TWR v The State of Western Australia - [2022] WASCA 24

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   TWR -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 24
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD:   10 FEBRUARY 2022
DELIVERED          :   10 FEBRUARY 2022
PUBLISHED           :   18 FEBRUARY 2022
FILE NO/S:   CACR 69 of 2021
BETWEEN:   TWR
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   TROY DCJ
File Number            :   IND 706 of 2019

Catchwords:

Criminal law - Evidence - Whether use of evidence of statements made by the accused's wife as an implied admission by the accused infringed the rule against hearsay

Criminal law - Sexual offences against a child - Whether evidence of statements made by the complainant was properly characterised as evidence of a recent complaint which could be used to bolster the credibility of the complainant

Legislation:

Criminal Code (WA), s 320

Result:

Leave to appeal granted
Appeal allowed
Convictions set aside and new trial ordered

Category: B

Representation:

Counsel:

Appellant	:	S Vandongen SC
Respondent	:	K C Cook

Solicitors:

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

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

East Metropolitan Health Service v Popovic [2019] WASCA 18; (2019) 54 WAR 40
MNA v The State of Western Australia [2020] WASCA 84
R v GG [2004] VSCA 238; (2004) 151 A Crim R 92
SPW v The State of Western Australia [2012] WASCA 41; (2012) 220 A Crim R 301

REASONS OF THE COURT:

At the hearing of this appeal, we made orders granting leave to appeal, allowing the appeal, setting aside the appellant's convictions and ordering a new trial. We said that we would publish reasons for making those orders later. These are our reasons for making the orders.

Introduction

On 21 May 2021, the appellant was convicted, after trial by jury, of four counts of sexually penetrating a child under the age of 13 years and three counts of indecently dealing with a child under the age of 13 years.[1]
[1] Contrary to s 320(2) and s 320(4) of the Criminal Code (WA) respectively.
The offences all relate to the same complainant, who was a friend of the appellant's daughter and would frequently visit the appellant's residence. The offending was alleged to have occurred on various occasions when the complainant slept over at the appellant's house. The complainant was between 8 and 10 years old at the time of the alleged offending. The complainant disclosed the alleged offending to her mother on 17 June 2018, when she was 10 years old.[2] A child witness interview was conducted with police on 19 June 2018 and was later incorporated into the complainant's evidence-in-chief.
[2] Trial ts 183 - 184.
The appellant now appeals against his convictions on two grounds. Ground 1 in effect contends that the trial judge erred by directing the jury that they were entitled to take into account evidence of disclosures by the complainant to her mother, when that evidence was not admissible as evidence of recent complaint. Ground 2 in effect contends that the trial judge erred by allowing the prosecutor to adduce evidence of 'WhatsApp' text messages between the complainant's mother and the appellant's wife as evidence of an implied admission by the appellant.
It is convenient to begin by considering ground 2, which is conceded by the State.

Ground 2: Alleged implied admission

The prosecutor adduced, through the complainant's mother, evidence of text messages exchanged between the appellant's wife and the complainant's mother on 18 June 2018.[3] The appellant's trial counsel objected to the admission of this evidence.[4]
[3] Trial ts 190 - 192.
[4] Trial ts 168 - 169.
In a message sent at 5.21 am that morning, the complainant's mother said that she had, on the previous night, heard about 'sexual advances' which the appellant had made towards the complainant. These were alleged to involve 'inappropriate touching and more horrific gestures'. The complainant's mother in effect said that she wanted the appellant to stay away from the complainant and that she intended to seek a restraining order against him.
The appellant's wife replied to this message at 7.07 am, where she said:
I have spoken to [the appellant]. Please dont put a restraining order against him. Allegations like this can break up our family and we loose everything. Is there anyway we can talk personally about it? He said he will stay far away at all times and he said he will call you if need be. Is there a way we can work this out between us please? (emphasis added)
The complainant's mother responded at 7.17 am, indicating that she was 'very shaken' and was aware of the consequences for the appellant's family. She said that she did not want to hear from the appellant and asked that the appellant's wife ensure that he stayed away from the complainant. The complainant's mother said that she would be pressing charges if she heard that the appellant was near the complainant or that he was making any contact.
The appellant's wife responded at 7.36 am in the following terms:
Thank u very much. He has promised that u wont see him or hear from him at school or anywhere (emphasis added)
The prosecutor relied on these text messages as constituting implied admissions by the appellant, made through his wife, that he had engaged in sexual conduct with the complainant. The implied admission was said to arise from the absence of a denial of the offending and failure of the appellant to ask for details of the allegations.[5] The trial judge gave the jury detailed directions about the circumstances in which they could use the text messages as an implied admission of guilt.[6]
[5] Closing addresses ts 2 ‑ 3, 4, 18 - 19.
[6] Trial ts 466 - 470.
The trial judge erred in admitting evidence of the text messages through the complainant's mother as part of the prosecution case. The only reason the State sought to adduce evidence of the messages was to prove statements, said to constitute implied admissions, that had been made by the appellant through his wife. The appellant's wife could have given evidence of admissions against interest made by the appellant directly to her, under an exception to the rule against hearsay. However, the complainant's mother could only give direct evidence about what the appellant's wife said that the appellant had said. Use of that evidence of the complainant's mother to prove what the appellant had said infringed the hearsay rule. The prosecution sought to use out of court statements, made by the appellant's wife about what the appellant had been told, and said in response, as evidence of the truth of what the appellant had been told by, and said to, his wife. The hearsay rule precluded that use of the mother's evidence of the wife's out-of-court statements to prove the truth of the wife's statements.[7] None of the exceptions to the hearsay rule were applicable.
[7] See, for example, the discussion in East Metropolitan Health Service v Popovic [2019] WASCA 18; (2019) 54 WAR 40 [145] - [181].
The admission of the text messages through the complainant's mother involved a wrong decision on a question of law and constituted a miscarriage of justice. Departing from the position it took at trial, the State now concedes this to be the case.[8] The State does not contend that the appeal should be dismissed under the 'proviso' in s 30(4) of the Criminal Appeals Act 2004 (WA) on the basis that no substantial miscarriage of justice has occurred. That is, the State submits that the appeal should be allowed, the appellant's convictions set aside, and a new trial ordered.[9]
[8] White AB 23.
[9] White AB 30.
We accept that the proviso should not be applied, despite the appellant and his wife subsequently giving evidence about the text messages as part of the defence case.[10] In doing so, we note that evidence of the text message exchange was adduced as evidence in the defence case, and could have been the subject of cross-examination of the appellant and his wife by the prosecutor. However, this does not provide a basis for invoking the proviso in the present circumstances. That is because admission of the text messages as part of the prosecution case may have affected the appellant's decision to give evidence and to adduce the evidence of his wife as part of the defence case.
[10] Trial ts 314 - 319, 378 - 381, 387 - 388.
Therefore, the appeal must be allowed, the appellant's convictions set aside, and a new trial ordered.

Ground 1: Recent complaint evidence

The first ground of appeal contends that the trial judge erred in directing the jury that they were entitled to take account of what the complainant said to her mother in mid-2017 and on 17 June 2018. The above conclusions make it strictly unnecessary to deal with this ground of appeal. However, given that there is to be a retrial it is desirable to say something about ground 1.
The complainant's evidence was not specific as to the timing or order of the offending. The indictment charged that the offending occurred on unknown dates between 20 July 2015 and 17 June 2018.[11] In opening, the prosecutor explained that 20 July 2015 was the approximate date that the appellant's daughter started at the complainant's school. The prosecutor further explained that the offending could not have occurred before that date because the complainant and the appellant's daughter were not friends before that time.[12] 17 June 2018 was the date that the complainant told her mother about the offending.
[11] Blue green AB 1 - 2.
[12] Trial ts 138.
Evidence was adduced from the complainant's mother as to a conversation she had with the complainant while they were in bed watching television in about mid-2017. The complainant's mother started tickling the complainant and the complainant said that she did not like it. The complainant said that the appellant had been tickling her. When asked in what way, the complainant responded that it was not like her dad would tickle her. The complainant's mother tried asking further questions but did not get much response at that time.[13]
[13] Trial ts 183.
Evidence was also given of the circumstances in which the complainant disclosed the alleged sexual offending to her mother when they were in the car on 17 June 2018.[14]
[14] Trial ts 183 - 187.
The State resists the ground of appeal on three bases:
1.the evidence of what the complainant told her mother in about mid-2017 and on 17 June 2018 was properly characterised as recent complaint evidence, which could be used to bolster the complainant's credibility;
2.in any event, there was no wrong decision on a question of law nor was there a miscarriage of justice where the evidence was admitted without objection after a rational forensic choice by the appellant's trial counsel; and
3.in any event, the trial judge did not direct the jury that the evidence could be used to bolster the complainant's credibility.
It is unnecessary to resolve the second and third matters relied on by the State, given the success of ground 2. However, it is appropriate for this court to express a view as to the proper character of the evidence so that it is not misused during the retrial.
In our view, neither the mid-2017 statement nor the 17 June 2018 statement relied on by the State are properly characterised as evidence of recent complaint of sexual conduct which could properly be used to bolster the complainant's credibility.
The general principles as to the use of evidence of recent complaint were summarised by Derrick J in MNA v The State of Western Australia,[15] and by Buss JA in SPW v The State of Western Australia.[16] The doctrine of recent complaint is an exception to the rule against prior consistent statements and the rule against hearsay. In order for evidence of complaint to be admissible under the doctrine of recent complaint, the complaint must be made at the first reasonable opportunity after the commission of the offence; as speedily as can reasonably be expected. A trial judge, in deciding whether a complaint was made at the first reasonable opportunity, must take into account all the relevant facts and circumstances of the case. The question must be judged by reference to the sensitivities of the complainant and the circumstances in which the complainant was placed at the time.
[15] MNA v The State of Western Australia [2020] WASCA 84[118].
[16] SPW v The State of Western Australia [2012] WASCA 41; (2012) 220 A Crim R 301[49] - [70].
What was said in about mid-2017 cannot be described as a recent complaint of sexual conduct by the appellant. The disclosure on that occasion was that the appellant had tickled the complainant in a manner different to her father. The only offending conduct to which that disclosure might have been relevant was count 1, which alleged a digital penetration of the complainant's vagina while the appellant was tickling her. What was said in mid-2017 could not be used to bolster the complainant's credibility on any other count in the indictment. Further, even though what was said by the complainant may have related to the conduct the subject of count 1, the disclosure was entirely non-specific. There was no evidence as to when the conduct the subject of count 1 occurred in relation to the complainant's disclosure about tickling. The evidence did not leave open the conclusion that what was said by the complainant in about mid-2017 was a complaint about sexual conduct made as soon as reasonably practicable after the conduct occurred.
The disclosure made on 17 June 2018 was of limited forensic value to the State, as that disclosure was made only two days prior to the child‑witness interview, which became incorporated into the complainant's evidence. While the disclosure clearly concerned sexual conduct by the appellant, it is common ground that the complainant had not slept over at the appellant's house for months prior to this disclosure.[17] The last of the offending must have occurred at least some months prior to 17 June 2018. It was not possible to reach any further conclusion as to when the conduct the subject of any count on the indictment occurred in relation to the 17 June 2018 disclosure. In our view the evidence did not establish that the disclosure on 17 June 2018 was made at the first reasonable opportunity after the commission of any of the charged offences.
[17] Appeal ts 21; trial ts 144, 182.
In seeking to characterise the disclosure as recent complaint evidence, the State points to a combination of the young age and naivety of the complainant, and the importance of her relationship with the appellant's daughter. The relevance of those contextual matters to the assessment of whether a complaint was made at the first reasonable opportunity may be accepted. However, as was stated by Eames JA (Warren CJ and Batt JA agreeing) in R v GG:[18]
The situation of a child victim of sexual assault might well be such as to cause delay in making complaint, where an adult would be less inhibited (See M v The Queen (1994) 181 CLR 487 at 514-515; 76 A Crim R 213 at 232-233 per Gaudron J). Care needs to be taken by the trial judge, however, when considering such factors. As Winneke P makes clear in R v Knigge ((2003) 6 VR 181 at [19]‑[20]), the fact that the making of complaint is delayed for good reason, in particular because of the age of the complainant, cannot be used to convert what is not a 'recent' complaint into what is a 'recent' complaint.
[18] R v GG [2004] VSCA 238; (2004) 151 A Crim R 92 [45], adopted by Buss JA in SPW [56] and Derrick J in MNA [119].
While the matters referred to by the State may well have provided good reason for the delay in complaint in the present case, in our view the disclosure on 17 June 2018 cannot be characterised as a recent complaint. To any extent that evidence of what the complainant said in mid-2017 and on 17 June 2018 is admitted at the new trial on some other basis, the jury in the new trial should not be directed that the evidence can be used to bolster the complainant's credibility or demonstrate consistency of her conduct.

Orders

For the above reasons, at the conclusion of the hearing of this appeal, we made orders granting leave to appeal, allowing the appeal, setting aside the appellant's convictions and ordering a new trial.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Mitchell
18 FEBRUARY 2022