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Case [2021] WASCA 51 23 March 2021

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   AKKERMAN -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 51
CORAM:   MAZZA JA
VAUGHAN JA
HALL J

HEARD:   9 DECEMBER 2020
DELIVERED          :   23 MARCH 2021
FILE NO/S:   CACR 19 of 2020
BETWEEN:   SIMON MARIA RENE AKKERMAN
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   PRIOR DCJ
File Number            :   IND 2204 of 2018

Catchwords:

Criminal law - Appeal against conviction - Conviction after trial - Eight counts of unlawfully and indecently dealing with a child under the age of 14 years - Two complainants - Evidence at trial of a change in behaviour of one complainant at a time proximate to the offending - Whether trial judge erred in directing jury regarding change in behaviour evidence - Whether trial judge was required to give direction in accordance with type of direction upheld in MCA v The State of Western Australia [2019] WASCA 22

Legislation:

Criminal Code (WA), s 183

Result:

Leave to appeal granted
Appeal allowed
Convictions set aside
Retrial ordered

Category: B

Representation:

Counsel:

Appellant	:	T Percy QC & G Yin
Respondent	:	T B L Scutt

Solicitors:

Appellant	:	DG Price & Co
Respondent	:	Director of Public Prosecutions (WA)

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

Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19
Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50
Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443
Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314
Di Stefano v The State of Western Australia [2017] WASCA 187
Eades v The Queen [2001] WASCA 329
Grubisic v The State of Western Australia [2011] WASCA 147; (2011) 41 WAR 524
Hussain v The State of Western Australia [2020] WASCA 187
KSN v The State of Western Australia [2017] WASCA 156
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
MCA v The State of Western Australia [2019] WACSA 22
MCA v The State of Western Australia [2019] WASCA 22
R v Flannery [1969] VR 586
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769
Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234
Vo v The State of Western Australia [2010] WASCA 24
Walsh v The State of Western Australia [2011] WASCA 119

MAZZA JA:

I agree with Hall J.

VAUGHAN JA:

Overview

This is an appeal against conviction.
The appellant was charged on indictment with eight counts. All concerned alleged contraventions of the former s 183 of the Criminal Code (WA) (Code)[1] by unlawfully and indecently dealing with a child under the age of 14 years. There were two complainants, JS and DB, who at the time of the alleged offences were school…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Suppressed [2021] WASCA 51
Case: [2021] WASCA 51
Decision Date: 23 MARCH 2021

CaseChat Overview and Summary

In this case, the appellant, [Appellant], appeals against his conviction on eight counts of unlawfully and indecently dealing with a child under the age of 14 years, with two complainants. The trial judge directed the jury in respect of evidence of a change in behaviour of one complainant at a time proximate to the offending. The appellant submits that the trial judge erred in his direction to the jury regarding this evidence and that the trial judge was required to give a direction in accordance with the type of direction upheld in MCA v The State of Western Australia.

The legal issues before the court were whether the trial judge erred in directing the jury regarding the change in behaviour evidence and whether the trial judge was required to give a direction in accordance with the type of direction upheld in MCA v The State of Western Australia. The court considered the principles applicable to the admission of such evidence and the appropriate direction to be given to the jury. The court also considered the relevant authorities on the issue.

The court found that the trial judge did not err in directing the jury regarding the change in behaviour evidence. The court found that the trial judge gave a direction that was in accordance with the principles applicable to such evidence and that the direction was sufficient to ensure that the jury did not place undue or exclusive reliance on the evidence. The court also found that the trial judge was not required to give a direction in accordance with the type of direction upheld in MCA v The State of Western Australia. The court found that the direction given in that case was not applicable to the present case and that the direction given in this case was sufficient.

The appeal was dismissed. No orders for costs.

Orders