SWD v The State of Western Australia
[2017] WASCA 39
•3 MARCH 2017
SWD -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 39
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WASCA 39 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:100/2016 | 17 FEBRUARY 2017 | |
| Coram: | BUSS P MITCHELL JA BEECH J | 3/03/17 | |
| 25 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time in which to appeal is refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | SWD THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against conviction Six counts of sexual penetration of a lineal relative under the age of 16 years Whether expert evidence properly admitted Where attack on cogency of expert evidence Alleged incompetence of trial counsel in failing to object to admission of evidence Whether misstatement of an aspect of the evidence in the trial judge's directions gave rise to a miscarriage of justice Whether verdict unreasonable or cannot be supported |
Legislation: | Criminal Code (WA), s 329(2), s 329(9) |
Case References: | Clark v Ryan (1960) 103 CLR 486 Cox v The State of Western Australia [2011] WASCA 30; (2011) 205 A Crim R 503 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1 MAS v The State of Western Australia [2012] WASCA 36 R v Bonython (1984) 38 SASR 45 SWD v The State of Western Australia [2012] WASCA 76 The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285 Wells v The State of Western Australia [2017] WASCA 27 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SWD -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 39 CORAM : BUSS P
- MITCHELL JA
BEECH J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : GOETZE DCJ
File No : IND 1105 of 2010
Catchwords:
Criminal law - Appeal against conviction - Six counts of sexual penetration of a lineal relative under the age of 16 years - Whether expert evidence properly admitted - Where attack on cogency of expert evidence - Alleged incompetence of trial counsel in failing to object to admission of evidence - Whether misstatement of an aspect of the evidence in the trial judge's directions gave rise to a miscarriage of justice - Whether verdict unreasonable or cannot be supported
Legislation:
Criminal Code (WA), s 329(2), s 329(9)
Result:
Extension of time in which to appeal is refused
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):
Clark v Ryan (1960) 103 CLR 486
Cox v The State of Western Australia [2011] WASCA 30; (2011) 205 A Crim R 503
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1
MAS v The State of Western Australia [2012] WASCA 36
R v Bonython (1984) 38 SASR 45
SWD v The State of Western Australia [2012] WASCA 76
The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285
Wells v The State of Western Australia [2017] WASCA 27
- REASONS OF THE COURT:
Summary
1 The appellant was convicted of six counts of sexual penetration of a lineal relative under the age of 16 years, contrary to s 329(2) and s 329(9) of the Criminal Code (WA). The charges related to two of his children. The contentious issue at trial was whether the sexual penetrations had occurred. Five years after expiry of the time for doing so, the appellant lodged a notice of appeal against his convictions. His proposed grounds focus on medical evidence adduced at his trial, to the effect that vaginal injuries observed in his daughter were consistent with her having sustained a violent penetration of her vagina by an adult male penis when she was under 10 years of age.
2 For the reasons explained below, none of the appellant's proposed grounds of appeal have any reasonable prospect of success. Nor has the delay in instituting the appeal been adequately explained. The application for an extension of time should be refused, and the appeal dismissed.
Uncontentious facts
3 Although many of the facts concerning the family's circumstances at the date of the alleged offending were in dispute, the following was common ground.
4 The appellant married his former wife, J, in 1984.
5 The appellant and J lived in Victoria and had a son, T, in June 1987. After the birth of their son, the appellant and J moved to a town in Western Australia (Town). They had three more children: a daughter S, born in August 1991, another daughter K, born in January 1993 and a son C, born in 1994. The appellant was alleged to have offended against T and S.
6 When they arrived at the Town, the appellant was initially unemployed, but later worked for the shire council doing general maintenance. The appellant stopped working about a year before separating from J due to a shoulder injury.
7 On 28 July 1997, J was admitted to hospital due to a problem with her gallbladder. She was discharged on 4 August 1997, and re-admitted from 2 - 8 September 1997. The offending against T was alleged to have occurred while his mother was in hospital.
8 The appellant and J separated shortly after her second discharge from hospital. The appellant returned to Victoria in around October 1997, while the rest of the family remained in the Town.
9 The appellant returned to Western Australia the following year, initially staying with a friend, M. During this time, the appellant had some supervised access with the children. The appellant leased a Homeswest house in the Town from 30 September 1998, which was opposite a golf course and near the children's school. On or about 22 March 1999, orders of the Family Court of Western Australia provided for the appellant to have unsupervised access to his children, on condition that he not drink alcohol during these periods. The offending against S was alleged to have occurred at the appellant's Homeswest house.
10 J and the children had less to do with the appellant in 2000. The lease of the appellant's Homeswest house expired on 9 May 2001, and he returned to Victoria.
The prosecution case
Family circumstances in 1997
11 The State's case was that, by 1997, the appellant was a chronic alcoholic, who drank every day to the point of passing out. The marriage between the appellant and J was not a happy one. His alcoholism caused significant problems. The appellant was a disinterested father and his frequent drunkenness meant he had little time or ability for much else. On occasion, the appellant was violent to J, and was also 'heavy handed' in his discipline of the children. On a number of occasions, T and S witnessed the appellant physically assaulting J. T and S remembered receiving a number of 'beltings' (ts 47 - 48).
12 The State alleged that, during J's first admission to hospital in July - August 1997, the children were left with the appellant. On J's second hospital admission, T and possibly S were left with the appellant, while the other two children stayed with J's mother. During this period, the appellant was drinking heavily. He would pass out in his chair and was unable to care for the children. T, then 10 years old, was left to care for his younger siblings (ts 48 - 49).
Counts 1 and 2
13 The alleged circumstances of the offences in counts 1 and 2 on the indictment were as follows.
14 On one night while J was in hospital, T went to bed after cooking dinner. He was sleeping alone in the bedroom he normally shared with C. The appellant entered T's room, climbed into bed with him and cuddled him from behind. The appellant then put his hands down T's pyjama pants and tried to put his finger into T's anus. He eventually did this and T felt quite a bit of pain. The appellant then pulled T's pyjama pants down and T started to cry out. The appellant said, 'Big boys don't cry, they just deal with it'. The appellant then tried to put his penis into T's anus. T continued to cry out, and the appellant put his hand over T's mouth. Eventually, the appellant was able to insert his penis into T's anus, causing immense pain (ts 50).
15 The State alleged that similar incidents occurred a couple more times when T was young, but that he could not remember any of the specifics of that uncharged conduct. The appellant threatened T and other family members with violence if T disclosed what had occurred, and T did not do so (ts 50).
Family circumstances in 1999
16 The State contended that, in 1999, the children would generally visit the appellant at his Homeswest house for a couple of hours during the week. During the winter time, the children played golf on Saturday mornings. On occasions, the children stayed the night at the appellant's house on Friday and then went and played golf the next day. This arrangement definitely started by Friday, 30 April 1999 (ts 52).
17 At the Homeswest house, the appellant told T that 'he did not do the things he did to him any more', and never touched T again (ts 52).
Count 3
18 The State alleged that the offence pleaded in count 3 was committed against S during the winter time, most likely in 1999, when T, S and K were staying with the appellant overnight so they could go to golf the following Saturday morning. On the Friday, the children had been playing with kittens to which the appellant's cat had just given birth. T went to sleep in the spare room of the two-bedroom house, and S fell asleep on the floor (ts 53).
19 The appellant picked up S, who was then 8 years old, and put her on his bed. The appellant got on top of S and pinned her down. S started to scream and kick out. The appellant removed S's pyjama pants, and she cried out more. The appellant put a pillow over her face, which stopped S from screaming out. She could barely breathe and started to panic. He pinned her legs down and she could not move. He said to her that she deserved it and she wanted it (ts 53).
20 The appellant then forced his penis into S's vagina. The pain was immense (ts 53).
21 K was woken up by the appellant's moaning. K walked into the appellant's bedroom and saw him naked on top of S, between S's legs, with the pillow on S's head. K saw the appellant's erect penis in S's vagina and '[e]ven though she was only about 7, she was in no doubt as to what she saw'. K picked up a lamp that was on a bedside table and smashed it on the appellant's head (ts 54).
22 The appellant rolled off S. K grabbed S and they ran to the bathroom and locked the door. The appellant could not get the girls to come out, and they remained in the bathroom for about half an hour. When it was safe, the girls ran out of the house. K grabbed a bag of clothes as they left. They ran to the backyard of an adjacent house and were later woken by the neighbour, 'Marianne' (ts 54 - 55).
Counts 4 - 6
23 The prosecutor told the jury that S could remember (although not in as much detail) three other occasions when the appellant sexually abused her in a very similar way. The alleged offending on those three occasions was the subject of counts 4 - 6 on the indictment.
24 Count 4 was alleged to have occurred on a night when S and K fell asleep on the appellant's bed, not long after they commenced unsupervised access with the appellant. The appellant removed K from the bed and the room. He returned and lay next to S. The appellant got on top of S, pulled up her pyjamas and pinned her down. He put a pillow on top of her face to prevent her screaming, and penetrated her vagina with his penis (ts 56, 65).
25 Count 5 occurred when T was away at camp and K and C were not at the house. S was sleeping alone in the spare bedroom. During the night, the appellant came into the room, got into bed with her and cuddled her from behind. The appellant then pushed S onto her back, pinned her arms down, lifted her blue nightgown (she was wearing no underwear) and penetrated her vagina with his penis. It hurt a lot and S cried out, but she did not recall a pillow being put on her face (ts 56, 65).
26 Count 6 occurred after a trip to Fremantle by the appellant, S, K, an adult friend of the appellant and the friend's children. After they were driven to the appellant's Homeswest house, S and K fell asleep in the lounge room. The appellant picked S up and carried her to his bedroom. He lay S on the bed and took her underpants off. The appellant put a pillow on S's head and held it down. He then penetrated S's vagina with his penis, causing her a lot of pain (ts 56, 65).
The appellant's case
27 The appellant's trial counsel gave a short opening, in which he told the jury that the appellant denied that the acts of penetration occurred in the manner the State alleged or at all. The appellant first became aware of allegations regarding S at the beginning of 2010, and only became aware of allegations made by T in about the middle of 2010. Counsel indicated that the lateness of the complaints would be relied upon as suggesting the events did not occur (ts 71 - 72).
Evidence of T
28 T's evidence-in-chief was to the following effect (ts 80 - 99).
29 From the age of 6 years, T recalled the appellant at times being violent and degrading towards J. The appellant would belt T using a snakeskin belt, 'as a punishment, though sometimes it was just because he wouldn't get his way' (ts 80). On one occasion, the appellant hit J during an argument about his drinking and money issues, causing her to fall to the ground in a barely conscious state. T ran towards J. The appellant grabbed T by the hair, picked him up and threw him backwards towards the fireplace. T hit his head on bricks.
30 The appellant would regularly drink alcohol and pass out in an armchair, generally with a bottle of whiskey in his hand. T did not recall the appellant interacting with him much as a child.
31 T described the incident which was the subject of counts 1 and 2 as occurring while J was either in hospital or at her mother's house recovering from a gallbladder operation. The appellant was meant to be looking after him, but most of the time was intoxicated and refused to do basic things to look after the children. T remembered quite often having to cook meals for himself and his younger siblings. The incident occurred after T had cooked dinner and the appellant fell into a drunken sleep on the couch.
32 T went to bed alone in his bedroom, wearing a pair of pyjamas. That night, the appellant came into the bedroom and lay beside T, with his arm around T. T smelt sweat and alcohol on the appellant's breath. After a period of cuddling him, the appellant put his hands down T's pants and forced his finger into T's anus. It was painful. T has started crying a bit, and the appellant told him, 'Big boys don't cry', and not to cry.
33 The appellant then proceeded to pull down T's pants. T was lying on his side. T tried to struggle and was crying. The appellant pulled T's pants right down without taking them off. The appellant then tried to force his penis into T's anus. At a couple of points, the appellant put his hands over T's mouth to stop him crying out. The appellant put his penis into T's anus, which was extremely painful. At this point T was on his side with the appellant behind him. Later, T was bent over with the appellant behind him, and the appellant's penis in T's anus. T felt pain 'for quite some time afterwards' (ts 93).
34 Afterwards the appellant told T that if T told anyone the appellant would hurt J and kill her. T believed the appellant, and knew that there was a .22 rifle that the appellant kept beside his bed (ts 84 - 85).
35 T said that there were other occasions when 'this has happened' but there were no particular events he could recall in a set time-line (ts 85).
36 A few days later T saw his uncle L and aunt SS who were going to stop for dinner after visiting J. The appellant was drunk and told the children to ignore L and SS's knocks and pretend they were all asleep. After a while, L and SS knocked on the door and T let them in. T had packed some frozen food items in a black garbage bag and was begging L and SS to take him with them. He did this because he did not want to stay in the house with the appellant anymore because of the preceding events. However, T did not tell L or SS what had happened out of fear for his mother and out of shame. L and SS said that they wanted to take T but, if they did, the appellant would threaten to call police and have them arrested for kidnapping.
37 T stayed living in the house with the appellant until J came back from her operation. After T's parents separated shortly thereafter, the appellant went back to Victoria for a period and then proceeded to come back to live at the Town. When he came back to the Town, T spoke to the appellant about the incident on only one occasion, after he had moved into the Homeswest house. T confronted the appellant about what he had done and the appellant 'promised me that he didn't do that anymore and that he would never do anything like that ever again and that he had changed' (ts 87).
38 T was in contact with the appellant on unsupervised visits to the appellant's Homeswest house. The appellant 'didn't try anything like that with me again'. T believed that 'he had changed then and I just wanted to put everything behind me' (ts 88).
39 During T's visits to the appellant's Homeswest house, the appellant 'was drinking on a fairly regular occasion' but T believed it 'wasn't quite as bad as what it used to be' (ts 94). The appellant drank whisky and beer and smoked tobacco. The children used to play golf at the golf course across the road from the appellant's Homeswest house on Saturday mornings, and would sometimes stay over the night before. The appellant spent a couple of hours a day interacting with the children on these visits.
40 The appellant left Western Australia and went back to Victoria when T was about 12 years old and had just started year 8. He saw the appellant on two occasions after that: once on a stop in Wodonga and later, when T was 19 or 20 years old, on visiting T's ill grandmother in Victoria. On the latter occasion there was a family argument with T, the appellant and the appellant's daughter from a previous marriage. During that argument, the appellant admitted hitting the children when they were young 'but said that [they] had always deserved it' (ts 96).
41 T had never told anyone about the sexual abuse inflicted on him by the appellant. J told T that the appellant had been brought back to Western Australia on charges relating to S. J encouraged T to speak with Detective Gannaway, which he agreed to do. T did not tell his mother that he may have been subject to sexual assault.
42 T said he spoke to Detective Gannaway and told him about the incident. Prior to giving evidence, he had not spoken about it to anyone other than Detective Gannaway and the prosecutor. T did not know the details of what may have happened to S at the hands of the appellant, but assumed it was similar to the conduct against him.
43 In cross-examination, T maintained this account to the extent that he was asked about it (ts 99 - 113). He was asked a number of questions about why he didn't tell anyone about what his father had done. In re-examination, he said it was partly because he was afraid for himself and for his mother, but mostly because of 'shame, disgust and not wanting to live through it again' (ts 114).
Evidence of L
44 L was T's uncle and J's brother. He had seen the appellant '[m]aybe once or twice every couple of months' at the time J and the appellant were living together in Western Australia. He said that the appellant 'used to drink a fair bit of alcohol' and that 'most of the time … he was either down at the pub or drunk' (ts 115).
45 L related an incident which occurred when J was in hospital and T was about 10 years old. L received a phone call from T, who said that he wanted L to come and pick him up because T did not want to live with his dad anymore. L drove to the Homeswest house and saw T, who had been crying and was visibly upset. T said that he wanted to come and stay with L. L looked at T's arms and legs to see if he had been hit. T had a bag packed with some clothes, toys and frozen food. L quizzed T about why he did not want to stay with his father, but T would not say. L told T he could not take T away from the house and he had to wait for his father to come home. L could not remember if he waited for the appellant to come home, and did not remember anyone else being present.
46 L said that he knew nothing of the allegations which the appellant was facing. L became involved when approached by police, and his family had not suggested that L might have something to add. L had nothing to do with the appellant since the appellant's separation from J (ts 116 - 118).
Evidence of J
47 J gave evidence that, up to the time of their separation, the appellant was drinking virtually every day to the point where he could not stand up or be woken up (ts 130). She said that the appellant was violent at times, and recounted an incident where the appellant punched her in the kitchen. T came running over, and the appellant picked him up by the hair and threw T against a wall (ts 130 - 132). J also gave evidence of the appellant disciplining the children by 'whacking' them with the back of his hand, and that the appellant had 'belted' T with a belt (ts 132). J said that, when she was in hospital for the gallbladder operation, T would call her every day for assistance in cooking dinner (ts 134 - 135). J said when she returned to the family's house after her second admission to hospital and her separation from the appellant, it was in a filthy state (ts 137).
48 J gave evidence of the children's contact with the appellant in 1999, and of the children staying with the appellant on Friday nights so they could play golf the following morning (ts 140 - 142). J said that, in the later part of 1999, S refused to go to the appellant's Homeswest house, and started crying at home for a reason which was not apparent and which she would not explain (ts 142).
49 J's evidence was that, on Father's Day in 2006, K told her something in relation to the matter. J then spoke to S, against K's wishes, and S provided some detail about what she said had happened. As a result, J took S to see the family's general practitioner, Dr Spencer, in November 2006 (ts 144 - 145).
50 J said that she encouraged S to go to the police, which S did not want to do. However, a complaint was made in December 2006 or December 2007 (ts 145 - 146). She gave evidence to the effect that, otherwise, there had been no family discussions about the detail of the incidents which were the subject of the charges (ts 147 - 149).
51 J maintained this account in cross-examination. She said that she had not seen any bleeding on S's clothes (ts 175). J denied that she had been harbouring resentment against the appellant, and denied that she told her children to make untrue statements about the appellant (ts 176 - 177).
Evidence of S
52 S gave evidence-in-chief to the following effect.
Family circumstances
53 Prior to her parents' separation, S had seen the appellant be violent to J, sometimes beating J to the point that she would have cuts on her face or be bleeding. The appellant would discipline S by belting her across the backside or back with a leather belt. Almost every day in the months prior to her parents' separation, the appellant would be so drunk that he would pass out on the couch or be incoherent. When J went to hospital to have her gallbladder removed, T would cook the meals and would call J or their grandmother for help. The appellant was either drunk or he did not want to do so (ts 185 - 187).
54 After the separation, S described unsupervised access visits to the appellant's Homeswest house across the road from a golf course, where she and T (and later K and C) would play golf in the morning. She said that there were occasions when she would sleep at the appellant's house on the Friday night, and go play golf the following morning (ts 189).
Count 3
55 S described the incident the subject of count 3 on the indictment in the following terms. After T, S and K played with kittens to which the appellant's cat had given birth, the appellant woke S and put her onto his bed. She was wearing a pair of pink pyjamas, which the appellant tried to pull off. S tried to kick the appellant and get away from him. After she screamed, the appellant put a pillow over S's face and pinned S down. He removed S's pyjama bottoms and said:
You wanted this. You deserve this (ts 193).
56 S was on her back. The appellant lay on top of S and put his penis into her vagina. S said that it was really painful and she could feel the appellant moving on top of her. There was a sharp pain and a lot of pressure (ts 192 - 194).
57 S said that she felt the appellant stop, the pressure came off and she could push the pillow off her head. When S did so, she saw the appellant had moved to the side and was holding his head. K was in the room standing next to a broken lamp, from the appellant's bedside table, which was on the floor. K grabbed S's hand and they ran to the bathroom and locked the door. The appellant started banging on the door and telling the girls to let him in. The appellant said he would kill them if they did not let him in. The appellant eventually left (ts 194 - 195).
58 In the bathroom, K asked S to tell her what had happened. S said that she did not want to talk about it. S told K not to tell anyone, as she did not want anyone to know about it (ts 195).
59 After things had quietened down, S and K waited for a while and then ran out of the appellant's Homeswest house, grabbing a bag of clothes that was next to a door. The girls went to the backyard of a neighbour, Marianne. It was dawn. They hid behind some trees and fell asleep. S was woken by Marianne, who took them into the house where they got ready for golf. Marianne asked why the girls were asleep in her backyard, but they did not tell her. The girls then went to play golf, and went home to J's house as normal. Later, S again told K not to tell anyone what had happened (ts 195 - 196).
60 S's evidence was that this was not the first time that the sexual abuse had occurred (ts 196).
61 S gave the following evidence about the conduct which was the subject of counts 4 - 6.
Count 4
62 One night after unsupervised access visits started, S fell asleep with K on the appellant's bed. S woke up when the appellant moved K into the lounge room. The appellant came down, lay S on her back and took off her pyjama pants. The appellant placed a pillow over her head after she started to make noise. The appellant lay on top of S. S tried to move away and the appellant pinned her down with his arms. He pinned her legs down and put his penis inside S's vagina. It was very painful and sore. S could not remember how the incident ended. She did not attempt to tell anyone about it (ts 196 - 197).
Count 5
63 On another occasion, T was away on camp, and K and C stayed at J's house. S was asleep in the spare bedroom of the appellant's Homeswest house. S felt the appellant get in bed behind her and put his arms around her. On this occasion, S was wearing a blue nightgown with no underwear. The appellant rolled on top of S, pinning her legs down with his legs. S tried to move away but could not. The appellant put his penis inside S's vagina and lay on top of her. S could see this time, and tried to make sounds but there was no one there to hear her. It was very painful, and S was scared. When it ended, the appellant moved and went back to his bedroom (ts 197 - 199).
Count 6
64 This incident occurred after the appellant, S and K had gone to the beach in Fremantle with one of the appellant's friends (who S had not met before) and the friend's son and daughter. They drove in the friend's van and got back to the appellant's Homeswest house in the late afternoon. The appellant, S and K stayed up for a while watching television in the lounge room. S had a shower and got changed into a nightgown. She fell asleep on the couch in the lounge room.
65 S remembered the appellant lying behind her on the couch. She was turned over and her underwear taken off. S had her back on the couch, and the appellant lay on top of her and pushed his penis inside her vagina. S could not remember whether or not a pillow was placed over her face on this occasion. S said that she had tried to speak, but had so much pressure on her body she could not do so. The appellant eventually got off her and went to his bedroom (ts 199 - 201)
66 S said that other similar incidents had occurred, but she could not remember 'fully what happened' (ts 206).
Appellant's subsequent conduct
67 S said that the appellant told her not to tell anyone else what had occurred. The appellant said that, if S told anyone, he would come after S and her brothers and sisters and kill them (ts 201 - 202).
68 S said that she started making excuses to avoid going to the appellant's Homeswest house, and started going over there less (ts 202).
69 S said that the first time she visited the appellant after he returned to Victoria was in 2001, when she stayed the afternoon at the appellant's house in Victoria. The appellant asked S to fold his washing and, while she did so, the appellant took his pants and underwear off and showed S his penis. The appellant said to S that he would show her something she would never forget. She had heard the appellant say that before. S had not seen the appellant since that day (ts 206 - 207).
Disclosing the offences
70 S said that K encouraged her to tell J about the offences. After giving up for a while, K tried again when K was about 13 years old. When S realised K had told J what had happened, she was angry with K and upset because she was ashamed and did not want anyone to know about the offences. At this time, S only told J about the incident which K had witnessed (ts 208 - 209).
71 S recalled being taken to see Dr Spencer. S said that, prior to seeing Dr Spencer, nothing had occurred in her life, other than perhaps the appellant's conduct, which could have caused injury to her vagina. S had never given birth to a child (ts 209).
72 S eventually went to the police and made a complaint. She had not spoken to any family member other than K about the details of what had occurred. T had not told S anything about himself in relation to the appellant (ts 209 - 210).
73 S maintained her testimony under cross-examination, which focussed on the delay in making any complaint. She denied making the account up to get back at the appellant (ts 215, 221).
Evidence of K
74 K gave evidence of observing the appellant being violent to J prior to their separation, by hitting her with his hand. Prior to the separation, the appellant was drinking heavily to the point where he was just sitting on the couch not really engaging with the children (ts 227).
75 After the appellant returned to the Town following the separation, K gave evidence of sleeping over at the appellant's Homeswest house on Friday nights before going to golf on Saturday. She recalled the appellant drinking to the point of being drunk during this time (ts 227 - 229).
76 K gave evidence of an incident when she was sleeping over at the appellant's Homeswest house when K was 6 years old. K was sleeping in the spare room with T, and S was sleeping on the couch in the lounge room (ts 229 - 230).
77 K heard a moaning noise coming from the appellant's room. She got up and walked into the bedroom. The door was open, and dawn light was outside. K saw S on her back on the appellant's bed with a pillow on her head. The appellant was on top of S, in between her legs which were spread apart. He was moving about. The appellant was not wearing any clothes. K could see his penis in S's vagina. The appellant was moaning, and S was trying to resist (ts 230 - 231).
78 K then grabbed a lamp that was sitting on the appellant's bedside table, and smacked it over his head. The appellant rolled off S, with his penis still erect. K grabbed S by the arm, and they ran into the bathroom where they locked themselves in. The appellant knocked on the door and asked them to come out, quietly enough as to not wake T. K told S that they should tell J what had happened. S said that she did not want to, and told K to keep quiet (ts 232 - 234).
79 K said that, on two occasions about a week afterwards, the appellant told her that if she said anything 'he would find us and hurt us. We'd regret it' (ts 235).
80 K's evidence was that she encouraged S to tell their mother, but S still did not want to. When K was 14 she realised that what had happened was wrong, and eventually told J. S did not speak to K for a few months afterwards. They eventually convinced S to go to the police (ts 236 - 237).
81 K said that J told her that the appellant was facing charges in relation to T about two months prior to the trial. She had not discussed anything about the matter with T (ts 238).
82 During cross-examination, K said that S was wearing a nightgown at the time of the offence which K observed (ts 244). She maintained her account of the events, denying that it was something she had 'not remembered correctly', 'got the details wrong' or 'made up' (ts 242).
Evidence of 'Marianne'
83 The appellant's former neighbour at the Homeswest house, who said she was sometimes called 'Marianne', was located by police and gave evidence at trial. She said that, early one Saturday or Sunday morning, she found two girls who stayed with the appellant in her back garden. She asked them why they were there, and was told that they were looking for a golf ball. However, they did not continue looking for the ball, and walked away. She had not seen the girls in her back garden before (ts 254 - 255).
84 In cross-examination, 'Marianne' said that the girls were wearing clothes not pyjamas (ts 257).
Evidence of Detective Senior Constable Gannaway
85 Detective Senior Constable D L Gannaway gave evidence at trial. He said that he became involved in March 2008, following a complaint being made in January of that year. He said that the appellant was arrested and charged on 1 February 2010. At that stage, the charges related only to allegations about S. On 11 June 2010, T gave a statement to Detective Senior Constable Gannaway, which was not expected and led to additional charges being laid (ts 281 - 284).
Evidence of Dr Spencer
86 Dr Spencer said that she held a Bachelor of Medicine and a Bachelor of Surgery from the University of Western Australia. She had worked in the area of the Town for 17 years as a general practitioner with an interest in gynaecology. Although she was not a specialist in gynaecology, she did 'a lot' of gynaecology. She had previously worked in the Pilbara for five years where she undertook the forensic examination of children who were alleged victims of sexual abuse (ts 287 - 288).
87 Dr Spencer described her examination of S's genitals, which was conducted on 1 November 2006 when S was brought in by her mother. J gave a history, and S said that she did not want to talk about it (ts 289).
88 Dr Spencer's evidence was that:
the vagina was, basically, extremely large for her age. There had obviously been an injury to the vagina which had torn through the skin between the vagina and the anus and through the muscle layers as well, and it had healed so that the vagina was large and relatively atonic. In other words she couldn't squeeze the vagina together, and as I said in my statement, normally the vagina you could admit one or two fingers on a vaginal examination in someone that age, even if they have had intercourse, but with [S] I could have admitted 5 fingers into her vagina (ts 290).
89 Dr Spencer said that S's hymen had been completely torn from the bottom of the vagina down towards the anus, and the tear had torn through the pelvic floor muscles as well. She said that something much larger than S's vagina had penetrated her vagina at some stage with significant force to tear it to that degree (ts 290 - 291).
90 Dr Spencer said that the tear injuries had healed, and that she could 'categorically say that they were at least sort of 12 months old, even 18 months.' Dr Spencer said that S could have sustained the injuries when she was a young as 8 years old (ts 291).
91 Dr Spencer said that the only other times she had seen injuries of that nature have been when someone's just had a baby, and their baby's head, which is 10 cm in diameter, has torn the vagina. If that was to occur in hospital, it would be labelled a second-degree tear (through the muscles and two layers of skin) and would be repaired in four layers. She said that there had definitely been no attempt at any repair of S's vaginal injuries. What Dr Spencer had found in S's case was very abnormal (ts 291 - 292).
92 Dr Spencer said that S's injuries were definitely not consistent with normal sexual intercourse, even frequent sexual intercourse, in a girl of pubertal age onwards. This was because, in a post-pubertal girl (13 years of age or onwards), the vagina is large enough to accept a penis without that degree of severe injury (ts 292).
93 Dr Spencer said that S's injuries would have caused severe pain. The injuries were consistent with S having been penetrated with an object larger than that which her vagina would permit. They were consistent with an ordinary adult male penis penetrating her with force at the age of 8 years of age. They could have been caused by a single act of penetration or multiple penetrations (ts 292 - 293).
94 Dr Spencer's evidence was that there would have been bleeding at the time of the injury, and light bleeding could have continued for up to six weeks after that kind of injury (depending on whether there was further penetration or not). However, she may have bled for as little as a week (ts 293).
95 Dr Spencer said that usually in cases of child sexual abuse there are no visible injuries. If S's injuries were from sexual penetration from an adult, it was a very forceful and violent injury when she was pre-pubertal and probably even under the age of 10 (ts 293).
96 Dr Spencer also gave evidence that penetration of the anus of a child aged 9 or 10 might cause an injury such as a tear at the time. However, the anus is very distensible and has the ability to retract right back. It would heal very rapidly and not leave any permanent scarring or marking. The penetration may not even cause a tear, and there was usually no injury to a 10-year-old's anus penetrated by an adult male penis (ts 293 - 294). Dr Spencer explained the difference between a pre-pubertal vagina and a child's anus in the following terms:
So in a 7-year-old with a hymen intact, we could normally perhaps admit a little finger into the vagina. It's not very distensible, not very stretchy and it's small. The anus on the other hand - and if we think about the size of poos that 7-year-olds and 8-year-olds can produce sometimes, that it's designed to stretch and shrink back down again without injury (ts 294).
97 Cross-examination of Dr Spencer reiterated aspects of her evidence, particularly in relation to bleeding from S's injuries, but did not substantively challenge her opinion.
Evidence of the appellant
98 The appellant gave evidence denying having ever committing a sexual offence against his children. He also denied drinking excessively, and being violent towards J when they were together. He denied that T had assisted with the cooking when J was in hospital (ts 304 - 308, 314 - 321). The appellant said that the children only stayed over at his Homeswest house on one occasion, although in cross-examination he accepted that this may have occurred more than once (ts 312, 314, 346 - 348). The appellant denied having a lamp by his bedside. He denied ever having taken the girls to Fremantle (ts 316, 361).
Grounds of appeal relating to Dr Spencer's evidence.
99 Dr Spencer's evidence is the focus of the appellant's proposed grounds of appeal. The appellant is unrepresented and his grounds are somewhat inelegantly framed. However, they essentially raise four issues.
Ground 1: admissibility of Dr Spencer's evidence
100 The first issue, raised by proposed ground 1, concerns the admissibility of Dr Spencer's evidence. In essence, the appellant contends that Dr Spencer's evidence should not have been admitted at trial because she was giving evidence about gynaecological matters without being a specialist gynaecologist.
101 It is established that medical opinion evidence is admissible only if given by a witness possessing specialised knowledge, derived from study or experience, on a subject for which unqualified persons require that assistance to form a sound judgment.1 In this case, the relevant area of specialised knowledge is the medical field of gynaecology. Before the trial court could receive Dr Spencer's opinion evidence on questions of gynaecology, the trial judge would have to be satisfied that she had acquired, by study or experience, sufficient knowledge of the subject to render her opinion of value in resolving the issues before the court.2
102 There is no doubt that the Dr Spencer's evidence was properly admitted as expert opinion evidence in the appellant's trial. Dr Spencer was a qualified medical practitioner. Although not a specialist gynaecologist, she had considerable experience in gynaecology, including in the examination of suspected victims of child sexual abuse in the Pilbara. Her opinion evidence was based on the observations which she made on the clinical examination of S, which she recounted. Dr Spencer had acquired, by study and experience, sufficient knowledge of gynaecology to render her opinion of value in resolving the issues before the court.
Ground 8: incompetence of counsel
103 The second issue, raised by proposed ground 8, is whether a miscarriage of justice arose from the failure by the appellant's trial counsel to object to the admission of Dr Spencer's evidence. Once it is concluded that Dr Spencer's evidence is admissible, this ground can be seen to be without merit. No miscarriage of justice can arise from counsel's failure to object to the admission of admissible evidence.
104 The submissions in support of this ground also make generalised assertions of counsel's failure to challenge the facts of which witnesses gave evidence, or to point to 'glaring discrepancies' or the 'improbability or impossibility of events'.3 There is no substance in these complaints. As we explain in dealing with grounds 2 - 5, the State's case was exceptionally strong.
Grounds 2 - 5: attack on the cogency of Dr Spencer's evidence
105 Thirdly, proposed grounds 2 - 5 raise a variety of issues, many of which are based on matters not in evidence, which attack the cogency of Dr Spencer's evidence. It is unnecessary to deal with the detail of those issues to reject these proposed grounds as unarguable. The issues raised by these grounds all concern the weight which should have been given to Dr Spencer's evidence. The weight to be given to her evidence was a matter for the jury to assess. Any weakness in her evidence could only lead to the convictions being set aside if it led to a conclusion that the jury's verdicts were, having regard to the evidence, unreasonable or could not be supported.4
106 The principles governing a ground of appeal that the verdict is unreasonable or cannot be supported by the evidence are well known. They may be summarised as follows:
(1) The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether, as a matter of law, there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
(2) The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(3) That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
(4) In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses.
(5) A doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
(6) If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court 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 appellate court must set aside the verdict.
(7) The setting aside of a jury's verdict on the ground that it is unreasonable or cannot be supported within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.5
107 The evidence supporting the State's case is exceptionally strong. Unusually for a case of this kind, S's account of the offence which was the subject of count 3 was supported both by the eye-witness account of K and Dr Spencer's medical evidence, as well as the evidence of 'Marianne'. Further, there was a striking similarity between the manner of offending against T in relation to counts 1 and 2, and against S in relation to counts 5 and 6. In each case, the appellant was said to have cuddled up behind the child before proceeding to sexually penetrate the child.
108 This is also a case where the jury enjoyed a significant advantage over this court in being able to observe the witnesses giving evidence, and the appellant while they did so. The following points may be observed. The prosecutor opened his cross-examination of the appellant by noting that he smiled and smirked while hearing the evidence (ts 329). In closing, prosecuting counsel referred to the J's distress when giving evidence as an indicator of her truthfulness (ts 475). In sentencing the appellant, the trial judge expressed his own view that the appellant was making much of his evidence up as he gave it (sentencing ts 451). The jury were entitled to take account of their observations of the witnesses in forming their view of the evidence.
109 It is in this context that the significance of the appellant's submissions about Dr Spencer's evidence are to be assessed. Even if Dr Spencer's evidence were to be regarded as unreliable, that would not make the verdicts unreasonable or unsupportable. The jury's satisfaction of the appellant's guilt did not depend on accepting Dr Spencer's evidence. Although her expert evidence supported S's account, it was not required for the jury to be satisfied that the appellant had committed the charged offences against S and T. It was clearly open to the jury to be satisfied, beyond reasonable doubt, that the appellant had sexually penetrated S and T in the manner alleged by the State, irrespective of how the evidence of Dr Spencer is to be regarded.
110 Further, there is no proper basis in the evidence for regarding Dr Spencer's testimony at trial as not cogent. Her evidence has not been contradicted by any other expert opinion evidence adduced either at trial or on appeal.
Ground 6: trial judge's directions
111 The appellant's proposed ground 6 attacks the adequacy of the trial judge's directions to the jury, alleging that a miscarriage of justice arose as a result of the trial judge 'misquoting' Dr Spencer's evidence. The appellant's complaint relates to the following passage of the trial judge's directions:
Now, Dr Spencer said that with someone eight years old, you could ordinarily fit in one or two fingers into the vagina and she also said a seven-year-old, a little finger but on her examination, she could fit five fingers in (ts 402). (emphasis added)
112 This comment was made in the course of an extensive summary of Dr Spencer's evidence, mostly made by reading portions of the transcript of her evidence (ts 401 - 404).
113 The statement that ordinarily two fingers could fit into the vagina of an 8-year-old girl did not reflect Dr Spencer's evidence. The evidence, quoted at [88] above related to a girl of S's age at the time of Dr Spencer's examination, ie, at the age of 15.
114 This factual error did not produce any miscarriage of justice. The error related to a matter of fact, not law. The trial judge had given the jury the standard direction that they were the only judges of the facts and they were entitled to disregard anything he said about the facts (ts 386). The relevant fact was not central to any issue that the jury were required to resolve. The error tended to favour the appellant, by failing to fully reflect Dr Spencer's evidence as to the degree of abnormality which she observed in examining S at age 15.
115 Further, it is established that, when an appeal is brought on the ground of misdirection, it is generally inappropriate to determine the appeal on the basis of an assessment of a small portion or portions of the direction read in isolation. Rather, the direction given to the jury must be viewed as a whole for the purpose of assessing whether the direction given was adequate to avert the risk of a miscarriage of justice.6 The overall effect of the directions needs to be considered, and one sentence should not be read on its own.7 In the present case, the appellant's complaint relates to a single element of one sentence - the use of the number 8 as opposed to 15 - in a direction which was otherwise unobjectionable. When the trial judge's direction is considered as a whole, it gave a fair summary of the important aspects of Dr Spencer's evidence, while making it clear that it was for the jury to determine the facts on the evidence they had heard. The alleged miscarriage of justice is not established.
Ground 7: inconsistencies in, and improbability of, the State's evidence
116 The appellant's submissions in relation to ground 7 assert what are alleged to be a number of inconsistencies and improbabilities in the State's case. The inconsistencies to which the appellant points concern relatively minor matters. They are readily explained by the different memories of witnesses who observed the same event a considerable time ago. Moreover, in a context where the defence case was (understandably) not that witnesses were mistaken, but were deliberately lying (ts 504), any inconsistency on minor matters falls well short of requiring reasonable doubt as to guilt. It is unnecessary to set out the detail of the appellant's argument in these reasons. It is sufficient to say that none of the matters raised by the appellant, alone or taken together, required the jury to reject a very strong State case, or lead to the conclusion that it would be dangerous to allow the verdicts to stand.
117 Given the evidence in this case, which is summarised above, it cannot be said that the jury must have had a reasonable doubt about the appellant's guilt of the offences of which he was convicted. The jury was entitled to reject the appellant's denials and find, beyond reasonable doubt on the whole of the evidence, that the appellant sexually penetrated T and S in the manner alleged in the indictment. There was no contentious issue as to any other element of the offences with which the appellant was charged. The totality of the evidence does not support a conclusion that it would be dangerous to permit the appellant's convictions of those offences to stand. Having reviewed the evidence, we do not have a reasonable doubt as to the appellant's guilt of the offences or as to the correctness of his convictions of those offences. The argument that, having regard to the evidence, the verdict was unreasonable or cannot be supported has no reasonable prospect of success.
Application for an extension of time in which to appeal
118 For the reasons above, none of the appellant's proposed grounds of appeal have any reasonable prospect of success.
119 The appellant was convicted on 25 February 2011 and sentenced on 29 April 2011. He did not file an appeal notice until 15 June 2016. 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 sentencing unless this court orders otherwise. The appellant's notice of appeal against conviction was filed more than five years after the time for doing so expired.
120 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. The appellant was able to appeal against his sentence at a much earlier time.8 It appears that the reason the appellant did not appeal against his conviction was that he received advice from very experienced and competent criminal counsel that an appeal would have no reasonable prospects of success.9 The appellant's belated appeal notice appears to have been prompted by advice he received from another prisoner. 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.
Orders
121 For the reasons explained above, the appropriate orders in this appeal are:
1. The appellant's application for an extension of time in which to appeal is dismissed.
2. The appeal is dismissed.
1Clark v Ryan (1960) 103 CLR 486, 491.
2R v Bonython (1984) 38 SASR 45, 46 - 47, adopted in Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1 [253]; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 [85], adopted in The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285 [72].
3 Appellant's submissions, par 129.
4Criminal Appeals Act 2004 (WA), s 30(3)(a).
5Wells v The State of Western Australia [2017] WASCA 27 [13] and cases cited therein.
6MAS v The State of Western Australia [2012] WASCA 36 [24].
7Cox v The State of Western Australia [2011] WASCA 30; (2011) 205 A Crim R 503 [62].
8SWD v The State of Western Australia [2012] WASCA 76.
9 Affidavit of the appellant sworn 9 June 2016 in support of an application for an extension of time in which to appeal, paragraph 9.
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