WRT v The State of Western Australia
[2021] WASCA 161
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WRT -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 161
CORAM: BUSS P
BEECH JA
VAUGHAN JA
HEARD: 21 APRIL 2021
DELIVERED : 8 SEPTEMBER 2021
FILE NO/S: CACR 84 of 2020
BETWEEN: WRT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GILLAN DCJ
File Number : IND 1713 of 2018
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted after trial of five counts of sexual offending against his daughter and one count of unlawfully detaining his daughter - Joinder - Severance - Cross‑admissibility of evidence
Whether the counts alleging sexual offending were properly joined with the count alleging unlawful detention - Whether the trial judge erred in law or a miscarriage of justice occurred as a result of the joinder - Whether the trial judge erred in law or a miscarriage of justice occurred as a result of the counts alleging sexual offending being tried with the count alleging unlawful detention - Whether the trial judge misdirected the jury in relation to the cross-admissibility of the evidence on the counts in the indictment
Legislation:
Criminal Code (WA), s 320(2), s 320(4), s 333
Criminal Procedure Act 2004 (WA), s 85(1), s 133(3), s 133(5), s 133(6), sch 1, cl 7(1), cl 7(2), cl 7(3)(b), cl 9(1)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr T F Percy QC & Ms J M P Byrne |
| Respondent | : | Mr R G Wilson |
Solicitors:
| Appellant | : | DG Price & Co |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Burke v Corruption and Crime Commission [2012] WASCA 49; (2012) 289 ALR 150
DKA v The State of Western of Australia [2019] WASCA 123
Mackay v The Queen [1977] HCA 22; (1977) 136 CLR 465
Mahmood v The State of Western Australia [2009] WASCA 220
NPK v The State of Western Australia [2020] WASCA 50
R v Russell (No 2) [1965] Qd R 334
Ricciardo v The State of Western Australia [2010] WASCA 116
Rintel v The Queen [1986] WAR 175
The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81
The State of Western Australia v Karolides [2017] WASCA 111
The State of Western Australia v Micalizzi [2010] WASCA 147
Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365
Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1
WRT v The State of Western Australia [2020] WASCA 68
Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302
TABLE OF CONTENTS
BUSS P
Overview of the State's case at trial
Overview of the appellant's case at trial
Grounds 1, 1A and 1B: the statutory provisions with respect to joinder and severance
Grounds 1, 1A and 1B: the trial judge's reasons for decision
Grounds 1, 1A and 1B: the appellant's submissions
Grounds 1, 1A and 1B: the State's submissions
Grounds 1, 1A and 1B: their merits
Ground 2: the trial judge's directions
Ground 2: the appellant's submissions
Ground 2: the State's submissions
Ground 2: its merits
Conclusion
BEECH & VAUGHAN JJA
………………………………………………………………………………………………...37
BUSS P :
The appellant has applied for an extension of time within which to appeal and for leave to appeal against conviction.
The appellant was charged on indictment with five counts of sexual offending against his daughter who, at material times, was under the age of 13 years. The appellant was also charged on the same indictment with one count of unlawfully detaining his daughter.
Count 1 alleged that, on an unknown date between 5 July 2002 and 1 June 2003, the appellant indecently dealt with the complainant by rubbing his penis against her vagina, contrary to s 320(4) of the Criminal Code (WA) (the Code).
Count 2 alleged that, on an unknown date between 5 July 2006 and 5 July 2007, the appellant attempted to sexually penetrate the complainant by attempting to penetrate her vagina with his penis, contrary to s 320(2) read with s 552 of the Code.
Count 3 alleged that, on an unknown date between 5 July 2006 and 5 July 2008, the appellant sexually penetrated the complainant by engaging in cunnilingus, contrary to s 320(2) of the Code.
Count 4 alleged that, on an unknown date between 5 July 2006 and 5 July 2008, the appellant sexually penetrated the complainant by penetrating her mouth with his penis, contrary to s 320(2) of the Code.
Count 5 alleged that, on an unknown date between 1 December 2011 and 31 January 2012, the appellant indecently dealt with the complainant by rubbing her vagina with his hand, contrary to s 320(4) of the Code.
Count 6 alleged that, between 9 November 2012 and 12 November 2012, the appellant unlawfully detained the complainant, contrary to s 333 of the Code.
The appellant pleaded not guilty to each of the charged offences.
Prior to the trial, the appellant made an application for the severance of count 6 from counts 1 to 5 and for an order that the appellant be tried separately on count 6. On 6 September 2019, Gillan DCJ heard and dismissed the appellant's application.
On 23 September 2019, after a trial before Gillan DCJ and a jury between 16 and 23 September 2019, the appellant was convicted of all of the charged offences.
On 12 November 2019, the trial judge sentenced the appellant to a total effective sentence of 8 years' imprisonment. The appellant appealed to this court against sentence. The appeal was dismissed. See WRT v The State of Western Australia.[1]
[1] WRT v The State of Western Australia [2020] WASCA 68.
The last date for the appellant to appeal against conviction was 3 December 2019. The appellant did not file his appeal notice until 23 June 2020. The application for an extension of time is supported by an affidavit of the appellant's lawyer, Josephine Mary Pauline Byrne, sworn 23 June 2020. On 24 August 2020, I referred the application to the hearing of the appeal.
Initially, the appellant relied upon two grounds in his appeal against conviction, namely grounds 1 and 2.
Shortly before the hearing of the appeal, the appellant sought leave to rely upon an additional ground, namely ground 1A. At the hearing of the appeal, the appellant sought leave to rely upon a second additional ground, namely ground 1B. The court heard argument on proposed grounds 1A and 1B. In the circumstances, I would grant the appellant leave to amend his grounds by the addition of grounds 1A and 1B.
Ground 1 alleges that the trial judge erred in law by dismissing the appellant's application to sever count 6 from counts 1 to 5 and by permitting count 6 to be tried with counts 1 to 5. Ground 1A alleges that her Honour erred in law in determining the appellant's application for severance by holding that one of the criteria for deciding the application was whether the proposed severance would be fair to the State. Ground 1B alleges that a miscarriage of justice has occurred as a result of count 6 having been charged in the indictment with counts 1 to 5. Ground 2 alleges that her Honour misdirected the jury in relation to 'the cross-admissibility of [the evidence on] the counts in the indictment'.
In my opinion, all of the grounds of appeal fail. The application for an extension of time within which to appeal should be dismissed and leave to be appeal should be refused. The appeal must be dismissed.
Overview of the State's case at trial
The State alleged at trial that the sexual offending charged in counts 1 to 5 occurred between 5 July 2002 and 31 January 2012.
The complainant is the appellant's biological daughter. At all material times, the appellant resided with the complainant. The complainant was born in 1998 and was aged between four and 14 years at the time of the alleged offending. The appellant was born in 1950 and was aged between 51 and 62 years when the alleged offending occurred.
At the trial, the State adduced evidence from the complainant, the complainant's mother, the complainant's aunt and a number of police officers.
The State's case in relation to the alleged acts of the appellant pleaded in counts 1 to 5 relied upon the complainant's evidence. The State also relied upon the complainant's evidence of an uncharged act that allegedly occurred in Thailand. The alleged sexual offending was largely uncorroborated, apart from the evidence of some witnesses which corroborated collateral issues, including the family's holiday in Thailand and the complainant's mental health problems.
The complainant's evidence of the appellant's actions on 10, 11 and 12 November 2012 in relation to count 6 were largely corroborated by the complainant's mother, the complainant's aunt and police officers, including Detective Senior Constable Christopher Greenshaw, all of whom attended the house where the complainant was detained. The State's case on count 6 included the contention that the appellant had detained the complainant to punish and humiliate her.
As to count 1, the complainant gave evidence that she was aged four years when the appellant came into her bedroom at their home. The appellant laid down. The complainant sat on top of the appellant. The appellant pulled his underwear to one side and began pushing the complainant back and forth. He rubbed his penis against her vagina. The appellant called this conduct 'riding the horsey' (ts 144 ‑ 145).
Count 4 occurred next. The offending occurred in 'the kip room' at their home (ts 146). The complainant said that events happened 'multiple times' in that room (ts 147). On the occasion in question, the appellant had closed his eyes and pretended to be asleep. The complainant went into the room. The appellant pushed her head down and put his penis into her mouth until he ejaculated. The complainant ran from the room and spat the ejaculate into the corner of her bedroom. At the time she was aged five years (ts 147 ‑ 149).
As to count 3, the complainant gave evidence that she 'sat on [the appellant's] face' on multiple occasions in the kip room. On the occasion in question she was aged eight or nine years. The appellant closed his eyes and licked her vagina with his tongue (ts 149).
As to count 2, the complainant gave evidence that when she was aged about eight or nine years, the appellant attempted to insert his penis into her vagina, but his penis did not fit (ts 150).
As to count 5, the complainant's mother was away in Sydney when the complainant and the appellant went on a trip to Busselton. They stayed at a motel or lodge. During the stay the appellant rubbed the complainant's vagina with his hand for about half an hour. The complainant recalled that the appellant got a cramp. When she laughed at his expression, the appellant made the complainant stand outside the motel or lodge door for some time (ts 151 ‑ 152). The complainant gave evidence that at the time she was about 10 years old, but her mother's recollection was that she went to Sydney in 2010, when the complainant would have been aged 12 (ts 281). In any event, on either version, the complainant was under the age of 13.
As to the uncharged act, the complainant gave evidence that the family travelled to Thailand in 2011 (not 2012) when the complainant was aged 12, nearly 13 (ts 153). During the visit to Thailand there was an occasion when she and the appellant were alone at their holiday villa. They were lying in bed and the appellant touched her vagina. The complainant ran from the room (ts 152 ‑ 155). According to the complainant's recollection, this was the last time the appellant sexually interfered with her (ts 146).
The complainant gave evidence that she did not inform her mother about the incidents of sexual offending by the appellant because she thought she was 'instigating everything as a child', she was the 'one doing it' and she would get into trouble (ts 155).
The complainant also gave evidence that the appellant had disciplined her in various ways while she was a child including locking her in a bathroom for three hours when she was aged five or six because her grades at school were unsatisfactory (ts 142); striking her with a wooden spoon if she misbehaved (ts 142 ‑ 143); dropping a baking tray on her head (ts 142); making her stand for long periods, facing a corner, when they were at restaurants (ts 142 ‑ 143); pushing her into a swimming pool and throwing her iPods into the pool (ts 156).
The complainant's evidence in relation to the appellant's discipline was corroborated, in part, by her mother's evidence that the appellant would use extreme discipline in relation to the complainant; for example, putting the complainant in the powder room for five hours when she was aged six or seven; using a wooden spoon to hit the complainant from the age of two or three; throwing a bucket of water on the bathroom floor if the complainant did not clean it adequately; telling the complainant that she would be 'on her back or flipping burgers for the rest of her life' if she did not get straight A's at school; and throwing her iPod into the swimming pool (ts 275 ‑ 279, 289).
The complainant's aunt also gave evidence that the appellant had told the complainant, when the complainant was aged six or seven, that she would be 'flipping burgers or on her back'; that the appellant had made the complainant stand with her nose in a corner for half an hour; and, shortly before the occurrence of count 6, the appellant had smashed a salad bowl onto a table and had then made the complainant stand or sit on command (ts 361 ‑ 363).
As to count 6, the complainant gave evidence that in November 2012 she had been suspended from school on a Friday and had been 'grounded' by the appellant. At the time, the complainant's mother was working away from Perth. The appellant told the complainant that she would be cleaning the house (ts 156 ‑ 158). The complainant hid in a cupboard. She heard her father looking for her. The complainant remained in the cupboard until she heard her father leave the house. The complainant then left and went to the houses of various friends (ts 158 ‑ 160).
On the Saturday morning, the appellant made a missing person report to police in relation to the complainant. As a result, police contacted the mother of the complainant's friend. The mother took the complainant to the police station where she was collected by the appellant. The complainant told police that she did not want to go with the appellant, but she felt that she was forced to do so (ts 161 ‑ 162).
The appellant admitted in an electronically recorded interview with police that after police had contacted him and informed him that he could collect the complainant from the police station, the appellant went to a hardware store and purchased a chain, cable ties and duct tape. The appellant drilled a hole in the complainant's bedroom floor and installed a DynaBolt in the floor. He then collected the complainant from the police station (EROI 14 ‑ 16).
The complainant gave evidence that on the way home from the police station the appellant's behaviour was erratic. The appellant was calm and collected one moment and then veered their vehicle across multiple lanes the next moment. The complainant asked him to stop. The appellant responded by asking her whether she wanted to kill herself. The complainant told the appellant that she did (ts 162).
Upon arriving at their home, the appellant forced the complainant to put on her school uniform. He handcuffed her and zip tied her feet together with cable ties. The handcuffs were attached to the chain that was bolted to her bedroom floor. Various items had been removed from her bedroom including drawers, clothes and stuffed toys. The windows to her bedroom were closed and covered with roller shutters. The appellant placed a bucket in the bedroom for the complainant to use as a toilet (ts 163 ‑ 164). He gave her bread and water (ts 165).
Some time later, when the appellant drove his mother to her home, the appellant put the complainant in the vehicle. He handcuffed her to the car door and connected a lunch box lid to a cable tie around her neck. The appellant wrote the words 'Runaway child. If found, please call [the appellant's and the complainant's mother's telephone numbers]' on the lid. While at the appellant's mother's house, the complainant remained handcuffed and was left in the vehicle. Her aunt and uncle (on her father's side) spoke to her and told her that she was 'naughty' (ts 165 ‑ 166).
Upon the appellant and the complainant returning to their home, the appellant again handcuffed, zip tied and chained the complainant in her bedroom. Later, the appellant permitted the complainant to have a shower, but required her to have the shower while wearing her underwear and with her feet still zip tied (ts 166 ‑ 167).
At some point, the complainant's maternal grandmother arrived and saw the complainant restrained in her bedroom. The complainant had written the word 'help' on her hand. Police attended the house on the Sunday. The police were met by the appellant who told them that the complainant was suicidal and had attempted repeatedly to run away. He had restrained her for her own protection. The appellant took the police to the complainant's bedroom where they observed her in bed, dressed in her school uniform, with zip ties on her ankles and attached to a chain that was bolted to the floor (ts 392). The complainant told the police officers that she wanted to die. The police took the complainant to hospital (ts 393).
The complainant did not make any contemporaneous complaints about the appellant's alleged sexual offending. In 2013 the complainant told police that she was not prepared to proceed with a prosecution for count 6 (ts 225). However, in 2016 the complainant spoke to police about reinstating the charge because she felt ready to proceed (ts 226 ‑ 227). Subsequently, the complainant disclosed the alleged sexual offending to police (ts 227).
Overview of the appellant's case at trial
The appellant's case at trial was that the sexual offending charged in counts 1 to 5 did not happen.
Defence counsel (who was senior counsel for the appellant in the appeal) suggested in his opening statement that the complainant may have made false allegations of sexual offending by the appellant because of a combination of issues arising from Family Court proceedings, malice and financial considerations (ts 124).
Defence counsel cross-examined the complainant to the effect that she had been emotionally unstable while growing up (ts 181, 183); she had been suicidal or had threatened to self-harm at various stages (ts 182 ‑ 185); she considered that the appellant had been unduly strict as a father (ts 186); she was a thief (ts 187); and she used cannabis (ts 188). Defence counsel also cross-examined the complainant in relation to a claim by the complainant for criminal injury compensation (ts 201); a Family Court settlement between her parents; and an occasion in 2017 when the complainant had asked the appellant for money (ts 216 ‑ 217).
Defence counsel also relied upon the fact that the charged offence in count 6 was discontinued in 2013. That charged offence was reinstated later and the sexual offending allegations arose for the first time many years after the occurrence of the alleged events (ts 127).
Defence counsel cross-examined the complainant concerning her having been asked, on multiple occasions, to make a complaint about the appellant having sexually abused her and her failure to disclose that alleged offending. Defence counsel also cross‑examined the complainant concerning her having been asked, on multiple occasions, whether she had difficulty with the appellant and her responses that she had no problems with him (ts 191 ‑ 194, 199, 202 ‑ 203). The complainant gave evidence that she did not disclose anything earlier than she did because she was frightened about the repercussions when she returned home and about possibly being taken away from her mother (ts 203). The complainant agreed that, after the occurrence of the charged offence in count 6, she was asked by police, when they took her to hospital, whether the appellant had sexually abused her and she had replied 'no'. The complainant explained that she gave that answer because she felt unable to trust anyone and she felt that she had instigated the sexual offending (ts 212 ‑ 213).
As to count 6, the appellant's case at trial was that he was not criminally responsible for his actions in detaining the complainant because those actions were done in an emergency under s 25(3) of the Code; alternatively, his actions were lawful because they involved the use, by way of correction, of force that was reasonable under the circumstances, within s 257 of the Code.
Grounds 1, 1A and 1B: the statutory provisions with respect to joinder and severance
Section 85(1) of the Criminal Procedure Act 2004 (WA) provides that sch 1 to the Act has effect in relation to indictments and charges in them.
Clause 7(1) of sch 1 provides, relevantly, that an indictment may charge two or more offences as alternatives to one another. By cl 7(2), relevantly, unless two or more charges are expressly said by an indictment to be alternatives to one another, they are not.
Clause 7(3) provides, relevantly:
[An] indictment may charge one or more persons with 2 or more offences if the offences ‑
(a)form or are a part of a series of offences of the same or a similar character; or
(b)are alleged to arise substantially out of the same or closely related acts or omissions; or
(c)are alleged to arise from a series of acts or omissions done or omitted to be done in the prosecution of a single purpose,
and may do so without alleging a connection between the offences.
Clause 9(1) of sch 1 provides, relevantly and in effect, that if two or more charges are properly joined in an indictment those charges must be tried together unless a court orders otherwise under the Criminal Procedure Act.
Section 133(3) of the Criminal Procedure Act provides, relevantly, that if a court is satisfied that an accused is likely to be prejudiced in a trial of an indictment because it contains two or more charges, the court may order that the accused be tried separately on one or more of the charges.
By s 133(5), relevantly:
In deciding whether to make an order under subsection (3) … in respect of an indictment to be tried by a jury, it is open to a superior court ‑
(a)to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury; and
(b)to so decide irrespective of the nature of the offence or offences charged; and
(c)to so decide even if ‑
(i)the evidence on one of the charges is inadmissible on another; or
(ii)the evidence against one of the accused is not admissible against another,
as the case requires.
By s 133(6), in considering, for the purposes of s 133, the likelihood of an accused being prejudiced in the trial by a jury of an indictment that contains two or more charges of a sexual nature, the court must not have regard to the possibility that similar fact evidence, the probative value of which outweighs its potentially prejudicial effect, may be the result of collusion or suggestion.
Grounds 1, 1A and 1B: the trial judge's reasons for decision
As I have mentioned, on 6 September 2019, the trial judge heard and dismissed the appellant's application for severance.
Her Honour noted, in her reasons for decision, that initially the appellant's application for severance had been brought on two bases. First, count 6 had not been properly joined with counts 1 to 5 in that the counts did not fall within pars (a), (b) or (c) of cl 7(3) of sch 1 to the Criminal Procedure Act. Secondly, her Honour should exercise the discretion conferred by s 133(3) of the Criminal Procedure Act in that her Honour should be satisfied that the appellant was likely to be prejudiced in the trial of the indictment because it contained two or more charges and, accordingly, her Honour should order that the appellant be tried separately on count 6.
However, at the hearing of the application, defence counsel (who did not appear for the appellant at the trial) abandoned reliance upon the first basis and relied solely upon the second basis.
Her Honour concluded:
(a)The State's evidence in relation to count 6 'does carry with it the risk of prejudice because it could invite the jury to impermissibly reason that a man [who is] capable of restraining his child in the manner alleged might have something to hide or might be capable of even more, even though [it is] not asserted that the restraint had any sexual context or quality to it' (ts 47).
(b)Her Honour then said that 'the law is that if the evidence is cross‑admissible the court should be very slow to sever an indictment' (ts 47).
(c)In the present case, the evidence on each count was cross‑admissible on the other counts (ts 47).
(d)The State's evidence in relation to count 6 was 'an extension of the evidence of … a relationship involving violence and control' by the appellant towards the complainant (ts 47).
(e)The evidence as to the events the subject of count 6 were 'the culmination of that relationship and … could be used permissibly … by the jury to explain or to bolster the evidence of the complainant about earlier occasions of violence and control within their relationship' (ts 47 ‑ 48).
(f)The State's evidence in relation to count 6 'may well help explain why [the complainant] was reluctant to make disclosures of a sexual nature against [the appellant] both before and after her restraint' (ts 48).
(g)The State's evidence in relation to counts 1 to 5 'would also be relevant to the question of whether there was in truth an emergency or whether [the appellant] had taken the steps of restraining the complainant in order to ensure the nature of their relationship would not be disclosed' (ts 48).
(h)Her Honour said that 'because of that cross-admissibility' her Honour 'would be slow to sever' and that 'the fairness of the trial goes both ways', namely 'fairness to the accused and also to the State' (ts 48).
(i)If severance were to occur there was 'a real possibility that the complainant's story could not be properly told to the jury' (ts 48).
(j)The appellant's contentions underestimated the ability of a jury to understand and apply 'appropriate[ly] worded directions' from the trial judge in relation to the cross-admissibility of the evidence (ts 48 ‑ 49).
(k)In her Honour's view, 'a properly instructed jury would be able to understand the use to which it could put the evidence of … the uncontentious restraint of the complainant' (ts 49).
(l)Her Honour said that, in particular, the jury 'could be instructed that there is no suggestion that that restraint had any sexual overtones and … that its use is to explain the relationship … between the two parties and the reasons why the complainant may have been slow to make complaint about the matters of a sexual nature' (ts 49).
Grounds 1, 1A and 1B: the appellant's submissions
Counsel for the appellant submitted that the trial judge erred in law by failing to sever count 6 from the indictment; alternatively, that a miscarriage of justice occurred at the trial as a result of count 6 having been tried with counts 1 to 5.
Counsel asserted that:
(a)the evidence in relation to count 6 was not admissible in respect of counts 1 to 5;
(b)the subject matter of count 6 was 'of an entirely different nature and occurred at different times' from the events the subject of counts 1 to 5;
(c)count 6 'appears to have been motivated by a misguided sense of parental discipline' and was not sexually motivated;
(d)by contrast, counts 1 to 5 were exclusively of a sexual nature; and
(e)the trial of count 6 with counts 1 to 5 resulted in significant and impermissible prejudice to the appellant at the trial.
Counsel emphasised that the acts the subject of count 6 were 'of an entirely different nature' from the acts alleged in counts 1 to 5. Also, some of the charged offences in counts 1 to 5 'were not temporally proximate nor demonstrated any similar attitude towards the complainant' as count 6. Further, it was contended that count 1 occurred in 2002 whereas count 6 occurred in 2012. There was 'no element of restraint or discipline to the sexual assaults, and the appellant allegedly normalised the sexual offending, as opposed to the deprivation of liberty [count], which was clearly disciplinarian'.
Counsel argued that count 6 was not properly joined with counts 1 to 5. The prosecution had relied upon cl 7(3)(b) of sch 1 of the Criminal Procedure Act in joining count 6 with counts 1 to 5. Counsel submitted that the joinder was not authorised by cl 7(3)(b) because the offence charged in count 6 did not arise substantially out of the same or closely related acts or omissions as the offences charged in counts 1 to 5.
Counsel then directed his contentions to her Honour's refusal to sever count 6 from the indictment.
Counsel submitted that the evidence in relation to count 6 was not admissible on counts 1 to 5 and that consequently the appellant's trial was unfair.
Next, it was submitted that the trial judge erred in determining the appellant's application for severance by holding that one of the criteria for determining the application was a consideration of whether the proposed severance would be fair to both the State and the appellant. It was argued that s 133(3) read with s 133(5) of the Criminal Procedure Act requires the court to determine an application for severance on the basis of the likely prejudice to the accused of a joint trial. It was also contended that any potential unfairness to the State is not a relevant consideration in determining an application for severance under s 133.
Counsel then submitted, further or alternatively, that even if count 6 was 'to some extent cross‑admissible as relationship evidence' in respect of counts 1 to 5, the evidence was 'so prejudicial that it could not have been overcome by any direction'. According to counsel, there was a real chance that the jury might have been 'so overwhelmed by the factual scenario of the deprivation [of liberty charge (in count 6)], that a direction from the trial judge would not have been likely to cure the prejudice'. It was submitted that the nature of the deprivation of liberty was 'objectively shocking'. In particular, the evidence concerning count 6 was 'a particularly graphic representation of [the appellant's] offending and character, which could have significantly prejudiced the jury above and beyond the limited purpose that [the] evidence served for cross‑admissibility purposes'.
Counsel maintained that, as a result of the joint trial of count 6 with counts 1 to 5, the appellant did not receive a fair trial.
Grounds 1, 1A and 1B: the State's submissions
Counsel for the State informed the court that the prosecution had joined count 6 with counts 1 to 5 in reliance upon cl 7(3)(b) of sch 1 to the Criminal Procedure Act.
Clause 7(3)(b) permits an indictment to charge a person with two or more offences if the offences are alleged to arise substantially out of the same or closely related acts.
The State's position was that all of the charged offences in the indictment arose substantially out of the same or closely related acts in that:
(a)each count involved the same alleged accused committing offences against the same alleged complainant in the course of the same parent-child relationship;
(b)each count involved the use of force; and
(c)each count occurred in the same place (namely, the family home).
Counsel noted that, when the appellant's application for severance was heard by the trial judge, defence counsel conceded that count 6 had been properly joined with counts 1 to 5 pursuant to cl 7(3). The sole issue before her Honour was whether her Honour should exercise the discretion conferred under s 133(3) of the Criminal Procedure Act to order that the appellant be tried separately on count 6.
Counsel also noted that, at the hearing of the appellant's application for severance before her Honour, defence counsel accepted that the evidence relating to count 6, on the one hand, and the evidence relating to counts 1 to 5, on the other, were cross-admissible (ts 32 ‑ 34). However, defence counsel argued that the prejudice that would arise at a joint trial was so great that a jury would be unable to bring a fair mind to the resolution of both counts 1 to 5 and count 6.
On appeal, the appellant changed his stance and asserted that the evidence relating to count 6 and the evidence relating to counts 1 to 5 were not cross‑admissible.
Counsel for the State also noted that, in its written and oral submissions before the trial judge in opposition to the appellant's application for severance, the State explained that it was not relying on s 31A of the Evidence Act 1906 (WA), but was asserting that the evidence on each of the counts was cross‑admissible as relationship evidence at common law.
Counsel argued that:
(a)the appellant's case at trial with respect to count 6 was that the appellant's conduct was not unlawful because it was a necessary and reasonable response to an emergency;
(b)a critical issue for the jury in considering count 6 was the appellant's state of mind or motive in restraining the complainant, having regard to the State's case and the appellant's defence on that count;
(c)the nature of the relationship between the appellant and the complainant was relevant to the appellant's state of mind or motive in restraining the complainant as alleged in count 6 and, accordingly, the evidence relating to counts 1 to 5 was admissible on count 6;
(d)a critical issue for the jury in considering counts 1 to 5 was the complainant's failure to make complaint about the alleged sexual offending until many years after the alleged offending had occurred;
(e)the evidence relating to count 6 was relevant to the complainant's delay in making complaint about the alleged sexual offending the subject of counts 1 to 5 in circumstances where the appellant relied upon the delay as a matter going to the credibility of the complainant's evidence, and it was necessary for the jury to evaluate the complainant's situation (including her state of mind) at the time of the alleged sexual offending; and
(f)the trial judge therefore did not err in finding that the evidence as between counts 1 to 5 and count 6 was cross‑admissible.
It was contended that her Honour was entitled to take into account fairness to the State in determining the appellant's application for severance. However, even if her Honour was in error, the error was not material or, if it was material, no substantial miscarriage of justice has occurred because her Honour's ultimate decision not to order severance was correct.
As to s 133(3) of the Criminal Procedure Act, counsel for the State submitted that although the alleged facts and circumstances of the appellant's alleged offending on count 6 may 'very well be considered shocking', those allegations were not objectively 'more shocking than the allegations of sexual offending'. There was no reasonable possibility that the factual scenario of the deprivation of liberty charge was so shocking or offensive that it created impermissible prejudice which could not be cured by a judicial direction to the jury.
Counsel for the State contended that counts 1 to 5 and count 6 were properly joined on the indictment; the evidence as between counts 1 to 5 and count 6 was cross‑admissible; there was no reasonable possibility of unfair or impermissible prejudice arising from the joinder that could not be cured or guarded against by a judicial direction to the jury; her Honour did not err in refusing to sever count 6; and no miscarriage of justice was occasioned by the joint trial of all of the counts in the indictment.
Grounds 1, 1A and 1B: their merits
Grounds 1, 1A and 1B raise a number of issues.
Ground 1 (read with the submissions in support of the ground) asserts, in effect, that the trial judge erred in law by dismissing the appellant's application to sever count 6 from counts 1 to 5 in that:
(a)the joinder of those counts was not permissible under cl 7(3)(b) of sch 1 to the Criminal Procedure Act; and
(b)alternatively, her Honour should have been satisfied that the appellant was likely to be prejudiced in the trial of the indictment because count 6 was joined with counts 1 to 5, and her Honour should have made an order under s 133(3) of the Criminal Procedure Act that the appellant be tried separately on count 6.
Ground 1A (read with the submissions in support of the ground) asserts, in effect, that her Honour erred in law in determining the appellant's application for severance by holding that one of the criteria for deciding the application was whether the proposed severance would be fair to the State.
Ground 1B (read with the submissions in support of the ground) asserts, in effect, that a miscarriage of justice has occurred as a result of count 6 having been charged in the indictment with counts 1 to 5 in that:
(a)the joinder of those counts was not permissible under cl 7(3)(b); and
(b)alternatively, the trial judge should have been satisfied that the appellant was likely to be prejudiced in the trial of the indictment because count 6 was joined with counts 1 to 5, and her Honour should have made an order under s 133(3) that the appellant be tried separately on count 6,
and consequently the appellant did not receive a trial according to law or did not receive a fair trial.
It is convenient to begin by considering the merits of that part of grounds 1 and 1B which concerns the joinder of count 6 with counts 1 to 5.
As I will explain, it is not necessary, for the purpose of deciding the present case, to determine the proper construction or application of cl 7(3)(b). However, despite the sparse submissions of counsel for the parties, I will, having regard to the frequency with which cl 7(3) is relied upon in criminal proceedings in this State, make some exploratory observations about cl 7(3)(b).
Clause 7(3)(b) provides, relevantly, that an indictment may charge a person with two or more offences if the offences 'are alleged to arise substantially out of the same or closely related acts or omissions', and may do so without alleging a connection between the offences.
The focus in construing cl 7(3)(b) is, of course, upon the text of the provision having regard to its context and purpose.
As Steytler P (Wheeler JA relevantly agreeing and Pullin JA agreeing) noted in Zammit v The State of Western Australia,[2] the courts have consistently held, for policy reasons, that multiple charged offences which can be joined without prejudice to the accused should generally be joined. The relevant policy reasons include promoting consistency in decision making and facilitating a single and final enquiry into alleged offences which arise out of or essentially involve common issues of fact or law. Also, joinder promotes the proper and efficient administration of criminal justice, including a saving in court time and public expense, and greater convenience for witnesses.
[2] Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302 [59].
In Zammit [17] ‑ [36], Steytler P examined in detail the historical development of the common law and statutory provisions in the United Kingdom, Queensland and Western Australia with respect to the joinder in an indictment of multiple charged offences against an accused. His Honour noted, in essence, that the construction adopted in Queensland and Western Australia in relation to precursors to cl 7(3)(b) (including s 568(12) of the Criminal Code (Qld) and s 586(7) (repealed) of the Code) had not been unanimous [20]. His Honour concluded, in essence, that cl 7(3)(b) was wider in its formulation than analogous provisions in the United Kingdom and Queensland and that cl 7(3)(b) was also wider in its formulation than its precursor in s 586(2) (repealed) of the Code [37].
The phrase 'arise substantially out of the same or closely related acts or omissions' in cl 7(3)(b) has 'a relatively wide reach'. See Zammit [39]. That approach is consistent with case law which indicates that similar phrases relating to the joinder of charges against an accused should not be given an unduly restrictive meaning, especially having regard to the broad judicial discretion conferred by s 133 of the Criminal Procedure Act and analogous provisions. See Zammit [39].
It is necessary, for the purposes of cl 7(3)(b), to identify the 'acts or omissions' out of which each alleged offence arises. Attention must then be given to whether the acts or omissions out of which each alleged offence arises are 'substantially … the same or closely related' to the acts or omissions out of which each other alleged offence arises.
In my opinion, the acts or omissions out of which an alleged offence arises, within the meaning of cl 7(3)(b), are not confined to the acts or omissions which the State must prove to secure a conviction for the offence. If that had been intended cl 7(3)(b) would not have referred to each alleged offence '[arising] … out of' acts or omissions, but would have referred to the acts or omissions 'constituting' or 'comprising' each alleged offence. The phrase '[arising] … out of' points to a nexus between the relevant acts or omissions, on the one hand, and the alleged offence, on the other. The requisite nexus includes that the alleged offence has developed out of or stemmed from the acts or omissions (including the historical acts or omissions) of the accused in relation to the complainant. However, those acts or omissions do not necessarily include all of the acts or omissions in respect of which evidence is admissible at the trial.[3]
[3] Compare, in the context of similar, but not identical, statutory formulations, R v Russell (No 2) [1965] Qd R 334; Rintel v The Queen [1986] WAR 175.
The word 'substantially' is a relative term and takes colour from the context in which it is used. In cl 7(3)(b), 'substantially' is a term of some elasticity. It connotes 'largely', 'for the most part', 'by and large', 'in the main'. See, generally, Oxford English Dictionary Online Version.
In my opinion, two or more offences will 'arise substantially out of … closely related acts or omissions', within cl 7(3)(b), if the acts or omissions out of which each offence arises are 'largely', 'for the most part', 'by and large' or 'in the main' closely related.
The question whether an act or omission is 'closely related' to another act or omission is one of degree. An act or omission from which an offence arises may be 'closely related' to another act or omission from which another offence arises because there is a relationship between the acts or omissions in question.
One set of acts or omissions will largely or for the most part be 'closely related' to another set of acts or omissions if there is a close association or connection between the acts or omissions in question having regard, for example, to time, place, the nature of the offences, the identity of the complainant and the circumstances in which the offences have allegedly been committed. See, generally, Russell (No 2) (337); Mackay v The Queen;[4] Zammit [37] ‑ [39].
[4] Mackay v The Queen [1977] HCA 22; (1977) 136 CLR 465, 469 (Barwick CJ, Gibbs & Mason JJ).
Where an indictment should have been but was not severed, a defect in the form of the indictment does not necessarily lead to a mistrial. See Mackay (469 ‑ 470); Wilde v The Queen.[5]
[5] Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 373 ‑ 374 (Brennan, Dawson & Toohey JJ).
In the present case, at the hearing before the trial judge on 6 September 2019, defence counsel expressly abandoned any contention that counts 1 to 5 and count 6 had not been properly joined in the indictment (ts 19 ‑ 20). Defence counsel then expressly conceded that count 6 had been properly joined with counts 1 to 5 (ts 20). Defence counsel relied solely upon s 133(3) of the Criminal Procedure Act in his submissions on the appellant's application for severance.
In those circumstances, to the extent that ground 1 (read with the submissions in support of the ground) asserts that the trial judge erred in law by dismissing the appellant's application to sever count 6 from counts 1 to 5, in that the joinder of those counts was not permissible under cl 7(3)(b), ground 1 must fail. It is well established that a judge does not make a wrong decision on a question of law, within s 30(3)(b) of the Criminal Appeals Act 2004 (WA), by failing to make a decision on a contention that was not put to him or her. See, for example, Ricciardo v The State of Western Australia;[6] Wright v The State of Western Australia;[7] Burke v Corruption & Crime Commission.[8] The appellant must establish, as alleged in ground 1B, that a miscarriage of justice, within s 30(3)(c) of the Criminal Appeals Act, has occurred.
[6] Ricciardo v The State of Western Australia [2010] WASCA 116.
[7] Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1.
[8] Burke v Corruption and Crime Commission [2012] WASCA 49; (2012) 289 ALR 150.
It is unnecessary, in the present case, to decide whether the joinder of count 6 with counts 1 to 5 was permissible under cl 7(3)(b). It is unnecessary because even if the joinder of those counts was not permissible under cl 7(3)(b), I am satisfied, for the following reasons, that no substantial miscarriage of justice has occurred.
First, as I will explain, the evidence relating to counts 1 to 5 was admissible on count 6 and the evidence relating to count 6 was admissible on counts 1 to 5. Secondly, as I will explain, the trial judge's directions as to cross‑admissibility were adequate. Thirdly, as I will explain, the appellant's competent and very experienced defence counsel (who had been Queen's Counsel for more than 20 years) did not request her Honour to give a further direction or a redirection concerning the cross‑admissibility of the evidence in question. Fourthly, as I will explain, her Honour did not err in deciding that the appellant was unlikely to be prejudiced in the trial of the indictment because count 6 was joined with counts 1 to 5 and that, in the circumstances, an order should not be made under s 133(3) of the Criminal Procedure Act for the appellant to be tried separately on count 6. Fifthly, as I will explain, no miscarriage of justice occurred as a result of her Honour refusing to make an order under s 133(3) that the appellant be tried separately on count 6.
I turn to consider the merits of ground 1A which concerns her Honour's alleged error in determining the appellant's application for severance by holding that one of the criteria for deciding the application was whether the proposed severance would be fair to the State.
The trial judge said in her reasons that 'because of that cross-admissibility' (that is, because the evidence relating to counts 1 to 5 was admissible on count 6 and the evidence relating to count 6 was admissible on counts 1 to 5) her Honour 'would be slow to sever' and that 'the fairness of the trial goes both ways', namely 'fairness to the accused and also to the State' (ts 48).
Her Honour concluded, in effect, that any relevant prejudice to the appellant arising from the cross-admissibility of the evidence could be guarded against adequately by judicial direction to the jury.
The principles relating to the exercise of the court's discretionary power under s 133(3) of the Criminal Procedure Act to order that an accused be tried separately on one or more charges were referred to by this court in The State of Western Australia v Karolides.[9] I need not repeat them.
[9] The State of Western Australia v Karolides [2017] WASCA 111 [22] ‑ [30] (Mitchell & Beech JJA & Hall J).
It is unnecessary, in the present case, to make any comment about the differences of view expressed by me in The State of Western Australia v Bowen[10] and McLure P in The State of Western Australia v Micalizzi,[11] on the one hand, and by Roberts-Smith JA and Pullin JA in Bowen, on the other.
[10] The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81.
[11] The State of Western Australia v Micalizzi [2010] WASCA 147.
It is unnecessary because it is plain from the trial judge's reasons that her Honour did not accord any weight to the criterion of fairness to the State in arriving at her conclusion that count 6 should not be severed from counts 1 to 5. That is plain because her Honour decided that any relevant prejudice to the appellant arising from the cross-admissibility of the evidence could be guarded against adequately by judicial direction to the jury.
I turn to consider the merits of that part of grounds 1 and 1B which concerns her Honour's refusal to make an order under s 133(3) of the Criminal Procedure Act that the appellant be tried separately on count 6.
I am satisfied that the evidence relied upon by the State to the effect that:
(a)between about 2002 and about 2011 the appellant had sexually interfered with the complainant on numerous occasions (including as alleged in counts 1 to 5) in circumstances where the complainant came to believe that she was the instigator of the sexual interference;
(b)during that period the appellant had punished or disciplined the complainant by using violence and humiliation, including locking her in the bathroom;
(c)during that period the appellant had sought to control and dominate the complainant; and
(d)in November 2012 the appellant had physically restrained the complainant as alleged in count 6,
was relevant to the true nature of the relationship between the appellant and the complainant.
In the present case, the appellant's case at trial on count 6 was that his actions in detaining the complainant were not unlawful because those actions were done in an emergency under s 25(3) of the Code; alternatively, his actions were lawful because they involved the use, by way of correction, of force that was reasonable under the circumstances, within s 257 of the Code.
A significant issue for the jury on count 6 involved the evaluation of the appellant's state of mind or motive for restraining the complainant; in particular, whether the appellant restrained the complainant to humiliate, punish, control and dominate her (being the State's case) or whether he did so because there was an emergency or because he was using, by way of correction, force that was reasonable under the circumstances (being the appellant's case).
In my opinion, the evidence to which I have referred at [108(a)] above was not only admissible on counts 1 to 5, but was also admissible on count 6. That evidence, and the evidence to which I have referred at [108(b) and (c)] above, was admissible on count 6 because the true nature of the relationship between the appellant and the complainant was relevant to count 6.
The evidence to which I have referred at [108(a), (b) and (c)] above, in the context of count 6:
(a)to the extent the evidence was given by other witnesses, tended to explain or bolster the complainant's evidence about earlier occasions involving violence, humiliation, control and domination by the appellant towards the complainant;
(b)tended to disprove the appellant's defence on count 6 that the appellant restrained the complainant because there was an emergency or because he was using, by way of correction, force that was reasonable under the circumstances; and
(c)tended to support the State's contention on count 6 that the appellant restrained the complainant to deter her from continuing to act in defiance of him and to endeavour to ensure that she did not disclose the sexual offending.
In my opinion, the evidence to which I have referred at [108(d)] above was not only admissible on count 6, but was also admissible on counts 1 to 5. That evidence, and the evidence to which I have referred at [108(b) and (c)] above, was admissible on counts 1 to 5 because the true nature of the relationship between the appellant and the complainant was relevant to counts 1 to 5.
The evidence to which I have referred at [108(b), (c) and (d)] above, to the extent the evidence was given by other witnesses and in the context of counts 1 to 5, tended to explain or bolster the complainant's evidence about earlier occasions involving violence, humiliation, control and domination by the appellant towards the complainant.
Further, the evidence to which I have referred at [108(b), (c) and (d)] above, in the context of counts 1 to 5, tended to explain why the complainant did not make any (or any official) complaint about the sexual interference alleged in counts 1 to 5 before the occurrence of count 6. In particular, the evidence relied upon by the State in relation to count 6 (notably, the complainant running away from the appellant, the complainant's contact with police on the Saturday morning only to be returned to the appellant, and the appellant then restraining the complainant) was capable of informing the jury's assessment as to why the complainant may have delayed making any (or any official) complaint about the sexual interference even after she had ceased living with the appellant.
There is no merit in the appellant's submission that even if the evidence relating to count 6 was admissible on counts 1 to 5, the facts and circumstances of the alleged offending on count 6 were 'so objectively shocking' that any direction from the trial judge could not have guarded against any likely prejudice to the appellant.
The photographs of the restraints, the bucket and the water jug in the complainant's bedroom (taken after the complainant had left the house with police), the vehicle in which the complainant had been restrained, and the complainant at the hospital were not, of themselves, especially graphic.
Further, while the facts and circumstances of the alleged offending on count 6 may be regarded as 'objectively shocking', those allegations were not more 'objectively shocking' than the facts and circumstances of the alleged offending the subject of counts 1 to 5. The allegations of sexual offending included evidence from the complainant to the effect that the appellant had, on more than one occasion, forced the complainant to suck his penis; ejaculated into the complainant's mouth; licked the complainant's vagina; rubbed his penis against the complainant's vagina while pretending that it was a game; and attempted to penetrate the complainant's vagina when she was aged 8 or 9 years.
I am satisfied that there was nothing in the evidence relating to count 6 which might have resulted in a juror determining the State's case against the appellant on counts 1 to 5 otherwise than according to law or by reference to a proper evaluation of the evidence relevant to each count.
The trial judge gave express directions to the jury as to the use which the jury could make of the evidence adduced at the trial. A separate consideration direction was given. I have no doubt that the jury was capable of performing its fact finding and other tasks in accordance with her Honour's directions. See, generally, the observations of Steytler P in Zammit [65].
A separate trial of the appellant on count 6 was not required to ensure that the appellant received a fair trial on all of the counts in the indictment.
Grounds 1, 1A and 1B fail.
Ground 2: the trial judge's directions
The trial judge directed the jury on the State's case in relation to, relevantly, 'the chaining event' the subject of count 6 and the complainant's delay in making complaint about the alleged sexual offending, as follows:
The State also relies on the chaining event … [and] relies on the fact that after that event [the complainant] was traumatised. And it was her evidence that she did not know if she could face … any proceedings against her father.
…
Her lack of disclosure is fully explained by the young age at which the sexual abuse had commenced. And by the fact it was allied through the period with harsh discipline including both physical discipline and humiliation of her by her father up to and including the chaining event (ts 648 ‑ 649).
Her Honour also gave the jury this direction in relation to, relevantly, 'the chaining event' and the complainant's delay in making complaint about the alleged sexual offending:
If you accept the evidence about the relationship between [the complainant] and her father including the evidence about strict physical discipline or humiliation, along with the evidence of the chaining event [then] you may also find that evidence to be relevant to why [the complainant] did not want to progress the deprivation of liberty charge initially. And why she didn’t make disclosures of the sexual matters to the police.
Whether of course you find that evidence relevant to those matters is of course a matter entirely for you. However, it is the case that in order to convict [the appellant] of any counts of 1 to 5, you will need to accept [the complainant's] evidence about the specific event which is alleged to constitute the count in question (ts 652).
The trial judge reiterated that the jury would need to accept the complainant's evidence about the specific conduct that constituted count 1 before the jury could convict the appellant of that count. Her Honour gave similar instructions in relation to each of counts 2, 3, 4 and 5. Her Honour then stated that the jury 'do need to look at each charge separately and make a decision on each one separately' (ts 652).
Her Honour then gave these directions:
However, if you find beyond a reasonable doubt [the appellant] has committed one of the sexual offences against [the complainant], then there is an exception to that rule. If you found [the appellant] guilty of one of the offences and you’re still deliberating with respect to the others - so I need to give you some directions of law that are binding on you.
And I'm going to direct you as to how you may use the evidence in respect to a proven offence against [the complainant] in relation to other offences of a sexual nature against [the complainant], and how you cannot use that.
So first of all, it is open for you to use the finding in relation to a proven offence in one way. And that it is relevant evidence of the nature of the relationship between [the complainant] and [the appellant]. And that it was a relationship that included a sexual interest by [the appellant] in [the complainant] and sexual conduct by him towards her.
And that means you can use it to place the remaining offences in the context of that relationship. You can use it to evaluate the evidence relating to the other evidence set out in [the indictment].
And in coming to that conclusion, you can use not only the evidence of any proven offence. But also the evidence of what occurred in Thailand, if you also find that proven beyond a reasonable doubt.
So if you accept the evidence of [the complainant] as to any one of the events in count 1 to 5 or the occasion in Thailand, then it would be open to you to conclude it is more likely that [the appellant] committed any other offence against her set out in the indictment. And it is also something you can use to determine if [the complainant's] evidence is honest and accurate and reliable about those other offences.
But of course, whether you use that evidence in that way is a matter entirely for you. But … that is the only way in which the evidence can be used in considering the remaining offences.
Now, this is how you cannot use that evidence. You cannot use a finding of guilt on any one offence or the event in Thailand in substitution in any way for [the complainant's] direct evidence of the events relating to the other offences set out in the indictment. It doesn't fill any gap or make any other evidence reliable.
Any finding of guilt on one count must not automatically lead to a finding of guilt on any other count. You must not reason that because [the appellant] did an act of a sexual nature against [the complainant] on one occasion, he must have committed any other offence that you are still considering.
The ultimate question for you to decide, members of the jury, is whether having regard to the whole of the evidence, the State has proven beyond a reasonable doubt that [the appellant] committed each act said to constitute each of the offences set out in the indictment.
And you must not be satisfied of any offence set out in the indictment unless the State has satisfied you beyond a reasonable doubt that he committed the specific act alleged to have to comprised that offence (ts 652 ‑ 653).
The trial judge directed the jury, in the course of summarising the State's case in relation to the appellant's defence of emergency on count 6, about how the jury could use the evidence relating to counts 1 to 5 in considering count 6:
[The] State says that you can take into account in general the relationship between [the complainant] and her father which demonstrates that strict discipline involving humiliation and her detention was a feature of that relationship. And … those things would be relevant to the question of whether [the appellant] believed that there was a sudden or extraordinary emergency.
And finally, the State says if you have found beyond a reasonable doubt that [the appellant] was guilty of any of counts 1 to 5, that would also be evidence that you could take into account in considering whether [the appellant] believed he was acting on a sudden or extraordinary emergency. Or whether he was acting to ensure that [the complainant] did not continue in her defiance and disclose the sexual offending (ts 664 ‑ 665).
Her Honour also addressed how the jury might proceed in relation to count 6 in the event they found the appellant guilty of any of counts 1 to 5; in particular, the relevance of any finding of guilt on any of counts 1 to 5 in considering the appellant's defence of emergency:
I want to talk to you about cross‑admissibility. I want to talk to you about the relevance of any guilty finding on counts 1 to 5 with respect to your assessment of matters for count 6.
Now, the State says that if you find [the appellant] guilty of any of counts 1 to 5 and that provides you with proven evidence of a sexual relationship, that can in turn be used by you as part of the circumstantial evidence relating to [the appellant's] beliefs as to the existence of a sudden or extraordinary emergency. And what was necessary for him to do in response to that emergency.
So their evidence can be used in that way of their relationship. But I would also direct you that the law is that you cannot use that finding to improperly reason that if [the appellant] is guilty of having sexually offended against [the complainant] that would [lead] automatically to a finding of guilt on count 6.
The ultimate question is whether on all of the evidence that you accept has the State proven beyond a reasonable doubt that [the appellant] was not acting on a sudden or extraordinary emergency (ts 670).
Ground 2: the appellant's submissions
Ground 2, as formulated, complained generally about the trial judge's directions to the jury as to the cross-admissibility of the evidence.
In written submissions, the appellant contended that her Honour's direction, which I have reproduced at [128] above, was 'too broad'. It was submitted that:
(a)the direction 'provided minimal guidance to the jury as to what purpose counts 1 to 5 could assist in proving count 6' and 'it is not possible to say that in the absence of any specific direction as to how they could use that evidence, the exact way that they might have applied the cross-admissibility';
(b)counts 1 to 5 were 'internally cross-admissible on each other as tending to show that the appellant had a sexual interest in the complainant', but the evidence relating to counts 1 to 5 was not 'cross-admissible to show that the appellant was generally more likely to have committed count 6'; and
(c)her Honour should have instructed the jury that 'counts 1 to 5 may have demonstrated a relationship of violence and control between the appellant and the complainant which culminated in count 6, but could not be used to determine whether there was actually an emergency'.
However, at the hearing of the appeal, counsel for the appellant appeared to contend that the appellant's sole complaint in relation to ground 2 concerned the trial judge's directions as to the admissibility of the evidence relating to count 6 on counts 1 to 5 (appeal ts 32).
Counsel submitted that if, contrary to the appellant's submissions on grounds 1 and 1B, the evidence relating to count 6 was admissible on counts 1 to 5, her Honour's directions as to admissibility were inadequate.
Counsel referred to an email of 18 September 2019 from the prosecutor to the trial court. Counsel asserted, in effect, that in the email 'it was noted by the prosecution that they did not intend to address the cross‑admissibility issue in closing addresses for forensic purposes'. Counsel also asserted that in the email 'the prosecution requested that the jury be directed in relation to the cross‑admissibility of counts 1 to 5 on each other in regard to a sexual interest, however did not request that this be extended to count 6'.
Counsel contended that 'the content of the cross‑admissibility direction failed to direct the jury in relation to any potential cross‑admissibility of count 6 to counts 1 to 5'.
Senior counsel for the appellant acknowledged that he was defence counsel at the trial and that he did not request her Honour to redirect the jury or give the jury an additional direction concerning the matters complained about in ground 2. It was asserted, however, that the absence of any objection to her Honour's directions was not made for the purpose of securing some tactical advantage and, in the circumstances, defence counsel's failure to object at the trial should not prevent this court from concluding that a miscarriage of justice has occurred.
Ground 2: the State's submissions
Counsel for the State noted that the appellant's written submissions on ground 2 were premised on the assumption that the evidence relating to count 6 was not admissible on counts 1 to 5 and vice versa. Counsel said that the assumption was incorrect. Counsel referred to the State's submissions in support of grounds 1 and 1B.
Counsel noted that cross-admissibility of evidence arose at the trial in three areas, namely:
(a)as between the individual counts in counts 1 to 5;
(b)count 6 in relation to counts 1 to 5; and
(c)counts 1 to 5 in relation to count 6.
As to the email of 18 September 2019 from the prosecutor to the trial court, counsel for the State took issue with counsel for the appellant's assertion that in the email 'it was noted by the prosecution that they did not intend to address the cross-admissibility issue in closing address for forensic purposes'. Counsel for the State emphasised that counsel for the appellant's assertion obscured the fact that the statement by the prosecutor in the email referred solely to the first area of cross‑admissibility (that is, as between the individual counts in counts 1 to 5), and not to all areas of cross‑admissibility generally.
Counsel submitted that the prosecutor indicated in the email of 18 September 2019 that:
(a)the prosecutor would submit in his closing address that count 6 was relevant to counts 1 to 5 (the second area of cross‑admissibility) in that it was part of an explanation for the complainant's delay in making complaint;
(b)the prosecutor would submit in his closing address that counts 1 to 5 were relevant to count 6 (the third area of cross‑admissibility) in assessing whether there was an extraordinary emergency as alleged by the appellant in relation to count 6; and
(c)the prosecutor did not intend to make submissions to the jury regarding the first area of cross‑admissibility, but it would be necessary for the trial judge to direct the jury about it.
Counsel submitted that the trial judge properly directed the jury in relation to all issues of cross‑admissibility including, in particular, with respect to the admissibility of the evidence relating to count 6 on counts 1 to 5.
Ground 2: its merits
As I have mentioned, at the hearing of the appellant's application for severance before the trial judge, defence counsel (who did not appear for the appellant at the trial) accepted that the evidence relating to count 6, on the one hand, and the evidence relating to counts 1 to 5, on the other, were cross-admissible (ts 32 ‑ 34). Defence counsel who appeared for the appellant at the trial did not raise this issue with her Honour in the course of the trial.
In any event, as I have mentioned in the course of considering grounds 1 and 1B, I am satisfied that:
(a)the evidence relating to count 6 was admissible on counts 1 to 5 in that the evidence was relevant in the manner and to the extent I have explained at [113] ‑ [115] above; and
(b)the evidence relating to counts 1 to 5 was admissible on count 6 in that the evidence was relevant in the manner and to the extent I have explained at [111] ‑ [112] above.
In DKA v The State of Western of Australia,[12] Mazza JA and I summarised the proper approach to an examination of a trial judge's summing up where it is alleged that there is a real (as distinct from a fanciful) risk that the judge made errors which may have led the jury to decide the case on an erroneous basis:
It is trite that an impugned passage in a trial judge's summing up cannot be read in isolation, but must be evaluated in the context of the summing up as a whole. See Murray v The Queen [[2002] HCA 26; (2002) 211 CLR 193 [72] (Kirby J)]. The critical issue is whether the words spoken by the trial judge in his or her summing up are such that the jury would have derived an erroneous perception in relation to a material matter of fact or law. An appellate court must decide that issue by taking the summing up as a whole and as a jury listening to it might understand it. The issue is not to be decided upon a subtle examination of the transcript of the summing up or by giving undue prominence to any part of the summing up. See R v Dookheea [[2017] HCA 36; (2017) 262 CLR 402 [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ)].
See also NPK v The State of Western Australia.[13]
[12] DKA v The State of Western of Australia [2019] WASCA 123 [43].
[13] NPK v The State of Western Australia [2020] WASCA 50 [35] ‑ [37].
I am satisfied that counsel for the State's analysis of the email of 18 September 2019 from the prosecutor to the trial court is correct and that counsel for the appellant's submissions in relation to the email are erroneous. In particular, the prosecutor informed the trial court that, in his closing address, he expected 'to touch on the possible relevance of count 6 to counts 1 - 5 by way of being part of an explanation as to the delay in complaint' and that although the prosecutor did not propose in his closing address 'to touch [on] the cross-admissibility of counts 1 - 5 in relation to each other' it would be necessary for the trial judge to direct the jury on that issue. The prosecutor did not expressly or impliedly suggest in the email that it was unnecessary for her Honour to direct the jury as to the admissibility of the evidence relating to count 6 on counts 1 to 5.
In my opinion, the trial judge's directions with respect to the cross-admissibility of the evidence guarded adequately against any perceptible risk that the jury might reason impermissibly in its fact finding process or in arriving at a verdict on each of the counts.
As to the first area of cross‑admissibility, referred to at [138] above, her Honour directed the jury that if it found beyond reasonable doubt that the appellant had committed one of the alleged sexual offences against the complainant and they were still deliberating in respect of the other sexual offences, it was open to the jury to use its finding in relation to the proven sexual offence as relevant evidence about the nature of the relationship between the appellant and the complainant (including that the appellant had a sexual interest in the complainant and that the appellant had engaged in sexual behaviour towards the complainant) (ts 652). In particular, her Honour directed the jury that it could use its finding in relation to the proven (sexual) offence as relevant evidence about the nature of the relationship between the appellant and the complainant for the purpose of placing the remaining alleged offences in the context of that relationship (ts 652). Her Honour directed the jury that, in those circumstances, it would be open to the jury to conclude that it was more likely that the appellant had committed the remaining offences (ts 653). It is apparent, from the context, that her Honour was referring to any other or remaining sexual offences alleged in the indictment.
Her Honour warned the jury appropriately that the jury could not use a finding of guilt on one offence (or a finding that the event in Thailand had occurred) in substitution for the complainant's direct evidence as to the other alleged offences and that the jury could not use a finding of guilt on any one offence (or a finding that the event in Thailand had occurred) to fill any gap in the evidence on the other alleged offences or to increase the reliability of other evidence or to lead automatically to a finding of guilt on any other alleged offence (ts 653). Also, her Honour instructed the jury that the jury could not reason that because the appellant had committed an act of a sexual nature against the complainant on one occasion, the appellant must have committed any other offence or offences that had been alleged against him (ts 653).
As to the second area of cross-admissibility, referred to at [139(a)] above, the trial judge expressly dealt with the cross-admissibility of count 6 in relation to counts 1 to 5. In particular, her Honour directed the jury as to the manner in which the State relied upon the evidence on count 6 (which her Honour described as 'the chaining event') and how the jury could use that evidence in their consideration of grounds 1 to 5. See [123] ‑ [124] above. Contrary to the appellant's submissions, her Honour did not fail to direct the jury in relation to the cross‑admissibility of the evidence on count 6 in relation to counts 1 to 5. Her Honour's directions in relation to the second area of cross-admissibility, considered as a whole, adequately conveyed to the jury that the evidence on count 6 was relevant (and only relevant) to the complainant's delay in making any (or any official) complaint about the sexual interference alleged in counts 1 to 5 before the occurrence of count 6.
As to the third area of cross‑admissibility, referred to at [139(b)] above, the trial judge appropriately directed the jury as to the cross‑admissibility of counts 1 to 5 in relation to count 6. See [127] ‑ [128] above. Her Honour's directions in relation to the third
area of cross‑admissibility, considered as a whole, adequately conveyed to the jury that the evidence on counts 1 to 5 was relevant (and only relevant) to the appellant's state of mind on count 6 (namely, whether the appellant in fact believed that he was acting on a sudden or extraordinary emergency).
As I have mentioned, defence counsel at the trial appeared for the appellant in the appeal. He has been Queen's Counsel for more than 20 years. It is of some significance, in evaluating ground 2, that defence counsel did not, when expressly invited to do so, complain to the trial judge about the adequacy of her Honour's directions on the issues raised by ground 2 (ts 677 ‑ 680). See Mahmood v The State of Western Australia.[14]
[14] Mahmood v The State of Western Australia [2009] WASCA 220 [65] (Owen JA; McLure P & Miller JA agreeing).
Ground 2 fails.
Conclusion
All of the grounds of appeal fail. The application for an extension of time within which to appeal should be dismissed. Leave to appeal should be refused. The appeal must be dismissed.
BEECH & VAUGHAN JJA:
We have the considerable advantage of having read Buss P's reasons for decision in draft.
We agree with Buss P that grounds 1, 1A and 2 should be dismissed. Subject to a qualification relating to ground 1B, we agree with his Honour's reasons.
Logically, ground 1B is analytically anterior to the other grounds, as the propriety of joinder must be determined before a question of severance arises. We are satisfied, however, that it is neither necessary nor desirable to decide ground 1B by determining the proper construction and operation of cl 7(3)(b) to sch 1 of the Criminal Procedure Act 2004 (WA). It is not necessary to do so because, even if count 6 was improperly joined with counts 1 - 5, for the reasons given by Buss P at [100] above and elaborated upon thereafter, no miscarriage of justice has occurred. In this respect, as Buss P explains at [98] above, it is necessary for the appellant to establish that
a miscarriage of justice occurred by reason of the joinder - the trial judge not having made a wrong decision on a question of law as defence counsel relied solely on s 133(3) of the Criminal Procedure Act in support of the appellant's application for severance.
In order to explain why, in our view, it is not desirable to determine the proper construction and operation of cl 7(3)(b) (that being an initial and essential step in assessing the appellant's contention that the joinder of count 6 with counts 1 - 5 was impermissible), we will recount the circumstances in which ground 1B came to be formulated and was presented.
The context in which ground 1B arose and was advanced on behalf of the appellant was as follows:
1.In the course of the severance application pursuant to s 133 of the Criminal Procedure Act then defence counsel informed the trial judge, on behalf of the appellant, that it was conceded that count 6 had been properly joined with counts 1 - 5.[15]
2.The trial judge accepted that concession.[16]
3.In the appeal in this court the appellant's case as filed did not advance any ground of appeal couched in terms of ground 1B. It was not contended that a miscarriage of justice arose as a result of count 6 having been joined and tried with counts 1 - 5. Nor did the appellant's written submissions make such a contention.
4.It was not until the appeal hearing, in answer to various questions from the court, that senior counsel for the appellant sought leave to amend to advance the joinder issue raised by ground 1B.[17] However, in doing so senior counsel for the appellant informed the court, quite candidly, that he had not come to the appeal hearing intending to argue the joinder question substantively in its own right.[18] Senior counsel for the appellant accepted that the point was not specifically raised by the appellant's case.[19]
5.The appellant's oral submissions in support of ground 1B were superficial.[20] The submissions in relation to cl 7(3)(b) did not rise above assertion that '(b) [referring to cl 7(3)(b)] … couldn't be made out' as 'it couldn't possibly be said that they [ie the relevant acts] were substantially the same'.[21] More time was spent on the non-applicability of cl 7(3)(a) and (c) even though it was always the respondent's case that it only relied on cl 7(3)(b).[22]
6.Senior counsel for the appellant accepted, correctly in our opinion, that there could not have been a miscarriage of justice if the evidence on counts 1 - 5 was cross-admissible in relation to count 6, with the result that the ground must fail.[23]
[15] ts 20.
[16] ts 45.
[17] Appeal ts 3 - 10.
[18] Appeal ts 7 - 8.
[19] Appeal ts 9.
[20] Appeal ts 10 - 17.
[21] Appeal ts 15.
[22] Respondent's submissions par 32 WAB 36 - 37; Appeal ts 41. The court pointed out that the respondent only relied on cl 7(3)(b): Appeal ts 14.
[23] Appeal ts 12 - 13.
Ground 1B presents as little more than an afterthought raised in the course of oral argument. This court has not been assisted by considered submissions on the proper construction and operation of cl 7(3)(b). The ground cannot be determinative of the appeal in any case given that, for the reasons given by Buss P, no miscarriage of justice has occurred. That is especially so where the appellant concedes there could be no miscarriage if there was some cross-admissibility as between counts 1 ‑ 5 and count 6. Buss P's reasons demonstrate how evidence relating to counts 1 - 5 was admissible on count 6 and evidence relating to count 6 was admissible on counts 1 - 5.
Ground 1B fails because no miscarriage of justice has occurred by reason of count 6 being joined and tried with counts 1 - 5.
We agree with the orders proposed by Buss P.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TW
Associate to the Honourable President Buss
8 SEPTEMBER 2021
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