Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against convictions - Sexual offences against a child - Sexual penetration - Cunnilingus - Whether inconsistency between particulars of charges on indictment and prosecution case at trial - Distinction between particulars and elements of an offence - Whether particulars adequate such that accused person able to identify the act, omission and circumstances of offence charged - Whether defective indictment had material effect upon conduct of the defence - Whether miscarriage of justice

Criminal Appeals Act 2004 (WA), s 30

Criminal Code Act Compilation Act 1913 (WA), s 319, s 320

Criminal Procedure Act 2004 (WA), s 85, s 131, s 132, sch 1 div 2

AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438

Bauerhuit v Dean [2011] WASC 253

Director of Public Prosecutions Reference Under s 693A of the Criminal Code (No 1 of 1992) v 'M' (1993) 9 WAR 281

Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 A Crim R 481

Giles v Samuels (1972) 3 SASR 307

Hayes v Kenning [1992] SASC 3616

Ingham v McKenzie [2009] WASC 351

Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23

Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467

Mackay v The Queen [1977] HCA 22; (1977) 136 CLR 465

McKay Investments Pty Ltd v Kent [2011] TASSC 11

Quaid v The Queen [2011] WASCA 141

R v Ayres [1984] AC 447

R v Fahey, Solomon & A [2001] QCA 82; [2002] 1 Qd R 391

Sabourne v The State of Western Australia [2010] WASCA 242

Suresh v The Queen [1998] HCA 23; (1998) 102 A Crim R 18

TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124

Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

Wickham v Cole [1957] Tas SR 111

1 MARTIN CJ: This appeal should be dismissed for the reasons given by Hall J, with which I agree.

3 The appellant was convicted following a trial in the District Court of two counts of sexually penetrating a child under the age of 13 years pursuant to s 320(2) of the Criminal Code (WA) and one count of indecently dealing with the same child pursuant to s 320(4) of the Criminal Code. He was acquitted of a further charge of indecent dealing. He now appeals against his convictions on the counts of sexual penetration.

4 The issue in this appeal is whether the prosecution case as presented to the jury at trial was materially different from both the way in which the charges were particularised in the indictment and the way in which the trial judge directed the jury at the end of the trial. Ultimately this is a question of fairness; was the appellant prejudiced because there was a difference between the particulars of the charges and the prosecution case? In my view he was not and this appeal should be dismissed.

5 In order to understand the issue raised in this appeal it is necessary to refer to the statutory definition relevant to the charges. The phrase 'to sexually penetrate' is defined in s 319 of the Criminal Code. It can mean to penetrate the vagina (which term includes the labia majora) of any person with any part of the body of another person. It can also mean to engage in cunnilingus. Cunnilingus may, but does not necessarily, involve actual penetration.

6 In the present case the appellant submits that the particulars of the charges contained in the indictment referred to the first definition. However, it is said that the prosecution evidence, whilst sufficient to establish cunnilingus, did not prove that penetration as alleged in the charges had occurred. The appellant says that the trial judge's directions were in error because they related to actual penetration and not cunnilingus and that there was a consequential miscarriage of justice.

7 There were originally two grounds of appeal but ground 1 was abandoned at the hearing. The remaining ground reads as follows:

The learned trial Judge erred both in law and fact, and there was a miscarriage of justice, when he misdirected the jury concerning an element of Counts 2 and 4 on the Indictment;

Particulars:

2.1 Counts 2 and 4 both alleged a sexual penetration that occurred when the Appellant penetrated the complainant's vagina with his tongue ('the Counts');

2.2 The State opened its case on the basis [that] the relevant offending in relation to Counts 2 and 4 arose from acts of cunnilingus;

2.3 Consistent with the State's opening, the complainant gave evidence of two acts of cunnilingus;

2.4 Concerning the element of 'to sexually penetrate' as contained within the Counts, His Honour directed the jury pursuant to the definition of that element as contained within section 319(a)(i) of the Criminal Code rather than, as he was required to, the definition contained within section 319(d) of the Criminal Code.

8 Counts 2 and 4 of the indictment, the subjects of this appeal, read as follows:

1. On a date unknown between 1 October 2005 and 27 October 2005 at Armadale or Kelmscott [the appellant] sexually penetrated [the complainant], a child under the age of 13 years, by penetrating her vagina with his tongue.
2. On a date unknown between 25 October 2005 and 27 October 2008 at Nollamara [the appellant] sexually penetrated [the complainant], a child under the age of 13 years, by penetrating her vagina with his tongue.

9 The prosecution case in respect of count 2 was that on an occasion shortly before her tenth birthday the complainant was at home when the appellant visited. The complainant's mother went to the shops and whilst she was absent, the appellant forced the complainant into a bedroom where he pulled down her clothing and licked her vagina.

10 In respect of count 4, the prosecution case was that on a later date the complainant and her mother went to visit the appellant at his house where they stayed overnight. That evening the complainant was washing dishes in the kitchen whilst her mother took a shower. At this time the appellant grabbed the complainant, turned her upside down and licked her on the vagina.

11 The State prosecutor in his opening address to the jury referred to the sexual penetration charges in the following terms:

[T]he licking of the complainant's vagina by the accused with his tongue; these are alleged to be acts of sexual penetration. Now sexual penetration includes a lot of things but in this case the law says that it includes - sexual penetration includes - engaging in cunnilingus which is a technical word for licking a vagina with someone's tongue. So what that means, ladies and gentlemen, is if you find that [the complainant] while a child, did have her vagina licked by this man's tongue, then as a matter of law, that is an act of sexual penetration (ts 27).

12 The complainant was interviewed on two occasions by the police. She referred to the two acts of sexual penetration in the second interview. The interviews were admitted in evidence. The substance of that evidence was reflected in the prosecution opening. In cross-examination it was put to the complainant that the appellant had not touched or licked her on any occasion. It was put to her on a number of occasions that the incidents she had described did not occur and that she had 'made it up'. She maintained that she had not made it up and that the incidents had occurred.

13 At no stage in the trial did defence counsel suggest that there was any inconsistency between the prosecution case, as opened and presented, and the particulars contained in the indictment. There was no suggestion that the appellant had expected to face any other allegation than that each of counts 2 and 4 related to alleged acts of cunnilingus. The issue at trial was whether any act of sexual penetration had occurred at all, not whether the acts that had occurred were in some material respect different from those that had been particularised in the indictment.

14 The appellant gave evidence in which he denied that any of the incidents described by the complainant had occurred. In particular, it was put to him that he had licked the complainant's vagina on two occasions and he denied that that had occurred.

15 At the conclusion of the evidence the trial judge asked counsel if there were any special directions that were required in this case. The discussions which followed made it clear that the essential issue in the case was whether the complainant's evidence could be accepted to the requisite standard. There was no suggestion that any particular direction needed to be given arising from the way in which the indictment was framed.

16 In his closing address defence counsel submitted to the jury that they could not be satisfied beyond reasonable doubt that the incidents described by the complainant had occurred. He suggested to the jury that the complainant's evidence was vague in parts, that there had been a long delay before complaining and that there was no corroboration or forensic evidence which confirmed her evidence. It was not suggested either to the jury or the trial judge that the evidence at trial was insufficient to establish the charge in the indictment. Nor was it suggested that there was any difference of significance between the charges and the evidence.

17 The trial judge told the jury that they must be satisfied that each element of the offences was proven beyond reasonable doubt. In relation to the charges of sexual penetration, his Honour said:

[T]he second element the State's got to prove is that he, [the appellant], sexually penetrated [the complainant]. And you'll see those words appearing on the indictment, 'Sexually penetrated her'. Sexual penetration at law can take many forms. The State alleged that in this case [the appellant] sexually penetrated [the complainant] by penetrating her vagina with his tongue in each case. So that's counts 2 and 4. He denies that. The law is that if a person penetrates the vagina of another person with any part of his body, he sexually penetrates that person. Any degree of penetration of the outer lips of the vagina is sufficient. And 'vagina' is used in a non-technical way (ts 121).

18 His Honour then summarised the evidence. In relation to count 2 his Honour said:

[S]he said: He got me on the bed - pulled her undies down - and licked down there. She said she thought it was her 10th birthday the week after. She said she thought she was nine, turning 10. It was either a house near Armadale Hospital or a house in Kelmscott. The bed was in her mum's room. She said that his tongue went up to her tummy. He said not to tell her mum and not to tell anyone about it (ts 122 - 123).

[H]er evidence was that she couldn't remember how old she was at the time that this had occurred. Her mum had stayed at [the appellant's] that night. She was doing the dishes. The accused had, on her evidence, grabbed her bum. Those were her words. He put her upside down, he licked down there, she had been facing the sink at the time. He was licking her vagina. And she said to you that what she said in each of her interviews, was correct and true, when she gave her evidence (ts 123).

20 His Honour then told the jury that the evidence of the complainant was crucial in this case. He said that the jury must be satisfied beyond reasonable doubt as to the truthfulness, accuracy and reliability of the complainant's evidence before they could convict the appellant. His Honour also cautioned the jury to use special care in scrutinising the evidence of the complainant, but added that they could convict the appellant if they were satisfied as to the truthfulness, accuracy and reliability of it.

21 Section 85 of the Criminal Procedure Act 2004 (WA) provides that an indictment must be in writing and comply with sch 1 div 2. Schedule 1 div 2 cl 5 reads:

(1) A charge in a prosecution notice or indictment must inform the accused of the alleged offence in enough detail to enable the accused to understand and defend the charge, and in particular must -

(a) describe the offence with reasonable clarity;

(b) identify the written law and the provision of it that creates the offence;

(c) identify with reasonable clarity -

(i) the date when the offence was committed or, if the date is not known, the period in which the offence was committed; and

(ii) where the offence was committed;

(d) if the offence is one against a person, identify the person concerned in accordance with clause 6(2); and

(e) if the offence relates to property, comply with clause 6(4) and (5).

(a) it is sufficient to describe an offence in the words of the written law that creates it;

(b) if that written law states that alternative acts, omissions, capacities, or intentions, constitute the offence, the alternatives may be set out;

(c) a charge is not defective only because an element of the offence is not stated; and

(d) it is not necessary to allege -

(i) any matter, or any particulars as to a person or thing, that need not be proved; or

(ii) the means or thing used to do an act constituting an offence unless the means or thing is an element of the offence.

22 Section 131 of the Criminal Procedure Act deals with the power of a court to order that further particulars be provided. It reads as follows:

Unclear charge, court may order particulars etc.

(1) The powers in this section may be exercised by a court on its own initiative or on an application by an accused and may be exercised before or during a trial.

(2) A court may amend or cancel an order made under this section.

(3) A court may order a prosecutor to give the accused further particulars of a charge.

(4) If a court is satisfied that a charge that complies with Schedule 1 clause 5(2)(b) is likely to prejudice the accused's defence of the charge, the court may -

(a) order the prosecutor to give the accused further particulars of the charge; or

(b) exercise a power to amend in section 132.

23 The power to amend a charge is dealt with under s 132 which relevantly reads as follows:

Amending charges etc.

(1) The powers in this section may be exercised by a court in relation to a charge at any time before or during a trial.

(2) The powers in this section may be exercised by a court on its own initiative or on the application of a prosecutor or an accused, unless the contrary intention appears.

(3) A court, on the application of the prosecutor, may amend a charge.

(4) Without limiting subsection (3) a court may amend a charge to correct any variance between the charge and the evidence led by the prosecutor in support of it.

...

(7) A court that amends a charge, prosecution notice or indictment must ensure the prosecutor and the accused are each given a copy of it.

(8) If a court amends a charge, prosecution notice or indictment and is satisfied that the amendment prejudices the accused's defence of the prosecution notice or indictment or of a charge in it, the court must adjourn the prosecution notice, indictment or charge, as the case requires.

...

(10) A court may refuse to amend a charge, prosecution notice or indictment if it is satisfied -

(a) the amendment is material to the merits of the case;

(b) the amendment would prejudice the accused's defence of the charge, prosecution notice or indictment; and

(c) an adjournment would not overcome the prejudice.

24 The phrase 'to sexually penetrate' is defined in s 319 of the Criminal Code in the following terms:

to sexually penetrate means -

(a) to penetrate the vagina (which term includes the labia majora), the anus, or the urethra of any person with -

(i) any part of the body of another person; or

(ii) an object manipulated by another person,

except where the penetration is carried out for proper medical purposes;

(b) to manipulate any part of the body of another person so as to cause penetration of the vagina (which term includes the labia majora), the anus, or the urethra of the offender by part of the other person's body;

(c) to introduce any part of the penis of a person into the mouth of another person;

(d) to engage in cunnilingus or fellatio; or

(e) to continue sexual penetration as defined in paragraph (a), (b), (c) or (d).

25 In each of counts 2 and 4 the phrase 'by penetrating her vagina with his tongue' was a particular and not an element of the offence. The relevant element was sexual penetration which could occur in any of the ways referred to in the definition in s 319. The particulars provided in each of the charges were the way in which the prosecution alleged that the sexual penetration had occurred. This was a matter which could be the subject of particulars in the charge: sch 1 Div 2 cl 5(2)(b) Criminal Procedure Act.

26 This raises two questions. First, whether there was a material discrepancy between the way in which the offences were particularised in the indictment and the prosecution case. Secondly, if there was such a difference, what is the significance of it?

27 The appellant submits that the way in which the offences were particularised must have been intended to be a reference to that aspect of the definition that requires that there be some element of penetration, however slight: definition (a) in s 319. It is suggested that that is different to an allegation of cunnilingus. An allegation of cunnilingus would not (or at least not necessarily) involve any penetration in the literal sense: Director of Public Prosecutions Reference Under s 693A of the Criminal Code (No 1 of 1992) v 'M' (1993) 9 WAR 281.

28 This submission requires that where the word 'penetrating' appears in the indictment it be read in the literal sense and not in the particular sense that applies to the phrase 'sexual penetration' in s 319. To understand what is meant by the indictment and specifically the particulars contained in it, it is important to consider it in the full context of the way in which the trial was conducted. This requires that account be taken of the fact that the complainant's evidence as contained in the police interviews was clearly an allegation that acts of cunnilingus had occurred. That evidence formed part of the prosecution brief and the prosecutor opened the case consistently with it. When viewed in that way it is clear that the prosecution case was always, and was understood by the appellant to be, a case of sexual penetration constituted by cunnilingus. Thus, in my view, the particulars should be read in that way notwithstanding that the word cunnilingus was not used.

29 Even if the indictment was to be read as alleging that actual penetration, rather than external licking, had occurred it would be wrong to suggest that the prosecution case was defined and limited by the literal words of the indictment. In particular, it is important to understand the distinction between particulars and the elements of an offence.

30 Particulars serve the purpose of ensuring that an accused person is aware of the act and occasion which the prosecution relies upon as being the commission of the offence alleged. It is one of the components of a fair trial that an accused person be informed of precisely what it is that the prosecution alleges he or she has done that constitutes a crime: Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 489 (Dixon J). This requirement is reflected in sch 1 div 2 cl 5 of the Criminal Procedure Act.

31 In assessing whether particulars have been adequate, the relevant question is whether the accused person has been able to identify the act, omission and circumstances which the prosecution alleged amounted to the offence charged. It is always a question of substance, not technicality. If the particulars are said to be wrong or misleading, the question remains whether they actually caused the accused to misunderstand or fail to appreciate the case brought against him such that he was prejudiced in his defence. A divergence between particulars and the evidence does not necessarily mean that a different offence is alleged, but it may mean that the fairness of the trial is drawn into question. Thus whether or not the prosecution can properly depart from particulars depends on whether doing so will result in unfairness to the accused.

32 It is sometimes suggested that the prosecution is confined by the particulars that it provides: Johnson v Miller (480) (Latham CJ); Giles v Samuels (1972) 3 SASR 307, 310 (Bray CJ); McKay Investments Pty Ltd v Kent [2011] TASSC 11 [32]; Bauerhuit v Dean [2011] WASC 253 [19]. However, those statements need to be understood as being an expression of the underlying requirement that a criminal trial be fair, not as expressing a rule of pleading. In cases where a departure from the particularised case would be unfair the prosecution would, in practical terms, be confined by the particulars. In other cases a departure may be immaterial: McKay Investments v Kent [34]; Wickham v Cole [1957] Tas SR 111, 114 (Burbury CJ); Ingham v McKenzie [2009] WASC 351 [80].

33 In R v Ayres [1984] AC 447 Lord Bridge said:

If the statement and particulars of the offence in an indictment disclose no criminal offence whatever or charge some offence which has been abolished, in which case the indictment could fairly be described as a nullity, it is obvious that a conviction under that indictment cannot stand. But if the statement and particulars of offence can be seen fairly to relate to and to be intended to charge a known and subsisting criminal offence but plead it in terms which are inaccurate, incomplete or otherwise imperfect, then the question whether a conviction on that indictment can properly be affirmed under the proviso must depend on whether, in all the circumstances, it can be said with confidence that the particular error in the pleading cannot in any way have prejudiced or embarrassed the defendant (460).

34 In Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 Deane J said:

Thus, it can be said, as a general proposition, that default or impropriety on the part of the prosecution in pre-trial procedures can, depending on the circumstances, be so prejudicial to an accused that the trial itself is made an unfair one. One example is where particulars supplied to an accused have been so inadequate and misleading that an accused has been denied a proper opportunity of preparing his defence (57).

35 In Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 A Crim R 481 Gleeson CJ with whom Ireland and Bruce JJ agreed said:

There may be circumstances arising out of the nature of the evidence in a particular case, or the manner in which the case has been conducted, which will make it unfair or oppressive to an accused person to permit the Crown to depart from its particulars. Subject to that qualification, however, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment, or the summons. Failure to establish a particular is not fatal (VHP (Unreported, NSWCCA, No 60733 of 1996, 7 July 1997) (484).

36 In Hayes v Kenning [1992] SASC 3616 Duggan J noted that particulars cannot be elevated to the status of elements of the offence. His Honour then said:

To say that the prosecution is to be held to the case disclosed by its particulars is not to say that in every case where there is a discrepancy between the particulars and the evidence there must be an acquittal. If a material averment in the complaint itself has not been proved then the prosecution must fail. But where particulars which are supplied in addition to the facts contained in the statement of the charge are at variance with the facts relied upon by the prosecution at trial and there is a conviction on that evidence, an appellate court will be required to determine whether there was any unfairness to the person convicted giving rise to the possibility of a miscarriage of justice.

37 In Hayes the appellant was convicted of assault on a basis that was different to that which had been referred to in particulars provided to the defendant. Duggan J concluded that the only way in which prejudice might have arisen in that case was if the particulars misled the appellant as to the incident relied upon to support the charge. He noted that in many cases particularisation is necessary so as to identify one of a number of incidents in the course of a series of events as being the incident which forms the basis of the offence charged. However, in that case there was no ambiguity or vagueness as to the incident relied upon.

38 In R v Lewis [1994] 1 Qd R 613 the Queensland Court of Appeal noted that it is obviously desirable to ensure that the terms of an indictment reflect the case brought by the prosecution. Macrossan CJ with whom Pincus JA and Byrne J agreed in this respect said:

Whether a trial judge should allow delivery of particulars by the Crown containing an element of departure from the terms of the indictment will always be a matter to be addressed by him in the exercise of his discretion. If the departure represents an actual inconsistency, then there will be additional consequences and a decision will be called for in which attention is given to the necessity of ensuring that the defence has and has had proper notice of the case it is called upon to meet. If there is an inconsistency and the delivery of such particulars is nevertheless allowed, then the indictment should be amended.

When an accused is legally represented and objection is not made by the defence to some lack of consistency between the count and the particulars then the force of any later challenge based upon the point will obviously be reduced (28).

39 In Lewis the alleged inconsistency was between the indictment and particulars subsequently provided. That is different from the present case. Here it is suggested that the particulars contained in the indictment were inconsistent with the prosecution case as brought at the trial. However, the same considerations apply. That is to say, the question is whether, if there was any inconsistency, it lead to unfairness in that the appellant was misinformed as to the case that he had to meet?

40 In the present case there can be no doubt that the appellant knew that the case brought by the prosecution in respect of the two charges of sexual penetration was that he had engaged in acts of cunnilingus with the complainant. The defence to that case, as reflected in the cross-examination of the complainant, the appellant's own evidence and his counsel's address to the jury was that the events in question had not occurred. There was no complaint that the framing of the indictment had led the appellant to misunderstand the case brought against him or that he was prejudiced in any way in his defence.

41 There can be no doubt that acts of cunnilingus, if proved, would establish sexual penetration within the terms of s 319. This was implicitly accepted by the appellant in conducting his defence in the way he did. If there is thought to be any ambiguity in the particulars contained in the indictment it is apparent that trial counsel did not perceive it.

42 I am not satisfied that there was ambiguity in the particulars in any event. It seems to me that what the State intended to particularise was the act of cunnilingus in each case. This was always the allegation on which the State case was based and its case never changed. It may have been preferable to have used the word 'cunnilingus' in the particulars since it is used in the definition. However, this is not an issue of semantics but of substance. The appellant did not understand that anything other than cunnilingus was alleged and defended himself accordingly.

43 In any event, had the issue been raised at trial there can be no doubt that an amendment to the indictment would have been allowed: s 132(4) Criminal Procedure Act. Any such amendment could not have been prejudicial to the defendant given that it would merely have confirmed that the basis upon which he was conducting his defence was correct, namely that the prosecution was alleging acts of cunnilingus. It was not suggested that there would have been any material difference to the trial had such an amendment occurred. This is indicative of there being no unfairness at the trial. As such, there would have been no proper basis for an adjournment: s 132(8) Criminal Procedure Act.

44 The appellant in his ground of appeal, focuses specifically upon the directions given by the trial judge. It is submitted that in his directions the trial judge referred to an irrelevant aspect of the definition of sexual penetration and did not refer to the relevant aspect. It is said that his Honour thereby failed to adequately direct the jury as to what could constitute sexual penetration in the circumstances of this case.

45 Of course, as with all directions, it is important to read that part of the directions complained about in their full context. In that regard, his Honour summarised the evidence of the complainant in the terms referred to earlier. He also told the jury that if they were satisfied to the requisite standard that the complainant was telling the truth in respect of those incidents they could find the accused guilty. The verdict of the jury is only consistent with a finding in that regard. That is to say, the jury must have been satisfied beyond reasonable doubt that the acts of cunnilingus described by the complainant had occurred. In this context, the absence of a specific direction in regard to the definition of cunnilingus was inconsequential.

46 Irregularities not affecting the outcome of a criminal trial have been said in some circumstances not to be miscarriages of justice: TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [79]; Suresh v The Queen [1998] HCA 23; (1998) 102 A Crim R 18 [42]; Sabourne v The State of Western Australia [2010] WASCA 242 [34]. An unnecessary direction would not justify the setting aside of a conviction and would not constitute a miscarriage of justice unless it had the potential to give rise to confusion in the minds of the jurors: Quaid v The Queen [2011] WASCA 141 [101].

47 In the present case it could be said that the trial judge gave an unnecessary direction in regard to the first limb of the definition of 'sexual penetration'. It could also be said that his Honour failed to specifically direct the jury that the definition included cunnilingus. However, it does not follow from that that there was any real potential for confusion in the minds of the jury as to what was at issue and what it was necessary for them to find proven in order to find the appellant guilty. Indeed, his Honour made plain that if the jury was satisfied beyond reasonable doubt that the licking described by the complainant had occurred, then they could find the appellant guilty. The only reasonable interpretation that the jury could draw from this is that the acts described by the complainant were capable of constituting 'sexual penetration' as alleged in the indictment. A direction to that effect was, of course, correct.

48 Whilst, in my view, no miscarriage of justice arose from the trial judge's directions, I have also considered whether, if an error could be said to have occurred, there was a substantial miscarriage of justice.

49 It is incorrect to suggest that there was a misdirection in respect of the definition. The definition given by the trial judge to the jury was one aspect of it. To the extent that there was some risk that the jury might understand that aspect of the definition as requiring that there be some element of actual penetration in the literal sense it is not a risk that could lead to any possibility that the appellant was unfairly convicted. Indeed, to the extent that there was an error, it did not result in the appellant losing a chance of acquittal, rather it unfairly increased those chances.

50 As to the suggestion that there was a failure to give a relevant direction on the definition of 'sexual penetration', any such failure does not, in my view, give rise to any substantial miscarriage of justice: s 30(4) of the Criminal Appeals Act 2004 (WA). This is not a case where there could be said to be a significant denial of procedural fairness or a serious breach of the presuppositions of a trial: Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, 317; AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438, 469 [87] (Heydon J).

51 The omission did not deprive the appellant of a chance fairly open to him of being acquitted for the reasons stated earlier. The real issue in the trial was whether the acts alleged had occurred. That was the basis upon which the case was defended and ultimately determined. Given that that was the issue for determination by the jury, a different direction regarding the meaning of 'sexual penetration' could not have produced a different result. The appellant has not been embarrassed in his defence by defective particulars, nor has he lost an opportunity which was fairly open to him of being acquitted.

52 This is not a case where a defective indictment could be said to have had a material effect upon the conduct of the defence: R v Fahey, Solomon & A [2001] QCA 82; [2002] 1 Qd R 391 [17]. See also Mackay v The Queen [1977] HCA 22; (1977) 136 CLR 465. Accordingly, if the particulars in this case were defective and there was a lack of direction from the trial judge about cunnilingus, those matters are immaterial in the context of this case and did not embarrass or prejudice the appellant in the conduct of his defence and have not resulted in a substantial miscarriage of justice.

53 This conclusion is reinforced by the fact that the appellant's trial counsel did not submit at any stage that the complainant's evidence was not capable of supporting the allegations of sexual penetration in the indictment if her evidence was accepted by the jury. The issue raised on this appeal was one that occurred to none of those who were involved in the trial. Specifically, in regard to the directions given by the trial judge, there was no request for a redirection.