Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sexual offences - Direction on lies - Whether a Zoneff direction called for - Circumstances of aggravation - Whether judge correct in withdrawing from consideration of jury - Mistake - Whether judge erred in directing jury that they may find accused had laid foundation for the belief

Criminal Appeals Act 2004 (WA), s 30(6)

Evidence Act 1906 (WA), 32

Convictions of aggravated sexual penetration without consent on counts 7, 8 and 9 quashed and in lieu thereof convictions of sexual penetration without consent substituted

Sentences of 4 years 8 months' imprisonment on each of counts 7, 8 and 9 set aside and in lieu thereof sentences of 4 years' imprisonment imposed on each count

Orders for accumulation by the sentencing judge set aside and in lieu thereof order that the sentences imposed on counts 2 and 7 be served cumulatively

Sentence on count 3 to be served partly concurrently with sentence on counts 2 and 7, to begin after serving 2 years 10 months on counts 2 and 7

All other sentences to be served concurrently with sentences imposed on counts 2 and 7

Total effective sentence 7 years 6 months' imprisonment

1 STEYTLER P: I have read the judgment of Miller JA. I agree, for the reasons given by him, that ground 3 should be upheld, with the consequences identified by Miller JA. I also agree that grounds 2 and 6 should be dismissed, in the case of ground 6 for the reasons given by Miller JA. I wish to express some short reasons of my own concerning ground 2.

2 The appellant was convicted by a jury of a number of offences. These included sexual assaults on the complainant. By ground 2, the appellant complains of a single direction given by the trial judge in the course of his summing up to the jury. It reads as follows:

Of course, if you found as a fact that [the accused] had not told the truth, then that would be a matter for you to take into account in assessing whether or not you are satisfied beyond reasonable doubt that the accused had committed the offence.

Counsel for the appellant contends that this might have led the jury to conclude that they could reason that, if they found that the appellant had not told the truth, they could take that into account as evidence of the accused's guilt of the offences charged.

3 With due respect, the trial judge's choice of words in giving that direction was unfortunate. However, as Miller JA points out, the passage complained of must be read in context. It appears in that part of the summing up in which the trial judge addressed a defence of honest and reasonable but mistaken belief that had been raised on behalf of the appellant. The appellant's evidence was that the complainant had been the sexual aggressor and that he had believed that she had wanted to have sex with him. His evidence concerning the events which, he said, provided the foundation for his belief was in direct conflict with that of the complainant. If her evidence was accepted, there was no room for a finding of mistake. The prosecutor had urged the jury to reject the appellant's evidence. She said, in this respect:

The State says that you are in a position to reject his evidence, and if you reject his version about that there is no honest and reasonable but mistaken belief of consent. So if you reject his evidence there is no such thing.

4 In the course of addressing the defence of mistake, the trial judge was at pains to explain to the jury that, if they did not believe the appellant, they should 'put his evidence to one side'. The trial judge went on to say that, even if the jury positively disbelieved the appellant, they could not convict him for that reason and that, before they could convict, they were required to be satisfied, on the evidence that they did accept,

that his guilt had been proved beyond reasonable doubt. The passage complained of by ground 2 followed immediately afterwards.

5 In all of these circumstances it seems to me that the jury must have understood, from the passage complained of when considered in its context, only that, if they were satisfied that the appellant had not told the truth, then, in assessing whether or not his guilt had been proved, they would take into account the fact that no reliance could be placed upon his evidence concerning his belief as regards consent. I am reinforced in that conclusion by the fact that very experienced counsel representing the appellant at the trial sought no re-direction in this respect: R v Wright [1999] VSCA 145; [1999] 3 VR 355, 356 (Phillips CJ & Charles JA), 360 (Callaway JA); R v Calides (1983) 34 SASR 355, 359 (Wells J, Legoe & Matheson JJ concurring).

7 PULLIN JA: I agree with Miller JA's reasons in relation to grounds 3 and 6. I agree with the reasons of the President in relation to ground 2. I agree with Miller JA concerning resentencing.

8 MILLER JA: The appellant was charged on an indictment which alleged a total of nine counts. Count 1 was an allegation of deprivation of liberty; count 2, an allegation of unlawful assault occasioning bodily harm in circumstances of aggravation; count 3, an allegation of aggravated sexual penetration; count 4, an allegation of attempted aggravated sexual penetration; and counts 5 to 9 inclusive, counts of aggravated sexual penetration.

9 On the morning of his trial, the appellant pleaded guilty to count 2 on the indictment, but not guilty to all other counts.

10 On 22 January 2007, the appellant was convicted by a jury on counts 1 (deprivation of liberty), count 2 (aggravated assault occasioning bodily harm - his plea having been entered before the jury on arraignment), and counts 3, 5, 7, 8 and 9 (all counts of aggravated sexual penetration).

11 On 21 March 2007, the appellant was sentenced to a total effective sentence of 7 years 6 months' imprisonment, backdated to 3 December 2005. An order was made for eligibility for parole.

12 On 19 October 2007, Wheeler JA granted the appellant leave to appeal from his convictions on three grounds; namely, grounds 2, 3 and 6 of the appellant's grounds of appeal annexed to his Case. Leave to appeal on ground 4 of the grounds of appeal was referred to the court to be heard together with the appeal and leave to appeal was refused on grounds 1 and 5 of the grounds of appeal.

13 At the hearing of the appeal, ground 4 was abandoned, leaving only three grounds for determination by the court, they being grounds 2, 3 and 6. Without particulars, those grounds read as follows:

Ground Two

The Learned Judge erred in law in directing the jury (at p217) that lies had any place in the resolution of the issues before them.

...

Ground Three

The learned Judge erred in law (at page 220) in removing the circumstances of aggravation from the jury as a live issue on counts 7, 8 and 9.

...

Ground Six

The learned Judge erred in law in that the judge's charge to the jury on the defence of mistake had the capacity to lead to a miscarriage of justice.

14 The case was summarised by the trial judge when he came to sentence the appellant on 21 March 2007. The facts revealed that the appellant had met the complainant in 2000 and had developed an intimate relationship with her. Although living separately from the complainant, the appellant was in frequent contact with her until about August 2005. At this time, the complainant told the appellant on a number of occasions that the relationship had finished.

15 The appellant told the complainant that he wanted to have sex with her 'for the last time', but she told him that she was not interested. Over the ensuing three months, there was contact between the appellant and the complainant, but in September 2005 the complainant met and commenced a relationship with another person. That relationship led to intimacy on 30 October 2005.

16 On the morning of 31 October 2005, the appellant arrived unannounced at the complainant's residence. He knocked on the door, but when there was no answer, he went to the back of the house and gained entry. The complainant was inside with her new partner. She told her new partner to leave by the front door and he did so. The appellant followed him and confronted him. The appellant ascertained that there had been intimacy between the man and the complainant on the prior evening. He then returned to the complainant's residence and confronted her.

17 The complainant admitted the new relationship she had formed. She told the appellant that it was none of his business. The appellant, however, said that he wanted to know what was going on and told the complainant that he wanted to speak to her. He suggested that they go to the beach or to a park. The complainant agreed.

18 The complainant's son was dropped off at school and the complainant was taken to the appellant's home. There, the appellant prevailed upon her to enter the residence and invited her into the bedroom. The complainant trusted the appellant and followed him into the bedroom. The appellant closed the door and thus deprived the complainant of her liberty. He then struck the complainant a heavy blow to the area of the eye. This assault was the subject of count 2 on the indictment. It was a severe assault in which a number of blows were struck to the complainant's face and to her hands when she endeavoured to protect her face.

19 The complainant testified that she felt knuckles when she was struck by the appellant. The appellant contended in evidence that he had only struck the complainant with an open hand. The trial judge concluded that the injuries suggested greater force than would have been caused by an open hand. He considered that the injuries confirmed a severe beating of the complainant. He accepted the complainant's testimony that she was struck heavily with a closed fist on at least four or five occasions.

20 The appellant shouted at and abused the complainant in an aggressive and angry manner. He told her that he wanted to 'fuck her'. Despite her physical injuries, which included a bloodied face, and despite her protestations that she did not want to engage in sex, the appellant demanded that she remove her clothing. He assisted her to do so. The appellant then put a mattress on the floor in the bedroom, removed his clothing and sexually penetrated the complainant while she was on her back and he was on top of her. He then told her to turn over so that she was on her hands and knees. He penetrated her vagina with his penis from behind. These incidents constituted counts 3 and 5 on the indictment.

21 Following the sexual acts, the complainant went to the shower. The appellant brought her a cup of tea. He then demanded that she again lie on the mattress, as he wanted to have further sexual intercourse with her. The complainant was in fear of the appellant and did as he demanded. She lay on her back and the appellant again penetrated her with his penis. He again demanded that she turn over onto her hands and knees, and he again penetrated her with his penis from behind. He told her to lie on her back again and he then penetrated her for a third time with his penis until ejaculation. These incidents were the subject of counts 7, 8 and 9 on the indictment.

22 The complainant then passed out, or slept. It was uncertain which it was. When she awoke, she was in pain. She sought medical attention and was taken by the appellant to the emergency department of Fremantle Hospital. She arrived there at about 1 pm and remained for a period of some four hours. She was observed to have extensive facial bruising to the left jaw and right eye, together with other injuries, which a doctor concluded were due to repeated blunt force to her body.

23 The appellant was interviewed on 2 November 2005. In a video record of interview, he admitted that he had struck the complainant and admitted having sexual intercourse with her. He said that it was consensual sexual intercourse.

24 At trial, the appellant testified that he had not detained the complainant in any way, but he admitted that he had struck blows to the complainant with an open hand, following which they had both fallen to the floor. He said that they then hugged each other and cried, and sought forgiveness of each other. After an hour or so, sexual activity had been initiated. He said his understanding was that the complainant wanted to make love to him. He said that, after sexual intercourse, the complainant had a shower. He brought her headache tablets and an icepack for her swollen face and they lay down together. They slept and, when the appellant awoke, he asked the complainant for further sex, but she refused and desisted.

25 As the trial judge pointed out, the jury clearly rejected the appellant's version of events and, in particular, rejected his assertions that sexual intercourse with the complainant was consensual.

26 This ground contends that the trial judge erred in his direction to the jury on the subject of 'lies'. The particular direction complained of is in the following terms:

Of course, if you found as a fact that he had not told the truth, then that would be a matter for you to take into account in assessing whether or not you are satisfied beyond reasonable doubt that the accused had committed the offence.

27 This direction needs to be read in the context of what went before it. The passage in its full context is as follows:

Now, as you appreciate, there is a conflict between the evidence of the accused and of [the complainant]. You should appreciate your decision involves more than simply deciding whether you believe her or whether you believe him.

There are, in fact, three options: first, if you believe the evidence of the accused man, then obviously you must acquit him, full stop, say no more. Second, if you find difficulty in accepting the evidence of the accused man but think it might be true, then, again, you must acquit. Remember, he's entitled to be given the benefit of any reasonable doubt that you may have.

Thirdly, if you do not believe the accused man, then you should put his evidence to one side. The question then remains, has the state upon the evidence that you do accept proved the guilt of the accused beyond reasonable doubt. Even if you positively disbelieve the accused, you still can't convict him just for that reason. You have to be satisfied on the whole of the evidence, satisfied beyond reasonable doubt that he did commit an offence alleged.

Of course, if you found as a fact that he had not told the truth, then that would be a matter for you to take into account in assessing whether or not you are satisfied beyond reasonable doubt that the accused had committed the offence.

28 The directions of the trial judge as to the options open to the jury incorporated what has come to be known as a Liberato direction. This is a reference to what Brennan J said in Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507, where his Honour said:

When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. (515)

29 In Azarian v The State of Western Australia [2007] WASCA 249, Pullin JA explained the purpose of the Liberato direction:

The Liberato direction is designed to prevent the jury falling into error by jumping to the conclusion that the charge has been proved if they do not believe an accused when there is a contest between an accused and a prosecution witness. The direction informs the jury that the task of deciding which witness they will believe is separate from the task of deciding whether or not all of the elements of the charge have been proved beyond reasonable doubt. [11]

30 A Liberato direction is not required as a matter of law in every case of 'oath against oath' (see Azarian per Miller JA at [110]), but in cases in which there is a substantial or significant conflict between the evidence of defence and prosecution witnesses, a trial judge must make plain to the jury that if they do not believe the defence evidence and prefer that given by the prosecution witnesses, they should still not convict unless persuaded of guilt beyond reasonable doubt by the evidence they do accept (Leyshon v The State of Western Australia [2006] WASCA 132 [13] (Steytler P).

31 The trial judge complied in every respect with the requirement to impress upon the jury that, it being an 'oath against oath' case, they should not convict unless satisfied beyond reasonable doubt of the truth of the prosecution evidence and, even if they did not positively believe the appellant's evidence, they could not find an issue against him contrary to that evidence if it gave rise to a reasonable doubt on the issue. As senior counsel for the appellant conceded at the hearing of this appeal, everything that the trial judge said by way of preface to the passage objected to was a 'textbook' direction.

32 The only question is whether the trial judge erred in directing the jury that if they found as a fact that the appellant had not told the truth, they could take this matter into account in assessing whether or not they were satisfied beyond reasonable doubt that he had committed the offences.

33 I would not categorise the trial judge's direction as a 'lies direction', as the appellant has done. The word 'lies' was not used and no attempt was made to give what is known as a 'Zoneff' direction.

34 The model direction to be given in a case in which the prosecution relies upon lies told by the accused as going only towards credibility and not toward consciousness of guilt was set out by the High Court in Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234 in the following terms:

You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies, and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case, but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt. [23]

35 The appellant's counsel complains that the passage objected to effectively told the jury that they could follow a process of reasoning that if they found as a fact that the appellant had not told the truth, they could take that into account as evidence of guilt.

36 However, this is not what the trial judge said. What he told the jury was that if they found as a fact that the appellant had not told the truth, they could take that matter into account in assessing (my emphasis) whether or not they were satisfied beyond reasonable doubt that he had committed the offences. What the trial judge clearly meant was that if the jury found that the appellant had not told the truth, it was a matter for the assessment of his credibility. These words were not used, but the clear import of the passage is to that effect. It would have been preferable if the trial judge had not used the words 'in assessing whether or not you are satisfied beyond reasonable doubt that the accused had committed the offence' and had instead said, 'in assessing the overall credibility of the accused' or 'in assessing the totality of the evidence'.

37 However, when read with the preceding passages that I have quoted, it can readily be seen that the trial judge was at pains to direct the jury that, even if they positively disbelieved the accused, they could not convict him just for that reason. They had still to be satisfied on the whole of the evidence to the level of satisfaction beyond reasonable doubt that he did commit the offences alleged. These words were used immediately before the passage complained of, and on no view of it could the jury have been misled into thinking that if they disbelieved the accused, that was a matter which would entitle them to conclude beyond reasonable doubt that he was guilty of the offences concerned.

38 At no time did the prosecution rely upon lies as evidencing consciousness of guilt. At the hearing of the appeal, we were supplied with transcript of the prosecutor's address to the jury. The prosecutor did make reference to inconsistencies in versions of events which had been given by the appellant, but submitted:

I would suggest, members of the jury, that the accused man's versions on the significant matters in this trial are so inconsistent that you would reject them and reject what the has to say about this. You don't even known when and where he's telling the truth.

These submissions meant no more than that the appellant's evidence could not be accepted. The trial judge's direction to the jury that, even if they positively disbelieved the accused, they still could not convict him for that reason alone, but had to be satisfied on the whole of the evidence beyond reasonable doubt that he had committed the offences alleged before verdicts of guilty could be entered sufficiently explained the prosecutor's submissions.

39 It follows that, in my opinion, the passage complained of was not a direction that lies 'had any place in the resolution of issues' before the jury, but was a statement that, in assessing the evidence generally, the jury was entitled to take account of the fact that the appellant may not have told the truth. When read with what immediately preceded it, the passage is unobjectionable. As I have said, it would have been preferable to have made no reference in this context to whether or not the appellant had committed the offences, but the passage cannot be read in isolation to that effect.

40 The jury could not have taken from the judge's direction anything to suggest that a conclusion that the appellant had been untruthful would go to the determination of the ultimate issue; namely, whether or not they were satisfied beyond reasonable doubt that he had committed the offences. What they had been told was that, even if they positively disbelieved the accused, they could not convict him for that reason alone.

42 It is convenient to deal with this ground before examining ground 3. This ground contends that the trial judge erred in directing the jury on the issue of mistake. Again, a passage in the trial judge's directions has been singled out for criticism. It is the following:

All an accused person need do is to lay the foundation for such a belief which, of course, you may find he has done in this case. If the accused honestly and reasonably but mistakenly believed that she consented to an act of sexual penetration, then he will not be criminally responsible for his acts in penetrating her.

The burden lies on the state to satisfy you beyond reasonable doubt that the accused did not honestly and reasonably hold the belief in question.

43 This passage needs to be read in the context of the trial judge's directions on mistake. Having concluded that it would be appropriate to put the defence of honest and reasonable but mistaken belief, the trial judge directed the jury in the following way:

So, firstly, the state must prove beyond reasonable doubt that [the complainant] did not consent to sex. If you are satisfied beyond reasonable doubt, then the next issue which you have to consider is whether or not the accused may have honestly and reasonably but mistakenly believed that she was consenting to an act of sexual penetration.

Again, our Criminal Code provides that if an accused person honestly and reasonably but mistakenly believes that in these circumstances [the complainant] was consenting to an act of sexual penetration, then he would not be criminally responsible for his act in penetrating her. As I said earlier, it applies here that there's no onus on the accused to prove that he did have an honest and reasonable but mistaken belief that [the complainant] was a consenting party.

As I have told you, there is never any onus on an accused person to prove anything in a criminal trial. All an accused person need do is to lay the foundation for such a belief which, of course, you may find he has done in this case. If the accused honestly and reasonably but mistakenly believed that she consented to an act of sexual penetration, then he will not be criminally responsible for his acts in penetrating her.

The burden lies on the state to satisfy you beyond reasonable doubt that the accused did not honestly and reasonably hold the belief in question.

It is within this extended direction that the passage objected to appears. The complaint is that the trial judge told the jury that they had the responsibility of concluding whether or not the appellant had laid the foundation for an honest and reasonable but mistaken belief.

44 The appellant rightly submits that the trial judge has the responsibility to determine whether or not a specific defence should be left to the jury (Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312, 334 (a case dealing with provocation)), but in this case, the trial judge had made that determination. In the course of argument prior to his summing up to the jury, the trial judge made it clear that he would consider the question of honest and reasonable but mistaken belief. He did and decided that it was a defence which was available to the appellant.

45 In my opinion, the passage 'all an accused person need do is to lay the foundation for such a belief which, of course, you may find he has done in this case' means no more than it was open to the jury to consider the defence of honest and reasonable but mistaken belief, understanding at all times that it was for the prosecution to satisfy the jury beyond reasonable doubt that the accused did not hold an honest and reasonable but mistaken belief and not for the accused to prove that he did have such a belief.

46 Use of the words 'lay the foundation' was unfortunate and unnecessary, but it is unlikely that any juror could have understood what the trial judge was saying when talking about 'lay[ing] the foundation'. What was said must be understood in the context of the very strong direction that there was no onus upon the appellant to prove that he had an honest and reasonable but mistaken belief that the complainant was a consenting party, but an onus firmly placed upon the prosecution to satisfy the jury beyond reasonable doubt that he did not hold such an honest and reasonable but mistaken belief. The trial judge said that. If it were otherwise, the appellant was entitled to the benefit of that defence and was entitled to be acquitted.

47 This ground illustrates the danger of adopting the 'fine tooth comb' approach to a trial judge's directions to the jury. I made reference to this in Hoy v The Queen [2002] WASCA 275:

Counsel for the appellants have clearly gone through the learned trial Judge's charge to the jury with a fine tooth comb and raised every conceivable objection to the content of that charge. This approach has been consistently criticised and condemned in courts of appeal. In R v Beaver (1979) 1 A Crim R 50 (at 53) Demack J referred to a line of Queensland cases to this effect:

'The appeal against conviction contains nine specific grounds which attack the summing up. Four of these grounds involve the use of the figurative magnifying glass. Members of this Court have repeatedly condemned this process, see Deen [1964] QdR 569 at pp 572, 584; Shearsmith [1967] QdR 576 at pp 583-584, 590-591; Ives [1973] QdR 128 at pp 134-135; and also the unreported decision of Watkins (unreported, CA No 84 of 1978). It is necessary to keep in mind the principle referred to in Ives at p 133 where the following quotation from a judgment of the Court of Criminal Appeal in Stoddart (1909) 2 Cr App R 217 at p 246 appears:

"This Court does not sit to consider whether this or that phrase was the best that might have been chosen, or whether a direction which has been attacked might have been fuller or more conveniently expressed, or whether other topics which might have been dealt with on other occasions should be introduced. This Court sits here to administer justice and to deal with valid objections to matters which may have led to a miscarriage of justice. Its work would become well-nigh impossible if it is to be supposed that, regardless of their real merits or of their effect upon the result, objections are to be raised and argued at great length which were never suggested at the trial and which are only the result of criticism directed to discover some possible ground for argument."'

48 I do not mean any criticism of senior counsel for the appellant in the way in which the present case has been argued, but the observations in R v Beaver (1979) 1 A Crim R 50 are pertinent to appeals in which single passages of directions are taken and relied upon as indicating error on the part of the trial judge. I would dismiss ground 6.

49 This ground contends that the trial judge erred in removing from the jury as a live issue the circumstances of aggravation which were alleged in counts 7, 8 and 9 on the indictment.

50 Each of counts 7, 8 and 9 alleged sexual penetration without consent in circumstances of aggravation. Count 7 is a sufficient example of how the counts were pleaded:

(7) On 31 October 2005 at Beaconsfield Santiago Alvarez-Pizalla sexually penetrated [the complainant], without her consent, by inserting his penis into her vagina.

And that Santiago Alvarez-Pizalla did bodily harm to [the complainant].

51 Under s 326 of the Criminal Code, a person who sexually penetrates another person without the consent of that person in circumstances of aggravation is guilty of a crime and liable to imprisonment for 20 years. Sexual penetration without consent (without circumstances of aggravation) is a crime which is punishable by imprisonment for 14 years (s 325 Criminal Code).

52 The trial judge directed the jury as to how verdicts would be taken and paid particular attention to counts 3 to 9, which alleged circumstances of aggravation. His Honour said:

As I have said to you, you can accept that at the time of, immediately before or immediately after, [the complainant] did suffer bodily harm. If this were a case where there might be some doubt about that, then I would put to you an alternative if you weren't satisfied beyond reasonable doubt to the charge as charged, that is, with 'did bodily harm'. I would put to you the alternative, which is simply sexual penetration without consent, that is, without the circumstance of aggravation, and then we would ask your verdict, 'Guilty as to that or not guilty?'

In the circumstances, as I will explain to you, in this trial it's your decision but I would suggest that you can accept that the circumstances of aggravation have been proved, that is, that [the complainant] did suffer bodily harm at the time of, during, immediately before or immediately after. Of course the prosecution can't say which injury happened as a consequence of which blow or blows. It's a matter for you, ladies and gentlemen, as to how many blows might have been inflicted.

On the complainant's evidence, the first one to the eye and then subsequent blows; three or four, I think she may have said. The accused said he might have struck her four or five times. The accused says that he struck her with the open hand. The complainant, in her evidence, said that when she was struck in the eye she felt knuckles. Again, it's a matter for you, ladies and gentlemen. You have to resolve those issues.

Anyway, getting back to the verdicts on the charge. In the circumstances of this case I won't be putting to you the alternative without the circumstance of aggravation.

53 The appellant's case on appeal is that the circumstances of aggravation relied upon by the prosecution in counts 3, 5 and 6 left it open to the jury to convict of aggravated sexual penetration, but not so in relation to counts 7, 8 and 9. It is argued that there the 'situation was not so clear' because these counts were alleged to have arisen some time after the initial events with 'the hiatus being punctuated by the complainant having a shower and a cup of tea'. It contended that it is not known with certainty how long that hiatus might have been, but it is said that it led to a situation which removed the subsequent events from being 'immediate' within the meaning of s 319 of the Criminal Code'.

54 Circumstances of aggravation for the purpose of s 326 of the Criminal Code are defined in s 319. Relevantly, those circumstances include circumstances in which 'at or immediately before or immediately after the commission of the offence' the offender does bodily harm to any person.

55 There was an issue in this case whether 'immediately before' the commission of the offences alleged in counts 7, 8 and 9 on the indictment the appellant was guilty of doing bodily harm to the complainant. The complainant gave evidence that, when she went for a shower in the en suite, the shower lasted for about 15 minutes. When she came out of the shower, she went searching for her clothes and as she was putting on her jeans, the appellant told her that he wanted to 'fuck her again' and demanded that she lie down.

56 A live question thus arose on the evidence of the complainant alone whether bodily harm that she had suffered at the hands of the appellant prior to her going into the shower could be said to have been bodily harm which occurred 'immediately before' the commission of the offences the subject of counts 7, 8 and 9 on the indictment.

57 The question was also raised by the appellant's own evidence. His evidence was that there had been violence in which he struck the complainant, but that this was followed with hugging and seeking forgiveness, which went on for about an hour before sexual activity was initiated. After this, the complainant had a shower and they had both lay down together and slept. When they awoke, the appellant asked for further sex, but when the complainant said 'no', he desisted.

58 An issue clearly arose, perhaps in relation to all counts, but certainly in relation to counts 7, 8 and 9, whether bodily harm had been sustained by the complainant at or immediately before the commission of the offences alleged.

59 The appellant contends only in relation to counts 7, 8 and 9 that this arises as a live issue and it is only therefore necessary to deal with those three counts.

60 Counsel for the appellant raised no objection to the direction given by the trial judge. This was surprising, because, on any view of it, the question whether the bodily harm sustained by the complainant was suffered at or immediately before the commission of all offences was an issue in the trial.

61 In A Child v Andrews (1994) 12 WAR 552, Steytler P, at 7 - 14, reviewed a number of cases which had prior to that time dealt with the inadvertence of counsel to object to inadmissible evidence. This is a different point from that in issue here, but the principles apply equally to failure to object to the contents of a summing up. Steytler P said:

[T]here is now a substantial body of authority to support the proposition at least that, in a case of genuine inadvertence, counsel's failure to object will not, of itself, necessarily be a bar to the raising of the fact of the admission of inadmissible evidence as a ground of appeal. (I should, perhaps, also mention, in this respect, Crudgington v Cooney [1902] St R Qd 176 and Cahalane v Hop Kee [1925] St R Qd 73, both of which cases involved appeals from decisions given by Magistrates.)

Each such case will, as was said by Pring J in R v Branscombe (supra) depend upon its own circumstances albeit the court will always be careful in allowing an appeal on the ground of reception of inadmissible evidence when no objection has been made by counsel at trial. (14)

62 In R v Wright [1999] VSCA 145; [1999] 3 VR 355 at 356, Phillips CJ and Charles JA dealt specifically with failure to take objection to something said or not said in a summing up. They said:

This case emphasises the importance of a failure to take exception at trial to a supposed error in the judge's charge. The new ground of appeal sought to be added by Mr Salek (who was not counsel at the trial) raised a question in relation to the definition of gross negligence which could certainly not have been discarded as insignificant. The failure to take exception, however, quite apart from the force of the reasons given by Callaway JA for rejecting counsel's proposed submissions, would almost necessarily be taken by a court of criminal appeal as an indicator that counsel present saw no injustice or error in what was done, as the cases cited by his Honour show. It is time to affirm with emphasis that it is the obligation of counsel at the trial (for the prosecution as well as the defence) to take objection to matters which are prejudicial to the fair trial of the accused and that the failure to take exception presents a serious obstacle to the raising of such matters on appeal.

The cases on failure to take exception are legion. As Brooking J.A. observed in R v Gallagher at 681, they are usually concerned with failure to take exception to the charge but the principle is of more general application. His Honour referred to the following passage in the judgment of Yeldham J in R v Tripodina and Morabito (1988) 35 A. Crim. R. 183 at 191:

... it is the duty of counsel appearing at the trial to take objection to matters which, in their view, are irregular, or which might be unduly prejudicial to their client, and in particular to raise, in relation to the summing up, any matters which the trial judge may have overlooked or which, in their view, he has put erroneously. This will afford the judge an opportunity ... of considering the propriety of the steps which he has proposed should be taken and of deciding whether or not, in relation to his summing up, there are matters which he should amend or retract, or additional matters which he should put. ... Although it is true ... that in a criminal trial the judge must be astute to secure for the accused a fair trial according to law, none the less, as has been pointed out on many occasions and over a great many years, the fact that no objection is taken to a procedural step adopted by the trial judge, or to matters put or omitted by him in his summing up, is cogent evidence indeed, in most cases, that counsel absorbed in the atmosphere of the trial saw no injustice or error in what was done.

So, too, in R v Calides (1983) 34 S.A.S.R. 355 at 359 Wells J. said:

It was pointed out to us that no objection was taken by either counsel to the learned trial Judge's summing up. Let me say [at] once that I always attribute great weight to the reaction of counsel at a trial. It is very much their task to monitor the summing up as it progresses, to make notes of matters to which they would wish to invite the learned trial Judge's attention, and to be careful to bring forward anything that might possibly lead to a mistrial. The reason why it is important that they should do this is that if they are left with the impression that the summing up was fair and reasonable and properly balanced, then there is so much the less reason to suppose that there has been a miscarriage of justice, and if the matters hang nicely in the balance, such an attitude by counsel could well be decisive. It is particularly useful and critical where the appeal is concerned with the discussion of evidence, with inferences, with the presentation of the defence, with all matters of debate with which a jury is closely concerned, and which show themselves, by the general course of the trial and the structure of the issues developed at it.

64 The appellant faces an obstacle in this appeal by reason of failure by his counsel to object to the trial judge's directions on the issue of circumstances of aggravation. However, there would, in my opinion, be a miscarriage of justice if the matter was resolved solely on the basis that counsel's failure to take the point at the conclusion of the summing up disqualified the appellant from now raising it. In my opinion, the trial judge was wrong to take away from the jury the question of the circumstances of aggravation in relation to at least to counts 7, 8 and 9 on the indictment. Circumstances of aggravation are always a matter for the jury unless the subject of a formal admission under s 32 of the Evidence Act 1906 (WA).

65 Even if, in the course of the trial, counsel for the accused said that it appeared open and shut that the circumstances of aggravation had been made out, the jury would still be called upon to return a verdict in relation to the circumstances of aggravation. There may be a difference of opinion as to how a verdict should be taken in those circumstances (see Caporn v The State of Western Australia [No 2] [2008] WASCA 26 [13] (Pullin JA), [41] (Miller JA), [136] - [139] (Beech AJA)), but however the verdicts are taken, the jury must reach a verdict on the substantive offence and the circumstances of aggravation. The circumstances of aggravation cannot be presumed, as the trial judge concluded in this case.

66 It follows, in my view, that the trial judge erred in removing from the jury the question of proof of the circumstances of aggravation alleged in relation to each of counts 7, 8 and 9.

67 Counsel for the appellant concedes that, in the circumstances of the case, the appellant had to be convicted of at least sexual penetration without consent under s 325 of the Criminal Code. He requests that the court substitute for the verdicts in relation to counts 7, 8 and 9 verdicts of conviction in relation to offences of sexual penetration without consent. That would then affect the maximum sentence applicable to the appellant in each case.

68 Counsel for the respondent also concedes that if the court concludes that the trial judge erred in his direction to the jury on the issue of circumstances of aggravation, it would be open to the court to substitute verdicts of guilty of sexual penetration without consent on counts 7, 8 and 9.

69 Counsel for the appellant specifically requested that if the court took this course, it resentence the appellant on counts 7, 8 and 9 and not refer the matter back to the trial judge for resentencing. The power to do this is contained within s 30(6) of the Criminal Appeals Act 2004 (WA).

70 In the circumstances of the case, I would allow the appeal on ground 3, set aside the convictions for aggravated sexual penetration on counts 7, 8 and 9 and substitute in lieu verdicts of guilty of sexual penetration without consent within the meaning of s 325 of the Criminal Code. This would necessitate resentencing of the appellant on counts 7, 8 and 9. In my opinion, the proper sentence on those counts would be 4 years' imprisonment in each case. Without the circumstance of aggravation, the offences were sexual penetration for which commonly a sentence of about 4 years would be appropriate after application of the Sentencing Legislation Amendment and Repeal Act 2003 (WA). See R v Clark [2000] WASCA 229 [11] (Wheeler JA) (a 'pre-transitional' case).

71 I would order that the sentence in relation to count 2 (1 year 10 months) and the sentence in relation to count 7 (4 years) should be served cumulatively to give an effective sentence of 5 years 10 months' imprisonment. The sentence should be backdated to commence 3 December 2005. The sentence on count 3 (4 years 8 months) should be served partly concurrently, to begin after the appellant has served 2 years 10 months on counts 2 and 7. This would give an effective sentence of 7 years 6 months, which was the sentence imposed by the trial judge. All other sentences should be served concurrently with the sentences imposed on counts 2 and 7. The same orders should be made in relation to eligibility for parole.