Smith v The State of Western Australia
[2024] WASCA 52
•14 MAY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SMITH -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 52
CORAM: QUINLAN CJ
MAZZA JA
VANDONGEN JA
HEARD: 10 OCTOBER 2023
DELIVERED : 14 MAY 2024
FILE NO/S: CACR 7 of 2023
BETWEEN: BRADLEY WILLIAM DEREK SMITH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: PETRUSA DCJ
File Number : IND 729 of 2021
Catchwords:
Criminal law - Appeal against conviction - Whether verdict was unreasonable or cannot be supported by the evidence - Whether verdict of guilty of persistent sexual relationship with a child inconsistent with verdicts of not guilty on other charges - Whether trial judge's private communication with the jury occasioned a miscarriage of justice - Application of proviso - Whether retrial should be ordered
Legislation:
Criminal Appeals Act 2004 (WA), s 28(3), s 30(3), s 30(4), s 40(1)
Criminal Code (WA), s 321(2), s 321(4), s 321A
Criminal Procedure Act 2004 (WA), s 88(3)
Evidence Act 1906 (WA), s 106N(3a), s 106R(1), s 106R(4)
Result:
Extension of time granted
Leave to appeal on ground 1 refused
Leave to appeal on ground 2 granted
Leave to appeal on ground 3 granted
Appeal allowed
Judgment of conviction on count 17 set aside
Acquittal ordered on count 17
Category: A
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | K C Cook |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
AJS v The Queen [2007] HCA 27; (2007) 235 CLR 505
Carson (a pseudonym) v The Queen [2019] VSCA 317
Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627
DPJB v The State of Western Australia [2010] WASCA 12
Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199
HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978
Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
NTH v The State of Western Australia [2020] WASCA 22
R v Black [2007] VSCA 61; (2007) 15 VR 551
R v Crowe [1985] 2 Qd R 389
R v Gorman [1987] 2 All ER 435
R v Kashani-Malaki [2010] QCA 222
R v Kirkman (1987) 44 SASR 591
R v Lovegrove [2007] SASC 283
R v Yuill (1994) 34 NSWLR 179; (1994) 77 A Crim R 314
Rabey v The Queen [1980] WAR 84
Russell v Russell [1976] HCA 23; (1976) 134 CLR 495
Smith v The Queen [1985] HCA 62; (1985) 159 CLR 532
Smith v The Queen [2015] HCA 27; (2015) 255 CLR 161
Sturniolo v The State of Western Australia [2023] WASCA 147
Thomas v The Queen (No 2) [1960] WAR 129
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
XBX v The State of Western Australia [2024] WASCA 43
Zagari v The State of Western Australia [2022] WASCA 176
Zhou v The Queen [2021] NSWCCA 278
Table of Contents
Quinlan CJ & Vandongen JA
Grounds of appeal
Application for an extension of time within which to appeal
Section 321A of the Code
Overview of the State case at trial
Prosecution evidence
Complainant's evidence
Other evidence relied on by the State
No case to answer
Defence case
Trial judge's directions
Consideration of grounds of appeal
Ground 1 - Unreasonable verdict
Ground 2 - Inconsistent verdicts
Legal principles
The effect of delay
Merit of ground 2
Ground 3 - Alleged misdirections
Relevant background
Relevant legal principles
Application of relevant principles
Was there a miscarriage of justice?
Should the proviso be applied?
Conclusion on the grounds of appeal
A retrial?
Concluding observations
Mazza JA
Inconsistent verdicts - legal principles
Inconsistent verdicts - the appellant's submissions
Inconsistent verdicts - discussion and disposition
QUINLAN CJ & VANDONGEN JA:
The State in this case alleged that, between late 2008 and the end of 2011, the appellant carried on a sexual relationship with the complainant, who was the daughter of a woman that he had befriended through work. The appellant, who was 27 years of age at the time, first met the complainant in December 2008, when she was just 13 years old. The pair remained in contact after their sexual relationship ended. However, in October 2018, when the complainant was 22 years old, the complainant made a report to police following an argument in which she accused the appellant of sexual abuse. On 5 February 2020, the appellant was arrested and charged with several sexual offences.
The appellant was eventually charged on indictment with 17 sexual offences which were alleged to have been committed against the complainant during the period 10 December 2008 to 9 December 2011. Counts 1 to 16 alleged that on 16 specific occasions the appellant committed either an offence of sexual penetration, or an offence of indecent dealing, of a child between the ages of 13 years and 16 years, contrary to s 321(2) and s 321(4) of the Criminal Code (WA) (the Code), respectively. The appellant was also charged, by count 17, that between 10 December 2008 and 9 December 2011, he persistently engaged in sexual conduct with the complainant, a child under the age of 16 years, contrary to s 321A of the Code.
The appellant was tried in the District Court between 13 and 20 June 2022, before Petrusa DCJ and a jury. Before the jury retired to consider their verdicts, the learned trial judge found the appellant not guilty of two counts of sexual penetration (counts 7 and 11), having reached the conclusion that the appellant had no case to answer on either of those counts. The appellant was found not guilty of the offences charged in counts 1 to 6, counts 8 to 10 and counts 12 to 16, by the unanimous verdicts of the jury. However, the appellant was found guilty of the offence charged in count 17.
The learned trial judge sentenced the appellant to 6 years' imprisonment with eligibility for parole. A lifetime violence restraining order was also made in respect of the complainant.
The appellant, who is self-represented, appealed against conviction, relying on the following three grounds of appeal:
1.The verdict of guilty upon which the conviction was based was unreasonable or cannot be supported having regard to the evidence.
2.The verdict of guilty is inconsistent with the verdicts of not guilty in respect of the 14 substantive charges and gives rise to a substantial miscarriage of justice.
3.The trial judge misdirected the jury on several occasions which led the jury to form incorrect conclusions resulting in a miscarriage of justice.
The hearing of the appeal took place on 10 October 2023. On 27 March 2024, the court made the following orders:
1.Extension of time within which to appeal granted.
2.Leave to appeal on ground 1 is refused.
3.Leave to appeal on ground 2 is granted.
4.Leave to appeal on ground 3 is granted.
5.The appeal is allowed.
6.The judgment of conviction in relation to count 17 in indictment 729 of 2021 is set aside.
7.By 4 pm on 3 April 2024 the respondent is to file and serve any written submissions, not exceeding 3 pages in length, concerning whether the court should enter a judgment of acquittal in relation to count 17 in indictment 729 of 2021 or whether there should be a retrial.
8.By 4 pm on 10 April 2024 the appellant is to file and serve any written submissions, not exceeding 3 pages in length, concerning whether the court should enter a judgment of acquittal in relation to count 17 in indictment 729 of 2021 or whether there should be a retrial.
At the time of making these orders, the parties were informed that the submissions referred to in orders 7 and 8 were to be provided on the assumption that the appeal was allowed only on the basis of ground 3.
Having considered the parties' further submissions, we would not exercise the discretion to grant a new trial. Rather, a judgment of acquittal should be entered in respect of count 17. We would so order.
These are our reasons for joining in the making of all of the above orders.
Grounds of appeal
Underlying all the grounds of appeal is a complaint about what at first glance may appear to be an incongruity between the verdicts of acquittal and the verdict of guilty in relation to count 17. Further, although it is not apparent from the terms of ground 3 itself, in his written submissions the appellant also complains about several aspects of the trial judge's directions to the jury, and takes issue with the fact that her Honour answered a question from the jury, without first inviting submissions from counsel in open court and in the presence of the appellant, and before the jury had reached their verdict.[1]
[1] Appellant's submissions, 11 April 2023, par 3.5; Appellant's submissions, 5 October 2023, pars 32 ‑ 33.
In our view, having regard to the evidence, the verdict of guilty in respect of count 17 was not unreasonable and can be supported. Accordingly, we would not grant leave to appeal in relation to ground 1, and we would dismiss that ground.
Although the issues raised in connection with ground 2 have given us significant pause for thought, we are ultimately satisfied that the different verdicts are capable of rational explanation and are therefore not relevantly inconsistent. While we would grant leave to appeal in relation to ground 2, we would also dismiss that ground.
However, we are of the view that ground 3 is made out, in part, and that the appeal should be allowed on that basis. There was a miscarriage of justice because the appellant was denied procedural fairness when the learned trial judge answered a question from the jury without first seeking submissions from counsel in open court and in the presence of the appellant. Further, in all the circumstances we would not apply the proviso in s 30(4) of the Criminal Appeals Act 2004 (WA).
As we have said, we are also of the opinion that this court should exercise its discretion to set aside the conviction for the offence charged in count 17 and enter a judgment of acquittal.
Application for an extension of time within which to appeal
The appellant was just under 5 months out of time when he filed his Notice of Appeal on 18 January 2023. Accordingly, the appellant requires an order under s 28(3) of the Criminal Appeals Act that there be an extension of time within which to appeal. The appellant's application for an extension of time was referred to the hearing of the appeal.
We would grant the appellant an extension of time in which to appeal.
Section 321A of the Code
As we have noted, the appellant was convicted of an offence contrary to s 321A of the Code. Section 321A provides as follows:
321A. Child under 16, persistent sexual conduct with
(1)In this section –
prescribed offence means -
(a)an offence under section 320(2) or (4) or 321(2) or (4) or an attempt to commit such an offence; or
(b) an offence under section 320(3) or 321(3) where the child in fact engages in sexual behaviour;
sexual act means an act that would constitute a prescribed offence.
(2) For the purposes of this section a person persistently engages in sexual conduct with a child if that person does a sexual act in relation to the child on 3 or more occasions each of which is on a different day.
(3) For the purposes of subsection (2) -
(a)the sexual acts need not all constitute the same prescribed offence; and
(b) the sexual acts need not all have occurred in this State as long as at least one of them did.
(4) A person who persistently engages in sexual conduct with a child under the age of 16 years is guilty of a crime and is liable to imprisonment for 20 years.
(5) A charge of an offence under subsection (4) -
(a)must specify the period during which it is alleged that the sexual conduct occurred; and
(b)need not specify the dates, or in any other way particularise the circumstances, of the sexual acts alleged to constitute the sexual conduct.
(6) A person charged with an offence under subsection (4) may also be charged, either in the same or a separate indictment, with a prescribed offence that is alleged to have been committed in the period during which it is alleged that the sexual conduct constituting the offence under subsection (4) occurred.
(7) An indictment containing a charge of an offence under subsection (4) must be signed by the Director of Public Prosecutions or the Deputy Director of Public Prosecutions.
(8) A court cannot order the prosecutor to give a person charged with an offence under subsection (4) particulars of the sexual acts alleged to constitute the offence, despite section 131 of the Criminal Procedure Act 2004.
(9) It is a defence to a charge of an offence under subsection (4) to prove the accused person -
(a) believed on reasonable grounds that the child was of or over the age of 16 years; and
(b) was not more than 3 years older than the child.
[(10) deleted]
(11) If in a trial by jury of a charge of an offence under subsection (4), there is evidence of sexual acts on 4 or more occasions, the jury members need not all be satisfied that the same sexual acts occurred on the same occasions as long as the jury is satisfied that the accused person persistently engaged in sexual conduct in the period specified.
(12) If an accused person is found not guilty of a charge of an offence under subsection (4), he or she may nevertheless be found guilty of one or more prescribed offences committed in the period specified in the charge if the offence or offences are established by the evidence, despite section 10A.
(13) If a person is sentenced, whether on one or more than one indictment, to -
(a) a term of imprisonment for an offence under subsection (4); and
(b) a term of imprisonment for a prescribed offence committed in the period during which the offence under subsection (4) was committed, the court must not order the terms to be served wholly or partly cumulatively.
As we will explain in more detail, at the start of the appellant's trial, the prosecution case in respect of count 17 was that the appellant did a sexual act, which would have constituted an offence of indecent dealing of a child of or over the age of 13 years and under the age of 16 years under s 321(4) of the Code or an offence of sexual penetration of a child of the same age under s 321(2) of the Code, on three or more occasions, each of which was on a different day.
Overview of the State case at trial
Shortly before her 13th birthday in December 2008, the complainant emigrated from New Zealand to live with her mother at a house on Fisher Street in Cloverdale (Fisher Street). The appellant and the complainant's mother were good friends, and he soon met the complainant after she had arrived in Perth.
The State alleged that in early 2009, before the complainant had commenced year 9, the appellant arrived at the Fisher Street address while the complainant was home alone. When the complainant let him inside the house, and while she was walking down a hallway back towards her bedroom, the appellant suddenly pushed her against the wall and kissed her on the lips.[2] The prosecution case was that over a three‑year period from this time onwards, the appellant and the complainant were in a sexual relationship.
[2] This incident was the subject of count 1 on the indictment.
At the appellant's trial, the complainant gave specific evidence of numerous occasions on which sexual activity had taken place between them. The complainant also gave more general evidence that they had regularly engaged in sexual intercourse.
Prosecution evidence
Complainant's evidence
The complainant was born in New Zealand on 10 December 1995. Her parents separated when she was about 6 years of age, and her mother moved to live in Perth while she remained in New Zealand. In late 2008, shortly before her 13th birthday, the complainant moved to Perth to live with her mother at Fisher Street. She commenced year 9 in January or February of 2009.
The appellant befriended the complainant's mother, as they worked together. The complainant met the appellant shortly after she moved to Fisher Street, when her mother invited him to their home. The complainant assumed that the appellant was approximately 21 or 22 years of age at that time.
The complainant's mother was a shift worker who would work both day and night shifts. She had some close friends who would drop in and check on the complainant while she was at work, including the appellant.
According to the complainant, the appellant came to Fisher Street a couple of times a week while her mother was at work. On one of those occasions, at night, the appellant drove the complainant to a Hungry Jack's restaurant. When they returned from the restaurant, the complainant told the appellant that she thought he was cute. The appellant then sat down next to the complainant on a couch and told her that he thought she was quite attractive as well but that nothing could happen because she was so young.
The complainant was asked to describe the house at Fisher Street. After describing the layout of the house, the complainant was shown a sketch of part of the house that she prepared when she was interviewed by police in 2019. A copy of that sketch was tendered and became exhibit 1. The complainant was also shown a series of four photographs which depicted the front of the house as well as various rooms within it. She was also shown a floor plan of Fisher Street and was asked to identify a number of rooms shown in that plan, including her bedroom.
The complainant then gave evidence that the appellant once again visited her at Fisher Street during the day, around the time she had started school in year 9. The complainant said it was a weekend and that her mother, who was working, had asked the appellant to drop in to check on her. She said that when the appellant arrived, he told her that he had forgotten a pen on his way to work and so she let him inside. As she was walking towards her bedroom to get him a pen, the appellant grabbed her, pushed her up against the wall and kissed her on the lips. She said that his hands were on her waist and that her hands were on his shoulders. She said that the appellant left very soon after, and she distinctly remembered that she never actually got a pen for him. This incident was the subject of count 1 on the indictment.
The complainant said that after this incident, the appellant visited her at the house at Fisher Street while her mother was at work quite often. She said there would be physical interaction between them on these visits, including hugs and kisses on the cheek, which would take place in the lounge room.
The complainant said that she recalled a specific occasion around this time when her mother was at work during the day and she and the appellant were lying on the lounge room floor, watching television. She said that they had 'started fooling around on the floor and pretty much grinding and dry humping.' She explained that they were fully clothed and that at times, she was on top of the appellant, and at other times, he was on top of her. She said that she remembered that the appellant had an erection because she could feel it through their clothing and because the appellant had been forcibly pressing his penis up against her vagina. This incident was the subject of count 2 on the indictment.
After giving this evidence, the complainant explained that she had engaged in similar conduct with the appellant on a different day in a bushland area just up the road from the Fisher Street address. She said that as she and the appellant were walking through the bushland area one afternoon, they talked about having sex. Although they did not at this stage engage in sexual intercourse, the complainant said that they did end up on a park bench. She said that the appellant was on top of her, and she could feel his erect penis through their clothing while his body was moving in a 'grinding motion'. The complainant was asked to identify the location in which she said this incident took place by reference to a series of photographs taken by police in 2019. This incident was the subject of count 3 on the indictment.
The prosecutor then asked the complainant some questions about whether she had made any friends when she started year 9 in 2009. The complainant said that she made one friend, MT. She said that while MT did visit her at Fisher Street, she never visited when the appellant was there.
The complainant's brother was born in June 2009. By that time, the complainant and her mother had moved from Fisher Street to a house on Western Avenue in High Wycombe (Western Avenue). The Western Avenue address was owned by the appellant's parents. The appellant also moved there to live with the complainant and her mother.
While they were all relocating from Fisher Street, the appellant and the complainant were alone at Western Avenue, moving some boxes. The complainant's mother was still at Fisher Street, cleaning for the final inspection. The complainant gave evidence that when she and the appellant were in her mother's new bedroom, they lay down on her mother's bed. She said that the appellant was on top of her '[a]gain grinding, dry humping'. They were both clothed, but she could feel the appellant's erect penis on her vagina area as he was forcibly rubbing against her. They were both touching each other above their clothing and kissing. This incident was the subject of count 4 on the indictment.
The complainant gave evidence that the appellant worked in customs at the airport when she lived at Fisher Street. She said that by the time they had moved to Western Avenue, the appellant had finished working there and was working as a transit guard.
The complainant said that the appellant would sometimes drive her to school in Belmont. She said that she also used to see him within school hours, usually on the school perimeter. The complainant said that these were planned meetings which were arranged via text messages. She said that the appellant would bring her things including money for lunch, or food and drink, and cigarettes. He would also sometimes bring her credit for her mobile telephone. This all occurred after the complainant had moved to Western Avenue. However, she also remembered that on a particular occasion, while they were still living at Fisher Street, she came home one day and found that the appellant had bought her a CD as a gift.
The complainant was asked to describe the layout of the Western Avenue address. She explained that her bedroom was in between her mother's bedroom and the appellant's bedroom. She said that she shared a bedroom wall with her mother and another bedroom wall with the appellant. She was shown a series of photographs which showed both external and internal aspects of the house, including the three bedrooms.
The complainant said that on some occasions she would be home alone with the appellant, while on others she would be at home with both her mother and the appellant. When her mother was home, the complainant would wait to hear her snoring before emerging from her bedroom and making her way into the appellant's bedroom. She explained that it was on one of the first occasions that she went into the appellant's bedroom that they had sexual intercourse for the first time. She said that she was hesitant but that she agreed. The appellant put his penis inside her vagina for a very short period of time before she told him that it hurt and returned to her bedroom. This incident was the subject of count 5 on the indictment.
The complainant was then asked to describe the next incident that she could remember. She said that about a week later, during the night, she again waited for her mother to fall asleep before going into the appellant's bedroom. She and the appellant had a further discussion about whether they should again attempt to engage in sexual intercourse. The complainant agreed, on the condition that the appellant used a condom and that he was gentle. According to the complainant, the appellant put a condom onto his penis before inserting it into her vagina. They then engaged in sexual intercourse for about five minutes until the appellant said that he had ejaculated. The complainant said that at that time, she was still in year 9 at school. This incident was the subject of count 6 on the indictment.
The complainant was sometimes required to look after her baby brother while her mother went out. She said there were occasions on which she would be asked to babysit her brother when the appellant was also at Western Avenue. They would use this as an opportunity to spend time together, hanging out in the lounge room. The prosecution alleged in count 7 on the indictment that on a date unknown between 10 December 2008 and 9 December 2009 at Western Avenue the appellant again sexually penetrated the complainant by inserting his penis into her vagina. However, the complainant did not give any evidence in support of this count. Her evidence was that while she could remember a lot of touching and kissing, she could not remember if they had sex that day or not.
The prosecutor then asked the complainant how frequently she and the appellant were having sexual intercourse, and the complainant gave the following evidence before the court adjourned for a break:[3]
All right. Can I ask you moving forward from this time how frequently were you and the accused having sexual intercourse? Penis and vagina?---Lots.
Well, I – how often?---Three times a week.
Where and when?---It was always in his bedroom late at night, after mum had gone to sleep.
[3] ts 90.
This evidence assumes some significance in the context of count 17 and the grounds of appeal.
When the complainant resumed giving evidence, she said that she remained friends with MT after she moved to Western Avenue, and that MT would visit her at that address. She said that MT would visit during the day and sometimes also stay overnight. The complainant said that on one occasion, she and MT went into the appellant's bedroom at night. She said that she did not have sex with the appellant on this occasion. She explained that she and MT both got into bed with the appellant, one on either side of him, and they 'just [had] a cuddle and talked'. The complainant also said that she had never gone into the appellant's bedroom at night on her own when MT had slept over at Western Avenue.
The complainant was then asked whether she used contraception when having sexual intercourse with the appellant at Western Avenue. The complainant said that while she did not use any contraception herself, the appellant used a condom every time.
The complainant then gave evidence that her 14th birthday was in December 2009. She said that by this stage she was living at an address in Hannans Street, Morley, in a small complex of houses (Hannans Street). She said that she and her mother had moved there about four months before her 14th birthday, and that they had not stayed at Western Avenue for very long after her brother was born. She explained that her brother's first Christmas was at Hannans Street, and that they only lived at Western Avenue for about six months.
In early 2010, the complainant was enrolled at a different school in Morley, and she completed year 10 there.
The appellant remained living at Western Avenue after the complainant and her mother moved to Hannans Street. However, the complainant visited Western Avenue on multiple occasions. Either the appellant would take the complainant there or the complainant would visit with her mother. The complainant said that there were occasions when she was alone with the appellant at Western Avenue. She also said that the appellant would frequently visit Hannans Street.
The complainant said that she remembered one incident that occurred when she was alone with the appellant at the Western Avenue address, after she had moved to Hannans Street. She said it was during the day and that by this time, the appellant had moved into her mother's former bedroom. They were on his bed and fully clothed to begin with, however, they ended up naked and the appellant inserted his penis into her vagina. The complainant said that when the appellant had taken his penis out of her vagina, the condom came off inside her vagina. She said that she then lay on the appellant's bed with her legs up as he used his fingers to retrieve the condom from her vagina. She said that she felt very uncomfortable. This incident was the subject of count 9 on the indictment.
At this point in the trial, the complainant had not yet given evidence in support of count 8 on the indictment. The complainant said that by this stage, penile-vaginal intercourse was the only penetrative sexual conduct she had engaged in with the appellant. She then recalled that a different incident took place on an unspecified day at Western Avenue in the appellant's bedroom, when the complainant was living at Hannans Street. She said that this was the first time that the appellant had used his mouth on her vagina. She said that he used his lips and his tongue, and that his tongue went inside her vagina. However, she was unable to say whether this had occurred before or after the occasion on which the condom had come off. This incident was the subject of count 8 on the indictment.
The complainant was asked whether there were any occasions when she had been alone with the appellant at Hannans Street. She said that she had a couple of particular memories, including one where the appellant was sitting on the couch. He had taken off his pants and had asked the complainant to give him a 'blow job'. This was at night, and her brother was asleep in their mother's bedroom. The complainant explained that her mouth went onto the appellant's penis but that it was not there for a very long time. Once she had taken her mouth away from him, the appellant 'sat on the couch and proceeded to finish himself off.' This incident was the subject of count 10 on the indictment.
The complainant did not give any evidence in support of count 11, although that incident was alleged to have occurred at the same time as the incident the subject of count 10.
The prosecutor reminded the complainant that she had already given evidence that she was having sex 'multiple times each week with the accused when [she was] living at Western Avenue'. The complainant was then asked whether she ever had sex with the appellant when she was menstruating. She said that there was one particular incident while she was living at Hannans Street when the appellant had been asked to babysit the complainant and her brother, and the appellant suggested that he and the complainant try anal sex because she was menstruating. Although she was nervous, the complainant agreed. She said that the appellant had put a condom on and she was on her hands and knees in her bedroom, but the appellant never went on to penetrate her because she changed her mind. The complainant gave evidence that she could feel the appellant's penis on her bottom but that it never entered her anus. This incident was the subject of count 14 on the indictment.
The complainant told the jury that by this stage, she was using contraception. She said that after the incident at Western Avenue when the condom had come off, she realised that because of her age and her menstrual cycles there was a chance that she could get pregnant. She lied to her mother and told her that her periods had become irregular and that she wanted to see a doctor to receive some form of contraception in order to regulate them. She then received contraception via an injection.
The complainant was asked by the prosecutor whether she had made any new friends at school. She gave evidence that one of her main friends was KG, who was the same age and in the same year as her. The complainant said that she would socialise with KG outside of school 'everywhere and anywhere', and on some occasions, the appellant was also present.
The complainant said that there was a time when she, the appellant and KG were together at a place called Sandy Beach in Bassendean, which was a part of the Swan River 'down the road from the Bassendean shops'. She explained that it was a big, open, grassed area with a toilet block and a playground, and that she had been there with the appellant and KG on a few occasions, mostly at night. She said that on one night, they were sitting in the appellant's car together, drinking, smoking cigarettes and talking. At one point, KG went for a walk, although the complainant was not sure why. While KG was away from the car, the complainant and the appellant had sex. She explained that the appellant was sitting on the back seat, that she was straddling him, and that he had put his penis in her vagina. This incident was the subject of count 12 on the indictment.
The prosecutor showed the complainant two photographs taken by police in 2019. The complainant gave evidence that the photographs showed part of the Sandy Beach Reserve in Bassendean, including the carpark where the appellant's car was parked at the time the incident the subject of count 12 took place.
The complainant gave evidence that the appellant later moved from Western Avenue to a large house in Thornlie that had three bedrooms, a theatre lounge, and big living areas (Tuart Court). The appellant lived there with his friend, SG. The complainant said that there was a particular occasion that she recalled being in that house with just the appellant and her friend. She said that the appellant had picked her and her friend up in Morley and taken them to the house. SG was not home, and she had asked to see SG's bedroom because she was intrigued to see a bedroom with an ensuite which was not separated from the bedroom by a wall. Once in the bedroom, the complainant and the appellant had sex while her friend waited in the theatre lounge. This incident was the subject of count 13 on the indictment.
Once again, a series of photographs were shown to the complainant. Those photographs depicted the Tuart Court address, including the bedroom in which the complainant said that she had sex with the appellant.
The complainant said that in early November 2010, shortly before her 15th birthday, she and her family moved to an address at Ranmore Way in Morley (Ranmore Way). She gave evidence that she never had sex with the appellant in that house, and that it always took place in the appellant's car. She said that after she had turned 15 years old, but before she had returned to school in 2011, she and the appellant went to a carpark area at the foreshore of the Swan River in South Perth, which looks out over the city. She said that it was quite late at night and that they had sexual intercourse in the back of the appellant's car. She explained that the appellant was underneath her while she was on top of him, and that he had inserted his penis into her vagina. This incident was the subject of count 15 on the indictment.
A photograph that was taken by police in 2019 of the carpark the complainant had described in her evidence was tendered.
The prosecutor then asked the complainant about her friendship with KG in late 2010. The complainant confirmed that KG was still a friend of hers at that time, that she had a boyfriend and that they all went to school together. She said that there was one occasion, around the same time as the incident the subject of count 15, that she spent the night with the appellant, KG and KG's boyfriend, at a motor lodge on Great Eastern Highway. She said she did not remember the name of the lodge but that it was on the Great Eastern Highway, very close to Belmont.
The complainant said that they stayed in a small room that had two separate bedrooms, a small kitchen and a small lounge. She recalled that they had gone down to the pool quite late at night for a swim. She explained that once KG and her boyfriend had gone into their room, after a night of drinking, she had sex with the appellant in their own room.
This incident was the subject of count 16 on the indictment.
After the complainant had given evidence about count 16, the learned trial judge adjourned proceedings and the complainant was required to return the following day to resume her evidence in chief. After the jury had retired, her Honour asked the prosecutor to clarify the basis upon which the prosecution alleged that the appellant had persistently engaged in sexual conduct with the complainant for the purposes of count 17 on the indictment. In particular, the trial judge asked if the State was relying only on the acts the subject of counts 1 to 16 on the indictment as the acts constituting the alleged persistent engagement in sexual conduct. The prosecutor responded as follows: [4]
No. The State for that does seek to rely upon the evidence the witness has given about other occasions when she was having sex with him on a regular basis.
[4] ts 113.
When the complainant returned the following day, the prosecutor sought to clarify her evidence about the frequency of her sexual encounters with the appellant:
You gave evidence yesterday about how frequently you and the accused were having sex - - -?---Mm.- - -
When both of you were living at Western Avenue?---Yes.
What about after you moved to Hannans Street?---Mm hmm.
How frequently were you having sex with him then?---It was still around the - the three times a week, it just wasn't as often at the house. When we were having sex, it was out of the house, either at his house or in his car.
And for how much of the time when you were living at Hannans Street did that frequency of sex continue? Was it the same right through, or did it change at some stage?---No. It was the same right through.
Can you think of any of the places where you'd have sex with him in the car during that time you were living at Hannans Street?---Not really, no.[5]
[5] ts 117 ‑ 118.
The complainant was then shown a series of photographs depicting the house at Hannans Street, before they were tendered in a bundle as exhibit 9. The complainant was also shown floor plans of the houses at Hannans Street and at Tuart Court, and they were tendered as exhibits 10 and 11, respectively.
The prosecutor asked the complainant questions that established that she had little contact with both MT and KG since finishing school, before moving on to conclude the examination in chief with evidence about the complainant's movements since 2011. In that regard, the complainant said that the sexual relationship between her and the appellant ended in early 2011, around the time she began a new relationship. The complainant said that she then moved from Perth to Albany in 2012, where she stayed with her mother and boyfriend. She said that she would still see the appellant while she was living in Albany. The complainant's mother moved back to New Zealand in early 2014, and the complainant joined her there in mid‑2015. Soon after, the complainant had a daughter. Her mother again returned to Australia, and in July 2018, the complainant also returned. She lived with her mother at a house in Ellenbrook, and she would see the appellant at that house. Later that year, the complainant moved into a house in Baldivis where the appellant lived with his parents. The appellant and the complainant then moved to another house nearby, where they lived for about two weeks, before the complainant then moved back in with her mother.
The complainant said that she went to the Midland police station in October 2018 and made a report about the appellant and the sexual activity that they had engaged in while she was a child.
The appellant's counsel cross-examined the complainant. It is unnecessary to summarise that cross-examination in full. The complainant agreed that the evidence she had given about specific occasions on which she had engaged in sexual activity with the appellant were the instances that stuck out in her memory very clearly, and that she had described all the detail that she could recall about those incidents.
The complainant told the jury that she gave a lengthy statement to police and that the process of providing that statement had taken about six weeks, during which she had six approximately hour-long sittings with the investigating police officer. The complainant was also cross-examined about relatively minor inconsistencies between what she had said in that statement when compared with some of her evidence at the trial. For example, the complainant agreed that when she had previously spoken about an occasion when she had gone with the appellant to a bushland area in Belmont, she had said that the appellant had driven her there, whereas in her evidence she had said that they had walked.
Counsel also cross-examined the complainant with a view to supporting the defence case that the appellant did not have sufficient opportunity to offend against her. In that regard, the complainant was questioned about the presence of other people at the addresses she had mentioned in her evidence in chief, including the appellant's stepbrother, who had been in a relationship with the complainant's mother, and other adults who would socialise with her mother. The complainant was also asked about the appellant's frequent use of alcohol and his tendency to pass out after regular drinking sessions, and she was asked questions with a view to establishing that it was unlikely that sexual activity was occurring at Western Avenue, particularly when the complainant's mother was home.
Counsel suggested to the complainant that she never confessed that she had a crush on the appellant, that the appellant had never kissed her at her home when he came to check on her while her mother was at work, and that none of the sexual conduct that she said she had engaged in with the appellant had ever occurred. However, the complainant maintained that the evidence she had given about her relationship with the appellant was true.
Counsel asked the complainant questions about her move to Albany. The complainant agreed that she had occasional contact with the appellant while living there. She also agreed that she had asked the appellant to sell her car for her and to transfer the proceeds to her when she was in New Zealand. She accepted that she had kept in contact with the appellant while she was in New Zealand through Facebook Messenger. She agreed that after returning to Perth, she had a falling out with her mother and went to live with the appellant in two different houses in Baldivis for a short period of time before returning to her mother's house.
The complainant essentially agreed that she accused the appellant of sexual abuse during an argument which followed a dispute about money which involved the appellant's stepfather. She said that on 12 October 2018 she attended at the Midland police station to make an initial report. The cross‑examination of the complainant about that report, and the complainant's subsequent interactions with police, is referred to in more detail later in these reasons in the context of our consideration of ground 2.
The appellant's counsel suggested to the complainant that although she had been to the various places that she said sexual activity took place between herself and the appellant, no sexual activity ever occurred. The complainant denied that suggestion.
The complainant was re-examined. The evidence that she gave in re‑examination is referred to in more detail later in these reasons.
Other evidence relied on by the State
The complainant's mother
The complainant's mother gave evidence about her relocation to Western Australia from New Zealand in 2000 after she separated from the complainant's father, and about the complainant joining her in Perth in 2008. She then gave evidence about the various places where they lived together while in Perth, the circumstances of her employment, and about her relationship with the appellant. She described that relationship as 'really close friends'.
The complainant's mother confirmed that between December 2008 and late January 2009, when she was working full-time, she would leave the complainant at home and arrange for friends to check on her to make sure that she was alright. She also confirmed that she asked the appellant to do this on occasions, and that he did. The complainant's mother also gave evidence that she is a heavy sleeper and that she has been told before that she snores loudly.
MT
MT was one of the complainant's school friends. She said that she had frequently visited the house the complainant was living in Belmont[6] and that she had met the appellant at that address. She said that she recalled seeing the appellant often, and that she would also see him at the shops and at their school.
[6] Presumably this was intended to have been a reference to Fisher Street, which is close to the suburb of Belmont.
MT recalled that when she had gone to the shops with the complainant and the appellant, she noticed that they would interact with each other like a couple would. When asked to explain what she meant, MT said that she saw them holding hands, kissing and hugging each other.
MT also saw the appellant at the school she attended with the complainant, often in the school carpark. She said that she saw the appellant bring the complainant things like lunch and cigarettes. She also said that the appellant and the complainant would quite often give each other hugs and kisses, and they would say 'I love you'. She recalled that on one occasion, the appellant came to the school and gave the complainant a pregnancy test, after which she and the complainant went to the school toilets and the complainant went into a toilet stall.
When she was asked by the prosecutor if she recalled any other houses that the complainant lived in that she had visited, MT recalled one that was near their school, which had a sliding door in the lounge room area. She said that she also visited that house frequently and that she had stayed there overnight on several occasions. She said that in addition to the complainant, the complainant's mother, baby brother and the appellant also lived there. She said that the appellant had his own bedroom, which was situated next to the complainant's bedroom.
On one occasion while she was sitting on the couch in the lounge room at that address, MT saw the complainant and the appellant sitting on the floor in front of her. MT said that she saw the appellant rub his foot up against the complainant's 'private area'. She also said that when she stayed overnight at that address, the complainant would sometimes leave the bedroom in which they were sleeping and then return later during the night. She recalled that after the complainant had left the bedroom she could hear moaning noises coming from the appellant's bedroom. She said that she could tell it was a female voice, and that it was 'sexual sort of noises.'
MT described another occasion on which she was at the complainant's home at night. She said that the complainant told her that the appellant would enjoy it if they both went into his bedroom wearing skirts. When they put on skirts and went into the appellant's bedroom, they joined the appellant on his bed and she saw the complainant and the appellant kissing. She said that the appellant then turned to her and started to kiss her neck, before he put his hands over and then under her underwear, and inserted his fingers into her vagina. MT said that she pushed the appellant's hand away because she felt uncomfortable, and she then left the bedroom. She remembered that before she left the room, she noticed that the appellant was not wearing any underwear.
After they left school, MT and the complainant kept in contact for a little while, but had only had contact with each other on about two occasions in the 10 years before the date MT gave evidence.
In cross-examination, MT maintained that she had seen the appellant kissing the complainant in the school carpark on more than one occasion. She also maintained that the appellant brought the complainant lunches, cigarettes and money during school hours, and that she had seen them act like a couple while in the school carpark and at the shops. She said that she had truthfully and accurately given evidence about what had happened in the appellant's bedroom when the three of them were on his bed.
KG
KG was one of the complainant's schoolfriends. She met the complainant in 2010 when they were both in year 10. She said at that time, the complainant was living with her mother and brother at a unit in Morley. After becoming friends with the complainant, KG met the appellant at the complainant's home.
KG gave evidence that towards the end of 2010, or at the beginning of 2011, she travelled in the appellant's car, together with the complainant, the appellant and her boyfriend at the time, to a hotel in Belmont that was situated on the same road as the Burswood Casino. She said that the hotel was called Ritcher Lodge.
She gave evidence that the four of them stayed overnight in a room at the hotel. The complainant and the appellant were in one bedroom, while KG shared the other bedroom with her then boyfriend. The four of them spent the evening using the hotel's facilities and socialising together in the hotel room. At one point during the evening, while they were drinking alcohol and socialising in the lounge room, the complainant and the appellant went into their bedroom, and KG could hear the complainant making moaning noises and the sound of a bed moving.
KG said that she went to other places with the appellant, in particular the local park, Bassendean Reserve. She recalled going there in the appellant's car together with the appellant and the complainant on more than one occasion in 2010. They would socialise there together and smoke cigarettes. On occasions, the complainant and the appellant would get out of the car and leave KG on her own for short periods of time. She also said she had seen the complainant and the appellant enter the toilet block at the Bassendean Reserve together. She did not recall any occasion on which she had left the complainant and the appellant alone in the car together.
When KG was shown a photograph (exhibit 6.1), she confirmed that it depicted the area she had called Bassendean Reserve. The photograph included an image of a sign that read 'Sandy Beach'.
KG confirmed that she had seen physical interaction between the appellant and the complainant on various occasions. She said that she had seen them holding hands, as well as kissing and hugging. This happened while they were in the car or in places that they would go to together, including where the appellant worked at the Morley Bus Station and at his home in Belmont.
KG gave evidence that she did not see much of the complainant in 2011 and had only limited contact with her in the 10 years leading up to the commencement of the trial.
In cross-examination, the appellant's counsel tested KG's memory about the reserve that she had visited with the appellant and the complainant. However, although KG confirmed that she could not specifically say where that reserve was located, she was sure that the photograph she had been shown by the prosecutor depicted the place that she visited.
KG was asked whether she was able to be more specific about the occasion on which she said she stayed at a hotel overnight. She confirmed that it was either at the end of 2010 or the beginning of 2011, but that she could not be more specific. She also agreed that she could not be specific about the name of the road on which the hotel was located.
The appellant's counsel asked KG questions about the occasions on which she and the complainant had met with the appellant whilst he was at work at the Morley Bus Station and at the train station. When KG was challenged about the accuracy and truthfulness of her evidence, she confirmed that she had seen the appellant and the complainant kissing each other on the lips and hugging each other at the Morley Bus Station while the appellant was at work, and that they had stayed at a hotel together.
Detective Senior Constable Gavin Abbott
Detective Abbott was a police officer with WA Police in 2019. He confirmed that police received a report from the complainant on 12 October 2018, and that the original investigating officer was named Dianne Fay Duncan. He said that Ms Duncan was no longer a member of the WA Police.
According to Detective Abbott, there was a delay between when police received the complainant's initial report and the commencement of the investigation in June 2019, when Officer Duncan met the complainant and commenced interviewing her.
Detective Abbott was shown a series of photographs and floor plans that had already been tendered as exhibits during the trial and he confirmed that they were obtained in the course of the police investigation. He also gave evidence that the appellant was arrested on 5 February 2020 and that he was formally charged later that day.
In cross-examination, after being asked a series of questions about several security officer licenses held by the appellant, Detective Abbott gave evidence about enquiries that were made concerning the appellant's work records during the period of time in which the complainant alleged the offences had occurred, and several employment records were tendered as exhibits.
No case to answer
At the conclusion of the State case, the prosecutor conceded that the appellant had no case to answer on counts 7 and 11 in the indictment. The learned trial judge accepted the prosecutor's concession, found the appellant not guilty of those offences and discharged the jury from being required to give verdicts on those counts.
Defence case
The appellant
The appellant gave evidence at his trial.
He gave detailed evidence about his employment history and working conditions, including evidence about his working hours when he was employed with the Public Transport Authority, and when he was employed by a security firm to work at Perth International Airport.
The appellant gave evidence about the various addresses at which he had lived at relevant times and explained that he first met the complainant's mother on a training course in or about 2007 or 2008. He began socialising with the complainant's mother and other work colleagues, all of whom were employed by a security company. He said he would frequently visit the complainant's mother when she was living at Fisher Street, as it was a place where he and others would meet to socialise and drink. The appellant said he would frequently drink to excess when visiting the complainant's mother at the Fisher Street address, and that when he did so he would pass out on the lounge room floor or on a couch. The appellant told the jury that at some stage the complainant's mother told the appellant the complainant was arriving in Western Australia and the appellant first met the complainant a short while later.
The appellant explained that he moved into a house his parents owned in Western Avenue with the complainant, her mother and the appellant's stepbrother. The complainant's mother and his stepbrother were in a relationship at the time. The appellant said the four of them did not live at that address for very long.
The appellant was asked questions by his counsel about the day he moved into the Western Avenue address. The appellant explained that his stepfather rented a truck, which he used to move his and the complainant's mother's belongings. The appellant said it took a whole day to move all of the belongings. The appellant was asked about the complainant's allegation that he had indecently dealt with the complainant on her mother's bed in her new bedroom while they were in the process of moving into the Western Avenue address. The appellant denied the allegation and said that it could not have occurred because the complainant's mother's bed had not been assembled at that time.
The appellant described the living situation at Western Avenue by referring to the fact that the complainant's mother had a new baby at that time, who would cry and wake up in the middle of the night. According to the appellant, this meant that the complainant's mother would need to get up at times during the night to feed the baby and to nurse him. The appellant also said that he was drinking to excess at that time and that he would regularly pass out at night.
In relation to his interactions with the complainant at that address, the appellant gave evidence that they would watch television, play video games and listen to music together. He said he might see her when she came home from school when he was on the way to work, but said that he did not recall ever being asked to check up on the complainant while she was at home alone.
The appellant explained that his employment changed while he was living at Western Avenue. He said that he became employed by another security company and worked as a transit officer on the buses. The appellant then gave lengthy and detailed evidence about his working hours, including by reference to exhibit 18, the appellant's Public Transport Authority roster records. It is unnecessary to summarise all the appellant's evidence in this respect. The overall effect of that evidence was that the appellant worked shifts, and would work at bus stations, on bus port duties, in patrol vehicles and on emergency response duties. He said that he would always wear a uniform identifying him as a transit guard, and that he would work in pairs. The appellant also gave a detailed explanation about various entries that appeared in exhibit 18. The appellant stopped working regularly as a transit guard in or around August or September 2011.
The appellant accepted that he was not working every day. He said that on the days he was not working he would spend time with friends and family, would watch television and play video games, and he would drink.
The appellant denied that he would visit the complainant at her school, and he denied that he would give her lunch and kiss her at the school carpark. He said that the complainant's evidence that he would visit her while he was on bus routes was wrong because that would not have been possible. He said that he was always working with someone and that questions would have been raised if that had happened.
He agreed that after the complainant and her mother moved out of Western Avenue, he would still visit them occasionally on his days off. However, he denied that he would visit them all the time. He agreed that when he visited the complainant's mother at Fisher Street he would take the complainant out for drives. He said that they would go to Hungry Jack's or another fast‑food restaurant, or to the shops to buy supplies. He said those journeys were not for long periods of time, and would only be to and from the shops.
The appellant agreed that he bought gifts for the complainant, including birthday gifts, chocolates and food. He also agreed that he bought the complainant a telephone for her birthday. However, he said that he did this because he saw the complainant like a little sister.
The appellant said that he recalled meeting KG when she was with the complainant while he was working as a transit officer at the Morley Bus Station. He said they were there in the afternoon dressed in their school uniforms. However, he denied that he had ever taken the complainant and KG out for long drives and said that he had never been to the various places they had alleged he had taken them to. He also denied ever staying at a hotel with the complainant and KG.
The appellant said that he remembered MT and that he had met her at Western Avenue at a housewarming. Other than that occasion, the appellant had no other recollection of having seen MT. He denied that MT had ever entered his bedroom wearing a skirt or that he had sexually touched her in any way.
The appellant then gave evidence about the address he moved to in Tuart Court after he had moved from the Western Avenue address. He said that he stayed at Tuart Court for a couple of months, occupying a bedroom at the back of the house. One of the other bedrooms and accompanying ensuite in that house was occupied by the appellant's friend, SG. According to the appellant, there were occasions when the complainant visited him at Tuart Court. However, he denied engaging in any sexual conduct with the complainant at that address, including on SG's bed. In fact, the appellant denied having any sexual relationship with the complainant whatsoever.
The appellant said that he moved from Tuart Court to live with his sister and brother-in-law in Leeming after Easter in 2010 or 2011. He moved in with his sister and brother‑in‑law because he wanted to stop drinking and had been prescribed medication. In around February 2011, he took a long period of time off work because of the difficulties he was experiencing with alcohol. While he was living at the Leeming address, he spent a lot of time with his brother-in-law who kept an eye on him to make sure that he was not drinking and that he was looking after himself.
The appellant agreed that he visited the complainant's mother on one or two occasions during this period of time after she had moved to a house on Ranmore Street. He also remembered attending a musical production at the complainant's school.
The appellant then gave evidence about his movements after he eventually left the Leeming address. He confirmed that he maintained contact with the complainant and her mother after they moved to Albany and when the complainant later returned to New Zealand. He also gave evidence about what occurred when the complainant returned from New Zealand, including the dispute which preceded the complainant making a report to the police.
In cross-examination the appellant maintained that he never had a sexual relationship with the complainant. Further, amongst other things, the appellant maintained that he had never provided the complainant with money or cigarettes whilst she was at school, or that he had ever delivered her a pregnancy test. The appellant also denied each of the complainant's specific allegations when they were put to him.
Craig Alan Dixon
Mr Dixon had known the appellant since approximately 2007 when they worked together for the Public Transport Authority. He also knew the complainant's mother through work. The work group would socialise together quite frequently, including at the complainant's mother's home at Fisher Street. Mr Dixon first met the complainant at her mother's home after she had first arrived from New Zealand.
Mr Dixon gave evidence about the time he and the appellant were working on buses at the Public Transport Authority. He said that they worked together 'for a little while'. He explained that the bus shifts were usually between 10 and 12 hours per day and that there would always be two guards on duty. Mr Dixon said he did not have any shifts with the appellant, though he ran into him on occasions while doing transit patrols. He said the mobile transit vehicles at the Public Transport Authority had a GPS monitoring system installed so that the employing security firm could monitor its employees to ensure they were following the correct route and were not exceeding the speed limit. He was unable to say whether the records obtained from the GPS monitoring system were retained.
Mr Dixon was asked questions about whether he spent any of his free time with the appellant. He explained that they would regularly get drunk and talk about work. However, in mid-2010, Mr Dixon commenced a relationship and saw less of the appellant as a result, other than for a period of one week when he lived with the appellant because he was experiencing relationship difficulties.
Hank Bernard Schokker
Mr Schokker is the appellant's stepfather. He gave evidence that he had spoken to the complainant's mother when she was living at Fisher Street and also when he was helping with the move to Western Avenue. He gave evidence about that move to Western Avenue, and his involvement in hiring a truck and moving the belongings of both the appellant and the complainant's mother.
Mr Schokker was asked whether he had seen the appellant interact with the complainant. He told the jury that he believed that they had a friendship based on their mutual interest in music. He also gave some evidence about the appellant's living arrangements in 2011, before proceeding to then give evidence about the dispute between the appellant and the complainant that occurred prior to her making a report to police.
Deon Kenneth Shillito
Mr Shillito was the appellant's brother-in-law from 1993 until 2012. By the time of the trial, he had known the appellant for approximately 30 years, and he had met the complainant and her mother on a few occasions.
Mr Shillito gave evidence that in 2010 the appellant came and lived with him at his home in Leeming because he was having problems with excessive alcohol consumption. He explained that as he had been through a similar experience, he felt that he would be able to help the appellant. At that time, Mr Shillito was studying full-time at university and was helping his wife run her business from home.
The appellant lived at the back of Mr Shillito's home next to his children's bedrooms. Mr Shillito explained that while the appellant was living with him he only worked and then returned home, and that he rarely went out socially. After a period of time the appellant commenced drinking again, although not as heavily.
In or about June or July 2011 the appellant moved out of Mr Shillito's home.
Lisa Jane Shillito
Ms Shillito is the appellant's sister. She gave evidence that in early 2010 the appellant came to live with her and her husband, and he stayed living with them for over a year. At that time, Ms Shillito was running a business from home and her two children were both at school.
Ms Shillito said that the appellant would always spend his time working, sleeping or spending time with his brother‑in‑law. She said that although the reason why the appellant came to live with them was to stop drinking, within two or three weeks both he and her husband started drinking again.
In cross-examination, Ms Shillito was reasonably adamant that she could confidently say that while the appellant was living with her, he was either working, sleeping or he was with her husband. However, upon further questioning, she said that the reason why she knew he was at work was because she had a copy of his work roster. She agreed that she would not check to make sure that he had returned home immediately after finishing work. She conceded that she could not say for certain that he had stayed at her home every single night throughout the time he lived with her family.
Trial judge's directions
It is only necessary to refer to some of the learned trial judge's directions.
Her Honour gave the jury standard directions about the onus and standard of proof, and about the presumption of innocence. She directed them that although the appellant had given evidence at the trial, this did not detract from the fact that the State had to prove his guilt. The learned trial judge explained that the appellant denied that he had ever touched the complainant in a sexual way, and then summarised the appellant's evidence. At the conclusion of her summary of the appellant's evidence her Honour said the following: [7]
The effect of his evidence as he gave it was that he spent his time working, or socialising with others with whom he drank. He lived with other people for periods of time, and that he didn't really have an opportunity to spend time alone with [the complainant] and, in any event, he didn't do any of the things that are alleged.
[7] ts 465.
The learned trial judge then gave the jury what is commonly known as the 'Liberato direction', in which she explained that if they were to accept the appellant's evidence, or if it just raised a reasonable doubt in their minds, then they were required to acquit him. Her Honour went on to direct the jury that even if they rejected the appellant's evidence it would not automatically follow that the appellant should be convicted, and they should put his evidence to one side and ask whether the State had proved his guilt on the basis of the evidence they did accept.
The learned trial judge gave the jury directions about the elements of the offences charged. As the grounds of appeal do not suggest that her Honour did not accurately identify or explain the elements of the only charge the jury found was proved, it is only necessary to refer to certain aspects of those directions.
The learned trial judge identified the evidence available to the jury to consider in deciding whether the prosecution had proved that the appellant was guilty of the offence charged in count 17 in the following way: [8]
Now, the evidence in this case from [the complainant] is that the sexual acts the subject of the 14 charges that are before you, each occurred on a separate day, okay? So there's 14 already separate acts that all occur on separate days.
Her evidence was also that there was other regular sexual activity; in particular that, when living at [the house at] Western Avenue, she and the accused were having sexual intercourse; that is, penile-vaginal intercourse, about three times per week.
Second, that when living at Hannans Street, they were still having sexual intercourse three times per week, but she said this about that at page 117:
It just wasn't as often at the house. When we were having sex, it was out of the house, either at his house or in his car.
And then she also said this. That after she moved to 9 Ranmore Way - she said this at page 108 to 109 of the transcript:
We never had sex in that house. It was always in his car.
[8] ts 473 - 474.
Her Honour then explained, in a comprehensive manner, the various ways in which it was open to the jury to consider whether the prosecution had proved that the appellant was guilty of count 17.
Firstly, the learned trial judge told the jury that they could find the appellant guilty of at least three of the offences charged in counts 1 to 6, 8 to 10 and 12 to 16 on the indictment. Because each of those offences were alleged to have been committed on separate days, if the jury were satisfied that the appellant had committed at least three of those offences then they would necessarily be satisfied that the appellant had persistently engaged in sexual conduct with the complainant for the purposes of s 321A of the Code.
Secondly, the jury could find the appellant guilty of count 17 even if they found him not guilty of all of the remaining counts on the indictment, but only if they were satisfied that there were at least three other occasions on which the appellant had engaged in relevant sexual conduct with the complainant. As her Honour explained:[9]
You could also find the accused guilty of this charge, count 17, even though you find him not guilty of all 14 of the charges. And that's because there is that other evidence that she's given that it was a regular occurrence when they were at Western Avenue, a regular occurrence at Hannans Street. She said not often in the house, it was also at his house and in the car. And then, of course, in Ranmore Way it was in the car.
So you could be satisfied that - 'Well, I'm not satisfied of these particular occasions, but I am satisfied that there were at least three other occasions; one at Western Avenue when they lived there, one at Hannans Street in the house, one at - when they lived at Hannans Street in his car. There you go, that's three', okay?
[9] ts 474.
Later the learned trial judge qualified that direction in the following way:[10]
This is what you can't do…
You found him not guilty of any charge, right? That means that's it. It's off the table because you all agree, right, that it's not guilty. So you can't use that charge as one of the three occasions, okay? That goes off the table. So if you get to a point where you go, 'No. We all agree not guilty of that count', off the table. [It] [c]an't form one of the remaining three, okay?
So that you understand, if you were to say not guilty on the 14 counts and guilty of the persistent sexual conduct charge, then what I would take from that is that you weren't satisfied that he was guilty of any of those counts. You couldn't use any of those counts then to become part of the three because you all agreed on that, okay?
Whereas if some of you thought, 'No, I thought he's guilty of that' - well, then you couldn’t - because I'll tell you at the end of the trial you have to be unanimous before you can give me a verdict of guilty or not guilty either way, okay? So if you're all unanimous not guilty, well, then it's off the table as one of the three occasions, okay? I just thought I should try and explain that to you just so you understand some of the nuances of that.
[10] ts 475 ‑ 476.
The learned trial judge told the jury that their assessment of the credibility of the various witnesses they had heard give evidence during the course of the trial was critical. In that context she gave standard directions about the sorts of matters the jury may wish to take into account in making an assessment of a witness' credibility, including directions about the potential significance of inconsistencies in a witness' account. Her Honour referred to one potential inconsistency in the complainant's evidence that emerged during cross-examination, which concerned the complainant's initial statement to police that the first time she had sexual intercourse with the appellant was when they were on the lounge room floor at the Fisher Street address. Her Honour reminded the jury that the complainant had told them something different in her evidence in chief, namely, that the first time she had sexual intercourse with the appellant was at Western Avenue. She also reminded the jury that the complainant had explained that she later corrected her timeline when she spoke to the investigating police officer while she gave a witness statement over a six‑week period.
As there was a significant delay between the dates the complainant alleged she had been sexually offended against and the first time the appellant was made aware of those allegations, the learned trial judge gave the jury the warning contemplated by the plurality in Longman v The Queen.[11] Specifically, her Honour warned the jury that the appellant had suffered a forensic disadvantage because he had lost the opportunity to adequately test the complainant's evidence and to bring forward matters in his defence. In explaining those lost opportunities, the learned trial judge made specific reference to the fact that because of the delay the appellant was unable to recall, and had lost the opportunity of exploring with other witnesses, where he was and what he was doing at particular critical times. The delay also meant that any opportunity to obtain relevant records, including from hotels and from the appellant's workplaces, which may have contradicted the complainant's evidence, had been lost.
[11] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 (Longman v The Queen).
After the trial judge gave the jury detailed directions for the purpose of identifying the particular evidence relied upon by the prosecution to establish each of the counts on the indictment, she then turned to give the jury specific directions about four other categories of evidence.
The first category was evidence that the jury may have considered was generally consistent with what the complainant had said in her evidence. Her Honour told the jury that they could take this evidence into account in assessing the complainant's reliability and credibility.
The second category was the evidence of other witnesses who made observations of the relationship between the complainant and the appellant that the jury might think was consistent with the complainant's own description of that relationship. This category included the evidence that was given by MT that she had seen the complainant and the appellant kissing, hugging and holding hands, and saying 'I love you'. MT also gave evidence that she saw the appellant rubbing the complainant's 'private area' with his foot, and that she could hear moaning noises from the appellant's bedroom when the complainant had left her bedroom during sleepovers. MT also said that she had seen them kissing in the appellant's bed, and that the appellant was not wearing any underwear at the time. Her Honour also referred to MT's evidence about the pregnancy test.
This category of evidence also included the evidence given by KG that she had seen the complainant and the appellant kissing and hugging in various places, including in the appellant's car and at the Morley Bus Station, and that she had seen them go into the toilets at Bassendean Reserve together.
The learned trial judge gave the jury the following direction about the use to which this evidence could be put:[12]
It's important you understand that the accused isn't charged in relation to any of that conduct, all right? There's no charges about any of that. Nor is it suggested that there should or could have been charges, all right? The State led that evidence for three reasons.
First, the evidence gives a more complete picture of the relationship, physical and otherwise, between [the appellant] and [the complainant]. It explains the concept in which, the State says, the physical relationship between them existed at the relevant time.
Secondly, it explains why [the complainant] did not report what was happening, because the State says it shows that they were in a relationship that involved sexual touching.
And, thirdly, it may explain why the accused was confident that he could act sexually towards [the complainant] over time in those situations…
I now need to give you some directions of law about how you cannot use the evidence of the other conduct, sexual or otherwise, if you accept it. And I'm talking particularly about the sexual contact that was said to have been observed.
You cannot use that other sexual conduct in substitution for the evidence of each of the incidents on the indictment. You should not reason that simply because you find that [the appellant] did act as [MT] and/or [KG] describe on other occasions, that he therefore must have committed the charged acts, okay?
You should also not reason just because you find that the accused did act in a sexual way towards [the complainant] on other occasions, if you think that they're sexual acts, that he's the type of person who would go about doing those things. Just because someone might have behaved in that way doesn't mean they've gone on to do other things, okay?
So that's really in effect what it comes down to. But you can use it in assessing her credibility and reliability and accuracy because you've got a bigger picture of things. It explains why there's no complaint, it explains why he was confident about being able to behave as he did, okay?
[12] ts 514 ‑ 515.
Thirdly, her Honour referred to the evidence given by KG that she had heard moaning noises and the sound of a bed moving from a room that the complainant and the appellant were sharing at a hotel. Her Honour explained to the jury that if they accepted this evidence then they could find that it supported the complainant's account, but told them that it was not evidence by itself of what happened in the bedroom.
Fourthly, her Honour referred to the evidence of MT that the appellant kissed her neck, touched her vagina area, and penetrated her vagina with his fingers while he was lying on his bed with her and the complainant. Her Honour reminded the jury that the complainant did not give evidence that was entirely consistent with the evidence given by MT. Specifically, although the complainant recalled getting into the appellant's bed at the Western Avenue house with the appellant and MT, she did not say that the appellant had touched MT.
The learned trial judge told the jury that if they accepted MT's evidence that the appellant had touched her in a sexual way, and if they were satisfied beyond reasonable doubt based on that evidence that the appellant had a sexual interest in teenage girls that he was prepared to act on, then they could take that into account in deciding whether it was more likely that he sexually interfered with the complainant as alleged.
Her Honour then summarised the defence case.
After the learned trial judge completed her directions, the jury asked several questions that required further directions. The jury's questions, and the directions that were given in response to those directions, are dealt with in the context of ground 3.
Consideration of grounds of appeal
Given our conclusion in relation to ground 3, it is only necessary to briefly deal with grounds 1 and 2.
Ground 1 - Unreasonable verdict
By ground 1 the appellant asserts that the verdict of guilty was unreasonable or cannot be supported having regard to the evidence.
What occurred could also be described as a fundamental defect because the private communication amounted to a direction of law about a contested element of the only offence in respect of which the jury returned a verdict of guilty, and because it had the capacity to undermine the integrity of the court as an institution and to erode confidence in the judicial system as a whole.
In any event, it is well settled that in a case that does not involve a fundamental defect, the proviso cannot be applied unless the appellate court is persuaded that the evidence, properly admitted at trial, proved, beyond reasonable doubt, the appellant's guilt of the offence on which the jury returned their verdict.[45] In this case, there are two reasons why we are not able to be so persuaded.
[45] OKSv The State of Western Australia [2019] HCA 10; (2019) 265 CLR 268 [31] (Bell, Keane, Nettle & Gordon JJ).
First, the natural limitations of proceeding on the basis of the record do not permit us to be persuaded that the appellant was proved, to the requisite criminal standard, that he was guilty of the offence charged in count 17. This was a case in which proof of the appellant's guilt depended almost entirely on the jury's assessment of the complainant's credibility. The jury were ultimately required to be satisfied beyond reasonable doubt that the complainant's evidence about count 17 was both honest and reliable.
Although the prosecution case relied on the evidence of KG and MT to support the complainant's evidence in specific ways, the jury's assessment of their credibility was also critical. Further, as the appellant gave evidence at his trial, the jury had to reject the denials he gave from the witness box that he had never engaged in any form of sexual behaviours with the complainant.
We have not had the benefit of seeing and hearing any of the witnesses give evidence, and so we are not able to adequately assess their credibility and to ultimately decide whether the complainant's evidence that was relevant to the offence charged in count 17 was honest and reliable to the requisite criminal standard. Relatedly, we are also not able to determine, proceeding only on the basis of the record, whether there is no reasonable possibility that the appellant's denials are true.
The difficulty in proceeding based on the record is compounded because in carrying out that task, we are required to afford the appellant the benefit of the verdicts of not guilty that the jury returned in relation to the balance of the counts on the indictment. The substantive counts on the indictment were, understandably, the primary focus of the complainant's detailed and lengthy evidence at the appellant's trial. Accordingly, after giving the appellant the benefit of the acquittals, there is very little evidence remaining on the record of the appellant's trial that specifically relates to the offence charged in count 17. This makes it practically impossible to properly assess whether, based on the complainant's evidence that related to count 17, the appellant was proved to be guilty of that offence beyond reasonable doubt.
Secondly, the overall effect of the State's submissions in relation to the question of whether the proviso should be applied is that, for various reasons, significant weight should be attached to the jury's verdict. However, contrary to the State's submissions, we do not think it is possible to place any weight on the verdict in all the circumstances. The answer that the learned trial judge gave to the jury in response to their question about the meaning of 'sexual conduct' was legally correct (in the abstract). However, and as we have explained above, had the appellant been afforded procedural fairness, there is a realistic possibility that the jury would have been directed that while 'sexual conduct', for the purposes of an offence contrary to s 321A of the Code, may include acts of indecent dealing, the only acts of indecent dealing that were able to be taken into account for the purposes of count 17 in this case were those acts alleged in counts 1 ‑ 4 and 14 on the indictment (and not some other acts of indecent dealing). In the light of the jury questions and the verdict that was returned, had that direction been given, it was capable of affecting the verdict.
It follows that we are not persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the appellant's guilt of the offences. As a consequence, we are not satisfied that no substantial miscarriage of justice occurred in this case.
We would allow the appeal on the basis of ground 3.
Conclusion on the grounds of appeal
We would grant the appellant an extension of time within which to appeal. However, we would refuse leave to appeal on ground 1. Further, while we would grant the appellant leave to appeal on ground 2, we would dismiss that ground.
We would grant the appellant leave to appeal on ground 3 and allow the appeal on the basis of that ground.
The question that then arises is whether there should be an order for a retrial.
A retrial?
When this court reaches a conclusion under s 30(3)(a) of the Criminal Appeals Act that a verdict of guilty on which a judgment of conviction is based should be set aside because it is unreasonable or cannot be supported, a judgment of acquittal ordinarily follows. We have, in this case, however, rejected ground 1.
Nevertheless, the power of an appeal court to grant a new trial is a discretionary one.[46] As this court said in Gibson v The State of Western Australia:[47]
Where an appellate court quashes a judgment of conviction it must decide whether it is in the interests of justice to order a new trial. Two broad issues arise for consideration in making that decision. First, the court must assess whether the admissible evidence adduced at the original trial was sufficiently cogent to support a conviction. If it was not, a new trial should not be ordered because it would give the prosecution an opportunity to supplement a defective case. Secondly, if the court determines that the admissible evidence adduced at the original trial was sufficiently cogent to support a conviction, the court must take into account 'any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused'. (citations omitted)
[46] Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627, 630.
[47] Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199 [206].
Where an appeal against conviction is allowed on the basis that a procedural error occasioned a miscarriage of justice, a retrial will ordinarily be ordered. This is particularly the case in circumstances, such as the present, where a ground of appeal in which it is asserted that the verdict of guilty upon which the conviction was based was unreasonable or cannot be supported having regard to the evidence has been dismissed.
This case, however, gives rise to a number of unique difficulties. Those difficulties are, at least in part, a consequence of the manner in which the appellant was charged and the proceedings below were conducted.
In its further submissions as to whether the court should enter a judgment of acquittal in relation to count 17 or whether there should be a retrial, the State submitted that there was a public interest in there being a retrial and pointed out that the miscarriage of justice at the appellant's trial occurred because of an error by the trial judge which occurred in the absence of the parties. The State also contended that there is no apparent defect in the prosecution case, the admissible evidence adduced at the original trial was sufficiently cogent to support a conviction, and that there were no circumstances that rendered it unjust for the appellant to be retried.
As we have already observed, the appellant was acquitted of all the other counts on the indictment. Were there to be a retrial, the appellant would be entitled to the full benefit of those acquittals, in the sense that there could be no controverting of the verdicts of acquittal that were returned by the jury.[48]
[48] AJS v The Queen [2007] HCA 27; (2007) 235 CLR 505, [24] (Gleeson CJ, Hayne, Heydon & Crennan JJ).
If the State sought to rely on the audio-visual recording that was made of the complainant's evidence, on the basis that she was declared to be a special witness pursuant to the relevant provisions of the Evidence Act 1906 (WA),[49] it is difficult to see how the risk that the verdicts of acquittal might be controverted by the jury could be avoided. A very significant proportion of the complainant's detailed and lengthy evidence was concerned with allegations that the appellant had engaged in specific sexual conduct in respect of which the appellant was found not guilty, and only a very small part of her evidence would be relevant to the charge that was formerly count 17. A direction to a jury that they must proceed on the basis that the complainant's evidence cannot establish that the appellant engaged in that specific conduct, and that the jurors must proceed upon the basis that the appellant is not guilty of any offence in relation to that conduct, is unlikely to avoid that risk. It is also highly unlikely that the recording of the complainant's evidence could be edited in such a way as to sufficiently reduce the potential for the acquittals to be controverted. In any event, any necessary editing would render those parts of the complainant's evidence that the prosecution could rely on unintelligible and deprive it of necessary context. In short, having regard to the extensive and detailed nature of the complainant's evidence, it is impossible to see how the prosecution could fairly rely on those limited parts of the complainant's evidence and, at that same time, ensure that the appellant receives a fair trial.
[49] Evidence Act 1906 (WA), s 106N(3a), s 106R(1), s 106R(4).
Similar problems would beset a retrial in which the prosecution sought to recall the complainant to give evidence, without any reliance being placed on the recording of the evidence she gave at the appellant's trial. It is difficult to see how the complainant could give cogent evidence that was relevant only to the question of whether the appellant was guilty of the offence charged in count 17 without reference to events that were the subject of specific counts on the indictment. It would not be possible to properly give effect to the requirement that the acquittals must not be controverted if the complainant were permitted to, in effect, give generalised evidence about her alleged sexual relationship with the appellant. Such evidence would, at least in a latent sense, include the very occasions in relation to which the complainant gave a specific account (and for which the appellant was acquitted). Such latency would inevitably be exposed by any cross-examination seeking to challenge the reliability of the complainant's generalised account.
It would also be unjust to order a retrial if it then enabled the prosecution to proceed, at a retrial, by calling the complainant to again given evidence in the hope or expectation that she was able to expand upon the evidence she has already given in support of count 17.
We recognise that the conclusion that it would be unjust for the appellant to be retried might appear to be at odds with our conclusion that the jury's verdict in relation to count 17 was not unreasonable and that it was supported having regard to the evidence. It might also appear to be a most unsatisfactory outcome for the complainant, who will necessarily be deprived of any opportunity to at least have some of her allegations finally determined by a jury. Nevertheless, while it was open to the jury to convict the appellant of the offence charged in count 17, based on the generalised evidence that was adduced at trial that was had, the fact that verdicts of acquittal were returned by the jury in relation to all of the specified conduct now present as unassailable barriers that stand in the way of a fair retrial. As we will briefly come to, that is in part a consequence of the form of the indictment in this case.
For these reasons in our view the judgment of conviction should be set aside, and a judgment of acquittal should be entered in respect of count 17.
Concluding observations
Finally, it is appropriate that we conclude with some brief observations in relation to the form of the indictment in this case.
As counsel for the State readily and properly recognised at the hearing of the appeal, an indictment in the form preferred in this case can present difficulties not only in conviction appeals such as occurred here, but also in relation to the sentencing of offenders where a sentencing judge's fact finding, for the purpose of sentence for a conviction under s 321A(4) of the Code, must contend with verdicts on allegations of specific conduct that are difficult to reconcile.[50]
[50] ts 22 ‑ 23.
There is, of course, no rule of law that prevents the State preferring an indictment containing both a charge of an offence contrary to s 321A(4) of the Code, together with a number of individual charges of specific charged 'prescribed offences'. Indeed, s 321A(6) specifically allows that to occur, and there may be a variety of reasons why, in a particular case, the State may wish to present an indictment containing both a charge under s 321A(4) and charges for prescribed offences.[51]
[51] See XBX v The State of Western Australia [2024] WASCA 43 (XBX) [95] (Hall JA).
Such an indictment might, for example, be preferred as it is thought necessary to ensure that the indictment properly reflects the full nature and extent of the alleged criminal conduct, and so that an appropriate sentence can be imposed for all of that conduct in the event of a conviction. Nevertheless, it must be recognised that s 321A(13) provides that if a person is sentenced to imprisonment for an offence contrary to s 321A(4), and for a 'prescribed offence' committed in the same period, the court must not order the terms to be served wholly or partly cumulatively.
Accordingly, even if an offender was convicted of some or all of the specific charged 'prescribed offences' and the charge under s 321A(4) on an indictment such as the present, it is unlikely to be reflected in any different total effective sentence, than would be the case if the indictment was confined to the charge under s 321A(4). Indeed, depending upon the circumstances, the effect of s 321A(13) could have a potentially distorting effect on a total effective sentence, particularly where the prescribed offences are very numerous or serious in nature.[52]
[52] XBX [97] - [99] (Hall JA), [124] - [125] (Vandongen JA).
At the same time, there is a real risk that an indictment containing both a charge under s 321A and charges for prescribed offences may carry with it the potential for compromised verdicts. A jury, faced with the task of determining whether they are unanimously satisfied that the prosecution has proved, beyond reasonable doubt, that an accused has engaged in several specific sexual acts with a child, may consider it to be an easier task to simply decide that the accused is guilty of an offence contrary to s 321A(4). Similarly, as was argued in the present case, such an outcome may create the real potential for the resulting verdicts to be factually inconsistent.[53]
[53] ts 25 ‑ 29.
These risks are accentuated in a case such as the present where all of the specific incidents in relation to which the complainant gave an account were charged in the indictment, notwithstanding that all of the specific charges were alleged to have been committed during the same period of time that the appellant was alleged to have persistently engaged in sexual conduct with the complainant for the purposes of s 321A(4). In such a case it might be thought distinctly preferable to confine the indictment to the charge under s 321A(4), or at least to include only those specific acts of such alleged significance as to warrant a separate and distinct verdict.
As s 321A(7) of the Code makes clear, an indictment containing a charge of an offence under s 321A(4) must be signed by the Director of Public Prosecutions or the Deputy Director of Public Prosecutions. This represents a very clear indication that a decision to include a charge of such an offence in an indictment should be made only after it has been determined, at the highest level, that such a decision is appropriate, given that proof of the charge does not require the particularisation ordinarily required for historical charges relating to sexual offences against children.
At the hearing of the appeal, the court was advised that the practice of the Director in relation to charges of specific 'prescribed offences' being included on indictments alleging an offence against s 321A(4) of the Code during the same period was 'under review'.[54] In light of the risks and difficulties to which we have averted, such a review has much to recommend it.
[54] ts 22.
MAZZA JA:
On 27 March 2024, I joined with Quinlan CJ and Vandongen JA in making the orders referred to in [6] above. As noted in their joint reasons, orders were made requiring the parties to file and serve written submissions on whether the court should enter a judgment of acquittal or whether there should be a retrial on count 17. I have considered the parties' written submissions on the question. I agree that a judgment of acquittal should be ordered on count 17.
I respectfully agree with the joint reasons of Quinlan CJ and Vandongen JA in all respects, save for ground 2. While I agree with their Honours that ground 2 has not been made out, I will give my own reasons for reaching this conclusion. As their Honours have comprehensively set out all of the background necessary to decide ground 2, my reasons will be brief. I am also mindful that, as ground 3 has been made out and an order for acquittal on count 17 is appropriate, it is not, strictly speaking, necessary to decide ground 2.
Inconsistent verdicts - legal principles
A claim that verdicts are inconsistent involves a challenge to the guilty verdicts pursuant to s 30(3)(a) of the Criminal Appeals Act 2004 (WA) on the ground that they are, in the opinion of the court, unreasonable or not supported by the evidence.
The relevant principles were explained by Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen.[55]
[55] MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, 365 ‑ 368.
In cases of factual inconsistency, of which the present case is an example, the test is one of logic and reasonableness. This test is to be applied being mindful that it is accepted that juries may apply, in favour of an accused, their sense of innate fairness and justice. This was explained by King CJ in a passage in R v Kirkman,[56] quoted by the plurality in MacKenzie with the observation that they were 'practical and sensible remarks':[57]
[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.
[56] R v Kirkman (1987) 44 SASR 591, 593.
[57] MacKenzie 367 ‑ 368.
Inconsistent verdicts - the appellant's submissions
In the present case, the allegation of inconsistency made by the appellant is that the verdict of guilty on count 17 is unreasonable and unsupported because of the verdicts of not guilty on counts 1 to 6, 8 to 10 and 12 to 16.
The appellant's submissions essentially proceeded in this way. The State's case on each count fundamentally relied upon the honesty and reliability of the complainant's evidence. By their verdict of not guilty, the jury must not have been satisfied beyond reasonable doubt of the complainant's evidence that any of the acts the subject of counts 1 to 6, 8 to 10 and 12 to 16 occurred. Accordingly, they could not have reasonably been satisfied beyond reasonable doubt that any of the acts said to constitute count 17 occurred.
Inconsistent verdicts - discussion and disposition
The appellant's contention in ground 2 is not without some force, but, after considerable reflection, I do not regard the different verdicts as such an affront to logic and reasonableness to require this court's intervention to prevent a possible injustice.
The jury had the distinct advantage, not enjoyed by this court, of having heard and seen the various witnesses testify before them, especially the complainant and the appellant. Consistently with my assessment of the trial record, it was well open to the jury to be satisfied that the complainant's testimony was, generally, honest and reliable and to reject the appellant's exculpatory statements. As described in the reasons of Quinlan CJ and Vandongen JA, the complainant's testimony was supported, to a significant extent, by the testimonies of MT and KG, particularly as to the existence of a sexual relationship between the appellant and the complainant. Their testimonies also undermined the appellant's evidence that he did not have a sexual relationship with the complainant and his testimony to the effect that he did not have the time, and therefore the opportunity, to engage in such a relationship.
However, the jury, taking a cautious approach to their task and bearing in mind the complainant's evidence that she received assistance from then police officer Dianne Duncan to 'pinpoint specific events' and, with Officer Duncan's help, she 'fixed up [her] timeline',[58] may have been unwilling to convict the appellant of offences which alleged a specific sexual act. This is particularly so when the jury had before them count 17, the gravamen of which was that the appellant persistently engaged in sexual conduct with the complainant. It cannot be overlooked that the trial judge specifically left to the jury a path that permitted them to acquit the appellant on the specific counts and still convict the appellant on count 17. Consistently with the role of the jury in the administration of justice, it may be that the jury regarded a verdict of guilty on count 17 as being a sufficient reflection of the appellant's overall criminality.
[58] ts 168, 171.
I consider that, in the present case, the different verdicts can be properly reconciled in a way that leads me to the conclusion that the jury properly performed their functions. In my opinion, the verdict of guilty on count 17 was not unreasonable or unsupported by the evidence. While ground 2 is reasonably arguable, and a grant of leave to appeal is appropriate, it has not been made out.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LB
Research Associate to the Honourable Justice Vandongen
14 MAY 2024
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