Spooner v The State of Western Australia

[2008] WASCA 16

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   SPOONER -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 16

CORAM:   WHEELER JA

PULLIN JA
BUSS JA

HEARD:   1 NOVEMBER 2007

DELIVERED          :   31 JANUARY 2008

FILE NO/S:   CACR 70 of 2006

BETWEEN:   ALAN GREGORY SPOONER

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :SLEIGHT DCJ

File No  :IND 1361 of 2004

Catchwords:

Criminal law - Appeal against conviction - Sexual offences - Whether convictions unsafe and unsatisfactory - Guilty verdicts on 11 counts and acquittals on remaining counts - Whether any inconsistency between guilty verdicts and acquittals which rendered the convictions unreasonable - No relevant inconsistency or unreasonableness

Criminal law and procedure - Appeal against conviction - Sexual offences - Whether defence counsel's failure to object to prejudicial comments by prosecutor amounted to a miscarriage of justice - Whether defence counsel's failure to cross­examine witness on an inconsistent statement amounted to a miscarriage of justice - No miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3)

Result:

Leave to appeal granted on ground 1 but refused on other grounds
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr J W M Foulsham

Respondent:     Mr D Dempster

Solicitors:

Appellant:     In person

Respondent:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Cecez v The State of Western Australia [2007] WASCA 260

Ferris v The State of Western Australia [2007] WASCA 69

G v The State of Western Australia [2007] WASCA 202

Jones v The Queen (1997) 191 CLR 439

Libke v The Queen [2007] HCA 30; (2007) 81 ALJR 1309

M v The Queen (1994) 181 CLR 487

Mackenzie v The Queen (1996) 190 CLR 348

MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606

Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303

R v Callaghan [1994] 2 Qd R 300

R v Kirkman (1987) 44 SASR 591

R v PMT [2003] VSCA 200; (2003) 8 VR 50

Riley v The State of Western Australia [2007] WASCA 22

Rodd v The Queen [2000] WASCA 329

VIM v The State of Western Australia [2005] WASCA 233; (2006) 31 WAR 1

Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

1. WHEELER JA:  I agree with Buss JA.

2. PULLIN JA:  I agree with Buss JA.

3. BUSS JA:  The appellant was charged with 21 sexual offences against two complainants, N and D, who were under his care, supervision and authority.  After a trial before Sleight DCJ and a jury, from 7 ‑ 10 March 2006, the appellant was convicted on 13 counts and acquitted of 8 counts.  His total effective sentence was 6 years and 2 months immediate imprisonment, backdated to 19 January 2006, with eligibility for parole.

4. In relation to N, the appellant was charged with one count of sexual penetration of, and one count of indecent dealing with, a child aged between 13 and 16 years, who was under his care, supervision and authority.  He was convicted on both counts, being counts 1 and 13.

5. In relation to D, the appellant was charged with one count of sexual penetration of a child aged between 13 and 16 years, and 10 counts of sexual penetration, and 8 counts of indecent dealing, with a child aged over 16 years, being, in each case, a child who was under his care, supervision and authority.  The appellant was convicted on 11 counts, being counts 2 ‑ 4, 7 ‑ 8, 11 ‑ 12, 14 ‑ 15 and 20 ‑ 21.  He was acquitted of 8 counts, being counts 5 ‑ 6, 9 ‑ 10 and 16 ‑ 19. 

6. The appellant appeals against his convictions.

Grounds of appeal

1. On 19 July 2007, Wheeler JA ordered that the application for leave to appeal be heard with the appeal.  The grounds of appeal, with particulars, are:

   1.The jury erred in fact in finding the appellant guilty on counts 1 ‑ 4, 7 ‑ 8, 11 ‑ 12, 13 ‑ 15, and 20 ‑ 21, a finding so inconsistent with the finding that he was not guilty on counts 5 ‑ 6, 9 ‑ 10, 16 ‑ 19 that no reasonable jury which had applied its mind properly to the facts in the case could come to those conclusions. 

   Particulars

   a.To convict the [appellant] on any of the counts where [D] was the complainant the jury had to be satisfied beyond reasonable doubt that her evidence was true. 

b.Counts 3 ‑ 8 alleged the appellant indecently dealt with [D] four times on the same occasion and the jury accepted her evidence to this effect on counts 3 ‑ 4 but did not accept it on counts 5 ‑ 6 and accepted her evidence that the appellant had kissed her and committed cunnilingus on her immediately afterwards, counts 7 ‑ 8. 

c.The jury found the appellant not guilty on counts 9 ‑ 10, an occasion when she said he took her swimming but guilty on counts 11 ‑ 12, an occasion when she said he took her sailing. 

d.The jury found the [appellant] guilty on counts 14 ‑ 15, an occasion at a swimming pool, but not guilty on counts 16 ‑ 18, an occasion at the appellant's office and not guilty on count 19, an occasion at the appellant's wife's office and guilty on counts 20 ‑ 21 when the appellant and the complainant [D] were alone at home. 

e.As the jury failed to apply its mind to the counts referred to in particulars (a ‑ d) the jury cannot be taken to have applied its mind properly to the facts of counts 1 and 13.  

2.The primary court erred in law and in fact in permitting the state prosecutor to predispose the jury to believe that the appellant had had sexual intercourse with [D] creating severe prejudice against him when there was no evidence to that effect. 

Particulars

a.While the appellant was giving his evidence-in-chief the state prosecutor objected to evidence and said in front of the jury that [D] said she had lost her virginity through the appellant. 

b.There was no evidence that the appellant had ever had sexual intercourse with [D]. 

c.The comment which was uncorrected by the trial judge could lead the jury to imply that there was further evidence of the sexual intercourse which had not been led and which implicated the appellant in other offending. 

3.Defence counsel at the trial erred in fact and in law by failing to bring to the attention of the jury that [D] had misled the jury when she stated she knew nothing about a letter which was clearly within her knowledge allowing the jury to obtain a false impression of her credibility.

Particulars

a.Under cross-examination [D] denied any knowledge of a letter dated 24 July 2003 purporting to be written and signed by her. 

b.In a statement dated 30 May 2005 and witnessed by Senior Constable Fookes, [D] stated that she had seen the letter which was annexed to the statement. 

c.Defence counsel failed to draw her attention to the inconsistency thereby allowing the jury to obtain a false impression of her credibility.

1. On 24 September 2007, Wheeler JA ordered that the appellant's application, dated 20 September 2007, for leave to rely on additional evidence, namely, an affidavit of the appellant sworn 12 July 2007 with annexures, in support of ground 3, be heard together with the appeal.  At the hearing of the appeal, this court granted the appellant leave.

Evidence of D

1. D came into the foster care of the appellant and his wife (Linda Spooner) in February 2002.  Four other children, who were siblings from the same family, including N, were also in the foster care of the appellant and his wife (ts 65).

Count 2

1. This count was said to have occurred at the Balga scout hall, after a 'video night'.  It was the first offence allegedly committed by the appellant against D.  The appellant was a scout leader.  D was a scout member.  That night, D had a tent that she was to sleep in on her own.  Before D went to sleep, she saw the appellant sitting in the kitchen reading a book.  D went to sleep but awoke to find the appellant's hand down her pants, and his fingers penetrating her vagina.  The appellant was facing her back.  D was too scared to say anything and finally told the appellant that she needed to go to the toilet.  D went to the toilet and when she came back, the appellant asked her if she wanted a soft drink.  He then went outside to smoke a cigarette.  D did not tell anyone at the scout hall what had happened because 'they were mostly kids there'.  When she got home, she told N what had happened.  N said that if it happened again she would tell Linda Spooner.  D did not feel comfortable telling Linda about the incident because '[t]his was before the time I started calling them mum and dad, and I had to adjust to them so I didn't feel comfortable telling her'   (ts 66 ‑ 69).

2. D denied that she had asked the appellant to sleep in her tent that night, and had pulled him over to her tent so he would sleep there.  She said she did not call for help because she was too scared to do so.  Under cross‑examination D reasserted that the incident had occurred (ts 102 ‑ 103).

3. The appellant was convicted on this count (sexual penetration).

Counts 3 ‑ 6

1. The Spooner family moved to Australind in August 2002.  About a month after moving, the family were watching movies in the lounge.  They watched 'A Bug's Life' and 'Honey, I Shrunk the Kids'.  D was sitting on the couch with her doona covering her below the waist.  The appellant sat to the left of D and put his hand under the doona, undid the buttons and zip of her pants, put his hand down her pants and penetrated her vagina with his finger.  The appellant did this about four times, in between making a coffee, checking on his wife, making a coffee for both him and his wife, and using the Internet.  D did not say anything at the time because 'I was scared.  There were kids sitting around.  Yeah, I was really scared about it.  I didn't know what to do'.  Linda Spooner did not come into the room at any time (ts 69 ‑ 71, 103 ‑ 105).

2. D was questioned about whether she did her pants up or left them undone between each incident.  D said that she did her pants up after each incident, and that the appellant undid her pants each time.  D was then questioned about certain paragraphs of her statement which said that she left her pants undone after some incidents.  D said that she was 'confused' when making the statement (ts 106 ‑ 107).  In re‑examination, D read out other parts of her police statement to the effect that she did do up her pants after some incidents (ts 126 ‑ 127).

3. The appellant was convicted on counts 3 and 4, but acquitted of counts 5 and 6 (all for sexual penetration).

Count 7

1. After the incidents the subject of counts 3 ‑ 6 occurred, and after the movie had finished, D returned the doona to her bedroom.  She told N what had happened.  N said that she would tell Linda Spooner about it in the morning.  D then went back to the lounge to say goodnight.  Only the appellant was in the lounge.  The appellant 'got [her] head and gave [her] a passionate kiss'.  D said the appellant's tongue was in her mouth.  She did not like it and pulled away (ts 71 ‑ 72).

2. D's police statement said that she kissed the appellant back when he kissed her.  D said that she did pull away even though the statement did not say that.  D said that after she started kissing the appellant back, she did not like it and pulled away.  D's police statement also said that she was scared that Linda Spooner would 'come out and catch [them]'.  D said she was not sure why she was scared about Linda Spooner 'catching' them (ts 108 ‑ 110, 127).

3. The appellant was convicted on this count (indecent dealing).

Count 8

1. After the incident the subject of count 7, D tried to walk away but the appellant pulled her arm back and pulled her pants down and started licking her vagina.  D said 'I don't want to do this', the appellant said 'fine', and D walked off.  D said she was very scared, and that 'this was the second time something had happened and [she] was just scared in general of what he was doing to [her]'.  D told N about this incident and N said that she would definitely tell Linda Spooner in the morning (ts 71  ‑72).

2. The appellant was convicted on this count (sexual penetration).

3. The next morning, N told Linda Spooner about the incidents that had occurred the night before.  D said she would have found it too hard to tell Linda Spooner about the incidents herself.  D said she then went outside with Linda Spooner and the appellant, and they 'all spoke'.  She said they 'had a talk about it', and Linda Spooner asked D whether she still wanted to stay in her care.  D said yes because she was close to the other foster children.  The appellant got angry after the conversation (ts 73, 110).

Counts 9 and 10

1. At the end of 2002, D went swimming at a nearby estuary with the appellant and two of the other children.  While D was swimming in the estuary, the appellant swam over to her and was facing her back.  The appellant pulled her board shorts and bikini down to just under her buttocks and penetrated her vagina with his fingers.  The appellant then put his penis against D's vagina and buttocks, but did not penetrate D.  D did not like it, was as scared as she was on other occasions, and was 'flabbergasted' that he would do such an act after their 'big talk'.  D told the appellant to 'stop', but he told her not to worry.  The incident ended when D said she was cold and wanted to get out (ts 74 ‑ 75, 110 ‑ 113).

2. D did not approach Linda Spooner about the incident because she 'did not know how to approach her after everything had happened', since it was 'after the talk', and because she was 'just scared' (ts 76).  D liked Linda Spooner and thought that Linda Spooner might lose the children if she told her about what had happened.  D said she did not care about the appellant, she did not want Linda Spooner to lose the children, and that the children were all happy there (ts 76).

3. In cross-examination, D asserted that the incidents occurred in April 2002.  However, when counsel suggested that the incidents actually occurred in December 2002, D changed her mind and agreed she was 'a bit confused' when she said April earlier (ts 111 ‑ 113).

4. The appellant was acquitted of these counts (respectively, sexual penetration and indecent dealing). 

Counts 11 and 12

1. About two weeks after the incidents the subject of counts 9 and 10 occurred, D and the appellant went out in a sailing boat on the estuary.  When they had sailed into the estuary, the appellant started playing with D's breasts, lifted her bikini top up, and wanted her to pull her bikini bottoms down.  The appellant digitally penetrated D's vagina.  The incident came to an end when D told the appellant to stop and said that she did not like it.  They then sailed back to shore.  Two of the other foster children were playing on the shore (ts 76 ‑ 77, 113 ‑ 114).

2. The appellant was convicted on both counts (respectively, sexual penetration and indecent dealing). 

Counts 14 and 15

1. The appellant, Linda Spooner, and all the children (including a boy who was staying at the Spooners' house for respite care) went to the Leschenault recreation centre public swimming pool.  After a while, Linda Spooner and N left to go home because N's eyes were hurting.  D said that the appellant gave her a kiss and started playing with her breasts.  When they were leaving the swimming pool, they met two policemen from the Australind police station.  The police spoke to the appellant alone, then spoke to D alone.  D then heard the police say to the appellant, 'Make sure this doesn't happen again'.  D said the kiss was a passionate one (ts 79 ‑ 81).

2. In cross‑examination, D clarified that the kiss lasted for about half a minute, and agreed that it was a 'full on open‑mouth kiss' with the appellant's tongue in her mouth.  D admitted that she did not say in her police statement that the kiss was a passionate or open mouth kiss, but said that the appellant 'just leant over and kissed [her] quickly on the lips'.  She also did not say in her police statement that the appellant touched her breasts at the swimming pool.  D explained that she was 'confused' when she gave the police statement.  According to her statement, when asked by the police outside the swimming pool about the incident, she said that the appellant kissed her on the lips for a greeting, and that that was all that happened.  D said she could not remember exactly what she said to the police that day.  D did not know why she did not tell the police that the appellant had given her a passionate kiss and touched her breasts (ts 93 ‑ 96).

3. In re‑examination, D read out part of her police statement which said that she did not say anything to the police about what the appellant had been doing to her because she was scared and did not want the appellant to get into trouble and go to gaol (ts 125 ‑ 126).

4. The appellant was convicted on both counts 14 and 15 (both for indecent dealing). 

Counts 16, 17 and 18

1. One Saturday morning, after sailing, D went with the appellant to his office, which was a portable building.  The appellant worked for Timbercorp and the office was somewhere between Australind and Bunbury.  D sat on the desk in the appellant's office.  The appellant pulled her pants down and digitally penetrated her vagina.  D told him to stop and said that she did not like it.  The appellant then performed oral sex on D.  D again told him to stop, but the appellant lifted up her bikini top and sucked her nipples.  These incidents occurred at about midday or 1pm.  There was nobody else at the office premises when D and the appellant were there.  D did not remember telling anybody about these incidents (ts 77 ‑ 79, 114 ‑ 116).

2. In giving her evidence, D recounted the digital penetration and oral sex in the reverse order to the way she had stipulated in her police statement.  D said that she was getting it 'mixed up' (ts 115).

3. The appellant was acquitted of these counts (respectively, two counts of sexual penetration and one of indecent dealing). 

Count 19

1. In about April 2003, D went with the appellant to help him fix something at Linda Spooner's aromatherapy business at Australind shopping centre.  D went into the tanning room and lay down on a massage bed.  The appellant came in and lifted up D's top.  He then went into the kitchen and came back with an ice cube which he rubbed around her nipple.  D then told him to stop and stormed out.  She said the appellant knew she had a boyfriend and that she was very angry (ts 81, 120).

2. Earlier that day, after D had come home from school, she checked her e-mails and found that the appellant had sent her an email that had 'descriptions of head jobs and blow jobs and sex styles and just stuff like that'.  D said she was not sure how the email related to the incident at Linda Spooner's aromatherapy business later that day.  The email document was tendered in evidence.  When D was shown the document, she described it as showing 'how to go down on a woman' (ts 81 ‑ 83).  In cross-examination, D denied that she herself had sent the email to her hotmail account, after having discussions with the appellant about sex, and researching sex on the internet in the appellant's presence.  D stored the email but did not know why she did so.  She agreed that the appellant sent her other innocuous emails containing pictures of rabbits, boats, or things that she was interested in, which she also stored (ts 117 ‑ 119).

3. The appellant was acquitted of this count (indecent dealing). 

Counts 20 and 21

1. In around the end of April 2003, D went on a camp at Fairbridge with N.  D became homesick after four or five days, and returned to Australind.  D telephoned Linda Spooner and the appellant to tell them she was home early.  When the appellant came home, he and D were alone in the house.  D was sitting on the couch watching a movie.  The appellant sat next to D, pulled up her top and started playing with her breasts and sucking on her nipples.  He then pulled her pants down and digitally penetrated her vagina.  D told the appellant to stop because she wanted to watch the movie.  The appellant was initially angry with D for coming home from camp early.  D did not tell Linda Spooner what had happened when she arrived home (ts 85 ‑ 86, 121 ‑ 123).

1. The appellant was convicted on these counts (respectively, indecent dealing and sexual penetration). 

Other events

1. The last incident that occurred between D and the appellant was when D was putting new electric blankets on the beds.  She asked the appellant to help her with the electric blankets, and he pushed her onto the bed and asked her if she could 'suck him off'.  D said no and the appellant left (ts 86 ‑ 87, 124).

2. Not long afterwards, in May 2003, D and N were taken from the Spooner home by the Department for Community Development (DCD) (ts 87).  D described the events leading up to their departure:

   What brought that about? What was happening in the Spooner household at that time?‑‑‑We were coming back up to school and we needed some particular notebooks and Linda said, 'No.  You can just get ordinary ones', and we didn't want the ordinary ones, we wanted these other ones, and so they all jacked up and we all started fighting and then Linda got really upset and angry and said that she didn't want us in her care anymore (ts 87).

3. D agreed, in cross‑examination, that she did not leave merely because of the argument over the notebooks.  She said that she 'just cracked' and 'had had enough of the situation', 'couldn't deal with it anymore', and that the notebooks argument 'just helped it along' (ts 90, 124).

4. D made a police statement in May 2003, after she left the Spooners' house (ts 87).

5. D had stayed with the Spooners for about one year and three months.  The incidents with the appellant commenced about a month or two after she started living with them.  D said that she did not leave earlier because she thought she 'should [not] have to leave the care [of] somebody who treated me nice except for this one man', she liked the rest of the family, and got on well with the other children.  D agreed that she had had contact with Julie Eaton, a social worker, after the incidents with the appellant began to occur, and that she did not tell Ms Eaton anything, but disagreed that this was because the incidents did not occur (ts 91 ‑ 92).  Ms Eaton had specifically asked D about the incident at the swimming pool, but D told Ms Eaton that the appellant had just tightened her bikini top because it was loose.  D did not recall telling Ms Eaton that the Spooners were an affectionate family and that that was the way they kissed each other.  D thought that the DCD would not believe her anyway, given past events with an earlier foster family.  D said that she was mistreated in three subsequent foster families, either physically or sexually (ts 97 ‑ 98).

6. D said that Ms Eaton only saw her during school holidays, and that she viewed Ms Eaton as a DCD worker and 'that was about it'.  D's best friend was N, and N was the person D had told about the two incidents that occurred after the two video nights (ts 126).

Letter allegedly written by D dated 24 July 2003

1. D denied having written, or having seen, a letter dated 24 July 2003, which was signed in D's name, addressed 'To whom it may concern', containing general allegations of abuse in the Spooners' care, abuse by DCD workers, and complaints against DCD's handling of such allegations. D said that when she was living in New South Wales (after she had left the Spooners' care), she received a telephone call from a Detective named Alex Fookes from the local police station, and subsequently made a police statement.  D denied that Alex Fookes showed her the letter.  When shown the letter during cross‑examination, D said she did not recognise the document and that the signature on it was not hers (ts 99 ‑ 101).

Evidence of N

1. N (and her three younger siblings) were in the Spooners' care before D was placed there in 2002 (ts 134 ‑ 135).

Count 1

1. Before D came to live with the Spooners, N, her siblings, the appellant, and Linda Spooner went on a camping trip at Jarrahdale.  One night, N was sitting in the van, with Linda Spooner sitting in the front, and the other children in the back.  The van was dark, and there was a 'Narnia' story tape playing in the van.  The appellant came and sat down next to N, put his hand inside her pants, and digitally penetrated her vagina.  The incident ended when Linda Spooner asked the appellant to do something.  Later, the appellant asked N whether it felt good.  N did not say anything, as she was scared and did not know what to say.  The next day, N was angry.  The appellant asked her if she was angry because of what happened the night before, but N said no because she was scared (ts 136 ‑ 137, 172 ‑ 174).

2. The appellant was convicted on this count (sexual penetration). 

3. N did not say anything about the incident because she was too scared.  She did not know what to say and was shocked.  She felt betrayed and scared that if she said something, she was going to get hit or that her brothers and sisters would be hurt, so she decided not to say anything.  N said it was easier to carry on than cause more trouble.  N said that 'every time you did try and say something we were ‑ I was either called a liar or we just ended up in a lot of trouble.  They'd end up screaming and hitting us and hitting [her brothers and sisters] when I didn't want them to get hurt'.  N said that the appellant and Linda Spooner were doing the hitting, but mainly the appellant, as he was the more violent of the two.  After D arrived at the house, N said the physical violence against, and mistreatment of, N increased (ts 138).

4. N was aware of an incident that occurred between the appellant and D one night when they were watching movies at home.  N fell asleep and when she woke up, the appellant was sitting next to D under the blanket.  N feel asleep again and woke up as a result of D kicking N in the feet.  D was making 'weird faces' at her, so N said they should go to bed.  By that time, Linda Spooner as well as the other children were already in bed.  The appellant told them not to worry, and that they could sleep in the lounge if they wanted.  N refused, and she and D went to bed.  That night, D told N that the appellant had been on top of her, had his pants down and was trying to pull her pants down, but her pants were too tight (ts 139, 174 ‑ 176).

5. The next morning, N told Linda Spooner what D had told her, but Linda Spooner told her to 'stop lying'.  N left the room and went to the kitchen, and Linda Spooner then spoke to the appellant privately.  When the appellant came out to the kitchen, he sat opposite N and started giving her 'evil looks', grabbed a plate and threw it or flicked it across the table at N, and then got up and walked out.  N said she knew that she was in trouble for saying something.  N said that her relationship with the appellant deteriorated to frequent verbal, emotional and physical abuse of her by the appellant (ts 139 ‑ 141).

Count 13

1. N said the appellant would give her massages because she had a sore shoulder, and on one occasion, 'stripped [her] right off'.  The appellant also used to kiss her (and D), by pulling her head close to his, holding it tightly so she could not move, and holding her lips onto his for a long time.  N said that he would do that for so long that it felt like her teeth were hurting and her mouth would hurt afterwards.  The appellant would also sometimes lick the side of her face, give her 'nipple cripples', or feel her breasts and say that they had grown.  N said this happened a lot, at least once a day.  N said she hated the appellant for doing it but was scared.  She was scared because every time she said something, she got hit by the appellant, or N's little sister would get hit.  N said that the appellant would threaten to hit N's younger siblings if she refused to do as he wanted, so N would acquiesce to avoid further harm to her or her siblings (ts 141 ‑ 142).

2. The incident the subject of count 13 occurred at the public swimming pool.  The appellant was kissing N and D in the manner N had described earlier.  When they left the swimming pool, there were some police officers there.  The appellant told the girls to get into the car, and then went to speak to the police.  When the appellant returned, he said that 'the cops were asking about the way I was kissing you.  Stupid dickheads'.  N did not speak to the police (ts 143, 177). N agreed that she gave the appellant hugs, and 'pecks' on the cheek, but never gave him kisses or 'pecks' on the mouth (ts 178).

3. The appellant was convicted on this count (indecent dealing). 

Other events

1. N recalled going on a camp at Fairbridge with D.  When N got home from camp, D came running out of the house, which was unusual, and hugged N.  D then showed N some new electric blankets.  The next day, D told N that the appellant had pushed her onto the electric blanket and was trying to pull her pants down, but then N came home, and D ran out to greet her (ts 143 ‑ 144).

2. Not long afterwards, N and D were removed from the Spooners' care by the DCD.  N told a DCD officer that there was some sexual abuse of her and D by the appellant.  That was the first time N had made any allegation of sexual abuse, apart from telling D.  N then made a police statement, but said that she could not remember a lot of things.  N's three younger siblings were removed from the Spooners' care a few days later.  N stayed in another foster home in Perth, and then moved to New South Wales to live with her parents.  In New South Wales, N made another police statement that was more detailed.  N specified some of the sexual and emotional abuse she had suffered (ts 144 ‑ 146, 151 ‑ 152).

3. While in the Spooners' care, N had ongoing contact with social workers, and with her mum and stepdad, and had even run away once to stay with her mum and stepdad in Canberra.  After N ran away that time, she telephoned the Spooners to speak to her siblings, but the appellant said that she would not be allowed to speak to them unless she came back.  N returned, with the help of the DCD, to the Spooners' care because she wanted to look after her siblings.  She did not tell the DCD what the appellant had said to induce her to come back.  N said that she was scared, and that she had tried telling the DCD in the beginning that the appellant hit her, but they told her to 'stop lying'.  N thought that the DCD did not believe her and so she stopped telling them anything (ts 149 ‑ 150).

4. In her police statement, N talked about the sexual penetration, and the hugs and kisses the appellant used to give her, but did not mention the massages or 'nipple cripples'.  N said that she did not know then that the massages were something she should include in her statement and that she forgot about them and the 'nipple cripples'.  N remembered the face licking, but did not mention it because 'it's disgusting'.  N also felt uncomfortable while making her statement because her DCD case manager was also in the room, and the case manager had always said that N was lying in the past (ts 155 ‑ 158).  N also did not tell the police about the appellant beating her because she was scared that he might hurt her siblings, who were, at that time, still in the Spooners' care (ts 160 ‑ 161).

5. N clarified that, in the past, she had reported the physical and emotional abuse (but not the sexual abuse) to the DCD, but was always told to 'stop lying'.  N did not report any sexual abuse until after she was removed from the Spooners' care (ts 170 ‑ 171).

6. Just before N and D left the Spooner home, N agreed that there was a lot of fighting and arguing between N and D on the one hand, and the appellant and Linda Spooner on the other.  N agreed that there was an argument about getting their belly buttons pierced, but that the main reason for the argument was because N got angry and confronted the appellant about his touching D, N told Linda Spooner that the incidents with D were still occurring, and N told the appellant that he made her sick (ts 178 ‑ 179).

Evidence of Colleen Margaret Lawson (scout group leader)

1. Ms Lawson was a scout group leader in 2002, and knew the appellant and his foster children, including N and D.  On the video night, the night on which the incident the subject of count 2 were alleged to have occurred with D, Ms Lawson said that D and the appellant slept in the same tent.  D went to bed first, and the appellant was up reading.  In the morning, Ms Lawson saw that D and the appellant were sleeping side by side in the same tent.  Ms Lawson did not notice any change in D's behaviour between the night before and the next morning (ts 182 ‑ 189).

2. Ms Lawson said that N was overly affectionate to the appellant and would 'cling' to him, but the appellant always pushed her away, asked her to stop, or told her it was inappropriate.  Ms Lawson observed this interaction in 2001 or 2002 (ts 189 ‑ 190).

Evidence of Janice Lorraine Wilson

1. Ms Wilson was at the Leschenault recreation centre public swimming pool with her husband and children on 1 January 2003.  Ms Wilson saw two young girls having a heated discussion, and then an 'elderly gentleman' walked up to speak to them.  The shorter girl stormed off and the gentleman talked to the taller girl, and then spoke to a young boy who was also with them.  The girls looked to be about 14 or 15 years old.  Later, Ms Wilson saw the gentleman squatting near the whirlpool and the shorter girl speaking to him.  The shorter girl lifted herself onto the side of the whirlpool and gave him a kiss which Ms Wilson thought was 'very out of character for a father, daughter position'.  They had their mouths open and the kiss lasted for a good couple of minutes (ts 191 ‑ 192, 197 ‑ 198).

2. Later, Ms Wilson saw the gentleman sitting on the far side of the smaller pool and the taller girl walking around to sit on a chair next to him.  She put her head on his shoulder, they looked at each other, and she gave him a kiss that lasted probably a minute or two.  She then put her legs up over his knees, slid onto his lap with her arm around his shoulder, and gave him another kiss.  While this was happening, the gentleman held the girl's breast, on the outside of her bikini top, for a minute or two while she kissed him.  The man then adjusted the girl's bikini top, by retying the ties behind her neck and behind her back, then slid his hands down over her breasts.  Ms Wilson then went to speak to the lifeguard to see if he saw the incidents, and then reported the incidents to the receptionist, who called the police.  The police came and spoke to the appellant in the car park, spoke to the receptionist, and then left (ts 192 ‑ 193, 199 ‑ 200).

3. The shorter girl was N and the taller girl was D.

Evidence of John Maxwell Garwood

1. Mr Garwood went to the Leschenault recreation centre public swimming pool with his wife and children on 1 January 2003.  While he was there, he saw a man kissing a young girl, who appeared to be about 14 or 15, two metres away from the pool edge.  It was 'quite a long amorous kiss' and Mr Garwood thought that the behaviour was 'pretty inappropriate for that area and for ... the age difference between the two'.  The girl and man were facing each other and the man was holding the girl by the shoulders when they 'embraced in a passionate kiss'.  The kiss lasted for about three or four seconds (ts 201 ‑ 202, 204).

2. The next thing Mr Garwood saw was the man walking around the pool with his arm around the girl's shoulder.  The man sat on the other side of the children's play pool next to the young girl and had his arm around her neck for quite a while.  The man started playing with the girl's bikini strap on her back for about two or three minutes.  Mr Garwood then reported what he had seen to the management and asked them to notify the local police.  Mr Garwood said that the girl was 'very responsive to [the man's] advances' (ts 202, 205).

3. Mr Garwood had observed the appellant with D.

Evidence of Julie Anne Eaton and Susan Elizabeth Galbraith (DCD workers)

1. Ms Eaton was an acting senior field officer at the DCD.  Ms Eaton managed D's case from August 2002.  D was an emergency foster placement and was placed with the Spooners in Karrinyup in February 2002.  N and her younger siblings were already fostered with the Spooners at that time.  The Spooners and the children moved to Australind in August 2002.  Once D moved to Australind, Ms Eaton spoke to D on the telephone a 'few' times and went to see her once (ts 205 ‑ 207).

2. Ms Eaton visited the Spooners in January 2003, with Ms Galbraith, as a result of information she received about an incident at the Leschenault recreation centre public swimming pool.  Ms Eaton and Ms Galbraith spoke to the Spooners and told them it was inappropriate for the appellant, as a father figure, to be kissing or touching D in that manner.  The appellant said that he often kissed the children that way and was very affectionate with them.  The appellant was also told that it was inappropriate for him to be helping D with her bikini top.  The appellant said he had kissed D and tightened her bikini top, and otherwise had not touched D.  Linda Spooner said that she had felt uncomfortable with the way N and D behaved with the appellant and that she had so informed the appellant on numerous occasions.  The appellant said that he was not aware of the attention from N and D.  Ms Eaton suggested to the appellant that he discourage N and D from kissing him on the lips and being too physically affectionate as it would send the girls the wrong message (ts 207 ‑ 210, 217 ‑ 218).

3. Ms Eaton thought she had quite a close relationship with D.  She had little contact with N, as she was not N's case manager.  Since the age of two, until the age of 17, D  had been in about six or seven foster homes (ts 210).

4. Ms Eaton explained that it was the normal procedure to contact the children whose cases she managed every three months as a minimum.  She agreed that she felt she had developed a rapport with D and was fairly close to her.  D had telephoned Ms Eaton when she was unhappy at an earlier placement and wanted to move.  When Ms Eaton had contact with D, D never reported any problems with the Spooners.  When Ms Eaton spoke to D about the incident at the Leschenault recreation centre public swimming pool, D said that she had asked the appellant to tighten her bikini top, but did not say that he had touched her on the breast.  D said that the appellant had kissed her on the lips but said that the family always did that.  She did not describe the kiss.  D said that all the children kissed each other on the lips and that it was an affectionate family.  Before D was taken out of the Spooners' care and made a complaint, D had never made allegations of sexual misconduct against the appellant to Ms Eaton (ts 212 ‑ 217).

5. Shortly after January 2003, D's case was transferred to another case manager (ts 220).

6. Ms Galbraith was a senior social worker with the DCD.  She worked with and supported the carers, in this case, the Spooners, but did not have a direct case management role with N, N's siblings, or D.  Ms Galbraith had contact with N and D when she visited the Spooners.  During this period, neither N nor D made any allegation of sexual abuse against the appellant (ts 221 ‑ 223).

Evidence of Kevin John Wisbey (police)

1. In May 2003, Detective Senior Constable Wisbey was attached to the child abuse investigations unit.  On 6 May 2003, he received certain information concerning N and D.  On that day, statements were obtained from N and D.  Detective Senior Constable Wisbey identified the email that D alleged was sent to her by the appellant.  Detective Senior Constable Wisbey attempted to locate the appellant, but he was not at the house in Australind, and had ceased his employment around 8 or 9 May 2003.  The police eventually located him in New Zealand (where he originally was from).  The appellant was extradited to Australia (ts 224 ‑ 227).

2. Detective Senior Constable Wisbey said that the statements would have been taken from N and D by staff who were trained in dealing with children in relation to sexual matters (ts 227 ‑ 228).

Evidence of the appellant

1. N and her siblings came into the Spooners' care (first the two younger, then the two older, siblings) in about 1998.  The Spooners also took care of a couple of other foster children on weekend 'respites'.  In February 2002, D came into the Spooners' care (ts 232 ‑ 233).

2. The appellant has never had any allegations or charges of sexual abuse made against him in the past.  The appellant said that they had 'heaps' of contact with the DCD and 'got on very well' with Ms Galbraith.  Initially the contact was every week, but over time, reduced to at least once a month (ts 233).

Count 1

1. The appellant said he had set up the back of the van so that the two back rows of seats faced each other.  He said that they were sleeping in tents, and listened to the 'Narnia' story CD from a portable CD player.  The appellant was lying with Linda Spooner on a mattress in the tent, and the children were lying in the other room of the tent.  When the batteries of the CD player ran out, the appellant played the CD from the van, which was parked next to the tent so they could hear it.  The appellant fell asleep next to his wife that night.  The appellant denied being next to N in the van and digitally penetrating her vagina.  The Spooners and the children went on more camping trips, and N did not show any resistance to going camping (ts 234 ‑ 237, 283 ‑ 285).

2. The appellant was convicted on this count.

Count 2

1. The appellant was a scout group leader.  N's younger male sibling and D were at the scout hall that night.  The children's tents were on one side of the hall and the appellant's tent was on the other.  Ms Lawson (the other scout group leader) was sleeping at the front of the hall.  N's younger male sibling was to sleep with the appellant in the appellant's tent.  At the end of the night, D insisted that the appellant sleep in her tent with her, and despite refusing initially, the appellant did so.  The appellant denied that he digitally penetrated D that night.  He said that D was in her sleeping bag, was wearing tight jeans, and that he would not have been able to do that without causing a 'commotion'.  The appellant said he got up during the night to check on N's younger male sibling, and perhaps had a cigarette (ts 239 ‑ 242, 285 ‑ 289).

2. The appellant was convicted on this count.

Counts 3 ‑ 8 

1. In relation to the alleged incidents at the Spooners' house while they were watching movies, the appellant confirmed that he did watch some of the movies, that he was on the internet, that he probably made coffee, and that Linda Spooner was out of the room, but he denied that he digitally penetrated D in her vagina.  He also denied N's allegation that the appellant was on top of D at one point.  A letter from the TV channel GWN, in response to the appellant's query, confirmed that the movie 'Honey, I Shrunk the Kids' was screened on 21 September 2002 (which is within the period stipulated by D in relation to the occurrence of these counts) (ts 245 ‑ 248, 293 ‑ 295).

2. The appellant said that there was no discussions, as alleged by N and D, between the appellant and Linda Spooner the next day, about the appellant's behaviour towards D (ts 296).

3. The appellant was convicted on counts 3 ‑ 4 and 7 ‑ 8, but acquitted of counts 5 ‑ 6.

4. Linda Spooner never raised with the appellant the subject of his inappropriate touching of the children.  She was, however, concerned about the hugs and kisses.  The appellant said the family was 'pretty affectionate'.  He also said the 'hugging was hugging' and the 'kissing was on the mouth', but was not passionate kissing (ts 248).

Counts 9 and 10

1. The appellant said that he never went swimming with D in the estuary.  He denied the events the subject of counts 9 and 10.  The appellant was acquitted of these counts (ts 253, 296 ‑ 297).

Counts 11 and 12

1. The appellant denied that he went sailing on the estuary with D at the relevant time.  He said that there was no boat, that D could not sail, and that she would not sail with a broken wrist.  The appellant denied touching D on the breast when they had gone sailing one day.  He said that they went sailing often.  He also denied ever touching her or licking her on the vagina.  He said that he never touched D sexually at any time when they went sailing (ts 253 ‑ 254, 299).

2. The appellant was convicted on these counts.

Counts 13, 14 and 15

1. These counts concerned the incidents at the Leschenault recreation centre public swimming pool with N and D.  The appellant was at the swimming pool with all the children.  Linda Spooner was at home.  The appellant said, contrary to D's evidence, that Linda Spooner was not at the pool, and did not take N home because N's eyes were sore (ts 260 ‑ 261).

2. The appellant said that N and D had a fight over their bikinis.  D was upset and the appellant walked her over to the spa area, talked to her there, calmed her down, kissed her, gave her a hug and D went off to swim.  The kiss was on the lips and lasted for about two seconds.  It was not an open-mouth kiss, nor was it passionate or lingering.  The appellant said the kiss would have been affectionate, and that he was very fond of the children (ts 262).

3. When the appellant was crouched near the whirlpool, watching the children playing, N popped out of the pool and gave him a kiss.  He described it as a 'bang' on the lips, and said he was surprised by it.  The appellant did not think that N would have been strong enough to stay up in the whirlpool in one position for a longer period of time because the water moved quite quickly (ts 263).

4. The appellant denied that there was any passionate kissing between him and N or D that day (ts 263).

5. Later, D called the appellant to the shallow end of the pool and asked the appellant to come swimming.  The appellant refused because he did not have a 'swimming' ticket, only a 'spectator' ticket.  He pointed out to D that her bikini top was really loose.  They went to sit down on some seats and the appellant again pointed out to D that her bikini top was too loose.  D 'jumped across' onto the appellant's lap and pulled the sides of her bikini to the correct tension.  She asked the appellant to retie the bikini and he did so, at her back and around her neck.  He did not touch her breasts while doing so.  The appellant then gave her a 'bye-bye' kiss and a hug, and told her to go and play.  The appellant thought he re‑tightened her bikini strap when they were near the spa pool (ts 264 ‑ 266, 299 ‑ 300).

6. The appellant spoke to some police officers outside the swimming pool.  The appellant said he answered their questions, and felt nervous because he had too many children in the car (ts 266).

7. The appellant was convicted on these counts.

Counts 16, 17 and 18

1. The appellant worked at Timbercorp, a chip mill export company.  He described his office as being a demountable office in the middle of a yard.  The appellant said the children would often go to his work, and that D had been there alone with him.  On the relevant occasion, the appellant said he went with D to his workplace to check on some of the machinery.  He said that the boilermakers were in the yard at the time.  He denied the incidents the subject of the counts (ts 259 ‑ 260, 300).

2. The appellant was acquitted of these counts. 

Count 19

1. The appellant was asked about the email he allegedly sent to D.  The appellant said that he and D were both at the computer at home when the email was sent.  D was looking at the website, and asked if she could send the pages to her 'Hotmail' email account because she wanted to show some friends at school.  The appellant suggested that she send the 'URL' or address link of the page instead, because sending the pages would take a long time.  The appellant said that he typed the words 'To heat you up' in the email.  He said he did that because 'hot' was the popular word that D was using at the time, for example, the boat is 'hot', the car is 'hot', that bloke is 'hot'.  He explained, by analogy, that the word 'gold' was, at the time of trial, the popular word.  The appellant said that because the page was 'hot', he typed in 'To heat you up'.  He was not suggesting that he wanted to have some sort of sexual relations with D.  The appellant explained that the page he originally directed D to was about 'normal sex' and that the pages that were eventually emailed were pages that branched off that original page, which D found herself (ts 266 ‑ 272, 303 ‑ 305).  Linda Spooner did not know about these discussions between the appellant and D (ts 304).

2. The appellant was asked whether he felt it was inappropriate to be talking to D about sex-related matters: 

   Did you think it was inappropriate that you were sitting there on the computer speaking – talking to D about that sort of thing?---No

   Why not?---She was like 16 years old.  The reason that all this started up was because of where I was before, I was talking about marriage.  She let me know then that she had lost her virginity at 16 while she was on a camp on the school holidays (ts 272).

   STONE MR: Your Honour, I object.  None of this was put to [D] when she gave her evidence.  I mean, really.  She says she lost it through him (ts 272).

3. The appellant said that he wanted to educate D about sex, about how to do it properly and to practise safe sex.  He wanted to give her information that was more 'up-market', that she could relate to.  He felt it was better that she receive such information from home as opposed to from her friends.  Further, he had read the material and believed that a lot of it was about sexual hygiene.  The appellant denied ever performing oral sex upon D or touching her vagina (ts 272).

4. The appellant denied that he was at Linda Spooner's office alone with D following the incident with the email.  He said he was only alone there with D at Christmas time when they were putting together bicycles that had been bought as presents.  He denied touching her in a sexual way at that time, or applying ice to her breasts.  The appellant said there was a small bar fridge at the premises but no ice (ts 272, 305 ‑ 306).

5. The appellant was acquitted of this count. 

Counts 20 and 21

1. The appellant said that D had come home early from the Fairbridge camp because she was homesick.  The appellant arrived home from work first and was angry and annoyed with D for coming home early, because he and Linda Spooner had planned to spend some quiet time together (even though the younger children were still at the house).  The appellant said that he was alone with D for about half an hour before Linda Spooner came home with the other children.  He denied sexually touching D in the time he was alone with her (ts 273 ‑ 274, 306 ‑ 307).

2. The appellant was convicted on these counts. 

Other events

1. The appellant denied a later incident, namely, that he had pushed D onto a bed and that there was some sexual conduct.  The appellant remembered that they had bought electric blankets the night before N got home from camp, but denied the sexual allegations (ts 274, 307).

2. The appellant said that when N arrived home from the Fairbridge camp on a Friday, both he and D went to greet her and carry her bags.  N had met a boyfriend at the camp.  There were many arguments that night.  The appellant said that N wanted to go and live in a hostel in Bunbury because her new boyfriend lived there, and D decided she wanted to go with N.  There were arguments about school books, belly button piercing, boyfriends being allowed at the house, and the girls being allowed to go into town to see their boyfriends.  The Spooners refused to allow the girls to stay at the hostel.  The appellant said that N and D were 'out of control' that weekend.  The DCD took N and D out of the Spooners' care on the following Monday.  The other children were taken out on the next Wednesday.  The appellant said that the DCD notified him that the N and D had made allegations of a sexual nature against him, but did not give him any details.  The appellant said he could not concentrate at work so he resigned.  About a week to 10 days after the girls left the house, he and Linda Spooner drove to Sydney and then flew to New Zealand.  The appellant went to New Zealand because he was told that N and D had made serious allegations against him (ts 275 ‑ 277, 287, 307).

3. In about March 2002, before the Spooners and the children moved to Australind, the Spooners discovered that N had been secretly contacting her mother in Canberra.  The appellant had a 'huge' argument with N and N became hysterical, was calling them names, and was out of control.  The appellant slapped N.  N stormed out of the house to a friend's place and arranged to go to see her mother in Canberra.  N was in Canberra for a few days.  The appellant denied that N was essentially threatened to return because of her siblings.  The appellant said that they refused to let N speak to her siblings because the DCD had told them not to let N dictate matters and that N was not to speak to the other children unless there was a DCD worker present.  A little later, N rang the appellant and said 'Daddy, I want to come home' and that she did not like it where she was.  The DCD then arranged for N to come back to Perth (ts 243 ‑ 245, 292 ‑ 293).

4. As to any physical contact the appellant had with N, he said that he had slapped N on the occasion before she left for her mother's house in Canberra.  He said he had been angry with N and D another time when they had been smoking.  He had grabbed N by her shirt front and given her a shake.  The appellant could not remember any other occasions when he had disciplined N.  He said, generally, the children would get a smack on the bottom if they needed to be disciplined (ts 290 ‑ 292).

Evidence of Linda Mary Spooner

1. Ms Spooner had been married to the appellant, at the time of the trial, for 20 years (ts 310).

2. N and her three siblings came into the care of the Spooners in 1998.  Ms Spooner described the relationship between the appellant and N as being 'very close' and that they had a 'good relationship'.  She said that the children were like their own children, and were very close to both of them.  Ms Spooner never saw any sexually inappropriate behaviour between the appellant and N.  She said that there were often kisses and hugs exchanged.  Ms Spooner said that the kisses and hugs were inappropriate on N's part, and that she had received advice from the DCD as to how to handle the situation.  N would jump on the appellant's lap, put her arms around his neck and kiss him on the lips, which Ms Spooner thought was fine when N was young, but did not think it should continue when N reached the age of 14, 15 or 16 years.  D exhibited similar behaviour towards the appellant as N.  Ms Spooner thought that D and N seemed to be in competition with each other for the appellant's affection.  This behaviour concerned her greatly.  When they had moved to Australind, Ms Spooner told the appellant that she was concerned that the behaviour of D and N towards the appellant was inappropriate and that he could 'get himself into strife, basically'.  The appellant's behaviour did not concern Ms Spooner, and after Ms Spooner had talked to the appellant, he started to try and be a bit firmer with the girls, in terms of pushing them away (ts 310-313).

3. Ms Spooner recounted the circumstances surrounding count 1, the camping trip at Jarrahdale.  She said they had a big tent that had three areas, two rooms on each side, and a middle section.  There were extra tents for the children to sleep in.  She said that they played the 'Narnia' story CD from a portable stereo inside the tent.  The children, including N, were in the middle section of the tent and she and the appellant were lying on a mattress in one of the rooms of the tent.  The batteries of the portable stereo ran out.  The appellant therefore played the CD from the van so it could be heard from the tent.  Nobody was in the van listening to the CD.  Ms Spooner did not see any physical contact between the appellant and N.  She did not notice any change in N's behaviour over the course of the camping trip (ts 313 ‑ 314).

4. N and D never spoke to Ms Spooner about inappropriate sexual behaviour by the appellant.  There was no discussion on a Saturday morning involving N and the appellant, which resulted in Ms Spooner going to speak to the appellant about his sexual behaviour towards the children (ts 314 ‑ 315).

5. Ms Spooner had a whiteboard on which she would write the 'rules' of the house, and what behaviour was acceptable.  After speaking to the DCD about N and D's behaviour towards the appellant, it was agreed that such behaviour was inappropriate, and Ms Spooner made a rule that if the girls wanted to kiss the appellant, it had to be on the cheek.  The girls were not to demand hugs, jump on the appellant's knee or hang around his neck.  The rules about kissing and hugging were introduced after the incident at the Leschenault recreation centre swimming pool.  Some DCD workers came to see the Spooners after the incident at the swimming pool.  Ms Spooner said that the rules about hugging and kissing, and other general rules about behaviour, applied to the whole house, not just N and D.  If the rules were broken, the children would be reminded about them.  N and D were not happy, and a bit upset, about the rules.  Ms Spooner said she explained to them that they were no longer small children, but young women, and that their displays of affection to the appellant could be misconstrued (ts 315 ‑ 316).

6. Ms Spooner confirmed that she had an aromatherapy practice.  She said that the children often accompanied her or the appellant to her practice (ts 317). She did not remember the appellant ever taking D to the practice alone.  Ms Spooner could not recall if the appellant ever took D alone to his office at Timbercorp.  The appellant took all the children sailing, and did take D alone sailing, on the estuary, because the boat could only fit two people, but he did not often take D alone sailing.  The appellant did not go swimming in the estuary (ts 333). 

7. As to the incident at the Leschenault recreation centre swimming pool, Ms Spooner said that she did not go to the swimming pool that day.  She recalled that all the children went to the swimming pool, but she stayed at home.  Ms Spooner rarely went to the pool.  Workers from the DCD came to see the Spooners as a result of the incident at the swimming pool.  Ms Spooner then introduced the rules about kissing and hugging (ts 315 ‑ 316, 318).  The appellant told Ms Spooner that the police had been called because a complaint had been made as a result of N kissing him in the whirlpool and because D had sat on his knee while he did up her bikini top (ts 330).

8. As to the camp at Fairbridge that N and D attended, Ms Spooner said that she was not happy that D came home from camp early because she was homesick.  Ms Spooner and the appellant wanted some respite and to spend some time together (the younger children were at home, but were at a vacation care program during the day).  Ms Spooner thought that she and the appellant arrived home together that day, but she was not sure (ts 318 ‑ 319).

9. Ms Spooner explained how N and D came to leave the Spooners' care.  On the Friday after N had arrived home from the Fairbridge camp, N was in a bad mood, and after N and D spent some time in the bedroom, 'all hell broke loose'.  They were swearing, abusive, mean to the other children, and spent most of the night in their room.  The next day they were arguing with everyone, would not listen to anyone, had 'wrecked' their bedroom, and were packing up their things.  N and D said that they were moving out of the house to get away from the 'bratty kids' and the Spooners, and going to live in the hostel where their friends were.  On the Sunday morning, things had not calmed down, and the appellant took the younger children out because they were getting upset.  Ms Spooner rang Crisis Care.  N and D swore at and verbally abused Ms Spooner and turned their stereo up to full volume.  They went outside and picked up sticks and branches and ran around the house screaming and hitting the windows and doors of the house and screaming abuse at Ms Spooner.  The social workers arrived at the house and said they would make arrangements to find another placement for the girls.  They did not want to place them at the hostel because it was full, and also so as not to give in to the girls' demands.  N and D stayed at the Spooners' house that Sunday night.  DCD removed N and D on Monday morning.  N's siblings were removed on Wednesday (ts 319 ‑ 322).

1. About a week and a half or two weeks after the children had been removed, Ms Spooner and the appellant went to New Zealand.  One of the reasons for leaving was for the appellant's health.  The appellant was not coping well with having the children removed from their care.  They also went to New Zealand to attend a family reunion, and because they had always thought that they would go to New Zealand when they did not have any more children to look after (ts 322 ‑ 324).  Ms Spooner sold her business, the appellant left his job, they vacated their rental premises in Australind, drove to Sydney, and then flew to New Zealand.  At that stage, Ms Spooner said she knew the allegations against the appellant were of a sexual nature and that they were not true (ts 334 ‑ 336).

2. Ms Spooner was asked about the email allegedly sent by the appellant to D.  She did not think the words 'to heat you up' were inappropriate because the word 'hot' was a popular word that the girls were using at the time.  The appellant had told Ms Spooner that he downloaded the document for D, but that she had emailed it to herself.  Ms Spooner said that if she had been asked before the document was downloaded, she probably would not have allowed it, but would have preferred to talk to D about such subjects.  Ms Spooner could not remember any specific occasion when the appellant discussed sexual matters with N and D, but said that they would ask him questions and that he would answer them.  Ms Spooner did not know what kind of questions the girls would ask the appellant (ts 325 ‑ 328).  Ms Spooner said that she did discuss sexual matters with D, more than she did with N (ts 332).

3. Ms Spooner said that N and D would flirt with the appellant openly, and said that such behaviour was quite common with girls in care (ts 328).

Ground 1: Inconsistent verdicts

1. The appellant contends that no reasonable jury, which had applied its mind properly to the facts of the case, could have convicted him on counts 1 ‑ 4, 7 ‑ 8, 11 ‑ 15 and 20 ‑ 21, but acquitted him of counts 5 ‑ 6, 9 ‑ 10 and 16 ‑ 19. 

2. I note that counts 1 and 13 were the only counts that related to the complainant N, and that the appellant was convicted on both those counts.  It follows, therefore, that any issue of inconsistency must relate only to the counts on which the appellant was convicted and the counts of which he was acquitted, in relation to D.

3. By s 30(3) of the Criminal Appeals Act 2004 (WA), in the case of an appeal against conviction, the Court of Appeal must allow the appeal if, in its opinion:

   (a)the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported;

   (b)the conviction should be set aside because of a wrong decision on a question of law by the judge; or

   (c)there was a miscarriage of justice. 

4. In M v The Queen (1994) 181 CLR 487, 492, Mason CJ, Deane, Dawson and Toohey JJ said, in relation to s 6(1) of the Criminal Appeal Act1912 (NSW) (which is in substance identical to s 30(3) of the Western Australian Criminal Appeals Act), that although the phrase 'unsafe and unsatisfactory' does not appear in the statutory provision, it allows a verdict to be set aside when the verdict is unreasonable or not supportable on the evidence.  Also see Jones vThe Queen (1997) 191 CLR 439, 450.

5. In M (523), McHugh J said that a 'miscarriage of justice' arises whenever the accused has not had a fair trial according to law or whenever the nature of the evidence, the directions to the jury or the procedures that were followed, raise a real doubt as to whether the conviction can be regarded as a safe or just conviction.  In Jones (450), Gaudron, McHugh and Gummow JJ said that, having regard to the statements in M, there can be no doubt that a 'miscarriage of justice' also occurs when the findings or verdicts of the jury raise a real doubt as to whether a conviction is safe or just. 

6. In M, Mason CJ, Deane, Dawson and Toohey JJ said that the test for an unsafe or unsatisfactory verdict was whether the court thought that:

   upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (493).

   In answering that question, their Honours said:

   [T]he court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations (493).

   Their Honours explained the application of the test:

   In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.  That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.  In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (494 - 495).

   Also see Jones (450 ‑ 451).  The test formulated by the majority in M is the appropriate test for determining whether a verdict is unsafe or unsatisfactory:  Jones (452); MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, [25].

7. In Libke v The Queen [2007] HCA 30; (2007) 81 ALJR 1309, Hayne J (with whom Gleeson CJ and Heydon J relevantly agreed) said that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is:

   [W]hether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt (M v The Queen (1994) 181 CLR 487 at 492 - 493, 69 ALJR 83). It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt [113]. (emphasis in original)

   Also see Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ).

8. In Mackenzie v The Queen (1996) 190 CLR 348, 366 ‑ 368, Gaudron, Gummow and Kirby JJ enunciated a number of general propositions distilled from a review of the cases on inconsistent verdicts. The principles in Mackenzie were applied in MFA, where Gleeson CJ, Hayne and Callinan JJ said:

   Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case.  Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system.  A number of features of that context were emphasised in MacKenzie.  They include the following.  First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count.  This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part.  Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution.  In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence.  In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant.  This may not be unreasonable.  It does not necessarily involve a rejection of the complainant's evidence.  A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt.  The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution.  A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant.  It may simply reflect a cautious approach to the discharge of a heavy responsibility.  In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.  Thirdly, there is the consideration stated by King CJ in R v Kirkman ((1987) 44 SASR 591 at 593), and referred to in later cases (eg, Mackenzie v The Queen (1996) 190 CLR 348 at 367 ‑ 368): it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed [34].

9. More recently, in Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303, Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ said, in relation to inconsistency of verdicts:

   Difficulties in understanding jury verdicts which are explicable on the basis that one of them is 'merciful', or that they accord with the jurors' innate sense of fairness and justice, do not lead to the conclusion that the jurors have acted unreasonably (Mackenzie v The Queen (1996) 190 CLR 348 at 367 ‑ 368). The question in the present case is whether that is the explanation, or whether the jury, faced with a position in which some favoured conviction of rape on both counts and some did not, compromised by convicting only of one act of unlawful carnal knowledge and one rape. It is for the appellant to demonstrate that the latter is the case (Mackenzie v The Queen (1996) 190 CLR 348 at 368). This the appellant has not done. The verdicts do not in themselves represent, on the public record, an affront to logic and commonsense. The fact that, if the jury were minded to be merciful, it would have been more logical to convict on count 6 and acquit on count 7, is an insignificant detail: from the point of view of mercy, it did not matter which count was the subject of the conviction. 'It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside' (Mackenzie v The Queen (1996) 190 CLR 348 at 368) [71].

10. In Jones, the accused was charged with three acts of sexual intercourse with a female child. The jury acquitted the accused of the second count, but convicted on the first and third counts. The accused appealed against conviction on the ground that there had been a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 (NSW). The majority of the High Court, applying the test in M, held that the convictions should be set aside in that they were unsafe and unsatisfactory.  Gaudron, McHugh and Gummow JJ said:

    Given the jury's finding on the second count, it was not open to them, on the whole of the evidence, to be satisfied beyond reasonable doubt of the guilt of the appellant on the first and third counts.  Once the jury found that the evidence of the complainant with respect to the second count lacked sufficient cogency to convict, the Crown case on the first and third counts wore a different complexion.  For it meant that, when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof.

    As we have already said, nothing in the complainant's evidence gave any ground for thinking that the quality of her evidence was higher in respect of the first and third count than it was in respect of the second count (455).

11. In MFA, Gleeson CJ, Hayne and Callinan JJ made the following observations about Jones:

    … some Judges have taken Jones as authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility.  That view is erroneous.  It overlooks the attention to factual detail in the reasoning of Jones.  It also overlooks the principles stated in MacKenzie, which were not qualified in Jones, and the considerations mentioned in the preceding paragraph [see [34] extracted above] in these reasons.  Jones is not to be understood as establishing a set of legal propositions, separate or different from the test formulated in M, which must be applied in deciding whether a conviction on one or more counts of sexual offences, when the accused was acquitted on other counts, is unreasonable, or cannot be supported, having regard to the evidence [35].

    Also see, in MFA, these comments of McHugh, Gummow and Kirby JJ in relation to Jones: 

    We would dissent from the proposition that Jones stands for a rule that, in cases of complaints of a number of sexual offences, a jury must either accept or reject the lot.  It always remains for a court of criminal appeal whose jurisdiction is invoked to examine any differentiation in the verdicts to see if it can be justified.  All that Jones decides is that, on the facts of that case, the necessary justification in logic and reasonableness was missing.  Jones was a very fact-specific case. Indeed, all such cases are highly fact-specific [89].

12. See also Cecez v The State of Western Australia [2007] WASCA 260, [119] ‑ [123]; G v The State of Western Australia [2007] WASCA 202, [68]; Ferris v The State of Western Australia [2007] WASCA 69, [142] ‑ [146]; Riley v The State of Western Australia [2007] WASCA 22, [16] ‑ [25]; VIM v The State of Western Australia [2005] WASCA 233; (2006) 31 WAR 1, [187] ‑ [194]; R v Kirkman (1987) 44 SASR 591, 593.

13. Accordingly, there is no general rule that in cases where several sexual offences depend upon the complainant's evidence, acquittal on some counts requires the conclusion that the jury must necessarily have regarded the complainant generally as an untruthful witness or that his or her credibility was undermined in respect of the counts on which convictions were recorded:  R v PMT [2003] VSCA 200; (2003) 8 VR 50, [25].

14. In the present case, no relevant inconsistency has been shown in the verdicts reached by the jury.  As to the convictions on counts 3, 4, 7 and 8, and the acquittals of counts 5 and 6, which concerned incidents that occurred on the same night, the jury's verdicts are explicable on the basis that they were not willing to convict the appellant on all four counts of digital penetration of D's vagina, because of the apparent inconsistency in D's evidence as to whether she did up her pants after each incident (see [13] ‑ [14] above).  The acquittals of counts 9 and 10 are explicable on the basis that D was uncertain of the exact date on which the offences occurred or on the basis of the evidence of both the appellant and his wife that the appellant never swam in the estuary (see [24], [88] and [116] above).  The acquittals of counts 16 ‑ 18, which allegedly occurred at the appellant's office, are explicable on the basis of the apparent inconsistency in D's evidence as to the order in which the offences were committed or on the basis of the appellant's evidence that, at the material time, other workers were in the vicinity (see [33] and [98] above).  Finally, the acquittal of count 19 is explicable on the basis that the appellant said there was no ice on the premises or on the basis that Linda Spooner did not remember the appellant ever taking D to her practice alone (see [103] and [116] above).  

15. The learned judge instructed the jury to give separate consideration to each count (ts 350 ‑ 351), and it is apparent that the jury did so, given their verdicts of guilty on some counts and not guilty on others.  A verdict of not guilty does not necessarily imply that a complainant has been disbelieved.  It may simply reflect a cautious approach to the discharge of a heavy responsibility.  A jury may need supporting evidence before reaching a conclusion beyond reasonable doubt, or may not be able to reach such a conclusion if the complainant has shown uncertainty as to matters of detail, has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than others.  Further, a jury may feel, despite a number of offences being alleged, that justice is met by convicting an accused of some only.  See MFA [34].

16. The verdicts do not represent an affront to logic and commonsense, Phillips [71]. It was open to the jury, upon the whole of the evidence, to be satisfied beyond reasonable doubt that the appellant was guilty on counts 1 ‑ 4, 7 ‑ 8, 11 ‑ 15 and 20 ‑ 21, but not to be satisfied to the requisite standard in relation to counts 5 ‑ 6, 9 ‑ 10 and 16 ‑ 19. My review of the trial record does not indicate that the jury failed properly to apply its mind to the facts of the various counts in the indictment.

17. I would grant leave on, but dismiss, ground 1.

Ground 2: Prejudice against the appellant

1. As I have mentioned at [101] above, the following exchange occurred, during the examination‑in‑chief of the appellant, when he was asked about the propriety of the email he allegedly sent to D:

   Did you think it was inappropriate that you were sitting there on the computer speaking – talking to D about that sort of thing?‑‑‑No

   Why not?‑‑‑She was like 16 years old.  The reason that all this started up was because of where I was before, I was talking about marriage.  She let me know then that she had lost her virginity at 16 while she was on a camp on the school holidays. 

   [Counsel for the State]: Your Honour, I object.  None of this was put to [D] when she gave her evidence.  I mean, really.  She says she lost it through him (ts 272).

2. The appellant complains that the learned judge erred in law and in fact in permitting the prosecutor to 'predispose the jury to believe that the appellant had had sexual intercourse with [D] creating severe prejudice against him when there was no evidence to that effect'.  

3. Counsel for the appellant cited R v Callaghan [1994] 2 Qd R 300, 301, 305 ‑ 306, and Rodd v The Queen [2000] WASCA 329, [37], in support of this ground. In Callaghan, the charge was unlawful use of a motor vehicle and the issue was whether the appellant was the driver of the motor vehicle.  Counsel for the appellant led evidence of the high blood alcohol level of the appellant, apparently to show that the appellant was so drunk that he could not have been driving the car in the manner alleged.  The prosecutor, in his address, said 'I can tell you as a crown prosecutor of this state that that is just nonsense', and 'I am telling you that every day people are picked up with very high levels of alcohol'.  The trial judge, in his summing up, referred to the fact that there was no evidence as to the proper interpretation of such a reading, that it was five times the legal limit, and that they could take into account that the appellant was heavily intoxicated.  The trial judge also directed the jury as to the effect of addresses by counsel.  Pincus JA and Thomas J (with whom Fitzgerald P agreed) found that the impropriety could not have led to a miscarriage of justice and if it were necessary to do so, they would apply the proviso.  Their Honours did, however, observe that it was not appropriate for crown prosecutors to use the dignity of their office to tell a jury something that is not in evidence. 

1. Rodd concerned sexual offences.  In closing address, the crown prosecutor said, relevantly, that the incidents were the first sexual encounter between the complainant and the appellant.  In summing up, the trial judge said that the incidents happened to the complainant 'on her first occasion of having sex'.  There was no evidentiary basis for a comment that the complainant was a virgin.  The court found that there was a real possibility that the jury might have been misled.  This was, however, only a related matter to a broader ground (of whether the trial judge caused the jury to consider that the defence had to establish that the complainant had a motive to lie), which was ultimately upheld.  

2. Counsel for the respondent referred this court to Libke, and to certain passages in the learned judge's directions to the jury.

3. In Libke, one ground of appeal was concerned with whether the conduct of the crown prosecutor, while cross‑examining the appellant, rendered the trial unfair, and resulted in a miscarriage of justice. Hayne J (with whom Gleeson CJ and Heydon J agreed) found that some of the prosecutor's questions might have been framed better, some carried imputations critical of the appellant's evidence, and some were founded on assertions that were not established or admitted [78]. However, his Honour found that the appellant was able to and did give the account he wished to give of the events [78]. His Honour also found that the prosecutor's alignment of himself with the prosecution case would not have distracted the jury from their task of assessing whether the evidence led at trial established the appellant's guilt beyond reasonable doubt, nor would other aspects of the cross-examination have caused or contributed to that consequence [82] ‑ [83]. His Honour held that the prosecutor should not have made the comments he did but that their making did not cause a miscarriage of justice [83].

4. In the present case, at the beginning of the trial, the learned judge advised the jury that at the end of the trial, both counsel would address them, and that it was important for them to remember that what counsel say is not evidence, and that the jury can decide the charges only on the evidence that is presented in court (ts 46).  In summing up, his Honour directed the jury that they were not to 'guess or speculate' about matters that were not in evidence (ts 350). 

5. It is true that there was no evidence led at trial that the appellant had ever had sexual intercourse with D, or that D had lost her virginity to the appellant.  Defence counsel at trial (who is properly to be described as a competent and experienced counsel in criminal trials) did not object to the prosecutor's comment at the time it was made.  Further, defence counsel did not request the learned judge to direct the jury on the comment, either at the time it was made or during his Honour's summing up.  The appellant was able to give his account of events, and I am satisfied that the prosecutor's comment would not have distracted the jury from their task of assessing whether the evidence led at trial established the appellant's guilt on each count beyond reasonable doubt: see Libke [83]. There is no reason to believe that the jury did not decide the case solely on the basis of the evidence given by the witnesses in court. The prosecutor should not have made the comment, but its making did not, in my opinion, create 'serious prejudice' against the appellant or cause a miscarriage of justice.

6. I would refuse leave to appeal on ground 2. 

Ground 3: Letter dated 24 July 2003

1. As I have mentioned at [46] above, D denied, in cross-examination, having written or having seen, a letter dated 24 July 2003, which was signed in D's name.

2. The appellant says that on 17 June 2005 (about 9 months before the trial), the Director of Public Prosecutions served some statements on defence counsel, including a statement of D dated 30 May 2005, annexing a copy of the letter.  In her statement, D said that about a month before making the statement, she was contacted by Detective Senior Constable Wisbey, who told D about a letter he had received which D had apparently written and signed.  D said that '[a]bout four days later [she] got to see the letter for the first time'.  In her statement, D denied writing the letter and denied that the signature on it was hers. D's statement also said that, at the date of the letter, she was living with N's family in New South Wales, and that after she had been shown the letter by Detective Senior Constable Wisbey, her partner told her that he remembered one of the members of N's family typing the letter.

3. D's partner also made a statement. He said that in July 2003, he remembered N's mother typing the letter on the computer in her home office. At the time, N's mother told D's partner that 'she hoped by writing the letter to have a better chance of getting her own children back from care in Western Australia by pointing the finger at the Department of Community Services and their incompetence'. He did not remember who signed the letter, but remembered that N's mother gave him the letter to read after she had printed it.  N's mother said that she was writing the letter in the hope that it would help D.

4. The appellant complains that defence counsel failed to cross‑examine D on an alleged inconsistency in her statements; namely, in denying, at trial, any knowledge of the letter, when in fact, D said in her statement that she had seen the letter.  The appellant says that defence counsel failed to demonstrate to the jury that D's evidence could not be relied upon, and that, D's credibility being a crucial issue in the trial, defence counsel's failure to attack her credit on this issue deprived the appellant of a chance of acquittal. 

5. I am not persuaded that D's credibility would have been materially damaged if defence counsel had cross‑examined her as to the alleged inconsistency in her statements.  D denied consistently, both at trial and in her statement, that she had written or signed the letter.  In any event, it would have been a dangerous strategy to put the alleged inconsistency to D in cross‑examination.  If the contents of the letter were made known to the jury, it may well have damaged the appellant's case to a significantly greater extent than any damage to D's credibility.  I am satisfied that the appellant did not lose a fair chance of acquittal as a result of his counsel at trial failing to cross-examine D as to the alleged inconsistency.  No miscarriage of justice has occurred.  

6. I would refuse leave to appeal on ground 3. 

Conclusion

1. I would grant leave to appeal on ground 1, but refuse leave on grounds 2 and 3. 

2. Ground 1 fails, however, and I would therefore dismiss the appeal.