Smith v Director of Public Prosecutions for Western Australia
[2022] WASC 255
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: SMITH -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2022] WASC 255
CORAM: DERRICK J
HEARD: 29 JULY 2022
DELIVERED : 10 AUGUST 2022
FILE NO/S: SJA 1030 of 2022
BETWEEN: EMILY JAYNE SMITH
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE J ANDRETICH
File Number : BU 3787 of 2020
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted of doing an act with the intention of creating a false belief - Whether magistrate erred by failing to accept expert evidence of a psychologist that appellant's Borderline Personality Disorder in combination with other factors caused appellant to have a fragmented memory and to unconsciously provide an inaccurate account of events - Whether magistrate erred by relying on a statement contained in a psychiatric report that was not in evidence - Whether magistrate erred in finding that appellant intended to create a false belief - Whether failure to cross-examine appellant on an aspect of a prosecution witness's evidence amounted to a breach of the rule in Browne v Dunn -Whether miscarriage of justice occurred
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Result:
Leave to appeal on ground 2 granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | S B Watters |
| Respondent | : | S D Packham |
Solicitors:
| Appellant | : | Legal Pathways |
| Respondent | : | The Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Browne v Dunn (1893) 6 R 67 (HL)
K v The State of Western Australia [2010] WASCA 157
KUC v The State of Western Australia [2021] WASCA 101
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
MWJ v The Queen [2005] HCA 74; (2005) 222 ALR 436
NCH v The State of Western Australia [2013] WASCA 29
Neach v Hobbs [2021] WASC 135
Noormets v The State of Western Australia [2021] WASCA 195
NSE v The State of Western Australia [2020] WASCA 167
RST v The State of Western Australia [2016] WASCA 59
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
DERRICK J:
Introduction
On 3 June 2020 Ms Emily Jayne Smith (appellant) was charged with an offence of doing an act with the intention of creating a false belief of such a nature as would reasonably call for action by the Police Force, namely a belief or suspicion that an offence had been committed, contrary to s 171(2) of the Criminal Code (WA) (Code).
The appellant pleaded not guilty to the charge.
The appellant's trial took place before Magistrate Andretich on 24 and 25 January 2022. The appellant was represented by counsel at her trial.
On the afternoon of 25 January 2022 the magistrate found the appellant guilty of the charged offence and convicted her of the offence. Her Honour delivered oral reasons for her decision.
On 21 February 2022 the magistrate sentenced the appellant for the offence to 9 months imprisonment conditionally suspended for 12 months.
The appellant applies for leave to appeal against the decision of the magistrate convicting her of the offence on five grounds.[1] The five grounds are set out in full below. However, in essence, the appellant alleges that the magistrate erred by failing to adequately consider the expert evidence of a witness, by relying on a statement that did not form part of the evidence, by finding that the appellant had intended to create a false belief, and by relying on evidence that was not put to the appellant in cross-examination.[2] The appellant further alleges that by reason of the alleged errors the magistrate's decision convicting her of the offence has resulted in a miscarriage of justice.[3]
[1] The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CAA). The decision of the magistrate to convict the appellant is a decision that may be appealed by the appellant: CAA, s 6(c) and s 7(1).
[2] An application for leave to appeal against the decision of a magistrate can be made on the ground that the primary court made an error of law or fact or both: CAA, s 8(1)(a)(i).
[3] An application for leave to appeal against the decision of a magistrate can be made on the ground that there has been a miscarriage of justice: CAA, s 8(1)(b).
On 4 May 2022 a registrar of this court ordered that the application for leave to appeal be heard together with the appeal.
Leave to appeal - principles
The court must not give leave to appeal on a ground of appeal unless the ground has a reasonable prospect of success.[4] A ground will not have a reasonable prospect of success if it does not have a rational and logical prospect of succeeding.[5] If leave to appeal is refused on a ground of appeal the ground is taken to be dismissed.[6]
[4] CAA, s 9(2).
[5] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473but [56].
[6] CAA, s 9(3).
The elements of the charge and the respective cases of the parties
The elements of the charged offence each of which the prosecution was required to prove beyond reasonable doubt in order prove the appellant's guilt are as follows:
1.The appellant was the offender, the person who did the things that the prosecution asserted constituted the offence;
2.The appellant did an act;
3.The appellant did the act with the intention of creating a false belief or suspicion that an offence had been committed that was of such a nature as would reasonably call for action by the Police Force.[7]
[7] Section 171(1) of the Code defines 'belief' for the purposes of s 171(2) as meaning, among other things, 'a belief or suspicion that an offence has been or is about to be committed and that is of such a nature as would reasonably call for action by the Police Force'.
The prosecution case at trial, shortly stated, was as follows.[8]
[8] ts 3 - 5, 24 January 2022; ts 48- 49, 25 January 2022.
At some point during the afternoon or early evening of Friday, 22 May 2020 the appellant engaged in consensual sexual intercourse with Mr Luke Sellenger at his residential address in Dalyellup. The appellant had previously been engaging in flirtatious text messages with Mr Sellenger.
When the appellant returned to her home in Capel and saw her husband she immediately felt guilty about having had sex with Mr Sellenger. She told her husband an untrue version of what had occurred between her and Mr Sellenger. She told her husband that she had been sexually assaulted.
When the appellant told her husband that she had been sexually assaulted he insisted that she contact the police. As a result, at around 10.00 pm on 22 May 2020 the appellant telephoned the police and reported that an offence had been committed against her.
At about 10.30 pm on 22 May 2020 police attended the appellant's address. The appellant told the police that she had been sexually assaulted by a male who was unknown to her and that the assault had occurred in her car at a beach car park in Dalyellup.
On the morning of Saturday, 23 May 2020 the appellant attended the Bunbury Detectives Office. She was interviewed over a number of hours by a female detective. She provided her account of the alleged sexual assault to the detective. The appellant told the detective that while she was in a car park at Dalyellup beach she spoke briefly to a male who she did not know, that the male grabbed her and pushed her over the front passenger seat of a four-wheel drive vehicle (not her vehicle), and that the male pulled down her pants and had non-consensual sexual intercourse with her.
At 2.15 pm on 23 May 2020 the appellant signed a statement that had been prepared for her by the female detective. The statement set out the version of events that the appellant had provided to the detective.
On Sunday, 24 May 2020 the appellant sent an email to the detective responsible for the investigation into the alleged offence in which she stated, in substance, that when she spoke to the female detective her memory had been 'fragmented', that she now remembered things very differently and that she needed to change her statement.
On Monday, 25 May 2020 the appellant again attended the Bunbury Detectives Office. She spoke to the female detective who had interviewed her on 23 May 2020. She told the detective that she wanted to change her statement. She told the detective that the person she had had sexual intercourse with was Mr Sellenger, that she knew Mr Sellenger, that the sexual intercourse had occurred at Mr Sellenger's house and that the sexual intercourse was consensual. She told the detective that she had made up her allegation of sexual assault because she could not bring herself to tell her husband the truth and because she felt guilty about what had occurred. She told the detective that she wanted to withdraw her statement.
After the appellant had told the female detective that she had made up the allegation of sexual assault she was informed that she could be charged with an offence. On being informed of this the appellant reverted to alleging that the sexual intercourse had been non-consensual although she maintained that the sexual activity had occurred in Mr Sellenger's house rather than at the beach car park.
Thus on the prosecution case the appellant, by falsely reporting on 22 and 23 May 2020 that she had been sexually assaulted and by signing a witness statement on 23 May 2020 containing this allegation, did an act, or more precisely acts, with the intention of creating a false belief that an offence had been committed against her that was of such a nature as would reasonably call for action by the police.
The appellant's case at trial was that she had in fact been sexually assaulted by Mr Sellenger when she attended his house.[9] The appellant's case was that after suffering the profound trauma of the sexual assault and in the context of her previous diagnosis of Borderline Personality Disorder (BPD), she suffered a fragmented memory that compromised her capacity to accurately tell the police what had happened to her.[10] The appellant's case was that she did not intentionally create any false belief and that at the time of providing her versions of events to the police she believed that they were true.[11] Accordingly, the appellant's case was that the prosecution had failed to prove the intention element of the charged offence beyond reasonable doubt.
[9] ts 9, 24 January 2022; ts 50 - 51, 25 January 2022.
[10] ts 10, 24 January 2022; ts 51, 25 January 2022.
[11] ts 10, 24 January 2022; ts 51, 25 January 2022.
In summary, the element of the charged offence that was in dispute at trial was the intention element.
The trial
In order to properly deal with the appellant's contentions the subject of her grounds of appeal it is necessary to set out in some detail the evidence adduced at trial and also to make some further reference to the magistrate's findings.
Witnesses
During the appellant's trial the prosecution called six witnesses, namely Mr Sellenger, Detective Senior Constable Callan Breen, Sergeant Jonathan Adams, former Detective Senior Constable Sarah-Jane Jacques, former Detective Senior Constable Thomas Blakeley and Detective Senior Constable Adam Bradley.
The appellant elected to give evidence. She also called as part of her case her husband, Mr Bradley Smith, and psychologist Mr Steven Jobson.
Prosecution evidence
Detective Senior Constable Breen[12]
[12] ts 11- 15, 24 January 2022.
In his evidence Detective Breen said that at about 10.00 pm on 22 May 2020 he and another officer, Constable Stewart, were tasked to attend an address in Capel in relation to a sexual assault complaint. On being assigned this task he rang the alleged victim, the appellant. After he had spoken to the appellant he and Constable Stewart drove from Bunbury Police Station to the appellant's address in Capel.
Detective Breen said that when he and Constable Stewart arrived at the address the appellant and her husband were present.
Detective Breen said that he spoke to the appellant in the absence of her husband. The appellant told him she had been at a location near the beach in Dalyellup where she was sexually assaulted by a male person. The appellant provided a description of the male and of the location of the alleged sexual assault.
Detective Breen said that he seized items of clothing that the appellant identified as the clothes that she had been wearing at the time of the alleged sexual assault. The appellant's car was also seized.
Detective Breen said that at the time of seizing the appellant's clothes he did not notice that buttons on the trousers that the appellant identified as those that she had been wearing had been ripped off. He did not examine the clothing items. He secured them as quickly as possible.
Detective Breen said that after he and Constable Stewart left the appellant's premises the appellant was taken to the Bunbury Regional Hospital by Sergeant Adams and Constable Khaki.
Detective Breen said that when he spoke to the appellant she had a 'level of anxiety' about her.[13] She had 'an appearance of nervousness, a slight jitter'.[14] He did not find this unusual for a person in her position. In his experience her demeanour was consistent with her having had a traumatic experience.
Sergeant Adams[15]
[13] ts 13, 24 January 2022.
[14] ts 13, 24 January 2022.
[15] ts 15 - 19, 24 January 2022.
Sergeant Adams testified that at about 10.00 pm on 22 May 2020 the police received a report of a 'sexual assault type incident' that had happened in Dalyellup.[16] The report was that the alleged victim, the appellant, had returned to her home in Capel.
[16] ts 15, 24 January 2022.
Sergeant Adams said that the 'initial text from the job was that it had happened in a beach car park in Dalyellup, and that…a white…four by four had been described'.[17] Therefore he and Constable Stewart patrolled all the car parks in Dalyellup looking for a vehicle, or anything that might look like a scene or any closed circuit television (CCTV) cameras in the area. They could not find any of these things so at about 10.30 pm they left Dalyellup to join the other police officers at the appellant's house in Capel.
[17] ts 16, 24 January 2022.
Sergeant Adams said that when he and Constable Khaki arrived at the appellant's house Detective Breen informed him of what had been done to that point. The appellant's car was seized for forensic examination because she had driven from Dalyellup in her car. He and Constable Khaki then drove the appellant to the Bunbury Regional Hospital so that she could be examined. They arrived at the hospital just after midnight.
Sergeant Adams said that the only conversation that he and Constable Khaki had had with the appellant related to the investigation process.
Sergeant Adams expressed the opinion that during his interactions with the appellant she appeared normal. She was quite calm and did not appear greatly upset by anything or by the incident. She was quite apologetic at times. He was unable to say if her demeanour was consistent with someone who had suffered a traumatic experience because people act differently in such situations.
Ms Jacques[18]
[18] ts 19 - 35, 24 January 2022.
In May 2020 Ms Jacques was a Detective Senior Constable attached to Bunbury Detectives.
In her evidence-in-chief Ms Jacques said that on the evening of 22 May 2020 she was contacted and told that an incident had occurred at Dalyellup and that the complainant, that is, the appellant was at the hospital.
Ms Jacques said that on the morning of 23 May 2020 she attended work at the Bunbury Police Station. She was briefed about the alleged incident. She was told that the appellant was at the hospital and would make her way straight from the hospital to the police station.
Ms Jacques said that about 1 or 2 hours after she had come on duty the appellant arrived at the police station.
Ms Jacques said that she spent a long time talking to the appellant, several hours. The appellant was quite tired. After she had written the appellant's version of events down the appellant asked if she could go and have a rest or go home for a period of time. She believes this was 'probably after - between two and four hours' of speaking with the appellant.[19]
[19] ts 22, 24 January 2022.
Ms Jacques said that when she first started speaking to the appellant she appeared okay. She was quite teary and looked a little tired. However, she was fine to speak to. She was consistent, seemed very reasonable and was rational.
Ms Jacques said that the appellant told her that during the afternoon on 22 May 2020 she had gone to the beach and parked at a cark park on the foreshore at Dalyellup. She was walking along the beach and saw a man on the beach. She could not describe the man. She then walked back along the beach path to where her vehicle was parked. She noticed another vehicle was parked in the car park. The vehicle was a four-wheel drive. She saw a man at the four-wheel drive. The man approached her as she was at her vehicle and started up a conversation. They both walked back to his vehicle. He opened the car door, grabbed both her hands behind her back, shoved her against the passenger side front seat, pulled down her pants and underwear and raped her.
Ms Jacques said that the appellant told her that the incident went for less than a minute and that the man said something along the lines of, 'You like that'. She then walked back to her car and drove away.
Ms Jacques said that she prepared a statement for the appellant based on what the appellant had told her. She and the appellant read through the statement a number of times. The appellant only changed very minor things. She found the appellant to be consistent and credible.
Ms Jacques said that the appellant asked her about the declaration at the end of the statement. In response to the appellant's question she told the appellant that if she believed anything in the statement was not true she should not sign the statement. She told the appellant that she could wait, have a think about things and then come back another time to sign the statement. She told the appellant that she could come back another day when 'she was feeling a little better…less emotional' and that they could then go over the statement again.[20] However, the appellant was 'quite happy' with the statement.[21] She made sure the appellant was happy with the statement before the appellant signed the statement.
[20] ts 24, 24 January 2022.
[21] ts 24, 24 January 2022.
Ms Jacques confirmed that the appellant signed the statement and that she witnessed the appellant's signature.[22]
[22] The statement was tendered through Ms Jacques as exhibit 1.
Ms Jacques said that on 24 May 2020 Detective Blakeley told her that he had heard from the appellant and that she would be coming in to speak to her again on Monday, 25 May 2020.
Ms Jacques said that on 25 May 2020 the appellant attended the Bunbury Police Station alone. The appellant told her that she had had some time to think about the incident and that she needed to change some things in her statement. The appellant said that she wanted to change her description of the male's vehicle. The appellant said that she had gone for a drive, that when she went for a drive she started to remember some things, that she had gone back home and that she had had a conversation with her husband.
Ms Jacques said that she started thinking that the appellant wanted to give her more information. She asked the appellant if she knew where the male lived. The appellant responded by saying that she knew who the man was and that she had contacted him before the incident. The appellant gave her the name of Mr Sellenger.
Ms Jacques said that at this point the appellant became quite upset. She therefore gave the appellant a few minutes. The appellant apologised to her and then went into how she had actually met Mr Sellenger.
Ms Jacques said that the appellant told her that about a week prior to the incident occurring she was driving alone in her vehicle near a shopping centre of some kind near Dalyellup. She was followed by a male person in her vehicle, Mr Sellenger. She pulled over to the side of the road. Mr Sellenger pulled in behind her, got out of his vehicle, walked up to her driver's side and started talking to her. Mr Sellenger made flattering comments to her. Mr Sellenger began texting her immediately after this interaction.
Ms Jacques said that she asked the appellant if she had any of the text messages that had been exchanged between her and Mr Sellenger. The appellant told her that she did not because she had deleted them in order to erase any memory of the incident.
Ms Jacques said that the appellant told her that following her first interaction with Mr Sellenger they spoke every day via text message or over the phone. However, she started to feel guilty about speaking to Mr Sellenger. She wanted to go over to his house to tell him to stop contacting her.
Ms Jacques said that the appellant told her that Mr Sellenger had invited her, the appellant, over to his house. She went to his house with the intention of telling him to stop contacting her. When she arrived at Mr Sellenger's house he opened the door for her and as soon as she walked inside they started kissing in the hallway of the house. Mr Sellenger then removed her underwear. They walked towards the back of the house to a loungeroom. They had consensual sex on the couch.
Ms Jacques said that the appellant told her that she asked Mr Sellenger about a condom, that he said he did not have any and that they just continued. It was over very quickly.
Ms Jacques said that the appellant told her that at no stage did Mr Sellenger threaten her or hurt her. When she asked the appellant if this is what she had wanted to happen the appellant replied that she did not know what was going to happen and she had gone there with the intention of telling Mr Sellenger not to contact her anymore.
Ms Jacques said that the appellant told her that she had sexual intercourse with Mr Sellenger consensually. She did not plan what had happened. She went to Mr Sellenger's house with good intentions. However, 'it just, sort of, happened'.[23]
[23] ts 28 - 29, 24 January 2022.
Ms Jacques said that the appellant told her that she was not going to tell her husband about the incident but that when she saw her husband standing at the front door with their dog she burst into tears. She could not bring herself to tell her husband the truth, so she made up the story of being raped. She said she had been attacked because her husband insisted on taking her to hospital.
Ms Jacques said that the appellant told her that she felt very guilty and terrible, was apologetic and appeared very remorseful.
Ms Jacques said that she explained to the appellant that the version that she had provided was very different from her earlier version. She said that she stopped the appellant from saying anything further to her because she wanted to inform Detective Blakeley, the detective investigating the case, of what had occurred.
Ms Jacques said that she asked the appellant to wait in the room and then went and spoke to Detective Blakeley. She appraised Detective Blakeley of the situation.
Ms Jacques said that she and Detective Blakeley then returned to the appellant. She said that the appellant began to say that she needed to change or withdraw her statement 'because it didn't happen how she said it was going to happen'.[24] She said that Detective Blakeley stopped the appellant from talking, cautioned her, and said words to the effect of, 'Look, you may have committed an offence'.[25] She said that as soon as Detective Blakeley said these words to the appellant, or words to this effect, the appellant changed her story and said:[26]
It wasn't consensual. He just, sort of, took off my underwear as soon as I walked in the house, and I was too scared to fight him off or do anything to stop but I didn't want it to happen.
[24] ts 28, 24 January 2022.
[25] ts 28, 24 January 2022.
[26] ts 28, 24 January 2022.
Ms Jacques said that there was another occasion after 24 May 2020 on which the appellant again came to the police station to talk to her. The conversation was about what would happen going forward and what sort of punishment she would receive 'if she was convicted'.[27]
[27] ts 29, 24 January 2022.
Ms Jacques said that when the appellant recanted her version of events on 24 May 2020 she appeared stable and was not emotional until she started going into what had happened. When she asked the appellant why she had made up the sexual assault allegation the appellant went on again about feeling guilty about her husband. The appellant said that her husband was a good man, that she loves him and that she did not know why she did what she did. The appellant said that she had got a thrill out of the compliments that Mr Sellenger had given her.
In cross-examination Ms Jacques agreed that she had spoken to the appellant and the appellant's husband on the phone while they were at the hospital. She said that her recollection was that the appellant told her that she had not had much sleep but that she did want to come in and speak to police. She said that it was definitely not the case that the appellant and her husband indicated that they would prefer to go home, have a sleep and then come to see the police. She said that if that had been said she would have encouraged the appellant and her husband to do that.
In cross-examination Ms Jacques rejected as false the suggestion that the appellant had never said anything to her about a conversation with Mr Sellenger in relation to a condom. She also rejected as false the suggestion that the appellant had not told her that her sexual intercourse with Mr Sellenger was consensual. Ms Jacques maintained that the appellant had told her multiple times that the sexual intercourse was consensual.
In cross-examination Ms Jacques said that she did not recall seeing on the appellant very visible scratches on her back and over her shoulder.
Federal Agent Blakeley[28]
[28] ts 35 - 52, 24 January 2022.
In May 2020 Federal Agent Blakeley was a Detective Senior Constable attached to the Bunbury Detectives. At the time of giving evidence he was a Federal Agent with the Australian Federal Police.
In his evidence-in-chief Agent Blakeley said that on 22 May 2020 at about 10.00 pm he was on duty and was informed of an alleged sexual penetration without consent offence. The alleged victim was the appellant. The information he had was that the offence had occurred in the appellant's red Hyundai Getz vehicle at the Norton Promenade car park in Dalyellup.
Agent Blakeley said that at the time of the alleged offence being reported he was involved in another investigation. He therefore asked Sergeant Adams and his team to conduct the initial inquiries.
Agent Blakeley said that on 23 May 2020 he was nominated as the investigating officer for the alleged offence. He coordinated some investigative actions in relation to the alleged offence. He arranged for Detective Jacques to take a statement from the appellant.
Agent Blakeley said that on 23 May 2020 he attended the vicinity of the Norton Promenade car park with Detective Bradley to canvass the scene for CCTV cameras. They attended a civilian address which was directly opposite the entrance to the car park and viewed the footage recorded by a CCTV camera at that address. At the time he was focussing on attempting to identify the alleged offender's vehicle, a description of which he had been provided with. He was not able to locate the alleged offender's vehicle on the footage. However, he did see on the footage a small red hatchback vehicle entering the car park which at the time he believed to be the appellant's vehicle.
Agent Blakeley said that on viewing the footage he did not see the 'suspect vehicle' for which he had a description. However, he did see the same red hatchback exit the car park within approximately one minute after it had entered the car park. This was inconsistent with the details of the allegation he was in possession of. He therefore called the appellant to try to clarify some of the particulars of her allegation. He asked the appellant to clarify when the suspect had left the scene.
Agent Blakeley said that after speaking to the appellant he continued to view the CCTV footage but was still unable to locate the described vehicle. He therefore called the appellant again to try and clarify the 'quick movements' of the red vehicle he believed to be the appellant's vehicle. During this conversation the appellant changed her version of events from what she had initially reported. She told him that the offence had occurred in the suspect's vehicle rather than in her vehicle. She also changed her account of her movements. She told him that she had walked from another location to the car park as opposed to having driven to the car park, that the offence was committed against her in the suspect's vehicle, and that she had then after the alleged commission of the offence driven to the car park to see if the offender was still there.
Agent Blakeley said that because the appellant had changed the details of her allegation he visited the location where she said she had walked and also attended the car park in which she said the offence had occurred.
Agent Blakeley said that on 24 May 2020 he was not on duty but that he received on his work phone an email from the appellant in which she stated that she wished to change her statement or words to this effect.
Agent Blakeley said that on 25 May 2020 he prioritised obtaining the new details of the allegation from the appellant. He asked Detective Jacques to obtain the appellant's new account of events.
Agent Blakeley said that at some point during 25 May 2020 Detective Jacques informed him that the appellant had made quite a significant comment in relation to the allegation and asked him to come into the interview room where the appellant was. Once they were in the interview room Detective Jacques asked the appellant to recount what she had just told her. The appellant said something to the effect that the initial report had not 'happened as it had', that the sexual act had been consensual and that she knew the identity of the person involved.[29] The appellant identified the person involved as Mr Sellenger. The appellant said that she had panicked because the sexual act was consensual and she was concerned about her husband finding out that it was consensual and that she had therefore reported the incident as she had.
[29] ts 40, 24 January 2022.
Agent Blakeley said that because at this point he suspected that the appellant had made a false report he advised her of his suspicion and cautioned her. After he had cautioned the appellant she said words to the effect of:[30]
I don't believe it was consensual. I went there with the intention of telling him to stop texting me, but it all happened so fast and, before I know it, we were on the couch.
[30] ts 41, 24 January 2022.
Agent Blakely said that he informed the appellant that he intended to review the matter to decide how the investigation would proceed.
Agent Blakeley said that on 28 May 2020 he attended Mr Sellenger's address and took photographs of a text message exchange between Mr Sellenger and the appellant that was on Mr Sellenger's phone.[31]
[31] The photographs were tendered through Agent Blakeley as exhibit 2.
In cross-examination Agent Blakeley confirmed that the other investigation that he was conducting at the time of the appellant's complaint was a homicide.
Agent Blakeley confirmed that he was aware that on 22 May 2020 the appellant had spent the night at Bunbury Regional Hospital.
In response to being asked if in his experience the memory of someone who has been through a traumatic experience can be 'a bit patchy', Agent Blakeley said that 'there is some suggestion that traumatic events can lead to memory recall at a later stage'.[32]
[32] ts 46, 24 January 2022.
Agent Blakeley confirmed that once the appellant had provided her version of events on 25 May 2020 he formed the view that there had been no non-consensual act and that therefore no offence had been committed.
Agent Blakeley disagreed with the suggestion that the appellant did not at any stage say to him that her sexual act with Mr Sellenger had been consensual. He confirmed that she did say this.
Agent Blakeley confirmed that at some point either himself or Detective Jacques asked the appellant to sign a withdrawal of complaint and that she did so.
At the end of his evidence and in response to a question asked by the magistrate, Agent Blakeley stated that when he made the two phone calls to the appellant on 23 May 2020 he did not have the appellant's signed statement. He said that at the time of making the phone calls he was trying to progress the investigation based on the information that he had at that time.
Detective Senior Constable Bradley[33]
[33] ts 54 - 59, 24 January 2022.
In his evidence-in-chief Detective Bradley gave evidence that was to substantially the same effect as the evidence of Agent Blakeley.
Detective Bradley confirmed that on the morning of 23 May 2020 he and Agent Blakeley had attended the area of the Norton Promenade car park. He said that this was where the offence was alleged to have occurred.
Detective Bradley identified photographs taken by Agent Blakeley of the car park and its surrounds.[34]
[34] The photographs were tendered through Detective Bradley as exhibit 3.
Detective Bradley said that he did have a telephone conversation with the appellant on the morning of 23 May 2020 to confirm the location of the alleged offence; to confirm that the location at which they were conducting their inquiries was correct. He was aware that the appellant was at the hospital at the time of the conversation.
Detective Bradley was not cross-examined.
Mr Sellenger[35]
[35] ts 63 - 82, 24 January 2022.
In his evidence-in-chief Mr Sellenger confirmed that in May 2020 he lived at an address in Norton Promenade in Dalyellup.
Mr Sellenger said that the first time he met the appellant was at the end of Norton Promenade at Dalyellup beach. The appellant was lost and could not work her way out of Dalyellup so he and the friend he was with pointed her in the right direction.
Mr Sellenger said that after giving the appellant directions he went for a drive to the shops. He saw that the appellant was still driving around lost. He flashed his lights at her and she pulled over. He told her how to get out of Dalyellup and said to her, 'If you have any problems contact me'. They exchanged numbers and the appellant contacted him by text message when she got home.
Mr Sellenger was referred in his evidence to the photographs that had been taken by Agent Blakeley of the text messages exchanged between him and the appellant that were on his phone when Agent Blakeley spoke to him on 28 May 2020. Mr Sellenger confirmed that he and the appellant had also exchanged messages on Snapchat. He was unable to remember the content of the messages.
Mr Sellenger said that on 22 May 2020 when the appellant first arrived at his house they were talking for a bit about her work and 'stuff like that'.[36] The appellant then came inside and they started 'making out' and kissing and then one thing led to another and they ended up having sex on the couch in the lounge room.[37]
[36] ts 72, 24 January 2022.
[37] ts 72, 24 January 2022.
Mr Sellenger said that the sexual intercourse was consensual and that the appellant was 'into it just as much as [he] was'.[38] When asked to clarify his reference to 'into it' Mr Sellenger said, 'She was on top. I was on top…It went both ways'.[39] He said that they were both fully undressed.
[38] ts 72, 24 January 2022.
[39] ts 72, 24 January 2022.
Mr Sellenger said that after he and the appellant had finished they both got dressed. The appellant was tired and wanted to go home and left. He thinks the appellant might have said that she felt a bit bad about her partner.
In cross-examination Mr Sellenger accepted that after he had flashed his lights at the appellant and she had pulled over he had asked for her number first. He accepted that she asked him, 'Why do you need my number?' and that he had responded, 'To make sure that you get home safely.'[40] Mr Sellenger also accepted that he might have called the appellant and that she had sent him a text saying that she had arrived home safely.
[40] ts 75, 24 January 2022.
Mr Sellenger agreed that there was no text message or oral message in which it was agreed that the appellant would come to his house on the morning of 22 May 2020. He agreed that on 22 May 2020 he was standing in the front yard of his house when the appellant arrived. He said that he did not recall that when the appellant got out of the car she told him to stop sending so many text messages. He accepted that he invited the appellant inside his house.
Mr Sellenger maintained that once the appellant was inside his house they engaged in some conversation. He accepted that he pulled the appellant towards him and they started kissing. She was kissing him back and it was mutual. He started taking off his clothes and she started taking off her clothes and they started having sex on the couch.
The appellant agreed that the appellant had attended his house after her night shift. He also agreed that he had continued to contact the appellant after 22 May 2020.
Mr Sellenger rejected the suggestion that he had forced himself onto the appellant. He said that what occurred between him and the appellant was mutual and consensual. He said that he did not recall the appellant saying 'Let go. Stop'. He asserted, in substance, that he was not in any way forceful and that if any marks or scratches were caused to the appellant while she was at his house and they were having sex (and he did not accept that any marks or scratches were caused to the appellant) this was not due to him being forceful or forcing himself onto her.
Appellant's statement
As I have already indicated, the appellant's statement dated 23 May 2020 was tendered as part of the prosecution case. In her statement the appellant provided, in substance, the following version of events.
On Wednesday 20 May 2020 she was in Dalyellup. Her phone battery had died. She was lost. She saw a man and his friend standing in the main Dalyellup Beach car park. She drove into the beach car park and asked the man for directions to the Bussell Highway. The man gave her directions.
Having obtained directions from the man she drove up Norton Promenade. She saw the man driving his four-wheel drive vehicle behind her. He was flashing his lights and indicating for her to pull over. She stopped adjacent to the shopping centre on Norton Promenade and pulled into a parking bay. The man pulled up behind her and got out of his car. He walked up to her window and asked for her name and mobile number. He told her that she was cute. He asked if she was single. She told him that she was married and that she lived in Capel. The man then told her to go straight ahead and turn right at the lights to get home. She and the man said goodbye and she drove home.
At about 3 pm on Friday 22 May 2020, she left her home address to drive to work. She was due to commence a shift at 4 pm at 296 Norton Promenade in Dalyellup.
She arrived for work a bit early, at around 3.30 pm. She parked her red Hyundai Getz at the address at which she was to work and decided to go for a walk along the beach. She entered the beach pathway immediately across the road from the address at which she was to work. She got onto the beach and then walked south. She walked up another beach pathway into a smaller car park a short distance away from the main car park. This car park is called the Norton Promenade Car Park.
As she walked up the pathway to the car park she saw the male person who she had spoken with two days earlier. The man said something along the lines of, 'Fancy seeing you here'. She laughed and said, 'I guess'. She started walking towards the man's car. She stood near the passenger side door.
The man asked her if she wanted to come to his place. She told him that she could not, that she had to work and that she was married. She said she had to go. The man grabbed her right wrist and put it down the front of his pants and onto his penis. She thought his penis was circumcised, was erect and was an average size. The man had her hand down his pants for about 30 seconds. He moved her hand around on his penis and with his other hand opened the front passenger side door of his car. The man kissed her for a couple of seconds. The man then grabbed her right shoulder, turned her around and pushed her forward holding her down over the front passenger seat. She thinks she said, 'Let me go' but she is not sure. The man pulled down her jeans and underwear to near her knees. He put his penis inside her vagina. She felt a lot of pain. She felt the man thrusting his penis into her for less than a minute. The man ejaculated.
The man pulled out of her. She pulled up her pants. The man said, 'Thanks, that was good'. She did not say anything. She walked back to her car. When she got back to her car she drove along Norton Promenade to see if she could see the man so that she could obtain some details. She drove back into the car park where the incident had occurred but the man was not there.
She felt overwhelmed by what had occurred. She did not agree to have sex with the man at any time. She was scared and felt powerless about what the man had done to her. She was confused about what had happened. It had happened very fast.
She drove to her work-place and started her shift.
She left her work at about 6.00 pm. She drove around 'for a bit' to try and process what had happened.
When she got home her husband asked her what was wrong. She hugged him and cried. She told her husband that she had been at the beach and that 'the guy from the other night' had pulled up and attacked her. Her husband asked her to make a report to the police which she did. The police arrived at her house about one hour later.
Defence evidence
The appellant[41]
[41] ts 2 - 30, 25 January 2022.
In her evidence-in-chief the appellant said that she has been diagnosed with generalised anxiety disorder, BPD and post-traumatic stress disorder (PTSD).
The appellant said that on 20 May 2020 she been at work in Dalyellup. It was the first time that she had been to Dalyellup and she was having difficulty finding her way home. She saw a man, who she now knows to be Mr Sellenger, at the 'Norton Beach' car park.[42] She asked him for directions.
[42] ts 3 - 30, 25 January 2022.
The appellant said she drove away following Mr Sellenger's directions, and that about halfway down the road that Mr Sellenger had directed her on she saw him tailgating and flashing his lights at her. Mr Sellenger indicated left, so she pulled over and stopped. Mr Sellenger approached her window and asked for her number.
The appellant said that at first she refused to give Mr Sellenger her number but that he kept asking. He said that he wanted to know that she had got home safely. She gave him her number.
The appellant said that when she got home she had two missed calls from a number that she assumed was Mr Sellenger's number. She messaged him and said, 'Got home safely thanks'. The two of them exchanged text messages that night and the day after. Mr Sellenger wanted to see her again and wanted her to come to his house. She responded by saying, 'I'm not interested. I'm happily married'.
The appellant said that on 21 May 2020 she had an overnight shift in Dalyellup. She began working at 6 pm that day at a house on Norton Promenade. She finished at 6 pm the following day, 22 May 2020. The house she was working in was about 20 houses down from Mr Sellenger's house.
The appellant said that at the end of her shift and on the way back from her shift she saw Mr Sellenger out the front of his house. She got out of her car and asked him to stop contacting her. Mr Sellenger replied, 'I'm sorry if I made you uncomfortable. All good'.[43] The appellant took this to mean that Mr Sellenger would 'back off'.[44]
[43] ts 5 - 30, 25 January 2022.
[44] ts 5 - 30, 25 January 2022.
The appellant said that Mr Sellenger then invited her in for a drink of some description. She went inside his house. She does not know why. When she got inside Mr Sellenger's house he 'grabbed [her], forced himself onto [her] and raped [her]'.[45] She told him to let her go and to stop but he did not do so. She was left with scratches and fingerprints on her back and wrist. The buttons of her jeans were ripped off.
[45] ts 2 - 30, 25 January 2022.
The appellant was shown two photographs which she said showed the scratches and fingerprints that she received as a result of her encounter with Mr Sellenger.[46]
[46] The photographs were tendered through the appellant as exhibit 4.
The appellant said that after the incident she drove around for a while trying to process what had happened before going home. She was not able to process what happened and felt very confused.
The appellant said that when she got home she told her husband straight away who encouraged her to file a complaint with the police. After speaking with her husband she called the police and made a complaint.
The appellant said that after this the police came to her house and then subsequently accompanied her to the Bunbury Regional Hospital. She arrived at the hospital at 11.00 pm or 11.30 pm. She stayed overnight at the hospital as she was doing tests.
The appellant said that her state of mind while she was at the hospital was confused and disorientated. She could not process what had happened or her feelings around what had happened. She did not get any sleep.
The appellant said that she was discharged from hospital at about 10.00 am on 23 May 2020. When she left the hospital, she was exhausted and still having problems with her emotions and memories.
The appellant said that while she was at the hospital she received a call from a male detective (presumably Blakeley) who encouraged her to come into the police station and sign a statement. She told the detective she was tired and would rather go home and sleep and attend the station another day. However, he said that he would prefer her to come to the station now.
The appellant said that she attended the police station on 23 May 2020 to give a statement. She did not want to be there and she was having a lot of difficulty remembering. She told the female detective (presumably Jacques) that her memory was hazy and patchy and asked if she could change the statement at all at a later date. The detective told her that she could come in and make another statement if she remembered anything differently. She signed the statement that day.
The appellant said that after being at the police station she went home and got some sleep.
The appellant said that when she woke up on the morning of 24 May 2020 she 'remembered what actually happened, which was that I have been at his house and that I had known him'.[47] She therefore emailed Agent Blakeley straight way in the following terms:[48]
Hi Detective. I need to come in and change my statement if you or Detective Sarah have time to meet me tomorrow. I went home and rested and slept, and Brad and I went into Dalyellup to have a look around because my memory had been fragmented. Today I remember things very differently, ie, the location and order of events, but very clearly, so I need to get this on the record as soon as possible. Thank you very much. Kind regards, Emily Smith.
[47] ts 8, 25 January 2022.
[48] The email was tendered through the appellant as exhibit 5.
With respect to the reference in her email to her and Brad (her husband) having driven into Dalyellup, the appellant said that when she had woken up on 24 May 2020 she realised that something was not right with her memories and that as a result she and her husband went into Dalyellup and retraced her steps. They went to the beach. As they were driving out of Dalyellup past Mr Sellenger's house 'something clicked in her brain'.[49]
[49] ts 9, 25 January 2022.
With respect to the reference in her email to her memory having been fragmented, the appellant said that this referred to the day before when she had signed her statement at which time she felt like she had 'holes' in her memory and was 'obviously' disorientated.[50]
[50] ts 9, 25 January 2022.
The appellant said that when she went to the police station on 25 May 2020 she was welcomed by the police at first. However, once she told the police about the mistakes in her statement they 'encouraged [her] that there wasn't evidence to back up what [she] was saying and that [she] may need to withdraw her statement'.[51] She then withdrew her statement. She felt pressured to do so but she thought she was doing the right thing. She also withdrew her statement because she got the feeling that the police thought she was lying about what had happened. This made her very upset.
[51] ts 9, 25 January 2022.
In cross-examination the appellant said that prior to the first time she had worked in Dalyellup her mental health had lapsed a little bit as a result of all the stress associated with her recent marriage and moving into a new house. She clarified that she had received her diagnosis of PTSD following the incident with Mr Sellenger.
During cross-examination the prosecutor questioned the appellant relatively extensively about her version of events and tested her version of events. The appellant in essence maintained her version of events.
During cross-examination the prosecutor drew out the inconsistencies between the appellant's version of events as first reported to the police on 22 May 2020, as recorded in her statement signed on 23 May 2020 and as reported to the police on 25 May 2020. At one point in cross-examination the prosecutor asked the appellant directly if she was asserting that Mr Sellenger had lied in his evidence in describing the incident in the way that he did. In response to this question the appellant said:[52]
I'm not saying that. That's his interpretation but I told him to let me go. That's all I can say'.
[52] ts 21, 25 January 2022.
The prosecutor asked the appellant if she was saying that when she was at Mr Jacques' house 'he literally forced you to have sex'.[53] To this question the appellant answered, 'Yes'.[54] The prosecutor asked the appellant where this had occurred and the appellant responded, 'In his loungeroom'.[55]
[53] ts 21, 25 January 2022.
[54] ts 21, 25 January 2022.
[55] ts 21, 25 January 2022.
The prosecutor asked the appellant if she had told Ms Jacques that she had told her husband a made up story. The appellant answered by saying that she did not remember telling Ms Jacques that she had told her husband a made up story. She said that she did not think that it was possible that she had said this because it was not true to say that she had made up a story to her husband.
The appellant agreed that she went into Mr Sellenger's house willingly. When the prosecutor asked her what she thought was going to happen inside Mr Sellenger's house the appellant said that she 'clearly wasn't thinking', that she did not 'sense the danger' and 'that's all I can say'.[56]
[56] ts 27, 25 January 2022.
The prosecutor asked the appellant if she agreed that when she attended the police station on 25 May 2020 she had told the police that she had had consensual sex with Mr Sellenger. The appellant said she did not agree that she had said this to the police.
The prosecutor asked the appellant whether she had lied to the police in her first report about the incident or when she had made her statement or when she had withdrawn her statement. The appellant denied she had lied. She said that she had 'believed each version' and that 'each statement was true at the time'.[57]
[57] ts 28, 25 January 2022.
At the end of cross-examination the prosecutor squarely put to the appellant that she had consciously decided to go into Mr Sellenger's house and to have sex with him, that after having done so she regretted her actions because she felt guilty and thought that her husband would find out, and that she therefore intentionally and knowingly misled the police. The appellant responded by saying that she did not agree and that she had no intent at any stage to mislead the police.
Mr Smith[58]
[58] ts 30 - 37, 25 January 2022.
In his evidence Mr Smith said that he was aware of the appellant's diagnosed mental health conditions.
Mr Smith said that when the appellant came home on 22 May 2020 she told him she had been assaulted at the beach. She was not sure of the details. He tried to 'talk her through it and to try to get it out of her'.[59] He put her in the shower to clean her up and to try and calm her down before the police arrived. When he took her clothes off he noticed her injuries and took the photographs tendered as exhibit 4.
[59] ts 34, 25 January 2022.
Mr Smith said that when he and the appellant got home from the hospital on 23 May 2020 she was crying, exhausted and her clothes were a mess.
Mr Smith said that before he and the appellant left the hospital a police officer called and told them to come down to the station for the statement. He told the police officer that he did not think that this was a good idea, that the appellant was exhausted and that they had not slept. He asked the police officer if they could come to the police station to give the statement at another time. However, the implication that he got from the police officer was that they 'had to go now or they were going to drop it or get us in trouble somehow'.[60]
[60] ts 32, 25 January 2022.
Mr Smith said that when the appellant woke up on the morning of 24 May 2020 she realised something was wrong. They therefore thought that they would go and have a look and see if she could remember any extra details to help the police.
Mr Smith said that the appellant directed him where to go. They went to some beaches first. She remembered being at the beach but the details were wrong. Things were not making sense at the beaches.
Mr Smith said that after he and the appellant had gone to Dalyellup the appellant contacted the police by email.
Mr Smith said that on 25 May 2020 he attended the police station with the appellant. After the appellant finished speaking to the police she was crying again and almost hysterical. As a result he called Detective Blakeley straight away to find out what had occurred. Detective Blakeley told him essentially that the complaint had been withdrawn because there was not enough evidence.
Mr Jobson[61]
[61] ts 37 - 48, 25 January 2022.
In his evidence-in-chief Mr Jobson confirmed that in order to enable him to give his evidence he had been provided with a 'summary of material facts', the statement that the appellant had given to the police and her mental health records from the Bunbury Mental Health Clinic.[62]
[62] ts 38, 25 January 2022.
Mr Jobson confirmed that the appellant had previously been diagnosed with BPD also known as 'unstable personality disorder'.[63] He confirmed that he had consulted with the appellant and undertaken various psychological tests with her. He confirmed that he had prepared a report dated 10 February 2021 in which he dealt with the appellant's mental health generally and responded to some specific questions.
[63] ts 39, 25 January 2022.
Mr Jobson was shown the appellant's email to Detective Blakeley.[64] With respect to the email he said that it appeared to him from the email that the appellant 'had an increased awareness of what took place regarding the incident and she acknowledged that and she wanted to correct it'.[65] He said that 'fragmented memory' means that there are very few 'chunks' of memory and 'lots of gaps'.[66]
[64] Exhibit 5.
[65] ts 39, 25 January 2022.
[66] ts 39, 25 January 2022.
Mr Jobson asserted that fragmented memory can be a very clear aspect of BPD and that one of the things that can interrupt the placement of chunks of memory is experiencing an emotionally distressing event. He said that people with BPD have a great deal of difficulty logically and rationally processing information and that this, together with the difficulty that they have dealing with emotions, means that they are likely to have increased gaps in their memory or fragmentation. He expressed the belief, based on his consultations with the appellant and the materials supplied to him, that fragmentation of memory is likely to have happened to the appellant. He expressed the belief that the trigger for the appellant's fragmentation of memory was the emotional distress that the appellant was experiencing at the time.
Mr Jobson said that people with BPD have a lot of difficulty processing information in a rational and linear manner and they will 'tend to react automatically, unconsciously'.[67]
[67] ts 40, 25 January 2022.
Mr Jobson said that people with BPD have a very fragile self-esteem and that in order to protect this they will 'somehow try to make sense of these different chunks' of memory.[68] He stated that it is 'not as though they can stop and think logically about the process'.[69]
[68] ts 40, 25 January 2022.
[69] ts 40, 25 January 2022.
Mr Jobson asserted that people with BPD have an intense fear of rejection or abandonment so that when they are faced with demands or even requests they are likely to acquiesce; likely to give in as a way of protecting their self-esteem. He expressed the belief that the appellant would have difficulty telling someone unequivocally not to do something and to reject advances on her person.
Mr Jobson was asked how he would expect the appellant to react to a 'dominant' male pulling her towards him 'and so on'.[70] Mr Jobson's response was that he 'thinks', based on the information that the appellant had provided to him about her past and based on the 'presence of…the borderline characteristics', that she would 'go into a - what we might call a freeze mode…she would just freeze and be taken along with whatever…'[71]
[70] ts 41, 25 January 2022.
[71] ts 41, 25 January 2022.
When Mr Jobson was asked if he could confirm 'whether the behaviour of [the appellant] in relation to the sexual assault and her memory of it is consistent with the clinical diagnosis of [BPD]' he responded, 'Yes, I believe so'.[72]
[72] ts 41, 25 January 2022.
Mr Jobson expressed the belief that the period of time that the appellant had been awake when she attended the police station on 23 May 2020 would have severely impacted upon her ability to think rationally and clearly. He said, in substance, that tiredness impacts on the ability to think rationally and that this 'can be extreme' in someone with BPD.[73]
[73] ts 42, 25 January 2022.
At the end of Mr Jobson's evidence-in chief the appellant's mental health medical records to which Mr Jobson had had regard were tendered.[74] Mr Jobson's report was also tendered.[75] The 'summary of material facts' was not tendered.
[74] Exhibit 6.
[75] Exhibit 7.
In cross-examination Mr Jobson confirmed that he had been provided with a report that had been prepared by psychiatrist Dr Gosia Wojnarowska in relation to the appellant.[76] Mr Jobson was asked if he remembered in general terms what Dr Wojnarowska had said in her report in response to the question whether the appellant's mental health at the time of making her report to the police was likely to have precluded her from forming the requisite intention to create a false belief. In response to this question Mr Jobson said that he 'believed' that 'the psychiatrist did not believe that the mental health at the time may have affected her decision making'.[77]
[76] It is common ground between the parties that Dr Wojnarowska's report was provided to the police together with Mr Jobson's report under cover of a letter from the appellant's counsel dated 2 November 2021.
[77] ts 44, 25 January 2022.
In cross-examination Mr Jobson, when asked if his evidence was that the appellant's decision 'not to tell the truth to the police' was an unconscious decision, answered, 'In essence, yes'.[78] When asked if he was saying that the appellant's mental health condition may have affected her decision making, he confirmed that he was. When asked if his position was that the appellant was aware of what she was doing but that her mental health condition contributed to the decisions she made, he said that he did not believe that the appellant 'was aware', and that he believed 'it was an immediate automatic response as a means of protection that she may have had no awareness of whatsoever'.[79] He said that 'it was just simply that impulsive automatic response'.[80]
[78] ts 44, 25 January 2022.
[79] ts 45, 25 January 2022.
[80] ts 45, 25 January 2022.
In cross-examination Mr Jobson confirmed that in relation to 'what happened on the day' he had the 'material facts from the police'.[81]
[81] ts 45, 25 January 2022.
In cross-examination Mr Jobson said that from his understanding it was possible that the appellant's decision making at the time of making her report to the police was not based 'on the frontal lobe of the brain, which is the rational decision making but based upon…the threat centre of the brain…and that is to protect herself, her fragile self-esteem'.[82]
[82] ts 46, 25 January 2022.
Immediately following the giving by Mr Jobson of his evidence set out in the previous paragraph, the prosecutor asked Mr Jobson whether if the appellant 'got herself in a similar situation, very similar situation where she did something quite drastic and then realised afterwards how significantly that would affect her marriage and her husband and her relationship with her husband,…is it likely…the same thing would have happened'.[83] Mr Jobson's response was that he was not sure that he could answer the question 'because it hasn't occurred…from, at least, my perspective'.[84] He said that he 'would need to then…really look at [the appellant] in terms of that process'.[85]
[83] ts 46, 25 January 2022.
[84] ts 46, 25 January 2022.
[85] ts 46, 25 January 2022.
At the end of cross-examination the magistrate asked Mr Jobson, in substance, whether if someone with BPD made an irrational decision to enter into a liaison with someone and then thought that their husband might find out and 'potentially went into a state of shock over that' is it possible that this 'may have the same impact on her recollection'.[86] Mr Jobson's answer to her Honour's question, which was not actually a direct answer to the question, was that he was not sure that a person with BPD would be able to 'work through that in such a rational and logical step-by-step process' because their frontal lobe where rational and logical decisions are made 'is not that active'.[87]
[86] ts 46 - 47, 25 January 2022.
[87] ts 47, 25 January 2022.
The magistrate then said to Mr Jobson that she was not suggesting the process was rational, and that what she was suggesting was that if 'when confronted with their husband that shock of realising the impact of what had happened - so it's not rational - would that have the same impact on their recollection of events'.[88] In response to the magistrate's suggestion Mr Jobson, again rather than directly answering the question whether there might be an impact on the person's recollection, said the following:[89]
Your Honour, I think that what I was getting at is that to be able to get to that point she would have to then stop and think, 'Oh, hang on, I've done this and I've done that, therefore, it's going to impact in this way'. And that is a rational and logical decision.
[88] ts 47, 25 January 2022.
[89] ts 47, 25 January 2022.
In re-examination Mr Jobson agreed with the suggestion that on each of the occasions that the appellant spoke to the police she believed what she was telling them. He asserted that his 'thought' was that over time once the appellant started to calm down and was away from 'external pressure' some of her 'chunks' of memory would have 'started to flow back to make more of an effective memory flow'.[90] He agreed with the suggestion that if the appellant had 'retraced her steps' of the day of the event with her husband this would have 'assisted her memory' and 'provided a more concrete basis'. [91]
Mr Jobson's report
[90] ts 48, 25 January 2022.
[91] ts 48, 25 January 2022.
As I have indicated, Mr Jobson's report was tendered as part of the defence case.
Mr Jobson's report reveals the following.
Mr Jobson interviewed the appellant for 2 hours and 15 minutes on 10 February 2021. He also interviewed Mr Smith on the same date.
Mr Jobson undertook a number of psychometric tests with the appellant.
Mr Jobson, at the time of preparing his report, had access to a letter from the appellant's counsel dated 29 January 2021, a police statement of material facts for the offence with which the appellant had been charged (statement of material facts), the appellant's statement to the police and various specified medical records relating to the appellant (the majority but not all of which were tendered as exhibit 6).[92]
[92] The appellant's counsel's letter to Mr Jobson, the police statement of material facts and the medical records specified by Mr Jobson in his report but not forming part of exhibit 6 were not tendered at the appellant's trial.
At interview the appellant acknowledged engaging in sexual activity with Mr Sellenger but maintained that the activity was not consensual. Although the appellant readily admitted to Mr Jobson that she had entered Mr Sellenger's house she told Mr Jobson that she felt 'powerless' as to his advances and did not provide consent for sexual intercourse. The appellant reported that due to the distress that she was experiencing she became confused and unable to 'think clearly'.[93] The appellant told Mr Jobson that although she reported to her husband that she was subjected to a sexual assault, the details of the incident were not accurate 'as noted' in the statement of material facts.[94]
[93] Exhibit 7, par 4.
[94] Exhibit 7, par 4.
The appellant's description of her mental health history and supporting referral documentation from various medical and mental health practitioners revealed a number of co-occurring psychiatric diagnoses including Major Depressive Disorder, Generalised Anxiety Disorder and BPD. In addition, Mr Jobson's psychometric testing of the appellant revealed characteristics particularly consistent with those typically found in individuals with BPD.
According to Mr Jobson, BPD frequently results in a high level of passivity and non-assertiveness, further resulting in the individual acquiescing to the requests or demands of others. Mr Jobson 'suggests' that it was this level of acquiescence that 'significantly influenced [the appellant's] actions leading to sexual behaviour' with Mr Sellenger.[95]
[95] Exhibit 7, par 22.
In Mr Jobson's view, there does appear to be sufficient evidence to suggest that the appellant 'may not have consciously acted in a manner to deliberately deceive' because people with BPD have a 'strong tendency to automatically (that is unconsciously) react impulsively, in an attempt to protect their underlying fragile self-esteem'.[96]
[96] Exhibit 7, par 23.
According to Mr Jobson another main symptom of BPD is dissociation. This refers to a disconnect between the individual's thoughts, behaviours, cognitive understanding, memories and identities. Dissociation is a well accepted psychological process that occurs in the face of a traumatic or stressful event. Dissociation is a process that occurs 'without conscious awareness' and in most cases allows the individual 'to otherwise continue with normal activities'.[97]
[97] Exhibit 7, par 24.
It is 'suggested' by Mr Jobson 'from [the appellant's] description of events…supported by those of her partner' that the appellant's 'diagnosis of [BPD], together with her previous experiences of Dissociation, provides strong support for her contention that she would have been in a Dissociative state following what she believed was the unwanted sexual contact with Mr Sellenger' (emphasis added).[98] In Mr Jobson's view 'it appears that it would have been [the appellant's] perception of the 'unwanted sexual contact' that was the traumatic or stressful event (the 'threat') triggering her Dissociation' (emphasis added). In Mr Jobson's view the Dissociation that the appellant 'appears to have experienced would have allowed her to 'create' what was deemed to be an appropriate context (of 'the assault') to protect her vulnerable and fragile sense of self'.[99]
The magistrate's reasons[100]
[98] Exhibit 7, par 25.
[99] Exhibit 7, par 25.
[100] ts 52 -56, 25 January 2022.
In the initial portion of her reasons for decision the magistrate stated a number of general principles that she was required to apply in determining the charge. Her Honour also identified the elements of the charged offence that she considered were in dispute, specifically that the appellant had created a false belief that an offence had been committed and that she intended to create the false belief. Her Honour identified the intention element as the element that was 'primarily' in dispute.
The magistrate summarised the respective cases of the parties. Her Honour stated that the prosecution case was that the appellant had 'deliberately lied to the police on three occasions by giving three different versions of events because she was fearful of her husband's reaction if he were to find out that she had engaged in consensual sex with [Mr] Sellenger'.[101] Her Honour stated that the defence case was that 'the different versions of events given by the [appellant] were brought about by her being exhausted, being forced to attend on police to provide a statement before she had recovered and that she was by virtue of her mental health not lying to police but rather she believed each version of events she provided as her bipolar disorder impacted on her memory such that it presented to her in fragments'.[102] The magistrate's reference in this context to the appellant's 'bipolar disorder' was incorrect and was obviously an intended reference to the appellant's BPD.
[101] ts, 53, 25 January 2022.
[102] ts, 53, 25 January 2022.
The magistrate stated that she had considered the evidence given by Mr Jobson. Her Honour stated that it was 'of significance' that Mr Jobson was a psychologist not a psychiatrist.[103] Her Honour stated that Mr Jobson 'had accepted that Dr Wojnarowska formed the view that the appellant's mental health would not have affected her ability to make decisions'.[104] Her Honour noted that the material on which Mr Jobson had based his opinion had not included the evidence given by Ms Jacques and Agent Blakeley. Her Honour then said the following:[105]
I don't accept that the three versions of events of the incident were brought about by the [appellant's] bipolar disorder in that she had a fragmented portion of memory that returned after she and her husband returned to Dalyellup to look at the area. She gave a detailed version of events when attending on police to provide a statement. That version of events included that the rape or sexual assault without consent had occurred in her car. And, most importantly, that version of events failed to include that she knew her alleged attacker and that she had been exchanging texts with him and that she had attended his address and that she had voluntarily entered his home.
The second version of events was that the alleged attack had occurred in his car and, again, was detailed. The third version of events was the inclusion of the text exchange and the events that allegedly occurred at his address.
[103] ts, 53, 25 January 2022.
[104] ts, 53, 25 January 2022.
[105] ts 53 - 54, 25 January 2022.
Again, the magistrate's above reference to the appellant's 'bipolar disorder' was incorrect and was obviously an intended reference to the appellant's BPD.
The magistrate's above statement that the appellant's version of events 'when attending on police to provide a statement' included the allegation that the sexual assault had occurred in her car was also incorrect. As is apparent from my above summary of the appellant's statement, the allegation made by the appellant when she attended on the police to provide her statement and the allegation that she made in her statement, was that the sexual assault had occurred in the front passenger side area of the offender's car (the appellant at this point not having informed the police of the identity of the alleged offender). On the evidence adduced at trial, the appellant made her allegation that the sexual assault occurred in her car as part of her initial complaint to the police on 22 May 2020. In any event, the magistrate's error in this respect was inconsequential as it is clear from her Honour's immediately following statements that she was aware that it was in the appellant's 'second version' that the appellant alleged that the sexual assault had occurred in the offender's car.
Having made the above statements the magistrate turned to stating her findings in relation to various aspects of the evidence given by the appellant and Mr Smith. In this context the magistrate said, in substance, the following:
1.She accepted that the appellant had given her phone number to Mr Sellenger and rejected the suggestion that the appellant's subsequent text exchange with Mr Sellenger was unwanted 'as [the appellant] moved to a position during that exchange where she was, essentially, flirting with Mr Sellenger';
2.She accepted that the appellant may have been reluctant to attend on police to provide a statement. However, 'part of' the reluctance was because the appellant 'had told her husband that she had been assaulted and her attendance was as much a result as (sic) the police asking her to attend and his insistence on her to attend…to provide a statement';[106]
3.She rejected the suggestion that the scratches on the appellant's back and the marks on her wrist supported the contention that her sexual encounter with Mr Sellenger was not consensual. The marks and scratches could equally have been caused by a consensual sexual encounter;
4.She rejected the suggestion that what the appellant had told Mr Smith on arriving home was true;
5.On the appellant's evidence she had, after the encounter with Mr Sellenger, driven around for a while thinking about what to do. The appellant was aware that there was an exchange of texts between her and Mr Sellenger. The appellant would have been aware that her back had been scratched. In these circumstances it was not surprising that the appellant immediately told her husband that she had been assaulted; and
6.On balance 'therefore' she accepted parts of the appellant's evidence but rejected the remainder of her evidence.[107]
[106] ts, 54, 25 January 2022.
[107] ts, 54, 25 January 2022.
Having made the above findings the magistrate directed herself that even though she had rejected parts of the appellant's evidence she could not simply 'move to convict' the appellant and that she needed to consider the evidence adduced by the prosecution.[108]
[108] The magistrate's direction was in substantial accordance with Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507, 515.
The magistrate commenced this portion of her reasons by referring to the evidence given by Agent Blakeley relating to his viewing of the CCTV footage and his communications with the appellant as a result of what he had seen on the footage. The magistrate stated that she found the evidence of Agent Blakeley 'most compelling'.[109]
[109] ts, 55, 25 January 2022.
The magistrate next turned to the evidence of Ms Jacques. The magistrate stated that she accepted 'in its entirety' Ms Jacques' evidence that when the appellant attended the police station to change her statement she informed her (Ms Jacques) that the sexual encounter with Mr Sellenger had been consensual, that she had asked Mr Sellenger if he had a condom, that Mr Sellenger had not threatened her in anyway and that she did not know that 'it was going to happen'.[110] The magistrate found that it was only after Agent Blakeley had been called in and had made the appellant aware that she could be charged, that the appellant again reverted 'to the version that included the allegation that the act was not consensual'.[111]
[110] ts, 55, 25 January 2022.
[111] ts, 55, 25 January 2022.
The magistrate found that the police had not forced the appellant to withdraw her statement. Her Honour found that the position was that by providing three versions of events the appellant's credibility was impacted 'and as such there was no prima facie case'.[112]
[112] ts, 55, 25 January 2022.
The magistrate concluded her reasons in the following terms:[113]
I find the liaison with Sellenger was consensual. I also find that the [appellant] told the original version of events because she was aware of the negative light that she may be seen in given she had exchanged the texts with the accused that she had and the content of those texts. I find that she did feel guilty about what had occurred and that is why she drove around for a while before going home, in her words, to think about what to do. I accept her evidence that when she saw her husband she just blurted out what had occurred, but I find that she wasn't honest at that time because she felt guilty about the liaison.
I, therefore, find the [appellant] did create a false belief that she had been sexually assaulted without her consent and that she intended to create that false belief. As such, I find the prosecution has proved its case beyond a reasonable doubt and I, therefore, find the [appellant] guilty of the charge.
[113] ts 55 - 56, 25 January 2022.
It is clear that the magistrate's above reference to the appellant having exchanged the texts with 'the accused' was intended by her Honour to be a reference to the appellant having exchanged the texts with Mr Sellenger.
Application to adduce additional evidence
At the commencement of the appeal hearing the appellant made an application pursuant to s 40(1)(e) of the CAA to admit on the appeal additional evidence in the form of a copy of the statement of material facts. The application was made because the statement of material facts, which was not tendered at the appellant's trial, formed part of the material that had been provided to Mr Jobson to enable him to prepare his report. The application was also made because on the appellant's argument the statement of material facts was relevant to the determination of ground 1 of the appeal. The application was not opposed by the respondent.
Given that Mr Jobson's report had been tendered as an exhibit during the appellant's trial and that the statement of material facts formed part of the material that had been provided to Mr Jobson to enable him to prepare the report, given the contended for relevance of the statement of material facts to ground 1 of the appeal and given also that the application to admit the statement of material facts on the appeal was not opposed, I allowed the application.
Ground 1
By ground 1 the appellant alleges that the magistrate 'erred in law by failing to adequately consider the uncontested expert evidence' of Mr Jobson 'as credible and reliable'.
Appellant's submissions - summary
In support of the ground of appeal the appellant advances the following contentions:[114]
1.Mr Jobson was 'eminently qualified' to express the opinions which he did;
2.Mr Jobson's evidence was given in clear and logical terms and was not contradicted by any evidence given by any person having qualifications upon and in respect of its subject matter;
3.There was nothing in the facts and surrounding circumstances which could throw doubt on the expert evidence of Mr Jobson or lead the magistrate to a contrary view;
4.The magistrate ought to have found that the appellant's psychiatric diagnosis of BPD led to the appellant having a fragmented and disconnected memory; and
5.The conviction is accordingly unsafe and ought to be set aside.
[114] Appellant's Outline of Submissions filed on 3 June 2022 (Appellant's Submissions), par 1, particulars (a), (b), (d), (e) and (f); Appeal ts 3 - 10, 29 July 2022.
The magistrate did not expressly state that Mr Jobson had accepted Dr Wojnarowska's opinion. The magistrate did not expressly state that Dr Wojnarowska's opinion was that the appellant's mental health at the relevant time would not have affected the appellant's ability to make a decision. The magistrate did not expressly state that she accepted the opinion of Dr Wojnarowska. All that the magistrate actually said was that Mr Jobson had accepted that Dr Wojnarowska had formed the view that the appellant's mental health would not have affected her ability to make decisions. This was a correct statement of Mr Jobson's evidence. Further, the magistrate did not make any other reference in her reasons to any opinion of Dr Wojnarowska.
I am not persuaded that the magistrate's statement that forms the basis of the ground of appeal can be read as amounting to a finding by her Honour that Mr Jobson accepted Dr Wojnarowska's opinion. This is, quite simply, not what the magistrate said. Further it is, in my view, inconceivable that the magistrate could, in light of the entirety of the evidence given by Mr Jobson, have come to the view that Mr Jobson had resiled from the opinions that he had expressed and had accepted and adopted the apparently expressed opinion of Dr Wojnarowska that the appellant's mental health would not have affected the appellant's ability to make decisions.
I turn then to the question whether the magistrate's statement that forms the basis of the ground of appeal can be read as amounting to a finding by her Honour that Dr Wojnarowska's opinion was that the appellant's mental health would not have affected the appellant's ability to make decisions.
If the magistrate's statement is read in isolation it is difficult to construe the statement as indicating that her Honour made a positive finding that Dr Wojnarowska's opinion was that the appellant's mental health would not have affected her ability to make decisions. As I have pointed out, all that the magistrate expressly said, which was a correct statement of the evidence before her Honour, was that Mr Jobson accepted that Dr Wojnarowska had formed the view that the accused's mental health would not have affected her ability to make decisions.
Of course, the magistrate's statement must not be read in isolation. It must be read in the context of her Honour's reasons as a whole. Of relevance in this regard, in my view, is that immediately before making the relevant statement, the magistrate said that she had considered the evidence of Mr Jobson and that it was 'of significance' that Mr Jobson was a psychologist not a psychiatrist. That is, the magistrate was apparently expressing the view that Mr Jobson, as a psychologist, was not as qualified as a psychiatrist to express an opinion as to the impact of the appellant's psychiatrically diagnosed BPD on a person's ability to accurately report a traumatic event.
In addition, if the magistrate was not, by making the statement in question, accepting and making a finding that Dr Wojnarowska's opinion was that the appellant's mental health would not have affected her ability to make decisions, it is difficult to see why her Honour made the statement at all. To put the matter another way, if the magistrate was not placing some form of reliance on Mr Jobson's evidence that he accepted that Dr Wojnarowska had expressed the view that the appellant's mental health would not have affected her ability to make decisions, there would have been no reason for her Honour to have made any reference to this aspect of Mr Jobson's evidence.
When considering the magistrate's reasons it is necessary to keep in mind the nature of a magistrate's work. Magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases that they hear each day. It is inappropriate to scrutinise a magistrate's reasons for decision with a fine-tooth comb or with an eye keenly attuned to the identification of error.[132]
[132] Neach v Hobbs [2021] WASC 135 [15].
With the principles stated in the previous paragraph in mind, I have considered whether the magistrate's statement can be read as nothing more than a passing, albeit unnecessary and unhelpful, reference to the fact that Mr Jobson had in his evidence accepted that Dr Wojnarowska had expressed in her report a different view to him in relation to whether the appellant's mental health would have affected her ability to make decisions, that is, to accurately report what had occurred between her and Mr Sellenger. However, when I take into account the combined force of the matters referred to in par 228 and par 229 above, I am satisfied that the magistrate in stating that Mr Jobson had accepted that Dr Wojnarowska's view was that the accused's mental health would not have affected her ability to make decisions was indicating that she accepted Mr Jobson's evidence as to the substance of Dr Wojnarowska's opinion and was, albeit not expressly, making a positive finding that Dr Wojnarowska's opinion was that the appellant's mental health would not have affected her ability to make decisions.
In finding that Dr Wojnarowska's opinion was that the appellant's mental health at the relevant time would not have impacted on her ability to make decisions, her Honour made an error of law. In the absence of evidence adduced from Dr Wojnarowksa, whether orally or by the tendering of a report prepared by her, it was not open to the magistrate to find on the basis of the hearsay evidence elicited from Mr Jobson in cross-examination that Dr Wojnarowska's opinion was that the appellant's mental health would not have impacted on her ability to make decisions. However, the error will only be a material error, an error occasioning a miscarriage of justice, and the ground of appeal as pleaded will only be made out, if the magistrate having made this finding took Dr Wojnarowska's opinion into account in deciding if the appellant was guilty of the offence.
Although I have found that the magistrate did erroneously make a finding as to what Dr Wojnarowska's opinion was, I am not satisfied that her Honour made any use of the finding. That is, I am not satisfied that the magistrate took Dr Wojnarowska's opinion into account in deciding to reject Mr Jobson's opinion or in deciding that the State had proved on the evidence that it had adduced that the appellant was guilty of the offence. Rather, it is, in my opinion, clear from reading the magistrate's reasons as a whole that her Honour found the appellant guilty of the offence because she was satisfied beyond reasonable doubt of the following matters:
1.The appellant had engaged in consensual sexual intercourse with Mr Sellenger;
2.The appellant, as revealed by the detail contained in her various versions of events, did not have a fragmented memory at the time that she made her initial report to the police, at the time that she spoke to Agent Blakeley on 23 May 2020, at the time that she made her statement on 23 May 2020 or at the time that she provided her final version of events on 25 May 2020; and
3.Given that the appellant had engaged in consensual sexual intercourse with Mr Sellenger, given that the appellant did not have a fragmented memory, and given the way that the appellant interacted with the police (particularly Ms Jacques and Agent Blakeley) the appellant's BPD in combination with other factors was not, contrary to the opinion expressed by Mr Jobson, the cause of her having provided the various versions.
As is apparent from what I have said in point 2 of the preceding paragraph, it is in my opinion quite clear from the portion of the magistrate's reasons quoted in par 190 above read in the context of the reasons as a whole, that her Honour's finding that the appellant did not at any material time have a fragmented memory was not to any extent based on Dr Wojnarowska's opinion. Rather, the magistrate made the finding on the basis of the detail provided by the appellant in her various versions of events considered in light of Mr Jobson's evidence that a fragmented memory was a memory with very few 'chunks' and 'lots of gaps'.
It should also be noted in this context that the magistrate, having made the statement the subject of the ground of appeal, did not make any statement to the effect that the opinion of Dr Wojnarowska provided support for her conclusion that the appellant intentionally created a false belief.
I summarise my conclusions in relation to this ground as follows:
1.I am satisfied that the magistrate did erroneously make a finding, in the absence of evidence from Dr Wojnarowska, that Dr Wojnarowska's opinion was that the appellant's mental health at the relevant time would not have affected the appellant's ability to make a decision; and
2.I am not satisfied that the magistrate relied on her erroneous finding in deciding that the appellant was guilty of the offence.
I grant leave to appeal on this ground but dismiss the ground.
Ground 3
By ground 3 the appellant alleges that the magistrate erred in fact and in law by finding that the appellant had the requisite intent to create a false belief.
The essence of the appellant's contentions advanced in support of this ground, which to a large extent overlap with the contentions advanced in support of ground 1, is stated in the following terms:[133]
…[F]rom the uncontradicted evidence of Mr Jobson, the appellant would not have been capable of rationalising an intent to create a false belief as she suffers from [BPD] and was significantly traumatised and exhausted at the time.
Analysis and decision
[133] Appellant's Submissions, par 3, particulars (g); Appeal ts 17, 29 July 2022.
The difficulty with the appellant's above referred to contention is that it assumes that the magistrate accepted that the appellant was traumatised following the incident with Mr Sellenger. However, the magistrate made no such finding. The magistrate's finding was that the appellant engaged in consensual sexual intercourse with Mr Sellenger and then, due to the guilt that she was feeling about what she had done, 'blurted out' to her husband an untrue allegation that she had been sexually assaulted. Accordingly, and as I have already pointed out in dealing with ground 1, the factual assumption that underpinned Mr Jobson's opinion, specifically that the appellant was traumatised by reason of being sexually penetrated without her consent or was traumatised by reason of having been sexually penetrated in circumstances that she believed or perceived to be non-consensual was not established. It was therefore reasonably open for the magistrate not to accept the opinion evidence of Mr Jobson to the effect that the appellant, at the time of providing her initial report, her account to Agent Blakeley and her statement could not have formed an intent to mislead the police because she was providing an impulsive, automatic response of which she had no awareness but which she believed to be true.
It is the position that Mr Jobson, in response to the previously referred to two relatively convoluted questions asked of him by the magistrate at the end of cross-examination,[134] appeared to express doubts about the ability of the appellant, if she had engaged in consensual sexual intercourse with Mr Sellenger, to think to herself that she had done the wrong thing, to work out how this might potentially impact on her and her relationship with her husband, and to then reason that she should deal with the situation by telling an untruthful version of what had occurred. Nonetheless, once the magistrate found as proved beyond reasonable doubt that the appellant had engaged in consensual sexual intercourse with Mr Sellenger it was, in my opinion, reasonably open for her Honour, despite this piece of evidence given by Mr Jobson, to conclude on all the evidence before her that the only inference reasonably available to be drawn was that the appellant did, at the time of making her initial report to the police, at the time that she spoke to Agent Blakeley on 23 May 2020 and at the time that she provided her statement to the police on 23 May 2020, intend to create a false belief that she had been sexually assaulted. In my opinion it was reasonably open to the magistrate to arrive at this conclusion given, among other things, the following:
1.The motive for the appellant to make a false report, specifically that she did not want to disclose to her husband that she had engaged in consensual sexual intercourse with Mr Sellenger;
2.The coherent detail provided in the appellant's various accounts;
3.The appellant's alteration of her initial account (so as to allege the offence had occurred in the offender's car) on being questioned by Agent Blakeley about what he had observed on the CCTV footage;
4.The time that elapsed between the relevant incident and the account provided by the appellant in her statement;
5.The evidence of Ms Jacques as to her interactions with the appellant and the demeanour of the appellant on 23 May 2020; and
6.The evidence of Ms Jacques that the appellant told her on 25 May 2020 that she had made up her allegation of being sexually assaulted because she could not tell her husband the truth.
[134] See par 174 - 175 above.
In short, the evidence of Mr Jobson was not, for the reasons given above and in dealing with ground 1, such as to require the magistrate to conclude that she was not satisfied beyond reasonable doubt that the appellant intended to create a false belief or suspicion that an offence had been committed.
The ground of appeal lacks merit. It does not have reasonable prospects of success. I refuse leave to appeal on the ground.
Ground 4
By ground 4 the appellant alleges that the magistrate erred in fact and law by relying 'in its entirety' on evidence that was not put to the appellant in cross examination.
Appellant's submissions
The submissions advanced in support of the ground reveal the appellant's argument to be as follows:[135]
1.In breach of the rule in Browne v Dunn[136] the appellant was not cross-examined on a 'crucial aspect' of the evidence of Ms Jacques, specifically that during her meeting with the appellant on 25 May 2020 the appellant told her that she had asked Mr Sellenger about a condom, that Mr Sellenger had said that he did not have any condoms and that the two of them then just continued to have sex;
2.Ms Jacques' evidence as to the appellant's statements to her in relation to asking Mr Sellenger for a condom was central to the magistrate's finding that the sexual encounter was consensual;
3.The appellant's evidence was that Mr Sellenger's sexual penetration of her was not consensual;
4.Mr Sellenger did not give evidence that immediately before the act of sexual intercourse he and the appellant had spoken about a condom; and
5.Therefore, the magistrate's finding that the sexual penetration was consensual is unsafe and the appellant's conviction should be set aside.
The rule in Browne v Dunn
[135] Appellant's Submissions, par 4; Appeal ts 17 - 20 and 30 - 32, 29 July 2022.
[136] Browne v Dunn (1893) 6 R 67 (HL).
The rule in Browne v Dunn comprises two limbs. The first limb is that unless notice has already clearly been given of the party's or cross-examiner's intention to rely upon such matters, a party or cross-examiner who intends to invite the court to disbelieve an opposing witness must put to the witness in cross-examination the grounds upon which the evidence is to be disbelieved.[137] The second limb is that unless notice has already clearly been given of the party's or cross-examiner's intention to rely upon such matters, a party or cross-examiner must put to an opposing witness in cross-examination the nature of the case upon which it is intended to rely in contradiction of the witness's evidence, especially where that case relies upon inferences to be drawn from other evidence.[138]
[137] NCH v The State of Western Australia [2013] WASCA 29 [99]; NSE v The State of Western Australia [2020] WASCA 167 [19]; KUC v The State of Western Australia [2021] WASCA 101 [119].
[138] NCH v The State of Western Australia [99]; NSE v The State of Western Australia [19]; KUC v The State of Western Australia [119].
The policy rationale that underpins the rule in Browne v Dunn is the securing of fairness in the conduct of adversarial proceedings.[139] The first limb is concerned with achieving fairness to witnesses and a fair trial between the parties.[140] The second limb is concerned with the weight or cogency of evidence.[141] The rule facilitates a court's assessment of the reliability and accuracy of witnesses.[142]
[139] MWJ v The Queen [2005] HCA 74; (2005) 222 ALR 436 [36] - [37]; K v The State of Western Australia [2010] WASCA 157 [93]; NCH v The State of Western Australia [100]; KUC v The State of Western Australia [120].
[140] NCH v The State of Western Australia [100]; KUC v The State of Western Australia [120].
[141] NCH v The State of Western Australia [100]; KUC v The State of Western Australia [120].
[142] NCH v The State of Western Australia [100].
The rule in Browne v Dunn is not absolute. It must be applied with flexibility.[143]
Analysis and decision
[143] NCH v The State of Western Australia [101].
In the present case the prosecutor questioned the appellant at length about her conflicting versions of events, about her text exchanges with Mr Sellenger and about her ultimately provided version of events.[144] The prosecutor asked the appellant whether she had told Ms Jacques that she had told her husband a made up story. The appellant denied that she had done so.[145] The prosecutor put to the appellant that she had on 25 May 2020 told the police that the sex with Mr Sellenger had been consensual. The appellant expressed her disagreement with this proposition.[146] The prosecutor asked the appellant if any of the information that she had provided to the police when she made her first report or when she made her statement or when she withdrew her statement was a lie. The appellant answered 'no' and stated that she 'believed each version' and that 'each statement was true at the time'.[147] At the end of cross-examination the prosecutor suggested to the appellant that she had had consensual sex with Mr Sellenger, that after having done so she regretted her actions and felt guilty and thought her husband would find out, and that she therefore intentionally lied to the police in the statement that she signed. To this suggestion the appellant replied that she did not agree and that she had no intention at any stage to mislead the police.[148]
[144] ts 13 - 27, 25 January 2021.
[145] ts 26, 25 January 2021.
[146] ts 28, 25 January 2021.
[147] ts 28, 25 January 2021.
[148] ts 29, 25 January 2021.
In my opinion, the prosecutor's questioning of the appellant in cross-examination was more than sufficient to comply with the rule in Browne v Dunn. The questioning allowed the appellant the opportunity to respond to the essence of the prosecution's case, specifically that she had engaged in consensual sexual intercourse with Mr Sellenger and had then deliberately made a false report to the police that she had been sexually assaulted because she felt guilty about what had occurred and did not want to have to reveal the truth to her husband. The questioning addressed the matters that the prosecution ultimately pointed to in support of the submission that the appellant's evidence that she did not intend to create the alleged false belief should be rejected (specifically, the detail of, and inconsistencies between, the versions of events that she provided, her text exchanges with Mr Sellenger, her statements to Ms Jacques and Agent Blakeley that the sexual intercourse with Mr Sellenger had been consensual and her feelings of guilt about her husband).
The rule in Browne v Dunn did not require the prosecutor to slavishly put to the appellant every single aspect of the evidence given by Ms Jacques. In particular, the rule did not, taking account of the cross-examination that was conducted, require the prosecutor to expressly question the appellant about whether she had told Ms Jacques that she had asked Mr Sellenger about a condom. It would have been obvious to the magistrate, given that it had been suggested to Ms Jacques in cross-examination that the appellant had never said anything to her about a conversation with Mr Sellenger in relation to a condom, that if the appellant had been asked whether she had told Ms Jacques that she had asked Mr Sellenger about a condom, her answer would have been 'no'. That this would have been the appellant's answer to such a question would also have been obvious to the magistrate from the appellant's evidence as to what occurred in Mr Sellenger's house. Accordingly, the failure to question the appellant about whether she had told Ms Jacques that she had asked Mr Sellenger about a condom cannot be said to have potentially impacted in any material way on the magistrate's ability to assess the complainant's credibility. Further, the prosecutor did not suggest to the magistrate in her closing address that there was, when it came to the assessment of the appellant's credibility, some particular significance to the evidence of Ms Jacques as to the appellant's statement regarding the condom that was over and above the significance of Ms Jacques' evidence that the appellant had told her that the sexual intercourse was consensual.
In short, I am not persuaded that the prosecutor contravened the rule in Browne v Dunn as alleged or at all. In my opinion the prosecutor's questioning of the appellant sufficiently put to the appellant the grounds upon which the prosecution ultimately invited the magistrate to disbelieve the appellant's evidence that the sexual penetration was non-consensual and the appellant's evidence that she did not intentionally lie to the police in making her various reports. In my opinion the prosecutor's questioning of the appellant sufficiently put to the appellant the nature of the case upon which the prosecution intended to rely in contradiction of the appellant's evidence that the sexual penetration was non-consensual and that she did not intentionally lie to the police in making her various reports. In my opinion fairness did not require the prosecutor to expressly put to the appellant that she had told Ms Jacques that she had asked Mr Sellenger about a condom, that Mr Sellenger had said that he did not have any condoms and that the two of them then just continued to have sex. In my opinion the fact that the prosecutor did not expressly put to the appellant that she had told Ms Jacques that she had asked Mr Sellenger about a condom, that Mr Sellenger had said that he did not have any condoms and that the two of them just continued to have sex did not preclude the magistrate from accepting 'in its entirety' the evidence of Ms Jacques as to what the appellant said to her when she reattended the police station on 25 May 2020. The fact that Mr Sellenger did not give evidence about having any conversation with the appellant about a condom does not change the position and is not to the point.
In any event, a reading of the magistrate's reasons for decision reveals that it is simply incorrect to suggest that her Honour's acceptance of Ms Jacques's evidence that the appellant had made the statements to her in relation to asking Mr Sellenger about a condom was central or crucial to her Honour's finding that the appellant had engaged in consensual sexual intercourse with Mr Sellenger. The magistrate's only one brief reference to the evidence of Ms Jacques that the appellant had told her that she had asked Mr Sellenger for a condom was made in the context of her Honour identifying aspects of the evidence of Ms Jacques that she accepted 'in its entirety'. Further, it is clear from her Honour's reasons read as a whole that she based her finding that the sexual intercourse was consensual on a combination of matters, most specifically the following:
1.Prior to the alleged incident the appellant had exchanged flirtatious text messages with Mr Sellenger;[149]
2.After the alleged incident the appellant drove around thinking about what to do;[150]
3.The appellant provided to the police three detailed but contradictory versions of events;[151]
4.It was only when Agent Blakeley contacted the appellant on 23 May 2020 and told her that the CCTV footage he had viewed showed her car driving in and out of the Dalyellup beach car park within a very short period of time, that the appellant changed her version so as to allege that the offence had been committed against her in the offender's car rather than in her car;[152]
5.The appellant told Ms Jacques that the sexual intercourse had been consensual, that Mr Sellenger did not threaten her or hurt her, and that she did not know 'it' was going to happen;[153]
6.It was only after the appellant had told Ms Jacques that the sexual intercourse had been consensual and that she had been made aware that she could be charged with an offence that the appellant reverted to alleging that the sexual act was not consensual;[154] and
7.The appellant's injuries were consistent with consensual sexual intercourse having taken place.[155]
[149] ts 54, 25 January 2021.
[150] ts 54, 25 January 2021.
[151] ts 53 - 54, 25 January 2021.
[152] ts 54 - 55, 25 January 2021.
[153] ts 55, 25 January 2021.
[154] ts 55, 25 January 2021.
[155] ts 54, 25 January 2021.
For the reasons I have given the magistrate did not, in finding that the prosecution had proved beyond reasonable doubt that the act of sexual penetration was consensual, make an error in relying, to the extent that her Honour did, on Ms Jacques' evidence that the appellant had asked Mr Sellenger about a condom, that Mr Sellenger had said that he did not have any condoms and that the two of them just continued to have sex. The fact that the appellant was not cross-examined on this specific aspect of Ms Jacques' evidence did not render the magistrate's reliance on the evidence erroneous. Further, even if this aspect of Ms Jacques' evidence is put to one side, the other above identified matters upon which the magistrate relied in deciding that the prosecution had proved that the relevant sexual act was consensual were more than sufficient to permit her Honour to arrive at that conclusion.
The ground of appeal is without merit. It does not have reasonable prospects of success. I refuse leave to appeal on the ground.
Ground 5
Ground 5 alleges that there has been a miscarriage of justice. The contention advanced in support of the ground is that the alleged errors the subject of grounds 1 - 4 considered together demonstrate that the appellant's conviction for the offence has occasioned a miscarriage of justice.
None of grounds 1 - 4 have been made out. The magistrate's conviction of the appellant for the offence did not occasion a miscarriage of justice.
The ground of appeal does not have reasonable prospects of success. I refuse leave to appeal on this ground.
Orders
For the reasons I have stated I make orders as follows:
1.The application for leave to appeal on grounds 1, 3, 4 and 5 is refused;
2.The application for leave to appeal on ground 2 is allowed; and
3.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick
10 AUGUST 2022
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