Zagari v The State of Western Australia
[2022] WASCA 176
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ZAGARI -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 176
CORAM: QUINLAN CJ
MAZZA JA
ARCHER J
HEARD: 9 MAY 2022
DELIVERED : 23 DECEMBER 2022
FILE NO: CACR 82 of 2021
BETWEEN: LORENZO ZAGARI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: MASSEY DCJ
File Number : IND 2374 of 2019
Catchwords:
Criminal law – Appeal against conviction – Child sexual offences – Evidence of uncharged acts led by the prosecution to show the context of the offences charged in the indictment – Evidence of the uncharged acts not admitted or sought to be relied upon by the prosecution as propensity or tendency evidence – Whether the trial judge's directions to the jury in relation to the evidence of the uncharged acts were adequate or rendered the evidence inadmissible
Criminal Law – Appeal against conviction – Child sexual offences – Whether verdicts unreasonable or unsupported by the evidence – Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(a)
Result:
Leave to appeal refused on ground 1
Leave to appeal granted on ground 2
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | S A Vandongen SC |
| Respondent | : | K C Cook |
Solicitors:
| Appellant | : | Carlo Primerano & Associates |
| Respondent | : | Director of Public Prosecutions (WA) |
Cases referred to in decision:
Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728
Dayananda v The State of Western Australia [2021] WASCA 11
Hill v Western Australia [2019] WASCA 209
Jago v The State of Western Australia [2022] WASCA 2
KNZ v The State of Western Australia [2022] WASCA 39
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
LNN v The State of Western Australia [2021] WASCA 39
LNV v The State of Western Australia [2019] WASCA 180
M v The Queen (1994) 181 CLR 487
MEN v The State of Western Australia [2020] WASCA 118
MSK v The State of Western Australia [2022] WASCA 55
Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123
Table of Contents
Introduction and overview
Proceedings at trial
Complainant's evidence
May interview
December interview
Complainant's evidence at trial
Complainant's mother's evidence
Other State evidence
Appellant's evidence
Other evidence called by the appellant
Prosecution closing address in relation as to uncharged acts
Trial judge's directions as to uncharged acts
Grounds of appeal
Ground 1
Ground 2
Inconsistencies, discrepancies and other inadequacies identified by the appellant
Ground 2 – disposition
Conclusion
JUDGMENT OF THE COURT:
Introduction and overview
The appellant, Lorenzo Zagari, was, for a number of years (commencing in 2014) the gymnastics coach of the complainant, a talented young gymnast who was born in 2005. As the complainant's coach, the appellant became a trusted friend of her family. From time to time he stayed overnight at the complainant's family home in a regional town in Western Australia, he drove her from the regional town to Perth and he visited the family's unit in a suburb of Perth (Perth unit).
In 2019, when the complainant was 13 years of age, she disclosed to her mother, and then to police, that the appellant had sexually interfered with her when she was nine or 10 years old. On 21 May 2019, the complainant participated in a child witness interview (May interview) and told the interviewer that, on two occasions, the appellant had touched her 'in inappropriate parts'. The two occasions the complainant described involved the appellant penetrating her vagina with his penis (first occasion) and 'rubbing his willy against me' (second occasion). The complainant also said that the appellant 'always asks me to give him a hug and a kiss … but I keep saying no'.
The appellant was charged with one count of sexual penetration of a child under the age of 13 years and one count of indecently dealing with a child under the age of 13 years. A trial of those charges was listed to commence in the District Court of Western Australia on 16 December 2020.
On 7 December 2020 the complainant met with a prosecutor to discuss the events the subject of the trial. At that meeting, the complainant disclosed further occasions upon which the complainant said that the appellant had sexually or indecently dealt with her. As a result, the complainant participated in a second child witness interview on 9 December 2020 (December interview), in which she told the interviewer that there were 'three extra times'. The complainant described three further occasions upon which she said that the appellant sexually penetrated her or indecently touched her. At the end of the December interview, in addition to the 'five main times' the complainant said 'like going in cars with him, or, like, stuff like that, he'd always have to touch me'.
Following the December interview, a further four charges were added to the indictment, two of which were alleged to have occurred on the same day. The additional charges were one count of sexual penetration of a child under the age of 13 years and three counts of indecently dealing with a child under the age of 13 years.
The appellant was tried on the six charges, by Massey DCJ and a jury, from 4 May 2021 to 10 May 2021.
In her evidence at trial, the complainant was asked about her statement in the December interview that the appellant would touch her sometimes in the car. She said that he would 'put his fingers down my pants, underneath my underwear, and start playing with my vagina. Or other times it would be just constantly rubbing up and down my leg, getting close to my groin and start rubbing my groin'. She also gave evidence about the appellant making comments about kissing her on other occasions while in the car (collectively, uncharged acts). There is no question that the uncharged acts described by the complainant were not the subject of any count on the indictment.
The complainant was cross‑examined to the effect that none of the sexual or indecent activity she described had occurred. The appellant also gave evidence that none of the activity described by the complainant, including the uncharged acts, had occurred.
The jury found the appellant guilty of the first five counts on the indictment, being two counts of sexual penetration of a child under the age of 13 years and three counts of indecently dealing with a child under the age of 13 years. The appellant was acquitted of the final count, of indecently dealing with a child, which concerned an allegation that the appellant had kissed the complainant.
The learned sentencing judge sentenced the appellant to 6 years and 6 months imprisonment.
The appellant now appeals his convictions.
There are two grounds of appeal. The first ground is that, having regard to the directions that were given to the jury, a miscarriage of justice was occasioned as a result of the admission at the appellant's trial of the evidence of the uncharged acts. The resolution of this ground largely depends upon the directions given by the learned trial judge as to the use that the jury could make of the evidence of the uncharged acts.
By the second ground of appeal, the appellant contends that the verdicts of guilty were unreasonable and cannot be supported by the evidence adduced at trial. The appellant relied upon a number of inconsistencies in the complainant's evidence, the absence of an immediate complaint, alleged improbabilities in the State's case, the inconsistency of the complainant's subsequent behaviour and the appellant's evidence.
For the reasons that follow, we are not satisfied that either ground has been established. The learned trial judge's directions in relation to the uncharged acts, in context, properly identified the permissible and impermissible uses of the evidence as to the uncharged acts. No miscarriage of justice was occasioned by the admission of that evidence.
Nor, in our view, were the jury's verdicts of guilty unreasonable or unsupported by the evidence. Having regard to the jury's advantage in having seen and heard the witnesses, we are not left with a reasonable doubt as to the appellant's guilt of the charges for which he was convicted.
We would dismiss the appeal.
In light of ground 2, it is necessary to set out the proceedings at trial in some detail.
Proceedings at trial
The indictment in this matter alleged that:
(1)On a date unknown between 1 June 2015 and 12 December 2016 at [a regional town], [the appellant] sexually penetrated [the complainant], a child under the age of 13 years, by penetrating her vagina with his penis.
(2)On another date unknown between 1 June 2015 and 12 December 2016 at [a Perth suburb], [the appellant] indecently dealt with [the complainant], a child under the age of 13 years, by rubbing his penis against her genital area.
(3)On a date unknown between 16 December 2016 and 31 January 2017 at [a Perth suburb], [the appellant] indecently dealt with [the complainant], a child under the age of 13 years, by rubbing his penis against her genital area.
(4)On another date unknown between 16 December 2016 and 31 January 2017 at [a Perth suburb], [the appellant] sexually penetrated [the complainant], a child under the age of 13 years, by penetrating her vagina with his fingers.
(5)On the same date and at the same place as in count (4) [the appellant] indecently dealt with [the complainant], a child under the age of 13 years, by touching her leg with his hand.
(6)On another date unknown between 16 December 2016 and 31 January 2017 at [a Perth suburb], [the appellant] indecently dealt with [the complainant], a child under the age of 13 years, by kissing her mouth.
Complainant's evidence
Given the centrality of her evidence to the case against the appellant, it is necessary to set out the complainant's evidence in detail. In that regard, the complainant's evidence consisted of the May interview, the December interview and her evidence at trial.
May interview
At the time of the May interview, the complainant was 13 years old. The interview was conducted by a man.
Relevantly, the interview commenced:[1]
Q.Thanks for telling me about football. Let's talk about what you're here to talk to me about. Okay? Can you tell me what you're here to talk to me about today?
A.Um, an incident that happened a while ago.
Q.Okay. What can you tell me about this incident a while ago?
A.Um, I was touched in inappropriate parts that I shouldn't have been.
Q.Did this happen one time or more than one time?
A.Uh, more than one time.
[1] BAB 30.
The complainant was asked to start at the beginning and tell the interviewer what happened to her. She said:[2]
[2] BAB 30 ‑ 32.
AUm, my coach, my [gym] coach.
Q.Yeah?
A.He was sitting - he's staying at our house and he was sitting on a spare bed.
Q.Yeah?
A.And I went in to say good morning and he just grabbed me and pulled me onto the bed and pulled my pants down as well as his and stuck his willy in my vagina and as soon as that - he started to pull my pants down and got his willy out, I quickly ran away into my room and bawled my eyes out.
Q.Okay. Tell me about - tell me about the part where you went into his room to say - why - why did you go into his room?
A.Well, he was, um, a good friend of ours, a family friend, and I went in to say good morning.
Q.Yeah.
A.I did with mum and dad and my brother - - -
Q.Sure.
A.- - - just normal and then he just one day just grabbed me and pulled me down.
Q.Tell me all about the part where he grabbed you in as much detail as you can.
A.Uh, he was sitting on the side of the bed and I was standing at ‑ I went up to him and I said, 'Good morning,' and shook his hand and then he grabbed me around here like - I don't know what you call that, sorry.
Q.Your waist?
A.Above my waist, yeah.
Q.Yeah, yeah.
A.Up here and he just like grabbed me and like threw me down. So he's - he's sitting like this and I'm there and he just grabbed me and pulled me down onto his back - onto his belly.
Q.Okay. So - - -
A.And he was laying on his back.
Q.He was laying on his back? And this is on his bed?
A.Yeah.
Q.Okay.
A.On the spare room bed.
Q.What was the very next thing that happened?
A.He grabbed my - up here behind my - my waist, pants, uh, pyjama pants - - -
Q.Yeah.
A.- - - and pulled them down to my ankles and put - held me like that and he pulled his own pants down and then he stuck his willy in my vagina and then - - -
Q.When you say - - -
A.- - - I've realised what was happening and I ran away.
Q.Which way were you facing when he did that, when he stuck his willy in your vagina?
A.Um, I was - my belly was on his belly.
Q.Okay.
A.Yeah.
Q.Okay. Did he say anything?
A.No. After - no, but the second time it's happened - I'll tell you about that later - - -
Q.Okay.
A.- - - he - he said, 'I'm really sorry, [complainant's name]. I've never done this to anyone else. I love you too much.' That's what he said to me the second time it happened.
This incident described by the complainant, which was referred to in the trial by reference to the name of the complainant's home town (and which we will refer to as the 'town incident'), formed the basis of count 1 on the indictment.
When asked when the town incident occurred, the complainant said 'three years ago … four years ago' and added 'a long time ago'.[3] She later said that she was 'nine or 10' at the time and 'would have been in year 4 or 5'.[4]
[3] BAB 34.
[4] BAB 38.
The complainant was then asked about the other time she had referred to:[5]
[5] BAB 38.
Q.Okay. Tell me about the last time this happened to you and tell me everything about it. Start at the very beginning. You can take a break.
A.Yeah. No, but it's - yeah.
Q.All right. Tell me about the last time. Start at the very beginning.
A.Later that year, wintertime, um, the - so this is the second time.
Q.Yeah.
A.It happened in Perth.
Q.Yeah.
A.Uh, we have a unit there.
Q.Yeah.
A.And it was on the couch.
Q.Yeah.
A.Um, I was laying down watching TV with him while mum was in the shower.
Q.All right.
A.Um, this probably has nothing to do with it, but like when he asked me to give him a hug, so I gave him a hug and then he started like - he didn't pull my pants down or do any sort of that stuff like he did the first time, but he started trying to put his ‑ rubbing his willy against me, if that makes sense.
Q.It does make sense.
A.Yeah. And he'd always like - he asks to give me a hug, but every single time I see him, he always asks for a hug and a kiss and I ‑ I just say no to him.
The complainant answered more questions by the interviewer concerning the details of this incident, in the course of which she said that, at the time of the incident, she was wearing her pyjamas: 'a white singlet … with a colourful owl and the patterns on the owl'.[6] This incident described by the complainant, which was referred to in the trial as the 'owl pyjamas incident', formed the basis of count 2 on the indictment.
[6] BAB 43.
In the course of the interviewer's questions about her reaction to the owl pyjamas incident, the complainant said she 'just laid on my bed thinking about what had just happened and what it really was. I did not know what it was at the time until now I realise what it was'. When asked 'what', the complainant answered 'sex'.[7]
[7] BAB 45.
The complainant also referred in the interview to being driven in a car by the appellant. She did not refer to any other incident involving inappropriate touching by the appellant. At the conclusion of the interview, when the complainant was asked whether there was anything else she wanted to tell the interviewer about, she replied 'Uh, no'.[8]
December interview
[8] BAB 54.
The December interview took place on 9 December 2020. The complainant was 14 years of age at the time of the interview (soon to turn 15). The interview was conduct by a woman.
Relevantly, the interview commenced:[9]
[9] BAB 60 ‑ 61.
Q.All right. … Um, let's talk about what you're here for today. So tell me what you've come here to talk to me about today.
A.Um, well, I've already had an interview similar to this, but it's about - - -
Q.Yep.
A.- - - um, adding on to what I haven't already told people, which is about Lorenzo Zagari raping me before.
Q.Okay.
A.Five times already. But I've only told the police two times already.
Q.Okay.
A.So I'm here to talk about the three extra times that he's done it.
Q.Okay. So the three other times.
A.Yep.
Q.All right. So these three other times, tell me about the last time of those times.
A.Okay. So, like, it was obviously five times and they happened all in one year, which would be - - -
Q.Yep ..
A.- - - ah, four years ago now.
Q.Okay.
A.Yep. And, um, it was laying down on the couch - well, I was sitting down on the couch and I went to go get up to go get a drink of water.
Q.Mmhm.
A.And he's like, 'Come back here', and I was like, 'Okay'. So I went over there. And he was like, 'Come give me a hug' and I was like, 'No. Like, no'.
Q.Mm.
A.Cos that's what he always does. He always asks me for hugs and kisses and I said no, and he was like, 'Come here now'.
Q.Mm.
A.So I went over there. And then he, like, put his arms around me and then pulled me on top of him. And then he started to, like, dry hump me and, like, start, like - like, I could feel his, like, areas on top of mine, if that makes sense. Like, his private parts were on top of mine but, like, through clothes, not on bare skin.
In answer to further questions, the complainant said that the location and circumstances of this incident were the same as the owl pyjamas incident, except that she was wearing her black tracksuit pants with a purple jumper 'and they were both Adidas'.[10] This incident was referred to in the trial as the 'purple Adidas jumper incident' and formed the basis of count 3 on the indictment.
[10] BAB 64.
The complainant then went on to describe two other events, which were described in the trial, collectively, as the 'vagina and thigh touching incident'. The complainant described that incident as occurring at the same location as the owl pyjamas incident and the purple Adidas jumper incident, an L‑shaped couch in the Perth unit, and then soon after in the appellant's car. The complainant said:[11]
[11] BAB 65 ‑ 66.
A.Um, so I was, like, just sitting down, and I got up to go to my room again. And then he came. He was like, 'Oi, come here'. And I said, 'No, I'm not doing it again, Lori. Like, I'm sick of this'.
Q.Yep.
A.And then he said, 'No, just one more time. Like, I won't tell anyone and it won't ever happen again'. And I said no. And then he got up and he, like - like, held around me like that, and was, like, pretty much, like - just like holding onto me tightly. And then pulled me back down again and then, like, started pulling down my pants and, like, the same time. And then he was going to pull down his pants, and then I said, 'Lori, just stop it' and, like, started getting really angry and, like, I started crying. And then I said, 'Stop'. And then, like, it - and this time, I, like, got really angry and just, like, full on, like - like palmed him and, like, instead of getting away softly, I, like, full on, like, went like that into his chest with two hands.
Q.Like what, sorry?
A.Like - like that. Like, with my two hands, I pushed it into his chest - - -
Q.Yeah.
A.- - - and, like, got up and got - walked from the room, and just, like, started crying in my room.
Q.Okay. And then what happened after that?
A.Um, we have to go to my gym training, cos he was obviously my [gym] coach. So we went to gym training. And, like, cos normally, he would come past in the mornings and pick me up and take me to gym training. And then cos my mum and my brother - like, I didn't like them watching me at gym training, cos I got too nervous. So they just, like, went and did some shopping.
Q.Mm.
A.And, like, he picked me up and then took me there. And then in his car, he just kept talking about it, and I just - like, just felt so sick and, like - and he started putting his hand on my thigh and just rubbing up and down my leg.
Q.Okay.
A.I just told him to stop and, like, grabbed onto his hand and just, like, chucked it back. Like, grabbed onto his hand and just pushed it away back over to his side, and just told him that this needs to stop. But he obviously didn't listen. He doesn't care.
Describing the incident on the couch a little later in the interview, the complainant said:[12]
[12] BAB 68 ‑ 69.
A.And because he only had one arm around me, that's when I could kind of get out of it, with using my two hands and, like ‑ - -
Q.Okay.
A.- - - pushing him in the chest to get away.
Q.So with him trying to get his pants off, what happened there?
A.That's when I started crying.
Q.Yeah. Did he get his pants off?
A.No. But I could feel them going down and, like - like, just with, like, a little bit, with his - like, I could feel his fist around his waistband, and they just went down, like, a little bit. But I didn't feel anything other than that.
Q.Okay. Um, did anything happen in between him pulling your pants down and before he took his pants down?
A.Ah, yeah. He started playing with my vagina.
Q.Okay. Tell me about that.
A.Um, he started, like, going, like, in. He didn't go up any holes, but, like, you know how you have the two lips of the vagina? He just went, like, a little bit in towards that. And that's when I, like, really started crying and, like, pushed away and quickly got out. And then I pulled my pants up and then walked to my room, crying.
Q.Mm hm. So when you say playing, what do you mean by that?
A.He fingered me.
Q.And when you say, um, he didn't go into any kind of - any holes, he went a little bit into - - -
A.Mm. He, like, started playing with, like, my, like, clitoris area.
The touching on the couch described by the complainant, as part of the vagina and thigh touching incident, formed the basis of count 4 on the indictment and the touching in the car formed the basis of count 5.
The complainant was then asked about the 'fifth time':[13]
[13] BAB 71 ‑ 72.
Q.Okay. Yeah. All right. So - and you said there was one more time.
A.Yeah, the fifth time.
Q.So tell me about that.
A.Um, well, like I said how he used to come before and pick me up from my unit to take me to training. This one time, it was, like, early in the morning.
Q.Mmhm.
A.Um, about 7 o'clock. And he had spare keys to the unit.
Q.Mmhm.
A.Because, like, he had- he used to help out Mum by, like, taking the bins out, cos we didn't live in Perth and he did.
Q.Yep.
A.So that's why he had spare keys. And he was, um - let himself in through the garage, so he put the garage door up. Then he walked through the garage to the door that leads into the house, so that connects the garage and the house together.
Q.Mmhm.
A.He walked through there. But normally, he knocks. And, like, when I hear the knock, it - I know, like, to go to training. But this time, I didn't, cos I was still in bed. And he walked in there and I was, like, facing the wall of where I was, like, laying, sort of thing. And he walks in there and he climbs onto my bed.
Q.Mm.
A.And I was, like, on my phone at the time. And then I turned around to see who it was and it's Lori, so we're now facing towards each other. And then that's when he starts, like, hugging me and trying to kiss me and stuff. But he didn't do any of the other stuff like he has done before. He just - - -
Q.Okay.
A.- - - sort of tried hugging me and, like, trying to kiss me and stuff. And, like, he held the back of my head and pushed it in towards his face and stuff.
Q.Mm hm. And then what happened after that?
A.I just faced the other way, and then he just sort of walked out without saying anything or me having to say anything.
This incident, described in the trial as the 'kissing in the bedroom incident' formed the basis of count 6 on the indictment. The appellant was acquitted of this charge.
At the conclusion of the December interview, the complainant gave the following answers:[14]
[14] BAB 77 ‑ 78.
Q.Okay. Um, and was there any other times that - - -
A.No.
Q.- - - you can remember right now that you want to talk about?
A.Well, not as such times. Like, it was five main times that I've already spoken about, so I don't know if I'm meant to say it again. But like, going in cars with him, or, like, stuff like that, he'd always have to touch me. Or, like, at the clubs or, like, when he used to train me, whenever I'd finished my routine or get off the [gym equipment], he would always be like, 'Give me a hug'. And then, like, when I walk away, he'd, like, smack me on the bum or, like, stuff like that, just little stuff.
Q.Yeah.
A.It just made me so uncomfortable just - yeah. Like, it's nowhere near as bad as those times, but it's still a bit - like, he shouldn't be doing that sort of thing.
Q.Yeah. Okay. Um, all right. Well, if we need to talk about other times you remember, we can always do that again, okay?
A.Yeah.
Q.Did you tell anyone about these three times?
A.Yeah, I did. I spoke to my lawyer - - -
Q.Okay.
A.- - - on Monday. And that's why she said, like, I had to come and do another interview.
In context it is clear that the reference to speaking to 'my lawyer' was a reference to the complainant speaking to a prosecutor from the Office of the Director of Public Prosecutions, Ms Jehna Winter, on 7 December 2020.[15]
[15] It was an agreed fact at trial that the complainant had met with Ms Winter on 7 December 2020 to discuss the trial (Trial ts 301 ‑ 304); BAB 19 ‑ 22.
The complainant said that the first person that she had told about the other times was her 'mum'. She said that 'I only told her legit on Monday when we were driving up there'.[16]
Complainant's evidence at trial
[16] BAB 78 ‑ 79.
The complainant gave evidence at trial over the course of two days.
She gave evidence that the things she said in the May interview were not true, in the sense that the 'things with Mr Zagari happened more than two times'. Otherwise, she said that the incidents she spoke about in the May interview and the December interview were the truth.[17]
[17] Trial ts 134.
In her evidence‑in‑chief, the complainant gave details of the layout of the locations of the incidents and further details of the incidents themselves, including, for example, that at the time of the town incident she could hear the fire going and kitchen utensils being used in the kitchen.[18]
[18] Trial ts 139.
After she gave further evidence about the vagina and thigh touching incident the complainant was asked:[19]
Over the time that you had known Mr Zagari, how often were you in the car with him?---A fair amount.
And of those times you were in the car with him, how often were you alone in the car with him?---Most of the times.
And what were the sorts of reasons that you would be alone in the car with Mr Zagari?---To attend my [gym] training or if it was picking me up from [the town] and driving me to [another regional location] to training, or if it was picking me up from [the town] to drive me to Perth for [gym] training.
[19] Trial ts 155.
The complainant then gave the following evidence:[20]
[20] Trial ts 156 ‑ 157.
And you told the man in the recording [the town incident] was the first time. And then the last time that you spoke about was the kissing in the bedroom incident at the [Perth unit]?---Yes.
So between those two times, when that [town] time happened and then those things happened at the unit in [Perth], how often were you in the car alone with Mr Zagari?---So during the first occurrence of the kiss ‑ in the [the town] house and the last incident of the kissing in the bedroom, are you asking how often between those two times was I in a car with Mr Zagari?
Yes?---Okay. I wouldn't be able to answer exactly how often in a car, but a fair bit because during those two times I was training for [gym] training. So like every weekend or every second weekend between those two times I'd be in a car with Lorenzo Zagari.
Okay. And you said in the interview with the female that he would touch you sometimes in the car?---Yes.
What would he - you said - when you say he would touch you what, what did he do?---So before touching me he would make comments and then he would start to put his fingers down my pants, underneath my underwear, and start playing with my vagina. Or other times it would be just constantly rubbing up and down my leg, getting close to my groin and start rubbing in my groin; as if to say like - - -
Okay?---Yeah.
But you said he would make some comments?---Yep.
What would he say?---So I remember one time coming back from [gym] training in [the town], driving home to drop me off, there was a mistletoe on the side of the road and he used to say, 'Look, [complainant], there's a mistletoe. Let's stop and have a kiss underneath it'. Or other times it would be, 'I'm sorry I've done this to you. I just love you too much'. Or he would say, 'You're such a gorgeous girl', or 'You're a real cutie'. So those are the four comments that I strictly remember of him saying whilst in a car.
Okay. So just in terms of the times that he would touch you - - -?---Yes.
- - - you've spoken about being in the car between those two times, sort of every week or every second weekend?---Yep.
If you were in the car with him five times - - -?---Yep.
- - - how many times out of those five times would he touch you in the way you've talked about?---Five.
So is that every time in the car alone with him?---Yes.
Did you ever do anything to try to get him to stop?---No. I would place my hands either side of my legs on the seat and just try and move a little bit further away. Or when he had to touch my hair and brush my hair behind my ear, I would move my face away. But I never said anything or did very big actions as if to say, 'Stop'.
This evidence was the primary evidence of the uncharged acts the subject of ground 1 of the appeal.
In cross‑examination, the complainant confirmed that she was then 15 years of age. She agreed that her relationship with the appellant and the appellant's relationship with her family were close.[21]
[21] Trial ts 170.
The complainant gave evidence as to the different gym clubs at which she trained, including a club in her home town (town club) and a club in Perth (Perth club).[22]
[22] Trial ts 172 ‑ 173.
In relation to the town incident, the complainant was cross‑examined as to whether it had occurred on a Saturday or a Sunday, having regard to when the appellant travelled to the town for training. The complainant had said in the May interview that the town incident occurred on a Saturday morning and agreed in cross‑examination that the appellant came to the town for training on a Saturday until Sunday. Cross‑examined as to the day of the week, the complainant said 'to be honest with you, I don't exactly remember. I was 10 years old, I don't remember what day it occurred.' She also said that whether the appellant came to the town and stayed on a Friday night or Saturday night varied over the two years.[23] The complainant disagreed that 'in 2015, 2016' the appellant was coaching at the Perth club and only occasionally coming to the town.[24]
[23] Trial ts 177.
[24] Trial ts 179.
In relation to counts 3 to 6 on the indictment (the incidents first referred to by the complainant in the December interview), the complainant was cross‑examined in detail in relation to the time period over which those incidents occurred. The evidence in that regard is somewhat confusing. For example, the complainant agreed that the appellant was not her coach any more after December 2016, but disagreed that he was not taking her to training anymore after that time.[25] This led to cross‑examination as to the complainant training at a third gym club (third club), and whether or not the appellant would have picked her up from that club.
[25] Trial ts 179.
The complainant agreed that all three of the occasions comprising counts 3 to 6 'happened after Christmas 2016', leading to the following cross‑examination:[26]
After you'd stopped training at [the Perth club]?---Yeah.
When you were only training, as you've just said, at [the third club] or in [the town]?---Yeah.
So he wasn't picking you up for an event for any of those, was he? It was for training, you say?---Yeah.
But he wasn't your coach anymore, was he?---No.
He wasn't taking you to training anymore, was he?---Not at that time. But what I'm saying was those - number 3, 4 and 5 occurrences, those times, he was taking me to training because when this occurred I was still under [the Perth club].
Okay. So - well, you agreed with me, didn't you, that you said after Christmas 2016, is that right - - -?---What about after Christmas 2016?
Is - is that when incidents 3, 4, 5 happened?---I can't remember now.
Well, when did they happen, [complainant]?---So they happened at ‑ like they did happen after a Christmas period and into those summer holidays, but I don't remember what year. Like I feel like the year was back. It was - 2016 was afterwards. But I'm - in saying this, 2016, other incidents with Mr Zagari have happened as well.
[26] Trial ts 181 ‑ 182.
As we have said, it is clear from this exchange that there was some confusion in the evidence. While it is not necessarily apparent from the transcript, we note that following a brief adjournment at this point in the cross‑examination, the learned trial judge noted that there was potential for confusion 'because of the rapid‑fire nature of the questioning'.[27]
[27] Trial ts 183.
The cross‑examination continued as to whether the later incidents occurred after Christmas 2015 or Christmas 2016 and whether they occurred before or after the complainant's birthday in the particular year (her birthday being earlier in December). That portion of the cross‑examination concluded as follows:[28]
[28] Trial ts 191.
So all three of those incidences [sic] took place in that period between 25 December 2016 and 31 December 2016. Is that your evidence?---25? Can you please repeat yourself, sorry?
So 25 December, you know that's the date of Christmas?---25th? Sorry, yeah.
That's all right?---Sorry. Yeah.
No, sorry, I've been using 'Christmas Day' and I switched to the calendar date?---Yeah.
Between Christmas Day and New Year's Eve 2016, is that right?---Yeah.
Hadn't you already switched clubs to [the third club] by then?---Yeah.
Okay. So Mr Zagari wasn't taking you to training any more, was he?---I can't remember.
Well, he wasn't coming to the unit to pick you up to take you to training in that period of time, was he?---I can't remember. I can't answer that question.
Well, you said that all of these three incidences [sic] that we're talking about happened when he was picking you up to take you to training, don't you?---Yeah.
The complainant was asked about a friend of hers who had also been coached by the appellant around 2018 and 2019. The complainant agreed that by 2018 she wanted to quit gym training.[29]
[29] Trial ts 195.
The complainant confirmed in cross‑examination that she didn't tell anyone about her allegations (including friends and a sports psychologist) until she told her mother in Easter 2019. She denied that that was because they did not happen.[30]
[30] Trial ts 197.
The cross‑examination returned to the town incident. The complainant agreed that, being the first occasion something sexual had happened with the appellant, it was a significant moment in her life. When it was put to her that 'you can't even remember what year it was', she said 'Yes, I can' and said that it was 2015.[31] She agreed that this would have made her nine years of age, and it was put to her that she had told Ms Winter in December 2020 that she was 10:[32]
So you didn't tell [Jehna], 'I was 10, not nine'?---I don't remember ‑ I might have said that but thinking that - - -
Well, [complainant], what did you say to [Jehna]?---I don't remember what I said to [Jehna]. That was, like, December last year.
All right. But now - now we're sure you were nine, is that right?---Yep.
If I asked you again tomorrow would your answer have changed?---No. I would have said I was nine or 10 but going off the year, when you think about it, if I'm telling my - telling you guys I was in - it was end of term 1, start of term 2, 2015 I would have been nine years old so I would tell you tomorrow I was nine years old.
But you accept you've said previously 10 years old?---Yeah. Well, I obviously said the wrong thing with my age. It's literally one year apart. …
Are you just trying to keep your story straight, [complainant]?---No. I'm telling the truth of what happened. I just physically don't remember the age I was.
[31] Trial ts 200.
[32] Trial ts 200 ‑ 201.
The complainant was cross‑examined as to whether she called out during the town incident and as to why she did not.[33] She was also cross‑examined as to the intimate physical details of the town incident.[34]
[33] Trial ts 206 ‑ 207.
[34] Trial ts 211 ‑ 212.
The cross‑examination in relation to the owl pyjamas incident returned to the issue of the complainant's age (nine or 10) and why her earlier accounts had varied. She said:[35]
Because me at my age, being raped five times, I had got the times of it occurring mixed around. Like, I haven't thought about genuinely when the time was. I've only thought about the actual event happening, not the time scheme of it all.
[35] Trial ts 216.
The complainant agreed that at the time of the owl pyjamas incident her mother and brother were in the Perth unit.[36]
[36] Trial ts 217.
In relation to the May interview, the complainant agreed that it was a 'lie' that she told the interviewer that the town incident and the owl pyjamas incident were the only two times this happened but said that there were no other lies in the interview.[37] She was taken through her discussions with Ms Winter and the prosecutor at trial as to matters either discussed or omitted from those discussion that were put to her as being inconsistent with her evidence.[38]
[37] Trial ts 221.
[38] Trial ts 221 ‑ 226.
The complainant was asked about her failure to tell her mother about the other incidents prior to December 2020:[39]
If this had happened, you would have told her already, wouldn't you?---No.
There's no reason not to tell her, was there?---Yes, there was.
Well, why didn't you tell her?---Because I thought I would get in trouble from the police.
You thought you'd get in trouble from the police?---Yeah. I'm sure if I had of told my mum at that point in time she would have been supportive and there for me, like she had been in the - when I told her about the first two times. But at that point in time I had already been to, like, an interview and stuff like that, so I was scared I was going to get in trouble.
[39] Trial ts 232.
In relation to the evidence of the uncharged acts, that is, the complainant's evidence that the appellant would touch her sexually in the car, the complainant was cross‑examined as to when she first disclosed that conduct. The complainant agreed that she told Ms Winter when she first met her (i.e. on 7 December 2020 prior to the December interview).
The complainant was cross‑examined as to the details that she described to Ms Winter in relation to those incidents. It is apparent that part of that cross‑examination was made by reference to proofing notes prepared by Ms Winter.[40] For example, the complainant was asked:[41]
[40] It was an agreed fact that counsel for the appellant was provided with Ms Winter's proofing notes from 7 December 2020 conference (Trial ts 301; BAB 19).
[41] Trial ts 254.
You said yesterday that if there were five car trips, it would happen five times, is that right?---So if I was to travel in the car five times with Mr Zagari, every one of those five times he would have to touch me, yes, I did.
All right. And you said yesterday - I understand your evidence to be there were lots of car trips, is that right?---Sorry, can you please say that again?
Did you say yesterday that there were lots of car trips?---Yep.
All right. More than five?---Yeah.
All right?---Easy.
Well, did you tell [Jehna] when you spoke to her that if it was five times in the car, it would be three out of five?---No.
Okay. So you deny saying to [Jehna]:
If we drove, most times we drove from [the town] to Perth. If it was five times, it would be three out of five.
?---I don't remember saying that.
It was put to the complainant on a number of occasions that the incidents she described did not occur. She maintained that they had.[42] The cross‑examination concluded as follows:[43]
You made these allegations up because you wanted to quit [gym] without hurting your mum, didn't you?---No.
And every time that you speak to somebody else, you're inventing a little bit more, aren't you, [complainant]?---No, I'm not.
You've made up some new details just today, haven't you?---No.
Because Lorrie Zagari has never touched you in a sexual way, has he?---That's a fat lie.
He's never done any of these things to you, has he?---Yes, he has. He's lying. And so are you.
[42] Trial ts 239, 244.
[43] Trial ts 260.
In re‑examination the complainant was asked as to why she might have got some of the details wrong. She was asked why she was scared of telling the police and said that 'being a young age I didn't know what it was and I thought I might get in trouble for letting someone touch me in the way they did.'[44]
[44] Trial ts 264.
The complainant also spoke of thinking about the things that had happened with the appellant 'a lot' as she got older, that she felt 'sick to the stomach' and 'pretty embarrassed and hurt and sad'.[45]
[45] Trial ts 264.
In relation to the reason for not referring to the other incidents at earlier times she said:
Plainly because I was scared, like I was honestly scared I was going to get hurt by him even more and I'm just scared to walk down the street and he's going to be there and just hurt me and I was scared I'd get in trouble from the police.
And why would you think you would get in trouble from the police?---I thought that they would find somehow some reason to go against me for telling someone that I have been raped or that these things are true and I thought they would think I'm lying and they were just going, 'oh, you're lying,' and tell me off or something for accusing.
Complainant's mother's evidence
The complainant's mother gave evidence.
She gave evidence that the appellant first became the complainant's coach in 2012. She said that they bought the Perth unit to make it easier once they were coming to Perth from the town every second weekend. Her evidence‑in‑chief was that they bought the unit in 2015 in the June/July holidays.[46] She said that the appellant had a set of keys for the unit.[47]
[46] Trial ts 271.
[47] Trial ts 274.
The complainant's mother also gave evidence about the appellant staying at the family home in the town and as to the layout of the Perth unit.
In cross‑examination the complainant's mother confirmed that the appellant had been a good friend of the family until the complainant made her allegations.
She was cross‑examined as to the appellant's practice of staying at the family home in the town, and that it was a 'Saturday night, Sunday morning situation' although she did recall him coming down on a Friday night and training on a Saturday although she 'couldn't tell you how often'.[48]
[48] Trial ts 285.
In relation to her evidence that she had bought the Perth unit in mid‑2015, it was put to the complainant's mother in cross‑examination that it was actually mid‑2014. She said 'it could be' but that she could not actually remember the dates. When shown a contractual document indicating that the unit was purchased in 2014, she accepted that 'it probably was'.[49]
[49] Trial ts 285 ‑ 286.
The complainant's mother was also cross‑examined as to the years in which the complainant was training at the different gym clubs.
Other State evidence
The State also called evidence from Detective Senior Constable James Foster, who produced the complainant's birth certificate and evidence as to her school term dates.
The prosecutor also read onto the record a statement of agreed facts to the effect that certain evidence given by the complainant in the course of her evidence (which she said she had discussed with the trial prosecutor) were not recorded by the prosecutor when he proofed the complainant and that the prosecutor had no memory of the complainant saying those things or anything similar.[50] The particular evidence referred to in the statement was the complainant's evidence:
(a)that she had approached the appellant immediately prior to the purple Adidas jumper incident because she was scared; and
(b)that, when on car journeys from the town to Perth, the appellant referred to mistletoe and to stopping the car and kissing.
Appellant's evidence
[50] Trial ts 301 ‑ 304; BAB 19 ‑ 22. The trial prosecutor interviewed the complainant about the events the subject of the trial on 3 and 4 May 2021.
The appellant elected to give evidence at trial.
The appellant gave evidence that he had trained about 2,000 students, ranging from five years to 60 years of age. He said that he was coaching at the Perth club from 2012 to March or April 2017.
The appellant gave evidence that he became the complainant's main coach at the start of 2015, but that she was coming to Perth for coaching every second week during the school term of 2014. He also gave evidence that he travelled to the town every second weekend during that year and stayed at the complainant's family home (approximately '20 times for the year').[51]
[51] Trial ts 319.
The appellant said that he did not travel regularly to the town in 2015 or 2016, although he said that he did go there for competitions or show displays. On those occasions the complainant's mother would offer their house as a place to stay and most of the time he and others would 'go down and set up the equipment on a Friday night'.[52]
[52] Trial ts 320.
The appellant gave evidence that he was very clear that the complainant's family purchased the Perth unit 'roughly before the end of 2014' and identified a document in relation to the unit signed by him as a witness dated 20 August 2014.[53] This was the document shown to the complainant's mother referred to at [72] above. The appellant gave evidence that he had a key to the unit.
[53] Trial ts 322.
The appellant described his relationship with the complainant as being that of a close family friend and that she would greet him with a 'side hug'. He denied ever touching the complainant in a sexual way and denied all of the specific forms of touching alleged by the complainant.
The appellant agreed that the complainant would drive with him in his car. He was asked:[54]
In general, how frequently would that have been?---It was frequently earlier in the '14, and then picking her up from school on '15, '16 to come for training in Perth sometimes. But after that, '17 onwards, no.
And what kinds of places would you be driving between?---'15, '16, it was really mainly picking her up from school to come to training.
Where was she attending school?---From [the town].
…
Where was training?---'15 was at [a Perth suburb] and most of the time '16 was at [a Perth suburb].
All right. So that was in Perth?---Correct.
[54] Trial ts 327.
The appellant denied saying or doing any of the things in the car alleged by the complainant.
In cross‑examination, the appellant agreed that, in 2014, between the town and Perth, the appellant would see the complainant every weekend.[55]
[55] Trial ts 330.
The appellant agreed that there were occasions that he would be at the Perth unit with the complainant and her family, including occasions on which he and the complainant sat on the couch in the unit. He denied that he had been on the lounge with the complainant out of sight of her mother and brother, although he agreed he could not be sure that there was never an occasion that they were alone at the unit.[56]
[56] Trial ts 332.
The appellant agreed that the car ride from the town to Perth was three hours and that he would often be alone with the complainant on those journeys.[57]
[57] Trial ts 335.
In relation to the town incident, the appellant agreed that there were occasions that the complainant came into his room at the family home 'once I was dressed' but specifically denied the allegations in relation to that incident. He also specifically denied each of the allegations in relation to the other counts on the indictment.[58]
[58] Trial ts 339 ‑ 341.
The appellant said that the complainant was a person who he respected and that she wasn't a 'bratty sort of a kid', although she didn't get on well with other kids.[59]
[59] Trial ts 343.
It was put to the appellant that, as the complainant had not complained after he had started doing sexual things to her, he became more brazen in what he was doing. He again denied that he had ever inappropriately or sexually touched the complainant.[60]
Other evidence called by the appellant
[60] Trial ts 345.
The appellant called three further witnesses as part of his case at trial.
The first witness gave evidence that the appellant had coached his son. The appellant coached the witness' son, on and off, for up to nine years. The appellant commenced training the witness' son at the Perth club.
The witness gave evidence that he knew the complainant as a student at the Perth club. He said that before she started training there, he believed that she trained in the town. The witness understood that the complainant left the Perth club around December 2016.
The witness described the appellant's relationship with the complainant as being like her uncle or grandfather, as she would run up to him and give him a hug. He did not get the impression that the complainant was scared or intimidated by the appellant.[61]
[61] Trial ts 357 - 358.
The second witness was a former student of the appellant (former student). She was 18 years of age when she gave evidence. She met the appellant in February 2017. The former student lived in a regional location and initially trained with the appellant at the town club. She described occasions on which she travelled alone with the appellant in his car.
The former student met the complainant at the same time (February 2017) and described the complainant and the appellant as getting along really well. The former student said that the complainant would greet the appellant with a hug.[62]
[62] Trial ts 363.
The former student said that from the 'end of 2018, the start of 2019' the complainant was saying she wanted to quit gym training. She said that the complainant said that she was too sacred to tell her mum that she wanted to quit.[63]
[63] Trial ts 364.
The final witness called by the appellant was the former student's mother. She gave evidence that the appellant coached her daughter from 2017 to 2019. She described observing the complainant interact with the appellant, that she always gave him a hug and was comfortable with him. The former student's mother also described conversations with the complainant in which she said that the complainant said that she wanted to quit gym and that she wasn't allowed to quit the sport.[64]
Prosecution closing address in relation as to uncharged acts
[64] Trial ts 368 - 369.
Prior to closing addresses the learned trial judge enquired of the prosecutor as to the relevance of the evidence of the uncharged acts. The prosecutor confirmed that the evidence was not relied upon for propensity, but as an explanation as to why the complainant did not complain earlier (because the behaviour was normalised), that it was relevant to the brazenness of the appellant's conduct (as he didn't think the complainant would complain) and relevant to why the complainant may have had difficulty recalling specific events (given their frequency).[65]
[65] Trial ts 370 - 371.
Consistently with this indication, the prosecutor addressed the jury in relation to the evidence of the uncharged acts in the following terms:[66]
[66] Trial ts 7 - 9.
Now, one of the things I spoke to you about at the start of the trial, and you heard evidence from [the complainant] about it, were occasions in the car where Mr Zagari had touched her thigh, or put his hands in her pants and touched her vagina. One of those is the subject of a count on the indictment, that's count 5. The rest are not.
[The complainant] said in her evidence that things like this happened every time she was alone in the car with Mr Zagari, or five times out of five times. He would have to touch her. And she was in the car with him every weekend, or every second weekend. Mr Zagari though denying that he did anything of this kind, he did accept he was in the car with her frequently and alone.
[The complainant] said he would touch her, put his fingers down her pants – her underwear and start playing with her vagina, constantly rubbing down her leg and her groin, and he would say things to her. So you don't need to decide whether those things in the car happened because Mr Zagari is not charged with them. That is though evidence the State says you might find helpful or relevant to what you are considering, because without that detail you'd be looking at what [the complainant] says in a bit of a vacuum.
So by that I mean these car trip – the evidence about these car trips gives colour to the broader circumstances of this case. When you're looking at, for example, she couldn't recall the exact details about certain things, why she would have been confused. Think about your commute or drive to work or from work. Could you really say that you independently remember each of those occasions in the last week or month, or do they sort of meld into one?
So it goes some way to explain why she might not be consistent on some details. And, frankly, if she could give details of that kind, you might be suspicious about that evidence, which is really the point here you might think. You might find in your assessment that her memory of the details is typical of a child talking about things that happened when she was a much younger child.
And that evidence of what happened in the car all these times is also relevant to your assessment of her timing – the timing, of her telling her mum at Easter in 2019. Given these types of sexual things were happening so often during the period in which they were happening, they weren't really out of the ordinary.
She said she didn't really want to get into trouble. She knows these things are happening and thinks, as a child might, that she's going to get in trouble for them. So it's in that context that she did not complain until she reached an age where she had a better appreciation of these things, about who was in the wrong. You might think it's entirely understandable.
It also explains another thing, and that is what Mr Zagari thought. He is doing these things to her all of the time and she's not complaining. You might think that might embolden him. He knows she won't complain because she hasn't, so it continues. If she doesn't complain about these things, then is it really that brazen for him to have dry-humped her on the couch at the unit?
There's no real risk that she's going to sing out, or yell out that this is happening because she hasn't done it to date. She hasn't let anyone know. If mum walks in, well, they're both fully clothed on the couch. All they're doing is having a hug. And that's something you've heard a lot of evidence about now, that they would often hug. So is it that risky? And mum doesn't walk in. [The complainant] doesn't complain.
The time with the owl pyjamas, and the time with the purple jumper – Adidas happened. They go undetected. So he graduates, confident that he hasn't been caught, takes yet another risk. He pulls her pyjama pants down and touches her vagina, puts his fingers in her vagina. Again these are all matters for you, but they are the things that you might find helpful, looking at the overall context, all of the circumstances when you are considering whether or not these things are really that brazen.
Trial judge's directions as to uncharged acts
The learned trial judge's directions in relation to the uncharged acts were as follows:[67]
[67] Trial ts 388 - 390.
Now, apart from the evidence the subject of each charge, as you know [the complainant] gave evidence, this is [the complainant], of other sexual acts or conduct by the accused on other occasions. She said that when she was in the car with Mr Zagari, which was frequently, then he would touch her sometimes in the car.
She said he would make comments and then put his fingers down her pants underneath her underwear and start playing with her vagina. Other times he would rub up and down her leg, getting close to her groin.
She said that he would make some comments including on one occasion saying that they could stop and have a kiss under the mistletoe and on another occasion saying that he was sorry he had done this to her or he loved her too much. The accused has not been charged with any offence arising from any of these incidents. As you know the accused says to you in his evidence that none of these events happened and that he wasn't guilty, he hasn't committed any sexual acts in respect to [the complainant].
It will be up to you to assess the evidence in relation to those charges and the testimony of each of the witnesses. However, the State led this evidence and this is the evidence of those sexual acts which are not the subject of the charges on the indictment for the following reasons. Firstly, the evidence goes to demonstrate, in the submission of the State, the relationship that [the complainant] had with Mr Zagari which is relevant to the context in which the alleged offending the subject of each charge occurred and helps to make her account intelligible.
I am now going to give you some directions about how you can use that evidence. You could only use the evidence from [the complainant] about the other sexual conduct if you find her evidence reliable and believe it to be truthful and accurate. It's a matter for you to decide whether you accept that any one or more of the incidents of that other sexual conduct which is not the subject of the charges occurred.
If you do find her evidence of any of the other sexual conduct to be truthful and accurate, that is a matter to be considered when you are considering her evidence. The evidence of the other sexual conduct is part of the circumstances against which you are to evaluate her evidence. On the other hand, if you don't accept her evidence about the other sexual conduct then it is likely to influence your assessment of her credibility about the events the subject of the charged offences.
You can use the evidence of any incident from the other sexual conduct which you accept, along with all the other evidence which you accept, for the purpose of understanding each of the matters set out by the State, that is, the context in which the alleged offence the subject of each charge occurred and helps to make her account intelligible and why [the complainant] has been unable to recall specific dates and/or other details of each alleged offence and explains why she might not be consistent on some details.
I need to now give you some directions of law about how you cannot use the evidence of the other sexual conduct which is not the subject of the charges if you accept [the complainant]'s evidence about any one or more of the incidents of other sexual conduct. You must not take the evidence of the other sexual conduct into account in deciding whether the State has proved beyond reasonable doubt that Mr Zagari committed any of the offences with which he has been charged in the case.
You cannot use the evidence of the other sexual conduct in substitution for evidence of each incident as charged. You should not reason, if you find that he did any of the other sexual conduct, simply because you make that finding that he did act as described on other occasions that he therefore committed the offences with which he's been charged.
You should also not reason, just because you find, if you do, that the accused did act in a sexual way towards the complainant on other occasions for which he hasn't been charged, that he was the type of person likely to have committed the offences as charged. That would involve a process of reasoning which would be quite wrong because you would be reasoning on your assessment of the character or propensity of the accused rather than on the basis of the relevant evidence.
None of the evidence of the other sexual conduct proves in itself the charges in the indictment. You must not use that evidence to conclude that it made the accused more likely to have committed the offences charged. You must not take the evidence of the uncharged acts into account in deciding whether the State has proved beyond reasonable doubt that the accused has committed any of the specific offences charged in the indictment. You must not reason that acceptance of the uncharged acts makes it more likely that Mr Zagari committed the acts with which he's charged.
We turn then to the grounds of appeal.
Grounds of appeal
The grounds of appeal are admirably concise and read as follows:
1.Having regard to the directions that were given to the jury, a miscarriage of justice was occasioned as a result of the admission at the appellant's trial of evidence of various acts that were alleged to have been committed by the appellant that were of a sexual nature, but which were not the subject of any count on the indictment.
2.The verdicts of guilty were unreasonable and cannot be supported having regard to the evidence.
Ground 1
Ground 1 relates to the evidence of the uncharged acts, namely the evidence given by the complainant that, during journeys in his car, the appellant would 'put his fingers down my pants … and start playing with my vagina [or] just constantly rubbing up and down my leg, getting close to my groin and start rubbing my groin' and her evidence that the appellant made comments about kissing her while in the car.
As will be apparent from the terms of ground 1, the miscarriage of justice alleged by the appellant in relation to the uncharged acts is not that the evidence of the uncharged acts was irrelevant per se, but, rather, that the manner in which the learned trial judge directed that the jury could use that evidence rendered the evidence irrelevant.[68] That was said to be because, the appellant submitted, the learned trial judge[69]
told the jury that the prosecution relied on the evidence of uncharged acts to 'demonstrate … the relationship that [the complainant] had with [the appellant] which is relevant to the context in which the alleged offending the subject of each charge occurred and helps to make her account intelligible.' He instructed the jury that the evidence was 'part of the circumstances against which you are to evaluate her evidence', and that it could be used for the purposes of 'understanding … the context in which the alleged offence the subject of each charge occurred and helps to make her account intelligible and why [the complainant] has been unable to recall specific dates and/or other details of each alleged offence and explains why she might not be consistent on some details.'
[68] Appeal ts 4 ‑ 5, 13 ‑ 14.
[69] Appellant's Submissions [35] (WAB 14).
These purposes, the appellant submitted, limited the uses to which the evidence of the uncharged acts could be put and that those limited uses were, in turn, not probative of any issues at trial (i.e. they were irrelevant).[70]
[70] Appellant's Submissions [36] (WAB 14).
The form in which ground 1 is expressed was, as senior counsel for the appellant agreed, somewhat unusual. Ordinarily, in circumstances in which evidence of uncharged acts is admitted without objection and is, in its terms, relevant to the matters in issue in the trial, a ground of appeal as to the use to which that evidence might be put could be expected to relate to the summing up by the learned trial judge. That is, that the learned trial judge had either failed to identify the uses to which the jury could put the evidence of the uncharged acts or the uses to which the jury could not put that evidence.[71]
[71] See Hill v Western Australia [2019] WASCA 209 (Hill) [15] (Quinlan CJ); [72] ‑ [73] (Buss P & Mazza JA).
In the present case, the appellant accepted that, save for the issue of 'brazenness', the uses identified by the prosecutor in his closing address as uses to which the jury might put the evidence of the uncharged acts, were permissible uses.[72] That is, the appellant accepted that, as it was described by the prosecutor in his closing address, the evidence of the uncharged acts was relevant and admissible.
[72] Appeal ts 5 ‑ 8. In relation to 'brazenness' counsel for the appellant submitted that the prosecutor had disavowed the suggestion that the evidence demonstrated a propensity to act in a brazen way. Counsel nevertheless accepted that 'brazenness' in the sense that the appellant might be prepared commit acts in a manner in which he thinks the child might not do anything in response to the conduct was a permissible use to which the evidence of uncharged acts might be put.
Those permissible uses identified by the prosecutor were:[73]
(a)'it goes some way to explain why [the complainant] might not be consistent on some details' (consistency);
(b)it was 'relevant to your assessment of her timing – the timing, of her telling her mum at Easter in 2019. Given these types of sexual things were happening so often during the period in which they were happening, they weren't really out of the ordinary' (timing of complaint); and
(c)it 'explains another thing, and that is what Mr Zagari thought. He is doing these things to her all of the time and she's not complaining … He knows she won't complain because she hasn't, so it continues. If she doesn't complain about these things, then is it really that brazen for him to have dry-humped her on the couch at the unit?' (brazenness).
[73] See [99] above.
The appellant's complaint was that the learned trial judge's directions to the jury in relation to the evidence of the uncharged acts identified a more limited use of the evidence; being a use that was not probative of the issues in the trial. The direction itself was not criticised by the appellant because 'it might well be said … that the summing up was in favour of the appellant'.[74] We took this submission to be a recognition that, by not referring specifically to the permissible uses relating to consistency, timing of complaint and brazenness, the learned trial judge did not emphasise those permissible uses in the mind of the jury.
[74] Appeal ts 4.
Indeed, the appellant accepted that, if his Honour had, in his directions, said, or is taken to have said, the things that the prosecutor had said in his closing submissions, ground 1 could not succeed.
This is, in our view, a complete answer to ground 1. In our view, read in its full context, it is clear from the learned trial judge's directions that his Honour directed the jury to the effect that the permissible uses to which the evidence of the uncharged acts could be put were the uses that had been identified by the prosecutor in his closing submissions.
In that regard, his Honour's reference to the prosecution relying upon the evidence to 'demonstrate…the relationship that [the complainant] had with [the appellant] which is relevant to the context in which the alleged offending the subject of each charge occurred and helps to make her account intelligible'[75] was clearly, in context, simply part of his Honour's introduction of the issue. That reference was not, and did not purport to be, an instruction or direction to the jury. Indeed, the very next thing that his Honour said was that he was 'now going to give you some directions about how you can use that evidence'.
[75] This is the first passage in the Appellant's Submissions at [35] reproduced at [104] above.
His Honour then went on to instruct the jury and emphasise that it could only use the evidence if it found that it was reliable and believed it to be truthful and accurate.
His Honour then came to the passage relied upon by the appellant as having 'limited' the use to which the evidence could be put. It is as well to repeat that passage, but to include the words replaced by an ellipsis in the appellant's submissions:[76]
You can use the evidence of any incident from the other sexual conduct which you accept, along with all the other evidence which you accept, for the purpose of understanding each of the matters set out by the State, that is, the context in which the alleged offence the subject of each charge occurred and helps to make her account intelligible and why [the complainant] has been unable to recall specific dates and/or other details of each alleged offence and explains why she might not be consistent on some details.
[76] See [100] above. The words in bold are the words replaced by an ellipsis in the Appellant's Submissions at [35] reproduced at [104] above.
In our view , when regard is had to this passage in full, it is clear that his Honour was expressly incorporating, without repeating, the particular uses identified by the State in the prosecutor's address to the jury. The passage appearing after the words 'that is', as that phrase suggests, are a broad description of those permissible uses. That broad description did not, in our view, alter or limit those uses; or otherwise introduce any impermissible path of reasoning into the jury's consideration of the evidence.
In that regard, as the appellant submitted, and as this Court has made clear, the label 'context' can be used to cover a variety of different uses of evidence. For that reason, it is generally insufficient to direct a jury that they may use evidence of uncharged acts as 'context', without identifying the particular use that is permitted in the instant case. Directing the jury as to the particular permissible use is particularly important for avoiding the real risk that the jury might use the evidence for an impermissible use, particularly by way of impermissible 'propensity' reasoning.[77]
[77] Hill [10] ‑ [13] (Quinlan CJ).
In the present case, however, the learned trial judge did not simply instruct the jury that the evidence was evidence of 'context'. His Honour expressly referred to the 'matters set out by the State'. That could only have been a reference to the matters identified in the State's closing address.
His Honour went on to refer to two particular matters.
First, that the evidence of the uncharged acts helped to make the complainant's account 'intelligible'. The appellant submitted that it was difficult to see how the evidence of the uncharged acts made her account of the 'charged acts intelligible'.[78] We disagree. In our view, the evidence of the uncharged acts did assist in make the complainant's account as a whole intelligible, including her failure to have told her mother until April 2019 and the gradual way in which her account of the appellant's alleged conduct emerged. When the complainant spoke of her fear of getting in trouble for example, she referred to the thought that she might get in trouble 'for letting someone touch me in the way they did'. The complainant's evidence that the appellant would regularly touch her sexually in the car without her ever doing anything to stop him, makes her fear (from the perspective of a young child) more intelligible.
[78] Appellant's Submissions [41].
Secondly, his Honour referred to the complainant's inability to recall specific dates or details. That was, as the prosecutor contended in his closing address, a relevant and permissible use of the evidence of uncharged acts. In our view it matters not (as the appellant submitted) that the evidence of the uncharged acts related to activity when the appellant and complainant were in the car together and that only one of the counts on the indictment related to conduct in the car.[79] As the State submitted, it is the nature of the conduct involved in the uncharged acts – inappropriate, indecent, sexual – and its effect on the memory of the child that may serve to explain why a child complainant may have difficulty distinguishing between dates (even years), as the complainant clearly did in the present case.[80] When the specific acts constituting the charges are said to have taken place over a period that included multiple instances of conduct of that nature, that context may serve to explain why, as the prosecutor submitted to the jury 'they sort of meld into one'.
[79] Appellant's Submissions [43].
[80] Respondent's Submissions [39] ‑ [40].
For these reasons, in our view, the learned trial judge's directions as to the permissible uses of the evidence of uncharged acts did not render that evidence inadmissible. No miscarriage of justice was therefore occasioned by the admission of that evidence. If anything, by identifying the permissible uses of the evidence of the uncharged acts in the manner that he did, the learned trial judge's directions worked to the advantage of the appellant by not repeating verbatim those uses with the trial judge's imprimatur.
Furthermore, and indeed more significantly, the learned trial judge gave clear and emphatic directions as to the uses to which the jury must not put that evidence; that is, that it was impermissible to employ propensity reasoning or to conclude that acceptance of that evidence could make it more likely that the appellant committed the charged offences.
As this Court observed in LNN v The State of Western Australia:[81]
Where evidence is admitted for the limited purpose of providing 'context', rather than going towards proof of the prosecution case, and there is a risk that the jury may otherwise apply propensity reasoning to the evidence, then a direction will ordinarily be required to avoid a miscarriage of justice. As Beech JA noted in LNV:
Generally speaking, where evidence is admissible for one purpose but inadmissible for another, the trial judge should direct the jury that they must not use the evidence for the purpose for which it is inadmissible, at least where the use of the evidence for the impermissible or irrelevant purpose would be adverse to the accused. Where evidence is relevant and admissible for other reasons, but incidentally discloses the accused's propensity, a warning to the jury not to engage in propensity reasoning is ordinarily required. That will be all the more so if, as occurred here, evidence that was admissible for other purposes is used by the prosecution to invite propensity reasoning in circumstances where the evidence could not properly be used for such a purpose. (citations omitted)
[81] LNN v The State of Western Australia [2021] WASCA 39 [177] (Buss P, Mitchell & Vaughan JJA), citing LNV v The State of Western Australia [2019] WASCA 180 (LNV) [103] (Beech JA). See also Hill [6] (Quinlan CJ); [69], [73] (Buss P & Mazza JA).
In the present case, unlike in LNV, the State did not invite any propensity reasoning in relation to the evidence of the uncharged acts. Nevertheless, the learned trial judge in any event directed the jury precisely and in some detail not to engage in such reasoning in the manner identified by Beech JA in LNV.
There was, in the circumstances, no risk that the jury would have used the evidence of the uncharged acts for a purpose for which it was inadmissible.
In our view, Ground 1 is without merit. We would refuse leave to appeal on that ground.
Ground 2
Ground 2 contends that the verdicts of guilty were unreasonable and cannot be supported having regard to the evidence.
The principles governing such a ground of appeal are well known. They have been summarised in a number of recent decisions of this Court.[82] Relevantly:[83]
(a)The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
(b) The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(c) That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
(d) In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses.
(e) A doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
(f) If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict.
(g) The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial.
[82] MEN v The State of Western Australia [2020] WASCA 118 (MEN) [403] - [410]; Dayananda v The State of Western Australia [2021] WASCA 11 [43] - [53]; Jago v The State of Western Australia [2022] WASCA 2 [144]; KNZ v The State of Western Australia [2022] WASCA 39 [245]; MSK v The State of Western Australia [2022] WASCA 55.
[83] MEN [403] (Quinlan CJ & Beech JA).
The principles described in (d) to (f) of this summary reflect the functional demarcation between the province of the jury and the province of an appellate court.[84] As the High Court emphasised in Pell v The Queen, the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard in the context of the trial is within the province of the jury as representative of the community.[85] For that reason:[86]
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence … proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
[84] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 (Pell v The Queen) [37] ‑ [38].
[85] Pell v The Queen [37].
[86] Pell v The Queen [39].
More recently, in Dansie v The Queen, the High Court emphasised how consideration of the jury's functions and advantages are to impact on the appellate court's assessment of the evidence (points (d) to (f) in the above summary) by emphasising the 'carefully crafted passage' in M v The Queen:[87]
It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred [on the unreasonable verdict ground]. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by a jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
[87] Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728 [9] (Gageler, Keane, Gordon, Steward & Gleeson JJ) citing M v The Queen (1994) 181 CLR 487, 494 ‑ 495.
We turn then to the inconsistencies, discrepancies and other inadequacies that the appellant submits, in combination, should lead the members of this Court to have a reasonable doubt as to the appellant's guilt.
Inconsistencies, discrepancies and other inadequacies identified by the appellant
The appellant identified a number of inconsistencies in the complainant's evidence.
First, the appellant points to the fact that, in the May interview, the complainant referred to 'two times' that the appellant had sexually or indecently dealt with her and that it was only after she spoke to her mother and a prosecutor in December 2020 that she referred to any other allegations. In her evidence the complainant accepted that it was a 'lie' that there were only two times.[88] This was despite, the appellant submitted, the caring and supportive circumstances of the May interview.[89]
[88] See [59] above.
[89] Appellant's Submissions [58].
Secondly, the appellant referred to the inconsistencies in the complainant's account of the timing of the incidents the subject of counts 3 to 6, including whether they occurred before or after her birthday and her agreement in cross‑examination that they occurred after Christmas 2016 and before 1 January 2017. As to the evidence that they occurred after Christmas 2016, the appellant points to the evidence from both the complainant and her mother that she had stopped training with the appellant at that time and that the third club was shut down at that time in any event.[90]
[90] Appellant's Submissions [59].
Thirdly, the appellant referred to the late disclosure of the complainant's account of the uncharged acts, being December 2020 when she told Ms Winter. He submitted that the complainant was inconsistent as to her account as to how often the appellant would sexually touch her in the car: namely 'five out of five times' in her evidence at trial[91] and 'three out of five times' to Ms Winter.[92]
[91] See [44] above.
[92] Appellant's Submissions [60]; see [62] above.
Fourthly, the appellant referred to a number of inconsistencies between what the complaint said in her evidence and what she had told prosecutors on earlier occasions, including:[93]
(a)that she had told the prosecutor in December 2020 that the town incident had occurred when she was 10 and not nine as she had originally said;
(b)differences as to the number of incidents she clearly recalled (four or five);
(c)whether the complainant told one of the prosecutors that she had walked towards the appellant at the time of the purple Adidas jumper incident because she was scared of the appellant;[94]
(d)whether conduct of the type she described as occurring on the couch as part of the vagina and thigh touching incident also occurred in her bedroom; and
(e)whether the complainant told one of the prosecutors that, while on car journeys from the town to Perth, the appellant referred to mistletoe and to stopping the car and kissing.[95]
[93] Appellant's Submissions [62].
[94] See [75] above.
[95] See [75] above.
In addition to inconsistencies in the complainant's evidence, the appellant identified inadequacies in the evidence, being the absence of an immediate complaint, improbabilities in the complainant's account, the inconsistency of the complainant's subsequent behaviour and the appellant's own evidence denying the allegations.
As to the first of these matters, the appellant submitted that the complainant did not make an immediate complaint, or indeed any complaint until April 2019. He submitted that this was inconsistent with her evidence that she trusted her mother, with whom she had a good relationship and was someone she could talk to.[96]
[96] Appellant's Submissions [63] ‑ [64].
As to improbabilities in the complainant's account, the appellant submitted that the complainant alleged that each of the offences (other than count 5) occurred at the family home in the town or at the Perth unit when the complainant's family members were present. He submitted that this raised the objective improbability of the offences occurring as alleged because of the high risk of detection, particularly in circumstances in which there were other occasions on which such offending could have occurred without any fear of detection.[97]
[97] Appellant's Submissions [65] ‑ [72].
As to the complainant's subsequent behaviour, the appellant submitted that the complainant having resumed being coached by the appellant after 2017, up until 2019, was inconsistent with her allegations.[98]
[98] Appellant's Submissions [73].
Finally, in relation to the appellant's evidence at trial, the appellant submitted that there was nothing implausible about his evidence, and nothing to suggest that there was any rational basis for rejecting it beyond reasonable doubt.[99]
Ground 2 – disposition
[99] Appellant's Submissions [74] ‑ [76].
In accordance with the High Court's decision in Pell v The Queen, we proceed upon the assumption that the evidence of the complainant in the present case was assessed by the jury to be credible and reliable. In light of that assumption, we are not satisfied that the matters relied upon by the appellant in ground 2, either individually or collectively, are such that, notwithstanding that assessment, the jury, acting rationally, ought nonetheless have entertained a reasonable doubt as to proof of the appellant's guilt of the offences for which he was convicted.
We have independently assessed the sufficiency and quality of the evidence before the jury. We are satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of counts 1 to 5 on the indictment, in the sense that none of the inconsistencies, discrepancies or other inadequacies identified by the appellant give rise to a doubt in our minds that is not readily resolved by the jury's advantage in seeing and hearing the evidence. Indeed those matters relied upon by the appellant do not give rise to a reasonable doubt in our own minds as to the appellant's guilt.
The complainant's evidence in relation to the charged incidents of sexual and indecent offending was clear in its essential details. She was, for example, consistent in relation to the location of those incidents (either at the town or the Perth unit), what clothing she was wearing on a number of the occasions, what the appellant said and did and what her reaction was on each occasion. The complainant was resolute in her evidence that the events occurred as she had described them.
The complainant's evidence was consistent with the other evidence as to the layout of her family home and the Perth unit, including as to the room in which the appellant stayed when in the town (count 1) and the location of the couch at the unit (counts 2, 3 and 4). While the appellant submitted that the locations of the charged offending involved a high risk of detection, there is no doubt that the evidence revealed that the appellant regularly attended at each of the locations of the alleged offending, including the appellant's car (in relation to count 5). The appellant's own evidence, in our view, confirmed that he had ample opportunity to commit the offences, in the sense of the opportunity to be alone with the complainant (even with other people present at those locations).
As we have said the appellant submitted that the offences were objectively improbable because of the high risk of detection. It is clear, however, that the complainant's account of the offending described incidents of short duration. Even the town incident, which could be said to have involved the greatest risk of discovery (given that it involved the appellant penetrating the complainant's vagina with his penis when both of their pants were down) was described by the complainant as lasting 'for about, like a split second. Like he just put it in and then I got myself away'.[100] In addition, that incident occurred in a separate room in the family home. All of the other incidents described by the complainant were of short duration, during which the appellant remained clothed. The risk of detection should therefore not be overstated.
[100] Trial ts 213.
In any event, to the extent that the appellant may be regarded as having engaged in risk-taking behaviour, such behaviour is not unknown for offenders who commit offences of this nature, particularly where the complainant does not, when the conduct is first said to have occurred, make any complaint. Indeed, one of the permissible uses of the evidence of the uncharged acts in the present case was that it was capable of explaining why, in the absence of any complaint by the complainant, the appellant was prepared to take further risks.
The same may be said of the failure of the complainant to complain to her mother until April 2019. Not at all surprisingly, the complainant said in the May interview that, at the time, she did not know what was happening and did not know 'what it was at the time'.[101] Confusion or lack of understanding alone are, in our view, entirely reasonable explanations for why the complainant did not tell her mother at the time. As time went on, the complainant described emotions such as fear, particularly fear of getting in trouble, and embarrassment. From the perspective of a nine to thirteen year old girl those explanations are, again, entirely understandable.
[101] See [27] above.
Those feelings of confusion and lack of understanding also easily explain the complainant resuming coaching with the appellant after 2017 and, indeed, the evidence of her friendly greetings and exchanges with the appellant. There is no 'expected' or 'usual' way for the victim of sexual abuse to respond to their abuser, particularly where the abuser is a trusted friend of the complainant's family. It is perfectly reasonable that a child in the complainant's position might have mixed responses to the appellant, depending upon the circumstances, and might not 'appear' to outside observers to have been the subject of abuse.
This brings us to the inconsistencies relating to the number of occasions upon which the complainant said that the appellant had sexually or indecently dealt with her. It is clear that the complainant only referred to two occasions in the May interview, before revealing a series of other incidents in December 2020, first to her mother, then to Ms Winter and then in the December interview.
The incidents revealed in December 2020 included the evidence of the uncharged acts. In that regard it is significant, in our view, that in the December interview, save for the reference to 'going in cars with him … he'd always touch me', the complainant did not go into the detail about those incidents – including 'playing with my vagina' – that she described in her evidence at trial. It is clear, from the cross‑examination, however, that the complainant had indeed provided that detail to Ms Winter, two days earlier, on 7 December 2020.[102]
[102] See [60] ‑ [61] above.
This is significant, in our view, for two reasons.
First, it makes clear that the entirety of the complainant's account emerged in two (rather than more than two) stages: first, in early 2019, with her mother and the May interview and secondly, in December 2020, to her mother, to Ms Winter and in the December interview. It was not the case, therefore, that the complainant's account of the substance of the appellant's sexual and indecent behaviour emerged and underwent a series of changes over time, notwithstanding that she had recounted the events on at least eight occasions.[103] There were effectively two points in time in which the complainant disclosed the entirety of the appellant's conduct.
[103] That is, to her mother in April 2019, the May interview, to her mother in December 2020, to Ms Winter on 7 December 2020, in the December interview, to the trial prosecutors on 3 May 2021, to the trial prosecutors on 4 May 2021 and her evidence at trial (over two days).
Secondly, the disclosure of the uncharged acts to Ms Winter is significant because, notwithstanding the fact that the complainant had provided the detail of the uncharged acts in her interview with Ms Winter on 7 December 2020, she referred to it only in very general terms two days later in the December interview. In the circumstances this added to, rather than detracted from, the cogency of the complainant's evidence. It demonstrates, as might be expected in the case of a child being asked to recount events such as these on multiple occasions that, depending upon the focus of the questions (and the questioner), more or less detail of particular events might be elicited on different occasions.
The complainant's explanation for her account having emerged in two stages was again, in our view, readily understandable and does not give rise to a doubt in our own minds as to the appellant's guilt of either counts 1 and 2 (disclosed in May 2019) or counts 3 to 5 (disclosed in December 2020). It must be remembered that the complainant, at the time of her first disclosure, was still only 13 years old. She said, in effect that she had ruminated on the events and that she felt 'embarrassed and hurt and sad'.[104] Part of her concern, she said, was that she thought she might 'get in trouble for letting someone touch me in the way that they did'.[105] Again, from the perspective of a young girl, who had kept the events to herself for some time, the feelings described by the complainant are readily understandable, even if, from the perspective of an adult there would be no reason for her to have been embarrassed or fearful 'for letting someone else touch her in that way'.
[104] See [65] above.
[105] See [64] above.
Significantly, in that context, it is obvious, in our view, that such feelings would not simply evaporate once a complainant has made her first disclosure, even to a trusted and caring adult. It is readily understandable that, having mustered sufficient courage to disclose that she had been the subject of abuse, a complainant might not reveal everything that had happened to her. The complainant might understandably think that what she had disclosed was enough for the responsible adults in her life to take appropriate action.
Moreover, having not revealed the entirety of the offender's conduct, it would be expected that a child in the complainant's position would be apprehensive about telling persons in authority that there was more to the appellant's conduct. In our view, it was telling in this case that the complainant agreed to the proposition that the failure to disclose the other conduct in the May interview was a 'lie'.[106] An adult faced with such a question would perhaps be expected to respond that it was an 'omission' or even a 'half‑truth'. The complainant's guileless acceptance of the worst possible characterisation of her evidence, in our view, added to the cogency of her account generally.
[106] See [59] above.
We turn then to a significant inconsistency relied upon by the appellant and one which occupied a significant portion of the cross‑examination of the complainant: the complainant's evidence as to the timing of the various incidents forming the charges against the appellant. To this may be added the inconsistencies relied upon by the appellant as to the complainant's age, and the frequency of certain occurrences.
We should note, in this context, that the appellant's submission that there was inconsistency between the complainant's account as to how often the appellant would sexually touch her in the car (namely 'five out of five times' in her evidence at trial and 'three out of five times' to Ms Winter),[107] is incorrect. There was, in fact, no such inconsistency. The complainant did not accept that she had said 'three out of five times' to Ms Winter and there was otherwise no evidence that she had.[108]
[107] See [135] above.
[108] See [62] above.
Nevertheless, there can be no question, in our view, that the complainant's evidence as to the timing of the various incidents (particularly those the subject of counts 3 to 6) appeared both inconsistent and improbable. Indeed, based on the record alone, we would conclude that the complainant's evidence (at least at one point in the cross‑examination) that the events the subject of counts 3 to 6 happened between Christmas and New Year's Eve in 2016 was almost certainly wrong. Likewise her 'dating' of the town incident as being in 2014 or 2015 was inconsistent and, in that sense, unreliable.
None of the complainant's obvious difficulties with the timing of the various incidents, however, gives rise to a reasonable doubt in our minds as to the cogency of her evidence as to the incidents themselves or as to the guilt of the appellant on counts 1 to 5.
We say that for the following reasons.
First, it is clear from the complainant's evidence as a whole that she did not remember which year the incidents involving the appellant had occurred. There were a number of points in her evidence in which the complainant said that she did not remember the year in which particular events occurred.[109] At the same time, the complainant insisted that she was telling the truth as to what has happened to her; she just could not remember 'the age I was' or 'the time scheme of it all'.[110]
[109] See e.g. [50], [52], [55] above.
[110] See [55], [57] above.
There is nothing surprising or unusual about this. Even without accounting for the obvious differences between adults and children in relation to their perception of, and estimates in relation to time, for a person to be mistaken as to the year in which an event occurred – even within the previous decade – is entirely unremarkable. There was a good example of this in the present case in the evidence of the complainant's mother. She gave evidence that their family had purchased the Perth unit in mid‑2015 but readily accepted, by reference to contractual documentation, that it was probably purchased in mid‑2014.[111] This timing error by the complainant's mother was evidently passed over in the trial without comment or apparent concern. Why, it may rhetorically be asked, must (as distinct from might) a reasonable jury attach decisive significance to similar errors on the part of the complainant as to the particular year in which particular events occurred?
[111] See [72] above.
Secondly, in the present case, the complainant was a young child when the events that she described occurred, she was 13 years of age when she first disclosed those events and she was still a child when she gave her evidence. As Ms Cook submitted at the hearing of the appeal, from the complainant's perspective, when she gave her evidence at trial she was 'talking about events that occurred nearly half a lifetime ago'.[112] As the complainant herself said in the May interview, three or four years was, for her, 'a long time ago'.[113] It would be surprising, in our view, if the complainant did purport to accurately identify the month, or even the year, of a number of the events. Again, the evidence of the frequency of the uncharged acts was relevant to explaining why the complainant may have had difficulty distinguishing between dates (even years), as the complainant clearly did in the present case.[114]
[112] Appeal ts 29.
[113] See [24] above.
[114] See [120] above.
Thirdly, while it was obviously the province of the jury to assess the credibility and reliability of the complainant's evidence by reference to the manner in which it was given, the record itself reveals why it is that the complainant may have been confused or inconsistent with the years of the incidents of sexual or indecent dealing, without it impacting upon her evidence as to the occurrence of the incidents themselves. As we have noted above, the record reveals that the learned trial judge noted the potential for confusion arising from the 'rapid‑fire nature of the questioning in cross‑examination'.[115]
[115] See [51] above.
There is another aspect of the cross‑examination that serves to explain some of the inconsistencies in the complainant's evidence. There are points in the cross‑examination in which the complainant appears to be somewhat defiant in her responses to the cross‑examiner, and in which she professes a confidence in her recollection that the circumstances did not seem to warrant. A good example of this was her initial insistence in cross‑examination that the town incident occurred in 2015, which was, at least in part, inconsistent with her account in the May interview.
The context of that exchange, however, is important:[116]
But you can't remember when it was, is that right?---I do remember when it was, like, as in where it was and stuff and but I don't remember the exact time period, like, what day it was and what the weather was.
Well, [complainant], you can't even remember what year it was, can you?---Yes, I can.
What year?--- 2015.
[116] Trial ts 200.
The question 'you can't even remember what year it was, can you?', particularly when asked by an adult of a child, clearly carries with it the implicit proposition that the witness ought to remember what year the particular event occurred and, with that proposition, the suggestion that an inability to identify the year meant that the event did not occur. In our respectful view it is a question that goads the witness into professing a certainty that the witness may not have. Inconsistency wrought by questions of this kind, in our view, does little to undermine the credibility of the account of the events themselves.
The final matter relied upon by the appellant in ground 2 was the appellant's own evidence denying the offending. The appellant submitted that there was nothing implausible about his evidence, and nothing to suggest that there was any rational basis for rejecting it beyond reasonable doubt.
Of course, the jury did not have to accept the appellant's denials in evidence for him to be acquitted. The learned trial judge correctly directed the jury, in accordance with Liberato v The Queen,[117] that even if they had difficulty accepting the appellant's evidence but think that it might be true, they must acquit him. His Honour also directed the jury that even if they rejected the appellant's evidence, it did not follow that they could convict him. The question remained whether the State, on the basis of the evidence that it did accept, had proved the charges beyond reasonable doubt.[118]
[117] Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507.
[118] Trial ts 399.
It is in that context that the appellant's submission that there was 'nothing implausible' about his evidence and 'nothing to suggest that there was any rational basis for rejecting it' must be assessed. In that regard the task of the jury was to reach a conclusion as to whether the charges were proven based upon all of the evidence. Just as a jury must not assess the complainant's evidence in isolation, so it must not assess the accused's evidence in isolation. As with any evidence, the basis for rejecting the appellant's evidence beyond reasonable doubt might not be found in some internal inconsistency or implausibility of the appellant's evidence, but, rather, in the inconsistency with other evidence that is accepted beyond reasonable doubt.
Put another way, if, having assessed all of the evidence, the jury was satisfied beyond reasonable doubt that the events described by the complainant in relation to any of the charges in fact occurred, that state of satisfaction was itself 'a rational basis for rejecting' the appellant's evidence beyond reasonable doubt.
As we have said, there was nothing in the evidence in the present case, and in particular the evidence of the complainant, such that the jury must have entered a reasonable doubt about the appellant's guilt. The inconsistencies, discrepancies and other inadequacies identified by the appellant do not, alone or in combination, give rise to a reasonable doubt in our own minds as to the appellant's guilt. We are not satisfied that there is a significant possibility that an innocent person has been convicted.
Ground 2 required a careful consideration of all of the evidence at trial. In the circumstances, while we would grant leave to appeal on ground 2, the ground is not established.
Conclusion
In light of the foregoing, the appeal must be dismissed. We would make the following orders:
(a)Leave to appeal is refused on ground 1.
(b)Leave to appeal is granted on ground 2.
(c)The appeal is dismissed.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
LH
Principal Associate to the Honourable Chief Justice Quinlan
23 DECEMBER 2022
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