Subasinghe v The State of Western Australia
[2016] WASCA 217
•12 DECEMBER 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SUBASINGHE -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 217
CORAM: MAZZA JA
MITCHELL JA
BEECH J
HEARD: 23 NOVEMBER 2016
DELIVERED : 12 DECEMBER 2016
FILE NO/S: CACR 51 of 2016
BETWEEN: DON CHAMINDA PRABATH SUBASINGHE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SCOTT DCJ
File No :IND 442 of 2012
Catchwords:
Criminal law - Application for extension of time in which to appeal - Appeal notice more than two years out of time - No adequate explanation for delay - No merit in proposed grounds of appeal
Criminal law - Application for leave to appeal against conviction - Application for leave to adduce new evidence - Appellant convicted of seven counts of sexual penetration without consent while performing cosmetic treatment - Credibility of new evidence as to the equipment used by the appellant to perform cosmetic treatment
Criminal law - Application for leave to appeal against conviction - Whether trial judge erred in directions on the definition of sexual penetration - Whether miscarriage of justice caused by absence of interpreter for the appellant at trial
Legislation:
Criminal Code (WA), s 325
Result:
Application for extension of time dismissed
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr J A Scholz
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Anderson v The State of Western Australia [2014] WASCA 230
Beamish v The Queen [2005] WASCA 62
DPJB v The State of Western Australia [2010] WASCA 12
Lawless v The Queen (1979) 142 CLR 659
Mannah v The State of Western Australia [2016] WASCA 19
Pearce v The State of Western Australia [2014] WASCA 156
Rinaldi v The State of Western Australia [2007] WASCA 53
Smith v The State of Western Australia [2014] WASCA 90
REASONS OF THE COURT:
Summary
On 30 August 2013, the appellant was convicted, after trial by jury, of seven counts of sexual penetration without consent. The counts related to six different complainants who were former clients of the appellant. The alleged offences occurred during the course of the appellant performing a hair removal procedure on the complainants' genital regions. The State alleged that the appellant used his hands to penetrate and rub the complainants' vaginas without their consent and otherwise than for the purposes of the hair removal procedure.
The appellant seeks an extension of time in which to appeal against his conviction. His appeal notice was filed on 30 March 2016, about two years after the expiry of the time for appealing against the convictions.
Many of the appellant's proposed grounds of appeal rely on additional evidence which the appellant seeks leave to adduce in the appeal. The appellant seeks to adduce that evidence to show that the rubbing sensation reported by the complainants was caused, not by the appellant's hands, but by a device called a Serenity Pro Pneumatic Skin Flattening Attachment (PSF Attachment). Those proposed grounds of appeal have no reasonable prospects of success. This is essentially because we have found that the appellant did not use the PSF Attachment on the complainants, and his evidence concerning the use of the PSF Attachment is not credible.
The appellant also complains about the trial judge's direction to the jury as to the element of sexual penetration, and the absence of an interpreter at trial. There is no merit in either of these grounds. The trial judge's direction was correct, and the appellant neither requested nor required an interpreter at trial.
Given the lengthy delay in appealing, which has not been adequately explained, and lack of any merit in the proposed grounds of appeal, the application for an extension of time should be refused and the appeal dismissed.
The appellant's business
The appellant operated a beauty salon in Canning Vale, called Cut n Curl, with his wife and brother. One of the services the appellant provided was intense pulsed light (or IPL) treatment for the removal of unwanted body hair. The service which the appellant offered included a 'Brazilian' which would remove all pubic hair from a woman's vaginal area.
IPL works by the conversion to heat of light emitted by the lamp of an IPL machine handset. This damages hair follicles so as to impede the re‑growth of the hair. Several aspects of this hair removal process were uncontroversial. The area to be treated is shaved before the treatment begins, to avoid burning hair onto the skin, to avoid a smoke plume from burning hair and for efficacy. A gel is applied to the area to be treated with the aim of cooling the skin so as to reduce the client's discomfort and assisting in the absorption of light so as to improve efficacy. Both the client and IPL machine operator wear protective eyewear to protect their eyes from specific wavelengths emitted by the IPL machine handset. Multiple treatments in the same area are required for effective hair removal, and the process causes what a number of the complainants described as a 'zapping' pain as pulses of light are emitted from the handset.
The various complainants described the appellant's general procedure in broadly consistent terms. The complainants attended for their appointments, and met the appellant. Some indicated that, at their first appointment, they felt uncomfortable on realising that the operator was male. However, all of the complainants consented to the appellant providing a 'Brazilian' using the IPL machine. The complainants went with the appellant to a small room behind the store counter, where the IPL machine and a massage table were located. They were asked to remove all clothing below their waists and lay on the massage table on their backs. The appellant shaved the area to be treated where the complainants had not already done so. He applied gel to the area with a wooden spatula, and gave the client some opaque goggles to wear. Some complainants also described a towel being placed over their eyes. The appellant then used the IPL machine to treat the client's pubic region. The IPL machine was generally described as producing a 'zapping' which felt like an elastic band flicking the skin at the point where light was being applied. The pain from the process was short‑lived. Apart from one occasion described below, the complainants observed the appellant wearing plastic gloves during the procedure.
The State's case at trial
The State's case was that, during the IPL process, the appellant digitally penetrated the complainant's vaginas without their consent. The State alleged that the appellant rubbed the complainants' vaginal areas, saying that he was doing so to help with the pain. The State alleged that the rubbing moved away from the area where they felt the pain, to inside the outer lips, or labia majora, of their vaginas and, in most cases, to their clitoris. The State said that sometimes the rubbing went to the actual entrance of the vaginal canal and, on some occasions, the appellant's fingers actually entered the vaginal canal. The State contended that the rubbing was deliberate and prolonged. The State said that none of the complainants consented to this occurring. If there was any consent to rubbing of the location where treatment was being applied, it did not extend to rubbing in between the lips of the labia majora, which was away from the area where treatment was being applied.
The State called April Jorgensen, who gave expert evidence about IPL treatment, and nine of the ten complainants. The State was not able to secure the attendance of the tenth complainant, and the trial judge acquitted the appellant of the two counts involving her. The State also called the partners of two of the complainants to give evidence of complaints and the evidence of a police officer as to the search of the Cut n Curl premises and the investigation of the offences. The appellant was convicted of seven counts relating to six complainants, and was found not guilty of an additional seven counts.
The defence case at trial
The appellant was represented at trial by very experienced criminal defence counsel, Mr T F Percy QC. In his opening statement to the jury, Mr Percy said that the appellant's position was that none of the allegations were true.
Mr Percy noted the uncontroversial fact that only one of the complainants made the initial complaint to police, and another came forward after hearing from the appellant's wife that he had been arrested. The other complaints emerged after police contacted more than 50 of the appellant's former clients to ascertain whether anything inappropriate happened. Only an additional eight expressed any difficulty with what had occurred.
Mr Percy told the jury that, once a client agreed to pay the appellant for the IPL procedure, the appellant had express and implied consent to do whatever was reasonably necessary to complete the procedure. He said that this included touching them on the vaginal area, or the vaginal lips, to remove the hair that was growing there. To some extent the IPL procedure might necessarily involve a degree of what amounts in law to sexual penetration, but that was consensual and, provided that the appellant did not overstep the mark, nothing illegal occurred. The appellant's case was that he did no more than was reasonably necessary to do the job he was being paid to do. If that involved some touching, including touching the lips of the vagina or even inside them to remove the hair there, then that was what he was being paid to do and that was what the complainants consented to.
The appellant gave evidence, and also adduced evidence from his wife and brother and two character witnesses.
The critical issue at trial
In opening, Mr Percy said that what the case was really about was whether the appellant overstepped the mark. The prosecution case was that the appellant dramatically overstepped the mark of what he had consent to do. The appellant said that any degree of sexual penetration that occurred was entirely legitimate and within the bounds of the agreement between the appellant and his client.
This was a fair summary of the critical issue, in a case where it was not in contest that the complainants consented to such touching as was part of the appropriate IPL procedure and in which it was not suggested that consent was given for other purposes. This was the issue which the trial judge identified in his direction to the jury. The trial judge told the jury that, to find the appellant guilty of any count, they would need to be satisfied beyond reasonable doubt that he deliberately penetrated the vagina of the relevant complainant. The trial judge emphasised that the penetration must have occurred outside the parameters of, and not as part of, the appropriate IPL treatment (ts 1053, 1060, 1066, 1068).
Given that the alleged incidents occurred in a closed room with only the appellant and the relevant complainant present, the most important evidence in relation to each count concerned that of the relevant complainant and the appellant.
The complainants' evidence as to penetration
The summary below identifies the evidence given by each complainant for an offence of which the appellant was convicted as to the extent and circumstances of the penetration which is the subject of the relevant counts. The complainants are referred to by reference to the relevant count or counts on the indictment. For example, the complainant who is the subject of count 6 is referred to as Complainant 6. The complainant who is the subject of counts 7 and 8 is referred to as Complainant 7 & 8 (even though the appellant was only convicted of count 7). The appellant's response to the relevant complainant's evidence in his evidence‑in‑chief is also noted.
Complainant 6
Complainant 6 said that the iPulse IPL machine shown in exhibit 5.1 looked familiar as being the machine that was in the treatment room (ts 308 ‑ 309).
Complainant 6 described feeling the zapping of the IPL machine like a flicking elastic band every few seconds, with the pain lasting a few seconds. She said the IPL treatment moved to the sides or outer lips of her vagina, and reported feeling the same thing. She said she felt the appellant place one or two fingers inside her vagina and onto her clitoris area. She said they were fingers because 'they felt like fingers'. Complainant 6 said that she felt the fingers less than a minute after the appellant commenced IPL treatment on the side of her vagina. She felt movement, a gentle rubbing back and forth, starting at her clitoris and moving down about 5 cm towards the lower half of her body, and then back up (ts 312 ‑ 314).
When Complainant 6 was asked how long the fingers stayed in that area, she said:
A few minutes. It's hard to say. It - it felt like a long time, but I'm not sure (ts 314).
Complainant 6 said that she could still feel the IPL machine whilst the fingers were in her clitoris area. She said that the fingers had moved by the end of the treatment (ts 314).
In cross‑examination, Complainant 6 accepted that the appellant needed to handle her to some extent so he could treat along her pubic bone, bikini line and the outer lips of her vagina, but said that in her judgment what he did was too much (ts 321). Complainant 6 rejected the proposition that the appellant did not touch her clitoris, and said that he appeared to be doing it deliberately (ts 322).
The appellant said he did not remember much about treating Complainant 6 and did not recognise her when he saw her in court (ts 645). He denied touching her clitoris and inside the vaginal lips (ts 646).
Complainant 7 & 8
Complainant 7 & 8 said that she remembered the IPL machine which the appellant used being of the same shape as the iPulse IPL machine depicted in exhibit 5.1. However, she could not really remember if the machine shown in exhibit 5.1 was the same machine as the appellant had used (ts 188 ‑ 189).
Complainant 7 & 8 said that she asked for hair to be removed from the sides of her vagina, leaving a strip of hair just above the vagina (ts 191).
Counts 7 and 8 related to penetrations which allegedly occurred at Complainant 7 & 8's fifth appointment on 27 January 2011. She said that nothing untoward happened until her fourth appointment on 6 January 2011, when she gave evidence of an uncharged act of the appellant using his fingers to stroke her clitoris when she could not feel the IPL machine being used (ts 195 ‑ 196).
Complainant 7 & 8 said that, during the treatment on her fifth appointment, she was saying 'ouch' a lot and the appellant said, 'Do you mind if I rub?' She responded 'No, don't rub just press'. She said this because when she had waxing at another salon they would press the area to alleviate the pain. The appellant then began rubbing with his fingers where the IPL machine was, where she could feel the sting. The appellant then placed the palm of his hand on the top of her vagina and clitoris and was rubbing the whole area. The IPL machine was lower down, but Complainant 7 & 8 could not give a distance in centimetres or millimetres. The rubbing with the appellant's palm continued for a couple of minutes (ts 197 ‑ 198). This penetration was the subject of count 7 on the indictment, of which the appellant was convicted.
Complainant 7 & 8 also gave evidence that the appellant wiped excess gel off with tissues himself, including on the inside of the lips of her vagina (ts 199). This evidence was the subject of count 8 of the indictment, of which the appellant was acquitted.
In cross‑examination, the complainant rejected the proposition that at no stage did the appellant rub or stroke her clitoris (ts 214). She also rejected the suggestion that the appellant did no more than was absolutely necessary for the purposes of what she had paid him (ts 217).
In his evidence in chief, the appellant denied any excessive touching of Complainant 7 & 8 (ts 647 ‑ 649).
Complainant 12 & 13
Complainant 12 & 13 said that the appellant told her that, straight after he would put the instrument where the 'cuticle' was, the appellant would apply pressure or rub to make it feel better (ts 370). She said that he began rubbing in small circles with the tips of two fingers where the instrument was on her stomach area. As the treatment started to go down to the vaginal area, it became more painful and she told this to the appellant (ts 371).
Complainant 12 & 13 said that, when treating the side part of her vagina, the rubbing was in bigger circles and 'from what I could feel it wasn't where the treatment was being done'. She said it moved gradually closer to her inner vagina area until it was right on top of her clitoris (ts 372 ‑ 373). The appellant stopped rubbing in circles and started long strokes from the clitoris down to the inner labia. She estimated this continued for about 30 minutes (ts 373 ‑ 374). This was the subject of count 12 on the indictment.
Complainant 12 & 13 said that there was a knocking on the door, and the appellant placed the towel over her legs and excused himself. As he went outside, the appellant put his gloves in the bin. She did not see him put the gloves back on when he came back in to resume treatment. When the treatment started again there was more rubbing from her clitoris down to the inner labia. She could not recall how long the rubbing went on for on this second occasion (ts 376 ‑ 377). This was the subject of count 13 on the indictment.
The appellant asked complainant 12 & 13 to change position to her hands and knees so he could treat her anal area. As she did this, she saw that the appellant was not wearing gloves (ts 378). Complainant 12 & 13 could feel treatment of her anal area and rubbing mainly on the inside of her vagina (ts 379).
Following the appointment, Complainant 12 & 13 told her partner what had occurred, and then went to make a complaint to police.
In cross‑examination, Complainant 12 & 13 agreed that the appellant had her consent to do what was necessary and reasonable to complete the IPL treatment. She said that there was no reason to touch the clitoris or the inner labia, and rejected the proposition that the appellant did not touch her there. She rejected the proposition that all the appellant did was touch the outer lips of her vagina to reach hair follicles that were there (ts 389 ‑ 390, 392).
The appellant denied excessively rubbing the inner lips and clitoris of Complainant 12 & 13 (ts 616).
Complainant 14
Complainant 14 said that she did not pay attention to the IPL machine, but could recall the handset being white and 'pointy'. She could not make out the handset in exhibits 5.1 or 5.2 (ts 409 ‑ 410).
Complainant 14 gave evidence of the appellant, on an earlier visit, rubbing where he had treated and explaining that he was doing so to 'distribute the pain'. At this time the IPL machine was being used inside the upper lip of her vagina (ts 418 ‑ 419). This occurred for less than a minute (ts 421), although the complainant said that for a time the appellant seemed to rub in a different area to where he was treating.
The incident which was the subject of count 14 occurred at her appointment on 29 January 2013. Complainant 14 said that, on this occasion, the appellant was rubbing the inside of the inner lip of her vagina near the vaginal canal entrance, while treating the outer lip of her vagina. He also inserted the tip of his finger inside her vagina and moved it in and out, causing her to orgasm (ts 425 ‑ 426).
In cross‑examination, Complainant 14 accepted that hair grew on the inside of her labia and the appellant had her implicit consent to deal with hair follicles there. She confirmed that her allegation was that the appellant over‑stepped the mark and went beyond what was necessary to access and treat all the hair follicles. She said that the treatment did not correspond with the rubbing, and confirmed that the appellant inserted the tip of his finger into her vaginal canal (ts 457 ‑ 459).
The appellant's evidence‑in‑chief was that he had treated hair growing on the inside of the outer lips of Complainant 14's vagina, but he denied that he placed the tip of his finger in her vagina (ts 629 ‑ 630).
Complainant 15
Complainant 15 thought that the IPL machine was white, but could not remember whether it was one of the machines shown in exhibits 5.1 and 5.2 (ts 469).
Complainant 15 said that on her first appointment, the appellant explained that rubbing the treated area would decrease the pain, and rubbed only in the area where she felt the pain (ts 473 ‑ 474, 477).
On her third appointment on 31 January 2011, Complainant 15 told the appellant that 'it was extremely painful', and asked him to adjust the setting on the IPL machine. The appellant adjusted the setting and she could hardly feel any pain (ts 479). As the IPL machine moved along the outer lips of her vagina, the appellant was rubbing with two fingers in a sideways motion on the inside of the lips near the entrance of her vagina. This went on for about three minutes, not just at the entrance of the vagina but around the inside of the lips, near the clitoris (ts 480 ‑ 481).
Complainant 15 said that she orgasmed, without meaning to, and told the appellant to stop because he was hurting her. The appellant did not respond, and she told him again more firmly. The appellant stopped rubbing, and continued to use the IPL machine for another five minutes or so without rubbing (ts 482).
In cross‑examination, Complainant 15 agreed that she consented to contact with her genital region to the extent that it was reasonably necessary for the IPL treatment. She accepted that this would require some touching of the lips of her vagina with the machine, but not the hand (ts 488 ‑ 489). She rejected the proposition that the appellant never rubbed her vagina or touched her clitoris (ts 497).
In his evidence‑in‑chief, the appellant said that he only ever pressed on Complainant 15 with a gloved hand, and never rubbed her vaginal area (ts 623). He recalled Complainant 15 asking him to turn down the settings to the machine, but denied rubbing in the area of her vagina or that she ever told him to stop (ts 626).
Complainant 16
Complainant 16 could not remember what the IPL machine used on her by the appellant looked like (ts 508). She described the part of the IPL machine touching her skin as 'quite small, it's probably like 10 centimetres long by a few centimetres wide' (ts 510).
Complainant 16 said that the appellant started at the very top of her pubic bone area and gradually began moving down to her vagina. He told her that he was about to rub the area to help with the pain. He used a few fingers to rub in very small circles on the pubic area. As the appellant treated the hair on the outside of her vaginal lips, the appellant began rubbing her clitoris in small circles. The rubbing of her clitoris went on for about 10 minutes, which was almost the whole of the time of the rest of the treatment. The appellant stayed rubbing the same area as he was moving around treating different areas (ts 511 ‑ 512).
In cross‑examination, Complainant 16 accepted that she consented to a reasonable degree of touching and manipulation for the purposes of the appellant accessing her hair follicles. She said this would include the labia and edges of the labia but '[d]efinitely not inside them though'. She rejected the proposition that the appellant never rubbed her clitoris or put his fingers inside her vagina (ts 519, 521).
The appellant said in his evidence‑in‑chief that he did not remember much about Complainant 16, but denied ever rubbing her clitoris (ts 653 ‑ 655).
The appellant's evidence at trial
The appellant's evidence‑in‑chief began at 11.43 am on 23 October 2013, and continued to the lunch break at 12.56 pm. It resumed at 2.15 pm, and was completed by 3.26 pm. His cross‑examination began at 3.38 pm on 23 October 2013, and continued until court broke at 4.34 pm. It resumed on the following day, and continued to the lunch adjournment at 12.57 pm on 24 October 2013.
When court resumed at 2.14 pm on 24 October 2013, Mr Percy advised the court that the appellant had a recurrence of a urinary tract infection which caused a previous trial to be adjourned. He said that the appellant did not feel able to go on without some painkiller, Tramadol, which would cause him to become sleepy and lose concentration (ts 802). The appellant confirmed this was the case (ts 803).
The trial was adjourned to the following morning, at which time the appellant indicated that he was 'good today' (ts 811). The cross‑examination continued until about 11.00 am on 25 October 2013. He was briefly re‑examined before other evidence was led.
In his evidence‑in‑chief at trial, the appellant said he used an ADSS IPL machine which he purchased from the manufacturer in China and which was shown on the search video (ts 603). The appellant said that from time to time he might have touched a client's clitoris when treating hair on the inside of the labia, but denied ever rubbing clients. He said that, if anything, he may have pressed down to relieve pain after a zap (ts 607 ‑ 610).
The appellant was then questioned about the incidents alleged by individual complainants. For each count of which the appellant was convicted, the appellant's response to the relevant complainant's evidence is summarised above.
In cross‑examination, the appellant was asked about the different training he had received on the iPulse and ADSS IPL machines. He explained that the difference between the machines was that the iPulse had to recharge between 'zaps' while the ADSS machine was ready to zap again immediately (ts 686 ‑ 687, 690). He said that each machine came with only one handpiece (ts 687 ‑ 688), and that there was only one standard size handpiece for the ADSS machine (ts 688 ‑ 689).
The appellant referred to changing the filter on the handpiece, and differences between machines concerning overlapping (ts 689 ‑ 691). He said that gel was required for all machines (ts 691 ‑ 692). The appellant said that there were differences in the size of the prism, and there could be different sizes but 'not for my machine' (ts 692 ‑ 693).
The appellant was asked if he only touched the 'Brazilian area' of a woman through the handpiece. He explained that his handpiece was 4 cm long and the face touching the skin was 0.8 cm by 4 cm in dimensions (ts 701 ‑ 702, 705 ‑ 706). He identified the part that touches the skin as a metal‑looking piece sticking out to the bottom left‑hand side of the handpiece (ts 707 ‑ 708).
The appellant described using a wooden 'spatula' to stretch the skin to open up the lips of the vagina and placing the base plate flat to zap the hair follicle (ts 702 ‑ 704).
The appellant was cross‑examined at some length about the iPulse machine which he said was not working and was never used for Brazilians (ts 709 ‑ 712). The following exchange then occurred:
So going back to the handpiece that you say you were using?---Yes.
You would use - that base plate that we saw in the photograph would touch the patient's skin?---Yes.
If anything needed to be moved, you would use that handpiece as well as the spatula?---Yes, spatula and handpiece.
And handpiece?---Yes (ts 712).
The appellant gave an account as to how he would use the 'spatula' to stretch the skin (ts 713 ‑ 714), which he demonstrated using a tissue box (ts 715 ‑ 718). He said that his hands would never slip inside a person's vagina (ts 715, 718), although occasionally a spatula might slip in to the entrance of the vagina (ts 719).
The appellant said that he would try to get the baseplate of the handset flush with the skin but, where he could not do so, may have to use his hand to cover an area (ts 720 ‑ 721). When he did this, his hands would touch only the outer lips of the vagina (ts 722). The appellant said that he needed to get his hands in for some patients but not for every patient (ts 728).
The appellant then volunteered that there were two knobs on the handset which, although he would try to keep the handset perpendicular, could sometimes touch the client (ts 728 ‑ 730). A photograph of the ADSS handpiece showing the knobs was tendered as exhibit 5.3.
The appellant said that he had never offered to rub a client for pain relief (ts 733, 735), although he might sometimes offer to press down (ts 736 ‑ 737). He described how he would press down, but not rub, with his fingers when using the handpiece (ts 737 ‑ 741).
The appellant described how he tried the ADSS IPL machine on his own genital region, and described feeling a rubbing sensation within millimetres of the site of the pain (ts 741 ‑ 746).
Application to adduce additional evidence relating to PSF Attachment
The appellant has made a series of applications for leave to adduce additional evidence in this appeal. The principal purpose of seeking to adduce that additional evidence is to support the contention that the appellant used a PSF Attachment on the ADSS handpiece when using the ADSS IPL machine on the complainants.
The PSF Attachment fits over the sapphire prism on the ADSS handset, from which light is emitted. When strapped to the ADSS handset, the PSF Attachment is the part that touches the skin of the client. The baseplate of the PSF Attachment is approximately 7 cm long and 3 cm wide. When fitted, a 52 mm × 22 mm vacuum chamber sits below the 40 mm × 6 mm sapphire prism of the handset. The vacuum chamber is 7 mm deep, and has a sapphire glass window which runs across the sapphire prism of the handset. When the PSF Attachment is in use, the client's skin is drawn into the vacuum chamber to sit flush against the sapphire glass window which runs across the sapphire prism of the ADSS handset. This is activated by a 20 mm × 12 mm pressure sensitive switch which protrudes from the baseplate of the PSF Attachment. The appellant's contention is that the PSF Attachment, rather than his fingers, caused the rubbing sensation reported by the complainants.[1]
[1] Appellant's affidavit sworn 29 July 2016.
The appellant seeks to adduce detailed evidence in relation to the design and theory behind the PSF Attachment and the way it might operate when used near a vagina. However, that detail could only be relevant if the court accepted that there was credible evidence that the appellant used the PSF Attachment on the complainants. It is convenient to consider that question first.
Did the appellant use the PSF Attachment?
The evidence on which the appellant seeks to rely to establish that he used the PSF Attachment is neither credible nor reliable. For the following reasons, we find that the appellant did not use the PSF Attachment on any of the complainants for the counts of which he was convicted.
No evidence at trial
There was no suggestion in any of the evidence of the appellant or others at trial that the appellant might have been using a PSF Attachment when performing the IPL procedure on any of the complainants.
The appellant's evidence that he was not 'allowed' to explain that he used the PSF Attachment is to be rejected as inconsistent with the trial transcript.[2] The appellant gave extensive evidence giving a detailed account, described above, of the features of the handset and the way in which he used it. It would be expected that the appellant would have referred to the PSF Attachment, which he says he appreciated was important (appeal ts 54, 57, 58, 62), if it was used to perform the procedure on the complainants. Further, the appellant took the opportunity to volunteer information about features such as knobs (ts 728) and a cooling feature (ts 725) on the handset. On appeal the appellant sought to explain his failure to give evidence at trial about the PSF Attachment on the basis that Mr Percy did not ask him any questions about it (appeal ts 57). A review of the whole of the transcript of the appellant's evidence at trial reveals that he did not feel any imperative to confine his answers to responding to the questions counsel had posed. That is reinforced by the appellant's evidence under cross‑examination on appeal.
[2] Appellant's affidavit sworn 29 July 2016, par 15 (YAB 193).
The appellant relied on the following passage of cross‑examination as showing his attempt to explain the 'gate control theory of pain', which he says underpins the design of the PSF Attachment:
The rubbing sensation is behind?---Behind and again there is a theory on that, I can't remember, it (indistinct) theory. You know the pain - now I can't recall that theory.
No?---There is a theory - (indistinct) control theory on the pain relief. You know (indistinct) control? Actually that one is nowadays in medical they are using for the (indistinct) vibrators, for the giving injection. In US - - -
I'm sorry, I have hearing difficulties and I'm not - - -?---Okay.
I can't get the context of what you're talking about?---Yes, sorry.
Sorry, I'm not following you. Can you perhaps start again?---There is a theory that it's called (indistinct) control theory.
A theory, yes?---Yes, that theory says like if any - like that's (indistinct) you press (indistinct) relief because of the (indistinct) control theory.
Okay. So there's a theory that if you press down where pain is it will relieve the pain?---Yes. There is a machine we can use. It's manufactured for the IPL recently. I think this - - -
Okay, well, let's not talk about what's available now?---Yes.
Back then - - -?---Yes.
We want to talk about the way you use this machine?---Yes.
And what you've experienced back then. Not about new machines or new theories or - - -?---No, I can compare with that - the pressing with that theory - like that machine (ts 747 - 748).
The transcript did not fully capture the appellant's evidence, with parts indistinct. Accepting that the appellant may have referred to 'gate control theory' in the indistinct passages, the appellant was clearly not describing a machine which he used at the time of the alleged offences. Rather, he was referring to a machine which could be used that was, in October 2013, manufactured for IPL recently.
The descriptions given by the relevant complainants did not suggest that the PSF Attachment was being used on them. As noted above, Complainant 6 and Complainant 7 & 8 thought that the iPulse IPL machine may have been used. The appellant does not suggest that the PSF Attachment fitted to the iPulse IPL machine. Complainant 14 thought the handset was 'white and pointy', which does not describe the PSF Attachment. Mr Percy did not ask any of the complainants questions directed to adducing evidence that was consistent with the use of the PSF Attachment.
It may also be noted that the video and still photographs taken of the appellant's IPL equipment, including the ADSS handset, during the search of the Cut n Curl premises on 28 February 2011, did not show the PSF Attachment.
Explanation for not leading evidence at trial is inherently incredible
In the appeal, the appellant said, in effect, that he did not give evidence about the PSF Attachment at trial because he could not make his lawyers understand the importance of the PSF Attachment to the case.
In cross-examination in the appeal, the complainant indicated that he instructed Mr Percy shortly after he was charged on 11 February 2011 (appeal ts 48 ‑ 49). Mr Percy asked him to take a solicitor. The appellant instructed Ms Gibbs to act as his solicitor, and met with her, in 2011 (appeal ts 49 ‑ 50). The appellant's evidence was that he showed the ADSS IPL machine handpiece and the PSF Attachment to both Mr Percy and Ms Gibbs prior to trial, and told them that this was the equipment used on the complainants. The appellant said that he told Mr Percy that he had used the PSF Attachment and that it caused a rubbing sensation when applied to the skin (appeal ts 53 ‑ 54). The appellant said that he took the PSF Attachment to court during the trial, but one or more members of his legal team said he could not use it in the trial (appeal ts 56 ‑ 57). The appellant also said that, during the course of the trial, he told Mr Percy that the PSF Attachment was very important to explain (appeal ts 62 ‑ 64).
The appellant said in cross-examination that he never discussed with Mr Percy what he would be saying in evidence (appeal ts 55). He also said that Ms Gibbs never discussed the complainants' statements with him (appeal ts 51). The appellant said that he did not know if Mr Percy had available to him a document setting out the appellant's response to the complainants' allegations (appeal ts 55). The appellant said that his lawyers never asked him if he wanted to give evidence at trial, and that the court asked him to give evidence (appeal ts 55 ‑ 56).
The appellant's evidence at the hearing of the appeal was inherently incredible. It is difficult to imagine that senior and experienced criminal counsel would not take instructions about the allegations made by the complainants, or would fail to explain the rights of an accused in relation to giving evidence. Further, if Mr Percy had been informed of the PSF Attachment and the rubbing sensation it produced, we are satisfied that he would have immediately appreciated the significance of the evidence, which could provide an innocent explanation for some of the sensations which the complainants described. There would have been no reason for Mr Percy not to adduce that evidence if he had been instructed about the use and effects of the PSF Attachment.
The logical explanation for Mr Percy not leading evidence of the PSF Attachment from the appellant is that Mr Percy was not told about it. The logical explanation for the appellant not telling Mr Percy about the PSF Attachment is that it was not actually used on the complainants.
The appellant also deposes that he was suffering from a serious kidney condition and a high dose of the painkiller Tramadol for the whole of his trial including when he was giving evidence.[3] That is contrary to what the appellant told the trial judge when seeking an adjournment on the afternoon of 24 October 2013. At that time the appellant indicated that he was concerned about the effect on his concentration if he took Tramadol, in a manner that indicated he was not then under the influence of the drug (ts 803). We do not accept the appellant's inconsistent evidence in the appeal as to his consumption of Tramadol during the trial.
The appellant's evidence at trial is inconsistent with the use of the PSF Attachment
[3] Appellant's affidavit sworn 20 July 2016 (YAB 174).
Not only did the appellant fail to give evidence about the use of the PSF Attachment at trial, but his evidence was inconsistent with its use. In particular, the appellant described the 0.8 cm × 4 cm face of the ADSS handset being the part of the handset which made contact with the skin. This evidence is referring to the sapphire prism of the ADSS handset touching the client's skin. That would not have been the case if the 7 cm × 3 cm base of the PSF Attachment had been strapped to the ADSS IPL machine handset.
The complainants' evidence at trial is inconsistent with the use of the PSF Attachment
The evidence given by the complainants at trial is also inconsistent with a PSF Attachment causing the rubbing sensation which they reported. If the PSF Attachment had been used and caused the rubbing sensation, then it would have been reported as a consistent feature of the treatment. However, this was not the case. For example, Complainant 7 & 8 felt rubbing only on her fifth and sixth appointment. Complainant 15 said that the rubbing ceased after she told the appellant to stop, although the treatment continued. Various complainants described a change between the location of the rubbing compared to the location where the IPL machine was being used. The PSF Attachment does not explain the appellant's statements about rubbing to Complainant 7 & 8, Complainant 14, Complainant 15 and Complainant 16. Nor does evidence about the PSF Attachment explain the evidence of Complainant 7 & 8 as to rubbing on her fourth appointment when the IPL machine was not being used.
Evidence of the appellant's other clients does not reliably identify the handset used on them
The appellant seeks leave to adduce affidavits of three former customers who did not complain about the IPL procedures which they received from him. Those affidavits included a picture of the IPL handpiece which the deponents say was used during their IPL treatments. The photograph shows a handpiece with a PSF Attachment strapped on. Two of the deponents, Mrs Gill and Mrs Sumady, were made available for cross-examination in the appeal. The appellant was not able to secure the attendance of a third former client, Ms D'Souza.
The evidence of these witnesses as to the inclusion of the PSF Attachment was not reliable. It was evident from answers given in cross‑examination that the appellant's wife presented both Mrs Gill and Mrs Sumady with the photograph used in their affidavits in around July 2016. It does not appear from their affidavits that their attention had been drawn to the PSF Attachment. Mrs Gill last undertook the procedure in January 2014, and cannot be expected to reliably recognise the precise handpiece used more than two years previously. That is particularly so given that patients wear opaque goggles during treatment. Mrs Sumady last undertook the procedure with the appellant in January 2011, more than five years before swearing her affidavit.
It may also be noted that the handset shown in the photograph which appears in the former clients' affidavits is not precisely the same as that used by the appellant at the time of the offences. Exhibit 5.3 and exhibit 1 show the handset which the appellant accepted, in his evidence at trial and on the appeal, was the handset he used on the complainants. When the baseplate of that handset faces down and the handle extends to the right, two knobs and a switch are evident on the side of the handset facing the viewer. The handset photographed in the former clients' affidavits is oriented in the same manner, but the knobs and switch are not visible.
Appellant's video demonstration
Before the trial commenced, the appellant applied for a ruling on whether he could lead evidence of footage on a DVD. The DVD contained two recordings depicting the appellant performing an IPL procedure on the underarm of a woman. The video clips show the appellant using the ADSS IPL machine handpiece without any PSF Attachment strapped on. Written submissions, prepared by the appellant's legal representatives and filed in the trial court in support of his application, contended that the video clips demonstrated how the use of the IPL machine and treatment generally occurred. The trial judge ruled that this evidence was not admissible.
The present significance of the DVD is that it does not depict the use of a PSF Attachment. If the appellant had been using a PSF Attachment on the complainants then it would have been natural for him to demonstrate with the PSF Attachment. The fact that the demonstration video which the appellant prepared before trial did not involve the PSF Attachment strongly points to the appellant having used the ADSS handset without an attachment strapped on. While on appeal the appellant suggested that a second DVD was prepared showing the use of a PSF Attachment, he did not produce the DVD and it does not appear on the District Court file. Moreover, the oral and written submissions on behalf of the appellant at trial were expressed in terms of one video, not two.[4]
Conclusion as to use of PSF Attachment
[4] Defence outline of submissions dated 14 October 2013, par 2; ts 40 ‑ 47.
Having regard to all of the above matters, we are well satisfied that the appellant did not use a PSF Attachment when he performed IPL treatment on the complainants, and that the appellant's evidence that he used a PSF Attachment is entirely lacking in credibility.
Receipt of additional evidence in an appeal against conviction
Section 39(1) of the Criminal Appeals Act2004 (WA) provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. By s 39(3), however, s 39(1) does not affect the power of an appeal court to admit evidence pursuant to s 40 of the Act. Section 40(1) provides, relevantly:
For the purposes of dealing with an appeal, an appeal court may do any or all of the following -
(a)order the production of any record or thing, whether or not an exhibit, that is or may be relevant to the appeal;
(b)order a witness who would have been compellable at the trial in the lower court, whether or not called at the trial, to attend and be examined before the appeal court;
…
(d)subject to the Evidence Act 1906 section 9, admit the evidence of a witness, including a convicted appellant, who is a competent but not compellable witness;
(e)admit any other evidence[.]
In Rinaldi v The State of Western Australia,[5] Steytler P said, in relation to s 40(1)(a), (b), (d) and (e):
While these provisions afford the Court a discretion, which is not expressed to be limited in any way, to do any of the things provided for, it is most improbable that the legislature intended that they 'should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction': CDJ v VAJ (1998) 197 CLR 172 at [111] per McHugh, Gummow and Callinan JJ (dealing with the provisions of s 93A(2) of the Family Law Act 1975 (Cth)) and see also De La Espriella-Velasco at [150] per Pullin JA. The common law principles have, of course, been developed over many years in order to meet the ends of justice and the considerations giving rise to them will plainly be material to the exercise of the statutory discretion, which must be exercised judicially. While the common law principles touching upon the distinction between new and fresh evidence are not necessarily determinative of the manner of exercise of the statutory discretion, the considerations giving rise to those principles will ordinarily be weighty, so much so that it will be a rare case in which an exercise of the statutory discretion produces a different outcome to that produced by application of the common law principles [84].
[5] Rinaldi v The State of Western Australia [2007] WASCA 53.
The principles as to when additional evidence will result in an appeal against conviction being allowed are well‑established.
Where an accused has been convicted, an appellate court will not allow an appeal on the basis of new as distinct from fresh evidence, unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted.[6]
[6] See Lawless v The Queen (1979) 142 CLR 659, 675 ‑ 676; DPJB v The State of Western Australia [2010] WASCA 12 [66]; Anderson v The State of Western Australia [2014] WASCA 230 [36]; Pearce v The State of Western Australia [2014] WASCA 156 [26].
For this purpose, 'fresh' evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered. 'New' evidence is evidence which was available at the trial or which could, with reasonable diligence, then have been discovered. There is no miscarriage of justice in the failure to call evidence at trial if that evidence was then available, or, with reasonable diligence, could have been available unless the new evidence establishes that the accused should not have been convicted.[7]
[7] Beamish v The Queen [2005] WASCA 62 [9] - [13].
The unavailability of fresh evidence gives rise to a miscarriage of justice if the appellate court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the evidence had been before it at trial.[8]
[8] Smith v The State of Western Australia [2014] WASCA 90 [159].
In deciding whether the fresh evidence is such as to satisfy the appeal court that there has been a miscarriage of justice, the appeal court has the responsibility of examining the fresh evidence in order to satisfy itself whether the evidence is relevant, credible and cogent. If the evidence is not credible and cogent it may be rejected. The role of this court in considering an appeal based on fresh evidence is to determine whether the evidence is capable of being accepted as true by a reasonable jury.[9]
[9] See Mannah v The State of Western Australia [2016] WASCA 19 [95] - [97].
The appellant's grounds of appeal and submissions do not reflect this legal framework. Having regard to the relevant principles, it is clear that the absence of the additional evidence which the appellant seeks to adduce cannot establish a miscarriage of justice. The evidence on which the appellant seeks to rely is properly characterised as new evidence rather than fresh evidence, as in relevant respects it relates to circumstances which, if they existed, must have been known to the appellant at the time of trial. The new evidence clearly does not establish the appellant to be innocent or show that he ought not to have been convicted. Further, even if the additional evidence were to be regarded as fresh, its cogency is not such as to pass the threshold for a miscarriage of justice based on the absence of fresh evidence.
Grounds 1 - 3 and 6 - 7: grounds premised on use of PSF Attachment
Our conclusion that the appellant did not use a PSF Attachment on the complainants, and that his contrary evidence is not credible, disposes of grounds 1 ‑ 3 and 6 ‑ 7. All of those grounds of appeal are premised on the appellant's alleged use of a PSF Attachment.
Ground 1 contends that the 'prosecution did not understand the technology, mechanical system and treatment process of the IPL system used by the appellant'. It may be noted that an allegation of miscarriage of justice should focus on what happened in the trial rather than an understanding, or lack thereof, by the prosecution. In any event, the thing which the appellant says the prosecution failed to understand was the operation of the PSF Attachment. Even if it were otherwise relevant, any such lack of understanding could only be significant if the appellant actually used a PSF Attachment.
Ground 2 contends that Ms Jorgensen, who gave evidence about the operation of IPL machines, lacked required expertise in the IPL system used by the appellant. Ms Jorgensen was not asked, and did not profess any knowledge, about the PSF Attachment. Her state of expertise about the PSF Attachment could only be relevant if the appellant had used it.
Ground 3 contends that a miscarriage of justice arose from the fact that the appellant had no opportunity prior to trial to view a 'misleading video' shown to the court. The video, exhibit 1, demonstrates the use of an IPL machine and was tendered through Ms Jorgensen. The video was played, in the absence of the jury and prior to the commencement of evidence in the trial, in open court (ts 117). The appellant and Mr Percy were able to view it, and Mr Percy indicated that the video was unobjectionable from the appellant's perspective (ts 118). That would ordinarily be sufficient to dispose of a complaint about late disclosure. However, the 'misleading' aspect of the video which the appellant alleges principally concerns the absence of the PSF Attachment which we have found he did not use.
Ground 6 complains that the appellant was not given permission to show the jury video footage demonstrating the IPL system he used. This appeal ground concerns the trial judge's ruling that the appellant could not show his demonstration video (ts 115 ‑ 116). The particulars to the ground and the appellant's submissions in support of it reveal that the appellant's complaint is that the video would have removed everyone's misunderstanding about the IPL system he was using. The argument must fail once it is appreciated that the appellant did not use the PSF Attachment, which was not depicted on the rejected video in any event.
Ground 7 alleges that the appellant had an honest and reasonable belief that the complainants had given informed consent. This is put on the basis that the appellant believed that the complainants had understood his explanation of the treatment process, including the massaging and rubbing sensation created by the use of the PSF Attachment. This ground also falls away once it is concluded that the PSF Attachment was not used. In any event, the State's case depended on it proving that the appellant had penetrated the complainants outside the parameters of, and not as part of, the appropriate IPL treatment.
Ground 4: direction as to penetration
Ground of appeal 4 alleges that a miscarriage of justice occurred when the trial judge gave an 'incomplete and inaccurate definition of penetration, which did not include the exclusion where the penetration is carried out for medical purposes'.
The appellant was convicted of offences, against s 325 of the Criminal Code, of sexually penetrating another person without the consent of that person. Section 319 of the Criminal Code relevantly defines 'to sexually penetrate' as meaning:
to penetrate the vagina (which term includes the labia majora) … of any person with … any part of the body of another person … except where the penetration is carried out for proper medical purposes.
The appellant's complaint is that the trial judge's direction as to the element of penetration omitted any reference to this 'proper medical purposes' exception.
It may be doubted that penetration in the course of an IPL procedure would be for 'proper medical purposes' within the meaning of this statutory definition. However, even if the contrary is assumed, the trial judge's direction did not invite the jury to convict the appellant for penetration in the course of an IPL treatment. As noted above, the trial judge emphasised that the penetration must have occurred outside the parameters of, and not as part of, the appropriate IPL treatment. That direction took account of the exception, even assuming that it applied to IPL treatment. Understandably, at trial senior counsel for the appellant did not take exception to the direction on penetration (ts 1050, 1080 ‑ 1082). There is no merit in ground 4.
Ground 5: no interpreter at trial
Ground of appeal 5 in effect alleges that a miscarriage of justice arose because the appellant was not provided with an interpreter for the trial and was not able to properly understand the proceedings or defend himself.
A trial listing certificate signed by the appellant's solicitor on 11 December 2012 indicated that the appellant, who migrated from Sri Lanka, did not require an interpreter. There is no evidence that the appellant or any of his representatives ever requested the court to arrange for the attendance of an interpreter at trial. The trial transcript of the appellant's evidence reveals that he understood, and was capable of answering, questions which were posed to him in the course of lengthy examination‑in‑chief and cross‑examination. Further, the appellant's evidence at trial was that he held a Bachelor of Business, Marketing and Management obtained through study at Deakin University and external study with an affiliate of Edith Cowan University (ts 588 ‑ 589). Completion of that Australian qualification would require a degree of proficiency in the English language. There was nothing at trial to indicate that the appellant required the assistance of an interpreter.
We also note that, in the appeal, the appellant produced written documents which were very clear in articulating his position. He spoke quickly and sometimes erratically with a heavy accent, but was intelligible. Although the appellant requested and was provided with a Sinhalese interpreter at the hearing of the appeal, he did not require the interpreter's services at any stage. Even allowing for some improvement of the appellant's English which he asserted had occurred over the three years since his trial, the appellant's presentation at the appeal did not support his contention that an interpreter was required at the time of trial. The transcripts do not suggest any marked difference in the appellant's ability to communicate at trial and on appeal.
We are not satisfied that the appellant either requested or required the services of an interpreter at trial. The allegation that the absence of an interpreter at trial gave rise to a miscarriage of justice is not established.
Disposition of applications
For the reasons above, none of the appellant's grounds of appeal has any reasonable prospect of success.
The appellant was convicted on 30 October 2013 and sentenced on 10 February 2014. He did not file an appeal notice until 30 March 2016, two years and five months after his conviction and about two years and one month after sentencing. Under s 28(3) and s 28(4) of the Criminal Appeals Act, an appeal against the appellant's convictions cannot be commenced later than 21 days after the date of sentence unless this court orders otherwise.
The appellant has applied for an extension of time in which to appeal. He has filed an affidavit in support of the application which does not adequately explain that delay. Given the extensive delay, the absence of any adequate explanation for the delay and the lack of any merit in the proposed grounds of appeal, it is appropriate to refuse the application for an extension of time and dismiss the appeal on the ground that it was commenced after the time permitted by s 28 of the Criminal Appeals Act.
Given that conclusion, and the fact that the additional evidence which the appellant seeks to adduce does not support any arguable ground of appeal, it is appropriate to dismiss the appellant's applications to adduce additional evidence in the appeal. It is therefore unnecessary to deal with the respondent's specific objections to the admissibility of some of that evidence. The respondent's applications to adduce further evidence, other than the evidence of the trial listing certificate, should also be dismissed on the basis that the evidence to which they respond has not been admitted.
Orders
For the reasons explained above, we would make the following orders:
1.The appellant's application for an extension of time in which to appeal is dismissed.
2.The appellant's applications in the appeal filed on 23 May 2016 (seeking to adduce the appellant's affidavit sworn on 27 April 2016), 1 August 2016 (four applications), 17 August 2016, 22 August 2016 and 22 September 2016 are dismissed.
3.The respondent has leave to adduce evidence in the appeal in the form of annexure 4 to the affidavit of Gemma Beggs sworn 23 June 2016.
4.The respondent's applications in the appeal filed on 23 June 2016 and 22 September 2016 (two applications) are otherwise dismissed.
5.The appeal is dismissed.
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