DAYANANDA -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 11 (29 January 2021)

1. The appellant's case at trial was, in summary, as follows.
2. The appellant did not contend at the trial that the complainant had not been digitally penetrated without her consent. Rather, the appellant's case was that it was not the appellant who had committed the offence. The appellant asserted that the complainant had correctly identified Dr NP as the offender. It was not suggested that the person who had communicated with the complainant by means of the 897 telephone was not the offender. Rather, the appellant asserted that Dr NP was the person who had used the 897 telephone.
3. Dr NP was a State witness at the trial. Defence counsel put to Dr NP in cross‑examination that on 5 December 2017 Dr NP had digitally penetrated the complainant's vagina. Dr NP denied defence counsel's assertion.
4. One of the callers to the complainant's 360 telephone said that his name was 'Jim Ryan'. This caller was male and had an Indian accent. He did not call from the 897 telephone. The police identified two caller numbers to a commercial credit corporation. The police confirmed that a man by the name 'Jim Ryan', who had an Indian background and an Indian accent, was employed by the commercial credit corporation as a debt collector.
5. The complainant gave evidence that the caller on the 897 telephone, and the person who identified himself as 'Jim Ryan' when telephoning from one of the commercial credit corporation numbers, had the same voice and accent.
6. The commercial credit corporation had access to the telephone numbers of the complainant's sister and daughter. The complainant's sister gave evidence that she had called the 897 telephone and that the male person who answered identified himself as 'Ryan'.
7. The prosecutor speculated in his closing address that 'Ryan' may have been an abbreviation of the appellant's first name, 'Priyantha'. Defence counsel suggested in his closing submissions that Dr NP was called 'Ryan'.
8. However, there was no evidence from any of the witnesses that either the appellant or Dr NP was known as 'Ryan'. Further, there was no evidence from any of the witnesses that any doctor who had treated the complainant at the hospital was called 'Ryan'.
9. The appellant gave affirmed evidence at the trial. Defence counsel also called the appellant's wife, Dushari De Silva, as a witness. Defence counsel also adduced good character evidence from Brian Brumpton, Jacinta Cover (a general surgeon at Bunbury Regional Hospital) and Ian Johnston (a consultant surgeon at the hospital).
10. The appellant gave evidence to the following effect:

(a) The appellant was born in Sri Lanka in 1970 and obtained medical qualifications in that country.

(b) The appellant married in 1999 and has a daughter.

(c) The appellant had worked as a neurosurgical registrar in the United Kingdom, Sri Lanka and Australia. Since 2016 he had worked at the Bunbury Regional Hospital.

(d) The appellant admitted working at the Bunbury Regional Hospital and attending to the complainant on 23 October and 5 December 2017. However, the appellant insisted that he had acted within proper professional boundaries on both occasions.

(e) The appellant denied committing the alleged offence. He said that he examined the complainant in the manner he did because her wound was under her left rib and her associated pain was in her lower abdomen. His examination of the complainant included inspection, palpation, percussion and observation. He touched the complainant on the tummy area below her umbilicus and above her pubic line.

(f) The appellant denied touching the complainant's vagina or putting a finger inside her vagina.

(g) In February 2017, the appellant had purchased the 897 telephone from Woolworths for his wife, on a temporary basis, because her mobile telephone required work to be carried out so that it could be used in Australia. The appellant's wife had used the 897 telephone for about two weeks. She had then stopped using the 897 telephone and the appellant never saw the telephone again.

(h) The appellant denied knowingly taking the 897 telephone to Griffith.

(i) The appellant said that he did not make or receive any telephone calls or text messages to or from the complainant's 360 telephone.

(j) The appellant denied that he had called any prostitutes or that he had saved the telephone numbers of prostitutes on the 897 telephone.

(k) The appellant pointed to an alleged anomaly, namely that the missing 897 telephone had been used to contact the appellant's work mobile telephone with a number ending in 272 on about 20 occasions.

(a) The 897 telephone was somehow placed in his backpack without his knowledge.

(b) The appellant then took his backpack with the 897 telephone in it to work at the hospital in Bunbury.

(c) An unknown person at the appellant's work had accessed the 897 telephone in the appellant's backpack and had used the telephone to make the relevant communications to the prostitutes and the complainant.

(d) The unknown person had then returned the 897 telephone to the appellant's backpack.

(e) The appellant had unknowingly taken the 897 telephone (which was in his backpack) to Griffith.

(f) The appellant was in Griffith between 14 January 2018 and 1 February 2018.

(g) An unknown person in Griffith had accessed the 897 telephone in the appellant's backpack and had used the telephone to make the relevant communications with the prostitutes and the complainant and to forward messages to the appellant's work mobile telephone.

(h) The unknown person who had used the 897 telephone between 9 and 31 December 2017 would have been in the Bunbury area at that time.

1. The prosecutor asked the appellant in cross‑examination whether he had instructed defence counsel that it was Dr NP who had made the relevant calls and sent the relevant text messages to the complainant. The appellant replied that Dr NP was 'one of the suspects' (ts 411).
2. The appellant's wife, Ms De Silva, gave evidence that she had used the 897 telephone for a short period. She was not aware of the telephone's whereabouts after she had used it for that short period.
3. Mr Brumpton, Dr Cover and Dr Johnston gave evidence to the effect that the appellant was a person of good character. He was a strong family man and was well accepted in the medical and wider community.

Grounds 1 and 2: counsel for the appellant's submissions

1. Grounds 1 and 2 assert, in essence, that the verdict of guilty was unreasonable and cannot be supported having regard to the evidence.
2. Counsel for the appellant submitted that the verdict of guilty was unreasonable and cannot be supported, in that:

(a) The complainant had identified Dr NP as the offender.

(b) The complainant did not, at any time, inform the Bunbury Regional Hospital, the police or the jury that she was, or may have been, mistaken in her selection of Dr NP as the offender.

(c) The complainant had a good opportunity to view the doctor whom she described as the 'sleazy doctor'.

(d) The complainant did not make a prompt complaint to the police and the delay adversely affected her credibility generally.

(e) When the complainant was readmitted to the emergency department of the hospital on 5 December 2017 she was suffering from abdominal pain associated with her previous surgeries. Counsel asserted that, at the time, the complainant was suffering from a vaginal discharge with an 'offensive odour' and that it was 'unlikely that a doctor would sexualise a patient exhibiting [those] symptoms'.

(f) The complainant gave evidence that in October 2017, when she was a patient at the hospital, the 'sleazy doctor' had worn a white coat, but on 5 December 2017, when she was again a patient at the hospital, the 'sleazy doctor' had worn a shirt or casual clothes. However, the appellant gave evidence that he always wore blue surgical scrubs and he had never worn a white coat on duty. His evidence was supported by a registered nurse at the hospital, Kristi Gaffney, who said that the appellant always wore blue scrubs. The freedom of information and customer liaison officer at the hospital, Ms Crispin, said that, apart from a couple of consultants, doctors at the hospital did not wear white coats.

(g) The complainant gave evidence that the offending occurred while she lay on a bed in a cubicle in the emergency department. A paper curtain was closed. The emergency department is a busy area of the hospital with numerous doctors and nurses visiting and treating patients. Counsel submitted that it was highly improbable that a doctor would sexually penetrate a female patient without her consent when another doctor or a nurse could have entered the cubicle and seen or interrupted the perpetrator when the perpetrator's conduct was only concealed by a paper curtain.

(h) There was undisputed evidence that text messages and conversations passed between the 897 telephone and the complainant's 360 telephone. However, the appellant denied in evidence that he had made or received any of those communications. The complainant gave evidence that a caller from a private telephone number told her that his name was 'Jim Ryan' and that this caller had the same voice and Indian accent as the caller from the 897 telephone. Police investigations revealed that a person by the name of 'Jim Ryan' was of Indian background and worked for a commercial credit corporation.

(i) There was no evidence that the appellant took the 897 telephone with him when he went to Griffith in January 2018. The appellant gave evidence (consistently with information that he had given to the police) that he did not know what had become of the 897 telephone. The police were unable to locate the telephone. The appellant also gave evidence that he had not recharged the 897 telephone for some time prior to the date of the alleged offence.

(j) The appellant denied having answered a telephone call from Senior Constable Porter on 31 January 2018.

(k) Even if the jury accepted that the appellant had used the 897 telephone to communicate with the complainant, none of the text messages or conversations indicated that the appellant had sexually penetrated the complainant's vagina with his finger. At most, the touching or kissing of the complainant's stomach may have been evidence of inappropriate conduct, but was not evidence of the alleged offence.

(l) The absence of identification evidence having probative value suggests a real and substantial possibility that the appellant has been wrongly convicted.

(m) The whole of the complainant's identification evidence indicates that the jury must, as distinct from might, have entertained a reasonable doubt as to the appellant's guilt.

1. It is a question of fact whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported. See M v The Queen;[1] Zaburoni v The Queen;[2] GAX v The Queen.[3]
2. An intermediate court of appeal (the appellate court) must decide that question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand. See M (492 ‑ 493); SKA v The Queen.[4]
3. The appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the whole of the evidence (in particular, the competing evidence). See SKA [22], [24].
4. The appellate court's task is not to consider, as a question of law, merely whether there was sufficient evidence to sustain a conviction. See Morris v The Queen.[5]
5. The appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, 'must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations': M (493); R v Nguyen;[6] SKA [13].
6. In Pell v The Queen,[7] the High Court made these observations about the assessment of the credibility of a witness by the jury, in the context of a ground of appeal which alleges that the jury's verdict was unreasonable or insupportable having regard to the evidence:

[T]he assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness‑box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function. (footnote omitted)

1. The High Court in Pell [39] also made these observations, in the context of the evidence of a complainant in a child sex case, about the function of the appellate court in determining a ground of appeal which alleges that the jury's verdict was unreasonable or insupportable having regard to the evidence:

The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt. (footnote omitted)

1. The ultimate question for the appellate court must always be whether the appellate court thinks that upon the whole of the evidence it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty: M (494 ‑ 495). See also R v Hillier;[8] Fitzgerald v The Queen;[9] R v Baden‑Clay.[10]
2. The setting aside of a tribunal of fact's verdict of guilty because, having regard to the evidence, it is unreasonable or cannot be supported is a serious step. Trial by the appellate court is not to be substituted for trial by the tribunal of fact. See Baden‑Clay [65] ‑ [66].
3. The appellate court's reasons must disclose its assessment of the capacity of the evidence to support the verdict. See SKA [22] ‑ [24]; BCM v The Queen;[11] GAX [25].
4. The nature and extent of the appellate court's task, in a particular case, will be informed by:

(e) the way in which the case was ultimately left to the tribunal of fact;

(f) whether the tribunal of fact was a judge (who must state the principles of law that he or she has applied and the findings of fact on which he or she has relied) or a jury (which does not give reasons); and

For example, in Zaburoni the critical issue concerned what was able to be inferred, beyond reasonable doubt, about the appellant's state of mind. The question for the appellate court was whether, having made its own independent assessment of the evidence, the court considered it to have been open to the jury to be satisfied beyond reasonable doubt that the appellant had the requisite subjective intention [56].

1. In the present case, the appellant's contentions on appeal, in support of grounds 1 and 2, allege that the verdict of guilty was unreasonable and cannot be supported on two bases. First, the alleged offending did not occur. Secondly, if the alleged offending did occur, the appellant was not the offender.
2. The appellant's assertion that the offending did not occur relies, primarily, upon:

(b) The unlikelihood that a doctor would 'sexualise' a patient who had a vaginal discharge with an 'offensive odour'.

(c) The unlikelihood that a doctor would commit the alleged offence in a cubicle in the emergency department.

1. The appellant's assertion that, if the alleged offending did occur, the appellant was not the offender, relies, principally, upon the following:

(a) The complainant's purported 'identification' of Dr NP as the offender.

(b) The alleged inconsistencies between the complainant's description of the offender, on the one hand, and the appellant, on the other.

(c) The alleged failings in the evidence concerning the 897 telephone; in particular, the text messages were not conclusive proof of digital penetration of the complainant's vagina; there was no evidence that the appellant had taken the 897 telephone with him when he went to Griffith; and there was no evidence that the appellant had recharged the 897 telephone.

1. As to the appellant's assertion that the alleged offending did not occur, that assertion is inconsistent with the appellant's case at trial. As we have mentioned, the appellant did not contend at the trial that the complainant had not been digitally penetrated without her consent. Rather, the appellant's case was that it was not the appellant who had committed the offence. The appellant asserted that the complainant had correctly identified Dr NP as the offender. Defence counsel's election to run the appellant's case at trial on that basis is now challenged in ground 5.
2. However, as a result of the manner in which the appellant chose to run his case at trial, the evidence at the trial did not indicate that:

(a) the complainant had a vaginal discharge with an 'offensive odour';

(b) the offender would have known that the complainant was suffering from those symptoms; or

(c) the offender was likely to have been deterred by those symptoms from committing the offence.

1. Further, as a result of the manner in which the appellant chose to run his case at trial, the evidence at the trial did not indicate that the offender was unlikely to have committed the alleged offence in a cubicle in the emergency department because of the risk that another doctor or a nurse could have entered the cubicle and seen or interrupted the perpetrator.
2. We are satisfied that it was reasonably open to the jury, having regard to the evidence as a whole, to conclude that a person in the complainant's position would not necessarily make a complaint immediately or earlier than she did. The jury was entitled to take the view that the complainant's delay in making complaint did not, in the circumstances, diminish the credibility of her evidence that she had been digitally penetrated without her consent as she claimed in her evidence.
3. As to the appellant's assertion that, if the alleged offending did occur, the appellant was not the offender, the circumstances of the complainant's purported 'identification' of Dr NP as the offender, and the alleged inconsistencies between the complainant's description of the offender, on the one hand, and the appellant, on the other, were examined in detail during the evidence at the trial and in the closing addresses of the prosecutor and defence counsel.
4. We are satisfied that it was reasonably open to the jury to reject the accuracy and reliability of the complainant's purported 'identification' of Dr NP as the offender. In particular, it was reasonably open to the jury, on the evidence as a whole, to decide that the complainant's purported 'identification' of Dr NP was a mistake having regard to:

(a) the complainant's evidence about her state of mind at the time she made the purported 'identification';

(b) the compelling objective evidence which established that Dr NP could not have been the person who had used the 897 telephone to communicate with the complainant's 360 telephone; and

(c) Dr NP's evidence that he did not commit the offence.

1. Further, we are satisfied that it was reasonably open to the jury to take the view that the alleged inconsistencies between the complainant's description of the offender, on the one hand, and the appellant, on the other, concerned principally what the offender was wearing 'in October' 2017 and on 5 December 2017. It was reasonably open to the jury to conclude that the alleged inconsistencies were not of material significance having regard to the other evidence adduced at the trial which implicated the appellant as the offender. We are satisfied that the alleged inconsistencies do not, either alone or in combination with any other evidence, give rise to a reasonable doubt as to whether the appellant was the offender.
2. The evidence at the trial established that the appellant purchased the 897 telephone; that the person who made the relevant calls from the 897 telephone to the complainant's 360 telephone was a male person with an Indian accent; and that the 897 telephone was in Griffith at the same time as the appellant was in Griffith. The appellant's suggestion that another person could have been using the 897 telephone to make the relevant calls and send the relevant text messages to the complainant's 360 telephone is fanciful. We are satisfied that it was reasonably open to the jury, having regard to the evidence as a whole, to conclude that the appellant had taken the 897 telephone with him when he went to Griffith and that the appellant had made the relevant calls and sent the relevant text messages to the complainant's 360 telephone while he was in Bunbury and in Griffith.
3. In our opinion, after evaluating and weighing the competing evidence at the trial, in the context of the trial record as a whole, the jury was entitled:

(a) to accept the evidence of the complainant that on 5 December 2017 the 'sleazy doctor' had digitally penetrated her vagina, without her consent, in the cubicle of the emergency department at the hospital;

(b) to reject, as mistaken, the complainant's purported 'identification' of Dr NP as the offender;

(c) to accept the evidence of Dr NP that he did not commit the offence;

(d) to reject the evidence of the appellant that he did not commit the offence;

(e) to find that the alleged inconsistencies between the complainant's description of the offender, on the one hand, and the appellant, on the other, were not of material significance; and

(f) to be satisfied that the appellant had purchased the 897 telephone; that the appellant had taken the 897 telephone with him when he went to Griffith; and that the appellant had made the relevant calls and had sent the relevant text messages from the 897 telephone to the complainant's 360 telephone while he was in Bunbury and in Griffith.

1. A jury, acting reasonably, was entitled to be satisfied beyond reasonable doubt, upon the combined force of evidence which they were entitled to accept, that the appellant was the offender who had digitally penetrated the complainant's vagina, without her consent, as alleged. A jury, acting reasonably, was entitled to conclude beyond reasonable doubt, on the basis of the complainant's evidence, that on 5 December 2017 the 'sleazy doctor' had digitally penetrated the complainant's vagina, without her consent. A jury, acting reasonably, was entitled to conclude that the only reasonable inference, upon the combined force of the evidence which they accepted, was that the appellant was the offender.
2. The trial record does not require the conclusion that the jury must necessarily have entertained a doubt about the appellant's guilt of the charged offence. The verdict of guilty was not unreasonable. It was supported by evidence that the jury was entitled to accept and by inferences that the jury was entitled to draw. After paying full regard to the consideration that the jury was the tribunal of fact entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that the jury had the benefit of having seen and heard the witnesses, we do not have a reasonable doubt as to the appellant's guilt on the charged offence or as to the correctness of his conviction on that charge. It would not be dangerous, in the circumstances, to permit the verdict of guilty to stand.
3. Grounds 1 and 2 are without merit.

Ground 3: counsel for the appellant's submissions

1. Ground 3 asserts, in essence, that comments made by the prosecutor in cross‑examination and in his closing address occasioned a miscarriage of justice.
2. As we have mentioned, Mr Brumpton was a defence witness who gave good character evidence in relation to the appellant. During cross‑examination, the prosecutor asked Mr Brumpton whether Mr Brumpton's opinion of the appellant to the effect that the appellant was 'a good family man' would change if Mr Brumpton 'knew that [the appellant] had a fetish for prostitutes' (ts 349). Mr Brumpton replied, 'Not really, no'.
3. The prosecutor asked the appellant these questions in cross‑examination:

(a) 'So you're saying that somehow ... that whoever used your phone in Griffith must have also been - had a fetish for prostitutes' (ts 402).

(b) 'Dr Dayananda, you'd agree that you haven't thought twice about throwing a work colleague under the bus when you knew it was a physical impossibility for them to be the maker and sender of those sleazy calls and text messages?' (ts 414).

(c) 'Dr Dayananda, I was suggesting to you that you had a fetish for prostitutes' (ts 425).

1. The prosecutor asked the appellant's wife, Ms De Silva, in cross‑examination, whether the appellant had 'a fetish for ... female prostitutes' that she was aware of (ts 464).
2. The prosecutor made these submissions in his closing address:

(a) '[It was a] physical impossibility for Dr NP to be responsible for any messages, any communications on [the 897 telephone]. I suggest [the appellant] knew it, [defence counsel] knew it, yet they wanted to drag his name through the mud and accused him ... of being the sender of the sleazy messages and committing this horrendous crime' (ts 16).

(b) 'Another point, I suggest that the user of [the 897 telephone] had a fetish for prostitutes. You can see that clearly on [the telephone records]. Two days before Christmas 2017 numerous communications with various prostitutes in the Bunbury area' (ts 17).

(c) 'Even when [the appellant] is in Griffith, several communications [from the 897 telephone] with prostitutes. I suggest it indicates that the user is the same person, a person with a similar fetish. Whoever used [the 897 telephone] in Bunbury is the same person that used it in Griffith' (ts 17).

(d) 'Now, [defence counsel] suggested that [Dr NP] is called Ryan. Well, that's not true. We know he's not called Ryan. Even Dr Johnston, who was called by [defence counsel] as a witness, said he only knows him as [A]' (ts 18).

(e) 'And [defence counsel] had ample opportunity to put to other witnesses, to Diva Danti, to Kristi Gaffney, the two nurses who worked with [the appellant] - [defence counsel] had ample opportunity to suggest to them that [Dr NP] is known as Ryan but no, he didn't go within a bull's roar of that suggestion because he knew what the answer would be' (ts 18).

(f) 'And the third red herring is at the centre of these sleazy text messages and maker of these sleazy phone calls that it was [Dr NP]' (ts 19).

(g) 'Well, as I've already pointed out it's a physical impossibility for [Dr NP] to even be associated with [the 897 telephone]. It really is, with all due respect, the most dumbest and stupidest suggestion that I've ever heard, yet despite that they're prepared to throw mud at [Dr NP]' (ts 19).

(h) 'When you sexually assault somebody, you don't do it in front of your work colleagues, do you? You do it when no‑one is around so of course none of his work colleagues would have witnessed him sexually assaulting women in the past' (ts 24).

(i) 'He's just - I suggest to you that [the appellant] is a liar and he's a man without a moral compass' (ts 25).

(j) 'So the first name for the accused man is Priyantha. Now, it [has] occurred to me that ... if you drop the P from the beginning and drop the T-h-a from the end, you'll have the Riyan ... [An] unconventional way of spelling [Ryan] ... I don't ... wish to make a huge issue out of it but you might think that it's not out of the realms of probability that the accused man would refer to himself as Riyan from time to time' (ts 31).

1. Counsel for the appellant submitted that the prosecutor's questions and submissions 'overstepped the bounds of reasonable conduct'. The prosecutor was not 'sufficiently detached from the proceedings'. His conduct was 'highly likely to lead to bias and prejudice against the appellant'. In the circumstances, the prosecutor's conduct occasioned a miscarriage of justice.

1. The prosecutor in a criminal trial represents the State. The prosecutor must act 'with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one': Whitehorn v The Queen.[12]
2. As Mazza JA (McLure P agreeing generally & Newnes JA agreeing) noted in Goedecke v The State of Western Australia:[13]

Consistently with a prosecutor's duty, in a closing address a prosecutor should not (inter alia) tell a jury something that is not evidence (R v Callaghan [1993] QCA 419; [1994] 2 Qd R 300, 306; offer a personal opinion (KNP v The Queen [2006] NSWCCA 213; (2006) 67 NSWLR 227 [32]), introduce false lines of reasoning or invite a jury to speculate about the evidence. As to these last two points see Wood v The Queen [2012] NSWCCA 21.

See also JJS v The State of Western Australia;[14] MAM v The State of Western Australia.[15]

1. In Wood v The Queen,[16] McClellan CJ at CL (Latham & Rothman JJ agreeing) said that asking questions, even in a rhetorical manner, and inviting the jury when considering their verdict to consider whether the accused had provided satisfactory answers to the questions, was an impermissible course for a prosecutor to follow because it reversed the onus of proof.
2. If a prosecutor breaches his or her duty at trial it will be necessary for an appellate court to evaluate the significance of the breach in the context of the trial as a whole, including whether any objection to the prosecutor's course of conduct was taken by defence counsel. See Whitehorn (664); Goedecke [35], [37]; JJS [134].
3. A judge is bound to give a direction to the jury if, in the circumstances of the particular case, the direction is necessary to avoid a perceptible risk of a miscarriage of justice. See Carr v The Queen;[17] Longman v The Queen;[18] Tully v The Queen.[19] This is an incident of the judge's duty to ensure a fair trial for the accused. See RPS v The Queen.[20]
4. In our opinion, some of the impugned comments made by the prosecutor in cross-examination and in his closing address were not in accordance with the prosecutor's status as an officer of the court and his obligation to perform his functions with detachment. In particular:

(a) The prosecutor's statement that the appellant's case to the effect that Dr NP was associated with the 897 telephone was 'the most dumbest and stupidest suggestion that I've ever heard' was, in substance, an attack on defence counsel (and, through him, the appellant) personally. It was gratuitously insulting and unnecessary. The statement should not have been made.

(b) The prosecutor's statement that defence counsel knew that it was a physical impossibility for Dr NP to be responsible for any communications from the 897 telephone constituted an accusation, in effect, that defence counsel had put to the jury a submission that defence counsel personally knew was false. That statement, and the prosecutor's statement that defence counsel personally knew that Dr NP was not responsible for any of the communications from the 897 telephone but defence counsel wanted to drag Dr NP's name through the mud, involved an assertion, in effect, that defence counsel had acted unprofessionally. The statements by the prosecutor were gratuitously insulting and unnecessary. They should not have been made.

(c) The evidence as to the calls from the 897 telephone to prostitutes in Bunbury and Griffith was admissible at the trial for three purposes. First, as evidence which, together with other evidence, implicated the appellant as the maker of the relevant calls and the sender of the relevant text messages. Those facts were, in turn, part of the State's circumstantial case that the appellant was the offender. Secondly, to rebut the appellant's case that Dr NP had an association with the 897 telephone and was the offender. When some of the relevant calls were made and some of the relevant text messages were sent from the 897 telephone, Dr NP was in Pakistan and therefore could not have made the calls or sent the messages. Thirdly, the evidence of the calls from the 897 telephone to prostitutes in Bunbury and Griffith was relied upon by the State to rebut the good character evidence adduced on behalf of the appellant. However, the prosecutor's use of the word 'fetish', in the context of his comments about the calls from the 897 telephone to prostitutes in Bunbury and Griffith, was, in substance, an appeal to prejudice. The term 'fetish' is, in the context in which it was used, generally understood to refer to a sexually deviant propensity. The use of that term was gratuitous and unnecessary. The term should not have been used.

(d) The prosecutor's suggestion that the name 'Ryan' was a derivation of the appellant's first given name, 'Priyantha', and that there was, in effect, a reasonable prospect that '[the appellant] would refer to himself as Riyan from time to time' was speculative and based on a thought that had occurred to the prosecutor during an overnight adjournment after he had completed most of his closing address. There was no reasonable basis in the evidence for the prosecutor's submission, based on the appellant's first given name, that there was, in effect, a reasonable prospect that the appellant referred to himself from time to time as 'Ryan' or 'Riyan'. The submission should not have been made.

1. As to the other impugned comments made by the prosecutor:

(a) The use of the term 'sleazy' was reasonable and justified in the circumstances because the complainant referred to the doctor who had sexually assaulted her, in a context where she was unable to identify the appellant as the offender, as the 'sleazy doctor'. The term 'sleazy' related to the offender. It was not a gratuitous and unnecessary reference to the appellant. Indeed, defence counsel in his closing address referred to the 'sleazy doctor' on numerous occasions (ts 36 ‑ 39, 50).

(b) The references to the willingness of the appellant (as distinct from defence counsel personally) to throw Dr NP 'under the bus'; to 'drag [Dr NP's] name through the mud'; and to accuse him of being responsible for the relevant communications on the 897 telephone and of committing the alleged offence, were, in the circumstances, reasonable and proportionate. There was powerful evidence that the relevant communications on the 897 telephone were made by the appellant and not by Dr NP. Indeed, as we have mentioned, there was compelling objective evidence which established that Dr NP could not have been the person who used the 897 telephone to communicate with the complainant's 360 telephone.

(c) The references to defence counsel's failure to cross‑examine Ms Danti and Ms Gaffney in relation to whether Dr NP was known as 'Ryan' and the prosecutor's other submissions in relation to Dr NP not being called 'Ryan' were, in the circumstances, reasonable and proportionate.

(d) The submission to the effect that a person would not sexually assault another person in the presence of work colleagues or when work colleagues were in close proximity was, in the circumstances, reasonable and proportionate.

(e) The submission that the appellant was a liar was, in the circumstances, reasonable and proportionate.

(f) The assertion that the appellant was 'a man without a moral compass' was, in substance, a rhetorical flourish that was not inconsistent with the prosecutor's duties.

1. We are satisfied, for the following reasons, that the impugned comments of the prosecutor to which we have referred at [80] above did not, of themselves or in conjunction with the other impugned comments made by the prosecutor, occasion a miscarriage of justice at the trial.
2. First, the trial judge directed the jury that what the prosecutor and defence counsel had said was not evidence. The jury were bound to base their verdict upon the oral evidence of the witnesses together with the exhibits. What the prosecutor and defence counsel had said about the evidence did not bind the jury (ts 477). Her Honour emphasised that the appellant was not on trial for seeing prostitutes. It was not suggested that seeing prostitutes was an illegal activity. Even if the jury were satisfied that the appellant 'did have a fetish for prostitutes, to use the prosecutor's expression, this cannot be evidence of the offence with which he has been charged' (ts 500). Although the jury should consider that evidence in relation to the weight to be given to the good character evidence, the jury should not permit themselves to be prejudiced in relation to the evidence concerning the seeing of prostitutes. The jury must assess the whole of the evidence dispassionately and must not decide the case on prejudice or sympathy (ts 501). Her Honour reiterated, a little later, that the jury should not decide the case on prejudice and sympathy. Whatever feelings the jury might have about people who use prostitutes, the jury should put to one side any feelings of prejudice or sympathy (ts 503). The jury must ensure that their verdict was delivered 'solely on the basis of the evidence produced during this trial and not on other matters' (ts 504).
3. Secondly, defence counsel did not, in his closing address, dispute or deal with the impugned comments to which we have referred at [80] above, apart from responding to the prosecutor's suggestion that the name 'Ryan' was a derivation of the appellant's first given name. Defence counsel forcefully rebutted that suggestion (ts 31 ‑ 32). Defence counsel did not raise with the trial judge any issue or concern in relation to any of the impugned comments made by the prosecutor. He did not request her Honour to redirect or give an additional direction to the jury. The only reasonable inference is that the appellant's very experienced criminal defence lawyer, who was absorbed in the atmosphere of the trial, did not perceive that the appellant had suffered any material prejudice, as a result of the impugned comments, which required intervention or correction by her Honour.
4. Thirdly, on an objective appraisal of the impugned comments of the prosecutor to which we have referred at [80] above, in conjunction with the other impugned comments made by the prosecutor, there was no reasonable prospect, having regard to the trial record (including the trial judge's summing up) as a whole, that the prosecutor's comments may have distracted the jury from objectively and impartially evaluating the evidence or may otherwise have resulted in an unfair trial.
5. Ground 3 fails.

Ground 4: counsel for the appellant's submissions

1. Ground 4 asserts, in essence, that the trial judge misdirected the jury in relation to the bundle of photographs, which included the appellant's photograph, that had been shown to the complainant by hospital staff.
2. Counsel for the appellant submitted that:

(a) The photographic selection process was conducted by a member of the hospital staff whose duties included evaluating complaints. The process was carried out with the support of two social workers. The photographs were presented in a deliberate and serious manner and without any time limits.

(b) It was accepted that the process was different from the procedure that police use with a digiboard.

(c) The trial judge should have directed the jury that 'it was up to the jury to decide what they [made] of the selection process' and that the jury should not 'simply dismiss [the process] as not being done properly'.

(d) The complainant selected Dr NP as the offender. She did not suggest in her evidence that her selection of Dr NP may have been wrong (ts 89, 94).

(e) Her Honour should also have given the jury a warning 'in regards to the identification evidence to ensure that the jurors [had] sufficient knowledge and understanding of the evidence to discharge the duty to consider the evidence'. Counsel cited Domican v The Queen.[21]

(f) Her Honour should also have given the jury a direction to the effect that 'even if they did not positively believe the evidence for the defence, they [could not] find an issue against [the appellant] contrary to the identification evidence if that evidence [gave] rise to a reasonable doubt as to that issue'. Counsel cited Liberato v The Queen.[22]

1. The appellant's contentions in support of ground 4 allege, in substance, that:

(a) the trial judge was bound to direct the jury that it was a matter for them 'what they make of the selection process and not to simply dismiss it as not being done properly';

(b) her Honour was required to give the jury a direction in accordance with Domican; and

(c) her Honour was required to give the jury a direction in accordance with Liberato.

1. As to the appellant's first contention, we are satisfied, upon a consideration of the trial judge's summing up as a whole, that her Honour's directions made plain that it was a matter for the jury to decide what they made of the procedure at the hospital in relation to the bundle of photographs.
2. In particular, her Honour directed the jury that:

(a) The jury were the judges of the facts (ts 477).

(b) The submissions made by the prosecutor and defence counsel were not evidence and were not binding on the jury (ts 477).

(c) It was the jury's decision as to how they should assess the evidence and as to the weight (if any) they should give to the oral evidence of a witness or to an exhibit (ts 480).

(d) The trial did not involve a contest between the appellant and Dr NP. It was not a question of who the jury thought was more likely, as between the appellant and Dr NP, to have committed the offence (ts 493).

1. The trial judge gave the jury an inference direction in orthodox terms. Her Honour highlighted some of the circumstances which the State relied upon to submit that the only reasonable inference open, on the evidence as a whole, was that the appellant had committed the offence. Her Honour also highlighted some of the evidence the appellant relied upon as precluding an inference of guilt, including the complainant's 'identification' of Dr NP (ts 494 ‑ 495, 498).
2. Her Honour outlined the State's case and the appellant's case. This included a summary of the submissions made by the prosecutor and defence counsel as to the procedure at the hospital in relation to the bundle of photographs (ts 501 ‑ 502).
3. We have no doubt that the jury would have understood from the trial judge's directions that it was a matter for them to evaluate and make findings concerning the procedure at the hospital in relation to the bundle of photographs.
4. The direction now contended for on behalf of the appellant was not sought at the trial by the appellant's very experienced criminal defence lawyer. The direction was not necessary to avoid any perceptible risk of a miscarriage of justice.
5. As to the appellant's second contention, the procedure at the hospital in relation to the bundle of photographs was not 'identification evidence' in the State's case. That 'identification evidence' did not form any part of the State's proof of guilt of the charged offence. The State relied upon circumstantial evidence to prove that the appellant was the offender.
6. Rather, the appellant relied upon the procedure at the hospital in relation to the bundle of photographs, including the complainant's selection of Dr NP's photograph as the photograph of the offender, to rebut the State's case and to assert that Dr NP was the offender.
7. At the trial, the appellant's very experienced criminal defence lawyer informed the trial judge, in the absence of the jury, that it was unnecessary 'for any identification or recognition direction [to be given to the jury] because there [was] no recognition or identification of [the appellant] as the offender' (ts 110). Defence counsel added that the State's case against the appellant was 'an entirely circumstantial case ... resting essentially on the texts and phone calls from [the 897 telephone that was] registered to him' (ts 111).
8. As a direction in accordance with Domican is only required when the case against an accused comprises, in whole or in part, disputed identification evidence in relation to an accused, such a direction, if given to the jury in the present case, would have been unnecessary and confusing. Further, any direction to treat the procedure at the hospital in relation to the bundle of photographs with caution would have operated to the appellant's disadvantage.
9. As to the appellant's third contention, it is well established that a Liberato direction is not required as a matter of law. Such a direction should be given, however, if, in the circumstances of the particular case, there is a real (as distinct from a fanciful) risk that the jury may otherwise have the impression that disbelief of an accused's evidence, or preference for a complainant's evidence, means that the State has proved its case beyond reasonable doubt. See Ruthsalz v The State of Western Australia[23] and the cases there cited.
10. In the present case, the trial judge directed the jury that 'even if you do not believe [the appellant's] evidence, you cannot find an issue against him contrary to his evidence if his evidence, or any other evidence, for that matter, has given rise to a reasonable doubt on that issue' (ts 492 ‑ 493) (emphasis added).
11. We are satisfied that, in the circumstances, no further or other direction was necessary on that issue. We have no doubt that the jury would have understood from the trial judge's directions as a whole (including the direction we have just mentioned) that they were required to consider and decide whether the complainant's 'identification' of Dr NP during the procedure at the hospital in relation to the bundle of photographs gave rise to a reasonable doubt as to whether the appellant was the offender. No further or other direction was sought at the trial by the appellant's very experienced criminal defence lawyer.
12. Ground 4 is without merit.

Ground 5: counsel for the appellant's submissions

1. Ground 5 asserts, in essence, that defence counsel's conduct of the appellant's case occasioned a miscarriage of justice.
2. Counsel for the appellant submitted that defence counsel should have asked questions of the appellant and other State witnesses in relation to whether the alleged digital penetration did in fact occur. In particular, defence counsel should have pursued a line of defence to the effect that the complainant could have been mistaken in her evidence that, on 5 December 2017, a doctor had digitally penetrated her vagina.
3. Counsel relied upon the following matters in support of his submission that defence counsel should have pursued that line of defence:

(a) The hospital records revealed that the complainant had been given an 'opioid' based pain relief medication.

(b) The hospital records also revealed that the complainant had a history of intravenous drug use and post‑traumatic stress disorder.

(c) On the date of the alleged offence, the complainant had 'a wound that needed cleaning and brown vaginal discharge accompanied by an offensive odour'.

(d) At the material time, the complainant was suffering pain in her lower abdomen and, consequently, the doctor would have been required to carry out a routine examination of her abdomen in the vicinity of her pubic line.

(e) The complainant did not make a complaint to the effect that she had been digitally penetrated, without her consent, until about eight weeks after the alleged offending occurred.

1. Counsel noted that the State called two nurses and several doctors who had treated or dealt with the complainant on 5 December 2017. It was submitted that defence counsel should have cross‑examined those witnesses as to the correct procedure for examination of a lower abdominal surgical wound and asked them questions about the complainant's state of mind, having regard to her history of intravenous drug use, the pain relief medication she was taking and recent personal and family trauma she had suffered.
2. According to counsel for the appellant:

(a) Defence counsel's decision not to cross‑examine the complainant and the other State witnesses on those matters '[went] beyond reasonable explanation for the purpose of obtaining a forensic advantage or avoiding forensic disadvantage'.

(b) There is a significant possibility that defence counsel's failure to pursue the line of defence was a material irregularity that may have affected the outcome of the trial.

1. In McMahon v The State of Western Australia,[24] McLure P summarised the law relating to a ground of appeal which alleges a miscarriage of justice by reason of defence counsel's conduct of the defence case, as follows:

The appellant has to demonstrate that the conduct of his counsel caused a miscarriage of justice, a task which constitutes a heavy burden: TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [74] (McHugh J). That is a consequence of the adversarial nature of a criminal trial and the role and function of counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involved errors of judgment or even negligence: TKWJ [74], [79] (McHugh J); R v Birks (1990) 19 NSWLR 677, 685 (Gleeson CJ).

In this context, miscarriage of justice has two aspects, process and outcome. If the conduct of counsel has deprived the accused of a fair trial according to law, that will give rise to a miscarriage of justice without regard to whether counsel's conduct might have affected the outcome: TKWJ [76] (McHugh J); Nudd v The Queen [2006] HCA 9 [3] ‑ [7] (Gleeson CJ). This corresponds with that limb of the proviso where there is a serious breach of the pre‑suppositions of a trial: Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [46]; Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 373. A complete failure to cross‑examine a complainant or a complete failure to address the jury may result in an unfair trial: TKWJ [76]. So too may wrong advice that an accused is not entitled to give evidence: Nudd [17].

In the majority of cases, irregular conduct of counsel will not deprive the appellant of a fair trial. In such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues. First, did counsel's conduct result in a material irregularity in the trial. Secondly, is there a significant possibility that the irregularity affected the outcome: TKWJ [79] (McHugh J); Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662 [18] (Hayne J).

The test of whether there is a material irregularity is objective: TKWJ [17], [27] ‑ [28], [107]. Ordinarily, it is difficult to establish a material irregularity when the alleged error of counsel concerned forensic choices upon which competent counsel could have differing views: TKWJ [81]. However, if the error of counsel plainly affected the result of the trial, there will be a miscarriage even though the error involved a forensic choice or judgment. Where the error involves the failure to adduce evidence, there are parallels with the test for the admission of new or fresh evidence: TKWJ [32] (Gaudron J).

1. In Colley v The State of Western Australia,[25] McLure P referred to the extract which we have reproduced from her Honour's reasons in McMahon and then said:

The appellant's claims in this case fall within the 'process' category. That is, the appellant claims he was deprived of a fair trial according to law.

As is clear from the use of the word 'ordinarily' in the first paragraph of the extract, it is a general rule that an accused is bound by the way a trial is conducted by counsel. In particular, not all decisions made by counsel contrary to instructions will bind the accused. The point is made clearly by Gleeson CJ in Nudd v The Queen:

A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions [9]. (emphasis added)

For example if, as the appellant says in this case, he instructed trial counsel not to defend the charge on the basis of self‑defence because he (the appellant) did not at any stage hit the deceased, to do so would be outside the scope of any implied power in the retainer to make decisions on behalf of the appellant.

Moreover, it is outside the scope of any implied retainer for trial counsel to conduct a positive defence that is inconsistent with the accused's instructions as to what had actually occurred. A 'positive defence' includes cross‑examination of witnesses for the prosecution suggesting, expressly or impliedly, that counsel is putting his or her client's instructions as to relevant factual matters.

It is unnecessary to determine whether trial counsel may, with the client's consent, put in cross‑examination a positive defence that is inconsistent with his or her client's instructions as to what actually occurred. Even if permissible, the client would have to be informed by trial counsel that he or she could not lead evidence from the accused that was inconsistent with his or her instructions as to what actually occurred. That is, prior to the cross‑examination the client would have to elect not to give evidence at trial. In that way there would be no breach of the first aspect of the rule in Browne v Dunn (Browne v Dunn). As to which, see Merrey v The State of Western Australia. (citations omitted)

1. More recently, in Morgan v The State of Western Australia [No 2],[26] this court stated the relevant general principles which govern the determination of whether the conduct of defence counsel has caused a miscarriage of justice, as follows:

The relevant general principles as to when a miscarriage of justice may arise through incompetent representation were recently summarised by this court in Huggins v The State of Western Australia (Huggins v The State of Western Australia [2018] WASCA 61 [375] ‑ [401]). We adopt that comprehensive analysis without repeating it, noting the following passage of the reasons in that case (Huggins [376]):

An appellant who seeks to demonstrate that the conduct of his or her counsel caused a miscarriage of justice undertakes a heavy burden which is not easily discharged. This is a consequence of the adversarial nature of a criminal trial and the role played by counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel even if that was not in accordance with the wishes of the client. It is not a ground for setting aside a conviction that decisions made by counsel were made without or contrary to instructions or involved errors of judgment or even negligence. It is not the province of appellate courts to review the wisdom or prudence of the conduct of a trial by trial counsel. For example, an apparently rational decision by trial counsel as to what evidence to call or not to call does not give rise to a miscarriage of justice simply because an appellate court thinks it worked to the probable disadvantage of the appellant. (citations omitted)

Further, as was recently reiterated in Jeffery v The State of Western Australia (Jeffery v The State of Western Australia [2018] WASCA 219 [104] (citing Buss P in Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96 [115]), this court does not examine whether a decision taken by the appellant's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage. Rather, the court is concerned only with whether counsel's decision is capable of explanation on that basis. That is, could there be any reasonable explanation for the decision? The test is objective in character.

In Craig v The Queen (Craig v The Queen [2018] HCA 13; (2018) 92 ALJR 390), the High Court considered how inadequate legal advice on an accused's choice to give evidence may give rise to a miscarriage of justice. The court recognised that a trial may be unfair because the exercise of an accused's right to give evidence in his or her defence was effectively foreclosed by the receipt of incorrect advice, Craig [32].

However, the High Court rejected the proposition that, where an accused is aware of the right to give evidence, any material error in legal advice bearing on the exercise of the right denies an essential condition of a fair trial, Craig [26] ‑ [27]. In the context of a decision not to give evidence, the court considered that, Craig [27]:

At the least, demonstration that incorrect advice has occasioned a miscarriage of justice will require consideration of the relation between the advice and the decision not to give evidence.

The High Court held that an appellate court's assessment of whether the decision not to give evidence deprived an accused of a fair trial looks to the nature and effect of the incorrect advice on the accused's decision. It is not an assessment of whether an objectively rational justification could be assigned to the decision, Craig [33].

1. In the present case, we are satisfied, for the following reasons, that defence counsel made a rational forensic decision at the trial not to pursue a line of defence to the effect that the complainant was mistaken about whether a doctor had digitally penetrated her vagina.
2. First, the complainant's version of events that, on 5 December 2017, she had been digitally penetrated, without her consent, was supported by the evidence as to the relevant communications from the 897 telephone to her 360 telephone. The communications in question began soon after 5 December 2017. Those communications were made by a person who identified himself as the complainant's doctor from Bunbury (ts 52 ‑ 70; exhibit 1). The content and tenor of the communications, as well as their frequency, are inconsistent with digital penetration not having occurred or with the complainant having been mistaken about whether the digital penetration occurred.
3. Secondly, the suggestion on appeal that the complainant may have been adversely affected by prescription or illegal drugs, to such an extent as to compromise her understanding of what happened on 5 December 2017 in relation to her body, did not have any material support in the evidence.
4. Thirdly, it is inherently unlikely that a woman of mature years (the complainant was aged 43 at the time of the offending) would confuse an abdominal examination of the area above her pubic line with a digital penetration of her vagina and the touching of her clitoris.
5. Fourthly, there was no evidence at the trial to the effect that, on 5 December 2017, the complainant had a vaginal discharge with an 'offensive' odour. A medical report from the hospital contained a note to the effect that the complainant did have a vaginal discharge 'on and off, brown ... offensive odor [sic]'. The report was marked for identification (MFI 18) but was not tendered. By an application in the appeal filed 9 November 2020, the appellant applied for leave to adduce the medical report into evidence in the appeal in support of ground 5. We would grant the application. However, the report does not materially advance the appellant's case. The report states that the complainant had reported vaginal discharge 'on and off'. It is not apparent that she had the vaginal discharge on 5 December 2017. Also, it is not apparent that the offender was aware of any vaginal discharge or any odour before he committed the offence or that he would have been deterred by those matters from committing the offence.
6. Fifthly, the issue of delay in making complaint was unlikely to have advanced the appellant's case to any material extent. The appellant's very experienced criminal defence lawyer would, no doubt, have anticipated that the trial judge would direct the jury in relation to the delay in accordance with s 36BD of the Evidence Act 1906 (WA)
7. Sixthly, and most significantly, the pursuit of the suggested line of defence had the significant potential to diminish and distract the jury from the primary defence run at the trial, namely that Dr NP and not the appellant had committed the offence.
8. In our opinion, defence counsel's decision not to pursue the suggested line of defence did not constitute a material irregularity at the trial. In any event, we are satisfied that, for the reasons we have given in relation to grounds 1 and 2 and for the reasons we have given at [113] ‑ [118] above, there is no significant possibility that defence counsel's decision may have affected the outcome of the trial.
9. Ground 5 fails.

1. We would grant the appellant's application in an appeal filed 9 November 2020.
2. None of the grounds of appeal had a reasonable prospect of success. Leave to appeal should be refused. The appeal must be dismissed.

1. I have the considerable advantage of having read Buss P and Mazza JA's reasons for decision (joint reasons). I adopt and will not repeat their Honours' recitation of the background to the appeal and the parties' cases at trial. I agree with Buss P and Mazza JA, for the reasons that their Honours give, that grounds 1, 2, 4 and 5 ought to be dismissed. Moreover, while I wish to state my own reasons in relation to ground 3, I also agree that ground 3 has not been established. Accordingly, it follows that I too would dismiss the appeal.
2. Ground 3 alleges:

There was an error in fact in that the Prosecution overstepped the bounds of reasonable conduct and was not sufficiently detached from the proceedings which was highly likely to lead to bias and prejudice against the Appellant and lead to an unsafe verdict and a miscarriage of justice (Criminal Appeals Act 2004 (WA) s 30(3)(c)).

1. It is difficult to understand the reference to 'error in fact'. I apprehend that the gravamen of the ground is that the conduct of the prosecutor, in various ways as particularised in support of the ground, gave rise to a miscarriage of justice. I infer that from the extensive particulars to the ground which identify some seven complaints as to what was stated by the prosecutor either in cross-examination or in the course of the prosecutor's closing address to the jury. The relevant matters are recounted at [70] - [73] in the joint reasons and at [135] below.
2. The principles governing the duties of a prosecutor and the extent to which any departure will constitute a miscarriage of justice are said to be relatively well established. Relevantly:
   1. The fundamental duty of a prosecutor is to act with 'fairness and detachment' with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one.[27]
   2. Consistent with the prosecutor's duty, the authorities identify that:

(a) A prosecutor should not in a closing address:[28]

(i) make a submission based on material that is not in evidence;

(ii) make or use intemperate or inflammatory comments tending to arouse prejudice or emotion in the jury;

(iii) make comments which belittle or ridicule any part of the accused's case;

(v) invite a jury to speculate about the evidence; or

(b) A prosecutor should act fairly and impartially to exhibit all the facts to the jury, doing so temperately and with restraint, and never adopting tactics that involve an appeal to prejudice or amount to an intemperate or emotional attack on the accused.[29] A prosecutor should avoid hyperbole and must not seek to sway the jury by trickery, prejudice or emotion.[30]

1. Mockery, scorn and derision will seldom, if ever, be appropriately engaged in by a prosecutor (although it is unlikely that such a breach would, of itself, give rise to a miscarriage of justice). By contrast, a reasonable and appropriate use of rhetoric and even sarcasm may, on occasion, fall within the latitude to be afforded to a prosecutor. However, an excessive use of rhetoric and sarcasm may take a prosecutor beyond the reasonable bounds of legitimate advocacy and amount to an improper intemperate or emotional attack.[31]
2. A miscarriage of justice may occur when a prosecutor fails to carry out his or her duty. However, not every such failure constitutes a miscarriage of justice. There is a miscarriage of justice where the accused has been denied the fundamental right to a fair trial. Whether this is the case involves an evaluative judgment by the appellate court as to the importance of the matter having regard to the context of the overall trial.[32]
3. Relevant to the assessment of the significance of the breach is whether or not objection was taken by the defence. If no objection is taken an appellate court may infer that, in the context of the trial, the breach of duty was not so prejudicial as to deny the accused a fair trial.[33]
4. The response of defence counsel is relevant but not determinative. Martin CJ (Beech JA & Hall J agreeing) stated in MAM that:

Ultimately, when breach of a prosecutor's duties has been established, the appellate court must determine whether the breach or breaches has given rise to a real risk that the jury may have been improperly influenced by the prosecutor's conduct. If that possibility cannot be excluded, the interests of justice will require the verdict to be set aside, irrespective of the position which may have been adopted by defence counsel at trial.[34]

1. In answering ground 3, the State submitted that a prosecutor is entitled to firmly and vigorously advance the prosecution case. According to the State's submission, this permitted a prosecutor to attack the defence case in terms which a jury would readily understand.[35] It was accepted, however, that 'slang expressions and pejorative terms are generally best avoided'.[36] The apparent suggestion that, on occasion, robust or blunt advocacy may be warranted in the particular circumstances of a case is only correct up to a point. It is consistent with a prosecutor's duty, where there is a proper basis in the evidence, to advance a proposition that evidence relied on by an accused should be rejected because of its implausibility. Accordingly, it may be appropriate to describe evidence as 'nonsense' or 'ridiculous'. But it remains necessary not to belittle or ridicule.[37]
2. The impartial role of the prosecutor does not preclude advocacy which fully tests the defence case and which fairly presents the case for a conviction clearly and forcefully in the best light which it bears. That, however, is not a licence to invoke pejorative language which is likely to excite undue prejudice or emotion.[38]
3. In support of ground 3, counsel for the appellant sought to emphasise the prosecutor's references to the appellant as being the 'sleazy' doctor.[39] In context, there was nothing inflammatory which might arouse undue prejudice or emotion in the prosecutor's use of this terminology. It did no more than pick up the complainant's evidence insofar as she referred to the offender as the 'sleazy' doctor.[40] Indeed, the complainant's evidence was that she saved the 897 telephone number as a contact on to her mobile telephone as 'Sleazy Slyest Doctor'.[41] Having regard to the evidence, there was no breach of the prosecutor's duty in using the word 'sleazy' and contending that the jury should find that the appellant was the sleazy doctor who had sent the sleazy messages.
4. The joint reasons identify a number of instances where their Honours conclude that the prosecutor breached his duties (see [80] above). These include:
   1. The prosecutor's statement in his closing address to the jury that the appellant's contention that Dr NP was associated with the 897 telephone was 'the most dumbest and stupidest suggestion that I've ever heard'.[42]
   2. The continued use of the word 'fetish' in connection with questioning concerning prostitutes and the prosecutor's closing address.[43]
5. I agree with Buss P and Mazza JA, for the reasons that their Honours give, that the prosecutor failed in his duty in these two respects. The first statement unnecessarily belittled and ridiculed the accused and defence counsel in a way that was intemperate and inflammatory. It also purported to convey the prosecutor's personal observations based on his life experience. The second series of statements was inflammatory and unduly appealed to prejudice and emotion. While there was an obvious forensic point to be made as to the communications with prostitutes, the point could be made - and made just as powerfully - without the pejorative introduction of the word 'fetish' and the adverse connotations thereby sought to be cast upon the appellant.
6. In addition, in my view, having regard to the seven matters as particularised in support of ground 3, the prosecutor failed in two other ways as complained of under the rubric of ground 3.
7. First, in addressing the jury the prosecutor speculated that the name 'Ryan' was a derivation of the appellant's first name (Priyantha) and the appellant used the name 'Ryan' in communications with the complainant.[44]
8. The joint reasons refer to the confusion that arose in the trial based on the evidence that the complainant had received telephone calls from a 'Jim Ryan' (see [30] - [32] above). By the time of the appeal both parties were apparently agreed that this evidence was of limited significance.[45] Nevertheless, in his closing address the prosecutor engaged in speculation involving this evidence. The way in which that occurred is informative and demonstrates that the submission was little more than an afterthought. The prosecutor concluded his address to the jury in the afternoon of 10 June 2019. The trial was then adjourned overnight with the intention that counsel for the defence would address the jury the following morning. However, on resumption the prosecutor instead recommenced his address.
9. The prosecutor stated:

Ladies and gentlemen, I'll be very quick. I know I spoke at length yesterday so I hope not to be any longer than 30 seconds or 60 seconds. There's just - there's one last issue I would like to address you on and that relates to the accused man's name, the spelling of his name.

Now, yesterday evening I was back at my office and I had a look at his name and as we know he's got three names and they're rather lengthy and maybe if exhibit 24 could please be put on the document camera. We know his name Priyantha Padmike Dayananda and if we could zoom into the customer name on exhibit 24, just a little bit there - thank you.

So the first name for the accused man is Priyantha. Now, it occurred to me that if you drop - if you look at that name Priyantha, if you drop the P from the beginning and drop the T-h-a from the end, you'll have the Riyan, okay. [An] unconventional way of spelling Riyan, but R-i-y-a-n.

Now, you might think as [defence counsel] has suggested previously, that people from Asian countries we know that sometimes they adopt English sounding names when they come to English speaking countries and so - I mean, I don't make a - don't wish to make a huge issue out of it but you might think that it's not out of the realms of probability that the accused man would refer to himself as Riyan from time-to-time. Thank you, that's all I have to say. That can come down.[46]

1. On appeal the State accepted, correctly, that the submission was speculative and was not supported by the evidence.[47] It introduced a false line of reasoning. The prosecutor invited the jury to consider this speculation despite having earlier made the point, so far as defence counsel had suggested in cross-examination that Dr NP was known as 'Ryan', that there had been no cross-examination of other available hospital witnesses to the effect that this was the case.[48] The irony that the prosecutor indulged in like speculation in addressing the jury (not merely in cross-examination) without having called any evidence in support of the proposition or having put the suggestion to the appellant in cross-examination ought not go unnoticed.
2. Second, the prosecutor cross‑examined the appellant on the basis that he had not thought twice about 'throwing mud at a fellow colleague' and 'throwing a work colleague under the bus';[49] and, in his closing address, the prosecutor referred to the appellant and defence counsel being prepared 'to throw mud' at Dr NP.[50]
3. The initial series of colloquialisms and use of metaphor were not unreasonable insofar as the prosecutor was advancing, in cross-examination, the proposition that the appellant made the calls and text messages on the 897 telephone and the appellant knew that it was a physical impossibility for Dr NP to have done so. The prosecutor was entitled to a degree of vigour and robustness in his exchanges with the appellant in setting out to challenge the appellant's case. It was, however, intemperate and potentially inflammatory - as well as being wholly gratuitous - to suggest to the jury in closing that defence counsel was prepared to 'throw mud' at Dr NP. It unduly appealed to prejudice by denigrating defence counsel and, in so calling into question his professionalism, improperly turned attention towards the propriety of defence counsel's conduct of the case rather than the evidence itself. There was a reasonable basis for defence counsel to assert, on the appellant's behalf, that Dr NP was the offender. The complainant had identified Dr NP. The implicit denigration of defence counsel ought not to have occurred in the prosecutor's closing address.
4. The prosecutor's closing address unduly tended to arouse prejudice in a way that had no bearing on the issues in the trial so far as he submitted to the jury that defence counsel had 'throw[n] mud' at Dr NP. It must, however, be stated that the submission was a one-off and was never developed. It constituted no more than a momentary and no doubt inadvertent lapse in a lengthy closing address. It is unlikely, in my view, to have influenced the jury.
5. It is necessary to consider whether, individually or collectively, these four failures on the part of the prosecutor gave rise to a miscarriage of justice. In that regard, the following is relevant:
   1. The trial judge directed the jury that nothing counsel said was evidence[51] and what had been said by counsel about the evidence did not bind the jury in any way.[52] The trial judge also directed the jury not to guess or speculate about matters that were not in evidence.[53] At the conclusion of the trial judge's charge to the jury, her Honour reiterated that the verdict should be delivered solely on the basis of the evidence and not on other matters.[54]
   2. The trial judge directed that the jury must assess the evidence dispassionately and must not decide the case on prejudice or sympathy.[55]
   3. The trial judge made plain to the jury that the appellant was not on trial for seeing prostitutes.[56] Her Honour stated that, even if the jury were satisfied that the appellant had a fetish for prostitutes, that could not be evidence of the offence for which the appellant was charged.[57] The trial judge carefully directed that the jury should not allow itself to be prejudiced by that evidence and reason that just because the appellant had seen prostitutes he was guilty of the offence with which he had been charged.[58]
   4. In summarising the State's case, the trial judge did not repeat the prosecutor's speculation that the appellant may be referred to as 'Riyan'. However, the trial judge did see fit to refer to defence counsel's riposte to that suggestion. Her Honour reminded the jury that defence counsel had submitted that 'there was not a skerrick of evidence' that the appellant was known as Ryan.[59]
   5. Defence counsel did not raise any of the matters with the trial judge.
   6. However, as to the prosecutor's speculative afterthought that the appellant may refer to himself as 'Riyan', defence counsel dealt with the matter at the outset of his address to the jury. As well as pointing out the lack of evidentiary support for the submission, defence counsel asked, rhetorically, whether that was the best the State could do. Defence counsel suggested that the prosecutor's cutting and pasting to come up with 'Riyan' showed the desperation on the part of the State to try and get across the line in the case.[60] Accordingly, it is plain that defence counsel turned his mind to the speculative nature of the submission. Defence counsel appreciated the speculative nature of the submission and made a decision to deal with it by turning it to the appellant's potential forensic advantage.
6. I am satisfied that, in all the circumstances, the prosecutor's failures did not individually or collectively give rise to a miscarriage of justice.
7. The four matters identified as constituting a breach of duty did not, in my view, add to the State's case in any material way. The prosecutor's speculative afterthought as to whether the appellant was referred to as 'Riyan' was not of importance in the overall context of the trial. The trial judge gave clear directions that the jury should base their verdict on the evidence, not speculate, and put prejudice to one side. The appellant was represented at trial by an experienced defence counsel. Defence counsel did not seek that the trial judge take any steps in relation to any of the matters. Defence counsel himself addressed the prosecutor's speculation as to the derivation of the name 'Riyan'. The available inference, which I would draw having regard to the response of defence counsel and all the circumstances, is that in the context of the trial the matters were neither individually nor collectively prejudicial to the appellant's right to a fair trial. This is not a case in which there is a real risk that the jury may have been improperly influenced by the prosecutor's conduct.
8. Ground 3 should be dismissed. I otherwise agree with the orders proposed by Buss P and Mazza JA at [121] - [122] above.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 (Mason CJ, Deane, Dawson & Toohey JJ).

[2] Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482 [56] (Gageler J).

[3] GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698 [25] (Bell, Gageler, Nettle & Gordon JJ).

[4] SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).

[5] Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, 473 (Deane, Toohey & Gaudron JJ). See also M (492 ‑ 493); SKA [20].

[6] R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ).

[7] Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394 [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ).

[8] R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [20] (Gummow, Hayne & Crennan JJ).

[9] Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779 [5] (Hayne, Crennan, Kiefel, Bell & Gageler JJ).

[10] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [66] (French CJ, Kiefel, Bell, Keane & Gordon JJ).

[11] BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101 [31] (Hayne, Crennan, Kiefel, Bell & Keane JJ).

[12] Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657, 663 ‑ 664 (Deane J).

[13] Goedecke v The State of Western Australia [2013] WASCA 25 [36].

[14] JJS v The State of Western Australia [2014] WASCA 136 [134] (Martin CJ; Pullin JA agreeing & Buss JA relevantly agreeing).

[15] MAM v The State of Western Australia [2018] WASCA 35 [101] - [108] (Martin CJ; Beech JA agreeing & Hall J agreeing generally).

[16]Wood v The Queen [2012] NSWCCA 21; (2012) 84 NSWLR 581 [605].

[17] Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, 324 ‑ 325 (Brennan J).

[18] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, 86 (Brennan, Dawson & Toohey JJ).

[19] Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234 [123] (Callinan J), [158] (Crennan J).

[20] RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41] (Gaudron A-CJ, Gummow, Kirby & Hayne JJ).

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

[22] Liberato v The Queen [1985] HCA 65; (1985) 195 CLR 507.

[23] Ruthsalz v The State of Western Australia [2018] WASCA 178 [190] ‑ [191] (Buss P, Mazza & Beech JJA).

[24] McMahon v The State of Western Australia [2010] WASCA 143 [24] ‑ [27].

[25] Colley v The State of Western Australia [2015] WASCA 79 [29] ‑ [33].

[26] Morgan v The State of Western Australia [No 2] [2019] WASCA 185 [205] ‑ [208].

[27] Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 (Whitehorn), 663 - 664. Deane J's statement to this effect has been adopted on numerous times in this court. See eg: Goedecke v The State of Western Australia [2013] WASCA 25 (Goedecke) [33]; JJS v The State of Western Australia [2014] WASCA 136 (JJS) [133]; MAM v The State of Western Australia [2018] WASCA 35 (MAM) [101]; Southern v The State of Western Australia [2018] WASCA 234 (Southern) [19].

[28] Goedecke [37]; JJS [134] - [135]; MAM [101]; Southern [20].

[29] MAM [102] - [103] (referring to McCullough v The Queen [1982] TASRp 7; (1982) 6 A Crim R 274, 285 - 286).

[30] MAM [106] (referring to Lyons & Lyons v The Queen (1992) 64 A Crim R 101, 104).

[32] Whitehorn (664); Goedecke [35]; JJS [134]; MAM [101], [133].

[33] Goedecke [37]; JJS [134]; MAM [101], [136]; Southern [22].

[35] Respondent's submissions pars 26, 46 WAB 59, 65 - 66.

[36] Respondent's submissions par 26 WAB 59 (referring to JJS [157]).

[38] MAM [107] (referring to Deriz v The Queen [1999] WASCA 267; (1999) 109 A Crim R 329 [65] - [66]).

[39] Appeal ts 20. See also particular 3(viii) WAB 10. On appeal exception was also taken to the use of the phrase 'sleazy' messages: particular 3(i) WAB 9.

[40] ts 38 - 39, 41, 46, 48 - 49, 52 - 53, 72, 80, 82, 88, 89, 90.

[42] See particular 3(i) WAB 9. This was part of the prosecutor's closing address: ts 19 (prosecutor's closing address).

[43] See Appellant's submissions pars 86(ii), (iii), (x), (xi), (xiii), (xiv) WAB 26 ‑ 28. This occurred in cross-examination (ts 349, 402, 425, 464) and in the course of the prosecutor's closing address (ts 17, 23).

[45] Appeal ts 22 (counsel for the appellant characterised the evidence as a 'red herring'); Respondent's submissions pars 32 - 33 WAB 61- 62 (the State suggested that the evidence had 'limited significance' to the jury's consideration of the issues at hand).

[47] Appeal ts 30; Respondent's submissions par 31 WAB 61.

[49] Appellant's submissions par 86(xii) WAB 28; ts 414, 437.

[50] Particular 3(i) WAB 9; ts 19 (prosecutor's closing). See also particular 3(iv) WAB 10 and ts 22 (prosecutor's closing).