SKN v The State of Western Australia
[2024] WASCA 132
•30 OCTOBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SKN -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 132
CORAM: BUSS P
VAUGHAN JA
HALL JA
HEARD: 22 OCTOBER 2024
DELIVERED : 22 OCTOBER 2024
PUBLISHED : 30 OCTOBER 2024
FILE NO/S: CACR 33 of 2024
BETWEEN: SKN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: HUGHES DCJ
File Number : IND 1481 of 2022
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted after trial of indecently dealing with a child under the age of 13 years - Appellant acquitted after trial of numerous other charged offences - Whether the verdict of guilty is unreasonable or cannot be supported having regard to the other verdicts of the jury
Legislation:
Criminal Code (WA), s 320(4), s 321A(3)
Result:
Leave to appeal granted on ground 1
Leave to appeal refused on grounds 2 and 3
Appeal allowed
Judgment of conviction set aside
Judgment of acquittal entered
Category: B
Representation:
Counsel:
| Appellant | : | K Kumar |
| Respondent | : | B M Murray |
Solicitors:
| Appellant | : | Graeme A Ryan & Associates |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
DRH v The State of Western Australia [2021] WASCA 97
REASONS OF THE COURT:
The appellant appealed to this court against conviction.
He was convicted after a trial before Hughes DCJ and a jury of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code (WA) (the Code), and sentenced to 12 months' imprisonment suspended for a period of 12 months.
The appellant relied upon three grounds of appeal. Ground 1 alleged, in essence, that the verdict of guilty is unreasonable or cannot be supported having regard to the other verdicts of the jury. The State conceded that ground 1 had been established and that the appeal should be allowed, the judgment of conviction set aside and a judgment of acquittal entered.
At the hearing of the appeal on 22 October 2024, the court was unanimously of the opinion that the State's concession was properly made. At the conclusion of the hearing, the court made, relevantly, these orders:
(1)Leave to appeal granted on ground 1.
(2)Leave to appeal refused on grounds 2 and 3.
(3)Appeal allowed.
(4)The judgment of conviction entered by the primary judge on one of the statutory alternative charges to count 1 in District Court indictment 1481 of 2022 is set aside.
(5)A judgment of acquittal is entered in respect of that statutory alternative charge.
Relevant details of the indictment and the verdicts of the jury
The appellant was charged on indictment with two counts.
Count 1 alleged that between 29 January 2001 and 1 February 2009, at a Perth suburb, the appellant had a sexual relationship with RMP, a child under the age of 16 years, contrary to s 321A(3) of the Code.
Count 2 alleged that between 17 July 2004 and 1 July 2010, at a Perth suburb, the appellant had a sexual relationship with BLP, a child under the age of 16 years, contrary to s 321A(3) of the Code.
The appellant is the grandfather of RMP and BLP.
At the material time:
(a)Section 321A(1) of the Code provided that, for the purposes of s 321A, a person has a sexual relationship with a child under the age of 16 years if that person, on three or more occasions each of which is on a different day, does an act in relation to the child which would constitute a 'prescribed offence'.
(b)Section 321A(3) provided that a person who has a sexual relationship with a child under the age of 16 years is guilty of a crime and is liable to imprisonment for 20 years.
(c)Section 321A(9) provided that, upon an indictment charging a person with an offence under s 321A(3), if the jury is not satisfied the accused person is guilty of that offence, the accused person may be convicted of one or more prescribed offences if the offence or offences are established by the evidence.
(d)Section 321A(11) provided that, for the purposes of s 321A, 'prescribed offence' means, relevantly, an offence under s 320(2) or s 320(4).
(e)Section 320(2) provided that a person who sexually penetrates a child under the age of 13 years is guilty of a crime and is liable to imprisonment for 20 years.
(f)Section 320(4) provided that a person who indecently deals with a child under the age of 13 years is guilty of a crime and is liable to imprisonment for 10 years.
At the appellant's trial, the prescribed offences for the purposes of count 1 were as follows:
Prescribed offence 1
Shower incident
It is alleged the appellant:
Used his hand to dry RMP's chest and the top of her vagina.
Prescribed offence 2
The first naked incident
It is alleged the appellant:
Removed RMP's clothing whilst she was asleep.
Prescribed offence 3
The second naked incident
It is alleged the appellant:
Removed RMP's clothing whilst she was asleep.
Prescribed offence 4
The bedroom incident alleging an act of digital penetration
It is alleged the appellant:
Penetrated RMP's vagina with his finger.
Prescribed offence 5
Lap incident
It is alleged the appellant:
Whilst RMP was sitting on his lap, thrusted his erect penis against RMP's vagina whilst they were both clothed.
At the appellant's trial, the prescribed offences for the purposes of count 2 were as follows:
Prescribed offence 1
The first naked incident
It is alleged the appellant:
Removed BLP's clothing whilst she was asleep.
Prescribed offence 2
The second naked incident
It is alleged the appellant:
Removed BLP's clothing whilst she was asleep.
Prescribed offence 3
The first lap incident (after bible study)
It is alleged the appellant:
Whilst BLP was sitting on his lap, had his erect penis against BLP's legs towards her backside and moved her around whilst they were both clothed.
Prescribed offence 4
The second lap incident (the birthday party)
It is alleged the appellant:
Whilst BLP was sitting on his lap, had his erect penis against BLP and moved her around whilst they were both clothed.
At the trial:
(a)the jury, by unanimous verdicts, found the appellant not guilty of counts 1 and 2;
(b)the trial judge did not leave prescribed offences 1 and 5 to the jury, as statutory alternative charges to count 1, and consequently no verdicts in respect of prescribed offences 1 and 5 were taken;
(c)the jury, by a unanimous verdict, convicted the appellant of prescribed offence 2, as a statutory alternative charge to count 1;
(d)the jury, by unanimous verdicts, found the appellant not guilty of prescribed offences 3 and 4, as statutory alternative charges to count 1;
(e)the jury, by unanimous verdicts, found the appellant not guilty of prescribed offences 1, 2, 3 and 4, as statutory alternative charges to count 2.
So, the only verdict of guilty was returned on prescribed offence 2 as a statutory alternative charge to count 1.
The grounds of appeal
As we have mentioned, ground 1 alleged, in essence, that the verdict of guilty is unreasonable or cannot be supported having regard to the other verdicts of the jury.
Ground 2 alleged, in essence, that the trial judge erred in law by failing adequately to direct the jury about the circumstantial evidence relied upon by the State to support a conviction in relation to prescribed offence 2 as a statutory alternative charge to count 1.
Ground 3 alleged, in essence, that the verdict of guilty is unreasonable or cannot be supported having regard to the evidence.
The merits of ground 1
The appellant submits and the State accepts that the appellant's conviction is inconsistent with the acquittals on the other charged offences.
The relevant legal principles are summarised in DRH v The State of Western Australia.[1] It is unnecessary to repeat them.
[1] DRH v The State of Western Australia [2021] WASCA 97 [42] ‑ [45] (Buss P, Mazza & Beech JJA).
The State's case at trial in relation to the appellant's alleged offending against RMP and BLP was that between about 2001 and 2010 the appellant had a sexual interest in his young female granddaughters (that is, RMP and BLP). The appellant took advantage of his position of trust while caring for them. He acted on his sexual interest by undressing RMP and BLP while they slept; by touching their naked bodies after they had showered; by rubbing his penis against them while they sat on his lap; and, on one occasion, by inserting a finger into RMP's vagina.
RMP gave evidence to the following effect:
(a)As a result of an unstable home life with their parents, RMP and BLP would stay with their grandparents at the grandparents' home.
(b)RMP would sleepover at the grandparents' home once a week or, sometimes, twice a week or, occasionally, for a whole week. The sleepovers usually involved RMP and BLP.
(c)The bedtime routine at the grandparents' home was having a shower, consuming a warm drink, using the toilet and going to bed.
(d)RMP did not awake during the night at the grandparents' home.
(e)From the age of 9, RMP slept at her grandparents' home in a room that was called her 'big girl room'. Generally, RMP went to sleep with the bedcovers pulled over her chest. Typically, she wore a nightie or pyjamas to bed. She never wore underwear.
(f)On more than five occasions RMP awoke in the morning with no clothing despite having gone to bed wearing a nightie or pyjamas. All of these occasions occurred at the grandparents' home.
(g)The first time this occurred (being alleged prescribed offence 2) RMP was in the big girl room and was aged about 9 or 10. RMP said in cross‑examination that the five occasions when she awoke in the morning with no clothing occurred after the penetration incident (being alleged prescribed offence 4). The first time she awoke in the morning with no clothing she could not recall finding her clothes, but did recall putting on other clothing before leaving the room. Although she did not see who removed her clothes, RMP never awoke elsewhere with no clothing. She did not recall ever waking and removing her own clothing.
(h)RMP agreed in cross‑examination that she felt a sense of panic and confusion after waking in the morning with no clothing. She did not seek any explanation for why it had happened. She did not mention anything about it to her sister, parents or grandparents.
(i)RMP agreed in cross‑examination that although she could not recall ever waking up and removing her own clothing, she could not exclude the possibility that she had removed her clothes herself. RMP also agreed that her clothes could have been removed by her, her grandmother or the appellant.
(j)The second time this occurred (being alleged prescribed offence 3) was not long after the first time. RMP recalled saying to herself 'it's happened again'. The second time she felt distressed and groggy. Eventually, she found her clothes in the corner of the room. Later in the day, she was excited about accompanying the appellant while he played golf.
RMP's mother gave evidence that, as far as she was aware, RMP and BLP never awoke naked when they slept at the family home. Neither RMP nor BLP ever complained to her about such a thing occurring at their grandparents' home.
RMP's two brothers gave evidence that they slept at their grandparents' home. RMP's two brothers did not give evidence that they ever awoke naked or with any of their clothing removed.
The appellant gave evidence in his own defence. He denied having committed any of the alleged offending.
The appellant's wife gave evidence that she did not recall any occasion on which RMP or BLP had told her that they had awoken naked. It was not suggested to the appellant's wife in cross‑examination that she had removed any of RMP's clothing during the night.
In our opinion, it can be inferred from the verdicts returned by the jury that the jury was not satisfied beyond reasonable doubt that the appellant had committed both prescribed offence 1 and prescribed offence 5 in relation to RMP because, if they had been so satisfied, the jury would have convicted the appellant of count 1.
As we have mentioned, the trial judge did not leave prescribed offence 1 or prescribed offence 5 to the jury as a statutory alternative charge to count 1 and, consequently, no verdicts were taken in respect of either prescribed offence 1 or prescribed offence 5.
The State's case in relation to prescribed offence 2 and prescribed offence 3 was entirely circumstantial.
The jury could not convict on either of those statutory alternative charges unless they were satisfied beyond reasonable doubt that:
(a)RMP went to sleep wearing clothing and awoke with all of her clothing removed;
(b)the only rational explanation for those circumstances was that the appellant had removed RMP's clothing while she slept; and
(c)the appellant's act in removing RMP's clothing was indecent; alternatively, that the appellant removed her clothing with a sexual motivation.
In our opinion, having regard to the evidence and the verdicts, there is no logical basis on which the jury could have been satisfied of the appellant's guilt of prescribed offence 2, but not of his guilt of prescribed offence 3. RMP's account of prescribed offence 3 was more detailed than her account of prescribed offence 2. There is nothing in the evidence to indicate that RMP's recollection of prescribed offence 2 was clearer or that her account of the offence was more cogent than prescribed offence 3. It is not apparent from the trial record that there was any aspect of the evidence which could reasonably have caused the jury to draw the inference of guilt in relation to one of prescribed offences 2 and 3, but not the other.
We are satisfied that the jury's verdict on prescribed offence 3 is factually inconsistent and incompatible with their verdict on prescribed offence 2. The verdicts cannot stand together; that is, no reasonable jury whose members applied their minds to the facts of the case could have arrived at those verdicts. There is not a proper way in which the verdicts may be reconciled. It was not logically and reasonably open to the jury to convict on prescribed offence 2 despite having acquitted on prescribed offence 3.
Ground 1 has been made out.
Grounds 2 and 3
It is unnecessary, in the circumstances, to consider grounds 2 and 3.
Conclusion
For these reasons, we joined in making the orders referred to at [4] above.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
WH
Research Associate to the Honourable President Buss
30 OCTOBER 2024
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