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[2008] WASCA 108
Court of Appeal (WA)
2008-05-08
Miller JA, Lure JA, Buss JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : CAVILL -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 108
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Criminal law - Sexual offences - Seven counts - Appellant convicted on one count only - Whether verdicts of jury inconsistent
Criminal law and procedure - Whether trial judge erred in refusing to grant leave to crossexamine complainant about previous complaints of sexual assault against two persons other than the appellant - Whether evidence related to complainant's sexual experiences - Whether evidence properly excluded under Evidence Act 1906 (WA) s 36BC - Whether trial judge erred in failing to direct jury that a doctor's record of the complainant's admission that there had been 'no penetration' could be used as truth of the contents of the statement - Whether aspects of appellant's video record of interview ought to have been admitted or excised
Criminal law - Sentencing - Whether sentence of imprisonment to be served immediately appropriate - Whether suspended sentence open
Evidence Act 1906 (WA), s 36BC, s 79C
Sentencing Act 1995 (WA), s 6(4), s 39(3), s 76
1 McLURE JA: The appellant appeals against his conviction and sentence for one count of sexual penetration without the consent of the complainant. I agree with Miller JA that the appeals against conviction and sentence should be dismissed. These are my reasons for that conclusion.
2 The appellant was charged with seven counts, all of which were allegedly committed in the early hours of 1 June 2005. The offences and the order in which they were allegedly committed were as follows: one count of indecent assault by the appellant sticking his tongue into the complainant's mouth (count 1), digital penetration (count 2), further counts of digital penetration (counts 3 and 4), one count of attempted penile penetration (count 5), digital penetration (count 6) and one count of indecent assault by forcing the complainant's head towards the appellant's penis (count 7). The appellant was convicted on count 2 and acquitted on the other counts.
3 According to the complainant's evidence, the offences occurred in three discrete periods in the downstairs guestroom of the appellant's house. The complainant's evidence was as follows. The appellant was fully clothed when he put his tongue in her mouth in the course of kissing her. He left the room for 10 minutes and on his return he removed his jeans. He was then wearing boxer shorts and a shirt. The appellant then committed count 2. The telephone rang and he left the room to answer it. When he returned he was wearing only boxer shorts. Thereafter, he committed counts 3 to 7 inclusive. In the course of committing count 6 the appellant scratched the complainant internally which caused her to bleed.
4 The complainant was aged approximately 23 at the time of the offence. She lived in South Australia and had separated from her husband. She had two children, the younger of which was still a baby (wearing nappies and being bottle fed). The complainant had arranged to come to Perth for a week and stay with her husband's cousin, Dean Marsden, who lived in a northern suburb some distance from Perth. The complainant's older child went to stay with her father in Melbourne. The complainant and her baby travelled to Perth arriving on 29 May 2005. They stayed with Mr Marsden.
5 The appellant attended a dinner party at Mr Marsden's house on 31 May 2005. At the end of the evening, the complainant had an angry exchange with Mr Marsden who demanded that she and her baby leave his house. The complainant knew no one in Perth. Her mother was holidaying with friends in Mandurah. No public transport was available because of the late hour. The appellant offered her a room at his house. He also offered to drive her to Mandurah the following morning. After arriving at the appellant's house, the complainant met the appellant's wife who appeared to the complainant to be drunk. The appellant's wife was upstairs when the offence occurred.
6 On the morning of 1 June 2005 the complainant showered and said nothing to the appellant or his wife about the events in the early hours of that morning. The appellant drove the complainant to Mandurah, dropping her off at a taxi rank. The complainant went by taxi to where her mother was staying. The complainant informed her mother of the assaults and made it clear she wanted to return to Adelaide as soon as possible. At her mother's insistence the complainant saw a female general practitioner in Mandurah later that day. The complainant refused an offer of an internal examination because she said she did not want to be touched, was upset and wanted to go home to Adelaide. Her return flight was rescheduled for later that night. Shortly after returning from the doctor's surgery, the complainant went by taxi to Perth from where she caught a plane to Adelaide via Melbourne. The complainant reported the appellant to police in South Australia on the day of her return to Adelaide. She washed the clothes she was wearing on the night in question.
7 The appellant was interviewed by Western Australian police on 18 October 2005. The record of interview was adduced in evidence. After repeatedly denying any contact of a sexual nature with the complainant, the appellant eventually admitted one act of digital penetration. The relevant parts of the transcript are set out in the reasons for judgment of Miller JA. The substance of his out of court statement was that the complainant kissed him, undressed in front of him and tried to 'come on to him', that he became sexually aroused, at some point took off his jeans and was wearing boxer shorts and that he penetrated the complainant to some extent with his finger but that it was not forceful. His evidence was that all of the conduct was consensual.
8 The appellant gave evidence at his trial. He retracted his out of court admissions and denied any voluntary sexual contact with the complainant. His evidence was to the following effect. After the baby started crying, he went to the guest bedroom to see what the problem was. The complainant said the baby had been sick and she took the baby into the bathroom to clean her up. The appellant lay down on the bed and went to sleep. He was wearing shorts (not jeans) and a T-shirt. When he awoke, the complainant was lying on the bed next to him. She had removed the track pants she was wearing when he first entered the room. He awoke to find his hand on the complainant's crotch. He had not intentionally placed his hand there and removed it immediately. Before leaving the room he gave the complainant an asexual kiss and returned to the marital bedroom.
9 The authorities are reviewed in the reasons of Miller JA. Relevant cases include MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606; Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 [71]. In summary, the test to be applied in assessing inconsistency is to determine whether there is a proper way by which the appellate court may reconcile the verdict, allowing it to conclude that the jury performed their functions as required: MacKenzie (367).
10 One of the particulars relied on by the appellant was that a jury question regarding consent indicated that it may have not correctly appreciated its task, consent not having been a live issue at trial. After it had retired, the jury requested from the trial judge a direction on the law relating to consent and a summary statement relating to that issue.
11 It is the case that the appellant's evidence at trial was that none of the charged acts took place and thus consent was not a live issue. However, the appellant's record of interview admitted at trial was evidence of the truth of both the inculpatory and exculpatory statements made by the appellant. The appellant raised the defence of consent in the record of interview. Moreover, there was a disquieting undercurrent in the cross-examination of the complainant that could reasonably be seen by the jury as providing some unacknowledged support for a fall-back consent defence (ie, I did not do it but if I did, she consented).
12 The cross-examination of the complainant was lengthy and aggressive. It was put to her that she did not regard her oath to tell the truth as binding because, being a Jehovah Witness, she had not sworn on the bible used by people of that faith. It was suggested she was unreliable because of her mental state which required a variety of medications including antidepressants. It was suggested to her that her financial situation was and had always been precarious, that she was impressed by Mr Marsden's lifestyle including his house and furniture, and that, motivated by pecuniary considerations, she came to Western Australia with the hope of establishing a relationship with Mr Marsden which she would facilitate by having sexual relations with him. This line of cross-examination was interrupted by questions directed to the objective manifestations of the appellant's wealth and the proposition that the complainant's motive for making the allegations was to obtain a financial advantage in the form of criminal injuries compensation. The cross-examiner then immediately returned to the complainant's intentions relating to Mr Marsden. It was put to her that she trying to act as Marsden's girlfriend and was seeking a sexual liaison.
13 When the complainant arrived in Perth Mr Marsden had a girlfriend called Jessica. It was suggested the complainant was surprised by this. The following cross-examination then took place:
Did you say to Jessica, 'We have to get Dean drunk'?---Never. No.
Say, 'We're going to give - we should give him a massage.' Words to that effect?---No.
No suggestion of giving him a massage?---No, not at all.
Can you remember Jessica saying something to you like, 'You don't need to get Dean
14 At this point there was an objection and senior counsel for the appellant was reminded that the appellant's application for leave to cross-examine on these matters had been withdrawn. I infer the application was for leave under s 36BC of the Evidence Act 1906 (WA). On the resumption, senior counsel commenced cross-examining the complainant about a photograph on her mobile phone. The exchange was as follows:
Do you remember during the course of the evening going to Dean and showing him a photo of yourself on your mobile phone?---No, I don't remember that.
I suggest that you did that in the presence of Jessica, his girlfriend?---No.
Did you, in those days, have a photo of yourself on your mobile phone?---I had photos.
15 There was an objection and senior counsel said he did not intend to pursue that line. However, he did raise that matter again (ts 293).
16 It was also put to the complainant that if the assault had occurred she could, on the occasions when the appellant left the bedroom, have called for help by telephoning the police or her sister or calling out to the appellant's wife or raising the alarm with neighbours. It is directly after putting these matters to the complainant that she is again cross-examined concerning the photographs on her phone. The cross-examination also has to be seen in the light of the appellant's evidence at trial that whilst he was sleeping on the bed in the guestroom, the complainant removed her track pants and lay on the bed next to him.
17 Having regard to the content and structure of the cross-examination it is reasonable to infer that the appellant was running a dog whistle fall-back defence of consent based in part on the disposition of the complainant in sexual matters. Evidence relating to disposition in sexual matters is prohibited save in certain circumstances with the leave of the court: s 36BA, s 36BC of the Evidence Act 1906 (WA); Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443. Little wonder that the jury may have been left with the impression that if the charged acts had occurred, she was the type of person that was likely to have sought and consented to the conduct. The prohibitions in the Evidence Act were circumvented with adverse consequences for the complainant and the prosecution. The appellant cannot rely on the jury's question on consent to support the contention that they had not properly appreciated their task.
18 After the trial judge had responded to the jury's question with a direction that the appellant's case was that the conduct the subject of the charges did not occur and consent was not an issue, the appellant was convicted on one count of digital penetration. It is significant that the only offence to which the appellant confessed in his police record of interview was one event of digital penetration. He did not admit sticking his tongue into the appellant's mouth or the other offences. Moreover, there is sufficient to link the digital penetration the subject of the appellant's admission with count 2 on the indictment. In particular, on the complainant's evidence, the extent or degree of the penetration in relation to count 2 was materially less than for the other counts of digital penetration. The digital penetration to which the appellant admitted was consistent with the complainant's evidence on count 2. Further, the appellant emphasised the complainant's failure to raise the alarm when she had opportunities to do so when the appellant was absent from the bedroom. A jury is likely to consider it fanciful to suggest that a woman in the complainant's position would raise the alarm in the ways suggested as a result of an unwelcome kiss, even of the type the subject of count 1. However, on the complainant's evidence the appellant left the bedroom after committing the offence in count 2 and upon his return committed the rest of the offences. Thus, the verdicts can be reconciled.
19 This case is distinguishable from the facts in M v The Queen (1998) 104 A Crim R 154. The appellant in that case was convicted of one of eight counts of sexual assault against his young daughter. Counts 6 and 7 had allegedly occurred together being the appellant touching the child's vagina (count 6) whilst rubbing his penis between her legs until he ejaculated (count 7). The appellant was acquitted on count 6 and convicted on count 7. The Full Court held that the conviction on count 7 was inconsistent with the acquittal on the other counts. The appellant had admitted involuntarily ejaculating on the child (whilst he was asleep) but denied all of the offences, including counts 6 and 7. The appellant's admission of ejaculation in M was not an admission of the offence charged or any offence as he claimed the action was involuntary. By contrast, the appellant in this case made an admission of digital penetration and the jury was directed that consent was not in issue. That is a material distinction. Further, although the result in M may be correct, the Full Court relied on the reasoning in Jones v The Queen (1997) 191 CLR 439 which reasoning has been clarified and explained in subsequent cases, including MFA.
20 The guilty verdict on count 2 is not inconsistent with the acquittals on the other counts. I would dismiss ground 1.
21 The facts are detailed in the reasons of Miller JA. In summary, the appellant wanted to cross-examine the complainant on what she was noted by her general practitioner to have said about her history of two prior sexual assaults by persons other than the appellant. The notes refer to an attempted sexual assault when the complainant was aged 14 which went to trial and the second was a sexual assault committed by a relative's boyfriend which the complainant had not reported to authorities. Prima facie, the evidence is irrelevant and thus inadmissible.
22 The appellant submitted it was relevant to whether the complainant knew that she should have submitted to an internal examination and preserved the integrity of her clothing for forensic analysis. The appellant claimed the complainant would have that knowledge simply from the fact of being sexually assaulted or alternatively from investigating police. The fact of the two prior sexual assaults noted by the general practitioner is not probative of her knowledge of the usual investigative procedures upon a complaint of sexual penetration. As to information from police, there is nothing in the complainant's history given to her general practitioner that provided a reasonable basis to suggest that she may have been provided with relevant information by police. Relevance on this ground was not established. In any event, what the appellant had been told by police could have been elicited without reference to the prior sexual assaults.
23 The appellant also relied on the case of Chandu Nagrecha [1997] 2 Cr App R 401 in support of the assertion that the proposed cross-examination was relevant to a fact in issue. In that case the appellant was accused of indecently assaulting the complainant. At trial, the defence cross-examined the complainant as to allegations of sexual impropriety which she had made against other men. The appellant had evidence that other complaints had been made and that they were false. The complainant denied making the complaints. Relying on the collateral evidence rule, the trial judge refused to allow the defence to call evidence as to the making of those complaints. It was held on appeal that the appellant should have been permitted to adduce evidence that she had made the other complaints as the evidence went not merely to credit but to the central issue of whether or not the indecent assault had occurred. This case does not address or identify the relevance of the evidence relating to unrelated sexual assaults. It addresses the question of when rebuttal evidence can be adduced in relation to matters prima facie relevant only to credit. The approach taken by the Court of Appeal in Chandu Nagrecha is inconsistent with the majority view in Hill v The Queen [2003] WASCA 177.
24 The appellant also submitted that the proposed evidence was outside the scope of s 36BC of the Evidence Act. That section prohibits evidence relating to the sexual experiences of a complainant without the leave of the court and leave cannot be granted unless what is sought to be adduced or elicited has substantial relevance to the facts in issue.
25 Section 36BC only applies to evidence that tends to prove sexual experience: Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443 [72] - [84]. A complaint following a sexual assault goes to the credit of the complainant (that is, the reliability of the evidence concerning the sexual offence in issue) rather than the fact in issue (whether that assault occurred): Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460. That is, evidence of mere complaint does not tend to prove sexual experience for the purposes of s 36BC.
26 Insofar as the appellant relied on the experience of the prior sexual assaults to ground an inference of knowledge of investigative procedures, that is evidence relating to sexual experience to which s 36BC applies. Such evidence was not substantially relevant to a fact in issue and was correctly excluded.
27 Further, the appellant did not contend (having no reasonable basis to do so) that the prior sexual assaults had not occurred. Accordingly, whether or not the complainant complained of those offences is prima facie irrelevant. There was nothing in the doctor's notes or the evidence that established relevance.
28 If relevance had been established and there was unfairness in confining the complainant's evidence to what she told the authorities without her confirming the truth thereof (in which event s 36BC would apply), I leave open the question whether the court can exclude the evidence on the basis that its prejudicial effect outweighs its probative value.
Ground 3 - Section 79C
29 On the complainant's return to South Australia she consulted Dr Lynch and another doctor at the same medical practice, Dr Fowler. Dr Fowler was not called as a witness at trial but Dr Lynch gave evidence of Dr Fowler's handwritten note in the medical records of the practice that relevantly state:
14/08/05 - Raped six to seven weeks ago in Perth. No actual penetration of vagina.
30 The trial judge directed the jury that the evidence of what the complainant said to Dr Fowler was not evidence of its truth but may be seen as a prior inconsistent statement relevant to her credibility. After the summing up, counsel for the appellant sought a re-direction, claiming for the first time that s 79C of the Evidence Act applied to make the complainant's statement to Dr Fowler evidence of the truth of the statement.
31 The trial judge refused to re-direct. He noted that the appellant had not given notice of his intention to rely on s 79C of the Evidence Act and if the appellant had made that plain, he would have exercised his discretion under s 79C(6) to reject the admission of the statement. Finally, he concluded that a re-direction along the lines sought by the appellant would be of no assistance to the jury.
32 The appellant's counsel cross-examined Dr Lynch as to who made the relevant entry in the medical records of the practice on 14 August 2005. The appellant's counsel did not tender the document containing the statement in question. The cross-examination was undertaken without objection from the prosecution and without the appellant identifying the purpose for which the evidence was adduced.
33 Counsel for the appellant had earlier cross-examined the complainant as to what she said to Dr Fowler. She agreed that in substance the note reflected what she told Dr Fowler but explained that when she said there was no penetration she was referring to penile penetration.
34 There are two relevant statements in the entry in the medical notes on 14 August 2005. The first is a statement by Dr Fowler that the complainant told him what he had recorded in the notes. The second statement is that made by the complainant herself being that she was raped but there was no penetration.
35 Dr Fowler's statement as to what he was told was not a statement of which direct oral evidence would be admissible in which event s 79C has no application. The only relevance of Dr Fowler's statement was that the complainant had made an arguably prior inconsistent statement. As the complainant had acknowledged making the statement, Dr Fowler's evidence was not admissible under s 21 of the Evidence Act or at common law.
36 In contrast, the complainant's statement as to what the appellant did was obviously a matter on which the complainant (a qualified person under s 79C(1)) could give direct oral evidence at trial. Its relevance is as evidence of the truth of the statement. This court held in Beamish v The Queen [2005] WASCA 62 [147] - [168] that s 79C(1) and s 79C(2a) apply to statements made by a qualified person (including statements tendered for the truth of their contents) recorded in a document by a third party. There is no challenge to the correctness of Beamish on this point which is consistent with the legislative history of s 79C.
37 Section 79C(1) and (2) implement the recommendations of the Law Reform Commission of Western Australia in its July 1980 report entitled The Admissibility in Evidence of Computer Records and Other Documentary Statements. It is apparent from the report that s 79C(1) and (2) were intended to apply to statements made by a qualified person in a document whether or not they were the author of the document.
38 The business records provision, s 79C(2a), was inserted by the Acts Amendment (Evidence) Act 2000 (WA). As stated by the relevant minister in the Second Reading Speech:
Under the Bill, business records can be tendered as evidence without calling as witnesses persons who supplied the information in these records unless the court considers it in the interests of justice to do so. This will reduce the length and costs of the trial and aid in the jury's comprehension of the issues.
39 The term 'business record' is defined in s 79B to mean a book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business. 'Business' is defined to mean any business, occupation, trade or calling and includes the business of any governmental body or instrumentality and of any local government. Both parties accepted that the medical records in issue in this case were business records. The evidence established that Dr Fowler made the relevant entry in the medical records and that he recorded what he was told by the complainant who was a qualified person who could give direct oral evidence of what the appellant had done to her. Thus, the document containing the complainant's statement was admissible under s 79C(1) or (2a) of the Evidence Act. That is so even though the complainant was a witness at trial. Section 79C(3)(c) makes a statement in a document admissible notwithstanding that the person who made the statement is a witness in the proceedings.
40 However, s 79C is concerned with the admissibility of documentary evidence of the statement. The appellant did not seek to tender the notes in reliance on s 79C of the Evidence Act. Even if he had sought to tender the document, it was open to the trial judge to reject the tender under s 79C(6). Section s 79C(6) provides:
For the purposes of this section a court may, in its discretion, reject a statement notwithstanding that the requirements of this section are satisfied with respect thereto, if the court is of the opinion that the probative value of the statement is outweighed by the consideration that its admission or the determination of its admissibility -
(a) may necessitate undue consumption of time; or
(b) may create undue prejudice, confuse the issues, or in proceedings with a jury mislead the jury.
41 The complainant's statement in the document is ambiguous and required clarification and explanation which the appellant gave in oral evidence at trial. To admit the statement as evidence of its truth would confuse the jury and not advantage the appellant. The preservation of the primacy of direct oral evidence on central issues in criminal cases should be preserved save in exceptional circumstances, as in the Beamish case. The trial judge did not err in refusing to re-direct. I would dismiss ground 3.
42 I would dismiss ground 4 for the reasons given by Miller JA.
43 I would dismiss the appeal against sentence for the reasons given by Miller JA.
44 BUSS JA: I have read the proposed reasons of Miller JA. I agree with his Honour that the appeal against conviction and the appeal against sentence should be dismissed. My reasons are as follows.
45 Most of the relevant facts are set out in Miller JA's reasons. I will not repeat those facts except to the extent necessary to explain these reasons. I will also refer, as necessary, to some additional facts.
46 The indictment contained seven counts, as follows:
(1) On or about 1 June 2005 at Mindarie [the appellant] unlawfully and indecently assaulted [the complainant] by sticking his tongue into her mouth.
(2) On the same date and at the same place [the appellant] sexually penetrated [the complainant] without her consent by penetrating her vagina with his finger.
(3) On the same date and at the same place [the appellant] sexually penetrated [the complainant] without her consent by penetrating her vagina with his finger.
(4) On the same date and at the same place [the appellant] sexually penetrated [the complainant] without her consent by penetrating her vagina with his finger.
(5) On the same date and at the same place [the appellant] attempted to sexually penetrate [the complainant] without her consent, by attempting to penetrate her vagina with his penis.
(6) On the same date and at the same place [the appellant] sexually penetrated [the complainant] without her consent by penetrating her vagina with his finger.
(7) On the same date and at the same place [the appellant] unlawfully and indecently assaulted [the complainant] by forcing her head toward his penis.
48 The appellant contends, in essence, that no reasonable jury, which had correctly appreciated its task and had properly applied its mind to the facts of the case, could have convicted him on count 2, but acquitted him on the other counts in the indictment.
49 By s 30(3) of the Criminal Appeals Act 2004 (WA), in the case of an appeal against conviction, the Court of Appeal must allow the appeal if, in its opinion:
(a) the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported;
(b) the conviction should be set aside because of a wrong decision on a question of law by the judge; or
(c) there was a miscarriage of justice.
50 In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492, Mason CJ, Deane, Dawson and Toohey JJ said, in relation to s 6(1) of the Criminal Appeal Act 1912 (NSW) (which is in substance identical to s 30(3) of the Western Australian Criminal Appeals Act), that although the phrase 'unsafe and unsatisfactory' does not appear in the statutory provision, it allows a verdict to be set aside when the verdict is unreasonable or not supportable on the evidence. Also see Jones v The Queen (1997) 191 CLR 439, 450.
51 In M (523), McHugh J said that a 'miscarriage of justice' arises whenever the accused has not had a fair trial according to law or whenever the nature of the evidence, the directions to the jury or the procedures that were followed, raise a real doubt as to whether the conviction can be regarded as a safe or just conviction. In Jones (450), Gaudron, McHugh and Gummow JJ said that, having regard to the statements in M, there can be no doubt that a 'miscarriage of justice' also occurs when the findings or verdicts of the jury raise a real doubt as to whether a conviction is safe or just.
52 In M, Mason CJ, Deane, Dawson and Toohey JJ said that the test for an unsafe or unsatisfactory verdict was whether the court thought that:
upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (493).
[T]he court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations (493).
Their Honours explained the application of the test:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. 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. 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 the 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 (494 - 495).
Also see Jones (450 - 451). The test formulated by the majority in M is the appropriate test for determining whether a verdict is unsafe or unsatisfactory: Jones (452); MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 [25].
53 In Libke v The Queen [2007] HCA 30; (2007) 81 ALJR 1309, Hayne J (with whom Gleeson CJ and Heydon J relevantly agreed) said that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is:
[W]hether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt (M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492 - 493[1994] HCA 63; , 69 ALJR 83). It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt [113]. (emphasis in original)
Also see Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ).
54 In MacKenzie v The Queen (1996) 190 CLR 348, 366 - 368, Gaudron, Gummow and Kirby JJ enunciated a number of general propositions distilled from a review of the cases on inconsistent verdicts. The principles in MacKenzie were applied in MFA, where Gleeson CJ, Hayne and Callinan JJ said:
Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman ((1987) 44 SASR 591 at 593), and referred to in later cases (eg, MacKenzie v The Queen (1996) 190 CLR 348 at 367 - 368): it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed [34].
55 More recently, in Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303, Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ said, in relation to inconsistency of verdicts:
Difficulties in understanding jury verdicts which are explicable on the basis that one of them is 'merciful', or that they accord with the jurors' innate sense of fairness and justice, do not lead to the conclusion that the jurors have acted unreasonably (MacKenzie v The Queen (1996) 190 CLR 348 at 367 - 368). The question in the present case is whether that is the explanation, or whether the jury, faced with a position in which some favoured conviction of rape on both counts and some did not, compromised by convicting only of one act of unlawful carnal knowledge and one rape. It is for the appellant to demonstrate that the latter is the case (MacKenzie v The Queen (1996) 190 CLR 348 at 368). This the appellant has not done. The verdicts do not in themselves represent, on the public record, an affront to logic and commonsense. The fact that, if the jury were minded to be merciful, it would have been more logical to convict on count 6 and acquit on count 7, is an insignificant detail: from the point of view of mercy, it did not matter which count was the subject of the conviction. 'It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside' (MacKenzie v The Queen (1996) 190 CLR 348 at 368) [71].
56 In Jones, the accused was charged with three acts of sexual intercourse with a female child. The jury acquitted the accused of the second count, but convicted on the first and third counts. The accused appealed against conviction on the ground that there had been a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 (NSW). The majority of the High Court, applying the test in M, held that the convictions should be set aside in that they were unsafe and unsatisfactory. Gaudron, McHugh and Gummow JJ said:
Given the jury's finding on the second count, it was not open to them, on the whole of the evidence, to be satisfied beyond reasonable doubt of the guilt of the appellant on the first and third counts. Once the jury found that the evidence of the complainant with respect to the second count lacked sufficient cogency to convict, the Crown case on the first and third counts wore a different complexion. For it meant that, when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof.
As we have already said, nothing in the complainant's evidence gave any ground for thinking that the quality of her evidence was higher in respect of the first and third count than it was in respect of the second count (455).
57 In MFA, Gleeson CJ, Hayne and Callinan JJ made the following observations about Jones:
... some Judges have taken Jones as authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. That view is erroneous. It overlooks the attention to factual detail in the reasoning of Jones. It also overlooks the principles stated in MacKenzie, which were not qualified in Jones, and the considerations mentioned in the preceding paragraph [see [34] extracted above] in these reasons. Jones is not to be understood as establishing a set of legal propositions, separate or different from the test formulated in M, which must be applied in deciding whether a conviction on one or more counts of sexual offences, when the accused was acquitted on other counts, is unreasonable, or cannot be supported, having regard to the evidence [35].
Also see, in MFA, these comments of McHugh, Gummow and Kirby JJ in relation to Jones:
We would dissent from the proposition that Jones stands for a rule that, in cases of complaints of a number of sexual offences, a jury must either accept or reject the lot. It always remains for a court of criminal appeal whose jurisdiction is invoked to examine any differentiation in the verdicts to see if it can be justified. All that Jones decides is that, on the facts of that case, the necessary justification in logic and reasonableness was missing. Jones was a very fact-specific case. Indeed, all such cases are highly fact-specific [89].
58 See also Cecez v The State of Western Australia [2007] WASCA 260 [119] - [123]; G v The State of Western Australia [2007] WASCA 202 [68]; Ferris v The State of Western Australia [2007] WASCA 69 [142] - [146]; Riley v The State of Western Australia [2007] WASCA 22 [16] - [25]; VIM v Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [187] - [194]; R v Kirkman (1987) 44 SASR 591, 593.
59 Accordingly, there is no general rule that in cases where several sexual offences depend upon the complainant's evidence, acquittal on some counts requires the conclusion that the jury must necessarily have regarded the complainant generally as an untruthful witness or that his or her credibility was undermined in respect of the counts on which convictions were recorded: R v PMT [2003] VSCA 200; (2003) 8 VR 50 [25].
60 The appellant relied on certain observations of Kennedy J in the decision of the Court of Criminal Appeal in M v The Queen (1998) 104 A Crim R 154. However, those observations were made before the decision of the High Court in MFA which made plain that the decision in Jones was 'a very fact-specific case' [89], and that Jones does not stand for a rule that, in cases of complaints of a number of sexual offences, a jury must either accept or reject the lot [89]. All cases in which there are allegations of several sexual offences are highly fact-specific. The proper approach for this court is to identify and apply the relevant principles enunciated by the High Court in the various authorities to which I have referred.
61 In the present case, the appellant has not established any relevant inconsistency in the verdicts reached by the jury.
62 First, there is the evidence as to the nature and extent of the digital penetration concerning count 2 compared with the other counts alleging digital penetration. The complainant said, in relation to count 2, in examination-in-chief, that after the appellant had returned to the guest room on the second occasion and got on the bed, he 'straight away put his hands under my tracksuit pants ... and my G-string and started feeling me around on my clitoris' (trial t/s 204). The complainant also said that she remembered feeling his hand and finger moving around, up and down, and that he touched inside her labia majora (trial t/s 204). The complainant's evidence in relation to counts 3, 4 and 6 described the appellant's digital penetration of her vagina as being deeper and more forceful in nature (trial t/s 207 - 209). During his video record of interview with police, the appellant admitted that, after 'kissing' and 'cuddling' the complainant, he possibly touched the outside of the complainant's vagina, he may have put his fingers in the complainant's vagina, it was possible he penetrated the complainant's vagina with his fingers, and he touched the complainant's vagina but did not really penetrate it (VROI t/s 74 - 75). The appellant consistently denied, however, that there had been any 'forceful penetration' (VROI t/s 77, 82). The prosecution's case and the complainant's evidence was, of course, to the effect that count 2 occurred after count 1 (which alleged unlawful and indecent assault by the appellant inserting his tongue into the complainant's mouth) and before counts 3 - 7. At trial, the appellant gave evidence and recanted the admissions he had made in the video record of interview. Plainly, however, those admissions were against his interest and if the jury accepted that the admissions were truthful, it was entitled to take them into account in considering whether the prosecution had proved the appellant's guilt beyond reasonable doubt in relation to any of the counts in the indictment.
63 Secondly, on a fair reading of the transcript of his video record of interview, the appellant admitted only one occasion of digital penetration, even though he gave different accounts of the extent of the penetration. Certainly, the jury was entitled to conclude that there was no admission of more than one such occasion. The appellant did not admit in the interview the conduct the subject of count 1 and he denied the conduct the subject of counts 5 and 7.
64 Thirdly, there is the evidence as to what the appellant was wearing at material times. The complainant said, in examination-in-chief, that when count 2 occurred, the appellant was wearing a 'top and boxer style shorts' (trial t/s 206). During his video record of interview, the appellant admitted that he removed his jeans and was wearing boxer shorts (VROI t/s 72). Also, the appellant said, in examination-in-chief, in the context of returning to the guest room on the second occasion, that he was wearing 'a pair of shorts and singlet, T-shirt, whatever it was' (trial t/s 574). The complainant said, in examination-in-chief, that after the occurrence of count 2, when the appellant returned to the guest room on the third occasion, he was wearing only boxer shorts and no T-shirt (trial t/s 207).
65 Fourthly, there is the evidence as to the timing of the events the subject of count 2. The complainant said, in evidence-in-chief, that the appellant left the guest room after he fell off the bed shortly following the occurrence of count 1 (trial t/s 201 - 203). She also said that he returned to the guest room within 10 minutes, and count 2 then occurred (trial t/s 204 - 205). During his video record of interview, the police suggested to the appellant that after kissing the complainant in the guest room he had left the room, but had later returned and placed a finger into her vagina and over her clitoris. Although the appellant initially denied that he had kissed the complainant or digitally penetrated her vagina, he did admit, shortly after this denial, that he may have left the guest room, had a drink and then returned to the room (VROI t/s 37). Also, the appellant said, in examination-in-chief, that he had left the guest room after his first visit and returned on a second occasion, and it was during this second visit that he fell asleep on the bed and awoke later with his right hand on the outside of the complainant's clothes in the vicinity of her pubic area (trial t/s 572 - 576). The complainant said, in the course of her evidence in relation to count 2, that the appellant had stopped touching her and left the guest room to answer a telephone (trial t/s 205), and that he had later returned to the room and the incidents the subject of counts 3 - 7 had then occurred (trial t/s 206 - 210).
66 The learned trial judge properly instructed the jury to give separate consideration to each count (trial t/s 671). It is apparent that the jury obeyed this instruction, given their verdict of guilty on count 2 and not guilty on the other counts. A verdict of guilty does not necessarily imply that the jury disbelieved the complainant. It may simply have reflected a cautious approach to the discharge of a serious and important civic duty. The jury may have needed supporting evidence before reaching a conclusion beyond reasonable doubt in relation to each count, or may not have been able to reach such a conclusion if they considered the complainant had been more reliable about some parts of her evidence than others. The admissions which the appellant eventually made in his video record of interview with police may well have been a powerful consideration in the jury's decision to convict him on one of the counts (that is, count 2). Further, the jury may have felt, despite a number of offences being alleged, that justice was met by convicting him of one offence only. See MFA [34].
67 After the jury retired to consider its verdict, it sent a note to the learned trial judge. The note read:
Your Honour, some members of the jury seek clarification of the following:
(1) Your Honour's direction on the law relating to consent;
(2) Your Honour's summary statement relating to consent (trial t/s 702).
His Honour showed the note to trial counsel for the appellant and the prosecution in the absence of the jury. His Honour informed counsel of a further direction he proposed to give to the jury in respect of the note. Counsel for the prosecution had no comment. Counsel for the appellant said:
consent is not an issue in this case and it is whether the prosecution have proved beyond reasonable doubt that these incidents have occurred and perhaps if they can just be redirected as to the defence position that there is a denial that these incidents occurred (trial t/s 702).
His Honour then directed the jury, relevantly, as follows:
First, on the law, the law is that consent means consent freely and voluntarily given. Consent is not freely and voluntarily given if it is obtained by force or threat or intimidation. A failure of a person to offer physical resistance does not of itself constitute consent.
That's the answer to your first query. Your second query relates to the facts of this case, so I'm moving now from law to facts, and what I said to you this morning on that is that it's my view that consent is not an issue in this case. The question for you to ask yourself on each charge, it seems to me, is whether on all the evidence the state has proved beyond reasonable doubt that [the appellant] did the things of which [the complainant] gave evidence.
The state's case is that that is what occurred. The defence case is that these things did not happen at all, and that it seems to me on the facts of this case is the issue and consent, it seems to me, is not an issue in this case on the facts of this case (trial t/s 703).
68 When the appellant made the admissions against interest, in the course of his video record of interview, he maintained that the sexual contact in question was consensual. As I have mentioned, the appellant gave evidence at the trial and asserted that there had been no sexual contact and that the admissions in the video record of interview were untrue. Accordingly, the appellant did not raise, by way of defence at the trial, any issue as to whether the conduct alleged against him in the indictment was consensual or whether he had an honest and reasonable but mistaken belief that the complainant consented.
69 The indictment does, of course, allege in relation to each count that the conduct complained of occurred without the complainant's consent, the absence of consent being an element of the offence which the prosecution must prove beyond reasonable doubt.
70 It is apparent that, in the circumstances, the jury's question regarding consent was raised for the purpose of seeking clarification as to the relevance of consent to their deliberations. The learned trial judge's direction in response to the question explained carefully that, on the issues in contention at the trial and the manner in which the appellant had chosen to run his case, consent was not an issue. In my opinion, the jury's question does not raise any concern as to whether it correctly understood its task. Rather, it suggests that the jury adopted a careful and thoughtful approach to their deliberations.
71 The verdicts do not represent an affront to logic or commonsense. It was open to the jury, upon the whole of the evidence, to be satisfied beyond reasonable doubt that the appellant was guilty on count 2, but not to be satisfied to the requisite standard in relation to the other counts. My review of the trial record does not indicate that the jury failed correctly to appreciate its task or properly to apply its mind to the facts of the various counts in the indictment.
(ii) The question of whether the Complainant had experience in the judicial process generally, and in relation to sexual assault specifically was of significant importance in any assessment of the Complainant's behaviour at the time in question and to an assessment of her credit generally;
74 At the trial, counsel for the appellant sought to cross-examine the complainant in relation to statements she allegedly made on 4 June 2005 to Dr Brian Lynch. Dr Lynch said, in a statement which formed part of the prosecution brief:
I had asked her about previous history of a similar nature. She said a family friend had tried to touch her inappropriately when she was 14. This went to court, but the man was found not guilty. She also informed me that her sister's boyfriend had sex with her against her will 4 months previously. He was affected by alcohol and possibly marijuana at the time. She had taken no action about this sexual assault.
75 The appellant, in his written submissions to this court, said:
The significance of the Complainant's prior complaints was that, as a result of these complaints she had experience in the manner in which complaints of sexual assault are investigated and prosecuted. That she failed to preserve the integrity of the clothing, and refused to allow two different doctors to examine her, was particularly significant in light of her previous complaints, especially the complaint that was taken all the way to trial.
It was submitted that these prior incidents were of particular significance in the light of the complainant's admission in evidence that when she complained to police in South Australia about the appellant's conduct she was told not to wash her clothing.
76 According to the appellant, Judge Sweeney (who heard and determined the appellant's application for leave under s 36BC of the Evidence Act 1906 (WA) at a directions hearing before the trial) and the learned trial judge should have held that leave was not required under s 36BC to cross-examine the complainant as to her experience of the manner in which complaints of sexual assault are investigated and prosecuted in that the cross-examination would not have led to 'evidence relating to' the complainant's 'sexual experience'. Alternatively, the appellant contended that if leave under s 36BC was required, it ought to have been granted.
77 Section 36BC provides:
(1) In proceedings for a sexual offence, evidence relating to the sexual experiences of the complainant, being sexual experiences of any kind, at any time and with any person, not being part of the res gestae of the proceedings, shall not be adduced or elicited by or on behalf of an accused unless leave of the court has first been obtained on application made in the absence of the jury (if any).
(2) The court shall not grant leave under subsection (1) unless satisfied that -
(a) what is sought to be adduced or elicited has substantial relevance to the facts in issue; and
(b) the probative value of the evidence that is sought to be adduced or elicited outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission.
78 Recently, in Bolton v The State of Western Australia [2007] WASCA 277, Steytler P (with whom Buss and Miller JJA agreed) considered various aspects of the proper construction and application of s 36BC. His Honour said:
The words 'sexual experiences' include experiences as the victim of a sexual offence: Hill v The Queen [2003] WASCA 177 [48] (McLure J; Murray & Wheeler JJ agreeing). These words have also been construed as meaning actual sexual experiences, in the sense that the defence cannot, without leave, cross-examine a complainant on the question whether a previous complaint of rape involved consensual sex (see R v Tribe [2001] QCA 206 [22] - [24], [31] - [34] (Mackenzie J, McMurdo P & Williams JA agreeing)) but can, without leave, suggest to the complainant that a previous complaint of rape was false because the sexual act never occurred (R v Stergiou [2004] WASC 172; (2004) 147 A Crim R 120 [16] - [20] (Le Miere J)). The rationale for this distinction is that cross-examination contending that sexual activities did not take place at all is not cross-examination with respect to the complainant's sexual experience: see also R v MAG [2004] QCA 397 [24] - [27] (Williams JA, Cullinane & Jones JJ agreeing); R v Thow [2003] TASSC 16 [9] - [10] (Slicer J). Under Western Australian legislation, the lack of sexual experience is not caught by s 36BC: cf, in this respect, Criminal Procedure Act 1986 (NSW) s 293(3) [36].
79 Later, Steytler P referred to Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443, and noted:
As will be apparent, s 36BC provides that, where the evidence forms part of the res gestae, it will be admissible without leave. The words 'res gestae', in this context, refer to events that are so close in time and space to the offence charged as to be inseparable from it: Bull [110] (McHugh, Gummow & Hayne JJ). After referring to the remarks of Dixon CJ in Dawson v The Queen [1961] HCA 74; (1961) 106 CLR 1, 16, that 'the ingredients of a crime are to be proved by direct or circumstantial evidence of the events, that is to say, the parts and details of the transaction amounting to the crime, and are not inferred from the character and tendencies of the accused', the majority in Bull went on to say [112]:
This statement provides an insight as to what constitutes the 'res gestae' for the purpose of s 36BC. The existence of consent, for example, is not to be 'inferred from the character and tendencies of the [complainant]', but is to 'be proved by direct or circumstantial evidence of the events, that is to say, the parts and details of the transaction amounting to the crime'. Where an act or statement is intimately connected with the particular sexual conduct which is the subject of the charge, or in other words with 'the parts and details of the transaction amounting to the crime', it is part of the res gestae and so is admissible under s 36BC without leave. That applies to acts or matters tending to prove the disposition of the complainant, as well as to other acts or matters relating to the sexual experiences of the complainant.
The majority noted an apparent conflict between s 36B and s 36BC, and also between s 36BA and s 36BC. They said in this respect [64]:
That is because s 36BC allows evidence relating to sexual experiences to be adduced if it is part of the res gestae or if the court is satisfied of certain conditions and gives leave to adduce the evidence. Yet in terms ss 36B and 36BA respectively purport to render inadmissible any evidence relating to the sexual reputation of the complainant or to the disposition of the complainant in sexual matters even when it relates to or is derived from the sexual experiences of the complainant. The conflict between the literal meanings of these sections suggests that the literal meanings of ss 36B and 36BA must be qualified to some extent.
Next, before it can be admitted by leave under s 36BC, the evidence must be of substantial relevance. Evidence which is legally relevant must be excluded if its relevance is not substantial: Hill [58] (McLure J). Finally, if leave is to be given, the probative value of the evidence must not be outweighed by the distress and humiliation that the eliciting of that evidence may have on the complainant [43] - [45].
80 In Bolton, Steytler P also referred to the words 'evidence relating to' in s 36BC and in s 36B and s 36BA. His Honour observed:
The majority in Bull gave detailed consideration to the meaning of the words 'evidence relating to' in each of the three sections. They said [72]:
Evidence of a fact or matter is testimony that tends to prove that fact or matter. Accordingly, any evidence that tends to prove the disposition of the complainant is evidence relating to his or her disposition. Such testimony does not cease to be evidence relating to the disposition of the complainant because it also tends to prove some other fact or matter in the proceedings. Evidence that on the occasion in question or on other occasions a complainant had used sadomasochistic devices in the course of sexual activity would tend to prove the disposition of that complainant in sexual matters. The validity of the proposition would not be affected by the fact that the evidence was tendered for the purpose of proving a fact in issue such as consent or an honest belief that the complainant had consented. It may be that the natural meaning of the words 'evidence relating to' is wide enough to cover evidence that only incidentally refers to sexual reputation, disposition or experiences, an issue that we must later discuss. But it seems impossible to deny that those words in their ordinary meaning at least cover any testimony which tends to prove any of those matters.
Sometimes, however, testimony of an out-of-court statement is admissible to prove a fact relevant to a fact in issue such as the intention or purpose of the complainant or even the consent of the complainant. If the statement contains material that refers to matters relating to the reputation, disposition or experiences of the complainant in sexual matters, would it be evidence tending to prove those matters and prohibited by one or more of the three sections? We think not.
The majority also compared hearsay statements with evidence of conduct. They said [80] - [81]:
If a hearsay statement is admissible to prove a fact in issue or a fact relevant to a fact in issue, it is evidence of that fact only and the statement cannot be regarded as evidence tending to prove any fact in the statement. It follows that, in a trial to which ss 36B, 36BA or 36BC apply, a statement of the complainant that is admissible to prove a fact in issue or a fact relevant to a fact in issue other than the reputation, disposition or experiences of the complainant in sexual matters, does not become, upon admission, evidence tending to prove those matters even if the contents of the statement refer to them. The statement has no probative value in respect of those matters. Accordingly, it is not evidence tending to prove any of those matters.
But, as we have said, evidence of conduct stands in a different category. The ordinary and natural meaning of the words 'evidence relating to' is that they cover any testimony that tends to prove a fact or matter. If testimony tends to prove the sexual reputation, disposition or experiences of the complainant in sexual matters, it does not matter that it is adduced for some other purpose. It will, by force of ss 36B, 36BA and 36BC, be inadmissible for all purposes [46] - [48].
81 The evidence of the alleged previous incidents referred to in Dr Lynch's statement was not admissible under the law of evidence, independently of s 36BC, unless it was relevant.
82 In my opinion, the appellant did not establish at trial that the evidence in question, for the purposes of ground 2, was relevant. It did not rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue, or a fact relevant to a fact in issue, in the proceedings. See Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [2] (Gleeson CJ); Phillips [50]. Also, it did not relate to the complainant's credit.
83 The first alleged incident involved an attempt to inappropriately touch the complainant. On the evidence, and the appellant's case and proposed case at trial, there is no basis for supposing that there was any necessity for the integrity of the complainant's clothing to be preserved and no basis for supposing that she derived any experience as to the importance which is ordinarily attached to the preservation of the integrity of a complainant's clothing or his or her prompt examination by a medical practitioner where the complainant alleges an actual sexual assault (as distinct from an attempted inappropriate touching). The second alleged incident involved an actual sexual assault with penetration. It is apparent, however, from Dr Lynch's statement that the complainant did not make any complaint to the police about the assault and no action was taken against her sister's boyfriend. Again, on the evidence, and the appellant's case and proposed case at trial, there is no basis for supposing that, as a result of this incident, the complainant derived any experience as to the importance which is ordinarily attached to the preservation of the integrity of a complainant's clothing or his or her prompt examination by a medical practitioner where the complainant alleges an actual sexual assault.
84 Chandu Nagrecha [1997] 2 Cr App R 401 is distinguishable on the basis explained by McLure JA in her reasons.
85 Accordingly, ground 2 is without merit, irrespective of the proper construction and application of s 36BC. I will, however, make some brief observations in relation to the section.
86 In my opinion, the notion of 'sexual experiences' within s 36BC, in combination with the object or purpose of the Parliament in enacting that provision, is broad enough to embrace an attempted sexual assault or an attempted indecent dealing.
87 In my opinion, therefore, evidence of the alleged previous incidents referred to in Dr Lynch's statement was evidence relating to the complainant's sexual experiences within s 36BC(1). Plainly, those incidents were not part of the res gestae of the proceedings against the appellant.
88 If the evidence which the appellant's counsel had sought to adduce in cross-examination of the complainant at the trial was not for the purpose of establishing the truth of the alleged previous incidents, but to establish some other fact that was legally relevant, the evidence would not have been inadmissible under s 36BC(1). See Bolton, where Steytler P said:
However, the appellant did not seek to lead the evidence for the truth of its contents concerning the complainant's sexual disposition or sexual experiences. He sought to rely upon it for three reasons, as I have said. The first was in order to prove the complainant's intention or purpose in going to his house which, in turn, was relevant to the issue of consent. The second was in order to prove the appellant's understanding of what the appellant was willing to do if she came to his house which, in turn, was relevant to the issue of honest and reasonable belief in consent. The third was in order to cast doubt on the complainant's credibility concerning her memory of the conversations, her professed lack of sexual interest in the appellant (which, she said, she had conveyed to him) and her reasons for going to his home.
Applying what was said by the majority in Bull [80], the complainant's hearsay statements were admissible to prove intention or purpose (being relevant to consent) and the appellant's understanding (being relevant to honest and reasonable belief) and could not be regarded as evidence tending to prove the complainant's sexual disposition or sexual experiences, in respect of which they had no probative value. The only other relevance of the statements related to the issue of credit. Consequently, the evidence was not excluded by either of s 36BA or s 36BC, although a strong direction would have been needed in order to make it plain to the jury that the evidence was admissible only for the purposes identified and not for the purpose of proving sexual disposition or experiences and that they should not engage in impermissible reasoning in respect of it [63] - [64].
89 As I have mentioned, I have concluded that evidence relating to the alleged previous incidents referred to in Dr Lynch's statement was not relevant to a fact in issue or a fact relevant to a fact in issue or to the complainant's credit, and, therefore, independently of s 36BC, the evidence was not admissible.
90 In my opinion, the decision of each of Judge Sweeney and the learned trial judge to refuse to permit the appellant's counsel to cross-examine the complainant on the alleged previous incidents was correct.
93 At the trial, there was evidence that on 14 August 2005 the complainant consulted Dr Clive Fowler. Dr Fowler made a note in his medical records on that day in relation to the consultation. The note reads:
Raped, 6-7 weeks ago in Perth - no actual penetration of vagina. Nauseated and upper abdominal pain - burning.
94 The appellant's counsel cross-examined the complainant on Dr Fowler's note. She admitted having said to Dr Fowler that there was no vaginal penetration. She explained, however, that in making that statement to Dr Fowler she meant that there had been no penile (as distinct from digital) penetration of her vagina.
95 In summary, the terms of the complainant's statement, as recorded in Dr Fowler's note, were put to her as a prior inconsistent statement, but she admitted making the statement and gave an explanation for it. Any evidence from Dr Fowler as to the alleged prior inconsistent statement was therefore not admissible under s 21 of the Evidence Act or at common law. See MJH v Western Australia [2006] WASCA 167; (2006) 33 WAR 9 [148] - [152] (Buss JA).
96 Dr Fowler was not called as a witness, but Dr Lynch (who practised at the same medical practice as Dr Fowler) gave evidence including in relation to Dr Fowler's note.
97 I agree with McLure JA, for the reasons she gives, that ground 3 is without merit. I have some brief additional observations.
98 Section 79C(1), (2) and (2a) make admissible statements in a document, and not the document itself. The existence of an admissible statement in a document therefore does not make the balance of the document admissible, if it is otherwise inadmissible. See Re Marra Developments Ltd & The Companies Act [1979] 2 NSWLR 186, 198 (Needham J).
99 Section 79C(3) is significant. By s 79C(3)(a), s 79C makes a statement admissible notwithstanding the rules against hearsay. See the observations in Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542, 569 (Hutley JA) in relation to the identical New South Wales provision. Section 79C(3)(b) provides that s 79C makes a statement admissible notwithstanding the rules against secondary evidence of the contents of a document. Section 79C(3)(c) provides that s 79C makes a statement admissible notwithstanding that the person who made the statement or the person who made a statement from which the information in the statement is reproduced or derived is a witness in the proceedings, whether or not he gives evidence consistent or inconsistent with the statement. As J D Heydon notes in Cross on Evidence, 7th Aust ed, [35315]:
If strict regard had to be paid to the rules as to prior consistent or inconsistent statements of witnesses there could be extreme problems in the orderly calling of witnesses. Statements tendered as business records can be admitted even though they are consistent or inconsistent with the sworn evidence of their makers. A party can tender a business record even though it is consistent with his witness's sworn evidence; he can tender his own witness's prior inconsistent statements as business records even though the witness is not hostile; and prior consistent and inconsistent statements in business records can be tendered not merely as going to credit, but as evidence of the matters of fact or opinion asserted.
Section 79C(3)(d) provides that s 79C makes a statement admissible notwithstanding that the statement is in such a form that it would not be admissible if given as oral evidence. The concluding words of s 79C(3) state, however, that s 79C does not make admissible a statement which is otherwise inadmissible.
100 The learned trial judge exercised the discretion conferred on him by s 79C(6) to reject Dr Fowler's note because of the failure of the appellant's counsel to tender the note under s 79C earlier in the proceedings and because his Honour had already outlined the issues in the trial to the jury and the tendering of the note and further directions in relation to it would not be of any assistance to the jury. A proper interpretation of his Honour's reasons is that, in terms of s 79C(6), his Honour was of the opinion that the probative value of the statements in Dr Fowler's note was outweighed by the consideration that its admission at a very late stage of the trial (after the jury had retired) may confuse the issues.
101 In my opinion, the appellant has failed to establish that the learned trial judge made a material error of fact or law in the exercise of his discretion. In any event, even if his Honour did make a material error of fact or law, the error did not occasion a miscarriage of justice. The appellant's counsel cross-examined the complainant in relation to Dr Fowler's note, she admitted making the statements in question, and she gave an explanation in relation to them. It was for the jury to assess whether to accept or reject her explanation, and to decide what impact any rejection of her explanation had upon her credit.
103 Ground 4, with supporting particulars, alleges:
104 In Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1, the accused was charged with sexual offences against a child aged 14. The prosecutor asked the accused in cross-examination whether he could suggest any reason why the complainant should invent the allegations against him. He said that he had no idea why she might have done so. The accused was convicted of ten of the 11 charges against him. The Court of Appeal of Victoria dismissed the accused's appeal, but that decision was reversed by the High Court. Brennan CJ, Gaudron, Gummow and Kirby JJ held that the prosecutor's question had such a prejudicial effect on the fairness of the trial that there may have been a miscarriage of justice. The question was impermissible for these reasons. First, the question invited the jury to speculate as to what might be possible motives for lying and to assess their likelihood, and such speculation is inconsistent with trying the case against the accused on the evidence. Secondly, the question was unfair to the accused in that neither the accused nor his counsel could be expected to understand and explain the mind of the complainant. Thirdly, the question was unfair to the accused in that if credibility which the jury would otherwise attribute to a complainant's account is strengthened by an accused's inability to furnish evidence of a motive for the complainant to lie, the standard of proof which the prosecution bears is diminished. Brennan CJ, Gaudron and Gummow JJ noted the importance of distinguishing between cross-examination of a witness as to the motive of that witness to lie and cross-examination of another witness designed to show that that witness does not know of any fact from which to infer that the first witness had a motive to lie [9]. Their Honours approved the following observations of Hunt CJ at CL in R v Uhrig (Unreported, NSWCCA, 24 October 1996) :
What this Court said in R v F and in R v E should not be interpreted as excluding arguments being put to the jury, by either counsel or the judge, relating to the validity of the motive to lie which has been asserted in relation to a witness in the particular case. That is so notwithstanding that there is no requirement for the accused to prove such a motive, although in many such cases where the evidence of that witness is vital to the Crown case it would be appropriate for the judge to direct the jury that, even if they reject the motive to lie put forward by the accused, that does not mean that the witness is necessarily telling the truth, and to emphasise that the Crown must still satisfy them that the witness is telling the truth. I believe that it is necessary for such a distinction to be stated expressly, in order to avoid skilful advocates attempting to persuade trial judges that a necessary consequence of this Court's decisions in those two cases is that arguments relating to a motive to lie are excluded in every case. That is not a necessary consequence at all (16 - 17).
105 In Straker v The Queen (1977) 51 ALJR 690, the appellant was convicted of murder after a trial before a judge and jury. The prosecution alleged that the appellant killed the deceased by striking him on the head with a hammer. The appellant did not deny having struck the blows, but asserted that they were the result of provocation by the deceased and by way of self-defence when the deceased made a homosexual assault upon him. The appellant appealed to the High Court and complained, relevantly for present purposes, that the trial judge had erred in admitting into evidence the following question and answer which appeared in the record of an interview between the appellant and police:
Q. Did you at any stage that night have anal intercourse with that person [that is, the deceased]?
A. No.
There was no evidence to the effect that anyone had had anal intercourse with the deceased on the night of his death. The High Court held that the denial of the appellant was not capable of being regarded by the jury as an admission against interest. Gibbs J said:
Evidence was also given that the appellant, in the course of his interrogation by the police, was asked questions as to whether he had had anal intercourse with the deceased. This he denied. This evidence should have been excluded in accordance with the rule of practice that has been followed ever since the decision in R v Norton [1910] 2 KB 496, at p 500. Questions 155 to 159 (both inclusive) and answers thereto should have been excised from the record of interview and not allowed to go before the jury (694).
Out of court statements made by an accused are only admissible as evidence of the truth of their contents if they constitute admissions against interest. However, where the prosecution seeks to rely upon incriminating parts of an out of court statement and the statement also contains exculpatory material, the whole of the statement must be tendered as a matter of fairness to the accused. Mere denials do not have any probative value and, in consequence, are irrelevant and therefore inadmissible.
106 I agree with Miller JA, for the reasons he gives, that ground 4 fails.
In the event that the Court is not satisfied that the errors identified in any of the individual grounds of appeal constitutes or has led to a substantial miscarriage of justice the combination of errors has led to such a miscarriage.
108 For the reasons I have given, none of grounds 1, 2, 3 or 4 has been made out. An assessment of those grounds and the appellant's arguments in relation to them does not establish an error or a miscarriage of justice when the grounds and arguments are considered and weighed as a whole.
110 The grounds, with supporting particulars, are these:
111 By s 6(4) of the Sentencing Act 1995 (WA):
A court must not impose a sentence of imprisonment on an offender unless it decides that -
(a) the seriousness of the offence is such that only imprisonment can be justified; or
(b) the protection of the community requires it.
112 A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in Div 1 of Pt 2 of the Sentencing Act, relevantly, that it is not appropriate to impose suspended imprisonment. See s 39(2) and (3) of the Act.
113 Section 76(1) of the Sentencing Act provides:
A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court; but not more than 24 months.
By s 76(2), suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.
114 In Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, Kirby J made the following observations in relation to s 76(1) and (2) of the Sentencing Act:
Moreover, the scheme of the legislation, and the two steps which s 76(1) and (2) of the Act requires, suggest, as a matter of construction, that the same considerations that are relevant for the imposition of the term of imprisonment must be revisited in determining whether to suspend that term (Thomas, Principles of Sentencing, 2nd ed (1979), pp 244-245; R v P [1992] FCA 626; (1992) 39 FCR 276 at 285). This means that it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender. It would be surprising if the legislation were to warrant, at the second step, concentration of attention only on matters relevant to the offender, such as issues of the offender's rehabilitation and the court's mercy (cf R v Shueard (1972) 4 SASR 36 at 43; R v Prindable (1979) 23 ALR 665 at 669; R v Davey [1980] FCA 134; (1980) 2 A Crim R 254 at 259-260). On the contrary, the structure and language of s 76(2) of the Act support the view that what is required by a proposal that a term of imprisonment should be suspended is reconsideration of 'all the circumstances'. This necessitates the attribution of 'double weight' to all of the factors relevant both to the offence and to the offender - whether aggravating or mitigating - which may influence the decision whether to suspend the term of imprisonment (R v Liddington (1997) 18 WAR 394 at 402, per Ipp J) [85].
115 The factors to be considered when deciding whether or not to suspend a sentence of imprisonment were referred to by Steytler J (as his Honour then was) in R v Liddington (1997) 18 WAR 394. His Honour said:
Amongst the factors which should be considered, in addition to the prospect of rehabilitation taken together with the personal deterrence provided by the threat of activation of the suspended sentence, are the perceived seriousness and intrinsic character of the particular offence (see Wood v Samuels (1974) 8 SASR 465; R v Kruger (1977) 17 SASR 214 at 221; R v Causby (at 62-67); R v Kirk (1984) 6 Crim App R (S) 231; GP, per Malcolm CJ (at 220), Murray J (at 234) and Steytler J (at 243), whether there is any element of persistence (see Wood v Samuels (at 468); R v Kruger (at 221)); general deterrence (Causby (at 62); factors personal to the offender including mitigating circumstances which, while no doubt already taken into account in arriving at the decision to impose imprisonment of a particular term, may have to be considered again as regards the question whether or not to suspend the period of imprisonment so arrived at (see R v P [1992] FCA 626; (1992) 39 FCR 276 at 285; R v Locke (1973) 6 SASR 298 at 302; Jarrett v The Queen (1992) 58 SASR 457 at 459; Scott v SA Police [1993] SASC 4038; (1994) 61 SASR 589 at 592; cf R v Percy (at 72 - 73); the need to demonstrate the condemnation of the community for offences of that kind (Causby (at 62); GP, per Malcolm CJ (at 220); and reasons militating in favour of an exercise of mercy (R v Osenkowski (1982) 30 SASR 212 at 212-213; R v P (at 285); GP, per Murray J at 234).
That list is, of course, not exhaustive. There can, in the very nature of the exercise which must be undertaken, be no comprehensive list of specific criteria (cf Wood v Samuels (at 468)) and the factors to be taken into account, and their relative importance in any given case, will necessarily vary with the differing circumstances of each case (406).
116 I agree with Miller JA, for the reasons he gives, that the grounds of appeal against sentence are without merit.
117 I would dismiss the appeal against conviction and the appeal against sentence.
118 MILLER JA: The appellant was charged on an indictment in the District Court at Perth which alleged two counts of indecent assault, four counts of digital sexual penetration without consent and one count of attempted penile penetration without consent. The appellant pleaded not guilty and was tried before Martino DCJ and a jury in August 2007. On 15 August 2007, he was convicted of count 2 on the indictment, being the offence of sexual penetration without consent by penetration of the vagina with the
finger. He was acquitted of all other counts on the indictment. On 12 February 2008, he was sentenced to imprisonment for 15 months with an order for eligibility for parole. There was also a lifetime violence restraining order imposed upon the appellant.
119 The appellant appeals against both conviction and sentence. He was granted leave to appeal against conviction on 27 August 2007 and leave to appeal against sentence on 17 March 2008.
120 The grounds of appeal against conviction contain four primary grounds. Without the particulars annexed to those grounds, they are in the following terms:
...
GROUND 2 - PREVIOUS SEXUAL EXPERIENCE OF COMPLAINANT
121 There is a fifth ground of appeal which contends that if the court is not satisfied that any individual ground of appeal has led to a substantial miscarriage of justice, the combination of errors made by the trial judge led to such a miscarriage. The particulars in relation to each of the grounds of appeal are extensive and can later be dealt with.
122 The grounds of appeal against sentence are as follows:
123 To understand the grounds of appeal against conviction, particularly the first ground which contends that the verdicts of the jury were inconsistent, it is necessary to outline the evidence at trial.
124 The complainant was 25 years of age at the time of trial and approximately 23 years of age at the time of the alleged offences. She lived in South Australia and was separated from her husband. She flew from Adelaide to Perth on 29 May 2005 with the intention of looking at Perth with a view to moving there. She brought with her her 9-month-old daughter.
125 Upon arrival in Perth, the complainant took a taxi to the home of her ex-husband's cousin in Mindarie. She remained there on 30 and 31 May.
126 On the evening of 31 May, there was a dinner party at the house where the complainant was staying. A number of people arrived at the house, one of whom was the appellant. He was a married man, but came alone to the function. Alcohol was consumed by those who were present, but not by the complainant.
127 At the end of the evening, when most of the guests had left, the complainant had a dispute with her ex-husband's cousin, as a result of which he asked her to leave the house. The complainant went to her room, packed her gear, organised her daughter's things, and took them to the front door. She had nowhere to go and knew nobody in Perth. She was able to contact her mother who was staying with friends in Mandurah, but her mother was unable to pick the complainant up until the following day.
128 The appellant had observed what had occurred. He invited the complainant to stay at his house overnight and the complainant accepted. She left the house at which she had been staying in the appellant's vehicle. She was accompanied by her child. She said that she went with the appellant because she did not have much choice and had nowhere else to go.
129 The appellant's house was a two-storey home also in the suburb of Mindarie. The appellant drove to it and when he arrived there, he told the complainant that his wife did not know that she was coming. The complainant asked him if she should stay in the vehicle whilst he checked with his wife that it was all right for her to stay, but the appellant said not to worry and that he would tell her later.
130 Upon arrival at the house, the complainant took her daughter and her things into the house. The appellant showed her a room on the ground floor where she could stay. After she had put her things in the room, she came out and observed the appellant's wife descending the stairs. The complainant described the appellant's wife as 'wobbly on her feet' and having the appearance of being drunk. The appellant's wife went into the room which the complainant was to use and fell asleep on the bed. She was awoken by the appellant who told her to return upstairs. The appellant then left, but, according to the complainant, he returned not long afterwards. By that time, the complainant was in bed with her daughter.
131 The complainant said that, when the appellant arrived in her room, he switched off the light, came to her bed, pulled back the blankets and hopped in beside her. She said that she asked him what he was doing and that he said, 'You know why I've brought you back here'. At the same time, he put his hand onto her 'stomach, waist'. The complainant said that she told the appellant:
[N]o, that I wasn't doing it, I wasn't going to do anything with him. I also said about his wife upstairs. I remember saying, 'Don't you love your wife?'
132 The complainant said that the appellant replied that she should not worry about his wife, that she did not know anything, and that she was drunk. The complainant said that the appellant then kissed her and she felt his tongue inside her mouth. She said she pulled away, asked him to stop, and then pushed him. He fell off the side of the bed, and then left the room. About 10 minutes later, he returned and she noticed the room darkening. She said he had pulled the door half over so that it was half shut. She said that he walked back to the side of the bed and got into the bed, but this time on top of her. She recalled that he smelled strongly of alcohol, along with 'a mint smell as well'. Her evidence then continued:
I was on my back, he was on top of me. He hadn't touched me anywhere. He straightaway put his hands under my tracksuit pants that I had on and my G string and started feeling me around on my clitoris.
And how did you respond to that?---I was telling him to stop, get off of me.
Did he get off you?---No.
You said what you said in response to you touching you in that way, what were you doing as he was touching you in that way?---I was moving around, trying to get out from underneath him, just fighting him back, doing what I could to get him off of me.
Where was the baby at this point?---She was still lying next to me.
You say - I withdraw that.
Where exactly was he touching you?---He was touching me on my clitoris.
How many fingers was he using, are you able to remember?---I don't
Do you remember how many fingers he was using on this occasion?---I just felt his hand and a finger.
And what was the movement of the finger? In what way was he moving it?---Around, up and down.
You may be familiar with the term labia majora?---Yes.
You are familiar with that term?---Yes.
The outer lips of the vagina?---Yes.
Where was he moving in relation to the outer lips of the vagina?---He was actually touching inside that.
133 The complainant said that the telephone then rang in the appellant's office. He got up and went to the telephone. She heard him pick it up, but then put it down. She then heard it ring a second time and she heard him pick the telephone up and then slam it down.
134 The complainant said that the appellant then returned. This time, he shut the door. He got back on top of her and 'did the same thing'. She said that he put his hands underneath her tracksuit and her G-string and this time she felt his fingers go inside her. She said his fingers were moving in and out. She just lay there. She could not move because he was on top of her. He had hold of her hands with one hand, but was feeling inside her with the other. She said that he then leaned up off her. She had earlier felt his erection and he then tried to push his penis into her whilst he was feeling inside her vagina. She said that the only thing that stopped his penis from penetrating her was the G-string she had on. At some stage, the appellant lifted up her leg. He then lost balance and fell onto the complainant's daughter, who started crying. The complainant had to settle her daughter.
135 The complainant said that she had a tracksuit set down below her knees and still had on her G-string. Her legs were slightly apart in the way in which she was kneeling. She asked the appellant to leave her alone and said she had had enough for the night. At this point, the appellant 'slammed his fingers inside [her], back inside [her] vagina'. She said that she called out because she was hurt, grabbed the appellant's hand, pulled it away and told him to stop. She said she made it clear that she was not interested in him in any way.
136 The complainant said that the appellant then grabbed her behind the back of her neck and tried to kiss her again. He pushed her head down towards his penis a couple of times, but she kept pulling her head away and said she was not 'doing it'.
137 The complainant said that the appellant told her she was a 'stupid bitch' and that he had brought her back for that reason and should be able to do what he wanted with her. Ultimately, when the complainant mentioned leaving the house, the appellant told her to forget it, as she had nowhere to stay and should just stay there. He then left the room and did not bother her again.
138 The evidence of the complainant embraced the conduct which was said to constitute the seven counts on the indictment. It was only the second count which the jury found proven; namely, that the appellant had sexually penetrated the complainant without her consent by penetrating her vagina with his finger. That verdict clearly related to the first penetration in point of time. Count 1 related to an alleged indecent assault by the appellant 'sticking his tongue into [the complainant's] mouth', which was the incident that the complainant said preceded what followed. On this count, the appellant was acquitted.
139 Clearly enough, the jury accepted the testimony of the complainant in relation to the first incident of digital penetration, but not in relation to any further incidents. That is to say, the jury was not satisfied beyond reasonable doubt on the complainant's evidence and on the totality of the evidence that these alleged offences had occurred.
140 The complainant said that she went to sleep after the appellant left. She woke in the morning when she heard movement in the house. She said that the appellant knocked on her bedroom door and opened it. He walked in and offered her a coffee. His attitude was 'like nothing had happened at all'.
141 The complainant said that she accepted the coffee which the appellant had brought. After giving it to her, he left. She then packed her things, had a shower and left the room. She said that she had gone to the toilet in the morning and when she had wiped herself, she had noticed that there were spots of blood on the tissue. These, she said, were from the vaginal area. She said she was in a lot of pain. She believed that the blood had been caused by the appellant scratching her.
142 The complainant said she left the room and went to the kitchen, where she saw the appellant's wife who was dressed for work. She said that the appellant's wife looked at her as if she did not know who she was, or what she was doing there and that she (the complainant) had to reintroduce herself and tell her that she had seen her the night before. The appellant's wife seemed not to remember this.
143 The complainant said that she ate some breakfast whilst the appellant's wife was present. She made no mention of what had happened the night before because she felt that the appellant's wife did not need to know and she was not comfortable in telling her. She said that the appellant acted normally and as if nothing had happened. She 'went along with it'.
144 After the appellant's wife had left for work, the complainant spoke by telephone with her mother. It transpired that her mother was unable to come and collect her. The appellant told the complainant that he would take her to Mandurah, which he did. He dropped her at a taxi stop in Mandurah at about 11 am. The complainant said that she was not happy, but she was behaving normally. She said that she was scared of the appellant because she did not know what he was capable of.
145 Upon arrival at her mother's place, the complainant told her mother that she had been sexually assaulted. She gave no detail, but said that she was in pain and that she had been bleeding. Her mother wanted her to see a doctor, so an appointment was made. Contact was made with the Flight Centre to see whether the complainant could get the next available flight to Adelaide. The complainant said that she saw a doctor and then immediately left for the airport, flying out of Perth to Adelaide via Melbourne later in the evening.
146 The complainant said that, when she got home to South Australia, she threw her clothing in the wash. The items of clothing were washed, worn, washed again and then later handed into the police at Victor Harbour in South Australia.
147 The cross-examination of the complainant was extensive. It was put to her that the appellant gave her every assistance that he could, particularly in relation to the settling of her child and that, whilst the complainant was in the bathroom with her child, the appellant fell asleep on the bed in the room where the complainant had been placed. It was put to the complainant that, when the appellant woke up, he had his hand 'accidentally' on her crotch area. The complainant denied both of these matters, saying that the appellant was never in the bed 'to wake up'. It had been put to the complainant that she was wearing a G-string, but no pants. She denied this and said she was wearing black tracksuit pants with a pink G-string underneath. She said she was 'fully clothed'.
148 The thrust of the appellant's case was that he had never touched the complainant 'under her clothes or offensively at all that night', but the complainant said that he had. It was put to the complainant that none of what she had said about the appellant inserting his fingers in her, or attempting to penetrate her with his penis was true, but she said that everything she had said in court was true. She was asked why she had not called out for help and she said that she did not 'react like that'. She said that she could not go 'running around the streets with a baby' and that she was traumatised by what had occurred. She admitted she made no attempt to contact anybody. She said that she was shaking and shivering all night with anxiety. She said that she was on a lot of medication for a personality disorder. This included taking a drug called Zoloft. After the incident, she took a variety of drugs and experienced auditory hallucinations.
149 The complainant admitted that, when she spoke with her mother by telephone the following morning, she did not say that she had been sexually assaulted. She said that she told her mother that she would explain things when she got down to her.
150 The complainant was asked about her clothing and whether or not she thought it should have been preserved for evidence. She said that she did not think that and that it never occurred to her that she should have kept the clothing to show police. She said she was too worried about getting home.
151 The complainant said that she went to a doctor at the 'Mandurah Doctors' Surgery' and that she had done this after showering. She had showered because that was her routine. She remembered using the toilet at the appellant's home, but had no recollection of using the shower.
152 The complainant admitted that, whilst in Perth, she had not seen police at any time. She did not see police until she went back to South Australia. She saw a Dr Lynch in South Australia, but she said that she never told Dr Lynch that she had seen any police in Perth. It was when she arrived back in Adelaide that she went to a police station on Stuart Highway, Marion and reported what had happened.
153 The complainant was asked about seeing a doctor in South Australia on 14 August 2005, but she said she had no recollection of seeing a doctor on that date. She was asked whether she had ever told a doctor that she was raped six or seven weeks beforehand in Perth 'but there was no actual penetration of [her] vagina'. She said that she did not think she gave her doctor full details and that they were not her words. When it was put to her that she told her doctor in South Australia that there was no penetration of her vagina, she said, 'I was referring to him putting his penis inside me'.
154 The complainant said that she had reported to police on 2 June 2005, being the day she arrived back in Adelaide. She first went to Sturt police station, but was told to go to her hometown in Victor Harbour and speak to police there. She could not recall how she had described what had occurred to her. She was unable to say whether she had said that it was rape or sexual assault.
155 The complainant was taken again to the medical consultation she had on 14 August 2005. It was put to her that it was a Dr Clive Fowler at Norfolk House in South Australia. She agreed that she had seen Dr Fowler. She agreed that she had told him there had been no vaginal penetration. She said that what she meant was that the appellant's penis had not gone into her.
156 The appellant was interviewed by police on a number of occasions on 18 October 2005. They were video recorded interviews. In the first interview, the appellant was told that the complainant had made a complaint that he had digitally penetrated her. He denied this and said that the allegation was rubbish. In a second interview on the same day, the appellant initially denied that anything untoward had occurred with the complainant, saying that any allegation that he had sexually assaulted her was wrong. When it was put to him that he had 'slid [his] hand over her stomach and waist', he said, 'Well, I'm sorry, but I didn't'. He denied that he had left the room and returned shortly afterwards. He was asked what he was wearing and said that he was wearing boxer style underpants (this was the description given by the complainant of the underpants the appellant was wearing), but he denied having taken his clothes off at any time. He consistently denied that he had got into bed with the complainant and placed his fingers 'into her vagina and over her clitoris'. He said that he may have returned to her room at one stage, but then gone back out and turned the light off.
157 Later in the interview, the appellant changed his account of things. He first said that he may have touched the complainant by 'cuddling her' and that he may have kissed her.
158 He then said, 'I'll tell you the facts'. Extracts from what then followed are:
159 Ultimately, the appellant's admissions took the following form:
161 The appellant concluded by telling police that what took place occurred 'with her [the complainant's] consent'. He was asked about the issue of consent and said:
162 Finally, the appellant's admission to digital penetration was in the following terms:
163 The appellant gave evidence at trial that on the night of 31 May he went to Dean Marsden's residence in Mindarie for a barbeque dinner party. He had already eaten and so he told Mr Marsden that he would come around for a drink. He arrived at about 8.00 or 8.15 pm and observed that there were about eight people there. He recognised Lorna Gladwin, whom he knew from the real estate industry.
164 On his arrival at Mr Marsden's house the appellant drank red wine. He had previously had two pints of beer at The Ship in Mindarie. He had also had two bottles of Crown Light at home.
165 Towards the end of the evening, when he was about to go home, the appellant heard a commotion in the hallway of the house. Mr Marsden was yelling and screaming 'Get out of my fucking house. Take your kid with you and don't come back' and the appellant realised it was the complainant to whom he was speaking. The next thing he observed was that the front door was opened and all of the complainant's belongings were put outside the door. The appellant remonstrated with Mr Marsden but he refused to have the complainant in the house. There was discussion as to where the complainant would go and the appellant told her that if she could not fit into Lorna Gladwin's house she was welcome to stay at his place which was around the corner. The complainant asked the appellant whether he could take her to Mandurah and he replied that he could not do so that night. Nor could he take her to the bus station. He was not fit to drive any distance.
166 The appellant repeated that the complainant could stay at his place and said that he would take her to Mandurah in the morning. The appellant said that he had no intention of any 'sexual liaison' with the complainant at the time he made the offer of accommodation to her.
167 The appellant said that he rang his wife and told her of the situation. She responded that it was 'fine' for the complainant to come and stay.
168 The appellant said that he drove the complainant to his house and made available to her the spare guest room which was on the lower level of the two-storey residence. All of the complainant's possessions were taken into the house and the complainant and her child went to the guest room. The appellant said that he went to the toilet when he arrived home. He observed that his wife was in the kitchen area. He had no recollection of any discussion between the complainant and his wife. He denied that his wife gave any appearance of being drunk.
169 The appellant said that he possibly got himself another drink when he arrived home. He said that he offered the complainant a drink but she declined the offer. He said that his offer of a drink was 'to be social'. He told the complainant that they would have to leave pretty early to go to Mandurah because he had to be back for work at about twelve noon. He told her where the telephone was and then went to bed.
170 The appellant said that when he first went to bed he was wearing the clothes that he had been wearing that night. They were a pair of jeans and a green jumper. When he left the complainant she was unpacking her bags.
171 The appellant had gone to bed and then heard a baby crying. He got up and went down stairs. By this time he had apparently changed. He put on a T-shirt, and appears to have been wearing what he described as football shorts.
172 The appellant went to the complainant's room. The light was on. He asked her what was the problem and she said that the baby had been sick. She went to the bathroom to clean up the baby and the appellant sat on the edge of the bed. The next thing that happened was that he lay on the bed and nodded off. He woke up lying on the left side of the bed. He was in a pair of shorts and a T-shirt. He thought that the baby was on a blanket on the floor. He observed that the complainant was on the bed wearing a top and pants. She was wearing a G-string. One of the appellant's arms was over her stomach. He was asked to describe where it was and he said: 'The sort of bikini line, the lower tummy'. He was asked whether that was near the pubic area and he said that it was. It was 'in that area'. His hand was near that area. He described it as being: 'On top of her pants line'. He then admitted that it was on her pubic area. He said that it was quite unintentional that it was there. He took his hand away as soon as possible and felt embarrassed. At no stage did he put his hand under the complainant's clothing either then or at any time during the night.
173 The appellant said that at no stage during the night did he intend to touch the complainant sexually. He denied that at any time that he was in the room he heard the telephone ring. He denied that at any time he attempted to kiss the complainant or touch her around the pubic area under her G-string or attempt to penetrate her with his penis. He denied penetrating the vagina with his fingers and said that her allegations were 'a disgrace'.
174 The appellant did admit that he gave the complainant a 'kiss goodnight or a cuddle' when he left the room the second time. The kiss was the type of kiss he would give his friends, grandmother or mother. There was nothing sexual about it. He denied that he attempted to put his tongue into her mouth at any time. He said that he then went back to his room and nothing further happened until he awoke the next morning at about 6.30 am. He went down stairs and found that his wife was in the kitchen with the complainant. The complainant had the baby with her. She seemed okay and was chatting to his wife.
175 The appellant said that he took the complainant to Mandurah. At the town centre he dropped her off at a taxi rank. The complainant's bags, stroller and other items were taken out of the car and she and the baby then left.
176 The appellant said that he heard nothing further from the complainant. On 19 October 2005 police called at his house. They told him that there was an allegation of sexual assault against him. He felt 'pretty shattered'. He went with the police to the police station where a video record of interview was conducted. For the first hour and a half of the interview he denied that he touched the complainant intimately, and maintained that this was the truth. He did not tell the police about the accidental touching because he was embarrassed about it.
177 The appellant said that he agreed with some propositions that the police put to him. He said that he thought police wanted him to say there was some sort of involvement '... sexual consent between us'. He said that the admissions he made to the police were simply made so that the interview would stop. He said that the police wanted him to say things that did not happen. The admission that he may have put his fingers into the complainant's vagina was made to 'give them sort of what they wanted to hear'. The appellant said that the police seemed to believe what the complainant had said was true rather than what he was saying. Although he admitted saying that he had penetrated the complainant's vagina with his finger he denied the truth of what he had said and contended that he only said it because the police wanted to hear it.
178 When the appellant was cross-examined he admitted that he had said nothing to police about wanting to terminate the interview. He had said nothing about being embarrassed. He had said nothing about feeling unduly pressured by detectives. The appellant said he had never been pressured by the detectives. He admitted that he gave three different versions to the detectives. He repeated that he was prepared to say anything to get out of the police station.
179 This ground asserts that the conviction of the appellant on count 2 on the indictment was unsafe and unsatisfactory because it was inconsistent with the verdicts of acquittal returned on each of the other counts on the indictment. The particulars contend:
180 The general principles applicable to consideration of inconsistent verdicts are well-known. The High Court has enunciated the test in a series of cases including MacKenzie v The Queen (1996) 190 CLR 348 (see particularly Gaudron, Gummow and Kirby JJ at 367); Jones v The Queen (1997) 191 CLR 439; and MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606. It is unnecessary to quote from these cases. The principles were summarised in VIM v Western Australia [2005] WASCA 233; (2005) 31 WAR 1, particularly at 192 where the court (Wheeler, Roberts-Smith JJA and Miller AJA) said:
There is no general rule that in cases in which several sexual offences depend upon the testimony of the complainant, acquittal on one or more counts compels a conclusion that the jury must necessarily have regarded the complainant generally as an untruthful witness or that her credibility was undermined in respect of the counts upon which they have convicted (R v PMT [2003] VSCA 200; (2003) 8 VR 50 at [25]). Circumstances of the particular case may justify different verdicts, as was explained by Gaudron, Gummow and Kirby JJ, in MacKenzie v The Queen (1996) 190 CLR 348 at 367:
' ... the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.' (References omitted).
181 Senior counsel for the appellant placed considerable emphasis upon the decision of the Court of Criminal Appeal (Kennedy, Wallwork and White JJ) in M v The Queen (1998) 104 A Crim R 154, being a case in which the applicant had been convicted of unlawful and indecent dealing of a child under the age of 14 years. His conviction was on one count on an indictment containing nine counts alleging offences against the same child. Verdicts of not guilty were returned on eight of those counts. A feature of the evidence in relation to the count upon which the applicant was convicted was that he had admitted ejaculating on the complainant's stomach. He maintained that ejaculation had occurred whilst he was asleep. A psychiatrist gave evidence that this was a common phenomena which happened 'almost in every day life to many men'.
182 The Court of Criminal Appeal quashed the conviction of the appellant on the basis that the jury's failure to convict on the other offences indicated that they had not accepted the complainant's evidence and the verdict was therefore unsafe and unsatisfactory. Kennedy J at 156 said:
Putting on one side the inconsistent verdicts, it was open to the jury to reject the evidence of the applicant. However, before convicting the applicant of the offence charged, it was still necessary for the jury to accept the complainant as a credible witness to the extent that they were satisfied beyond reasonable doubt as to the applicant's guilt. Their failure to convict on the other offences indicated that they had not accepted her evidence and, in my opinion, on the basis of the reasoning in Jones v The Queen (1997) 72 ALJR 78, the jury's verdict on count 7 is unsafe and unsatisfactory. That is to say, given the jury's finding on the other counts, it was not open to them, on the whole of the evidence, to be satisfied beyond reasonable doubt of the guilt of the applicant on the seventh count. Once the jury found that the evidence of the complainant with respect to the other counts lacked sufficient cogency to convict, the Crown's case on the seventh count carried a different complexion. For it meant that, when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof - see per Gaudron, McHugh and Gummow JJ at 87. Notwithstanding that the applicant had admitted ejaculating on the complainant, it remained for the Crown to establish beyond reasonable doubt that the act of the applicant had been voluntary.
183 The observations of Kennedy J command respect, but they were made before the decision in MFA, where the High Court made it clear at [89] that the decision in Jones was facts specific, and did not stand for any principle that in cases of complaints of a number of sexual offences, a jury must either accept or reject the entirety of the complainant's evidence. In the passage I have quoted from VIM it is made clear that there is no general rule to this effect. The circumstances of a particular case may justify different verdicts. This is particularly so when there is a proper way by which the appellate court may reconcile the verdicts.
184 In MFA, Gleeson CJ, Hayne and Callinan JJ at [34] explained the importance of the system of criminal law within which juries function. A number of points were made to illustrate how a jury might, in some cases, reach different verdicts on the one indictment without necessarily rejecting the complainant's evidence:
Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman, and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed. (Footnotes omitted).
185 In my opinion, these observations show that what Kennedy J said in M is an incorrect application of the principles set out in Jones. The High Court made it clear in MFA that the decision in Jones was fact specific and does not stand for any principle that in cases of complaints of a number of sexual offences the jury must either accept or reject the entirety of the complainant's evidence.
186 In the present case, I consider that there is a proper way by which this court may reconcile the verdicts of the jury. The jury was entitled to be satisfied beyond reasonable doubt that the appellant was guilty of count 2 on the indictment because the complainant's testimony in relation to that count was supported by the appellant's admissions in his video record of interview. In particular, the appellant admitted penetrating the vagina of the complainant after he gave her a kiss. He said that he did this after he had taken his jeans off. He said that he had touched the complainant on the vagina. When he was asked whether he put his fingers in his vagina he said 'maybe I did. All right'. He said 'I just touched it. I didn't really penetrate'. He said that she was wet and this indicated that she 'wanted sex'. When it was put to him that he did penetrate the complainant with his fingers he said 'but it wasn't forceful'. When asked why he had not told the police from the outset what had happened he told the officers that it was because he did not consider that what he had done was assault the complainant. He saw an assault as something done without someone's consent. He contended that, in the present case, what took place, took place with her consent.
187 In my opinion, the appellant's admissions, although recanted when he gave sworn evidence, were admissions which the jury was entitled to accept as the truth of what had occurred. This being so, there was evidence that supported the complainant's testimony that shortly after she had been shown into her room there was an incident in which appellant put his hands under her track suit pants and under her G-string and started to feel her around the clitoris which progressed to a touching inside the outer lips of the vagina. There was also the sworn evidence of the appellant that he had drifted off to sleep on the bed and awoken to find this hand on the complainant's pubic area. It fell short of any admission that he had penetrated the complainant's vagina, but was evidence that he had touched her in that region.
188 There were some points of difference between the complainant's testimony and the appellant's admissions. These related primarily to the precise point of time at which the incident had occurred, but the essence of what the complainant said about the penetration which was the subject of count 2 was confirmed by the appellant in his video record of interview. This, in my opinion, means that the verdicts of the jury can be easily reconciled. On the other counts on the indictment there were no admissions by the appellant. He resolutely denied that he had done anything more than that to which he admitted. This left the jury in a situation where they were considering oath against oath in relation to all counts other than count 2. There was simply no supporting evidence to confirm the testimony of the complainant about the allegations contained in the other counts on the indictment.
189 The jury's refusal to convict the appellant on the other counts does not mean that the jury necessarily rejected the complainant's evidence. The verdicts of not guilty on those counts do not necessarily imply that the complainant had been disbelieved or that there was a want of confidence in her testimony (see MFA [34] (Gleeson CJ, Hayne and Callinan JJ)). The verdicts revealed that the jury took their responsibility seriously and gave separate consideration to each of the counts. Clearly they may have considered that the want of any supporting evidence in relation to the counts, other than count 2 , made it difficult to be satisfied beyond reasonable doubt of the appellant's guilt: MFA [34] (Gleeson CJ, Hayne and Callinan JJ).
190 I am unable to conclude that there was any inconsistency in the verdicts of the jury and in my opinion ground 1 should be dismissed.
191 This ground contends that the trial judge erred in refusing to grant to the appellant's counsel leave to cross-examine the complainant as to the fact that she previously made complaints of sexual assault against two persons other than the appellant.
192 Application was made at a directions hearing before Sweeney DCJ on 24 November 2006 for leave pursuant to s 36BC of the Evidence Act 1906 (WA) to cross-examine the complainant about these matters. Leave was refused. A further application was made to the trial judge on the first day of trial (2 August 2007), but leave was again refused.
193 The material upon which counsel for the appellant sought to cross-examine the complainant related to statements the complainant was said to have made to Dr Brian Phillip Lynch on 4 June 2005 at Dr Lynch's surgery in Victor Harbour, South Australia. In a statement made by Dr Lynch which formed part of the prosecution brief, the doctor said:
I asked her about previous history of a similar nature. She said a family friend had tried to touch her inappropriately when she was 14. This went to court but the man was found not guilty. She also informed me that her sister's boyfriend had sex with her against her will four months previously. He was affected by alcohol and possibly marijuana at the time. She had taken no action about this sexual assault.
194 Counsel for the appellant sought to make from this material something which was not in fact said. The submission was that the complainant had by this statement indicated that she had made prior complaints of sexual assault (my emphasis) and therefore had experience in the manner in which such complaints were investigated and prosecuted. The contention was that, by failing to preserve the integrity of the clothing she was wearing on the night she was allegedly sexually assaulted by the appellant, and by refusing to allow two different doctors to examine her, a significant issue arose which went to the ultimate issue in the trial, namely whether the appellant had sexually assaulted the complainant as alleged.
195 In my opinion, the submission of counsel for the appellant has no proper basis. The complainant recounted to Dr Lynch two incidents. The first was an attempted sexual assault when she was aged 14 years which went to trial and in relation to which the accused person was found not guilty. The second was an incident in which the complainant's sister's boyfriend had had sex with her against her will but in which had not resulted in any complaint of sexual assault.
196 The first incident could not have involved any question of preservation of the integrity of clothing. It was an attempt. Nor could the first incident have involved any question of medical practitioners examining the complainant. There had been no sexual interference which would necessitate medical examination.
197 The second incident was one in relation to which no complaint was made. There was therefore no question of preservation of the integrity of clothing. Nor was there any question of medical examination.
198 The questions which counsel for the appellant wished to put to the complainant had nothing to do with sexual reputation or sexual disposition. They did not bring into play the provisions of either s 36B or s 36BA of the Evidence Act 1906. The provision they did bring into play was s 36BC the provisions of which are as follows:
36BC. Sexual experience of complainant, evidence of
(1) In proceedings for a sexual offence, evidence relating to the sexual experiences of the complainant, being sexual experiences of any kind, at any time and with any person, not being part of the res gestae of the proceedings, shall not be adduced or elicited by or on behalf of an accused unless leave of the court has first been obtained on application made in the absence of the jury (if any).
(2) The court shall not grant leave under subsection (1) unless satisfied that -
(a) what is sought to be adduced or elicited has substantial relevance to the facts in issue; and
(b) the probative value of the evidence that is sought to be adduced or elicited outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission.
199 The provisions of this section were recently analysed by Steytler P (with whom Buss and Miller JJA agreed) in Bolton v The State of Western Australia [2007] WASCA 277. At [36]- [39] Steytler P referred to s 36BC and the decision of the High Court in Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443:
The words 'sexual experiences' include experiences as the victim of a sexual offence: Hill v The Queen [2003] WASCA 177 [48] (McLure J; Murray & Wheeler JJ agreeing). These words have also been construed as meaning actual sexual experiences, in the sense that the defence cannot, without leave, cross-examine a complainant on the question whether a previous complaint of rape involved consensual sex (see R v Tribe [2001] QCA 206 [22] - [24], [31] - [34] (Mackenzie J, McMurdo P & Williams JA agreeing)) but can, without leave, suggest to the complainant that a previous complaint of rape was false because the sexual act never occurred (R v Stergiou [2004] WASC 172; (2004) 147 A Crim R 120 [16] - [20] (Le Miere J)). The rationale for this distinction is that cross-examination contending that sexual activities did not take place at all is not cross-examination with respect to the complainant's sexual experience: see also R v MAG [2004] QCA 397 [24] - [27] (Williams JA, Cullinane & Jones JJ agreeing); R v Thow [2003] TASSC 16 [9] - [10] (Slicer J). Under Western Australian legislation, the lack of sexual experience is not caught by s 36BC: cf, in this respect, Criminal Procedure Act 1986 (NSW) s 293(3).
In Bull [62] the majority considered that the use, in s 36BC, of the plural 'sexual experiences' was significant. They said that it indicated that the purpose of the section was to prohibit evidence which described any occasion or episode of sexual activity involving the complainant and another person but that its purpose was not to prohibit all evidence that tends to prove the state of his or her sexual experience. They went on to say [62]:
Without infringing s 36BC (nor ss 36B and 36BA), the defendant would plainly be able to question the complainant concerning the extent of his or her sexual knowledge. This is clear from the qualifying words 'being sexual experiences ... with any person'. Those words also indicate that the complainant could be questioned or evidence adduced to prove that the complainant had witnessed the sexual activities of others as long as the evidence did not suggest that the complainant was involved in those activities. Moreover, without infringing the prohibition in s 36BC, to rebut a claim that the complainant had not had sexual intercourse before the events the subject of the charge, the defendant would seem able to adduce medical evidence that an examination of the hymen or anus indicated otherwise.
The majority also said that s 36BC recognised, by its reference to res gestae, that the sexual experiences of the complainant include those that are connected to, or occur contemporaneously with, the event which is the subject of the charge [63].
It is not clear whether the words 'sexual experiences' include only physical experiences, or also experiences which have sexual overtones or a sexual character, but which are not physical. In Ascoli v The Queen (Unreported, WASC, Library No 970173, 18 April 1997) Malcolm CJ (Kennedy J agreeing) held that an allegation that the complainant, while drunk, had gone from room to room in a guesthouse looking for people to sleep with was evidence of reputation and not sexual experience (cf Walsh J at 12 - 13). On the other hand, in R v Viola [1982] 1 WLR 1138; [1982] 3 All ER 73 the Court of Criminal Appeal (Lord Lane CJ, Skinner & Taylor JJ) seemingly accepted that evidence that a complainant had made sexual advances to two men, and that a naked man had been seen in her house, was evidence of sexual experience for the purpose of s 2 of the Sexual Offences (Amendment) Act 1976 (UK). That section prohibited, in a trial of a rape offence, the adducing of evidence or cross-examination 'about any sexual experience of a complainant with a person other than [the] defendant' without the leave of the court. [36] - [39]
200 It can be taken from this analysis that the proposed questions in the present case did raise 'evidence relating to the sexual experiences of the complainant, being sexual experiences of any kind, at any time and with any person, not being the res gestae of the proceedings'. Leave was required under s 36BC(2) before those questions could be put. To get leave it was first necessary to establish that what was sought to be elicited had substantial relevance to the facts in issue. What the complainant told Dr Lynch on 4 June 2005 could have had no relevance, let alone substantial relevance, to the facts in issue. What she said could not possibly have related to an understanding of the need to preserve the integrity of clothing or the need to undergo medical examination. The first incident was only an attempted inappropriate touching. The second was an incident of sex which resulted in no complaint being made to the authorities.
201 It is unnecessary to consider the second limb of s 36BC(2). It is sufficient to say that there was no probative value of the evidence which counsel for the appellant sought to adduce. It could not therefore be said that it outweighed any distress, humiliation and embarrassment which the complainant might suffer as a result of its admission.
202 In my opinion, there is no substance whatever in ground 2 of the grounds of appeal.
203 Ground 3 of the grounds of appeal contends that the trial judge erred in failing to direct the jury that the 'business record' of Dr Fowler to the effect that the complainant had admitted to him that there had been 'no penetration' of the vagina could be used by the jury as truth of the contents of the statement (my emphasis).
204 The evidence at trial established that the complainant had seen a Dr Clive Fowler at his rooms at Norfolk House in Victor Harbour on 14 August 2005. In an entry in medical notes made by Dr Fowler that day, he wrote:
Raped 6-7 weeks ago in Perth - no actual penetration of vagina Nauseated and upper abdominal pain - burning.
205 The complainant was cross-examined about this. She admitted that she had said to Dr Fowler that there was no vaginal penetration. She said in evidence that in saying this she meant that there had been no penile penetration in the sense that the appellant's penis had not gone into her.
206 The evidence of what the complainant had told Dr Fowler was before the jury. The note of Dr Fowler was put to the complainant as a prior inconsistent statement on her part (Evidence Act 1906 s 21) but she admitted making the statement and no proof of it was therefore required. The complainant gave an explanation for the making of her statement, but never denied that she had made it.
207 The question raised by ground 3 is whether, despite the utilisation of the provisions of s 21 of the Evidence Act 1906, the notation in Dr Fowler's records constituted a business record for the purposes of s 79C of the Evidence Act 1906 and made the contents of the statement admissible as truth of those contents.
208 Section 79C of the Evidence Act 1906 is concerned with the admissibility of documentary evidence (my emphasis). It is a statutory exception to the rule against hearsay. Its purpose is explained in Cross on Evidence (7th Aust ed) J D Heydon at [35195] in the following terms:
The business records legislation is remedial legislation intended to remove the difficulty or, in some instances, impossibility of proving certain business facts by admitting material which in common experience is likely to be accurate, and should be construed liberally and not pedantically.
209 In Cross, the author cites Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 at 548 - 549 where Hope JA made reference to the importance of proof of hospital records. The passage is as follows:
Any significant organization in our society must depend for its efficient carrying on upon proper records made by persons who have no interest other than to record as accurately as possible matters relating to the business with which they are concerned. In the every-day carrying on of the activities of the business, people would look to, and depend upon, those records, and use them on the basis that they are most probably accurate. This position applies to hospitals, as to any other form of business; indeed, hospital records provide an excellent example of the basis, and of the usefulness, of Pt IIC . If a busy honorary such as the second respondent wished to remind himself what the appellant's precise problem or medical condition was, or to learn what had happened since he last saw her, he would undoubtedly refer to the records, and would act upon the basis that they were correct.
210 Significantly, Hope JA in Albrighton referred to the importance of hospital records as a more reliable source of truth and memory and the purpose of the equivalent of s 79C of the Evidence Act 1906 as being 'to bring into the courtroom a method of establishing the truth which is relied upon by our society outside the courtroom - to bring into the rules of evidence a reality which they otherwise lacked' (548 - 549). See also R v Hawes (1994) 35 NSWLR 294, 299 (Hunt CJ, Simpson & Bruce JJ concurring).
211 The purpose of s 79C being remedial is important. The section is intended to provide for the proof of what might otherwise be hearsay evidence. It does so by enabling evidence of a fact or opinion to be admitted when it is found in a statement or document tending to establish that fact or opinion and to be admitted as evidence in circumstances where direct oral evidence of a fact or opinion would otherwise be admissible.
212 Section 79C was the subject of consideration in Beamish v The Queen [2005] WASCA 62. Relevant portions of the section were reproduced and discussed by the court at 152 - 160 as follows:
Section 79C of the Evidence Act
Section 79C makes a statement in a document admissible notwithstanding, among other things, the rules against hearsay. It provides two avenues of admissibility. The first relates to documents in general (subs (1) and (2)) and the second relates solely to business records (subs (2a)).
Section 79C(1) and (2) materially provide:
'(1) Subject to subsection (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if the statement -
(a) was made by a qualified person; or
(b) directly or indirectly reproduces or is derived from one or other or both of the following -
(i) information in one or more statements, each made by a qualified person;
(ii) ...
(2) Where a statement referred to in subsection (1) is made by a qualified person or reproduces or is derived from information in a statement made by a qualified person, that person must be called as a witness unless -
(a) he is dead;
(b) - (h) ...'.
Thus, what is admissible under subs (1) on production of the document is the relevant statement in the document. 'Statement' is defined to include a representation of fact or opinion. A 'qualified person' in relation to a statement is materially defined to mean a person who had, at the time of making the statement, or may reasonably be supposed to have had at that time, personal knowledge of the matters dealt with by the statement (s 79B).
It can be seen that s 79C(1) does not apply unless:
- Firstly, direct oral evidence of the statement would be admissible;
- Secondly, the statement was made by a qualified person or directly or indirectly reproduces or is derived from information in one or more statements each made by a qualified person. This permits second-hand hearsay, that is, a statement made by a qualified person recorded in a document made by a third party; and
- Thirdly, when a statement is made by a qualified person or is derived from information in a statement made by a qualified person, the qualified person must be called unless he or she falls within the exceptions in pars (a) to (h).
Section 79C(2a) is the business records provision. It provides:
'(2a) Notwithstanding subsections (1) and (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if -
(a) the statement is, or directly or indirectly reproduces, or is derived from, a business record; and
(b) the court is satisfied that the business record is a genuine business record.
Apart from the requirement that direct oral evidence of the statement would be admissible, there is no additional requirement that the statement be made by a qualified person or be relevantly derived therefrom. However, where a statement is made in a business record by a qualified person, that person is not to be called as a witness unless the Court otherwise orders (s 79C(2b)).
'Business record' is defined to mean a book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business. 'Business' is defined to mean any business, occupation, trade or calling and includes the business of any governmental body or instrumentality and of any local government.
Business is very widely defined and includes a business not carried on for profit. It was not in dispute that the Western Australian Police Force was relevantly a business and that the departmental documents in its files are business records. That must be so.
For the purpose of deciding whether or not a statement is admissible as evidence, the Court may draw any reasonable inference from the form or content of the document in which the statement is contained, or from any other circumstances (s 79C(5)). Further, the Court has a discretion to reject a statement notwithstanding that the requirements of the section are satisfied if the Court is of the opinion that the probative value of the statement is outweighed by the consideration that its admission or the determination of its admissibility may, inter alia, create undue prejudice, confuse the issues or mislead the jury (s 79C(6)). [152] - [160]
213 In the present case, reliance was placed upon s 79C(2a) as the basis for admissibility of the medical record of Dr Clive Fowler.
214 The statement made by the complainant to Dr Fowler was capable of being interpreted as a prior inconsistent statement within the meaning of s 21 of the Evidence Act 1906. Had the complainant denied making the statement, it could have been proven by the tender of Dr Fowler's notes. This could have been through him, or arguably pursuant to s 79C of the Evidence Act 1906. In fact, it did not come to that because the complainant clearly admitted the statement and its tender was unnecessary.
215 The question is whether, under s 79C(2a), the statement constituted a business record in relation to which direct oral evidence of a fact would be admissible. If so, any statement in the document tending to establish that fact would, on production of it, be admissible as evidence of the fact.
216 It can be accepted that Dr Fowler's record constituted a business record within the meaning of the section. The decision in Albrighton v Royal Prince Alfred Hospital is sufficient authority to support that conclusion.
217 In Beamish, there was a multiplicity of documents which were the subject of consideration under s 79C of the Evidence Act 1906. They included statements of women about 'home invasion assaults' committed on them by one Cooke, whom it was contended was in fact guilty of the offence for which Beamish was convicted. They also included a large number of police documents relating to these assaults, which included opinions by persons involved in the investigation of crimes committed more than 40 years beforehand. There was also a written confession of Cooke himself.
218 An issue which arose at the hearing of the appeal was whether the tender of the documents was precluded by s 79C(4) which provides that, in any criminal proceedings, statements or documents made for the purpose of investigation or for the purpose of preparation of a defence are not rendered admissible as evidence by the section. That provision has no application in the present case.
219 An example of one of the police memoranda was a document described as MFI 15. It was a report dated 12 June 1961 from a detective sergeant in the police force to an Inspector Lamb. It concerned amongst other things the nature and outcome of police investigations in relation to an assault on a Mrs Alix Cooke (formerly Doncon). The report recorded that a thorough search of Ms Doncon's flat had been made. No fingerprints had been found to identify any offender. No precise means of entry could be identified. There was no ransacking of the flat. Enquiries over many months failed to disclose who the offender was [172].
220 There was also a written confession of Cooke (the person Beamish contended was responsible for the crime). It was dated 14 September 1963. In that confession Cooke recorded that on 10 September 1963 he had gone to flats at 93 Stirling Highway, Nedlands and pointed to a flat in which he had assaulted a female. He gave considerable detail as to how he had entered the flat and stolen property. He saw a woman asleep in a double bed and as he neared the bed to look at the bedside table the woman awoke and began to sit up. He delivered a blow to her head.
221 The court held that it was apparent from Cooke's confession that Cooke purported to write of matters within his personal knowledge, including his commission of the offence. Direct oral evidence from him of the statements in his confessions would be admissible. For his confession to be admissible under s 79C(1) Cooke had to be a qualified person. The court said:
On one view, the only purpose of s 79C(1)(a), read with the definition of 'qualified person', is to exclude second-hand and remote hearsay. On that view, wherever a statement on its face deals with activities personally carried out by, or observations personally made by, the statement's maker, the person is necessarily a 'qualified person'. Questions of the maker's truthfulness or accuracy would be relevant to the exercise of the discretion in s 79C(6), but a determination that the maker was probably truthful and accurate would not be a precondition to admissibility. It is also strongly arguable that, in the circumstances in which the confessions were obtained, they are business records and thus admissible under s 79C(2a) without proof that Cooke was a qualified person.
However, it is unnecessary to determine these questions. As the reliability of Cooke's confessions is relevant to the exercise of the discretion under s 79C(6) as well as to the similar fact issues, we accept for the purpose of this case the State's contention that, before admitting the confessions, we should be satisfied that it could reasonably be supposed that Cooke was speaking truthfully of his involvement in these matters. [179] - [180]
222 The confession of Cooke was held to be admissible. The court was satisfied on the balance of probabilities that at the time of making the confession Cooke had or may reasonably be supposed to have had personal knowledge of the matters dealt with in the confession. It was not excluded by reason of the provisions of s 79C(4) of the Evidence Act 1906.
223 The court then considered the admissibility under s 79C of police memoranda of the type I have described. The court said:
The starting point in considering admissibility under s 79C is whether direct oral evidence of the statements in the police documents would be admissible. That requires the statements to be relevant. The State does not suggest that the evidence of the victims as to the facts and circumstances of the offences is irrelevant. The confessions are relevant and admissible as direct evidence of the fact that Cooke confessed to the crimes. However, they are not tendered solely for that purpose. They are tendered as evidence of the truth of the fact that he committed the crimes. Whether he committed the crimes and thus the reliability of Cooke's confessional statements is a fact in issue in the appeal. The reliability of the confessions is also relevant to their admissibility under s 79C(1) of the Evidence Act. In these circumstances, the finality rule, which prohibits evidence in support or rebuttal on matters going solely to credit, has no application.
The statements in MFI 14 and 15 identified above are relevant and matters on which direct oral evidence would be admissible. Some of the statements in MFI 23 are statements of the opinion of persons involved in or responsible for the investigation of these crimes committed more than 40 years ago. Section 79C applies equally to statements of fact and opinion. The question is whether the statements could be the subject of direct oral evidence in the appeal. Evidence as to whether or not the police force, being the State institution responsible for investigating crimes and charging offenders, accept that Cooke was responsible for the assaults in question, is relevant and admissible. The opinions of unidentified individual officers is not unless they can be taken to represent the official position of the police force or the State. [181] - [182]
The memoranda were found to be admissible and the exclusion in s 79C(4)(a) of the Act was held not to apply.
224 It can be seen from the decision in Beamish that in some cases statements of fact and statements of opinion by persons involved in investigation of crimes committed many years ago may be admitted as the truth of those facts and/or opinions pursuant to s 79C of the Evidence Act 1906. Confessional material, such as that made by Cooke in Beamish may also be admissible under that section.
225 However, the admissibility of this type of material is a different question from the admissibility as evidence of the truth of the fact of Dr Fowler's entry in his medical notes in the present case. The point of distinction is that in Beamish it was necessary to tender documentary evidence of numerous facts and opinions, most of which had been expressed many years beforehand. Although some of the witnesses who had made those statements may have been available to be called and indeed some were, they could not be expected to recall, 40 years later, the detail contained within the various statements, memoranda and other documents.
226 The difference between the present case and the case of Beamish is that the complainant in this case gave evidence and identified the statement in Dr Fowler's notes. She accepted that she had made the statement. She was cross-examined about it. She endeavoured to explain what she had meant by it. Evidence of what she had said to Dr Fowler was thus before the court. No question arose as to the admissibility of Dr Fowler's record pursuant to the provisions of s 79C of the Evidence Act 1906.
227 The question of the admissibility of Dr Fowler's record as evidence of the fact that there had been no vaginal penetration of the complainant was raised after the trial judge had directed the jury.
228 The prosecutor questioned the direction about what the complainant had said to Dr Fowler and the trial judge said:
MARTINO DCJ: [W]hen I referred to out of court statements, I did refer to prior inconsistent statements and I said some of the matters that were referred to were the matters of Dr Lynch and Dr Fowler, but then I said there were two matters I wished to say about evidence of that nature.
WILSON, MR: Yes.
MARTINO DCJ: It's not evidence of the truth of what - but I have already told them that. What I said to Dr Jovanovic it's not evidence of the truth of what was said - - -
229 Counsel for the appellant then raised (apparently for the first time) the application of s 79C of the Evidence Act 1906 and, in particular, s 79C(2a). He said:
PERCY, MR: Yes. I thought your Honour had given that direction, it was my understanding. Just one aspect that concerns me, your Honour. In relation to the evidence of Dr Lynch about the entry in the records by Dr Fowler - - -
MARTINO DCJ: Yes.
PERCY, MR: - - - we would say that has a different significance. Under the provisions of section 79C of the Evidence Act, the jury might be entitled, depending on what weight they placed on it, to accept it as the truth of what it was, that is - - -
MARTINO DCJ: That she was raped.
PERCY, MR: Either that she was raped or that there was no penetration. It's a business record for the purposes of that, and as your Honour will be aware, that was canvassed in Beamish v R in 2005, in relation to police records as to whether they are simply records of a report of the offence or whether they're actually evidence of the truth of the offence, and it was held that they were evidence of the truth of the offence, and this has the same category, so they could use it. It's a twin edged sword for me, but I will be asking your Honour to give that direction, that what is contained in that record is not only evidence that the complainant said, but it may well be treated as evidence of the truth of that matter, that is, she was raped but there was no actual penetration.
230 After pointing out that Dr Fowler's note would not come within s 79C(4) of the Evidence Act 1906, the following exchange occurred:
MARTINO DCJ: But that's only evidence of what the doctor's opinion was, not the truth of what the doctor was told, generally speaking.
PERCY, MR: It's only evidence of what was said to the doctor, and that's true, but when you don't call the doctor and that - in the evidence of what happens just goes in singularly in that form, it simply goes in as that, we say that is evidence of the truth of the matter, and I accept unconditionally what my friend says, that in most cases it's just a way of facilitating proof without calling a witness, but we say - if my friend reads Beamish he will understand where I'm coming from.
MARTINO DCJ: But even if you called the doctor, 79C is satisfied, on production of the document
PERCY, MR: Yes, I suppose what they could do is they could say, 'Not only are we going to call the doctor to give evidence, we're going to put her notes in,' and then it will transcend the purpose of the evidence which they give and it will formulate into the truth, but I don't think that happens when you call a witness, it just doesn't.
231 The trial judge then pointed out to counsel for the appellant that the matter had not been raised until after the judge had charged the jury:
MARTINO DCJ: You didn't raise this until just now, did you, Mr Percy?
PERCY, MR: I said to the jury that - if you read that, if you have a look at that evidence and rely on that, I said, 'Get your red pen and put it straight through that, because that's evidence of the fact.' I put that to the jury on the basis, I thought your Honour might have being going to give such a direction.
MARTINO DCJ: But you didn't raise it at the time when the evidence was led?
PERCY, MR: I didn't because it was admissible. I wasn't objecting to anything. The evidence went in, it went in on its face. It's just the question - - -
MARTINO DCJ: You asked the question.
PERCY, MR: - - - of the evidence.
232 The trial judge then gave a ruling on the issue, indicating that he would not redirect the jury. He said:
[U]nder section 17C [sic 79C] subsection (6) the court has a discretion to reject a statement, notwithstanding its admissibility, if of the opinion that the probative value of the statement is outweighed by consideration that its admission may create undue prejudice, confuse the issues or mislead the jury. I did not understand when the evidence was led that the evidence was being led as evidence of the truth of it.
I thought it was just exactly the same as the evidence of Dr Lynch, that it was being evidence of what was being said to a doctor by the complainant and if it had been raised that it was being led as to the truthfulness of what was said, then I would have at the very least given consideration to whether Dr Fowler should be called, and even if he had been called, or she had been called, I think it was he, it may well be that I would have decided the evidence was because of the short nature of the note and the length of time ago, evidence not of the truthfulness of what the complainant said.
Secondly, in relation to the matter of evidence, it seems to me that the issues in this case are as I have outlined them to the jury and I don't think it would be of any assistance for the jury to be told that - the fact that she told Dr Fowler, the complainant told Dr Fowler, that she had been raped is evidence she had been raped. The fact that she told Dr Fowler that there had been no penetration of the vagina is evidence that there was no penetration of the vagina and I will not be directing the jury on that issue as Mr Percy has submitted.
233 In my opinion, the first problem the appellant faces under this ground is that there was no tender of Dr Fowler's record at trial. The document was not produced within the meaning of s 79C(2a). All that happened was that the complainant was cross-examined about the statement on the basis that it was a prior inconsistent statement. Because she admitted what she had said to Dr Fowler, there was no question of tender of the document pursuant to s 21 of the Evidence Act 1906. Nor was any attempt made to tender the document under s 79C(2a).
234 I have reservations as to whether the provisions of s 79C(2a) were applicable to the case. In my view, the section is aimed at the production of a document which is a business record and which becomes admissible as evidence of a fact or opinion stated in it in circumstances where the evidence would otherwise be hearsay and inadmissible. It becomes unnecessary for the statement to be admitted as evidence in circumstances where the content of the statement is admitted by a witness who made it. In those circumstances, there is evidence before the court that the statement was made, and made in the terms which were recorded by the person making the business record.
235 Further, and in any event, I consider that the trial judge was correct to apply the provisions of s 79C(6) which are in the following terms:
(6) For the purpose of this section a court may, in its discretion, reject a statement notwithstanding that the requirements of this section are satisfied with respect thereto, if the court is of the opinion that the probative value of the statement is outweighed by the consideration that its admission or the determination of its admissibility -
(a) may necessitate undue consumption of time; or
(b) may create undue prejudice, confuse the issues, or in proceedings with a jury mislead the jury.
236 I consider the trial judge to have been correct to conclude that in the exercise of his discretion, any probative value of the statement was outweighed by the consideration that its admission might confuse the issues or mislead the jury. The issues would be confused and/or the jury misled because the purpose of the cross-examination was to establish that the complainant had made a prior inconsistent statement in relation to the issue of penetration. She admitted saying what was recorded in writing, but endeavoured to explain what she had meant by the statement. The issue of what she had said and what she had meant by it was clearly before the jury and no good purpose was to be served by the application of the provisions of s 79C(2a) of the Evidence Act 1906.
237 For all of these reasons, and particularly because of the failure of counsel for the appellant to tender the record during the course of the trial, I would dismiss ground 3 of the grounds of appeal.
238 This ground of appeal contends that the trial judge erred in failing to rule as inadmissible certain portions of the video records of interview of the appellant. There are two aspects of the video records of interview that are said to have rendered portions of them inadmissible. They are formulated in the ground of appeal as follows:
239 At a directions hearing before Sweeney DCJ various aspects of the appellant's video records of interview were edited. However, Sweeney DCJ refused to edit aspects of the video record of interview which are now contested.
240 Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 is authority for the proposition that questions put to an accused in cross-examination asking him whether he could suggest any reason why the complainant would have invented allegations against him are inadmissible. Brennan CJ, Gaudron and Gummow JJ said:
It is one thing to permit cross-examination of a complainant in order to elicit, if possible, a motive to lie. It is another thing to permit cross-examination of an accused to show that an accused cannot prove any ground for imputing a motive to lie to the complainant. A complainant knows whether he or she has a motive to lie and, as a motive to lie is a fact that may be proved to impeach the complainant's credit, the complainant may be asked about it. And evidence may be given by other witnesses of events from which such a motive may be inferred. But the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. In general, an accused's lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts [7]. (footnote omitted)
241 In the present case, there is one passage in the record of interview which is objected to:
Q. Yeah, well anyway she said that, ah, you were wearing, ah, a pair of boxer style, ah, shorts. Why would she know that?
A. I wouldn't have a clue.
Q. Okay.
A. Wouldn't have a clue. Seems she seems to remember a lot of things about five months ago.
242 In my view, there is no substance in this aspect of the ground of appeal. The appellant was not asked 'why would the complainant lie?' but was told that the complainant said he was wearing boxer style shorts. He was asked why she would know that. The appellant was not asked to comment upon whether the complainant had any motive to lie about his wearing boxer shorts, but only whether he knew why she would be saying it.
243 In any event, the appellant admitted in his video record of interview that he had taken off his jeans whilst in the room occupied by the complainant and that he was wearing boxer shorts.
244 I can see nothing objectionable in the way in which the question was asked.
245 Contrary to the appellant's contention, Straker v The Queen (1977) 51 ALJR 690 contains no 'rule'. It certainly does not stand for the proposition that a suspect cannot be questioned at length by putting to him the allegations of the complainant. That was the present case.
246 In Straker, police asked the suspect whether at any stage on the night in question he had had anal intercourse with the deceased. The answer was negative. There was no evidence to the effect that any person had had anal intercourse with the deceased on the night of his death. Gibbs J held that the question and answer about anal intercourse should have been excluded from the evidence in accordance with the decision in R v Norton [1910] 2 KB 496, 500.
247 The passage to which Gibbs J was referring begins at 499 of R v Norton and it is in the following terms:
If the answer given amount to an admission of the statements or some part of them, they or that part become relevant as shewing what facts are admitted; if the answer be not such an admission, the statements are irrelevant to the matter under consideration and should be disregarded. This seems to us to be correctly and shortly stated in Taylor on Evidence, s 814, p 574: 'The statements only become evidence when by such acceptance he makes them his own statements.'
No objection was taken in this case to the admission of the statements in evidence, but as the prisoner may be tried again on an indictment on which that question may arise, we think it well to state in what cases such statements can be given in evidence. We think that the contents of such statements should not be given in evidence unless the judge is satisfied that there is evidence fit to be submitted to the jury that the prisoner by his answer to them, whether given by word or conduct, acknowledged the truth of the whole or part of them. If there be no such evidence, then the contents of the statement should be excluded; if there be such evidence, then they should be admitted, and the question whether the prisoner's answer, by words or conduct, did or did not in fact amount to an acknowledgment of them left to the jury. (499) - (500)
248 Jacobs J held that in the state of the evidence at trial, there being no evidence to support a conclusion that any person had had anal intercourse with the deceased on the night of the deceased's death, the question and answer would only have been admissible on the basis that it was an admission; but it was a denial and the evidence was therefore wrongly admitted. Stephen J agreed with Jacobs J on this point.
249 Murphy J held that because the medical evidence was that the deceased's condition was consistent with anal intercourse having occurred either before or after death or not having occurred at all, the pre-trial questioning of the appellant in which he denied that anal intercourse had occurred was prejudicial and should have been rejected as inadmissible.
250 The case therefore stands for a different proposition than that relied upon by counsel for the appellant. In the present case, the appellant, when first questioned, denied that there had been any sexual act between himself and the complainant. Later, in the course of questioning, he said 'I'll tell you the facts' and admitted that he had given the complainant a kiss, cuddled her and touched her in the vaginal area in circumstances where he put his fingers in her vagina. He also admitted that at one point he took off his jeans. He maintained that what had occurred had occurred with consent. He said 'She wanted sex'. In the end, after what was undoubtedly persistent questioning, the appellant did admit to digital penetration with his fingers of the complainant's vagina.
251 It therefore seems to me that the appellant's admissions which are clearly admissions against interest, have to be read in the context of his earlier denials. His testimony at trial was to the effect that he denied all allegations of sexual assault when questioned by police and only gave into them and admitted one incident of digital penetration of the vagina because that was what they wanted him to say and if he said it they would stop questioning him. If this was the line of defence raised, it was necessary that the totality of the questions and answers should be before the jury.
252 It is unnecessary to deal with each of the questions and answers objected to. It is sufficient to say that they all relate to the appellant's early denials of any sexual contact between himself and the complainant.
253 To the extent that the appellant denied the acts which constituted the counts on the indictment in relation to which he was acquitted, it was in his interests for that evidence to be before the jury. He had only admitted to police one incident of digital penetration of the vagina. He had denied all other allegations. The jury was not satisfied beyond reasonable doubt that the counts other than count 2 had been made out. The appellant's denials were one factor in the jury's consideration of the counts in relation to which he was acquitted.
254 In these circumstances, I can see no substance in the second aspect of ground 4 of the grounds of appeal against conviction.
255 Ground 5 of the grounds of appeal contends that if the court is not satisfied that the errors identified at any of the individual grounds of appeal constitute or have led to a substantial miscarriage of justice, the combination of those errors has led to such a miscarriage.
256 For the reasons I have given, I am unable to find any substance in grounds 1 - 4 of the grounds of appeal and, that being so, it is unnecessary to consider ground 5.
257 I would therefore dismiss the appeal against conviction.
258 The appellant's appeal against sentence boils down to a contention that a sentence of imprisonment to be served immediately was not the only disposition which was open to the sentencing judge and that it was open to impose a sentence of suspended imprisonment: Sentencing Act 1995 (WA) s 76.
259 If a suspended sentence of imprisonment was an open disposition, then the sentencing judge ought to have imposed it: Sentencing Act 1995 s 39(3). Clearly, a sentence of imprisonment to be served immediately was only to be imposed as a sentence of last resort, and only if the seriousness of the offence was such that only immediate imprisonment could justify it and/or the protection of the community required it.
260 The sentencing judge reviewed the facts of the case and found that after allowing the complainant and her child to stay at his home on the night in question, the appellant first took her to a room and later entered that room, put himself on to the bed, placed his hands under the complainant's tracksuit pants and under her G-string and felt her clitoris. Although told to stop and get off her, the appellant refused to do so. He continued to touch her on the clitoris and inside the outer lips of the vagina. The telephone then rang and he got up and left the room.
261 The sentencing judge described the offence as not planned but opportunistic. He said:
[It] did involve taking advantage of a vulnerable young woman who had a baby with her. The offence has caused anxiety and distress to the victim. You are a person of good character apart from this offence which was out of character. You have no relevant record and I have regard to the evidence of good character that witnesses gave during the trial.
The risk of your reoffending is medium to low. You have been a hard worker throughout your life and you have supported your family. In arriving at the appropriate sentence I need to punish you, I need to deter you. I also need to consider general deterrence which is a factor in this case. Sexual penetration without consent is a serious offence and it's necessary for the punishment to reflect that seriousness.
I have decided that the offence is so serious that the only appropriate sentence is a term of imprisonment. I have borne in mind the changes to the sentencing legislation in 2003. I have also borne in mind that you have spent close to a fortnight in prison which equates to a sentence of imprisonment for approximately one month with eligibility for parole, and so I have reduced the sentence by one month.
262 The sentencing judge imposed a sentence of 15 months' imprisonment and then considered whether or not the term should be suspended. He said:
I bear in mind that a term to be served should not be imposed unless a suspended term is not appropriate. I have considered the circumstances of the offence, the matters personal to you, including your good character and lack of record and the fact that you have spent close to a fortnight in prison.
I have the understanding, notwithstanding all the matters to your credit, that a suspended term is not appropriate and I would order that a term be served.
263 The first ground contends that the sentencing judge erred in the exercise of his discretion in not suspending the sentence of imprisonment. No error of law is raised, but reliance is placed on Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 and, in particular, to the passage in the judgment of Kirby J at 85 et seq where his Honour makes reference to the need to attribute 'double weight' to all factors relevant both to the offence and to the offender - whether aggravating or mitigating - which may influence the decision whether to suspend the term of imprisonment. As his Honour put it at 87, the Sentencing Act 1995 requires a 'two step approach' to facilitate a desirable flexibility in sentencing options, permitting in a particular case the exploration of alternatives to immediate custodial punishment.
264 Senior counsel for the appellant submitted that there were important mitigating factors in favour of the appellant. These included his prior good record, the circumstances of the offence and the fact that he had served a short sentence of imprisonment. In addition, he was categorised as having a low risk of reoffending.
265 It is accepted that the appellant had no prior record of convictions apart from a traffic related matter. He did serve a short term of imprisonment following his conviction. However, it cannot be said that the circumstances of the offence were such that they were of minimal significance. It may be that the offence was at the lower end of the scale for an offence of its type, but any digital penetration of a female's vagina (whether complete penetration or not) is a serious offence. In R v Clark [2000] WASCA 229 Wheeler J (with whom Kennedy and Pidgeon JJ agreed) said:
A very significant feature of the majority of sexual assault offences is the element of fear caused to the victim. Whether it is committed by a stranger or by a person known to the victim, the victim will almost inevitably have real fears about the degree of force to which the offender may resort in order to overcome resistance, or to further humiliate her, or to ensure her silence. Many victims fear for their lives and nearly all fear further violence of some kind. The experience is seen by the victim as a degrading one both at the time, and in recollection after the event, and this too is a significant feature of the offence. The extent to which the circumstances are likely to give rise to such fears and to such feelings will be significant factors in determining the seriousness of the particular offence. [12]
266 In C v The State of Western Australia [2006] WASCA 261, Wheeler JA pointed out that there is no hierarchy 'of sexual penetration'. Her Honour said:
I would have great difficulty in accepting the proposition that there is any sort of 'hierarchy' of sexual penetration which is such that some forms of penetration, such as digital penetration, are in all circumstances to be considered less serious than others. I have found it necessary to make these observations because it seems to me that the idea of such a hierarchy is reflected, either expressly or implicitly, in submissions in many sentencing appeals in these matters. It is, in my view, important to stress that the seriousness of the offence will be determined by all of the circumstances of the case. [35]
267 Whilst there will be cases where penile penetration is a much more serious offence than digital penetration, digital penetration as an offence should not be underrated in its seriousness.
268 The present case was, in my view, a serious case. The appellant, who was approximately 60 years of age, brought to his home a young woman, almost 40 years younger than him (with her young child), whom he placed in a guest bedroom within the house. Although his wife was home, she was asleep upstairs. The appellant took advantage of the complainant's presence in the house and penetrated her vagina with his fingers. Penetration was not complete, and appears to have been only at the entrance to the vagina. Nevertheless, penetration it was, and the appellant was rightly convicted of the offence which constituted count 2 on the indictment.
269 In my opinion, the offence was serious enough to require a sentence of imprisonment to be served immediately and I can find no error in the trial judge's determination that a sentence of imprisonment to be so served was the only appropriate disposition. I do not consider that a suspended term of imprisonment was open in the circumstances.
270 The second ground of appeal does not advance the appellant's case. It contends that the sentencing judge failed to make adequate allowance for the minimal degree of penetration. I have already referred to the fact that penetration was incomplete and involved only penetration of the outer aspect of the vagina. The complainant described feeling the appellant's hand and a finger and his finger going up and down. She said in relation to the outer lips of the vagina that he was 'actually touching inside that'.
271 The appellant said himself in his record of interview that 'I just touched it. I didn't really penetrate'. He then went further and said 'It wasn't forceful'. Later, he said that what took place had taken place with the complainant's consent.
272 The sentencing judge was clearly aware of the fact that the assault involved only the penetration of the outer lips of the vagina. Although he did not say that it was an offence at the lower end of the scale of seriousness, the sentence imposed reflects that fact. The sentence of 15 months' imprisonment was, in all the circumstances, well within the range of sentences that could have been imposed for the offence in question. In my opinion, there is no substance in the second ground.
(1996) 190 CLR 348
(2006) 225 CLR 303
(2000) 201 CLR 443
(1997) 191 CLR 439
(1961) 106 CLR 1
(2002) 76 ALJR 1024
(1972) 4 SASR 36
(1977) 17 SASR 214
(1994) 181 CLR 487
(2007) 81 ALJR 1309
(2005) 224 CLR 300
(1987) 44 SASR 591
(2003) 8 VR 50
(1998) 193 CLR 1
(2000) 202 CLR 321
(1979) 23 ALR 665
(1974) 8 SASR 465
(1973) 6 SASR 298
(1994) 61 SASR 589
(1982) 30 SASR 212
(1997) 72 ALJR 78
(1994) 35 NSWLR 294
(2002) 213 CLR 606
(1973) 129 CLR 460
(2005) 31 WAR 1
(2006) 33 WAR 9
(1977) 51 ALJR 690
(1992) 39 FCR 276
(1997) 18 WAR 394
(1992) 58 SASR 457