WP v The State of Western Australia - [2011] WASCA 198

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: WP -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 198

CORAM: McLURE P
BUSS JA
HALL J

HEARD: 3 AUGUST 2011

DELIVERED : 22 SEPTEMBER 2011

FILE NO/S: CACR 118 of 2010

BETWEEN: WP
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :YEATS DCJ
File No  :IND 1442 of 2009

Catchwords:

Criminal law - Appellant convicted after trial of three counts of sexual penetration and one count of attempted sexual penetration of a child - Application for an extension of time to appeal - Application for leave to adduce additional evidence - Turns on own facts

Legislation:

Criminal Code (WA), s 320(2), s 321(2)
Criminal Procedure Act 2004 (WA), s 114

Result:

Application for leave to adduce additional evidence dismissed
Application for an extension of time to appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (WA)

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

Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1
DPJB v The State of Western Australia [2010] WASCA 12
Hough v Ah Sam [1912] HCA 78; (1912) 15 CLR 452
KLM v The State of Western Australia [2009] WASCA 73; (2009) 194 A Crim R 503
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512
McMahon v The State of Western Australia [2010] WASCA 143
R v Birks (1990) 19 NSWLR 677
R v Buchanan [1966] VR 9
R v Ostojic (1978) 18 SASR 188
R v Smith (1992) 58 SASR 491
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
SAP v The State of Western Australia [2011] WASCA 155
Sinclair v The King [1946] HCA 55; (1946) 73 CLR 316
Smith v The State of Western Australia [2010] WASCA 176
Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559
Wimbridge v The State of Western Australia [2009] WASCA 196

McLURE P: I agree with Buss JA.
BUSS JA: The appellant was convicted, after a trial in the District Court before Yeats DCJ and a jury, on four counts in an indictment which alleged that:
(a)on a date unknown between 1 January 2007 and 18 July 2008, the appellant sexually penetrated A, a child under the age of 13 years, by penetrating A's anus with the appellant's penis, contrary to s 320(2) of the Criminal Code (WA) (count 1);
(b)on another date unknown between 1 January 2007 and 18 July 2008, the appellant sexually penetrated A, a child under the age of 13 years, by penetrating A's mouth with the appellant's penis, contrary to s 320(2) of the Code (count 2);
(c)on a date unknown between 1 January 2008 and 18 July 2008, the appellant sexually penetrated K, a child of or over the age of 13 years and under the age of 16 years, by penetrating K's mouth with the appellant's penis, contrary to s 321(2) of the Code (count 3); and
(d)on the same unknown date, the appellant attempted to sexually penetrate K, a child of or over the age of 13 years and under the age of 16 years, by attempting to penetrate K's anus with the appellant's penis, contrary to s 321(2), read with s 552, of the Code (count 4).
The maximum available penalty for each of counts 1 and 2 was 20 years' imprisonment, for count 3 was 14 years' imprisonment and for count 4 was 7 years' imprisonment.
The appellant was convicted on 24 February 2010. He was sentenced on 13 April 2010. The trial judge imposed 5 years' imprisonment on count 1, 2 years 6 months' imprisonment on count 2, 2 years' imprisonment on count 3 and 2 years 6 months' imprisonment on count 4. Her Honour ordered that the sentences be served concurrently. The total effective sentence was therefore 5 years' imprisonment.
The appellant has applied to this court for an extension of time to appeal, and leave to appeal, against his conviction.

The application for an extension of time to appeal

The last date for the appellant to appeal against his conviction was 11 May 2010. He did not file his appeal notice until 19 July 2010. His application for an extension of time is supported by his affidavits sworn 16 July 2010 and 30 September 2010.
The applicable principles governing the exercise of this court's discretion to extend time are set out in Wimbridge v The State of Western Australia [2009] WASCA 196.
I will consider the merits of the proposed grounds of appeal before deciding whether an extension of time should be granted.

The application for leave to adduce additional evidence in the appeal

On 11 April 2011, the appellant filed an application, in essence, for leave to adduce additional evidence in the appeal. The appellant has sworn an affidavit dated 14 March 2011 in support of the application. The additional evidence comprises a written reference as to the appellant's character from Mark R Staer.

Overview of the State's case at trial

The State's case at trial was, in summary, as follows.
At the time of the offending the appellant was aged 44 or 45 years. The complainants, A and K, were his nephews.
Count 1 occurred when A was aged 8 or 9. He was visiting the appellant. This happened often. A was lying on his stomach on the side of a bed. His brother, K, was lying on the other side, asleep. The appellant came into the room. He pulled down A's jeans and underpants and penetrated A's anus with his penis, despite A's protests.
Count 2 occurred on another date, some time later. A was still aged 8 or 9. The offending occurred while A was visiting the appellant. The appellant took A into the ceiling space in the roof of the house and forced his penis into A's mouth.
Counts 3 and 4 occurred when K was aged 13 or 14. Count 3 happened in the lounge room of the appellant's house while K was visiting him. K was sitting on a chair. The appellant approached K and threatened him. The appellant then forced his penis into K's mouth. Count 4 happened later on the same evening. K was lying on his stomach on a mattress in the lounge room watching a movie. The appellant pulled down K's pants and boxer shorts, and knelt astride him. The appellant attempted, but was unable, to insert his penis into K's anus.
On 6 May 2009, the appellant participated in a video‑recorded interview with police. The appellant said, amongst other things, that he was constantly drunk and could not recall the alleged offending.

Overview of the appellant's case at trial

The appellant was represented by defence counsel at the trial.
The appellant gave sworn evidence in his own defence. He denied having offended as alleged by the State. The appellant's denials at the trial constituted a significant departure from his statements in the interview to the effect that he could not recall the alleged offending.

The proposed grounds of appeal

The appellant relies on six proposed grounds of appeal, which read:
1.There was a miscarriage in the process of the trial and/or sentencing exercise due to the incompetence of defence counsel.
2.The learned sentencing judge erred in law by failing to adhere to her own instructions that the jury must render a unanimous verdict.
3.The learned judge erred in law by permitting the video, as recorded by the police, to be admitted as evidence when the Appellant was incapable of granting permission to be interviewed by the police at the time the interview was requested.
4.The learned judge erred in law by failing to adequately take into account the Appellant's good character.
5.The learned judge erred in law by failing to adequately consider the Appellant's Anxiety Stress Disorder at the time of the offences.
6.The learned judge erred in law by allowing hearsay evidence from Miss [T] and Mr [E].
Although ground 1 refers, in part, to the 'sentencing exercise' and grounds 4 and 5 appear to relate to the appellant's sentence, the appellant stated in his appeal notice that he was appealing only against his conviction. This statement is consistent with the orders wanted, as specified in the appellant's case. The orders wanted are 'an acquittal' or 'a retrial'.

The merits of proposed ground 1

An offender who appeals against his or her conviction on the basis of an allegation that defence counsel was incompetent must demonstrate that the conduct of defence counsel caused a miscarriage of justice. See TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [74] (McHugh J). It is a heavy burden which is not easily discharged. See TKWJ [74] (McHugh J).
This issue was examined in McMahon v The State of Western Australia [2010] WASCA 143. McLure P (Buss JA agreeing & Mazza J relevantly agreeing) said:
In this context, miscarriage of justice has two aspects, process and outcome. If the conduct of counsel has deprived the accused of a fair trial according to law, that will give rise to a miscarriage of justice without regard to whether counsel's conduct might have affected the outcome: TKWJ [76] (McHugh J); Nudd v The Queen [2006] HCA 9 [3] ‑ [7] (Gleeson CJ). This corresponds with that limb of the proviso where there is a serious breach of the pre-suppositions of a trial: Weiss v The Queen (2005) 224 CLR 300 [46]; Wilde v The Queen (1988) 164 CLR 365 at 373. A complete failure to cross-examine a complainant or a complete failure to address the jury may result in an unfair trial: TKWJ [76]. So too may wrong advice that an accused is not entitled to give evidence: Nudd [17].
In the majority of cases, irregular conduct of counsel will not deprive the appellant of a fair trial. In such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues. First, did counsel's conduct result in a material irregularity in the trial. Secondly, is there a significant possibility that the irregularity affected the outcome: TKWJ [79] (McHugh J); Ali v The Queen (2005) 79 ALJR 662 [18] (Hayne J).
The test of whether there is a material irregularity is objective: TKWJ [17], [27] ‑ [28], [107]. Ordinarily, it is difficult to establish a material irregularity when the alleged error of counsel concerned forensic choices upon which competent counsel could have differing views: TKWJ [81]. However, if the error of counsel plainly affected the result of the trial, there will be a miscarriage even though the error involved a forensic choice or judgment. Where the error involves the failure to adduce evidence, there are parallels with the test for the admission of new or fresh evidence: TKWJ [32] (Gaudron J) [25] ‑ [27].
See also KLM v The State of Western Australia [2009] WASCA 73; (2009) 194 A Crim R 503 [47] ‑ [55] (Martin CJ, Le Miere AJA agreeing).
The Australian criminal justice system involves a contest between the State or the Crown and the accused. In general, the accused is bound by the conduct of his or her counsel. The accused's counsel has a broad discretion in the conduct of the defence. As Gleeson CJ (McInerney J agreeing) noted in R v Birks (1990) 19 NSWLR 677:
Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case (683).
See also TKWJ [8] (Gleeson CJ); R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [168] (Kirby J).
An apparently rational decision made by the accused's counsel in the course of the trial will not result in an unfair trial or a miscarriage of justice merely because it may appear then or later on appeal that the decision was not carefully considered, was unwise, or produced consequences which operated to the disadvantage of the accused. See TKWJ, where Gleeson CJ explained:
It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks. In the present case, the decision not to adduce character evidence was made for an obvious reason: to avoid the risk that the prosecution might lead evidence from K.
Trial counsel made a decision not to call certain evidence. Viewed objectively, it was a rational tactical decision, made in order to avoid a forensic risk. It did not make the trial unfair, or produce a miscarriage of justice [16] ‑ [17].
See also Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115 [21] (Gaudron, Kirby & Callinan JJ); TKWJ [95] (McHugh J), [107] (Hayne J, Gummow J agreeing).
An appellate court does not examine whether a decision taken by the accused's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage. Rather, the appellate court is concerned only with whether counsel's decision is capable of explanation on that basis. That is, could there be any reasonable explanation for the decision? The test is objective in character. See TKWJ [17] (Gleeson CJ), [27] (Gaudron J, Gummow J agreeing), [107] (Hayne J, Gummow J agreeing).
In the present case, the appellant contends, relevantly, that:
(a)Defence counsel failed to inform him that he should acquire references as to his good character.
(b)Defence counsel met with him for a single two‑hour interview about a fortnight before the commencement of the trial. This, it is said, was insufficient to mount a proper defence.
(c)Defence counsel 'continually nodded his head to the prosecutor', thereby implying 'by body language', in the presence of the jury, that he was apparently in agreement with what the prosecutor was saying.
(d)Defence counsel objected only once during the three‑day trial.
Defence counsel who appeared for the appellant at the trial was admitted to practice in 1993. The trial occurred in 2010.
The State's witnesses comprised A, K, T (the complainants' sister who was aged 13 at the time of the trial), E (the complainants' father and the appellant's brother) and Detective James Merritt, a detective attached to the Child Abuse Squad.
The critical witnesses against the appellant were A and K. Each of them gave evidence‑in‑chief which supported the allegations in the indictment. As I have mentioned, the appellant's defence was that the conduct in question had not occurred. Defence counsel cross‑examined A (ts 32 ‑ 57) and K (ts 72 ‑ 83). The cross‑examination adequately put the appellant's version of events. Also, it sought to undermine the force of A's and K's evidence on the facts in issue of importance.
Defence counsel decided not to cross‑examine T (ts 84) or Detective Merritt (ts 99). He asked E only a few questions (ts 92). Defence counsel's decision in relation to the cross‑examination of these witnesses was not unreasonable.
The State tendered, as part of its case, the video record of interview between the appellant and police (ts 96 ‑ 97). The record had been edited to excise irrelevant material. During the interview:
(a)The appellant was asked whether 'anything of a sexual nature' had happened at his house with A and K and himself. The appellant's response was 'Not that I know of' (ts 13).
(b)The appellant then said that his 'concern with that is the alcohol for me, the memory goes for me' (ts 13).
(c)The appellant explained that when 'I've been onto the grog too heavy you know … wake up blacked out and not remember bugger all' (ts 14). He accepted the proposition, put to him by a police officer, that 'it's possible but you're not sure' (ts 14). According to the appellant, 'I woke up as I say a clean memory loss. You just don't remember doing it and especially if you got a mean hangover' (ts 14).
(d)Later in the interview, the appellant denied that he had walked up behind K, pulled K's pants down and inserted his penis into K's anus (ts 17 ‑ 18).
(e)Also, the appellant said that he could not recall placing his penis into K's mouth or forcing himself onto K and guiding his penis into K's 'anus area' (ts 19).
(f)When the appellant was told that A had said that 'he was lying down and … you approached him, laid on top and you've placed your penis inside his anus' and then asked whether he remembered 'anything like that', the appellant replied 'Nuh. Flat out you know I can't believe they've even … ' (ts 31).
(g)The following exchange then occurred:
Q. Is it you can't remember or you're denying it? There's a big difference you know, because you've mentioned that you had a few black outs ‑ ‑ ‑
A. Yeah.
Q. ‑ ‑ ‑ or before, um, if you can't remember ‑ ‑ ‑
A. Well both because I don't recall it so ‑ you know I have to deny in that sense.
Q. Um ‑ ‑ ‑
A. As I said how do you drag a memory out that you don't remember ‑ ‑ ‑
Q. Yeah you mentioned ‑ ‑ ‑
A. ‑ ‑ ‑ that don't make sense, like ‑ and I'm racking my brains, I've been you know ‑ you guys you say yeah I've gone through this a million time in my head, um, since they laid it on me way back then you know ‑ ‑ ‑
Q. Okay.
A. ‑ ‑ ‑ trying to ‑ and I can't recall doing it. That's what I mean the alcohol it sucks in a sense of you black out, um, that's bad enough but then you don't recall anything. I mean nothing man you know, I mean what time you went to bed or how or ‑ yeah (ts 31 ‑ 32).
As I have mentioned, the appellant gave sworn evidence in his defence. Defence counsel did not call any other witnesses. The appellant maintained in evidence that the alleged offending did not happen.
As to count 1, the appellant's case was that the appellant could not have entered the room and penetrated A's anus, causing A to cry, without waking K.
As to count 2, the defence case was that the ceiling space in the roof of the appellant's house was very low and the appellant could not stand up straight in the ceiling space. It was improbable, so it was asserted, that the appellant could have put his penis in A's mouth in the manner described by A. The appellant had been in the ceiling space with all of the children (K, A and T), but he had never been there alone with A.
As to count 3, the defence asserted that K's behaviour was 'robotic'. It was not the kind of behaviour to be expected from a child. K described in evidence an uncircumcised penis whereas a medical certificate proved that the appellant was circumcised.
Further, as to counts 3 and 4, the appellant denied that anything of a sexual nature had ever occurred between him and K. He said that K was always 'sneaking' his pornographic videos and watching them. He also said that K had blackmailed him, and had threatened to make allegations against him in order to get what he wanted.

The jury, by their verdict of guilty on counts 1, 2, 3 and 4, were satisfied beyond reasonable doubt that the evidence of A and K was true and correct in all material respects. Also, the jury, by their verdict, rejected the appellant's denial that the offending had occurred.
I will assume, for present purposes, without deciding, the correctness of the appellant's contention that defence counsel failed to inform him that he should acquire references as to the appellant's alleged good character. There is no merit in the appellant's complaint. In my opinion, defence counsel's failure to recommend that the appellant endeavour to obtain evidence as to his alleged good character is capable of reasonable explanation on the basis of a tactical decision taken by defence counsel before the trial. In particular, if the appellant's alleged good character had been put in issue by defence counsel, the prosecutor would have been entitled to ask questions of the appellant in cross‑examination, and otherwise adduce evidence, tending to show that he was in fact of bad character.
In any event, it is not reasonably arguable that the absence of evidence as to the appellant's alleged good character resulted in an unfair trial or a miscarriage of justice. The only evidence before this court in relation to the appellant's alleged good character is the written reference from Mr Staer. I refer to the content of the reference later in these reasons in considering the application for leave to adduce additional evidence. It is sufficient to note, in the context of proposed ground of appeal 1, that nothing in the reference supports the proposition that, on the basis of his known character or reputation, the appellant was unlikely, at the material time, to sexually abuse the complainants, whether he was intoxicated or not. Further, as I have mentioned, the appellant's denials at trial were a significant departure from his statements in the video record of interview to the effect that he could not recall the alleged offending. This departure would necessarily have affected the reliability and credibility of the appellant's evidence. Any evidence that the appellant might have been able to obtain as to his alleged good character would have been most unlikely to have had any material impact upon an objective assessment of his reliability and credibility, especially when the jury, by their verdict, were satisfied beyond reasonable doubt as to the truth and accuracy of the evidence of A and K about the alleged offending.
I will also assume, for present purposes, without deciding, the correctness of the appellant's contention that defence counsel only met with the appellant for a single two‑hour interview about a fortnight before the commencement of the trial. There is no merit in the appellant's complaint. The material placed before this court by the appellant does not indicate how his defence might have been improved by additional consultations with defence counsel. It was a short trial and the facts in issue were limited. In the circumstances, it is not reasonably arguable that defence counsel's decision not to confer more extensively with the appellant before the commencement of the trial resulted in an unfair trial or a miscarriage of justice.
I will also assume, for present purposes, without deciding, the correctness of the appellant's contention about defence counsel having 'continually nodded his head to the prosecutor'. There is no merit in the appellant's complaint. The submission that defence counsel was manifesting apparent agreement with the prosecutor in relation to the State's case is inconsistent with defence counsel's cross‑examination of A and K and his closing address to the jury. In the circumstances, it is not reasonably arguable that any nodding of defence counsel's head to the prosecutor resulted in an unfair trial or a miscarriage of justice.
The appellant's final contention, in the context of proposed ground of appeal 1, that defence counsel objected only once during the trial does not establish any basis for a reasonable argument to the effect that the appellant was thereby deprived of a fair trial according to law. On my examination of the trial record, any inadmissible evidence that was adduced at the trial, without objection, was not materially prejudicial to the appellant and did not occasion a miscarriage of justice.
Proposed ground of appeal 1 has no reasonable prospect of success.

The merits of proposed ground 2

Section 114 of the Criminal Procedure Act 2004 (WA) provides:
(1)Subject to this section, the verdict of a jury must be the unanimous verdict of its members.
(2)If a jury trying a charge has retired to consider its verdict and, having deliberated for at least 3 hours, has not arrived at a unanimous verdict, the decision of 10 or more of the jurors shall be taken as the verdict on the charge.
(3)If a jury trying a charge has retired to consider its verdict and, having deliberated for at least 3 hours, 10 or more of the jurors have not agreed on a verdict, the judge may discharge the jury from giving its verdict on the charge.
(4)Subsections (2) and (3) do not apply to a charge of murder.
(5)Subsections (2) and (3) do not prevent a judge from requiring a jury to deliberate for more than 3 hours.
The appellant submitted that the trial judge, by giving a 'majority direction', placed undue pressure on the jury to reach a verdict, and thereby infringed the principle of free deliberation, 'by going against what the learned judge had already declared (which was that a unanimous verdict was necessary) and stating that if a couple [sic] of the jurors thought the appellant was guilty, a verdict of guilty would still go ahead'.
The trial judge directed the jury, in her summing up, that any verdict they arrived at must be unanimous (ts 162).
Her Honour completed her summing up on 24 February 2010 at 12.41 pm and the jury then retired to consider their verdict.
At about 4.44 pm that day, the jury sent a note to the trial judge indicating that they had reached a 'stalemate', and requested her Honour's 'opinion on what we should do from here' (ts 164). After receiving the note her Honour informed the prosecutor and defence counsel, in the absence of the jury, of the contents of the note and said that she thought she should give a 'majority direction'. The prosecutor and defence counsel did not object to her Honour adopting this course.
The jury returned at 4.46 pm, and her Honour directed them, relevantly, as follows:
Mr Foreman, you've sent me a note indicating that you've reached a stalemate. Now, in these circumstances, having deliberated now for more than three hours, I am able to give you a direction that I could receive a verdict on each count of any ten of you. We can't allow that until after you've deliberated for at least three hours and with lunch we have just about come to that point.
So, ladies and gentlemen, I don't know if you'll need to ‑ you probably don't need to go back in to the jury room. In other words, if any of you agree to a verdict, then I'll receive that (ts 164).
A little later, at 4.55 pm, the jury delivered a majority verdict (of at least 10 of them) of guilty on each count.
The appellant's contention is baseless. By virtue of s 114(2) of the Criminal Procedure Act, the trial judge was entitled, in the circumstances, to give a 'majority direction'. No miscarriage of justice was occasioned by this direction. Proposed ground of appeal 2 has no reasonable prospect of success.

The merits of proposed ground 3

It is a fundamental requirement of the common law that a confessional statement must be voluntary. See R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [50] (Toohey, Gaudron & Gummow JJ).
As Deane J noted in Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1, the rational basis for the rule excluding confessions that are not voluntary is a combination of the potential unreliability of a confessional statement that is involuntary and the common law privilege against self‑incrimination (18).
It is presumed that a confession is voluntary if there is nothing to suggest that it is involuntary. See Hough v Ah Sam [1912] HCA 78; (1912) 15 CLR 452, 457 (Barton J). If the issue of voluntariness is raised, the State or the Crown bears the onus of establishing, on the balance of probabilities, that the confession is voluntary. See Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559, 572 ‑ 573 (Taylor & Owen JJ).
A confession made by an accused 'more or less under the influence of intoxicating liquor is not inadmissible as evidence unless the degree of intoxication is so great as to deprive him of understanding what he was confessing': Sinclair v The King [1946] HCA 55; (1946) 73 CLR 316, 336 (Dixon J).
Where an accused is intoxicated, to some extent, a confession will not be voluntary unless the evidence demonstrates that, on the balance of probabilities, the accused was capable of appreciating that he or she had a free choice as to whether to speak or remain silent and was capable of exercising sufficient volition to give effect to what he or she knew was this right. See R v Buchanan [1966] VR 9, 15 (Sholl J, Pape J agreeing); R v Smith (1992) 58 SASR 491, 498 (Perry J).
The effects of alcoholic liquor vary, to a very significant extent, from person to person. Questions of fact and degree will arise in determining whether a confession made by an accused who is intoxicated, to some extent, was voluntary. See R v Ostojic (1978) 18 SASR 188, 196 ‑ 197 (Wells J, Hogarth & King JJ agreeing).
A trial judge has a discretion to exclude an accused's voluntary confession if it would be unfair to the accused to admit the confession into evidence. The purpose of this discretion is to protect the rights and privileges of the accused, including his or her procedural rights. See Swaffield [52], [78].
In Swaffield, Toohey, Gaudron and Gummow JJ observed that 'it is not always possible to treat voluntariness, reliability, unfairness to the accused and public policy considerations as discrete issues' [74].
Although unreliability is an important aspect of the unfairness discretion, it is not exclusive. See Swaffield [78]. As I have mentioned, the purpose of the discretion is to protect the accused's rights and privileges. It may be, in a particular case, that, because of some impropriety, the accused would be disadvantaged in the conduct of his or her defence if a confessional statement were to be admitted. See Swaffield [78].
An accused who asserts that a voluntary confession was improperly or unfairly obtained bears the onus of proving facts that would justify an exercise of the discretion in his or her favour. See Wendo (565); MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512, 519 ‑ 520 (Gibbs CJ & Wilson J).
The appellant made these submissions in support of proposed ground of appeal 3:
14.The video interview from the police, which was used in court, was recorded while the Appellant was under duress while the Appellant was under the influence of cannabis and alcohol.
15.The Appellant repeatedly stated to the officers during the interview that he was in a dazed and confused state. This section was edited out of the video recording that was played in the court, however would still be in the unedited video recording.
16.Furthermore, the Appellant was stressed due to the addictive craving for nicotine as a result of not being permitted to have a cigarette.
17.The appellant was overwhelmed with disbelief that such accusations would be made.
18.Therefore, the video recording should have been inadmissible.
Defence counsel did not object at the trial to the admissibility of the video record of interview. The trial judge therefore did not make an error of law by accepting the prosecutor's tender of the evidence. It is necessary, in these circumstances, for the appellant to establish that the admission of the video record of interview occasioned a miscarriage of justice.
I have watched the video record of interview and I have read the transcript of the interview. I am satisfied that the appellant had the capacity to understand his surroundings, and the time, place and significance of the interview. He appeared to understand the nature and content of the caution. He gave reasonably coherent answers to the questions put to him. My distinct impression, from watching the video record of interview, is that the appellant was not, during the interview, under duress or the influence of cannabis and alcohol or stressed by an addictive craving for nicotine as a result of not being permitted to have a cigarette.
The police officers who conducted the video‑recorded interview were polite to and respectful of the appellant. Their questioning and demeanour was not, in any respect, overbearing or intimidating.
The interview commenced on 6 May 2009 at 10.55 am. In an edited part of the video record of interview the appellant said, in response to a question from a police officer, that he had used some marijuana the previous night. When asked whether he was affected by the marijuana, the appellant said:
No you guys woke me up as you know when you got there (ts 4).
The video record of interview I have watched and the transcript of the interview I have read includes parts of the interview that were edited. The appellant did not state to the police officers, repeatedly or at all, in the edited or non‑edited parts that he was in a dazed and confused state.
Shortly after the commencement of the interview, a police officer told the appellant that if 'you need to go to the toilet again let me know … there's not a problem there' (ts 2 ‑ 3), and the appellant responded, 'right' (ts 3). At the conclusion of the interview, the appellant asked, 'Can I go to the loo?', and a police officer responded, 'Certainly can' (ts 40).
The appellant did not, during the interview, request a break to enable him to smoke a cigarette. There is no reason to believe that if the appellant had requested a break, for this purpose, his request would not have been granted.
It is not apparent from the video record of interview or the transcript of the interview that the appellant was under duress or the influence of cannabis or alcohol or in a dazed and confused state or stressed due to an addictive craving for nicotine or overwhelmed with disbelief at the allegations made against him.
Proposed ground of appeal 3 has no reasonable prospect of success.

The merits of proposed ground 4

The appellant's submissions assert that the trial judge failed adequately to take into account the appellant's 'good character' in imposing sentence.
The submissions made in support of proposed ground of appeal 4 do not refer to the appellant's alleged 'good character' in the context of his conviction. I have, however, dealt with that issue in the course of considering proposed ground of appeal 1.
As I have mentioned, the appellant stated in his appeal notice that he was appealing only against his conviction. However, to the extent that the appellant's submissions reveal a wish to challenge his sentence, I record my opinion that the appellant has no reasonable prospect of establishing that the sentence he received was manifestly excessive and no reasonable prospect of establishing any other material sentencing error.
Even if the appellant were able to establish an error in the sentencing process or outcome, I am satisfied that a different sentence should not have been imposed. See s 31(4)(a) of the Criminal Appeals Act 2004 (WA). I have perused the trial judge's sentencing remarks. I have also perused the pre‑sentence report, the psychological report and the victim impact statements that were before her Honour. The individual sentences imposed for counts 1, 2, 3 and 4 did not exceed the permissible range after taking into account and evaluating the maximum penalty, the standards of sentencing customarily observed with respect to the offence, the place which the appellant's criminal conduct occupies on the scale of seriousness applicable to the offence, and the appellant's personal circumstances. Also, the total effective sentence bears a proper relationship to the overall criminality involved in the offences committed by the appellant, viewed in their entirety, having regard to all relevant circumstances including those referable to the appellant personally. There is no sentencing tariff for sexual offences. See, generally, SAP v The State of Western Australia [2011] WASCA 155 (Mazza J, McLure P agreeing). I note that the appellant did not have the benefit of the mitigation that a plea of guilty and accompanying remorse would have brought and that he is, at least, at a moderate risk of re‑offending in a similar manner.
Proposed ground of appeal 4 has no reasonable prospect of success.

The merits of proposed ground 5

The appellant's submissions assert that the pre‑sentence report and the psychological report indicate that the appellant suffers from 'the mental impairment, anxiety stress disorder (ASD)'. According to the appellant, it is likely that he was suffering from ASD before the offences occurred and when they were committed. He requests an opportunity to adduce 'this over‑looked fact as new evidence'.
The psychological report dated 7 April 2010 records that when the psychologist interviewed the appellant he 'adamantly denied the current offences'. Psychometric testing revealed that the appellant had 'clinically significant elevations on the Depressive and Alcohol Dependence Scales'. The psychologist said that these results were consistent with those of individuals who may experience symptoms of depression and have a history of alcohol dependence.
The psychologist summarised her opinion in relation to the appellant, relevantly, as follows:
Given [the appellant's] stance of denial, it was not possible to explore the factors that may have contributed to his current offending behaviour however a number of factors appear to have contributed. [The appellant] appears to have had blurred boundaries in relation to the victims and his role as the responsible adult whilst they were in his care; he appears to have been under a high level of stress at the time that he dealt with by engaging in substance abuse; and he was not having his needs met at the time however seemed to lack assertiveness, and did not express his own needs. [The appellant] significantly breached his position of trust and responsibility in relation to the victims and had no regard for their needs at the time of the offending. Furthermore, there is nothing to indicate that the offending would not have continued had it not been detected. Taking into consideration the risk factors associated with risk of sexual re‑offending, [the appellant] appears to present at least a moderate risk of re‑offending in a similar manner. Given his stance of denial, he has not developed any relapse prevention strategies to decrease the risk of re‑offending in a similar manner in the future. His risk is considered to be further increased in the event of having unsupervised access to children similar in age to his current victims and particularly if he has established a relationship of trust with them and/or their significant others.
The psychologist referred to the appellant apparently experiencing high levels of stress at the material time for which he did not have any effective coping strategies. Instead, he resorted to alcohol and other substance abuse. However, the psychologist did not diagnose that the appellant suffers or had suffered from 'the mental impairment, anxiety stress disorder (ASD)'. Also, although the author of the pre‑sentence report noted that the appellant drinks 'mainly when he is stressed', no diagnosis of ASD is referred to in the pre‑sentence report.
The submissions made in support of proposed ground of appeal 5 do not refer to the appellant's alleged ASD in the context of his conviction. The submissions are concerned with the sentence imposed on him. As I have mentioned, the appellant stated in his appeal notice that he was appealing only against his conviction. I will, however, state that, in my opinion, the appellant has no reasonable prospect of successfully challenging the sentencing outcome.

It is, of course, well‑established that where an offender's mental illness or psychological difficulties have not been self‑induced (for example, by the ingestion of alcohol or illicit drugs), his or her condition is a relevant factor in the sentencing process. The effect of mental illness or psychological difficulties (falling short of insanity) on the kind or length of sentence to be imposed has been considered by the Court of Criminal Appeal and this court on several occasions. See the review of the cases I carried out in Smith v The State of Western Australia [2010] WASCA 176 [70] ‑ [75] (McLure P & Mazza J agreeing).
In the present case, the appellant committed the offences in question when he was intoxicated. The trial judge said in her sentencing remarks:
You have a history of severe problems with alcohol, and from all of the evidence I'm quite satisfied that you were severely affected by alcohol at the time of these offences (ts 175).
There is no material before this court from a medical practitioner or a psychologist to the effect that the appellant suffered, at the material time, from ASD. However, even if the appellant was suffering from ASD before or during the commission of the offences, there is no expert evidence of any causal relationship between the appellant's ASD and his offending. There is a correlation between the appellant's excessive consumption of alcohol and his offending, but there is no mitigation to be found in offending associated with voluntary alcohol or other substance abuse.
I am of the opinion that, even if the appellant suffered from ASD at any material time, no miscarriage of justice occurred at the sentencing hearing and a different sentence should not have been imposed. See, generally, my observations at [74] above.
Proposed ground of appeal 5 has no reasonable prospect of success.

The merits of proposed ground 6

The appellant's submissions do not elaborate upon the assertion in proposed ground of appeal 6 that the trial judge erred in law by 'allowing hearsay evidence' from T and E.
Defence counsel did not object at the trial to the admissibility of any hearsay evidence from T or E. The trial judge therefore did not make an error of law by not excluding the evidence. It is necessary, in these circumstances, for the appellant to establish that the admission of the hearsay evidence occasioned a miscarriage of justice.
The evidence of T was pre-recorded on 29 June 2009 and played at the trial (ts 83 ‑ 84). The State relied on T's evidence as evidence of recent complaint by A. The trial judge directed the jury in relation to T's evidence, as follows:
Now, in this case, ladies and gentlemen, we have some special evidence that we call evidence of recent complaint. That's the evidence from [T] about what [A] told her and the evidence from [T] about what she told her dad. Now, what [A] said to [T], [A] claimed he told [T] about a month after these things happened, whereas [T] said that he told her about the day after.
[T] gave evidence that [A] told her [the appellant] made him and [X] watch a pornographic movie. Now, ladies and gentlemen, [T] said she told her father straight away and from what we know her father immediately confronted [the appellant], so we know most of this must have happened in July 2008, shortly before [E] confronted his brother [the appellant] and about the time that email was sent about 18 July.
Forgetting then about the date and timing, I have to direct you that what [A] said to [T] is not evidence of the [truth] of what he said. It is evidence, if you accept it, of a recent complaint. You can only use it when you're assessing whether you believe [A] or not. It can be used by you as evidence of consistency (ts 151 ‑ 152).
Her Honour's direction does not reveal any material error.
E (the complainants' father and the appellant's brother) gave evidence, relevantly, of a discussion he had with the appellant, and a text message he received from the appellant, after the appellant had been informed of A's complaint to T (ts 90 ‑ 92).
The trial judge directed the jury in relation to this discussion and the text messages, as follows:
The State suggests that both when he spoke to [E] on the first occasion and in the SMS messages and to the police he was being apologetic and trying to [explain] how this might have happened and he can't remember it, whereas he's come to court denied it, so he denied these events happened. So you're aware of that background and you'll have to consider that and that's part of the evidence. Not that he has to prove his innocence, but it's part of all the evidence you need to consider (ts 150).
Her Honour's direction does not reveal any material error.
The hearsay evidence to which I have referred was admissible for the limited purposes explained by the trial judge to the jury.
Proposed ground of appeal 6 has no reasonable prospect of success.

The proposed additional evidence: the written reference as to the appellant's character

As I have mentioned, the appellant has made an application, in essence, for leave to adduce additional evidence in the appeal, being a written reference as to the appellant's character from Mr Staer. The reference reads, relevantly:
On several occasions, [the appellant] worked with me on jobs that I needed to do. I found him trust‑worthy and diligent to the tasks, we'd do. Once when, for a few weeks, he needed a vehicle to get to and from work, we shared my vehicle on whatever days I did not need it. It stayed mostly at my house and I loaned him a key so that he could come and take it and return it without having to disturb my family or I.
Twice, when he was able to afford his own set of wheels (a car), he diligently went about ensuring he paid off the money he had agreed to pay, to both those who had also agreed to allow him to pay it off over time. (The first was old and got to the point of being to [sic] expensive to repair. The second, he on‑sold to a mate, when he was needing some extra cash and not using it as much.)
Another passion of [the appellant's] has been his writing. He has been self‑motivated and a self‑starter, so as to write, produce and sell posters about positivity and optimism. In this area, I have also tried to help him and encourage him. He gains a whole lot of joy in promoting, selling and encouraging others with his general as well as his personal writings.
The reference is new, as distinct from, fresh evidence. Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of new as distinct from fresh evidence, unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted. See Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 ‑ 676 (Mason J); DPJB v The State of Western Australia [2010] WASCA 12 [66] (Owen JA, McLure P relevantly agreeing).
As I have mentioned, in the course of considering proposed ground of appeal 1, defence counsel's decision not to put the appellant's alleged good character in issue at the trial is capable of reasonable explanation on the basis of a tactical decision.
In any event, it is not reasonably arguable that Mr Staer's reference establishes that the appellant is innocent or raises such a doubt that this court would be satisfied that he should not have been convicted. As I have mentioned, the reference does not even support the proposition that, on the basis of his known character or reputation, the appellant was unlikely, at the material time, to sexually abuse the complainants, whether he was intoxicated or not.
The proposed new evidence does not materially advance the appellant's case. The application for leave to adduce the additional evidence should therefore be dismissed.

The result of the application for an extension of time to appeal

None of the proposed grounds of appeal has a reasonable prospect of success. The absence of any merit in the proposed grounds is sufficient, of itself, to require that the application for an extension of time to appeal be dismissed.
I would refuse to grant an extension of time. The application should be dismissed.
HALL J: I agree with Buss JA.