Smith v The State of Western Australia
[2014] WASCA 90
•28 APRIL 2014
SMITH -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 90
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 90 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:77/2013 | 17 OCTOBER 2013 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 28/04/14 | |
| 42 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Acquittals entered | ||
| B | |||
| PDF Version |
| Parties: | CHRISTOPHER DONALD JOHN SMITH THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Appeal against conviction Sexual penetration of a child under 13 Longman direction Criminal law Evidence Evidence by victim of complaint to one person Admissibility of evidence by others of complaints made to them Evidence Fresh evidence Whether there is a significant possibility that, in the light of all the admissible evidence, a jury, acting reasonably, would have acquitted the accused Criminal law Conviction Whether trial miscarried as a result of the conduct of trial counsel Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 30(5), s 39(1), s 39(3), s 40(1)(e) Criminal Code (WA), s 320(2) Evidence Act 1906 (WA), s 106N, s 106R, s 106T |
Case References: | Amiss v The State of Western Australia [2006] WASCA 171 Beamish v The Queen [2005] WASCA 62 Breen v The Queen (1976) 180 CLR 233 Button v The Queen [2002] WASCA 35; (2002) 25 WAR 382 Crampton v The Queen (2000) 206 CLR 161 De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627 DPJB v The State of Western Australia [2010] WASCA 12 Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154 Kilby v The Queen (1973) 129 CLR 460 Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659 Longman v The Queen (1989) 168 CLR 79 M v The Queen (1994) 181 CLR 487 McMahon v The State of Western Australia [2010] WASCA 143 Mickelberg v The Queen (1989) 167 CLR 259 Mickelberg v The Queen (Unreported, WASCA, Library No 990056, 12 February 1999) Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13 R v Edwards (1991) 1 WLR 207 R v Nazif [1987] 2 NZLR 122 R v Smith [1995] 1 Cr App R 74 R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 R v Twitchell [2000] 1 Cr App R 373 Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 Rinaldi v The State of Western Australia [2007] WASCA 53 SPB v The State of Western Australia [2012] WASCA 136 Ugle v The Queen (1989) 167 CLR 647 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SMITH -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 90 CORAM : McLURE P
- BUSS JA
MAZZA JA
- CACR 78 of 2013
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SWEENEY DCJ
File No : IND BUN 655 of 2012
Catchwords:
Criminal law and procedure - Appeal against conviction - Sexual penetration of a child under 13 - Longman direction
Criminal law - Evidence - Evidence by victim of complaint to one person - Admissibility of evidence by others of complaints made to them
Evidence - Fresh evidence - Whether there is a significant possibility that, in the light of all the admissible evidence, a jury, acting reasonably, would have acquitted the accused
Criminal law - Conviction - Whether trial miscarried as a result of the conduct of trial counsel - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 30(5), s 39(1), s 39(3), s 40(1)(e)
Criminal Code (WA), s 320(2)
Evidence Act 1906 (WA), s 106N, s 106R, s 106T
Result:
Appeal allowed
Acquittals entered
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr J A Scholz
Solicitors:
Appellant : Griffiths Rice & Co
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Amiss v The State of Western Australia [2006] WASCA 171
Beamish v The Queen [2005] WASCA 62
Breen v The Queen (1976) 180 CLR 233
Button v The Queen [2002] WASCA 35; (2002) 25 WAR 382
Crampton v The Queen (2000) 206 CLR 161
De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627
DPJB v The State of Western Australia [2010] WASCA 12
Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285
Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154
Kilby v The Queen (1973) 129 CLR 460
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
Longman v The Queen (1989) 168 CLR 79
M v The Queen (1994) 181 CLR 487
McMahon v The State of Western Australia [2010] WASCA 143
Mickelberg v The Queen (1989) 167 CLR 259
Mickelberg v The Queen (Unreported, WASCA, Library No 990056, 12 February 1999)
Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13
R v Edwards (1991) 1 WLR 207
R v Nazif [1987] 2 NZLR 122
R v Smith [1995] 1 Cr App R 74
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
R v Twitchell [2000] 1 Cr App R 373
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
Rinaldi v The State of Western Australia [2007] WASCA 53
SPB v The State of Western Australia [2012] WASCA 136
Ugle v The Queen (1989) 167 CLR 647
1 McLURE P: I agree that leave to appeal on grounds 1 and 2 in the conviction appeal (CACR 77 of 2013) should be refused for the reasons given by Mazza JA.
2 I also agree that it is inappropriate to deal with ground 3A in the conviction appeal because the appellant's trial counsel, against whom the claim of negligence is made in ground 3A, is and continues to be the solicitor on the record in that appeal. He has a clear conflict of interest. However, fortunately for the appellant, the conviction appeal can be disposed of on ground 3. Where an alleged error by counsel involves the failure to adduce evidence, there are parallels with the test for the admission of new or fresh evidence: McMahon v The State of Western Australia [2010] WASCA 143 [27]. For the reasons that follow, I would uphold ground 3, allow the appeal, quash the appellant's convictions and enter verdicts of acquittal.
3 The appellant was convicted of two counts of sexual penetration of the anus of the daughter of the appellant's de facto partner, L. The indictment pleaded that the offences occurred on the same day some time in the period between 27 February 2011 and 1 August 2011. The complainant was aged between 5 and 6 in that period.
4 Ground 3 (which was amended at the appeal hearing) provides:
New/fresh evidence that has emerged since the hearing of the trial, which evidence was not known, disclosed or available at the time of trial or could not reasonably have been discovered reveals that there has been a miscarriage of justice.
5 The 'new/fresh' evidence particularised in the ground of appeal includes communications in the form of text messages between L and the appellant and facebook entries by L in July 2011 and August 2011.
6 The facts are outlined by Mazza JA in his reasons. It is sufficient for my purposes to note the following.
7 The appellant and L commenced living together in Merredin in 2009. L had four children. The complainant and her younger sister (B) lived with L and the appellant. L's other children lived with her ex-husband, K, at least until around Christmas 2010. The house in which L and the appellant lived (in Caw Street) was over the road from the appellant's house, which was being renovated. The appellant also had children from a previous marriage.
8 The sexual relationship between the appellant and L ceased in February 2011. The appellant moved out of L's house into his house which was still being renovated. The appellant visited L's house from time to time after February 2011, the frequency of which was in dispute at trial.
9 The complainant's evidence was pre-recorded on 28 November 2012 when she was aged 7. Her evidence-in-chief as to the details of the offences is in short compass and can be quoted:
Now … has [the appellant] ever done anything to you involving a pencil?---Yes.
Okay. What did he do?---He poked me up the bum.
Can you say it more clearly?---He poked me up the bottom (ts 26).
10 She said it happened in her room at L's house in Merredin. She was then asked:
Now, has that ever happened in any other room in the house?---No.
In no other rooms in the house?---Nope.
Okay?---Yes.
Yes. In what other room did it happen?---The lounge room (ts 27).
11 There were no other significant details of the offending. The complainant was not asked and did not give evidence-in-chief as to when the offences occurred. That was left to cross-examination and the evidence is as follows:
Do you - do you remember how long ago this occurred?---Last year.
Last year?---And the beginning of last year, or at the end of last year, or in the middle of last year?---December 1.
When?---December 1.
Can you say that again?---December 1.
December 3 2011?---December 1.
How - how do you remember that date, … ?---It was on December 1. I don't know which day.
All right. Why did you say that date? Why did you tell us that date?---Cos it was about something else what I forgot about.
All right, but who - have you been discussing this with someone before?---No.
Do you know what your - your - your date of birth is?---Birth?
When your birthday is?---I don't know (ts 43).
12 The complainant said in evidence-in-chief that she had told her mother 'about it' but did not remember what she told her mother (ts 32). The complainant said in cross-examination that she told her mother about what had happened on Christmas Day 'last year' (ts 44). She was not asked and did not give evidence about the content of what she told her mother.
13 The complainant's mother, L, was called by the prosecution. She gave evidence that the complainant spoke to her in late June 2011 (after the complainant's birthday on 22 June) and gave detailed evidence of what the complainant said the appellant had done as follows:
She came to me one day and was very upset and stated that she didn't like [the appellant] and didn't want him coming to our home any more. When I asked her why, she proceeded to tell me because he had hurt her and 'touched my bottom, mummy.' I asked her what she meant by touching her bottom and she said that he touched her bottom with his hands, her front and back bottom. I says, 'How' - I asked her to explain how she meant and she said that he inserted a pencil into her front and back bottom, 'A blue pencil, mummy' (ts 101).
14 L gave evidence that she and her children had moved out of the house opposite the appellant by mid-August 2011 and, after returning from New Zealand, she took the complainant to the Department of Community Protection in early September 2011. The examination-in-chief continued:
[D]id you arrange anything for the children, particularly---I also organised counselling for the children immediately. It started with both boys and - - -
Okay. I'm sorry. I've asked that in a silly way. Did you arrange anything for [the complainant], in particular---Yes. She attended counselling with Relationships Australia and we started that straight away.
Okay. Thank you. I just have a couple more questions. After you had moved away from Caw Street, did you notice any change in [the complainant's] behaviour--Yes. [The complainant] had almost instantly stopped wetting herself.
And had that been a problem previously---Yes. She was wetting herself three to four times a week previously (ts 104).
15 The appellant and his new girlfriend, N, gave evidence for the defence. The appellant denied the offences and gave evidence that on one occasion he witnessed the complainant inserting a pencil into her vagina and told L to do something about it (ts 155 - 156). L denied all knowledge of the matter but accepted that the complainant 'touched herself' a bit (ts 113).
16 It is unnecessary to go into all of the relevant evidence in detail. A clear and accurate picture of the State and defence cases at trial is captured in the summing up, to which I now turn.
17 The summing up of the State case includes the following:
The State relies upon the evidence of both L that [the appellant] was coming over pretty much daily, even twice a day, after he moved out, and [the complainant's] that he was always visiting the house. The State suggests you should accept that evidence over that of N, who said that the [appellant] never went to the house across the road, at least as far as she was aware. And said she never saw him over the road, and that she was always the one minding the children after school and at weekends.
The State says this is a concerted effort to suggest that really the [appellant] couldn't physically have committed these offences because he was never there …
The State submits that the suggestion that L or her ex-husband would coach [the complainant] to come up with this story doesn't ring true at all. That both L and the [appellant] described continued contact between them after he moved back home.
...
And the State says she doesn't present as a woman who's likely to become so bitter and twisted over the end of a relationship that she would coach her little girl to trump up an allegation. Rather that she comes across as a woman who's made sensible decisions to protect her children and who's found a way to continue to deal sensibly with her ex-husband.
The State says that taking [the complainant] to counselling immediately, letting her and the other children have the fun of the New Zealand trip before having to deal with this issue were sensible decisions, obviously protective of the children. And the State says the way in which L gave evidence was straightforward, it was clear, it was concise, it wasn't dramatic or vindictive. And the State says you should reject any suggestion that she is perhaps the force behind these allegations (ts 208).
18 The State also relied heavily on the fact and content of what the complainant said to her mother about the offending (ts 208).
19 The trial judge summed up the defence case as follows:
The defence case is that you could never be sure on the strength of [the complainant's] evidence that the [appellant] did commit these offences. Because even making allowances for her young age, [the complainant] cannot tell you anything about how the [appellant] put a pencil inside her, except for the bare allegation that he did. The defence suggests [the complainant's] evidence really consists of little more than a single line that she maintains and repeats as if it were rote learned.
But if she had really experienced this, you would expect she would be able to tell you something about how it occurred, what it was like, something more than the bare allegation itself. The defence also commented on her demeanour, the eagerness to answer questions quickly as if, the defence, says, she would have rote learned.
...
But the defence suggests that because of the lack of detail, you should at least have some concern as to whether the child has been coached by her mother or father to say these things.
...
Or perhaps she's done this to herself, put a pencil in herself, and somehow that's played a part in her account, and she's not reliable when she says the [appellant] did this to her. The [appellant] says he witnessed her at the dining table with a pencil inside her, and the pencil coming in and out. He described her front bottom and between her legs.
...
And it's common ground that [the complainant] had been known to touch herself with her fingers.
...
The defence points out that [the complainant] stated confidently that these offences occurred on 1 December and also stated confidently that she told the mother on Christmas Day, when you know that logically, she's quite wrong.
And who knows how those dates and days are in her head or associated with this.
…
The defence suggests you can't just dismiss N's evidence just because she's in a relationship with the [appellant]. She was also a good friend of L, and she'd been [the complainant's] therapist, and she told you if she believed the [appellant] had done this, she would leave him (ts 209 - 210).
20 The complainant had been diagnosed with autism and N was her therapy assistant from January 2009 until the complainant started school in 2011. N was the appellant's partner after L. On N's evidence, the appellant had very limited opportunity to commit the offences after February 2011. The appellant's evidence was that he went to L's house four to six times after moving out in February 2011, which was clearly inconsistent with L's evidence.
21 Drawing attention to the inconsistencies between the complainant's evidence at trial of what had occurred with what L said she was told (which in turn was not entirely consistent with her statement to police), the trial judge's summary of the defence case continued:
The defence suggests you should also -that should also raise concerns for you that [the complainant's] story is changing, or that her mother was the driving force behind this, and [the complainant] can only retain a single line which she repeats by rote. And that the allegation that he put a pencil inside her is accompanied by no details because she didn't really experience it, and so she can't talk from memory (ts 211).
22 The importance of L's evidence in the State's case is clear. Hers is the only evidence to link the complainant's evidence of the offences to the period nominated in the indictment. Without that link, the charges would not have been proven. Hers is the only evidence of the content of the complaint. She gives evidence of the cessation of frequent bed-wetting by the complainant when contact with the appellant ceases. She contradicts the defence case relating to opportunity and does not support the appellant's evidence of prior similar behaviour by the complainant. The State rejects the defence suggestion of L coaching the complainant by reference to her conduct, demeanour and creditworthiness.
What the defence knew/ought to have known
23 The appellant was arrested for alleged sexual offending against the complainant on 15 February 2012, as is apparent from the appellant's video record of interview with police on that date. What follows was not raised in the appellant's trial of the offences against the complainant (the first trial).
24 The appellant's arrest on 15 February 2012 also related to a number of other alleged offences, including an allegation by L that she had been raped by the appellant in mid-July 2011. Further, all of L's children (two boys and two girls who in January 2013 were aged 12, 10, 7 and 5 respectively) had been interviewed by authorities in relation to allegations of threats of violence made by the appellant in November 2010. All of these allegations were canvassed by police with the appellant. The heavily redacted record of interview was adduced in evidence at the first trial.
25 The appellant was later charged with sexual penetration of L without her consent by penetrating her anus with his penis. The trial of the appellant for the rape of L commenced on 5 March 2013 (the second trial), some six weeks after the first trial. Counsel for the appellant in the conviction appeal was trial counsel in the second trial.
26 L was ruled to be a special witness under s 106R of the Evidence Act 1906 (WA). As a result, she gave her evidence from a remote location and the evidence was visually recorded (s 106N). Her evidence-in-chief in the second trial was relevantly as follows. She and the appellant broke up in February 2011 and he moved back to his house across the road. The appellant carried on business as a communications technician and she worked for the business, providing secretarial assistance. She continued working for the appellant on a full time basis until the school holidays in June/July 2011. She said the offence occurred on a Saturday in July 2011.
27 Cross-examination of L commenced on 5 March 2013. Her evidence in cross-examination included the following. L and N were friends. N had left her husband and moved in with L and the appellant for at least four weeks in late 2010/early 2011 (ts 67 - 68). The appellant and L stopped having a sexual relationship in February 2011 (ts 65). L had suspicions before July 2011 that the appellant was having an affair with N and 'found out for sure' that that was the case in July 2011. L was angry, upset, and disappointed when she found out that the appellant was having an affair with N.
28 The first time L told police about the alleged offence was on 7 February 2012 (ts 66). L told police that the offence had occurred in mid-July 2011 (ts 84).
29 During the cross-examination of L on text messages between her and the appellant in July 2011, it became clear that the appellant's case would be that he was not in Merredin on Saturday 23 July 2011. The State had not received notice of any alibi. The trial judge decided to continue the trial until the completion of the cross-examination of L because of the possibility that the defence might conclude that it did not wish to pursue the alibi issue.
30 Cross-examination of L recommenced on 6 March 2013. The focus continued on the text messages. L denied sending some of the text messages. However, she admitted giving the appellant a jumper as a present on or around his birthday on 8 August 2011 (ts 117 - 118). It was put to L that she hated the appellant because he had left her for her friend N and had fabricated the allegation of rape (ts 125).
31 As the State wanted to investigate certain matters concerning the text messages on which L was cross-examined and the defence position on alibi had not changed, the trial judge discharged the jury on 6 March 2013.
32 As a special witness, L's recorded evidence could be played in subsequent hearings (Evidence Act, s 106T). With the consent of the parties, the cross-examination of L continued on 18 June 2013. By that stage, the parties had obtained the call records of communications to and from the mobile phones of L and the appellant. In cross-examination on 18 June 2013, L denied having sent a significant number of the text messages shown as having been sent from her mobile telephone to that of the appellant. It was put to her that she was lying. A sample of the text messages are at Annexure A. L denied sending all but one of those messages (No 13).
33 There was nothing in the re-examination of L that undermined the effectiveness of the cross-examination on the text messages. The defence case was that the frequency and content of the communications was inconsistent with L's allegation that she had been raped by the appellant and that she had fabricated the allegation to get back at the appellant because he had left her for N.
34 On 8 August 2013 counsel for the State handed up to the court a notice of discontinuance of the charge against the appellant of sexual penetration of L without her consent. The court was advised by counsel for the State that 'following a review of the evidence after the pre-recording of the complainant's evidence on 18 June 2013, the State has formed the view that there are no reasonable prospects of conviction'.
35 The content of the facebook entries by L are set out in the reasons of Mazza JA. They were located after the commencement of the second trial.
36 The text messages on which L was cross-examined in the second trial and the facebook entries were in existence at the time of the first trial. The appellant knew of the text messages from the time he received them. The appellant's solicitor and counsel in the first trial, Mr Rice, deposed that he had sent the text messages to the appellant's current counsel after the first trial and before the second trial. However, he could not recall whether copies of the text messages had been given to him before or after the first trial. It can be inferred that Mr Rice would know the answer to that question if he had considered and made a forensic decision not to use the text messages to cross-examine L in the first trial. Moreover, notwithstanding that care was required because the appellant was the subject of a number of other allegations made by L and her children, I see no objectively justifiable forensic reason for not cross-examining L on the text messages.
Fresh and new evidence
37 At common law there is a distinction between fresh evidence and new evidence. We are here concerned with the question whether the failure to adduce relevant and admissible evidence at trial gives rise to an appealable error that empowers a court to set aside a conviction in an appeal. Different tests apply according to whether the evidence is fresh or new.
38 Evidence is 'fresh' if it did not exist at the time of the trial or if it could not have been discovered with reasonable diligence: Beamish v The Queen [2005] WASCA 62 [9]; Mickelberg v The Queen (2004) 29 WAR 13 [411].
39 Evidence is 'new' if it was available at the time of trial or could, with reasonable diligence, have been discovered: Ratten v The Queen (1974) 131 CLR 510, 517.
40 Where the evidence is fresh, in order to allow the appeal the court must be satisfied that in the light of all the admissible evidence (including the evidence at trial) there is a significant possibility that a jury, acting reasonably, would have acquitted the accused: Beamish [14]; Mickelberg [416], Rinaldi v The State of Western Australia [2007] WASCA 53 [82].
41 An appellant faces a higher hurdle in overturning a jury's guilty verdict on the basis of new evidence. For the appeal to succeed, the new evidence must be strong enough to show that the appellant is innocent or raise such a doubt that the court concludes that the appellant should not have been convicted: Lawless v The Queen (1979) 142 CLR 659, 676; Button v The Queen [2002] WASCA 35; (2002) 25 WAR 382 [16]; DPJB v The State of Western Australia [2010] WASCA 12 [66].
42 The text messages and facebook entries are new, not fresh, evidence. The transcript of L's evidence in the second trial and the exhibits and MFIs connected therewith are fresh evidence. Oddly enough, the appellant's ground 3 placed no reliance on the transcript of L's evidence in and after the second trial as fresh evidence. As its significance was made apparent at the hearing of the appeal, ground 3 was in effect widened to include that evidence. The respondent conceded that the fresh evidence was admissible in this appeal.
43 The exhibits and MFIs in the second trial include the text messages that were in existence at the time of the first trial. This makes it unnecessary to determine whether the appeal should succeed solely on the basis of the new evidence without reference to the fresh evidence.
44 This court's role is not to engage in a fact-finding exercise. Fresh or new evidence is capable of giving rise to an appealable error provided it is credible, in the sense that a reasonable jury could accept it as true, but it is not necessary that the court should think it likely that a reasonable jury would believe it: Mickelberg v The Queen (Unreported, WASCA, Library No 990056, 12 February 1999).
45 However, this case is not within the usual run of cases involving new or fresh evidence. It is more akin to the line of English cases in which the evidence of corrupt police officers relating to out of court admissions was positively disbelieved by a jury in a subsequent case: R v Edwards (1991) 1 WLR 207; R v Twitchell [2000] 1 Cr App R 373; R v Smith [1995] 1 Cr App R 74. In these cases the English courts concluded that the convictions were unsafe and unsatisfactory and quashed them.
46 In this case L has been examined, cross-examined and re-examined under oath in and/or for the purposes of the trial of the criminal charge against the appellant for an offence against L, but with no jury verdict. However, it is relevant and admissible evidence that the prosecution, in the exercise of its public duties, discontinued the charge on the ground that, having regard to L's evidence on oath, there were no reasonable prospects of conviction.
47 L's credibility under oath was seriously undermined by her evidence in and after the second trial. More significantly, L's evidence in and after the second trial is relevant to the facts in issue in the first trial, including the fact, content and/or timing of any complaint, any change in the complainant's behaviour when contact with the appellant ceased, and most significantly, whether L coached the complainant to initiate and give evidence of a false allegation against the appellant.
48 I do not accept the respondent's submission that when looked at in the context of the deteriorating relationship between L and the appellant, and the new relationship the appellant had with N, the behaviour of L is not inconsistent with her having been told by her daughter that she had been the subject of sexual offences by the appellant. The State continued:
It is not uncommon in cases of this sort to see a wife or mother find it difficult to separate herself and her family from the reliance and trust she had in the alleged perpetrator in their relationship [50].
49 Unfortunately the quoted statement is accurate. However, the fresh evidence in this case travels well beyond the usual scenario.
50 L's communications with the appellant from mid-July 2011, many which she denied sending, can be viewed as inconsistent with her claim that the appellant raped her. The prosecution has concluded, properly in my view, that a jury could not be satisfied beyond reasonable doubt of L's claim of rape.
51 L's communication with the appellant after the end of June 2011 can be viewed as inconsistent with her evidence relating to the complainant's disclosure to her of sexual abuse by the appellant. When coupled with L's discredited claim of rape, that inference is significantly strengthened.
52 In my assessment, L's evidence in and after the second trial undermines the credibility of her evidence given in the first trial and strengthens the defence case that L was the driving force behind the complainant's allegations against the appellant.
53 For these reasons, the fresh evidence discloses an appealable error that requires the appellant's convictions the subject of this appeal to be quashed. That leaves the question whether this court should order a retrial or acquit the appellant of the offences.
54 The power to grant a new trial is discretionary (see s 30(5) of the Criminal Appeals Act 2004 (WA)) and in deciding whether to exercise it, the court which has quashed the conviction must decide whether the interests of justice require a new trial. In so deciding, the court should first consider whether all the admissible evidence is sufficiently cogent to justify a conviction. If so, then the court must take into account any circumstances that might render it unjust to the accused to make him stand
trial again, remembering that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused: Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627.
55 Ordinarily, a retrial is the usual order. This leaves it to the prosecution, within the Executive Government, to determine whether or not a new trial is appropriate: Dyers v The Queen (2002) 210 CLR 285; Crampton v The Queen (2000) 206 CLR 161.
56 In this case the fresh evidence has been tested under oath in and for the purposes of a criminal trial of the same alleged offender. Based on an assessment of the credibility of L's evidence, the prosecution discontinued that charge against the appellant. L's credibility in those proceedings is inextricably linked with the credibility of her evidence in the first trial. The fresh evidence undermines both L's credibility and the reliability of the complainant's evidence which had the weaknesses previously identified.
57 Having regard to the fresh evidence together with the evidence adduced in the first trial, I am satisfied that the verdicts in the first trial are unsafe and unsatisfactory within the meaning of the expression as explained in M v The Queen (1994) 181 CLR 487. It would not be just for this court to order a retrial when all of the relevant admissible evidence is not sufficiently cogent to justify the convictions. Accordingly, I would quash the convictions and enter verdicts of acquittal on both counts. In these circumstances it is unnecessary to determine the sentence appeal.
58 BUSS JA: I have read the proposed reasons of each of McLure P and Mazza JA.
59 I agree with Mazza JA, for the reasons he gives, that grounds 1 and 2 in the conviction appeal are without merit and leave to appeal should be refused on those grounds.
60 I agree with each of McLure P and Mazza JA, for the reasons each of them gives, that it is inappropriate to deal with ground 3A in the conviction appeal.
61 I agree with McLure P, for the reasons she gives, that ground 3 in the conviction appeal has been made out, and that:
(a) the application to adduce additional evidence in the conviction appeal should be granted;
(b) the conviction appeal should be allowed;
(c) the appellant's convictions should be quashed; and
(d) judgments of acquittal should be entered in respect of each count on the indictment.
62 It is unnecessary, in the circumstances, to determine the sentence appeal and it should be dismissed.
63 MAZZA JA: Before this court are the appellant's appeals against conviction and sentence.
64 The appellant was charged in the District Court on indictment with two counts of sexual penetration of a child under the age of 13, contrary to s 320(2) of the Criminal Code (WA) as follows:
(1) On a date unknown between 27 February 2011 and 1 August 2011 at [a country town] [the appellant] sexually penetrated [R], a child under the age of 13 years, by penetrating her anus with a pencil.
And that [the appellant] and [R] were in a family and domestic relationship.
(2) On the same date and at the same place as in count (1) [the appellant] again sexually penetrated [R], a child under the age of 13 years, by penetrating her anus with a pencil.
And that [the appellant] and [R] were in a family and domestic relationship.
66 On 25 January 2013, after a three-day trial, the appellant was convicted of both offences. On 22 March 2013, he was sentenced to 3 years' imprisonment on count 1 and 1 year's imprisonment on count 2, to be served cumulatively. Thus the total effective sentence imposed upon the appellant was 4 years' imprisonment. The appellant was made eligible for parole and the sentence was backdated to commence on the date of the convictions. On 17 October 2013 at the conclusion of the hearing of this appeal, the appellant was granted bail pending the decision of this court.
67 The amended grounds of appeal against conviction allege that the learned trial judge erred by giving the jury an 'inadequate' Longman warning. The appellant also alleges two miscarriages of justice. Finally, he claims that, as a result of both fresh and new evidence, the convictions should be set aside.
68 The grounds of appeal against sentence allege that the learned sentencing judge made a material error of fact and that the total effective sentence infringed the first limb of the totality principle.
Overview of the case
69 The prosecution case was as follows. The complainant, R, is the second youngest of four children born to LH and her ex-husband, KH. R was born on 22 June 2005. At all material times, she resided with LH. In approximately 2009, the appellant and LH commenced living together in a de facto relationship. The relationship lasted until February 2011, when they separated. The State alleged that, in the months after the separation, the appellant frequently visited LH's home.
70 The State's case was that on the one day sometime after the appellant and LH separated but before the end of June 2011, the appellant twice inserted a pencil into the anus of the complainant, who was, at that time, aged 5 or 6 years. Count 1 was said to have occurred in the complainant's bedroom, while count 2 was said to have occurred in the lounge room.
71 Without objection, the State adduced recent complaint evidence from LH. She testified that the first time R said anything to her about what the appellant had allegedly done to her was in June 2011, after her birthday.
72 The prosecution tendered, by consent, an edited DVD of an interview between investigating police officers and the appellant which took place on 15 February 2012. In that interview, the appellant denied that he had inserted a pencil into R's anus or behaving in a sexually inappropriate way towards her. The appellant told the police that on one occasion while he and LH were living together, he saw R, at the dining room table, insert a pencil 'in and out of her[self]'. He said that he told LH about this incident and asked her to 'do something about this'.
73 The appellant testified in his own defence, essentially giving evidence which was consistent with what he had told the police. Additionally, he said that after he and LH had separated, he did not frequently visit LH's house and did not provide care for LH's children. He testified that his work took him 'all over the place' and that he was 'on the road all the time' in connection with his business. He said that he went inside LH's house 'probably … four to six times' and that '99 per cent' of his work was 'mobile'.
74 The appellant's then de facto partner, NL, gave evidence for the defence. She said that she and the appellant had been living together since 17 October 2011. She testified that she first met LH in 2003 and that they became friends. She said that between January 2009 and the beginning of 2011, she had been employed as a therapy assistant to R, who, she said, was autistic. NL testified that there were occasions she saw R put her hands on her vagina. She also testified that, after the appellant and LH separated, she babysat the children 'four or five afternoons a week over [sic] school, most nights for sleepovers and most weekends'.
75 The defence case was essentially a denial of the allegations made by R. Further, although the appellant did not go so far as to say that there was no opportunity for him to commit the offences, his case was that he had very little contact with R after the separation. It was also suggested that the allegation that the appellant had inserted a pencil into R's anus may have originated from the incident the appellant said he saw at the dining room table. Finally, it was said that R had been 'coached' by LH to falsely implicate the appellant.
76 The key issue to be resolved by the jury was whether the State had proved beyond reasonable doubt that the complainant had been penetrated by the appellant as alleged. The State's case relied upon the honesty and reliability of R, who was 7 years old at the time that her evidence was pre-recorded. That evidence was uncorroborated. LH's evidence of R's complaint to her was also relied upon by the State for the purpose of bolstering R's credibility. Her evidence was also relevant to the opportunity the appellant had to commit the offence and to the allegation of coaching.
The evidence in detail
77 The complainant's evidence was pre-recorded on 28 November 2012.
78 R had participated in a visually recorded interview on 20 December 2011. For technical reasons, that interview was not played at either the pre-recording or the trial, but a transcript of it had been provided to the defence as part of the prosecution brief.
79 In examination-in-chief, the complainant said that the appellant poked her 'up the bum' with a pencil in her bedroom and in the lounge room. She said that on the occasion in the lounge room her younger sister, I was present (I was about 3 years old at the time). R said that I was watching her play a game on a Wii (28/11/12 ts 26 - 28). When she was asked how, on each occasion, she knew the appellant had put a pencil in her bum, she replied that she saw it before he put it in (28/11/12, ts 31 - 32).
80 R said that she told her mother and father what had happened, but she was unable to remember what she had told them (28/11/12, ts 32 - 33).
81 R was cross-examined at some length by defence counsel.
82 R said that on the day in question she had been playing in the bush in a cubby with her sister (28/11/12, ts 35).
83 She said that the appellant was a frequent visitor to her house (28/11/12 ts 36). She said he would go there to use the bathroom and the kitchen. She said that she thought that the offences occurred on 1 December 'last year' (meaning 2011) (28/11/12 ts 43). She said that the appellant came into her bedroom while she was doing her homework and that he poked her in the bottom with a pencil that he had obtained either from her desk or one of her drawers (28/11/12 ts 42). She said that she did not have a good memory of what occurred in her bedroom.
84 R testified that the incident in the lounge occurred, on the same day as the incident in the bedroom, while she was playing Spongebob Squarepants on the Wii (28/11/12 ts 46 - 47). She said that the appellant came into the lounge, holding a pencil, and that she was sitting down with her sister, I, next to her. She said that her two older brothers were playing in the bush. She said the appellant then 'did the same - the same as the other one … with my pencil on [sic] my bottom' (28/11/12 ts 47). R agreed that she did not tell her mother what had happened straight away. She said she did not want to. R said that she told her mother what had happened 'on Christmas Day' (2011) (28/11/12 ts 44, 48). R denied the suggestions of defence counsel that she had discussed with her parents what she was going to say about the appellant and that they had told her what to say in court about him (28/11/12 ts 51).
85 In re-examination, R said that she did not have a clear memory of everything that happened on the day in question, but when asked if she was certain that the appellant had put the pencil in her bottom in the bedroom and the lounge room, she replied in the affirmative (28/11/12 ts 53). R was unable to say why she had not told her mother straight away what had happened to her (28/11/12 ts 53).
86 LH testified that the first time R said anything to her about what the appellant had allegedly done was in June 2011, after R's birthday on the 22nd of that month (ts 101 - 102).
87 She described R's complaint in these terms:
She came to me one day and was very upset and stated that she didn't like [the appellant] and didn't want him coming to our home any more. When I asked her why, she proceeded to tell me because he had hurt her and 'touched my bottom, mummy.' I asked her what she meant by touching her bottom and she said that he touched her bottom with his hands, her front and back bottom. I says, 'How' - I asked her to explain how she meant and she said that he inserted a pencil into her front and back bottom, 'A blue pencil, mummy.' The whole time that she's telling this she was curled upon my knee cuddling me and crying.
88 LH said that she had not seen R put any object in either her vagina or her bottom. However, when R was three or four, she was observed to touch herself 'on and off' (ts 102).
89 LH testified that after R made her complaint, she made arrangements to move to her ex-husband's house, which occurred in mid-August 2011. LH said that she and her children then went to New Zealand for a family wedding. Upon their return, in early September 2011 she said she took R to the Department of Child Protection. She explained that she had not done so earlier because she did not want to affect R's enjoyment of the trip to New Zealand. Following the visit to the Department, R attended counselling.
90 Defence counsel cross-examined LH about the detail of R's complaint to her, in the course of which LH said that R got her teddy bear and shoved a pencil into the toy 'where a genital area would be' (ts 111).
91 LH reiterated that she had not seen R put anything 'into her front or back bottom' (ts 114). She denied a proposition put to her by defence counsel that there was an occasion when R was seen putting a pencil in and out of her bottom (ts 114). LH denied that she had told or suggested to R what to say in her pre-recorded evidence.
92 LH said that R did not make any complaint to her on 1 December 2011 or 25 December 2011 (ts 116 - 117).
93 By consent, a statement made by Dr Alice Johnson was read to the jury. Dr Johnson is a medical practitioner who examined R at Princess Margaret Hospital on 7 August 2012. She said that a genito-anal medical examination of R was normal. Dr Johnson stated that this conclusion neither supported or refuted R's disclosures of sexual abuse (ts 121).
94 Prior to the close of the State's case, the prosecution tendered, by consent, an edited DVD of the interview between the investigating police officers and the appellant conducted on 15 February 2012, the essential contents of which I have already described.
95 In his testimony at trial, the appellant explained that he and LH had, prior to the commencement of their relationship, lived across the road from each other. After they formed a relationship, he moved in with LH and her children. During the relationship, he began renovating his house. The appellant said that he and LH separated in about February 2011 (ts 150) and he returned to his house across the road from LH. At that point, he said, he and LH were friends. He said that on occasion he went to LH's house, but in the period between February and July 2011 he did not provide any care for LH's children (ts 152).
96 The appellant testified that he worked 'all over the place' and that he was 'on the road all the time' in connection with his business. He said that his work saw him travel on a day-to-day basis over a large area of the State.
97 He denied the allegations made by R. He testified, consistently with what he had said to the police, that he had witnessed R 'poking at herself with [a] pencil' (ts 155). He recalled that, at the time this occurred, a friend was knocking on the door of the house.
98 In cross-examination, the appellant said that in the period between the end of February and July 2011, he went inside LH's house 'probably … four to six times' (ts 157). The appellant said that '99 per cent' of his work was 'mobile'.
99 NL testified that she had been living with the appellant since 17 October 2011. She said that she had been friends with LH, having first met her in 2003. She knew that the appellant and LH had lived together up until they separated in February 2011. She said that she had been employed by Disability Services Commission of Western Australia between January 2009 and the beginning of 2011 as a therapy assistant to R, whom she said was autistic.
100 NL testified that on occasion she saw R put her hands on her vagina. She said that she told LH about this. She said that she had not seen R put any objects there (ts 172). NL said that after the appellant and LH separated, she babysat the children 'four or five afternoons a week over [sic] school, most nights for sleepovers and most weekends' (ts 173).
The State's closing address
101 I will not summarise in detail the closing addresses. However, it is necessary to say something about the State prosecutor's closing address and the use to which the State sought to put LH's testimony.
102 The State placed considerable importance upon the credibility and reliability of LH. Her testimony was important to the State's case for four reasons. First, she testified that the appellant was a frequent visitor to her house after the separation in February 2011. In this way, the State used her evidence to support its case that the appellant had ample opportunity to commit the offences, and to contradict the appellant's and NL's evidence to the effect that he was not a frequent visitor to LH's house. Second, her evidence of R's complaint to her was 'just one more reason that you should believe [R]' (closing address ts 12). Third, her evidence was used to rebut the appellant's claim that he had seen R insert a pencil into her vagina and that he told LH about this. Fourth, having seen LH give evidence, the jury should form the view that she was not the sort of person who would seek revenge upon the appellant by coaching R to make false allegations of sexual abuse.
103 The prosecutor extolled LH as a truthful witness. He submitted to the jury that LH would have 'impressed you as a truthful person' and that she was 'straight with you' (closing address ts 10, 13).
104 Her Honour's summary of the State's case in her summing up reflected the State prosecutor's submissions. At one point she said to the jury:
And the State says she [LH] doesn't present as a woman who's likely to become so bitter and twisted over the end of a relationship that she would coach her little girl to trump up an allegation …and the State says the way in which [LH] gave evidence was straightforward, it was clear, it was concise, it wasn't dramatic or vindictive. And the State says you should reject any suggestion that she is perhaps the force behind these allegations (ts 208).
Grounds 1 and 2 of appeal against conviction
105 It is convenient to deal, at this point, with grounds 1 and 2 of the appeal against conviction. These grounds are:
Ground 1
1. There was a miscarriage of justice when the learned Judge failed to give a sufficient Longman direction that was adequate in all the circumstances:
Particulars:
1.1 Her Honour failed to give the jury an unmistakable and firm direction of law concerning the loss of forensic advantage;
1.2 Her Honour's direction as to the actual forensic disadvantage was too general;
1.3 Her Honour failed to adequately mention any actual or specific forensic disadvantage caused to the appellant.
Ground 2
2. There was a miscarriage of justice when the learned trial Judge allowed recent complaint evidence to be adduced by the prosecution:
Particulars:
2.1 There was no specific evidence from the complainant as to the actual offending capable of amounting to recent complaint.
106 Leave to appeal has not yet been granted in respect of these grounds. The question of leave was referred to the hearing of the appeal.
Ground 1 - The Longman warning
107 After the close of the defence case and before she gave her summing up, the learned trial judge discussed with counsel the need for a Longman warning, that is, a warning in accordance with Longman v The Queen (1989) 168 CLR 79. Although there was no substantial delay between the occurrence of the alleged offences and the appellant becoming aware of the complaint, her Honour decided that, because approximately one year may have elapsed between the alleged occurrence of the offences and the appellant being informed of the allegations by the police, 'something of a Longman direction should be given'.
Her Honour's Longman direction
108 The direction her Honour gave, which the appellant now alleges to be inadequate, was as follows:
[The appellant] said he heard about the allegations on Facebook, but we don't know any detail about what he heard. And she then he said eventually the police interviewed him. And that interview took place on 15 February 2012. So it's not until that date that [the appellant] was informed of the allegations in a formal way, and given an opportunity to be interviewed about them.
So looking at the timeframe specified, the alleged offences could have occurred as early as late February 2011, or as late as late June 2011, meaning a gap of at least eight months, or as much as a year between the alleged offences and [the appellant] having those allegations formally put to him by the police.
More than that, you have no way of knowing what that gap is, because you can't pin down how long went by before R spoke to her mother. That delay has put [the appellant] at a disadvantage. Had R been able to say, 'This occurred to me yesterday' or 'last week', and had the police then asked [the appellant] about that allegation shortly afterwards, [the appellant] might have been able to recall precisely where he was on the nominated day. LH might have been able to recall precisely where she was on that particular day.
Whereas instead, of course, the witnesses are having to talk in terms of what usually happened, their pattern of what they normally did. [The appellant], therefore, has less ability to explore and perhaps bring forward evidence of alibi, or limited opportunity to commit such an offence.
You are entitled to find the charges proven on the strength of R's evidence alone. But before you could find [the appellant] guilty on the strength of her evidence - and hers is the only evidence capable of proving the charges - you need to be certain she's reliable about the essential facts of the allegations. Can she be sure and accurate about what happened, and is she telling you the truth? And is she right?
You obviously need to take into account her young age, her way of expressing herself, her ability to understand the questions the way lawyers ask questions, and the process itself, which is unfamiliar to a child. It's unfamiliar to an adult. We're dealing with a seven year old here.
It was clear she found the lawyers a bit exasperating, the way they kept asking her questions. And at times, the way she spoke implied that she really thought they ought to know the answers to these questions that they were asking her.
Taking all of those things into account, you need to assess whether she's both truthful and accurate about her allegation, and that her account is trustworthy and can be relied upon (ts 189 - 190).
The appellant's submissions - Ground 1
109 The appellant submitted that her Honour's directions were deficient because:
(a) of the 'disconnected, inadequate and ambiguous manner' in which they were given;
(b) they did not provide the jury with 'an unmistakeable and firm direction of law concerning the loss of forensic disadvantage that they were bound to follow'; and
(c) the learned trial judge failed to draw to the jury's attention that, as a result of the delay in being informed of the allegations, the appellant was unable to ascertain 'where people were during the offence, in particular who was at work, who was in a shop and who was on the road'.
Ground 1 - Longman warning - the applicable legal principles
110 Recently, in SPB v The State of Western Australia [2012] WASCA 136 [41] - [53], Buss JA, with whom McLure P and I agreed, reviewed the relevant authorities and set out the legal principles applicable to Longman warnings. It is unnecessary to repeat what was said in that case.
111 For present purposes, it is enough to say this. A Longman warning is to be given in cases of alleged sexual offending against children which rely on the uncorroborated evidence of the complainant and where there is a substantial delay between the occurrence of the alleged offence and the accused being informed of it. In such cases, the accused will have suffered a forensic disadvantage by losing the chance to adequately test the complainant's evidence and the chance to adequately marshal a defence. Because a jury may not appreciate such matters and take them into account when assessing the complainant's evidence, a jury must be warned to do so. Such a warning must be given with 'an unmistakeable and firm voice', that is, it must be a direction of law binding upon the jury and not a mere comment upon the facts which the jury may accept or reject: Crampton v The Queen (2000) 206 CLR 161 [45] per Gaudron, Gummow and Callinan JJ. The form of the warning must be appropriately adapted to the circumstances of the case. The whole purpose is to ensure a fair trial of the accused and avoid a perceptible risk of a miscarriage of justice in the particular case.
Merits of ground 1
112 The delay between the commission of the alleged offences and the appellant being informed of them by the police was, at most, just under 12 months. That cannot be characterised as a substantial delay. I doubt whether any particular direction concerning the loss of forensic advantage was required in this case. However, I will assume, favourably to the appellant, that some direction in accordance with Longman was required.
113 I do not accept the appellant's submissions that her Honour's direction was deficient.
114 Contrary to the appellant's submission, on a fair reading of the direction, it could not be reasonably described as 'disconnected, inadequate and ambiguous'. Her Honour began the direction by specifying the time in which the offences were alleged to have occurred and the time when the appellant was formally told of the allegations. Next, she clearly and unambiguously instructed the jury that the delay 'has put the accused at a disadvantage' (ts 189). She then told the jury what the nature of the disadvantage was. Her Honour then instructed the jury that the accused had less ability 'to explore and perhaps bring forward evidence of alibi or limited opportunity to commit such an offence' (ts 189). In the context of this case, that instruction could only have been understood by the jury to mean that the appellant was unable to precisely pinpoint where he was when the offences were alleged to have been committed, bearing in mind the testimony he gave concerning the nature of his work and how it took him to various locations around the State. No other forensic disadvantage was raised on the evidence.
115 Her Honour then proceeded to instruct the jury that it could find the charges proven on the strength of the complainant's evidence alone, but that, before doing so, the jury had to be 'certain she's reliable about the essential facts of the allegations' (ts 189). Her Honour referred to the subjective circumstances of the complainant and then concluded her direction by instructing the jury that they needed to assess the complainant's credibility, taking into account all of the matters she referred to. The jury would have understood one of those matters to be any disadvantage caused to the appellant by delay.
116 The direction was in accordance with authority and was given in such a way as to be an unmistakeable and firm direction of law. It sufficiently drew the jury's attention to the inability of the appellant to adduce evidence of precisely where he was when the offences were alleged to have been committed.
117 The direction given by her Honour was crafted to the facts and circumstances of the case. Her Honour referred to the precise forensic disadvantage suffered by the appellant. It avoided any perceptible risk of miscarriage of justice. In this regard, it is relevant to note that defence counsel took no exception to it.
118 Ground 1 has no reasonable prospect of success. I would refuse leave to appeal in relation to it.
Ground 2 - The recent complaint evidence
119 The point the appellant seeks to make in ground 2 is a narrow one. The appellant does not submit that R's complaint was not recent. Rather, the appellant alleges that LH's evidence of complaint was inadmissible because R did not testify as to the detail of what she had said to her mother. The appellant cited Kilby v The Queen (1973) 129 CLR 460, 474, and Ugle v The Queen (1989) 167 CLR 647, 649, in support of this submission.
120 The submission is misconceived. Kilby and Ugle were cases where, unlike the present case, the complainant was not called to give evidence at all. In those circumstances, it was held that evidence of complaint could not be adduced: Kilby (474) and Ugle (649).
121 Once a complainant has given evidence of an alleged sexual offence, evidence that he or she made a recent complaint can be led through another to buttress the credit of the person making the complaint: Ugle (649). See also Breen v The Queen (1976) 180 CLR 233, 234 and R v Nazif [1987] 2 NZLR 122.
122 In her pre-recorded evidence, R said that she told her mother what had happened to her, but she was unable to remember the content of what she had said (pre-recorded evidence 28/11/12, p 32). Given her very young age and the time that had elapsed since the making of any complaint, this is not surprising. Although she did not remember the content of her complaint to her mother, she was clear that she had made such a complaint. In these circumstances, the evidence of LH as to the detail of that complaint was properly admissible.
123 Ground 2 has no reasonable prospect of success. Leave to appeal should be refused in relation to it.
Grounds 3 and 3A
124 Ground 3 was amended at the hearing of the appeal to read:
New/fresh evidence that has emerged since the hearing of the trial which evidence was not known, disclosed or available at the time of the trial or could not reasonably have been discovered, reveals there has been a miscarriage of justice.
Particulars of New/Fresh evidence;
3.1 The affidavits of David Christopher Rice dated 18 and 27 June 2013 and the appellant himself dated 3 July 2013, in which they indicate:
(a) following the time in June 2011, when the complainant disclosed to her mother [LH] the alleged offending, [LH] continued to communicate with the appellant in a manner inconsistent with the alleged disclosure having been made;
(b) the content of the text messages and Facebook entries sent by [LH] to the appellant reveal actions and feelings by the complainant towards the appellant that are wholly inconsistent with his guilt concerning [R].
There was a miscarriage of justice when defence counsel failed to cross-examine prosecution witnesses as to several matters;
Particulars:
3A.1 Defence counsel failed to cross-examine [LH] as to her communications with the appellant by text message and on Facebook after she became aware of the offending;
3A.2 Defence counsel failed to cross-examine the complainant about prior inconsistent statements that impacted adversely upon her credibility;
i) In her interview with the Child Assessment Interview Team on 20 December 2011 ('the interview') the complainant stated it was her vagina that was penetrated;
ii) The complainant stated in the interview that her two older brothers were present in the lounge room at the time of the second offence.
127 In such circumstances, the proper course would have been for an independent solicitor to have conducted this appeal on the appellant's behalf and for any affidavits, including affidavits from Mr Rice, to be prepared by that independent solicitor.
128 When members of this court put to Mr Watters that this was how the appeal should have been conducted, Mr Watters accepted these propositions. Mr Watters responded by proposing to abandon ground 3A. That proposal was not accepted by the court because it may have been contrary to the appellant's interests to do so. In the end, Mr Watters said that he was prepared to proceed on the basis that counsel at trial had been negligent in not cross-examining LH about her text and Facebook communications with the appellant (appeal ts 13).
129 Mr Scholz, on behalf of the respondent, did not concede that Mr Rice had been negligent in failing to cross-examine R and LH as alleged (appeal ts 15). However, Mr Scholz accepted that there was no relevant difference between ground 3 and ground 3A in terms of what was required to establish a miscarriage of justice in that the issues raised in both grounds ultimately fall to be decided upon a consideration of the new or fresh evidence.
Ground 3 - The new/fresh evidence
130 In support of ground 3, the appellant, by written application dated 27 June 2013, applied, pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA), to admit as evidence in this appeal two affidavits sworn by his solicitor, David Christopher Rice, dated 18 June 2013 and 27 June 2013.
131 Mr Rice's affidavit of 18 June 2013 contains printouts of the text messages (DCR 6) and the Facebook entries (DCR 7) which are referred to in ground 3. The appellant alleges that these communications were written by LH and were sent to the appellant.
132 The text messages are dated between 2 July 2011 and 9 August 2011. The Facebook entries are dated between 4 July 2011 and 19 July 2011. Thus all of the communications were allegedly made after R complained to LH that she had been sexually abused by the appellant.
133 The text messages are numerous. Some refer to the appellant by name. Some are addressed to NL, but appear to have been copied to the appellant.
134 Their content varies. Some are mundane. For example, one dated 9 August 2011 at 2.26 pm reads:
[I] as hospital with asthma again.
135 Another one dated 12 July 2011 at 7.18 pm is in these terms:
Would u b able to sign the kids passport declarations? I get paid 2night and can get them all lodged 2morrow.
136 A significant number appear heartfelt.
137 The text messages featured in the appellant's written submissions are as follows:
1.
|
|
10 July 2011 |
|
10 July 2011 |
|
The reference to 'our loss' is a reference to the miscarriage of a child conceived by the appellant and LH.
- 2. Text message sent on 10 July 2011, apparently to NL and forwarded to the appellant. LH apparently wrote, 'I still love [the appellant] so much. I have hurt him and I am sorry for that'.
3.
|
|
11 July 2011 |
|
4.
|
|
|
|
5.
|
|
|
|
6. Text messages sent on 9 August 2011:
|
|
|
|
|
|
|
|
138 The reference to [I] in these text messages is a reference to the complainant's younger sister.
139 The reference in the second text message to 'our child' is another reference to the child conceived by the appellant and LH that miscarried.
140 The Facebook entries that the appellant emphasised in his written submissions are in these terms:
1. 4 July 2011 - 'what would u like 4 dinner'.
2. 4 July 2011 - '… we woke up in the antartic!!!! my tits got ice bergs on them [sic]'.
3. 5 July 2011 - 'hows Boots??? give him cuddle for me pls, miss his purr purr at night'. ('Boots' is a reference to the appellant's cat.) Later that night, LH said, 'oh well guess boots can snuggle you and keep u warm too'.
4. 5 July 2011 - '… sleep well and sweet dreams xox'.
5. 8 July 2011 - 'take care on the road, thanks for ringing me back, much appreceitated,. You know i still care about you all ♥'.
6. 10 July 2011 - '… U r a great dad and a great person'.
141 Mr Rice did not cross-examine LH about any of the text messages or Facebook entries. In his affidavit of 18 June 2013, he stated that he was unable to recall whether the printouts of the text messages and the Facebook entries were given to him before the trial in respect of R's allegations.
142 Although the text messages were not used in the trial with respect to R, they were used in other proceedings which occurred after that trial.
143 In addition to being charged with offences in respect of R, the appellant was charged that, in July 2011, he sexually penetrated LH without her consent. The State alleged that, on a Saturday afternoon in mid to late July 2011, the appellant went to LH's house and there, against her will, anally penetrated her with his penis. The State's case relied totally upon the truthfulness and reliability of LH's uncorroborated testimony. The defence case was that no act of penetration occurred.
144 The trial with respect to LH commenced in the District Court on 5 March 2013, that is, after the trial with respect to R. Mr Watters, instructed by Mr Rice, appeared as counsel for the appellant. LH was the first prosecution witness. Her cross-examination proceeded in an unconventional manner. Part of the way through her cross-examination, a possible alibi emerged when LH appeared to concede that the offence occurred on Saturday 23 July 2011 (LH trial ts 83). The prosecutor then applied to adjourn the trial to enable the State to investigate the matter. The trial judge eventually granted the application. As LH's evidence had been given via closed-circuit television and thus recorded, it was decided, with the parties' consent, to complete LH's evidence as a pre-recording to be played at a later trial. LH's cross-examination began on 5 March 2013 and extended into 6 March 2013, but was not completed on the third day. On 18 June 2013, LH's cross-examination resumed and was completed.
145 On 5 and 6 March 2013, and on 18 June 2013, Mr Watters questioned LH about the text messages (he did not refer to any Facebook entries). The purpose of this cross-examination was to, in general terms, discredit LH. Mr Watters used the text messages to suggest to LH that:
(a) the appellant was not in the country town on the day LH said the offence had occurred, namely 23 July 2011;
(b) she made up the allegation that she had been sexually assaulted by the appellant because she was 'livid' that the appellant had run off with NL; and
(c) the content of some of the messages sent after the alleged offence was inconsistent with the allegation.
146 LH denied these suggestions. After the proceedings on 6 March 2013 concluded, LH provided the State with her mobile telephone number (ts 137). The State then obtained the call charge records for that number for the period between 1 June 2011 to 30 September 2011 (MFI 7) and disclosed them to the defence. This document records the date and time text messages were sent using LH's mobile telephone number and the mobile telephone number of the recipient. The accuracy of the call charge records is not in dispute.
147 In his cross-examination of LH on 18 June 2013, Mr Watters handed her a copy of the call charge records. He also handed her a printout of the text messages that she had allegedly sent to the appellant. This printout was marked MFI 6 and is the same as DCR 6. Mr Watters then invited LH to compare the two documents. The cross-examination was adjourned for a short time to allow this to happen.
148 LH accepted that the call charge records showed that the text messages contained in MFI 6 were sent from her mobile telephone number to the appellant's mobile telephone number on the date and at the time shown on the printout. However, while she accepted that she sent some of the text messages in the printout, she denied sending many of them. See, for example, ts 148, 149, 150, 151 - 152, 155, 156, 157, 158, 159, 160, 161 and 162. Included in the messages she denied sending were the text messages featured in the appellant's submissions, save for the first two messages dated 9 August 2011. On occasion, LH was unable to recall whether or not she sent a particular message (ts 148, 150, 154 and 155). She suggested that one of the text messages may have been somehow altered by the appellant. She did not know whether anyone else had used her mobile telephone. There is nothing to suggest that the appellant or anyone else on his behalf had access to LH's mobile telephone.
149 On 8 August 2013, the State tendered a notice of discontinuance with respect to the charge relating to LH. The prosecutor informed the court:
The State is presenting a notice of discontinuance because following a review of the evidence after the prerecording of the complainant's evidence on 18 June 2013, the State has formed the view that there are no reasonable prospects of conviction (ts 172).
150 The trial record concerning the alleged offence against LH was not the subject of any written application to admit evidence. However, at the hearing of the appeal, it was agreed by the parties that the transcript of those proceedings, including any exhibits and items marked for identification, could be considered by this court.
151 Subsequently, the court was provided with the transcript of the proceedings relating to LH and all the exhibits and items marked for identification. In addition, with the leave of this court, the parties filed additional written submissions as to the effect of these materials. The appellant's further submissions were filed on 24 October 2013 and the respondent's further submissions were filed on 29 October 2013. In its further submissions, the respondent conceded that this court could receive the trial record concerning the alleged offence against LH (including the exhibits and items marked for identification) as fresh evidence.
The parties' submissions on ground 3
152 Ultimately, the appellant focused its submissions on the effect of the record of the proceedings concerning LH.
153 The appellant submitted that LH was a 'pivotal plank' in the State's case with respect to the allegations made by R. In substance, the appellant contends that, as a result of the subsequent proceedings, LH can no longer be regarded as an honest and reliable witness and that 'serious doubt' has been cast over LH's credibility in the case concerning R. The appellant submitted that the credibility of LH's evidence as to R's complaint, the opportunity the appellant had to commit the offences against R and her denials that she had coached R was seriously undermined in the light of what occurred in the subsequent proceedings.
154 The appellant submitted that the record of proceedings concerning LH was fresh evidence. Although it did not unequivocally establish the appellant's innocence, it raised significant doubt about whether the appellant should have been convicted in respect of the allegations made by R. The appellant contended that his conviction should be set aside.
155 The respondent submitted that, while the evidence of the subsequent trial would have been relevant to the jury's assessment of the credibility of LH had it been before the jury, there is no significant possibility that the jury, acting reasonably, would have acquitted the appellant.
156 The respondent's submissions emphasised the content of the text messages and Facebook entries. It was said on behalf of the respondent that these communications were a reflection of the difficult emotional circumstances that LH faced at the time and were not inconsistent with having been told by R that she had been the subject of sexual abuse by the appellant.
Principles relating to the admission of evidence in an appeal that was not adduced at trial
157 Before considering the relevant provisions in the Criminal Appeals Act concerning the admission of evidence in an appeal that was not adduced at trial, it is necessary to consider the common law principles that apply to such evidence.
158 Evidence that was not produced at trial falls into two broad categories. One consists of evidence which was available at the trial or which could, with reasonable diligence, have then been discovered. The other consists of evidence which either did not exist at the time of the trial or which could not have, with reasonable diligence, have then been discovered. The first category is described as new evidence. The second category is described as fresh evidence: Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154 [204] (Steytler J, as he then was).
159 The unavailability of fresh evidence gives rise to a miscarriage of justice if the appellate court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the evidence had been before it at trial: Mickelberg v The Queen (1989) 167 CLR 259, 273, 275 and 302, and Amiss v The State of Western Australia [2006] WASCA 171 [12].
160 In the case of new evidence, a trial is not unfair and there is no miscarriage of justice simply because evidence which was available to an accused or which may have been discovered with reasonable diligence is not adduced. This is because a criminal trial is an adversarial proceeding in which the parties are free to determine how their respective cases will be run, including what evidence will be adduced and how witnesses will be cross-examined. New evidence will only give rise to a miscarriage of justice if the appellate court is either satisfied that the accused is innocent or concludes that the appellant should not have been convicted: Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510, 517 - 518 (Barwick CJ) and DPJB v The State of Western Australia [2010] WASCA 12 [66] (Owen JA).
161 The distinction between fresh and new evidence is important. Clearly, an appellant faces a higher hurdle in overturning a jury's verdict on the basis of new evidence.
162 I now turn to the statutory provisions in the Criminal Appeals Act which govern the evidence and material that may be considered in a criminal appeal.
163 Section 39(1) of the Criminal Appeals Act provides that an appeal must be decided on the evidence and material that was before the primary court. However, s 39(3) states that subsection (1) does not affect the power of an appeal court, under s 40, to admit evidence. Section 40(1)(e) is in these terms:
40. General powers to deal with appeals
(1) For the purposes of dealing with an appeal, an appeal court may do any or all of the following -
…
(e) admit any other evidence;
165 The discretion to admit evidence not before the primary court is wide and is designed to serve the demands of justice. It is confined only by the subject matter of the legislation and by the requirement that it must be exercised judicially. However, because Parliament conferred an appellate jurisdiction in the Court of Appeal, it is highly unlikely that Parliament intended to abolish the distinction between original and appellate jurisdictions: De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 [150].
166 As Steytler P explained in Rinaldi v The State of Western Australia [2007] WASCA 53, while the common law principles concerning new and fresh evidence are not necessarily determinative of the manner of the exercise of the statutory discretion, the considerations giving rise to those principles will ordinarily be weighty, so much so that it will be a rare case in which an exercise of the statutory discretion produces a different outcome to that produced by the application of the common law principles: Rinaldi [84].
Merits of ground 3
167 By themselves, the text messages and Facebook entries were new evidence. The appellant received them at the time they were sent which, self-evidently, was before his trial in respect of R. Plainly, it was evidence which was available at the trial or which could, with reasonable diligence, have then been discovered.
168 The text messages and Facebook entries show that LH was communicating with the appellant in sometimes intimate terms after it was said R had complained that the appellant had sexually abused R.
169 The fact and nature of the communications appears inconsistent with LH being aware of R's complaint. But, in my opinion, they fall short of establishing that the appellant is innocent or that he should not have been convicted.
170 That is not the end of the matter.
171 As the respondent rightly conceded, the record of the proceedings with respect to LH, which occurred after the trial in respect of R, constituted fresh evidence.
172 In the later proceedings, LH's credibility was seriously impugned having regard to her cross-examination. The degree to which her credibility was impugned is illustrated by the fact that the State was no longer prepared to continue with the prosecution against the appellant on the basis that there was no reasonable prospect of success (ts 172, 8 August 2013). LH's persistent denials that she sent some of the text messages to the appellant flew in the face of the call charge records and were incapable of acceptance. In this court, the respondent did not make any submission to the contrary. In my view, LH's answers in cross-examination show a capacity for dishonesty under oath, particularly in respect of the appellant.
173 The question to be answered is whether this court considers that there is a significant possibility that, in respect of the charges relating to R, the jury acting reasonably would have acquitted the appellant if the jury had been aware of what had happened in the later proceedings.
174 As the respondent acknowledged, the fresh evidence would have been relevant to the jury's assessment of LH's credibility in the trial relating to R. But mere relevance is an insufficient legal basis to uphold ground 3.
175 The jury would have been entitled to convict the appellant on R's testimony alone. Theoretically, it could have rejected LH's testimony, put it to one side and still convicted. However, this ground cannot be resolved on a purely theoretical basis.
176 I have already observed that LH's testimony was important to the State for the four reasons I set out in [102] hereof. LH's testimony was an important plank in the State's case.
177 In my opinion, had the jury been aware of LH's capacity for dishonesty under oath in relation to the appellant, it is likely that the evidence that she gave in the trial relating to R, at least insofar as it related to R's recent complaint, the opportunity the appellant had to commit the offences, her denial that she was aware that R had been seen to insert a pencil in and out of her bottom, and her denials that she had coached R would have been disregarded. Bearing in mind the importance of LH's testimony to the State's case, there is a significant possibility that the jury acting reasonably, having disregarded her evidence, would have acquitted the appellant.
178 For these reasons, I would uphold ground 3.
Ground 3A - The conduct of counsel
179 Having upheld the appeal on the basis of ground 3 and having regard to the unsatisfactory aspect of ground 3A that I have mentioned, it is unnecessary and inappropriate to deal with this ground.
New trial or acquittal?
180 In his amended appellant's case, the appellant did not seek an outright acquittal in the event that his appeal was allowed. Instead, he sought a new trial. In the appellant's latest written submissions filed 24 October 2013, he asserts that judgments of acquittal should be entered.
181 Section 30(5) of the Criminal Appeals Act relevantly provides:
30. Appeal against conviction, decision on
…
(5) If the Court of Appeal allows the appeal, it must set aside the conviction of the offence (offence A) and must -
(a) order a trial or a new trial; or
(b) enter a judgment of acquittal of offence A.
183 Although I have been persuaded that the fresh evidence gives rise to a significant possibility that the jury, acting reasonably, would have acquitted the appellant, that conclusion does not preclude the possibility of a jury, acting reasonably, convicting the appellant on the evidence of R alone. Contrary to the appellant's submission, I do not perceive the evidence of R as being so weak as to justify this court entering a verdict of acquittal.
184 In these circumstances, the appropriate order is for a new trial.
Conclusion and orders on the appeal against conviction
185 Grounds 1 and 2 have no reasonable prospects of success and must be dismissed. I would uphold ground 3 and allow the appeal. It is unnecessary to consider ground 3A.
186 I would make the following orders:
1. The application to adduce evidence in this appeal is granted.
2. Leave to appeal in respect of grounds 1 and 2 is refused.
3. The appeal is allowed.
4. There will be a new trial.
Appeal against sentence
187 In light of the decision to uphold the appeal against conviction, it is unnecessary and inappropriate to deal with the appeal against sentence. In these circumstances, it will be dismissed.
Annexure A
|
|
8:19 am 9 July 2011 |
|
10:55 am 10 July 2011 |
|
3:10 pm 11 July 2011 |
|
5:35 pm 11 July 2011 |
|
12:58 pm 12 July 2011 |
|
8:52 pm 14 July 2011 |
|
9:12 pm 5 August 2011 |
|
9:29 am 9 August 2011 |
|
9 August 2011 |
|
9 August 2011 |
|
2:36 pm 9 August 2011 |
|
9 August 2011 |
|
7:00 pm 9 August 2011 |
|
8:41 pm 9 August 2011 |
|
11
28
3