LFG -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 88 (4 May 2015)

LFG -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 88 (4 May 2015) - WASCA 2015 case summary — Zoe

[181]

The State was permitted to adduce the evidence of [the appellant's] prior offences and prior conduct involving [MSO] for one principal purpose. The State was permitted to adduce the evidence in an attempt to establish that [the appellant] has a sexual interest in boys of the age range of 11 to 14 or thereabouts, that he is prepared to act on that sexual interest by ingratiating himself with the boy in question and proceeding to engage in sexual conduct with that boy and that he is therefore more likely to have committed the offences with which he is charged in the indictment before you. If you are satisfied beyond reasonable doubt that the evidence of [the appellant's] prior sexual offending against the four other boys does establish that he has a sexual interest in boys of approximately the same age as the complainant, that he is prepared to act on that sexual interest by ingratiating himself with the boy in question and then proceeding to engage in sexual conduct with the boy, and that he is therefore more likely to have committed one or more of the offences with which he is currently charged, you can take those findings into account in deciding if the State has proved beyond reasonable doubt one or more of the offences with which he is charged. If you are not satisfied beyond reasonable doubt that [the appellant's] commission of the prior offences does establish that he has a sexual interest in boys of about the same age of the complainant and that he was prepared to act on that sexual interest and that he is therefore more likely to have committed any one of the offences with which he is currently charged, then the evidence that you have heard [of] those other incidents will, subject to what I will say in a moment about one aspect of the evidence, be irrelevant to your determination of whether [the appellant] committed any of the offences with which he is charged. So really it comes down to this. If you are satisfied beyond reasonable doubt that the evidence of the prior offences makes it more likely that [the appellant] committed the offences with which he is charged, you can take that finding into account in deciding if the State has proved one or more of the charges on the indictment beyond reasonable doubt. Having told you what use you can make of the evidence of [the appellant's] prior offences I'm going to tell you now what you must not do. What you must not do is reason that simply because [the appellant] has a sexual interest in boys of the complainant's age and is prepared to act on that sexual interest, assuming you come to the view that you're satisfied beyond a reasonable doubt of those matters, that [the appellant] must necessarily have committed one or more of the offences with which he is charged as having committed against the complainant. It would be wrong of you to reason in that way.

Proof that [the appellant] does have a sexual interest in boys of the complainant's age and is prepared to act on that interest, or at least was in the past prepared to act on that interest, is not in itself proof that he had a sexual interest in the complainant and acted on that sexual interest by [committing] one or more of the offences with which he is charged. The fact is that proving that a person is sexually interested in males of a certain age and acted on that sexual interest on one or more [other] occasions does not compel the conclusion that he did a similar thing again on a later occasion. People do not always act in accordance with all their inclinations at every opportunity.[47]

[252]

The assessment of credibility is essentially a subjective matter, although some objective considerations might come into play in forming the platform from which the assessment is made. Section 118(6) is of no direct assistance to the appellant here. That was the view taken by the trial judge when the application was made to abort the trial (ts 3826). In my opinion his Honour was correct in coming to that conclusion.

It is true that a free exchange of views and ideas can be very helpful in the decision making process. Everyday experience indicates that the physical and mental process of having to articulate propositions and to listen to the reaction of others can clarify thinking. But, equally, in everyday experience important decisions are made by individuals without the benefit of interaction with others. Judges make decisions for a living and they often arise in complex circumstances and involve the expenditure of considerable intellectual effort. Assessments of credibility fall into this category. While the trial judge may be deprived of the advantage of a free interchange of ideas with peers he or she has an advantage that ordinary members may lack. Trial judges have consistent and continuing experience of fact-finding and of the making of the decisions in a situation that demands an objective and dispassionate mind.

I am not suggesting that juries are incapable of making objective and dispassionate decisions. A judge's charge to a jury will almost always include directions to that effect and I have no reason to believe that jury members do other than pay due and faithful regard to the instruction. But the day to day working life of a judge will often involve dealing with evidence in ways that are outside the normal experience of members of the public. For example, a judge will often be required to put to one side inadmissible evidence (of which he or she is cognisant) in assessing credibility or deciding other disputed issues. Another example is having regard to an item of evidence for one purpose and yet disregarding it in relation to another contentious issue within the same case. When matters of that nature arise in a jury trial there is a need for careful direction to guide the jury in relation to them. The experience gained by a trial judge over time in relation to a wide range of fact-finding methods can be a peculiar advantage.[61]

[255]

By s 118(4) of the Criminal Procedure Act, on an application by an accused under s 118(1), the court may order that the trial of the charge against the accused be by a judge alone without a jury if, relevantly, it considers it is 'in the interests of justice' to do so.

Section 118(5) sets out some specific circumstances in which the court may make the order. In particular, the court may make the order if it considers:

(a) the trial, due to its complexity or length or both, is likely to be unreasonably burdensome to a jury; or

(b) it is likely that acts that may constitute an offence under s 123 of the Criminal Code would be committed in respect of a member of a jury.

Section 118(6) sets out some specific circumstances in which the court may refuse to make the order. In particular, the court may refuse to make the order if it considers the trial will involve a factual issue that requires the application of objective community standards such as an issue of reasonableness, negligence, indecency, obscenity or dangerousness.

Significantly, the specific circumstances referred to in s 118(5) and s 118(6) are expressed to be without limitation to s 118(4). It follows, in my opinion, that the general criterion for the determination of an application under s 118(1) is whether the court considers it is 'in the interests of justice' to make the order. Section 118(5) specifies particular circumstances where the Parliament considers it will be 'in the interests of justice' to make the order, and s 118(6) specifies particular circumstances where the Parliament considers it will not be 'in the interests of justice' to make the order.

The expression 'in the interests of justice' in s 118(4) has a broad connotation. It will be 'in the interests of justice' to order a trial before a judge alone without a jury if that is necessary to ensure the accused receives a fair trial according to law. It will be necessary if there is a real and substantial (as distinct from a remote) doubt as to whether the accused will receive a fair trial according to law before a judge sitting with a jury. These observations on the expression 'in the interests of justice' in s 118(4) are not intended to be exhaustive. There may be other circumstances in which it will be 'in the interests of justice' to order a trial before a judge alone without a jury. It is unnecessary in the present case to rule on the correctness of the different views on the application of s 118 expressed in The State of Western Australia v Martinez [2006] WASC 25; (2006) 159 A Crim R 380 (EM Heenan J), Arthurs v The State of Western Australia [2007] WASC 182 (Martin CJ) and TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183 (McKechnie J).

The breadth of the discretion conferred by s 118(4) indicates that it is to be exercised by reference to the particular facts and circumstances which exist when the application is heard and determined.[62]

[265]

Any argument predicated on unfairness arising from publicity has to recognise that jurors are capable of understanding and applying the directions that they are given. There will be cases where the prejudice is likely to be so ingrained as to be resistant to directions. That, in my view, is more likely to be the case where the adverse publicity relates specifically to the accused. The more it relates to a wider group of which the accused is said to be a member, the easier it is for a jury to identify it as mere prejudice and put it aside.

That is the case here, in my view. Publicity relating to the proposed OMCG anti-association laws, the alleged criminal activities of OMCGs generally and the offending of other OMCG members including Benjamin Sipkes, is readily identifiable as information which would not be relevant in determining the live issues in this case. That is not to say that there is no risk that pre-trial publicity has the potential to prejudice a jury, but the mere existence of a risk could not justify a conclusion that the interests of justice require a trial by judge alone. That would ignore the degree and nature of the risk and the efforts that could be made to minimise it. If any risk was sufficient then any case which attracted pre-trial publicity would likely result in trial by judge alone on an application by the accused.

The interests of justice does not assume a preference for one form of trial over the other. Each has its advantages and disadvantages as to which see Arthurs. However, the interests of justice must take into account that juries properly directed are capable of ignoring prejudicial publicity and returning a true verdict on the evidence. In the present case I am not convinced that any prejudice is likely to be 'wide spread or entrenched' (Rayney [88]), or that the views of potential jurors are likely to be 'preconceived as to guilt' (Rayney [92]). This is a case which clearly in my view is one where appropriate directions to a jury would be effective in obviating the risk of potential prejudice from publicity. Accordingly the application is refused.[70]

[491]

On 26 August 2005 [the appellant] was convicted of 7 offences.
At the time of the offending [the appellant] was about 59 years of age and the local [country town] schools' bus driver and unofficial photographer.
[The appellant] came to know the victim VP as VP lived on a farm property and daily caught the school bus driven by [the appellant] to school.
The victim VP showed an interest in photography and [the appellant] agreed to teach him photography and then offered him employment as a casual assistant. VP was taken go-karting, bike riding and allowed to play computer games on [the appellant's] computer.
Between February and November 2003 [the appellant] indecently dealt with VP. VP was 13 years of age. Following a holiday in [rural Western Australia] VP went to see [the appellant] to tell him about his holiday. While VP was standing next to him, [the appellant] leant forward and stuck his hands under VP's pants and underpants and started playing with his penis. [The appellant] did this for about 1 minute. VP told him to stop and he did so.
Between February and November 2003 [the appellant] indecently dealt with VP. VP travelled with [the appellant] to [rural Western Australia] to attend and photograph a Vietnam Veterans function. On the way to [rural Western Australia] [the appellant] placed his hand on the outside of VP's clothing and rubbed his penis until he had an erection, this lasted about 1 minute.
Between December 2003 and January 2004 [the appellant] indecently dealt with VP. VP was visiting [the appellant] at his house. VP was seated on the floor of the computer room putting games on a laptop computer. [The appellant] pulled down his pants and underpants and commenced to masturbate in front of VP and continued to do so for 30 seconds to 1 minute.
Between 1 December and 31 December 2003 [the appellant] indecently dealt with KAG. KAG was 11 years of age. KAG was visiting [the appellant's] house with another victim MSO. [The appellant] drove KAG and MSO to a remote spot where he had previously gone go-karting. [The appellant] made available to KAG some pornographic magazines that were in his vehicle. [The appellant asked KAG whether he had a 'boner', meaning an erection. Whilst KAG was in the rear of the vehicle [the appellant] leant through the two front seats, reached over and put his hands down his pants and underpants and rubbed his penis for several seconds.
Between January and February 2004 [the appellant] encouraged MSO to do an indecent act. MSO was 11 years of age. MSO commenced to visit [the appellant] at his house after he had been go-karting with [the appellant] and VP. On this occasion MSO was reading pornographic books at the rear of [the appellant's] van. [The appellant] asked MSO if he would show him his penis. MSO initially declined. [The appellant] requested 3 further times until eventually MSO pulled his pants down and exposed his penis to [the appellant].
Between January and February 2004 [the appellant] indecently dealt with MSO. MSO accepted a lift in [the appellant's] car and was driven to [the appellant's] farm. On the way to the farm [the appellant] purchased some pornographic magazines. On arriving at the farm [the appellant] read the contents of the pornographic magazines to MSO and talked about the contents. [The appellant] then asked MSO if he had an erection and then placed his hand on MSO's pants to see if MSO had an erection for a few seconds.
On 5 February 2004 [the appellant] indecently dealt with MJT. MJT was 11 years of age. MJT was offered and accepted a lift from [the appellant] to take him a short distance to a house where he had to report after school. Before picking MJT up [the appellant] spoke to him about sexual matters. Once in the car [the appellant] asked MJT if he had a 'boner', meaning an erection, and other sexual matters. [The appellant] then placed his hand on MJT's penis over his clothing and rubbed MJT's penis for a few seconds.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (742 paragraphs)

LFG -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 88 (4 May 2015)

The State of Western Australia v Martinez[51]

Arthurs v The State of Western Australia[55]

TVM v The State of Western Australia[58]

Coates v The State of Western Australia[60]

The State of Western Australia v Rayney[63]

The State of Western Australia v Schmidt[69]

Schmidt v The State of Western Australia [No 3][71]

Bell v The State of Western Australia [No 2][73]

The application of these principles to the present case

The absence of any forensic evidence or any other corroborative evidence

The absence of any confession or admission by the appellant

The evidence relating to the appellant's circumcision

The evidence relating to the time of the motel check-ins

The evidence relating to the offences in the country

The absence of any sexual or affectionate references in any of the Facebook communications

The evidence relating to the Point Peron incident

Legislation Cited (2)

Cases Cited (37)