YNT v The State of Western Australia
[2021] WASCA 89
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: YNT -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 89
CORAM: BUSS P
MITCHELL JA
BEECH JA
HEARD: 19 APRIL 2021
DELIVERED : 27 MAY 2021
FILE NO/S: CACR 129 of 2018
BETWEEN: YNT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S: CACR 130 of 2018
BETWEEN: YNT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: SWEENEY DCJ
File Number : IND XX of 2016
Catchwords:
Appeal against conviction - Child sexual offences - Sexual penetration of a child under the age of 13 years - Whether failure to adduce prior inconsistent statement gave rise to a miscarriage of justice - Whether appellant adequately advised by counsel as to election to give evidence - Whether Longman direction sufficient - Whether a miscarriage of justice arose from a failure by the prosecution to disclose police running sheet - Whether additional evidence can be adduced in appeal - Whether admission of unfairly prejudicial evidence during trial gave rise to a miscarriage of justice - Whether verdicts unreasonable or not supported having regard to the evidence
Appeal against sentence - Child sexual offences - Sexual penetration of a child under the age of 13 years - Whether sentence manifestly excessive - Whether total effective sentence infringed the first limb of the totality principle
Legislation:
Criminal Code (WA), s 320(2)
Criminal Procedure Act 2004 (WA), s 116, s 137A
Evidence Act 1906 (WA), s 19A, s 19C, s 19E
Result:
Leave to appeal refused
Appeals dismissed
Category: B
Representation:
CACR 129 of 2018
Counsel:
| Appellant | : | In person |
| Respondent | : | L M Fox SC |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
CACR 130 of 2018
Counsel:
| Appellant | : | In person |
| Respondent | : | L M Fox SC |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
AIM v The State of Western Australia [2014] WASCA 155
Beamish v The Queen [2005] WASCA 62
Craig v The Queen [2018] HCA 13; (2018) 264 CLR 202
Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161
EPD v The State of Western Australia [2011] WASCA 264
HFM v The State of Western Australia [2012] WASCA 217
Huggins v The State of Western Australia [2018] WASCA 61
JDF v The State of Western Australia [2016] WASCA 221
Jeffery v The State of Western Australia [2018] WASCA 219
Kabambi v The State of Western Australia [2019] WASCA 44
KAT v The State of Western Australia [2017] WASCA 11
Kitto v The State of Western Australia [2019] WASCA 161
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
MAS v The State of Western Australia [2012] WASCA 36
MCA v The State of Western Australia [2019] WASCA 22
MEN v The State of Western Australia [2020] WASCA 118
MNA v The State of Western Australia [2020] WASCA 84
Musgrave v The State of Western Australia [2021] WASCA 67
Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394
Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96
Smith v The State of Western Australia [2014] WASCA 90
SPB v The State of Western Australia [2012] WASCA 136
The State of Western Australia v AHD [2021] WASCA 13
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
The State of Western Australia v CGT [2018] WASCA 226
YNT v The State of Western Australia [2020] WASCA 80
Contents
Summary
Prosecution case at trial
Defence case at trial
Evidence of the complainant
CWI on 1 September 2015
Count 1
Uncharged acts
Count 2
Self-harm incidents
Disclosure to friend at school
Pre-recorded evidence on 25 July 2017
Evidence-in-chief
Cross-examination
Re-examination
Evidence of the complainant's mother
Evidence of the complainant's grandmother
Police evidence
Appellant's evidence
Conviction ground 1: alleged prior inconsistent statement of complainant
Edited parts of the complainant's CWI and pre-recorded evidence
CWI with M
Discussions about edited recordings at trial
Appellant's submissions
Disposition
Conviction ground 2: advice as to the appellant giving evidence
Proceedings at trial
Appellant's additional evidence on appeal
Respondent's additional evidence on appeal
Factual findings
General principles
Disposition
Conviction ground 3: inadequate Longman direction
General principles
The Longman warning in this case
Disposition
Conviction ground 4: police running sheet
Appellant's submissions and evidence
Disposition
Conviction ground 5: additional evidence
Conviction ground 6: prejudicial evidence
Appellant's submissions
Respondent's submissions
Disposition
Conviction ground 7: unreasonable verdicts
General principles
Appellant's submissions
Disposition
Absence of corroboration
Evidence relating to the mother's drug use and Facebook messages
Absence of evidence of recent complaint
Absence of physical injuries
Appellant's denial of offending
Complainant's hospitalisation
Conclusion
Appeal against sentence
Circumstances of the offending
Victim impact
Appellant's personal circumstances
Trial judge's approach
General principles
Disposition
Orders
CACR 129 of 2018 (appeal against conviction)
CACR 130 of 2018 (appeal against sentence)
JUDGMENT OF THE COURT:
Summary
On 8 March 2018, the appellant was convicted of two counts of sexually penetrating a child under the age of 13 years, by inserting his finger into her vagina, contrary to s 320(2) of the Criminal Code (WA). Both counts related to the same complainant, who was the granddaughter of the appellant's de facto partner at the time of the alleged offending. The offences the subject of counts 1 and 2 were allegedly committed on two separate occasions. The appellant's offending was alleged to have occurred during a period of about 7 months when the complainant and her mother were living with the appellant and the complainant's grandmother. We shall refer to the house owned by the appellant and the complainant's grandmother as the 'House'.
On 21 June 2018, the appellant was sentenced to 4 years' immediate imprisonment on count 2 and 2 years' immediate imprisonment on count 1. The sentences were ordered to be served cumulatively, resulting in a total effective sentence of 6 years' imprisonment. The appellant was made eligible for parole. The sentence was backdated to 8 March 2018 to take account of time spent in custody on remand.
On 6 July 2018, the appellant filed appeal notices against his convictions and sentences. On 5 March 2019, the appellant filed Discontinuance Notices in the appeals. On 26 April 2019, the appellant applied for leave to withdraw the Discontinuance Notices. The applications for leave to withdraw the Discontinuance Notices were heard on 9 April 2020, and leave was granted on 28 May 2020.[1]
[1] YNT v The State of Western Australia [2020] WASCA 80.
The appellant, who has been self-represented since filing the Discontinuance Notices, appeals against his convictions on 7 grounds. He has applied to adduce additional evidence in support of some of the grounds in his conviction appeal, and the State has applied to adduce additional evidence in response. The appellant also appeals against his sentences, in effect, on the grounds that the individual sentences were manifestly excessive and the total effective sentence infringed the first limb of the totality principle. The applications for leave to appeal, and the applications to adduce additional evidence in the conviction appeal, have been referred to the hearing of the appeals.
For the following reasons, in our view none of the grounds of appeal are established. While we would generally grant the applications to adduce additional evidence, leave to appeal should be refused on all grounds and both appeals should be dismissed.
Prosecution case at trial
The prosecution case was that, in 2009, the complainant and her mother went to stay with the complainant's grandmother and the appellant. At this time the complainant was 10 - 11 years old.[2]
[2] Trial ts 101 - 102, 104.
The prosecution case was that the two charged acts were part of an ongoing course of conduct. The conduct occurred at night when the complainant's mother was at work and the complainant's grandmother was 'knocked out' after drinking a lot of alcohol and taking antidepressants.[3]
[3] Trial ts 103.
The first occasion on which the appellant's conduct occurred was the subject of count 1 on the indictment. The appellant came into the complainant's bedroom at night to say goodnight to her. During this time, the appellant pushed the complainant down and put his finger into her vagina. The appellant also undid his pants, removed his penis from his pants and tried multiple times to insert it into the complainant's vagina. He became angry and frustrated when he was unsuccessful. The appellant got up and told the complainant not to tell her mother or grandmother what had happened.[4]
[4] Trial ts 102 - 103.
After the first incident the appellant repeatedly came into the complainant's bedroom when her mother was at work, and each time the same scenario occurred. Another particular occasion stood out in the complainant's mind because of the pain she felt and how forceful the assault was. The conduct on this occasion was the subject of count 2 on the indictment.
The conduct the subject of count 2 occurred in about September 2009, not long after the complainant's 11th birthday. On this occasion, when the appellant came to the complainant's bed, she attempted to push him away. The appellant got mad and pinned the complainant to the bed. Instead of penetrating her vagina with one finger as on other occasions, he forced three fingers into her vagina and covered her mouth with his other hand to muffle her screams.[5]
[5] Trial ts 103 - 104.
Defence case at trial
The appellant's case at trial was that the alleged sexual penetrations never occurred.[6] The appellant's trial counsel, Mr S Freitag SC, asked the jury to scrutinise the complainant's evidence, which was not corroborated by medical or other forensic evidence, carefully.[7] He suggested that the allegations may be related to a disputed $14,000 debt which the appellant claimed was owed to him by the complainant's mother.[8]
[6] Trial ts 107.
[7] Trial ts 108 - 109.
[8] Trial ts 110.
Evidence of the complainant
The complainant's evidence was given by way of:
(a)a recorded child witness interview (CWI) conducted on 1 September 2015, when the complainant was 16 years old; and
(b)evidence pre-recorded on 25 July 2017, when the complainant was 18 years old.
Both recordings were edited before being shown to the jury.
CWI on 1 September 2015
The complainant said that, in about 2009 when she was about 10 years old, she and her mother moved in with the appellant and her grandmother. The complainant and her mother shared a room at the House. At that time, her mother worked nightshift on Sundays to Wednesdays, her grandmother worked day shift and the appellant worked as a fly-in/fly-out (FIFO) worker.[9]
[9] CWI ts 5.
The complainant said that she and her mother moved into the House not long after Christmas in 2009. She said that the appellant first started the sexual abuse after they had been living there for about a month. They stayed at the House for about 6 months, and were still living there on the complainant's 11th birthday.[10]
[10] CWI ts 21 - 22.
The complainant said that, when she first met him, the appellant was a 'really nice guy'. She did not have a father figure around at the time, and the appellant was 'probably the first male that I had actually hung around and trusted as a dad'.[11] The complainant said that the appellant then started 'doing weird things', such as calling her 'baby' and 'sweetie', getting her to sit on his lap when showing her things on a computer and putting his hand on her lap and complimenting her when they were driving. The complainant thought that all this was normal at the time.[12]
Count 1
[11] CWI ts 5 - 6.
[12] CWI ts 5 - 6, 8.
One night, when her mother was at work, the appellant came to the complainant's room to say goodnight like he always would. She used to wear nighties at this time because they were comfortable. The appellant sat next to the complainant in the bed and put his hand on her thigh. He moved his hand up and 'started fingering' the complainant. The complainant was terrified and did not react because she did not know what to do. This was the first time it ever happened, so the complainant could remember it in detail.[13]
[13] CWI ts 6, 11 - 12.
The complainant said that, on this first occasion, the appellant stroked her arm, kissed her cheek and told her that she was pretty. The complainant said:[14]
And he pushed me down and he pulled out his penis, and he tried to - - he tried to put it inside of [me], and it wouldn't go in, so he got really frustrated. And he got up and said, 'Don't tell your mum or your nan,' and walked out. And I was really confused. I had no idea what had just happened. Because my mum always used to tell me, if somebody touches you there, say no or tell me and don't let them do it. And so I thought I did something wrong. And then the next day, he [pulled me] aside and he started telling me that what had happened was a good thing, and that Mum and my nan can't know, because they'll think it's a bad thing, and I would get into trouble.
Uncharged acts
[14] CWI ts 6; see also CWI ts 9, 12 - 13.
The complainant said that the appellant would repeat the conduct when he was down from work, when her mother was at work and her grandmother was 'knocked out cold' from being drunk. It was 'practically the same thing every time it happened', the appellant was 'never able to actually get it in' and so 'he just stuck to using his hands'. The complainant said that her grandmother started acting really aggressively and violently, and the appellant told the complainant 'that she knew, and that's why she was so aggressive towards me because I was disgusting'.[15] At this point the complainant also made the comment that:[16]
I originally wrote it all down, I've been reading it again so I would be prepared for it.
[15] CWI ts 7.
[16] CWI ts 7.
The complainant said that the appellant tried multiple times to 'make it full-blown sex' but couldn't, which used to make him mad. The appellant told the complainant that she liked it and was wrong for liking it, and that if her mother or grandmother knew they would not believe the complainant and just find her disgusting. The appellant told the complainant that she and her mother would then be homeless because they had nowhere else to go. On his bad days, the appellant would tell the complainant that she deserved it, call her a slut and tell her that she should not have worn skirts or dresses. He started doing things like trying to give the complainant money.[17]
Count 2
[17] CWI ts 10.
The complainant referred to 'one time when I tried to stop it, because it felt really wrong'. The appellant came into her room 'like what he normally would do' when her grandmother was in bed 'knocked out cold'. The appellant got into bed with the complainant and put his hand on her thigh. He pulled off her pyjama pants and with one hand 'started rubbing, like what he would usually do'. The complainant put her hand on his right shoulder and tried pushing him away, and the appellant 'got really mad'. He put his hand over her mouth and called the complainant a 'stupid bitch'. The appellant showed the complainant three fingers and started rubbing the complainant's 'private bits'. The complainant felt 'all three fingers just go straight in', at one point saying that she assumed it was all three as he had shown her three fingers, and remembered the appellant 'forcing them as hard as he could'. She was crying through the appellant's hand and, when she tried to scream, he pushed his hand down to try and get the complainant to be quiet. The complainant remembered feeling how painful this was and after that she 'never tried anything again' and just let him do it.[18] By 'private bits' the complainant meant her vagina. The appellant forced his three fingers into her vagina.[19]
[18] CWI ts 14 - 17.
[19] CWI ts 22.
When giving her account of the conduct the subject of count 2, the complainant asked, 'Are two times in detail enough'. She said 'I think it's pretty detailed. I don't know if it is enough. I'm hoping two is'.[20] The complainant said that 'All the times that it has happened have been basically the same', except for the first time and the time she made the appellant mad. She could not remember the last time, and said that after she tried to overdose herself she did not want to remember the abuse anymore. She described being scared that people would not believe her and that the appellant would hurt her when he found out what she had said.[21]
Self-harm incidents
[20] CWI ts 16 - 17.
[21] CWI ts 18.
The complainant said that, when she and her mother moved out of the House, she was so worried that the appellant was going to be able to hurt her again that she started hurting herself. She started violently cutting herself, 'thinking that he wouldn't want me if I was that gross'. In January 'a couple of years back' the complainant attempted to overdose on her mother's severe back pain medication, and was hospitalised for a couple of weeks.[22]
Disclosure to friend from school
[22] CWI ts 10.
The first person the complainant told about these occasions was a friend from school, M, about 2 years before the CWI.[23]
Pre-recorded evidence on 25 July 2017
[23] CWI ts 22 - 23.
The complainant's evidence in the trial was pre-recorded before Braddock DCJ on 25 July 2017. At the pre-recording, Mr H Quail (as his Honour then was) appeared for the State and the appellant was represented by Ms B Lonsdale (as her Honour then was) and Ms A Mundy.
Evidence-in-chief
In her evidence-in-chief, the complainant adopted the answers given in her CWI as true.[24]
[24] Trial ts 36.
The complainant said that she and her mother moved into the House not long after her 10th birthday in 2008. She could not recall if they moved in before or after Christmas. They were still in the House on the complainant's 11th birthday in September 2009, and stayed only a little longer after that. The complainant did not think they were still living in the House in Christmas 2009.[25]
[25] Trial ts 37.
The complainant said that, at the House, she and her mother shared a queen-size bed in a back bedroom. The complainant would go to bed on her own when her mother was at work, and would not always wake up when her mother came home.[26]
[26] Trial ts 38.
In explaining what she meant in her CWI when she referred to the appellant putting his fingers 'inside' her, the complainant confirmed that the appellant put his finger inside her vagina on the first occasion she described (count 1), and put his three fingers inside her vagina on the second occasion (count 2).[27]
Cross-examination
[27] Trial ts 38 - 39.
In cross-examination, the complainant said that her mother took her to the CWI. At that time the complainant understood that her mother and grandmother had discussed the issue of the appellant touching the complainant inappropriately. The complainant's mother was very supportive of the complainant going to the CWI. The complainant was not talking to her grandmother very much at that time. The complainant had been told by her psychologist before she went to the CWI that she would need to provide the interviewer with some fine detail.[28]
[28] Trial ts 40.
The complainant said that her relationship with her grandmother had 'not been that great' but was better by the time of the pre-recording. The complainant had a reasonably good relationship with her mother at the time of the CWI, but they were going through a rough patch at the time of the pre-recording. The complainant accepted that her mother had made it clear to her, even before she was 10 years old, that the complainant could tell her if anyone touched her inappropriately. The complainant accepted that she never told her mother or grandmother what had occurred.[29]
[29] Trial ts 40 - 42.
The complainant acknowledged that she had forgotten a few things about the period that she lived with her grandmother and the appellant. She also accepted that, in 2013, she went to hospital for a period of time after she had taken some of her mother's medication and overdosed on that medication.[30] She was also asked:[31]
And just generally speaking you were having problems at school, weren't you?---I was having problems in general, but, yes.
[30] Trial ts 43 - 46.
[31] Trial ts 44.
The complainant said that, after she moved from the House and was living only with her mother, she would wake up in the middle of the night and think that there was someone on her bed. She also had a feeling on occasions that there was something on top of her and she could not breathe. She remembered experiencing a suffocating feeling.[32] The complainant denied telling her mother that she was hearing voices, and in the course of doing so said:[33]
My mum at the time, I need you to be assured, my mum at the time was a bit of a meth addict so she did make up a few things.
[32] Trial ts 44 - 45.
[33] Trial ts 45.
The complainant said that she was aware that the relationship between the appellant and her grandmother 'didn't end great'. She knew that the appellant was giving her mother money, and said that he gave her mother money to pay off a car loan. The complainant was aware that the appellant was trying to get the money back from her mother, calling, sending aggressive text messages and coming around.[34]
[34] Trial ts 46 - 47.
The complainant was unable to say how many times the appellant touched her, but it was more than twice. When asked if it was more or less than 10 times, the complainant responded that it '[p]robably would've hit near the 10 mark'. She denied that she had difficulty in recalling details of other occasions because the events never happened.[35]
[35] Trial ts 49.
The complainant accepted that she had written things down in a journal in order to prepare for the police interview. She said that she no longer had the journal, had not given it to anyone and had 'got rid of it'.[36] She denied having told police a story that she had made up and written down prior to going to see the police.[37]
[36] Trial ts 50 - 52.
[37] Trial ts 53.
The complainant agreed that the appellant was a FIFO worker who was only home one week out of every three. She said that, during the 2 weeks he was away, she never told her mother or grandmother about the appellant touching her because they would then have nowhere to live.[38]
[38] Trial ts 53.
The complainant said that, on the second occasion she described in detail, the appellant put three fingers deep inside her vagina, although he could not penetrate her vagina with his penis. She said that he did not put all the fingers in at once. The complainant agreed that the appellant's fingers were 'enormous'.[39]
[39] Trial ts 53 - 54.
The complainant agreed that she heard the appellant argue on occasions with her grandmother, with voices raised. The complainant also agreed that her grandmother was sometimes quite aggressive towards her, and that she did not have any difficulty in telling her mother about her grandmother being mean towards her.[40] She also described observing her grandmother's very heavy drinking, which was not always done in the open.[41]
Re-examination
[40] Trial ts 55 - 56.
[41] Trial ts 56 - 57.
In re-examination, the complainant said that she did not tell her mother and grandmother about the incidents because she was scared of the appellant, who used to tell her that she would 'live to regret it'.[42]
[42] Trial ts 57.
When asked what she had meant by the appellant's fingers not all going in at once in the second incident, the complainant responded:[43]
He - he put two in first and then he managed to get the third one in. When he tried to force them in, he got - like, he nearly got them there, but he couldn't. So he had to put two in first and then he had to put the third in.
[43] Trial ts 58.
Evidence of the complainant's mother
The complainant's mother gave evidence as to the living arrangements at the House. She and the complainant moved into the House in mid-winter 2009, when the complainant was 10 years old. The appellant and the complainant's grandmother had allowed them to move into the House to enable the complainant's mother to save a deposit for her own house. The complainant and her mother shared a room with a queen-sized bed in it. They moved out in January 2010, when the complainant was 11 years old. The complainant was born in September 1998.[44]
[44] Trial ts 128 - 130, 131 - 132.
At the time they were living at the House, the appellant was working a two weeks on/one week off FIFO roster, and would stay at the House on his week off. The complainant's mother was working as an after‑hours surgery scope nurse at a veterinary centre, from 5 pm to 1 am every Sunday, Monday, Tuesday and Wednesday. The complainant's grandmother had a full time job which she worked Monday to Friday.[45]
[45] Trial ts 129 - 131.
The complainant's mother said that she had a close relationship with the complainant. The appellant was always very kind to the complainant, and tried to do things for her or buy her things. However, the relationship between the complainant and the complainant's grandmother was not 'great'. The complainant's grandmother was bullying and emotionally abusive. The complainant would become distressed and beg her mother to take her to the mother's work. Sometimes, when the mother came home from work, the complainant would be awake and upset. The complainant's mother described the complainant's grandmother as an emotionally and physically abusive closet drinker.[46] The complainant's grandmother was also on antidepressants.[47] The complainant's mother said that she moved out when 'the toxic nature of living in the house just become to the point that I just couldn't handle it anymore'.[48]
[46] Trial ts 130 - 132.
[47] Trial ts 134.
[48] Trial ts 133.
The complainant's mother said that her relationship with the complainant changed while they stayed at the House. The complainant became very withdrawn in her affection and did not want her mother cuddling her or touching her.[49]
[49] Trial ts 133.
The complainant's mother first learned of the allegations against the appellant in March 2015, when she was at a shopping centre with the complainant.[50]
[50] Trial ts 135.
In cross-examination, the complainant's mother said that she first gave a statement to police on 6 October 2015.[51] She indicated that her reference to the toxic environment at the House was to the toxic nature of the relationship between the complainant's grandmother, on the one hand, and the complainant's mother and the complainant, on the other hand. No one had said anything to the complainant's mother at that point about there being a problem with the appellant.[52]
[51] Trial ts 135.
[52] Trial ts 136.
The complainant's mother said that she came to the House with her eight cats and two dogs, and that the complainant's grandmother had a couple of dogs as well. The appellant built an enclosure for all the cats other than the oldest (who stayed in the House) to live.[53]
[53] Trial ts 137.
The complainant's mother accepted in cross-examination that, after she moved out, the appellant paid one term of the complainant's school fees. The complainant's mother also accepted that, in 2012, the appellant paid $14,000 to a finance company to avoid the repossession of her car. While she contended that the payment was a gift, by late 2014 into 2015 the appellant was demanding repayment of what he said was a loan. She said that she did not discuss her financial business with the complainant.[54] She denied owing money to the appellant, asking the complainant to make up allegations about the appellant or telling the complainant that police would need some fine details.[55]
[54] Trial ts 138 - 143.
[55] Trial ts 144.
The complainant's mother accepted that, in 2015, she was having issues with drinking but denied having used methamphetamine.[56]
[56] Trial ts 144 - 145.
The complainant's mother said that she had explained to the complainant about inappropriate sexual behaviour, and that the complainant should say no to it and then tell her.[57] The complainant's mother recalled an incident when the complainant came home from school with her hair cut and said that two other girls had done so without her permission.[58] The following exchange then occurred in cross‑examination:[59]
But during this time that you lived there for – that is at the [House] for six or seven months, during that time and all the time you were in the same bed and you were talking as mother and daughter, she didn't say anything to you about [the appellant] ever doing anything inappropriate to her, did she?---Not at the time, no.
But she did complain about the other adult who lived in the house, that is her grandmother, …? About what [the complainant's grandmother] was saying and doing?---She did. She did – she did make it clear that she didn't want to be left alone with [the appellant] or didn't want anything from him.
What I'm suggesting to you is that that was not said at that time, that that’s something you've made up after the event?---Okay. No, that's not true.
What do – what you say about that?---No, it's not made up.
…
Okay. And you say she definitely said to you she didn't want to be alone with [the appellant]?---Yeah, she didn't – she didn't ever want to be alone with him, didn't want to (indistinct).
You haven't just made that up to try and support this case?---No.
[57] Trial ts 148.
[58] Trial ts 148 - 149.
[59] Trial ts 149 - 150.
In re-examination, the complainant's mother said that she gave the complainant advice about inappropriate sexual behaviour when she was about 4 - 5 years old. She described feeling backed into a corner in that she had sold her possessions and given up her accommodation when she moved into the House.[60]
[60] Trial ts 150 - 151.
Evidence of the complainant's grandmother
The complainant's grandmother confirmed the domestic arrangements at the time of the alleged offending, consistent with the evidence of the complainant's mother.[61] The complainant's grandmother said that she would normally go to bed at around 8 pm, after drinking quite heavily. She was also taking antidepressants daily, which made her tired. She would either fall asleep on the couch or drag herself to bed.[62]
[61] Trial ts 153 - 154, 156, 165 - 166.
[62] Trial ts 154 - 155, 157, 171 - 172.
The complainant's grandmother said that she got on quite well with the complainant to begin with, but 'things became difficult because she wouldn't want to leave her bedroom'. The complainant told her grandmother that she did not like the appellant and did not want to be left with him.[63] The complainant's change in attitude was about 2 - 3 months after she and her mother moved into the House. The appellant would try hard to be the complainant's friend, usually by buying things for her or offering her money, but she was not interested.[64]
[63] Trial ts 155.
[64] Trial ts 156.
The complainant's grandmother's relationship with the appellant ended in 2011, about a year or so after the complainant and her mother moved out of the House.[65] After the relationship ended, the complainant's grandmother used to get text messages or emails from the appellant.[66] The appellant sent an email on 20 July 2015 which read:[67]
Every time I saw [the complainant] she looked so bedraggled. I saw nothing in her eyes, no happiness, just nothing. I used to buy her surf jewellery in Port Hedland and she loved it, just a little something for her. But you know, in the back of my mind I thought I shouldn't do it because this was around when she cut her hair at that time and blamed others. She could have easily said I was touching her or whatever, but I was just trying to make her feel good and have some money for shopping with her friends. You just be careful if you're back in touch with [the complainant's mother]. Her hatred of you was quite extreme, to say the least.
This email was sent in the context of the appellant explaining to the complainant's grandmother why he wanted to give the complainant money.[68]
[65] Trial ts 157.
[66] Trial ts 157 - 158.
[67] Trial ts 158 - 159, 169; exhibit 2.
[68] Trial ts 169 - 170.
The complainant's grandmother first learned of the allegations against the appellant in early 2015, when the complainant's mother told her.[69] She first signed a police statement in December 2015.[70]
[69] Trial ts 160.
[70] Trial ts 164.
The complainant's grandmother denied saying things which were critical of the complainant, but said that she 'might have told her that she was getting too heavy'.[71] She recalled an incident when the complainant came home from school with some of her hair cut off, saying that it had been done by other girls before eventually admitting that she had done it herself.[72]
[71] Trial ts 168.
[72] Trial ts 169.
The complainant's grandmother said that she had never seen the complainant's mother with drugs.[73]
[73] Trial ts 169.
The complainant's grandmother accepted that, in 2004, she was convicted of fraud and stealing as a servant in the Perth District Court, in relation to approximately $17,000 worth of property.[74]
[74] Trial ts 179.
Police evidence
Detective first class constable George Tucker gave evidence of the following steps in the police investigation. Police first became aware of the allegations against the appellant when the complainant's mother attended a police station on 7 August 2015. The CWI took place with the complainant on 1 September 2015, and a statement was taken from the complainant's mother on 6 October 2015. The appellant was interviewed on 4 December 2015. A statement from the complainant's grandmother and a second statement from the complainant's mother were obtained on 8 December 2015. The appellant was eventually charged with the offences on 7 April 2016.[75]
[75] Trial ts 180 - 182, 189.
Detective Tucker also gave evidence that the appellant had no criminal record.[76]
[76] Trial ts 188 - 189; exhibit 4.
An edited version of the appellant's electronic record of interview (EROI) of 4 December 2015 was played to the jury. In that interview, the appellant emphatically denied the offending and expressed his disgust at what was being alleged. He described the parlous state in which the complainant and her mother were living before they came to live at the House, and the financial support he had continued to give them after they moved out. The appellant described the dispute he had with the complainant's mother about the $14,000 car repayment. He admitted the living and working arrangements at the time of the alleged offending and that he was occasionally left alone with the complainant in the House. He denied knowing the complainant's grandmother was drinking heavily, but said he did not know if she was a closet drinker.[77]
[77] Exhibit 3.
Detective Tucker said that he had not received a journal from the complainant setting out any details of the allegations which she had written down.[78]
[78] Trial ts 189.
Appellant's evidence
The appellant elected not to give or adduce any evidence at trial.[79]
[79] Trial ts 190.
Conviction ground 1: alleged prior inconsistent statement of complainant
Ground 1 of the appellant's conviction appeal is that a miscarriage of justice has arisen as a result of a prior inconsistent statement of the complainant not being in evidence.
This ground relates to parts of the complainant's CWI and pre‑recorded evidence which were edited out of the recording played to the jury. The edited parts related to what the complainant said she had told her friend, M, a couple of years prior to the CWI. The edited versions played to the jury included the complainant's statement as to the fact of her disclosure to M, but not the content of what was said. Ground 1 also concerns the contents of a CWI with M.
Edited parts of the complainant's CWI and pre-recorded evidence
In the relevant part of the complainant's CWI which was edited out, the complainant was asked what she told M. The complainant responded that she never told M the full details, but had 'told her the basics of what happened'. The complainant indicated that she had told M that 'he raped me'.[80]
[80] CWI ts 23.
The following passage of the cross-examination of the complainant was edited out of the recording of her evidence played to the jury:[81]
[81] Trial ts 48 - 49.
Okay. Well, I'll just try that again. I was asking you about your friend, [M]?---Yeah.
And what I said was you didn't tell her that [the appellant] had penetrated you, did you?---No, I didn't tell her, I told her he attempted.
Did you actually tell her that?---Yes.
That he actually attempted penetration?---Yes.
Didn't you just say to [M], 'He used to touch me inappropriately'?---No.
You never used that word?---No, I said he just - I said that he used to touch me inappropriately and he attempted to penetrate me.
Didn't you say that he would do things that would make you feel uncomfortable?---I also said that.
And did you use the word 'inappropriate'?---Yes, I did.
But you didn't actually give her any details, did you - - -?---I didn't - - -
- - - of him attempting to penetrate you?---I didn't go into the very defined details but I told her it was attempted penetration.
In part of re-examination which was edited out of the recording played to the jury, the prosecutor asked the following questions:[82]
Ms Lonsdale also asked you about telling your friend [M] and you told [M] that he had attempted penetration?---Yeah.
What - what did you mean by attempted penetration?---He tried to put his penis inside my vagina and it wouldn't - yeah, it wouldn't go in.
CWI with M
[82] Trial ts 58.
The appellant also seeks to adduce, as additional evidence in the appeal, a transcript of a CWI conducted with M on 19 October 2015. In that CWI, M describes the complainant telling M about the appellant touching the complainant inappropriately when the complainant was about 10 years old. The disclosure was said to have been made when M was 15 years old (she was 16 at the date of the CWI).[83]
[83] M's CWI ts 5 - 6 (White AB 47 - 48).
The appellant makes particular reference to the following statement of M in the CWI:[84]
Um, she said that when she was younger, about 10 years old - - that when she was living with her nan she -- her nan's boyfriend used to touch her inappropriately. Um, and then she more talked about what happened after and how she felt about it after rather than the actual act. I later found out that it was, like, him getting her to sit on his lap, you know, touching her on the thighs, things like that. Uh, to my knowledge there was never actual, like, penetration or anything, but there was, like, a lot of touching. She'd be, um, made to wear skirts around him and that kind of thing.
Discussions about edited recordings at trial
[84] M's CWI ts 5 (White AB 47).
After the empanelment of the jury, but before opening addresses by counsel, there was a discussion between counsel and the trial judge as to the editing of the complainant's CWI and pre-recorded evidence.
Mr Freitag indicated that the State had accepted that the complaint to M was not recent complaint evidence and did not propose to call M as a witness. He and the prosecutor had agreed to edit out references to M in the complainant's pre-recorded evidence. However, he raised the issue of whether the passage in the complainant's CWI, referred to at [24] and [67] above, should be edited out as well.[85]
[85] Trial ts 82 - 84.
The prosecutor indicated that he accepted that the complaint to M, made in about 2013, was not admissible as recent complaint evidence. However, the fact that the complainant made a complaint to the friend was part of the narrative that tended to rebut the defence's suggestion of recent invention in response to the dispute about the debt allegedly owed by the complainant's mother to the appellant.[86] Mr Freitag accepted that, on this basis, the fact of the complaint to M but not the content of the complaint was admissible.[87] Orders were made for the complainant's CWI and pre-recorded evidence to be edited accordingly.
Appellant's submissions
[86] Trial ts 85 - 87.
[87] Trial ts 91 - 93.
The appellant notes that s 21 of the Evidence Act 1906 (WA) provides that a witness may be cross-examined about a prior inconsistent statement and that, if the prior inconsistent statement is denied, then it may be proven. The appellant says that the exclusion of the evidence, referred to at [67] - [71] above, was unfair and resulted in a miscarriage of justice because of significant inconsistencies between what the complainant told M and the complainant's evidence. The appellant submits that, if the jury had been aware of the significant change in the complainant's account from when she spoke to M to when she gave the pre-recorded evidence, the jury would have had a reasonable doubt about her evidence and acquitted the appellant.
Disposition
The complaint to M, made in about 2013 in relation to offending alleged to have occurred in 2009 or early 2010, was clearly not admissible as recent complaint evidence. The principles governing the admissibility of recent complaint evidence were recently summarised by Derrick J in MNA v The State of Western Australia.[88] As noted in that summary, in order for evidence of complaint to be admissible under the doctrine of recent complaint, the complaint must be made at the first reasonable opportunity after the commission of the offence. The complaint to M was clearly not made at the first reasonable opportunity, and so was not admissible to buttress or bolster the complainant's credibility as a witness by demonstrating consistency of conduct.
[88] MNA v The State of Western Australia [2020] WASCA 84 [118].
The transcript of the CWI with M suggests the possibility of the existence of a prior inconsistent statement, but does not demonstrate the making of such a statement. The passage from M's CWI quoted at [71] above reflects M's understanding of what occurred, derived from a series of conversations with the complainant. She does not specifically indicate what the complainant said on any particular occasion that led M to form the impression that there was no 'actual penetration'. This was in a context where the complainant's evidence was that she had not given the details of what had occurred to M. It was also in a context where it appeared from the complainant's evidence, quoted at [69] above, that she referred to 'penetration' as penile-vaginal penetration.
The problem for the appellant's ground is that the decision not to adduce the evidence as to the content of the complaint to M is readily capable of being seen as a conscious and objectively rational forensic decision by the appellant's trial counsel.
The omission of evidence known to an accused at trial (which is therefore classified as 'new' rather than 'fresh' evidence) will generally only give rise to a miscarriage of justice where the new evidence established that the accused should not have been convicted.[89] The evidence of the content of the complaint to M falls well short of overcoming that hurdle.
[89] Beamish v The Queen [2005] WASCA 62 [9] - [13]; Smith v The State of Western Australia [2014] WASCA 90 [160].
Nor does any miscarriage of justice arise from the conduct of defence counsel in not seeking to adduce the evidence. The relevant general principles as to when a miscarriage of justice may arise through incompetent representation were summarised by this court in Huggins v The State of Western Australia.[90] We adopt that comprehensive analysis without repeating it, noting the following passage of the reasons in that case:[91]
An appellant who seeks to demonstrate that the conduct of his or her counsel caused a miscarriage of justice undertakes a heavy burden which is not easily discharged. This is a consequence of the adversarial nature of a criminal trial and the role played by counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel even if that was not in accordance with the wishes of the client. It is not a ground for setting aside a conviction that decisions made by counsel were made without or contrary to instructions or involved errors of judgment or even negligence. It is not the province of appellate courts to review the wisdom or prudence of the conduct of a trial by trial counsel. For example, an apparently rational decision by trial counsel as to what evidence to call or not to call does not give rise to a miscarriage of justice simply because an appellate court thinks it worked to the probable disadvantage of the appellant. (citations omitted)
[90] Huggins v The State of Western Australia [2018] WASCA 61 [376] - [401].
[91] Huggins [376].
Further, as was reiterated in Jeffery v The State of Western Australia,[92] this 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 or avoiding a forensic disadvantage. Rather, the court is concerned only with whether counsel's decision is capable of explanation on that basis. The question is whether there could be any reasonable explanation for the decision. The test is objective in character.
[92] Jeffery v The State of Western Australia [2018] WASCA 219 [104] (citing Buss P in Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96 [115]).
In the present case, it was an objectively rational decision for Mr Freitag not to seek to adduce evidence of the content of the complainant's statements to M. The vagueness of M's account of what the complainant said, in the context of the complainant's evidence as to the limited information she told M, meant that counsel could reasonably take the view that the prospect of establishing that the complainant made an unambiguous prior inconsistent statement to M was weak. Counsel could reasonably take the view that the jury might regard evidence giving substantial detail as to the complainant's complaint as bolstering the credibility of her evidence. On that basis, counsel could reasonably take the view that it was in the appellant's interests that the only thing the jury heard about the complainant having repeated her story to someone else was a sanitised statement to the effect that she told a friend what had occurred about two years earlier.
For the above reasons, ground 1 of the conviction appeal is not established.
Conviction ground 2: advice as to the appellant giving evidence
By ground 2 of his conviction appeal, the appellant contends that a miscarriage of justice occurred as a result of the appellant not being correctly advised concerning the election to give evidence and therefore not having the opportunity to give evidence.
Proceedings at trial
As noted above, the appellant elected not to give or adduce evidence at his trial. Before the lunch adjournment on 7 March 2018, prior to the close of the prosecution case, the trial judge raised the issue of timing with counsel in the absence of the jury. The following exchange occurred:[93]
[93] Trial ts 161 - 162.
SWEENEY DCJ: Well, sorry, I'll just ask, is the accused planning to testify?
FREITAG, MR: No. And I’ve - - -
SWEENEY DCJ: He's not.
FREITAG, MR: I shouldn't - he's not.
SWEENEY DCJ: He's not. Right.
FREITAG, MR: And I'll speak to him at lunch time about that but those were my instructions before the trial.
SWEENEY DCJ: I won't hold you to it. If anything changes, then it changes.
FREITAG, MR: I don't anticipate that will have changed, but I will check that with him before we proceed.
SWEENEY DCJ: Right.
FREITAG, MR: Assuming that is the situation, because those were my explicit instructions before the trial, we would then at 3.15 or thereabouts be in a position to close if your Honour - - -
SWEENEY DCJ: Right.
FREITAG, MR: - - - called on us to do so this afternoon.
At about 4.06 pm on 7 March 2018, after the prosecution closed its case, the following exchange occurred between the trial judge and Mr Freitag in the presence of the jury:[94]
SWEENEY DCJ: Yes, thank you.
Mr Freitag, has anything changed since our earlier discussion?
FREITAG, MR: No, your Honour, it has not.
SWEENEY DCJ: Then I'll ask you: does the accused elect to give or adduce any evidence?
FREITAG, MR: No, your Honour, he does not.
Appellant's additional evidence on appeal
[94] Trial ts 190.
The appellant seeks to adduce the following parts of his affidavit sworn 7 September 2020 as additional evidence in the appeal relating to this ground:[95]
14. My original counsel was not able to continue with my case.
15. I had two one and a half hour meetings with my eventual trial counsel prior to the trial.
16. In the first meeting my counsel told me he did not want me giving evidence.
17. He did not discuss the advantages of giving evidence.
18. During the trial, another lawyer who was assisting my trial counsel wrote out something which I signed about not giving evidence in the trial. She did not provide me with advice about this topic.
[95] White AB 8.
Under cross-examination in the appeal hearing, the appellant accepted that, during the course of the first meeting with Mr Freitag prior to the start of his trial, Mr Freitag explained to the appellant that he understood the prosecution would play the EROI at trial. However, the appellant denied that, at this first meeting, Mr Freitag explained that the appellant had the option of giving evidence at trial. The appellant said that Mr Freitag had not really explained anything at all to do with the trial during the course of the first meeting, which ran for an hour and a half.[96]
[96] Appeal ts 100 - 101.
Also under cross-examination, the appellant accepted that at his second meeting with Mr Freitag, which was the day prior to the commencement of the trial, Mr Freitag recommended that the appellant not give evidence. The appellant did not recall Mr Freitag recommending that he rely on his denials in his EROI. The appellant said that he 'just heard the "don't give evidence" bit'. The appellant did not recall any discussion about text messages at this meeting, although he recalled this becoming an issue at the trial.[97]
[97] Appeal ts 101.
The appellant said that he recalled the discussion between the trial judge and Mr Freitag referred to at [85] above. When asked if the discussion was consistent with his instructions, the appellant's evidence was to the effect that he was paying Mr Freitag and that:[98]
I'm pretty sure he knew what to tell me. I relied on his total – whatever – knowledge of all this.
[98] Appeal ts 102.
The appellant said that he met with Mr Freitag and Ms Tasic, his solicitor, at the courtroom during the lunch break on the second day of the trial. He signed a document saying that he chose not to give evidence, effectively confirming what had been discussed at the meeting two days earlier.[99] The appellant could not recall the exchange between the trial judge and counsel after lunch, quoted at [86] above.[100]
[99] Appeal ts 102 - 103.
[100] Appeal ts 104.
The appellant accepted that, after Mr Freitag's advice to him, his choice was not to give evidence.[101]
Respondent's additional evidence on appeal
[101] Appeal ts 104.
The respondent seeks to adduce the affidavit of Mr Freitag affirmed on 13 November 2019 in relation to this ground of appeal.
Mr Freitag deposes that he accepted the brief to conduct the appellant's trial in September 2017 following Ms Lonsdale's appointment as a judge of the District Court. He refers to two meetings which he had in his chambers with the appellant and his instructors. The first meeting was on 2 March 2018 and ran from 3.30 pm - 4.30 pm.[102] The second meeting was on 5 March 2018 and ran from 2.57 pm - 4.10 pm.[103]
[102] Freitag affidavit, par 22.
[103] Freitag affidavit, par 26.
Mr Freitag's conference notes of the first meeting state 'EROI played - remain silent - give evidence. Me to advise if will be played'. Mr Freitag deposes:[104]
My recollection is that I did not give [the appellant] advice at that meeting about whether or not I thought he should give evidence but instead set out what the options [were] on the basis that I understood the State would play the EROI and when the Appellant would give evidence if he chose to do so.
[104] Freitag affidavit, par 24.
Although this was the extent of his recollection of this particular meeting, Mr Freitag's standard practice was and is to advise clients that they have the right to elect whether or not to give evidence and that the decision was the client's rather than Mr Freitag's. In cases where there was a recorded interview with police, he would explain to the client that there was an option to rely on the video if the State was going to play it. When the client made a decision, he normally got the client to sign a written authority to give effect to that decision.[105]
[105] Appeal ts 112 - 113.
Mr Freitag's conference notes of the second meeting state 'Recommended no evidence - rely on video'. Mr Freitag deposes:[106]
My recollection is that my view was having read the EROI transcript was that [the appellant] would be better off relying on his record of interview which contained clear denials of the offending rather than giving evidence and that I communicated that to him.
[106] Freitag affidavit, par 27.
In oral evidence, Mr Freitag said that he could recall two reasons why he recommended that the appellant not give evidence. The first was that the EROI contained clear denials and he thought it better to rely on the EROI than to give evidence with the associated risks. The second reason was that there was a text message, or messages, that Mr Freitag thought looked like the appellant standing over the complainant's mother when demanding payment of $14,000 in a way that Mr Freitag thought suggested a sexual motive. Mr Freitag was concerned that the jury would perceive the text message, or messages, in the same way and that would be very damaging. He was concerned that if the appellant was cross‑examined on the text message, or messages, it would have gone badly.[107]
[107] Appeal ts 105 - 106.
Mr Freitag's evidence was that he recalled discussing the subject of the text messages with the appellant at their second meeting and expressing concern that they did not have a good answer for them, but could not otherwise recall the detail of the discussion. He recalled telling the appellant that relying on the EROI was the better and safer option and that his recommendation was that the appellant not give evidence.[108]
[108] Appeal ts 109 - 110.
Mr Freitag annexes to his affidavit a signed instruction from the appellant dated 7 March 2018 in the following terms:
I [the appellant] have instructed my lawyers Timpano Legal [and] Simon Freitag, that I do not want to give evidence. I understand this is my choice.
Mr Freitag's evidence was that he cannot recall if he was present when this authority was signed.[109] He could not recall whether he had any discussion with the appellant during the trial about whether the appellant would or would not give evidence. Mr Freitag said he had only reviewed his correspondence file in preparing to give evidence, and had not reviewed his trial notes (which he did not have with him when giving evidence).[110]
Factual findings
[109] Freitag affidavit, par 37; appeal ts 113.
[110] Appeal ts 113 - 114.
There was nothing about the manner in which either the appellant or Mr Freitag gave evidence which caused us to have doubts about the honesty of their evidence. Both witnesses were attempting to recall events which occurred years before they were required to give evidence, and about which there were few contemporaneous notes. It is to be expected that the witnesses would have difficulty in recalling the details of what was said at the meetings.
Based on the affidavits and oral evidence of these two witnesses, we make the following findings as to the advice which the appellant received prior to trial about his election as to whether or not to give evidence.
It is uncontroversial that Mr Freitag was engaged to act as the appellant's trial counsel in September 2017, following the appointment of Ms Lonsdale as a judge of the District Court. There is no evidence as to what, if any, advice the appellant received from Ms Lonsdale as to his election as to whether or not to give evidence.
It is also uncontroversial that the appellant had two meetings with Mr Freitag, the first on 2 March 2018 and the second on 5 March 2018 (being the day before the commencement of the appellant's trial).
We do not accept the appellant's affidavit evidence that, at the first meeting, Mr Freitag said that he did not want the appellant giving evidence. Mr Freitag's recollection of giving advice as to the options available if the EROI was to be played rather than any recommendation as to which option to adopt is more consistent with his file note of the first meeting. The appellant in effect accepted in cross-examination that the recommendation as to whether or not to give evidence was received at the second meeting.
We infer that, at this first meeting, Mr Freitag followed his standard practice summarised at [96] above. There was no reason for him to depart from that standard practice in this case. As reflected in the file note of the meeting, Mr Freitag told the appellant that he had the options of remaining silent and relying on the EROI if it was to be played or giving evidence. Mr Freitag indicated that he would confirm with the prosecutor whether the EROI was to be played at trial.
It is common ground that, at the second meeting, Mr Freitag recommended that the appellant not give evidence. That is consistent with Mr Freitag's contemporaneous file note of the meeting. We accept Mr Freitag's evidence that he discussed the subject of the text messages with the appellant at their second meeting, and told the appellant that relying on the EROI was the better and safer option.
The appellant deposes that there was no discussion as to the advantages of giving evidence. The appellant was not cross-examined on this statement, and Mr Freitag did not give evidence of advising the appellant about the advantages of the appellant testifying at trial. We accept the appellant's evidence that nothing specific was said about the advantages to the appellant of giving evidence. Rather, there was a recommendation that the appellant not give evidence and an explanation of the disadvantages of giving evidence.
We find that, at lunchtime on the second day of trial, the appellant signed the document quoted at [100] above. Consistently with the contents of that document and with his evidence noted at [90] and [92] above, the appellant understood at that time that the choice as to whether to give evidence or not was his to make. However, the appellant felt that, having engaged an experienced criminal barrister to represent him at the trial, he should follow the barrister's recommendations. Understanding that the choice of whether or not to give evidence was his, the appellant relied on the advice he had received from Mr Freitag in making that choice.
We are not able to make any finding as to whether or not there was any discussion during the course of the trial as to the appellant's election about giving or adducing evidence at his trial. In this regard, it is regrettable that counsel's trial notes were not before the court, as they may have assisted in the resolution of that question. As a matter of practice, defence counsel called to give evidence in a case of this type should bring their file to court so it can be referred to if required. As a matter of fairness, particularly where the appellant is self-represented, the Office of the Director of Public Prosecutions should ensure that this occurs either by request to the practitioner concerned or by the issue of a subpoena if required.
General principles
In Jeffery,[111] it was held that a miscarriage of justice occurred because inadequate advice was given to Mr Jeffery by his legal advisers about his choice of whether or not to give evidence. Relevantly, defence counsel spoke to Mr Jeffery while he was in the dock, after the prosecutor in that case had closed the State's case and shortly before the trial was to resume after the lunch adjournment. It was found that they did not discuss the factors which caused counsel to advise Mr Jeffery not to testify, all of which (in the court's view) were debateable and one of which was incorrect. That occurred in circumstances where the court was satisfied that, on an objective assessment of the relevant facts and circumstances, there was, in substance, no forensic reason not to call Mr Jeffery as a witness. Mr Jeffery's electronic record of interview with police, in which Mr Jeffery denied the offending, was not adduced in evidence as part of the State's case. There were also other factors, concerning the way this court perceived the case theory formulated by Mr Jeffery's trial counsel, which were seen to give rise to a miscarriage of justice in that case.
[111] Jeffery [189] - [194].
In Craig v The Queen,[112] the High Court considered how inadequate legal advice about an accused's choice to give evidence may give rise to a miscarriage of justice. The court recognised that a trial may be unfair because the exercise of an accused's right to give evidence in his or her defence was effectively foreclosed by the receipt of incorrect advice.[113]
[112] Craig v The Queen [2018] HCA 13; (2018) 264 CLR 202.
[113] Craig [32].
However, the High Court rejected the proposition that, where an accused is aware of the right to give evidence, any material error in legal advice bearing on the exercise of the right denies an essential condition of a fair trial.[114] In the context of a decision not to give evidence, the court considered that:[115]
At the least, demonstration that incorrect advice has occasioned a miscarriage of justice will require consideration of the relation between the advice and the decision not to give evidence.
[114] Craig [26] - [27].
[115] Craig [27].
The High Court held that an appellate court's assessment of whether the decision not to give evidence deprived an accused of a fair trial looks to the nature and effect of the incorrect advice on the accused's decision. It is not an assessment of whether an objectively rational justification could be assigned to the decision.[116]
Disposition
[116] Craig [33].
In our view, no miscarriage of justice arose from the advice which the appellant received as to his election about whether or not to give evidence in his trial. The appellant received advice that the choice about whether to give evidence was his to make. He understood that he had that choice. That he reasonably relied on the recommendation of his counsel in making that choice did not deprive him of the choice or affect his understanding that the choice was his to make.
This is not a case where material error in legal advice bearing on the exercise of the right to give evidence denied the appellant any essential condition of a fair trial.
In our view, no material error in the legal advice which the appellant received has been demonstrated. Mr Freitag's recommendation that the appellant not give evidence was based on objectively legitimate forensic considerations. The appellant's denials in the EROI were clear and emphatic, in terms which expressed his disgust at the conduct in which he was alleged to have engaged. There was nothing said in the interview which demanded further explanation. While giving evidence in the trial, on oath, and subjecting himself to cross-examination had the potential to add to the weight the jury might give to his denials, there was the real risk that his answers under cross-examination would substantially damage his credibility. This is not a case, such as the court perceived in Jeffery, where, on an objective assessment of the relevant facts and circumstances, there was no forensic reason not to call the appellant as a witness. As we have mentioned, in Jeffery, Mr Jeffery's electronic record of interview with police, in which Mr Jeffery denied the offending, was not adduced in evidence as part of the State's case.
Further, the appellant was not deprived of the choice as to whether or not to give evidence by the fact that he relied on counsel's reasonable recommendation. Having been convicted, the appellant may now regret the choice which he made. But the potential for a different outcome if the appellant had made a different choice does not mean that he was denied a fair trial. The miscarriage of justice alleged by ground 2 in the conviction appeal is not established.
Conviction ground 3: inadequate Longman direction
By ground 3 of his conviction appeal, the appellant contends that the trial judge erred in failing to adequately warn the jury of the dangers of convicting the appellant on the complainant's evidence, and the forensic difficulties faced by the appellant in that regard, having regard to the lapse of time since the occurrence of the events in question. That is, the appellant contends that the trial judge failed to give an adequate direction of the kind contemplated in Longman v The Queen.[117]
General principles
[117] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79.
The 'Longman direction', referred to by the terms of ground 3, was expressed by the plurality in Longman as follows:[118]
The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy.
[118] Longman (91).
The warning contemplated by the High Court in Longman is a warning that it would be dangerous to convict on the complainant's evidence alone without the closest scrutiny of the complainant's evidence.[119] However, as has been recognised by a number of decisions of this court, no particular form of words is required in every case, and the sufficiency of a Longman direction does not depend on the use of the word 'dangerous'.[120] Rather, as this court recognised in MAS:[121]
[t]he question is whether the direction given, read as a whole, conveyed, with appropriate emphasis, the forensic disadvantage suffered by the appellant, and the risk of a miscarriage of justice arising from that prejudice, particularly if the uncorroborated testimony of the complainant provided the only basis for conviction, notwithstanding that the trial judge failed to use the expression 'dangerous to convict'.
The Longman warning in this case
[119] See also Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161[45].
[120] EPD v The State of Western Australia [2011] WASCA 264 [80]; MAS v The State of Western Australia [2012] WASCA 36 [27] ‑ [28]; SPB v The State of Western Australia [2012] WASCA 136 [53].
[121] MAS [29].
It was common ground at trial that a Longman warning was required in the circumstances of this case. The warning was given by the trial judge in the course of her Honour's charge to the jury in the following terms:[122]
[122] Trial ts 207 - 210.
Now, the State's case relies entirely upon your accepting [the complainant's] evidence as being both honest and reliable in its essential details. Because of that and because of the seriousness of the allegations that she makes, you should scrutinise her evidence with special care. These are allegations of serious sexual offences.
No official complaint to the police was made at the time that these things are said to have occurred. You should take carefully into account that by the time [the complainant] was interviewed by police when she was 16, the events she alleged were said to have happened around six years earlier when she was 10 or perhaps 11. That's when the police received a detailed allegation and the investigation could get under way.
Human memory is fallible. The longer the delay, the more opportunity there is for error, and that's particularly so for events occurring in childhood. It's a matter of common experience that the longer you believe something to have happened, the more convinced you are that it has happened. That can be so even if you are mistaken in your recollection. And a mistaken witness can be a convincing witness because they are themselves convinced. As I've said, human memory is fallible and an honest witness can be wrong in their recollection.
The defence case is not that she is honest and mistaken, but rather that she is fabricating her evidence, possibly because her mother was in debt to the [appellant] and that this debt was being pursued by him; possibly because she has, either at the behest of her mother or perhaps off her own bat, thought that this in some way might deter the [appellant] from pursuing her mother for the money. That was what was put to her in cross-examination.
I have a little more to say about that later, but notwithstanding those questions, in any event you should remember it's for the State to prove each charge and even if you are satisfied that [the complainant] was an honest witness and was not setting out to fabricate her allegations, she was still talking about matters said to have occurred a long time ago. You must be satisfied she is reliable in her account. The passage of time means that naturally some details will be lost to her memory, but can she be reliable in her recall of the essential facts of the alleged incidents?
Because of the long delay between the alleged incidents and [the complainant] making a formal complaint to the police and hence the investigation commencing, certain opportunities to test her account have been lost. Had she made a formal complaint soonish after the alleged offence, so within a few days or weeks or a few months, then the offence might have been described as having taken place at a particular date and in a particular time frame.
The [appellant]'s work records could have been checked to see if he was at home during that period. If he was, his then partner [the complainant's grandmother] and [the complainant's mother], who lived with them, could have been questioned much, much closer to the events to see if either could shed any light on his whereabouts and movements generally at the time of the alleged offences.
A specific time might have been specified in terms of a time frame at night or during the day or something like that and people could have been asked about those things much closer to the time.
When the [appellant] was interviewed by the police, he too had to remember back years ago. That would obviously have been easier if he had been questioned back at the time of the alleged events. Police might have asked him about a specific night. He might have had some realistic prospect of remembering that night that they were talking about and where he was and what he'd been doing. Six years on, there's almost no prospect of recalling and no ability in the State to pin any particular night anyway.
So the [appellant] and his lawyers have lost any possibility perhaps of speaking to other people in his life about events much closer to the time frame we are talking about and he's lost the ability to be able to talk about a specific night years ago.
It's also harder for defence counsel to explore the truthfulness of an account in cross-examination by means of pinning down fine details when a complainant is testifying about something she says occurs years ago. And of course that applies to cross-examination of other witnesses too because when years have passed, witnesses' memories are obviously being tested when the witness would be expected to have greater and more accurate recall if they were testifying much closer to the time frame in question.
The [appellant] has lost the opportunity to explore and perhaps bring forward matters of defence and to test the details of the evidence of [the complainant]. So the delay has put the [appellant] at that disadvantage, which is not merely a theoretical disadvantage but a real disadvantage. I'm giving you this direction based on the experience of courts of the difficulty that accused people have in cases such as these where there's been a delay of years between an alleged event and a formal complaint to the police.
Because of the delay, as I've said, it's important that you scrutinise [the complainant's] evidence with special care because the State's case depends upon your accepting her evidence. You are entitled to act upon her evidence to find the [appellant] guilty if you are satisfied of the truth and accuracy of it.
But it would be unsafe to convict the [appellant] on her evidence alone, having - unless having looked at that evidence carefully, having considered the factors I’ve just mentioned and taking full account of this warning I’m giving you, you are satisfied beyond a reasonable doubt as to its truth and as to its accuracy concerning the essential details.
(emphasis added)
Disposition
In our view, none of the various complaints about the trial judge's Longman direction are established.
The appellant first complains about the use of the word 'should' rather than 'must', as emphasised in the quote of the direction set out above. However, when the direction is considered as a whole it is clearly expressed as a direction which the jury were required to follow. It was expressed to be a direction in the third last paragraph quoted above. The jury were told that it was important that they scrutinise the complainant's evidence with special care. The last paragraph emphasises that the jury was to consider the factors the judge had mentioned and take full account of the warning which the judge was giving.
Secondly, the appellant complains that the jury were not told that the combination of long delay and lack of corroboration made it dangerous to convict. However, as noted above, the sufficiency of a Longman direction does not depend on the use of the word 'dangerous'. Here the judge told the jury that it would be 'unsafe' to convict the appellant on the complainant's evidence alone unless, having looked at that evidence carefully, having considered the factors mentioned and taking full account of the warning, they were satisfied beyond a reasonable doubt as to its truth and as to its accuracy concerning the essential details. Combined with the preceding explanation of the effect of delay and the forensic disadvantage it could produce, the direction conveyed, with appropriate emphasis, both the forensic disadvantage suffered by the appellant and the risk of a miscarriage of justice arising from that disadvantage.
Thirdly, the appellant complains that the direction did not sufficiently emphasise the forensic disadvantages he experienced as a result of the delay and failed to provide a practical example of that prejudice. The appellant postulates that the jury could have been told that, if the complaint had been raised earlier with more specific timeframes, he may have been able to establish that he was at work at the time of the alleged offences by reference to his FIFO work roster. However, the direction referred to above did give that specific example of potential forensic disadvantage. The trial judge explained the ways in which forensic disadvantage could arise in some detail by reference to the circumstances of the appellant's case. The appellant's submissions do not point to any forensic disadvantage he experienced which was not within the scope of the trial judge's warning. Mr Freitag did not do so when the trial judge raised the content of the Longman warning with him before she directed the jury. While Mr Freitag raised the prospect of medical evidence being obtained, he ultimately accepted that to direct the jury about that would be to invite speculation in a case where no medical evidence was called.[123]
[123] Trial ts 191 - 195.
Fourthly, the appellant complains that no specific direction was given to the jury about the absence of any complaint to the complainant's mother and that it was the mother who initially approached police. However, these are not aspects of forensic disadvantage resulting from delay which the trial judge was required to advert to in her Longman warning.
In our view, the Longman warning, taken as a whole, fulfilled the functions identified in the passage from MAS quoted at [122] above. Ground 3 of the conviction appeal is not established.
Conviction ground 4: police running sheet
Ground 4 of the appellant's conviction appeal contends that a miscarriage of justice occurred due to the appellant not seeing the police running sheet prior to trial and due to inadequate prosecution disclosure.
Appellant's submissions and evidence
In support of this ground, the appellant seeks to adduce a police running sheet as additional evidence in the appeal.[124] He seeks to make the following points about the entries on the running sheet:
[124] Appellant's affidavit, par 27, annexure C.
(1)The appellant refers to entries on 7 August 2015 which indicate that the complainant's mother first approached police and that the complainant was not at home at the time.[125]
(2)The appellant refers to an entry on 19 August 2015, of a supervisor's assessment which includes the notation: 'Physical material: victims (sic) journal recalling events'. The appellant says he has not viewed this journal, which was not adduced in evidence at trial.[126]
(3)The appellant refers to an entry on 4 December 2015, which indicates that, following the interview with the appellant on that day, Detective Tucker and another police officer conducted an assessment of the evidence and concluded that:
Further Investigative Actions identified as a result of EROI with [the appellant] therefore at this stage there is insufficient evidence to meet a prima facie case and endorse a charge/s.
The appellant also notes that the running sheet shows that the complainant's mother and grandmother were interviewed on 8 December 2015.[127]
(4)The appellant refers to an entry on 14 March 2016, which indicates that Detective Tucker attended 'Armadale CAMHS' and collected 'outstanding medical records relevant to' the complainant's consultations with a social worker. The appellant says he never viewed any medical records and no evidence of medical records was adduced at his trial.[128]
(5)The appellant says that the running sheet indicates that the complainant had 'mental issues relating to her mother as early as 2008, long before meeting the appellant'.[129]
[125] Appellant's submissions, par 40.
[126] Appellant's affidavit, par 22 - 23.
[127] Appellant's affidavit, par 19 - 21.
[128] Appellant's affidavit, par 24 - 26.
[129] Appellant's submissions, par 40(d).
The appellant also deposes that, at his interview on 4 December 2015, he told police he had copies of text messages he had sent to the complainant's mother. Police took photographs of the messages at the conclusion of the police interview. He told police that he had kept copies of the text messages. The appellant says that the photographs were not provided to the court.[130]
Disposition
[130] Appellant's affidavit, par 7 - 11.
The photographs of the appellant's phone showing the text messages in question formed part of the prosecution brief.[131] As such, defence counsel would have been aware of their existence. Given the tone and content of the messages, it was objectively reasonable for Mr Freitag to have decided not to tender copies of the text messages themselves or cross-examine the complainant's mother upon them. In that regard, we note that there is an inconsistency between the complaint in this ground that the text messages were not tendered at trial, and the complaint in ground 6 as to the admission of prejudicial evidence the effect of which would have been revealed by the text messages had they been tendered. There was no failure by the prosecution to disclose the text messages, and no miscarriage of justice arising from the absence of further evidence of the text messages at trial.
[131] Reproduced at Blue/Green AB 28 - 36.
Senior counsel for the State accepted that the police running sheet formed part of the material which should have been disclosed to the defence prior to trial.[132] The appellant's evidence is that he had not personally seen the running sheet prior to trial. However, there is no evidence that the running sheet was not disclosed to defence counsel or the appellant's solicitors. Senior counsel for the State indicated that the Office of the Director of Public Prosecutions did not have any record as to whether or not the running sheet was disclosed in this case.[133] Counsel invited the court to resolve the ground on the basis that the appellant bore the onus of establishing non-disclosure and he had not discharged this onus.[134]
[132] Appeal ts 130.
[133] Appeal ts 130 - 131, 132 - 133.
[134] Appeal ts 130 - 131.
In the present case, there was no evidence at trial, other than the denials in the appellant's EROI, which was inconsistent with the complainant's account of the offending. The evidence of the complainant's mother and grandmother, and the appellant's admissions in the EROI, indicated that he had the opportunity to offend in the manner described by the complainant.
Evidence relating to the mother's drug use and Facebook messages
The evidence as to the mother's drug use and the Facebook messages were not matters which necessarily impacted adversely on the complainant's evidence of the charged offending. If the jury regarded that evidence as favourable to the appellant, this was most likely because of its adverse impact on the jury's assessment of the credibility of the evidence of the complainant's mother, rather than that of the complainant. The evidence of the complainant's mother was not critical to the prosecution case.
Further, the mother's evidence was that she did not recall communicating with the appellant on Facebook or sending the responses.[149] When shown the purported messages, she indicated that the photo of her shown on the message said to have been sent in 2012 was taken only 6 months prior to trial, and she had blocked the appellant 2 years previously.[150] A copy of the Facebook messages was not tendered in evidence. Whether or not they were valid reasons, the complainant's mother provided reasons why she thought she had not sent the purported messages. The jury were not bound to conclude that the mother's evidence about the Facebook messages was deliberately false. In any event, as already noted, the evidence of the complainant's mother was by no means critical to the prosecution case.
Absence of evidence of recent complaint
[149] Trial ts 138 - 139, 141.
[150] Trial ts 140 - 141.
The absence of evidence of recent complaint did not require the jury to have a reasonable doubt as to the appellant's guilt of the charged offences. When made at the first reasonable opportunity after the commission of the offence, a complaint may be used to buttress or bolster the complainant's credibility by demonstrating consistency of conduct.[151] However the absence of evidence of recent complaint does not require rejection of the complainant's evidence. This is reflected in s 36BD of the Evidence Act, which requires that a direction be given warning the jury that a delay in making a complaint of sexual offending does not necessarily indicate that the allegation is false, and that there may be good reasons why a victim of such an offence may hesitate in making a complaint. In the present case, the trial judge appropriately directed the jury in the following terms:[152]
[A]bsence of complaint or delay in complaining on the part of a child does not necessarily indicate that the allegation is false.
There may be good reasons why a victim of an offence such as these alleged may not say anything, or may take a long time to say something. You should take into account [the complainant's] age at the time; her living arrangements; her relationships with the people in the house; the difference in power between her and the [appellant] at that time, him being a male adult and a father figure to her, and her being a child.
She said she was scared of the [appellant] as a child and that he told her not to say anything to her mother or grandmother. She thought that if she did say something to her mother, her mother would think she was disgusting and she would be in trouble, because she had failed to say, 'No' and also that they would then have nowhere to live.
You should also consider factors such as embarrassment and the personal nature of disclosing sexual offences. So you should closely consider the defence submissions against all of that background circumstances to determine whether you do find [the complainant's] failure to say anything back at the time does cast doubt upon her credibility.
Absence of evidence of recent complaint in this case did not require the jury to have a reasonable doubt as to the truthfulness and reliability of the essential aspects of the complainant's evidence.
Absence of physical injuries
[151] MNA [118](2).
[152] Trial ts 217.
The experience of the courts is that it is also common in cases of child sexual offending for there to be no physical injuries evidencing the offending. In the present case, there was no evidence suggesting that physical injury would be expected if the offending had occurred. The absence of evidence of physical injury in the present case did not require the jury to have a reasonable doubt about the appellant's guilt of the charged offences.
Appellant's denial of offending
The appellant also submits that the verdicts were unreasonable or not supported by the evidence on the basis that he denied the offending. However, there was nothing about the complainant's description of the offending which was inherently improbable. If the jury assessed the complainant's evidence to be credible and reliable, they could be satisfied beyond reasonable doubt on the basis of that evidence that the offending occurred. It would also be open to the jury to positively reject the appellant's denials by reference to the strength of the complainant's evidence. The jury might also have considered that the manner in which he made those denials impacted adversely on their assessment of the credibility and reliability of those denials.
Complainant's hospitalisation
Evidence that the complainant was hospitalised following an attempted overdose was capable of being regarded by the jury as consistent with a psychological reaction to the appellant's offending, as described by the complainant. Evidence of the change in the complainant's psychological state at about the time of the offending was also capable of being viewed in that manner.[153] In any event, the fact that the complainant was hospitalised after an overdose did not demand that the jury have a reasonable doubt as to the appellant's guilt of the charged offences. Nor did proof of that fact require expert evidence.
Conclusion
[153] See MCA v The State of Western Australia [2019] WASCA 22 [58] - [60].
It was also open to the jury to accept the complainant's evidence that the complaint was not motivated by the dispute between the appellant and her mother as to the $14,000 debt. The evidence supported a conclusion that the dispute arose after the complainant made a disclosure to M in relation to the offending. Further, complaining to the police about sexual offending would not affect the fact that any debt was owed or prevent its recovery. There was no evidence that, at the time of her CWI, the 16-year-old complainant thought that a complaint of sexual offending to police might have any effect on recovery of the claimed debt. It was open to the jury to reject the appellant's suggestion that this was a false complaint of sexual offending motivated by the appellant's demands for repayment of a claimed $14,000 debt.
In our view, the jury were entitled, after evaluating and weighing the complainant's answers and evidence in her CWI and pre-recorded evidence, and the appellant's denials and statements in his EROI, in the context of the trial record as a whole:
(a)to be satisfied beyond reasonable doubt that the evidence of the complainant in relation to the occurrence of the charged offences was truthful, accurate and reliable; and
(b)to reject the appellant's denials in relation to the alleged offending.
The jury, acting reasonably, were entitled to conclude beyond reasonable doubt, on the basis of the complainant's answers and evidence, that the appellant had penetrated the complainant's vagina with his finger, as charged, on the two charged occasions. The trial record does not support the conclusion that the jury must have entertained a doubt about the appellant's guilt of the charged offences. The verdicts of guilty were not unreasonable, and were supported by evidence that the jury was entitled to accept.
Our review and assessment of the whole of the evidence admissible against the appellant at his trial does not cause us any doubt as to the appellant's guilt of the offences of which he was convicted. We are not satisfied that it would be dangerous to permit the verdicts of guilty to stand, or that there is a significant possibility that an innocent person has been convicted. Ground 7 of the conviction appeal is not established.
As none of the appellant's grounds of appeal against his convictions have been established, the appeal against those convictions must be dismissed.
Appeal against sentence
The appellant appeals against his sentences on the sole ground that the sentences imposed were individually manifestly excessive, and in total disproportionate to the total criminality, having regard to the circumstances of the offences, the circumstances of the appellant and sentencing standards.
In substance therefore, the appellant contends that:
(1)the individual sentences, of 4 years' and 2 years' immediate imprisonment, for counts 2 and 1 respectively, were manifestly excessive; and
(2)the total effective sentence of 6 years' imprisonment infringed the first limb of the totality principle.
Circumstances of the offending
The trial judge made the following findings as to the circumstances of the appellant's offending.
The trial judge made findings as to how the complainant and her mother came to live with the appellant and the complainant's grandmother, and as to the living and working arrangements, in a way that reflected the uncontroversial evidence about those matters.[154] Her Honour noted that the two charges were representative of a course of sexual conduct towards the complainant during the period she lived at the House.[155]
[154] Trial ts 244.
[155] Trial ts 245.
Count 1 was the first occasion on which anything occurred. In the week preceding that incident, the appellant began to show the complainant particular attention, having her sit on his lap looking at pictures on the computer and touching her leg in the car.[156]
[156] Trial ts 245.
On the night in question, the complainant's mother was at work when the appellant came into her bedroom to say goodnight to the complainant, which was part of his usual routine. The appellant sat next to the complainant on the bed and put his hand on her thigh and started very slowly moving it up while stroking her arm, smelling her hair and kissing her cheek. Ultimately, the appellant inserted his fingers inside her vagina, rubbing and moving them around inside. After a time the appellant pushed back, pulled out his penis and attempted to insert it, but was unsuccessful in doing so. The judge noted that the charge in count 1 related to the digital penetration rather than what followed. Eventually the appellant desisted and told the complainant not to tell either her mother or grandmother what had occurred.[157]
[157] Trial ts 245.
The complainant testified that similar things occurred up to about 10 times, although she had not kept a precise count. There were times when the complainant's mother came home from work and found the complainant very distressed. Over time, the complainant also kept to her room and became more and more isolated in the home and less and less physically affectionate with her mother. She had been in a close and good relationship with her mother when they first moved into the House, but over time that relationship deteriorated because as a child she was in this helpless situation and, no doubt, in part held her mother responsible for that scenario, although she did not complain to her mother about what the appellant was doing.[158]
[158] Trial ts 245.
The complainant did, however, complain to her mother about the way her grandmother was treating her. The judge accepted that the complainant's grandmother, being at that stage a very heavy drinker, was in fact quite nasty to the complainant, although she may have had limited insight into how she was behaving when she was under the influence.
Count 2 on the indictment represented another occasion which stood out in the complainant's mind because this one was aggressive and painful and was unlike every other occasion. The appellant entered the complainant's room, came over and sat on the bed and said goodnight and put his hand on her thigh and began moving it up. The appellant pulled her pyjama pants down and began rubbing her around the vagina. At this stage, the complainant attempted to push the appellant away, which angered him. He then laid her back on the bed and put his hand over her mouth and, instead of inserting his fingers reasonably gently as he would normally do, inserted his fingers forcefully which the complainant found to be extremely painful. The appellant also called the complainant a 'stupid bitch'. He penetrated her forcefully for some time before leaving.[159]
[159] Trial ts 245 - 246.
The complainant recalls that as being one of the nights when she was crying when her mother came home. When her mother asked her what was wrong, she complained about her grandmother being mean to her. The judge noted that it is common for a child to make some attempt to complain about a situation by making general vague sort of complaints that they are unhappy or that someone is being mean to them rather than actually tackling what is truly bothering them. After that incident she never resisted again.[160]
[160] Trial ts 246.
The trial judge said that it did not matter whether the appellant actually did insert all three fingers into the complainant's vagina, or whether it was only two fingers. The complainant recalled that this incident was significantly painful and traumatic when, from the remainder of her evidence, that level of force was not typical of the way in which the appellant touched her.[161]
[161] Trial ts 246.
Ultimately the living situation in the home between the complainant's mother and grandmother became unworkable. The home situation was, the trial judge found, clearly completely toxic. The complainant's grandmother was on antidepressants, drinking very heavily and going to bed early every night because she was under the influence of alcohol. The complainant was becoming more and more isolated and spending more and more time in her room and, it would also seem, chronically overeating. In the end, the complainant's mother left the home with the complainant considerably earlier than planned.[162]
[162] Trial ts 246.
The trial judge did not find it necessary to reach any conclusion as to whether a debt was actually owed by the complainant's mother to the appellant. Irrespective of whether a debt was owed, that was not what motivated the complainant to go to the police. Further, the making of a complaint to the police did not have any impact on whether the debt was owed or could be recovered by the appellant.[163]
Victim impact
[163] Trial ts 247.
The trial judge found that evidence led during the trial made it clear that the complainant was seriously affected by the offending, both at the time it was occurring and in the years that followed. The complainant was 16 years old in the CWI and obviously overweight. As a young girl she became increasingly bigger and was an unhappy child, socially isolated and bullied at school.[164]
[164] Trial ts 247.
After she left the appellant's home and in the years that followed, the complainant suffered from bad dreams, imagining that someone was on top of her and that she was suffocating. She began self-harming. In early 2013 she overdosed on her mother’s medication and was hospitalised.[165]
[165] Trial ts 248.
The trial judge accepted that the complainant had a number of issues in her life which were not confined to being chronically sexually abused by the appellant while living in the House. She had a toxic relationship with her grandmother, which the judge understood had improved, probably because the complainant's grandmother had significantly decreased or stopped drinking. The complainant's relationship with her mother also became strained over time and it remained difficult at the time of sentencing. The judge observed that it may well be that the complainant's mother developed a substance abuse problem, which she was not candid about during her evidence, but that it was not necessary for her Honour to reach a view on that.[166]
Appellant's personal circumstances
[166] Trial ts 248.
The appellant was 59 years old at the time of sentencing. He had no prior convictions. He had a good work ethic, and had held a series of long term steady jobs. Apart from the current offences, the appellant was otherwise a productive member of society who had been in steady employment and contributing to the community. References from his wife (at the time of sentencing), family members and friends indicated that the appellant was otherwise of good character.[167]
[167] Trial ts 248 - 249.
The trial judge found that the offending arose from the toxic combination of a dysfunctional home life, at a time when the appellant was feeling depressed, and a lack of control in his home environment, arising from:[168]
(1)the unexpected breakdown of his first marriage;
(2)living with an alcoholic, being the complainant's grandmother, in his next relationship;
(3)the mental stress of working as a fly-in/fly-out worker; and
(4)having his partner's daughter with her multiple cats and granddaughter living with him.
[168] Trial ts 249.
The judge saw the offending as having been sexually motivated but also as reflecting the appellant's desire to exert some control over someone in his life at that time and the complainant was the easy target. The judge also considered that the appellant may have felt some sense of entitlement due to his generosity towards the complainant and her mother.[169]
[169] Trial ts 249.
The trial judge noted that a psychological assessment (which was limited by the appellant's continued denial of the offending) was that the appellant presented as a low risk of reoffending, and on account of his age would shortly fall into the very low risk category. The judge noted that the appellant would not be penalised for maintaining his innocence or taking the matter to trial, but that a discount for pleading guilty and remorse was not available.[170]
Trial judge's approach
[170] Trial ts 248 - 249.
The trial judge noted that the maximum penalty for each of the two offences was 20 years' imprisonment.[171] Her Honour noted that the appellant was not to be sentenced for other than the two charged sexual penetration offences. However, the judge recognised that, in assessing the seriousness of those two offences, it was relevant that they were not two isolated incidences but rather part of an ongoing sexual relationship with a young child of 11, possibly 10, years of age.[172]
[171] Trial ts 247.
[172] Trial ts 250.
The trial judge found that the offences occurred in obvious gross breach of trust, and that the complainant was at the time of the offending a fairly vulnerable child who had never had a father figure in her life and saw the appellant as, in effect, a family member. The judge said that the appellant's generosity to the complainant and her mother was a double‑edged sword which appeared to have fostered a sense of entitlement on the appellant's part. The judge also found that the appellant's living environment at that time was fairly toxic and that may also have contributed to that sense of entitlement.[173]
[173] Trial ts 250.
The trial judge noted that the courts are well aware of the long term psychological damage suffered by victims of childhood sexual abuse. It was obvious that the complainant was distressed by the incidents at the time, and also suffered significant psychological damage as a result of them. That psychological damage was entirely predictable and is often seen in victims of sexual abuse.[174]
[174] Trial ts 250.
The trial judge noted that the only appropriate sentence in this case was a sentence of immediate imprisonment. Her Honour did not consider the delay in complaint to be mitigatory. She noted that specific and general deterrence were the dominant sentencing considerations in cases of sexual offending against children. The judge held that it would be quite inappropriate to suspend the sentences, and the appropriate length of the term of imprisonment meant that suspension was not appropriate.[175]
[175] Trial ts 250 - 251.
The judge then imposed the sentences of:
(1)4 years' immediate imprisonment on count 2; and
(2)2 years' immediate imprisonment on count 1, to be served cumulatively on the sentence for count 2.
The trial judge evidently reduced the sentence for count 1 by an unspecified amount out of considerations of totality, noting:[176]
I'm not suggesting count 1 is in fact half as serious as count 2, but I've imposed that term to achieve the overall total I wanted to impose.
[176] Trial ts 251.
The appellant was made eligible for parole, and the sentence was backdated to 8 March 2018 to take account of time spent in custody on remand.[177]
General principles
[177] Trial ts 251.
As this court noted in Kabambi v The State of Western Australia:[178]
[178] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive or inadequate, or that a total effective sentence infringes the totality principle, are well established:
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
(citation omitted)
Disposition
The maximum sentence for an individual offence of sexual penetration of a child under the age of 13 years is 20 years' imprisonment. The individual sentences imposed in this case were only 10% (count 1) and 20% (count 2) of the available maximum.
As Buss P (Quinlan CJ and Mitchell JA agreeing) recently reaffirmed in The State of Western Australia v AHD:[179]
The primary sentencing considerations for [sexual offences against children] are appropriate punishment of the offender and personal and general deterrence, having regard to the need to protect vulnerable children.
It is well established that in cases of intra-familial sexual abuse, matters personal to the offender are of less mitigatory weight than might otherwise be the case. The fact that an offender is otherwise of good character has only little weight because the offences are of a kind that, until revealed, generally do not impact on other people or upon their perception of the offender.
There is no 'tariff' for offences of the kind committed by the respondent (or for sex offences generally) because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing factors. (citations omitted)
[179] The State of Western Australia v AHD [2021] WASCA 13 [56] - [58].
It is also established that the provisions of the Criminal Code which create offences of which sexual penetration is an element do not create a 'hierarchy' of sexual penetration. It should not be assumed that one form of sexual penetration is necessarily more, or less, serious than another. While patterns of sentencing for unlawful sexual penetration reveal that offences involving digital penetration are often less serious, and so attract lower sentences, than offences involving penile penetration, that is not always so. The seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances.[180]
[180] The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [68]. See also the recent decision in Musgrave v The State of Western Australia [2021] WASCA 67.
The appellant refers to the decisions of this court in The State of Western Australia v CGT,[181] KAT v The State of Western Australia,[182] JDF v The State of Western Australia,[183] AIM v The State of Western Australia[184] and HFM v The State of Western Australia.[185] There are a number of similarities and differences between the offending and offenders in those cases and the present. Having regard to all similar and distinguishing features, the sentences imposed in the present case are broadly consistent with customary sentencing standards for offences of this kind.
[181] The State of Western Australia v CGT [2018] WASCA 226.
[182] KAT v The State of Western Australia [2017] WASCA 11.
[183] JDF v The State of Western Australia [2016] WASCA 221.
[184] AIM v The State of Western Australia [2014] WASCA 155.
[185] HFM v The State of Western Australia [2012] WASCA 217.
In the present case, there were a number of seriously aggravating features of the appellant's offending. The appellant was the only father figure whom the complainant had ever known and was treated by her as a family member. The impact of that breach of trust on the complainant's ability to trust others in the future is likely to be profound. The psychological impact of the offending on the complainant was severe, and at least contributed to the complainant's self-harming. The offending was not an isolated or out-of-character event, but part of an established pattern of similar offending. The offending in count 2 had the aggravating factor of the use of force to overcome the complainant's resistance to the offending. Covering the complainant's mouth, while forcefully and painfully digitally penetrating the complainant's vagina and verbally abusing her, were particularly traumatic and egregious aspects of that offending.
There were some mitigating factors noted by the trial judge. The risk of reoffending was assessed as low, and the appellant had no prior criminal record. However, while personal deterrence was not of elevated significance, the significance of general deterrence as a primary sentencing consideration means that the appellant's positive personal circumstances are to be given less weight. The appellant did not have the mitigating effect of a plea of guilty to the offences.
Having regard to:
(1)the maximum penalty;
(2)the facts and circumstances of the offences;
(3)the vulnerability of the complainant and the serious impact of the offending upon her;
(4)the general pattern of sentences for offences of this kind;
(5)the importance of denunciation and personal and general deterrence; and
(6)all aggravating and mitigating factors,
neither the individual sentences nor the total effective sentence imposed on the appellant were unreasonable or plainly unjust. It was open to the trial judge to impose those sentences on a proper exercise of her discretion. The individual sentences were not manifestly excessive, and the total effective sentence did not infringe the first limb of the totality principle. The appeal against sentence must therefore be dismissed.
Orders
We would admit the additional evidence sought to be admitted by the parties, other than the report of Ms Hobson, referred to at [144] above, which in our view is inadmissible.[186] As in our view none of the grounds of appeal have any reasonable prospect of succeeding, we would refuse leave to appeal on all grounds and dismiss both appeals.
[186] While the State raised various other objections to parts of the appellant's affidavit at par 64 of its written submissions, it has not been necessary to resolve those objections. The appellant's appeal fails even if that material (much of which can be accepted on the basis that it is a submission in affidavit form by an unrepresented litigant) is received.
We would therefore make the following orders in each appeal:
CACR 129 of 2018 (appeal against conviction)
(1)The appellant's application in an appeal to adduce additional evidence in the appeal in relation to the report of Nina Hobson dated March 2019 (being paragraphs 30 - 32 inclusive and 36 of the appellant's affidavit sworn 7 September 2020 and annexure D to that affidavit) is dismissed.
(2)The appellant's application in an appeal filed on 7 September 2020, seeking to adduce additional evidence in the appeal, is otherwise granted.
(3)The respondent's application in an appeal filed on 3 November 2020, seeking to adduce additional evidence in the appeal, is granted.
(4)Leave to appeal is refused on all grounds of appeal.
(5)The appeal is dismissed.
CACR 130 of 2018 (appeal against sentence)
(1)Leave to appeal is refused on the sole ground of appeal.
(2)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
Associate to the Honourable Justice Mitchell
27 MAY 2021
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