BSD -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2009] WASCA 152 (25 August 2009)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BSD -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2009] WASCA 152

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Whether direction contravened principle in Robinson v The Queen - Whether direction lacked balance - Whether reversal of onus of proof - Need for propensity warning

Evidence Act 1906 (WA), s 31A

Cornelius v The Queen (1988) 34 A Crim R 49

Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413

de Rosa v The State of Western Australia [2006] WASCA 57; (2006) 32 WAR 136

Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555

Etherton v The State of Western Australia [2005] WASCA 83; (2005) 30 WAR 65

Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590

HML v The Queen [2008] HCA 16; (2008) 235 CLR 334

KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221

Lawson v The State of Western Australia [2008] WASCA 212

Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193

Noto v The State of Western Australia (2006) A Crim R 457

PIM v The State of Western Australia [2009] WASCA 131

Ramey v The Queen (1994) 68 ALJR 917

Robinson v The Queen [1991] HCA 38; (1991) 180 CLR 531

Stack v The Queen [2002] WASCA 338

Stafford v The Queen (1993) 67 ALJR 510

1 McLURE JA: This is an appeal against conviction. The appellant was convicted after trial of two counts of sexual penetration of a child under the age of 16 who he knew to be his lineal relative contrary to s 329(2) of the Criminal Code (WA) (the Code) and three counts of indecent dealing with a child under the age of 16 who he knew to be his lineal relative contrary to s 329(4) of the Code.

2 The offences were committed against the same complainant, the appellant's granddaughter. There are six grounds of appeal, a number of which overlap. In essence, the appellant contends the trial judge erred by contravening the principle in Robinson v The Queen [1991] HCA 38; (1991) 180 CLR 531, in giving a direction that lacked balance, in reversing the onus of proof and in her directions relating to uncharged acts.

3 The complainant was born on 8 April 1993. The appellant was her paternal grandfather. He and his wife, the complainant's grandmother, looked after the complainant from time to time in the period from 2005 to 2007.

4 The complainant lived with her mother and brother. The children's father, the appellant's son, separated from the complainant's mother around 1995. In around March 2005, after a dispute about the payment of child support, the complainant's father declined to pick up the complainant from her mother for access visits. Shortly thereafter, the appellant initiated and facilitated regular contact between the complainant and her father. The appellant would pick up and drop off the complainant at a nominated hand-over point. In 2005, the appellant and his wife lived in the same street as the complainant's father.

5 The complainant's evidence-in-chief was in the form of two video-recorded interviews with police officers. She was cross-examined. The complainant's evidence was as follows. On an unspecified day in the calendar year 2005 at the appellant's house in Girrawheen, the appellant invited the complainant to join him in the spa in the backyard. At the appellant's request, she sat on his lap and he rubbed her thighs (count 1). He was naked. After the complainant got out of the spa and had a shower, the appellant invited her behind the shed in the backyard. At his request, she sucked the appellant's penis (count 2) and then the appellant licked her vagina (count 3).

6 The remaining indecent dealing offences took place in 2007. The complainant had stayed the night at her grandparents' house and the next day the appellant offered to take the complainant shopping. They went to a shopping centre and the appellant picked out bras and knickers for the complainant which he paid for. Driving home from the shopping centre, the appellant stopped his vehicle at a park in Girrawheen. He touched the complainant on the breast on the outside of her clothing and squeezed her nipples under her clothing (count 4). The complainant said no and pushed him away. He offered her money to permit him to continue but she refused. Later on the same day at the appellant's house with no one else present, the appellant asked the complainant to put on the underwear he had purchased for her. She put on one combination of bra and knickers. He looked at her, asked her to turn around and then said to try the other ones on, which she did. The appellant then grabbed the complainant's breast (count 5). In cross-examination, the complainant said the shopping expedition occurred probably about a month after her birthday (ts 43) and was the same day on which perfume was purchased for her grandmother (ts 47).

7 The complainant's mother gave evidence. She thought the complainant had stayed at her grandparents' house and returned with underwear purchased by the appellant just before or around the complainant's birthday in April 2007.

8 The appellant gave evidence and denied the charges. He said it was impossible to access the rear of the backyard shed because a large amount of wood to a height of 5 ft or 6 ft was stored against it. He admitted taking the complainant shopping to buy his wife a Mother's Day present and, at his wife's request, to buy the complainant some underwear. He said the complainant selected the underwear which he paid for. This was on 12 May 2007 which was the day after his birthday. He gave evidence that when the complainant arrived at his house the previous day, he and his wife noticed the smell of body odour and his wife went and ran a bath for the complainant. His wife offered to wash the complainant's clothes but she refused. It was in that context his wife asked him to purchase underwear for the complainant. He also gave evidence that he was never in the spa with the complainant alone and was never alone with the complainant in his house.

9 The appellant's wife, son and daughter also gave evidence. The evidence of the appellant's wife stretched credulity. The trial judge summarised her evidence as being to the effect that the appellant 'was never ever at home alone with [the complainant]. She said she never went out. She would never leave them alone. She was never away visiting her children who lived nearby or visiting her neighbours' (ts 181). When asked why the complainant would never be left alone with the appellant at the houses in which they lived, the appellant's wife said the complainant was a thief who stole things from the house. She was alone in making that allegation, which was never put to the complainant.

10 The appellant's wife also gave evidence that wood was stacked about 5 1/2 ft to 6 ft high behind the shed which prevented any access. She said the wood was for a slow combustion fire but that the use of the wood did not reduce the woodpile because it was continuously replenished by her husband.

11 The evidence of the appellant's daughter was consistent with that of her mother. She said that when the complainant was at her parents' house, either she or her brother would be with the complainant the whole time. The flavour of the evidence is illustrated by the following cross-examination:

And you would agree that when you were living in 2005 at Girrawheen that your mum would from time to time see [the complainant's father] who's [on the same street]?---Yes.

So she would pop out, and she would also go and see her other family as well, just up the street ... ?---Yes.

Without your father?---Yes, but that at time either myself or my brother ... were always home. We were quite often home, being young.

But there must have been occasions where you and [your brother] were not always there?---Very rarely. There was always somebody there.

Very rarely, but there were rare occasions where you weren't there as well?---Myself might've not been there but there was always someone there. Being such a close family, there was always somebody there (ts 161).

12 The appellant's daughter said the woodpile went down pretty quickly but that it was replenished by her father as quickly as it was used.

13 The appellant's son gave evidence about the woodpile behind the shed. He was asked to describe the back of the shed in 2005. He said there was firewood which made it impossible to walk around the shed.

The principle in Robinson v The Queen

14 In the course of giving general directions as to the role of the jury, the trial judge said:

Now, in some of the defence evidence you have people giving evidence about things that, under cross-examination, they admitted they didn't actually see or hear and I'm sure you are clever enough to realise that somebody who wasn't there can't say things like, 'My mother was always home,' that sort of thing. You can't give evidence about what other people were doing when you weren't there. You will look at that evidence and you will appreciate it.

One important thing of course in this trial is that, and you would appreciate, that family members do come forward to give evidence on behalf of members of the family when accused of offences and you would appreciate that they are all doing their best on behalf of their loved one. That's something you can take into account when you are assessing their truthfulness and reliability. So those are matters for your judgment (ts 176).

15 The content and application of the principle in Robinson v The Queen have been considered by this court on a number of occasions including in Etherton v The State of Western Australia [2005] WASCA 83; (2005) 30 WAR 65; de Rosa v The State of Western Australia [2006] WASCA 57; (2006) 32 WAR 136 and Lawson v The State of Western Australia [2008] WASCA 212. It is unnecessary to repeat all that was said in those cases. I propose to focus on what was said in Robinson v The Queen about directions given by the trial judge concerning the testing of the credibility of a witness. The trial judge said to the jury, inter alia:

[A]nother test was what interest does a witness have in the outcome of a case? If you thought a witness had a large interest in the outcome you, as the judges of the facts, might well conclude that you should scrutinize that [witness'] evidence closely. You might think - it is a matter solely for you - that the accused had the greatest interest of all the witnesses you saw and heard and that, therefore, you should scrutinize his evidence closely.

16 The High Court (Mason CJ, Brennan, Deane, Toohey & McHugh JJ) said:

Notwithstanding the correctness of his Honour's directions concerning the onus and standard of proof, however, it is impossible to escape the conclusion that the fairness of the trial was seriously impaired by the effect of his directions concerning the interest of a witness in the outcome of the case. The jury could hardly escape the conclusion that the appellant had 'the greatest interest of all the witnesses' in the outcome of the case. Indeed, his Honour had suggested to the jury that they might think that the appellant had a greater interest than any other witness in the outcome of the case. If the jury accepted that suggestion, as they almost certainly would have, his Honour's directions had the effect that the evidence of the appellant had to be scrutinized more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused. The unfairness of such a direction is manifest, particularly when the outcome of the trial inevitably turned upon the jury's preference for the evidence of the complainant against that of the accused (535).

17 The High Court went on to say (at 535 - 536) that to direct the jury that any evidence of the accused is to be the subject of close scrutiny because of his or her interest in the outcome of the case is to undermine the benefit which the presumption of innocence gives to an accused person.

18 The principle was reiterated by the High Court in Stafford v The Queen (1993) 67 ALJR 510 and Ramey v The Queen (1994) 68 ALJR 917.

19 In Etherton, the relevant direction to the jury was in the following terms:

In weighing the testimony of a witness you can take into account ... his or her interest insofar as the outcome of the trial is concerned ...

20 The court held that the direction infringed the Robinson principle. Steytler P said:

[B]y inviting the jury, when weighing up the evidence of the witnesses, to take into account, as a factor, the interest which any witness might have in the outcome of the trial, the trial Judge necessarily invited the jury to scrutinise the evidence of the accused persons, including the appellant, more carefully on that account alone [36].

21 In de Rosa, the offending direction given by the trial judge also referred to the evidence of witnesses generally. The direction was in the following terms:

You are the sole judges of the credibility or believability of each witness and the weight to be given to that witness's testimony. In weighing the testimony of a witness you should consider that witness's relationship to the complainant or to the accused, that witness's interest, if any, in the outcome of the case ...

22 The court concluded that a reasonable jury would be likely to conclude that the trial judge was referring to all witnesses, including the accused. In Lawson, the trial judge directed the jury that they could take into account the accused's interest in the outcome of the proceedings when assessing his evidence.

23 Unlike the directions in Robinson, Etherton and de Rosa, the trial judge in this case expressly confined her remarks to witnesses other than the appellant and made no direct reference to evaluating the evidence of the witnesses on the basis of their interest in the outcome. The statement that the family members 'were all doing their best on behalf of their loved one' is an equivocal comment on their evidence and the most favourable comment that could be made in the circumstances. It gets its flavour from the preceding paragraph in which the trial judge notes they were prepared to make statements about which they could have no personal knowledge. By contrast, the accused gave evidence of matters which would be within his personal knowledge. Against the background of the trial as a whole, a reasonable jury would not, in my view, conclude from the trial judge's comment that the evidence of the accused should be the subject of close scrutiny because he had an interest in the outcome. I would dismiss this ground.

24 A trial judge has a duty to put the respective cases of the prosecution and the accused to the jury in a fair and balanced way: Cornelius v The Queen (1988) 34 A Crim R 49, 65. However, a trial judge is not bound to discuss all the evidence or to analyse all the conflicts in the evidence: Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, 560.

25 The appellant complains that it was unfair for the trial judge to single out the evidence of the defence witnesses for comment. In particular, it was contended that the trial judge's failure to give the jury a similar direction in respect of the evidence of the complainant's mother resulted in a lack of balance.

26 There is no lack of balance. The trial judge gave a general direction applicable to all family witnesses. She said the jury should consider whether a witness had told a story to support someone (ts 174). In any event, the claim of lack of balance is based on the erroneous assertion that the evidence of the complainant's mother supported the complainant's evidence as to the timing of the incidents the subject of counts 4 and 5. The complainant's mother gave evidence that the underwear was purchased for her daughter before or around her birthday in April 2007. The appellant and his wife gave evidence that the underwear was purchased around Mother's Day in the middle of May 2007. The complainant's evidence as to the timing of counts 4 and 5 which I have detailed earlier is consistent with that of the appellant and his wife.

28 The appellant contends the trial judge reversed the onus of proof in directing about the incidents the subject of counts 4 and 5. The direction said to have that effect is as follows:

[I]f, as [the complainant] said, her grandfather picked out this underwear and bought it for her for her birthday in April, then that casts considerable doubt on the evidence of [the appellant's] wife that she told him to buy the underwear when he was purchasing her Mother's Day perfume.

These are matters in the evidence that I'm sure you will consider carefully but I just wanted to remind you that there was a conflict and there was evidence that all of this happened in April, not in May (ts 184).

29 No complaint is made about the accuracy of the direction. It is the case that there can be a danger when a trial judge invites a jury to decide which version of events they accept because of the possibility of misleading the jury as to who bears the burden of proof: Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193; Stack v The Queen [2002] WASCA 338. That danger ordinarily arises where the invitation is to compare the evidence of the accused and the complainant on the elements of the offence. There is no reasonable basis to suggest the trial judge in this case was inviting the jury to decide between competing versions of events. The trial judge was doing no more than adverting to what she regarded as a potential conflict of evidence. In any event, the trial judge's direction as a whole could have left the jury in no doubt that the prosecution bore the burden of proof. She said:

Now, when [the appellant] does go in the witness box, as he has done, and he raises some issues in defence, it's not for him to prove those. It's for the State to negative them. This isn't saying, 'Do we believe [the complainant]? Do we believe him?' The only issue is do you believe [the complainant] and does her evidence - and I will come to the standard of proof in a minute. So we're not on an even playing field in any way. The question is [the complainant's] evidence ...

You can decide whether you accept [the appellant's] evidence or not. That's a matter entirely for you, but the proof of these charges rests entirely with the State and on the evidence of [the complainant] (ts 172 - 173).

31 There was confusion at the hearing of the appeal as to the precise basis of grounds of appeal 4 and 5. In the circumstances I propose to refer to the substance of the particulars to those grounds. They are to the effect that the trial judge erred:

(a) in failing to direct the jury that, even if it accepted the evidence of the complainant as to uncharged acts, it could not use that evidence as proof of the occurrence of other acts;

(b) in telling the jury only that it could 'not use the evidence as mere propensity and that it was relevant only to show the nature of the relationship with [the appellant]';

(c) in highlighting the evidence of the uncharged acts by reading evidence about them from the transcript which would have had the effect of giving the evidence undue prominence in the minds of the jury;

(d) in telling the jury that it could not use the evidence of uncharged acts as propensity evidence without explaining the meaning of propensity;

(e) in failing to direct the jury that it could not reason that, because the accused may have done something wrong on another occasion then he must have done so on the occasions which are the subject of the charges; and

(f) in directing the jury that the uncharged acts 'could be the subject of charges'.

32 The trial judge's direction was in the following terms:

Ladies and gentlemen, you might remember there was a considerable amount of evidence from [the complainant] of sexually offensive behaviour by her grandfather that is not the subject of any charge on the indictment and I'm going to just read some of this to remind you of the flavour of her evidence (ts 186).

33 The trial judge then read relevant aspects of the complainant's evidence. That included the following:

[W]ay back before she made any allegations, way at the beginning - she said:

'A little while ago my dad's dad tried doing some things to me. It was just like basically he was always trying to touch me and everything and, like, trying to make me, like, do things to him, and then if I didn't, he'd be, like, "Oh, I'd pay you if do this," blah, blah, blah, and - yeah.'

Then ... she said - and this was about the incident in count 4:

'We were in the car and, don't know, he just tried, like, bribing me with like money and everything, saying, like, "Oh, just let me touch you and everything". I was, like, "Nuh, I don't like it and everything" and he was, like, "Oh, it's a natural thing" and everything. I'd say, "Yeah, it might be natural, but it's not for, like, you know, because you're my pop and everything and you're - you're older and stuff like that" and he was, like, just kept bribing me and everything and I just wanted to go.'

Then ... after the incident of the touching, she gave evidence that 'he wanted to see my breasts' and everything. 'It was, like, touching me and everything.' Then she gave some evidence about what happened after count 4 ... Remember, that was where - count 4 was where she said they were sitting in the car by the oval and he grabbed her breast. She said:

'I pushed him away and he kept talking and, like, saying, bribing me and everything, and then like, he tried going down [my] shirt and everything and I just pushed him away.'

...

And then there was some evidence ... of what went on immediately after count 5, according to her, according to [the complainant]. This was immediately after while she's wearing - she says wearing the underwear and he came up and grabbed her breast with his right hand, and she said, 'Because that's what he asked last time and then, like, he went to kiss me and everything and I was, like, "No," and then he was, like, "Oh, you know, can I lick your nipples?" and I was, like, "No," and he said, "Oh, why not?" and I was just, like, "Because I don't want you to." ... ' (ts 186 - 187).

34 It is apparent from this transcript that much of the evidence related to matters that were part of the res gestae in relation to counts 4 and 5. She continued:

So, ladies and gentlemen, all of that is behaviour by the accused man that could be the subject of charges but it is not the subject of charges. It's what we call relationship evidence. You can only rely on this evidence if you find it reliable, if you believe [the complainant] that this happened. This evidence, if you accept it, is relevant only to show the nature of her relationship with her grandfather. It would put her evidence on the other charges in a realistic light. You can't use it as evidence of mere propensity. You can only use it as evidence of relationship. What the State says [is] that the accused man had an inappropriate sexual interest in his granddaughter (ts 187).

35 The trial and the appeal were conducted by the parties without reference to the decision of the High Court in HML v The Queen [2008] HCA 16; (2008) 235 CLR 334. HML states the common law position on propensity evidence in its application to sexual offences. Shortly after the hearing of this appeal, the court handed down its reasons for judgment in PIM v The State of Western Australia [2009] WASCA 131. That case considered the directions to be given in relation to propensity evidence admitted under s 31A of the Evidence Act 1906 (WA). The parties were permitted to file supplementary submissions on that issue.

36 Particulars (a), (b), (d) and (e) above are based on the assumption that the evidence was not admitted or admissible as evidence of propensity. If it was admissible as evidence of propensity, a warning to avoid the propensity line of reasoning is obviously not required: KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 [39]; Noto v The State of Western Australia (2006) A Crim R 457 [27]; Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [64]; PIM [127].

37 There are a number of areas of divergence in the reasons of members of the High Court in HML. However, there is unanimity on at least one matter. All judges agreed that evidence of uncharged acts is ordinarily relevant and admissible at common law as evidence of propensity if it is relevant to and probative of the offender having a sexual interest in the complainant. That is, relationship evidence of that nature is admissible as evidence of propensity. The common law test of admissibility of evidence of propensity is more (and certainly not less) stringent than that in s 31A of the Evidence Act.

38 As noted by the trial judge in her direction, the evidence of uncharged acts in this case was relied on by the State as evidence that the appellant had an inappropriate sexual interest in his granddaughter. It follows that a propensity warning was not required.

39 In any event, as noted earlier, most of the evidence referred to by the trial judge related to matters forming part of the res gestae. The exclusionary rule relating to propensity evidence has never applied to conduct forming part of the res gestae: Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590, 627 - 634. It would be nonsensical to give a propensity warning about conduct that forms part of the course of conduct which embraces the crime charged.

40 As to particular (c), the underlying assumption must be that the evidence was only admissible for a non-propensity purpose and thus

should not have received the prominence it was given. The underlying assumption is wrong. It was circumstantial evidence of the offences charged. The trial judge did not err in reading the evidence to the jury. Having regard to the nature of the evidence, it would have been difficult to accurately summarise what the complainant communicated.

41 The appellant does not rely on particular (f) as an independent error which gives rise to a miscarriage of justice. It is relied on as compounding the prejudice said to arise from the other particulars relied on. There is no other relevant prejudice. I would dismiss grounds of appeal 4 and 5.