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YBG v The State of Western Australia

YBG v The State of Western Australia

Case [2019] WASCA 126 28 August 2019

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   YBG -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 126
CORAM:   MAZZA JA
BEECH JA
PRITCHARD JA

HEARD:   12 JUNE 2019
DELIVERED          :   28 AUGUST 2019
FILE NO/S:   CACR 200 of 2018
BETWEEN:   YBG
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STAUDE DCJ
File Number             :   IND 1427 of 2017

Catchwords:

Criminal law and procedure - Allegations of sexual penetration of a child - Interviews of child complainant recorded by video - Recordings played at trial pursuant to s 106HB of the Evidence Act 1906 (WA) - Where jury requested transcript or replaying of video recording - Whether judge's decision to provide transcript caused a miscarriage of justice - Whether inadvertent provision of transcript of the second interview, rather than of the first interview, in response to the judge's request caused a miscarriage of justice - Whether failure of judge to refer to countervailing evidence and considerations caused a miscarriage of justice

Legislation:

Criminal Procedure Act 2004 (WA), s 110
Evidence Act 1906 (WA), s 106HB

Result:

Leave to appeal on grounds 1, 3, 4 and 5 granted
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant	:	S B Watters
Respondent	:	J A Scholz

Solicitors:

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

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

AB v The Queen [2019] NSWCCA 82
Banks v The State of Western Australia [2018] WASCA 130
Barker v The Queen (1994) 54 FCR 451
Bulejcik v The Queen [1996] HCA 50; (1996) 185 CLR 375
Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; (1987) 164 CLR 180
CF v The Queen [2017] NSWCCA 318
Cooper v The State of Western Australia [2009] WASCA 37
Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517
Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
Gately v The Queen [2007] HCA 55; (2007) 232 CLR 208
Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
Huggins v The State of Western Australia [2018] WASCA 61
Jarrett v The Queen [2014] NSWCCA 140; (2014) 86 NSWLR 623
King v The Queen [2012] HCA 24; (2012) 245 CLR 588
Lane v The Queen [2018] HCA 28; (2018) 92 ALJR 689
Mahmood v The State of Western Australia [2009] WASCA 220
MLS v The State of Western Australia [2018] WASCA 56
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
R v Glennon [1992] HCA 16; (1992) 173 CLR 592
R v Lowe (1997) 98 A Crim R 300
R v NZ [2005] NSWCCA 278; (2005) 63 NSWLR 628
R v Taousanis [1999] NSWSC 107; (1999) 146 A Crim…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading YBG v The State of Western Australia

Details

AGLC: YBG v The State of Western Australia [2019] WASCA 126
Case: [2019] WASCA 126
Decision Date: 28 AUGUST 2019

CaseChat Overview and Summary

The case of YBG v The State of Western Australia involved the appellant, YBG, who was convicted of sexually penetrating a child. The trial included video recordings of interviews with the child complainant. These recordings were played in court under section 106HB of the Evidence Act 1906 (WA). The jury requested transcripts or a replay of the video recordings, and the judge decided to provide transcripts instead. The appellant argued that this decision caused a miscarriage of justice, as well as the inadvertent provision of a transcript of the second interview instead of the first, and the failure of the judge to refer to countervailing evidence and considerations.

The primary legal issues the court needed to address were whether the judge's decision to provide transcripts, the inadvertent provision of the wrong transcript, and the omission to refer to countervailing evidence and considerations each independently or cumulatively caused a miscarriage of justice. The court examined whether these errors breached the appellant's right to a fair trial under the common law and whether they rendered the trial unfair. The appellant contended that the errors led to a significant miscarriage of justice by depriving the jury of the full context and nuances of the video recordings.

The court found that the judge's decision to provide transcripts instead of replaying the video recordings did not in itself cause a miscarriage of justice. The court reasoned that the jury was able to make an informed assessment of the evidence through the transcripts, and the judge's decision was reasonable given the circumstances. Regarding the inadvertent provision of the wrong transcript, the court held that this error did not cause a miscarriage of justice as it did not materially affect the jury's ability to assess the evidence. The court also determined that the failure to refer to countervailing evidence and considerations did not prejudice the appellant's right to a fair trial. The court concluded that the appellant's conviction was safe and that none of the alleged errors cumulatively or individually caused a miscarriage of justice.

The court dismissed the appeal, affirming the conviction. The appellant's conviction for sexually penetrating a child was upheld, and no orders were made to set aside the conviction or order a new trial.

Orders