Criminal law and procedure - Application for leave to appeal against conviction - Whether a miscarriage of justice was caused by the alleged failure of the trial judge to direct the jury in accordance with Liberato v The Queen - Turns on own facts

B v The State of Western Australia [2011] WASCA 114

Cooper v The State of Western Australia [2010] WASCA 190

Johnson v The State of Western Australia [2008] WASCA 164; (2008) 186 A Crim R 531

Koushappis v The State of Western Australia [2007] WASCA 26; (2007) 168 A Crim R 51

Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507

R v Anderson [2001] NSWCCA 488; (2001) 127 A Crim R 116

1 MAZZA JA: This is an application for leave to appeal against conviction.

2 On 29 May 2014, the appellant was found guilty by a jury in the District Court of three counts of sexual penetration of a child under the age of 13 years, contrary to s 320(2) of the Criminal Code (WA).

There was a miscarriage of justice when the learned trial Judge failed to clearly direct the jury on a crucial issue at trial relating to the accused's evidence:

Particulars:

1.1 His Honour failed to clearly direct the jury the prosecution carried the onus of proving beyond reasonable doubt that the appellant's denial as to the central issue in the trial was 'untruthful' (t-s 353C); and

1.2 His Honour failed to clearly direct the jury they must be satisfied beyond reasonable doubt that the accused's denial as to the central issue in the trial was 'untruthful' before they could consider whether they were satisfied of his guilt based on the other evidence in that regard adduced by the Prosecution.

4 It is clear from the appellant's written and oral submissions that, in substance, it is alleged that in the process of his Honour giving the jury what is commonly called a Liberato direction (Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507), he failed to give the directions set out in particulars 1.1 and 1.2.

5 For the reasons that follow, the proposed ground of appeal has no reasonable prospect of succeeding. Accordingly, the appeal must be dismissed.

6 The prosecution case depended upon the veracity of the complainant, who was born in November 1997. In broad terms, she testified as follows. The appellant was in a relationship with the complainant's mother. Count 1 occurred in 2007 or 2008, when the complainant was 9 or 10 years old, on an occasion when her mother had gone out and left the complainant at home with the appellant. At the appellant's request, the complainant went to the main bedroom. While the complainant and the appellant were lying on the bed, the appellant removed her pants and underwear and then moved his fingers in and out of her vagina. The appellant then commenced to masturbate. He asked the complainant to play with his penis, but she refused.

7 Counts 2 and 3 occurred on 8 June 2010. The complainant was able to remember the date because it was the day that the family pet, a dog named Lily, died. The appellant was asked to look after the complainant and her siblings while the complainant's mother sought treatment for the dog. The appellant had a meal with the complainant and her siblings and then took the children to his house. There, the appellant asked the complainant to lie down on his bed, which she did. She eventually fell asleep. She awoke to find her pants off and the appellant's fingers in her vagina (count 2). The complainant went back to sleep, but awoke to find the appellant again penetrating her vagina, this time with his penis (count 3).

8 The appellant testified in his defence. He denied the offending.

Liberato direction - general observations

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

10 Although his Honour was in dissent, the statement has been accepted as authoritative: Koushappis v The State of Western Australia [2007] WASCA 26; (2007) 168 A Crim R 51 [100] (Roberts-Smith JA, McLure & Buss JJA agreeing).

11 It is well established in this State that a Liberato direction is not required as a matter of law where, as in this case, there is a conflict between the evidence of an accused and the evidence of a complainant: Johnson v The State of Western Australia [2008] WASCA 164; (2008) 186 A Crim R 531 [11] (Wheeler JA) [29] (Buss JA); Cooper v The State of Western Australia [2010] WASCA 190 [38]. Such a direction should be given if, in the circumstances of the case, there is a real (not fanciful) risk that the jury may have the impression that disbelief of an accused's evidence, or preference for a complainant's evidence, means the State has proved its case beyond reasonable doubt: B v The State of Western Australia [2011] WASCA 114 [6] (McLure P).

12 Where a trial judge decides that a direction should be given, it is common for the direction to be in the terms suggested by Kirby J (Sheller JA & Dowd J agreeing) in R v Anderson [2001] NSWCCA 488; (2001) 127 A Crim R 116 [26]:

First, if you believe the evidence of the accused, obviously you must acquit. Second, if you find difficulty in accepting the evidence of the accused, but think that it might be true, then you must acquit. Third, if you do not believe the accused, then you should put his testimony to one side. The question will remain; has the Crown, upon the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?

13 See also Koushappis [104] and Johnson [16].

14 Having said this, there is no form of words which must be used in all circumstances: Johnson [16]. The question is, having regard to the summing up as a whole, was there a real risk that the jury would have been left with the impression I referred to earlier.

15 It is questionable whether a Liberato direction was required in this case. It had not been suggested that anything said at the trial would have given rise to a real risk that the jury would have reasoned impermissibly. However, I will assume in the appellant's favour that a Liberato direction was required.

16 The appellant's written submissions focused on his Honour's direction at ts 353, which was in these terms:

And finally, at the end of the day, to convict the accused person of the charge, you must be satisfied of the State's evidence as to each element of that charge is truthful and accurate and reliable and that the accused's person's denial is untruthful.

17 Regrettably, the appellant's written submissions did not refer at all to relevant directions given earlier in the summing up.

18 Immediately after clear and correct directions as to the onus and standard of proof, his Honour directed the jury in these terms:

You'll recall, members of the jury, that the accused in his evidence denied each of the acts alleged against him on the indictment and denied any form of sexual impropriety involving the complainant. It may be that you believe all of the accused's evidence. In that event you would acquit him and find him not guilty. If you find difficulty in accepting the evidence of the accused but think that it might be true, then you must find him not guilty. You must acquit him.

Even if you were not to believe his evidence, you cannot find an issue against the accused contrary to his evidence if his evidence, or any evidence for that matter, has given rise to a reasonable doubt on an issue.

It's very important for you to remember, members of the jury, that the question for you to consider is whether on all the evidence before you the State has proved the charge that you're considering against the accused beyond reasonable doubt, and that if his evidence, or any evidence for that matter, has given rise to a reasonable doubt, then you cannot convict him on any of the counts on which that doubt has arisen.

Further, even if you were not to accept the accused's evidence and to reject that evidence, it does not follow automatically that you convict the accused of the offence you're considering. The accused does not have to prove anything. The law is that you only deliver a guilty verdict if, on all the evidence, the State has proved the charge beyond reasonable doubt. If you do not believe the accused, then you should put his testimony to one side. The question will remain: has the State, upon the basis of the evidence that you do accept, proven the guilt of the accused beyond reasonable doubt? (ts 333 - 334) (emphasis added)

19 No exception was taken to these directions by the appellant's trial counsel.

20 The directions given by his Honour conform with the authorities I have referred to. In particular, it is patent that the direction conforms with what was said in Anderson. The directions would have left the jury in no doubt that:

(a) The jury could only convict if the State had proved the charge beyond reasonable doubt.

(b) The jury must consider all of the evidence in the case including the appellant's testimony.

(d) Having given evidence, if the jury believed the appellant they would acquit.

(e) The jury must also acquit even if it found the evidence of the appellant might be true.

(f) Even if the jury rejected the appellant's evidence, it would not follow from this fact alone that the appellant must be convicted. If the jury did not believe the accused, then his testimony is put to one side and the question remains: has the State, upon the basis of the evidence that the jury does accept, proved the guilt of the appellant beyond reasonable doubt?

21 The directions posited in both particulars of the grounds of appeal were not only unnecessary, but may have given rise to the kind of reasoning a Liberato direction seeks to avoid.

22 In light of the directions set out at [18], counsel for the appellant, in oral submissions, narrowed the scope of the ground of appeal. His complaint focused on the learned trial judge's alleged failure to direct the jury as to its approach if it 'positively rejected' the appellant's testimony. Counsel submitted that the omission of the word 'positively' somehow led to a miscarriage of justice. Counsel conceded that if this point failed, the appeal failed (appeal ts 7).

23 This submission cannot be accepted. As I said earlier, the adequacy or otherwise of a Liberato direction does not depend upon a particular formulation of words. The direction that was given would have left the jury in no doubt as to its task in the event that it rejected the appellant's testimony. The addition of the word 'positively' would not have added anything of substance to the direction.

24 His Honour's directions were in accordance with authority and were correct. The ground of appeal is not reasonably arguable. Leave to appeal must be refused and the appeal dismissed.