Criminal Law - Indecent dealing - Sexual penetration - Child under the age of 13 years - Whether there was a miscarriage of justice by reason of the failure by the appellant's trial counsel to properly cross-examine the complainant - Whether the trial judge erred by failing to give a Longman direction - Whether a special warning was required to avoid a perceptible risk of a miscarriage of justice

Angliss v The State of Western Australia [2005] WASCA 162

Eravelly v The State of Western Australia [2018] WASCA 139

Huggins v The State of Western Australia [2018] WASCA 61

IAB v The State of Western Australia [2015] WASCA 238

KLM v The State of Western Australia [2009] WASCA 73

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79

1. On 12 December 2017, the appellant was convicted of one count of indecently dealing with the complainant by touching her buttocks with his hand, and one count of sexually penetrating the complainant by penetrating her vagina with his finger. The complainant was a child under the age of 13 years at the time of the alleged commission of these offences. The appellant was sentenced to a total effective sentence of 4 years 6 months' immediate imprisonment, with eligibility for parole, in respect of these offences.
2. The offences were alleged to have occurred on a single occasion between 19 August 2014 and 16 May 2015, when the 6 - 7-year-old complainant was in the foster care of the appellant and his wife. The charged offences were alleged to form part of a pattern of sexual offending against the complainant, comprised of the charged acts and similar uncharged offending.
3. The appellant appeals against his convictions on two grounds. Ground 1 contends that there was a miscarriage of justice by reason of the failure of the appellant's trial counsel to properly cross-examine the complainant. The focus of this ground is the failure to cross-examine the complainant about the absence of any disclosure of sexual offending by the appellant during an interview with a child protection worker on 27 May 2015. Ground 2 contends that the trial judge erred by failing to give a 'Longman direction' which resulted in a miscarriage of justice.
4. Leave to appeal should be refused on both grounds, neither of which has any reasonable prospect of succeeding. The decision not to cross-examine the complainant in relation to the interview on 27 May 2015 was an objectively reasonable forensic decision by the appellant's trial counsel. There was no material irregularity in the trial which gave rise to any miscarriage of justice. The circumstances of this case did not warrant the giving of a Longman direction by the trial judge.

1. The following facts were uncontentious at trial and on appeal.
2. The complainant was born in May 2008.[1]
3. The complainant and her sisters, T and L, were placed in State care on 24 June 2014. The complainant and T were fostered with the appellant and his wife from 30 June 2014 until 18 July 2014, when they went back into the care of their mother. The complainant and T returned to the foster care of the appellant and his wife on 20 August 2014, and were joined by L on 19 December 2014. The placement of all three children with the appellant and his wife ended on 15 May 2015.[2]
4. On 27 May 2015, about two weeks after the end of the foster care by the appellant and his wife, the complainant was interviewed by a child protection worker. In that interview, she spoke of physical abuse by the appellant and his wife but did not disclose any sexual offending by the appellant.[3] Evidence of this interview was not adduced before the jury.
5. The complainant disclosed the appellant's alleged sexual offending to her step-father in late February 2016.[4] A recorded child-witness interview, which was tendered in evidence, occurred on 11 March 2016.[5] The appellant was interviewed by police in relation to the allegations on 8 August 2016.[6]
6. On 31 October 2017, notes of the interview with the complainant on 27 May 2015 were disclosed to the appellant's solicitor.[7] A pre-recording of the complainant's evidence took place on 30 November 2017. The appellant's trial took place on 11 and 12 December 2017.

1. The State's case was that the charged offences occurred when the appellant was saying goodnight to the complainant as she lay on the top bunk in the bedroom used by the foster children. The complainant was either 6 or 7 years old at this time. The complainant asked the appellant to tickle her tummy, which the appellant did. As the complainant rolled towards the appellant onto her tummy, the appellant put his hand down the back of the complainant's pants and knickers onto her bottom. That conduct was the subject of count 1 on the indictment. The appellant then used one hand to pull open the complainant's track pants and put the other hand inside her track pants and knickers to penetrate her vagina. That conduct was the subject of count 2 on the indictment.[8]
2. The appellant's case was to the effect that the offending had not occurred, or at least that the jury could not be satisfied that it had on the basis of the complainant's uncorroborated evidence.[9]

1. The complainant was 7 years old at the time of the child witness interview. In the interview, she referred to the appellant as 'Opie' and the appellant's wife as 'Gran'.
2. The complainant said that Opie put his hands down her pants:[10]

And he touched it with a straight hand and then after that he put his hand down my pants and touched front of my rude part, inside of it.

1. The complainant then refers to violence by Opie and Gran towards her and her sisters. The complainant was asked whether what happened with Opie 'happened one time or more than one time with you?', to which she responded 'more'. When asked to tell the interviewer about the 'last time something like that happened with granddad Opie', the complainant said:[11]

Well, he started when I first went there... But, well, yeah, he did and then -- then I went back to my dad and mum and then he started that time again...

1. When asked to tell the interviewer about the first time something happened with grandad Opie, the complainant said:[12]

Well, I said to him, 'Give me tickles please?', and then 'On the tummy?'. Then he put his hand down my pants and touched it -- touched the front of my rude part. That's the first time but I forgot the last time.

1. When asked to tell the interviewer about everything that occurred the first time it happened, the complainant said:[13]

Well, it was our bed time. And Gran gave us a good night kiss and a hug, on the cheek. ... And then she went in the lounge room and then Opie sneaked in and I said to Opie, 'Can you please give me tickles on the tummy?' and the arm and then he's put his hand down my pants and touched it and then after that he put his hand down my pants then put it inside my rude part at the front. And then I said 'Goodnight Opie' and he gave me a kiss on the cheek and a hug good night and then he went in the adult lounge room.

1. The complainant then gave a slightly more detailed description of the indecent touching and sexual penetration.[14] Later, the complainant described her sisters both being in the room when this happened.[15]
2. The complainant was asked whether any of the other times something happened with Opie were different - whether something different happened or whether it happened in a different place. The complainant responded '[d]on't think so'.[16]
3. The complainant said that she did not tell anyone about Opie putting his hands down her pants until she told her step-father and a DCP officer.[17]
4. During examination in her pre-recorded evidence, the complainant reiterated what she had told the police interviewers and was asked about some further details of the circumstances of the offending conduct. Nothing in this appeal turns on that evidence.
5. The complainant was cross-examined by the appellant's trial counsel. She was asked about the appellant's bad back and his trouble moving and standing up.[18] She was asked about whether she had told Opie that she was 'a Noongar and that white people didn't belong there'. The complainant was also asked about whether she got in trouble during the second foster placement for not cleaning her room, telling lies and taking money and food.[19] Trial counsel adduced evidence from the complainant that there was a baby monitor in the bedroom from which Gran could see inside the room.[20] He put to the complainant that Opie never touched her rude part, to which the complainant responded:[21]

I do agree with that, that he inappropriate touched me.

1. The complainant was not asked about what she told the child protection worker in the May 2015 interview.

1. Evidence was led from the complainant's step-father as to her placement in State care, and return to his care in January 2016. He indicated that she divulged something to him about the appellant when they were at the beach in late February 2016.[22]
2. The appellant's wife gave evidence as to the fostering and domestic arrangements. She said that the usual bedtime routine for the complainant and her sisters was that they would give the appellant a kiss goodnight in the lounge room, and she would walk them into the bedroom, tuck them in and walk out. She said that sometimes the appellant would then go into the bedroom to read the children a story or talk to the complainant about school while she was in the kitchen.
3. The appellant's wife gave evidence that she had a monitor with her in the kitchen whilst the appellant was in the bedroom. This allowed her to see inside the bedroom. She described calling the appellant out of the bedroom if he had been in there for more than 5 minutes, as it was time for the children to go to sleep to be ready for school. She described seeing the appellant rubbing the complainant through the railings of the bunk bed on one occasion.[23] She said that the foster care came to an end because she had raised her voice at the complainant after the complainant had hit another child.[24]
4. The investigating police officer gave evidence of certain formal matters, and produced a recorded interview with the appellant of 8 August 2016. In the interview, the appellant referred to the baby monitor which his wife used,[25] accepted that he sometimes went into the children room to scratch the complainant's back or calf muscle,[26] and her tummy,[27] at the complainant's request. He denied any sexual contact.[28] At one point the appellant told police that he didn't think that his wife liked him being in the room with the girls and, if he was in the room for too long, she would tell him '[t]hat's enough. They can just go to sleep now.'[29]
5. The appellant did not give or adduce any evidence at trial.

Interview with child protection worker in May 2017

1. The interview with a child protection worker on which ground 1 principally relies occurred on 27 May 2015. This was just under 2 weeks after the complainant left her placement with the appellant and his wife on 15 May 2015. The complainant had just turned 7 years old at this time.
2. The disclosed interview notes indicate that the child protection worker was talking to the complainant about things that had happened in a car. The complainant described the appellant pushing and hitting her. At one point the following exchange is recorded as occurring (with the references to 'IV' being to the child protection worker and 'CL' being the complainant):

IV: Tell me the good things about Opie.

CL: He rubs my back and we talk about school and my friends and about her reading.

IV: When does Opie rub your back?

CL: When Gran is asleep because she doesn't like it.

IV: [Complainant's name], do you have your pyjamas on when Opie rubs your back?

CL: Yes but he rubs my back under the shirt.

IV: Is it only your back, or does Opie rub other places?

CL: He sometimes rubs my tummy.

IV: How often does Opie rub your back and tummy? Is it just one time, or lots of times.

CL: Just sometimes. But only when I'm good. When I'm bad he doesn't do it.

IV: Are there any bad things about Opie?

CL: No.

IV: I remember before you told us that Opie pushed you. Can you tell me a bit more about that?

CL: That was a bit mean.

IV: Is there any other things about Opie that are a bit mean?

CL: He wouldn't let me sound out my words when I was reading. He said I have to do it fast.

IV: Tell us about one particular time you got hit.

CL: Sometimes when we are at home or sometimes when we are out.

The complainant is then recorded as describing the appellant and his wife pushing, hitting and slapping the complainant, and throwing her onto the bed.

Ground 1: miscarriage arising from a failure to cross-examine

1. The general principles relating to appeals on the ground that incompetence of trial counsel has given rise to a miscarriage of justice were recently summarised by this court in Huggins v The State of Western Australia.[30] As was noted in that case:

An appellant who seeks to demonstrate that the conduct of his or her counsel caused a miscarriage of justice undertakes a heavy burden which is not easily discharged. This is a consequence of the adversarial nature of a criminal trial and the role played by counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel even if that was not in accordance with the wishes of the client. It is not a ground for setting aside a conviction that decisions made by counsel were made without or contrary to instructions or involved errors of judgment or even negligence. It is not the province of appellate courts to review the wisdom or prudence of the conduct of a trial by trial counsel. For example, an apparently rational decision by trial counsel as to what evidence to call or not to call does not give rise to a miscarriage of justice simply because an appellate court thinks it worked to the probable disadvantage of the appellant. [376] (citations omitted)

1. The decision of this court in KLM v The State of Western Australia illustrates that a failure by trial counsel to cross-examine a witness on a critical issue is capable of giving rise to a miscarriage of justice.[31] In that case the majority found a miscarriage of justice to arise from trial counsel's failure to appreciate, and as a consequence to test or rebut in any meaningful way, a component of the State case which the jury were likely to regard as highly significant. That conclusion was reached in a context where the majority considered that the line actually taken in cross-examination and counsel's closing address had 'no apparent forensic advantage, and every forensic disadvantage'.[32]
2. Equally, a miscarriage of justice does not necessarily arise whenever there is forensic disadvantage, and no discernible forensic advantage, in trial counsel's failure to pursue an available line of cross-examination. It is unnecessary in the present case to explore the circumstances in which a failure to cross-examine on an issue without any rational forensic basis will give rise to a miscarriage of justice. The appellant's appeal counsel identified the issue in this appeal as being whether the failure of the appellant's trial counsel to cross-examine on the May 2015 interview was a reasonable or rational forensic judgment.[33] The appellant's submissions did not suggest any basis on which this court could conclude that there was a miscarriage of justice if that decision was a reasonable or rational forensic judgment.
3. In our view, there was an objectively reasonable forensic reason for trial counsel to choose not to cross-examine the complainant about her May 2015 interview with the child protection worker.
4. On appeal, counsel for the appellant submits that the absence of alleged sexual offending in the May 2015 interview 'could have gone, to the credibility of the complainant in a devastating way.'[34] That submission overstates by a considerable measure the forensic advantage which might have been obtained by cross-examination on this issue. The complainant was an inarticulate girl with a troubled background who had just turned 7 years old at the time of the May 2015 interview. She was not being asked about whether the appellant or any other person had touched her bottom or vagina, and did not deny this occurring. She was asked if there were 'any bad things about Opie', and whether he had done any other things that were 'a bit mean'. However, there was nothing to indicate that, at that time, the complainant appreciated that the touching she later described was 'bad' or 'mean'. An obvious response by the prosecutor to a submission about the inconsistency of the accounts was that a girl who had just turned 7 years old, and who had regularly experienced the alleged conduct in question, may well not appreciate that there was anything wrong with it. Trial counsel could reasonably have apprehended that evidence of the May 2015 interview would not significantly add to the evidence that the complainant did not complain until late February 2016, despite having prior opportunity to do so.
5. There were also forensic risks and disadvantages to cross-examining the complainant on the May 2015 interview. Given the appellant's age, it would not be expected that she would recall in detail the May 2015 interview. Trial counsel would have to anticipate that cross-examination on the issue would result in evidence of the whole interview being led, either by the appellant to prove the absence of complaint at that time or by the State to provide context to the lack of disclosure.
6. One obvious forensic disadvantage is that the jury could have evidence of the appellant being in the bedroom rubbing the complainant when 'Gran is asleep'. That would tend to undermine the submission which counsel was able to make to the jury, by reference to evidence that the appellant's wife had the monitor when he was in the room, that:[35]

Do you really think anyone would take the risk of sexually molesting a young child knowing there was every possibility your wife would see it? You wouldn't, would you? As a matter of common sense, you wouldn't.

1. The appellant's appeal counsel submits that this was not prejudicial as the charged offending was alleged to have occurred when the appellant's wife was awake and the children had just been put to bed.[36] However, as the respondent's counsel points out, the charged acts were alleged to be part of an ongoing course of conduct.[37] The improbability of the appellant regularly sexually abusing the complainant while his wife might be watching the monitor would be much reduced if the appellant came into the bedroom when his wife was asleep.
2. There was also a risk of prejudice to the appellant from the complainant saying that the appellant rubbed her back when his wife was asleep 'because she doesn't like it'. The appellant's appeal counsel observed that the appellant had already told police in his recorded interview that he believed that his wife did not like him going into the children's bedroom.[38] However, both the appellant's answers to police and his wife's evidence could be taken as indicating that this was because the children were being kept awake on a school night. The complainant's answers in the May 2015 interview strongly suggested there must have been some other reason. The complainant's answers could lead a jury to ask why the person who, it might be thought, best knew the appellant was concerned about him being in the children's bedroom.
3. Considering the potential forensic risks and benefits, it was objectively reasonable for the appellant's trial counsel to decide not to cross-examine the complainant about the May 2015 interview on the basis that he assessed that the risks outweighed the benefits. On that basis, no irregularity in the trial giving rise to a miscarriage of justice was established by reason of trial counsel's failure to cross-examine on that issue.
4. The appellant's particulars and written submissions relating to this ground also refer to the failure to cross-examine the complainant about the date on which the offence occurred and the impossibility of L being present if it occurred in the first period in which the complainant was fostered with the appellant and his wife. The appellant's appeal counsel did not seek to advance any oral submissions in relation to this aspect of the ground. There is no merit in this aspect of ground 1, as the material referred to was already in evidence as part of the State's case. The State's case included evidence that:

(1) The charged incidents occurred when the complainant first stayed with the appellant and his wife;[39]

(2) L was present in the bedroom when the charged incidents occurred;[40]

(3) The complainant first stayed with the appellant and his wife from 30 June 2014 to 18 July 2014;[41]

(4) L was not fostered with the appellant and his wife until 19 December 2014.[42]

1. No further cross-examination was required by the appellant's trial counsel to establish these facts.
2. For the above reasons, in our view, ground 1 has no reasonable prospects of succeeding.

1. Counsel for the appellant did not seek to advance any oral submissions in support of ground 2. In our view, the ground is without merit and can be disposed of relatively briefly.
2. The warning which was held to be required in Longman v The Queen was in the following terms:[43]

The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy.

1. The 20 year delay in making a complaint was a significant part of the context in which a special direction was held to be required in Longman. In the present case, the maximum period between the alleged offences and the time when the appellant was interviewed by police was just under 2 years (between 19 August 2014 and 8 August 2016). While there are exceptions,[44] most of the cases in which a Longman direction has been held to be required have involved periods of delay well in excess of 2 years.
2. Further, and more fundamentally, the critical feature of Longman was that the loss of the means of testing the allegations, which would have been open to Longman had there been no delay in prosecution, may not have been apparent to the jury.[45] As this court recently noted in Eravelly v The State of Western Australia,[46] the more general principle, applied in Longman, is that a warning must be given whenever necessary to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case. The court's perception that a feature of the evidence is capable of affecting the significance of or the weight to be given to the evidence, and that this may not be appreciated by a lay jury, is of central significance in assessing the need for a warning and the terms in which any warning should be given.
3. In Angliss v The State of Western Australia,[47] Wheeler JA noted that it is not, and has never been, the law in Western Australia that any delay at all between complaint and offence requires a warning. Her Honour observed:[48]

[T]he crucial point in relation to Longman is that, not only may the accused be at a forensic disadvantage in testing the prosecution case by reason of the delay, but also that the circumstances may not reveal to the jury that such disadvantage may exist. That is because the jury may not understand that the usual way of testing the evidence of a complainant is, very often, by reference to surrounding circumstances and to details which, while not of significance in themselves, may help to indicate that a witness is either untruthful or unreliable. Those surrounding circumstances and details are precisely what is lost, or potentially lost, when there is a very long delay. Of course, it may also be the case on occasion that because of the delay the details of the offence which can be provided by the complainant are so limited, or the offence was just so long ago, that an accused person will be unable to call to mind or to obtain evidence which might go to the issue of whether the offence was committed, such as alibi evidence. (original emphasis)

1. In the present case the appellant has not established the existence of any forensic disadvantage, resulting from delay in the allegations being brought to his attention, which the jury might not have appreciated without a warning.
2. The appellant accepted that he regularly engaged in the tickling and rubbing alleged by the complainant. Although he denied the sexual offending, there was no contest as to the opportunity for the appellant to have done so in the manner alleged. There is no suggestion of lost alibi or other exculpatory evidence. Nor was there any real controversy as to the details of the surrounding circumstances in which the offences were alleged to have been committed.
3. There are two particular aspects of the prosecution case to which the appellant refers in his written submissions. The first is the prospect of his wife being able to give evidence as to whether she saw the appellant do anything over the monitor. However, the effect of the wife's evidence at trial was, at least implicitly, that she had not seen anything untoward. She might be expected to have remembered if she ever saw the alleged conduct. The second is the complainant's lack of specificity of the time of the alleged offence, and the lack of detail as to uncharged conduct. However, these matters and their effect on the complainant's reliability, would have been readily apparent to the jury.
4. This was not a case in which there was substantial delay, or in which the appellant lost a chance to adequately test the complainant's evidence and marshal a defence in a manner that a jury might have failed to appreciate. In our view, there is no basis for contending that a special warning was required to avoid a perceptible risk of a miscarriage of justice in the circumstances of this case.

1. For the above reasons, neither of the appellant's grounds of appeal have any reasonable prospects of succeeding. The following orders should be made in the appeal:

(1) Leave to appeal is refused on both grounds of appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[3] Annexure CLJM1 to the affidavit of Christian Leith John Miocevich sworn 8 August 2018.

[7] Annexure CLJM1 to the affidavit of Christian Leith John Miocevich sworn 8 August 2018.

[30] Huggins v The State of Western Australia [2018] WASCA 61 [376] - [401].

[31] KLM v The State of Western Australia [2009] WASCA 73.

[39] See [15] above.

[40] See [18] above.

[41] See [7] above.

[42] See [7] above.

[43] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, 91.

[44] See IAB v The State of Western Australia [2015] WASCA 238 [3], [41].

[46] Eravelly v The State of Western Australia [2018] WASCA 139 [18] - [20].

[47] Angliss v The State of Western Australia [2005] WASCA 162 [15].