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[2016] WASCA 40
Court of Appeal (WA)
2016-03-09
Buss JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : JAW -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 40
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Criminal law - Sexual offences - Application for leave to appeal against conviction - Whether the learned trial judge erred by refusing to order a separate trial - Whether verdicts of guilty were inconsistent - Whether the learned trial judge erred by refusing the appellant's application to recall a complainant for further crossexamination - Whether, in the event the appellate court was not satisfied grounds 1 to 3 led to a miscarriage of justice, the combination of errors alleged in those grounds had led to such a miscarriage
Criminal law - Sexual offences - Application for leave to appeal against sentence - Totality
Criminal Procedure Act 2004 (WA), s 85, s 133, Sch 1 div 2
Evidence Act 1906 (WA), s 31A
Cairns v The State of Western Australia [2015] WASCA 198
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
Fenton v The State of Western Australia [2015] WASCA 255
Fullgrabe v The State of Western Australia [No 2] [2014] WASCA 73
Gangemi v The State of Western Australia [2014] WASCA 39
Gurgone v The State of Western Australia [2016] WASCA 9
LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178
Mansell v The State of Western Australia [2009] WASCA 140
NCH v The State of Western Australia [2013] WASCA 29
Roffey v The State of Western Australia [2007] WASCA 246
Smith v The Queen [2008] WASCA 128; (2008) 37 WAR 297
The State of Western Australia v FJG [2012] WASCA 206
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
Woods v The Queen (1994) 14 WAR 341
Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302
2 MAZZA JA: Before the court are the appellant's applications for leave to appeal against conviction (CACR 88 of 2015) and sentence (CACR 89 of 2015).
3 The appellant requires an extension of time in each appeal. Due to an administrative error by his solicitors, the appeals were filed four days out of time. Given that circumstance, and the short period of time during which the appellant was in default, the applications should be granted.
Background Charges against the appellant
4 The appellant was charged on indictment in the District Court with 18 counts. Counts 1 to 17 were allegations of either indecently dealing with a child under the age of 13 contrary to s 320(4) of the Criminal Code (WA), or of sexually penetrating a child under the age of 13 years contrary to s 320(2) of the Criminal Code. The alleged victims of these offences were a girl, A (counts 1, 3 to 17), and one of her brothers, D (count 2). A and D's mother is F. F and the appellant were neighbours during the period of the offending alleged in the indictment. This period spanned approximately 1998 to 2002 and, for much of that time, F and the appellant were in a relationship.
5 On 10 September 2013, A complained to the police about the appellant's alleged conduct. On 6 February 2014, officers executed a search warrant at the appellant's house during which they found a number of documents, including photographs of A as well as two images of alleged child pornography. The images depicted naked girls, neither of whom were A. Count 18 on the indictment, a count of possession of child pornography contrary to s 220 of the Criminal Code, concerned the two images.
6 The appellant pleaded not guilty to all of the charges on the indictment. Shortly before the trial began, the appellant applied to the learned trial judge for a separate trial with respect to count 18. On the first morning of the trial, 23 February 2015, his Honour dismissed the application for severance and the trial proceeded before a jury on all 18 counts. A testified for the State. Her testimony concluded late on the
afternoon of 24 February 2015, at which point she was excused from further attendance at court (ts 263). The following day, defence counsel applied to recall A for further cross-examination. That application was refused.
7 Ultimately, on 4 March 2015, the jury found the appellant guilty of eight counts of indecently dealing with a child under 13 years (counts 2, 3, 4, 6, 10, 12, 16 and 17), five counts of sexually penetrating a child under the age of 13 (counts 5, 9, 11, 13 and 14) and one count of possession of child pornography (count 18). The appellant was acquitted of two counts of indecent dealing with a child under the age of 13 (counts 1 and 15) and two counts of sexually penetrating a child under the age of 13 (counts 7 and 8).
8 On 24 April 2015, Stone DCJ fined the appellant $400 on count 18 and, with respect to the other offences for which he had been convicted, his Honour imposed a total effective sentence of 7 years' immediate imprisonment with parole eligibility, backdated to commence on 4 March 2015.
9 The appeal against conviction relies upon four proposed grounds. Ground 1 alleges that the learned trial judge erred in refusing a separate trial on count 18. Ground 2 alleges that the verdicts were inconsistent. Ground 3 alleges that the learned trial judge erred by refusing the application to recall A for further cross-examination. Ground 4 alleges that, if this court is not satisfied that any one of the first three proposed grounds of appeal has led to a miscarriage of justice, the combination of errors alleged in those grounds has led to such a miscarriage.
10 The appeal against sentence only concerns the terms of imprisonment (counts 1 to 17). The proposed ground alleges, in effect, that the individual sentences were manifestly excessive, and that the total effective sentence infringed the first limb of the totality principle.
11 For the reasons which follow, none of the proposed grounds in each appeal has a reasonable prospect of succeeding. Accordingly, the appeals must be taken to be dismissed. My reasons for arriving at these conclusions are as follows.
12 As amended at trial, the indictment alleged that:
(1) On a date unknown between 30 November 1998 and 31 October 1999 at [a suburb] [the appellant] indecently dealt with [A], a child under the age of 13 years, by showing her a pornographic movie.
(2) On the same date and at the same place as in count (1) [the appellant] indecently dealt with [D], a child under the age of 13 years, by showing him a pornographic movie.
(3) On a date unknown between 30 December 1998 and 31 March 1999 at [a suburb] [the appellant] indecently dealt with [A], a child under the age of 13 years, by touching her vagina.
(4) On the same date and at the same place as in count (3) [the appellant] indecently dealt with [A], a child under the age of 13 years, by placing her hand on his penis.
(5) On a date unknown between 30 November 1998 and 31 October 1999 at [a suburb] [the appellant] sexually penetrated [A], a child under the age of 13 years, by engaging in cunnilingus.
(6) On a date unknown between 30 November 1998 and 31 November 1999 at [a suburb] [the appellant] indecently dealt with [A], a child under the age of 13 years, by having her masturbate his penis.
(7) On a date unknown between 31 October 1999 and 1 January 2002 at [a country town] [the appellant] sexually penetrated [A], a child under the age of 13 years, by penetrating her vagina with his fingers.
(8) On a date unknown between 30 November 1999 and 1 January 2000 at [another country town] [the appellant] sexually penetrated [A], a child under the age of 13 years, by engaging in cunnilingus.
(9) On a date unknown between 31 May 2000 and 1 December 2000 at [a suburb] [the appellant] sexually penetrated [A], a child under the age of 13 years, by penetrating her vagina with his fingers.
(10) On the same date and in the same place as in count (9) [the appellant] indecently dealt with [A], a child under the age of 13 years, by placing her hand on his penis.
(11) On a date unknown between 31 December 1999 and 1 January 2001 at [a suburb] [the appellant] sexually penetrated [A], a child under the age of 13 years, by introducing his penis into her mouth.
(12) On a date unknown between 31 December 1999 and 1 January 2001 at [a suburb] [the appellant] indecently dealt with [A], a child under the age of 13 years, by placing her hand on his penis.
(13) On the same date and in the same place as in count (12) [the appellant] sexually penetrated [A], a child under the age of 13 years, by engaging in cunnilingus.
(14) On the same date and in the same place as in count (12) [the appellant] sexually penetrated [A], a child under the age of 13 years, by introducing his penis into her mouth.
(15) On a date unknown between 31 December 1999 and 1 June 2001 at [a suburb] [the appellant] indecently dealt with [A], a child under the age of 13 years, by rubbing her vagina.
(16) On a date unknown between 30 November 2001 and 1 April 2002 at [a suburb] [the appellant] indecently dealt with [A], a child under the age of 13 years, by having her masturbate his penis.
(17) On the same date and in the same place as in count (16) [the appellant] indecently dealt with [A], a child under the age of 13 years, by rubbing her vagina.
(18) On 6 February 2014 at [another suburb] [the appellant] had in his possession child pornography.
13 The decisive issue with respect to counts 1 to 17 was whether the State had proved, beyond reasonable doubt, that the incident the subject of each count had occurred (ts 493, 495). The decisive issue with respect to count 18 was whether the two photographs constituted child pornography (ts 496 - 497).
The evidence led at trial Some uncontroversial matters
14 A and D's parents are J and F. D was born in 1987 and A was born in 1989 (ts 247). At the time they gave evidence, D was 27 and A was 25 (ts 133, 237). In about October 1998, J and F separated. F and her children remained in the matrimonial home at an address in a Perth suburb. The appellant lived in a house on the same street (ts 247 - 248). After the separation, F and the appellant began a romantic relationship, although each remained living in their respective houses. A, D and F's third child, AL, frequently visited the appellant at his home without F being present (ts 249). The appellant's home was an attractive place for the children. The appellant had Foxtel which meant they could watch children's programs on the Nickelodeon channel. He also had a lolly jar. Neither of these were available at F's house (ts 70). It also appears that the appellant was a more relaxed disciplinarian than F (ts 70 - 72).
15 During their relationship, the appellant, F and F's children went together on a number of caravanning holidays to various locations in country Western Australia (ts 251 - 252).
16 The appellant and F encountered some difficulties in their relationship. In about late 2000, they separated, but in early 2001, they got back together. F then became pregnant, but miscarried. In or about May 2001, the appellant and F separated permanently (ts 252 - 254, 260). After this, F told her children not to go to the appellant's house. Despite this, A continued to do so (ts 242, 261 - 262).
17 In or about April or May 2002, the appellant moved to Canberra (ts 254), following which his contact with F's children progressively dwindled (ts 217 - 220, 229, 242 - 243).
18 Neither A nor D made a complaint at the time the sexual offences allegedly occurred. On 10 September 2013, A attended at the Cockburn Police Station and made a complaint about the appellant to Sergeant Nicole Ford (ts 272). On 12 September 2013, the investigation of the appellant's complaint was handed to Detective Senior Constable Daniel Whitney (ts 276).
19 On 6 February 2014, Detective Whitney executed a search warrant at the appellant's home (ts 277 - 278). One item found during the search was a briefcase in the wardrobe of the main bedroom (ts 279). Amongst other things personal to the appellant in the briefcase were the images the subject of count 18 (exhibits 18.1 and 18.2; ts 280). The police also found in the briefcase a number of photographs of A, both as a child and as an adult (ts 280 - 282). The photographs of A as an adult may have been downloaded from D's Facebook page (ts 338).
20 Between 1998 and 2002, the appellant and A enjoyed a close relationship (ts 139, 181). The appellant regarded F and her children as if they were family (ts 359).
21 The State case was that these counts, which involved both A and D, occurred at the same time on the one occasion.
22 A testified about an occasion when she was 8 or 9 years old (ts 75). She said that she and both of her brothers were at the appellant's house. A testified that on the day in question, she walked from the computer room into the lounge room and saw the appellant and her brothers watching a movie which showed two women engaging in sexual behaviour with each other. According to A, AL said that she could not watch the movie, but the appellant said 'No, it's fine.' A said that she then walked into the lounge room and the appellant got her to sit on his lap (ts 73). A said that the movie lasted 'about 30 minutes', during which she saw, amongst other things, a man and a woman engaged in explicit sexual activity (ts 74). A said that the appellant told her and her brothers that they were not to tell anyone about what they had seen. According to A, the appellant said to her that '... girls have a part that when you play with it [it] feels really good and that boys like it when you touch their penis' (ts 75).
23 A testified that the matters the subject of these counts occurred 'a couple of days after' the events the subject of counts 1 and 2 (ts 77). A said that she asked the appellant to show her the spot on her body 'that felt good' (ts 77). She said that he led her into his bedroom and asked her to take off her underwear, which she did. A said that the appellant sat her down in front of some mirrors and told her to spread her legs (ts 79). He then placed his left 'pointer' finger on her clitoris[1] and 'rubbed it back and forth' for a few seconds (ts 80). He then placed her right hand over his erect penis for 'a couple of seconds' (ts 80 - 81). According to A, the appellant told her not to say anything to anyone as they would both be in trouble and that what had occurred 'was out [sic: our] secret' (ts 81).
24 A testified to the effect that, after this incident, she and the appellant engaged in sexual behaviour 'regularly', which she estimated to be 'once every two weeks' (ts 81).
25 According to A, count 5 occurred about a week after counts 3 and 4. On this occasion, she was in the appellant's bedroom watching television (ts 82). The appellant closed and locked the bedroom door, pulled down her pants and underwear and engaged in cunnilingus for 'a minute or so, two minutes' (ts 82 - 83). Once again, he told her not to say anything to anyone else and that it was 'our secret' (ts 84).
26 A testified that about a week or two after count 5 was committed, she was sitting on the appellant's bed (ts 84 - 85). A described how the appellant had pulled his pants part of the way down to expose his erect and circumcised penis. A testified that he grabbed her right hand and put it on his penis, moving it up and down for 'three to five minutes' (ts 85 - 86). A said that as this occurred, the appellant breathed deeply, and that he pulled her hand away when 'he was getting close to climaxing' (ts 86). Again, the appellant told her 'not to say anything to anyone' (ts 86).
27 A testified that count 7 allegedly occurred on one of the occasions when the appellant and A's family went caravanning together on a summer holiday when she was about 10 years old (ts 91). A was unable to recall the name of the place where the holiday took place (ts 92). A recalled an evening after dinner when her brothers were making shadow puppets on an improvised screen. At this point, she and the appellant were lying together on a double bed underneath the bedclothes. A testified that the appellant licked the fingers on his left hand and put them down her pyjama pants and underwear. He then moved them back and forth over her clitoris for 'two, [or] three minutes' before F got into the bed, at which point the appellant stopped rubbing her clitoris, but he 'left his hand there' (ts 94). A said that the appellant then 'continued rubbing' her clitoris for 'quite awhile [sic], like eight to 10 minutes' (ts 94). A testified that the appellant stopped when F told her that it was time to go to bed (ts 94 - 95).
28 According to A, count 8 allegedly occurred on another caravanning trip when she was about 10 years old (ts 95 - 96). A was unable to recall where the offence occurred, but it 'wasn't near the ocean' (ts 96). A described how she and the appellant were alone in the caravan (ts 96). A testified that the appellant told her 'it has to be quick because [F] wasn't going to be long in - in the laundry' (ts 97). A said, in effect, that by this point she had been conditioned to behave in a sexual way with the appellant, so she pulled her pants off (ts 97). The appellant then pulled down her underwear and engaged in an act of cunnilingus which lasted 'around three to five minutes' (ts 100).
29 A testified that these offences occurred at the appellant's house when she was almost 11 years old (ts 101). On this occasion, A was sick and watching television under a blanket on a bed in the lounge room. A said that the appellant got into the bed with her, licked the fingers on his right hand and then put them under her pyjama pants and underwear. She testified that he rubbed her clitoris for 'about five minutes' (ts 102). A said that the appellant then grabbed her hand and put it on his erect penis on top of his pants. At this point, she said that the appellant's mother, who was staying with him temporarily, came into the room (ts 103).
30 A said that after this incident, the appellant 'became more inappropriate' in his conduct towards her (ts 103).
31 A said that when she was nearly 11 years old, there was an occasion when she and the appellant were in his bedroom. According to her, the appellant locked the bedroom door and drew the blinds (ts 104). He then pulled down his pants and asked A 'Can you use your mouth (ts 104)?' A said she told the appellant that she did not want to engage in such behaviour. The appellant responded that it was a game, saying 'I do it to you. Boys like it when you do this and you can't make me come' (ts 105). A testified that she knelt in front of the appellant and committed an act of fellatio upon him, but he did not ejaculate (ts 105 - 106). The appellant told her 'You're better than your mother' (ts 105). Afterwards, the appellant took A to McDonald's (ts 106). A said that, thereafter, she performed an act of fellatio upon him about 'once every two weeks', and the appellant's sexual behaviour towards her became 'more extreme' in that he did things 'in front of other people' (ts 106).
32 A testified that she recalled an occasion when she was at the appellant's house watching a television program which she thought may have been called 'The Worst Witch' (ts 107). She said that the appellant called her into his bedroom. Once there, he closed and locked the door. She testified that she had her hand around the appellant's penis, then the appellant asked her to put her mouth on his penis, which she did. She then committed an act of fellatio upon him, the appellant having said to her something like 'Can you lick it like an ice-cream or a lollipop or something' (ts 108). According to A, the appellant then held her labia open with his hand and licked her vagina for three to five minutes (ts 110).
33 According to A, count 15 allegedly occurred when she was 11 years old, in her mother's bedroom at a time when the appellant stayed over (ts 110 - 111). A recalled that, as a result of a nightmare, she went into her F's bedroom. She said that the appellant picked her up and placed her on the bed between him and F. According to A, the appellant then put his hand beneath her underwear and onto her vagina, rubbing his finger back and forth over her clitoris (ts 111). A said that the incident did not go on for long because F woke up and told her, in effect, to go back to her own bed (ts 111).
34 According to A, count 16 occurred after the relationship between the appellant and F ended when she was 11 or 12 years old. A said that, although F had told her not to go to the appellant's house, she continued to do so (ts 112). She testified that, on this occasion, she was sitting on the bed next to the appellant in his bedroom. A said the appellant had closed and locked the bedroom door. She testified that she put her hand on his penis and that his fingers were 'on [her] clitoris area' (ts 113). A said that she heard the front door of the house open and then F's voice. According to A, she and the appellant pulled up their pants. She heard F banging on the bedroom door. The appellant turned the television on and then unlocked and opened the bedroom door. According to A, the appellant told her 'You have to tell [F] that you were just watching TV' (ts 114). F was very angry. A told her that she and the appellant 'had just been watching TV' (ts 114 - 115).
35 In addition to the specific incidents the subject of charges, A also testified about an uncharged act. A said that when she was around 11, the appellant engaged in an act of cunnilingus upon her. She said this act occurred in the lounge room of her house while she was sitting on a chair and her leg was on the armrest of the couch (ts 116 - 117).
36 A said that the appellant stopped engaging in sexual behaviour with her when she was nearly 12 once she had shown him some of the physical signs of puberty (ts 117 - 118).
37 A said that not long after this time, the appellant moved out of his house. She said that after he moved away, the appellant telephoned her twice and sent her emails and Facebook messages (ts 118). A said that she did not respond to his emails or Facebook messages (ts 119). The prosecutor showed her some of the photographs which had been seized by the police during the search of the appellant's house. A identified two photographs in which she was depicted with the appellant when she was 9 years old (exhibit 4; ts 120 - 121) and when she was '11, turning 12' (exhibit 5; ts 121 - 122). She also identified six more photographs which she said were taken when she was 21 or 22 years old and which she thought may have been uploaded to Facebook by one of her brothers (ts 122 - 124).
38 The general thrust of A's cross-examination was that none of the sexual acts she said had been committed by the appellant occurred. Defence counsel took A to each alleged offence and the uncharged act referred to in [35] of these reasons and put to her, in effect, that her testimony was untruthful. In each instance, A confirmed the truthfulness of the allegations (ts 133 - 198, 212 - 230).
39 During cross-examination, defence counsel sought to highlight the following matters:
(a) A made no immediate complaint about the appellant's sexual conduct towards her.
(b) Sometime between July 2000 to April 2001, when the appellant was away working, A sent him a card with a message couched in affectionate terms (exhibit 13; ts 181 - 185).
(c) In or around December 2001, A sent the appellant a Christmas card which was also couched in affectionate terms (exhibit 12; ts 173 - 174).
(d) In 2002, after the appellant had moved out of his house, he sent A two emails. A confirmed that, in her police statement, she said that she did not respond to those emails. Defence counsel then presented her with her replies to the emails. A explained that she did 'not remember responding' to the emails at the time she made her police statement (exhibits 16 and 17; ts 218 - 229).
(e) A said that she maintained a diary during the period of the alleged offending in which she detailed 'various assaults'. A said that she had told this to the police and, before the trial, to the prosecutor. A did not bring the diary to court. Defence counsel called for the diary. The diary was brought to court (ts 196 - 198, 202 - 203, 205 - 213). A accepted that there was no explicit reference in the diary to the appellant '[sexually] assaulting' her (ts 213 - 214).
(f) As a result of her undergraduate studies in psychology, including the preparation with others of an honours research paper on 'data fabrication', defence counsel accused her of becoming adept at avoiding suggestions of fabrication (ts 216 - 217). A denied this accusation.
(g) A did not mention in her police statement the uncharged act of cunnilingus she described in her evidence. A explained that her statement was given 'over a few days' and she found the process 'extremely hard' (ts 194 - 195).
40 The following cross-examination is specifically relevant to the alleged offences of which the appellant was acquitted (counts 1, 7, 8 and 15):
(a) As to count 1, A said that her brothers were watching the pornographic video with the appellant (ts 137 - 138). A testified that in her mind, her elder brother, AL, was present when the video was played in her presence (ts 138 - 139).
(b) As to count 7, defence counsel sought to highlight the inherent improbability of the appellant digitally penetrating A in a caravan with her brothers and F in very close proximity (ts 157 - 162).
(c) As to count 8, defence counsel suggested that, at no stage had the appellant and A's family stayed at a caravan park in the particular country town named in the indictment. Further, while the alleged offence occurred at a time when the appellant and A were alone in the caravan, A accepted that F or one of her brothers could have walked in at any moment (ts 162 - 165).
(d) As to count 15, defence counsel concentrated his cross-examination upon the inherent improbability of the appellant indecently dealing with A, while F lay next to her (ts 191).
41 In re-examination, A said that she did not make an immediate complaint at the time of each alleged offence because the appellant had told her that they would get into trouble, and the appellant's sexual behaviour towards her had become 'part of my everyday life' (ts 245).
42 A was not asked, either in examination-in-chief or cross-examination, about why, in September 2013, she made her complaint to the police.
43 In respect of count 2, D testified that he recalled watching 'a pornographic video' with the appellant at the appellant's house when he (D) was about 12 or 13 years of age (ts 233). He said that no one else was present at the time (ts 234). In cross-examination, D agreed that A was never there when a 'risqué movie' was played at the appellant's house (ts 239 - 240).
44 F testified as to the history of her relationship with the appellant. She confirmed that her children visited the appellant's house 'frequently' or 'fairly frequently' before and after her final separation from him (ts 249). F recalled caravanning trips to various locations. With respect to one of those trips, she testified that it occurred between the end of 1999 and into the early part of 2000. Her recollection was that they travelled through the country town named in count 8 and stopped there to view a local tourist attraction. They then drove straight to their holiday destination (ts 251 - 252).
45 F recalled a particular incident which occurred after her separation from the appellant, but before he moved out of his house in April or May 2002 (ts 254). She said that one Saturday morning, she noticed that A was not at home, so she 'stormed' into the appellant's house and went straight to his bedroom. F said that the door handle was locked. F said that she called for A, and then heard the appellant say 'This is our secret' (ts 255). She then told A 'I want you home now' (ts 255). F testified that she returned to her house and that A followed shortly after (ts 256).
46 In cross-examination, F was uncertain as to whether she had stayed overnight at a caravan park or camping ground in the country town named in count 8 (ts 259). She described the appellant as being 'a really good friend to the kids' (ts 259), and that she did not notice the appellant behaving in an 'untoward' way towards A (ts 256).
47 Near the conclusion of her cross-examination, defence counsel asked F whether she was aware of any ongoing contact between the appellant and A, whether 'by email, or mail or anything like that', to which F responded:
I know that [the appellant] - I know that part of this - not at that particular time, not in 2002, was [aware that] I [was] aware of that. But later on there were a couple of emails that he'd sent [A] that had actually really upset her. That's what I became aware of. That's actually what triggered probably this - this case now (ts 263).
48 Sergeant Ford received A's complaint at the Cockburn Police Station on 10 September 2013 (ts 272). Sergeant Ford's attention was drawn to a number of entries on the police incident report and running sheet; in particular, to an entry which read:
Victim maintains a diary with entries detailing certain assaults. The victim has been advised that police will require this diary (ts 273).
49 In cross-examination, defence counsel focused upon this entry. Sergeant Ford confirmed that the entry was as close as possible to what A had actually said (ts 274).
The evidence of Detective Senior Constable Daniel Graham Whitney
50 Detective Whitney testified as to the investigation of A's complaint. This testimony spoke to the search of, and the property that was seized from, the appellant's house on 6 February 2014 (ts 276 - 284).
51 Defence counsel commenced his cross-examination of Detective Whitney by asking him if he had asked A 'Why did you leave it until now to come forward (ts 284)?' Detective Whitney said that he would have asked that question, but had no recollection of the actual conversation (ts 284). Defence counsel then asked Detective Whitney if he had the police incident report with him, at which point the learned trial judge asked the jury to leave the courtroom so that his Honour could understand the purpose of the line of cross-examination (ts 284). During the dialogue between defence counsel and his Honour and in the absence of the jury, defence counsel made the application to recall A for further cross-examination. I will refer to this dialogue later in these reasons when I deal with ground 3.
52 Upon the resumption of cross-examination, Detective Whitney agreed that, although he spoke to A's brother, AL, over the telephone regarding counts 1 and 2, no statement was taken from him (ts 291). Detective Whitney explained that he (AL) 'couldn't give me any information' (ts 292).
53 Detective Whitney confirmed the police seized from the appellant, among other items, two phones and a considerable quantity of computer equipment. None of it contained anything of interest to the police (ts 294). Detective Whitney verified that police records revealed that the appellant did not have any criminal convictions 'of any description' (ts 296).
54 The appellant elected to testify in his defence and to call witnesses.
55 According to the appellant, he did not have any sexual interest in A or in children generally (ts 330). He denied the sexual acts the subject of each charge or any uncharged act. The appellant also denied showing A and D any 'dirty films' (ts 318). He specifically denied having any sexual attraction towards A (ts 328). He said it was not unusual for A or her brother to watch television in his bedroom (ts 318).
56 In examination-in-chief, the appellant was asked about the photographs of A that the police found during the search of his house. The appellant said that he 'most likely got them off [AL's] Facebook pictures, I - I think' (ts 329). He said that he downloaded them because, although he and A had 'long grown apart', she and her brothers 'were family' (ts 329).
57 In relation to the photographs the subject of count 18, the appellant said that they had come 'off the internet' (ts 329 - 330). One of the photographs depicted a girl holding a cat. The appellant said that the cat was the motive behind him downloading the photograph. He said that he did not give 'a great deal of thought' as to how old either of the girls in the photographs were (ts 330).
58 The appellant accepted that, during the course of his relationship with A's family, he went on several caravanning trips with them. Relevantly to counts 7 and 8, the appellant named the destinations of those holidays (ts 322 - 325). With respect to count 7, the appellant recalled that, on occasion, A would 'jump into bed with me and [F] for five or 10 minutes till [sic] her mum chucked her out when the lights first went off ...' (ts 323 - 324). With respect to count 8, the appellant denied that he and A's family ever stayed at a caravan park in the town named in the indictment (ts 317).
59 The appellant said that after he broke up with F, he encouraged her children to come to his house 'because they were my family' (ts 334).
60 The appellant said that after the break-up, A emailed him on 21 September 2002 and 31 October 2002 (ts 336 - 337).
61 In more recent years, the appellant said he had 'bumped [into]' D and AL' (ts 338). He said he asked them about A and was told by AL that A was on Facebook. It appears that the appellant viewed A's Facebook page based upon his testimony that 'she was on Facebook a bit and then gone' (ts 338). The appellant described as 'absolute rubbish' the proposition that he had a sexual interest in A that caused him to look up her Facebook page or download the photographs found by police during the search (ts 338).
62 During the course of cross-examination, the appellant:
(a) conceded that the girls in the photographs the subject of count 18 were underage and that he masturbated while looking at one of the photographs (ts 343 - 344, 346 - 347);
(b) denied that he retained a sexual interest in A, despite having downloaded six photographs of A from Facebook in more recent years (ts 355, 358);
(c) admitted that there were times when A and he were alone in his house (ts 362);
(d) repeated his denials that he had committed any of the alleged offences and that he had a sexual interest in A; and
(e) said that his penis was circumcised, but that he had not shown his penis to A, nor had she seen it (ts 365 - 366, 381 - 382).
63 In re-examination, the appellant said A may have seen his penis when he dropped his towel when getting changed at the beach (ts 381 - 382).
64 CMB is the appellant's mother. In the period between 1998 and 2002, CMB resided in Albany. During that time, the appellant and A's family visited her 'many times' (ts 383). CMB often came to stay with the appellant at his house in Perth (ts 383 - 384). According to CMB, the appellant had a 'very good relationship' with F's children, including A (ts 383). She never observed any inappropriate conduct between the appellant and A. Relevantly to counts 9 and 10, CMB had no recollection of the appellant being on or under a bed in the lounge room with A. Had she seen such a thing, CMB said she would have been 'appalled' and 'torn strips off him' (ts 385 - 386).
The evidence of Robert Clyde Smith and Adam Page
65 Mr Smith and Mr Page lived at the appellant's house at different times in the period between 1998 and 2002. Each testified that the appellant and A had a good relationship. Neither ever observed the appellant behaving in an inappropriate way towards A (ts 392 - 405).
The evidence of Nicole Ann Anderson, Jeffrey Peter Damm, Tina Marie Levien and Madelene Ann Kelly
66 Each of these witnesses gave good character evidence in favour of the appellant (ts 405 - 415). This evidence was not materially challenged by the prosecutor.
67 With respect to the offences against A, the State accepted that her evidence was crucial (ts 528). The State case was that there was an escalating pattern to the offences committed against A, which commenced with the appellant showing her pornography; then a conversation about 'a girl's spot, [and a] boy's spot' (ts 529); followed by lower-level touching, masturbation, oral sex and more serious types of sexual conduct, including penetration. The State submitted that the appellant's conduct became 'riskier' over time (ts 529).
(a) A had mixed feelings about the appellant, and about the sexual behaviour itself which, it was said, explained why A did not report what was occurring to her at the time (ts 529).
(b) The contents of the briefcase found during the search of the appellant's house strengthened the State case because it showed that the appellant had a sexual interest in children; in particular, a sexual (and ongoing) interest in A (ts 501).
(c) Any inconsistencies in A's evidence were insignificant.
69 The State contended that A was a reliable witness. It was said that she gave detailed evidence - for example, she knew that the appellant was circumcised (ts 529 - 530).
70 As to counts 1 and 2, the State case was that they occurred in the one incident; that is, the appellant was present and allowed A and D to watch the same pornographic movie. The State case was that, based on the evidence of A, it was open to the jury to convict the appellant of counts 1 and 2. Alternatively, if the jury was not prepared to accept A's evidence beyond reasonable doubt with respect to these counts, it was open to it to convict the appellant of count 2 based on D's evidence (ts 490 - 492).
71 With respect to the offences allegedly committed against A, the defence case was that the jury should not be satisfied beyond reasonable doubt of the appellant's guilt based on the evidence of A and having regard to the following:
(a) The absence of corroboration, including the absence of medical or forensic evidence (ts 501 - 531).
(b) The absence of an immediate complaint (ts 504 - 505).
(c) The commission of the offences was said to be inherently implausible in that there were always various boarders and lodgers staying at the appellant's house, giving rise to the possibility that the offending might have been witnessed by them (ts 531).
(d) The offences which allegedly occurred during caravanning trips were committed when others, including F, were in close proximity (ts 531 - 532).
(e) Counts 9 and 10 allegedly occurred when CMB was present in the appellant's house (ts 515 - 516).
(f) Count 15 allegedly occurred when A was in F's bed in close proximity to her (ts 517).
72 Defence counsel submitted that A had carefully constructed a false case against the appellant. It was said that the inconsistencies in her evidence told against her credibility. According to the defence, it made no sense that, despite the appellant committing sexual acts against her, A, after the appellant had left, continued to communicate with him via cards and emails (ts 531).
73 With respect to counts 1 and 2, the defence submitted that A and D had contradicted each other as to who was present at the time the offences were allegedly committed (ts 531).
74 The defence submitted that the appellant was a truthful witness and a man of good character whose evidence should be accepted or at the very least gave rise to a reasonable doubt as to his guilt (ts 510 - 511).
The application for leave to appeal against conviction Proposed ground 1 - joinder
75 This ground of appeal alleges, in substance, that the learned trial judge erred in law by refusing to order a separate trial in respect of count 18.
76 By application dated 20 February 2015, the appellant applied for:
An order pursuant to s 133(3) of the Criminal Procedure Act 2004 (WA) (CPA) that count 18 ... be severed from [the] indictment and be the subject of a separate indictment and trial.
77 It may be immediately noted that the appellant accepted that the offences in relation to A and D, that is, counts 1 to 17, were properly joined and that he suffered no prejudice by this joinder.
78 Essentially, the appellant's submission in support of this application was that the evidence supporting count 18 was inadmissible in the proof of counts 1 to 17; accordingly, there was no nexus between the charges and thus, no basis for their joinder. In any event, it was submitted that the joinder was likely to cause prejudice to the appellant in the trial.
79 As already stated in [6] of these reasons, the learned trial judge refused the application for severance (ts 16 - 19). In substance, his Honour concluded:
(a) Count 18 had been properly joined, and the appellant was not likely to be prejudiced in the trial by the joinder.
(b) There was a sufficient nexus between count 18 and the other counts.
(c) The evidence supporting count 18 was, in his Honour's opinion, propensity evidence admissible both at common law and pursuant to s 31A of the Evidence Act 1906 (WA) in respect of the other counts because it showed that the appellant had a sexual interest in children; specifically, a sexual interest in A as a child.
(d) As the evidence with respect to count 18 was admissible with respect to counts 1 to 17, there was no relevant prejudice to the appellant by reason of the joinder.
80 The formal requirements for indictments are set out in s 85 of the CPA. Section 85(2)(b) of the CPA stipulates that an indictment must comply with Sch 1 div 2. Clause 2(3) of Sch 1 states that an indictment must contain one charge only, unless otherwise permitted by cl 7 or another written law. Clause 7(3) of Sch 1 sets out the circumstances in which an indictment may charge a person with two or more offences. Clause 7(3)(a) is the circumstance most relevant to the present case. It allows joinder if the offences 'form or are a part of a series of offences of the same or a similar character'.
81 Section 133(3) of the CPA empowers a court to order separate trials where two or more charges have been properly joined. The court's power to sever is enlivened upon the court being 'satisfied that an accused is likely to be prejudiced in the trial ... because it contains two or more charges'. Section 133(5) provides as follows:
In deciding whether to make an order under subsection (3) or (4) in respect of an indictment to be tried by a jury, it is open to a superior court -
(a) to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury; and
(b) to so decide irrespective of the nature of the offence or offences charged; and
(c) to so decide even if -
(i) the evidence on one of the charges is inadmissible on another; or
(ii) the evidence against one of the accused is not admissible against another,
82 It is unnecessary to decide proposed ground 1 having regard to the common law regarding propensity evidence. It is enough to refer to s 31A of the Evidence Act, which is in these terms:
(a) similar fact evidence or other evidence of the conduct of the accused person; or
(b) evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.
(2) Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -
(a) that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b) that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
(3) In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.
83 The appellant's submissions in support of proposed ground 1 were, in substance, a repetition of the submissions made before the learned trial judge.
84 The leading authority in this State on the proper construction of cl 7(3)(a) of Sch 1 to the CPA is Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302. In that case, Steytler P (with whom Wheeler & Pullin JJA agreed) construed the provision having regard to its historical context, and other cases in Australia and in the United Kingdom which analysed the words 'series of offences of the same or a similar character' [16] - [34]. In Mansell v The State of Western Australia [2009] WASCA 140, Miller JA (with whom Martin CJ & Buss JA agreed), having referred to Zammit and the cases reviewed by Steytler P in connection with cl 7(3)(a), said at [26]:
What [the cases] reveal is that offences cannot be regarded as of a similar character for the purposes of joinder unless some sufficient nexus exists between them. Such a nexus is established if the offences are so connected that evidence of one would be admissible on the trial of the other: R v Kray [1970] 1 QB 125, at 130 - 131; Lancaster v The Queen [1989] WAR 83, at 86. What is required is a sufficient correlation to enable the offences to be described as a 'series', without straining the word beyond the meaning which it is reasonably capable of bearing: De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1 per Dawson J, at 9. Further, the provision allowing joinder (cl 7(3)) should not be given 'an unduly restricted meaning': Zammit per Steytler P, at [27], following De Jesus per Dawson J, at 9.
85 The relevant law with respect to s 31A of the Evidence Act was recently encapsulated by Buss JA in LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178 at [290] - [291] in these terms:
So:
(a) Evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue.
(b) The test in s 31A(2)(a) will be satisfied if the court 'considers' (that is, thinks) that the propensity evidence 'would' (as distinct from could), either by itself or having regard to other evidence adduced or to be adduced, rationally affect, to a significant extent, the assessment of the probability of the existence of a fact in issue.
(c) The adjective 'significant', in the phrase 'significant probative value' in s 31A(2)(a), connotes 'important' or 'of consequence'.
(d) If propensity evidence has 'probative value' then whether the probative value is 'significant' will depend upon the nature of the fact in issue to which it is relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact.
In Dair, Steytler P made these points about the comparison which s 31A(2)(b) requires. First, s 31A(2)(b) requires the court to assess the degree of risk of unfairness at trial that will be occasioned by the admission of the evidence in question, the court having already found under s 31A(2)(a) that the evidence has significant probative value. Secondly, when assessing the risk of an unfair trial for this purpose, the court must take into account any directions that might be given to the jury in an attempt to overcome the prejudice, and their likely effect on the jury. Thirdly, after identifying the probative value of the evidence in question and the degree of risk of an unfair trial, the court must consider the conclusion that fair-minded people would draw from a comparison of these issues. Although fair-minded people are reasonable members of the general community who are not lawyers, it must be assumed that such people have informed themselves of 'at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances': Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [53] per Kirby J.
86 The crucial issue for determination with respect to counts 1 to 17 was whether the appellant committed the particular act alleged in each of those counts. The appellant admitted an association with A (and D), but denied that he had any sexual interest in children. The evidence in support of count 18 - that the appellant possessed images constituting child pornography - showed that he had a sexual interest in girls. This fact was plainly relevant to an assessment of the likelihood of whether the appellant committed the offences as alleged by A. That the appellant had a sexual interest in girls is underscored by his evidence that he used one of these images as masturbatory material. Moreover, the appellant had retained the images of child pornography for a lengthy period of time and in a briefcase which contained documents of importance to him, including multiple photographs of A. Bearing in mind that, according to the appellant, he had no association with A after 2002, the presence of those photographs is indicative of an unusual and continuing interest in her. When considered together with the images of child pornography, it was open to the jury to infer, beyond reasonable doubt, that the appellant not only had a sexual interest in children; but also, a sexual interest in A.
87 In my opinion, the images of child pornography in support of count 18, when considered with A's evidence and the discovery of the images of A in the appellant's briefcase, was evidence of undoubted relevance to the question of whether the appellant had committed the acts the subject of counts 1 and 3 to 17. This evidence had significant probative value as stipulated in s 31A(2)(a) of the Evidence Act; in particular, this evidence, having regard to other evidence adduced or to be adduced, would rationally affect, to a significant extent, the assessment of the probability that the appellant had committed the particular act alleged in each of counts 1 and 3 to 17.
88 I now turn to the comparison required by s 31A(2)(b) of the Evidence Act. The risk of an unfair trial posed by the admission of the propensity evidence was that a jury would impermissibly reason that, simply because the appellant possessed child pornography in proximity to multiple photographs of A, he was guilty of the other counts. The risk of a jury adopting such a line of reasoning could be properly guarded against by appropriate directions to the jury. His Honour gave such directions. They were not challenged by the appellant in this appeal and it is unnecessary to set them out. In my opinion, those directions properly guarded against the risk of an unfair trial such that fair-minded people, having weighed the significant probative value of the evidence against the degree of risk of an unfair trial, would conclude that the public interest in adducing all relevant evidence of guilt had priority over that risk.
89 As the evidence of the commission of count 18 was admissible as propensity evidence, there is no prejudice for the purpose of s 133(3) of the CPA. There is no residual judicial discretion to exclude the evidence on the same ground: Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [140] (Roberts-Smith JA).
90 Proposed ground 1 has no reasonable prospect of succeeding. Leave to appeal must be refused.
91 The appellant contends, in substance, that the different verdicts delivered by the jury cannot rationally stand together and are factually inconsistent. In his written submissions, the appellant asserted that:
The essence of the [State] case depended on the jury accepting evidence of the complainants as being truthful and reliable and being so satisfied beyond reasonable doubt.
It is submitted that the convictions on Counts 2, 3, 4, 5, 6, 9, 10, 11, 12, 13, 14, 16 and 18 are unsafe having regard to the acquittals on Counts 1, 7, 8 and 15 where the jury must have entertained a reasonable doubt in relation to the complainant's testimony.
There was no evidence of a corroborative nature which placed the Counts in respect of which guilty verdicts were made in a different or stronger category than those in respect of which there were acquittals. It is submitted that the verdicts are accordingly fundamentally inconsistent with each other.
92 This court must allow an appeal against conviction if, in its opinion, the verdict of guilty upon which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported: s 30(3)(a) of the Criminal Appeals Act 2004 (WA).
93 In Fullgrabe v The State of Western Australia [No 2] [2014] WASCA 73, McLure P (with whom Buss JA & I agreed) set out the relevant legal principles applicable to a claim of inconsistent verdicts at [11] - [14] in these terms:
The elements of the offences the subject of counts 2 and 3 are different and without overlap. There is no claim of legal inconsistency. The claim is one of factual inconsistency. The legal principles relating to inconsistent verdicts are uncontroversial and can be shortly stated. The appellant has to satisfy the court that the verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their minds properly to the facts in the case could have arrived at the conclusion: MacKenzie v The Queen (1996) 190 CLR 348, 366. If there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, the verdicts will not be inconsistent in the relevant sense: MacKenzie (367). In essence, the question is whether the different verdicts in the case represent an affront to logic and common sense.
Ordinarily, the claim of inconsistent verdicts involves multiple offences involving only one complainant. In that context, the High Court has said that verdicts of not guilty on some counts do not necessarily reflect a view that the complainant was untruthful or unreliable or reflect a want of confidence in the evidence of the complainant. A verdict of not guilty may reflect a cautious approach by the jury to the discharge of a heavy responsibility. For example, supporting evidence may be sought or the complainant may have shown some uncertainty as to matters of detail or been shown to have a faulty recollection on some matters but not others. The significance of a verdict of not guilty must be considered in light of the facts and circumstances of each case.
Further, verdicts might be explicable on the basis that one or more of them is merciful or that they accord with the jurors' innate sense of fairness and justice: MacKenzie (367); MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 [34]; Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 [71].
Finally, the significance of the verdict of not guilty must be considered not only by reference to the facts and circumstances of the case but also in the context of the directions given by the trial judge [11] - [14].
94 Among other directions given, his Honour directed the jury that:
(a) it may accept part of a witness's evidence and reject other parts of that witness's evidence (ts 488);
(b) it must consider each charge separately; and when doing so, it must consider only the evidence that is relevant to that charge (ts 489);
(c) its verdicts do not have to be the same on each charge (ts 489);
(d) it may deliver a combination of verdicts on the charges (ts 489); and
(e) it could not convict on a charge unless the State satisfied it of the appellant's guilt beyond reasonable doubt (ts 489).
95 Specifically with respect to counts 1 and 2 his Honour said:
In the circumstances of counts 1 and 2, if you are satisfied beyond reasonable doubt of [A's] evidence that she and [D] were present with [the appellant] when the VHS pornographic movie was seen, you could convict on counts 1 and 2 on the basis of her evidence. If you were not satisfied beyond reasonable doubt of [A's] evidence about that, you could not convict on count 1 or count 2 on the basis of her evidence.
If you are satisfied beyond reasonable doubt of [D's] evidence that he and [the appellant] were present when the VHS pornographic movie was seen, you could convict on count 2, but not on count 1 on the basis of [D's] evidence. Because he obviously makes no mention of [A] (ts 492).
96 As to A's credibility relating to the charges which concerned her, his Honour directed the jury that the State case relied upon her evidence (ts 511 - 518). His Honour told the jury that, if it did not accept A's evidence on a charge, that decision was 'likely to influence your assessment of [her] credibility' (ts 501).
97 In my opinion, based on an examination of all of the evidence adduced at trial, the verdicts are not factually inconsistent.
98 The differing verdicts in this case may be reasonably explained by the jury heeding, and then faithfully applying, the directions given to it by the judge which I have described. For example, the following may be said regarding the verdicts of acquittal:
(a) As to the acquittal on count 1, A testified that she and her brothers were present when the pornographic video was shown; however, D testified that A was not present. D's evidence may have given rise to a reasonable doubt about the appellant's guilt on count 1.
(b) As to the acquittals on counts 7, 8 and 15, these verdicts may be explained by the jury having a reasonable doubt that the offences could have occurred when members of A's immediate family were either in close proximity, or may have come onto the scene without warning. The following will be recalled:
(i) Count 7 occurred during a caravanning holiday one evening at a time when F and A's brothers were in the caravan in very close proximity to the appellant and A.
(ii) Count 8 also occurred on a caravanning holiday at a time when F and A's brothers might suddenly have appeared. Further, the State case was that the offence occurred at a caravan park in a country town named in the indictment. No witness recalled the appellant and A's family ever having stayed at a caravan park in that town. The appellant testified that there was, to his knowledge, no caravan park in that town. He was not challenged on this point in cross-examination.
(iii) Count 15 was alleged to have occurred in F's bed with F lying next to A.
(c) The verdicts of acquittal are not inconsistent with the jury's acceptance of A's evidence beyond a reasonable doubt with respect to the counts the subject of convictions. The jury may have had a reasonable doubt as to the appellant's guilt on counts 1, 7, 8 and 15 without having a reasonable doubt regarding A's evidence as a whole; in particular, her evidence regarding the offences which related to her and were the subject of guilty verdicts.
99 Upon my analysis of the record, A's evidence was generally clear, detailed and consistent. Her explanation for not making an immediate complaint was credible. The inconsistencies identified by defence counsel were adequately explained and were not of great significance. Although there was no corroboration of A's testimony with respect to the offences of indecent dealing and sexual penetration allegedly committed against her, there was support for her testimony in that there was credible evidence that the appellant:
(c) had a sexual interest in children; in particular, a sexual interest in A; and
100 Further, in relation to counts 16 and 17, F confirmed that she discovered the appellant and A in the appellant's locked bedroom.
101 In NCH v The State of Western Australia [2013] WASCA 29, Buss JA noted that:
(a) Where several offences of a sexual nature depend upon the complainant's evidence, the circumstances of the case may justify acquittal on some counts and conviction on others.
(b) Where the jury returns different verdicts, there is no general rule that they must necessarily have found the complainant generally to be untruthful or that the complainant's credibility was undermined in respect of the counts on which the offender was convicted [130].
102 In light of the above, the differing verdicts, in my view:
(a) are consistent with a careful and cautious approach employed by the jury regarding the evidence;
(b) do not reflect the view that A was untruthful or unreliable generally;
(d) do not represent an affront to logic and common sense.
103 The different verdicts were not relevantly inconsistent. Proposed ground 2 has no reasonable prospect of succeeding. Leave to appeal must be refused.
Proposed ground 3 - application to recall A for further cross-examination
104 In A's police statement dated 30 April 2014, she stated that:
(a) When she was 13 or 14 years old, she became depressed and overdosed on Panadol ([379], [382] - [383], [392]).
(b) Her aunt, FA, asked her what was wrong. A said that, at this point, she told FA 'what [the appellant] had done to me' ([392]).
(c) She then told J and F what had happened to her. A said that her parents urged her to report the matter to the police. A said that she did not do so at that time ([388] - [391]).
(d) She did not report the matter to police at that time because she:
...was not emotionally strong enough to deal with making a statement to Police ([392]).
105 It was common ground at trial that A did not make a report to the police about what the appellant had allegedly done to her until September 2013. During the police investigation, a document called an 'incident report' was compiled. This document contains, in part, a running record of the investigation. At page 9 of the report, the following entry appears:
POI [person of interest] still tries to make contact with the [A] over Facebook and email. This [sic] constant attempts to contact her has pushed her to reporting.[2]
106 The identity of the police officer who made the entry is not recorded on the document. Detective Whitney told the prosecutor that he did not make the entry, although it may have been made by Sergeant Ford (ts 297, 303). The source of the information in the entry is not specified in the report.
107 Both A's deposition and the incident report were disclosed to the defence in time for defence counsel to cross-examine on it (ts 312).
108 A's examination-in-chief commenced at approximately 12.46 pm on 23 February 2015 (ts 56). Her cross-examination commenced at approximately 10.10 am on 24 February 2015 (ts 133) and was completed (with some interruptions) at about 4.00 pm on 24 February 2015. Shortly afterwards, A was excused from further attendance at the trial (ts 246).
109 As I have stated at [39] and [42] of these reasons:
(a) A was cross-examined about her failure to make an immediate complaint, the clear purpose of which was to ground a submission that the allegations she made against the appellant were untrue.
(b) A testified that in September 2013, she complained to the police about what the appellant had allegedly done to her. Neither the State nor defence counsel asked A why she went to the police in September 2013.
110 Defence counsel did not cross-examine A about the entry on page 9 of the incident report to which I have just referred.
111 On 25 February 2015, the State called Detective Whitney (ts 276). In cross-examination, defence counsel sought to adduce from him the statement allegedly made by A as recorded at page 9 of the incident report (ts 284). The learned trial judge interrupted the cross-examination to inquire from defence counsel the purpose of doing so (ts 284 - 285). In the absence of the jury, defence counsel explained that he wished to elicit the entry as 'a prior inconsistent statement by [A]' (ts 285 - 290, 296 - 312). His Honour observed that the entry in the incident report had not been put to A (285 - 286). Defence counsel said that he thought that he did not have to do so (ts 286). However, in light of his Honour's comment, he applied to recall A for further cross-examination (ts 287 - 288, 296 - 297). Defence counsel foreshadowed putting the entry to A and suggesting that it was a prior inconsistent statement (ts 296 - 298). Further, he wished to ask A why she reported the matter when she did (ts 309 - 311). Defence counsel explained that his failure to cross-examine A about these matters was an omission for which he took responsibility and was not as a result of a tactical decision (ts 311). The State opposed the application to recall A (ts 308).
112 His Honour's reasons for refusing the application are brief and were expressed in these terms:
I'm going to be bold...and decline [defence counsel's] application because you've had two days in which to make it, you've had the incident report for days on end and in my view in the scheme of things it would amount to, at the most, a prior inconsistent statement, application refused (ts 312).
113 The appellant's written submissions in support of proposed ground 3 allege that the learned trial judge should have allowed defence counsel's application to recall A in order to cross-examine her on 'an important significant contradiction to [sic] her evidence' (appellant's written submissions [67]). The alleged contradiction identified by the appellant in his written submissions was between:
(a) on the one hand, testimony said to have been given by A that there had been no email contact between her and the appellant for more than 10 years; and
(b) on the other hand, the statement apparently made by A at page 9 of the incident report to the effect that the appellant had been attempting to make contact with her in 2013 over Facebook and via email.
114 In truth, there is no such contradiction because A did not give evidence that there had been no email contact between the parties for more than 10 years. The transcript references given in the appellant's written submissions (ts 218, 229) bear this out, as counsel for the appellant appeared to accept in oral argument before this court (appeal ts 9).
115 During his oral submissions in this court, counsel for the appellant (who was also trial counsel) appeared to shift his ground from the written submissions. He said he had wanted to cross-examine A as to what he submitted were the different reasons she had proffered for going to the police in September 2013. He put it this way:
I mean, her case was, quite clearly that these things have happened and I'm only now brave enough to be able to bring them to the court. I only now have the strength to be able to go to the police. And that's quite a different scenario from her saying, 'he's just annoying me by all these emails and Facebook attempts that he's coming up with'. Now that is chalk and cheese, and it may well have referred [sic] significantly on her credibility.
All I wanted to do was [to] put that to [A] and say to her, 'Well, you've come forward after this time and you say it's because you're now brave enough and strong enough' - or whatever her words were at the time - 'but, really, when you went to the police it was just saying, 'Look, I've just had enough of this persistent harassment on Facebook and email''. That's just two different scenarios, and I should have put that to him [sic: her] (appeal ts 9 - 10).
116 It was submitted to this court that the failure to cross-examine A on these matters was inadvertent and not for tactical reasons, and that A's recall would not have unduly distressed her (appeal ts 9 - 11).
117 The law relevant to proposed ground 3 was concisely described by Buss JA in Smith v The Queen [2008] WASCA 128; (2008) 37 WAR 297 [190] in these terms:
A trial judge should, in general, permit a witness to be recalled for further cross-examination if a matter of substance has not been cross-examined on, unless the recall would occasion some real, incurable, prejudice to the trial process or the party who called the witness. See R v Masters (1992) 26 NSWLR 450 at 479 - 480; Reid v Readdy [1999] WASCA 208 at [10] - [14]; Fernando v The Queen [2000] WASCA 289 at [49] per Murray J, Parker and Heenan JJ agreeing.
118 The proposed ground of appeal is doomed to failure because the contradiction alleged by counsel for the appellant in his oral submissions did not exist. Nowhere in A's evidence did she state that it was not until September 2013 that she had the strength to be able to go to the police. The statement at [392] of A's deposition - to the effect that she was not emotionally strong enough to deal with making a statement to the police - concerned her state of mind at the time that she told FA about the appellant's conduct when she was 13 or 14 years old (in April 2004), and not more than nine years later when she went to the police (in September 2013). Thus, there was no basis upon which defence counsel could properly have put to A in cross-examination that the statement she apparently made to police, recorded at page 9 of the incident report, was an inconsistent statement.
119 Even if A had said that she only had the strength to go to the police in September 2013, that statement was not necessarily in contradiction to the statement apparently made by A at page 9 of the incident report. Both reasons could reasonably stand together as justification for why A went to the police in September 2013.
120 Finally, had defence counsel cross-examined A about why she waited until September 2013 to complain to the police, the State would no doubt have re-examined A on this matter, eliciting from her what occurred, including her state of mind, when she was 13 or 14 years of age. That evidence would have been unfavourable to the appellant.
121 His Honour did not err in refusing the application to recall A for further cross-examination.
122 Proposed ground 3 has no reasonable prospect of succeeding. Leave to appeal must be refused.
123 Proposed ground 4 is predicated upon the other grounds being made out. As the other grounds have not been made out, proposed ground 4 cannot succeed. Leave to appeal must be refused.
Conclusion and orders - application for leave to appeal against conviction
124 None of the proposed grounds of appeal against conviction has a reasonable prospect of succeeding. In accordance with s 27(3) of the Criminal Appeals Act, the appeal is to be taken to have been dismissed.
125 The orders that I would make in respect of the appeal against conviction (CACR 88 of 2015) are:
The application for leave to appeal against sentence
126 Although the proposed ground of appeal challenges the length of the individual sentences and the total effective sentence, counsel for the appellant accepted that the real issue for this court to determine is whether the total effective sentence infringed the first limb of the totality principle (appeal ts 12). No challenge is made to his Honour's factual findings or his statement of sentencing principle.
127 After the jury delivered its verdicts on 4 March 2015, his Honour remanded the appellant in custody and ordered the preparation of pre-sentence and psychological reports. In due course, those reports were prepared and provided to the court. References and letters attesting to the appellant's prior good character were also provided to his Honour.
128 On 24 April 2015, his Honour imposed a total effective sentence of 7 years' imprisonment, with parole eligibility after having served five years of that sentence, backdated to commence on 4 March 2015.
129 Leaving to one side the sentence imposed upon count 18, the details of the individual sentences imposed are as follows:
Indecent dealing of a child under 13 years: s 320(4) of the Criminal Code
12 months' imprisonment - cumulative (head sentence)
Indecent dealing of a child under 13 years: s 320(4) of the Criminal Code
Indecent dealing of a child under 13 years: s 320(4) of the Criminal Code
Sexually penetrating a child under 13 years: s 320(2) of the Criminal Code
Indecent dealing of a child under 13 years: s 320(4) of the Criminal Code
Sexually penetrating a child under 13 years: s 320(2) of the Criminal Code
Indecent dealing of a child under 13 years: s 320(4) of the Criminal Code
Sexually penetrating a child under 13 years: s 320(2) of the Criminal Code
Indecent dealing of a child under 13 years: s 320(4) of the Criminal Code
Sexually penetrating a child under 13 years: s 320(2) of the Criminal Code
Sexually penetrating a child under 13 years: s 320(2) of the Criminal Code
Indecent dealing of a child under 13 years: s 320(4) of the Criminal Code
Indecent dealing of a child under 13 years: s 320(4) of the Criminal Code
130 His Honour's description of the factual circumstances of the offences for which the appellant was convicted closely correlates with the descriptions given by A and D in their examination-in-chief. It is unnecessary to repeat those descriptions in light of what I have written at [21] - [34] and [43] of these reasons.
131 At the time he was sentenced, the appellant was one week shy of his 47th birthday. He was approximately 30 to 34 years of age when he committed the offences the subject of counts 2 to 6, 9 to 14 and 16 to 17. His parents separated when he was 17. His father, who no longer lives in Australia, was a senior prison officer.
132 The appellant has no criminal history, and only a minor and irrelevant traffic record. He served for approximately 20 years in the Royal Australian Navy and was honourably discharged in 2004, primarily as a result of some health problems. Thereafter, he completed a diploma of engineering and took on further studies at tertiary level. Prior to his trial, the appellant was employed as a lecturer at TAFE. The character references to which I have referred spoke very highly of the appellant. The appellant denies any issue with alcohol abuse or illicit substances. He does not suffer from any mental illness.
133 In her report dated 14 April 2015, clinical and forensic psychologist Tanina Oliveri reported that the appellant staunchly denied the offences and was disinterested in the psychological assessment. Ms Oliveri reported that the appellant:
(b) appeared unable to take responsibility for his poor behaviour or personal failings (page 2);
(d) posed a moderate risk of reoffending in a sexual manner (page 6).
134 His Honour took into account as mitigatory factors:
(a) the appellant's prior good character, including his service in the Royal Australian Navy (ts 605);
(c) the fact that the appellant stopped offending against A of his own volition (ts 605); and
(d) the additional hardship that the appellant will encounter in prison because of his father's employment as a prison officer (ts 605).
135 His Honour identified the following aggravating features of the appellant's offending:
(a) The young age and vulnerability of A and D (ts 601 - 602).
(b) The offending, save for counts 16, 17 and 18, constituted a gross abuse of trust (ts 598, 601).
His Honour also took into account the effect of the appellant's offending behaviour on A (ts 602).
136 His Honour found that the appellant committed the offences in the context of him regularly touching A's vagina and A performing oral sex on him approximately once every two weeks, and this conduct formed part of an ongoing pattern of sexual abuse of her (ts 601). His Honour also found that the appellant harboured a sexual interest in young girls, a sexual interest in A as a young girl and an ongoing interest in A as an adult (ts 601).
137 The relevant sentencing principles to be applied are well-known and may be briefly stated.
138 Unless the appellant demonstrates that the sentencing judge made a material express or implied error of fact or law, this court has no jurisdiction to intervene. A claim of manifest excess or an infringement of the totality principle is an allegation of implied error. Neither claim can succeed unless the appellant demonstrates that the individual or the total effective sentence was unreasonable or plainly unjust.
139 There are two limbs to the totality principle. The first limb requires that the total effective sentence bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and after having regard to all relevant circumstances, including those referrable to the appellant personally, and the total effective sentences imposed in comparable cases. The second limb is that the court should not impose a total effective sentence that is crushing. The word 'crushing' in this context connotes the destruction of any reasonable expectation of a useful life after release. The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26] (McLure JA, with whom Steytler P & Miller JA agreed).
140 The written submissions in support of the proposed ground of appeal emphasised the appellant's favourable personal circumstances and cited (largely without any analysis) a large number of cases said to be comparable; although, in his oral submissions, counsel focused upon this court's recent decision in LFG.
141 The maximum penalty for the offence of indecently dealing with a child under the age of 13 years is 10 years' imprisonment; for the offence of sexual penetration of a child under the age of 13 years, the maximum penalty is 20 years' imprisonment.
142 The offences, particularly those committed against A, were serious examples of their type because:
(a) The indecent dealing offences involved masturbation and rubbing of A's vagina.
(b) Although the sexual penetration offences did not involve the penile penetration of A's vagina, there were multiple offences of fellatio and cunnilingus.
(c) Save for counts 16 and 17, the appellant had conducted himself, in effect, as a father figure to A and D. He used that position to gain their trust, and the apparently good relationship he had with them to commit the offences and secure their secrecy.
(d) The offending was made more serious in respect of A by reason of her young age and vulnerability. The appellant groomed A, exploited her curiosity and, in a number of instances, portrayed his actions as a game.
(e) The offending against A was no momentary or isolated aberration. On the contrary, the offences were committed over a period of several years and were representative of a course of regular sexual abuse over that time. The regularity of the abuse normalised the conduct from A's perspective.
143 Sentences imposed in other cases provide a yardstick against which to measure the sentence under consideration with the aim of ensuring broad consistency and outcomes. However, they do not mark the boundaries within which the sentencing discretion is to be exercised. What is important is the unified principles which sentences imposed in comparable cases both reveal and reflect: Fenton v The State of Western Australia [2015] WASCA 255 [17] (McLure P).
144 The cases reveal that the primary sentencing consideration for offences of the type committed by the appellant are appropriate punishment and general and personal deterrence, with the aim of protecting vulnerable children from abuse. Matters personal to the offender carry less mitigatory weight. See The State of Western Australia v FJG [2012] WASCA 206 [56] (Mazza JA).
145 It is unnecessary to cite and describe the circumstances of all of the cases referred to by the appellant in his written submissions. As counsel for the appellant appeared to accept in his oral submissions, they were factually quite different to the present case (appeal ts 11 - 12). As I have said, counsel relied primarily upon LFG (appeal ts 12 - 13).
146 In that case, LFG was convicted after trial of one count of indecently dealing with a child under the age of 13 years, nine counts of indecently dealing with a child over the age of 13 and under the age of 16 years and five counts of sexually penetrating a child over the age of 13 and under the age of 16 years. LFG was sentenced to a total effective sentence of 7 years 10 months' imprisonment.
147 The offences committed by LFG occurred when he was aged between 64 and 67 years and the victim, a boy, was aged between 11 and 14 years. The offences involved mutual masturbation as well as fellatio by LFG upon the victim. This offending occurred over several years at various locations, including a hotel. LFG abused the trust that had been reposed in him by the victim's extended family, and ingratiated himself with the victim by providing him with expensive gifts. LFG had a prior history of committing sexual offences against children. At the time he was sentenced, LFG was 68 years of age. One of the grounds of appeal against sentence was that the total effective sentence infringed both limbs of the totality principle. This court unanimously refused leave on each proposed ground of appeal against sentence, the consequence being that the appeal was taken to have been dismissed.
148 Counsel for the appellant submitted that the facts and circumstances of the offending and the antecedents of LFG were worse than the present case, yet the sentences were numerically comparable. The appellant's counsel put it this way:
If [LFG] got 7 years, 9 months [sic: 10 months] for someone who had previously offended and done imprisonment for the self same thing, what does someone who's a first offender get (appeal ts 13)?
149 The appellant's approach to LFG is erroneous. As this court has said on numerous occasions in the past, the outcome in one case does not dictate the outcome in another case because there is no single correct sentence: Gangemi v The State of Western Australia [2014] WASCA 39 [5] (McLure P); Cairns v The State of Western Australia [2015] WASCA 198 [33] (reasons of the court) and Gurgone v The State of Western Australia [2016] WASCA 9 [38] (Mazza JA).
150 In VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [285] - [314], this court undertook a comprehensive analysis of a range of sentences in cases of sexual offending against children. The court's analysis in VIM revealed that sentences for multiple counts of sexual offending against children had significantly 'firmed up' since the same analysis was performed some 11 years before by Anderson J in Woods v The Queen (1994) 14 WAR 341. Relevantly in VIM:
(a) The court examined a large number of cases, set out in Schedule A to those reasons, in which the offenders had committed more than five sexual offences and had pleaded guilty. The most common sentence was approximately 6 years 8 months, and about two thirds of the sentences in such cases fell between a range of 6 years 8 months to 12 years 8 months [300] - [309].
(b) In respect of sentences imposed after trial, the sample was too small and too diverse to be reliable. The court considered that it was more appropriate to scale up the sentences imposed after a plea of guilty by approximately one third to arrive at a range of sentences between 10 and 19 years 'in most cases of very serious repeated sexual offending where the offences are representative of a course of conduct' [299], [310] - [312].
151 Since VIM, other cases have been decided with respect to sentences imposed after trial for multiple sexual offences against children. Some of them are referred to in FJG [59] - [60]. In my opinion, the comparable cases do not support the appellant's contention that the total effective sentence was erroneous.
152 In my opinion, the total effective sentence imposed upon the appellant bore a proper relationship to the overall criminality involved in his offending, viewed in its entirety, and having regard to all the circumstances of the case, including the mitigating factors and those other circumstances referable to him personally, and all relevant sentencing principles. It is not reasonably arguable that the sentence infringed the first limb of the totality principle. Nor is it reasonably arguable that the sentence infringed the second limb. If the appellant serves the whole of the sentence imposed, he will still be of an age where he will have a useful life after his release.
153 If, and to the extent that the question whether any of the individual sentences was manifestly excessive remains live, the appellant has not demonstrated that it is reasonably arguable that any individual sentence was manifestly excessive. In particular, when each individual sentence is viewed from the perspective of the maximum penalty, the sentencing standards for the offence in question (including the sentences imposed in prior cases with at least some features comparable to the appellant's offending), the objective seriousness of the appellant's offending, the vulnerability of the victims, the mitigating factors, the appellant's other personal circumstances and all relevant sentencing objectives, it cannot reasonably be contended that the individual sentence was unreasonable or plainly unjust.
154 Counsel for the appellant alleged that there was some 'difficulty' with his Honour's sentencing remarks insofar as they may have suggested that the result in some of the comparable cases may have been driven according to whether the victims were boys or girls (appeal ts 13). The written submissions dwell upon this at some length. It is enough to say that I do not read his Honour's remarks as making the alleged distinction.
Conclusion and orders - application for leave to appeal against sentence
155 In my opinion, the appellant has fallen a long way short of demonstrating a reasonably arguable case of implied error with respect to the individual sentences and the total effective sentences that were imposed upon him. The proposed ground of appeal has no reasonable prospect of succeeding. Leave to appeal must be refused, with the consequence that the appeal must be taken to be dismissed.
156 The orders that I would make in respect of the application for leave to appeal against sentence (CACR 89 of 2015) are:
[1] A said she used the words 'clitoris' and 'vagina' interchangeably (ts 147).
[3] Reduced from 18 months' imprisonment for totality reasons: ts 606.
(2015) 48 WAR 178
(2008) 37 WAR 297
(2007) 34 WAR 302
(1986) 61 ALJR 1
(2000) 201 CLR 488
(1996) 190 CLR 348
(1992) 26 NSWLR 450
(2005) 31 WAR 122
(2005) 31 WAR 1
(1994) 14 WAR 341
(2002) 213 CLR 606
(2006) 225 CLR 303