TSP v The State of Western Australia

[2021] WASCA 224

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   TSP -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 224

CORAM:   BUSS P

MAZZA JA

BEECH JA

HEARD:   17 AUGUST 2021

DELIVERED          :   24 AUGUST 2021

PUBLISHED           :   28 JANUARY 2022

FILE NO/S:   CACR 166 of 2020

BETWEEN:   TSP

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   STEWART DCJ

File Number            :   IND XXX of 2020

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of three sex offences against a child - Evidence of 'uncharged acts' - Whether the trial judge misdirected the jury in relation to the use the jury could make of the evidence of 'uncharged acts' - Whether the verdicts of guilty in relation to two of the offences were unreasonable or could not be supported having regard to the evidence

Legislation:

Criminal Code (WA), s 329(2), s 329(3), s 329(4)

Result:

Leave to appeal on ground 1 refused
Leave to appeal on ground 2 granted
Appeal allowed
Judgments of conviction on count 1 and count 2 as amended set aside
There be a new trial of the appellant on count 1 and count 2 as amended

Category:    B

Representation:

Counsel:

Appellant	:	Mr K G Robson
Respondent	:	Mr R G Wilson

Solicitors:

Appellant	:	Evangel Legal
Respondent	:	Director of Public Prosecutions (WA)

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

Auons v The Queen [2010] VSCA 223

B v The Queen [1992] HCA 68; (1992) 175 CLR 599

BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101

Dann v The State of Western Australia [2021] WASCA 15

De Jesus v The Queen (1986) 61 ALJR 1

Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779

GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698

Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 394 ALR 194

Hill v The State of Western Australia [2019] WASCA 209

IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300

Johnson v The Queen [2018] HCA 48; (2018) 266 CLR 106

LNN v The State of Western Australia [2021] WASCA 39

LNV v The State of Western Australia [2019] WASCA 180

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454

Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123

R v AH (1997) 42 NSWLR 702

R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308

R v Dolan (1992) 58 SASR 501

R v Hillier [2007] HCA 13; (2007) 228 CLR 618

R v Nguyen [2010] HCA 38; (2010) 242 CLR 491

SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400

Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482

REASONS OF THE COURT:

1. The appellant was charged on indictment with three sex offences against a child (K) under the age of 16 years whom the appellant knew to be his lineal relative.

2. Count 1 alleged, relevantly, that on a date unknown between 10 November 2011 and 11 November 2013, the appellant procured K to engage in sexual behaviour, contrary to s 329(3) of the Criminal Code (WA) (the Code).

3. Count 2 as amended alleged, relevantly, that on a date unknown between 10 November 2013 and 11 November 2016, the appellant indecently dealt with K by touching her vagina, contrary to s 329(4) of the Code. Prior to the amendment, count 2 had alleged that the appellant sexually penetrated K by penetrating her vagina with his finger.

4. Count 3 alleged, relevantly, that on a date unknown between 10 November 2016 and 11 November 2017, the appellant sexually penetrated K by penetrating her vagina with his finger, contrary to s 329(2) of the Code.

5. The appellant pleaded not guilty to each of the charged offences.

6. On 10 September 2020, after a trial before Stewart DCJ and a jury, the appellant was convicted of all of the counts.  The trial judge imposed a total effective sentence of 6 years 3 months' imprisonment.  The sentence was backdated to 10 September 2020.  A parole eligibility order was made.

7. The appellant appealed against conviction and sentence.

8. At the beginning of the appeal hearing on 17 August 2021, counsel for the appellant abandoned the sentence appeal.  At the conclusion of the appeal hearing on 17 August 2021, the court reserved judgment in the conviction appeal.

9. On 24 August 2021, the court made orders in relation to the conviction appeal, relevantly, as follows:

   (a)Leave to appeal on ground 1 refused.

   (b)Leave to appeal on ground 2 granted.

   (c)Appeal allowed.

   (d)Judgments of conviction entered by the trial judge on count 1 and count 2 as amended set aside.

   (e)There be a new trial of the appellant on count 1 and count 2 as amended.

1. When the court made those orders we said that reasons for judgment would be delivered at a later date.  These are our reasons.

The grounds of appeal

1. The appellant relied upon two grounds of appeal.

2. Ground 1 alleged, in essence, that the verdicts of guilty on count 1 and count 2 as amended are unreasonable and cannot be supported, having regard to the evidence, and consequently it was not open to the jury to be satisfied beyond reasonable doubt that the appellant had committed those offences.

3. Ground 2 alleged, in essence, that the trial judge misdirected the jury in relation to the use the jury could make of 'evidence of uncharged acts'.  In these reasons we will refer to the 'evidence of uncharged acts' as 'evidence of other conduct'.

Overview of the State's case at trial

1. The complainant, K, is the appellant's biological daughter.  The appellant was born in April 1966.  He was aged between about 45 and 51 years at the time of the offending.  K was born in November 2006.  She was aged between about 4 and 11 years when the offending occurred.

2. As to count 1, the State alleged that the offending occurred at the family home when K was aged about 4 or 5.  K was on the bed.  The appellant encouraged K to engage in sexual behaviour by licking his penis.

3. As to count 2 as amended, the State alleged that the offending occurred in the lounge room at the family home when K was aged between about 7 and 10 years.  The appellant touched K on her vaginal area while she was pulling up her pants.

4. As to count 3, the offending occurred in the patio area of the family home when K was aged about 10 or 11.  The appellant was seated at one corner of a table.  A friend of the appellant was seated on the other side of the table.  K was seated on the appellant's lap.  K's lap was covered by a blanket.  The appellant penetrated K's vagina with his finger.

5. The State's case in relation to counts 1, 2 as amended and 3 relied upon K's evidence.  There were no other witnesses to the occurrence of the offending.  No other witness confirmed or corroborated K's evidence as to the offending.

6. In addition to her evidence about the offending charged in counts 1, 2 as amended and 3, K gave evidence about other sexual conduct by the appellant towards her (being the 'evidence of uncharged acts' referred to in ground 2).

Overview of the appellant's case at trial

1. The appellant gave evidence at the trial.  He was the only witness called by defence counsel.  The appellant denied that any of the alleged offending had happened.  He also denied having engaged in any other sexual conduct in relation to K.

Ground 2

1. It is convenient to deal with ground 2 before ground 1.

2. By ground 2, the appellant alleged, in essence, that the trial judge misdirected the jury in relation to the use the jury could make of the evidence of other conduct.

Ground 2:  the child witness interviews

1. On 18 November 2019, K participated in a child witness interview.

2. On 24 June 2020, K participated in another child witness interview.

3. Edited versions of the video and audio records of the interviews were played to the jury at the trial and formed part of K's evidence (ts 49 ‑ 51).

Ground 2:  the evidence of other conduct

1. During the child witness interview on 18 November 2019, the following exchange occurred between K and one of the interviewers (6):

   Q. Mm hm. So when you were four or five and you said he touched you, did he ‑ was that one time or more than one time?

   A. More than one time. It was - I can't remember really, but it was ongoing sort of when no-one was around.

   Q.Mm hm. And you said that, um, he touched you in suitable places.

   A. Unsuitable.

   Q. Unsuitable, yeah. Can you tell me more about what you mean by unsuitable?

   A. Um, he would play with my, um, under area, um, that stuff, like he would - - -

   Q. What do you mean by "under area"?

   A. Um, my vagina like - - -

   Q. Mm hm. And what do you mean by play?

   A. He would use his finger. He would put it ‑ oh, it's hard to explain.

   Q. It's okay. Just use your words.

   A. He put it up there …

2. During K's evidence-in-chief at the trial, the prosecutor read aloud to K the substance of most of those questions and answers (ts 69).  The prosecutor then asked K what she meant in those questions and answers when she said '[h]e put it up there' (ts 70).  K responded that the appellant would 'put [his finger] inside of me'; that is, he would 'put [his finger] inside of my vagina' (ts 70).

Ground 2:  the prosecutor's opening address

1. The prosecutor did not refer to the evidence of other conduct in his opening address.

Ground 2:  the discussion between the trial judge and the prosecutor in the course of the State's case

1. During the State's case there was a discussion between the trial judge and the prosecutor, in the absence of the jury, about the evidence of other conduct.

2. Her Honour asked the prosecutor whether he proposed to refer to the evidence of other conduct in his closing address to the jury (ts 177).

3. The following exchange then occurred between the prosecutor and the trial judge (ts 177 ‑ 178):

   KARUNARATNE, MR:      Your Honour, I thought of addressing that on the uncharged ‑ the fact that she says that things  happened on more than three occasions but that is ‑ they ‑ that is, provide context to the offending. It's relationship evidence, that’s all.

   STEWART DCJ:                Okay.

   KARUNARATNE, MR:      And I am sure your Honour will give the appropriate direction how to use that evidence because that is there … in the child witness interview. Because she doesn’t say these are the only three occasions it happened. She said, 'Things happened for a long time, but my memory is blurred'.

Ground 2:  the closing addresses of the prosecutor and defence counsel

1. Neither the prosecutor nor defence counsel referred to the evidence of other conduct in their closing addresses.

Ground 2:  the discussion between the trial judge, the prosecutor and defence counsel after the closing addresses

1. After the closing addresses, the trial judge told the prosecutor and defence counsel, in the absence of the jury, how she proposed to direct the jury in relation to the evidence of other conduct.

2. Her Honour said that she would read aloud the relevant passage on page 6 of the transcript of the child witness interview on 18 November 2019 and then say:

   [W]hy did you hear about this evidence, why did the State lead it?  First, the evidence goes to demonstrate the relationship between [K] and [the appellant].  And that’s relevant to the context in which each alleged offence, the subject of these three charges, occurred (ts 236 ‑ 237). 

3. Next, her Honour said that she would then direct the jury that the jury could only use K's evidence in relation to the other conduct if the jury found her evidence of the other conduct to be truthful and accurate (ts 237).  

4. Finally, her Honour said that she would then direct the jury:

   [S]o it’s a matter for you, members of the jury, to decide whether you accept that the other conduct occurred. If you do decide that the conduct occurred, then that’s a matter you can consider when you’re assessing [K's] evidence. You can consider all of this evidence to decide whether the State has proved each charge beyond reasonable doubt. However, you must always bear in mind that your task for each charge is to decide whether the State has proved beyond reasonable doubt that [the appellant] committed the specific act with which he has been charged.

   You cannot use the evidence or any or all of the other conduct in substitution for evidence of the incidents as charged. You should not reason, simply because you find that [the appellant] did something inappropriate on another alleged occasion, that he therefore committed the offences with which he has been charged of in this case. None of the evidence of the other conduct proves in itself the counts or charges in the indictment. You cannot deliver a guilty verdict unless you have considered all the evidence and, specifically, the evidence from [K] about each charge and you’re satisfied beyond reasonable doubt that [the appellant] is guilty of that charge (ts 238).

5. Neither the prosecutor nor defence counsel made any complaint about her Honour's proposed directions.

Ground 2:  the trial judge's summing up

1. The trial judge dealt with K's evidence of other conduct in her summing up. 

2. Her Honour told the jury that 'apart from the specific evidence, the subject of each charge, there is evidence of other conduct by [the appellant] towards [K] on other occasions from the occasions of the incident in each count in the indictment' (ts 277).  Next, her Honour reminded the jury of K's evidence of other conduct (ts 277).

3. The trial judge then gave the jury these directions in relation to K's evidence of other conduct:

   (a)The jury could only use K's evidence of other conduct if the jury found her evidence to be reliable and the jury believed it to be true; that is, if the jury found K's evidence of other conduct to be truthful and accurate (ts 277).

   (b)If the jury decided that the other conduct occurred, the jury could consider that evidence when the jury assessed K's evidence (ts 277).  The jury could consider all of that evidence to decide whether the State had proved each charge beyond reasonable doubt (ts 277).

   (c)However, the jury must always bear in mind that the jury's task for each charge was to decide whether the State had proved beyond reasonable doubt that the appellant committed the specific act with which he had been charged.  The jury could not use the evidence of any or all of the other conduct in substitution for the evidence of the incidents as charged (ts 277).

   (d)None of the evidence of other conduct proved in itself the charges in the indictment (ts 278).  The jury could not deliver a guilty verdict unless the jury had considered all of the evidence and, specifically, the evidence from K about each charge, and the jury was satisfied beyond reasonable doubt that the appellant was guilty of that charge (ts 278).

   (e)The Longman direction her Honour had given to the jury concerning the charges in the indictment applied equally to the evidence of other conduct (ts 278).  That is, relevantly, the jury was at liberty to act upon K's evidence to convict the appellant if the jury was satisfied as to its truth, accuracy and reliability, but it would be dangerous to convict the appellant on the uncorroborated evidence of K unless, having scrutinized her evidence with great care and having taken full account of her Honour's warning, the jury was satisfied beyond reasonable doubt as to its truth, reliability and accuracy (ts 278).

   (f)If the jury was satisfied beyond reasonable doubt as to the appellant's guilt on any of the charges in the indictment then the jury could consider the evidence on that proven charge, along with all the other evidence, to decide whether the State had proved another charge in the indictment beyond reasonable doubt (ts 278 ‑ 279).

   (g)The jury could not convict the appellant on any count unless the State had satisfied the jury beyond reasonable doubt that the appellant committed the specific act alleged against him in that count (ts 279).

4. Her Honour did not give the jury the direction she had proposed, as set out at [34] above, to explain the specific and limited relevance of the evidence of other conduct.

Ground 2:  the appellant's submissions

1. Counsel for the appellant submitted that the evidence of other conduct was not admitted as propensity evidence.  It was contended that there was at least a real possibility that the jury may have adopted propensity reasoning in relation to count 1 and count 2 as amended based on the evidence of other conduct.  The trial judge's failure to direct the jury as to the use the jury could make of the evidence of other conduct occasioned a miscarriage of justice.  The convictions on count 1 and count 2 as amended should be set aside.

Ground 2:  the State's submissions

1. Counsel for the State submitted that there was no real possibility that the jury might adopt propensity reasoning in relation to count 1 and count 2 as amended based on the evidence of other conduct.  Counsel contended that the evidence of the appellant's 'ongoing' acts of digital vaginal penetration when K was aged 4 or 5 was not admitted as propensity evidence and was never characterised as propensity evidence by the trial judge, the prosecutor or defence counsel.  The jury was not invited to regard the appellant as the kind of person who was likely to have committed the charged offences.  It was also contended that the evidence of other conduct was 'non-specific'.  K was unable to recall a particular incident in relation to the evidence of other conduct.  She merely recalled that the acts of digital vaginal penetration were 'ongoing' when she was aged 4 or 5.  According to counsel, the absence of detail demonstrates that the evidence of other conduct was incapable of providing a basis for inferring any relevant propensity on the appellant's part.  Further, the alleged 'ongoing' acts of digital vaginal penetration were 'too far separated in point of time' from the charged offences.  In any event, any risk that the jury might adopt propensity reasoning in relation to the evidence of other conduct was obviated by the trial judge's directions that proof of the other conduct was not in itself sufficient.  Counsel noted that defence counsel did not raise with the trial judge any concern about her Honour's directions.

2. At the hearing of the appeal, counsel for the State also argued that the essence of her Honour's directions to the jury in relation to the evidence of other conduct was that the jury could use the evidence in assessing K's credibility generally and that the jury could use the evidence only for that purpose (appeal ts 17).  According to counsel, the jury would have understood her Honour's directions as requiring that the jury only use K's evidence of other conduct as relevant to her credibility generally.  Counsel suggested that K's evidence of other conduct 'could be viewed by the jury as weakening her credibility' (appeal ts 21).

Ground 2:  its merits

1. K's evidence of other conduct was to this effect:

   (a)when K was aged 4 or 5, the appellant touched her;

   (b)the touching was ongoing when no one else was present;

   (c)the appellant touched K in unsuitable places;

   (d)the appellant would play with K's vaginal area; and

   (e)the appellant would use his finger by putting his finger inside K's vagina.

2. K's evidence of other conduct was not admitted or sought to be relied upon by the State as propensity or tendency evidence, either pursuant to s 31A of the Evidence Act1906 (WA) or at common law.

3. Subject to the trial judge's discretionary power to exclude evidence on the ground that its probative value is outweighed by its prejudicial effect, evidence (including evidence of criminal or disreputable conduct by the accused) may be given at a criminal trial if the evidence is relevant in placing the evidence as to the facts and circumstances of a charged offence into their true context as part of the essential background against which the complainant's evidence and any evidence of the accused must be evaluated.  See B v The Queen;[1] R v AH.[2]

   [1] B v The Queen [1992] HCA 68; (1992) 175 CLR 599, 602 - 603 (Mason CJ), 610 (Deane J).

   [2] R v AH (1997) 42 NSWLR 702, 708 (Ireland J; Hunt CJ at CL and Levine J agreeing).

1. However, as King CJ (Mullighan J agreeing) observed in R v Dolan:[3]

   In all but the most exceptional cases in which evidence of criminal conduct other than that which is the subject of the charges before the court, is allowed to go before a jury, it is encumbent upon the trial judge to direct the jury as to the use which they are entitled to make of such evidence and, even more importantly in most cases, the uses to which such evidence must not be put.

   See also Auons v The Queen;[4] Hill v The State of Western Australia;[5] Dann v The State of Western Australia;[6] LNN v The State of Western Australia.[7]

   [3] R v Dolan (1992) 58 SASR 501, 503.

   [4] Auons v The Queen [2010] VSCA 223 [63] (Bongiorno JA; Buchanan JA & Habersberger AJA agreeing).

   [5] Hill v The State of Western Australia [2019] WASCA 209 [69] (Buss P & Mazza JA).

   [6] Dann v The State of Western Australia [2021] WASCA 15 [44] ‑ [58] (Quinlan CJ, Mitchell JA & Hall J).

   [7] LNN v The State of Western Australia [2021] WASCA 39 [172] ‑ [200] (Buss P, Mitchell & Vaughan JJA).

2. In Johnson v The Queen,[8] Kiefel CJ, Bell, Gageler, Nettle & Gordon JJ said:

   There is seldom as much risk of a jury reasoning improperly from uncharged act context evidence than reasoning improperly from charged act evidence; especially where … the jury is carefully directed as to the limited purpose for which the uncharged act evidence is adduced and that the jury must not find the accused guilty of a charged act unless satisfied beyond reasonable doubt, on the evidence relating to that charge, that the accused is guilty of that charge.  (emphasis added)

   [8] Johnson v The Queen [2018] HCA 48; (2018) 266 CLR 106 [20].

3. In that passage, their Honours were noting that there will seldom be as much risk of a jury reasoning improperly from uncharged act context evidence compared to uncharged act propensity evidence, particularly where the jury are given a direction of the kind mandated by King CJ in Dolan (503) and the jury are directed that they must not find the accused guilty of a charged act unless satisfied beyond reasonable doubt, on the evidence relating to that charge, that the accused is guilty of that charge.

4. Where evidence (including evidence of criminal or disreputable conduct by the accused) is given at a criminal trial because the evidence is relevant in placing the evidence as to the facts and circumstances of a charged offence into their true context, and there is a real possibility that the jury may otherwise apply propensity or tendency reasoning to the contextual evidence, then a judicial direction will ordinarily be necessary to avoid a perceptible risk of a miscarriage of justice.  See LNV v The State of Western Australia.[9]

   [9] LNV v The State of Western Australia [2019] WASCA 180 [78] (Buss P & Sofronoff AJA), [103] (Beech JA).

5. The risk of a jury engaging in propensity or tendency reasoning has been recognised as 'peculiarly strong' in cases involving alleged sex offences.  See De Jesus v The Queen;[10] Hamilton (a pseudonym) v The Queen.[11]

   [10] De Jesus v The Queen (1986) 61 ALJR 1, 3 (Gibbs CJ).

   [11] Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 394 ALR 194 [43] (Kiefel CJ, Keane & Steward JJ), [62] (Edelman & Gleeson JJ).

6. In the present case, the prosecutor informed the trial judge, in the absence of the jury, that the State sought to rely upon the evidence of other conduct solely as context and relationship evidence at common law.  However, her Honour did not give the jury a direction to that effect in her summing up or at all.

7. Her Honour instructed the jury, relevantly and in essence, that:

   (a)If the jury found that K's evidence of other conduct was reliable and the jury believed it to be true, the jury could consider K's evidence of other conduct when they assessed K's evidence on other issues (see [40(a) and (b)] above).

   (b)If the jury found that the other conduct had occurred, the jury could consider all of K's evidence, including her evidence of other conduct, in deciding whether the State had proved each charge beyond reasonable doubt (see [40(b)] above).

   (c)The jury was at liberty to act upon K's evidence of other conduct to convict the appellant if the jury was satisfied as to the truth, accuracy and reliability of the evidence (see [40(e)] above).

8. It is true that a finding by the jury that K's evidence of other conduct was not credible could adversely affect the jury's assessment of the credibility of K's evidence in relation to the counts in the indictment.

9. However, a finding by the jury that K's evidence of other conduct was credible could not, of itself, enhance the credibility of K's evidence in relation to any of the counts in the indictment, at least in circumstances where K's evidence concerning the counts was not supported by any objective facts or corroborated by any other witness.  See IMM v The Queen.[12]

   [12] IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300 [63] (French CJ, Kiefel, Bell & Keane JJ).

10. The trial judge did not, in the instructions referred to at [54] above or elsewhere in her summing up, confine the jury's use of K's evidence of other conduct to use for the purpose of assessing K's credibility generally. Those instructions did not refer merely to the truthfulness of K's evidence. The instructions extended to the accuracy and reliability of her evidence.

11. In our opinion, her Honour's failure to direct the jury that the State sought to rely upon the evidence of other conduct solely as context and relationship evidence and to instruct the jury as to how the jury could rely upon K's evidence of other conduct solely for that purpose involved a misdirection.  Her Honour's failure in that respect gave rise to a real possibility that the jury might misuse K's evidence of other conduct.

12. For example, there was a real possibility that, if the jury found that K's evidence of other conduct was reliable and the jury believed it to be true:

    (a)the jury might reason that the evidence demonstrated that the appellant had a sexual interest in K; and

    (b)the jury might consider that the evidence, in combination with K's evidence in relation to the counts in the indictment, enabled the jury to be satisfied beyond reasonable doubt that the appellant had committed, relevantly, the offences charged in count 1 and count 2 as amended.

13. If the jury had used K's evidence of other conduct in that manner then the jury would in substance have used that evidence as propensity or tendency evidence which was probative of the appellant's guilt of the charged offences.

14. The real possibility that the jury might misuse K's evidence of other conduct was not avoided by the 'non-specific' nature of that evidence or the interval between the occurrence of the alleged other conduct and the occurrence of the offending charged in count 1 and count 2 as amended.

15. There is no reasonable basis for supposing that defence counsel's failure to request the trial judge to redirect the jury was made for a rational forensic reason.  Defence counsel's failure to complain about her Honour's misdirection does not, in the circumstances of the present case, preclude the appellant from alleging that a miscarriage of justice occurred.

16. We are satisfied that the misdirection occasioned a miscarriage of justice at the trial.

17. Ground 2 has been made out.

Ground 1:  the appellant's submissions

1. Counsel for the appellant submitted that there was 'sufficient evidence' to convict the appellant on count 3, but not on count 1 or count 2 as amended (appeal ts 5).

2. Counsel asserted in relation to count 1 that:

   (a)the conduct said to constitute count 1 'was such that there was no or no sufficient evidence that the appellant had committed the [act] that he was accused of';

   (b)K gave 'insufficient evidence in respect of count 1, there being no particularity of the acts said to have constituted the conduct in respect of count 1';

   (c)the 'detail' of the alleged offending the subject of count 1 was 'insufficient after making allowance for [K's] age';

   (d)K said frequently that she 'really can't remember'; and

   (e)K gave evidence at the trial to the effect that 'she could not remember the alleged offence in count 1' and, '[a]fter making due allowance for [K's age], the evidence fell well short of proving [count 1]'.

3. Counsel asserted in relation to count 2 as amended that:

   (a)the conduct said to constitute count 2 as amended 'was such that there was no or no sufficient evidence that the appellant had committed the [act] that he was accused of';

   (b)K gave 'inconsistent evidence concerning the acts said to constitute [count 2 as amended]';

   (c)it was clear that K 'did not remember anything before or after her pants were down' apart from 'perhaps … being touched but not penetrated';

   (d)K's use of the word 'would' indicated that she was referring to 'uncharged acts';

   (e)K's answer 'Uh, then he would maybe lay me down and then start fingering me' should not be considered 'as part of her evidence for [count 2 as amended]';

   (f)the evidence given by K in the child witness interview on 18 November 2019 'was ambiguous and was in any event contradicted by her evidence [at the trial]';

   (g)K gave 'two very different versions of what happened', namely 'her pants were down and that was all'; the appellant 'putting his finger in her vagina'; and the appellant 'had touched her vagina'; and

   (h)K gave 'the very different account' in the child witness interview 'which itself was both internally inconsistent and inappropriately prompted, compared to what was disclosed to the prosecutor and which became [count 2 as amended]'.

Ground 1:  the State's submissions

1. Counsel for the State submitted in relation to count 1 that:

   (a)the appellant's submission that K had no memory of the incident the subject of count 1, and that there was insufficient particularity, is incorrect;

   (b)it was open to the jury to be satisfied beyond reasonable doubt that K's evidence, as to the elements of count 1, was honest and accurate; and

   (c)it has not been demonstrated that the verdict of guilty on count 1 is unreasonable or cannot be supported having regard to the evidence.

2. Similarly, counsel submitted in relation to count 2 as amended that:

   (a)the appellant's submission that K's evidence concerning the act the subject of count 2 as amended was unreliable and should have been fatal to the State's case on that count is incorrect;

   (b)it was open to the jury to be satisfied beyond reasonable doubt that K's evidence, as to the elements of count 2 as amended, was honest and accurate; and

   (c)it has not been demonstrated that the verdict of guilty on count 2 as amended is unreasonable or cannot be supported having regard to the evidence.

The merits of ground 1

1. It is necessary to consider ground 1 even though ground 2 has been made out.  If ground 1 is made out then ordinarily this court would set aside the judgments of conviction and enter judgments of acquittal.  By contrast, the appellant's success on ground 2 will result in the judgments of conviction being set aside but a new trial being ordered.  Ground 1 must be considered by reference to a properly directed jury in view of her Honour's misdirection in relation to K's evidence of other conduct.

2. It is a question of fact whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported.  See M v The Queen;[13] Zaburoni v The Queen;[14] GAX v The Queen.[15]

   [13] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 (Mason CJ, Deane, Dawson & Toohey JJ).

   [14] Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482 [56] (Gageler J).

   [15] GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698 [25] (Bell, Gageler, Nettle & Gordon JJ).

3. An intermediate court of appeal (the appellate court) must decide that question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand.  See M (492 ‑ 493); SKA v The Queen.[16]

   [16] SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).

4. The appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the whole of the evidence (in particular, the competing evidence).  See SKA [22], [24].

5. The appellate court's task is not to consider, as a question of law, merely whether there was sufficient evidence to sustain a conviction.  See Morris v The Queen.[17]

   [17] Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, 473 (Deane, Toohey & Gaudron JJ). See also M (492 ‑ 493); SKA [20].

6. The appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, 'must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations':  M (493); R v Nguyen;[18] SKA [13].

   [18] R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ).

7. In Pell v The Queen,[19] the High Court made these observations about the assessment of the credibility of a witness by the jury, in the context of a ground of appeal which alleges that the jury's verdict was unreasonable or insupportable having regard to the evidence:

   [T]he assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community.  Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness‑box.  The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses.  Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.  (footnote omitted)

   [19] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ).

8. The High Court in Pell [39] also made these observations, in the context of the evidence of a complainant in a child sex case, about the function of the appellate court in determining a ground of appeal which alleges that the jury's verdict was unreasonable or insupportable having regard to the evidence:

   The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable.  The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.  (footnote omitted)

9. The ultimate question for the appellate court must always be whether the appellate court thinks that upon the whole of the evidence it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty:  M (494 ‑  495).  See also R v Hillier;[20] Fitzgerald v The Queen;[21] R vBaden‑Clay.[22]

   [20] R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [20] (Gummow, Hayne & Crennan JJ).

   [21] Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779 [5] (Hayne, Crennan, Kiefel, Bell & Gageler JJ).

   [22] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [66] (French CJ, Kiefel, Bell, Keane & Gordon JJ).

10. The setting aside of a tribunal of fact's verdict of guilty because, having regard to the evidence, it is unreasonable or cannot be supported is a serious step.  Trial by the appellate court is not to be substituted for trial by the tribunal of fact.  See Baden‑Clay [65] ‑ [66].

11. The appellate court's reasons must disclose its assessment of the capacity of the evidence to support the verdict.  See SKA [22] ‑ [24]; BCM v The Queen;[23] GAX [25].

    [23] BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101 [31] (Hayne, Crennan, Kiefel, Bell & Keane JJ).

12. The nature and extent of the appellate court's task, in a particular case, will be informed by:

    (a)the elements of the offence;

    (b)the accused's defence;

    (c)the issues in contest at the trial;

    (d)the manner in which the trial was conducted;

    (e)the way in which the case was ultimately left to the tribunal of fact;

    (f)whether the tribunal of fact was a judge (who must state the principles of law that he or she has applied and the findings of fact on which he or she has relied) or a jury (which does not give reasons); and

    (g)the particulars of the ground of appeal.

13. In the present case, this court must proceed on the assumption that the jury assessed the evidence of K in relation to the elements of count 1 and count 2 as amended as credible and reliable.  However, this court must examine the trial record to see whether, notwithstanding that assessment, this court is satisfied that the jury, acting rationally, should nevertheless have entertained a reasonable doubt as to proof of the appellant's guilt in relation to count 1 or count 2 as amended.

14. As to count 1:

    (a)K gave evidence that she followed the appellant's instructions and licked his penis.  K was cross‑examined on that evidence.  The cross‑examination did not cause K to resile from her evidence or otherwise undermine it.  When defence counsel put to K that she had never licked the appellant's penis, as she had described, K responded 'I did do that' (ts 111).

    (b)K said that she was aged 4, 5 or 6 when the incident the subject of count 1 happened.  K said she was on her bed or leaning on her bed at home.  She could not really remember whether she was on her bed or leaning on her bed.  K thought that she was wearing clothes.  She thought that the appellant was clothed, but the fly to his pants was open.  K said the appellant made her 'do stuff' with his penis once, but she did not remember (VRI, 18/11/2019 pp 6, 7, 10).  In 'the middle of' when the appellant was 'doing stuff' to her, she followed his instructions and she 'would have to like lick it sort of' (VRI 18/11/2019, pp 10 ‑ 11).  K also said 'Um, I can't really remember.  It's just I sort of - I would lick it for like, I don’t know, an ice cream maybe' (VRI, 18/11/2019, p 18).

    (c)Defence counsel did not submit that the appellant had no case to answer in relation to count 1.  During his closing address, defence counsel noted that K had said that she had licked the appellant's penis.  Defence counsel added 'Sure, the basics are there' (ts 22); K described it as 'like licking an ice cream' (ts 23); and K said that the appellant's penis 'came out of the fly' (ts 23).  The focus of defence counsel's closing address was upon what he asserted was K's limited detail as to the surrounding circumstances.  Defence counsel noted that there was no evidence as to whether the appellant's penis was 'hard' or 'erect' (ts 21, 23) or about what K had 'experienced' or 'seen' (ts 23).  According to defence counsel, the limited surrounding detail resulted in the existence of a reasonable doubt as to the appellant's guilt.

    (d)The trial judge gave the jury orthodox directions about assessing the credibility of a witness and the alleged inconsistencies in K's evidence.  Her Honour also gave the jury a Longman direction.  In particular, her Honour directed the jury that it would be dangerous to convict the appellant on K's uncorroborated evidence unless, having scrutinized her evidence with great care and having taken full account of her Honour's warning, the jury was satisfied beyond reasonable doubt as to its truth, reliability and accuracy (ts 278).

    (e)K maintained at the trial that everything she had said in the child witness interviews was true (ts 68).  The level of detail given by K about the incident the subject of count 1 is understandable having regard to her age at the time of the incident and at the time of the child witness interviews and the trial, and having regard to the interval that had elapsed between the time of the incident and the time when she gave evidence about it.  An assessment of K and her evidence during the child witness interviews and the trial (in particular, an assessment of the truthfulness, accuracy and reliability of her evidence) was a critical question for the jury.

    (f)The appellant repeatedly and consistently denied in his evidence that the offending charged in count 1 (or any other sexual conduct by him against K) had occurred.  The manner in which the appellant presented during his evidence and whether there was at least a reasonable possibility that any material aspects of his evidence might be truthful, accurate and reliable was a critical question for the jury.

1. As to count 2 as amended:

   (a)K gave evidence that the appellant had touched her vaginal area (ts 72).  When she was challenged about that evidence in cross‑examination, K said that the appellant did ask her to pull her pants down (ts 110) and that the appellant did touch her vagina (ts 111).

   (b)K said that at the time of the offending she was aged 8 or 9 and in year 2 at school (VRI, 24/06/2020, pp 12, 13, 21; ts 80).  The incident occurred in the lounge room at her home (ts 72).  It happened on a sunny day in the first or second term of school (VRI, 24/06/2020, p 14).  K did not remember why she was at home on the day in question, but she suggested 'I may have been sick' and 'dad was on a day off or something' (VRI, 18/11/2019, p 13).  Later, K said that, on the day in question, 'I was home sick from school, I'm pretty sure' (VRI, 24/06/2020, p 12).  K also said that she was 'pretty sure' she had the flu (VRI, 24/06/2020, p 21).

   (c)K said she remembered when her brother and her mother returned from school, arrived in the car and then came into the house (VRI, 18/11/2019, p 12; VRI, 24/06/2020, p 12).  K was 'pretty sure' the television was playing (VRI, 18/11/2019, p 12).  She was in the lounge room.  The appellant told her to 'pull your pants up' and he then went outside (VRI, 18/11/2019, p 12).  K pulled her pants up behind the couch; she said she was 'pretty sure' she nearly tripped on her clothes; she said 'I think they were leggings and a shirt or something' (VRI, 18/11/2019, pp 6, 12).  When K's brother asked her why she was behind the couch, K lied.  She said something to him that she could no longer remember (VRI, 18/11/2019, pp 6, 12).  K thought she 'made up something like, um, "Dad scared me so I hid", or something' (VRI 18/11/2019, p 12).  K was unable to remember what happened before she went behind the couch (VRI, 18/11/2019, p 12).  She may have been in the lounge room watching television (VRI, 18/11/2019, p 19). K was unable to recall anything after she was behind the couch other than her brother and her mother arriving home (ts 78).

   (d)K gave evidence that the appellant 'would probably [have pulled her pants] down' and then 'he would maybe lay me down and then start fingering me' (VRI, 18/11/2019, p 19).  K said that when her pants were down the appellant 'would, um, do stuff to me and I would feel uncomfortable, but I was scared to say anything, so I would just let them happen' (VRI, 18/11/2019, p 12).  K remembered the appellant playing with her and touching her vaginal area (ts 72).  K gave evidence that she remembered the appellant 'doing stuff' but did not remember in detail; she remembered the appellant 'did do stuff to me' but she did not remember in detail and could not explain what she did remember (ts 78). K said she explained it to the best of her ability (ts 78).  K reiterated that the appellant did ask her to pull her pants down (ts 110) and he did touch her vagina (ts 111).

   (e)Defence counsel acknowledged in his closing address that there was evidence that the charged act had occurred.  Defence counsel commented, '[K] said yesterday, "I can't remember anything before, anything after.  All I know is that he touched my vagina"' (ts 25).  Defence counsel also commented, 'There's touching of the vagina' (ts 25).

   (f)As we have noted at [83(d)] above, the trial judge gave the jury orthodox directions about assessing the credibility of a witness and the alleged inconsistencies in K's evidence.  Also, as we have noted at [83(d)] above, her Honour gave the jury a Longman direction.

   (g)K maintained at the trial that everything she had said in the child witness interviews was true (ts 68).  Once again, an assessment of K and her evidence during the child witness interviews and the trial (in particular, an assessment of the truthfulness, accuracy and reliability of her evidence) was a critical question for the jury.

   (h)The appellant repeatedly and consistently denied in his evidence that the offending charged in count 2 as amended (or any other sexual conduct by him against K) had occurred.  Once again, the manner in which the appellant presented during his evidence and whether there was at least a reasonable possibility that any material aspects of his evidence might be truthful, accurate and reliable was a critical question for the jury.

2. As to count 1 and count 2 as amended, the appellant does not challenge his conviction on count 3. As we have mentioned, count 3 alleged, relevantly, that on a date unknown between 10 November 2016 and 11 November 2017, the appellant sexually penetrated K by penetrating her vagina with his finger, contrary to s 329(2) of the Code. In the present case, if the jury was satisfied beyond reasonable doubt as to the appellant's guilt on any of the charges in the indictment, then the jury could, in evaluating another charge in the indictment, consider that evidence, together with the evidence relevant to the other charge, in deciding whether the State had proved the other charge beyond reasonable doubt.

3. In our opinion, after evaluating and weighing the competing evidence at the trial (in the context of the trial record as a whole), but without regard to K's evidence of other conduct, a properly directed jury would have been entitled:

   (a)to be satisfied beyond reasonable doubt that K's evidence that the appellant had procured K to engage in sexual behaviour, as alleged in count 1 (in particular, the appellant had encouraged K to engage in sexual behaviour by licking his penis), was truthful, accurate and reliable;

   (b)in particular, to be satisfied beyond reasonable doubt that K had a truthful, accurate and reliable memory of the incident the subject of count 1;

   (c)to be satisfied beyond reasonable doubt that K's evidence that the appellant had indecently dealt with K by touching her vagina as alleged in count 2 as amended was truthful, accurate and reliable;

   (d)in particular, to be satisfied beyond reasonable doubt that K had a truthful, accurate and reliable memory of the incident the subject of count 2 as amended;

   (e)to reject the appellant's evidence that he did not commit the offences charged in count 1 and count 2 as amended;

   (f)to find that the alleged ambiguities and inconsistencies in K's evidence were not of material significance and did not result in a reasonable doubt as to the appellant's guilt on count 1 or count 2 as amended; and

   (g)to find that the limited detail in K's evidence in relation to the charged offences was not of material significance and did not result in a reasonable doubt as to the appellant's guilt on count 1 or count 2 as amended.

4. A properly directed jury, acting reasonably, would have been entitled to be satisfied beyond reasonable doubt, upon the basis of K's evidence (apart from her evidence of other conduct), that the appellant had procured K to engage in sexual behaviour by encouraging K to lick his penis (as alleged in count 1) and that the appellant had indecently dealt with K by touching her vagina (as alleged in count 2 as amended).

5. The trial record does not require the conclusion that a properly directed jury must necessarily have entertained a doubt about the appellant's guilt of the charged offences.  The State's case on count 1 and count 2 as amended was capable of being supported to the criminal standard by admissible evidence that a properly directed jury would be entitled to accept and by inferences that a properly directed jury would be entitled to draw. 

6. Ground 1 fails.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

BS

Associate to the Honourable Justice Buss

28 JANUARY 2022