TWG v Boucher
[2020] WASC 98
•25 MARCH 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: TWG -v- BOUCHER [2020] WASC 98
CORAM: SMITH J
HEARD: 26 FEBRUARY 2020
DELIVERED : 25 MARCH 2020
FILE NO/S: SJA 1108 of 2019
BETWEEN: TWG
Appellant
AND
FIONA BOUCHER
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE E D CAMPIONE
File Number : MI 11371 of 2018, MI 14554 of 2018
Catchwords:
Criminal law - Appeal against conviction - Aggravated assault occasioning bodily harm - Sufficiency of evidence - Inconsistencies in the evidence - Whether verdict unsafe and unsound - Whether verdict of guilty inconsistent with a verdict of not guilty on another count - Turns on own facts
Criminal law - Appeal against conviction - Aggravated common assault - Whether warning in non‑sexual case in which there is a delay was necessary to avoid a perceptible risk of miscarriage of justice - Whether it is necessary to identify forensic disadvantage at first instance to trigger the requirement to warn - Whether on the facts a warning was required - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 9(1), s 9(2)
Criminal Code (WA), s 257, s 313(1)(a), s 317(1)B
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr S B Watters |
| Respondent | : | Ms M M Yeung |
Solicitors:
| Appellant | : | Cathal Smith Legal Pty Ltd |
| Respondent | : | Director Of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
AK v The State of Western Australia [2006] WASCA 245
Ascic v Bedworth [2013] WASCA 174
DPJB v The State of Western Australia [2010] WASCA 12
DWM v The State of Western Australia [No 2] [2019] WASCA 143
Eravelly v The State of Western Australia [2018] WASCA 139
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
Gardner v Caporn [2005] WASCA 153
Hawker v Coulthard [2011] WASC 139
JJR v The State of Western Australia [2018] WASCA 51
Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Murphy v Spencer [2013] WASC 256
Nth v The State of Western Australia [2020] WASCA 22
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
SPB v The State of Western Australia [2012] WASCA 136
The State of Western Australia v Rayney [2013] WASCA 219
Tomcsanyi v Yuswak [2015] WASC 111
Wark v The State of Western Australia [2020] WASCA 19
SMITH J:
1.0 The appeal, the grounds of appeal and the result
The appellant was charged with two offences involving his daughter, H, and two offences involving his son, T, as follows:[1]
(a)between 1 June 2018 and 31 July 2018, he unlawfully assaulted H and thereby did her bodily harm, in circumstances of aggravation, namely being in a family and domestic relationship with the victim, contrary to s 317(1)B of the Criminal Code (count 1) (the knife incident) (Charge No MI 11371 of 2018);
(b)between 1 June 2018 and 31 July 2018, he unlawfully assaulted H in circumstances of aggravation, namely being in a family and domestic relationship with the victim, contrary to s 313(1)(a) of the Criminal Code (count 2) (the choking incident) (Charge No MI 11372 of 2018);
(c)between 1 May 2013 and 1 May 2014, he unlawfully assaulted T in circumstances of aggravation, namely being in a family and domestic relationship with the victim, contrary to s 313(1)(a) of the Criminal Code (count 3) (the metal pole incident) (Charge No MI 14554 of 2018); and
(d)between 1 May 2017 and 1 May 2018, he unlawfully assaulted T in circumstances of aggravation, namely being in a family and domestic relationship with the victim, contrary to s 313(1)(a) of the Criminal Code (count 4) (the belt incident) (Charge No MI 14555 of 2018);
[1] In these reasons, the name of the appellant (TWG) and the name of his wife and their children have been anonymized. Where passages of the magistrate's findings are quoted, the findings have been edited to anonymize each of the names of these persons.
On 2 July 2019, the magistrate convicted the appellant on count 1 (the knife incident) in relation to H, and count 3 (the metal pole incident) in relation to T. The appellant was acquitted of counts 2 and 4.
The appellant seeks leave to appeal both convictions on two grounds. Leave of the court is required for each ground of appeal. Leave to appeal must not be given on a ground unless the court is satisfied that the ground has a reasonable prospect of succeeding.[2]
1.1. Ground one of the appeal
[2] Criminal Appeals Act 2004 (WA) s 9(1), s 9(2).
In respect of count 1, the appellant contends that the verdict handed down by the magistrate was not supported by the evidence, the particulars of which are that:
(a)there was a myriad of inconsistencies in the evidence given by the complainant such that the tribunal of fact should have had a reasonable doubt; and
(b)concerns about the complainant's credibility and/or reliability in relation to count 2 (the choking incident) were relevant to count 1 (the knife incident).
1.2 Ground two of the appeal
In respect of count 3, the appellant contends in circumstances where the relevant incident occurred at some point between 1 May 2013 and 1 May 2014, the magistrate erred in law when she failed to adequately/or at all direct herself pursuant to the decision in Longman v The Queen..[3]
1.3 The result
[3] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79.
For reasons that follow, I am of the opinion that leave to appeal on each ground of appeal be refused, and the appeal be dismissed.
2.0 Disposition ‑ ground one of the appeal
2.1 The evidence - count 1 (the knife incident)
The evidence of appellant's daughter, H, consisted of a child witness interview conducted on 30 August 2018.[4] H also gave oral evidence in chief on oath at the trial and was cross-examined. At the time H gave her evidence in court, and when the child witness interview was conducted she was nine years old.
[4] Exhibit 3.
H's evidence was:
(1)She overheard the appellant talking on the phone 'about drugs' and then after that he was 'talking to a lady about getting married'. She saw the appellant look sideways and saw her. He went to the kitchen, and took a knife from the drawer. She tried to run away but he grabbed her arm, pulled her down onto the ground and held her by her left arm. When cross-examined, she said her father put her on the ground and dropped the knife then picked it up again. He said to her immediately before he cut her right arm with the knife, while still holding her left arm, 'If you ever tell anybody what I ‑ what I said this will ‑ this is what will happen'[5] or 'I'll do this' and then he sliced her arm with the knife.[6]
(2)When cross-examined, she could not remember what her father's telephone conversation was about.[7]
(3)No one else was in the house at the time.[8]
(4)[When her arm was cut] she closed her eyes and tried to not feel it. Her arm bled and she ran to her room and started crying because of the pain.[9] She got a pillow from her bed and screamed into the pillow.[10]
(5)When asked to describe the cut to her arm, the bleeding, and the knife, H said the slice was diagonal but up, there was a lot of dark blood but not that much, the knife had a black handle and was pointy but not that sharp, and after [her father sliced her arm] her father cleaned up the blood and put the knife back.[11] When cross-examined about the blood she said, 'it was dark blood, like red, dark blood'. When asked whether it was bleeding a lot or just a little bit, she said 'it was bleeding medium'.[12]
(6)When her mother came home she told her a 'little white lie' that she had accidentally cut herself while cutting an apple.[13] When cross-examined, it was put to her that she did not tell her mother that white lie, but H said she did because she was scared that her dad was going to get in trouble.[14]
(7)She did not think she got any blood on her bed, and did not know if she got any on the tiled floor of her bedroom.[15] She did not wash the cut before showing it to her mother. Her mother did not bandage it or put anything on it. Her mother said to her it needed to breathe.[16]
(8)The incident occurred at their home in Middle Swan, in the area where the lounge room connected to the kitchen.[17] She did not know exactly when it happened but thought it was in 2017 when she was 7 years old.[18] When cross-examined, H said she did not recall when the incident occurred, but she thought she had said it was 2018.[19]
(9)When giving her evidence‑in‑chief, H identified a photograph of her right arm showing a white scar to the inside part of her lower right arm.[20]
[5] ts 18 June 2019 pages 25, 29 - 30; ts of DVD recording of child witness interview with H, pages 5 ‑ 7.
[6] ts of DVD recording of child witness interview with H, pages 3 ‑ 6.
[7] ts 18 June 2019, pages 24 -25.
[8] ts of DVD recording of child witness interview with H, page 20.
[9] ts of DVD recording of child witness interview with H, page 7.
[10] ts 18 June 2019, page 31.
[11] ts of DVD recording of child witness interview with H, page 22.
[12] ts 18 June 2019, page 31.
[13] ts of DVD recording of child witness interview with H, page 4.
[14] ts 18 June 2019, page 37.
[15] ts 18 June 2019, page 31.
[16] ts 18 June 2019, pages 32, 35 ‑ 36.
[17] ts of DVD recording of child witness interview with H, page 19.
[18] ts of DVD recording of child witness interview with H, page 20.
[19] ts 18 June 2019, page 19.
[20] ts 17 June 2019, page 60.
H's mother gave evidence at trial. Her evidence was that she and the appellant have five children, two of whom are H and T and the other three are adults.
H's mother separated from the appellant on 8 August 2018 and at that time H and T went to live with their mother. Prior to their separation, H's mother and the appellant owned two houses, one in Middle Swan and the other in Herne Hill, both of which had at times been used as premises for their business. The appellant, H and T and the children's mother lived at the Middle Swan house from 2002 to 2016. In 2016, one of their elder children, Z, began renting their family home in Middle Swan, and the appellant, H, T, their other child, C, and their mother moved to the Herne Hill house. In 2017, C moved into the Middle Swan house with Z.[21] Their other adult child was living independently in Innaloo.
[21] ts 18 June 2019, pages 84 - 85.
H's mother's evidence was that in 2018 when they were living at the house in Herne Hill, after she had returned to the house from shopping, H came to her and showed her a fresh cut on her forearm that was about 5 cm long and had dried blood in it. H asked her, 'How do you think I got this, mum?' and she replied, 'Well maybe the cat scratched you'. H did not tell her how she got the cut. H's mother put Savlon on H's arm, but did not bandage it.[22]
[22] ts 18 June 2019, pages 86 - 87.
H's mother was not cross-examined about her evidence on these points.
When the appellant was interviewed by the police, he denied cutting H.[23]
[23] Exhibit 9; electronic record of interview, made 15 August 2019.
The defence case on count 1 was that the alleged assault on H did not occur and was the product of an overactive imagination, and the stress of a family breakdown.
2.2 The evidence - count 2 (the choking incident)
It is common ground that from time to time H and T would 'play fight' with their father, and if H or T wanted their father to stop they had to tap him three times on the shoulder.[24]
[24] ts 18 June 2019, pages 9, 14.
In opening, the prosecution case was that:[25]
[B]etween June and July 2018, again, [the appellant] and his daughter were at the family home. They had been play fighting, play wrestling, in the lounge, and then at some point [the appellant] became angry and serious and began actually choking [H]. He laughed, lifted her off the ground with his arm around her neck causing the headlock to tighten.
She tried to wriggle out, tried to kick him to make him stop, and experienced pain. She then tapped him on the shoulder, which it seems is some sort of signal, and he dropped her to the ground. The mother walked in then ‑ she didn't witness the actual incident ‑ entered the lounge and saw [H] looking very cross towards [the appellant] and saying, 'You didn't need to choke me. You shouldn't have been choking me'.
[25] ts 17 June 2019, page 35.
H's evidence was that:
(1)In the child witness interview H said that the incident occurred in the presence of T and one of her father's friends whilst Z and her mother were out.[26] When cross-examined, she denied that she had said that T was there, and said that her brother Z and another person were in the room.[27]
(2)The incident had started as a play fight before her father 'got really serious', and whilst holding her down the appellant started choking her.[28] She initially demonstrated the choke by wrapping both hands around her neck,[29] but later described it as a headlock with an arm wrapped around her neck.[30] In examination‑in‑chief, she said that when they first started he looked happy but when he started choking her she said 'he looked really mad and his face was red'.[31] However, when cross‑examined, H said she was facing away from him and could not see his face at the time.[32]
(3)When he put her in a headlock she was on the floor. He lifted her up, squeezed her, and started laughing while her legs were wiggling as she tried to knee him.[33] When giving evidence, H was unable to recall whether her feet were off the ground.[34]
(4)When she was in a headlock she had her hands in front of her, and he was holding her hands so she could not tap him on the shoulder.[35]
(5)When she tapped him on the shoulder he dropped her to the floor.[36]
[26] ts of DVD recording of child witness interview with H, pages 17 ‑ 18.
[27] ts 18 June 2019, pages 9 - 10.
[28] ts of DVD recording of child witness interview with H, pages 8.
[29] ts of DVD recording of child witness interview with H, page 9.
[30] Ts of DVD recording of child witness interview with H, pages 12, 14.
[31] ts 17 June 2019, page 56.
[32] ts 18 June 2019, page 14; see also page 38.
[33] ts of DVD recording of child witness interview with H, page 13.
[34] ts 18 June 2019, pages 39 - 40.
[35] ts 18 June 2019, page 40.
[36] ts of DVD recording of child witness interview with H, page 10, and ts 18 June 2019, page 15.
There was also conflicting evidence between H and T about the position of H's hands (and thus, whether she had the ability to tap her father to signal that she wanted to be released).
T's evidence was that he could recall his father putting H into a headlock on more than one occasion, and he could remember a time when H was upset with her father after he had put her in a headlock and that she told him that he should not be choking her, and that their father had said, 'Come on, you have to tap, you have to tap', but he [their father] was holding her hands down.[37] T also said that he had been in the play fight but had moved away because H had come in. He saw H trying to get away, but that their father overpowered her.[38]
[37] ts 18 June 2019, page 67.
[38] ts 18 June 2019, page 69.
T also described how their father had H in a headlock. He said that their father was holding (with one of his arms) H's arms in the middle or lower part of her body so she could not move them, and she was kind of stiff.[39]
[39] ts 18 June 2019, page 80.
H's mother's evidence was that she heard H yelling and when she walked into the lounge room, saw H hitting and punching the appellant in the arm saying, (consistent with H's evidence), 'You didn't need to choke me. You shouldn't have been choking me'.[40]
[40] ts 18 June 2019, page 88.
Whilst the appellant made no admissions against interest in relation to the incident, he did admit to play fighting with both H and T, as well as disciplining them, with either his hand or his belt at various times.[41]
[41] Exhibit 9; electronic record of interview made 15 August 2019.
It was accepted by the appellant that H may have been choked, but that the choke was either an accident on behalf of the appellant or was something that was done while the appellant thought he had an honest but mistaken reasonable belief that he had consent to do it in the context of a play fight.[42]
2.3 Magistrate's findings ‑ count 1 (the knife incident) and count 2 (the play fighting incident)
[42] ts 19 June 2019, page 36.
As the second issue raised in ground one of the appeal goes to an assessment by the magistrate of H's overall credibility and reliability of her evidence, and whether the magistrate's verdict in respect of count 2 was inconsistent with count 1, it is important to set out in full the magistrate's findings in respect of count 1 and 2.
Her Honour's findings in respect of count 1 (the knife incident) were as follows:[43]
In relation to [H] and in relation to the incident involving the knife, there were discrepancies, internal inconsistencies, there were differences in the description given in the interview, in evidence‑in‑chief and in cross-examination. All of those were helpfully summarised by defence counsel in his closing submissions, however, I found the account of [H] to be credible in its critical detail. She was able to recall the incident. She was able to recall the order in which it occurred.
In particular, the way that she demonstrated the slicing motion with her left arm into her right arm was compelling and believing - believable testimony. In my assessment, she was acting out what happened in the video from memory and she was recreating the incident. Despite the inconsistencies, especially in relation to date and who was there, she remained credible about the critical facts. She was also credible when she explained that she had to tell a little white lie to her mother as she did not want repercussions for the accused and she was in fear of him.
In relation to the interview, I did not regard any of the questions as being leading. In relation to the inconsistencies between [H's] description and what her mother observed; her mother saw dry blood. That is not inconsistent with the description provided by [H]. She described it as being a medium flow of blood and it's reasonable that there would have been some coagulation prior to her showing the wound to her mother.
It is implausible that [H] cut her arm whilst she was cutting an apple. In my view, that really is not possible. That's not a credible explanation. In relation to [H's] response to her mother, her mother said to her, 'Did the cat scratch you?' There's a further inconsistency in that [H] does not remember her mother applying Savlon Cream to the cut. Again, in my view, that's not really a critical element and it may be that even her mother misremembered the application of Savlon.
A photograph of a knife was put to [H] in cross-examination and she accepted that it was that type of knife. I reject the submission of the defence that [H's] explanation is just not likely to have happened. The depth of the cut - and the prosecution aren't asserting that it was particularly deep - is going to be governed by the sharpness of the knife and the depth of the cut. In my view, all of that is consistent with [H's] description of her dad dropping the knife, her trying to run away, her dad grabbing one arm and then lashing out at her with the knife in his other hand.
I am satisfied that the knife made contact. It's obviously an assault that has been alleged and not an unlawful wounding. I found [H] to give a credible account of what occurred. The prosecution have proven that offence beyond reasonable doubt and I enter a judgment of conviction in relation to the account of assault occasioning bodily harm under section 317 of the Code. There are no defences to consider in relation to that incident.
[43] ts 2 July 2019, pages 5 ‑ 7.
The findings of the magistrate in respect of count 2 (the choking incident) were as follows:[44]
[44] ts 19 June 2019, pages 7 ‑ 9.
In relation to [H's] account there are many inconsistencies. Initially, she said that [Z] and [C] were in the room. Later she said they came in after it started. At other places in her evidence she said that she did not really remember.
After the incident she said to her brother, 'Did you see him choke me', and the brother [Z] replied, 'well, you shouldn't have play-fights with him.' Her mother gave evidence that she heard similar words from [H] which I found to be admissible, part of the res gestae of the incident. This incident is somewhat different from the knife. In relation to the knife incident there is physical corroboration of [H's] testimony by way of the scar. She simply could not have imagined the scar and that provides some consistency in relation to the injury as described by [H].
…
[I]n cross-examination she couldn't remember being picked up off the ground, she couldn't remember her feet off the ground. She said that she was facing away from her dad in the headlock and that would have made it very difficult for her to observe his facial expressions.
It was clear that she and her brother utilised a mechanism, a safety signal, where they would tap their dad to indicate that they had had enough. Her evidence, both in the video and in cross-examination, is that her dad released her after she tapped him on the shoulder. In relation to an analysis of the play-fighting, and further developing the inconsistencies, [T] was asked about the incident; he recalled seeing [H's] hands by her side whereas [H's] testimony was that her hands were crossed in front of her and that she couldn't tap her dad.
In cross-examination she agreed that she tapped him and then he let her go. The inference I draw is that she was immediately released upon tapping her dad. She said nothing different in the video or in her evidence. As she was behind her father she could not see his face or his attitude changing. Also the accused could not have had her arms held by his arms and choking her around the neck at the same time. Both of those versions are inconsistent.
In relation to the incident involving play-fighting, my assessment of [H's] evidence is that she has become confused and perhaps she has combined different incidents. There was consent to engage in the play‑fighting. The inconsistencies, as identified, lead me to the conclusion that [H's] evidence in this instance is not reliable. Critically, her back was to him and she was unable, therefore, to observe his face. She could have not both had her arms by her side or crossed over her.
The prosecution simply can't exclude the defence of mistake that her father was not aware that consent had been withdrawn by [H]. On this version of the event I'm not satisfied that he deliberately choked his daughter and, again, her evidence is that he immediately released her after she tapped him. She inconsistently said that she was unable to tap him but also said that she was able to tap him and the version that I prefer is that she did tap him and he released her.
Again, it's an incident where the play-fighting, on [H's] testimony, has gone too far but not enough to evince any reaction on the part of her brother, on the ‑ or on the part of her mother. In my view, the prosecution can't negative the defence of accident beyond reasonable doubt given the unreliability of [H's] evidence in this regard. In relation to that all her mother heard [H] say was, 'You don't need to choke me'. [H] did not complain of any injury and she remembered telling her father off for being too rough in play-fights before. There is a distinction between being too rough and deliberately trying to choke someone.
2.4 Legal principles - assessment of evidence by an appellate court and legal principles
An appellate court hearing an appeal under the Criminal Appeals Act is obliged to review the whole record of the trial and make its own independent assessment of the evidence. However, it must make due allowance for the 'natural limitations' in appellate court proceedings on the record. Those limitations include that in a criminal trial before a magistrate, the magistrate is the person who has the benefit of seeing and hearing the witnesses and is entrusted with the primary responsibility of determining guilt or innocence.[45]
[45] AK v The State of Western Australia [2006] WASCA 245 [37] (Pullin JA); Murphy v Spencer [2013] WASC 256 (Corboy J); The State of Western Australia v Rayney [2013] WASCA 219 [372].
In M v The Queen, the majority explained the approach an appeal court should take to an appeal on the ground that a verdict was unsafe, and unsound on grounds it cannot be supported or is unsatisfactory having regard to the evidence as a whole, as follows:[46]
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
[46] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493. (footnotes omitted)
Their Honours in M then went on to say:[47]
It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
[47] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 494 ‑ 495. (footnotes omitted)
More recently in Filippou v The Queen, French CJ, Bell, Keane and Nettle JJ adopted this passage in M to a verdict of a judge alone in an appeal that is not by way of rehearing and said:[48]
[I]in the case of an appeal against a judge's finding of guilt, the finding is not to be disturbed under the first limb of s 6(1) of the Criminal Appeal Act unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice. It is, however, to be borne steadily in mind that, as with a jury's verdict, so also with the judgment and verdict of a judge alone, in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced.
[48] Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [12]; applied in Wark v The State of Western Australia [2020] WASCA 19 [302(b)].
In Ascic v Bedworth, Buss JA set out the role of an appellate court dealing with an appeal from a verdict delivered in a trial before a judge alone or a magistrate as follows:[49]
Where there has been a trial before a judge alone or a magistrate, the reasoning of the court which is based on a credibility determination must be distinguished from the reasoning of the court which is based on inferences drawn from facts that were undisputed or found by the court.
Normally, the court's credibility‑based conclusions will not be reversed on appeal unless it is demonstrated that such conclusions are flawed by reference to incontrovertible facts or uncontested testimony. However, as Kirby J observed in CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458:
'Even in the case of expressed credibility findings, the statutory duty to conduct a real "rehearing" remains. It may sometimes justify reversal of a decision by a primary judge who has "failed to use or has palpably misused his advantage" or where "incontrovertible facts or uncontested testimony" demonstrates the findings to be erroneous; or where they are "glaringly improbable" and "contrary to compelling inferences" [21] (footnotes omitted).'
Although an appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance' (Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549, 561 (Isaacs J)), it must necessarily observe the 'natural limitations' that exist where the appellate court proceeds wholly or substantially on the record. See Dearman (561); Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [23] (Gleeson CJ, Gummow & Kirby JJ). In Dearman, Isaacs J said:
'The mere words used by the witnesses when they appear in cold type may have a very different meaning and effect from that which they have when spoken in the witness box. A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type. And therefore some of the material, and it may be, according to the nature of the particular case, some of the most important material, unrecorded material but yet most valuable in helping the judge very materially in coming to his decision, is utterly beyond the reach of the Court of Appeal (561).'
In Fox v Percy, Gleeson CJ, Gummow & Kirby JJ said in relation to the 'natural limitations' of an appellate court proceeding wholly or substantially on the record:
'These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole [23] (footnotes omitted).'
[49] Ascic v Bedworth [2013] WASCA 174 [64] - [67] (Martin CJ and Mazza JA agreeing); applied in The State of Western Australia v Rayney [2013] WASCA 219 [374].
It must be borne in mind that a trial judge or a magistrate is not obliged to make findings about inconsistencies in evidence in respect of peripheral matters which throw no light on the real issues in the case.[50] Further, it is inevitable that when a number of witnesses are describing an event witnessed by them there will be some inconsistencies in what they state they observed and can remember.[51]
2.5 Legal principles - inconsistent verdicts
[50] Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349, 351; Tomcsanyi v Yuswak [2015] WASC 111 [48].
[51] Hawker v Coulthard [2011] WASC 139 [24] (Sleight C).
The Court of Appeal recently pointed out in Nth v The State of Western Australia that:[52]
An appellant alleging factual inconsistency faces a high hurdle. Such an appellant must satisfy the court that, as an exercise of fact‑finding, in logic and reasonableness, the verdicts cannot stand together, meaning that no reasonable jury who had applied their minds properly to the facts of the case could have arrived at the conclusion. If there is a proper way by which the appellate court may reconcile the verdicts, allowing the court to conclude that the jury performed their functions as required, the verdicts will not be inconsistent in the relevant sense. If there is some evidence to support the verdicts said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.
[52] Nth v The State of Western Australia [2020] WASCA 22 [60]. (footnotes omitted)
Their Honours then went on in Nth to set out the well‑accepted points made by Owen JA in DPJBv The State of Western Australia[53] as follows:[54]
[53] DPJB v The State of Western Australia [2010] WASCA 12 [81].
[54] Nth v The State of Western Australia [2020] 22 [61].
1.If a jury returns an acquittal in relation to a count in respect of which a prosecution witness has given evidence, it does not follow that the jury must have concluded that the witness was generally untruthful or his or her credibility was compromised: R vMarkuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82 [67]; R v KET [1998] VSCA 73 [29]. The jury might not have disbelieved the witness but thought the evidence lacked the requisite particularity as to time, place or circumstances to justify a conviction: Duniam v The Queen [1997] TASSC 107. Similarly, the jury might have regarded the witness's evidence as generally credible but thought that, in relation to some issues, the witness's recollection was faulty: R v LR [2005] QCA 368; [2006] 1 Qd R 435; R v J (No 2) [1998] 3 VR 602, 628.
2.The court should be aware of the possibility that the jury may have taken a 'merciful' view of the facts and acquitted the accused on some counts for which, on the evidence, the accused ought to have been convicted: Lefroyv The Queen [2004] WASCA 266; (2004) 150 A Crim R 82 [18]; MacKenzie (367 ‑ 368). Although the jury's actions may be logically questionable, it is perhaps understandable and the court should not shut its eyes to the fact that it is part and parcel of the administration of justice by juries: Markuleski [227]; R v Kirkman (1987) 44 SASR 591, 593.
3.In assessing whether differing verdicts can stand together, the presence or absence of corroboration may be a relevant point of differentiation. For example, in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 the accused was charged with nine sexual offences against a male youth. Those offences were said to have occurred on four separate occasions. The jury acquitted the accused on seven counts relating to three of the occasions, but convicted him of two counts committed on the other occasion. The High Court dismissed his appeal on the ground of inconsistent verdicts. The differing verdicts were explicable on the basis that the two counts in respect of which the accused was convicted were the only counts which were substantially supported by the evidence of another witness.
4.The fourth point is closely related to the third. The presence or absence of evidence adduced by the accused which casts doubt on the prosecution case in respect of a particular count may explain differing verdicts. For example, in Lefroy the accused was charged with six counts of indecent dealing. The complainant was a pupil of the accused, a school teacher. Two of the counts were said to have taken place in the classroom while other students were present, two were said to have taken place at the accused's home and two were alleged to have taken place in a public shower block during a camping trip. The accused was convicted of the two counts which were said to have taken place in his home, but acquitted of the other four. The Court of Criminal Appeal found that the differing verdicts could be explained by the fact that the accused adduced evidence showing that other students had not seen anything untoward happen in the classroom and that the public showers were seldom used during camping trips to that location.
5.It may be more difficult to reconcile differing verdicts when the offences were said to have occurred at the same time or been part of one course of conduct. For example, in R v LR the accused was charged with six counts of rape. Three counts related to the alleged penetration of the complainant's mouth and three related to the penetration of her vagina. The prosecution case was that the accused had forced himself on the complainant and carried out the offences in one episode. The accused admitted two counts of oral penetration but claimed that it was consensual. He denied any vaginal penetration. The jury convicted the accused of two counts in relation to the oral penetration, but acquitted him in relation to the three counts of vaginal penetration and the remaining count of oral penetration. The court took the view that it was extremely difficult to identify any rational basis upon which the verdicts could be reconciled. If the jury did not regard the complainant's evidence as sufficiently reliable to be satisfied that four acts of non‑consensual penetration occurred, it was difficult to see how they could have been satisfied that the two admitted acts of oral penetration said to have been committed in the same course of conduct were non‑consensual.
6.In reconciling verdicts the court should have regard to the way in which evidence was given by the witnesses. There may be subtle differences in the way the evidence was presented that led to differing verdicts: Markuleski [70]; Strickland v The Queen [2000] WASCA 68 [10]. The court should also be aware that pauses and other indications of indecision might not have been recorded in the transcript but nevertheless have been observed by the jury: R v J (1994) 75 A Crim R 522, 540. In other words, the appellate court should not ignore the fact that differing verdicts may be explicable by the peculiar advantage that is available to the jury from hearing the evidence first-hand which is not available to an appellate court.
2.6 Is error established - ground one of the appeal
2.6.1 Particular 1.1 ‑ should the magistrate have had a reasonable doubt that the choking incident occurred?
The magistrate made findings as to the factual findings necessary to find the charge in count 1 proven beyond reasonable doubt. On my review of the evidence these findings were open for her to make.
The magistrate considered the inconsistencies in the evidence about the knife incident but as the respondent points out in her written submissions, her Honour found that H's account was, 'credible in its critical detail', noting in particular H's ability to recall the order in which the events occurred and how she acted out how the cut was inflicted.[55]
[55] ts 2 July 2019, page 6.
Importantly, other than the date of the offence, H's evidence at trial was largely consistent with the evidence she gave in her child witness interview. She maintained that the incident occurred after she overheard the appellant on the phone, and that during the incident the appellant grabbed her, put her on the ground, dropped the knife at one point but then picked it up again and cut her on the arm, causing it to bleed and leaving a scar on her arm. Further, it can be seen from the video of the child witness interview that H consistently visually demonstrated how the cut was made to her right arm. This visual demonstration was consistent with her oral evidence that she gave on oath before the magistrate. In particular, the magistrate found that the way in which she demonstrated the slicing motion with her left arm into a right arm was compelling and believable testimony.
Although there were some differences as between the evidence of H and her mother, they were peripheral in nature and did not render H's evidence about the appellant cutting her so lacking in probative force that it would lead this court to conclude that (making full allowance for the advantages enjoyed by the primary fact finder) there is a significant possibility that an innocent person has been convicted.
As to the appellant's submission that there was no corroborating evidence to support H's account on this charge, I do not agree. The appellant's assertion that the shape and location of the scar is equally consistent with H accidentally cutting herself, as she previously told her mother, overlooks the fact that the cut was to the inside and to the side of her right forearm sloping downwards. When one examines the photograph showing the scar on H's right arm, the position of the scar leads to the inference as found by the magistrate that it was implausible that H cut her arm whilst she was cutting an apple.[56] Further, this hypothesis is inconsistent with H's evidence that H usually uses her right hand first.[57]
2.6.2 Particular 1.2 - was the verdict on count 1 inconsistent with the verdict on count 2?
[56] Exhibit 5, photograph of H's right arm.
[57] ts 17 June 2019, page 58.
The answer to this question is no. Her Honour properly found, as it was open for her to do so, that the play fighting incident was different to the knife incident.
First, there was physical corroboration of H's testimony of the knife incident by way of a scar.
Secondly, the incidents were unrelated in their facts and did not constitute similar conduct.
Thirdly, the evidence on count 2 established that H had engaged in play fighting with her father on more than one occasion. Consequently, there was an issue in respect of count 2 whether H had combined different incidents of play fighting. This was not an issue raised in respect of count 1.
Fourthly, a defence of accident arose clearly on the facts in respect of count 2 but was not an issue raised in respect of count 1, as there was consent to engage in play fighting.
Fifthly, it appears clear from the magistrate's findings that the magistrate was not of the view that H was untruthful or that her credibility was compromised in any way. Her Honour's finding was that H had become confused and perhaps had combined different incidents of play fighting and consequently her evidence was unreliable in respect of:
(a)who was present when the incident occurred;
(b)whether she was picked up off the ground by her father;
(c)whether her hands were crossed in front of her so that she could not tap her father on the shoulder, as she recalled or whether as T said her hands were by her side;
(d)the appellant could not have had her arms held by his arms and choking her around the neck at the same time;
(e)if as she said during the incident whilst being held in a headlock her back was to her father she would have been unable to observe his face and see that his attitude was changing; and
(f)she was unable to tap him but also said that she was able to tap him (on the shoulder to release her).
It is clear from these findings that her Honour simply found that H's recollection of the play fighting incident was faulty.
In light of the evidence that there was consent to engage in the play fighting (that is, the appellant immediately released H after she tapped him in an incident of play fighting that H said had gone too far) and that the evidence of her mother and T was not enough to evince any reaction (from either of them), her Honour properly found the prosecution could not negative the defence of accident beyond reasonable doubt given the unreliability of H's evidence in respect of this incident only.
Critically, none of the issues raised in respect of the unreliability of H's evidence in respect of count 2 went to any issue raised in respect of count 1.
For these reasons, the verdicts on count 1 and count 2 are reconcilable. Consequently, I am not satisfied that an inconsistency at law has been shown to arise between the verdicts.
2.6.3 Conclusion ‑ ground one of the appeal
For these reasons, ground one of the appeal has no prospects of success.
3.0 Disposition - ground two of the appeal
3.1 Impact of delay in complaint - was a Longman warning required?
Ground two asserts an error of law arises because her Honour failed to direct herself by a Longman warning,[58] in relation to count 3 (the metal pole incident), which should have been given because there was a delay of a number of years between the alleged incident and the incident being reported to the police. By the delay, the appellant claims that he lost the opportunity to both test T's credibility and marshal a defence.
[58] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79.
Ground two of the appeal relates to T and the metal pole incident. T was seven or eight years of age at the time the offending was said to have occurred between 1 May 2013 and 1 May 2014.
T's birthday is 1 May 2006. Consequently, at the time T participated in a child witness interview on 19 November 2018 he was 12 years old. The prosecution notice is dated 30 November 2018, some 4 1/2 to 5 1/2 years after the alleged incident. At the time T gave evidence before the magistrate, he was 13 years old.
3.2 The evidence - count 3 (the metal pole incident)
There is no dispute that the facts as alleged by the prosecution were those facts found by her Honour. The evidence was as follows:
(1)Shortly after T's seventh birthday outside the family home in Middle Swan, his father hit him in front of most of the appellant's friends with a metal pole that the appellant had picked up from a nearby trailer which they were going to take to the tip, having earlier done a big clean-up. It was T's evidence that the people present were helping with the clean-up.
(2)T's evidence was that he had been sent outside by his mother to his father for discipline in relation to some shorts. His mother's evidence was that T was wearing stained shorts before they were about to go out. When he refused to change, she sent T outside to talk to the appellant. He returned upset, crying and angry.[59]
(3)T's evidence was said that his father thought that he was wearing dirty shorts but T described them as pyjamas and said that he had two pairs (of pyjamas).
(4)T said that his father got angry and told him to get over his knee. His dad then hit him three times with the metal implement on his buttocks in the same spot. He said he was hit forcefully. T described the implement as being a hollow metal pole,[60] it felt cold and firm,[61] and was some type of baby equipment from a crib. The magistrate formed the view that perhaps T was making reference to the pole that holds netting over a bassinet, but she was not clear about that. However, she found it was clear that T described a metal pole of a piece of baby equipment about the size of a ruler (about 30 cm long).
(5)T said that prior to his father hitting him with the metal pole he looked at everyone (present outside the house) then he hit him. He described seeing a mean smile on his father's face.[62] His father told him, 'Now, don't do this again', and he was sent to his room.
(6)T said (his bottom) hurt a lot, that he could not breathe and that he had really bright red marks on his bottom. He also said he could not breathe it hurt so much.
(7)The magistrate found it was significant that T also said that he went back to find the implement to see for himself what his father had hit him with. By accepting this evidence in particular, the magistrate found that this was why T was in a position to be so clear in his evidence that he was smacked by a metal pole. The magistrate also found that T answered the questions about the pole in cross-examination sensibly. T said 'metal is metal'. By this evidence, her Honour drew the inference that T knew the difference between being hit with something metal and something plastic and that his evidence on this point was shored up by him going back to ascertain what the implement was.
[59] ts 18 June 2019, pages 91 ‑ 92.
[60] ts 18 June 2019, page 73.
[61] ts 18 June 2019, page 74.
[62] ts 18 June 2019, page 63.
When interviewed, T said he was hit in front of 'everybody'[63] and that 'most of [the appellant's] friends were there'.[64] When asked who those people were, T said, 'Uncle Shane' and T's older brother Z. He also said, 'I think Rocky as well' but said he was not sure if anyone else was there.[65] When giving evidence at the trial, T said 'Uncle Shane' had not been there,[66] and that there were maybe five people there helping with the clean-up.[67]
3.3 Count 3 ‑ the defence and the submission made at first instance relevant to a warning
[63] ts of DVD recording of child witness interview with T, page 6.
[64] ts of DVD recording of child witness interview with T, page 15.
[65] ts of DVD recording of child witness interview with T, page 26.
[66] ts 18 June 2019, page 59.
[67] ts 18 June 2019, page 63.
At trial, the appellant relied upon the defence afforded to a parent pursuant to s 257 of the Criminal Code. Section 257 provides, among other matters, that it is lawful for a parent, to use, by way of correction, towards a child, such force as is reasonable under the circumstances.
When the appellant was interviewed by the police he admitted that from time to time he disciplined both T and H, by way of using his hand or a belt, and that they would often cry if he smacked them or even if he yelled at them.[68]
[68] See submission made by defence counsel, ts 19 June 2019, page 31.
In respect of count 3, the defence case put to T in cross‑examination was not that the appellant did not strike him at all, but that he did not strike T with a metal pole, and asked T whether it was possible that the pole was made of plastic, to which T said no, that he was certain it was metal.[69]
[69] ts 18 June 2019, pages 74 and 76.
In closing, counsel for the appellant put the following submission to the magistrate:[70]
[70] ts 19 June 2019, pages 37 ‑ 41.
So turning to the first charge involving [T], the alleged assault with the pole. Now, your Honour, in my submission, [T] was sent outside by his mum because of his refusal to get changed so that they could go out. On the face of it, it would appear that any discipline of [T] was done for the purpose of correction and that it's then that the level of force used was that reasonable in the circumstances.
Now, the instrument used also has to be reasonable and it is conceded that a metal pole would not be reasonable. However, I think a metal pole is perhaps a - conjures up pictures of overly hard and heavy (indistinct) an overly hard and heavy (indistinct) in my submission, [T's] description could fit a range of things. He said that it was hollow ‑ which was important - and of relatively small diameter. Now, the way he described how he knew it was metal is also consistent with something of the nature of a curtain rod, in my submission.
And that would also be consistent with the sort of material that you would think would be found in a crib. I'm not - I would be surprised to find a crib made out of cast iron and overly hard materials. However, it's impossible to know because other than [T's] description, there is no evidence about what was used. Now, again, [the appellant] was unable in his electronic record of interview to remember this incident. He did say though that the children would often cry if he smacked them or if he even yelled at them.
So the corroboration that we have on this charge is that [T's mother] saw him come inside and he was upset and crying. Now, that could be consistent on the evidence given by [the appellant] in his electronic record of interview, with either a smack or just being yelled at. Having said that, [T's] evidence was also - we do not say that [T] is necessarily mistaken about being smacked on that day. The defence would only say that he is mistaken about the nature of the implement used.
[The appellant] stated in his electronic record of interview that he only ever uses his hand or his belt and he can't remember using any other implement. Now, given the inconsistencies I previously took your Honour to in [T's] evidence, specifically in relation to this charge, and given that it occurred quite some time ago, between 2013 and 2014, and that [T] would have only been seven, my submission is that your Honour can't be satisfied beyond reasonable doubt that it was a metal pole used.
Your Honour might very well find beyond reasonable doubt that he was smacked and then the question for your Honour is whether or not that was reasonable in all the circumstances. Now, the nature of the smack - assuming for a minute that your Honour is with me, that it was not necessarily a metal pole used, is that he was struck three times on the bottom and that he suffered redness as a result and that he said that he had trouble breathing because of the pain.
…
So those three things, the fact that he was smacked three times, that the smacks were on the bottom and that there were no injuries other than redness reported - or in evidence, those are consistent with discipline, rather - and reasonable discipline, rather than unreasonable discipline.
…
[T]here are two directions other than the conventional ones that I would ask your Honour to make. First is a Longman direction in relation to [T's] incidents, especially the first one [count 3]. The second one also suffers from being slightly dated [count 4].
Whilst the appellant's defence counsel sought a Longman direction at trial, other than to simply mention delay, no submission was made about any forensic disadvantage suffered by the appellant as a result of a lapse of time between the date of the offence and the date that the appellant was notified of the complaint constituting the offence.
The magistrate found that the use of a metal pole to discipline a child for wearing dirty shorts was not proportional and could not be characterised as a reasonable form of corporal punishment. Accordingly, her Honour found that the prosecution had successfully negatived the defence under s 257 of the Criminal Code beyond reasonable doubt.[71]
3.4 Legal principles - impact of delay - the direction required to be given in a criminal trial to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case
[71] ts 2 July 2019, page 11.
A Longman direction may be required to be given where there is an uncorroborated complaint by an alleged victim of a sexual offence.
The circumstances in which a Longman direction must be given and its content was explained in SPB v The State of Western Australia as follows:[72]
[T]he rationale for giving a Longman warning is that a jury might fail to appreciate that, as a result of a substantial delay between the occurrence of the alleged offence and the accused being informed of the complaint, the accused will have suffered forensic disadvantage by losing the chance adequately to test the complainant's evidence and the chance adequately to marshal a defence. For example, after a substantial delay, the complainant may be unable to recall or ascertain the precise date of the alleged offence or the detailed facts of the alleged offending; the accused may be unable to investigate whether the complainant's evidence is contradicted by or inconsistent with the surrounding circumstances at the time; and the complainant, the accused and potential witnesses are likely to have a diminished recollection of relevant events at the time. As McLure P noted in FJL vThe State ofWestern Australia [2010] WASCA 8, the forensic disadvantage is actual even if it is confined to the loss of a chance [2].
When a Longman warning is necessary, the trial judge must direct the jury to the effect that, as a result of the substantial delay, the accused has lost the chance adequately to test the complainant's evidence and the chance adequately to marshal a defence. The jury must be instructed to the effect that, although it can convict solely on the complainant's evidence if satisfied beyond reasonable doubt as to the truth and accuracy of his or her evidence, it must scrutinise the complainant's evidence with great care and take into account any facts and circumstances (including the forensic disadvantage suffered by the accused as a result of the substantial delay) which have a logical bearing on the truth and accuracy of that evidence. It is essential that the warning be given as a direction which the jury is bound to follow. A mere comment will not suffice. See Crampton [142] (Hayne J); AM vThe State of Western Australia [2008] WASCA 196; (2008) 188 A Crim R 457 [17] (Steytler P); FJL [20] ‑ [28] (Wheeler JA, Pullin JA agreeing); MAS vThe State of Western Australia [2012] WASCA 36 [18] ‑ [20] (Martin CJ, Pullin & Mazza JJA agreeing).
However, a Longman warning has not been reduced to an immutable formula or a ritual incantation, divorced from the facts and circumstances of the particular case. When the warning is necessary it must be crafted, by reference to the facts and circumstances of the particular case, with the object of ensuring a fair trial and avoiding the perceptible risk of a miscarriage of justice. See Christophers v The Queen [2000] WASCA 308; (2000) 23 WAR 106 [37] (Owen J, Pidgeon & Ipp JJ agreeing); Crisafio v The Queen [2003] WASCA 104; (2003) 27 WAR 169 [17] ‑ [18] (Murray J, Malcolm CJ agreeing), [63] ‑ [66] (Parker J); FJL [24] (Wheeler JA, Pullin JA agreeing); MAS [28] (Martin CJ, Pullin & Mazza JJA agreeing).
[72] SPB v The State of Western Australia [2012] WASCA 136 [51] - [53] (Buss JA, McLure P & Mazza JA agreeing); see also RMDv The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [132] - [133] (Buss P); DWM v The State of Western Australia [No 2] [2019] WASCA 143 [31] - [33] (Buss P & Mazza JA).
A Longman direction is an example of a warning which is otherwise generally required to be given in a prosecution of a non-sexual offence in which there is a delay in a defendant becoming aware that he or she is a suspect. The relevant principles that dictate when such a warning is required were summarised in Eravelly v The State of Western Australia as follows:[73]
The judge must give a warning to the jury about its assessment of particular evidence whenever a warning is necessary in order to avoid a perceptible risk of a miscarriage of justice. As the High Court has recently explained, in such cases the risk is perceptible to the court because judicial experience has shown that evidence of this description or character may be unreliable. A perceptible risk of that kind arises when there is a feature of the evidence which may adversely affect its reliability, the significance of which may not be apparent to a lay jury.
Put another way, a direction is required where it is necessary for alerting the jury to difficulties with particular classes of evidence, or, we would add, particular evidence, with which they are unlikely to be familiar.
When a direction is required, it must be crafted, by reference to the facts and circumstances of the particular case, with the object of ensuring a fair trial and avoiding the perceptible risk of a miscarriage of justice.
[73] Eravelly v The State of Western Australia [2018] WASCA 139 [27] - [29] (footnotes omitted); DWM v The State of Western Australia [No 2] [2019] WASCA 143 [29] (Buss P & Mazza JA).
It cannot be assumed that where a prosecution is being dealt with by a judge alone or a magistrate, that the judicial officer was experienced and would have known about the law on the subject. Where a warning must be given, the reasons must reveal that the judicial officer has directed him or herself on the subject.[74]
[74] Gardner v Caporn [2005] WASCA 153 [89].
In DWM v The State of Western Australia [No 2], Pritchard JA observed that whether a direction is required to avoid a perceptible risk of a miscarriage of justice based on a forensic disadvantage claimed by an accused, there at least four matters which must be taken into account. These are:[75]
First, in determining whether the accused has suffered a forensic disadvantage as a result of a delay, in combination with any or all of the circumstances of the case, the comparison is between the opportunity the accused would have had to test the evidence, or marshal a defence, had the complaint been made with reasonable contemporaneity, and the opportunity the accused in fact has to test the evidence or marshal a defence, in light of the delay.
Secondly, a perceptible risk of a miscarriage of justice arises where there is a feature of the evidence which may adversely affect the jury's assessment of its reliability, but the significance of that feature of the evidence may not be apparent to the jury. Accordingly, if the forensic disadvantage suffered by an accused, by virtue of a delay, is obvious to the jury, it will not be necessary to give a direction about it. …
Thirdly, while the authorities make clear that the loss of a chance or opportunity to marshal a defence, for example by obtaining evidence which an accused contends might have corroborated his or her evidence, will constitute a forensic disadvantage, the loss of that chance or opportunity must be real and actual, and more than simply a theoretical possibility … If an accused is represented by counsel, the failure by counsel to make reference to any such forensic disadvantages, while not determinative, may nevertheless lend support to the conclusion that there were none.
Fourthly, the forensic disadvantage to which the direction must be directed is prejudice which arises from, and which is causally connected to, or which arises by reason of, the delay. If there is no proper basis for thinking that the delay, in all of the circumstances, has resulted in the forensic disadvantage claimed by the accused, there will be no need for a direction to be given.
[75] DWM v The State of Western Australia [No 2] [2019] WASCA 143 [137] - [140]. (footnotes omitted)
The nature and extent of any forensic disadvantage suffered by an appellant must be evaluated in the context of the manner in which his or her case was run at trial.[76]
3.5 Did the circumstances of the case require a warning as to delay?
[76] RMD v The State of Western Australia [2017] WASCA 70 [142] - [147].
The answer to this question depends upon whether the appellant is able to show that he experienced a significant disadvantage in the conduct of his case. In particular, whether the appellant is able to show that he has suffered a significant disadvantage in challenging, adducing or giving evidence because of the delay in becoming aware of the allegations constituting the circumstances of count 3.
3.5.1 The appellant's submissions as to forensic disadvantage
In this appeal, the appellant claims that by virtue of the delay he was deprived of the opportunity to assemble numerous matters and items and place them before the magistrate. The forensic disadvantages in this case that are said to arise appear from an inability to test the evidence given by T. These disadvantages are said to be:
(a)the loss of the opportunity to seize the pole itself which could have been produced to determine what it was made of;
(b)photographs of T's alleged injuries could have been obtained, and he could have been medically examined;
(c)the loss of a chance to explore how T appeared when he went back inside the house;
(d)T's weight, height and general size could have been examined; and
(e)the loss of the opportunity to rely on the testimony of people who were present, including children at the party, as well as Uncle Shane, at the time the appellant allegedly struck T with a metal pole.
The appellant contends that her Honour's failure to direct herself, either expressly or impliedly, in relation to the forensic disadvantage caused to the appellant, especially where he elected not to give evidence at trial as to his ability to fully challenge T's credibility, and to marshal a defence, was significant and resulted in a substantial miscarriage of justice.
3.5.2 Did the lack of a warning as to delay result in a substantial miscarriage of justice?
Before turning to each of the matters which the appellant says are the forensic disadvantages, it is important to note that none of these matters were raised with the magistrate.
In circumstances where the appellant was represented by experienced defence counsel and none of these matters were raised at the trial as a live issue, and in circumstances where the defence put to the magistrate was narrowly confined to the issue of whether the appellant had struck T with a metal pole, or with something else that was not metal, I am not satisfied that it is open to the appellant to advance that a substantial miscarriage of justice occurred. The general rule that litigants are bound by the conduct of their counsel, applies not only to civil matters but also to criminal matters.[77]
[77] R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [37] (Gleeson CJ & Callinan J).
Even if in the circumstances it could properly be said that the appellant is forensically disadvantaged by losing a chance to adequately test T's evidence or adequately martial a defence, on grounds that he has lost an opportunity to identify and locate potential witnesses, I am not satisfied that it is open in this appeal to raise this argument as it was not a matter that was put to the magistrate or otherwise raised as an issue in the trial.
However, if I am wrong on this point in respect of each of the matters said to raise a forensic disadvantage to the appellant by the length of the delay, I make the following findings:
(1)As to whether the appellant lost the opportunity to seize the metal pole, the court is required to assess the opportunity said to be lost to the appellant to test the evidence, or marshal a defence, had the complaint been made with reasonable contemporaneity, not if the complaint had been made immediately.[78] It was T's unchallenged evidence that the metal pole had been placed in the trailer that was destined for the tip. In these circumstances, I accept the respondent's submission that even if the complaint had been made and investigated with reasonable contemporaneity this advantage would not have been available to the appellant. Consequently, this is not a disadvantage which can be attributed to the delay in this case.
[78] JJR v The State of Western Australia [2018] WASCA 51 [44] (Martin CJ, Mitchell JA & Chaney J agreeing).
(2)As to how T appeared when he went back inside after the pole incident, his mother's evidence was that he returned upset, crying and angry.[79] Her evidence in this respect was not challenged. As the respondent points out, to the contrary, in closing submissions, defence submitted that 'the evidence of [T's mother] was accurate, reliable and credible'.[80] In submissions to the magistrate, defence counsel also referred to the appellant saying in his interview that the children would often cry if he smacked them or if he even yelled at them. As such, even if there were other witnesses who could give evidence that T was upset when he entered the house afterwards, that evidence would not have assisted the appellant. The loss of the opportunity to call such witnesses about this issue did not result in a forensic disadvantage to the appellant.
[79] ts 18 June 2019, page 92.
[80] ts 19 June 2019, page 31.
(3)In assessing whether photographs of T's alleged injuries could have been obtained or that he could have been medically examined, I am not satisfied that a causal connection with the delay could be said to arise. Such an opportunity for photographs or medical examination appears to be simply theoretical as it was not T's evidence that he required medical attention. His evidence was simply that the assault left bright red marks on his buttocks and it hurt a lot. Further, the defence was not that he had not been struck on his bottom by his father, but simply that he had not been struck by a metal pole, and that the punishment meted to T was a reasonable form of corporal punishment.
(4)As to T's height, weight and general size when he was aged 7, I fail to see how this is a matter that would not be known to the appellant in circumstances where T was living with his father at the age of 7. Further, as the respondent points out, the height, weight and build of a 7‑year‑old child would in the circumstances have been irrelevant to the issue of whether striking him with a pole in the manner alleged was reasonable force used by way of correction.
(5)As to the appellant's submission that by the delay he had lost the opportunity to obtain testimony of people who were present at the time the incident occurred. I make the following findings:
(a)As the respondent points out, the evidence before the court was not that the metal pole incident occurred at a party.
(b)It was T's evidence that the incident occurred in the presence of people who were there assisting with a clean-up. It was T's evidence that his older brother, Z, was present as well as Uncle Shane, perhaps Rocky and others.
(c)As to Z, the evidence before the court was that Z had refused to provide any assistance to the investigating officers.[81] Any suggestion that he does not recall the incident because of the passage of time is simply speculative or theoretical.
(d)As to whether if the complaint by T had been made with reasonable contemporaneity and inquiries could have been made with others who were present at the time the incident occurred, the question arises whether it is speculative to assume there were other witnesses present that who because of the delay would not recall an incident whereby the appellant struck a child with a pole multiple times. In answering this question, I make the following findings:
(i)Whether 'Uncle Shane' or 'Rocky' was there or not, and what 'Uncle Shane' or 'Rocky' recalls or does not recall, cannot be presumed.
(ii)'Uncle Shane', 'Rocky' together with Z are identified. Inquiries could have been made of them. The day in question was identified as a day of the clean-up of the house at Middle Swan. Consequently, the day in question could be identified by the event. In these circumstances, I am not satisfied that the memories of the other persons said to be have been at the appellant's home, on the day of, and at the time of, the alleged offence may have diminished relatively quickly over the time that lapsed between the incident and when the appellant became aware of the allegations.
(e)A loss of the chance must be real and actual, and more than simply a theoretical possibility or mere speculation. The appellant's case was not that T was mistaken about being smacked on that day. As the respondent points out, given that the appellant's case was in a large part not that he did not strike T with a pole, but rather that the pole was made of something other than metal, it is presumed that had the matter been investigated with reasonable contemporaneity, those who were present would be able to give evidence as to what the pole was made of. In any event, and given that the occasion was identified by the clean-up and the item was in a trailer on its way to the tip. I am not satisfied that the appellant is able to show a loss of the chance or opportunity to obtain contradictory evidence.
3.5.3 Conclusion - ground two of the appeal
[81] ts 19 June 2019, page 20.
For these reasons, ground two of the appeal has no prospects of success.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NM
Research Orderly to the Honourable Justice Smith25 MARCH 2020
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