SJX v The State of Western Australia

[2012] HCASL 187

SJX

v

THE STATE OF WESTERN AUSTRALIA

[2012] HCASL 187
P43/2011

1. On 23 October 2009, following a jury trial in the District Court of Western Australia, the applicant was convicted of seven counts of sexually penetrating a child under the age of 16 being a lineal relative, and of two counts of procuring a child under 16 being a lineal relative to do an indecent act.  The complainant was the applicant's granddaughter who was between four and seven years of age at the time of the offences.  On 21 December 2009, the applicant was sentenced by the trial judge (Goetze DCJ) to ten years' imprisonment.

2. On 23 December 2010, the Court of Appeal of the Supreme Court of Western Australia (McLure P, Buss JA and Mazza J) refused the applicant leave to appeal from his convictions.  During the trial, three visually recorded interviews between police and the complainant were entered into evidence.  Buss JA (with whom McLure P and Mazza J agreed) rejected the applicant's contention that a pre-trial ruling by Fenbury DCJ, which declared that evidence admissible, was attended by error.  His Honour found the evidence was not elicited by leading questions, nor did the police's manner of questioning evince a high degree of suggestibility. 

3. A further ground of appeal was that Fenbury DCJ erred in admitting evidence of the applicant's step-daughter about sexual misconduct engaged in by him against her when she was a child, approximately 30 years earlier.  Buss JA held that the evidence had significant probative value.  Any risk of an unfair trial due to impermissible propensity reasoning was mitigated by the directions given to the jury about how the evidence could be used.  As to the applicant's challenge of the trial judge's directions in summing up, Buss JA held there was no reasonable possibility the directions had created an impression that the applicant bore the onus of proving his innocence, or otherwise confused or misled the jury as to the burden of proof.  Finally, the applicant's contention that his convictions were unreasonable, or could not be supported by the evidence, failed.

4. The applicant requires an extension of time within which to file his application for special leave to appeal to this Court.  That extension should be granted, but the application for special leave dismissed.  The applicant advances four new grounds of appeal in addition to several of those relied on in the Court of Appeal.  However, there is no reason to doubt the correctness of the Court of Appeal's decision.  An appeal to this Court would enjoy no prospects of success.

5. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application. 

S.M. Kiefel
12 December 2012 S.J. Gageler