TWR v The State of Western Australia
[2023] WASCA 170
•29 NOVEMBER 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TWR -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 170
CORAM: HALL JA
HEARD: 24 NOVEMBER 2023
DELIVERED : 29 NOVEMBER 2023
FILE NO/S: CACR 82 of 2023
BETWEEN: TWR
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: WHITBY DCJ
File Number : IND 706 of 2019
Catchwords:
Criminal law - Bail pending appeal - Whether exceptional reasons exist - Whether grounds of appeal have strong prospects of success
Legislation:
Nil
Result:
Application for bail refused
Category: B
Representation:
Counsel:
| Appellant | : | A Karstaedt |
| Respondent | : | B Murray |
Solicitors:
| Appellant | : | Anthony Karstaedt |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
DWM v The State of Western Australia [No. 2] [2019] WASCA 143
Fermanis v The State of Western Australia [2005] WASCA 212
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
Serukai v The State of Western Australia [2020] WASCA 127
HALL JA
This is an application for bail pending the determination of an appeal against conviction.
The appellant was tried on an indictment alleging seven sexual offences against a female complainant who was aged between 7 and 10 at the relevant time. Counts 1, 4, 6 and 7 were charges of sexual penetration of a child under the age of 13 years contrary to s 320(2) of the Criminal Code (WA). Counts 2, 3 and 5 were charges of indecently dealing with a child under the age of 13 years contrary to s 320(4) of the Code.
On 11 July 2023, the appellant filed a Notice of Appeal seeking leave to appeal against his convictions. The appellant's case was filed on 9 October 2023. An application for bail pending the hearing and determination of the appeal was filed on 25 October 2023. In essence, the appellant submits that a grant of bail pending appeal is justified based on the strength of his grounds of appeal.
Relevant law
The principles applicable to bail pending an appeal are well established.[1] In summary, bail can only be granted if the court is satisfied that there are exceptional reasons for doing so and it would otherwise be proper to grant bail, having regard of the considerations in Schedule 1 Part C clause 4A of the Bail Act 1982 (WA). What constitutes exceptional circumstances may vary according to the circumstances of the case. The word 'exceptional' implies that the reasons for granting bail must be unusual or out of the ordinary.
[1] Serukai v The State of Western Australia [2020] WASCA 127.
If the appellant asserts that the exceptional reasons are, or include, the merits of the grounds of appeal, something more than a reasonably arguable case must be shown. It must be established that the appeal is strongly arguable or that the prospects are such that there is a real concern that the appellant would suffer an injustice by being kept in custody on the basis of an unsound conviction.
On a bail application, the opportunity to conduct a comprehensive consideration of the trial evidence is relatively limited and any assessment of the grounds can only be preliminary. Thus, if it is suggested that the grounds have strong prospects of success, that will generally need to be readily apparent without the benefit of detailed argument or analysis.[2]
[2] Fermanis v The State of Western Australia [2005] WASCA 212 [14].
The prosecution case
The complainant in this case was a friend of the appellant's daughter. The complainant was a frequent visitor to the appellant's house, either for 'play dates' or sleepovers. It was alleged that the seven offences occurred on various unknown dates between 20 July 2015 and 17 June 2018. In that period, the complainant was aged between 7 and 10 years.[3]
[3] ts 587 - 589.
The offences were alleged to have occurred on six separate occasions. Counts 1 and 2 were alleged to have occurred on an occasion when the complainant was staying at the appellant's house for a sleepover. Whilst seated on a couch watching a movie, it was alleged that the appellant had digitally penetrated the complainant. Count 2 was an allegation that later the same evening, the appellant had kissed the complainant on the lips. Count 3 related to another occasion when it was alleged that the complainant was in her friend's bedroom alone when the appellant had entered, pulled his pants down and exposed his penis. Count 4 related to another occasion when the complainant was again alone in her friend's bedroom and the appellant had engaged in cunnilingus by licking the complainant's vagina. Counts 5 and 6 occurred on another occasion when the complainant was watching a movie in the living room of the house with her friend. The appellant was present and used his finger, which had liquid on it, to rub the complainant's lips. Some time later, while seated on a couch between the complainant and his daughter, the appellant had digitally penetrated the complainant. At another point in her evidence, the complainant had said that when this occurred, the appellant’s daughter was not present. Count 7 occurred on another occasion when it was alleged that the appellant carried the complainant to his bedroom, removed her pants and penetrated her vagina with his penis. The complainant said that after this act, her pants had liquid on them, and she asked the appellant's wife to wash them.[4]
[4] ts 589 - 591.
In addition to the seven acts that were the subject of the counts on the indictment, it was also alleged that other sexual acts had occurred, including the appellant rubbing the complainant's vagina with his penis, exposing his penis to her while she was playing in the back yard, kissing her on the mouth and trying to open the bathroom door while she was showering.[5]
[5] ts 595.
The State case was that there were numerous opportunities for the offences to have occurred because the complainant was a regular visitor to the appellant's house. In this regard, the State relied on the evidence of the complainant, her mother, her father and her grandmother.[6] Her mother gave evidence that the complainant went for a sleepover at the appellant's house about once a month during the relevant period.[7] The grandmother estimated that the complainant had at least 17 sleepovers during the relevant period, some of which involved the complainant staying over for more than one night.[8] The complainant's father estimated that during the weeks that he had custody of the complainant, she stayed at the appellant's house a couple of dozen times.[9]
[6] ts 755.
[7] ts 625 - 626.
[8] ts 644, 653.
[9] ts 222.
The complainant complained to the police on 18 June 2018. That is the day after the three‑year period in which the offences are alleged to have occurred.[10]
[10] ts 626.
Defence case
The defence case was that the none of the alleged sexual acts had occurred. The appellant gave evidence in his defence and accepted that the complainant was a friend of his daughter and that she had been to his house for sleepovers. However, he maintained that these sleepovers had occurred on only five occasions. He sought to confirm the dates of those occasions by reference to WhatsApp exchanges in which sleepovers were arranged with his wife. He gave evidence as to what occurred on each of these five occasions, including by reference to movies that had been watched, but denied that any sexual acts had occurred.[11]
[11] ts 600 - 601, 673 - 674, 681 - 682.
Grounds of appeal
There are two grounds of appeal. The first ground alleges, in effect, that the learned trial judge erred by failing to give a Longman direction[12] to the jury to the effect that if the jury found that there were a large number of unidentified occasions on which the complainant had sleepovers at the appellant's house, the complainant's delay in making complaint gave rise to a forensic disadvantage for the appellant.
[12] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79.
In submissions at the hearing of the bail application, counsel explained that the disadvantage derived from the fact that each offence was alleged to have occurred on a date unknown during a three-year period and the appellant only became aware of the allegations after the end of that three-year period. Counsel submitted that the uncertainty as to the date and the length of time that may have elapsed between the alleged act and the appellant becoming aware of the allegations resulted in him being unable to marshal defence evidence and suffering a disadvantage in cross‑examining the complainant. Counsel submitted that had the appellant been aware of the specific dates when the offences were alleged to have occurred, he could have made enquiries to establish whether the complainant was at his house on those days and also whether he was there on those days.[13]
[13] Bail application ts 6 - 10.
The second ground of appeal relates to evidence that was given by the complainant's grandmother. The grandmother said that on two occasions she had noticed redness on the complainant's genitals. The second occasion was shortly after the complainant had returned from a sleepover at the appellant's house.[14] An expert medical witness gave evidence that redness to the genitals could be caused in a number of ways other than by trauma.[15] In his closing address, the prosecutor referred to this evidence and said that it lent credence or support to the complainant's account of penetration and that it could be taken into account in assessing the credibility of the complainant.[16]
[14] ts 647.
[15] ts 658.
[16] ts 773.
Ground 2 alleges that the learned trial judge erred in failing to direct the jury that the State's submission was incorrect and in failing to direct the jury that the observed redness could not be taken to support the State case. It is also alleged that the trial judge erred by failing to direct the jury that the redness could only be taken to support the State's case if the jury was satisfied that the only reasonable and rational inference was that it was caused by something the appellant had done and that they should otherwise disregard the evidence. Further, it is alleged that the redness could have related to an uncharged act and thus the jury should have been directed that it could not be used as direct evidence of guilt of any of the charged acts.
The trial judge's directions
Prior to closing addresses, there was a discussion in the absence of the jury between counsel and the trial judge as to the appropriate directions. In the context of delay in complaint and any loss of forensic opportunity, defence counsel referred only to a lost opportunity to examine any fluid on the complainant's underpants or to forensically examine the bedding of the relevant bedroom.[17] This opportunity was confined to the allegation that was the subject of count 7. The trial judge pointed out that any lost opportunity in this regard was not a product of delay in complaint as any opportunity to forensically examine the underpants or sheets would have been lost within a short time.[18]
[17] ts 744 - 745.
[18] ts 746 - 747.
The State prosecutor noted that the appellant had given 'completely concrete evidence' of there being only five occasions when the complainant had visited his house and that nothing had happened on those occasions.[19] The appellant had taken the opportunity to gather evidence in support of that defence.
[19] ts 745.
The trial judge concluded that this was 'not a Longman case’ and that in her view, the forensic disadvantages that had been described were not a product of delay and did not justify a Longman direction. Her Honour also noted that the appellant had 'given evidence that he remembers these events in detail'.[20]
[20] ts 746 - 747.
The trial judge gave orthodox directions regarding the onus and standard of proof. Her Honour noted that the prosecution relied critically on the evidence of the complainant and directed the jury that they could only convict the appellant on any of the charges if they were satisfied beyond reasonable doubt as to the truthfulness, accuracy and reliability of the complainant's evidence.[21]
[21] ts 806.
As anticipated, the trial judge did not give a Longman direction. Counsel who appeared for the appellant at the trial made no complaint in this regard, nor was any redirection sought.
As regards the evidence of the grandmother and the doctor regarding redness of the genital area, her Honour referred to that evidence, including the evidence of the doctor that redness of this type could be caused by a number of factors.[22] The trial judge gave no specific direction as to how the jury could use this evidence, though the only suggestion that had been made in that regard by the prosecutor was that it was evidence that had the potential to be consistent with that of the appellant and was relevant in assessing her credibility.[23] It was not suggested that this evidence was independently capable of proving any of the offences or of corroborating the complainant.
[22] ts 808.
[23] ts 773.
Merits of the application
It is not appropriate on an application of this type to reach a final conclusion as to whether either of the grounds of appeal will succeed. All that is required, and appropriate, is an assessment of whether it is apparent that the grounds of appeal are not merely reasonably arguable but they have a strong prospect of success. It must be apparent that the prospects of success are sufficiently high as to justify a conclusion that it would be unjust to allow the appellant to remain in custody pending determination of the appeal.
In respect of ground 1, the necessity for a Longman direction will arise in circumstances where, due to delay, the accused has been placed at a forensic disadvantage. This will arise where the delay is such that the accused has lost the opportunity to make enquiries and thereby marshal a defence to the allegations and to obtain evidence or information which could be used to test the evidence of the complainant in cross‑examination. The loss of opportunity must be real and actual, and more than simply a theoretical possibility. The failure of trial counsel to make reference to any forensic disadvantages, whilst not determinative, may nevertheless lend support to the conclusion that there were none.[24]
[24] DWM v The State of Western Australia [No. 2] [2019] WASCA 143.
In this case, the offences were alleged to have occurred on unknown dates during a three‑year period. The appellant became aware of the allegations soon after the end of that three‑year period. Because the precise dates on which offences alleged to have occurred is unknown, the length of the delay is also unknown. The position of the appellant is that this places him in the difficulty of being able to identify potential evidence that could assist him. On the hearing of the application, when asked to identify what evidence the appellant might have been able to identify, counsel suggested evidence from the appellant, his wife and from neighbours who regularly visited their house as to whether the complainant had been in attendance at the house on a specified date.
Whether, realistically, there has been a loss of forensic opportunity may well depend on the nature of the defence case. In this case, there were two strands to the appellant's defence. Firstly, he denied outright that any sexual acts between him and the complainant had occurred. Secondly, he claimed that there were only very limited opportunities for such offending to occur because, he claimed, the complainant had only stayed overnight at his house on five occasions. He gave an account of what had occurred on each of those five occasions. He adduced evidence of WhatsApp messages to support his claim that there had only been five sleepovers.
In these circumstances, it is difficult to see what real and actual forensic opportunities were lost to the appellant by reason of any delay. If the alleged offences had occurred on the days identified by the appellant as being the five occasions that the complainant stayed over, then he gave detailed evidence of what he said occurred on those occasions. There was no suggestion by his trial counsel that he had been disadvantaged by any delay in this regard. According to the complainant no one else was present when the offences occurred (except possibly the appellant’s daughter, whose recorded evidence was adduced at the trial). The appellant did not call either his wife or the neighbours regarding the circumstances of the visits on those five days.
If it was alleged that the acts had occurred on some other days than those referred to by the appellant, he would presumably have relied upon his own evidence and the WhatsApp messages to suggest that visits on such other occasions had not occurred. Ultimately, having regard to the nature of the allegations, it is presently difficult to see what other evidence the appellant might have been able to obtain had there been no delay and had the dates been specified. Though this ground of appeal may well be arguable, I am not satisfied at this stage that it is so strongly arguable as to justify a grant of bail.
As regards ground 2, counsel for the appellant submitted at the bail application that the trial judge should have given a direction to the jury as to the drawing of inferences from circumstantial evidence. He submitted that the only significant piece of circumstantial evidence in this case was the evidence of the redness on the genitalia. He said that the jury should have been directed that they could not draw an inference of guilt from that evidence unless they were satisfied beyond reasonable doubt that the redness was caused by acts of the appellant. Counsel submitted that this evidence was a critical link in the prosecution case but not a link that could support a finding of guilt given the evidence of the medical expert.
The difficulty with this ground of appeal is that it was not suggested by anyone at the trial that this evidence could of itself justify a finding of guilt. On the evidence of the medical expert, the redness was consistent with a range of possibilities other than trauma. The prosecutor relied on the evidence for a limited purpose, not as independent evidence that an assault had occurred, but as evidence that was capable of being viewed as consistent with the claims made by the complainant and therefore relevant in an assessment of her credibility. Whilst it is true that the trial judge gave no specific directions as to the use of this evidence, it is presently difficult to see how it could have been misused. That is the more so having regard to the fact that the trial judge gave a clear direction to the jury that they could not convict the appellant on any count unless satisfied beyond reasonable doubt of the truthfulness, reliability and accuracy of the complainant’s evidence. In those circumstances, I am not satisfied that this ground is strongly arguable.
Conclusion
For the reasons given, I am not satisfied that the grounds of appeal have strong prospects of success. Exceptional reasons why the appellant should not be kept in custody pending the hearing of the appeal have not been established. For these reasons, the application for bail is refused.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AZ
Associate to the Honourable Justice Hall
29 NOVEMBER 2023
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