Walsh v The State of Western Australia
[2024] WASCA 78
•3 JULY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WALSH -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 78
CORAM: MAZZA JA
HALL JA
VANDONGEN JA
HEARD: 2 APRIL 2024
DELIVERED : 3 JULY 2024
FILE NO/S: CACR 58 of 2023
BETWEEN: JAY RIORDON WALSH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S: CACR 59 of 2023
BETWEEN: JAY RIORDON WALSH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: MASSEY DCJ
File Number : IND 1032 of 2021
Catchwords:
Criminal law - Appeal against conviction - Whether trial judge erred in refusing to discharge the jury as a consequence of statements made in prosecutor's closing address - Whether directions regarding propensity reasoning and cross-admissibility sufficient - Appeal against sentence - Whether sentence infringed totality principle
Legislation:
Criminal Appeals Act 2004 (WA), s 27(3), s 30(3), s 30(4)
Criminal Code (WA), s 189(1)(iii) (repealed), s 190 (repealed), s 321(4), s 321(8)(b), s 322(2), s 322(4)
Criminal Procedure Act 2004 (WA), s 116
Evidence Act 1906 (WA), s 31A
Sentencing Act 1995 (WA), s 7
Result:
CACR 58 of 2023
Leave to appeal on grounds 1 and 2 refused
Appeal dismissed
CACR 59 of 2023
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
CACR 58 of 2023
Counsel:
| Appellant | : | S A Auburn & J A Davies |
| Respondent | : | G N Beggs |
Solicitors:
| Appellant | : | Scerri Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
CACR 59 of 2023
Counsel:
| Appellant | : | S Auburn & J A Davies |
| Respondent | : | G N Beggs |
Solicitors:
| Appellant | : | Scerri Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427
Dayananda v The State of Western Australia [2021] WASCA 11
Director of Public Prosecutions (Vic) v Benjamin Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644
DKA v The State of Western Australia [2017] WASCA 44
Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237
Eric v The State of Western Australia [2019] WASCA 101
EXF v The State of Western Australia [2015] WASCA 118
GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178
Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
Goedecke v The State of Western Australia [2013] WASCA 25
Gray v The State of Western Australia [2015] WASCA 108; (2015) 71 MVR 31
Guagliardo v The State of Western Australia [2023] WASCA 71
Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539
Headley v The State of Western Australia [2018] WASCA 37
Hofer v The Queen [2021] HCA 36; (2021) 274 CLR 351
House v The King [1936] HCA 40; (1936) 55 CLR 499
Ilievski v The King; Nolan v The King (No 2) [2023] NSWCCA 248; (2023) 112 NSWLR 375
JAF v The State of Western Australia [2008] WASCA 231; (2008) 190 A Crim R 124
Kabambi v The State of Western Australia [2019] WASCA 44
Kitto v The State of Western Australia [2019] WASCA 161
LTT v The State of Western Australia [2022] WASCA 31
LWJR v The State of Western Australia [2009] WASCA 200
Menmuir v The State of Western Australia [2018] WASCA 13
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Narrier v The State of Western Australia [2008] WASCA 191; (2008) 38 WAR 161
NE v The State of Western Australia [2021] WASCA 172
Newton v The State of Western Australia [2023] WASCA 7
OTR v The State of Western Australia [No 2] [2022] WASCA 123
R v Manunta (1989) 54 SASR 17
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
Smith v The State of Western Australia [2024] WASCA 52
SMO v The State of Western Australia [2022] WASCA 70
UGN v The State of Western Australia [2021] WASCA 10
Walters v The State of Western Australia [2018] WASCA 3
Wark v The State of Western Australia [2023] WASCA 66
Wilson v The State of Western Australia [2023] WASCA 161
XMB v The State of Western Australia [2023] WASCA 4
JUDGMENT OF THE COURT:
Introduction
Between 1982 and 1988, the appellant was employed as a drama teacher at a secondary school for girls in Perth. On 2 March 2023, after a trial in the District Court, the appellant was found guilty by a jury of several offences of indecent dealing, indecent assault, and unlawful carnal knowledge, contrary to various since repealed provisions of the Criminal Code (WA) (Code). Those offences were alleged to have been committed on various occasions against five of the appellant's students. On 26 April 2023, the appellant was sentenced to a total effective sentence of 10 years' imprisonment.
The appellant appeals against his convictions and against the sentences that were imposed on him. The appellant contends that the trial judge erred when he refused to discharge the jury on the basis that the prosecutor made various statements in her closing address to the jury that were unsupported by the evidence or were otherwise improper. The appellant also complains about the directions the trial judge gave to the jury about engaging in propensity reasoning. The appellant's sole ground of appeal against sentence is that the total effective sentence of 10 years' imprisonment infringed the totality principle.
In our view, none of the grounds of appeal have reasonable prospects of succeeding. It follows that leave to appeal against conviction and sentence must be refused, and both of those appeals are taken to have been dismissed.
We will first explain why leave to appeal against conviction should be refused.
Appeal against conviction
Grounds of appeal
The appellant originally relied on three grounds of appeal. However, at the hearing of the appeal, the appellant's counsel informed the court that she intended to rely on the following grounds of appeal:
(1)The learned judge erred in law in failing to discharge the jury on the application of the accused pursuant to s 116(2) of the Criminal Procedure Act 2004, when he should have been satisfied that it was in the interests of justice to do so, as a result of statements made by the Prosecutor during the trial. These statements were either unsupported by the evidence or otherwise improper, cumulatively resulting in an unfair trial and miscarriage of justice and are particularised as follows.
PARTICULARS
A.Misstatement of test of law: At the commencement of the closing speech [the] learned Prosecutor wrongly submitted to the jury that the verdict in the case would be determined by whether jury believed the complainants, when the test was whether the jury was satisfied with respect to any count whether on the whole of the evidence, the count was proven beyond reasonable doubt.
B.Concerning access to disclosure: During the closing speech the learned Prosecutor invited impermissible and speculative reasoning by improperly suggesting that the jury should discount the evidence of the accused because he had received Prosecution disclosure and had tailored his evidence accordingly.
C.Five separate complainants: During the closing speech the learned Prosecutor invited impermissible and speculative reasoning by submitting, in substance, that the jury consider it relevant that five separate complainants would not come forward if there was not truth in the allegations.
D.Teachers having more sway: During the closing speech the learned Prosecutor invited impermissible and speculative reasoning by asking the jury to consider that, teachers had more 'sway' at the time of the offences, when there was no evidence to support that statement.
E.That the accused paid in cash at hotels: During the closing speech the learned Prosecutor invited impermissible and speculative reasoning by asking the jury to consider that the accused was 'likely' to have paid in cash at the hotels, so there would be no record, which was unsupported by any evidence.
F.Unfair impeachment by prejudicial reference to occupation: During the closing speech the learned Prosecutor improperly and unfairly sought to impeach the credibility of the witness Connie Loretta Micheli, a conveyancer, by denigrating her with a derogatory description as 'some real estate woman'.
G.Prejudicial description of act of tongue‑kissing: During the closing speech the learned Prosecutor intemperately and unfairly mis‑described the accused's alleged tongue kissing of one complainant as 'sticking his tongue down her throat'.
(2)The trial judge did not direct the jury sufficiently as to the impermissible uses of the multiple complainant propensity evidence.
PARTICULARS
A.There were four categories of offence in which there was cross‑admissibility of evidence amongst the complainants. The kissing, the hand on penis, touching the vagina and carnal knowledge.
B.The judge ought to have, but failed to sufficiently warn the jury that only the evidence of the charges in the same category of offence was cross‑admissible upon the issue of propensity as amongst the five complainants.
As the appellant's counsel explained at the hearing of the appeal,[1] the first ground amounts to a contention that the trial judge made a wrong decision on a question of law by refusing to grant the appellant's application to discharge the jury based on statements made in the prosecutor's closing address. In the alternative, the appellant contends that the cumulative effect of statements made in the prosecutor's closing address occasioned a miscarriage of justice.
[1] Appeal ts 11.
The second ground is concerned with the trial judge's directions to the jury about the use to which they could put evidence relating to any offence they found had been committed against one complainant in considering whether the prosecution had proved that the appellant had committed offences against other complainants.
The focus of both grounds of appeal is relatively narrow. In order to understand why those grounds of appeal are without merit, it is only necessary to provide a relatively limited summary of the parties' respective cases at trial.
The prosecution case
In or about 2020, five women made complaints to the police that during the period between 1982 and 1987 the appellant had sexually interfered with them on several occasions, and in a variety of ways, when he was a teacher at a secondary school for girls in Perth. In July 2020, the appellant was charged with 23 offences.
The first seven offences related to T, a 16‑year‑old student who aspired to a career in acting. After the appellant became her drama teacher in 1982, the appropriate boundaries of a student‑teacher relationship were crossed, and the appellant began to commit sexual offences against T. In relation to all seven offences against T, the appellant was alleged to have unlawfully and indecently dealt with a girl under the age of 17 years, of whom he was a teacher, contrary to the now repealed s 189(1)(iii) of the Code.
In relation to count 1, the prosecution case was that the appellant had organised for T to do some work experience at a drama theatre. The appellant also arranged to pick her up and take her to the theatre, and then to drop her back home. One night after the appellant picked up T from the theatre, he took her to a coffee house, where he kissed her on the mouth. The appellant was acquitted of count 1.
After leaving the coffee house, the appellant drove T to Kings Park where, while they were sitting in his parked car, the appellant put her hand on his penis and procured her to masturbate him until he ejaculated. This conduct formed the basis of count 2 on the indictment.
Later in the same year, the appellant was again alone with T in his car, parked in a car park at Kings Park. It was nighttime, but it was not as late as the incident the subject of count 2. Once again, while they sat in his car, the appellant procured T to masturbate him until he ejaculated. This incident was the subject of count 3.
A very similar incident was alleged to have taken place a few weeks later, when the appellant procured T to masturbate him when they were sitting in his car in a car park in Subiaco, after he had taken her to see a play. This conduct formed the basis of count 4 on the indictment.
In relation to counts 5 and 6, T attended a debate that took place at another school. After the debate finished, the appellant drove T home. However, before they arrived at T's home, the appellant parked his car in some bushland where he again procured T to masturbate him while they were sitting in his car. On this occasion, the appellant also touched T's vagina with his fingers.
Finally, count 7 related to a further occasion when T was in the appellant's car after a drama rehearsal. Again, the appellant procured T to masturbate him until he ejaculated.
After committing the offence the subject of count 7, the appellant appeared to lose interest in T and ceased offending against her.
Counts 8 and 9 on the indictment related to a different complainant, K. In 1982, when K was 15 or 16 years of age, and she was in year 10, she was painting a papier mâché tree for an upcoming play. The appellant became angry with K because she was not painting the tree properly, and so the appellant put K over his knee and smacked her on the bottom. When he did this, the appellant also slid his hand between K's legs and allowed it to rest near her vagina, over the top of her underwear. K was wearing a menstrual pad at the time.
In 1984, when K was in year 12, she was the director of the school play. On one night, she was having a sleepover with other students who were also involved in the play. During the evening, the appellant arrived unannounced at the sleepover and told K that they needed to get something from the school. K then went with the appellant to the school by herself. After they had finished at the school, and as they were walking back to the appellant's car, past a house where the school's reverend lived, the appellant said something like, 'What do you think the reverend would say if I did this?' At that point, the appellant pulled K's pants down and inserted his fingers into her vagina.
Count 8, which related to the occasion on which the appellant smacked K, was a charge of unlawful and indecent dealing with a girl under the age of 17 years, contrary to s 189(1)(iii) of the Code (repealed). Count 9, which was alleged to have occurred on the night of the sleepover, was a charge of unlawful and indecent assault, contrary to s 328 of the Code (repealed). The appellant was acquitted of count 9.
K also gave evidence that the appellant kissed her and touched her on the breast on other occasions. However, those incidents were not the subject of any count on the indictment.
Counts 10 ‑ 16 concerned a different complainant, F. In counts 10 ‑ 12, and count 14, it was alleged that the appellant had committed offences of unlawful and indecent dealing with a girl under the age of 17 years, contrary to s 189(1)(iii) of the Code (repealed). In counts 13, 15 and 16 it was alleged that the appellant unlawfully and carnally knew F, a girl under the age of 17 years, of whom he was a teacher, contrary to s 190 of the Code (repealed).
In 1984, F was a drama student in year 11. She enjoyed acting and aspired to be an actress. The appellant was F's drama teacher when she was in year 10, however, the appellant began to show interest in F when she was in year 11.
The incident the subject of count 10 was alleged to have occurred when F went on a school excursion with other drama students to see a play in Subiaco. Later that night, the appellant took her back to the office of a union called 'Actors' Equity' in Subiaco,[2] where he kissed her on the mouth.
[2] Over time, the appellant had been actively involved with and held positions within Actors' Equity, a union which represents the interests of actors.
Not long after this, on an occasion when the appellant was driving her home in his car, the appellant kissed F, touched her on the breasts, and penetrated her vagina with his fingers while they were parked in a car park. On the same occasion, the appellant also procured F to masturbate him until he ejaculated. These acts formed the basis of counts 11 and 12 on the indictment.
Later, towards the end of 1984, when F was 16 years old and in year 11, the appellant drove her to a flat or an apartment. There, F lost her virginity to the appellant. This incident formed the basis of count 13 on the indictment. However, this was not the only time F and the appellant had sexual intercourse. According to F, this occurred at the same flat on numerous other occasions.
In relation to counts 14 and 15, in 1985, the appellant took F to a motel or a hotel room after school. On this occasion, the appellant inserted his finger into F's anus. When F told the appellant that she did not like it, they then engaged in penile‑vaginal sex.
The final count relating to F, count 16, occurred towards the end of her year 12, after a school graduation dinner. On this occasion, the appellant and F had sexual intercourse in the appellant's parked car.
M was a student at the same school attended by the other complainants. In 1986, when she was 15 years old, M secured a main part in the school play and participated in several rehearsals. The offence charged in count 17 on the indictment concerned an allegation that the appellant kissed her on the mouth during one of those rehearsals when they were backstage in the school hall.
Towards the end of 1986, some teachers and students, including M and the appellant, went on a school excursion to Adventure World, a theme park in Bibra Lake. It was alleged that while the appellant and M were at Adventure World, they found a private spot and the appellant kissed M on the mouth. This incident was the subject of count 18 on the indictment. The appellant was acquitted of this count.
The appellant was friends with M's father, and he had been to M's house on several occasions. In 1986, on one of those occasions, the appellant was in the lounge room watching television with M's father. Under the pretext of looking at a painting by M's grandfather, the appellant left the lounge room with M and they kissed elsewhere in the house. This incident was the subject of count 19 on the indictment.
Later the same year, the appellant and M had sexual intercourse at a motel. This was the first time M had engaged in sexual intercourse. This incident was the subject of count 20.
The appellant ended his relationship with M towards the end of 1986. However, in 1996, when M was about 26 years old, their relationship briefly recommenced, for a period of a few months.
Counts 17 ‑ 19 were charges of unlawful and indecent dealing with a girl under the age of 17 years, contrary to s 189(1)(iii) of the Code (repealed), while count 20 was a charge of unlawful carnal knowledge, contrary to s 190 of the Code (repealed).
Counts 21, 22 and 23 all concerned a comparatively younger complainant, D. In 1987, D was 13 years of age, and she was in year 8. D was a very good drama student and the appellant was her teacher. The appellant gave D significant praise and attention.
In 1987, when they were alone together in a shed that was used by the school drama department, the appellant kissed D on the mouth, during which he used his tongue. This event was the subject of count 21 on the indictment. The appellant and D would then regularly meet in the same shed where they would kiss. One of those other occasions formed the basis of count 22.
The offence the subject of count 23 took place in 1987, at D's home. D had arranged for the appellant to meet her there during the school holidays, while her parents were at work and when no one else was home. The appellant kissed D while they were sitting on a couch. When D refused his request to then perform oral sex on him, the appellant procured her to masturbate his penis until he ejaculated.
Counts 21 ‑ 23 were charges of unlawful and indecent dealing with a girl under the age of 17 years, contrary to s 189(1)(iii) of the Code (repealed).
The prosecution called several witnesses at the appellant's trial. Other than the five complainants, whose evidence was pre‑recorded prior to the commencement of the trial, the prosecution adduced evidence from some of the complainants' school friends and from the investigating police officer. Two witness statements were also read into evidence: one that had been signed by T's father and one that had been signed by a former principal of the school. It is unnecessary to summarise any of that evidence.
The defence case
The appellant gave evidence at his trial. The confined nature of the ground of appeal means that a brief summary of that evidence is all that is required.
The appellant formally admitted that he was a teacher at the school attended by each of the complainants during the relevant period. He also gave evidence that was, in many respects, consistent with the events the complainants had described in their evidence. However, the appellant denied that he had ever engaged in any sexual conduct with any of the complainants while they were students at the school.
The appellant also adduced evidence from Connie Loretta Micheli, a retired conveyancer who owned offices on Colin Street in West Perth. Ms Micheli purchased the offices in 2013, however she had been there at various times from 1998 when her nephew purchased it from the Actors and Artists Benevolent Fund.[3] Ms Micheli gave evidence about what those offices looked like from 1998. This evidence was adduced for the purpose of undermining F's evidence and, in particular, her description of that office.
[3] The Actors and Artists Benevolent Fund refers to a charity associated with Actors' Equity.
The appellant's daughter and her best friend from school also gave evidence as part of the defence case. Apart from giving some evidence that was relevant to the question of whether the appellant had the opportunity to commit some of the offences, these witnesses gave evidence about the appellant's good character.
Having summarised the respective cases advanced at the appellant's trial, we will now deal with the grounds of appeal.
Ground 1
Ground 1 is concerned with the prosecutor's closing address.
After the prosecutor addressed the jury at the end of the trial, the appellant's trial counsel made an application for the entire jury to be discharged. The appellant's counsel argued that the jury should be discharged because the prosecutor had said things in her closing address that were unsupported by the evidence or were otherwise improper. The trial judge refused the application.
The appellant now contends that the trial judge erred in refusing the application to discharge the jury. Alternatively, the appellant says that the prosecutor's closing address occasioned a miscarriage of justice. In support of those contentions, the appellant relies on the various statements made by the prosecutor during her closing address that are the subject of the particulars to ground 1.
The most convenient way of dealing with ground 1 is to first identify the relevant statements made by the prosecutor in her closing address that are the subject of the particulars of the ground of appeal, and to provide any necessary context in which those statements were made, including any directions that were given to the jury. We will then summarise the trial judge's decision not to discharge the jury, before explaining why we have reached the conclusion that the prosecutor's address did not occasion a miscarriage of justice.
The relevant statements made in the prosecutor's address
Particular A: alleged misstatement of law
This particular is concerned with the prosecutor's opening gambit when she commenced her closing address:[4]
Do you believe the complainants? The answer to that question will lead to your verdict in this case.
[4] State closing address, ts 2.
The appellant's trial counsel did not take any issue with this aspect of the prosecutor's address and she made no reference to it when she made an application for the discharge of the jury. Unsurprisingly, the trial judge also did not make any mention of this aspect of the prosecutor's closing address in his directions to the jury.
Particular B: comments about appellant's prior access to disclosure
As we have already observed, the appellant gave evidence at his trial. At the beginning of the appellant's cross‑examination, the following exchange took place:[5]
PROSECUTOR: Yes, thank you, your Honour.
[The appellant], I'm not saying that there is anything untoward in this, but you read all the witness statements prior to this trial, didn't you?---Yes.
And you've gone through all the evidence in this case?---Yes.
And indeed, that recorded evidence that you saw to the complainants in this trial, you've seen that before, haven't you?---Because the trials were aborted.
It doesn't matter, but you've seen evidence before of the complainants giving their evidence in a recorded manner? Is that right?---Yes.
And you've seen the exhibits in this matter?---Yes.
And just on the matter of aborted trial, and I just want you to say yes or no, is that a result of - - -.
[5] ts 1005 - 1006.
At this point the trial judge stopped the cross‑examination, and the jury were directed to retire to the jury room. The trial judge then expressed concern that evidence had been adduced which revealed that there had been previous trials that had been aborted.[6] The appellant's trial counsel was also concerned about the cross‑examination, but for a different reason, and submitted that the trial judge should instruct the jury that the appellant's access to the evidence in the prosecution brief before trial was an entirely routine matter. In response, the prosecutor submitted that the trial judge should not make any comment about the cross‑examination, noting that defence counsel had herself asked the appellant questions about whether he had been provided with witness statements, and copies of potential exhibits, as part of the prosecution brief.[7]
[6] The trial was aborted on two previous occasions for reasons that are not relevant to the determination of the appeals.
[7] ts 983. However, the purpose of that questioning was to merely draw the appellant's attention to a picture of a block of flats that formed part of the prosecution brief so that he could then give evidence that it was unconnected to him.
When the jury returned to the courtroom, the trial judge told them that there had been a previous trial that was aborted due to illness and that it was irrelevant to the issues they were required to resolve.[8] The prosecutor then resumed her cross‑examination:
PROSECUTOR: So prior to giving evidence today, you knew what evidence was going to be led by the State in this trial, didn't you?---To some extent, yes.
To some extent you knew the witness statements?
MASSEY DCJ: [Prosecutor], I'm getting a little uncomfortable at this too.
PROSECUTOR: All right.
[8] ts 1009.
The prosecutor then moved on and did not return to ask the appellant any further questions about this subject. However, and somewhat inexplicably given the fact that the trial judge had intervened during her cross‑examination of the appellant about this topic, when the prosecutor delivered her closing address she made the following submission:[9]
As I said to you, there's nothing untoward about [the appellant] having access to all the statements and evidence and exhibits prior to the trial. But the fact is he was able, unlike the complainants - he was able to see all that material prior to giving his evidence. And I suggest to you that he knew the case in advance that was going to be suggested and he tailored his answers around that. I'd suggest - - -
[9] State closing address, ts 48.
The prosecutor should not have been surprised when the trial judge interrupted her at this point and told her to 'stop it there' and to '[m]ove on from that topic'.[10] The prosecutor then complied with the trial judge's admonishment.
[10] State closing address, ts 48.
At the end of the prosecutor's closing address, and before he allowed the jury to separate at the end of the day, the trial judge said the following to the jury:[11]
And the final thing I need to say is, where I interrupted [the prosecutor], that she indicated to you that the accused had had the witness statements and knew the case he had to meet and had fabricated his evidence or tailored his evidence accordingly. I direct you to disregard that in its entirety. That has no relevance in this charge. As a matter of law, the accused is entitled to have the brief of prosecution given to him in advance so he knows the case he has to meet. I direct you to ignore those comments. (emphasis added)
[11] ts 1128.
Immediately before giving this direction, the trial judge had made it very clear that his directions were binding on the jury.[12]
[12] ts 1128.
Later, at the end of the trial, the trial judge gave the jury the following instructions, which he also said were binding on them:[13]
[13] ts 1316 - 1317.
There's one other aspect that I need to direct you on before I come to the longer of the warnings I've still got to give and that's this. You'll recall that [the prosecutor] asked the accused about him having access to the brief of evidence in this case including statements of witnesses.
And [the prosecutor] quite properly prefaced those questions by saying she was not suggesting there was anything improper about that. During the course of her closing address she went on to remind you of that evidence, but went on to say you could be satisfied the accused knew the case he was going to have to meet and had tailored his evidence accordingly.
I gave you some directions about that when it occurred and I said I would repeat them again which is what I'm about to do. As I said to you at the time, the accused is entitled by law, it's his statutory entitlement to have served on him all evidence in the possession of the prosecution authorities including not only the [Office of the Director of Public Prosecutions], but also the police which is relevant to the charges he faces.
The accused is entitled to know the case he has to meet which you might think would be a matter of common sense and as part of that process must be served with any material which might assist in his defence. There's nothing unusual or sinister about that. The prosecution are required to serve it on him.
It's also a fundamental requirement of our system of justice that the prosecution present its evidence against the accused before he's called upon to make an election as to whether give, call or adduce evidence and the accused is required to be in court while the prosecution witnesses given [sic] their evidence.
That is simply the way our system works. So it's therefore inappropriate to reason that the accused has tailored his evidence accordingly. And I'm sure [the prosecutor] didn't mean it in this way, but I need to deal with it. Such a submission undermines the accused's right as a witness to be treated as any other witness which should be perfectly obvious to you.
When the accused elected to give evidence, he became a witness like any other witness in this case. He is entitled to have his evidence considered in precisely the same way as any other witness in this case. As I said, every accused person receives the prosecution brief, the statements of witnesses and sits through the trial before they are required to give evidence.
You should under no circumstances discount the accused's evidence because of the fact that he is the accused person and he's received that prosecution brief. As I've said, he is entitled to the same considerations in relation to [h]is evidence as any other witness is entitled to.
And so you should disregard any suggestion that the accused has tailored his evidence to meet the prosecution case. You should simply disregard it. It is irrelevant to your determinations and as I said undermines the fundamental requirement that you treat the accused as a witness in this case as you would any other witness. (emphasis added)
Particular C: five separate complainants
Under this particular, the appellant complains about the following part of the prosecutor's closing address:[14]
And you've got again these five students of five different year groups who have not spoken to each other, who do not know each other's allegations, and they're all telling you about what [the appellant] did to them. There is not a single suggestion or evidence of collusion between them in this case.
[14] State closing address, ts 42.
The appellant submits that the prosecutor thereby invited the jury to impermissibly reason that because there were a number of complainants, the appellant was the type of person who was more likely to have committed the offences with which he was charged, and that there was a real risk that the jury would have understood and applied those submissions in that way.
Immediately after the prosecutor completed her closing address, the trial judge gave the jury the following direction:[15]
It was also suggested to you on two occasions that there are five separate complainants who've all come forward with similar conduct. I will give you directions tomorrow about how you can use the evidence in relation to one complainant when you're considering other complainants' charges, but it is a very limited way and it is not appropriate for you to simply look at it as though there are five different complainants who've come forward in the way the prosecutor's invited you to do. And so, in due course, I will talk to you about that tomorrow.
[15] ts 1128.
This direction was given at the same time as the direction referred to earlier in these reasons at [58]. It would have been equally clear to the jury that this direction was also binding on them.
At the end of the trial, the trial judge gave very extensive and detailed directions to the jury about the limited way in which the evidence relating to offences alleged to have been committed against one or more complainants was admissible in proof that the appellant had offended against any other complainant. In the context of those directions the trial judge told the jury:[16]
Now, there is another aspect of the evidence about which I need to direct you. It's going to take a little while. You'll recall that on Tuesday, [the prosecutor] said to you on a couple of occasions that in this case, you have five different complainants of five different year groups. There's no evidence of collusion between them, and in some respects, the evidence they allege was similar.
Now, those submissions were relevant to you insofar as rebutting the defence suggestion of collusion between the complainant[s]. But as I said to you at [the] time those comments were made, any suggestion that you can, in essence, reason that the fact that there are five complainants, that five people have come forward, somehow bolsters each complainant's respective credibility is wrong in law.
To reason that simply because there are five complainants, this somehow reinforces the credibility of each complainant, as I say, is wrong in law. And I direct you to disregard any such submission. As I've said to you, your duty is to look at each charge separately and assess the evidence relevant to that charge.
You must bring in separate verdicts for each charge. And as I said to you on Tuesday, there are only limited circumstances in which you can use the evidence in relation to one count when considering another count, which I'm about to explain to you.
However, you cannot reason that the fact that there are five complainants somehow bolsters their respective credibility. As I've already explained to you, to convict the accused on any count, you need to be satisfied beyond reasonable doubt of the evidence of the complainant to whom that allegation relates. (emphasis added)
Particular D: teachers having more 'sway'
[16] ts 1248 - 1249.
The following exchange took place during the appellant's cross‑examination:[17]
[17] ts 1071 - 1072.
PROSECUTOR: Do you agree that back in the 1980s that teachers had - parents had more confidence in teachers?
MASSEY DCJ: Well, how can he answer that - how can he answer that? Is he a teacher now? What - what - what reference point - - -
PROSECUTOR: All right.
MASSEY DCJ: - - - does he have to compare it with?
PROSECUTOR: Okay. I'll move on, your Honour. As a teacher, if you told students what to do, would - they would generally do it. Correct?---Generally.
And I suggest to you that if any of the girls had told an adult about the sexual stuff that happened, you would - were confident that you would be believed over - - -?---I'm sorry.
- - - them?---I can't understand you with your hand in front of your mouth.
I'm suggesting to you, [appellant] - - -?---Yes.
- - - that if any of the girls told an adult about what had happened, you were confident that you would be believed over that complainant. Agree or disagree?---I disagree. The question never - - -
And you - - -?--- - - - arose.
You were confident because you were the adult and they were the student, weren't you?---There's no context there.
You were confident because there was no adult witnesses to any of the sexual offending, was there?---There's no witnesses to any of the alleged offending.
And all these years, you thought you got away with it, didn't you, [appellant]?
It was at this point that defence counsel objected to the line of questioning. When the trial judge asked the prosecutor to identify the purpose of the questioning, she moved on to a different topic. However, and notwithstanding the fact that the trial judge had intervened during her cross‑examination at this point, the prosecutor made the following submission in her closing address:[18]
The misassumption about sexual assault is that people, if you are generally sexually assaulted, you will tell straight away. That is a misconception. People who are sexually assaulted, as I said, may choose to never tell. And in this case, I suggest that for most of them they felt like at the time in their heads that they were in a consensual relationship.
It makes total sense why there wasn't complaints with authorities at the time. You're not going to tell your mum and dad that you're in a relationship with your teacher, are you? And [K] and [T] tell you the reasons why they didn't say anything at the time.
You need to picture what it was like back then. And I suggest to you that the 1980s were a lot different to how they are now. There's no Facebook. There's no mobile phones. And I suggest to you, using your common sense, that people in authority held more of authority figures. That teacher that day had more sway than teachers today. But that's a matter for your common experience. (emphasis added)
[18] State closing address, ts 43.
Immediately after the prosecutor had finished her closing address, and at the same time the trial judge gave the jury directions about the matters the subject of particulars B and C, his Honour directed the jury as follows:[19]
There was also another comment made to you about teachers back then would have more sway than today. There is simply no evidence about that at all, and again, that invites you to guess or speculate and I direct (inaudible).
[19] ts 1128.
In his final directions to the jury, the trial judge reiterated what he had said earlier:[20]
It was also put to you that teachers in the 80s held more sway over students than teachers today. Again, there's no evidence in this case about that, and so again, that would be inviting you to speculate about matters that are not in evidence. So you need to make sure that you don't guess or speculate about matters that are not in evidence and address the evidence and only the evidence when you're making your determinations.
Particular E: that the appellant paid for hotels in cash
[20] ts 1191.
Two of the complainants gave evidence that they had each engaged in sexual activity with the appellant at a motel, a hotel or at an apartment. The relevant offences were those charged in counts 14, 15 and 20. When the prosecutor cross‑examined the appellant about the allegation that he had gone to a motel with M where he committed the offence charged in count 20, the following exchange took place:[21]
[21] ts 1063 - 1065.
PROSECUTOR: And I suggest it was you that decided it was time to progress this to actual sex?---(No audible answer).
Didn't you?---No.
And I suggest that you took the opportunity when there was a pupil free day, didn't you?---No.
MASSEY DCJ: To do what?
PROSECUTOR: To go to the motel. This is all in the context of the motel?---No.
And I suggest - - -?---I would have gone to school.
And I suggest to you that you knew you wouldn't be noticed if you disappeared for a little while?---Of course - - -
Didn't you?--- - - - you'd be - I beg your pardon. Didn't her evidence say that we were there for four hours?
Agree or disagree? Agree or disagree?---Disagree. It's a silly question.
Now, you went to the motel in your green Mercedes, didn't you?---I didn't go to the motel.
And I suggest that you - you planned - you planned going to the motel?‑--(No audible answer).
Agree or disagree?---Disagree.
You brought a chicken with you and some champagne, didn't you?---No.
And of course, when you're at the motel, you're not going to pay with your credit card or the like?---I beg your pardon.
Are you? You didn't pay with a credit card at the motel?---It's 40 years ago, I don't know if they had credit cards.
Because cash was king back then, right?---I don't know.
Pay in cash?---Don't know.
And you're not going to put your real name on a motel - - -
MASSEY DCJ: Where's this - - -
PROSECUTOR: And you're not going to put your real name on a motel guest list, are you?
MASSEY DCJ: Sorry, where's this in the evidence? Is there any suggestion this is what happened? Because I don't recall it.
PROSECUTOR: Well, your - - -
MASSEY DCJ: Is there?
PROSECUTOR: Well, your Honour - - -
MASSEY DCJ: Is there?
PROSECUTOR: - - - it's a - - -
MASSEY DCJ: Is there? I've asked it four times. Is there any suggestion in the evidence that any of this is said to have happened?
PROSECUTOR: No.
MASSEY DCJ: Well, can you - - -
PROSECUTOR: No, your Honour.
MASSEY DCJ: - - - move on, then.
PROSECUTOR: All right. (emphasis added)
The prosecutor then complied with the trial judge's exhortation to 'move on' and cross‑examined the appellant about what the complainant said had happened in the motel room.
The prosecutor's cross‑examination about paying in cash was an attempt to deal with the fact that the police had not carried out any detailed investigation to identify any relevant motel, hotel or apartment.[22] The prosecutor was obviously mindful that the trial judge would give the jury a Longman direction, and that he would warn them that the appellant had suffered forensic disadvantages because the complainants had taken a long time to make complaints. However, although the trial judge had stopped the prosecutor from cross‑examining the appellant about whether he had used cash at a motel, the prosecutor made the following submission in her closing address:[23]
And at the end of the trial, his Honour, at law, is required to speak to you about the forensic disadvantage that [the appellant] has in defending this case. And [defence counsel] talked about it at the start of trial. She did talk about CCTV and DNA. But that wasn't in existence back then. So you can put that part of it to one side.
But, certainly, there is a forensic disadvantage that he has in defending the case. Absolutely. Records have been lost. Witnesses have died. Him being able to prove certain things - absolutely. And the State accepts that.
What you can put to one side, I suggest, ladies and gentlemen, was his hearsay comment about, 'There was some students here that I approached but they're not giving evidence because they were pressured'. Zero evidence about that. Whack that to one side. Or, 'I had some mate from the equity office, but his business suffered'. Zero evidence of that. Put that to one side as well, ladies and gentlemen.
But in relation to this forensic disadvantage, absolutely. The State is suggesting that he - you know, him going to motels that he's unlikely to have paid in cash or to, you know, left his name written down. The State's not saying he had his name on a list somewhere or he was actually renting out an apartment and the like.
But his Honour will tell you, and listen carefully to what his Honour says about the forensic disadvantage, because you're obliged to take that into consideration. But in relation to the investigating officer being criticised for not, you know, looking at information close enough, the information that he was given about the flat and the motel, I mean, he didn't have much to go on, in fairness to him.
He had a description. And this [is] 40 years ago. So I'd suggest trying to drive around and find those places would have been very difficult. And he made the decision not to do that. And that makes sense. (emphasis added)
[22] The police investigation into these matters was raised in the evidence of the investigating officer, Sergeant Robert John Miley (ts 883, 911 - 912, 920 - 921).
[23] State closing address, ts 45 - 46.
At the same time he gave the other directions after the prosecutor had finished her closing address, the trial judge gave the jury the following instruction:[24]
It was said to you during the course of that closing address that [the appellant] was unlikely [sic: likely] to have, I think, paid in cash at the hotels and that somehow there wouldn't [be] a record. There is absolutely no evidence about that, and that invites you to guess and speculate. I'm going to direct you to ignore that comment.
[24] ts 1128.
In his final directions, the trial judge returned to this topic when he gave the jury the following direction:[25]
I said to you yesterday that there were a couple of things that were said to you which invited speculative reason[ing]. I'm just going to use these as an example. It was put to you that the accused was likely to pay in cash for the motel rooms so no records would have been available. Even if the allegations may well prompt you, that submission really invites you to speculate or guess. I'm using it as an example, but that's the sort of reasoning you mustn't indulge in, because there's just no evidence one way or the other, and you're not to speculate or guess.
Particular F: prejudicial reference to a witness' occupation
[25] ts 1190 - 1191.
The prosecution case was that the offence charged in count 10 was committed in an office occupied by an organisation described at trial as 'Actors' Equity'. The appellant adduced evidence from several witnesses as part of his defence case, including Ms Micheli, a retired conveyancer. Ms Micheli gave evidence about the layout of an office on Colin Street in West Perth, which the defence asserted must have been the office relating to count 10. The appellant relied on Ms Micheli's evidence, together with some photographs of the Colin Street office, to raise doubts about the complainant's reliability, having regard to her memory of the layout of that office.
In her closing address, the prosecutor made the following submissions, which were calculated to downplay the significance of Ms Micheli's evidence about the layout of the office:[26]
[Y]ou were given some images from an address in West Perth, so what the layout currently looks like, what the office currently looks like. Some real estate agent lady that said in 2013 she bought it, 'This is what it looked like' and, you know, I don't know how much a layout like that can assist you to what it looked like 40 years ago if we're saying this was the office[.] (emphasis added)
[26] State closing address, ts 26.
The appellant's counsel relied on the prosecutor's reference to Ms Micheli as 'some real estate agent lady' in the context of an unsuccessful application to discharge the jury as an example of intemperate language that adversely impacted on the fairness of the appellant's trial. However, the trial judge did not make any reference to it in his directions to the jury, and defence counsel did not seek any further directions.
Particular G: prejudicial description of act of tongue‑kissing
The appellant was asked in his evidence‑in‑chief to respond to the allegations made by D, including allegations that he had kissed her on several occasions while they were in the drama shed together. Although the appellant denied that this had ever occurred, he did give the following evidence about an event that he said did happen in that shed in 1988, on the last student day of school:[27]
[27] ts 993 - 995.
DEFENCE COUNSEL: I think you mentioned - sorry, on the last student day on 1988, did you see [D] that day?---Yes, I did.
Okay. Where was that?---It's in the drama shed.
Okay. Why were you there?---I was cleaning up. It was my last day at the school.
Mm hmm?---And I was just cleaning up some - some personal stuff.
And was this by arrangement that she saw you there?---No.
So was the door to the drama shed open or closed?---It was open.
Okay. So she saw you at the drama shed and what happened?---She came in, she was a bit teary, and asked - that she was sorry that I was leaving - said that she was sorry that I was leaving, but could she give me a kiss goodbye.
Mm hmm?---And I said yes and I leaned down with my face turned so that she could kiss me on the cheek, and she - - -
Right. Let me stop you there because again I have to describe an action for the transcript?---Sure.
So you've demonstrated leaning forward and turning your head to the left?---I - I think it was to the left.
Okay. Are you sure about that or not?---No, I'm not sure - - -
Okay?--- - - - about which side.
So you've demonstrated leaning forward and turning your head to about a 45‑degree angle.
Yes?---Okay.
And so you did that?---Yes.
And why did you turn your head?---So that she - if she wanted to give me a kiss goodbye, she could kiss me on the cheek.
Okay. And did she kiss you on the cheek?---No.
What happened?---She kissed me on the mouth.
How did she manage to do that with you head turned?---She turned her head at the same time - - -
Mm hmm?--- - - - and shifted her body so that she could kiss me on the mouth.
How did you feel about that?---Well, I was pretty shocked because she put her tongue in my mouth too.
Mm?---And I was fairly shocked. And I grasped her by her upper arms - - -
Mm hmm?--- - - - and pushed her away gently and said, '[D]' - words to this effect, and I'm pretty sure I'm actually accurate with what I said, '[D], you're 14. If you reverse those numbers, that's how old I am. Don't be silly.' (emphasis added)
The prosecutor sought to deal with this evidence in her closing address in the following way:[28]
It's seriously being suggested to you that she had a crush on her teacher and she called him up and propositioned him to come to her parents' house and that when he was leaving school she's all teary and goes into the shed and asks her for a kiss and then sticks his tongue down her throat. I suggest to you just put that to one side. Go back to the evidence of [D]. And are you satisfied of her reliability and credibility when she tells you about the sexual acts that happened with [the appellant]. (emphasis added)
[28] State closing address, ts 41. The prosecutor appeared to misstate the appellant's evidence by submitting that the appellant had said that he stuck his tongue down D's throat. The appellant gave evidence that it was D who put her tongue in his mouth at ts 994.
The appellant's counsel also relied on the prosecutor's use of the phrase 'sticks his tongue down her throat' as another example of intemperate language in support of her application to discharge the jury. Again, the trial judge made no mention of this aspect of the prosecutor's closing address in any of his directions to the jury, and the appellant's counsel did not seek any further directions about that matter.
The trial judge's refusal to discharge the jury
At the end of the prosecutor's closing address, and after the trial judge had directed the jury about the matters the subject of particulars B, C, D and E, to which we have already referred, the appellant's counsel said that she may apply to discharge the jury. However, counsel also said that she wanted to take instructions from the appellant and to give the matter further consideration overnight.
When the trial resumed the following day, the appellant's counsel applied for the jury to be discharged. After hearing submissions from both counsel, the trial judge refused the application. The trial judge noted that the application to discharge the jury was based on what the appellant's counsel submitted was the cumulative effect of almost all of the matters that are now the subject of the particulars of ground 1.[29] His Honour took into account counsel's submission that there was a real probability that the jury had already been impermissibly influenced by what the prosecutor had said in her closing address. He also noted an argument that the impermissible prejudice caused by the closing address could not be cured by directions given at the end of the trial, even when considered in light of the directions that were given to the jury immediately after the prosecutor's address.
[29] The matter the subject of particular A was not raised at the appellant's trial, and was not relied on in support of the application to discharge the jury.
In refusing the application to discharge the jury, his Honour observed that the application had been, in effect, made pursuant to s 116 of the Criminal Procedure Act 2004 (WA), which is in the following terms:
116. Discharging jury
(1) The powers in this section may be exercised at any time before a jury gives its verdict.
(2)The judge may discharge the jury from giving its verdict on a charge if the judge is satisfied it is in the interests of justice to do so.
(3) If under subsection (2) or another enactment a jury is discharged from giving its verdict in a trial of a charge, the trial is discontinued.
(4) If under subsection (2) or another enactment, a judge discharges a jury from giving its verdict on a charge and another trial of the charge is or may be required, the judge -
(a)may order the other trial to begin immediately or at a later time or date set by the judge; or
(b) may adjourn the prosecution of the charge.
(5)Subsection (4) does not affect a judge's powers under section 93 or 108 or to determine the charge in accordance with this Act.
(6)The discharge of a jury from giving its verdict in a trial does not affect any duty of the jurors to attend under the Juries Act 1957.
The trial judge ultimately concluded that while some aspects of the prosecutor's closing address gave rise to the risk of unfair prejudice, any such risk could be adequately cured by appropriate directions, having regard to the directions that had already been given to the jury.[30]
Determination of ground 1
[30] ts 1171 - 1172.
In Eric v The State of Western Australia, Buss P and Mazza JA observed that the concept of 'in the interests of justice' in s 116(2) includes not only the interests of the accused, but also the public interest in the proper functioning, and the protection of the integrity, of the criminal justice system as administered in the trial of an accused before a judge and jury.[31] Further, the fundamental (but not the only) matter with which s 116 is concerned is the public interest that an accused receives a fair trial according to law. Accordingly, it will be 'in the interests of justice' within s 116(2) to discharge a jury from giving its verdict on a charge if a judge is satisfied that there is a real and substantial (as distinct from a remote) risk that the accused will not receive a fair trial, according to law, in respect of the charge. Ultimately, a judge is required to reach a conclusion about whether they are satisfied that it is in the interests of justice to discharge a jury after evaluating factors that may pull in different directions, some favouring a discharge and some that may not.
[31] Eric v The State of Western Australia [2019] WASCA 101 [39] - [43].
However, in this State it has been held that when a trial judge refuses to discharge a jury, and the accused is convicted, an appeal by the accused is against the conviction and not against the exercise of the trial judge's discretion under s 116(2).[32]
[32] Narrier v The State of Western Australia [2008] WASCA 191; (2008) 38 WAR 161 [31] (Buss JA; Martin CJ & Wheeler JA agreeing) and Kitto v The State of Western Australia [2019] WASCA 161 [70].
Recently, in Ilievski v The King; Nolan v The King (No 2),[33] Dhanji J said that an appeal based on a trial judge's refusal to discharge the jury may be open if error of the type referred to in House v The King[34] is established. However, the appellant has not submitted that the trial judge made any House v The King error. Further, it was not submitted that the applicable standard for appellate review is the 'correctness standard', contrary to the long‑standing approach that has been taken in this State to appeals against conviction where a trial judge has refused to discharge the jury. Accordingly, the appellant's contention that ground 1 should be upheld on the basis that the trial judge made a wrong decision on a question of law in refusing the application to discharge the jury must be rejected.
[33] Ilievski v The King; Nolan v The King (No 2) [2023] NSWCCA 248; (2023) 112 NSWLR 375 [89] (Dhanji J, Lonergan J agreeing).
[34] House v The King [1936] HCA 40; (1936) 55 CLR 499.
In circumstances where inadmissible evidence (such as evidence of an accused's prior convictions) was inadvertently adduced at trial and the trial judge refused to discharge the jury, this court must determine for itself whether that refusal occasioned a miscarriage of justice within s 30(3)(c) of the Criminal Appeals Act 2004 (WA). There is no reason to think that a different approach should be taken when an appellant complains that the prosecutor's closing address occasioned a miscarriage of justice.
In considering whether there has been a miscarriage of justice based on a failure to discharge a jury, the views of the trial judge will be accorded significant weight. As Dawson J observed in Crofts v The Queen:[35]
Whether or not a jury should be discharged by reason of some incident which occurs during the course of a trial is a matter within the trial judge's discretion. But it is a discretion which is to be exercised in favour of a discharge only when that course is necessary to prevent a miscarriage of justice. It is in that sense that it has been said that the underlying principle is that of necessity and that 'a high degree of need for such discharge' must appear before a discharge will be ordered. When a trial judge's refusal to discharge a jury is called in question, it must be borne in mind that he or she is ordinarily in a better position than an appeal court to assess whether, having regard to the course which the trial has taken and the atmosphere in which it has been conducted, any prejudice may be dispelled by a clear warning to the jury. (footnotes omitted)
[35] Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427, 432.
As Quinlan CJ and Vandongen JA recently noted in Smith v The State of Western Australia:[36]
In HCF v The Queen [(2023) 97 ALJR 978 [2]], a majority of the High Court (Gageler CJ, Gleeson and Jagot JJ) referred to the decision of Beech‑Jones CJ at CL (as his Honour then was) in Zhou v The Queen [[2021] NSWCCA 278], in which his Honour provided a 'summary concerning those errors or irregularities that will amount to a miscarriage of justice'. In that regard, the majority noted, with apparent approval, the following observations that were made by his Honour in Zhou [[22]]:
'[If] the error or irregularity "is properly characterised as a 'failure to observe the requirements of the criminal process in a fundamental respect' then it would follow that the conviction would not stand regardless of any assessment of its potential effect on the trial", but otherwise there is no miscarriage unless the error or irregularity is "prejudicial in the sense that there was a 'real chance' that it affected the jury's verdict ... or 'realistically [could] have affected the verdict of guilt' ... or 'had the capacity for practical injustice' or was 'capable of affecting the result of the trial".' (citations omitted)
[36] Smith v The State of Western Australia [2024] WASCA 52 [222] (Quinlan CJ & Vandongen JA). See also the observations that were made by Dhanji J (with whom Lonergan J agreed) in Ilievski v The King; Nolan v The King (No 2) [89], when setting out the considerations that will generally be relevant when considering an appeal from a conviction where a trial judge refused to discharge a jury after the admission of unfairly prejudicial material.
The appellant does not contend that the prosecutor's closing address undermined the requirements of a criminal process in a fundamental respect. Accordingly, for the appellant to succeed on ground 1 he must establish, by reference to the matters the subject of the particulars of that ground, that the prosecutor's closing address amounted to an error or irregularity, and that it was 'prejudicial' in the sense endorsed by Gageler CJ, Gleeson and Jagot JJ in HCF.
Whether the prosecutor's closing address occasioned a miscarriage of justice must be determined having regard to the whole of the trial, including any directions that were given by the trial judge.[37] As has been said on many occasions, the system of justice requires the assumption, generally, that juries understand and follow instructions that are given to them by trial judges.[38]
[37] Goedecke v The State of Western Australia [2013] WASCA 25 [35] (Mazza JA).
[38] Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 [13] (Gleeson CJ & Gummow J), [31] (McHugh J); Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 [28] ‑ [29] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel & Bell JJ).
If the court decides that there was a miscarriage of justice, it may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[39]
[39] Section 30(4) of the Criminal Appeals Act.
The principles concerning the duties of prosecutors were helpfully identified by Vaughan JA in Dayananda v The State of Western Australia.[40] Relevantly, in a closing address, a prosecutor should not:[41]
(i)make a submission based on material that is not in evidence;
(ii)make or use intemperate or inflammatory comments tending to arouse prejudice or emotion in the jury;
(iii)make comments which belittle or ridicule any part of the accused's case;
(iv)introduce false lines of reasoning;
(v)invite a jury to speculate about the evidence; or
(vi)convey the prosecutor's personal opinion.
[40] Dayananda v The State of Western Australia [2021] WASCA 11 [75] - [79] (Buss P & Mazza JA), [126] (Vaughan JA).
[41] Dayananda v The State of Western Australia [126] (Vaughan JA). See also [76] (Buss P & Mazza JA).
At the risk of stating the obvious, we would also add that a prosecutor should not make a submission to a jury that contravenes or undermines any rulings made by a trial judge.
These principles demonstrate that the prosecutor made several submissions in her closing address that she should not have made. However, it does not follow that any of those submissions, or the closing address when considered as a whole, occasioned a miscarriage of justice.
The prosecutor should not have made submissions that invited the jury to conclude that teachers had more 'sway' at the time of the offences (particular D), or that the appellant was likely to have used cash to pay for the use of a motel or hotel room (particular E). Those submissions invited the jury to speculate about matters that were not in evidence. They also ignored the previous indications the trial judge had given to the prosecutor that her cross‑examination about those topics should cease. However, neither of those submissions gave rise to any risk that the appellant would not receive a fair trial according to law.
Quite apart from the fact that the submissions were concerned with peripheral matters, speculation about which would have been most unlikely to have had any effect on the jury's consideration of the truthfulness and reliability of the evidence given by the complainants, the trial judge gave unmistakably firm and curative directions immediately after the prosecutor finished her closing address. After the trial judge reminded the jury that he was 'the judge of the law in relation to this trial and what [he says] is binding on [them]', he then directed the jury to 'ignore' the prosecutor's submissions about those issues.[42] The trial judge then reiterated those instructions in his final directions to the jury.[43]
[42] ts 1128 (emphasis added).
[43] ts 1190 - 1191.
In that light, and on the necessary assumption that the jury followed the trial judge's directions, there can be no realistic possibility that either of these aspects of the prosecutor's closing address affected the jury's verdicts.
The prosecutor also should not have made submissions that invited the jury to reason from the number of complainants to a conclusion that the appellant was the type of person who was more likely to have committed the offences with which he was charged (particular C), or to find that the appellant had 'tailored his answers' when he gave evidence because, unlike the complainants, he had previously seen the evidence in the prosecution brief (particular B). The trial judge had previously ruled that the jury could engage in propensity reasoning but only on a very limited basis. The prosecutor's submissions contravened that ruling. Further, it should have been obvious to the prosecutor that she should not have made submissions that suggested that the appellant had tailored his evidence based on what the prosecution had disclosed to him because the trial judge had previously told her that he felt 'a little uncomfortable' when he stopped her from pursuing that line of cross‑examination.
However, once again, after the prosecutor had completed her closing address, the trial judge gave the jury the very strong corrective directions about both issues that we have reproduced earlier in these reasons, and then echoed those directions at the end of the trial. There is nothing to suggest that the jury did anything other than follow those directions and that they therefore eschewed the reasoning process the prosecutor had invited them to engage in. It follows that the prosecutor's submissions about these matters were not capable of affecting the verdicts, and they did not occasion a miscarriage of justice.
Before dealing with particulars A, F and G, it is necessary to say something further about the respondent's submissions concerning particular B, and the prosecutor's attempt to rely on an argument that the appellant had tailored his evidence based on the evidence that had been disclosed to him by the State in accordance with statutory and common law obligations of disclosure.
The respondent's written submissions,[44] and counsel's oral submissions at the hearing of the appeal,[45] tended to suggest that Gray v The State of Western Australia[46] is authority for the proposition that it is always permissible for a prosecutor to suggest to an accused person in cross‑examination that they tailored their evidence based on the witness statements and exhibits provided to them prior to trial in the proper discharge of the prosecution's obligations of disclosure. As the court did not have the benefit of considered submissions about this issue, and it is not necessary to resolve this issue in order to determine this appeal, it would not be appropriate to express a concluded view. However, and for the avoidance of doubt, it should not be assumed that the respondent's submissions are correct.
[44] Respondent's written submissions, pars 18 - 23.
[45] Appeal ts 24 - 26.
[46] Gray v The State of Western Australia [2015] WASCA 108; (2015) 71 MVR 31.
In Gray, it was argued that the prosecutor's cross‑examination of the appellant, and his closing address, improperly undermined the appellant's right to silence. In that regard, the appellant in Gray contended that his right to remain silent was infringed because the prosecutor contended that 'the appellant's evidence was a fabrication developed over time and with the knowledge of the prosecution brief and the testimony of the witnesses at the trial'.[47] This court rejected that contention. The court in Gray did not state that it was always permissible for a prosecutor to cross-examine an accused in the manner described at [101], and nothing said in Gray supports such a proposition. Nor did the court state that such a line of cross‑examination could never give rise to a miscarriage of justice.
[47] Gray v The State of Western Australia [55].
In Hofer v The Queen,[48] the High Court considered the propriety of a prosecutor cross‑examining an accused about their own counsel's failure to ask questions of a prosecution witness about certain matters, with a view to suggesting that the accused's evidence about those same matters was a recent invention. In that regard, Kiefel CJ, Keane and Gleeson JJ said:[49]
The reasoning behind a decision to cross‑examine the accused in pursuit of this purpose may readily be inferred. It commences with the fact that a matter is not put by defence counsel; it assumes that the reason for the omission is that counsel was unaware of the matter and that counsel was unaware because the accused had not given an account of it in his or her instructions. The conclusion reached is that the accused must now be making the evidence up.
In R v Manunta,[50] King CJ observed that an examination of an accused person which proceeds by reference to there being but one reason why a matter has not been put to a witness is 'fraught with peril'. As his Honour there observed, there may be many explanations for the omission which do not reflect upon the credibility of the accused. His Honour gave as examples defence counsel misunderstanding the accused's instructions or where forensic pressures may have resulted in looseness in the framing of questions. To these may be added the possibility that defence counsel has chosen not to advance certain matters upon which he or she had instructions because they were unlikely to assist the defence.
Where there remains a number of possible explanations as to why a matter was not put to a witness, there is no proper basis for a line of questioning directed to impugning the credit of an accused. Except in the clearest of cases, where there are clear indications of recent invention, an accused person should not be subjected to this kind of questioning. The potential for prejudice to an accused is obvious.
Proceeding on the basis of a mere assumption as to lack of instructions is likely to be productive of further unfairness in the course of the cross‑examination. The assumption will inevitably lead to impermissible questions of the accused, put expressly or arising implicitly, as to the actual instructions he or she gave. An accused person faced with questioning of this kind is likely to feel obliged to attempt to explain by reference to the instructions he or she in fact gave when in reality the accused carries no such onus. Questioning of this kind may result in the need for counsel or the solicitor for the defence having to disclose those instructions. This is a circumstance which should not arise. (emphasis added)
[48] Hofer v The Queen [2021] HCA 36; (2021) 274 CLR 351.
[49] Hofer v The Queen [32] - [35] (Kiefel CJ, Keane & Gleeson JJ) (citations omitted).
[50] R v Manunta (1989) 54 SASR 17, 23.
There are parallels between the perils attending upon cross‑examining an accused about their own counsel's failure to ask questions of prosecution witnesses, and those that arise when a suggestion is made in cross‑examination that the evidence of an accused has been fabricated around the prosecution brief and the evidence of witnesses at trial. An allegation of fabricated evidence based on a mere assumption derived from the fact that an accused, like all persons accused of a serious offence, has been afforded his or her entitlement to pre‑trial disclosure of the prosecution brief, and to be present during their own trial, is likely to be productive of an unfairness. Amongst other matters, when faced with such a suggestion an accused person is likely to feel obliged to explain the evidence they have given by reference to privileged communications, and unfair pressure may be brought to bear on legal advisors to give evidence about such communications.
There is no substance in the appellant's complaint about the prosecutor's submissions that are the subject of particulars A, F and G. None of those submissions invited the jury to engage in impermissible reasoning, and the language that was used could not sensibly be described as intemperate or inflammatory.
The prosecutor's suggestion that the jury's answer to the question about whether they believed the complainants would lead them to their verdicts (particular A), was unobjectionable and could not have resulted in an unfair trial. The prosecutor very properly made it clear elsewhere in her closing address that the jury had to be satisfied beyond reasonable doubt about the appellant's guilt before they could convict him of any charge. Further, the trial judge told the jury on several occasions, both at the start and at the end of the trial, that the State had to prove the appellant's guilt beyond reasonable doubt. The trial judge also specifically referred to each individual complainant in his final directions and told the jury that they could not convict the appellant of any count on the indictment relating to a complainant unless they were satisfied beyond reasonable doubt about the truthfulness, accuracy and reliability of that complainant's evidence.[51]
[51] ts 1191 - 1192.
Neither the prosecutor's reference to Ms Micheli as 'some real estate agent lady'[52] (particular F), nor her use of the phrase 'sticks his tongue down [her] throat' (particular G), were the subject of any of the trial judge's directions to the jury. That is hardly surprising. Nothing the prosecutor said in this regard was likely to have aroused prejudice or emotion, and could not sensibly be seen as being capable of giving rise to any risk of an unfair trial.
[52] The ground of appeal incorrectly reproduced what was said by the prosecutor.
In our view, there is no real or substantial risk that the fairness of the appellant's trial was imperilled by any of the matters referred to in the particulars to ground 1, whether considered alone or in combination, having particular regard to the directions that were given to the jury. There is no reason to doubt that the jury did anything other than follow the trial judge's clear directions that were tailored to extinguish any risk of unfair prejudice that might otherwise have flowed from the prosecutor's closing address.
Ground 1 does not have any reasonable prospect of succeeding. Accordingly, leave to appeal in relation to that ground should be refused.
Ground 2
This ground is devoid of merit. To explain why we have come to this view, it is necessary to give some background to the directions that the appellant now says were inadequate. However, before setting out the background, it is important to note that the appellant does not contend that any alleged inadequacy in the trial judge's directions amounted to a wrong decision on a question of law, under s 30(3)(b) of the Criminal Appeals Act. Rather, the appellant's complaint is that the directions occasioned a miscarriage of justice. However, the appellant's counsel did not raise any objections at the conclusion of the trial judge's directions. The absence of any objection is not an insurmountable barrier to a conclusion that there was a miscarriage of justice, but it may tend against a finding that there was a perceptible risk of a miscarriage of justice at the trial.[53]
[53] Wilson v The State of Western Australia [2023] WASCA 161 [53].
Before the start of the appellant's trial, the prosecutor sought a ruling that the evidence relating to the various counts on the indictment were cross‑admissible, under s 31A of the Evidence Act 1906 (WA), in proof of all the other counts on the indictment. In support of her application, the prosecutor argued, in effect, that the evidence relevant to each individual offence was admissible to prove that the appellant had a sexual interest in his teenage, female, drama students and that he had a tendency to act on that interest. At the close of the State's case, the appellant's counsel advised the trial judge that she was 'not taking issue' with that application.[54] The trial judge then indicated that he had reached a preliminary view about the State's application, but said that he wanted to reflect further on the application before making a final ruling.
[54] ts 927 - 928.
Before counsel addressed the jury, the trial judge confirmed his preliminary view and made a ruling that a finding of guilt in relation to any count involving one complainant would be cross‑admissible in relation to all counts involving that same complainant.[55] However, the trial judge also ruled that any findings of guilt in relation to any count or counts in which it was alleged that the appellant had kissed a complainant would be cross‑admissible in relation to any other count in which it was also alleged that the appellant had kissed another complainant.[56] The trial judge concluded that same reasoning process would also be available to the jury in relation to counts where the jury found the appellant guilty of an offence in which he was alleged to have procured a complainant to touch his penis,[57] or where he had touched or penetrated a complainant's vagina or anus,[58] and, similarly, in relation to findings of guilt with respect to those counts alleging that the appellant had engaged in carnal knowledge.[59]
[55] ts 1118.
[56] The counts in the indictment in which it was alleged that the appellant had kissed a complainant were counts 1, 10, 17, 18, 19, 21 and 22.
[57] Counts 2 - 5, 7, 12 and 23.
[58] Counts 6, 8, 9, 11 and 14.
[59] Counts 13, 15, 16 and 20.
The trial judge gave the jury directions that were consistent with this ruling.[60] In so directing, the trial judge effectively limited the circumstances in which the jury could resort to propensity reasoning by reference to categories of the physical acts that constituted the alleged criminal conduct.[61]
[60] ts 1257 - 1266.
[61] ts 1118 - 1119.
The trial judge's directions appear to have been unduly favourable to the appellant. Although it is not necessary to express any concluded views, it is not immediately apparent why, for example, evidence that the appellant had kissed one of the complainants was not significantly probative of the appellant's guilt in relation to all the other counts on the indictment, irrespective of any differences in the alleged physical conduct underlying those counts. In all of the circumstances, it is difficult to see why evidence that the appellant had kissed a teenage girl who was one of his drama students (or that he had engaged in any of the other charged conduct with a teenage, female student) would not be considered to be evidence that was capable, either by itself or having regard to other evidence adduced or to be adduced, of rationally affecting, to a significant extent, the assessment of the probability of whether the appellant had engaged in sexual conduct with another of his teenage, female students.[62]
[62] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [185], citing DKA v The State of Western Australia [2017] WASCA 44.
We also observe that the jury were instructed that they could not use any evidence relating to one count to engage in propensity reasoning, unless they were first satisfied that the prosecution had proved, beyond reasonable doubt, that the appellant had committed the offence charged in that count. In light of the recent decision of Director of Public Prosecutions v Benjamin Roder (a pseudonym),[63] which was published by the High Court well after his Honour directed the jury in this case, the correctness of such a direction might now also be doubted.
[63] Director of Public Prosecutions (Vic) v Benjamin Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644.
Nevertheless, and proceeding on the assumption that the trial judge was required to direct the jury in the way they were directed, the appellant's contention that the trial judge ought to have gone further and warned the jury that 'only the evidence of the charges in the same category of offence was cross‑admissible upon the issue of propensity as amongst the five complainants' must be rejected. This is because the trial judge did give the jury the directions that the appellant complains were omitted. In that regard, his Honour expressly directed the jury that:[64]
You can only use a finding of guilt on a kissing charge when you're considering the other kissing charges and so on. You can only use a finding of guilt on a touching of the penis charge when considering the other touching of the penis charge.
And you can only use a finding of guilt on the touching or digital penetration charges when considering the other touching or digital penetration charges. And you can only use a finding of guilt on the carnal knowledge charges when you're considering the other carnal knowledge charges.
[64] ts 1260.
The trial judge referred to several character references that the appellant relied on for the purposes of sentencing and concluded that the appellant was a person who was otherwise of good character. His Honour accepted that while this was a mitigating factor, he could only give it limited weight because of the seriousness of the offending.
In relation to the appellant's various medical conditions, the trial judge accepted that he had been diagnosed with the various conditions referred to earlier in these reasons. However, he found that adequate steps could be put in place to ensure that the appellant had access to the treatment and medication he required, including on an urgent basis. His Honour said:[70]
While I do take into account your health issues and have reduced the sentence I'd otherwise have imposed because of those health issues, I do not accept that the prison [does] not have the capacity to look after those health issues or that the prison will not look after those issues.
If your experience is contrary to my [findings] as Dr Pascu [said], then that is a matter for the relevant authorities to deal with. But I am comforted by the assurances as I say, at the highest levels from within the prison system that you will be adequately cared for.
I do take into account the fact that your health issues and your age generally will make you more vulnerable in a prison setting. Your medical condition is a relevant mitigating factor, but again, it's only one of the factors which need to be taken into account in determining an appropriate sentence.
[70] ts 1407.
At another point in his sentencing remarks, and after referring to this court's decision in Gulyas v The State of Western Australia,[71] the trial judge concluded that:[72]
An appropriate balance has to be kept between the criminality in question and any health or shortening of life considerations.
While I do accept a term of imprisonment will be a greater burden on you by reason of your state of health because of your vulnerability within a prison, and I have reduced the sentence I would impose on you accordingly, I do not accept there is a serious risk of imprisonment having a gravely adverse effect on your health for the reasons I've already stated.
[71] Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 [36].
[72] ts 1408.
The trial judge also found that the appellant was at a low risk of reoffending, given the opportunistic nature of the offending and having regard to his advanced age and health issues, and he considered that there was little need for personal deterrence. His Honour took into account the fact that the appellant had suffered from some mental health issues after he was arrested and charged. Further, he took into account the fact that the appellant had cooperated by making some admissions at his trial, and that this would be the first time he had been sent to prison.
The trial judge concluded that the main sentencing considerations were general deterrence and the need for a sentence that had a denunciatory effect. He also reached the view that the only appropriate sentences were terms of imprisonment to be immediately served. The trial judge explained that he reduced the sentences he would otherwise have imposed to take into account the appellant's advanced age, his prior good character, and the fact that a term of imprisonment would be a greater burden on the appellant by reason of his poor health, as well as other mitigating factors.[73]
[73] ts 1409.
After announcing the individual sentences that he intended to impose, and after making express reference to both limbs of the totality principle, the trial judge ordered that the appellant serve a total effective term of 10 years' imprisonment. The individual sentences were structured in the manner that we have referred to earlier in these reasons.[74]
[74] See [121] of these reasons.
The trial judge also made an order that the appellant be eligible to be considered for release on parole.
Legal principles
The legal principles that are relevant to an appeal in which it is contended that error should be inferred from the length of a total effective sentence are well known and have been referred to on countless occasions. There is no need for us to repeat was said in Kabambi v The State of Western Australia.[75] It is sufficient to note the following.
[75] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The first limb of the totality principle relevantly requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all the offences, having regard to all relevant sentencing factors and the total effective sentences imposed in comparable cases.
The range of sentences customarily imposed for an offence does not establish the range of a sound exercise of the sentencing discretion. When this court dismisses an appeal against sentence or when it imposes a new sentence after a successful appeal, the decision does not fix the upper or lower limit of the range. Sentences customarily imposed in comparable cases only provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors. There is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
Where there is a challenge on totality grounds, the severity of a sentence imposed for an individual offence generally falls to be assessed in light of the sentences imposed in respect of the other offences and its contribution to the total effective sentence. However, the real question is whether the total effective sentence is unreasonable or plainly unjust.
In UGN v The State of Western Australia, the second limb of the totality principle was described in this way:[76]
The second limb [of the totality principle] is that the court should not impose a 'crushing' sentence. The word 'crushing' in this context connotes the destruction of any reasonable expectation of a useful life after release. Advanced age is a relevant consideration in determining whether an aggregate sentence is 'crushing'. However, whether and, if so, to what extent, leniency should be given to an offender by reason of his or her advanced age depends on all the facts and circumstances of the particular case. For example, offences may be so serious that humanitarian considerations relating to advanced age cannot be accommodated. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing.
[76] UGN v The State of Western Australia [2021] WASCA 10 [39].
Advanced age is a relevant consideration in determining whether a sentence will be crushing as each year of a sentence represents a substantial proportion of the period of life left to an offender of advanced age.[77]
[77] Headley v The State of Western Australia [2018] WASCA 37 [30].
The second limb of the totality principle is not absolute. There are cases in which an offender, by the very nature of their criminal acts, has forfeited the right to any expectation of being released from prison at a time that would permit them to enjoy their remaining life.[78]
[78] Wark v The State of Western Australia [2023] WASCA 66 [639].
Further, it is unusual for a total effective sentence to be reduced because it infringes the second limb of the totality principle. Even in circumstances where an offender is of advanced age, that fact alone does not necessarily require a reduction in sentence.[79]
[79] Wark v The State of Western Australia [2023] WASCA 66 [640].
The general principles applicable to sentencing persons convicted of committing sexual offences against young children are also well known. In OTR v The State of Western Australia [No 2], those principles were summarised as follows:[80]
[80] OTR v The State of Western Australia [No 2] [2022] WASCA 123 [55] - [57].
The authorities establish the following propositions in relation to sentencing for sexual offending against children:
1.There is no tariff for sexual offences against children. That is due to the great variation that can occur in the circumstances of the offending and the offenders themselves.
2.The primary sentencing considerations for sexual offending against children are appropriate punishment of the offender and general and personal deterrence - these considerations being informed by the need to protect vulnerable children.
3.Matters personal to an offender will ordinarily carry less weight.
4.In particular, the circumstance that an offender is otherwise of prior good character has little weight in cases of sexual offending against children. The offending is of such a nature that, until revealed, it generally will not impinge on others and will not affect their perception of the offender. Such offending can exist conformably with an otherwise apparent good character.
It was observed in 2012 that, in recent years, there had been a firming up of sentences imposed for sexual offences against children - particularly in cases involving intra‑familial sexual abuse.
Some cumulation of sentences is to be expected to reflect the fact that an offender's sexual offending against children involves multiple victims. Also, some cumulation of individual sentences is to be expected where there is repetitive and prolonged sexual offending against an individual child. This reflects the increased likelihood of significant and enduring harm that comes with such repetitive and prolonged sexual abuse, as well as to reflect the fact that the offender has not simply given way to impulse on an occasion. (citations omitted)
The appellant committed offences contrary to s 189(1)(iii) and s 190 of the Code, both of which were repealed on 1 August 1992. As was observed in EXF v The State of Western Australia:[81]
Whilst it is not relevant to take into account that similar offences committed today would be subject to higher maximum penalties, it is appropriate to take into account contemporary understanding of the seriousness of such conduct. (citations omitted)
Submissions
[81] EXF v The State of Western Australia [2015] WASCA 118 [69].
At various points in the appellant's written submissions, it appeared to be argued that the trial judge made errors in finding that the appellant's medical conditions could be adequately managed while he was in custody.[82] At other points, it appeared to be suggested that the trial judge had made weighting errors.[83] However, at the hearing of the appeal, the appellant's counsel confirmed that the contention relied on is that error should be inferred from the length of the total effective sentence. In that regard, it was submitted that the total effective sentence of 10 years' imprisonment infringed both limbs of the totality principle.[84] Specifically, the appellant says that the total effective sentence was unreasonable or plainly unjust, and that this court must conclude that a substantial wrong has occurred, having particular regard to the appellant's age and state of health at the time he was sentenced, the onerous impact on the appellant of a term of imprisonment, the fact that he was otherwise of good character, as well as the other mitigating factors that the trial judge took into account.
[82] Appellant's written submissions, pars 49, 52 - 57.
[83] Appellant's written submissions, par 59.
[84] Appeal ts 31.
In his written submissions, the appellant referred to several cases and submitted that they were relevant comparators. Those cases were: NE v The State of Western Australia;[85] Headley v The State of Western Australia;[86] LTT v The State of Western Australia;[87] UGN v The State of Western Australia;[88] XMB v The State of Western Australia;[89] Newton v The State of Western Australia;[90] Menmuir v The State of Western Australia;[91] JAF v The State of Western Australia;[92] Walters v The State of Western Australia;[93] and Guagliardo v The State of Western Australia.[94]
[85] NE v The State of Western Australia [2021] WASCA 172.
[86] Headley v The State of Western Australia [2018] WASCA 37.
[87] LTT v The State of Western Australia [2022] WASCA 31.
[88] UGN v The State of Western Australia [2021] WASCA 10.
[89] XMB v The State of Western Australia [2023] WASCA 4.
[90] Newton v The State of Western Australia [2023] WASCA 7.
[91] Menmuir v The State of Western Australia [2018] WASCA 13.
[92] JAF v The State of Western Australia [2008] WASCA 231; (2008) 190 A Crim R 124.
[93] Walters v The State of Western Australia [2018] WASCA 3.
[94] Guagliardo v The State of Western Australia [2023] WASCA 71.
The respondent submits that many of the offences would be serious offences of sexual penetration of a child rather than indecent dealing if they were committed today, and says that although the appropriate penalty is to be determined by reference to the maximum penalties in place at the time of the offences, it is appropriate to take into account contemporary understanding of the seriousness of such conduct.
The respondent also says that the total effective sentence is comprised of several individual sentences, each of which are within the range of a proper exercise of the sentencing discretion, and which were subject to a 'relatively generous approach to accumulation'.[95] Further, the respondent submits that the total sentence could not properly be described as 'crushing', and that no measure of leniency should be afforded to the appellant on account of his age and medical conditions due to the serious nature of the offending, having particular regard to the fact that he offended against five of his students.
Merits of appeal against sentence
[95] Respondent's written submissions, par 20.
At the time of the appellant's offending, the maximum penalty for an offence contrary to s 189(1)(iii) of the Code was 4 years' imprisonment. For an offence contrary to s 190 of the Code, the maximum penalty was 5 years' imprisonment. Those maximum penalties were less than, and in many cases significantly less than, the maximum penalties that are currently prescribed for comparable offences. A person who indecently deals with a child of or over the age of 13 years and under the age of 16 years who is under their care, supervision or authority, is now liable to a maximum penalty of 10 years (s 321(4) and s 321(8)(b) of the Code). Where such a person offends against a child who is over the age of 16 years, the penalty for indecent dealing is now 5 years' imprisonment, and for sexual penetration, it is 10 years' imprisonment (s 322(4) and s 322(2) of the Code).
As we have already mentioned, the appellant referred to several previous cases in support of his contention that the total effective sentence of 10 years' imprisonment infringed both limbs of the totality principle. It is unnecessary to summarise the facts, circumstances or the sentences that were imposed in any of those cases as none of them are relevantly comparable.
Apart from GHK v The State of Western Australia[96] (six children aged between 4 and 13 years[97]), EXF v The State of Western Australia[98] (three step‑daughters aged between 2 and 6 years), Headley v The State of Western Australia[99] (five boys aged between 10 and 13 years) and Guagliardo v The State of Western Australia[100] (four girls aged between 7 and 10 years), none of the cases to which we were referred involved the number of children that the appellant offended against. Further, the circumstances of the offending in all of the cases to which we were referred, including in GHK, EXF, Headley and Guagliardo, were markedly different when compared to the appellant's offending conduct. Importantly, in none of those cases was the offender a teacher of any of their victims.
[96] GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178.
[97] Four of whom were the offender's biological children.
[98] EXF v The State of Western Australia [2015] WASCA 118.
[99] Headley v The State of Western Australia [2018] WASCA 37.
[100] Guagliardo v The State of Western Australia [2023] WASCA 71.
Neither party referred the court to any case in which a sentence for an offence contrary to the repealed s 190 of the Code has been considered by this court or its predecessor, the Court of Criminal Appeal. In its written submissions, the respondent referred the court to LWJR v The State of Western Australia,[101] GHK v The State of Western Australia,[102] EXF v The State of Western Australia,[103] and SMO v The State of Western Australia,[104] however, acknowledged that all of those cases concerned sentences imposed for offences contrary to s 189(2) (repealed), in respect of which the maximum penalty was 7 years' imprisonment.
[101] LWJR v The State of Western Australia [2009] WASCA 200.
[102] GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178.
[103] EXF v The State of Western Australia [2015] WASCA 118.
[104] SMO v The State of Western Australia [2022] WASCA 70.
The absence of any closely comparable cases does not preclude this court from reaching a conclusion that the total effective sentence in this case was, or was not, unreasonable or plainly unjust. The existence of any disparity when compared to sentences imposed in other relevantly comparable cases is only one factor in reaching a decision about whether error should be inferred from the length of a total effective sentence.[105]
[105] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
The appellant's offending was very serious. Apart from the solitary offence that was found to have been committed against K, the appellant persistently engaged in sexual conduct with five much younger female students who were under his care, supervision, and authority. While some of the offending behaviour was at the lower end of the scale of seriousness, the appellant was also convicted of several more serious offences, including offences in which he procured victims to masturbate him until he ejaculated, offences which involved him digitally penetrating a victim's vagina and, in one instance, a victim's anus, and offences of unlawful carnal knowledge.
There was a predatory quality about the appellant's conduct. Apart from K, the appellant groomed his complainants, and he took advantage of the good impression he had made on them. Most of the complainants considered the appellant to be a mentor who encouraged their interest in drama, which the appellant exploited. As the trial judge said:[106]
[Y]ou groomed them to obtain that consent, and given their ages, they weren't in a proper position to provide informed consent. You used your position to obtain that consent. You used the fact that they looked up to you as their teacher, but also as someone who had real life experience in an area in which they had an interest, namely drama, to make them think that what you were doing to them was appealing and exciting.
[106] ts 1397.
The offences were committed in circumstances in which the appellant had created opportunities to satisfy his sexual desires. Some of the offences were committed on school grounds. On occasions, the appellant committed sexual offences while he had isolated a victim and was alone with them in his car. On others, he offended after he had taken a victim to an office, or to an apartment or hotel room. He also brazenly committed some sexual offences at victims' homes, including one occasion when he knew the victim's parent was nearby.
The appellant's criminal behaviour has had a profound effect on the victims. It was apparent to the trial judge, who saw the victims give evidence, who read the victim impact statements, and who saw two of the victims speak at the sentencing hearing, that the appellant's offending has had long‑lasting negative effects on the victims. In that regard, his Honour said:[107]
Each of the complainants was an impressive witness. Each of the complainants gave evidence bravely about matters which must have been very distressing to the[m]. That distress was obvious, as was the ongoing effects of your abuse on them.
Some of the complainants have talked in the victim impact statement about the complexities of the effects of offending of this type. It is fair to say the long‑term effects of offending of this type is becoming better understood by the courts and by society generally. And the court's understanding has been greatly assisted by people such as each of the complainants coming forward and giving evidence in the brave and dignified way in which they did. Your offending [has] caused long‑term effects on each of the complainants.
[107] ts 1396.
We have already made mention of the fact that the appellant was the victims' drama teacher at the time he committed the offences. However, because this was an element of all the offences the appellant was convicted of, that fact does not constitute an aggravating factor for the purposes of s 7 of the Sentencing Act 1995 (WA). The aggravating nature of that fact is already reflected in the relevant maximum penalties.
There were very few mitigating factors. The appellant has made many positive contributions to the community, and the trial judge found that he was a person who was otherwise of good character. It is also the case that the appellant has never before been sentenced to a term of imprisonment. However, the fact is that over a period of about five years, the appellant committed serious sexual offences against several young girls who were his students. In any event, the appellant's personal circumstances carried less weight, although they were not irrelevant.
The trial judge took into account, as a mitigating factor, that a term of imprisonment would be a greater burden on the appellant by reason of his poor health and his advanced age. However, his Honour did not accept that there was a serious risk that imprisonment would have a gravely adverse effect on his health, and that finding has not been challenged. The trial judge also considered that there was a low risk of the appellant reoffending, having regard to his history, his age and poor health, and the fact that he was unlikely to have the opportunity to offend again in a similar way.
The trial judge also had regard to the fact that the appellant made some admissions at his trial and accepted that, to that extent, he facilitated the smooth running of the trial.
Taking into account all relevant facts and circumstances, we are of the view that the total effective sentence of 10 years' imprisonment is not unreasonable or plainly unjust and it does not infringe the first limb of the totality principle.
The appellant does not challenge any of the individual sentences. As there were multiple victims of the appellant's criminal conduct, cumulation of the sentences imposed in respect of each victim would usually be required. Further, as the appellant offended against four of his victims on multiple occasions, a degree of cumulation was also necessary to reflect the persistent nature of the offending conduct and the fact that it caused the victims significant and enduring harm.
In our view, a total sentence of 10 years' imprisonment was required to properly reflect the seriousness of the appellant's criminal conduct taken as a whole, the vulnerability of the victims, and to give effect to all other relevant sentencing factors.
We are also of the view that the total effective sentence of 10 years' imprisonment did not infringe the second limb of the totality principle. Although the appellant was 75 years old at the time of sentencing and was suffering from several health issues, the evidence about the prognosis for the appellant's CLL was of most relevance to the question of whether the total effect sentence was crushing.
The sentencing judge had before him evidence of an opinion given by a haematology specialist from Sir Charles Gardiner Hospital that the appellant's prognosis for his CLL was 'likely to be at least 3 to 5 years'.[108] However, the specialist later expressed the view that a reasonable prognosis was 'approximately 5 to 8 years',[109] before going on to opine that:[110]
we're not sure what will happen with his CLL in the coming years. He has had a lot of treatment and lived a long time with his CLL which is unusual to be honest. It's still possible that it could reduce his life expectancy but it's hard to predict what will happen going forward.
[108] Report of Dr Salvaris, undated.
[109] Email of Dr Salvaris to defence counsel, 27 February 2023.
[110] Emails of Dr Salvaris to defence counsel, 13 March 2023.
Accordingly, while it is certainly possible that the appellant will die while he is still in custody serving his sentence, and even if that does not occur that he may not have any prospect of a useful life upon release, whether either of those possibilities would eventuate could not be definitively predicted at the time of sentencing.
In any event, we are of the view that the facts and circumstances of this case are such that very little, if any, leniency can be afforded to the appellant. Over a relatively lengthy period, the appellant committed a significant number of sexual offences against five young girls who were his students. In those circumstances, there was a clear need to impose a total effective sentence that adequately punished the appellant, that had the necessary denunciatory effect, and that adequately met the established need for general deterrence when sentencing for sexual offences against children. Such was the importance of these sentencing factors in this case that the extent to which leniency could properly be afforded to the appellant on account of his advanced age and ill‑health was significantly reduced.
On that basis, the total effective sentence of 10 years' imprisonment was not crushing in the relevant sense.
Conclusion in relation to appeal against sentence
The appellant has failed to satisfy us that it is reasonably arguable that the sentencing judge erred in the exercise of his discretion by imposing a total effective sentence of 10 years' imprisonment. It follows that leave to appeal on the sole ground of appeal should be refused, with the result that the appeal against sentence must be taken to be dismissed.
Orders
We would make the following orders:
In CACR 58 of 2023, the appeal against conviction:
1.Leave to appeal is refused on grounds 1 and 2.
2. Appeal dismissed.
In CACR 59 of 2023, the appeal against sentence:
1.Leave to appeal is refused.
2. Appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RH
Associate to the Honourable Justice Vandongen
3 JULY 2024
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