Tweedie v The Queen
[2003] WASCA 282
•27 NOVEMBER 2003
TWEEDIE -v- THE QUEEN [2003] WASCA 282
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 282 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:203/2002 | 10 SEPTEMBER 2003 | |
| Coram: | MALCOLM CJ MURRAY J WHEELER J | 27/11/03 | |
| 46 | Judgment Part: | 1 of 1 | |
| Result: | Appeal for leave to appeal against conviction dismissed Application for leave to appeal against sentence adjourned to a date to be fixed | ||
| A | |||
| PDF Version |
| Parties: | JOHN NICHOL TWEEDIE THE QUEEN |
Catchwords: | Criminal practice and procedure Indictment Joinder of counts and joint trial 18 counts involving eight complainants 10 counts of indecent assault, six counts of deprivation of liberty and two counts of sexual penetration without consent Whether and to what extent separate trials should have been ordered Whether and to what extent reliance was placed on similar fact evidence Similar fact evidence disputed Whether and to what extent applicant prejudiced by joinder Whether evidence of similar sexual attacks in nearby area was wrongly excluded |
Legislation: | Criminal Code (WA), ss 323, 324, 325, 333, 585 Indictment Act 1915 (UK), Sch 1 Sentence Administration Act 1995 (WA), s 25 Sentencing Act 1995 (WA), s 98 |
Case References: | Cook v The Queen [2000] WASCA 78 De Jesus v The Queen (1986) 68 ALR 1 Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106 Hamilton v The Queen, unreported; CCA SCt of WA; Library No 970082; 4 March 1997 Ludlow v Metropolitan Police Commissioner [1971] AC 29 Noor Mohamed v The King [1949] AC 182 R v Sims [1946] KB 531 Stickland v The Queen [2002] WASCA 339 Sutton v The Queen (1984) 152 CLR 528 Von Porebski v The Queen [1999] WASCA 15 KRM v The Queen (2001) 206 CLR 221 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : TWEEDIE -v- THE QUEEN [2003] WASCA 282 CORAM : MALCOLM CJ
- MURRAY J
WHEELER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal practice and procedure - Indictment - Joinder of counts and joint trial - 18 counts involving eight complainants - 10 counts of indecent assault, six counts of deprivation of liberty and two counts of sexual penetration without consent - Whether and to what extent separate trials should have been ordered - Whether and to what extent reliance was placed on similar fact evidence - Similar fact evidence disputed - Whether and to what extent applicant prejudiced by joinder - Whether evidence of similar sexual attacks in nearby area was wrongly excluded
Legislation:
Criminal Code (WA), ss 323, 324, 325, 333, 585
(Page 2)
Indictment Act 1915 (UK), Sch 1
Sentence Administration Act 1995 (WA), s 25
Sentencing Act 1995 (WA), s 98
Result:
Appeal for leave to appeal against conviction dismissed
Application for leave to appeal against sentence adjourned to a date to be fixed
Category: A
Representation:
Counsel:
Applicant : Mr T R Stephenson
Respondent : Mr B Fiannaca
Solicitors:
Applicant : P A Roth & Associates
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Cook v The Queen [2000] WASCA 78
De Jesus v The Queen (1986) 68 ALR 1
Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106
Hamilton v The Queen, unreported; CCA SCt of WA; Library No 970082; 4 March 1997
Ludlow v Metropolitan Police Commissioner [1971] AC 29
Noor Mohamed v The King [1949] AC 182
R v Sims [1946] KB 531
Stickland v The Queen [2002] WASCA 339
Sutton v The Queen (1984) 152 CLR 528
Von Porebski v The Queen [1999] WASCA 15
Case(s) also cited:
KRM v The Queen (2001) 206 CLR 221
(Page 3)
1 MALCOLM CJ: This was an application for leave to appeal against conviction and an application for leave to appeal against sentence. On 25 October 2002, the applicant was convicted after a trial in the District Court before Yeats DCJ and a jury of 10 counts of indecent assault, six counts of deprivation of liberty and two counts of sexual penetration without consent. On 3 April 2003, the applicant was sentenced to a finite term of imprisonment of 11 years and also to an indefinite sentence of imprisonment to commence at the conclusion of the finite term.
2 In the appeal against conviction, the applicant seeks orders that the verdicts of guilty be set aside and that new and separate trials be ordered in respect of the offences alleged to have been committed on each complainant. The applicant also asks the Court to declare that s 98 of the Sentencing Act 1995 (WA) and s 25 of the Sentence Administration Act 1995 (WA) are invalid. Finally, the applicant seeks an order that the order made by the learned trial Judge that the applicant be imprisoned indefinitely be set aside.
Indictment and Pleas
3 On 6 March 2002, the applicant pleaded not guilty to an indictment containing 20 counts of alleged sexual offences committed on eight different complainants. Counts 1, 2 and 3 on the indictment concerned a female complainant to whom I shall refer to as 'A'. Count 1 alleged that on 4 September 2000 at Coogee, the applicant unlawfully detained A. Count 2 alleged that on the same date at the same place as in count 1, the applicant indecently assaulted A by grabbing her breasts and at the same time did bodily harm to her. Count 3 alleged that on the same date and at the same place, the applicant again unlawfully and indecently assaulted A by touching her vagina.
4 Count 4 alleged that on 9 December 2000 at Hamilton Hill, the applicant unlawfully detained a female complainant to whom I shall refer to as 'R'. Count 5 alleged that on the same date and at the same place referred to in count 4, the applicant unlawfully and indecently assaulted R by rubbing his penis against her and at the same time and immediately after the commission of the offence did bodily harm to her.
5 Count 6 alleged that on 17 December 2000 at Warnbro, the applicant unlawfully detained one 'S'. Count 7 alleged that on the same date and at the same place, the applicant unlawfully and indecently assaulted S by grabbing her breast. Count 8 alleged that on the same
(Page 4)
- date and at the same place, the applicant again unlawfully and indecently assaulted S by placing his hand between her legs.
6 Count 9 alleged that on 28 January 2001 at Warnbro, the applicant unlawfully and indecently assaulted one 'M' by touching her breasts. Count 10 alleged that on 9 February 2001 at Warnbro, the applicant unlawfully detained one 'O'. Count 11 alleged that on the same date and at the same place referred to in count 10, the applicant unlawfully and indecently assaulted O by rubbing his penis against her.
7 Count 12 alleged that on 9 February 2001 at Waikiki, the applicant unlawfully detained one 'W'. Count 13 alleged that on the same date and at the same place referred to in count 12, the applicant unlawfully and indecently assaulted W by grabbing her left breast. Count 14 alleged that on 11 February 2001 at Waikiki, the applicant unlawfully detained one 'N'. Count 15 alleged that on the same date and at the same place referred to in count 14, the applicant unlawfully and indecently assaulted N by grabbing her left breast. Count 16 alleged that on the same date and at the same place referred to in count 15, the applicant sexually penetrated N without her consent by penetrating her vagina with his fingers. Count 17 alleged that on the same date and at the same place referred to in count 16, the applicant unlawfully and indecently assaulted N by touching her breast and also alleged that at the same time and immediately after the commission of the offence, the applicant did bodily harm to N.
8 Count 18 alleged that on 9 September 2001 at Warnbro, the applicant unlawfully detained one 'T'. Count 19 alleged that on the same date and at the same place referred to in count 18, the applicant unlawfully and indecently assaulted T by grabbing her breast. Count 20 alleged that on the same date and at the same place referred to in count 18, the applicant sexually penetrated T, without her consent, by penetrating her vagina with his fingers.
Ground (a):
Joint Trials
9 Ground (a) of the grounds of appeal was that the learned trial Judge erred:
"a) in declining to sever the Indictment and declining to order separate trials for each complainant, specifically Her Honour erred:
(Page 5)
- i) in fact and in law, in finding that the offences against the 7 complainants were sufficiently similar in character and conduct as to make evidence in relation [sic to] each complainant admissible in respect of each of the other complainants;
ii) in fact, in finding that the 2 sexual attacks in the Port Kennedy foreshore area were factually sufficiently different from the indicted charges that the fact of at least one and possibly 2 other offenders offending in the same area did not derogate from the probative force of the similar fact evidence to the degree that the prejudicial effect of such evidence outweighed the probative value of that evidence;"
Ground (a)(i)
10 It was contended on behalf of the applicant that the learned trial Judge erred in declining to sever the indictment and order separate trials in respect of the offences alleged by each complainant. Specifically, it was contended, first, that her Honour erred, in fact and in law, in finding that the offences alleged to have been committed against each of the seven complainants were sufficiently similar in character and conduct, so as to make the evidence in relation to the offences alleged by each complainant admissible in respect of the offences alleged by each of the other complainants.
11 Secondly, it was contended that the learned trial Judge erred in fact, in finding that the two sexual attacks alleged to have occurred in the Port Kennedy foreshore area were factually significantly different from the offences charged on the indictment so that "the fact of [sic possibility] at least one and possibly 2 other offenders offending in the same area did not derogate from the probative force of the similar fact evidence to the degree that the prejudicial effect of such evidence outweighed its probative value".
12 Immediately after the applicant had pleaded not guilty to each of the counts on the indictment on 6 March 2002, an application was made by his counsel to sever the indictment so that the allegations made by each of the eight complainants should be the subject of separate trials. The application was based upon s 585 of the Criminal Code (WA) ("the Code") which provides that:
(Page 6)
- "Indictment to contain one matter of charge only
Except as hereinafter stated, an indictment must charge one offence only, and not 2 or more offences:
Provided that when several distinct indictable offences form or are a part of a series of offences of the same or a similar character or when several distinct indictable offences are alleged to be constituted by the same acts or omissions, or by a series of acts done or omitted to be done in the prosecution of a single purpose, charges of such distinct offences may be joined in the same indictment against the same person.
In any such case the several statements of the offences may be made in the same form as in other cases, without any allegation of connection between the offences.
But, if in any such case it appears to the court that the accused person is likely to be prejudiced by such joinder, the court may require the prosecutor to elect upon which of the several charges he will proceed, or may direct that the trial of the accused person upon each or any of the charges shall be had separately."
13 Charges may be joined together as separate counts on one indictment under certain circumstances where the offences are appropriately connected. The justification may be that the offences were all part of a series of similar offences under s 585 of the Code. However, the issue raised by the ground of appeal is whether there should have been separate trials of the counts involving each of the respective complainants referred to in the indictment or, at least, separate trials of different groups of complainants where reliance was placed upon the same similar fact evidence. It was not contended that there should have been separate trials of the individual counts involving each of the complainants.
14 The question raised by the ground in the context of s 585 of the Code is whether the applicant was likely to be prejudiced by the joinder and the prosecutor should have been called to elect upon which of the offences charged in the indictments he would proceed, or the Judge should have directed that the trial of the applicant upon each, some or all of the charges should be heard separately.
15 The ground has to be considered in light of the evidence and materials as they stood prior to the commencement of the trial proper,
(Page 7)
- when the application to sever the indictment and have eight separate trials was made after the jury had been empanelled and after the applicant had pleaded to the indictment. As I pointed out in Stickland v The Queen [2002] WASCA 339 at [8], in a judgment with which Wallwork and Steytler JJ agreed:
"The starting point is that each count charged the commission of a criminal offence and, unless the evidence in respect of each offence was admissible in relation to the other offences charged, separate trials should be ordered: Hoch v The Queen (1988) 165 CLR 292 at 294 per Mason CJ, Wilson and Gaudron JJ; Pfennig v The Queen (1995) 182 CLR 461; De Jesus v The Queen (1986) 68 ALR 1. These decisions have been considered and applied in this State in a number of cases, including Hamilton v The Queen, unreported; CCA SCt of WA; Library No 970082; 4 March 1997; and Von Porebski v The Queen [1999] WASCA 15."
"3 So far as the similar fact evidence is concerned, such evidence may be admissible if, and only if it tends to show that an accused person is guilty of the offence charged for some reason other than that he or she has committed crimes in the past or has a criminal disposition. In Hoch v The Queen (1988) 165 CLR 292 at 294 Mason CJ, Wilson and Gaudron JJ said:
'The basis for the admission of similar fact evidence lies in its possessing a particular probative value or cogency by reason that it reveals a pattern of activity such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused person in the offence charged: see Dixon J's discussion in Martin v Osborne (1936) 55 CLR 367 at 375. In that same case [at 385] Evatt J pointed out that it bears that probative value or cogency not as a matter of deductive logic but by reason that it allows for "admeasuring the probability or improbability of the fact or event in issue, if we are given the fact or facts sought to be adduced in evidence".
(Page 8)
- Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force … That strength lies in the fact that the evidence reveals 'striking similarities', 'unusual features', 'underlying unity', 'system' or 'pattern' such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution.'
- 4 In Pfennig v The Queen (1995) 182 CLR 461 at 482 Mason CJ, Deane and Dawson JJ said of the above passage:
'This passage should not be understood as asserting that 'striking similarities' or the other characteristics mentioned in relation to propensity or similar fact evidence are essential prerequisites of its admissibility in every case.
An important distinction is to be drawn between cases such as the present case in which the 'similar facts' are not in dispute and cases in which such facts are in dispute.'
5 Their Honours then referred to the statement by Mason CJ, Wilson and Gaudron JJ in Hoch at 294-295 that:
'Where the happening of the matter said to constitute similar facts is not in dispute and there is evidence to connect the accused person with one or more of the happenings evidence of those similar facts may render it objectively improbable that a person other than the accused committed the act in question, that the relevant act was unintended, or that it occurred innocently or fortuitously. The similar fact evidence is then admissible as evidence relevant to that issue.' "
(Page 9)
- "Where the propensity or similar fact evidence is in dispute, it is still relevant to prove the commission of the acts charged … The probative value of the evidence lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred. Obviously the probative value of disputed similar facts is less than the probative value those facts would have if they were not disputed. But the prejudicial effect of those facts may not be significantly reduced because the prejudicial effect that the law is concerned to guard against is the possibility that the jury will treat the similar facts as establishing an inference of guilt whether neither logic nor experience would necessitate the conclusion that it clearly points to the guilt of the accused. Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such but because it has a prejudicial capacity of a high order the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused (Hoch (1988) 165 CLR at 296 … see also Harriman (1989) 167 CLR at 602). Here 'rational' must be taken to mean 'reasonable' (see Peacock v The King (1911) 13 CLR 619 at 634; Plomp v The Queen (1963) 110 CLR 234 at 252) and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle.
In our view, the principles stated above which derive from Hoch correctly state the law with respect to the admissibility of similar fact evidence."
18 In Hoch v The Queen (supra) at 295 – 296, Mason CJ, Wilson and Gaudron JJ said:
"Where, as here, an accused person disputes the happenings which are said to bear a sufficient similarity to each other as
(Page 10)
- to make evidence on one happening admissible in proof of the others, similar fact evidence bears a different complexion for the issue is whether the acts which are said to be similar occurred at all. In such a case the evidence has variously been said to be relevant to negative innocent association R. v. Sims ([1946] KB 531) or as corroboration Reg. v. Kilbourne ([1973] AC 729, at pp 749, 751 and 758) but the better view would seem to be that it is, relevant to prove the commission of the disputed acts. See Boardman ([1975] AC at p 452), per Lord Hailsham at p 452 and Lord Cross at p 458; Sutton ((1984) 152 CLR at pp556-557) per Deane J. Certainly that is the thrust of its probative value. That value lies in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred. So much is clear from the well known passage in the speech of Lord Wilberforce in Boardman, ([1975] AC at p 444):
'This probative force is derived, if at all, from the circumstance that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence.'
Similar fact evidence which does not raise a question of improbability lacks the requisite probative value that renders it admissible. When the happenings which are said to bear to each other the requisite degree of similarity are themselves in issue the central question is that of the improbability of similar lies: see Sims ([1946] KB at 140), at p 540; Boardman, at pp 439 and 459-460. See also Rupert Cross, 'R. v. Sims in England and the Commonwealth', Law Quarterly Review, vol. 75 (1959), p 333; Piragoff, Similar Fact Evidence (1981), pp 38-47.
This appears not to have been appreciated in Johannsen v. The Queen ((1977) 65 CrAppR 101) and Reg. v. Scarrott (1978 QB 1016), but it is implicit in the observation of Lord Wilberforce in Boardman (at p 444) that 'something much more than mere similarity and absence of proved conspiracy is needed if this evidence is to be allowed.' His Lordship added:
(Page 11)
- 'This is well illustrated by Reg. v. Kilbourne ([1973] AC 729) where the judge excluded 'intra group' evidence because of the possibility, as it appeared to him, of collaboration between boys who knew each other well. This is, in my respectful opinion, the right course rather than to admit the evidence unless a case of collaboration or concoction is made out.' (Original emphasis.)
- His Lordship there posited that the possibility of concoction - not a probability or real chance of concoction - served to render such evidence inadmissible. Indeed we think that must be right. Similar fact evidence is circumstantial evidence, as is implicit in what was said by Dixon J. in Martin (at p 375) and as pointed out by Dawson J. in Sutton (at pp 563-564). In Sutton (at p 564) Dawson J. expressed the view, with which we agree, that to determine the admissibility of similar fact evidence the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence, and ask whether there is a rational view of the evidence that is inconsistent with the guilt of the accused."
19 In Hoch v The Queen (supra), their Honours went on to point out at 296 that in such cases similar fact evidence has two functions. First, as circumstantial evidence, it serves to corroborate or confirm "the veracity", namely, the truth of the evidence given by other complainants. Secondly, again as circumstantial evidence, it tends to prove the happening of the event or events in issue. In relation to both functions, because the evidence is circumstantial, it has probative value only if it bears no reasonable explanation other than the happening of the events in issue. In this case, there was no suggestion of concoction.
20 After reciting the various counts, the learned Judge noted that the first group of counts, 1, 2 and 3, involving the complainant A were alleged to have occurred on 4 September 2000 at a beach at Coogee. Counts 4 and 5 involving the complainant R were alleged to have taken place on 9 December 2000 at Hamilton Hill. Counts 6, 7 and 8 involving the complainant S were alleged to have taken place on 17 December 2000 at a beach at Warnbro. Count 9 involving the complainant M was alleged to have taken place on 28 January 2001 at a beach at Warnbro. Counts 10 and 11 involving the complainant W were alleged to have taken place on 3 February 2001 at a beach at Warnbro. Counts 12, 13, 14 and 15 involving the complainant N were alleged to have taken place on 9 February 2001 at a beach at Warnbro.
(Page 12)
- Counts 16, 17 and 18 involving the complainant T were alleged to have taken place on 11 February 2001 at a beach at Waikiki.
21 It is apparent from this passage that the learned trial Judge made the decision to allow all of the charges on the indictment to be heard together by reason of the circumstances of the commission of the offences that were broadly similar to the offences in 1986, but the present series of offences were of striking similarity with each other in terms of timing, the place where the applicant lived and worked and the relationship between the various offences charged on the present indictment "in terms of their gradual building up until the last two complainants alleged a sexual penetration."
22 Counsel for the applicant contended that the counts were tried together only because the trial Judge held that there was similar fact evidence of identification in relation to three complainants, which could be used as evidence of identification in relation to the offences alleged to have been committed on the other four complainants, who could not identify their assailant properly or at all. It was contended that, if this was not held to be the case, the charges on the indictment should have been severed because the prejudice to the applicant by the joinder of the charges in the one indictment was too great. Reliance was placed on Cook v The Queen [2000] WASCA 78 at [13] in which Anderson J said:
"In cases alleging multiple sexual offences against more than one complainant, there will nearly always be a severance of the trials involving the separate complainants if the evidence given in proof of the offences committed against one complainant is inadmissible in the trial of the offences alleged to have been committed against the other complainant. The risk of prejudice to the accused in a joinder of trials involving all complainants is just too great. In R v T (1996) 86 A Crim R 293, Southwell AJA said, at 299:
'To prove that a man is sexually attracted to young children is to show an unnatural propensity … This, of course, is one of the reasons why in such cases one rarely sees a trial where more than one victim is involved; almost without exception, it is only where the similar fact doctrine applies that a trial will involve offences against more than one victim.' "
(Page 13)
23 Reference was also made to Stickland v The Queen (supra) at [8]; Sutton v The Queen (supra) per Brennan J at 541 – 542. In the latter passage, Brennan J said:
"When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury's mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted. There may be an exceptional case where countervailing factors appear but I do not presently foresee them."
24 In De Jesus v The Queen (supra), Gibbs CJ said of the comments by Brennan J in Sutton (supra) at 541 – 542:
"This is a general statement, not limited to sexual cases, and so viewed I respectfully agree with it. Sexual cases, however, are peculiarly likely to give rise to prejudice, against which a direction to the jury is unlikely to guard. For that reason, I adhere to the view which I expressed in Sutton v The Queen."
25 Mason and Deane JJ concluded that the refusal of the trial Judge to order separate trials was correct. In so doing, they approved the decision of the House of Lords in Ludlow v Metropolitan Police Commissioner [1971] AC 29 at 38, in which Lord Pearson, with whom the other Lords concurred, held that two offences could constitute "a series" within the meaning of Sch 1 of the Indictments Act 1915 (UK) and that offences were "of a similar character" if there were "both a legal and a factual similarity between the two offences". Lord Pearson went on to say at 41:
"In my opinion, this theory – that a joinder of counts relating to different transactions is in itself so prejudicial to the accused that such a joinder should never be made - cannot be held to have survived the passing of the Indictments Act,
(Page 14)
- 1915. No doubt the juries of that time were much more literate and intelligent than the juries of the late eighteenth and early nineteenth centuries, and could not be relied upon in any ordinary case not to infer that, because the accused is proved to have committed one of the offences charged against him, therefore he must have committed the others as well. I think the experience of judges in modern times is that the verdicts of juries show them to have been careful and conscientious in considering each count separately. Also in most cases it would be oppressive to the accused, as well as expensive and inconvenient for the prosecution, to have two or more trials when one would suffice. At any rate, in my opinion, the manifest intention of the Act is that charges which either are founded on the same facts or relate to a series of offences of the same or a similar character properly can and normally should be joined in one indictment, and a joint trial of the charges will normally follow, although the judge has a discretionary power to direct separate trials under section 5(3). If the theory were still correct, it would be the duty of the judge in the proper exercise of his discretion under section 5(3) to direct separate trials in every case where the accused was charged with a series of offences of the same or a similar character, and the manifest intention appearing from section 4 and rule 3 would be defeated."
26 The learned Judge called upon counsel for the Crown to make submissions on two separate issues, first, whether it was permissible for all of the counts to be on the same indictment; and, secondly, if the indictment was proper, should the trial Judge exercise her discretion to exclude any of the evidence in relation to the trial of any one count concerning the commission of all, or any of the offences, the subject of the other counts on the indictment.
27 At the time the application was heard, there were some 20 counts on the indictment. It was submitted to the learned Judge by the Crown that each group of offences was of such a character as to be sufficiently similar to warrant, prima facie, their inclusion in the one indictment. The Crown case as outlined to her Honour was that between 4 September 2000 and 9 September 2001 on eight separate occasions, the applicant went to a beach in the Rockingham area and, while he was there, he indecently assaulted one or other of the complainants and, as time went on, committed a number of sexual offences of increasing seriousness, including indecent assaults and sexual penetration of a
(Page 15)
- number of different women on the beachfront at Coogee, Hamilton Hill, Warnbro and Waikiki. Thus, it was being contended that there was a similarity in the facts, in that each of the indecent assaults or sexual penetrations occurred on or near the beach. In each case, the women were alone on the beach at the time. They were each grabbed from behind by a person who, in most cases they had not seen. Two of them, however, indicated they might have seen the person who later attacked them. In one instance it was said that the complainant might have seen the person who later attacked her. In most of the cases, the complainant said that the person who committed the offence grabbed her breasts, although in some instances he also attempted to touch her vagina, or in some other way indecently assault her. As time went on, it was contended that the seriousness of the offences increased in terms of the level of violence involved. Each of the women struggled, each of them were said to have screamed and attempted to fend off their attacker. In some cases, they actually did manage to fend him off and, in others, the offender noticed somebody else approaching the beach and ran away.
28 In each case, the complainant described her attacker as naked, although one particular complainant said that the perpetrator was wearing a beanie at the time of the offence. It was submitted on behalf of the Crown that, bearing in mind that there were a number of complainants, the descriptions of the attacker in each case, in terms of such things as weight, height and other descriptors, were remarkably similar.
29 The Crown also relied on DNA evidence implicating the applicant in the cases of A and S, in the form of fingernail scrapings in the case of A, who gave evidence that she scratched her attacker, and in the form of DNA from a pair of running shoes left by the perpetrator at the beach in the case of S, linking the applicant with the scene in each of those cases. This suggested odds in the over of hundreds of thousands to one that the applicant was the attacker in the case of A and was also relevant in the case of S. In the case of the complainant T, there was clothing seen by her at the scene as worn by the applicant, namely, a red shirt and a black beanie. Also in the case of T, there was the identification of the applicant's car at the scene. In addition, another one of the women identified the applicant because she recognised him later when she saw him getting into a car. She wrote down the licence plate number. Evidence was given that the vehicle with that registration number belonged to the applicant. Given the three items of identification evidence and the striking similarity between the incidents involving each of the complainants, the Crown contended that the joinder of all
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- the counts on one indictment was justified. It was also submitted on behalf of the Crown that any prejudice to the accused was far outweighed by the probative value of the evidence.
30 The evidence of A, S and T was critical to the Crown case. The learned Judge directed the jury that if they were not satisfied of the applicant's guilt of any of the offences alleged by A, S or T, they would have to acquit him on all charges:
" … because there would be no similar fact evidence and you could not convict him on the other complainants [sic complaints] without similar fact evidence … "
31 In my opinion, on the face of it, this direction may have been unduly favourable to the applicant because it suggested that it was enough for the jury to reject or not be satisfied beyond reasonable doubt of the guilt of the applicant of any one of the offences alleged by any one of A, S or T to find him not guilty of all of the offences alleged by the other complainants. It is not altogether clear, however, that her Honour intended to convey to the jury that if they were not satisfied that the applicant had committed all of the offences alleged by A, S and T, they would have to acquit. If her Honour had said "at least one" instead of "any", the meaning would have been absolutely clear. In my view, however, given the total context, I consider that the jury would have understood the direction as meaning that they had to be satisfied of the applicant's guilt of at least one of the offences alleged committed against A, S and T before they could rely on the similar fact evidence in relation to the other counts.
32 This was said to be so because none of the other complainants was able to identify the applicant as the perpetrator, notwithstanding the use of photoboards. To the extent that they did make a positive identification, it was clearly not the applicant who was identified, or there was doubt whether it was the applicant.
33 The learned Judge commenced her reasons for rejecting the application by referring to the counts on the indictment and noting a concession by counsel for the applicant that counts 1, 2 and 3 on the indictment could be tried together with counts 6, 7 and 8. This concession was made because in each of those cases, there was DNA evidence connecting the applicant to the offences alleged in those counts. Her Honour considered that there were only two issues in such a case as this. The first was whether the offences alleged were of the same or similar character within the meaning of s 585 of the Code, so as
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- to be properly joined in the indictment. The second was, if they were, whether they could properly be tried together in accordance with the principles applied in De Jesus v The Queen (1986) 68 ALR 1, namely, that the evidence of each offence was admissible in relation to the other offences charged: cfSutton v The Queen (1984) 152 CLR 528. To these authorities I would add Hoch v The Queen (supra) at 294 per Mason CJ, Wilson and Gaudron JJ; and Pfennig v The Queen (supra). These decisions have been followed and applied in this State in a number of cases, including Hamilton v The Queen, unreported; CCA SCt of WA; Library No 970082; 4 March 1997; Von Porebski v The Queen [1999] WASCA 15; and Stickland v The Queen (supra).
34 The learned trial Judge said that:
"I will first look at the question of whether this indictment alleges a series of offences of the same or a similar character. The defence suggests that joinder requires that the offences be not only similar in character as a matter of law but also that they must be similar as a matter of fact.
I accept that submission as far as it goes but in this particular case it is apparent from the papers that in each case the complainant was a lone female ranging in age from one girl who was over 13 and under 16 but most being mature women in their late twenties and early thirties. Each was walking alone on a beach. The beaches they were walking on were within a 20-kilometre radius all south of the river and stretching from Coogee to Shoalwater.
That in each case a woman walking alone was attacked by a naked male person, Caucasian. The person described by some, not all – but all descriptions falling roughly within a description of a man of solid build, from five seven to five ten in height with short dark hair. That in each case the woman was grabbed from behind and her breasts were grabbed, in some cases her vagina was touched and in some of the later offences a digital penetration took place.
Just from those basic facts it seems to me that there is no argument that these are the eight complainants, the 20 counts – do fall within the description in section 585 of the Criminal Code of a series of offences of the same or a similar character and I am therefore quite satisfied that they are properly joined on the indictment.
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- That however, does not mean that the accused could have a fair trial if they were tried together. The defence submits that in my discretion I should order separate trials because they say that the evidence of this number of alleged offences is highly prejudicial and that its probative value does not override that prejudicial force and that despite them being joined on the one indictment that separate trials are appropriate so that the accused can have a fair trial."
35 Her Honour then noted that the Crown relied on the law as stated in Pfennig v The Queen (supra) and also Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106 at [9] in which Gaudron J said:
"It is convenient, at this stage, to say something of the general evidence of sexual abuse which, in the view of the trial judge, went "to show the nature of the relationship between the complainant and the accused". There are occasions when evidence of criminal conduct other than that charged is admissible in proof of an offence because it raises the objective improbability of that evidence bearing an explanation consistent with the accused's innocence of that offence: (see BRS v The Queen (1997) 71 ALJR 1512 at 1520 per Toohey J, 1524 per Gaudron J; 148 ALR 101 at 111, 117. See also Hoch v The Queen (1988) 165 CLR 292 at 294-295 per Mason CJ, Wilson and Gaudron JJ; Harriman v The Queen (1989) 167 CLR 590 at 600 per Dawson J, 614 per Gaudron J; S v The Queen (1989) 168 CLR 266 at 287 per Gaudron and McHugh JJ; Pfennig v The Queen (1995) 182 CLR 461 at 481-482 per Mason CJ, Deane and Dawson JJ, 506 per Toohey J). . Evidence of that kind is usually called "similar fact" or "propensity" evidence and has a special probative value because, for example, it is highly improbable that persons would concoct the same story (Hoch v The Queen (1988) 165 CLR 292 at 295-296 per Mason CJ, Wilson and Gaudron JJ) or because it reveals some idiosyncratic or peculiar modus operandi which makes it highly probable that the acts in question were all committed by the same person."
36 The learned Judge noted that this was not a case in which the Court needed to concern itself about any possibility that the complainants had got their heads together and concocted similar stories. None of the eight separate complainants were acquainted with each other and the offences occurred on different occasions. There was no
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- connection between the complainants of the kind referred to in Hoch (supra). Her Honour then referred to the joint judgment of Mason CJ, Deane and Dawson JJ in Pfennig (supra) at 488 where their Honours said:
"Propensity evidence (including evidence of bad disposition and prior criminality) has always been treated as evidence which has or is likely to have a prejudicial effect in the sense explained. That is because the ordinary person naturally (a) thinks that a person who has an established propensity whenever opportunity arises has therefore yielded to the propensity in the circumstances of the particular case and (b) may ignore the possibility that persons of like propensity may have done the act complained of. Hence, the necessity to find something in the evidence or in its connection with the events giving rise to the offences charged which endows it with a high level or degree of cogency.
Often that high level or degree of cogency is found in the striking similarity, underlying unity or "signature" pattern common to the incidents disclosed by the totality of the evidence."
"Yesterday I spent a good deal of time reading the deposition of each complainant. Those have been summarised by the crown and I think rather than reading all of that into my judgment the defence seems to accept what was summarised by the crown. There doesn't seem to be any difference of view although the defence makes distinctions, but I adopt as the facts on which I make my findings those which are set out in the schedules which are attached to the crown prosecutor's submissions.
They show, for example, each case that the complainant was alone; that each was going for a walk on a beach or was walking between beaches or walking on a path having just left the beach. They show that in each case the accused person placed a hand over the mouth of the – came up from behind while naked and placed a hand over the complainant's mouth. In one case there is evidence that the offender was alleged to have spoken but in several of them there are
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- allegations of muttering and sounds coming from his mouth but not necessarily talk.
The only direct evidence against this particular accused person arises in relation to counts 1, 2 and 3, counts 6, 7, and 8 which both rely on some evidence of DNA material and counts 18, 19 and 20 were the licence plate and a white Range Rover allegedly belonging to this accused person was identified, otherwise the crown case in relation to each of the series of offences relies on the circumstances and the similarity of the circumstances. The defence puts its submissions at a different level. They accept that there is similarity between the offences. They accept that the descriptions given by the women do not exclude him but they say when you look at the descriptions they're not so strikingly similar as to make it highly probable that it was this accused person.
The descriptions would describe any number of people who happen to be 5 foot 7 to five ten, stocky with short dark hair. The defence submits that the fact that these attacks came from behind is not strikingly similar in that it's not a striking feature in the sense that attacks on the beach frequently would come from behind; neither is the fact that the alleged offender was naked, and the modus operandi of the operation – the defence submits although there is similarity, that that is the common way that attacks against lone women on beaches are committed and that there are attacks on women on beaches – Perth is known for its beaches – and that what has happened here is not so unique as to give rise to the submission the crown makes, that it's highly probable that these acts were all committed by the same person.
The defence submits there is no underlying unity in the fact that there are beaches south of the river. They weren't the same beaches; they were a number of beaches, although it seems to be accepted they're within about a 20-kilometre radius of each other. The defence further submits that the fact that eight people have been attached does not mean that the same person must have been this accused. The common features do not in the submission of the defence make these so unique – so strikingly similar as to give the combination of all eight the probative force that would compel the probability that the acts were all committed by the same person. The
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- defence submission is based very much on what was said by Gibbs CJ in Sutton's case at page 537. In that case – in Sutton's case the court held that there was a striking similarity. At 537 it's said:
'There is a close similarity in the nature of the assaults – '
and in this case they were talking about sexual assaults.
'Whether that similarity could be described as striking depends very much on experience – '
and Gibbs CJ looked at what had been said by Lord Wilberforce in Director of Public Prosecutions v Boardman [1975] AC 444, when he said:
'What is striking in one age is normal; in another, the perversions of yesterday may be the routine or the fashion of tomorrow.'
Gibbs CJ was concerned that Sim's case was very near the borderline, and went on to say at the end:
'There is some fear that if Boardman is regarded as an example, it may be setting the standard of striking similarity too low – '
and it is the defence submission that if I were to accept that there is a striking similarity and a probative force, that it would be setting the standard too low. Now, in looking at this, I start from the point, as I said, of having read each of the complainants' statements yesterday, and I must say in reading those statements the similarity of what was being alleged was, in my view, striking.
The complainants certainly used their own words and each found herself in a somewhat different position in that there was someone nearby, so that the attack was interrupted; in other cases they were more robust and able to fight off the attacker with greater strength, but the striking similarity of their statements in walking alone on beaches and walking alone for some distance away from – although they could see people in the distance in some cases, away from where there were any people, and having a person come up behind naked
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- and having that person's overall description, in every case, not exclude the accused, they certainly describe people differently, and some of the complainants didn't get a good look at her assailant."
38 Her Honour accepted that because of the number of complainants, the prejudice of having these offences tried together would be "unusually high." However, the learned Judge also noted that there was an additional feature in the present case relevant to the issue whether the probative force of the evidence outweighed its prejudicial effect. In this context, her Honour referred to the criticism by the Privy Council in Noor Mohamed v The King [1949] AC 182 at 191 – 192 of the view expressed by Lord Goddard LCJ in R v Sims [1946] KB 531 at 539 that:
"If one starts with the assumption that all evidence tending to show a disposition towards a particular crime must be excluded unless justified, then the justification of evidence of this kind is that it tends to rebut a defence otherwise open to the accused; but if one starts with the general proposition that all evidence that is logically probative is admissible unless excluded, then evidence of this kind does not have to seek a justification but is admissible irrespective of the issues raised by the defence, and this we think is the correct view. It is plainly the sensible view."
39 The criticism by Lord du Parcq, speaking for the Privy Council was that the phrase "logically probative" might be understood to include much evidence which was held to be irrelevant. Their Honours went on to say in Pfennig (supra) at 477:
"However, the criticism of the dicta in Sims did not extend to the decision itself which has been generally regarded as correct. In Sims, where a person was charged in one indictment with several offences of sodomy and gross indecency with several men and the evidence of each man was that the accused invited him into his house and there committed the acts charged, the acts in each case bearing a striking similarity to each other, it was held that the evidence of the other acts was admissible in relation to each charge to show the nature of the act done by the accused. That evidence was held to be admissible, not only because the acts bore 'a striking similarity' to each other (R v Sims [1946] KB at 539-540), but also because '(t)he probative force of all the
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- acts together is much greater than one alone'; they showed that the visits to the accused's house were for a guilty not for an innocent purpose (ibid. at 540). The correctness of the decision in Sims on that footing was accepted in Reg. v. Kilbourne (1973) AC 729) and Reg. v. Boardman (1975) AC, especially at 444 per Lord Wilberforce) .
However, before Boardman was decided, the received doctrine was that mere propensity evidence was inadmissible; to be admitted the evidence must go to something other than disposition. Boardman changed that received doctrine by discarding the earlier approach to admission of similar fact evidence based on identifiable categories. Instead, in Boardman, the House of Lords adopted as the guiding principle to determine the admissibility of similar fact evidence the test whether the prejudice to the accused is outweighed by the probative force of the evidence."
40 After referring to these authorities, the learned Judge went on to apply the test in those terms and concluded that:
"Having reviewed all the evidence, I am satisfied that in this case the evidence has a special probative value because it is highly improbable – I'm sorry, because it reveals what to me is a peculiar modus operandi – an underlying unity.
The nature of the evidence in each of these cases, the experience of each of the complainants, in my view, does provide the basis from which the jury, having considered the evidence, could quite properly draw the inference and find that it's highly probable that whoever committed the offences alleged in counts 1, 2 and 3 committed all of the other offences.
Likewise, whoever committed the offences in counts 4 and 5 also committed the other offences in the indictment and so on through each of the groups of charges in relation to each. Because of that underlying unity, that striking similarity, and I believe that it goes beyond what the defence says. I accept that the mere fact that there are eight complainants isn't it, the mere fact that in isolation there are similarities doesn't do it, but it's the overall picture, the time frame, the increase in seriousness that has gone on. It's later in the piece that the sexual penetration, digital sexual penetration, takes place.
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- The increase in seriousness and violence and the stories that these complainants tell in my view does create this underlying unity so compelling that a jury would be entitled to find that it's highly probable that all of this was committed by the same person.
In those circumstances, the prejudice engendered by a trial involving eight complainants is overridden by the probative force of the similar fact evidence and therefore it would not be unfair to this accused in my view for him to be tried in one trial on this one indictment. Those are my reasons therefore, Mr Roth, for refusing your application for separate trials."
41 In my opinion, given that there was never any basis for a suggestion of concoction in this case, the evidence of the similar facts was compelling. I also consider the learned trial Judge was entirely correct in admitting the similar fact evidence sought to be relied upon by the Crown. Any prejudice to the applicant was far outweighed by the probative value of the three items of identification evidence in the context of the similar fact evidence. It follows that ground (a)(i) fails.
Ground (a)(ii)
Second Application for Separate Trials
42 On 23 September 2002, a further application by counsel for the applicant was made to the learned Judge for separate trials, based on fresh evidence. It appears that, as a result of the production of documents on subpoena, directed to the Commissioner of Police and a Detective W Baker, statements were produced from two complainants, both of whom alleged that they had been sexually assaulted under similar circumstances in the Port Kennedy area. It was submitted that because there was one or there were possibly two individuals who was or were committing similar offences near both areas which were the subject of the case against the applicant, it would be dangerous to proceed on the basis of similar fact evidence.
43 The relevant materials comprised a statement from a complainant, who I shall refer to as 'JT', dated 8 June 2002, attaching a street directory, alleging that offences committed against her occurred in the Port Kennedy area in May 2002, together with a statement from a complainant, whom I shall refer to as 'GB', dated 27 August 2002, who alleged an offence in the same area in August 2002.
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44 The offences alleged by complainants A, R, S, M, O, W, N and T were committed in the Warnbro-Safety Bay area, south of Rockingham. The two most recent assaults alleged by JT and GB were committed some 5 km further south, at Port Kennedy.
45 In the case of JT, it was alleged that she was a lone beach walker, walking along the beach at Port Kennedy, near the edge of the water. She was approached by a male from behind, who was naked. The male was described as in his mid-thirties and about the same height as the complainant, of medium build, not fit, but not overweight. This person could not have been the applicant because the applicant was then in custody. There was a significant difference in the description of this other person as follows:
"He had a ridiculously dark tan all over his body. It looked like a fake tan because it had an orangey colour to it, as though he'd spent a lot of time under the sun or a solarium. He did not have any tan lines at all on his body."
46 The hair colour was described as "browny", but JT was not quite sure what precise "browny" colour that was. The person was described as clean-shaven, with an Australian accent. Apart from the "ridiculously dark tan", the description was accepted by counsel for the Crown as broadly in the same category as descriptions given by the other complainants. However, this man initiated a conversation, saying, "It's a nice day for a walk." Only one of the other complainants referred to any conversation. JT maintained that he said to her, in a quiet voice, "Do you want a root?" Although JT pretended that a man up ahead was her boyfriend, she was approached from behind. She was grabbed by her "T" shirt, grabbed in her crutch area and an attempt was made to pull her to the ground. What was different about this case was that the complainant ran away and the man pursued her, although only for about 10 m. He then ran up into the sand dunes and disappeared. In none of the eight other complaints was there any other form of pursuit. In the other cases, as soon as the victims screamed or offered resistance, they were let go or pushed and it was the assailant himself who ran away.
47 JT compiled an identikit picture of her assailant, with the assistance of police. While the written description did rather resemble the applicant, the identikit picture was clearly not one of the applicant.
48 GB made a statement in which she said she was also a lone beach walker. While walking on the beach at Port Kennedy close to the water, she was approached by a naked man who came up behind her. The
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- physical description was quite different from that of JT. The assailant was described as being about thirty, dark-skinned, of Middle Eastern appearance, dark brown eyes with dark hair and eyebrows, short No 2 haircut, no facial hair, about 175 to 180 centimetres tall, with a medium build, not fat or muscular. His skin was dark all over, although she said he also had a tan.
49 The approach was different in the case of GB. It was broadly similar to the offences alleged against the applicant in the indictment in that it was an assault on a beach for a sexual purpose. GB was grabbed by the left arm. She was pulled so that she was lying on her back. Her attacker then stood over her with his hands on her top, trying to rip it off. This was an aggressive frontal attack rather than an attack from behind, although it could be said, as counsel for the Crown put it the learned Judge, it was broadly similar in that it was an attack for a sexual purpose and there was an attempt to remove GB's clothes. The attacker said afterwards, "All I want is a root." He had an Australian accent. In this respect there was some similarity between this case and that of JT.
50 In the case of the complainants the subject of the present case, A made no reference to any conversation. R said that when she was first grabbed the man said, "Quiet", but said nothing else. S said that her assailant said nothing to her at all. M made no reference to any conversation, although she said her assailant made a grunting sound. W said her assailant whispered something to her, but because she was screaming she did not know what he said. N said that when she was first grabbed he said, "Be quiet and you won't get hurt." T did not refer to any conversation.
51 In the case of the Port Kennedy incidents there was a contrast in the "upfront" nature of the approach, the specific reference to a "root" and the fact that there was a pursuit.
52 It was against this background that it was submitted on behalf of the applicant that the probative value of the similar fact evidence against the applicant by the complainants was reduced because of the evidence of the two incidents at Port Kennedy, which indicated that there were other persons offending in the general vicinity in a broadly similar way. The descriptions of the person or persons involved in the incidents at Warnbro, however, were quite different from the person described in the incidents at the other beaches involving the complainants. A described her attacker as white-skinned with a really white behind, indicating that he had a degree of tan. R described him as a white-skinned male, but not overly tanned. A was speaking of a time
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- in September. R was describing a time in December. S described him as white-skinned in December, but two people who appear to have seen the offender leaving the scene described him as having a tanned or olive skin. W described her attacker as fairly tanned, with white buttocks. N described him as fairly tanned, but also with white buttocks. T made no comment regarding his complexion, other than to describe her attacker as Caucasian.
53 In my opinion, given the similarity of the descriptions and, in particular, the reference to the white buttocks, combined with the DNA evidence linking the applicant to the scene in the context of the other evidence, including the evidence of T regarding her identification of the person in a Range Rover in the car park, as being the person who attacked her, coupled with proof that the vehicle was registered in the name of the applicant, there was compelling evidence against the applicant placing him at the scene of the relevant offences. There was no such evidence in relation to the other offences referred to by counsel for the applicant, which were alleged to have been committed at Port Kennedy.
54 The first offence alleged to have been committed by the applicant was committed on 4 September 2000 and the last on 11 February 2001. On 7 March 2001 a search warrant was executed at the applicant's home. On 3 April 2001 another search warrant was executed at his home, following which he was arrested and taking into custody. He was released on bail on 7 June 2001 on a home detention arrangement. The final assault was committed on T on 9 September 2001.
55 The question the learned Judge posed to herself in argument was whether the fact that one or two other unidentified men had aggressively assaulted lone females walking on a beach in a different area, removed the underlying unity which would justify the admissibility of the similar fact evidence in the case of the applicant, on the basis that the probative value still outweighed any prejudicial effect of the evidence.
56 The offences the subject of counts 1 to 3 occurred at Coogee beach on 4 September 2000. On that date the applicant was working in the Chivers Marine factory in Broadmeadow Street. The offence was committed on a work day during the applicant's lunch hour. The time taken to drive from Chivers to the place where the offence was committed is approximately 7½ minutes.
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57 The offences the subject of counts 3 to 5, committed on 9 December 2000, took place at about 11 am on a day when the applicant finished work at 10.34 am. The time taken to drive from Chivers to the place where those offences were committed is approximately 9½ minutes.
58 The applicant had moved house after he was released on bail. The place where the offences the subject of counts 10 and 11 were committed while he was on bail, and which involved the complainant W, were committed on the beach, close to where the applicant was then living. This also applied to the offence committed on T. T, of course, observed the applicant leaving the beach and getting into the Range Rover vehicle that was linked to him by T noting the registration number of the vehicle. The fact was the offences against W and T both occurred in the same vicinity.
59 As it turns out, the offences against S, W, T and M all occurred in the vicinity of St Ive's Cove. The offences against N were also committed in close proximity to these others. All of the offences referred to took place in close proximity to St Ive's Cove, which is on Warnbro Beach Road and in close proximity to both of the houses the applicant was living in at the material times.
60 The applicant participated in two video-recorded interviews concerning these matters, but denied any involvement in the commission of any of the offences. He denied his vehicle could have been at the beach on any occasion and said that, in particular, it was at his home all day on 9 December 2000.
61 So far as the defence application was concerned, the learned Judge noted that on 8 June 2002, on a beach between Port Kennedy and Secret Harbour, and again on 23 August 2002, on a isolated beach in the same vicinity, two lone female beach walkers had been attacked by a lone, naked male. At both of those times the applicant was in custody. Consequently, it was apparent that another person or persons were involved in these particular offences. It was contended on behalf of the applicant before the learned Judge that this fresh evidence demonstrated a lack of underlying unity so far as the modus operandi of the offences on the indictment standing against the applicant were concerned. It was also contended that these further offences cast a different light on the offences alleged to have been committed by the applicant and reduced the probative force of the underlying unity, so that it no longer outweighed the prejudicial effect of a joint trial. Consequently, the
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- application to hold separate trials based upon severance of the indictment was renewed.
62 It was noted that the Crown had tendered statements from the two further complainants. It was conceded that in broad terms the offences occurred in a similar area, namely, on beaches between Fremantle and Rockingham, although the further offences were committed some distance further south than those on the indictment. Each involved an attack by a naked male, roughly matching the accused man's description and the attacks were on lone female beach walkers. Her Honour then commented that:
"However, on close analysis there were features of both of these later offences that were distinctly different from those on the indictment. First, the attacker or attackers on the later offences in each case walked along with the victim and spoke with her prior to each attack. That is distinctly different from all of the indictment charges except (her Honour referred to a charge by an additional complainant which was not proceeded with on the original indictment) the circumstances were very different.
…
Another difference besides the modus operandi was in the all-over tan described. The two recent victims each described her assailant as a naked man with a deep tan all over his body. That description I consider to be very different from the descriptions of the assailant on the indictable charges who was described as white or fair-skinned by five complainants. No-one described him as heavily tanned, although he was described as tanned. It is significant that four of the complainants described seeing white buttocks or a white backside as he ran off.
Another distinction is probably the most important and it is fundamental to the modus operandi. The assailant or assailants involved in the recent offences at Port Kennedy each pursued the complainant for a short distance after each indecent assault. That is very different from the evidence in relation to charges the subject of the indictment where, in each case, the evidence was that the assailant ran off when the complainant screamed as if he was concerned that someone was approaching.
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- The assailant involved in the offences the subject of the indictment never chased or pursued the victim after the offences. That feature is significantly different. My consideration of the new evidence has caused me to review again the underlying unity that gave the charges on the indictment their substantial probative force. Besides the compelling similar modus operandi in the case of three of the complainants, there is other independent evidence linking the offences with the accused.
In relation to counts 1, 2 and 3 there is DNA evidence connecting the applicant with the crimes. In relation to counts 6, 7 and 8 there is other DNA evidence connecting the applicant with the crimes. In relation to counts 18, 19 and 20 there is evidence of the applicant's vehicle being at the beach in the parking area at the time of the offences. The Crown has also tendered maps which provide evidence of connections between the applicant and the locations where the alleged offences were committed.
The first map shows beaches adjacent to Hamilton Hill and Coogee where counts 1 to 5 were committed. At the time these offences were committed, the evidence shows that the accused man was employed at Chivers Marine located in the Bibra Lake industrial area, which appears to be a kilometre or so east inland from the crime scenes. The remaining indictable offences, counts 6 to 20, were committed on beaches in Warnbro Sound, just south of Safety Bay, within a few kilometres of the accused man's residence at Shoalwater.
I do note, of course, that the two later offences were committed on a beach some 5 kms south of Warnbro Sound, between Port Kennedy and Secret Harbour. I accept that it is not very far south, possibly another 5 kilometres. The accused has denied all offences when interviewed by police. Both counsel agree that the issue the Court must determine is a very narrow one. It is this: given the fact that at least one if not two other men who, while naked, aggressively sexually offend against lone female walkers on beaches in the same general area south of Fremantle and Rockingham, does that fact reduce the probative value or cogency of the underlying unity and pattern of similarity between the offences on this indictment?"
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63 Her Honour compared the facts alleged in each case and deleted from the indictment the offences alleged against one O.
64 In my opinion, the learned Judge was entirely justified to find, as her Honour did, that the location and circumstances of the offences alleged to have been committed at Port Kennedy did not detract from the probative force of the similar fact evidence relied upon by the Crown, to the extent that the probative force of that evidence was outweighed by its prejudicial effect. For these reasons, I am of the opinion that ground (a)(ii) of the grounds of appeal fails.
Similar Fact Evidence of "Historic Complainants"
65 The Crown also later made an application at the trial to lead similar fact evidence from two complainants whom the learned Judge referred to as "historic complainants". Her Honour dealt with this application as follows:
"I refer to one of them as KHR who was sexually assaulted on a beach at Busselton in 1986 and the other was SJK who was the subject of a sexual assault of which the applicant was convicted in 1990. The evidence of this matter was excluded because it did not raise an objective improbability that anyone other than the accused attacked the seven women who were the complainants in the present case."
66 In considering whether to admit the similar fact evidence, her Honour said that the question that had to be addressed was stated in Pfennig v The Queen (supra) where Mason CJ, Deane and Dawson JJ said:
"There has been a tendency to treat evidence of similar facts, past criminal conduct and propensity as if they each raise the same considerations in terms of admission into evidence. The difficulty is that their probative value varies not only as between themselves but also in relation to the circumstances of particular cases. Thus, evidence of mere propensity, like evidence of a general criminal disposition having no identifiable hallmark, lacks cogency yet is prejudicial. On the other hand, evidence of a particular distinctive propensity demonstrated by acts constituting particular manifestations or exemplifications of it will have greater cogency, so long as it has some specific connection with or relation to the issues for decision in the subject case. That evidence, as has been said, will be admissible only if its probative value exceeds its
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- prejudicial effect. But that statement, it seems to us, is of little assistance unless it is understood that the evidence sought to be admitted is circumstantial and as such raises the objective improbability of some event having occurred other than that asserted by the prosecution; in other words, that there is no reasonable view of the evidence consistent with the innocence of the accused. In stating the question in that way, we point out, as Lord Cross of Chelsea suggested in Boardman ((1975) AC at 457), that the purpose of the propensity evidence is to establish a step in the proof of the prosecution case, namely, that it is to be inferred, according to the criminal standard of proof, that the accused is guilty of the offence charged. Accordingly, the admissibility of the evidence depends upon the improbability of its having some innocent explanation in the sense discussed.
Acceptance of the statement of principles stated above means that striking similarity, underlying unity and other like descriptions of similar facts are not essential to the admission of such evidence, though usually the evidence will lack the requisite probative force if the evidence does not possess such characteristics. What is more, that approach conforms with the approach that now exists in the United Kingdom, Canada and New Zealand.
In Harriman v. The Queen, Dawson J pointed out ((1989) 167 CLR at 597-598) :
'In the past, evidence of a criminal propensity to commit crime in general, or a particular kind of crime, appears to have been regarded as inadmissible because it was thought to be purely prejudicial, and therefore irrelevant, rather than relevant but excluded because of its prejudicial nature. Upon this basis it was said that it became admissible only if some relevance could be shown beyond the propensity itself.' "
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- unsuccessfully to pull off her bathers bottom. When she expressed her concern that he was going to kill her because an acquaintance of hers had been raped and murdered, the applicant rolled off her and ran away. Following this incident, the applicant was convicted of unlawful and indecent assault.
68 Her Honour determined the matter on the basis that the offences with which the applicant was currently charged were different from that involving KHR. As her Honour said:
"I remind myself that my decision to allow the trial of all these charges together was based on a modus operandi that was broadly similar to that in 1986 but it also involved evidence as to the timing of the offences, the place where the accused lived and worked at the time of the offences and the relationship of those offences one to the other in terms of their gradual building up until the last two complainants allege a sexual penetration. It was an essential part of the modus operandi with the exception of only one of the complainants.
Each complainant on the indictment alleged that her attacker, after grabbing her, grabbed her breasts and/or touched her genital area. In the offence in 1986 although she was grabbed and on the ground, there's no allegation that the accused ever did that. It may be that it was because of what she said to him about her friend having been attacked or an acquaintance having been raped and murdered, but in fact he did not grab her breasts or touch her vaginal area in that attack.
It is a distinction I consider to be significant. It seems to me that it does rob the 1986 offence of its particular cogency in relation to the charges in this indictment and therefore in the cases of the complainants A, S, M, W, N and T, I would answer the question that has been raised that the 1986 conviction does not raise the objective improbability that anyone other than the accused attacked these women.
On the other hand, in the case of the complainant [KHR], I consider that Rowell's evidence if Rodgers were being – the complainants against your counts 4 and 5 were being tried on their own, I consider [KHR's] evidence would be admissible on those charges but I have to look at the entire trial. The accused is already facing a trial where I am going to have to
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- work with amazing diligence to ensure that the propensity element of the charges standing against him does not emerge in the place of the similar fact or striking similarity evidence that caused me to allow these 18 complaints to be tried together.
I believe that if I were to allow the evidence of [KHR]to be admitted merely on counts 4 and 5, its prejudicial effect in terms of the entire trial; that is, allowing the jury to know that the accused has on a prior occasion been convicted of a charge of attacking a lone woman on a beach, would be so great as to remove the possibility of having him have a fair trial in relation to the six other complainants. I don't think it's a matter that I could direct the jury sufficiently to protect the interests of justice that this accused person have a fair trial.
The accused's conviction in 1990 in the second case in New South Wales I do not find raises the objective improbability as the question is defined by Pfennig that anyone other than the accused attacked the seven women referred to in the indictment. That is because even though the actual attack; that is, holding her and pushing her from behind, is quite strikingly similar to some aspects of the complainant's allegations in this trial.
On that occasion the accused was wearing shorts, he was not naked, and the event did not happen directly on a beach but as the woman was walking down and under a bridge. It was in sort of a gully. I accept the crown's submission that it's overall a propensity to attack lone women in isolated areas but when we get to the point we are looking at, that special cogency that would allow this evidence to be admitted as circumstantial evidence in the trial of these offences, I don't think it has reached that level of cogency. For these reasons the crown's application to lead evidence from the historic complainants is refused."
69 In my opinion, the learned trial Judge rightly held that the facts alleged in relation to the two sexual attacks in the Port Kennedy foreshore area were sufficiently different from those on the indictment so that the fact that there may have been at least one, and possibly two, other persons committing broadly similar offences in that area did not derogate from the probative force of the similar fact evidence led
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- against the applicant to the extent that the probative force of that evidence was outweighed by its prejudicial effect.
70 For these reasons ground (a)(ii) fails.
Ground (b): video-taped records of interview
71 The applicant participated in two video-taped records of interview on 7 March 2001 and on 9 September 2001. There was also a search of the applicant's house on 9 September 2001.
72 Ground (b) contended that the trial Judge erred in admitting the two video-taped records of interview and a videotape of the search of the applicant's house on the ground that there were no admissions made by the applicant which were recorded on these videos. It was conceded by counsel for the applicant that this ground must fail. In my opinion, this concession was correctly made and nothing more need be said about the ground.
Ground (c): results of biological tests
73 Ground (c) contended that the learned trial Judge erred in admitting into evidence the results of certain biological tests carried out on the fingernail scrapings taken from the complainant A and finding that:
(i) the police witness who had signed for the package purportedly holding the fingernail scrapings had given evidence that he had made a mistake in recording the date;
(ii) on the face of the evidence there was an irresistible inference that the receiving officer had made a mistake when he had dated the document recording the reception into the police forensic exhibits unit, "FEU", of the package purportedly containing the fingernail scrapings; and
(iii) notwithstanding the discrepancy in the evidence relating to the purported fingernail scrapings, the evidence established a continuous chain of possession rendering the biological test results admissible.
74 Evidence was given by a Constable Walker regarding the procedures adopted by the FEU. Exhibits received by police were brought to the unit, logged on to the property tracing system and placed
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- in secure storage until required. When access to the exhibit was required, a request for a transfer is made to the FEU.
75 At the material time there were three officers stationed at the FEU, the other two being Constable Ashworth and Senior Constable Anicich. A great many exhibits are received and transferred through the system. Each exhibit is given a property tracing series number. When an exhibit is transferred to the Pathology Centre it is sent with an original and a copy of the transfer document, both of which are stamped. The original goes to the Pathology Unit. Both the original and the copy will be stamped with a receipt by the Pathology Unit and the original taken back to the FEU. The Pathology Centre assigns each exhibit it receives a case number.
76 Constable Walker removed from storage at the FEU exhibits Property Tracing Series Nos 201/1513 and 201/161975. The particular exhibit which is presently relevant is that designated 201/161975 described as "two oval swabs account Tweedie". The seals were checked and verified by Constable Walker by his signature dated 12 March 2001. In addition, he also noted on the accompanying document both the time at which he received the sample and the time he handed it over. Each exhibit is logged on to the property tracing system. The seals are checked at each handover and the checking verified by signature. Constable Walker remembered the particular collection and delivery because it was made on the same day as a delivery was made in respect of a particular murder. The delivery was made to a Velia Langoulant, who was known to him. The accompanying document also referred to Detective Italiano. Constable Walker's evidence was that he received these exhibits from Detective Italiano on 12 March 2001 and delivered them to the Pathology Centre on the same day.
77 Constable Walker said that he removed from the FEU an exhibit the subject of Property Tracing No 2001/171064, which was given the Pathology Centre No 01120177, relating to the complainant A. The exhibit was a SARC sample pack account A. In the ordinary course of business the SARC pack would have been delivered to the FEU, signed and sealed by the examining doctor at SARC. Constable Walker noted on the accompanying document that he had checked the exhibit when it was delivered to the FEU. It was delivered by him to Ms Langoulant, who acknowledged receipt by signing the paperwork. Constable Walker's evidence was that he could not remember whether both exhibits were handed over at the same time or at different times on the same day, although he thought that they were reasonably close together. Constable Walker's evidence was that he generally made trips to the
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- Pathology Centre twice a week, but this particular job was said "to have been an important job that had to be taken up almost immediately".
78 When cross-examined, Constable Walker explained the system for receipt of exhibits at the FEU. The item is logged onto the FEU system with a request for analysis, after it has been checked and entered on the system. The correct numbers are on it and it is then placed in the secure storage facility. Constable Walker confirmed that the item 01120177.1 related to the complainant A. He confirmed that he had signed and dated the accompanying form, stating that:
"The seals for the described exhibits have been checked and are found to be intact. For forensic use only. Seals checked by .. "
79 There follows the signature identified by Constable Walker as his signature and his police number, and the date 13 March 2001.
80 The person who had caused the sample to be delivered was identified as Senior Sergeant Carter. The officer who actually made the delivery was not identified. Evidence was given by Constable Walker that he knew Detective Italiano, who had given evidence that she had delivered the relevant item on 12 March 2001. Constable Walker acknowledged that he had put 13 March 2001 next to his signature. He was unable to explain the discrepancy, other than in terms that there must have been an error.
81 Constable Walker also said that he checked the seals before an item went out of the FEU. He did not agree that it was possible that he dated the particular item before it went out of the FEU. There was nothing to say that the contents had actually been checked, but there is a running sheet for items delivered to the Pathology Centre. There is a number recorded at the FEU and the item is logged on to the system as having been delivered to the Pathology Centre.
82 Under cross-examination, as has been seen, it was put to Constable Walker that Detective Italiano gave evidence that she dropped the folio off on 12 March 2001. Constable Walker denied that it was possible that he had signed that the seal on the folio had been checked on the day after it was dropped off. The following passage then occurred:
"Can you explain why the signature there shows 13 March and these things appear to have been dropped off on 12 March?---Other than an error, there's nothing much I can say about that.
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- Do you ever check the seals before they actually go out of the forensic unit?---Yes.
Is it possible that you dated this one as it went out of the forensic unit?---No.
No?---No.
Where do you note – is there some place where you note that you have made that check as they go out of the forensic unit?---Generally, nothing that states that we've actually checked it, no, but we have a running sheet for particular items that we deliver to the PathCentre. As we bring them out of secure storage and log them into the systems going to the State Health Labs, we indicate here the PDS number and the State Health Lab number and that's at the point that we make sure everything is as it should be and visually check …
Do you have any independent recollection of these articles from [A] being handed over the counter or the date on which they were handed over the counter?---Not specifically, no.
You have no independent recollection of that?---No.
As far as the paperwork is concerned, the paperwork you're looking at you received these things on 13 March 2001?---That's what the paperwork is telling me, yes."
83 The following passage then appears in the re-examination:
"Just on that last point, Senior Constable Walker, you mentioned firstly that – you said it's not possible that you've checked the seals the next day; that is, the next day after the day they have come in?---Yes.
And my learned friend asked you that Detective Italiano has said that they have come in on the 12th and you mentioned something about other than error you can't explain it. Error by who? Error in what sense?---By myself, I would imagine. I could well have placed the wrong date on – as I received the items over the counter.
I see. All right. You mentioned just a moment ago that sometimes you do check the seals when they go out, when they go out of your particular storage area. Can I just ask
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- when you say that, if you sometimes check the seals when they go out are you saying, check them for the first time when they go out or check them again when they go out?---Check again.
Check again?---Check them initially when they come over the counter.
Right?---And visually check them again as they go out to the – wherever may be."
84 After this evidence had been given, there was an objection taken to its admissibility. The learned trial Judge dealt with the objection as follows:
"This is an application by the defence that the fingernail scrapings in relation to the complainant [A], fingernail scrapings that were taken by Dr Payne when she examined the complainant on 4 September 2000 and kept at the Sexual Assault Referral Centre until collected by Detective Italiano on 12 March 2001, that the chain of continuity has been broken because of the difference in the date Detective Italiano said that she delivered that item to the police forensics exhibits office and the date that Constable Walker signed to indicating that he had checked the seals.
The thing that we are always concerned with in the continuity of exhibits is that there is no possibility that the integrity of what was obtained by the doctor has in any way been interfered with before it is examined by the independent staff at the PathCentre. There is no option but to have these items go through a process such as is evidenced by the evidence in this trial. The items have to move in some way from the doctor, eventually to the PathCentre and, from what I have heard in the evidence, a very regular procedure was used.
The documentary evidence indicates that there is an error and I accept Constable Walker's evidence that the error was probably his, that he has put the wrong date as to when he checked the seals because his evidence was that his system was to check the seals when he received the item at the forensic exhibits office. He would never have checked them the following day. It seems to me that evidential basis from Constable Walker that he did check the seals when they came
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- in, despite the discrepancy in the date, and the evidence that we have that the sealed exhibit was received by the PathCentre is evidence that satisfies me – and I would assume it would have to be beyond reasonable doubting a matter of this nature – that the integrity; that is, the integrity of the actual name scrapings is not a matter of concern.
I understand the defence submission. On the one hand they say, 'On the face of the documents a gap of 24 hours exists,' and that is true and then they say, 'Or if there is an error on the face of a document, then the Crown cannot rely on it to prove continuity,' but I don't accept that. The Crown can rely on the documents to prove what the documents prove, but they rely on their witnesses and the evidence system to establish continuity and in this case they have done so.
For that reason I am satisfied that the continuity has not been broken despite the error on the dates exhibited in the signature of Constable Walker."
85 The matter was not further pursued.
86 In relation to ground (c) there were two propositions upon which the applicant relied, namely:
(1) that the evidence should not have been admitted at all as the possibility of its being a concoction was not negatived by the Crown; and
(2) in the event that this Court accepted that the evidence was admissible, the jury still had to consider for itself the weight it attached to that evidence.
87 With all due respect to counsel, the first of these propositions was entirely without merit. The issue for the jury was simple. On the evidence it was clearly open to the jury to be satisfied to the required standard that the exploration for the discrepancy in dates was that Constable Walker had simply made a mistake when he dated the relevant form. He had earlier given positive evidence that on the same day the sample was received from Detective Italiano. It was delivered by him to the Pathology Centre.
88 It was contended in support of the second proposition that the repeated assertions by the trial Judge in her directions to the jury that various aspects of the evidence, which cast doubt on the efficacy of the
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- DNA sample could be overlooked or disregarded by them, or, alternatively, that her Honour suggested the way they should actually "think of this evidence" cast doubt upon whether the matter was properly left to the jury. Further, it was submitted that the learned trial Judge misdirected the jury regarding the chain of evidence relating to the DNA sample as follows:
"The real issue in this, as well as counts 1 and 2, ladies and gentlemen, is whether it was the accused man who did it. I will just direct you on that in relation to these three charges. The evidence of identification in this case in relation to Ms [A's] charges includes her description of her attacker. She said she saw him only after he released her and by the time she turned to look he was at the top of the sand dunes.
You remember how he pushed – he had her down and then he suddenly got up and ran off. She said his backside stood out. It was quite white, his arms browner and more tanned looking. She said he was in his mid-thirties to mid-forties. She never saw his face, but she did have the impression of a shadow on his face; not facial hair, but hair below the skin.
She said he had dark hair, he was of solid build and maybe 179 centimetres tall. The Crown also relies on the DNA analysis of the fingernail scrapings from under the fingernails on Ms [A's] left hand. Dr Turbett, from the Forensic Pathology Centre, examined those nail scrapings as you know and he told you and we've been through this this morning, that the scrapings were consistent with coming from two people and the majority was not from Ms [A], but from another person. He compared the nail scrapings with the accused's DNA profile and his opinion was that it was 194,000 times more likely for the material under Ms [A's] fingernails to have come from Ms [A] and the accused than from Ms [A] and an unknown person.
Ladies and gentlemen, remember before you can rely on that evidence you have to be satisfied as to continuity that the nail scrapings were sealed by Dr Payne and made their way to Dr Turbett before the seal was broken. You have to be satisfied as to continuity and yesterday we talked about – that's exhibit 4 and there's that one problem in the continuity with Constable Walker saying that he probably put the wrong
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- date down when he signed the piece of paper saying he checked the seals.
You will have to look at exhibit 44 as well as exhibit 4. You must be satisfied of the continuity of the exhibit. Before you can rely on this evidence you will also have to be satisfied as to the evidence regarding which hand it was and be satisfied that even though Ms [A] gave evidence that she only scratched her attacker with her right hand – this would be a matter of inference, ladies and gentlemen – you would have to be satisfied that in the circumstances of this attack the only reasonable inference is that she must have moved her fingernails of her left hand as well over her attacker and that that's how DNA that is consistent with the accused's profile got under her left hand fingernails.
Besides the DNA evidence the Crown relies upon the description given as matching the [applicant] and on the proximity of the Coogee Beach to the [applicant's] workplace at Bibra Lake and the time of this offence which coincided with the [applicant's] lunch break and the evidence of Mr McDiarmid who I think you remember supervised the [applicant] and said that yes, he did sometimes but not often leave at lunch and that, yes, he did sometimes come back late.
The [applicant] has denied he was on Coogee Beach that day. He denied committing this offence and he denied ever being on Coogee Beach. He told you that he was at work at Bibra Lake and he denied he went there during his lunch break and committed this offence.
The [applicant] also relies on Ms [A's] evidence that she scratched her attacker with her right hand and the defence points to the DNA evidence from Dr Turbett being from – from her right hand was consistent only with her own DNA material. The defence submits that you should not accept the DNA evidence of fingernail scrapings from Ms Abdullah's left hand because there is no evidence that she scratched her attacker with her left hand.
Ladies and gentlemen, you consider all the evidence in all the circumstances. Unless you are satisfied beyond reasonable doubt that it was the accused man who attacked Ms [A] on Coogee Beach, you cannot convict him of these first three
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- offences. Because it is a circumstantial evidence case, ladies and gentlemen, the circumstances as you find them to be – and I have told you about this before – must exclude any reasonable hypothesis consistent with the accused's innocence."
89 In my opinion, it was quite clear from the context that her Honour made it plain that the jury could not convict unless they were able to exclude any reasonable hypothesis inconsistent with guilt beyond a reasonable doubt.
90 The learned trial Judge left to the jury the question whether they accepted Constable Walker's explanation that he had simply acknowledged receipt of the exhibit on the wrong date. In the context of the evidence of the system and the evidence given by Detective Italiano and Constable Walker coupled with that of Ms Langoulant, it was clearly open to the jury to be satisfied beyond a reasonable doubt that the relevant exhibit was received at the FEU on 12 March 2001 and delivered to Ms Langoulant on the same day.
91 It was also submitted by counsel for the applicant that the trial Judge misdirected the jury as to the chain of evidence relating to the DNA samples in a number of respects. It was contended that the learned Judge misdirected the jury that "… it seems beyond doubt that the doctor [Dr Payne] took scrapings from both [A's] hands, [A] gave evidence that they were only taken from her right hand because she was sure that it was her right hand she scratched with. But that wasn't true …"
92 The learned Judge also directed the jury that:
"You know, in this case, there is a further question arising from Ms [A's] evidence that she scratched her attacker with her right hand and there is no evidence that she scratched him with her left hand … You recall Ms [A] also gave evidence that Dr Payne took scrapings only from her right hand, but you know that isn't true. Ms [A] had that wrong."
93 Further, her Honour directed the jury:
"Before you can rely on this evidence you will also have to be satisfied as to the evidence regarding which hand it was and be satisfied that even though Ms [A] gave evidence that she only scratched her attacker with her right hand – this would be a matter of inference, ladies and gentlemen – you would
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- have to be satisfied that in the circumstances of this attack the only reasonable inference is that she must have moved the fingernails of her left hand as well over her attacker and that's how DNA that is consistent with the [applicant's] profile got under her left hand fingernails."
94 A did in fact give evidence that the doctor who examined her, Dr Payne, took DNA from her right hand by taking scrapings from under her fingernails. She said that the sample had been taken from:
"… just the one hand, because I had said that was the hand he scratched me with – that I scratched him with."
95 Dr Payne, a medical officer with the Sexual Assault Referral Centre at Subiaco prepared notes at the time of her examination of A and subsequently prepared a report. Dr Payne gave evidence that she took fingernail scrapings from under A's fingers. She said that she took two scrapings from the right hand and two from the left hand. It was explained that the scrapings were taken from both hands because A had mentioned scratching. She also made a note to the effect that A said that she grabbed the face of her assailant with her right hand and dug her nails in.
96 Dr Payne also gave evidence that she handed the fingernail scrapings to Detective Italiano. Dr Payne also described in some detail the procedure followed and the steps taken to ensure that the samples did not get mixed up so that there were left hand scrapings together with the scrapings from the right hand.
97 In my opinion, given the evidence of Dr Payne, there was no misdirection.
98 After hearing submissions from counsel, the learned Judge gave a final direction to the jury as follows:
"An important part of the defence case you appreciate is that they suggest there's been an error in the transition of exhibit 4. That is an error in the transition of the fingernail scrapings. I have talked about this quite a bit, about Constable Walker and Detective Italiano.
Counsel has asked me if I would simply read to you what Constable Walker said when he was asked whether there had been an error. It was in re-examination and he was asked by Ms Sweeney:
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- Error by whom? Error in what sense?---By myself, I would imagine. I could well have placed the wrong date on as I received the items over the counter.
There is one final matter and this goes way back to the DNA evidence and the difficulty that Ms [A] gave evidence that she scratched with her right hand when the evidence is the material was under her left hand fingernails. Before you could rely on the DNA evidence in relation to Ms [A] – this is clear from my direction, but I will just direct you now so it's completely clear – you would have to be satisfied beyond reasonable doubt that the material under her left fingernails was deposited there by her attacker. You would have to be satisfied that that happened while she was under attack by her attacker otherwise those fingernail scrapings would be just simply irrelevant."
99 The way in which the learned trial Judge had addressed the jury in relation to the evidence of Constable Walker was raised with her Honour after her initial direction. The learned Judge agreed to rectify the problem, but it was submitted that the discussion of the matter and the attempted rectification did not go far enough to overcome the prejudice of the other repeated remarks, and did not fairly put to the jury that they should determine for themselves whether they thought the DNA evidence should be accepted or given any weight because of those matters.
100 In my opinion, taking into account the evidence and the directions given, the learned trial Judge did properly leave to the jury the issues raised by counsel for the applicant. In my view, the evidence was such that it was open to the jury to accept the explanation given by Constable Walker to the effect that he had simply made a mistake about the date when he dated the form 13 March when counter-signing against the signature of Constable Italiano.
101 For these reasons I am of the opinion that there is no substance in ground (c), with the consequence that the ground fails.
102 It follows that the application for leave to appeal against conviction must be dismissed.
Application for leave to appeal against sentence
103 The applicant has applied for leave to appeal against sentence on the grounds that:
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- (a) In making an order pursuant to s 98 of the Sentencing Act 1995 (WA) that the applicant should be sentenced to an indefinite sentence of imprisonment at the conclusion of his finite term of imprisonment, her Honour erred in finding that the applicant would engage in conduct the consequences of which could properly be called grave and serious for society as a whole or some part of it;
(b) In exercising her discretion to make an order pursuant to s 98 of the Sentencing Act in that:
(i) Her Honour gave too much weight to the psychiatrist's evidence in relation to the prospect of successful treatment of the applicant;
(ii) Her Honour failed to have sufficient regard to the length of time which would elapse before the applicant became eligible for release; and
(iii) Her Honour failed to give adequate consideration to the prospects of rehabilitation of the applicant.
105 MURRAY J: : I agree with Malcolm CJ, generally for the reasons given by his Honour, that leave to appeal against the convictions recorded against the applicant should be refused.
106 WHEELER J: I have read in draft the reasons for decision of Malcolm CJ, with whom I agree.
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