TWR v The State of Western Australia [No 2]
[2025] WASCA 5
•7 JANUARY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TWR -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2025] WASCA 5
CORAM: BUSS P
MAZZA JA
HALL JA
HEARD: 22 AUGUST 2024
DELIVERED : 7 JANUARY 2025
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 - Appeal against conviction - Whether trial judge made an error of law by declining to give a Longman direction - Whether a miscarriage of justice was occasioned by the admission of evidence regarding possible injury to the complainant that could not be linked to any count - Whether a miscarriage of justice was occasioned by the trial judge's directions regarding how the evidence could be used - Whether a miscarriage of justice was occasioned by defence counsel's agreement to excise portions of the complainant's child witness interview - Whether agreement to the edits capable of explanation as a reasonable forensic decision.
Legislation:
Criminal Code (WA), s 320(2), s 320(4)
Evidence Act 1906 (WA), s 36BD
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | F Merenda & L Nicholls |
| Respondent | : | B Murray |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Akkerman v The State of Western Australia [2021] WASCA 51
Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314
Criddle v The State of Western Australia [2017] WASCA 17
DWM v The State of Western Australia [No 2] [2019] WASCA 143
Eravelly v The State of Western Australia [2018] WASCA 139
Huggins v The State of Western Australia [2018] WASCA 61
JJR v The State of Western Australia [2018] WASCA 51; (2018) 272 A Crim R 209
Liddington v The State of Western Australia [2005] WASCA 60; (2005) 152 A Crim R 502
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
MCA v The State of Western Australia [2019] WASCA 22
Morgan v The State of Western Australia [No 2] [2019] WASCA 185
R v Birks (1990) 48 A Crim R 385; (1990) 19 NSWLR 677
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234
JUDGMENT OF THE COURT:
The appellant was convicted after trial of four counts of sexually penetrating a child under the age of 13 years, contrary to s 320(2) of the Criminal Code (WA) (Code), and three counts of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Code. The complainant on all counts was a school friend of the appellant's daughter. The offences were alleged to have occurred on unknown dates between 20 July 2015 and 17 June 2018.
The appellant seeks leave to appeal against his conviction. The grounds of appeal have been amended at various times. A minute of amended grounds of appeal dated 22 April 2024 contained six grounds of appeal. At the hearing of the appeal, grounds 1, 2 and 5 were abandoned and an application was made to amend grounds 3, 4 and 6. The amendments to ground 4 included adding an alternative ground.
It is highly undesirable for grounds to be abandoned or amended at, or close to, the hearing date. The explanation in this case was that new counsel had been retained shortly before the hearing and took a different view as to the grounds. The State did not oppose the amendments, on the basis that they reflected the real issues in dispute and that it was desirable to avoid delay. In these circumstances, the court granted leave to amend the grounds of appeal. However, it should not be assumed that leave will invariably be granted where the application to amend is made at the hearing.
The amended grounds focus on three issues. First, whether the trial judge made a wrong decision on a question of law by declining to give a Longman[1] direction to the jury (ground 3). Secondly, whether a miscarriage of justice was occasioned by the admission of evidence from the complainant's grandmother concerning her observations of redness on the complainant's vagina and anus (ground 4). In the alternative to ground 4, it is contended that the trial judge's directions about how the jury could permissibly use the evidence of redness occasioned a miscarriage of justice. Thirdly, whether a miscarriage of justice was occasioned by defence counsel's agreement to excise material portions of the complainant's child witness interview relating to her recollection of the events that related to count 7 of the indictment (ground 6).
[1] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79.
There is also an application to adduce additional evidence on the appeal in respect of ground 6, dated 21 August 2024. That additional evidence is an affidavit from the appellant's counsel, sworn on 7 April 2024. Annexed to that affidavit is a copy of the transcript of the complainant's interview showing the edits made to the recording.
For the reasons that follow, leave to appeal should be refused and the appeal dismissed.
The prosecution case
The complainant was born on 17 November 2007. She was between the ages of 7 and 10 years old at the relevant time, that is between 20 July 2015 and 17 June 2018.[2] The complainant's parents had separated prior to this period and they shared custody, such that the complainant spent alternating weeks with each parent. The complainant's father, EF, was living at that time with his mother, GH.[3]
[2] The prosecutor's opening notes the complainant was aged between 10 and 12 years at the relevant time, however this appears to be an error.
[3] ts 587 - 588.
In about year 2 of primary school, the complainant met and became friends with S, a girl who was in the same year at her school. The appellant is S's father. As the complainant and S's friendship developed, they started having sleepovers at each other's houses. The offences were alleged to have occurred at the appellant's house, on occasions when the complainant was staying there for a sleepover.[4]
[4] ts 587 - 588.
Though sleepovers occurred on many occasions, the complainant could only recall five specific incidents of sexual conduct. She was uncertain as to when the incidents occurred. It is for these reasons that the date range for each of the charges is between 20 July 2015 and 17 June 2018. The first date is an approximation of when the complainant first met S. The end date is when the matters were reported to the police. The order of the seven counts in the indictment did not represent the order in which the offences were alleged to have occurred, other than count 1 which was the first incident.[5]
[5] ts 588 - 589.
Count 1 related to an occasion when the complainant was at the appellant's house for a sleepover. She and S were sitting on a couch in the living room watching the movie Jumanji. The appellant entered the room and sat down between them. There was a blanket or a sleeping bag covering the two girls. Whilst sitting next to the complainant, the appellant tickled her, including under her clothing in the area of her vagina. He then inserted his finger into her vagina. The complainant said that this was the first time that something of a sexual nature happened.[6]
[6] ts 589.
Count 2 occurred on the same occasion as count 1. After the movie ended, the complainant went upstairs to bed. She was sleeping in S's bedroom. The appellant entered the room and kissed the complainant on the lips. She described him spitting in her mouth.[7]
[7] ts 589.
Count 3 occurred on another occasion, during the daytime, when the complainant was in S's bedroom and S was elsewhere in the house. The appellant went into the bedroom, pulled his pants down and exposed his penis to the complainant. She described his genitals as 'sticking out'. She then went downstairs, to where others were present in the house.[8]
[8] ts 590.
Count 4 occurred on another occasion, when the complainant was lying in bed one morning whilst staying at the appellant's house. The appellant came into the room, pulled the complainant's pants down, opened her legs and began to lick her vagina. The complainant described this as feeling soft and wet. She did not understand and asked the appellant what he was doing.[9]
[9] ts 590.
Count 5 occurred on another occasion whilst the complainant was with S in the living room watching a movie called Ballerina. Both girls were sitting on the couch in front of the television. The appellant went to the toilet, and then approached the complainant with something on his finger. It was a yellow liquid and the appellant used his finger to rub the yellow liquid on the complainant's lips. The complainant later said that it tasted disgusting, and she thought it was like 'wee'. The prosecution case was that the liquid was urine or ejaculate.[10]
[10] ts 590.
Count 6 occurred on the same occasion as count 5. After the incident with the finger, the appellant sat between the complainant and S. He slowly put his hands under the complainant's pants and then placed a finger in her vagina. The appellant then moved his finger in a circle around her vagina. The complainant described that it felt 'wet and soggy'. In the child witness interview, the complainant initially said this occurred in the living room whilst the appellant was seated between her and S. However, later in the interview, the complainant said that no one other than the appellant was in the living room at the time.[11]
[11] ts 590; child witness interview ts 20 - 22, 36.
Count 7 occurred on another occasion, when the complainant was having a sleepover during school holidays. The complainant went to S's bedroom to get something. The appellant asked, 'what are you doing, cheeky monkey'. He then picked up the complainant and carried her to his bedroom. He pushed her onto the bed, pulled her pants down and opened her vagina with his thumbs. He then penetrated her vagina with his penis. She described the appellant moving his penis up and down inside her vagina. After this incident, the complainant's pants had liquid in them, and she asked the appellant's wife to wash them. She estimated that she was 8, 9 or 10 years old at the time of the incident.[12]
[12] ts 591.
It was also the State's case that in addition to the seven charges, there were an unspecified number of uncharged acts of a sexual nature committed by the appellant against the complainant. Those uncharged acts included rubbing her bottom; rubbing her vagina with his penis; exposing his penis to her while she was playing in the backyard; kissing her on the mouth; trying to open the bathroom door when she was inside, and asking her to open the bathroom door.[13]
[13] ts 595.
These acts were relied on as context evidence to show that the charged acts were not isolated, but committed against a backdrop of repeated sexual offending against the complainant and to explain why the complainant was unable to provide the level of detail that might be expected if the counts were isolated incidents. They were also relied on as relationship evidence to explain why the complainant reacted, or did not react, to the charged sexual acts. The State's case was that this evidence showed that the appellant had groomed the complainant such that sexual conduct during sleepovers became normalised and explained why she did not complain earlier than she did. The uncharged acts were also to explain why the appellant had the confidence to act as he did, including when others were in the vicinity.[14]
[14] ts 595 - 596.
The defence case
The appellant formally admitted that he lived at the identified house at the relevant time, with his wife and three children. He admitted that he is the father of S and that the complainant was the friend of S. He also admitted that the complainant visited the identified house and stayed overnight on occasions during the charged period.[15]
[15] ts 600 - 601.
The defence case was that none of the charged acts, or uncharged acts, had occurred. The appellant's position was that the complainant had sleepovers at the appellant's house on only five occasions. On each of those occasions the appellant was only ever alone with the complainant very briefly, and had no opportunity to commit the alleged offences.
The grounds of appeal
The grounds of appeal as amended (and omitting those grounds that were abandoned) are as follows:[16]
[16] Appellant's minute of proposed orders (CACR 82 of 2023), dated 21 August 2024.
3.The trial judge made a wrong decision on a question of law by declining to give a Longman warning to the jury.
Particulars
(a)the appellant was alleged to have sexually offended against the complainant on unknown dates between 20 July 2015 and 17 June 2018, the latter date being the date on which the complainant first complained to police about the alleged offending;
(b)the complainant's evidence was often general, non‑specific as to the surrounding circumstances in which it had occurred and was at times internally inconsistent in relation to several issues relating to the charged offending;
(c)the complainant also gave evidence of other uncharged sexual conduct by the appellant, which was also said to have frequently occurred on unknown dates between 20 July 2015 and 17 June 2018, during sleepovers at the appellant's home;
(d)the complainant's parents and grandmother each gave evidence that there were, depending on whose evidence was considered, potentially more than 72 sleepovers at the appellant's home over the charged period: Ts 222, 625 ‑ 626, 632, 634, 638 and 644;
(e)the appellant gave evidence that he recalled five occasions on which the complainant had a sleepover at his home, but denied that there were any more sleepovers than those that he had described in evidence: Ts 674, 705, 732 ‑ 3 and 735;
(f)the trial judge directed the jury that the evidence of the uncharged sexual conduct could be used by the jury for the purposes of considering whether it might explain: the failure to promptly complain; why the appellant may have felt that he was able to act with impunity; and why the complainant was 'unable to give full details about every alleged incident': Ts 821 ‑ 824; and
(g)the effect of the above circumstances, and particularly the highly generalised evidence of uncharged sexual misconduct, was that the delay in complaint occasioned significant disadvantage to the appellant's ability to test the veracity of the complainant's evidence, which was not likely to have been understood by the jury when assessing the credibility and reliability of her evidence.
4.A miscarriage of justice was occasioned by the admission of evidence from the complainant's grandmother concerning her observations of redness on the complainant's vagina and anus on two separate days, after she had returned from a sleepover at the appellant's home, and, moreover, the expert evidence of Dr Johnson that a potential cause of redness was the sexual penetration of a child, which evidence was irrelevant.
Particulars
(a)the complainant did not give evidence that her vagina or her anus was sore or red after any sleepover, or at all, nor did she give any evidence, in the context where she accepted that the appellant did not touch her every time that she slept at his home, that tended to connect the observations purportedly made by her grandmother to a weekend when he had touched her vagina or anus;
(b)the complainant's grandmother gave evidence that:
(i)on one occasion following a sleepover the complainant complained about having a 'sore bottom' and the grandmother observed that the complainant's 'anal and vagina' were red, but that she did not take her to the doctor because she thought it could be a 'case of worms' or 'scratching or whatever kids do': Ts 646, 655; and
(ii)on another occasion following a sleepover the grandmother observed that the complainant's vagina and anus were 'red raw' and that the grandmother 'panicked' and 'knew something had definitely happened': Ts 647 and 655.
(c)Dr Alice Johnson gave evidence that:
(i) she examined the complainant and did not observe any injuries and did not see any redness to her vagina or anal area: Ts 657 ‑ 659;
(ii) in 85 to 95 per cent of children with clear histories of sexual abuse the genital examination is normal (mainly because either there was no injury caused or the injury has healed prior to the examination): Ts 657;
(iii) injuries are most likely to be seen within the first 'sort of three days': Ts 658;
(iv) a normal examination is a neutral finding: Ts 658;
(v) redness is a non-specific finding, redness could be due to trauma (including from penetration), infection, irritation, allergy or poor hygiene: Ts 658; and
(vi) redness is 'quite subjective' and what one person calls red another person might call normal: Ts 658;
(d) during the State's cross-examination of the appellant, the jury provided the judge a note querying the date on which the grandmother had observed the redness around the complainant's vagina and anal region on the second occasion: Ts 729;
(e) the State in closing accepted that it could not be said what caused the redness, however, 'that observed redness, in combination with Dr Johnson's evidence, lends credence, support, to [the complainant's] account of penetration events during 'sleepovers': Ts 772 - 773;
(f) during the trial judge's summing up, her Honour referred to the grandmother's evidence about redness but merely directed the jury not to guess or speculate as to the date the grandmother observed this or whether the complainant had another sleepover afterwards: Ts 803;
(g) the nature of the evidence given by the complainant's grandmother was incapable of supporting the complainant's evidence, and was therefore irrelevant, in circumstances where, in the absence of any evidence from the complainant tending to connect those observations with a time when she had been sexually penetrated by the appellant, the jury would have been required to speculate that her grandmother's observations coincided with such an event; and
(h) the evidence was highly prejudicial and there was no rational basis for the failure by defence counsel to object to the receipt of the inadmissible evidence.
Alternatively to ground 4, in the absence of directions about how the jury could permissibly use the evidence given by the complainant's grandmother concerning the observed redness to her vagina and anus, the trial judge's direction to the jury that they were not to speculate as to the date on which the complainant's grandmother had made those observations occasioned a miscarriage of justice.
Particulars
(a)the appellant repeats particulars (a) - (c) of ground 4;
(b)the State relied upon the evidence of the complainant's grandmother, in conjunction with the evidence of Dr Johnson, in relation to her observations of redness to the complainant's vagina and anus on the basis that it supported the evidence of the complainant: Ts 772 ‑ 773;
(c)at the request of defence counsel, the trial judge directed the jury that they were not to speculate as to the date on which the complainant's grandmother had observed redness to her vagina and anus or that the observations had been made following the last occasion on which the complainant had slept over at the appellant's home: Ts 742 ‑ 744, 803;
(d)the trial judge did not give any directions:
(i)addressing the circumstantial nature of the evidence relating to the observations of redness;
(ii)the basis upon which the jury had been invited to use that evidence as being supportive of the complainant's evidence; and
(iii)nor did her Honour relate those issues to the circumstances of the evidence relating to the observations of redness, and its possible interpretation;
(e)although it was proper to invite the jury not to speculate about the matters identified by counsel, the nature of those directions were such that the trial judge was required, in the circumstances of this case, to give the directions referred to immediately above, in the absence of which there was a corresponding risk that the jury would fail to properly scrutinise whether the evidence concerning observations of redness did in fact support the evidence of the complainant.
6.A miscarriage of justice was occasioned by defence counsel's agreement to excise material portions of the complainant's child witness interview relating to her recollection of the events that underlined count 7 on the indictment. (particulars omitted)
Ground 3 - Longman direction - relevant evidence
The complainant's evidence consisted of an edited child witness interview recording and pre‑recorded evidence. She said that the appellant had done 'bad things' to her over a three‑year period whenever she went to the house for a sleepover.[17] For the purposes of this ground of appeal, it is sufficient to note that she referred to several different incidents but that she could not place them in time, other than to say that the count 1 incident was the first and that she was aged 9 at the time of that incident. In describing each incident, she referred to some surrounding details, such as the room of the house that the incidents occurred in and what movie was being watched. She could not remember how many sleepovers there were in total.
[17] Child witness interview ts 4.
The appellant gave evidence that soon after he became aware of the allegations, he began to gather information relating to the sleepovers. In particular, he extracted WhatsApp messages from his wife's mobile telephone relating to sleepover arrangements. He said that he was able to do that 'because the charged period was fairly close'. He then ensured that the information he gathered correlated with his memory of the events.[18]
[18] ts 672.
The appellant said that the complainant had five sleepovers at his house. He said that this was his independent memory and he confirmed it by checking the text messages. The appellant gave a detailed account of each of the sleepovers including; the dates, who picked the girls up, what occurred at the house, what outings they went on, what movies were watched and who was present. He relied on the WhatsApp messages for the dates, but maintained that he had an independent recollection of the other details. He had made inquiries regarding the release date of the movie, Jumanji: Welcome to the Jungle, in order to show that that movie could not have been amongst those watched during sleepovers at the house. He denied ever being alone with the complainant in S's bedroom or in his own bedroom. He denied that any sexual acts occurred.[19]
[19] ts 674 - 693, 701 - 703.
In cross‑examination, the appellant was asked when he first turned his mind to the sleepovers. He said that it was 'fairly soon' after he was charged by the police. He said that he and his family were permitted to go to Bali about two weeks later and that he spent a whole week 'focusing on [his] defence'. At that time, he made notes of his memories and had been able to rely on those notes subsequently.
Ground 3 - Longman direction - discussions at trial
The issue of whether a Longman direction should be given to the jury was raised at the completion of the evidence. The trial judge queried whether there was a relevant forensic disadvantage in this case. Defence counsel suggested that there was some disadvantage arising from loss of an opportunity to examine the complainant's underpants or the bedding in the master bedroom to determine whether semen could be detected. This related to the count alleging penile penetration (count 7).[20]
[20] ts 744.
The following exchange then occurred:[21]
[21] ts 744 - 745.
[HER HONOUR]: I don't think it gets that far though because certainly the authorities on my reading say that that isn't a lack of - the complaint could have been a week later and that still would have been lost, that forensic disadvantage. So effectively, to say that he lost that forensic disadvantage because of the delay, that's not necessarily the case.
[DEFENCE COUNSEL]: I guess I'm thinking it through while I'm on my feet. The issue with this case is we've got - we don't exactly know the dates of - - -
[HER HONOUR]: No.
[DEFENCE COUNSEL]: - - - when these things are supposed to have occurred. What we do know is there's a complaint sometime later. So whenever the complaint had have [sic] been brought, we still wouldn't necessarily know when it would've been a good idea to collect the sheets. I guess the lack of specificity has meant - maybe it's simply something that I'll be saying to the jury.
He doesn't know when the dates were. Obviously he's been denied an opportunity in a sense of, you know, gathering up those sheets, the doona cover or whatever of the master bedroom. Would've been something, I think, that if a complaint had have come out immediately after about that sexual penetration, it would've been something that would've been looked into.
[HER HONOUR]: All right.
[Prosecution Counsel]?
[PROSECUTION COUNSEL]: In the State's submission, particularly given the evidence that [the appellant] has given, there is no forensic disadvantage. [The appellant] has given completely concrete evidence, on his account, on five occasions and that nothing happened. And what's more, he himself has indicated that - to use the word evidence, but evidence materials have been gathered in support of his defence. And of course any forensic disadvantage doesn't relate to the section 36BD ‑ ‑ ‑
[HER HONOUR]: No.
[PROSECUTION COUNSEL]: - - - issue.
[HER HONOUR]: No. It does not.
The trial judge noted that the charged period went up to the date of the police complaint. That was the day upon which the appellant was asked to leave the family house. The State noted that the appellant would have been aware of the allegation from at least 9 July 2018. In the State's submission, there was no forensic disadvantage justifying the giving of a Longman direction. There was then the following exchange:[22]
[DEFENCE COUNSEL]: And I think that's just due to the lack of specificity of the complaints.
[HER HONOUR]: Well, there certainly will be a delay in complaint direction. And the usual issues surrounding that, but this is not a Longman case, in my view. There are not those forensic disadvantages, because the DNA that you speak of, that is lost within days. I mean, so there really isn't a Longman style direction that should be attendant with those risks. And [the appellant] himself has given evidence that he remembers these events in detail.
[DEFENCE COUNSEL]: Yes. Don't take the point any further.
[HER HONOUR]: All right.
[22] ts 746 - 747.
Ground 3 - defence closing address
In her closing address, defence counsel made submissions regarding the credibility of the appellant. Responding to the prosecution's criticism of the fact that the appellant had given a very detailed account of the five occasions that he said that sleepovers had occurred, defence counsel noted that the appellant had had the opportunity to consider the matter at length soon after the complaint was made. This included whilst the appellant was on holiday in Bali, when he had made extensive notes.[23]
[23] ts 793.
Defence counsel stressed the extent and thoroughness of the appellant's research. She said:[24]
So what does [the appellant] do? Well, like anyone would do if you've had these serious allegations put against you, you do some jolly research. What is going on? I've had this outrageous life‑changing, mortifying set of allegations against you, of course, you're going to turn your mind to everything you can possibly remember.
Of course, you are going to do every bit of research. Of course, you are going to get your wife's phone and go through it with a fine tooth comb. Of course you are going to write it down. This isn't something to be blasé about. This is your liberty. Of course you're going to look at that. Of course he does some research. Jumanji movie came out on Netflix in 2020. Post charge period. He tells us they watched the movies on the Netflix and so did the girls say it was Netflix. That's not something he's going to lie about because he admits that they watched the Ballerina movie, which is another occasion when the girl says something.
Later counsel said:[25]
The central thing on his mind at this trial was, 'I've got some really serious allegations against me and I'm going to make damn sure that I know all the details because I'm going to be in the witness box and I'm going to have to give evidence about it.' And isn't that what you would do? If someone said that you had sexually penetrated the little girl, would you think, 'Well, I'll just turn my mind to it if and when it ever goes to trial'?
Or would you be getting out your phone? Would you be talking to your wife? Would you be looking up every detail you could possibly think of because you were fighting for your liberty? You would write that down, would you not? Would you read over that, would you not? Isn't that perfectly normal?
What's he done? He's gone through the WhatsApp messages. He's got no reason to hide WhatsApp message[s]. He said to you he had 60 pages. These were the ones that dealt with the sleepover dates. That's what he put up there. So this whole issue in this trial about, 'How many sleepovers?' Well, the only reason [the appellant] has gone about it is because that's the truth. That's what he located on the WhatsApp messages. And it's become this big issue. And I suggest that there might have been some well and truly over‑egging by some of the witnesses as to the amount of sleepovers that could possibly have occurred.
But might I suggest that that probably doesn't assist you in your task. Whether there's five sleepovers or 10 sleepovers probably isn't going to assist you in your task. What I invite you to accept though is that [the appellant] was doing his best to be absolutely honest in his recollections and the evidence that he'd obtained with respect to the WhatsApp [messages].
[24] ts 784 - 785.
[25] ts 788 - 789.
Towards the end of her address defence counsel returned to the subject, saying:[26]
He can only do the best he can. Don't forget, no one's come to court saying, 'Look, this happened last night'. I mean, if it had have been something last night, he might be able to tell you exactly precisely where's where and we might send those sheets off for examination.
But this is after. This is sometime after. He's done the best that he possibly could. He's gathered evidence. He's prepared himself for trial. Wouldn't you? He ought not [to] be criticised for that. He's taking this very, very seriously.
Of course he's memorised dates. Would you not be memorising the dates? Would you not be trying to cast your mind as soon as he did? He spent that whole week in Bali, wrote down everything he possibly could. So he's not remembering from six years ago. He's remembering from six years ago plus all the notes he made.
[26] ts 793.
Ground 3 - appellant's submissions
The appellant submits that the learned trial judge erred by concluding that a Longman direction was not required in the circumstances of this case and in not giving such a direction to the jury. The appellant makes the following points:[27]
(1)On the evidence of State witnesses, the number of sleepovers that the complainant had at the appellant's house over the three years covered by the indictment were far in excess of the five occasions identified by the appellant. Estimates given by State witnesses varied between at least 53 sleepovers, about 60 sleepovers, and 72 or more sleepovers. These estimates were in addition to an unspecified number of 'play dates' the complainant had at the appellant's house.
(2)Not only did the State not adduce evidence of the dates or approximate dates on which any of the offences or uncharged acts were said to have occurred, it did not adduce evidence as to the dates, or approximate dates, of any of the sleepovers the complainant was alleged to have had at the appellant's house. The complainant was unable to state what her age was when any of the alleged charged or uncharged acts occurred. For example, in relation to count 7, she said that she might have been 8, 9 or 10 years old at the time.
(3)The State did not allege that any of the offences or uncharged acts occurred on any of the five occasions referred to by the appellant.
[27] WAB 21 - 22.
The appellant submits that there was a disadvantage to him arising from uncertainty as to the dates on which any of the counts had occurred. The appellant's case was that the complainant only slept over at his house on five occasions, which he identified and gave evidence about. The uncertainty as to when the alleged offences occurred placed him at a disadvantage in terms of being able to adduce evidence that either sleepovers had not occurred on those dates, or that nothing had happened because it was one of the five sleepover dates that he had nominated. If there had been a timely complaint, the appellant may have been able to say where he was at the relevant time.[28]
[28] WAB 28 - 31.
Ground 3 - respondent's submissions
The respondent submits that during the discussion with defence counsel at the trial, counsel did not request that a Longman direction be given. When the prosecutor raised the issue of delay in the context of s 36BD of the Evidence Act 1906 (WA), defence counsel referred to the evidence of the possible presence of semen on the complainant's underpants and to the loss of a possibility of them being examined or tested. The respondent submits that the trial judge's response, that such an opportunity would have been lost if the complaint had been made within a week, was correct.[29] It is well established that matters of this kind are not aspects of forensic disadvantage to which a Longman direction is directed.[30]
[29] WAB 68 - 69.
[30] JJR v The State of Western Australia [2018] WASCA 51; (2018) 272 A Crim R 209 [38] ‑ [39], [43] ‑ [44]; Criddle v The State of Western Australia [2017] WASCA 17 [160].
The respondent acknowledges that the failure of defence counsel to request a Longman direction, or to draw aspects of forensic disadvantage to the judge's attention, will not necessarily be fatal to a ground of appeal of this kind. While it is not necessary that an accused give evidence as to the forensic disadvantage he or she has suffered, the nature of such forensic disadvantage, and its existence in the circumstances of the particular case, must be more than matters of mere speculation. The respondent submits that, in the present case, the failure of counsel to make reference to any forensic disadvantages supports an inference that no actual forensic disadvantage arose from the delay.[31]
[31] WAB 69 - 70.
The respondent submits that the appellant's defence was not disadvantaged by reason of any delay. The appellant maintained that he had an independent recollection of the occasions when the complainant had a sleepover at the house. He relied on WhatsApp messages that he had retrieved from his wife's mobile telephone and which he said correlated with his own memory. He gave detailed evidence about the events that occurred during each of the five sleepovers that he referred to.[32]
[32] WAB 67 - 68, 73.
Ground 3 - relevant legal principles
In the majority of cases, the assessment of evidence can be left to the jury's experience unaided by judicial warnings. However, there are some occasions when a warning is required. A trial judge is obliged to give a warning to the jury if, in the circumstances of the particular case, the warning is necessary to avoid a perceptible risk of a miscarriage of justice.
The basis of the general rule was explained in the following terms by Brennan J in Carr v The Queen:[33]
A warning may be needed to ensure that the jury attributes the appropriate significance and weight to the evidence. That is a central aspect of the jury's function. In the majority of cases the assessment of the evidence can be left to the jury's experience unaided by judicial warnings but there are some occasions when a warning is needed. A warning is needed when there is a factor legitimately capable of affecting the assessment of evidence of which the judge has special knowledge, experience or awareness and there is a perceptible risk that, unless a warning about that factor is given, the jury will attribute to an important piece of evidence a significance or weight which they might not attribute to it if the warning were given. It is not possible to define a priori the circumstances in which a warning is necessary: the circumstances which show whether a perceptible risk of miscarriage of justice exists in relation to the assessment of evidence include the charge, the evidence and the conduct and atmosphere of the trial. (emphasis added)
[33] Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, 324 - 325.
In Eravelly v The State of Western Australia, this court considered the circumstances in which a warning may be required and said:[34]
The court's perception that a feature of the evidence is capable of affecting the significance of or the weight to be given to the evidence, and that this may not be appreciated by a lay jury, is of central significance in assessing the need for a warning and the terms in which any warning should be given. This is reflected in Carr, where Brennan J referred to certain categories of evidence which 'judicial experience (actual or inherited) has shown to be unsafe to act upon so frequently that a warning has become mandatory'. These general categories of case have been curtailed by statute, including by s 50 of the Evidence Act 1906 (WA).
Issues of reliability of evidence arising from matters, the significance of which may not be apparent to a jury, are also significant outside the categories of cases where a warning was mandatory under the general law. The need for a warning may arise from particular features of the evidence. For example, in Bromley, Brennan J recognised that a warning may be required where there is a real and substantial danger in acting on the evidence of a person with a mental disorder, when the conduct of the trial and the evidence as to the witness' mental disorder are such that the jury may not have perceived, or the jury's attention may have been diverted from, the danger.
[34] Eravelly v The State of Western Australia [2018] WASCA 139 [20] - [21].
A Longman direction is an example of such a warning. The primary rationale for giving a Longman direction 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 opportunity to adequately test the complainant's evidence and the opportunity to adequately marshal a defence.
In Longman, the accused was convicted on two counts of indecently dealing with his stepdaughter after a trial that occurred more than 20 years after the alleged commission of the second offence. The High Court considered the directions given by the trial judge to be inadequate. The plurality expressed their view in the following terms:[35]
[T]here is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's [sic] recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient. (citations omitted)
[35] Longman [91] (Brennan, Dawson & Toohey JJ).
When a Longman direction is necessary, there is no prescribed form of words and the warning must be tailored to the specific circumstances of the case. However, the trial judge must, in effect, direct the jury that, as a result of the substantial delay, the accused has lost the opportunity to adequately test the complainant's evidence and the opportunity to adequately marshal a defence. The jury must be instructed 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, the jury 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. The warning must be given as a direction which the jury is bound to follow. A mere comment will not suffice.[36]
[36] DWM v The State of Western Australia [No 2] [2019] WASCA 143 [34] (Buss P & Mazza JA).
In DWM v The State of Western Australia [No 2],[37] Buss P and Mazza JA said that the length of the delay that gives rise to the necessity for a Longman direction cannot be stated with mathematical precision. The critical issue is whether any delay in complaint creates a forensic disadvantage to an accused in respect of adequately testing the complainant's allegations, or adequately marshalling a defence, compared with the situation where the complaint is one of reasonable contemporaneity. However, the shorter the delay, the more difficult it is for an accused to assert that he or she has lost the opportunity to adequately test the complainant's evidence, or the opportunity to adequately marshal a defence. The length of any delay needs to be viewed in the context of the particular facts of the case.[38]
[37] DWM [26], citing Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234 [181] - [182] (Crennan J).
[38] Liddington v The State of Western Australia [2005] WASCA 60; (2005) 152 A Crim R 502 [72].
Ground 3 - the merits
In the present case, the complaint to the police was made on 17 June 2018. The offences were alleged to have occurred on unknown dates in the preceding period of approximately three years. Accordingly, it is impossible to determine exactly how long had elapsed between the occurrence of the incidents and the making of the complaint, except to say that it was something less than three years.
At the trial the only forensic disadvantage identified was the loss of an opportunity to test the underwear and bedding in relation to count 7. As the trial judge correctly pointed out, this was an opportunity that would likely have been lost soon after the incident. It is not a disadvantage that arose from any relevant delay in making a complaint. Defence counsel at the trial accepted that approach, and did not press for a Longman direction.
On the appeal, the contention is that the appellant was at a disadvantage due to the inability of the complainant to identify the precise date or occasion on which any of the incidents were alleged to have occurred. The implication is that if the complainant had nominated dates, the appellant may have been able to gather additional evidence or test the complainant's account to a greater extent. It was not suggested at the trial that this was a disadvantage that required a warning to avoid a perceptible miscarriage of justice.[39]
[39] Appeal ts 44.
At the hearing of the appeal, counsel for the appellant was asked to formulate the direction that should have been given to the jury. A form of direction was subsequently filed with the court. Although that direction referred to delay, the disadvantage identified was one that arose from the uncertainty as to when the alleged offences occurred. The disadvantage was referred to in the following terms:[40]
Had the allegations been brought to light and the prosecution commenced much sooner, it would have been expected that the complainant's memory [of] details would have been much clearer. This may have enabled her evidence to be checked in relation to those details against independent sources to test it.
The complainant's inability to recall precise details and the circumstances surrounding both the charged and, importantly, the other conduct, has made it more difficult for the accused to throw doubt on her evidence by pointing to circumstances which may contradict her.
Another aspect of the [appellant]'s disadvantage is that had he learned of the allegations at a much earlier time, he may have been able to find witnesses or items of evidence that might have contradicted the complainant or supported his case or both, particularly in relation to the sleepovers that are alleged to have occurred beyond the five occasions on which the [appellant] accepts that there were sleepovers at his home.
He may have been able to recall with some precision what he was doing at the times when the other conduct is said to have occurred, where he was at the particular times on particular dates, and have been able to bring forward evidence to support him.
You should also consider that because of the delay, the [appellant] has lost the opportunity to bring forward evidence from independent sources, including witnesses who may have been with him at the times when the other conduct is said to have occurred, evidence that might tend to show that he was elsewhere or that the complainant was elsewhere on those dates.
[40] Appellant's memorandum (CACR 82 of 2023), filed 30 August 2024, 2 - 3.
Counsel for the appellant accepted that he was submitting that it was incumbent upon the trial judge to give a direction, to avoid a perceptible risk of a miscarriage of justice, to the effect that the appellant was put at a disadvantage in cross‑examining the complainant because of her failure to give or to make a more prompt complaint in relation to each and every incident. Had she done so, she would have been able to give more specific evidence about each incident. And the appellant would have been in a position to respond specifically in relation to each and every occasion beyond simply saying, as he did, 'There were only five sleepovers'.[41]
[41] Appeal ts 47.
The suggestion that the appellant lost an opportunity to marshal a defence case does not sit comfortably with the way in which the defence was conducted at trial. The appellant gave evidence that after becoming aware of the complaint, he had an opportunity to consider the allegations. He said that he had a good memory of the times when the complainant came to his house for a sleepover. He said that there were only five such occasions and that there was no sexual conduct. He was able to check the dates of those occasions against the WhatsApp exchanges on his wife's telephone. At the trial, the concern of defence counsel was to explain why the appellant had been able to give such detailed evidence, rather than suggesting that he was labouring under any unfair disadvantage. A direction to the effect that delay had prejudiced the appellant would have been inconsistent with the defence case.
This is not a case where, by reason of delay, the appellant was deprived of a fair opportunity of disputing that the incidents described by the complainant had occurred. The claimed disadvantage was not due to the passage of time, but rather due to the uncertainty of the dates of the offences. If the complainant had nominated dates, two possibilities could have arisen. First, that those dates coincided with one or more of the five sleepovers that the appellant identified. If that was the case, then there was no obvious disadvantage. Second, that the dates were not one of the five sleepover dates identified by the appellant. In that event, the appellant's position would have been that the sleepover referred to did not occur at all. It is not apparent what, if any, other evidence might have been adduced in that regard, or how the cross‑examination of the complainant would have been different. The disadvantage must be based on something more than mere speculation.
Even if it was the case that there was some forensic disadvantage arising from the uncertainty of the dates, that would not have justified a warning in the circumstances of this case. The range of dates for the offences was readily apparent to the jury. It is unlikely that this is a factor that the jury would have overlooked when determining whether to reject the appellant's evidence and whether they were satisfied beyond reasonable doubt that the alleged sexual acts had occurred. Nor are the possible effects of uncertainty as to the dates something which judges have any special knowledge, experience or awareness about. A direction is not required to address disadvantages that are obvious.
In summary, there was no forensic disadvantage arising from delay. A Longman direction was not sought at the trial and would not have been appropriate in the circumstances of this case. As to whether a direction should have been given regarding forensic disadvantage arising from uncertainty in the dates of the offences, such a direction was not sought at the trial and the disadvantage now claimed does not rise above the level of speculation. In any event, it is not a disadvantage that a jury would fail to appreciate in the absence of a warning. A warning was not required to avoid a perceptible risk of a miscarriage of justice.
In our view, this ground of appeal has no reasonable prospect of succeeding and leave in respect of it should be refused.
Ground 4 - the relevant evidence
The complainant's grandmother, GH, gave evidence that on two occasions she observed redness on the complainant's anus and vagina:[42]
[42] ts 646 - 647.
Were there ever occasions, following the sleepover - so after a sleepover that [the complainant] had at [S]'s house that you made some observations of [the complainant]'s vaginal and anal areas? You - you're nodding - - -?---Yes.
- - - [GH]?---Yes.
How many occasions were there where you'd observed something of - - -?---There were - - -
- - - [complainant]'s - - -?---There were two.
Can you describe what you observed on the first of those two occasions?---The - the first one she complained about having a sore bottom. And I had a look, and it was red. Both anal and vagina.
Can you describe - and so - sorry. Before I ask you that, this occasion that you've just described, was that after a sleepover that [complainant] had - - -?---Yes.
- - - at [S]'s house?---Yes. Yes.
Can you describe what you observed on the second occasion?---Her - her vagina and anus [were] red, raw. Red, raw.
And the second occasion, was that also - - -?---The - the second occasion was red, raw.
Was that following the sleepover that - - -?---Yes. She'd - - -
- - - [complainant] had?--- - - - come back. It was a Sunday afternoon, and she'd come home. And my son, getting ready for bed and that and ran her a bath, and she had a bath. And she said to - - -
Sorry, you - you don't have to say what it was she said. Was something then said that resulted in you examining - - -?---Yes. - - -
[complainant]'s vaginal and anal areas?---Yes.
And you've said that the second occasion was a Sunday?---Yes. She'd come back from a stayover.
In cross‑examination, GH agreed that she did not take the complainant to the doctor after making these observations.[43] In re‑examination, she gave the following explanation:[44]
[W]hy did you not take her to the doctor then?---The first time, because of working pharmacy and all that I put it down to maybe she's got a case of worms, threadworm, and you know, scratching or whatever kids do. I used to - my own children and all that, because it's so easily sort of picked up so I put it down to that.
What about the second time?---The second time I - I had lights flashing. I had red bells going off. I just - I froze. I panicked. I knew something had definitely happened. It was just - just - and I'm thinking, oh, I'll just - yeah, what do I do. I couldn't think. I'm thinking where's the doctor - is there a doctor open, or whatever. I just - it was just traumatic. I just - yeah - just - I couldn't think, I just froze. I just thought, no, no, you know.
[43] ts 654.
[44] ts 655.
Dr Alice Johnson, a medical practitioner and paediatrician, was called as a State witness. She gave evidence as follows:[45]
And in relation to any observed redness of the area of the - the vaginal or anal area of a - of a child, what, if anything, might that redness indicate?---Well, redness is what we call a nonspecific finding. It's also quite subjective. So what some person - one person calls redness another might - person might call normal. But a nonspecific finding means that it can be due to many different things, as opposed to a specific finding like say a bruise or a scratch is only due to trauma. But redness is a nonspecific finding. It could be due to trauma or it could be due to infection or irritation or an allergy or - or sometimes even poor hygiene.
But is it the case that redness could be caused by an injury, a trauma?---It could be, yes.
And that trauma might include a penetration event of the - of the vagina?---That is possible.
[45] ts 658.
In cross‑examination, Dr Johnson said that the complainant was referred to her by the police and not by any family member, and that she did not observe any redness to the child's vagina or anal area when she examined her.[46]
[46] ts 659.
During cross‑examination of the appellant, the jury sent a note to the judge which included a question: 'What date did [the complainant's] grandmother discover the redness around [the complainant's] vagina and anal area on the second occasion?' The trial judge answered the question by saying that the jury should listen to all of the evidence, the closing addresses, and the directions on that evidence and that if the jury still had questions that remained, the jury could ask those questions then.[47]
[47] ts 729.
Ground 4 - closing addresses and judge's directions
In closing address, the prosecutor referred to what Dr Johnson had said, and stated:[48]
So, you cannot say what caused that redness that [GH] observed to [the complainant's] vaginal/anal areas. The State does not shy away from that fact. The State does not shy away from the fact that the redness could be due to something other than trauma.
But, that observed redness, in combination with Dr Johnson's evidence, lends credence, support, to [the complainant's] account of penetration events during sleepovers. And so you may wish to take that into account when you assess the credibility of [the complainant's] testimony.
[48] ts 773.
Defence counsel in her closing address submitted that:[49]
Now, the grandmother, [GH], talks about redness on the child's return and 'red raw', was her expression after the second one. No mention of the child saying anything to granny or to [the complainant's father] about that. No inquiry appears to have been made with the child about that.
We've heard from the doctor that redness doesn't necessarily mean anything. We know that the doctor didn't see anything unusual. We know significantly that [GH], the grandma, did not take the child to the doctor so that spiel she gave in re‑examination of, 'I just knew. I didn't know would there be a doctor open', and then does nothing. I suggest there might be a little bit of rear view mirror, maybe a bit of guilt on grandma's behalf, things coming out.
Maybe you want to reconsider or have a think about how red was that vagina or anus but also to have a think about that in terms of what the doctor said about that. There can be all sorts of reasons children get redness and adult women get redness. Doesn't necessarily mean anything at all. And of course, the doctor's examination was that there was nothing abnormal with respect to [the complainant's] genitalia and, again, wouldn't necessarily expect that.
[49] ts 789 - 790.
In directing the jury, the trial judge gave standard directions about the importance of not speculating about things that were not established by the evidence. In that context, the trial judge referred to the redness evidence:[50]
You also heard evidence from [GH] - that was [the complainant]'s grandmother - that she observed redness to [the complainant]'s vagina and anal area on two occasions. She said that the second time she observed this redness was on a Sunday when [the complainant] had returned from a sleepover at [S]'s house the night before. She said that [the complainant's] vagina and anal area were red raw.
Now, there is no evidence as to the date that she observed this redness. You should not guess or speculate as to the date that she observed this or as to whether or not [the complainant] has a sleepover at the [appellant's family's] house some time after she observed this redness. Rather, you must decide the case only on the basis of the evidence that is before you.
[50] ts 803.
Later, the trial judge referred to the evidence of Dr Johnson in the context of an expert evidence direction:[51]
I'll now say something about expert evidence. You heard evidence from Dr Alice Johnson, a consultant paediatrician in the Child Protection Unit at Perth Children's Hospital. Dr Johnson examined [the complainant] on 29 June 2018. She gave evidence that the results of that examination were normal, and that the lack of any injuries when [the complainant] was examined was a neutral finding. Meaning that it neither confirms nor refutes an allegation of sexual abuse.
Dr Johnson also gave evidence that redness of the genital area is a nonspecific finding. Meaning that it could be as a result of many things such as an infection, an irritation, an allergy, poor hygiene, or it was possible that it could be the result of an injury. Dr Johnson also said that an observation of redness was a [subjective] finding.
[51] ts 808.
In summarising the defence case, the trial judge noted that defence counsel referred to the evidence of redness given by GH; that she had not taken the complainant to a doctor; and that Dr Johnson had said that the redness could be caused by a number of factors.[52]
[52] ts 820.
Ground 4 - appellant's submissions
There are two limbs to this ground. The first limb contends that the evidence of GH regarding her observations was inadmissible. This is said to be because the observations could not be linked to any of the charged acts. Further, it is said that the evidence could not logically support the complainant's evidence because of the variety of ways in which redness might arise. The second limb is that, even if the evidence was admissible, there should have been a direction as to how the jury could use that evidence.[53]
[53] Appellant's minute of proposed orders (CACR 82 of 2023), dated 21 August 2024, 2 - 3, 5.
The appellant submits that whilst the trial judge referred to the redness evidence, she gave no directions to the jury as to the use of the evidence, other than stating that the jury should not guess or speculate as to the dates that GH made her observations, or whether or not the complainant had slept over at the appellant's house immediately prior to the observation. This direction was given in response to a request by the defence counsel that the jury be told not to speculate as to the date of the observations in case they mistakenly thought that this was when the sleepovers stopped and the appellant was charged, when there was no evidence as to this.[54]
[54] Appeal ts 61 - 62; WAB 33.
The appellant submits that in the absence of appropriate directions by the trial judge, the evidence had the real potential to operate unfairly to the detriment of the appellant. In a 'word-against-word' case, where there was no independent evidence supporting the complainant's allegations, this evidence, without appropriate direction by the trial judge, could well have affected the outcome. The appellant submits that the significance of the evidence was revealed by the question asked by the jury.[55]
[55] WAB 33 - 34.
The appellant submits that having regard to the uncontested evidence of Dr Johnson, the trial judge should have directed the jury that the State's submission that the redness evidence supported the prosecution case was incorrect. Her Honour should have directed the jury that the cause of the redness could not be known and was a matter of speculation, and that it could not be used as lending support to the complainant's account of penetration events and her own credibility.[56] The appellant's counsel provided a form of the direction that he said should have been given, which concluded with a direction to disregard the evidence entirely.[57]
[56] WAB 34.
[57] Appellant's memorandum (CACR 82 of 2023), filed 30 August 2024, 5 - 7.
Ground 4 - respondent's submissions
The respondent submits that ground 4 is fundamentally misconceived. The ground asserts miscarriages of justice because no complaints of the kind raised on appeal were made by counsel during the trial. The respondent submits that the evidence was admissible circumstantial evidence capable of supporting the State case. The only comment made by defence counsel on the topic of redness during her closing address was that it 'doesn't necessarily mean anything at all'.[58]
[58] WAB 74.
The respondent submits that it is necessary to note the basis on which the evidence was admissible in order to determine the judicial directions which ought to have been given. Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings.[59]
[59] WAB 74 - 75.
The respondent submits that the basis of the admissibility of the evidence was that it was circumstantial evidence which was capable of affecting the jury's assessment of the complainant's direct evidence. Whether it did support the complainant's evidence was a matter for the jury. Its significance had to be considered in the context of the whole of the evidence. The jury were entitled to have regard to the inherent improbability that the redness observed in the areas of the complainant's vagina and anus on two occasions shortly after she returned from the appellant's house was a matter of mere coincidence. It was open to the jury to take the view that the evidence of the redness supported the complainant's credibility because the existence of the redness at the times and in the circumstances in which it was observed, was consistent with the complainant's testimony.[60]
[60] WAB 75.
The respondent submits that the prosecutor did not argue that the redness was capable of supporting an inference of guilt. In fact, he emphasised, on the basis of the evidence of Dr Johnson, that what caused the redness was uncertain and that it could have been due to something other than trauma. He submitted that it lent support to the complainant's account of sexual penetration having occurred during sleepovers. The respondent submits that the prosecutor should be understood as saying that, viewed in isolation, there were possible causes other than trauma; however, the presence of redness seen twice shortly after the complainant returned from sleepovers lent support to her testimony that the appellant engaged in sexual offending against her during those sleepovers. It was axiomatic that the jury could not use evidence of the presence of redness as supporting the complainant's allegations, if the jury considered that the presence of redness was caused by something other than trauma.[61]
[61] WAB 76.
The fact that counsel did not seek directions of the type that the appellant now contends were necessary, provides ample evidence that those involved in the trial understood that nothing more needed to be said. The possibility that the jury would understand that they could use the evidence of redness to support the complainant's credibility, despite finding that it was caused by something other than sexual trauma, was so fanciful as not to require judicial direction.[62]
[62] WAB 76.
Ground 4 - the merits
Circumstantial evidence that is consistent with the account given by a complainant in a sexual case may be admissible as being relevant to credibility. An example of this is where the complainant has displayed marked behavioural changes.[63] The fact that there may be other possible explanations, does not deprive this evidence of its relevance. Whilst consistency in this sense may not require a causal connection, it does at least require that there be a possible plausible connection.[64] The evidence is relevant in determining whether the account of the complainant is credible. An account that is consistent with the surrounding circumstances will generally be more credible than an account that is not.
[63] MCA v The State of Western Australia [2019] WASCA 22.
[64] Akkerman v The State of Western Australia [2021] WASCA 51 [128] (Hall J).
In the present case, Dr Johnson's evidence established that a plausible explanation for the redness observed by GH was trauma, though it was not the only possible explanation. In these circumstances, the evidence of GH was admissible as consistency evidence, that is evidence that was consistent with the complainant's account of being sexually penetrated. The fact that the redness observations could not be linked to any specific charge due to the uncertainty as to the dates of both the charges and the observations, did not deprive the evidence of its relevance as consistency evidence. It was accepted at the trial that the evidence was admissible on this basis. Accordingly, the first limb of ground 4 cannot succeed.
As to the second limb of ground 4, in some cases where evidence is admissible for a limited purpose, and there is a risk that the jury may misuse the evidence; a direction may be required. That risk may be influenced by whether the prosecutor leaves the use at large.[65] The question is whether, in all of the circumstances, there is a perceptible risk that the jury will misuse the evidence such as to cause a miscarriage of justice.
[65] Akkerman [120] (Hall J).
In the present case, the evidence was only admissible for the purpose of considering the credibility of the complainant. It could not constitute independent evidence of the commission of any of the charged offences, because it could not be linked to any particular charged offence, and because there were other possible explanations. However, the prosecution made it clear that the evidence was only being relied on in this limited way. It was never suggested that the evidence was corroborative of any of the counts on the indictment. The lack of any proven connection between any of the charged offences and the redness observations, was stressed by both the prosecutor and the trial judge.
It is also relevant that defence counsel at the trial (who is an experienced and competent criminal defence lawyer) did not seek a direction of the type the appellant now says is necessary. The risk of misuse that is now suggested was not perceived by any of those who were involved in the trial.
The appellant's suggestion is that the trial judge was required to give a direction that the evidence could only be used as consistency evidence. In other words, it could not independently prove that there had been any alleged act of penetration. The necessity for such a direction is far from apparent in circumstances where there was no suggestion that the evidence could be used in such an inappropriate way, and where the evidence did not lend itself to such use. Having regard to all of the circumstances, there was no perceptible risk that the jury might misuse the evidence. The directions of the trial judge in respect of this evidence were adequate.
This ground is without merit and leave in respect of it should be refused.
Ground 6 - relevant evidence
In essence, by this ground the appellant submits that portions of the child witness interview, which were edited out, had the potential to reflect negatively on the credibility of the complainant. The appellant accepts that these edits were made by consent but submits that there was no rational forensic purpose to be served by this consent.[66]
[66] Appellant's minute of proposed orders (CACR 82 of 2023), dated 21 August 2024, 4.
The appellant seeks to adduce additional evidence being an affidavit annexing a marked‑up copy of the transcript of the child witness interview of the complainant.[67] The affidavit of Mr Anthony Karstaedt, the appellant's former counsel in the appeal, states that the parts of the transcript highlighted in yellow were the parts deleted for the first trial. The parts highlighted in blue were additional parts deleted for the second trial. It is necessary to note at this stage that the first trial referred to occurred in May 2021.
[67] Application in an appeal (CACR 82 of 2023), filed 8 April 2024.
At the appeal hearing, counsel for the appellant focussed on one passage that was deleted prior to the first trial:[68]
[68] YAB 45 - 46.
Q. Yeah, okay. All righty. And I heard that you told dad, um - well, actually I heard that you told mum that he forced his willy in your vagina. Did you tell mum that he forced his willy in your vagina?
A. Yeah.
Q. Yeah. So tell me about a time where he forced his willy in your vagina.
A. Like, he just got - I can't remember. But, like, I - I know - I know that he did that - - -
Q. Yeah.
A. - - - but I just forgot how he did it.
Q. Okay.
A. Yeah, I just kind of forgot how he did it.
Q. Uh, is there a time that you remember - - -
A. (Indistinct) - - -
Q. - - - it happening in particular - like, what room did it happen in?
A. I'm not sure. I think in the bed - bedroom or living room.
Q. Okay.
A. Those are the (indistinct) the two that I know. Definitely bedroom or living room.
Q. Okay. Okay. And so what happened when he put - forced his willy in your vagina?
A. Oh - um - um, I don't know.
Q. Okay.
A. (Indistinct).
Q. Was anything different about your body after he did that?
A. No, nothing.
Q. No. Okay. Um - - -
A. It - it kind of felt, like, a bit jiggly and - ugh.
Q. Yeah.
A. I feel disgusted as well.
Q. Yeah. Okay. I heard that you told dad about something that happened to your bottom. Did you tell dad about something that happened to your bottom?
A. No.
Q. Mm. No?
A. (No audible answer).
Q. Okay. I heard that you told mum about having sex. Did you tell mum about having sex?
A. Well, my - well, um, I don't say that to my mum.
Q. You didn't say that to mum?
A. (No audible answer).
Q. No?
A. Wait, did you hear us in the corridor (indistinct) - - -
Q. No, no, no, I didn't hear you in the corridor. But if we got that wrong we got that wrong. That's okay.
A. Well, he actually does.
Q. Yeah.
Ground 6 - appellant's submissions
The appellant submits that the extracted passage shows the complainant to be vague and uncertain about the count 7 incident of penetration. In the pages immediately following this, she gives a more detailed account of what she said occurred. The appellant suggests that the removal of the deleted passage gave the more detailed account the appearance of being spontaneous and reliable. It is said that had the deleted part been retained, it would have cast doubt on the complainant's reliability. The appellant did not suggest that there had been any improper influence by the complainant's mother during any break in the interview.[69]
[69] Appellant's minute of proposed orders (CACR 82 of 2023), dated 21 August 2024, 4.
Ground 6 - respondent's submissions
The respondent submits that whether or not the passage in question should have been edited out is a matter about which different counsel might come to different views. However, it is not open for an appellant to argue that simply on the basis that he was convicted, the forensic decisions made by his counsel must have been wrong. There were parts of the passage that were potentially adverse to the appellant. Further, what was displayed by the complainant was a difficulty in articulation rather than a difficulty in memory. Counsel could reasonably take the view that, on balance, it was better to leave the passage out.[70]
[70] Appeal ts 80.
Ground 6 - the merits
The legal principles applicable to a ground of appeal that alleges that a miscarriage of justice has occurred due to the conduct of defence counsel are well established.[71] An appellant must demonstrate that the conduct of his or her counsel caused a miscarriage of justice, a task which constitutes a heavy burden.[72] That is a consequence of the adversarial nature of a criminal trial and the role and function of counsel.
[71] Huggins v The State of Western Australia [2018] WASCA 61 [375] - [401].
[72] TKWJ v The Queen[2002] HCA 46; (2002) 212 CLR 124 [74] (McHugh J).
Ordinarily, an accused is bound by the way the trial is conducted by counsel in relation to matters within counsel's remit, regardless of whether that is in accordance with the wishes of the client. It is not a ground for setting aside a conviction that decisions made by counsel on matters within counsel's remit were made without, or contrary to, instructions, or involved errors of judgment or even negligence.[73] Counsel is entrusted with the wide discretion as to how the case should be run, and decisions including what witnesses should be called or what questions should be put in cross‑examination are, generally speaking, within the remit of counsel. Thus, it will not be enough for an appellant to merely express disagreement with the decisions made by counsel. Significantly more is required to establish a miscarriage of justice.
[73] TKWJ [74], [79] (McHugh J); R v Birks(1990) 48 A Crim R 385; (1990) 19 NSWLR 677, 685 (Gleeson CJ).
This court does not examine whether a decision taken by the appellant's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage. Rather, the court is concerned only with whether the counsel's decision is capable of explanation on that basis. That is, could there be any reasonable explanation for the decision? The test is objective in character.[74]
[74] Morgan v The State of Western Australia [No 2][2019] WASCA 185 [205] ‑ [206].
In the present case, the edits were made with the consent of defence counsel. In respect of the impugned passage, that decision was made prior to the first trial. There was ample opportunity to reconsider that decision prior to the second trial. Clearly, consideration was given to the interview as further edits were made for the second trial. There is no reason to think that the consent to the edits was anything other than a considered decision. Neither counsel at the first trial, nor counsel at the second trial, made a submission to the effect that some of the deleted parts should be reinstated. The appellant is bound by the conduct of his case at trial. It is not open to run an alternative case on appeal.
Had the excised portion gone into evidence, the jury would have had before it an assertion by the complainant that the appellant forced his penis into her vagina and that it felt 'a bit jiggly and - ugh' and that the complainant felt 'disgusted as well'. Defence counsel might reasonably have taken the view that the appellant was better off without the excised portion, even if it meant that a possible line of attack regarding reliability would be lost. Counsel might reasonably also have taken the view that the change that occurred after the impugned passage was removed might be explained by the complainant overcoming her reluctance to speak about the most serious incident (involving penile penetration) after having a break, rather than the change being indicative of a lack of credibility or reliability. It was well open for competent counsel to conclude that the adverse consequences of admitting the excised portion outweighed any potential benefits.
Ground 6 has no reasonable prospect of succeeding. Leave in respect of this ground should be refused.
Conclusion
For the reasons that we have given, leave in respect of grounds 3, 4 and 6 should be refused. The appeal should be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MO
Associate to the Honourable Justice Hall
7 JANUARY 2025
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