Wayne v The State of Western Australia - [2008] WASCA 118

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: WAYNE -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 118

CORAM: PULLIN JA
MILLER JA
MURRAY AJA

HEARD: 15 MAY 2008

DELIVERED : 5 JUNE 2008

FILE NO/S: CACR 111 of 2007

BETWEEN: DARREN DAMIEN WAYNE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :YEATS DCJ
Citation  :STATE OF WESTERN AUSTRALIA -v- WAYNE
File No  :IND 192 of 2006

Catchwords:

Criminal law and procedure - Trial of sexual offences - Evidence - Prior inconsistent statements of complainant - Statements made to complainant's lawyer - Admissibility - Adequacy of directions of trial judge about inconsistencies

Legislation:

Evidence Act 1906 (WA) s 21

Result:

Extension of time refused
Leave to appeal refused

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Ms L D M O'Connor

Solicitors:

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

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

Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196

PULLIN JA: The relevant facts and evidence are set out in Murray AJA's reasons for decision.
I agree with Murray AJA in relation to ground 1, that the statement said to be inconsistent with the complainant's testimony in court was clearly put and distinctly admitted by the complainant and that in consequence there was no occasion to call Ms Rossi to prove that the complainant made the out of court statement.
I agree with Murray AJA's reasons in relation to ground 2.
The application for an extension of time should be refused and the application for leave to appeal should be dismissed.
MILLER JA: I have had the opportunity of reading in draft the reasons for judgment of Murray AJA. I agree in every respect with those reasons and I, too, would refuse the application for an extension of time for leave to appeal.
MURRAY AJA: On 28 May 2007, the appellant was arraigned before Yeats DCJ and a jury on an indictment containing 10 counts of sexual offences committed, it was alleged, between 1 May and 31 November 2004, on four separate occasions. The complainant was a male child. He was born in 1990 and was 14 when the offences were alleged to have been committed, and 17 at the time of the trial. He therefore remained a child as defined by the law, being under the age of 18. He had been a ward of the State since he was a small boy. At the relevant time in 2004 he was living with his grandmother. The appellant was his piano teacher.
On 1 June 2007 the jury returned guilty verdicts and the appellant was convicted of five offences of indecently dealing with the child, two offences of inciting the child to do an indecent act (to masturbate himself), two offences of sexual penetration of the child, once by engaging in fellatio and also by penetrating the anus of the child with his finger, and one offence of attempted penetration of the anus of the child with his penis. The indecent dealing offences were improper touching of the child, the appellant masturbating in the presence of the child and, on one occasion, the appellant masturbating the child. The counts on the indictment alleged a circumstance of aggravation in that the child was said to have been under the care, supervision or authority of the appellant at the relevant times. The jury found that circumstance to be established in relation to some offences, but not others. That is immaterial in relation to the appeal.

The appellant is currently serving an aggregate sentence of 6 years imprisonment with eligibility for parole. He was sentenced on 7 August 2007. He applies for an extension of time and for leave to appeal against his convictions. The applications were filed on 10 September 2007, the application for leave to appeal ought to have been made by 28 August 2007: Criminal Appeals Act2004 (WA) s 28(4). It was therefore 2 weeks out of time.
The application for an extension of time is supported by a short affidavit by the appellant's solicitor. He says he, 'only obtained the appellant's file, including the transcript of the trial, on 7 September 2007'. It is evident that the notice of appeal was filed shortly thereafter, accompanied by the necessary application for an extension of time. The affidavit provides no information which may justify the delay which in fact occurred. However, the merits of that application were not touched upon by the respondent.
In the circumstances, I would grant an extension of time if there was merit in the appeal, and error or miscarriage of justice was demonstrated sufficient to require this court to intervene to quash the convictions and order a retrial as sought by the appellant. But otherwise I would refuse the extension of time.
On 30 November 2007, Wheeler JA referred the applications for leave to appeal and extension of time to this court to be heard with the appeal.
The application for leave to appeal is made upon the following grounds:
Ground 1
1.The learned trial Judge erred in not allowing evidence to be adduced from Claire Rossi to whom the complainant had made statements inconsistent with his evidence;
Particulars:
a)Her Honour was not satisfied the test in s 21 of the Evidence Act 1906 had been met;
b)Her Honour found Ms Rossi should not be called because of the constraints imposed by s 64 of the Legal Aid Commission Act 1976.
Ground 2
2.Her Honour erred when she misdirected the jury concerning inconsistencies in the complainant's evidence.
Particulars:
a)Her Honour told the jury the inconsistencies were part of the defence case;
b)the jury were entitled to consider the inconsistencies as part of the prosecution case against the Appellant.
I turn to ground 1. Although it concerns all the offences of which the appellant was convicted, it is particularly concerned with the offences which were counts 9 and 10 on the indictment. These were offences alleged to have been committed on one occasion, together with the offences which were counts 7 and 8 on the indictment. Count 7 was an indecent dealing by masturbating the child, count 8 was sexual penetration of the child by engaging in fellatio, and count 9 was an act of sexual penetration by the digital penetration of the child's anus. The appellant was convicted of all those offences. Count 10 alleged the sexual penetration of the child by the penile penetration of his anus. The appellant was convicted of an attempt to commit that offence. Clearly, the jury were not satisfied to the required standard that there had been actual penetration to any degree of the child's anus by the penis of the appellant.
The Ms Rossi referred to in the ground 1 is a lawyer employed on the staff of the Legal Aid Commission. In 2005 she acted for the child before the Children's Court when the complainant was charged with himself indecently dealing with a child, and during the course of her preparation she spoke to the complainant and took his instructions. The complainant then told Ms Rossi that he had been sexually interfered with by his piano teacher when he was 14. Those statements were made on 22 July 2005. This was, I understand, the first occasion upon which the complainant spoke about what had happened about a year earlier. On 19 August 2005, apparently at the request of a police officer, Ms Rossi made a statement recording what the complainant had told her.
In par 24, Ms Rossi said, in relation to the incident the subject of count 9 in the indictment, '[The complainant] said that Mr Wayne tried to put his finger into his anus, which he avoided.' Later, in par 29 of the statement, Ms Rossi said:
[The complainant] then told me that Mr Wayne did actually insert his finger into his anus. I queried this because [the complainant] had previously told me that he had only tried to put his finger into his bottom. He confirmed with me that he did do this, and that he also tried to put his tongue into his bottom but he only tried to do this one.
As to the incident which became count 10 on the indictment, at pars 27 and 28, Ms Rossi said:
[The complainant] told me that Mr Wayne tried to put his penis into [the complainant's] bottom, [the complainant] said that he either had his trousers off or pulled down.
[The complainant] said that Mr Wayne never actually penetrated his anus, but he touched his bottom area with his penis.
The Evidence Act 1906 (WA) has special provisions which deal with the admissibility of such out of court statements. In proceedings such as this trial, for sexual offences, when the complainant is a child when the proceedings are conducted or at least on the day when they start, such proceedings are provided for in Sch 7 to the Act, and by s 106H, a statement made out of court by the child, whether orally, in writing, or electronically recorded, may be admitted in evidence if the accused has had advance notice of the statement and has been given the opportunity to cross‑examine the child.
The statement made by Ms Rossi dated 19 August 2005 might well have been admitted in evidence if a party in this trial had sought to tender it, although it was not, of course, a statement by the child recorded in writing. Section 106H(2b) provides that if a person to whom an affected child makes a relevant statement makes a written statement in accordance with Sch 3 cl 4(1) of the Criminal Procedure Act 2004 (WA), the written statement is admissible. The statement was made in accordance with cl 4(1) of Sch 3 to the Criminal Procedure Act because it complied with the conditions set out in cl 4(3) and (5).
However, there would be little point in tendering this statement as proof of the facts recounted by the child to Ms Rossi, even if the judge was prepared to permit such a course to be taken, because the evidence of the occurrence of those matters would be hearsay unless the truth and accuracy of what the child said to Ms Rossi was confirmed by him. Neither the prosecution nor the appellant attempted to tender the statement of Ms Rossi, relying upon these provisions.
I observe in passing that the special provisions in the Evidence Act dealing with the admissibility in criminal proceedings of the visual recording of an interview with a child by investigating police officers, in this case commencing on 22 August 2005 and resumed after a break over a weekend, on 25 August 2005, s 106HA and s 106HB, were utilised. The effect of those provisions is that what the child was recorded as saying to the police officer was by s 106HB(4) admitted in evidence, 'as if statements made in it by the witness were given orally in the proceeding in accordance with the usual rules and practice of the court concerned'.
Finally, there was in evidence a video record of the evidence given by the child before a judge at pre‑trial proceedings involving the leading of evidence‑in‑chief, cross‑examination of the child, and re‑examination. This was admitted in evidence at the trial, pursuant to s 106I and s 106K of the Evidence Act. The child was therefore not present at the trial before Yeats DCJ and a jury, but the videos were played, subject to a process by which objectionable material was edited out.
So far as Ms Rossi was concerned, the matter of the statements made by the complainant to her arose in the context of s 21 of the Evidence Act when the child was cross‑examined. Relevantly s 21 provides that a witness:
… may be asked whether he has made any former statement relative to the subject‑matter of the proceeding, and inconsistent with his present testimony, the circumstances of the supposed statement being referred to sufficiently to designate the particular occasion, and if he does not distinctly admit that he made such statement, proof may be given that he did in fact make it.
The decision of the High Court in Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196 is a good source of the principles governing the proper application of s 21 which, it is accepted, is declaratory of the common law rules in relation to the use of prior inconsistent statements of a witness for the purpose of attacking the witness's credit and credibility. The case also turned on the importance of sufficiently designating the particular occasion of the making of the alleged prior inconsistent statement to enable the witness to deal with it by 'distinctly' admitting that he made it in the terms precisely put to him, or by failing to make that distinct admission, either by way of denial or lack of recollection.
In the latter case, as the section provides, it may be proved that he did make the statement. But again, as the section provides, no such proof may be offered if he distinctly admits that he made the statement. In either event, if the jury accepts that the statement was made 'relative to the subject‑matter of the proceeding', ie, that there is a material inconsistency of some substance, the impact of the inconsistency upon the acceptance of the witness's testimony as an accurate and reliable account may be considered. It must always be borne in mind, of course, that the making of the previous statement provides no proof of the facts stated, unless the witness not only admits that the statement was made, but also admits that it is true. In Nicholls, see the discussion by McHugh J at 232 ‑ 233 [84] ‑ [85], and Hayne and Heydon JJ at 293 [272] et seq.
In this case, when an application was made to have Ms Rossi called to give evidence of what the complainant said to her, the trial judge refused the application, saying that the ground for the operation of s 21 had not been established because, in cross‑examining the child, the statement had not been sufficiently identified.
As to the evidence of the complainant, it should be noted that when interviewed by officers of the Child Interview Unit on 25 August 2005, the video of which was tendered in evidence, the complainant consistently said that the appellant had inserted his finger into the complainant's anus. At one point he said that the appellant 'put his middle finger up my bum hole' 'all the way and started, like, pushing it in and out'.
His evidence in that form was less clear about penile penetration of his anus. At one point he said that the appellant, 'tried to poke me in my bum with his penis'. When asked whether the appellant succeeded in putting his penis into the complainant's anus he said, 'He did a bit but it didn't, you know, it didn't get in the hole'. Later, however, he said that the appellant managed to insert the head of his penis into the anus. When asked what he felt he said, 'Just felt something going in my bum hole, but it hurt too.' Therefore, on the face of that evidence, there was internal inconsistency as to whether, in relation to count 10, penile penetration had been achieved or attempted unsuccessfully.
So far as ground 1 is concerned, however, the important evidence was that given by the complainant in pre‑recorded form, subject to cross‑examination, before a District Court judge. The material portions of the evidence are firstly that, in‑chief, the complainant said, in answer to a blatantly leading question, 'How many times did he put his penis up your bottom?‑‑‑Once.' When he was cross‑examined, the following exchange occurred:
Did he ever put his penis in your bottom?‑‑‑Yes. That I can remember once.
Again, were you standing up, sitting down, lying down, on all fours?‑‑‑I'm not sure. I can't remember.
Can you remember how long that went on for?‑‑‑20, 30 seconds.
Did he get his penis all the way in your bum?‑‑‑I'm not sure.
When you spoke to your Legal Aid lawyer did you tell her that Darren tried to put his finger in your bum but you avoided it?‑‑‑I must have told her that, yes.
And did you later tell her that he did in fact put his finger in your bum?‑‑‑He did put his finger in my bum, yes.
No, what I'm asking you is what you told your lawyer. I'm putting to you that you said to her on one occasion that he tried to do it but you avoided him doing it and then later you told her he did in fact do it. Can you recall if you did or not?‑‑‑Well, as I said, he done it a couple of times.
Did you tell your lawyer that Darren tried to put his penis in your bum?‑‑‑Yeah.
Not that he did but that he tried to?‑‑‑He tried, yes.
Did you tell her that he in fact did that or not?‑‑‑I can't remember me doing that but he did touch the penis with - put it on my bum, yeah.
Put it on your bum. On your cheeks, you mean?‑‑‑No, up - in between, you know.
In between?‑‑‑Yeah.
But did you tell your lawyer that?‑‑‑Yes, I did.
Admittedly, as to the application of s 21 of the Evidence Act, the complainant was asked in general terms about what he said to his legal aid lawyer when he spoke to her about what the appellant had done, but there is no indication that the child was in any way confused as to the occasion about which he was being asked. Further, the statements that he was said to have made to the lawyer were, I think, sufficiently put to him. In my respectful opinion, it was not the case, as the trial judge held, that the groundwork for the application of s 21 had not been properly laid.
However, I think the particular statements said to be inconsistent with the child's present testimony were clearly put and distinctly admitted by the complainant. In that event, as the section makes clear, there was no occasion for Ms Rossi to be called to prove the fact that the child made the statements in question.
In relation to the question of digital penetration, what appears in par 24 of Ms Rossi's statement was put and the complainant admitted that he 'must have told her that, yes', he did. It was made clear to him that he was not being asked what happened, but what he told the lawyer.
As to the question of penile penetration, what was put to the complainant was what appears in pars 27 and 28 of Ms Rossi's statement, that the complainant told the lawyer the appellant tried to insert his penis, but did not actually penetrate. And again, the complainant admitted that that is what he had said.
In my view, the trial judge's decision that Ms Rossi was not to be called was right, because the inconsistency between the child's present testimony and the previous statements made to Ms Rossi was established. The complainant distinctly admitted the former statements. It is unnecessary, in those circumstances, to consider the matter raised by ground 1(b) and I propose to say nothing about it. Ground 1 is not made out.
As to ground 2, in my opinion this ground is also without merit. During the course of her summing up the trial judge made it perfectly clear to the jury that they would need to be able to rely upon the complainant's evidence if they were to convict of any of the counts on the indictment. She spoke about the contradictions in the complainant's evidence and contradictions between what he had said in evidence and what he was established to have said on other occasions. It is her Honour's final summation of this discussion about which the appellant complains. Her Honour said:
Ladies and gentlemen, there are a number of contradictions in [the complainant's] evidence. Mr Gunning pointed out a lot of those and I've pointed out some today. Ladies and gentlemen, those are part of the defence case. They say this is not reliable evidence. They also rely on the evidence of [the complainant's] erratic behaviour and that's confirmed to some extent by his grandmother's evidence and the accused told you that he actually wrote letters to the DCD, the department that looked after [the complainant] as a ward of the state.
Finally, in concluding her summation of the case, her Honour said:
Ladies and gentlemen, those are all tings you have to bear in mind because your ultimate judgment is a judgment about [the complainant]. Remember where the burden of proof lies. Even if you prefer [the complainant's] evidence, you cannot convict unless you're satisfied beyond reasonable doubt that he's telling the truth. Even if you don't positively believe what the accused said to you, you can't find an issue contrary to the accused's evidence if his evidence raises a reasonable doubt.

Counsel arguing the application for leave said that the thrust of this ground was the proposition that because the jury were told that the inconsistencies in the complainant's evidence were part of the defence case, they might have failed to consider those matters when making their assessment of the strength of the prosecution case, by considering whether the complainant was accepted by them to be a truthful witness giving an accurate and reliable account of what had happened to him. Frankly, this is nonsense. The trial judge laid appropriate emphasis upon the importance of the child's evidence and the contradictions and other matters which made it difficult to accept and rely upon that evidence.
Having no doubt considered those matters carefully, as her Honour instructed, it is clear that the jury accepted the evidence of the complainant, and as to count 10, their verdict simply reflected the child's own uncertainty as to whether there had, to any degree, been actual penile penetration of his anus or whether it went no further than an attempt by the appellant rubbing his penis on the child's bottom and placing it between the cheeks of the child's bottom.
It follows that there is, in my view, no ground upon which the time to bring the application for leave to appeal should be extended and I would refuse the extension of time and dismiss the application for leave to appeal.