defence case.  Specifically as to the possibility of the appellant's SIM card being cloned or her devices being hacked, his Honour directed the jury in these terms:[87]

   Now, quite properly the defence does not invite you to speculate about cloning or hacking because there's no evidence of these things, but the defence does point to the fact that the examination of the hard drive of [RJ's] computer involved an examination of a replacement hard drive.  The original had not been examined and it was accepted by the relevant witness, I think it was Mr McKellar, that because he was looking at a replacement hard drive he couldn't tell whether there'd been any malware installed or any hacking of the original hard drive.

   So the defence doesn't ask you to speculate, but says that the possibility of hacking or malware having been installed hasn't been excluded by the evidence in the prosecution case.  The defence submits that the inference that the State would have you draw is not the only one that is open on the evidence and that the evidence as a whole leaves open the reasonable possibility that another person or persons were responsible for these offensive emails.  And I'll come back to what alternative inferences the defence suggests are open.

   [87] ts 2104.

4. A short time later his Honour directed the jury:[88]

   So if you find that a theory or explanation is available on the evidence that is consistent with her innocence, then it would be your duty to acquit her.  Those alternative explanations or alternative inferences have to be excluded by the prosecution on whom the burden of proof lies.  So if you thought that there was a reasonable hypothesis that was consistent with the accused's innocence based on the facts as you find them to be, then you would not be satisfied beyond reasonable doubt of her guilt.

   [88] ts 2108.

5. In the course of the summing up, his Honour reminded the jury that the appellant suggested that her SIM card had been cloned, that is that it had been duplicated in some way such that there were two phones operating with the same telephone number.  His Honour reminded the jury that it was the appellant's position that RJ had cloned one of her SIM cards in order to send offensive emails to himself and his wife.  His Honour directed the jury[89] that the State had to exclude this as a reasonable possibility.

   [89] ts 2110.

6. His Honour also reminded the jury of some aspects of the evidence concerning the call charge records and in particular of a number of suggested anomalies concerning the cell tower locations included in the call charge records.[90]  His Honour drew the jury's attention to some of these anomalies and to the evidence concerning the location of the cell towers.[91]

   [90] ts 2111.

   [91] ts 2111 ‑ 2113.

7. At the conclusion of the summing up, neither the prosecutor or defence counsel took any exception to it as to any matter of fact or law.[92]

   [92] ts 2122, 2123.

8. On our analysis of the summing up, his Honour properly summarised the defence case including in respect of the possibility that the appellant's SIM card had been cloned and in respect of the alleged anomalies.  When read as a whole, the jury were unmistakably directed as to the State's circumstantial case and in particular that the jury were bound to acquit if it had a reasonable doubt on the element of identity.

9. For these reasons, ground 4 has no reasonable prospect of succeeding.

Ground 5 - technical knowledge

1. Ground 5 states:

   The jurors and the trial judge do not have enough knowledge and [are] lost in technique [technical] information where there are no expert witnesses and unexplanation of the evidence on the trial.  The trial argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to conduct of the case.  But they've been lost interest in the case but prejudice.

2. Unfortunately, ground 5 is incomprehensible.  The written submissions in support of it are no clearer.  They refer to evidence of an expert witness called by the State, Mr Snader, part of the testimony of Mr Obal, an acquaintance of the appellant, and selected parts of RJ's evidence.  The references to the evidence of Mr Snader, Mr Obal and the appellant are incoherent. 

3. As best as we are able to comprehend ground 5, the appellant appears to be primarily complaining that the jury were not provided with enough technical knowledge to decide the case.  This is no more than a generalised assertion on the appellant's part.

4. Of the three witnesses the appellant referred to in her written submissions in support of ground 5, only Mr Snader gave expert evidence.  This evidence was adduced to inform the jury, generally, what an IP address is and whether it is possible to trace the device which sent an email or mobile communication by reference to the device's unique IP address.  Mr Snader also gave generalised evidence about 'spoofing' and 'hacking' and brief evidence about the accuracy of location data based on the position of cell phone towers.  In general terms, he accepted that it was possible to 'spoof' an IP address; that is, to change the identity of the sender of computer data such as an email. 

Ground 5 - disposition

1. The State adduced further expert evidence from Mr McKellar and Mr Jenkins.  All of the experts were cross‑examined by defence counsel, most at some length, to the effect that the expert's agreed it was generally possible for computers and mobile devices to be hacked, emails to be spoofed and SIM card to be cloned.

2. The proposed ground relies upon no more than an expression of the appellant's opinions about the state of the expert evidence, the jury's loss of interest in the case and its resort to prejudicial reasoning.  The appellant's opinions are no proper basis upon which to impugn the fairness of the trial and the verdicts.  Ground 5 has no reasonable prospect of succeeding.

Ground 6 - alleged derogatory language used by the prosecutor

1. Ground 6 states:

   The State's case purely prejudice and intimidate with derogatory language references to the appellant made by [the] prosecutor twist and turn to racial-prejudice and discrimination that humiliated and degrade[d] in the way of questions that irrelevant to the case.

Ground 6 - appellant's submissions

1. In essence, the appellant complains that she has suffered a miscarriage of justice as a result of allegedly racist, derogatory and insulting questions posed by the prosecutor in her cross‑examination.  The appellant also complains that the trial judge did not stop the 'inappropriate' questioning of the appellant, and that the prosecutor's questions created a 'great deal of prejudice and unfairness'.[93]

   [93] Appellant's written submissions, WAB 35.

2. The appellant gives very few examples of the prosecutor's alleged misconduct.  Specifically, the appellant complains of questions asked by the prosecutor to the effect that the appellant was 'broke', 'poor', 'had no money' and was 'bankrupt'.  The appellant also complains of questions which allegedly spoke badly about her ex‑husband, her mother and her friends.  The appellant further alleged that the prosecutor made a comment that made her 'look like [a] bar girl, [an] Asian girl who look[s] for [a] white man for [a] partner visa'.  None of these allegations are supported by actual references to the transcript.

3. The appellant was cross‑examined at great length by the prosecutor.  It is true that the prosecutor asked questions concerning the appellant's background, including as to her education, previous relationships, qualifications, work experience and wealth.  These were all topics raised in her examination‑in‑chief.  The appellant testified that her marriage to 'Terry' had been unhappy, and that he had a 'violence issue'.[94]  She also accepted that she went on Thai Cupid looking for a foreign man.[95]  It was put to the appellant, as part of the State's case, that she wanted RJ to divorce his wife and to assist her to obtain a partner visa in Australia.  There was nothing improper about any of these lines of questioning, which were either responsive to evidence given by the appellant or concerned relevant facts in issue, or her credibility generally.

   [94] ts 1836.

   [95] ts 1837.

4. In our reading of the cross‑examination, the prosecutor addressed the appellant at times firmly but appropriately and with respect.  We are unable to see how it could reasonably be said that the prosecutor behaved in the manner alleged by the appellant.

5. Ground 6 has no reasonable prospect of succeeding.

Ground 7 - was the trial judge's summing up unbalanced?

1. Ground 7 states:

   The trial judge failed to emphasise that fairness means that ordinarily the respective cases advanced by the State and the defence must be accurately and fairly put to the jury.  The failure of a trial judge to undertake that task to discuss all of the evidence and analyse all the conflicts to ensure the jurors have sufficient knowledge and understanding.  The trial judge only discuss[ed] the [defence] evidence in [the] absen[ce] of the jury that is unfair to the accused.

Ground 7 - appellant's submissions

1. The submissions of the appellant go beyond the ground of appeal.  In addition to alleging that the trial judge failed to properly put the defence case to the jury, the appellant complains that the trial judge failed to put to the jury matters that were discussed in their absence.  She also alleges that the trial judge failed to direct the jury about the following matters relevant to the defence case, being:

   (a)The possibility that she had been set up by someone, including that messages had been spoofed, her SIM card cloned, and that she had been 'tailed'.

   (b)Some aspects of the evidence of Mr McKeller, who testified that he was given the task of comparing picture files from the two mobile telephones that were said to belong to the appellant and determining whether there were any identical picture files on [RJ's] desktop computer.  Mr McKeller identified some picture files that were common to the mobile telephones and the desktop computer.  He said that it was his understanding that nothing of relevance to the investigation was found as a result of this analysis.[96]

   (c)The Picsart application was not found on the appellant's mobile telephones.

Ground 7 - disposition

[96] ts 942.

1. Much of what is alleged in this ground is a repetition of ground 4.  We have already set out the general legal principles concerning the obligation of a trial judge to properly put to the jury the case made by an accused at trial.  Contrary to the statement made in the ground of appeal and the appellant's submissions, a trial judge is not obliged to discuss and analyse all of the conflicts in the evidence and the arguments that were put to the jury.  Rather, the judge's obligation is to ensure that the respective cases for the prosecution and the accused are accurately and fairly put to the jury.[97]  It is not the trial judge's duty to discuss all of the evidence.

   [97] Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, 561; McKell v The Queen [2019] HCA 5; (2019) 264 CLR 307 [35].

2. In our opinion, for the reasons given in dealing with ground 4, the trial judge properly reminded the jury of the defence case in terms sufficient for the jury to properly decide the case.  In doing so he drew the jury's attention to the salient evidence and to the different arguments in support of them.  At the risk of repetition, the jury were instructed by the trial judge in plain terms that the appellant's case was that she was not the offender and that there was a possibility she had been the victim of hacking, spoofing and cloning.  His Honour told the jury that the appellant denied downloading or using the Picsart application and that she was unaware of the images derived from that application.[98]  We do not consider that it was necessary for his Honour to refer the jury to the matter noted at [140(b)] above to understand or deal with the defence case.

   [98] ts 2086.

1. We note the Joondalup Health Campus records[471] reveal that she was registered at the hospital on 22 February 2019 at 08.12 and that she was discharged at her own risk at 15.30 the same day.

   [471] BGAB 569 - 586 (see in particular 571 and 586).

2. Taking into account the two hour time difference, the Vodafone call charge records reveal that the number ending in 2792 was being used at the Joondalup Health Campus from 07:51:29 until 15:32:31 on 22 February 2019.  This accords almost precisely with the hospital records referred to above.  The last entry that refers to Padbury on that date is at 06.42.42 (row 1960), well before she was admitted to hospital.  There is one entry (row 1961) at 08:11:47 which shows a data session that is recorded as being at the Joondalup Health Campus, but oddly ends at the Perth CBD.  The entry that follows it at 10:08:47, another data session, begins and ends at the Joondalup Health Campus, as do the rest of the relevant entries up to the entry at 15.32.31.  This entry (row 1968) is recorded as beginning at the Joondalup Health Campus but ending at the Perth CBD.  The subsequent four entries (rows 1969 to 1972) are recorded as beginning at Joondalup and ending at Perth, Joondalup, Craigie and Joondalup respectively. 

3. It is odd that some of the entries record a different location for the beginning and ending of the sessions they record.  However, as the differences are within the same session, they do not suggest that the number ending in 2792 was being used in two locations at once.  Rather, they suggest that the locations shown in the records are inaccurate.

4. All of the entries for the service ending in 2792 during the period the appellant was at the Joondalup Health Campus record the Joondalup Health Campus as the location for the beginning of the session.[472]  Accordingly, we do not accept that these entries show that the appellant was in two places at once.

   [472] BGAB 670, rows 1960 - 1972.

5. The appellant also referred to an entry later that day in the Vodafone call charge records, which recorded a data session in Perth at 15.35.05 (row 1969) and one a minute later in Joondalup (row 1970).[473]  However, each of these entries records that the session originated in Joondalup.  The only oddity is that the first is recorded to end in Perth.[474]  Again, we do not accept that these entries show that the appellant was in two places at once.

   [473] Appeal ts 22.

   [474] BGAB 670, rows 1969 - 1970.

6. The appellant in her oral submissions pointed to other alleged anomalies.  She noted that the Telstra call charge records[475] for 22 February 2019 show in one of the columns the entry '210418d3d300000'.  The appellant alleges that this entry is unusual and shows the use of a VPN or that 'someone used stolen SIM card by VPN'.  There was no evidence to explain the presence of the entry we have just referred to and nothing to show that this number could be associated with the use of a VPN or a 'stolen SIM card by VPN'.

   [475] BGAB 619 - 620 between rows 322 - 332, Appeal ts 8 - 10.

7. The appellant further alleged that the Vodafone call charge records for 23 February 2019 show that the telephone service was used in the Perth CBD within half an hour of it being used in Padbury.[476]  This is not an anomaly. 

   [476] Appeal ts 21 – 22.

8. The appellant also referred to the Telstra records[477] which showed that the mobile service ending in 2638 continued to record a location of the Joondalup Health Campus after she had been released from hospital and then recorded a location of Garden Island.  The appellant asserted that these entries showed that some other person had used that SIM card in those locations because, she asserted, she was in the Mercure Hotel in the Perth CBD.[478]  Assuming she was in the Mercure Hotel at those times, the probative force of those entries would depend upon the accuracy of the location data.

   [477] BGAB 621, row 363 to row 369.

   [478] Appeal ts 67.

9. The appellant further alleged that the Telstra records[479] show that the mobile service ending in 2638 was being used from 27 February 2019 to 16 March 2019 without charge.[480]  The appellant claimed that this showed that someone was hacking into the Telstra mobile telephone service ending in 2638.  The call charge records for that period do not clearly show that the service was being used without charge or that the relevant telephone number was being hacked.  In fact, the Telstra charge records for the number ending in 2638 show two top‑ups in that period, after the payments made by Mr Graham and Mr Obal, on 20 and 21 February 2019.[481] 

   [479] BGAB 625, row 477 to BGAB 635, row 780.

   [480] Appeal ts 68.

   [481] See exhibit 45, BGAB 493‑497.

10. Another anomaly alleged by the appellant concerns the location of the Telstra service ending in 2638 on 27 February 2019.  As Annexure 1 reveals, the appellant left Perth for Singapore at 11.39 am on 27 February 2019.  The appellant points to the Telstra call charge records which indicate that at 13.37.55 the number was being used in Joondanna, at 13.38.01 it was being used at Breton Bay and at 13.41.29 the number was being used in Koorian.  Breton Bay and Koorian are in the vicinity of Gingin.  Joondanna is a suburb north of Perth.  It is possible that all three locations may have been on the flight path between Perth and Singapore, given the timing of the entries on the Telstra record, and the time that the appellant departed Perth.  However, there appears to be an anomaly in the Telstra records as to the location of the telephone service ending in 2638.[482]

    [482] The relevant Telstra record is at BGAB 625 between rows 474 - 476.

11. The final anomaly alleged by the appellant concerns what may be referred to as the snowboard photo email.  It will be recalled that A testified that she took a photograph on her mobile telephone of her son snowboarding and that she sent the photograph to RJ from her email address on 12 January 2019.  This email was attached to an email dated 9 February 2019 from the jennica.lorie1027 email address to a number of email addresses including to RJ.  The appellant claims, in effect,[483] she had no access to RJ's computer and that she was not in Australia between 4 January 2019 and 20 January 2019.  In effect, the appellant says she did not have access to the snowboarding image and that the email of 9 February 2019 could not have been sent by her.  RJ said he had not seen the photograph.

    [483] Appeal ts 25.

12. The difficulty for the appellant in respect of this alleged anomaly, as Annexure 1 shows, is that between 22 January 2019 and 24 January 2019 the jennica.lorie1027 email and the appellant's cheetahcosmic email services were logged into Gmail from the IP address of RJ's desktop computer.  Thus, it appears that the appellant had access to RJ's computer and, it may further be inferred, access to the data on it including the snowboard photograph.

13. It is necessary to consider the effect of the anomalies which in our opinion have been made out.

14. Contrary to the appellant's submissions, we are unable to see how the anomalies either individually or in combination, provide evidence of hacking, cloning or for that matter spoofing.  Further, the evidence of Mr Snader supports the conclusion that the location data in the call charge records based, as it is, on cell tower location, is not always accurate.  Finally, and most importantly, this evidence needs to be seen in the light of all of the other evidence.

15. We now turn to a consideration of events which occurred after the appellant's arrest on 18 March 2019.  We will deal first with the alleged admissions made by the appellant and then with the evidence that some emails were sent from offending addresses to RJ.

16. The admissibility of the oral admissions and the written statement has already been dealt with by us in ground 1.  However, this ruling did not prevent the appellant from arguing, as she did, at trial that the jury should find that the oral admissions had not been made and in the case of the written admission, the appellant had not read what Detective Robinson had written before she signed it.  Nor did it prevent the appellant from arguing that, even if the oral admissions had been made and she read the written statement, they should not be accorded any weight.

17. In considering this body of evidence, the jury had the considerable advantage of having seen and heard the appellant and Detectives Vanderwiel and Robinson testify as to the making of the alleged oral admissions and the written statement.  The jury also had the benefit of viewing the video record of interview made on 19 March 2019 in order to ascertain the level of her fatigue and her manner generally.  In our opinion, based on our examination of the trial record, it was open to the jury to accept that the appellant had made the oral admissions.  It was open to the jury to accept that she read the admissions before she signed them.  Given the appellant's intelligence, it appears most unlikely that she would have signed a document put in front of her by detectives who were investigating her for serious offending without reading it.

18. While we would accept that the appellant made the oral admissions and signed the written statement, we acknowledge that her admissions are general in nature and do not, by themselves, establish the appellant's guilt.  However, they are a piece of circumstantial evidence which strengthens the State's case when considered along with all of the other evidence adduced on behalf of the State.

19. As we have observed, Annexure 1 shows that the harrynothinghill email address from which offending emails were sent to RJ and which the State alleged was set up and used by the appellant, was logged on to Gmail after the appellant's arrest whilst she was in custody.  Also, while the appellant was in custody, RJ received two packages from Thailand.

20. It was submitted by the appellant at trial and in this court that the appellant could not have been responsible for the login of the harrynothinghill address or the sending of the parcels given that she was in custody and that her communications by telephone, letter or email were monitored by the prison authorities.  It was the appellant's case that this shows that someone, apart from the appellant, had used the harrynothinghill email address and was communicating with RJ, showing that she was not responsible for the offending emails and other communications.

21. The evidence adduced by Ms Gibbs was to the effect that the appellant's emails, letters and telephone calls were monitored by the prison authorities.  The appellant received personal visits, including from Thai consular officials.  These visits were not monitored.  Ms Gibbs testified that the appellant had telephone conversations with Thai consular officials, her ex‑husband and her mother.  If these were in the Thai language, they were not translated.

22. The appellant testified, and RJ accepted, that Natanin Sridech was a close friend of the appellant.  The appellant testified that she was able to communicate via telephone with Ms Sridech and indeed her mother in the course of consular visits.  There is no direct evidence of the appellant asking Ms Sridech to log into the harrynothinghill Gmail account.  However, it is significant that between 2.42pm and 5.58pm on 4 August 2019, as shown in Annexure 1, the same IP address was used to log onto both the harrynothinghill email address and the email address [email protected].

23. In our opinion, the evidence shows that the appellant had the ability to communicate with people close to her while she was in prison without the authorities being able to monitor the conversations.  Thus, the appellant had the opportunity to speak to others who were close to her in Thailand to procure the login of the harrynothinghill Gmail address.  The evidence that the harrynothinghill address was logged in on the same afternoon as an email address associated with natanin.sridech, suggests that Ms Sridech had knowledge of the harrynothinghill address and logged into it.  Given the connection between the appellant and Ms Sridech, it seems unlikely that Ms Sridech would have done so independently of the appellant.

24. In these circumstances, we do not regard the post‑arrest communications as pointing towards the appellant's innocence, as she, in effect, argues.  We conclude that these communications were contrived by the appellant to deflect blame from her and to provide some answer to the difficulty posed by the fact that the offensive communications ceased after her arrest.

25. We now turn to the good character evidence.  The good character evidence adduced by the appellant carries little if any weight.  The good character witnesses called on behalf of the appellant, had only known the appellant a short period of time and while she had been in custody.

26. In our opinion, after evaluating and weighing the competing evidence at the trial, the only reasonable inference to be drawn was that the appellant was the person who committed each of the offences in the indictment.  The evidence overwhelmingly shows that the appellant was the person who, with respect to counts 1 and 2, created the false email addresses, created the emails and sent them to RJ and A.  The appellant was responsible for the creation of the composite images of R which constituted the CEM the subject of counts 3, 4 and 5.  She was also responsible for distributing the CEM that featured R the subject of counts 7, 9, 10, 11 and 12.  The appellant sent to R the indecent material the subject of count 6 and was responsible for the extortion demand the subject of count 8.

27. In our opinion, after evaluating and weighing all of the evidence, there is no reasonable inference available consistent with innocence.  In this regard, the jury, who had the advantage of seeing and hearing RJ and the appellant give evidence, were well entitled to reject the evidence given by the appellant to the effect that she was not the offender.  In our opinion, there was no credible evidence to suggest that the appellant had been the victim of hacking, spoofing or that her SIM card or cards had been cloned.  On our reading of the evidence, it was far fetched, to say the least, to suggest that RJ or anyone else was the offender.

28. We accept that the call charge records reveal some anomalies.  However, they are not of such weight, when viewed against all of the other evidence in the case, to create a reasonable doubt in our minds as to the appellant's guilt.  The logins to the harrynothinghill address after the appellant's arrest do not assist the appellant's arguments.

29. In our opinion, the combined force of all of the relevant facts and circumstances established by the evidence very clearly show that the appellant was the offender.  A jury, acting reasonably, was entitled to be satisfied beyond reasonable doubt of her guilt.  The trial record does not require a conclusion to the contrary.  The verdicts of guilty were not unreasonable and were supported by the evidence.  We do not have a reasonable doubt as to the appellant's guilt or as to the correctness of her convictions.  It would not be dangerous to permit the verdicts to stand.  Ground 1 has not been made out.

The applications to adduce additional evidence

1. It will be recalled that the appellant made two applications to adduce additional evidence filed on 20 December 2021 and 10 May 2022 respectively.  It will also be recalled that the appellant seeks to adduce, as additional evidence, documents written by Mr Richard Boddington.

2. Mr Boddington is a computer forensics practitioner.

3. The document the subject of the appellant's application filed 20 December 2021 is a report dated 6 February 2021 written by Mr Boddington entitled 'Completed Forensic Report - other matters raised by the accused'.  The report was written prior to the appellant's trial.  Despite the title indicating a completed forensic report, it contains no expert opinion.  Rather, Mr Boddington makes a number of 'observations' about aspects of the evidence, presumably based on the prosecution brief.

4. The second document is the subject of the appellant's application of 11 May 2022.  This document, also written by Mr Boddington, is undated.  It makes some observation about the evidence but expresses no expert opinion.  Also included in the application dated 11 May 2022 are emails and notes sent to defence counsel apparently by Mr Boddington.  Again, these documents do not express any opinions.  The contents of these emails appear to be comments on the evidence for the benefit of defence counsel, perhaps for defence counsel to cross‑examine the prosecution experts or to include in his closing address.

5. None of the above mentioned material is admissible opinion evidence nor is it admissible for any other purpose.  As the evidence is inadmissible, it cannot be adduced for the purposes of this appeal.  The applications to adduce additional evidence must therefore be dismissed.

Conclusion and orders - appeal against conviction

1. None of the grounds of appeal have been made out.  The appellant's appeal against conviction must be dismissed.

2. We would make the following orders:

   (1)The appellant's application for an extension of time to appeal is granted.

   (2)The appellant's applications to adduce additional evidence in the appeal dated 20 December 2021 and 11 May 2022 are dismissed.

   (3)Leave to appeal in respect of all of the grounds of appeal is refused.

   (4)The appeal is dismissed.

Appeal against order - CACR 105 of 2021

1. We now turn to the appellant's appeal against the lifetime violence restraining orders made by Staude DCJ against the appellant to protect RJ, A and R (the VROs) (CACR 105 of 2021).

2. The background against which this appeal is to be decided is set out in this court's sentencing decision in relation to the appellant.[484]

   [484] Siriphanuruk v The State of Western Australia [2021] WASCA 221 [116] - [126].

3. It will be recalled that immediately after sentencing the appellant in respect of counts 1 to 12 to terms of imprisonment, his Honour began to make violence restraining orders in favour of RJ, A and R, but, before doing so, he asked the prosecutor if such orders were sought.  The prosecutor answered in the affirmative but said that she had not prepared minutes setting out their terms.  Defence counsel said that he did not oppose the making of such orders.  He added 'there are no grounds'.[485]  His comment is clearly to be understood to mean that there were no grounds upon which to oppose the making of the orders.  His Honour adjourned the proceedings until later on 20 May 2021, when, in the presence of the appellant, his Honour made orders in favour of each of RJ, A and R in identical terms being:[486]

   Save and except through a properly instructed legal representative acting on behalf of the protected person or the respondent, the respondent shall not communicate or attempt to communicate by any means whatsoever including SMS or text messages, social media messaging applications or any other electronic means with the protected person, or cause, encourage or procure any other person to do so.

   And the respondent shall not enter upon any premises where the person protected lives or works or is educated or be within 50 metres of the nearest external boundary of such premises or approach within 100 metres of the person protected or commit an act of personal violence as defined in s 6 of the Restraining Orders Act 1997 against the person protected, or be in possession of a firearm or firearms licence or obtain a firearms licence or cause or attempt to cause damage to the property of or in the possession of the person protected or prevent the person protected from obtaining or using personal property reasonably needed by the person, even if the respondent is the owner of or had a right to be in possession of the property or behave in an intimidatory or offensive manner towards the person protected, or stalk or cyber stalk the person protected or behave in a manner that is likely to lead to a breach of the peace or cause or allow any other person to engage in conduct of the type referred to in this order.

   [485] ts 2174.

   [486] ts 2177 - 2178.

1. The ground of appeal when read with the written submissions, in substance, assert that the making of the VROs was unreasonable and unnecessary because she will be deported from Australia and will be living in a different country to the complainants.  Therefore, she will not be in a position herself to harass or intimidate the victims.  Further, the appellant has been told that the complainants have withdrawn from social media and she has no idea how to contact them.  Finally, she asserted that she was not the kind of person who would pursue the victims. 

2. In the sentencing decision, this court noted that it was not entirely clear from the transcript of the trial judge's sentencing remarks whether the VROs were made under s 63 or s 63A of the Restraining Orders Act 1997 (WA) (the ROA). It is accepted by the respondent that his Honour was not empowered by s 63A of the ROA to make the VROs. At the time the VROs were made (the ROA having been since amended) an order under s 63A could only have been made in respect of a person who has been convicted of a 'violent personal offence' as defined by s 63A(1A) of the ROA. The appellant was not convicted of a violent personal offence as defined in s 63A(1A) of the ROA.

3. The source of the court's power to make the VROs is s 63 of the ROA. We are satisfied that the VROs were made pursuant to s 63 of ROA. Section 63 empowered the sentencing judge, on the application of the prosecutor or on the court's own motion, to make the restraining orders.[487] The orders signed by his Honour were expressed to be violence restraining orders made under s 63 of the ROA. The certificate of final outcome also indicated that the VRO's were made under s 63 of the ROA. The fact that his Honour did not expressly refer to the discretionary nature of the court's power, or the matters informing the exercise of that discretion, is explained by the fact that the orders were not opposed by the appellant's trial counsel.

   [487] There may be a question as to whether the order made in favour of RJ should have been a FVRO rather than a VRO. This would be on the basis that, as people who had had an intimate personal relationship with each other, the appellant and RJ were in a family relationship for the purposes of the ROA (See par (f) of the definition of 'family relationship' in s 4 of the ROA). The definition of personal violence which may ground the making of a VRO is of conduct committed against a person with whom the appellant was not in a family relationship (see s 6(2) of the ROA). However, nothing of substance follows from this potential classification of the order which should have been made in favour of RJ and the issue is not raised by the grounds of appeal.

4. The appellant does not challenge the making of the VROs on the basis that the relevant statutory requirements in the ROA were not met.  It is also relevant to note that no objection was made to the making of the orders and that the appellant was present when the lifetime orders were made.

5. We accept the submissions of the respondent that VROs followed his Honour's detailed findings of fact as set out in the sentencing remarks.  His Honour had also been provided with the victim impact statements of each of RJ, A and R.  In his sentencing remarks his Honour noted that RJ stated that he 'remain[ed] fearful that [the appellant would] harass his family again in the future' and that A feared that the appellant would 'cause harm to her and her family in the future, and is concerned for the welfare of [R]'.

6. The sentencing judge observed that the appellant's denial of the offending, her lack of remorse and her conduct after having been arrested, gave the court 'cause for concern about [the appellant's] risk of reoffending in a similar way'.[488]  In the sentencing proceedings, two aspects of the appellant's conduct after having been arrested were mentioned.  The first was the prosecutor's submission that the appellant was continuing to pursue RJ, by seeking a VRO against him.  His Honour accepted this was relevant to personal deterrence.[489]  The second was his Honour's finding that, after the appellant was remanded in custody, she had enlisted the help of others to send emails from the [email protected] address in June and September 2019 'in an obvious attempt to show that it was in fact another person who was using that account'.[490] 

   [488] ts 2170-2171.

   [489] ts 2149.  See also ts 2170.  Defence counsel did not challenge this.

   [490] ts 2168.

7. The contents of the emails sent to RJ, A and R which threaten personal violence give rise to a reasonable apprehension that the appellant will commit personal violence against the person seeking to be protected.  The making of the VROs was plainly required to prevent further behaviour of this kind.

8. The restraints placed upon the respondent by the orders were, in our opinion, entirely reasonable.  While it may well be that the appellant will be deported from Australia, her post‑arrest conduct gives rise to the real risk that she will harass or attempt to harass RJ, A and R via the internet.  The complainant stated that RJ, A and R have withdrawn from social media.  Whether this is true or not is not known.  However, even if it is true, each of RJ, A and R might well use social media again and they should not be prevented from doing so out of fear that the appellant would harass them.  The appellant's assertion that she was not the kind of person who would pursue the victims is completely contradicted by the convictions and his Honour's findings in his sentencing remarks.

9. While it is likely that the appellant will be deported and may be subject to a lengthy prohibition from re‑entering Australia, there remains a prospect that the appellant may, at some point in the future, be permitted to enter Australia.  The appellant's offending in this case is so egregious and so persistent that, despite the remote prospect the appellant will be permitted to return to Australia, it is appropriate that she be restrained in the manner set out in the VROs which involve behaviour which she may potentially engage in should she be allowed, in the future, to enter Australia.

10. While there is no evidence to suggest that the appellant is a person who has access to or is in possession of a firearm or has a firearms licence, the restraints in the VROs relating to firearms or firearms licences are required by operation of s 14 of the ROA.

11. Having regard to all of the relevant facts and circumstances, the making of the VROs in respect of each of RJ, A and R was entirely appropriate in the circumstances of this case.  The restraints that were imposed were appropriate as was the duration of each order.

12. The appellant's appeal against the making of the VROs is without merit.  Leave to appeal should be refused in respect of the ground of appeal and the appeal must be dismissed.

Orders on CACR 105 of 2021

1. The orders we would make are:

   (1)An extension of time within which to appeal is granted.

   (2)Leave to appeal on the ground of appeal is refused.

   (3)The appeal is dismissed.

Annexure 1

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

TDSM

Associate to the Honourable Justice Mazza

17 APRIL 2023