Vo v The State of Western Australia

[2010] WASCA 24

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   VO -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 24

CORAM:   MARTIN CJ

OWEN JA
BUSS JA

HEARD:   21 SEPTEMBER 2009

27 OCTOBER & 9 NOVEMBER 2009 (ON THE PAPERS)

DELIVERED          :   12 FEBRUARY 2010

FILE NO/S:   CACR 11 of 2009

BETWEEN:   TUNG THOI VO

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :GOETZE DCJ

Citation  :THE STATE OF WESTERN AUSTRALIA v VO

File No  :IND 832 of 2008

Catchwords:

Criminal law - Appeal against conviction - Aggravated indecent dealing with a child between the age of 13 years and 16 years - Whether trial judge's direction as to use which jury could put evidence of complainant's distressed condition adequate - Whether verdict unsatisfactory, unsafe and not supported by the evidence

Legislation:

Evidence Act 1906 (WA), s 36BB, s 50

Result:

Leave to appeal granted on grounds 3 and 4
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr T F Percy QC

Respondent:     Mr P D Yovich

Solicitors:

Appellant:     Talbot Olivier

Respondent:     Director of Public Prosecutions (WA)

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

Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19

Eades v The Queen [2001] WASCA 329

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389

Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1

Prazmo v The State of Western Australia [2009] WASCA 25

R v Brdarovski [2006] VSCA 231; (2006) 166 A Crim R 366

R v Flannery [1969] VR 586

R v McDougall [1983] 1 Qd R 89

MARTIN CJ: 

Introduction

1. The appellant, Tung Thoi Vo, was charged with four counts of aggravated indecent dealing with a child between the age of 13 years and 16 years.  All offences were said to have been committed on the same day and against the same complainant.  The circumstance of aggravation alleged was that the complainant was under his care, supervision or authority (being his employee).  Count 1 alleged indecent dealing by touching the complainant on the thigh, count 2 by kissing her on the mouth, count 3 by touching her breast, and count 4 by touching her thigh.  After a trial by jury, the appellant was acquitted by the verdict of the jury of counts 2 and 3, being the counts relating to kissing on the mouth and touching the breast, but convicted of counts 1 and 4, being the counts relating to touching on the thigh.

2. The appellant appeals against his conviction on those counts.  The context for a consideration of the grounds of appeal is best set by a short summary of the case that was put against the appellant on behalf of the State.

The State's case

1. The complainant was born on 15 February 1992.  She left school before completing year 10 in order to pursue a career as a beautician.  She was employed by the appellant who owned a chain of stores, trading under the name 'Gentle Nails', providing beauty services relating to fingernails.

2. The complainant worked in the appellant's store for several months.  Her work had not been regarded as entirely satisfactory by the appellant, who had reprimanded her as a result of her leaving her duties to walk around the shopping centre in which the store was located and for talking to friends during the course of her employment.

3. On one occasion the appellant took the complainant to Rockingham Beach where he gave her an alcoholic drink, and they chatted.  The complainant mentioned that she was interested in pursuing a career in modeling, after which the appellant offered to take photographs of her in her bikini and to introduce her to contacts he had in the fashion industry.

4. A few weeks later, the appellant invited the complainant to a lunch to be held on Melbourne Cup day, 6 November 2007.  This was the day upon which the offences were said to have been committed.  The complainant was then 15 years of age.

5. The appellant told the complainant to wear a nice dress for the lunch.  She endeavoured to comply with that request.  However, when the appellant arrived at the store at a time that would be rather late for any lunch, he told her that her dress was not nice enough, so they travelled in a car to a shopping centre in order to buy her a new dress.

6. The appellant and the complainant travelled to the shopping centre in a car owned by the appellant's brother.  The State's case was that during the course of that journey, the appellant placed his left hand on the right thigh of the complainant, touching her skin, sliding his hand up her thigh, pushing her dress up as he went.  The State alleged that the appellant's hand approached, but did not make contact with the complainant's private parts.  The State alleged that the touching on the thigh continued for most of the journey.  This allegation was the subject of count 1 on the indictment.

7. The State also alleged that during the course of this journey, the appellant tried to kiss the complainant on the lips, succeeding on one occasion.  This was the subject of count 2 on the indictment.  The appellant was acquitted on that count.

8. The State further alleged that after parking the car at the shopping centre, the appellant left the vehicle and approached the complainant, hugging her, placing his hand on her buttock and then gently squeezing her breast.  This was the subject of count 3 on the indictment.  The appellant was acquitted on this count.

9. The State alleged that the appellant and the complainant went into the shopping centre where the appellant purchased a new dress, at a cost of $75, and a new pair of shoes, at a cost of $50, for the complainant.  The State also alleged that during this time in the shopping centre, the appellant told the complainant that they would travel to the casino where he would introduce her to a 30‑year‑old man, with whom they would have fun and that there was no need for her boyfriend to know about it.

10. The State alleged that the various acts of touching by the appellant, and the proposal to go to the casino had caused the complainant to become concerned.  After the clothing had been purchased, while the appellant went to collect his car (which had been left there earlier), the complainant sat in a bricked area at the exterior of the shopping centre and telephoned her mother, requesting her to insist that the appellant return her home by 5.00 pm, if the appellant made contact with her.  During the course of that telephone call, the complainant said nothing to her mother about being touched by the appellant.

11. On the State's case, the complainant asked the appellant to take her home.  While he eventually agreed to this course, he took a substantial detour in order to show the complainant a property which he intended to buy in Byford.  The State alleged that during this journey, the appellant again placed his hand on the complainant's thigh.  This was the subject of count 4 on the indictment.

12. The State's case was that the complainant became so concerned at the appellant's conduct that during the journey, she contacted a family friend, Ms Vickers, by mobile phone.  She continued a lengthy conversation with Ms Vickers because, according to the State, she was concerned at what the appellant might do.

13. It was eventually agreed that the appellant would take the complainant to Ms Vickers' house.  He stopped to purchase alcoholic drinks on the way.  They arrived at the house, and the complainant tried on the dress and shoes which had been bought for her by the appellant.  Ms Vickers' husband, Mr Sheppard, then arrived at the house.  The complainant spoke to Mr Sheppard in very general terms, saying that she had not had a good day but that she would not be able to say more until the appellant had left.  The appellant eventually left, at which time the complainant gave him a hug as he departed.  After the appellant left, the complainant, upset and in a state of distress, complained to Mr Sheppard about the appellant's conduct.  Mr Sheppard told Ms Vickers, who contacted the complainant's mother, who came to the house.  The complainant then told her mother what she said had occurred during the day, and the police were contacted.

14. Some weeks later, on 26 November 2007, the complainant was interviewed by police.  The interview was recorded and played in evidence to the jury.  The complainant also gave evidence and was cross‑examined.  The complainant's mother, Ms Vickers and Mr Sheppard also gave evidence.  The appellant did not make a statement to police and did not give evidence.

The grounds of appeal

1. There are four grounds of appeal.  Ground 1 asserts that the trial judge erred by failing to adequately direct the jury as to the use to which they could put the evidence of the distressed condition of the complainant.  Ground 2 asserts that the trial judge erred by rhetorically asking the jury why the complainant would lie, contrary to the rule in Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1. Ground 3 asserts that if neither grounds 1 nor 2 are in themselves sufficient to result in a substantial miscarriage of justice, such a miscarriage was occasioned by the grounds in combination. Ground 4 asserts that the verdict of guilt on counts 1 and 4 should be set aside as being unsatisfactory, unsafe and not supported by the evidence. Leave to appeal has been granted in respect of grounds 1 and 2. The question of leave to appeal in respect of grounds 3 and 4 was referred to this Court.

Ground 1

1. Ground 1 asserts that the trial judge failed to adequately direct the jury as to the limited use which they could put the evidence that was given regarding the complainant's distressed condition at the time she complained of the appellant's behaviour.  In argument, counsel for the appellant asserted that the trial judge should have directed the jury that before they could draw any conclusion from the evidence of the complainant's distress, the jury had to be satisfied that the distress was genuine and that it was occasioned by the indecent dealing alleged, in that there was no other reasonable hypothesis which could explain it.  In order to evaluate the merit of this submission, it is necessary to analyse the way in which the evidence of distress was approached at trial.

Opening by the State

1. During his opening address, counsel for the State foreshadowed evidence from Ms Vickers to the effect that during the course of her telephone conversation with the complainant, the complainant was not her normal self, but instead seemed nervous and shaky.  He also foreshadowed evidence from Mr Sheppard to the effect that the complainant broke down and was very upset when she told him what had occurred during the day.  After referring to the evidence of the complainant's mother, Ms Vickers and Mr Sheppard, counsel put the issue to the jury in this way:

   All three of these witnesses will explain to you how they observed [the complainant] very upset and in tears when she recounted the events of that day to them.  The evidence of [the complainant's] distress and her complaints to Mr Sheppard and [her mother], is evidence that shows consistency with her evidence about what the accused did to her, and you can use the evidence - this will be explained in detail at the end, but you can use this evidence of the other witnesses to support her credibility or believability as to what she said happened, because it is in keeping with, or consistent with, what we might expect, that is, we would expect a 15‑year‑old girl who had been sexually assaulted by her boss to complain to those close to her once it was safe to do so.  We would also expect her to be very upset.  (ts 31)

2. So, the State case was put to the jury on the basis that the evidence of distress was associated, contemporaneously and causatively, with the evidence of complaint, and that the evidence of distress lent credibility to the complainant's evidence.

The evidence

1. During her evidence‑in‑chief, and in re‑examination, the complainant said that she was upset when she told Mr Sheppard and Ms Vickers and her mother what the appellant had done to her.  The complainant's mother gave evidence to the same effect, describing the complainant as upset and crying.  Mr Sheppard said that during his first conversation with the complainant, before the appellant had left, the appellant seemed a bit upset, withdrawn and not her usual happy and chatty self.  He further gave evidence that, after the appellant had left, the complainant broke down and cried and told him what had happened.  He described her as 'sobbing, crying, very upset'.  Ms Vickers gave evidence to the same effect.

2. The line taken by counsel for the appellant in cross‑examination of a number of witnesses, including the complainant, was to the effect that if the complainant was upset, it was because she had not been taken to a Melbourne Cup lunch as promised.  Another line taken in cross‑examination was to the effect that the complainant was angry with the appellant because she believed she would not be offered a traineeship as a result of her poor work performance, and so had invented the events said to have taken place as a means of exacting retribution against the appellant.

Closing address for the State

1. During his closing address, counsel for the State put to the jury that there was no evidence that the complainant had been told that she would not be given a traineeship prior to the events in question.  It was put that the fact that she had not been taken to lunch did not provide a plausible basis for the defence line that the complainant had invented her allegations.

2. He also referred the jury to evidence in the form of surveillance video records taken at the shopping centre which the appellant and the complainant had visited for the purpose of buying a dress and shoes.  He suggested that the footage showed that the complainant's body language showed her to be nervous and uncomfortable.

3. He referred also to the telephone call between the complainant and her mother in which the complainant's mother described the complainant as 'stressed and a bit strung out'.  He referred also to the evidence of Ms Vickers, to the effect that the complainant was 'not being herself' during their telephone call and that she sounded 'nervy and stuff'.

4. In relation to Mr Sheppard's evidence, counsel for the State put the following to the jury:

   And what I would say to you is the complaint to Jared Sheppard about what happened is important evidence in this trial that you can use to assess her credibility.  It is not evidence of what occurred, but it's evidence that supports her, because it's consistent with what happened.  She's behaving like you would expect; telling someone in a very distressed state what happened.

   Now, before she told Jared Sheppard she appeared nervous, uncomfortable, on edge, as opposed to bubbly, friendly, the life of the party.  Once again, this is how you might expect her to behave in her position.

   …

   And it's Jared Sheppard's recollection of what she told him at a time when she was distressed and crying.  It's not necessarily going to be identical to what she told officers three weeks later, given her condition.  You wouldn't expect her to go through it calmly, coolly, collectively [sic].  (ts closing address 271 ‑ 272)

   She said the accused had touched her inappropriately on several occasions, bought her the dress and tried to set her up with a person in their thirties.  This is consistent with her account that you've heard.  (ts closing address 271 ‑ 272)

5. After referring to the evidence of the complainant's mother, Mr Sheppard and Ms Vickers, counsel for the State put this to the jury:

   The evidence of distress is another factor that you can consider.  It's not just what she said, but it's how she presented.  We have a normally very happy, bubbly teenager, and that wasn't challenged, who was crying and sobbing, and these are real emotions.

   Something has upset her and I'd suggest it's something far more than her not getting taken to lunch.  Not that she didn't go and get to wear this dress.  Given what she said happened, you would expect her to be upset.  Again it is consistent with that.  (ts closing address 273)

6. Later in his address, counsel for the State referred to:

   … [T]he complaints made by her to Jared Sheppard, to her mother, what she told Cannington Police Station and her obvious distress when it all came out, and all the other supporting evidence … . (ts closing address 280)

Counsel for the appellant

1. In his closing address to the jury, counsel for the appellant drew attention to the evidence of the complainant's mother to the effect that, although the complainant did have a happy and bubbly personality, she did have mood swings.  He also put to the jury that if she had been assaulted as she alleged, it is highly unlikely that she would not have sought assistance from a person who she knew at the shopping centre which she visited in order to buy a dress, and that she would have said nothing during her telephone call with her mother prior to the journey to Ms Vickers' house.  He also drew attention to the fact that the complainant hugged the appellant voluntarily before he left Ms Vickers' house and suggested that this conduct was inconsistent with her evidence of indecent dealing.  He also pointed to inconsistencies between what the appellant said to Mr Sheppard, and what she said to the police, about the precise nature of the indecent dealing.

The trial judge's direction to the jury

1. The trial judge commenced his directions to the jury in conventional terms relating to the burden and standard of proof.  He also gave a direction on the topic of drawing inferences from circumstantial evidence, to the effect that the jury should only draw such an inference if it is the only reasonable inference or conclusion that can be drawn from the proven facts.

2. During the portion of his direction in which the trial judge referred to the evidence, he made reference to the evidence of the complainant's mother to the effect that she was stressed and strung out during the course of their telephone conversation, and the evidence of Ms Vickers to the effect that the complainant was not her usual self during their telephone conversation.

3. After referring to the evidence of the complaints made by the appellant to Mr Sheppard, Ms Vickers, her mother, and subsequently to the police, the trial judge gave a direction in the following terms:

   Proof that a complaint has been made can never be proof that the thing complained of occurred.  Evidence of prompt complaint is not to be taken as proof that the conduct complained of did occur.  It is not separate or additional or corroborative evidence that the crimes were committed.

   The State leads the evidence to show consistency of conduct.  It is something that you can take into account when you consider [the complainant's] credibility and the truthfulness of her evidence, but you can't treat it as separate or additional to her evidence.  It is her evidence of what happened which you saw and heard her give that you must consider.

   The fact that she told someone else the same thing does not add to the truthfulness of here [sic] evidence.  If the story is not true, then repetition of it does not make it true, but in judging [the complainant's] credibility and truthfulness of her evidence you're entitled to know how she acted immediately after the events to see whether she acted in a way you might expect of a 15-year-old girl in her position to act after the events about which she has given evidence.

   Now, you will also recall that questions and submissions were made regarding why [the complainant] didn't complain, for instance, when she was at Gateway [the shopping centre] or when she was on the telephone in the car and she had the opportunity, as I have mentioned, at Gateway and when she was on the telephone or she could have telephoned whoever she wished to phone.

   Now, the inference in that is that the events that are the subject of the indictment did not happen because if they had happened, then there would have been immediate complaint about it.  So the questions and the submissions about that matter is something for you to consider when you come to assess the truthfulness of [the complainant's] evidence.

   What [counsel for the appellant] said to you is that it's inherently unlikely that a person like [the complainant] would have failed to make complaint if things had actually happened to her as she complains.  She did, of course, later complain to Jared, Lori, her mother and the police on the same day, but delay in complaining is a relevant matter for you to consider when you come to weigh the significance of [the complainant's] evidence.

   But I must point out to you that absence of complaint or delay in making a complaint that a person has been sexually assaulted does not necessarily indicate that the matters complained of did not happen.  Someone like [the complainant] might have good reason for not complaining and because of that, you need to bear in mind that fact and to determine what significance you give to the fact that she delayed her complaint.

   You've heard explanations from her.

   …

   Of course, I repeat the fact that the fact that [sic] a complaint was made is not to be taken as independent or separate evidence of the truth of the complaint.  (ts 324 ‑ 325) 

1. After the jury retired, counsel for the State put the following submission:

   … [c]ertainly your Honour dealt with complaint but also there's elements of distress as well and distress obviously ties into complaint about being a matter which the jury can take into account in the same way that complaint can be taken into account.  So it's not just what she said but her condition when she was saying it.  (ts 327)

2. The trial judge indicated that he proposed to redirect on the subject.  Counsel for the appellant offered no objection to that course.  The jury returned and the trial judge gave the following direction:

   I mentioned to you that [the complainant] complained to Jared, Lori, [the complainant's mother] and the police on the day that these alleged offences occurred.  So that's an oral complaint, but you can also take into account her distress, the condition that she was in, as being evidence of complaint and you apply that in the same way as I have mentioned the evidence of her oral complaint.  (ts 333)

3. The trial judge did not give any direction to the effect that it would be unsafe for the jury to convict the appellant on the uncorroborated testimony of the complainant, nor was any such direction sought by counsel for the appellant (see s 50, Evidence Act 1906 WA).

Applicable legal principles

1. Evidence of the distressed condition of a complainant may or may not be capable of amounting to corroboration according to the particular facts of the case (R v Flannery [1969] VR 586, cited with approval by Pullin JA in Azarian v The State of Western Australia [2007] WASCA 249 at [44]; (2007) 178 A Crim R 19). However, it is significant that in this case, no direction was given to the jury to the effect that it would be unsafe to convict on the uncorroborated testimony of the complainant. Rather, the case was left to the jury on the basis that they were required to make an assessment of the complainant's credibility, to which the evidence of her complaints, and her distress at the time of those complaints, could be relevant.

2. The need for a warning as to the proper use to be made of evidence of distress in an appropriate case is well established.  In R v Brdarovski [2006] VSCA 231; (2006) 166 A Crim R 366, Nettle JA observed at [42]:

   Although evidence of distress is capable of corroborating a complaint's testimony, authority suggests that it generally carries little weight and as a matter of prudence juries should ordinarily be warned of its inherent limitations.  The need for such a warning is also likely to increase where … the observation of the complainant's distressed condition is made at some time after the incident, is equivocal and could have been the result of incidents which did not form part of the charge.  (see Azarian at [45])

3. However, it is clear that a warning is not required in every case.  As Campbell J observed in R v McDougall [1983] 1 Qd R 89, 91:

   The reason for a warning is that distress may be feigned or may not reflect the complainant's state of mind at the time of the offence.  But a warning is not called for in every case.  It is not absolutely necessary that the jury be told that generally evidence of a distressed condition is of little weight.

4. In Eades v The Queen [2001] WASCA 329, after citing this passage, Murray J observed at [34]:

   In my respectful opinion, that is sound in principle.  Whether or not a warning of this character is required and if so, in what terms it should be given to assist the jury to a better evaluation of the probative value of evidence, as in the case of warnings to be given to the jury about other evidentiary matters, is to be guided by the principle that what, if anything, a trial judge is required to do in that regard should be decided by considering what is necessary in the interests of justice to best assist the jury in their fact finding process, having regard to the particular circumstances of the case.

5. That approach was recently approved by this court in Azarian (Pullin JA at [48]; Miller JA at [155]) and Prazmo v The State of Western Australia [2009] WASCA 25 (Miller JA at [32]).

The principles applied in this case

1. It is apparent from the way in which counsel for the State opened and closed the State's case that the evidence of the complainant's distressed condition at the time she made her complaints regarding the appellant's conduct was advanced as an integral part of the evidence of her complaints.  That evidence was put to the jury as evidence going to the general credibility of the complainant.  It was not put as evidence which was capable of independently corroborating the testimony of the complainant.  Similarly, counsel for the appellant put to the jury that the complainant's failure to complain at the first opportunity reflected adversely on the complainant's credibility.  The complainant's physical and emotional condition at the time she later complained was relevant to the jury's evaluation of these competing submissions.

2. In that context, the trial judge gave the jury a clear and emphatic direction as to the limited use to which they could put the evidence of complaint, and emphasised to them that it was not independent evidence of the facts complained of, but went only to the complainant's credibility.  After the matter was raised by counsel for the State, the trial judge directed the jury that they should treat the evidence of the complainant's distressed condition in the same way.  This would no doubt have been taken by the jury as a direction to the effect that they could not regard the evidence of the complainant's distressed condition as independent evidence of the truth of what she alleged, but rather, as going only to her credibility.  That direction was entirely consistent with the way in which the case was conducted by both parties.

3. It is also significant that the line taken by the defence was to the effect that the complainant had been motivated to invent the allegations she made against the appellant by reason of her disappointment at being refused traineeship and at not being taken out to lunch.  Counsel for both parties put submissions before the jury in relation to those propositions.  These submissions were summarised by the trial judge in his direction to the jury.  The jury therefore had clearly and explicitly before them the competing contentions of the parties as to whether or not the complainant had some reason or motive to feign distress at the time she made her complaints regarding the appellant's conduct, which on the defence case, were invented.  In that context, the clear and emphatic directions by the trial judge regarding the onus and standard of proof cannot have left the jury in any doubt that they had to be satisfied beyond reasonable doubt that the complainant was telling the truth in her evidence before them, and therefore had to be satisfied that any reasonable doubt with respect to the proposition that the complainant had invented the allegations against the appellant had been excluded by the evidence adduced on behalf of the State.

4. It is also significant, in this context, that the issue regarding the motivation of the complainant went both to the evidence of her complaints to others, and also to the evidence of her condition at the time of making those complaints.  The evidence regarding her condition at the time of making complaint was bound up with the evidence regarding the complaints made, and the trial was conducted by all parties on that basis.  The direction of the trial judge to the jury to the effect that they should treat the evidence regarding the complainant's condition at the time of making complaint in the same way as they treated the evidence of the complaints made was entirely consistent with the conduct of the trial and appropriately left to the jury the task of evaluating the impact which that evidence had upon their assessment of the complainant's credibility.  In the circumstances of this case, it would have been inappropriate for the trial judge to segregate his observations to the jury regarding the evidence of the complainant's distress from his directions as to the use to be made of the evidence of her complaints by, for example, suggesting that the evidence of distress was somehow more or less suspect than the evidence of her complaints.  By the way in which this case was conducted, the jury can have been under no doubt that it fell to them to evaluate, in the context of the burden and standard of proof about which they had been directed, whether the complainant's distress was genuine or feigned and whether it was due to the course of indecent dealing, as the State alleged, or due to her disappointment at not being granted a traineeship and taken to lunch, as the defence alleged.

5. In the context of this case, there was no need for a more specific direction with respect to the evidence of distress and ground 1 must be dismissed.

Ground 2

1. The appellant asserts that the trial judge erred by failing to warn the jury that they should not approach the case by considering whether or not it had been established that the complainant was likely to have invented her complaint.  In particulars in support of the ground, attention is drawn to a passage in the direction of the trial judge which was in the following terms:

   [The complainant] also told Lori [Vickers] that she had to repay the accused for the dress.  … [S]he agreed that she hadn't told that to the police and she said that she thought Jared, Peter [Mr Vickers], Lori and the accused were present when she told that to Lori, but Lori … said that nothing was said about the dress until later, that is, after the accused had left, and … what she said was, 'Did [the complainant] tell you anything about who paid for the dress?' and the answer was, 'No, she didn't, not at that time.  That was afterwards.'  She said that she was buying it out of her own money but that the accused had paid for it and that was after the accused had left.

   So you might ask yourselves, 'Well, why would [the complainant] say that then if it were not true?'  So what the defence says to you is that the evidence here is insufficient for you to be satisfied beyond reasonable doubt as to the proof of these charges and that you cannot accept the evidence of the various witnesses.  (ts 323 ‑ 324)

2. When regard is had to the closing address of counsel for the appellant, it is clear that, in this portion of the direction, the trial judge was simply repeating a submission which had been put on behalf of the appellant.  In the context of submissions with respect to the credibility of the complainant, counsel for the appellant put the following to the jury:

   She still accepts a gift from this man, if indeed it was a gift.  Does that have the ring of truth about it?  Would you accept the gift from a man who's just, as the State puts it, sexually abused you?  I'd suggest you wouldn't.  Who was paying for this gift?  Was Mr Vo paying for this gift or was Mr Vo paying for it in the expectation that the money should be refunded?

   She was inconsistent about that.  She'd have you believe that it was a gift because it suits her purpose to say it was a gift.  It suits this notion that Mr Vo was somehow grooming her for his sexual misdemeanours.  But that's not what she told her Aunty Lori.

   She told Aunty Lori, 'He gave me the money and he expected me to pay it back'.  Why would she lie to Aunty Lori about that?  What advantage is it to her in lying to her Aunty Lori about that?  I am suggesting to you the lie is the fact that it was a pure gift because it supports her story.  (ts closing address 289)

3. At another point in his address, counsel for the appellant also attacked the complainant's credibility in the following terms:

   Why was she going to Aunty Lori's house?  She'd have you believe that it was all pre‑arranged.  Aunty Lori says it wasn't.  Why would she lie about something like that?  I don't know.  I don't know.  But it impacts upon her credibility, I'd suggest to you, that she is prepared to lie about that.  She might be prepared to lie about other things.  It wasn't a pre‑arranged visit.  Aunty Lori told you it wasn't a pre‑arranged visit …  (ts closing address 292)

4. So, viewed in context, the direction from the trial judge was a repetition of submissions that had been put on behalf of the appellant to the effect that the evidence established that the complainant had lied about whether she was required to repay the appellant for the dress and that the jury might reason that, if she had lied about that, she would lie about other matters.  The rhetorical question about motive for lying had been put by counsel for the appellant on at least two occasions and was simply repeated by the trial judge. 

5. In the context of the directions which the jury had been given regarding the onus and standard of proof, there is no prospect that the jury would have construed this observation as a suggestion that the appellant carried some onus of establishing that the complainant had a motive to lie.  In fact, the appellant's counsel, through the line taken in cross‑examination and in closing submissions suggested that the complainant had such motives, but in the context of the general directions given regarding onus and standard of proof, there is no reason to suppose that the jury might have considered that the appellant was under an obligation to prove those assertions.  Ground 2 must also be dismissed.

Ground 3

1. As grounds 1 and 2 have each failed, it follows that ground 3 must also be dismissed, because it relies entirely upon the combined effect of the errors said to be established by grounds 1 and 2.  However, as grounds 1 and 2 were sufficiently arguable to justify the grant of leave, leave to appeal should also be granted in respect of ground 3. 

Ground 4

1. The appellant asserts that the verdict of the jury is unsatisfactory, unsafe, and not supported by the evidence.  This ground requires the court to take the approach enunciated in M v The Queen [1994] HCA 63; (1994) 181 CLR 487, as enunciated in Martinez v The State of Western Australia [2007] WASCA 143 at [6]; (2007) 172 A Crim R 389:

   The test which faces a Court of Appeal in considering whether a verdict should be set aside on the ground that it is unreasonable or cannot be supported, having regard to the evidence, is set out in two passages from the judgment of Mason CJ, Deane, Dawson and Toohey JJ (at 492 - 493).  They are in the following terms: 

   'The question is one of fact which the court must decide by making its own independent assessment of the evidence [Morris v The Queen (1987) 163 CLR 454] and determining whether, notwithstanding that there is evidence upon which a jury might convict, "none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand" [Hayes v The Queen (1973) 47 ALJR 603 at 604]. But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be 'unreasonable' or incapable of being 'supported having regard to the evidence'. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside.

   …

   Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty [Whitehorn v The Queen (1983) 152 CLR 657 at 686; Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 532; Knight v The Queen (1992) 175 CLR 495 at 504 - 505 and 511]. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations [Chamberlain v The Queen (supra) at 621].'

2. The appellant has given six particulars in support of this ground of appeal. The first is the assertion that the evidence of the complainant was uncorroborated in any material respect. However, s 50 of the Evidence Act obviates the obligation for corroboration, and no corroboration direction was requested by counsel for the appellant.  As is apparent from the reasons I have already given, the question of the complainant's credibility was very much a live issue before the jury and was the subject of full submissions from counsel for each of the parties.  These submissions were summarised by the trial judge in his direction to the jury.  In that context, whether or not the jury were satisfied to the requisite standard of the veracity of the evidence given by the complainant was a matter for them.

3. The second particular draws attention to variations in the version of events given by the complainant on different occasions, namely, during her initial complaints, during her recorded interview with police and at trial.

4. There were undoubtedly variations in the precise version of events given by the complainant at different times.  For example, there were variations regarding whether the appellant had touched her on the buttock while they were in the shopping centre, regarding the precise extent of his attempts to kiss her, and regarding the extent to which her breast and buttock had been touched by the appellant after the car had been parked and before they entered the shopping centre.  Those discrepancies may well explain the jury's acquittal of the appellant on counts 2 and 3.  However, these variations in the precise enunciation of events by the complainant do not substantially deflect from the thrust of her evidence, at least in respect of those counts of which the appellant was convicted.

5. Third, the appellant asserts that the complainant's version of events was, in all the circumstances, inherently unreliable and unlikely.  A number of particular submissions are put in support of that proposition, including the fact that the complainant remained with the appellant after he had allegedly dealt with her indecently, that she accompanied him back to Ms Vickers' house for a drink where she tried on the dress which he had bought her and that she gave the appellant a hug goodbye before he left.  These are undoubtedly all matters that go to the credibility of the complainant's evidence.  However, neither singly nor in combination do they persuade me that it was not reasonably open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, giving due weight and consideration to the fact that, in our system of criminal justice, it is the jury which is the body entrusted with the primary responsibility of determining guilt or innocence and which has had the benefit of having seen and heard the witnesses.

6. Fourth, attention is drawn to the fact that there was no immediate complaint in circumstances when one might have been expected, for example, at the shopping centre, during the telephone conversation with the complainant's mother, or during the conversation with Ms Vickers. Again, these are matters that were squarely and fully ventilated at length before the jury. The jury were appropriately directed, in accordance with s 36BD of the Evidence Act, that delay in complaining does not necessarily indicate that the complaint was false, and that there may be good reasons for a failure to complain.  Obviously that principle also applies to this court's re‑evaluation of the evidence.  In the particular circumstances of this case, it is not difficult to understand why the complainant might have been inhibited from making complaint about the appellant's conduct until she had left his company.

7. The last two particulars advanced in support of this ground draw attention to the fact that there was no forensic evidence in support of the State's case, nor any admission by the appellant.  Obviously both of these assertions are correct, but equally obviously they do not lead to the conclusion that the verdict of the jury was unsafe and unsatisfactory, given that there was sworn testimony supporting the guilt of the appellant which it was open to the jury to accept.

1. Neither singly nor in combination do the particulars advanced in support of this ground sustain the conclusion that the verdict was unsafe, unsatisfactory, or unsupported by the evidence.

2. Ground 4 must also be dismissed.  However it was sufficiently arguable to justify the grant of leave.

3. It follows that although leave to appeal should be granted in respect of grounds 3 and 4, the appeal should be dismissed generally.

1. OWEN JA:  I agree with the Chief Justice.

2. BUSS JA:  I agree with the Chief Justice.

3. I merely note that none of the particulars relied on by the appellant in support of ground 4 precluded the jury's finding that he was guilty beyond reasonable doubt on each of counts 1 and 4.  The trial record does not, in my view, require the conclusion that the jury must have entertained a doubt about his guilt on those counts.  I do not have such a doubt.  The verdict of guilty on counts 1 and 4 was not unreasonable.  It is supported by the evidence.

4. The appeal should be dismissed.