Criminal law - Appeal against conviction - Child sex offences - Whether the trial judge permitted the prosecution to broaden its case, as opened, in relation to one count - Whether the trial judge erred by failing to give the jury a Zoneff direction - Proposed grounds of appeal without any reasonable prospect of success - Application for an extension of time to appeal dismissed

Application for an extension of time to appeal dismissed

CB v The State of Western Australia [2006] WASCA 227; (2006) 175 A Crim R 304

Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1

Wimbridge v The State of Western Australia [2009] WASCA 196

Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234

2 BUSS JA: The appellant was convicted, after a trial in the District Court before Deane DCJ and a jury, on two counts in an indictment.

3 Count 1 alleged that on or about 26 November 2008, the appellant indecently recorded C, a child of or over the age of 13 years and under the age of 16 years who was then under his care, supervision or authority, by taking an indecent photograph of her, contrary to s 321(6) of the Criminal Code (WA) (the Code) read with s 321(8)(b) of the Code.

4 Count 2 alleged that on or about 3 December 2008, the appellant sexually penetrated C, a child of or over the age of 13 years and under the age of 16 years who was then under his care, supervision or authority, by penetrating her vagina with his penis, contrary to s 321(2) read with s 321(7)(b) of the Code.

5 The trial judge sentenced the appellant to 12 months' immediate imprisonment on count 1 and 4 years 6 months' immediate imprisonment on count 2. The sentence for count 2 was made cumulative on the sentence for count 1. The total effective sentence was therefore 5 years 6 months. A parole eligibility order was made.

6 The appellant has applied to this court for an extension of time to appeal, and leave to appeal, against his conviction.

The application for an extension of time to appeal

7 The appellant filed his appeal notice on 17 October 2011. The last date for appealing was 11 October 2011. The appellant has filed an affidavit sworn 16 October 2011 in support of his application for an extension of time.

8 The applicable principles governing the exercise of this court's discretion to extend time are set out in Wimbridge v The State of Western Australia [2009] WASCA 196.

9 I will consider the merits of the proposed grounds of appeal before deciding whether an extension of time should be granted.

10 At the time of the offending the complainant was aged 13 years and the appellant was 30.

11 The appellant and his wife were approved foster carers for the Department of Child Protection. In 2008, the Department placed the complainant and her younger sister and brother in the care of the appellant and his wife.

12 The State's case at trial in relation to count 1 was that on or about 26 November 2008, at the appellant's home, the appellant took a photograph of the complainant with his mobile telephone. The photograph depicted the complainant with her breast exposed and her tongue making a licking gesture towards it. The police located the photograph when they took possession of the appellant's mobile telephone on 6 December 2008.

13 The State's case at trial in relation to count 2 was that late on the night of 3 December 2008 or early in the morning of 4 December 2008 the complainant was asleep in her bedroom at the appellant's home. She was awoken by a text message sent by the appellant from his mobile telephone elsewhere in the house. The message told her to wake up. The appellant then came to the complainant's bedroom. He sat on her bed and touched her buttock, breasts and vagina. The appellant then removed her pants and had penile/vaginal intercourse with her. She swore at him and attempted unsuccessfully to push him away. The complainant gave evidence that she experienced significant pain when the appellant was penetrating her and that, afterwards, she was bleeding from the vaginal area.

The text messages sent from the appellant's mobile telephone to the complainant's mobile telephone

14 The State adduced in evidence at the trial numerous text messages sent between the appellant's mobile telephone and the complainant's mobile telephone late on the night of 3 December 2008 and early in the morning of 4 December 2008.

(a) At 9.53 pm on 3 December 2008, the appellant sent the complainant a text message, 'What R you wearing to bed tonight?' and, a little later, 'You are a bitch'.

(b) Between 9.53 pm and 10.36 pm on 3 December 2008 there were a series of text messages between the appellant and the complainant. At 10.36 pm the appellant sent the complainant a text message telling her to 'wake up'. At 11.33 pm, he communicated:

(c) There appear to have been no text messages sent between 11.33 pm on 3 December 2008 and 12.39 am on 4 December 2008.

(d) At 12.39 am on 4 December 2008, allegedly after count 2 was committed, the appellant communicated:

I hope u [sic] enjoyed that and i [sic] am sorry that i [sic] hurt you and as i [sic] said next time it wont [sic] hurt as much sorry darling i [sic] love you heaps.

(e) The complainant responded immediately with a text message, 'There wont [sic] be a next time'.

(f) The appellant then responded, at 12.42 am on 4 December 2008:

Oh i [sic] thought you liked me licking your ass [sic] and the vg im [sic] devastated

On the State's case, 'vg' was an abbreviation for vagina.

(g) At 12.44 am on 4 December 2008, the appellant communicated:

(h) At 12.46 am on 4 December 2008, the appellant communicated, 'Good night, darling'.

(i) At 7.17 am on 4 December 2008, the appellant communicated, 'Smile sweety [sic] please im [sic] tired too'.

16 The State's case at trial was that the appellant, in these text messages, impliedly admitted, in essence, the conduct charged in count 2.

17 The appellant's case at trial was that none of the alleged offending had happened. He gave sworn evidence in his own defence. The appellant admitted that he owned the mobile telephone on which the photograph and the text messages in question were found. However, he denied having taken the photograph or sent any of the text messages.

18 The appellant relies on two grounds of appeal. They read:

1. The learned trial Judge erred both in law and fact when she allowed the prosecution to broaden their particulars regarding the offending period in relation to Count 2 on the Indictment.
2. The learned trial Judge erred both in law and fact when, contrary to the High Court decision in Zoneff v The Queen (2000) 200 CLR 234, she failed to direct the jury that any lies told by the Appellant could only be used by them as to an assessment of his credibility.

19 As I have mentioned, the indictment alleged that count 2 was committed on or about 3 December 2008.

20 The prosecutor said in opening that the State's case was that count 2 'occurred on the night of 3 to 4 December 2008' (ts 451).

21 On 6 December 2008, the complainant was interviewed by police officers. The interview was visually recorded and formed part of her evidence at the trial (31/05/2011: ts 166).

22 During the visually recorded interview, the complainant was asked, in the context of count 2, what time it was that the appellant came into her bedroom. The following exchange occurred:

1. Okay. What time was it you think that he came into your room?
2. About 12, 12.30.
3. On the Wednesday night?
4. Yep.
5. Okay. What time did he go?
6. Left about one.
7. Okay.
8. One, 15 past one, around about that time.
9. How do you know it was that time?
10. 'Cause I had my watch on (VRI ts 24).

23 The complainant was cross-examined on 30 April 2011 and 1 May 2011. Defence counsel did not put any questions about her assessment of the time at which the appellant was in her bedroom and committed count 2.

24 On 4 December 2008, text messages were sent to the complainant from the appellant's mobile telephone at 11.33 pm on 3 December 2008 and at 12.39 am, 12.42 am, 12.44 am and 12.46 am on 4 December 2008. As I have mentioned, no text messages appear to have been sent between 11.33 pm and 12.39 am.

25 The prosecutor said in his closing address that count 2 occurred 'critically within the timeframe of those [text] messages [that were sent] between about 11.35 am [sic] on 3 December 2008 ... and 12.41 [am] on the following day' (ts 1236). It appears that the times referred to by the prosecutor were the times that those text messages were received by the complainant's mobile telephone, and hence about two minutes after the evidence shows they were sent.

26 The defence, while denying that the offending had taken place, relied on the complainant's evidence that the appellant 'came into her room around midnight, or shortly thereafter, and left at about 1.00 am or 1.15 am' (ts 1236).

27 Counsel for the appellant submitted to this court that the prosecutor, in his closing address, broadened the State's case as opened so that 'the offending window was no longer confined to the time period initially relied upon in the complainant's [visually recorded interview with the police]'.

28 The prosecutor opened on the basis that count 2 occurred on the night of 3 to 4 December 2008. This was consistent with the allegation in the indictment. The prosecutor closed on the basis that count 2 occurred between about 11.35 pm on 3 December 2008 and 12.41 am on 4 December 2008. The prosecutor did not, in closing, depart materially from the State's case as opened.

29 In any event, the time and date specified in an indictment are not material matters that the State must specifically prove unless they are an essential part of the offence charged. This general rule may, however, be overridden by considerations of fairness, in a particular case, if the trial has been conducted on the basis that the offence occurred at a particular time or on a particular date and the accused has prepared his or her defence on that basis. See CB v The State of Western Australia [2006] WASCA 227; (2006) 175 A Crim R 304 [72] - [73] (Roberts-Smith JA, Martin CJ & Pullin JA agreeing).

30 On my examination of the trial record, it is not reasonably arguable that the appellant suffered any procedural unfairness as a result of the manner in which the State's case was conducted in relation to the timing of the occurrence of count 2.

31 The complainant's evidence as to the time when the appellant came to and left her bedroom on the night in question was, on any view, an estimate. She was not cross-examined on this evidence.

32 The appellant's case at trial was that the alleged offending did not happen. According to the appellant, the complainant's evidence was fabricated. He did not take the photograph, the subject of count 1, or send the text messages relevant to count 2. The appellant's case was that although these activities were carried out with his mobile telephone, someone else must have taken the photograph and sent the text messages.

33 Defence counsel's failure to cross-examine the complainant on timing was, objectively, a deliberate forensic decision. She was content not to challenge the complainant's evidence on this issue. Defence counsel, in her submissions to the jury, compared the complainant's evidence as to timing with the timing of the text messages. It was submitted by defence counsel, in substance, that there was a serious inconsistency between the complainant's evidence as to timing on the one hand, and the State's case as to timing (based on the text message communications) on the other, and that this inconsistency reflected adversely on the complainant's credit.

35 As I have mentioned, the appellant gave sworn evidence in his own defence at the trial. Defence counsel also called a number of other witnesses.

36 The trial judge recounted at length, in her summing up, the appellant's evidence.

37 Later, her Honour reminded the jury as to the State's case in relation to the appellant's evidence:

You'll remember that [the prosecutor] spoke to you about the believability of [the appellant], saying he is a person who tells untruths when it suits him. They ask you to consider his demeanour and suggest that his evidence flies in the face of certain independent evidence, being texts on the mobile phone or phones he owned; photographs taken from his phone and also how the allegation came to the attention of the police (ts 1310).

38 Counsel for the appellant submitted that, in the circumstances of the case, and to ensure that the appellant received a fair trial, the trial judge should have directed the jury 'in accordance with the principle stated by the High Court in Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234 and told them in clear terms that any lies they found were told by [the appellant] only went to his credibility'.

39 According to counsel for the appellant, her Honour did not, at any stage, adequately direct the jury that any inconsistencies in the evidence of the appellant were only relevant to his 'credit'. There was a risk, so it was submitted, that the jury may have relied upon inconsistencies in the appellant's evidence 'as being told out of a "consciousness of guilt" on his part, even though the State did not couch them in that way'.

40 The prosecutor did not rely on any inconsistencies in the appellant's evidence or any lies he may have told as indicating a consciousness of guilt. The State relied on any such inconsistencies or lies solely in relation to his credit.

41 After closing addresses and before the trial judge commenced her summing up, there was a discussion between her Honour and counsel in the absence of the jury. The prosecutor raised with her Honour whether it was appropriate for 'a Zoneff-type direction' to be given. He said, however, that he had discussed the point with defence counsel, and her view was that it was not appropriate for such a direction to be given (ts 1226). The following exchange occurred between her Honour and defence counsel:

DEANE DCJ: ... I don't intend to say anything other than: I'll obviously give a direction, Ms Seif, about your client electing to give evidence. And the jury obviously consider all of the evidence, including the evidence called on behalf of your client. And that they assess your client's evidence in exactly the same way as they would assess the evidence of any other witness. And I'll be reminding them, of course, that certain things were put to him, and he denied those propositions.

SEIF, MS: Yes, your Honour. And my view to the State was that neither an Edwards direction [nor] a Zoneff direction was appropriate in this case (ts 1227).

42 The trial judge instructed the jury, in her summing up, about the appellant having given sworn evidence:

[The appellant] himself did not have to give evidence, but having chosen to do so you take his evidence into account and you assess it rather, in exactly the same way as you would assess the evidence of any other witness. You take the evidence - all of it before you into account (ts 1303).

43 Her Honour then told the jury that it could accept everything a particular witness said in his or her evidence, it could reject everything a particular witness said, or it could accept some part or parts of his or her evidence and reject some part or parts (ts 1303).

44 Next, the trial judge addressed the issue of inconsistencies in the evidence of a witness:

Now, in the course of your deliberations or discussions, you decide that there are inconsistencies in the evidence of a particular witness. Now, an inconsistency internally in the evidence they gave before you.

An inconsistency between what they said in their evidence before you and what they might have said on an earlier occasion. Or an inconsistency between what one witness says about a particular topic and what other witnesses say about that same topic.

If inconsistencies exist in the evidence of a witness of that nature, then it may help you to assess their reliability. But bear in mind also, if you find an inconsistency exists in a witness's evidence ask yourself, 'Well, is that an important inconsistency? Does it matter? Is it really going to impact upon my assessment of that person? Or is it something that perhaps anyone could become confused about or make a mistake about and it's not really important?'

If the witness was asked to explain why an inconsistency existed in their evidence, take into account the explanation for the reason that they gave or the reason that they gave (ts 1304).

45 Her Honour told the jury that the trial was 'a very, very stark example of credibility' (ts 1304) and of '[i]ssues of credibility' (ts 1304).

46 The trial judge gave the jury these instructions as to how it should proceed if it were to accept or reject some or all of the appellant's evidence:

Now, clearly the evidence of some of the State witnesses on the one hand and the evidence of [the appellant] and some of the witness[es] called on his behalf on the other hand, in some respects and in some quite critical respects is in conflict.

But you should appreciate that your role and your decision involves more than simply deciding whether you believe one or more of the State witnesses or [the appellant] and one or more of his witness[es]. On the one hand the State witnesses and on the other hand [the appellant] and some of his witnesses.

Really, the position is this, even if you were to reject [the appellant's] evidence and the case for the defence it does not necessarily mean that you would find him guilty of a particular ... charge.

Before you may find [the appellant] guilty of a particular charge you must be satisfied of his guilt on that charge beyond reasonable doubt having regard to all of the other evidence relevant to that charge and in particular the complainant's evidence.

The State's case relies very heavily, although of course not solely, on the complainant's evidence and your assessment of her reliability and her credibility as a witness.

As I said you may or may not accept [the appellant's] evidence in full, in part or at all, but an accused person is still entitled to be acquitted unless every element of the particular State case has been proved against him beyond a reasonable doubt.

Obviously the onus to do that rests on the prosecution; they must prove guilt. The burden does not in any way lie upon an accused to prove his innocence.

So in the first place if, on all of the evidence as to a particular charge, you are satisfied beyond a reasonable doubt of the guilt of [the appellant] on that charge, then of course you must convict him of it.

Secondly, if you believe [the appellant] is telling the truth you must acquit [the appellant].

Now, thirdly, if you are left with a reasonable doubt as to any matter that the State must prove or disprove beyond reasonable doubt then you must acquit [the appellant].

In other words if relevant to a particular charge you cannot determine where the truth lies beyond a reasonable doubt [the appellant] is entitled to the benefit of that doubt.

So put another way first if you believe the evidence of [the appellant] obviously you must acquit.

Second, if you find difficulty in accepting the evidence of [the appellant], but think that it might be true then you must acquit.

Third, if you do not believe [the appellant] then you should put his testimony to one side, because the question must always be, 'have the State, upon the basis of the evidence that you do accept, proved the guilt of [the appellant] beyond a reasonable doubt' (ts 1306 - 1307).

47 After the trial judge completed her summing up, defence counsel did not seek any further direction or redirection.

48 The rationale for directing a jury as to the use that it may make of lies told by the accused is to prevent the jury from reasoning impermissibly towards a verdict of guilty.

49 However, as Gleeson CJ and Hayne J noted in Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1, it is not necessary for the trial judge to give the jury an Edwards direction or a Zoneff direction whenever it is suggested, in cross-examination or submissions, that something said by the accused, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability [34]. Their Honours added:

Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction (Zoneff v The Queen (2000) 200 CLR 234 at 244 [16]; R v Burge [1996] 1 Cr App R 163 at 173). Zoneff was said to be an unusual case (Zoneff v The Queen (2000) 200 CLR 234 at 245 [23]), and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies. The present was not such a case [34].

See also the observations of McHugh and Gummow JJ [59].

50 McHugh and Gummow JJ said in Dhanhoa that, when no redirection concerning evidence is sought at a criminal trial, 'the appellant can only rely on a failure to direct the jury on the evidence if he or she establishes that that failure constituted a miscarriage of justice' [38]. Their Honours then said that no miscarriage of justice will have occurred in the circumstances unless the appellant establishes, first, that the direction should have been given and, secondly, that it is reasonably possible that the failure to give the direction may have affected the verdict [38].

51 As I have mentioned, in the present case, it was not part of the State's case that any inconsistencies in the appellant's evidence or any lies he may

have told were evidence of a consciousness of guilt. There is no suggestion to that effect in the trial judge's summing up.

52 Her Honour's directions focused on the issue of credibility. She emphasised on several occasions that the credibility of the witnesses was at the heart of the case. She instructed the jury that if it did not accept the whole or some part of the appellant's evidence then it should put that evidence to one side and ask whether, on the evidence that it did accept, the State had proved beyond reasonable doubt that the appellant had committed the particular count under consideration.

53 I am satisfied that it is not reasonably arguable that there was a real danger that the jury may have reasoned that any inconsistencies in the appellant's evidence or any lies he may have told were evidence of a consciousness of guilt and could be taken into account in deciding whether the State's case against him had been made out. There was no scope for any misunderstanding by the jury about the significance of possible inconsistencies or lies. The only understanding that the jury could conceivably have had is that any such inconsistencies or lies went solely to the appellant's credit as a witness.

55 Each proposed ground of appeal is unmeritorious. The application for an extension of time to appeal should therefore be dismissed.