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[2015] WASCA 88
Court of Appeal (WA)
2015-05-04
Martin CJ
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : LFG -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 88
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Criminal law - Jurisdiction, practice and procedure - Trial by judge alone - Section 118 of the Criminal Procedure Act 2004 (WA) - Principles guiding the exercise of the discretion to order trial by judge alone
Criminal law - Evidence - Propensity evidence - Whether risk of unfair trial outweighs probative value - Turns on own facts
Criminal law - Appeal against conviction - Whether verdicts inconsistent - Whether verdicts were unsafe and unsatisfactory - Turns on own facts
Criminal law - Appeal against conviction - Application of the proviso - Turns on own facts
Criminal law - Appeal against sentence - Totality principle - Whether total effective sentence manifestly excessive - Whether sentence crushing due to appellant's age - Turns on own facts
Criminal Procedure Act 2004 (WA), s 98, s 118, s 119, s 120
Evidence Act 1906 (WA), s 31A
AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27
APC v The State of Western Australia [2012] WASCA 159
Arthurs v The State of Western Australia [2007] WASC 182
Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92
BDS v The State of Western Australia [2009] WASCA 215
Bell v The State of Western Australia [No 2] [2014] WASC 260
Braham v The Queen [1994] NTCCA 60; (1994) 116 FLR 38
Buiks v The State of Western Australia [2008] WASCA 194; (2008) 188 A Crim R 362
Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
Chiha v The State of Western Australia [No 2] [2015] WASC 147
Coates v The State of Western Australia [2009] WASCA 142
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Downie v The State of Western Australia [2013] WASCA 244
Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237
EPD v The State of Western Australia [2011] WASCA 264
FGC v The State of Western Australia [2008] WASCA 47
GGM v The State of Western Australia [2011] WASCA 259
Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539
Hinch v Attorney General (Vic) [1987] HCA 56; (1987) 164 CLR 15
Horsman v The State of Western Australia [2008] WASCA 190; (2008) 187 A Crim R 565
House v The King [1936] HCA 40; (1936) 55 CLR 499
JAW v The State of Western Australia [2012] WASCA 7
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
JS v The State of Western Australia [2012] WASCA 198
Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
M v The State of Western Australia [2006] WASCA 256
Mack v The State of Western Australia [2014] WASCA 207
MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194
NCH v The State of Western Australia [2013] WASCA 29
Ninyette v The State of Western Australia [2012] WASCA 184
PP v The State of Western Australia [2004] WASCA 144
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Glennon [1992] HCA 16; (1992) 173 CLR 592
R v Hunter (1984) 36 SASR 101
R v Iles [2009] VSCA 197
R v Kirkman (1987) 44 SASR 591
R v Whyte [2004] VSCA 5; (2004) 7 VR 397
Reeves v The Queen [2013] HCA 57; (2013) 88 ALJR 215
RFS v The State of Western Australia [2012] WASCA 58
Riley v The State of Western Australia [2007] WASCA 22
Rowan v The State of Western Australia [2009] WASCA 185
Schmidt v The State of Western Australia [No 3] [2014] WASC 156
Scrutton v The Queen [2000] WASCA 360
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Smith v The State of Western Australia [2010] WASCA 176
Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319
Stubley v The State of Western Australia [2010] WASCA 36
Stubley v The State of Western Australia [2011] HCA 7; (2011) 242 CLR 374
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
The State of Western Australia v Brown [No 2] [2013] WASC 280
The State of Western Australia v FJG [2012] WASCA 206
The State of Western Australia v Martinez [2006] WASC 25; (2006) 159 A Crim R 380
The State of Western Australia v Osborne [2007] WASCA 183
The State of Western Australia v Prince [2011] WASCA 22
The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383
The State of Western Australia v Schmidt [2012] WASC 172
Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510
TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
WCW v The State of Western Australia [2008] WASCA 232; (2008) 191 A Crim R 22
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Williams v Smith [1960] HCA 22; (1960) 103 CLR 539
Woods v The Queen (1994) 14 WAR 341
1 These are appeals against the appellant's conviction on one count of indecent dealing with a child under the age of 13 years, nine counts of indecent dealing with a child of or over the age of 13 and under the age of 16 years, and five counts of sexual penetration of a child of or over the age of 13 and under the age of 16 years, after trial by jury in the District Court of Western Australia, and against the total effective sentence of 7 years 10 months imprisonment imposed upon the appellant following his convictions.
2 All the charges on the indictment brought against the appellant alleged offences committed in relation to a single male complainant, who was aged between 11 and 14 at the time of the alleged offences, and who had a familial relationship with the appellant, although the complainant was not a member of the appellant's immediate family. Prior to the trial, Stevenson DCJ ruled that evidence of the appellant's prior conviction of seven sexual offences committed against four boys who were aged 11 and 13 at the time of the offences was admissible pursuant to s 31A of the Evidence Act 1906 (WA).
3 After that ruling the appellant applied for an order for trial by judge alone[1] essentially on the ground that such an order was in the interests of justice because it would eliminate any risk of an unfair trial as a result of the admission into evidence of his prior convictions. That application was dismissed by the Chief Judge.
4 The appellant was tried on an indictment containing 33 counts. The trial judge directed the jury to enter a verdict of acquittal on six of those counts after upholding a submission that the appellant had no case to answer in relation to those counts. Of the remaining 27 counts, the jury returned verdicts of guilty on 15 counts and verdicts of not guilty on the remaining 12 counts.
5 There are five grounds of appeal against conviction. The first ground asserts that the Chief Judge erred in dismissing the appellant's application for an order for trial by judge alone. The second and third grounds assert that Stevenson DCJ erred in ruling the evidence of the appellant's prior convictions admissible pursuant to s 31A of the Evidence Act. The fourth ground asserts that the appellant's convictions are unsafe and unsatisfactory because they are inconsistent with the jury's verdicts of acquittal on 12 of the counts on the indictment. The fifth ground asserts that the convictions are unsafe and unsatisfactory having regard to all the evidence and all the circumstances of the case.
6 For the reasons which follow, the first ground of appeal relating to the dismissal of the appellant's application for an order for trial by judge alone should be upheld, the appellant's convictions quashed, and a retrial ordered, on the ground that the consequence of the error was to deny the appellant a trial quite different in character to the trial which he received. However, the four other grounds of appeal against conviction and the appeal against sentence should be dismissed.
7 The appellant was arraigned on an indictment which alleged 33 separate offences of either indecent dealing or sexual penetration of the complainant. Three of the counts of indecent dealing related to a time at which the complainant was under the age of 13. The remaining counts of indecent dealing, and all the counts of sexual penetration were alleged to have occurred at a time when the complainant was between 13 and 16 years of age. The first offence in time was said to have occurred in the latter half of 2009, and the other offences were said to have occurred at various times between then and May 2012. A table setting out each offence alleged, and the date upon which that offence was alleged to have occurred, is at [82] below.
8 The conduct of the appellant alleged to constitute the commission of the offences included procuring the complainant to show him his pubic hair, asking the complainant to show him his penis, masturbating the complainant, performing fellatio on the complainant, and procuring the complainant to masturbate the appellant.
The admission of the evidence of the appellant's prior convictions
9 Prior to trial the prosecution applied for a ruling as to the admissibility of the evidence of the appellant's prior convictions.[2] For present purposes it is sufficient to identify that evidence by reference to the statement of agreed facts tendered by consent at the appellant's trial, following Stevenson DCJ's ruling that evidence of the prior convictions was admissible. That statement established the following.
10 On 26 August 2005 the appellant was convicted of seven offences. At the time of the offences, the appellant was about 59 years of age and engaged as the school bus driver and unofficial photographer in a country town in the Wheatbelt.
11 One of the victims (VP) showed an interest in photography and the appellant agreed to teach him photography and offered him employment as a casual assistant. VP engaged in various recreational activities with the appellant and was allowed to play computer games on the appellant's computer.
12 The appellant indecently dealt with VP between February and November 2003. VP was 13 years of age at the time. VP went to see the appellant in order to tell him about his recent holiday. While VP was standing next to the appellant, the appellant leant forward and stuck his hands under VP's pants and underpants and started playing with his penis. The appellant did that for about one minute before VP told him to stop and he did so.
13 On another occasion VP travelled with the appellant to a site in rural Western Australia to attend and photograph a function. On the way to the site the appellant placed his hand on the outside of VP's clothing and rubbed his penis until he had an erection. The incident took approximately one minute.
14 The appellant again dealt indecently with VP between December 2003 and January 2004. While VP was at the appellant's house, the appellant pulled down his pants and underpants and masturbated himself in front of VP for between 30 seconds and one minute.
15 Between 1 December and 31 December 2003, the appellant indecently dealt with another victim, KAG, who was then 11 years of age. KAG was visiting the appellant's house with another victim, MSO. The appellant drove both boys to a remote spot, where he offered pornographic magazines to KAG. After KAG looked at the magazines, the appellant asked him if he had an erection. While KAG was in the rear of the vehicle, the appellant leant through from the front seat and put his hands down KAG's pants and underpants and rubbed his penis for several seconds.
16 Between January and February 2004, the appellant encouraged MSO, who was then 11 years of age, to engage in an indecent act. MSO was reading pornographic books in the rear of the appellant's van. The appellant asked MSO if he would show him his penis. MSO initially declined, although after being requested three more times he eventually pulled his pants down and exposed his penis to the appellant.
17 During the same period, the appellant indecently dealt with MSO by reading the contents of pornographic magazines to him and talking about their contents, then asking MSO if he had an erection, then placing his hands on MSO's pants for a few seconds in order to see if in fact MSO had an erection.
18 On 5 February 2004 the appellant dealt indecently with MJT, who was then 11 years of age. The appellant offered MJT a lift to a house where MJT had to report after school. Before commencing the journey, the appellant spoke to MJT about sexual matters and during the journey the appellant asked MJT if he had an erection. The appellant then placed his hand on MJT's penis over his clothing and rubbed MJT's penis for a few seconds.
19 The appellant opposed the admission of the evidence of his prior convictions, submitting that the evidence went no further than establishing generalised sexual behaviour, which was not significantly probative of the matters in issue in the charges which were pending.
20 The prosecution submitted that the evidence had significant probative value because it demonstrated that the appellant had a sexual interest in young boys between 11 and 13 years of age, and that as a mature adult male he was prepared to commit offences of a sexual nature against them. The State also asserted that an aspect of the offence committed against MSO bore a striking similarity to the manner in which the prosecution asserted that the appellant commenced his offending against the complainant in the charges then pending. MSO had given a statement to police to the effect that the appellant questioned whether he had pubic hair before asking him to show him his penis. The prosecution case was to the effect that the appellant had a similar conversation with the complainant at the outset of the sustained period of sexual offending alleged by the State. The State also asserted that the prior convictions established a propensity to transform existing relationships which the appellant had with young boys, such as the complainant, into a sexual relationship.
21 Stevenson DCJ ruled that the evidence was admissible pursuant to s 31A of the Evidence Act. In his reasons, he outlined the charges pending against the appellant and observed that as the appellant denied any improper or indecent dealing with the complainant, the issue in the case would turn largely upon the credibility of the complainant and the accused, and in particular whether the prosecution could establish beyond reasonable doubt the elements of each offence charged in that context.
22 Stevenson DCJ considered that the evidence was relevant, and significantly probative because it could rationally affect the probability of the facts alleged by the prosecution having occurred. Stevenson DCJ considered that there was a 'high degree of similarity' between the offences of which the appellant was convicted, and the offences he was alleged to have committed. In his view the prior convictions demonstrated that the appellant had a propensity to engage in sexually offensive behaviour against young boys between 11 and 13 years of age.
23 In addressing the question of whether the probative value of the evidence, compared to the degree of risk of an unfair trial was such that fair-minded people would think that the public interest in adducing all relevant evidence should take priority over the risk of an unfair trial, Stevenson DCJ expressed the view that s 31A had the effect of allowing:
[T]he introduction of evidence which would, in every case, be prejudicial to the accused by reason of its nature. The issue is whether the evidence is so prejudicial that it would prevent the accused from having a fair trial on the issues, the subject of the indictment.[3]
24 In that context, Stevenson DCJ expressed the view that the trial judge would be able to give a direction to the jury 'in proper terms and with sufficient judicial force' to explain the manner in which they could use the evidence of the appellant's prior convictions, and it should be assumed that the jury will understand and act in accordance with such directions. That observation caused Stevenson DCJ to conclude that he was not persuaded that the appellant would have an unfair trial if the propensity evidence was placed before the jury.
25 Shortly after Stevenson DCJ ruled the evidence of the appellant's prior convictions to be admissible, the appellant applied for trial by judge alone. That application was heard by Chief Judge Martino. Although the trial was to commence the following month, at that stage the identity of the trial judge was not known to the parties.[4]
26 On behalf of the appellant it was submitted that there was a risk that one or more jurors may find it difficult to exclude from consideration the prejudicial effect of evidence to the effect that the appellant had previously interfered sexually with four young boys in approximately the same age group as the complainant. Reliance was placed upon the express recognition of that risk in the wording of s 31A of the Evidence Act. It was submitted that an order for trial by judge alone would eliminate that risk and would have no detrimental effects because trial by judge alone would be quicker and therefore less expensive for all parties.
27 In his reasons for dismissing the application, Chief Judge Martino observed that the case did not fall within s 118(6) of the Criminal Procedure Act 2004 (WA) because there was no factual issue which would require the application of objective community standards such as indecency, because the only question in the case would be whether the prosecution had proven to the requisite standard that the alleged offending conduct occurred.
28 Chief Judge Martino cited with approval observations made by Commissioner Sleight in The State of Western Australia v Rayney[5] to the effect that the interests of justice comprehended by s 118(6) were not narrow and varied from case to case. He also cited with approval observations made by Hall J in The State of Western Australia v Schmidt[6] in which his Honour observed:
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.
29 Chief Judge Martino expressed the view that similar principles applied to the appellant's case, relying also upon observations made by McKechnie J in TVM v The State of Western Australia:[7]
[I]t is the law and the experience of the law that juries are, when properly directed, able to put aside prejudice and sympathy, and deliver verdicts on the facts in a dispassionate manner.
Now, in this case, the accused wishes there to be trial by judge alone. That, of course, does not determine the application but it is a relevant factor that I bear in mind in making this decision. I also bear in mind that juries are capable of ignoring prejudice and delivering a true verdict according to the evidence.
In my view, the jury will be able to put aside prejudice and impermissible reasoning if a jury does sit on this trial and is the tribunal of fact, particularly with appropriate directions from the trial judge.
Bearing in mind those matters, it is my view that another factor that is relevant is that there is a public interest in appropriate cases that representatives of the community in the form of members of the public who are randomly selected for jury duty, to accept their public responsibility and determine the issue of whether the State has proved an accused person is guilty of a charge that that person faces.
In my view, because I can be confident that a jury, properly directed, could put aside impermissible reasoning and any prejudice, notwithstanding the desire of the accused and the practical matters to which Mr Percy has referred ... I reach the conclusion that it is not in the interests of justice for there to be trial by judge alone in this case. As Hall J has said, each form of trial has its advantages and disadvantages.
I therefore conclude that the application should be dismissed and I dismiss the application.[8]
31 The appellant was arraigned before Derrick DCJ and a jury in a trial which lasted nine days. It will be necessary to refer in greater detail to the evidence given during the course of the trial in the context of the specific grounds of appeal. For present purposes it will be sufficient to outline the general course of the trial.
32 During the course of the prosecutor's opening, he referred to the agreed statement of facts with respect to the appellant's prior convictions for sexual offences against four boys who were about the same age as the complainant.
33 A short time later, after the opening address of counsel for the appellant, the trial judge referred the jury to the evidence of the appellant's prior convictions and told the jury that the State would contend that the appellant's sexual interest in boys of around the complainant's age made it more likely that he had committed one or more of the offences with which he was charged.
34 The trial judge foreshadowed more detailed directions with respect to the use which the jury could make of this evidence later in the trial. However, he made two points to the jury at this early stage of the trial. The first was that it was for the jury to determine whether the appellant's prior convictions made it more likely that he committed one or more of the offences with which he had been charged. If so, they were able to take his convictions into account in deciding whether the State had proven one or more of the charges beyond reasonable doubt. The second point made by the trial judge was that the evidence of prior convictions was not by itself proof of one or more of the offences with which the appellant had been charged, and the jury must not reason that simply because the appellant had committed offences in the past, he must have committed one or more of the offences with which he had been charged. In the context of the second point, the trial judge directed the jury that people do not always act in accordance with all their inclinations on every opportunity.
35 After these directions to the jury, the prosecutor read to the jury the statement of agreed facts relating to the appellant's prior convictions, which was received in evidence as an exhibit.
36 The first day of trial was largely occupied by the viewing of the complainant's pre-recorded evidence, which comprised the bulk of his evidence-in-chief. That evidence had been pre-recorded on 6 June 2012, a little over a year before the commencement of the trial.
37 On the second day of trial the complainant gave evidence on oath in accordance with the arrangements that customarily apply to vulnerable witnesses. He was then 15 years of age. He gave further evidence-in-chief significantly augmenting the evidence which had been pre-recorded.
38 During cross-examination the complainant was asked about his knowledge of the appellant's prior convictions. The complainant's evidence was that the appellant often talked to him about those convictions and protested his innocence of the charges.
39 In cross-examination, it was put to the complainant that nothing of any sexual nature ever took place between him and the appellant. The complainant refuted that assertion.
40 The complainant gave evidence to the effect that he communicated with the appellant using Facebook, although the appellant used the false name of Michael Delore. A print of the Facebook communications between the complainant and the appellant over the period between 24 May 2011 and early June 2012 was received in evidence. In those communications, a coded welcome was commonly used by each.
41 The complainant's recollection of the detailed events relating to each alleged offence was tested in an extensive cross-examination. It is fair to say that the complainant had greater recall of some events than others.
42 The complainant was also asked about his observations of the appellant's penis, and in particular whether it appeared to have been circumcised. The complainant said:
It looked - it had skin there. It wasn't entirely circumcised but it wasn't entirely uncircumcised. He had told me about a surgery that he had and it was apparent that he didn't have a full foreskin but he hadn't been completely circumcised also.[9]
43 It was put to the complainant that during his pre-recorded interview he had said that the appellant 'didn't really have' a foreskin. The complainant explained that what he meant was that the appellant did not have a full foreskin - he was partially circumcised, so that when the penis was not erect, the head of the penis could be seen slightly - 'the very end of it'.[10] It was put to the complainant that he had never seen the appellant's penis and that his statement to police to the effect that the appellant did not have a foreskin was quite wrong. The complainant refuted those assertions.
44 The prosecution also adduced evidence from the complainant's grandmother, who is also the appellant's aunt. She gave evidence of the association between the complainant and the appellant, and of particular occasions upon which they were together, both in the metropolitan area and in the Wheatbelt.
45 The prosecution also led evidence from the assistant manager of the Ocean Clipper Inn, which is a hotel in Rockingham. Her evidence was to the effect that the appellant was a regular guest at the hotel, and had a preference for a particular room. She also gave evidence of a number of specific occasions upon which the appellant had stayed at the hotel and produced invoices bearing the name of the appellant showing the charges levied by the hotel on those occasions.
46 By agreement between the parties, the prosecutor read into evidence part of a statement made by MSO, one of the victims of the offences previously committed by the appellant. The portions read to the jury related to a conversation between MSO and the appellant in which the appellant asked him if he had pubic hair, after which he asked to see MSO's genitals. MSO pulled his pants and underpants down, and the appellant looked at his penis for about five seconds. The statement read into evidence also dealt with other aspects of the offences committed by the appellant against MSO. The written portion of the statement read into evidence was also tendered as an exhibit, and was thereafter described as an addendum to the statement of agreed facts relating to the appellant's prior convictions.
47 After part of the statement was read to the jury, the trial judge reminded the jury of the directions that he had given at the commencement of the trial with respect to the evidence of the appellant's previous convictions. He reminded the jury that the State relied upon the evidence of the appellant's sexual interest in boys of about the same age as the complainant and that such evidence made it more likely, according to the State, that the appellant committed the offences with which he had been charged.[11] The trial judge reminded the jury of his earlier warning that the evidence of the prior conduct was not, of itself, proof of the appellant's commission of the offences charged, and that it was impermissible for the jury to reason that simply because the appellant had previously engaged in this type of conduct, he must necessarily have committed the offences with which he had been charged.[12]
48 The prosecution led evidence from the complainant's mother who gave evidence of the general association between the complainant and the appellant, and of particular occasions upon which they were together.
49 After non-contentious evidence was provided to the jury in the form of statements of evidence which were read to them, and documents which were tendered by consent, a video recording of the execution of a search warrant at the appellant's home was tendered in evidence and played to the jury. A video recording of the appellant's interview by police on 12 June 2012 was then tendered and played to the jury. During that interview the appellant admitted that he had an acquaintance with the complainant, and that he was with the complainant on many of the occasions upon which it was alleged by the complainant that sexual misconduct occurred. The appellant admitted that the complainant had been to the Ocean Clipper Hotel in Rockingham with him. However, the appellant did not admit any of the alleged sexual misconduct.
50 Following closure of the prosecution case, the trial judge upheld a submission to the effect that there was no case to answer in respect of counts 16 - 21 inclusive on the indictment.
51 The appellant gave evidence in his defence. Although he admitted that he had been convicted of the offences described in the agreed statement of facts presented to the jury, he denied any sexual interest in boys and denied any sexual interest in the complainant in particular.[13] He admitted that he had had a lot to do with the complainant, but denied that there was any sexual aspect to their relationship.
52 During his evidence-in-chief, the appellant gave evidence to the effect that he had undergone a partial circumcision as an adult. His evidence was to the effect that the procedure left him with a foreskin which entirely covered the head of the penis.[14] According to the appellant, his appearance had the appearance of being uncircumcised. Three photographs of the appellant's penis in a flaccid state were tendered in evidence.
53 The appellant was cross-examined in relation to his prior convictions. He admitted that he had given evidence on oath denying the offences, and that he was disbelieved by the jury.[15] However, the appellant maintained his denial of any sexual interest in the four boys the subject of his previous convictions, and his denial of any sexual interest in the complainant.[16] He maintained his innocence of the prior convictions and asserted that he was wrongly convicted.[17] During cross-examination the appellant maintained his denial of all of the offences alleged against him.
54 The appellant was specifically cross-examined in relation to the statement of MSO that was read into evidence. The appellant admitted that he was convicted of the allegations made in the statement, but denied that any of them occurred.[18]
55 Later in the course of a lengthy cross-examination, the appellant again denied any sexual interest in young boys, although he again admitted that he had been convicted of sexual offences against young boys.[19] It was also put to the appellant in the course of cross-examination that as he had been wrongly convicted of sexual offences against young boys in the past, it would have been safer to avoid situations in which allegations of a similar kind could be made against him.[20] The appellant asserted that he had never thought of that, because his association with the complainant was quite innocent. The appellant described himself as a 'rescuer' of the complainant from mistreatment by his father.[21]
56 In the course of cross-examination it was put to the appellant that he had used a false name for his Facebook communications with the complainant because he was a known and registered sex offender and wished to conceal his communications with a child. The appellant asserted that he used a false name in order to keep his Facebook communications secret from the complainant's parents, because of the difficult situation the complainant was in within his family environment.[22] It was put to the appellant that this was untrue, and that his real purpose was to conceal the fact that a known sex offender was communicating with a young boy.[23]
57 During cross-examination it was put to the appellant that when interviewed by police in relation to the charges previously brought against him in 2004, he admitted to police that he had been circumcised.[24] In that context, the appellant accepted that he was circumcised, but denied that the complainant had ever seen his penis.[25]
58 The prosecutor placed considerable emphasis upon the appellant's prior convictions in his closing address to the jury. He referred to those convictions very early in his address and submitted that the convictions, together with the additional evidence in the form of the statement of MSO showed that the appellant had a particular methodology in the way in which he approached children within the target age, and that there was a similarity between the appellant's dealings with the complainant and those with his previous victims, including in particular MSO. He also drew attention to what he submitted was a striking similarity between the offence against the victim VP, and the charges pending against the appellant. The prosecutor submitted:
[T]hese children trusted him, liked him and again even after the first incident because [MSO] ... they went still went back for more. As indeed did VP because again in the agreed facts they go back for more. And some of you may wonder why but we're trying to get inside the head of an 11, 12, 13 year old boy. My suggestion really, and of course it's me making a suggestion, you can take it or leave it, as you can with any of the facts and anything I say, but at the few moments of unpleasantness and again there's so much positive about [the appellant] and the way he did operate with the children, the way he was good to them.
... And that's again why he got away with the boys, again, reading the agreed facts, for some time. ... The children don't fully understand why this has happened. What is it? Is it something about me? What is it? But in any event [the appellant] goes to prison for those offences and then moves from [a country town] to Rockingham. Again, it's part of his parole that he has to be away as we heard. Now [the appellant] denied that he was correctly convicted in 2003 or 2005 and the offences happened in 2003 and 2004, wrongly convicted he told [the complainant] that he was wrongly convicted. Four boys spoke up and he was convicted. Again, in the interview he says wrongly convicted and that's exactly what he told the family, the [complainant's] family and anybody I'm sure who was willing to listen. But just look at his actions. So this is a man who goes to prison for sexual offences against young boys. What does he do when he's released from prison? Well, his family ... give him the benefit of the doubt, they are somewhat wary but they do give him the benefit of the doubt because he's obviously spun this line that he's not guilty, that it was all a stitch-up which is the way he put it today.[26]
59 A little later the prosecutor suggested to the jury that the complainant was vulnerable and said:
That's something again [the appellant], and I suggest, because of his behaviour in the past, he's well aware of that, that's what he's doing, he ingratiates himself with people, with [the complainant] and indeed the family, makes himself useful.[27]
60 A little later in the address the prosecutor drew a comparison between the appellant's engagement of the complainant in part-time work and a similar offer of casual employment to one of the victims of the appellant's earlier convictions.[28]
61 Shortly thereafter, the prosecutor drew another comparison between the offences committed against VP, which were said to involve the appellant making the victim feel special, which was said by the prosecutor to be 'remarkably similar' to the evidence relating to the charges before the jury. In that context the prosecutor said that there was nothing wrong with adults being friendly with young children:
But [the appellant], this is a man who has a record in the past getting on good terms, friendly with children and again, the result is him getting convicted for various offences against boys.
Of course he says it's all a stitch-up but that's the base, that's where we're starting from.
62 A little later in his address the prosecutor described the appellant as a 'person who manipulates people to get ready access to young boys as he's done in the past and he has done with [the complainant] in 2009 to 2012'.[29]
63 In the context of his address with respect to specific counts, the prosecutor drew attention to the factual similarity between the allegation that the appellant asked the complainant to show him his pubic hair, and the offence committed against MSO, and in that context the prosecutor read again to the jury part of MSO's statement. He then asked the jury rhetorically, 'Is that just an amazing coincidence or is it really - that's because it's true because that's what [the appellant] does.'[30]
So [the complainant] has come up with this which just happens to fit the bill, it's like pieces of a jigsaw puzzle. It all fits, doesn't it? All strikingly similar and that's why, members of the jury, I suggest that that did happen, exactly as [the complainant] suggested.[31]
65 The prosecutor submitted that the facts of another count were very similar to the facts in the statement of MSO:
So again, what we have is someone asking, show - little boy, little boy show me your penis. Again, strikingly similar.[32]
66 In this context the prosecutor again referred to the detail of the statement of agreed facts relating to the appellant's prior convictions, repeating to the jury the details of another of the offences before submitting:
So this is not new to [the appellant], is it? Taking hold of a boy's penis. Here, what he does with [the complainant] is talking about 'oh did you know, it feels good' and we heard that from [the complainant]. But here he masturbates [the complainant] to ejaculation and it's slightly different, he takes it further but it's got remarkable similarities. ... [W]hat I suggest has happened here is that, dealing with [the complainant], rather than four boys he's concentrated on one and he's allowed to get close, he's allowed to be a lot closer with this boy...[33]
67 In the context of another count, the prosecutor referred to the cross-examination of the complainant on the topic of why he did not shout out or complain about the appellant's conduct. In that context the prosecutor said to the jury:
Again, you can ask the same reason of [MSO], same reason for VP, because there are a number of offences, why these things happen. Why they didn't stop it. Difficult to explain, there's the knowing for a long time, one thing, the trusting, liking, they did exciting things. They did things he wanted to do. He had been manipulated as the others, these are young minds moulded by the older more sophisticated and scheming calculating one of [the appellant] as he had done in the past.[34]
68 A little later in his address the prosecutor referred to the appellant having deleted SMS communications with the complainant. In that context the prosecutor said:
Why delete the text and the call register? Well, again, 'we don't want anybody to know'. So he's doing everything in his power to ensure that no-one finds out about it. He's the one who has decided: 'I'm the higher power. I know better. I've got lots of children - well, no I haven't and I'm a sex offender and I've been convicted of various offences, but I know better'.[35]
69 In the same context, the prosecutor asked, again rhetorically:
[W]hy would a 60 year old man, 60-odd-year old man want to talk every night or most nights to a 12, 13, 14 year old boy? Why, a man with his history? Is it all innocent, or is it just again part of the same routine that he's going through?[36]
[The appellant] has an unnatural interest in young boys and here you're dealing with [the complainant], that young boy that you saw on that screen for a couple of days. That's the young boy that he had an unnatural interest in.[37]
71 In the context of a submission to the effect that the appellant had lied to the complainant's family and to police, the prosecutor observed:
He denies the previous offences. He told the family that as well. Of course, he did, he told them and what did they do? They took it on board, they gave him the benefit of the doubt, which again meant he could get in there with [the complainant] and get access to a young child of his target age. The facts in part, not completely, are very similar, which is not just a coincidence, is it?[38]
72 Shortly thereafter, in the context of the appellant's evidence that he had taken on the role of protecting the complainant from a difficult family situation, the prosecutor submitted:
Was [the appellant] his rescuer, his guardian angel or not?
The fact is that he is a - someone who has been convicted of sex offences. He was being - he's registered with the police. Is that the sort of guardian angel you want? I would have thought there would be a lot better guardian angels; social services, other relatives, get them involved ...[39]
73 A little later, after referring to the appellant's evidence that he was stupid to be alone with a child, the prosecutor observed:
Well, he is a sex offender. And what's he done, he's made a beeline for [the complainant], hasn't he, throughout.[40]
74 Defence counsel also made significant reference to the appellant's previous convictions, commencing his address to the jury by suggesting that the question for the jury was whether they could convict him on the evidence they had heard 'not what he might have done in the past which, if true, is reprehensible, what he went to gaol for which, if true, is reprehensible'.[41] He asked the jury:
Where would you start if you were genuinely not guilty of something like this? Just assume that. Where would you start to try and prove your innocence? You've been to gaol. You're a known sex offender and someone comes along and lumbers you with something that you haven't done. Well, you're starting off with a lot of lead in the saddle bags, aren't you?[42]
75 Appropriately, defence counsel then referred to the presumption of innocence and the onus of proof and again rhetorically asked the jury what evidence there was to support the proposition that the appellant was guilty:
[O]ther than the overwhelming prejudicial nature of the previous convictions? His Honour will tell you what value they are but my submission is of very limited assistance to you in a case like this ...[43]
76 A little later defence counsel characterised the prosecution in these terms:
They say, 'Look, he's a bloke with a prior record. He's just the sort of person who might do this.' That's a central plank, and no doubt you heard [the prosecutor] go through in his final submissions to you, placed great emphasis on that because, I suggest to you, and there's a very good reason why he placed a lot of emphasis, he's got nothing else.[44]
77 In the context of submissions with respect to the complainant's failure to complain to others of the appellant's conduct, defence counsel submitted:
Usually young kids would never complain because they'd never be believed but who would not believe a complaint about this man? He's been to gaol for it. He's been convicted. If one of the little kids in any of those households, whether they were male or female, had said to their mum, dad, aunty or nanna, 'Nanna, Uncle ... touched me the other day', who would not believe? He's got a track record for it. This man was a sitting duck for any allegation that was ever made against him by anyone of that nature. So how do we get around that, that he made no complaint? Everyone would have believed him, as distinct from the usual situation when you ask a little kid to make a complaint no-one would believe. ...
This man had no reputation. He was a pariah. Only his family would tolerate him. He was on his last chance and they watched him like a hawk. I suggest to you that it is implausible in the extreme that had [the complainant] been touched up ... on the occasions and in the way he says, that he would not have told anyone, but you be the judges of that.[45]
78 The trial judge commenced his directions to the jury with what I might respectfully describe as conventional directions with respect to topics such as the burden and standard of proof, the nature of evidence and so on. In that context he directed the jury, quite properly, that even if they did not accept the appellant as a witness of truth, it did not follow that he was guilty on all counts, and the question remained whether the State had proven his guilt on each count beyond reasonable doubt. In that context, his Honour observed:
As you are aware, [the appellant] has previously been convicted of seven offences of a sexual nature committed against four boys. The facts of the offences are set out in the statement of agreed facts which is exhibit 1 to which I have already referred briefly. When [the complainant] gave his evidence, he said that although he had been convicted of the previous seven sexual offences, he did not commit the offences. In other words, in his evidence [the appellant] maintained his innocence despite his convictions. Members of the jury, the fact of the convictions is by itself proof that [the complainant] did commit the seven offences; you cannot go behind the convictions. You must, in your deliberations, proceed on the basis that despite what [the appellant] said in his evidence, he did commit the seven offences. You must also proceed on the basis that the facts of the prior offences are as set out in exhibit 1, the statement of agreed facts, which, as I have already told you, is itself proof of the facts of the offences. It is a matter for you to decide whether [the appellant's] denials of guilt for the previous offences is something that affects your assessment of the credibility of the evidence that he has given in relation to the offences with which he is currently charged.
During his evidence [the appellant] also denied engaging in the conduct with [MSO] which is referred to in exhibit 49, the addendum to the statement of agreed facts. As I have already told you, the addendum is itself proof of the facts stated in the document. You must, therefore, in your deliberations proceed on the basis that [the appellant] did engage in the conduct stated in the addendum. Again, it is a matter for you to decide if [the appellant's] denials in his evidence that he engaged in the conduct in question is something that affects your assessment of the credibility of the evidence that he gave in relation to the offences with which he is currently charged.[46]
79 After reviewing the evidence relating to the specific counts on the indictment in considerable detail, the trial judge referred again to the evidence relating to the appellant's prior convictions. After summarising that evidence, the trial judge directed the jury that:
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]
80 The trial judge then essentially repeated the thrust of the directions given in the passage set out above. He then gave the jury a specific direction with respect to the evidence of MSO relating to the appellant's references to pubic hair. He directed the jury that the State contended that this evidence showed conduct which was strikingly similar to the offence alleged on count 1 on the indictment. In that context the trial judge directed the jury that they could only use the evidence in this way if they were satisfied that the conduct of the appellant was in fact strikingly similar to the conduct alleged in count 1 so as to reveal 'such a clear underlying unity as to make coincidence a very unlikely explanation'.[48] The trial judge directed the jury that in deciding whether there was such a striking similarity and underlying unity, they should also take account of any dissimilarities in the appellant's prior conduct and the conduct alleged against him in respect of count 1. He went on to direct the jury that if, after considering those matters, they were satisfied that the conduct in question was strikingly similar to the conduct alleged in count 1 and revealed a clear underlying unity so as to make coincidence a very unlikely explanation, the jury could take evidence of that conduct into account in deciding if the State had established count 1 beyond reasonable doubt.
81 In the course of his directions, the trial judge summarised the submissions which had been put by counsel for each party to the jury. In that context, he summarised the thrust of the prosecutor's submissions relating to the appellant's prior convictions, which I have set out above. Similarly, he summarised defence counsel's response to those submissions which I have set out above.
82 Following their deliberations, the jury returned verdicts which are set out in the table below.
Indecent dealing with child under 13 years - s 320(4) Code
Indecent dealing with child under 13 years - s 320(4) Code
Indecent dealing with child under 13 years - s 320(4) Code
Indecent dealing with child over 13 years and under 16 years - s 321(4) Code
Indecent dealing with child over 13 years and under 16 years - s 321(4) Code
Indecent dealing with child over 13 years and under 16 years - s 321(4) Code
*Amended during trial to 'On or about 18 December 2009'*
Sexual penetration of child over 13 years and under 16 years - 321(2) Code
*Amended during trial to s 322(2) offence: child under the age of 13 years*
Sexual penetration of child over 13 years and under 16 years - 321(2) Code
*Amended during trial to s 322(2) offence: child under the age of 13 years*
Sexual penetration of child over 13 years and under 16 years - 321(2) Code
Indecent dealing with child under 16 years - s 321(4) Code
Sexual penetration of child over 13 years and under 16 years - 321(2) Code
Indecent dealing with child under 16 years - s 321(4) Code
Indecent dealing with child under 16 years - s 321(4) Code
Sexual penetration of child over 13 years and under 16 years - 321(2) Code
Indecent dealing with child u/16 years - s 321(4) Code
Indecent dealing with child under 16 years - s 321(4) Code
Sexual penetration of child over 13 years and under 16 years - 321(2) Code
Indecent dealing with child under 16 years - s 321(4) Code
Indecent dealing with child under 16 years - s 321(4) Code
Sexual penetration of child over 13 years and under 16 years - 321(2) Code
Indecent dealing with child under 16 years - s 321(4) Code
Indecent dealing with child u/16 years - s 321(4) Code
Sexual penetration of child over 13 years and u/16 years - 321(2) Code
Indecent dealing with child under 16 years - s 321(4) Code
Indecent dealing with child under 16 years - s 321(4) Code
Sexual penetration of child over 13 years and under 16 years - 321(2) Code
Indecent dealing with child under 16 years - s 321(4) Code
Indecent dealing with child under 16 years - s 321(4) Code
Sexual penetration of child over 13 years and under 16 years - 321(2) Code
Indecent dealing with child under 16 years - s 321(4) Code
Indecent dealing with child under 16 years - s 321(4) Code
Sexual penetration of child under 13 years and under 16 years - 321(2) Code
Indecent dealing with child under 16 years - s 321(4) Code
83 Ground 1 asserts that the Chief Judge erred in his decision not to order trial by judge alone. Particulars of the ground have been provided drawing attention to the prejudicial effect of the admission of the evidence relating to the appellant's prior convictions, the capacity of an order for trial by judge alone to entirely remove the risk of that prejudice, and the fact that the trial would not involve the determination of any matters of community standards.
84 Until 1994, when s 651A was introduced into the Criminal Code (WA), all trials on indictment in Western Australia were conducted by judge and jury. Under s 651A, provided the prosecutor consented, an accused person was given a right to elect trial by judge alone rather than trial by jury. So, under that section, the mode of trial was under the control of the parties rather than the court.
85 Section 651A of the Criminal Code was repealed when s 118 of the Criminal Procedure Act 2004 (WA) (the Act) came into force. That section provides:
(1) If an accused is committed on a charge to a superior court or indicted in a superior court on a charge, the prosecutor or the accused may apply to the court for an order that the trial of the charge be by a judge alone without a jury.
(2) Any such application must be made before the identity of the trial judge is known to the parties.
(3) On such an application, the court may inform itself in any way it thinks fit.
(4) On such an application the court may make the order if it considers it is in the interests of justice to do so but, on an application by the prosecutor, must not do so unless the accused consents.
(5) Without limiting subsection (4), the court may make the order if it considers -
(a) that the trial, due to its complexity or length or both, is likely to be unreasonably burdensome to a jury; or
(b) that it is likely that acts that may constitute an offence under The Criminal Code section 123 would be committed in respect of a member of a jury.
(6) Without limiting subsection (4), 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.
(7) If an accused is charged with 2 or more charges that are to be tried together, the court must not make such an order in respect of one of the charges unless the court also makes such an order in respect of each other charge.
(8) If 2 or more accused are to be tried together, the court must not make such an order in respect of one of the accused unless the court also makes such an order in respect of each other accused.
(9) If such an order is made, the court cannot cancel the order after the identity of the trial judge is known to the parties.
86 So, unlike s 651A, under s 118 if an application is made for an order by trial by judge alone, the court is given a discretion to determine whether such an order should be made, to be exercised 'in the interests of justice', provided that, in the case of an application by the prosecution, an order cannot be made without the consent of the accused.
87 Since the commencement of s 118 of the Act, there have been a significant number of cases in the Supreme Court and in the District Court in which judges have been required to determine whether the discretion conferred by the section should be exercised and an order made for trial by judge alone. This is the first case in which this court has been required to determine the legal principles governing the exercise of that discretion. Although some reference was made to those principles in Coates v The State of Western Australia,[49] the issue in that case concerned the jurisdiction to make an order for trial by judge alone in respect of a retrial after the verdict of a jury had been overturned on appeal. In Coates, there was no occasion, nor any attempt to exhaustively enunciate the principles which would guide the exercise of the discretion conferred by the section.
88 As there is no prior decision of this court governing the principles to be applied in the exercise of the discretion conferred by s 118 of the Act, it is necessary and appropriate to start from first principles, and in particular to apply the standard principles of statutory construction to the words used in the section in order to ascertain whether, in this case, error has been demonstrated. A review of the more significant first instance decisions of judges of the Supreme Court, and of the observations made obiter by members of this court in Coates, provides a convenient context for that process, although obviously none of the decisions to which I will now refer[50] binds this court.
89 In the State of Western Australia v Martinez, EM Heenan J observed that unless the case came within the particular circumstances identified in s 118(5) or s 118(6) of the Act, the discretion of the court to order trial by judge alone was 'at large'. However, EM Heenan J relied upon the reference in s 118(6) to the power of a court to refuse an order if the trial will involve a factual issue requiring the application of objective community standards as:
[R]eflecting an approach, itself not conclusive, that in a case involving issues in which there may be expected to be legitimate scope for differences of opinion the need for the criminal law to reflect an objective community standard is better served by a decision by a panel of fact finders. This simply reveals, as a starting point, that such a panel of fact finders is likely to better reflect the objective standards of the community as a whole than any individual.[52]
90 Later in his reasons, his Honour further enunciated that view in his conclusion:
In the end, I do not consider that the interests of justice favour an order for the retrial of this case to be before a Judge alone. Indeed, I am of the view that, having regard to the multiplicity of issues of fact underlining the prosecution's circumstantial case against the accused, there is likely to be great advantage in obtaining the collective judgment which only a jury can provide on behalf of the community as to whether or not that evidence satisfies such a tribunal beyond reasonable doubt that the charges have been proved. For that matter, it is equally important from the viewpoint of the community at large that any decision that the accused or some of them is or are not guilty of the charges laid, should be made by a tribunal representing the wider perspective of community standards than any single decision-maker can reflect. In a case of this difficulty and importance there seems to me to be a considerable advantage in requiring the unanimous agreement of a panel of 12 people for a verdict, rather than that of a single person no matter how great his or her experience may be. This seems to be a case, more than others, when a panel of 12 jurors is likely to bring a collective wisdom and evaluation of all the facts proved which would be preferable to that of any single judgment.[53]
91 It is, with respect, difficult to reconcile these views with an earlier observation in his Honour's reasons that:
[O]ne should not approach an application for trial by Judge alone for a serious offence on the footing that there is a preliminary, presumptive or other inclination that trial by jury must be regarded as the preferential starting point. Rather, despite some initial inclinations to the contrary during the course of argument, I am satisfied that one should adopt a neutral position in relation to the preferred mode of trial on any such application and focus upon what are the interests of justice in the particular case.[54]
92 The tension in these reasons arises from the fact that the issue of whether the prosecution has established a contentious issue of fact beyond reasonable doubt is a very frequent characteristic of a criminal trial, and often arises in a context of significant factual complexity. His Honour's conclusion that the resolution of such issues by a panel of 12 is to be preferred to that of a single decision-maker necessarily connotes a preference in favour of trial by jury in a significant majority of cases, contrary to the position of neutrality enunciated by his Honour.
93 In Arthurs v The State of Western Australia I briefly reviewed comparable legislation in other jurisdictions and the legislative history of s 118 of the Act. As I noted, the explanatory memorandum to the Criminal Procedure Bill referred to the fact that s 118 of the Act implements some of the recommendations made in ch 30 of the final report of the Law Reform Commission of Western Australia in its review of the criminal and civil justice system.[56] In my reasons I compared the recommendations made by the Commission to the terms of the section and enunciated the conclusions which I had drawn from that comparison, which it is unnecessary to repeat.
94 In relation to the decision in Martinez, I respectfully agreed with the description of the discretion as being 'at large' (unless the case falls within either ss 118(5) or s 118(6)), and with the proposition that the section did not convey any presumption in favour of trial by jury, but respectfully disagreed with the conclusion which had been drawn from s 118(6) with respect to the desirability of trial by jury in cases involving circumstantial evidence or significant controversies of fact.
95 Consistently with the view that s 118 does not convey any preference for one form of trial over another, in Arthurs I expressed the view that there was nothing in the section to suggest that the community would more readily accept a decision made by a jury as compared to a decision made by a judge sitting alone, and that, consequently, speculation as to the degree of community acceptance likely to be afforded to a verdict achieved by one form of trial over another was not relevant to the exercise of the discretion conferred by the section.
96 In Arthurs I referred also to the obligation of a judge sitting alone to provide reasons for his or her decision, by contrast to the inscrutable decision of a jury. Consistently with my view of the neutrality implicit in the section, I observed that in the general run of cases, the provision or lack of a reasoned decision would not be a factor guiding the exercise of the discretion but, in some cases, might be a significant consideration.[57] In my view, Arthurs provided an example of such a case, because the provision of a reasoned decision would enable both the community and any appellate court to evaluate whether the extensive prejudicial pre-trial publicity and the human emotions inevitably stirred by the facts of the case had influenced the decision, whereas in the case of trial by jury, there would be no capacity to evaluate those matters.
97 In Arthurs I also expressed the view that the subjective apprehension of prejudice by the accused, if established by evidence, was relevant to the exercise of the discretion provided that it was not fanciful or irrational.
98 The decisions in Martinez and Arthurs were reviewed by McKechnie J in TVM v The State of Western Australia. McKechnie J did not draw the conclusion which EM Heenan J had drawn from s 116. McKechnie J also disagreed with the views expressed in both Martinez and Arthurs to the effect that s 118 reflected no preference as to mode of trial. Implicit in his Honour's reasons is the view that the section reflected a preference for trial by jury which had to be displaced by an applicant demonstrating that it was in the interests of justice to order trial by judge alone. McKechnie J also disagreed with the views I expressed in Arthurs as to the relevance of the subjective views of the accused, and with the views expressed by EM Heenan J as to the collective wisdom of a panel of 12 jurors. He considered that the obligation of a judge sitting alone to deliver reasons was 'of no consequence'.[59] He also considered that there might be cases in which the court might exercise a discretion to refuse to order trial by judge alone, notwithstanding a finding that such an order would be in the interests of justice.
99 As I have already noted, the grounds of appeal in Coates v The State of Western Australia did not require the court to review the exercise of the discretion to order trial by judge alone in that case. Rather, the grounds required determination of an assertion that there was no jurisdiction to make an order for trial by judge alone after the appellant had previously been tried by jury, his conviction having been set aside on appeal. The grounds of appeal also included an assertion that the trial judge erred by not aborting the trial by judge alone when the trial took a particular course. It follows that any observations made with respect to the exercise of the discretion under s 118 of the Act are necessarily obiter, and do not bind this or any other court.
100 In the particular context of the issues in that case, Owen JA made the following observations:
The crux of ground 4 is not (as in ground 3) that the order for trial by judge alone should have been cancelled but, rather, whether by reason of the trial judge's refusal to abort the trial the appellant was denied a fair trial. This depends on whether, in all of the circumstances, the failure to abort the trial so as to allow a trial by jury to proceed, has resulted in a miscarriage of justice. This, it seems to me, completes the circle: was the fact of the second agreement such that denial of the opportunity to have it considered by 12 of the appellant's peers rather than by a judge alone amounted to a miscarriage of justice?
In my view the answer to that question is no. Opinions differ, including among judges, as to the efficacy of the jury system. But it is an integral part of the criminal justice system and, in my view, it has served the community well. Nonetheless, Parliament has recognised that in some circumstances an alternative method of resolving trials on indictment is desirable. Hence the enactment in 1994 of the Criminal Code s 651A which has since been replaced by the Criminal Procedure Act 2004 (WA) s 118. Section 118 provides that either the accused or the prosecutor can apply for trial by judge alone. The court may make an order for trial by judge alone 'if it considers it is in the interests of justice to do so'. The legislation protects the right of an accused by stipulating that an order cannot be made at the behest of the prosecution unless the accused consents. The phrase 'in interests of justice' is very broad. Parliament has been careful not to limit its meaning in the course of adding an explanatory provision (s 118(6)) detailing some circumstances in which the court may refuse to make an order; namely, where 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.
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]
101 Those observations, with which I respectfully agree, are obviously inconsistent with any proposition to the effect that factual issues relating to the credibility of witnesses, or complex facts are better made by a panel of 12 jurors than by a judge sitting alone.
102 Buss JA, with whom I agreed, made the following general observations with respect to s 118 of the Act:
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]
103 For reasons which I will develop, it is significant that the reference to an order for trial by judge alone being 'in the interests of justice' if it was 'necessary' to ensure a fair trial according to law was not intended to be exhaustive.
104 In The State of Western Australia v Rayney, Commissioner Sleight observed:
The starting-point is that the discretion is to allow a trial by judge alone. If the discretion is not exercised, the default position is that the trial will be a trial by jury. The discretion to order a trial by judge alone only arises if the court considers that it is 'in the interests of justice to do so'.
The concept of what is 'in the interests of justice' is one which should not be narrowly defined and will vary from case to case: Chapman v Jansen (1990) FLC 92-139 (Nicholson CJ). It necessarily involves a judicial evaluation of a number of factors: BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400; TVM v The State of Western Australia [2007] WASC 299 [25] (McKechnie J).
Section 118(5) and (6) provide some guidance as to what may be relevant, or a particular case even determinative, as to whether it is in the interests of justice to order or refuse an application for a trial by judge alone. However, both subsections specifically state that the factors listed do not limit the general operation of the concept of what might be in the interests of justice: The State of Western Australia v Martinez [2006] WASC 25 [5] (EM Heenan J).[64]
105 Commissioner Sleight agreed with the view I had expressed in Arthurs to the effect that weight should be given to the subjective views of the accused, without of course accepting that those views should be determinative of any application.[65] Commissioner Sleight also agreed with the view which I had expressed in Arthurs to the effect that in some cases the obligation of a judge sitting alone to provide reasons may be a significant factor in the exercise of the discretion.[66]
106 Commissioner Sleight drew a distinction between the considerations which would govern an application for a stay of prosecution on the ground of prejudicial pre-trial publicity, and the considerations which would guide the exercise of the discretion under s 118 of the Act. The commissioner pointed out that in the case of an application for a stay, the question for the court was whether a fair trial of the accused was possible. On the other hand, under s 118 the question was whether the interests of justice would be advanced by eliminating the risk that extensive pre-trial publicity might influence the deliberations of a jury.[67] For reasons which I will develop, that process of reasoning is apt to the risk of prejudice to the deliberations of a jury from other sources, such as, relevantly to this case, the risk of prejudice arising from the evidence of the appellant's prior convictions.
107 Commissioner Sleight disagreed with the view expressed by EM Heenan J in Martinez to the effect that there was a public interest in cases based entirely upon circumstantial evidence being tried by a jury, noting his agreement with the views expressed in Arthurs and TVM on that topic.[68]
108 In The State of Western Australia v Schmidt an application for trial by judge alone was made on the ground of prejudicial pre-trial publicity and the prejudice that might arise from the applicant's association with a motor cycle gang. In that context Hall J concluded:
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]
109 After the refusal of Mr Schmidt's application for trial by judge alone he was convicted following trial by jury. However, that conviction was set aside on appeal and a re-trial ordered. Before the re-trial another application was made for order by trial by judge alone. That application was granted by Jenkins J, who expressed her agreement with the observations made by Hall J on the subject of pre-trial publicity in his earlier decision. However, in the view of Jenkins J, the prejudicial effect of the publicity of the first trial, the jury's verdict of guilty, and the appeal against that verdict created 'a real risk that the views of potential jurors' might be influenced, and therefore 'a real doubt as to whether the accused would receive a fair trial by judge and jury'.[72]
110 In Bell v The State of Western Australia [No 2] Hall J ordered trial by judge alone on the ground that some of the prosecution evidence was so graphic and upsetting as to be likely to have a significant emotional impact upon the members of the jury. His Honour considered that even with the best of intentions to follow appropriate judicial directions, it could not 'be safely said that emotional responses would not impede an assessment of the evidence'.[74]
111 His Honour considered that another factor that favoured trial by judge alone was the obligation of a judge to give detailed written reasons. Relying upon Arthurs, Hall J expressed the view that 'the existence of written reasons will provide an assurance that any decision has not been influenced by the emotional quality of [the] evidence'.[75]
112 Hall J also accepted that the reasonable concerns of the accused were a relevant consideration, and that the provision of written reasons for decision could address that concern.[76]
113 Against this context it is appropriate to now address the proper construction of s 118 of the Act. That process is to be undertaken by reference to conventional principles of statutory of construction which require primary attention to be focused upon the words used in the relevant statutory provision, informed, where appropriate by the statutory context of the relevant provision and its legislative history. As I have noted, that context and history is conveniently charted in Arthurs, and need not be repeated here.
114 There are a number of observations usefully made with respect to the structure and terminology of s 118 and which provide guidance to its interpretation.
115 First, unless an order is made for a trial by judge alone under the section, the guilt or innocence of a person arraigned in a superior court in Western Australia will be determined after trial by judge and jury. Accordingly, the default position is that, unless an order is made under the section, an accused person arraigned on indictment will be tried by judge and jury.
116 Second, application for an order under the section may be made by either the prosecutor or the accused, although in the case of an application by the prosecutor, an order can only be made for a trial by judge alone with the consent of the accused.[77] The requirement for the consent of the accused reflects legislative recognition of the fact that the right to trial by jury on an indictable offence is generally regarded as a right of the accused. It is consistent with the implicit legislative recognition of that right to give at least some weight to the views of the accused which are not fanciful or irrational in the exercise of the discretion conferred by the section.
117 Third, an order for trial by judge alone can only be made if the court considers that 'it is in the interests of justice to do so'.
118 Fourth, it follows that an applicant for an order must discharge the burden of establishing that an order for trial by judge alone is in the interests of justice. If the applicant fails to discharge that burden, the court has no capacity to make an order under the section.
119 Fifth, it follows that neither the prosecutor nor the accused has an entitlement to an order merely for the asking - any applicant must establish that the making of an order is in the interests of justice. However, that is not to say that the views of the accused, which are not fanciful or irrational, are irrelevant to the proper exercise of the discretion conferred by the section.
120 Sixth, the imposition of the burden of establishing that trial by judge alone is in the interests of justice is to be distinguished from legislative recognition to the effect that one form of trial is to be generally preferred over another. Put another way, the establishment of a default position is fundamentally different in character and principle to the establishment of a predisposition with respect to the exercise of a discretion 'in the interests of justice'. The creation of a default position does not of itself provide any indication of where the interests of justice might lie in the facts and circumstances of any particular case, beyond requiring that the court must consider that the interests of justice favour the making of an order for trial by judge alone.
121 Seventh, the only indication of legislative preference for one form of trial over another is contained within s 118(5) and s 118(6) - the former providing an indication of circumstances in which the legislature considers that the interests of justice would normally favour an order for trial by judge alone and the latter providing an indication of the circumstances in which the legislature would consider that the interests of justice would normally favour refusing to order trial by judge alone. However, it is significant that each subsection is specifically expressed to not limit the generality of the discretion conferred by s 118(4).
122 Eighth, in addition to the legislative policy evident from s 118(5) and s 118(6), the section manifests a legislative policy against 'judge shopping'[78] and against different forms of trial in respect of charges that would otherwise have been jointly tried, or accused that would have been jointly tried.[79]
123 Ninth, apart from the legislative preferences evident in s 118(5) and s 118(6) and the legislative policies against judge shopping and the making of orders that would have the effect of different forms of trial applying to accused or to charges otherwise jointly tried, the section contains no indication of the factors, circumstances and principles properly taken into account by the court in determining whether or not an order for trial by judge alone is 'in the interests of justice'. Accordingly, apart from the indicators of legislative policy and intention evident in the section itself, the matters properly taken into account by the court in assessing where the interests of justice lie are not constrained.
124 Tenth, apart from the indicators of legislative policy and intention to be derived from the terms of the section itself, and to which I have referred, the court's assessment of whether it is in the interests of justice to make an order for trial by judge alone must take account of all facts, matters and circumstances particular to the case which are relevant to the interests of justice.
125 Eleventh, the breadth of meaning customarily given to the expression 'the interests of justice' connotes a legislative intention that a court exercising the powers conferred by the section should properly take into account a wide range of facts, matters and circumstances, being all facts, matters and circumstances capable of bearing upon the interests of justice.
126 Twelfth, it is of particular significance to the proper construction and effect of s 118 that the court's jurisdiction to make an order for trial by judge alone is enlivened by the court's conclusion that it would be in the interests of justice to make such an order, and is not conditional upon the court concluding that an order for trial by judge alone is 'necessary' to ensure a fair trial, or to achieve a just result. So, if an order for trial by judge alone would advance or enhance the interests of justice by, for example, reducing a risk to the course of justice it will be in the interests of justice for such an order to be made. By contrast, if the legislature had stipulated that an order for trial by judge alone could only be made if 'necessary' in the interests of justice, such orders could only be made if justice could not be achieved without making such an order.
127 Put another way, the terminology used by the legislature is inconsistent with a construction of the section which would limit the making of an order for trial by judge alone to a circumstance in which it was established that unfairness or injustice would result from the failure to make an order. Rather, the terminology used by the legislature is only consistent with a legislative intention that an order for trial by judge alone can be made by a court if, after taking account of the legislative policies evident from the subsections of s 118 to which I have referred, and all facts, matters and circumstances of the particular case which are relevant to the interests of justice, trial by judge alone would advance or enhance the interests of justice in the particular case before the court.
128 This important point is well illustrated by the distinction which Commissioner Sleight drew in Rayney between the considerations which govern an application for a stay of prosecution on the one hand, and the considerations properly taken into account in the exercise of the discretion conferred by s 118 on the other. There are a number of cases in which extensive prejudicial pre-trial publicity has been found to provide a proper basis for the exercise of the power to order trial by judge alone conferred by s 118 of the Act because it is in the interests of justice to do so. The correctness of those cases has not been challenged by the State, and there is no reason to doubt that the risk of prejudice to a jury's deliberations as a result of extensive prejudicial pre-trial publicity is a consideration properly taken into account in the exercise of the discretion conferred by s 118. However, it is well-established that the circumstances in which a prosecution will be stayed indefinitely as a consequence of prejudicial pre-trial publicity are very rare indeed. So, even in a circumstance in which a broadcast has been found to constitute contempt of court because of the risk that it might prejudice a fair trial,[80] a stay of that trial on the grounds of the prejudice caused by that broadcast was refused on the basis that a strong judicial direction to the jury to exclude all extraneous matters from consideration would reduce the risk of prejudice to an acceptable level.[81]
129 The circumstances in Bell provide another illustration of this point. If trial by judge alone had not been available under s 118 of the Act, it is highly unlikely, indeed inconceivable that a stay of prosecution would have been granted on the ground of the possible emotional impact which the prosecution case might have had upon the impartial deliberations of jurors.
130 If an application for a stay had been made, it would have been refused on the basis that appropriate judicial directions could be expected to achieve an acceptable level of justice and fairness to the accused. Accordingly, an order for trial by judge alone was not necessary in the circumstances of that case to ensure a fair trial or a just outcome. However, an order for trial by judge alone was properly made because it would enhance or advance the interests of justice by reducing the risk that the deliberations of a jury might have been improperly influenced by their emotional response to the prosecution case.
131 The point can be further illustrated by reference to another category of case in which orders are customarily made under s 118 of the Act for trial by judge alone, being cases concerning the defence of unsoundness of mind. Because those cases customarily turn upon the assessment of expert psychiatric evidence, it has been concluded many times that the interests of justice favoured trial by judge alone. However, it could not be successfully contended that a jury would be incapable of assessing and evaluating evidence of that character or that a trial of such an issue by a jury would be unjust or unfair.
132 So, the question which must be determined when an application is made under s 118 is not whether it has been established that failure to order trial by judge alone will result in injustice or unfairness. Rather, the question that must be determined is whether the court considers that the interests of justice will be enhanced or advanced by an order for trial by judge alone.
133 Lastly, although s 118(4) provides that the court 'may' make an order if it considers the order to be in the interests of justice, it seems clear that in this context the word 'may' is used to connote the power of the court to make an order, rather than to connote a discretion to refuse an order even if the making of an order would be in the interests of justice. With respect to the contrary view expressed by McKechnie J in TVM, it is not appropriate to attribute to the legislature an intention that the court might properly refuse to make an order for trial by judge alone after concluding that the making of such an order would be in the interests of justice. The legislature can be fairly taken to have intended that the function and obligation of the court is to advance rather than impede the interests of justice.
134 It is appropriate to bring together the observations which I have made with respect to the proper construction of s 118 for the purpose of assessing whether the factors which have been thought to inform the exercise of the discretion under that section in the cases to which I have referred are properly taken into account.
135 First, it is clear that the factors to which specific reference is made in the section itself must be taken into account, being the factors specified in s 118(5) and s 118(6), the embargo upon 'judge shopping' and the undesirability of splitting trials as a result of an order made under the section.
136 Second, apart from the factors to which reference is made in the section itself, the section manifests no general preference for one form of trial over another. So, in exercising the discretion conferred by the section, it is not appropriate to take into account any assumption or conclusion that:
(a) the community will have greater respect for the verdict of a jury than the verdict of a judge, or vice versa; or
(b) fact finding by a panel of 12 is preferable to fact finding by a judge sitting alone; or
(c) the evaluation of an entirely circumstantial case by a jury is preferable to evaluation by a judge; or
(d) assessments of credibility are better made by juries than by judges.
137 Third, any fact, matter or circumstance which might enhance or advance the interests of justice is properly taken into account by the court in the exercise of the discretion. So, in some but by no means all cases, the provision of reasons by a judge sitting alone may significantly enhance the interests of justice by, for example, enabling evaluation of the extent to which prejudice or emotion may have influenced the reasoning process, or by facilitating appellate review of complex technical issues turning upon the evaluation of conflicting expert evidence. Similarly, although the apprehension of prejudice by an accused person will not be of any weight if it is fanciful or irrational, nor will it be determinative of any application for trial by judge alone, the fact that an accused person wishes to forego the right to trial by jury is a matter properly taken into account in the exercise of the discretion under the section.
138 Fourth, because the question which arises under the section is not whether an order for trial by judge alone is necessary to ensure a fair or just trial, but rather, whether an order for trial by judge alone would enhance or advance the interests of justice, the fact that trial by judge alone will reduce or eliminate an appreciable risk to the impartial deliberations of a jury by reason of any form of prejudice or emotion is properly taken into account in the assessment of the interests of justice.
139 It is appropriate now to bring these principles to bear upon the determination of the first ground of appeal. As I have noted, the application for trial by judge alone was based upon the decision by Stevenson DCJ to the effect that evidence of the appellant's prior convictions were admissible at his trial. Stevenson DCJ had arrived at that conclusion after undertaking the evaluation and comparison of the incommensurable factors which s 31A of the Evidence Act requires the court to take into account, including 'the degree of risk of an unfair trial'. The risk of unfairness to which the section refers has been identified in the cases dealing with s 31A of the Evidence Act and include the risk that a jury may reason, impermissibly, that because the accused is a person who has breached the law in the past, he is more likely to have committed the offence with which he is charged, and the risk of prejudice against the accused because of his past conduct. Both of those risks were clearly present in this case.
140 The question which Stevenson DCJ had to determine was whether the probative value of the evidence which was to be led was 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. As I have endeavoured to illustrate by the examples I have already given, that question is fundamentally different in character to the question which arises when an application is made for trial by judge alone. Under s 31A of the Evidence Act, the question is whether the risk of an unfair trial is so great as to exclude evidence which has significant probative value. The question to be determined in respect of an application for trial by judge alone is whether the making of such an order would enhance or advance the interests of justice.
141 The question of whether the Chief Judge erred in the exercise of the discretion conferred upon him by s 118 of the Act is to be assessed by reference to the facts, matters and circumstances that were before him at the time the discretion was exercised. Nevertheless, the considerable emphasis which was placed upon the appellant's prior convictions at trial was foreseeable at the time the application for trial by judge alone was made to the Chief Judge. In particular, it was foreseeable that the evidence of the appellant's prior convictions would become, as indeed it did become, a significant part of the prosecution case prominently emphasised in opening, in the cross-examination of the appellant, and in the prosecutor's closing address. This is not a case in which it could be concluded that the risk of an unfair trial arising from the admission of evidence pursuant to s 31A of the Evidence Act, and which is specifically recognised by the legislature in that section, was ephemeral or insignificant. Rather, this was a case in which it should have been concluded that the risk was real, albeit not sufficient to result in the exclusion of evidence of significant probative value.
142 Because the decision made by the Chief Judge involved the exercise of a power properly categorised as discretionary, the well-known principles enunciated in House v The King[82] apply to an assertion that the discretion miscarried by reason of error. Error can be established either expressly, from the reasons given at the time of the exercise of the discretion, or impliedly, from the result of the exercise of the discretion.
143 In this case, it is apparent from the reasons of the Chief Judge that he placed considerable reliance upon observations made in earlier cases to the effect that juries, properly directed, are capable of ignoring prejudice and sympathy, and deliver verdicts on the facts in a dispassionate manner. However, with respect, observations of that kind are customarily made in the context of an application to stay or abort a trial on the basis of unfairness. Considerations of the kind to which the Chief Judge referred were of the utmost relevance to the decision made by Stevenson DCJ to admit the evidence pursuant to s 31A of the Evidence Act. However, the fact that a jury is capable of returning a true verdict despite the risk of prejudice is of much less significance to the exercise of the discretion under s 118 of the Act, which requires attention to be directed to the enhancement or advancement of the interests of justice. For the reasons I have enunciated, that question is more concerned with the steps that might be taken to reduce the risk of unfairness or injustice without it necessarily being established that an order is necessary to avoid injustice or unfairness which would otherwise result.
144 The reasons of the Chief Judge as a whole compel the conclusion that the question which he addressed was whether a jury would be capable of putting aside prejudice and impermissible reasoning with appropriate directions from the trial judge, whereas the question which he was required to address was whether an order for trial by judge alone would advance or enhance the interests of justice by reducing or eliminating the risk of an unfair trial which was specifically recognised by the legislature in s 31A of the Evidence Act. As the Chief Judge addressed the wrong question, it follows that the exercise of his discretion miscarried.
145 Further, as I have noted, the Chief Judge expressly took into account his view that there was:
[A] public interest in appropriate cases that representatives of the community in the form of members of the public who are randomly selected for jury duty, to accept their public responsibility and determine the issue of whether the State has proved an accused person is guilty of a charge.
146 By taking that matter into account, the Chief Judge assumed a preference for one form of trial over another, which is, for the reasons I have given, not a preference which properly emerges from the language of s 118. In this respect also the Chief Judge erred.
147 Further, implied error in the exercise of the discretion is evident from the conclusion which the Chief Judge reached. The risk of an unfair trial was evident from the decision that evidence of the appellant's prior convictions would be admissible at his trial. That risk has been acknowledged by the legislature and the nature of the risk has been enunciated in the decisions dealing with s 31A of the Evidence Act. In this case that risk was real and not insignificant. The risk of impermissible reasoning or prejudice against the appellant leading to a conclusion of guilt could have been eliminated by an order for trial by judge alone. It follows that in the absence of any countervailing considerations, the only conclusion reasonably open, on the proper construction of s 118, was that an order for trial by judge alone was in the interests of justice. In this case there were no countervailing considerations other than the preference for trial by jury erroneously taken into account by the Chief Judge. As the Chief Judge acknowledged, in this case there were no issues of fact concerning community standards which required determination, nor was there any other reason why trial by jury would have advanced the interests of justice.
148 In this context it should be noted that on appeal, it was contended on behalf of the respondent that it is in the interests of justice for a jury to determine cases which turn upon the credibility of a complainant as compared to the credibility of an accused. However, any such proposition must be rejected for the reasons I have already given.
149 In this case there was a significant factor supporting the conclusion that trial by judge alone was in the interests of justice, and no countervailing considerations. It follows that error can be implied from the refusal of the Chief Judge to make the order sought.
150 For these reasons ground 1 of the appeal must be upheld.
151 The State contends that even if ground 1 of the appeal is successful, the appeal should nevertheless be dismissed on the ground that no substantial miscarriage of justice has occurred, in accordance with s 30(4) of the Criminal Appeals Act 2004 (WA) (the proviso).
152 The High Court has emphasised on a number of occasions that when a question arises with respect to the application of the proviso 'the root question is one of statutory construction'.[83] More recently, the High Court has pointed out that to speak of the proviso as conferring some discretion on the Court of Appeal is to invite error.[84] Rather, the question which must be addressed is whether no substantial miscarriage of justice has actually occurred. If the Court of Appeal concludes that no substantial miscarriage of justice has actually occurred, the appeal must be dismissed, notwithstanding the use of the word 'may' in most Australian statutory formulations, including s 30(4) of the Criminal Appeals Act.
153 It is also established that although it has been held that the proviso cannot apply unless the appellate court is persuaded that the evidence properly admitted at trial proved beyond reasonable doubt the accused's guilt of the offence, such a persuasion is a necessary but not in itself a sufficient condition for the application of the proviso.[85] Further, if the error or other defect at trial involves such a substantial departure from the presuppositions of a trial as to compel the conclusion that there was a miscarriage of justice, that conclusion will not be averted only because the Court of Appeal concludes that the evidence properly admitted at trial establishes the accused's guilt beyond reasonable doubt. So, for example, in AK v The State of Western Australia,[86] the High Court reversed a decision of this court where the majority had applied the proviso in a case in which the reasons given by a judge sitting alone were deficient in a material respect. The majority of the High Court held that that deficiency in itself constituted a substantial miscarriage of justice.
154 In this case there are a number of considerations which together compel the conclusion that this court cannot be satisfied that no substantial miscarriage of justice occurred as a consequence of the erroneous refusal of the appellant's application for trial by judge alone.
155 First, the appellant had a right to have his application for trial by judge alone considered and determined according to law. The error which has been established deprived the appellant of that right and had profound consequences for the form of the trial at which his guilt was determined. The consequence of the error was to subject the appellant to a trial quite different in nature to that which he would have experienced had the error not been made.
156 Second, for reasons I have already explained, the essence of the error lay in the failure to make an order which would have eliminated the recognised risk of an unfair trial, being the risk which arose from the admission into evidence of the appellant's prior convictions. It is impossible to know whether that risk eventuated, and in particular, whether the jury did reason impermissibly from the appellant's prior convictions, or were prejudiced against him because of those prior convictions. Suppositions might be made, perhaps from the appellant's acquittal on a number of counts, but the potential that the risk resulted in a miscarriage of justice cannot be eliminated by speculation or supposition as to the jury's process of reasoning.
157 Third, my review of the course of the trial shows that considerable emphasis was placed upon the evidence of the appellant's convictions throughout the trial. In addition to the risks of prejudice acknowledged in the cases dealing with s 31A of the Evidence Act, in this case the evidence had a particular significance in relation to the credibility of the appellant. The appellant had denied his guilt on oath at his previous trial, and it was put to him by the prosecutor that the jury in that case had disbelieved him. He maintained his innocence of the previous charges before the jury, which was used by the prosecutor to attack his credit, and the trial judge directed the jury that they could use the appellant's continuing protestations of innocence in assessing his credibility, given that they were bound to accept the correctness of his prior convictions.
158 Fourth, this was a case which depended critically upon the jury's assessment of the competing evidence given by the complainant and the appellant. It seems clear from the jury's verdict that they disbelieved the appellant and were not satisfied of the complainant's evidence in respect of some of the counts on the indictment. However, the reasons why the appellant's evidence was rejected by the jury will never be known and might have included a process of impermissible reasoning based upon the appellant's prior convictions. Because the guilt or innocence of the appellant depends so critically upon the credibility given to the conflicting evidence given by the complainant and the appellant, this is not a case in which an appeal court could conclude, from its review of the transcript, that any jury must have disbelieved the appellant and accepted the evidence of the complainant in respect of the counts upon which the appellant was convicted.
159 For these reasons it is not possible to conclude that there has been no substantial miscarriage of justice as a result of the failure to order trial by judge alone. The appeal should be allowed, and a retrial by judge alone ordered in respect of the counts upon which the appellant was convicted (having regard to the failure of the other grounds of appeal for the reasons which follow).
160 Grounds 2 and 3 are conveniently considered together, as both challenge the ruling of Stevenson DCJ to the effect that evidence of the appellant's prior conviction of seven sexual offences was admissible pursuant to s 31A of the Evidence Act. Ground 2 asserts that Stevenson DCJ erred in concluding that a fair-minded person would think that the public interest in adducing the evidence was such that the risk of an unfair trial was outweighed by the probative value of the evidence and in concluding that the prejudicial value of the evidence could be cured by an appropriate direction at trial. Ground 3 asserts that Stevenson DCJ erred by dealing with the evidence of the seven prior convictions as a whole, rather than separately addressing the admissibility of each conviction.
161 The principles governing the admissibility of propensity evidence pursuant to s 31A of the Evidence Act are well established,[87] and need not be restated. Obviously the application of those principles will depend critically upon the facts and circumstances of the individual case. On behalf of the appellant, reliance was placed upon cases in this court and in the High Court in which it was concluded that the particular evidence tendered did not have significant probative value in the context of that case.[88] However, each of those cases turned upon the relevance of the tendered evidence to the contentious issues at trial in circumstances quite different to this case. They are therefore of little assistance, other than providing illustrations of the manner in which the established principles are applied in particular cases.
162 In support of the contention that a fair-minded person would have concluded that the risk of an unfair trial outweighed the probative value of the evidence, it was argued that, with the exception of the offence committed against MSO in which the appellant asked him if he had pubic hair as a prelude to asking him to show the appellant his penis, the prior offending conduct was not sufficiently similar to the alleged offending conduct to significantly increase the likelihood of the occurrence of the alleged offending conduct having occurred. In particular, it was submitted that the prior convictions established nothing more than a generalised sexual interest in young boys, manifest by conduct at the lower end of the spectrum of criminal behaviour, properly characterised as 'mucking around', whereas, by contrast, the offences alleged were much more serious, as they involved masturbation to ejaculation and sexual penetration (fellatio). It was also submitted that the probative value of the conduct established by the prior convictions was diminished by the time interval between that conduct and the alleged offending conduct - a period of about four and a half years. However, in evaluating that submission it is to be remembered that the appellant spent approximately 22 months of that period in custody.
163 These submissions must be rejected. The contentious issue to be resolved at trial was whether the appellant had engaged in one or more sexual acts with a boy who was aged between 11 (or perhaps 12) and 14 at the time the alleged offences occurred. Although the appellant admitted an association with the complainant, he denied that the association had any sexual component. In that context, given the relative infrequency with which adult men have a sexual interest in young boys, the appellant's sexual interest in boys about the age of the complainant demonstrated by his prior convictions significantly increased the likelihood of his commission of the offences alleged. Neither the fact that the appellant had previously demonstrated his sexual interest in young boys by conduct which was generally less serious than that alleged nor the lapse of time significantly diminished the probative value of the evidence of his prior convictions.
164 Further, apart from establishing the appellant's sexual interest in boys of about the same age as the complainant, there were aspects of the appellant's prior conduct which bore sufficient similarity to the alleged offending conduct to enhance its probative value. As I have noted, the appellant concedes the striking similarity between the circumstances of one offence committed against MSO, and one of the offences alleged against the complainant. The victims of the appellant's prior offending were aged between 11 and 13 years, whereas the offences allegedly committed against the complainant were committed when he was between 11 or 12 and 14 years of age. The victims of the appellant's prior offences were known to him through some form of relationship or association, as was the complainant in the offences alleged. The appellant groomed the victims of the offences of which he had been convicted by engaging in pleasurable activities with those victims, through which he gained their trust and friendship. Those activities included photography and computer use. The appellant engaged in the same activities with the complainant. Further, the appellant initiated the sexual misconduct against his previous victims with relatively innocent conduct, such as inquiring as to whether they had pubic hair, or whether they had an erection, before initiating physical contact. The appellant was alleged to have approached the complainant in the same way.
165 Because of the significant probative value of the evidence of the appellant's prior convictions, its admission no doubt increased the likelihood of the appellant's conviction and, to that extent, was prejudicial to his interests. However, that is not the prejudice to which s 31A is directed. Rather, the section is directed to the possible prejudice to a fair trial, because of the risk that a jury might reason impermissibly in the ways enunciated in Dair.[89] The risk of such impermissible reasoning can, of course, be mitigated by appropriate directions to a jury. As I have noted in the context of ground 1, the question which Stevenson DCJ was required to address by s 31A of the Evidence Act was not whether the risk of impermissible reasoning could be entirely eliminated by an appropriate direction to the jury, but rather, whether the probative value of the evidence outweighed the risk of an unfair trial, taking into account the mitigation of that risk by an appropriate direction. In evaluating that question, Stevenson DCJ was entitled to assume that appropriate directions would be given, as indeed they were. In the circumstances of this case, it was reasonable to conclude that appropriate directions to the jury would mitigate the risk of an unfair trial to acceptable levels, having regard to the significant probative value of the evidence. Leave to appeal should be refused in respect of ground 2 and the ground dismissed.
166 Ground 3 asserts that Stevenson DCJ erred by dealing with the evidence as a whole, rather than assessing the admissibility of each of the seven convictions individually. There are two reasons why this ground must fail.
167 First, it is not at all clear that Stevenson DCJ failed to consider the admissibility of each conviction separately. In the course of his reasons he referred to aspects of particular offences, and incorporated the findings of fact made by the trial judge for the purposes of sentence into his reasons. In the course of his reasons he gave particular attention to the similarities between the offence committed against MSO to which I have referred and the offending against the complainant of which the appellant was accused.
168 Second, and in any event, as I have observed in the context of ground 2, the probative value of the seven prior convictions of the appellant was that in combination, they demonstrated that over a period of time the appellant had demonstrated a sustained sexual interest in boys of approximately the same age as the complainant in the pending charges. Further, each of the prior convictions had the characteristics of prior association and grooming to which I have referred in the context of ground 2, and which bore similarities to the allegations pending against the appellant. It follows that even if Stevenson DCJ did consider the evidence of the prior convictions collectively rather than individually, he did not err by doing so. Leave to appeal in respect of ground 3 should be refused, and the ground dismissed.
169 Ground 4 asserts that the verdicts of guilty on all counts upon which the jury convicted the appellant were inconsistent with the verdicts of acquittal on the other remaining counts, with the result that the guilty verdicts are unsafe and unsatisfactory.
170 The legal principles relating to an appeal on the ground of inconsistent verdicts are well established. They have been conveniently summarised on a number of occasions, including in Riley v The State of Western Australia.[90] In order to succeed on such a ground, the appellant must establish that no reasonable jury properly approaching its task could have delivered the verdicts in question without departing from a permissible process of logical reasoning. On the other hand, if the appellate court is able to reconcile the verdicts by reference to material differences in the evidence relating to the counts upon which the verdicts are said to be inconsistent, the appeal must fail.[91]
171 In assessing whether the verdicts can be reconciled, the appellate court must take account of the advantage which the jury has had of seeing and hearing the witnesses. In cases which turn upon the jury's assessment of conflicting evidence given by the complainant and the accused, it is open to the jury to accept some but not all of the evidence of any witness, and in this State it is standard practice for judges to direct juries to that effect. Further, a verdict of acquittal does not carry a necessary connotation that the jury disbelieved the complainant - the verdict may be explained by the proper application of the standard of proof to evidence which is uncertain or equivocal, or in respect of which a reasonable doubt cannot be excluded for some other reason.[92] Further, an appellate court must also take account of the jury's prerogative of mercy, which might cause verdicts of acquittal to be returned out of 'their innate sense of fairness and justice in place of the strict principles of law',[93] although this seems an unlikely explanation for the verdicts of acquittal in this case.
172 The combination of these principles has the consequence that in cases of alleged sexual offences turning upon the resolution of conflicting testimony given by the complainant and the accused, this ground of appeal will not be made out merely by asserting that verdicts of acquittal must mean that the jury was not satisfied as to the veracity of the complainant's evidence, with the result that the guilty verdicts cannot stand. That is essentially the proposition advanced on behalf of the appellant in this case. However, it is clear from the principles to which I have referred that more detailed analysis of the evidence relating to the verdicts which are said to be inconsistent is required. For the reasons which follow, in this case such an analysis shows that the jury's verdicts can be readily reconciled with the evidence led in respect of particular counts.
173 The appellant was convicted of count 1 on the indictment, which related to the first occasion upon which the appellant was alleged to have had any sexual contact with the complainant. The evidence in support of the charge bore a striking similarity to the circumstances of the appellant's prior conviction for an offence against MSO, in that both MSO and the complainant asserted that after inquiring whether they had developed pubic hair, the appellant asked to see their penis. The complainant's evidence was to the effect that the offence occurred on an evening at which he attended a basketball game in which his older sister was playing. He asserted that during a break in the game, the appellant had taken him to his grandmother's house which was nearby, where the offence occurred. The complainant's grandmother gave evidence confirming these events. Her evidence was that when she learnt that the appellant was at her house with the complainant, she telephoned him from the basketball game and directed him to return immediately.[94] Further, during his interview by police, the appellant confirmed that on one occasion he had gone to watch the complainant's sister play basketball and had gone with the complainant from the game to his grandmother's house where they used a computer. However, in his evidence the appellant denied the commission of the offence.[95]
174 The appellant was acquitted on each of these counts. Each of these counts were said to have occurred on the same occasion. The evidence given by the complainant in relation to these counts was particularly vague. He was unable to identify any date upon which they occurred, or the day of the week, or to link the offences to any particular occasion other than a reference to 'one time he came down to install skirting boards in our house'.[96] He also said that the appellant would come to the Rockingham area, where the offence allegedly occurred, to take photos of the babies of another relative 'or something, I don't know'.[97] He also said that his grandmother was present in the house, and she used to come to visit on the weekend, although he went on to say that the appellant came down on weekends but his grandmother 'might not have been there. I'm not sure. I'm just - I remember her being there I think. But it might have been another time.'[98]
175 There was no other evidence from which the jury might have identified the occasion upon which the offences allegedly occurred. The appellant denied their occurrence.
176 Count 4 was the first of three counts which were alleged to have occurred during a visit by the appellant and the complainant to a rural property with which their family had a long connection. Although the date of the trip was uncertain, during the trial it was possible to identify the date of the alleged offence with precision, because the appellant had taken photographs which were date stamped 5 June 2011.
177 The complainant stated that during the visit he and the appellant went to visit a rock formation near the homestead in order to take photographs of the rock and surrounding landscape. He asserted that the offence took place behind the rock. The complainant's grandmother confirmed the visit to the homestead by the appellant and the complainant, and that the two of them went to the rock to take photographs.
178 During his interview by police, the appellant confirmed the visit and that he and the appellant visited a rock in order to take photographs, although he denied the commission of the offences. He asserted that the offences could not have taken place because of the presence of others in the area, although he accepted that the photographs which he took do not depict any others, and of course the complainant's evidence was to the effect that the offence took place behind the rock. Bushes were growing in the area which were around 2 m high and which may well have obscured the appellant and complainant from sight.
179 The appellant was acquitted of counts 5 and 6, which are the other two offences alleged to have occurred during the country visit. On behalf of the appellant it is submitted that the evidence relating to those offences is indistinguishable from the evidence relating to count 4, on which the appellant was convicted. Counts 5 and 6 were alleged to have occurred later on the evening of the day upon which count 4 occurred, in the car (count 5) and in a bedroom at the house (count 6). However, the complainant's grandmother gave evidence to the effect that the appellant did not stay at the house that night, but instead took his mother to her home at another country town. She denied that the appellant and the complainant were together in the car at any point later in the day after they had taken photographs near the rock.
180 Further, the complainant's evidence relating to the offences the subject of counts 5 and 6 was vague, and he was uncertain as to his age at the time they occurred. He also asserted that the commission of the offences was interrupted by the presence of his aunt, although the aunt was not called by the prosecution to give evidence at trial.
181 Accordingly, it is not correct to assert that the evidence with respect to count 4, upon which the jury convicted, is indistinguishable from the evidence with respect to counts 5 and 6 upon which the jury acquitted. The evidence of the complainant's grandmother confirmed the occasion upon which the appellant had the opportunity to commit count 4, but the complainant's evidence as to counts 5 and 6 was contrary to that given by his grandmother. Further, the jury might reasonably have entertained a doubt arising from the failure of the prosecution to call evidence from the complainant's aunt.
182 The appellant was acquitted of counts 7 and 8. The complainant's evidence with respect to the weekend upon which those counts were allegedly committed was vague, and although the particulars of the complaints asserted that the offence occurred between October 2010 and April 2011, photographs taken by the appellant over the weekend in question established that it was the weekend of 18-19 December 2009. Apart from the appellant's admission to police that he recalled the weekend in question, and that he may have been alone with the complainant for a short time during that weekend, there was no other evidence to confirm the incidents alleged by the complainant. The appellant emphatically denied the commission of the offence, the subject of count 7, and equally emphatically denied going to Point Peron that weekend, where count 8 is alleged to have occurred. There was no other evidence placing the appellant and the complainant together at Point Peron that weekend.
183 The appellant was convicted of count 9, which was alleged to have occurred on 29 March 2012. An entry in the records produced by the appellant's bank confirming a purchase by the appellant at 8.57 pm that evening was consistent with the complainant's evidence. Further, the complainant's grandmother confirmed that on a number of occasions the appellant and the complainant would sit in the appellant's car to listen to CDs, consistently with the complainant's evidence relating to this particular count.[99] The appellant admitted to police that he had sat in his car with the complainant listening to CDs on a number of occasions, including the particular CD which the complainant linked to the offence the subject of count 9.
184 A number of counts on the indictment were alleged to have occurred at the Ocean Clipper Inn at Rockingham. Counts 10, 11 and 12 were the first of those counts in point of time, and were each said to have occurred on Wednesday, 19 October 2011. Counts 13, 14 and 15 were the second set of offences said to have occurred at the Ocean Clipper Inn in point of time, and were each said to have occurred a week later, on Wednesday, 26 October 2011. The appellant was acquitted of these six offences.
185 The jury's verdict in relation to these counts may have been influenced by statements made by the complainant during his recorded interview to the effect that after the offence the subject of count 9, the appellant 'used to come down on Tuesdays only'.[100] On two other occasions during his interview, the complainant stated that the offences in the motel occurred on Tuesdays and that it was 'always on a Tuesday'.[101] Further, evidence adduced by an employee of the Ocean Clipper Inn who had access to the hotel's records established that the appellant checked into the hotel at 1.44 pm on the day upon which the offences, the subject of counts 10, 11 and 12 were said to have occurred, and between 1.25 pm and 1.31 pm on the day upon which the offences the subject of counts 13, 14 and 15 were alleged to have occurred. The jury would no doubt have taken account of the fact that each of these times was during normal school hours, and the complainant's evidence was to the effect that the appellant would pick him up from school in Mount Lawley after school finished and drive him down to Rockingham where they would go to the motel.
186 The appellant gave evidence of the events which took place during the afternoon and early evening of 19 October 2011. That evidence was corroborated by his bank records, which showed purchases at times and places consistent with his evidence. The appellant denied ever being with the complainant at the Ocean Clipper Inn on 19 or 26 October 2011.
187 The trial judge directed that verdicts of acquittal be entered on each of these counts after upholding a submission that the appellant had no case to answer in relation to them.
188 The appellant was convicted of the remaining 12 counts on the indictment, which all related to offences allegedly committed at the Ocean Clipper Inn on Tuesday 28 February, Tuesday 20 March, Tuesday 1 May and Tuesday 15 May 2012.
189 It will immediately be noticed that the tension between the complainant's evidence to the effect that the offences at the Ocean Clipper Inn always took place on a Tuesday, and the evidence he gave in relation to the offences the subject of counts 10 - 15 is not present in relation to these counts. Further, the jury may well have attributed significance to the appellant's admission during cross-examination that he recalled taking the complainant to the Ocean Clipper Inn on four occasions,[102] including 28 February 2012 (when counts 22 - 24 were alleged to have occurred), and 20 March 2012 (when counts 25 - 27 were alleged to have occurred).[103] That evidence was consistent with the appellant's statement to police to the effect that the complainant had been with him at the Ocean Clipper Inn on Tuesdays, although he asserted to police that the complainant was only with him at the hotel once or twice (contrary to his evidence at trial).
190 Records from the appellant's bank and from the records maintained by the hotel suggested that the appellant checked in at 4.07 pm on 28 February 2012, at 3.55 pm on 20 March 2012, at 4.06 pm on 1 May 2012, and at 3.32 pm on 15 May 2012. The check-in time on the first three of those occasions is entirely consistent with the complainant's evidence to the effect that the appellant picked him up from school in Mount Lawley, and then drove to Rockingham where they checked into the motel. On behalf of the appellant it is submitted that the earlier check-in time on the last occasion is inconsistent with that evidence. However, there was evidence of Facebook communications between the appellant and complainant to the effect that the appellant was to pick the complainant up at 2.50 pm, rather than 3 pm, and although the appellant accepted during cross-examination that he had said he would pick the complainant up at 2.50 pm, he continued to maintain that the complainant did not finish school until 3 pm. By contrast, the complainant gave evidence to the effect that in fact he finished school at 2.50 pm, and that with 'a clear run', it was possible to travel from Mount Lawley High School to Rockingham between 2.50 pm and 3.30 pm. It was open to the jury to accept that evidence.
191 Further, in relation to the last counts on the indictment which were said to have occurred on 15 May 2012, the complainant gave evidence to the effect that he accidently left a book behind in the appellant's car. Evidence from the Facebook communications between the appellant and the complainant established that later that evening the appellant sent a message to the complainant which included:
[A]lso ... u forgot yr book, doesn'tmatter tho, next time ay? [sic]
192 Accordingly, it can be seen that the appellant was convicted of the counts relating to offences which allegedly occurred at the Ocean Clipper Inn where the evidence relating to those counts was consistent with the complainant's evidence to the effect that the offences always occurred on a Tuesday, and in respect of which the evidence established check-in times that were consistent with the complainant's evidence to the effect that he was driven to the hotel by the appellant after school. By contrast, the appellant was acquitted of counts 10 - 15 where those features were not present.
193 This analysis of the various counts on the indictment shows that the appellant was convicted on counts in respect of which the complainant gave specific evidence of occasions which were consistent with the evidence given by others. However, the appellant was acquitted on counts in respect of which the complainant's evidence was vague or uncertain, or which lacked any support from the evidence of others, or in respect of which there were inconsistencies in his evidence. The jury's verdicts are explicable by a reasoned approach to the analysis of the evidence relating to the individual counts on the indictment which was entirely consistent with the jury's responsibilities and which does not suggest any inconsistency or illogical or impermissible reasoning. Leave to appeal should be refused in respect of ground 4, and the ground dismissed.
194 Ground 5 asserts that the verdicts of guilty were unsafe and unsatisfactory having regard to all the evidence and all the circumstances of the case. When that ground of appeal is invoked, it is, of course, necessary for the appellate court to undertake its own assessment of the entire record of the trial, including all the evidence, and make its own independent assessment of whether it would be dangerous in all the circumstances to allow the verdict of guilty to stand.[104]
195 In this case it has been necessary to undertake that task in any event in order to assess the appellant's allegation that the jury's verdicts were inconsistent.[105] The reasons I have given in relation to that assertion conveniently summarise the evidence given in support of each of the counts upon which the appellant was convicted, including the features of the evidence which supported the statements made by the complainant. That analysis does not suggest any deficiencies or other characteristics of the evidence upon which the jury relied to convict which would render it 'dangerous' to allow the verdicts to stand.
196 In these circumstances it is sufficient to address ground 5 by reference to the specific features of the evidence which the appellant asserts sustain the conclusion that his convictions were unsafe and unsatisfactory.
197 The first matter to which attention is drawn by the particulars of ground 5 is an asserted inconsistency with the appellant's acquittal on counts 2 - 3, 5 - 8 and 10 - 15. For the reasons I have already given, there is no inconsistency between the verdicts of acquittal on those counts and the verdicts of guilty on the counts which were left to the jury.
198 It is undoubtedly true that the complainant did not complain to anyone with respect to the appellant's alleged misconduct until June 2012 when his mother contacted police to express her concern with respect to the extent of the contact between the appellant and the complainant. However, the lack of any such complaint could easily be referrable to the complainant's vulnerability (he was aged 11-14 during the period of the alleged offences), and perhaps to the various benefits he was deriving from his association with the appellant, including regular gifts. Lack of early complaint in the case of sexual offences against children is, of course, commonplace and of itself incapable of supporting the conclusion that the verdicts of guilty were unsafe and unsatisfactory.
199 The alleged offending conduct did not come to the attention of the investigating authorities at a point in time at which it would have been practical or feasible to recover forensic evidence from the hotel or other places where the offences were alleged to have occurred. In those circumstances, the lack of any such evidence does not suggest that the guilty verdicts were unsafe or unsatisfactory. Further, while it is true that there was no evidence corroborating the commission of the offences, my reasons for dismissing ground 4 show the extent to which the complainant's evidence was generally supported by reliable evidence from other sources in respect of those counts upon which the jury convicted the appellant. But in any event, the absence of independent corroboration is another commonplace feature of child sex offences and does not lead to the conclusion that the convictions were unsafe and unsatisfactory.
200 While obviously a confession by the appellant would have strengthened the case against him, it cannot be suggested that the absence of such a confession weakens the prosecution case.
201 I have referred above to the evidence relating to the state of the appellant's penis and to the photographs of the penis in a flaccid state which were tendered in evidence. As I have noted, the appellant admitted telling police in 2004 that he had been circumcised, and in his evidence in these proceedings he stated that he had undergone a partial circumcision. However, he asserted that his penis had the appearance of being uncircumcised.
When his penis was erect it - the foreskin you would - it was completely pulled back. There was no foreskin. Maybe - maybe like a slight amount but when his penis was flaccid it still - it did cover part of the tip of his penis but there was still part of his penis visible under - underneath it.[106]
203 There is no necessary inconsistency between this evidence and the somewhat equivocal evidence relating to the precise nature of the surgery undertaken with respect to the appellant's penis.
204 For the reasons given in relation to ground 4, the evidence relating to the time of the motel check-ins is consistent with the jury's verdicts of guilty in relation to counts 22 - 33.
205 For the reasons I have given in relation to ground 4, there is no inconsistency between the jury's verdict of guilty in relation to one of the counts allegedly committed during the course of the country visit, and its acquittal in respect of the two other offences which were alleged to have occurred during that visit.
206 The Facebook communications between the appellant and the complainant do not reveal communications with a sexual or affectionate connotation. However, although subterfuge was used to conceal these communications, as a result of his prior convictions, the appellant had every reason to avoid leaving any permanent record of a communication with a young boy having a sexual or other untoward connotation. The absence of such communications is readily explicable, and does not lead to the conclusion that it would be dangerous to allow the appellant's convictions to stand.
207 As I have noted, the jury were not satisfied beyond reasonable doubt of the evidence relating to the offence alleged to have occurred at Point Peron. However, for the reasons I have given in relation to ground 4, it does not follow that the complainant's evidence generally lacked credibility or should be rejected.
208 Having regard to the evidence as a whole, and taking into account the particular aspects of the evidence to which the appellant draws attention in support of this ground, both individually and in combination, there is nothing to suggest that it would be dangerous to allow the jury's verdicts of guilty to stand. Leave to appeal in respect of ground 5 should be refused, and the ground dismissed.
209 For the reasons I have given, leave to appeal should be refused in respect of grounds 2 - 5 inclusive, and those grounds dismissed. However, leave to appeal should be granted in respect of ground 1, that ground allowed, the appellant's conviction set aside, and a retrial ordered in respect of those counts of which the appellant was convicted. However, because that is a minority view, it is now appropriate to consider the appeal against sentence.
The appeal against sentence Sentencing observations
210 After receiving written and oral submissions with respect to sentence, the trial judge set out his findings of fact with respect to the circumstances of each offence committed by the appellant. He then observed that he was obliged to impose a sentence which was commensurate with the seriousness of the offences committed, taking into account all aggravating and mitigating factors.
211 The trial judge identified seven specific factors which he considered aggravated the offences committed by the appellant. First, the offences were committed over a period of almost three years and could not therefore be seen to be the result of a momentary lapse of reason. Second, the offences were planned in the sense that the appellant engaged in a prolonged course of conduct directed at gaining the complainant's trust and grooming him for the commission of the offences subsequently committed against him.
212 Third, the appellant targeted the complainant at a time when he knew that he was or least might be emotionally vulnerable as a result of the difficult domestic situation he was in. Fourth, the appellant breached the trust which the complainant had placed in him by taking advantage of the feelings of friendship and gratitude which the appellant had engendered.
213 Fifth, the appellant's conduct constituted a grave breach of the trust which had been placed in him by members of his family by allowing him back into the fold after his release from prison. Sixth, the sexual acts committed by the appellant against the complainant that formed the basis of the indecent dealing offences were towards the higher end of the scale of seriousness.
214 Seventh, the appellant's conduct had had a significant adverse effect upon the complainant, as revealed by the victim impact statement which had been tendered to the court. The trial judge noted that the complainant reported that he lacked self-worth and confidence, felt withdrawn and found it hard to motivate himself to attend social events and to apply himself to his studies. The complainant had ongoing feelings of guilt and shame and found the court experience to be traumatic.
215 For these reasons the trial judge concluded that the appellant's conduct demonstrated a high degree of culpability or moral blameworthiness.
216 The trial judge then related the appellant's personal circumstances at some length. In that context he noted that the appellant suffered from type 2 diabetes. The trial judge accepted a submission made by counsel to the effect that the inability to control his diet whilst in prison would make it likely that the diabetes would have to be controlled by insulin, but did not consider that to be a significant mitigatory factor in all the circumstances of the case.
217 In relation to mitigating circumstances, the trial judge noted that as a result of the appellant's prior convictions he was not entitled to any leniency for good character. Further, the appellant's continuing denial of his guilt meant that he was not entitled to the benefit of any discount for a plea of guilt, or the mitigatory benefit of any demonstration of remorse or insight into his offending behaviour.
218 The trial judge also observed that given the appellant's refusal to acknowledge his guilt, it would appear that his offending behaviour is likely to remain unaddressed, although he noted that the appellant had indicated a willingness to engage in a sexual offender treatment programme offered to those who deny their guilt.
219 The trial judge expressed his satisfaction beyond reasonable doubt that the appellant had a deviant sexual interest in young boys, and that because he continued to falsely deny his offences and his sexual interest, with the consequence that he was not taking any steps to address his problem, he would, if released into the community, be at high risk of committing further sexual offences against young boys. It followed that in the view of the trial judge, protection of the public was a factor properly considered in the sentencing process.
220 The trial judge also considered that weight needed to be given to general deterrence and to specific deterrence, given the appellant's prior record of offending.
221 Following those observations, the trial judge imposed the following sentences of imprisonment:
222 The trial judge then referred to both limbs of the totality principle. In the context of the second limb of that principle, he expressed the view that at the age of 68, the appellant was not a person of advanced years such that the total effective sentence which was to be imposed would leave him with no prospect of a meaningful life after release. In that context, the trial judge noted that there was nothing before him to suggest that the appellant's state of health would rapidly worsen while in prison, nor that he would be likely to die in gaol during the total effective term which he was proposing to impose. Accordingly, the trial judge concluded that while the appellant's age was something properly taken into account, he did not consider that the second limb of the totality principle had any particular application to the sentences which he proposed to impose.
223 In relation to the first limb of the totality principle, the trial judge expressed his conclusion that a total effective sentence of 7 years and 10 months imprisonment reflected the appellant's overall criminality, and achieved that result by declaring that the sentences imposed in respect of counts 4, 9, 24 and 27 were to be served cumulatively on each other, but all other sentences were to be served concurrently with the other sentences imposed.
224 There are three grounds of appeal although, as will be seen, in substance the third ground of appeal adds nothing to the second ground.
225 The first ground of appeal asserts that the sentence imposed by the trial judge was vitiated by specific error, being the finding of fact to the effect that the appellant would be at high risk of committing further sexual offences against boys if steps were not taken to address his problems. The error is said to lie in the fact that the finding was not supported by specialist medical or psychiatric evidence or other empirical evidence upon which the finding could be made.
226 No authority has been cited in support of the proposition that a sentencing judge can only make a finding with respect to the risk of an offender re-offending on the basis of expert evidence verified by research, such as psychometric testing. No doubt that is because the proposition is entirely contrary to long-established practice pursuant to which courts have commonly formed and expressed views with respect to the likelihood of an offender reoffending based upon the application of common sense and forensic experience to the circumstances established by the evidence before the court.
227 The process of reasoning followed by the trial judge to arrive at the conclusion that the appellant was likely to represent a high risk of reoffending unless his problems were addressed was entirely conventional and appropriate. The appellant had prior convictions for seven offences committed against four young boys in 2004. He continued to deny his guilt of those offences. Following his imprisonment for those offences he was released from custody and placed on the sex offenders' register. Notwithstanding his punishment for those offences, and the constraints upon his activities by reason of being placed upon the sex offenders' register, within a relatively short period following his release from prison he started grooming the complainant. The appellant's offences against the complainant commenced in a way that was strikingly similar to one of the offences he had previously committed, and was sustained over a lengthy period approaching almost three years. Following his arrest, the appellant continued to deny his guilt, and maintained that denial notwithstanding his conviction, with the consequence that the only programme that might be available to him is a programme for sexual offenders who deny their guilt.
228 Those facts provided an entirely adequate basis for the finding made by the trial judge with respect to the appellant's risk of reoffending. Ground 1 of the appeal against sentence is without substance. Leave to appeal should be refused and the ground dismissed.
229 Grounds 2 and 3 assert that the total effective sentence imposed was excessive having regard to both limbs of the totality principle. Ground 3 asserts that the sentence imposed was manifestly excessive, having regard to comparable cases. However, it is clear from the argument advanced in support of ground 3 that it does not refer to the sentences imposed in respect of any of the individual counts for which the appellant was sentenced, but only to the total effective sentence of 7 years and 10 months. If that sentence was, having regard to comparable cases, manifestly excessive, it would not be proportionate to the total criminality involved and would therefore infringe the first limb of the totality principle. Accordingly, ground 3 adds nothing to ground 2.
230 The argument with respect to the second limb of the totality principle can be quickly addressed. The trial judge was correct to conclude that at the age of 68 at the time of sentence, the appellant could not be described as a man of 'very advanced years'.[107] The appellant will be eligible for parole at the age of 74 and will have completed his sentence two years later. As the trial judge found, there is no reason to suppose that the appellant might die in prison or suffer such a deterioration in his health as to be deprived of any meaningful life after release. In a context in which the appellant served a term of imprisonment for sexual offences against young boys whilst in his sixties, it would be quite inappropriate to reduce the sentence otherwise imposed upon him for further offences of that character committed relatively shortly after his release by reason of his age.
231 Turning to the first limb of the totality principle, reference is made to a number of specific cases in the written submissions filed on behalf of the appellant which are said to support the proposition that the total effective sentence imposed upon the appellant is manifestly excessive.[108] It is unnecessary to refer to any of those cases in detail because their circumstances are very different to the circumstances of the present case. In particular, none of those cases involved criminal conduct at the upper end of the level of seriousness over such a prolonged period as this case. Further and in any event, it is well established that manifest excess cannot be established by pointing to one or two cases which are said to be comparable to the case at hand and in which lesser sentences were imposed, nor by pointing to one or two cases which are said to be more serious but in respect of which a similar sentence was imposed. Rather, manifest excess, or in the context of the first limb of the totality principle, a sentence which is disproportionate to the total criminality involved, must be assessed by reference to standards of sentence customarily imposed for conduct of the kind committed ascertained from the range and spread of previously decided cases.
232 Regrettably, there are a significant number of cases in which sentences have been imposed for multiple sexual offences against children. Those cases have provided a basis for this court to undertake a review of the range of such sentences from time to time.[109] In The State of Western Australia v Prince,[110] McLure P undertook a review of sentences imposed since the previous review of such decisions in VIM, and concluded that the range of sentences imposed following conviction after trial was between 6 years and 14 years and 6 months imprisonment.
233 The breadth of that range obviously reflects the wide range of circumstances in which offences of this character can be committed.[111] More recently in FJG, Mazza JA identified a further three cases in this court relating to sentences imposed after trial since the decision in Prince was published in which sentences of between 11 and 14 years imprisonment were imposed.[112]
234 The offences committed by the appellant were aggravated by the specific factors identified by the trial judge. There were no significant mitigating circumstances, given the appellant's prior convictions, his continued denial of his guilt and his lack of remorse and insight. The trial judge was correct to describe the offences as lying at the upper end of the range of seriousness. In the circumstances of this case, the total effective sentence of 7 years and 10 months imprisonment could not be said to be manifestly excessive, nor to be disproportionate to the total criminality involved in a prolonged course of serious criminal conduct.
235 For these reasons leave to appeal should be refused in respect of grounds 2 and 3 of the appeal against conviction and those grounds dismissed.
236 For these reasons, leave to appeal should be refused in respect of each proposed ground of appeal and the appeal against sentence dismissed.
237 BUSS JA: The appellant appeals against conviction and sentence.
238 He was charged on indictment with 33 counts of sexual offending against a boy.
239 The appellant pleaded not guilty to all of the counts.
240 Between 22 July 2013 and 1 August 2013 he was tried in the District Court before Derrick DCJ and a jury. On 1 August 2013, the jury returned verdicts of guilty on 15 of the counts, namely on counts 1, 4, 9 and 22 - 33. The appellant was acquitted on the other counts. As to counts 16 - 21, the trial judge found there was 'no case to answer' pursuant to s 108 of the Criminal Procedure Act 2004 (WA). As to counts 2, 3, 5 - 8 and 10 - 15, the jury returned verdicts of not guilty.
241 On 24 September 2013, the trial judge imposed a total effective sentence of 7 years 10 months' imprisonment. The sentence was backdated to 1 August 2013, when the appellant was taken into custody for the offences. A parole eligibility order was made.
242 I would dismiss both of the appeals. My reasons are as follows.
Summary of the convictions recorded and the sentences imposed
243 The offences on which convictions were recorded may be summarised as follows:
(a) one count of indecent dealing with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code (WA) (the Code);
(b) nine counts of indecent dealing with a child of or over the age of 13 and under the age of 16 years, contrary to s 321(4) of the Code; and
(c) five counts of sexual penetration of a child of or over the age of 13 and under the age of 16 years, contrary to s 321(2) of the Code.
244 The following sentences of imprisonment were imposed:
The age of the appellant and the age of the complainant
245 The appellant was born in 1945. He was aged between 64 and 67 years at the time of the offending.
246 The complainant was born in 1997. He was aged between 11 and 14 years when the offending occurred.
The relationship between the appellant and the complainant
247 The appellant and the complainant are second cousins. The complainant's father is the appellant's cousin. The complainant's grandmother is the appellant's aunt.
The State's application to adduce propensity evidence at the trial
248 In about early June 2013, the State made application pursuant to s 31A of the Evidence Act 1906 (WA) to adduce propensity evidence at the trial.
249 The propensity evidence concerned the appellant's prior convictions for sexual offending against boys.
250 On 26 August 2005, the appellant was convicted, after a trial in the District Court before a judge and jury, of seven counts in an indictment. The convictions related to offences committed in 2003 and 2004 against four separate victims. The victims were aged between 11 - 13 years at the time of the offending. The appellant and the victims lived in rural Western Australia. The victims knew and trusted the appellant.
251 On 17 June 2013, Stevenson DCJ heard the application. His Honour held that the propensity evidence was admissible under s 31A.
The appellant's application for a trial by a judge alone
252 In about early June 2013, the appellant made application pursuant to s 118 of the Criminal Procedure Act for an order that his trial on the counts in the indictment be by a judge alone without a jury.
253 On 20 June 2013, Martino CJDC heard the application and dismissed it.
254 The State's case at trial was, in summary, as follows.
255 The appellant committed multiple sexual offences against the complainant over a number of years at various locations in Western Australia.
256 Between 1 July 2009 and 31 December 2009, at Balga, the appellant attended a basketball game at Herb Graham Recreation Centre with the complainant and his family. During the game the appellant and the complainant went to the complainant's grandmother's house. The rest of the family remained at the Recreation Centre. At the house the appellant asked to see the complainant's pubic hair. The complainant showed the appellant his pubic hair for a few seconds (count 1).
257 Between 24 August 2009 and 25 August 2010, at Rockingham, the appellant went to the complainant's father's house. The complainant was there with his grandmother, who was sleeping in a bedroom. The appellant asked the complainant if he wanted to look at something on the computer in the complainant's bedroom. The appellant accompanied the complainant to his bedroom and shut the door. The appellant asked the complainant if he (the complainant) could stretch his penis to his navel. The complainant turned into a corner to attempt this action, but was asked by the appellant to turn around and show him (count 2). The appellant then approached the complainant and masturbated the complainant to ejaculation (count 3).
258 On 5 June 2011, in rural Western Australia, the appellant went to the family homestead, which I will call the M homestead, with the complainant and his grandmother. At the homestead, the appellant took the complainant for a walk to photograph rock formations in the area. When they were engaged in this activity, the appellant masturbated the complainant to ejaculation (count 4).
259 Also, at the M homestead, the appellant asked the complainant to accompany him to his car and help him carry some things into the homestead. At the car, the appellant held the complainant's penis and masturbated him (count 5).
260 On the same night, the appellant went to the complainant's room and sat on his bed. He began masturbating the complainant until he heard the complainant's aunt nearby (count 6).
261 On or about 18 December 2009, at Rockingham, the complainant was at his father's house with other family members and the appellant, swimming in the pool. The complainant's father and step-mother went out and left the complainant's grandmother asleep in the house. The complainant went into the house to dry himself. The appellant followed him and performed fellatio on the complainant to ejaculation (count 7).
262 On the same day, the appellant and the complainant went to Point Peron to take photographs. At Point Peron, the appellant performed fellatio on the complainant to ejaculation (count 8).
263 On 29 March 2012, the appellant collected the complainant from a music lesson, took him to JB Hifi to purchase CDs and then drove the complainant to the complainant's grandmother's house. When the car was in the driveway of the house, the appellant started performing fellatio on the complainant. The complainant's grandmother came out and told them to come inside. The appellant placed a pillow over the complainant's groin area. When the complainant's grandmother returned to the house, the appellant removed the pillow and continued performing fellatio to ejaculation (count 9).
264 On 19 October 2011, the appellant took the complainant to a room at the Ocean Clipper Inn in Rockingham. The appellant placed towels on the bed and asked the complainant to undress and lie on the bed. The appellant also undressed and lay on the bed beside the complainant. The appellant then masturbated the complainant and performed fellatio on him to ejaculation (counts 10 and 11). The appellant asked the complainant to masturbate him. The complainant did so. The appellant then masturbated himself to ejaculation (count 12).
265 On 26 October 2011, the appellant again took the complainant to a room at the Ocean Clipper Inn in Rockingham. The appellant placed towels on the bed and asked the complainant to undress and lie on the bed. The appellant also undressed and lay on the bed beside the complainant. The appellant then masturbated the complainant and performed fellatio on him to ejaculation (counts 13 and 14). The appellant asked the complainant to masturbate him. The complainant did so. The appellant then masturbated himself to ejaculation (count 15).
266 On 29 November 2011, the appellant again took the complainant to a room at the Ocean Clipper Inn in Rockingham. The appellant placed towels on the bed and asked the complainant to undress and lie on the bed. The appellant also undressed and lay on the bed beside the complainant. The appellant then masturbated the complainant and performed fellatio on him to ejaculation (counts 16 and 17). The appellant asked the complainant to masturbate him. The complainant did so. The appellant then masturbated himself to ejaculation (count 18).
267 On 13 December 2011, the appellant again took the complainant to a room at the Ocean Clipper Inn at Rockingham. The appellant placed towels on the bed and asked the complainant to undress and lie on the bed. The appellant also undressed and lay on the bed beside the complainant. The appellant then masturbated the complainant and performed fellatio on him to ejaculation (counts 19 and 20). The appellant asked the complainant to masturbate him. The complainant did so. The appellant then masturbated himself to ejaculation (count 21).
268 On 28 February 2012, the appellant again took the complainant to a room at the Ocean Clipper Inn in Rockingham. The appellant placed towels on the bed and asked the complainant to undress and lie on the bed. The appellant also undressed and lay on the bed beside the complainant. The appellant then masturbated the complainant and performed fellatio on him to ejaculation (counts 22 and 23). The appellant asked the complainant to masturbate him. The complainant did so. The appellant then masturbated himself to ejaculation (count 24).
269 On 20 March 2012, the appellant again took the complainant to a room at the Ocean Clipper Inn in Rockingham. The appellant placed towels on the bed and asked the complainant to undress and lie on the bed. The appellant also undressed and lay on the bed beside the complainant. The appellant then masturbated the complainant and performed fellatio on him to ejaculation (counts 25 and 26). The appellant asked the complainant to masturbate him. The complainant did so. The appellant then masturbated himself to ejaculation (count 27).
270 On 1 May 2012, the appellant again took the complainant to a room at the Ocean Clipper Inn in Rockingham. The appellant placed towels on the bed and asked the complainant to undress and lie on the bed. The appellant also undressed and lay on the bed beside the complainant. The appellant then masturbated the complainant and performed fellatio on him to ejaculation (counts 28 and 29). The appellant asked the complainant to masturbate him. The complainant did so. The appellant then masturbated himself to ejaculation (count 30).
271 On 15 May 2012, the appellant again took the complainant to a room at the Ocean Clipper Inn in Rockingham. The appellant placed towels on the bed and asked the complainant to undress and lie on the bed. The appellant also undressed and lay on the bed beside the complainant. The appellant then masturbated the complainant and performed fellatio on him to ejaculation (counts 31 and 32). The appellant asked the complainant to masturbate him. The complainant did so. The appellant then masturbated himself to ejaculation (count 33).
272 The appellant's case at trial was, in summary, as follows.
273 The appellant gave sworn evidence and denied having committed any of the alleged offences.
274 As to count 1, the appellant admitted attending a basketball game at Herb Graham Recreation Centre with the complainant and his family. He also admitted that during the game he returned with the complainant to the complainant's grandmother's house while the others remained at the Recreation Centre. According to the appellant, he and the complainant used a laptop computer at the house. The appellant confirmed every aspect of the circumstances surrounding the alleged incident, but denied having committed the offence.
275 As to count 4, the appellant admitted that he went to the M homestead with the complainant and his grandmother. He also admitted walking with the complainant to rock formations in the area and taking photographs. However, he denied having committed the alleged offence.
276 As to count 9, the appellant admitted being alone with the complainant in the appellant's motor vehicle, listening to CDs, 'probably three times' (VROI 61), but he denied having committed the alleged offence.
277 As to counts 22 - 33, the appellant admitted having taken the complainant to the Ocean Clipper Inn on four occasions (ts 682 - 683). In particular, he accepted that the complainant was with him at the Ocean Clipper Inn on 28 February 2012 (being the date on which counts 22, 23 and 24 were allegedly committed) and on 20 March 2012 (when counts 25, 26 and 27 were allegedly committed). The appellant denied having offended against the complainant as alleged in counts 22 - 33.
Appeal against conviction: the grounds of appeal
278 The appellant relies on five grounds of appeal.
279 Ground 1 alleges that Martino CJDC erred in deciding 'not to allow the appellant a judge-alone trial' under s 118 of the Criminal Procedure Act.
280 Ground 2 alleges that Stevenson DCJ erred in permitting the State to adduce propensity evidence under s 31A of the Evidence Act in relation to the appellant's prior convictions.
281 Ground 3 alleges that Stevenson DCJ erred 'by dealing with the proposed [propensity evidence] as a whole rather than making an assessment of each part of that evidence individually'.
282 Ground 4 alleges that the verdicts of guilty on counts 1, 4, 9 and 22 - 33 were 'inconsistent' with the verdicts of acquittal on the remaining counts, and 'rendered the convictions unsafe and unsatisfactory'.
283 Ground 5 alleges that the verdicts of guilty are 'unsafe and unsatisfactory having regard to all the evidence and all the circumstances of the case'.
284 On 9 February 2014, Mazza JA referred the application for leave to appeal on these grounds to the hearing of the appeal.
Appeal against conviction: the organisation of the balance of these reasons
285 It is convenient to consider the grounds of appeal in the following order: initially ground 2, then ground 3, next ground 1, then ground 4 and finally ground 5.
Appeal against conviction: ground 2: s 31A of the Evidence Act
286 Section 31A of the Evidence Act provides, relevantly:
(1) In this section -
propensity evidence means -
(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.
287 'Propensity evidence' is not admissible under s 31A unless the court considers that:
(a) the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b) 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.
288 Where 'propensity evidence' is disputed by the accused, it is, nevertheless, admissible as part of the State's case if the conditions in s 31A(2)(a) and (b) are satisfied.
289 In Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [60] - [61], Steytler P said in relation to the concept of 'significant probative value' within s 31A(2)(a):
The evidence in question must obviously be relevant before it can be admitted into evidence. That is to say, it must be such as could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding: Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [2] (Gleeson CJ); Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 [50]. It could otherwise have no probative value, let alone 'significant' probative value.
Before evidence can have significant probative value it must be such as 'could rationally affect the assessment of the probability of the relevant fact in issue to a significant extent: ie, more is required than mere ... relevance': Zaknic Pty Ltd v Svelte Corporation Pty Ltd [1995] FCA 1739; (1995) 61 FCR 171, 175 - 176. Heydon [21245] suggests that significant probative value is something more than mere relevance but something less than a 'substantial' degree of relevance and that it is a probative value which is 'important' or 'of consequence'. He makes the point that the significance of the probative value of tendency evidence must depend on the nature of the facts in issue to which it is relevant and the significance or importance which that evidence may have in establishing the fact: Lockyer (1996) 89 A Crim R 457, 459; Lock (1997) 91 A Crim R 356, 360 - 361; Fordham (1997) 98 A Crim R 359, 370; Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51 [77] - [82]; The State of Western Australia v Osborne [2007] WASCA 183 [13].
(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.
291 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 [53] (Kirby J).
292 Steytler P's analysis and observations in Dair about s 31A were approved in Horsman v The State of Western Australia [2008] WASCA 190; (2008) 187 A Crim R 565 [22] - [23] (Buss JA, Martin CJ & Miller JA agreeing) and Buiks v The State of Western Australia [2008] WASCA 194; (2008) 188 A Crim R 362 [45] - [46] (Buss JA, Miller JA agreeing).
Appeal against conviction: ground 2: the agreed facts in relation to the propensity evidence
293 At the trial the State tendered a statement of facts in relation to the propensity evidence which had been agreed between the prosecutor and defence counsel.
Appeal against conviction: ground 2: the appellant's submissions
(a) the 'significant prejudicial value' of the propensity evidence was 'likely to impact on the jury to the extent that it was not curable by direction'; and
(b) Stevenson DCJ erred in finding that a fair-minded person would think that the public interest in adducing the propensity evidence was such that the risk of an unfair trial was not outweighed by the probative value of the evidence.
Appeal against conviction: ground 2: its merits
296 I agree with Martin CJ, generally for the reasons he gives, that ground 2 is without merit. Leave to appeal on ground 2 should be refused.
Appeal against conviction: ground 3: the appellant's submissions
(a) some aspects of the propensity evidence were 'significantly stronger' than other aspects;
(b) some of the propensity evidence had 'comparatively low' probative value;
(c) Stevenson DCJ should have dealt with the admissibility of each piece of propensity evidence individually; and
(d) his Honour's failure to deal with the propensity evidence in that manner, and his decision to admit all of the propensity evidence, was erroneous in law.
Appeal against conviction: ground 3: its merits
298 I agree with Martin CJ, generally for the reasons he gives, that ground 3 is without merit. Leave to appeal on ground 3 should be refused.
Appeal against conviction: ground 1: s 118 of the Criminal Procedure Act
299 Section 118 of the Criminal Procedure Act provides:
(1) If an accused is committed on a charge to a superior court or indicted in a superior court on a charge, the prosecutor or the accused may apply to the court for an order that the trial of the charge be by a judge alone without a jury.
(2) Any such application must be made before the identity of the trial judge is known to the parties.
(3) On such an application, the court may inform itself in any way it thinks fit.
(4) On such an application the court may make the order if it considers it is in the interests of justice to do so but, on an application by the prosecutor, must not do so unless the accused consents.
(5) Without limiting subsection (4), the court may make the order if it considers -
(a) that the trial, due to its complexity or length or both, is likely to be unreasonably burdensome to a jury; or
(b) that it is likely that acts that may constitute an offence under The Criminal Code section 123 would be committed in respect of a member of a jury.
(6) Without limiting subsection (4), 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.
(7) If an accused is charged with 2 or more charges that are to be tried together, the court must not make such an order in respect of one of the charges unless the court also makes such an order in respect of each other charge.
(8) If 2 or more accused are to be tried together, the court must not make such an order in respect of one of the accused unless the court also makes such an order in respect of each other accused.
(9) If such an order is made, the court cannot cancel the order after the identity of the trial judge is known to the parties.
Appeal against conviction: ground 1: the appellant's submissions before Martino CJDC and Martino CJDC's reasons
300 Counsel for the appellant in the appeal also appeared for the appellant on the application under s 118 of the Criminal Procedure Act heard by Martino CJDC and as defence counsel at the trial.
301 The application under s 118 was made after Stevenson DCJ had ruled that the propensity evidence sought to be adduced by the State was admissible under s 31A of the Evidence Act. Counsel for the appellant informed Martino CJDC that the application under s 118 'flows as a result of that decision made on Monday by [Stevenson DCJ]' (ts 61).
302 Martino CJDC summarised, in his reasons for decision, the arguments advanced on behalf of the appellant:
Now, [the appellant] does not put forward that there's been any specific publicity about his particular case that warrants an order for trial by judge alone, but what he does put forward is that there has been publicity about child sex offending generally and that coupled with the understandable community revulsion to child sex offending means there's a significant risk that the accused will not receive a fair trial because the members of the jury will not be able to put aside their prejudice caused by that revulsion.
It's also submitted that relevant factors are that the trial will be simpler, won't run off the rails by some inadvertent prejudicial evidence which is inadmissible being before the jury, if that were to happen or something of that nature were to happen then the trial would be able to proceed because if the trial was by judge alone then the parties would be confident that the judge would put out of the judge's mind any irrelevant material that's not admissible that might inadvertently be heard during the trial.
There's no prospect of a hung jury and there's no risk of the tribunal of fact making private research or inquiries without the parties being aware of it. And the hours of sitting won't need to take into account the jurors' requirements (ts 72).
303 His Honour's reasons for dismissing the application were these:
Now, in this case, [the appellant] wishes there to be trial by judge alone. That of course, doesn't determine the application but it is a relevant factor that I bear in mind in making this decision. I also bear in mind that juries are capable of ignoring prejudice and delivering a true verdict according to the evidence.
In my view, the jury will be able to put aside prejudice and impermissible reasoning if a jury does sit on this trial and is the tribunal of fact, particularly with appropriate directions from the trial judge.
Bearing in mind those matters, it's my view that another factor that's relevant is that there's a public interest in appropriate cases that representatives of the community in the form of members of the public who are randomly selected for jury duty, to accept their public responsibility and determine the issue of whether the State has proved an accused person is guilty of a charge that that person faces.
In my view, because I can be confident that a jury, properly directed, could put aside impermissible reasoning and any prejudice, notwithstanding the desire of the accused and the practical matters to which [counsel for the appellant] has referred ... I reach the conclusion that it's not in the interests of justice for there to be trial by judge alone in this case (ts 73 - 74).
Appeal against conviction: ground 1: the appellant's submissions in the appeal
304 Counsel for the appellant submitted in the appeal that:
(a) the appellant's previous convictions had a 'significantly prejudicial effect' which was likely to have an 'overwhelming effect on the jury' that was incapable of being cured by a direction;
(b) the 'significant likelihood' of an unfair trial was capable of being 'completely removed' by a trial before a judge alone; and
(c) in the absence of any community standards which might have been required to be applied by the jury to the facts of the case (see s 118(6)), the appellant's application for a trial by a judge alone should have been granted.
305 At the hearing of the appeal, counsel for the appellant accepted that:
(a) the admissibility of the propensity evidence under s 31A of the Evidence Act was, in substance, the sole reason advanced by the appellant before Martino CJDC as to why it was in the interests of justice to order a trial by a judge alone (appeal ts 13);
(b) the appellant's argument before his Honour was that the propensity evidence would 'overwhelm the jury so that no direction given could cure the prejudice' (appeal ts 13);
(c) counsel for the appellant did not allege in the appeal that Martino CJDC had made any specific or express error (appeal ts 14); and
(d) counsel for the appellant's argument in the appeal was that Martino CJDC's decision to dismiss the application was unreasonable or plainly unjust (appeal ts 14).
306 Counsel for the appellant said, in answer to a question from the court:
I don't say that this is a case where there is a broader principle at stake. This case could be determined on its own facts (appeal ts 18).
Appeal against conviction: ground 1: the proper construction of s 118 of the Criminal Procedure Act
307 The modern approach to statutory construction is purposive. The statutory text is the surest guide to Parliament's intention. A decision as to the meaning of the text must begin by considering the context, in its widest sense. This will include the general purpose and policy of the provision. See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ); Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510 [82] (Crennan & Bell JJ); Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573 [43] - [44] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).
308 The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. See Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J). The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. See Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21] (Gleeson CJ, Hayne, Callinan & Heydon JJ).
309 By s 118(1) of the Criminal Procedure Act, either the prosecutor or the accused may apply to the court for an order that the trial of the charge against the accused be by a judge alone without a jury.
310 By s 118(4), on an application under s 118(1), the court 'may' order that the trial of the charge against the accused be by a judge alone 'if' the court considers it is 'in the interests of justice' to do so, but, if the application is made by the prosecutor, the court 'must not' make the order unless the accused consents.
311 Section 118(5) sets out some specific circumstances in which the court 'may make' the order. In particular, but '[w]ithout limiting s 118(4)', 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 Code (that is, the offence of corrupting or threatening a juror) would be committed in respect of a member of a jury.
312 Section 118(6) sets out some specific circumstances in which the court 'may refuse' to make the order. In particular, but '[w]ithout limiting s 118(4)', 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.
313 Section 118(5) specifies particular circumstances where Parliament considers it may be 'in the interests of justice' to make the order. Section 118(6) specifies particular circumstances where Parliament considers it may not be 'in the interests of justice' to make the order.
314 Section 118(5)(a) is concerned with the interests of jurors; that is, avoiding the imposition of an unreasonable burden on a jury due to the complexity of a trial or its length or both. Section 118(5)(b) is also concerned with the interests of jurors; that is, the protection of jurors from the commission of acts by a third party that may constitute the offence of corrupting or threatening a juror. Section 118(5) authorises (but does not require) the court to make an order on the basis of either of those factors.
315 Section 118(6) is concerned with cases where the court considers that the issues of fact at the trial will involve the application of objective community standards. The provision authorises (but does not require) the court to refuse to make an order on the basis of that factor.
317 Neither the accused nor the prosecutor has a right to elect a trial by a judge alone. Also, on an application by the prosecutor under s 118(1), the court must not make an order for a trial by a judge alone, even if it considers it is 'in the interests of justice' to do so, unless the accused consents.
318 Although s 118(4) confers a power on the court to make an order that an accused, who is committed on a charge to a superior court or indicted in a superior court on a charge, be tried by a judge alone, the court may only make that order 'if', relevantly, it considers it is 'in the interests of justice' to do so. In other words, the court may not make an order that the trial of the charge be by a judge alone unless the court considers, relevantly, that it is in the interests of justice to do so. Accordingly, the court's power to make an order for a trial by a judge alone will not be enlivened unless the court is affirmatively satisfied that, in the particular case, it is in the interests of justice to do so.
319 The phrase 'in the interests of justice' has a broad connotation. It is not defined in s 118 or elsewhere in the Criminal Procedure Act. The phrase takes its meaning in s 118 from the context in which it is used.
320 The concept of 'in the interests of justice', in s 118, includes not only the interests of the accused but also the public interest. The public interest in this context includes the proper functioning, and the protection of the integrity, of the criminal justice system as administered by the courts.
321 It is in the interests of the accused, and also in the public interest, that the accused receive a fair trial according to law. This is a fundamental (but not, of course, the only) issue with which s 118 is concerned. It will be 'in the interests of justice', within s 118(4), to order a trial by a judge alone if that is necessary to ensure the accused receives a fair trial according to law. That will be necessary if there is a real and substantial (as distinct from a remote) doubt as to whether, in the particular case, the accused will receive a fair trial according to law by or before a jury. See Coates v The State of Western Australia [2009] WASCA 142 [104] (Buss JA, Martin CJ agreeing).
323 It is not possible, generally or in the abstract, to state exhaustively the factors which will be relevant in determining, in a particular case or in a particular kind of case, whether it is 'in the interests of justice' to order that there be a trial by a judge alone.
324 The phrase 'in the interests of justice', in s 118, contemplates the analysis and weighing of a group of factors. The specific factors which are relevant, and the weight to be given to each of those factors, will depend on the matters in issue in the specific application under s 118(1). They will vary from case to case and must be determined on a case-by-case basis. The relevant factors in each case will be those which bear upon why it is or is not in the interests of justice, in the particular case, to order a trial by a judge alone. No one factor will necessarily be paramount or superior to any other factor. Each must be given its appropriate weight in light of the particular facts and circumstances.
325 In my opinion, on a proper construction of s 118, in the context of the Criminal Procedure Act as a whole, the stipulation in s 118(4) that the court may make an order that the trial of the charge be by a judge alone if (and only if) the court considers it is in the interests of justice to do so, requires that:
(a) a process of evaluation be undertaken to ascertain where the interests of justice lie as between the trial of the accused by or before a jury and the trial of the accused by a judge alone; and
(b) the order not be made unless the court is affirmatively satisfied that, in the particular case, it is in the interests of justice for the accused to be tried by a judge alone instead of by or before a jury.
326 My reasons for the opinions I have expressed are as follows.
327 First, the ordinary mode of trial in Western Australia, if an accused is committed on a charge to a superior court or indicted in a superior court on a charge, is a trial by or before a jury. Secondly, that is the mode of trial in this State unless the court makes an order under s 118(1) that the trial of the charge be by a judge alone. Thirdly, the court may only make an order, on an application under s 118(1), 'if' the court is affirmatively satisfied that, in the particular case, it is in the interests of justice to do so. Fourthly, if the court is not affirmatively satisfied that, in the particular case, it is in the interests of justice to make an order for the trial of the accused by a judge alone, the accused must be tried by or before a jury. Fifthly, the requirement for a process of evaluation to be undertaken to ascertain where the interests of justice lie as between the trial of the accused by or before a jury and the trial of the accused by a judge alone, and the requirement that the order not be made unless the court is affirmatively satisfied that, in the particular case, it is in the interests of justice for the accused to be tried by a judge alone instead of by or before a jury, arise by necessary implication from the text of s 118 in the context of the first, second, third and fourth points I have made.
328 Section 119(1) of the Criminal Procedure Act provides that, in a trial by a judge alone, the judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury.
329 By s 119(3), if any written or other law:
(a) requires information or a warning or instruction to be given to the jury in certain circumstances; or
(b) prohibits a warning from being given to a jury in certain circumstances,
the judge in a trial by a judge alone must take the requirement or prohibition into account if those circumstances arise in the course of the trial.
330 Section 120(1) of the Criminal Procedure Act provides that, in a trial by a judge alone:
(a) the judge may make any findings and give any verdict that a jury could have made or given if the trial had been before a jury; and
(b) any finding or verdict of the judge has, for all purposes, the same effect as a finding or verdict of a jury.
331 By s 120(2), the judgment of the judge in a trial by a judge alone must include the principles of law that he or she has applied and the findings of fact on which he or she has relied. However, by s 120(3), the validity of a trial judge's judgment is not affected by a failure to comply with s 120(2).
332 It has frequently been observed that 'the experience and wisdom of the law is that, almost universally, jurors approach their tasks conscientiously': Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 [26] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel & Bell JJ).
333 The criminal justice system, as administered by appellate courts, assumes that, as a general rule, juries understand, and follow, the directions which trial judges give them. The assumed efficacy of the jury system, whereby the law proceeds on the basis that juries act only on the admissible evidence and in accordance with the directions of the trial judge, represents the policy of the common law. Although the criminal justice system assumes the efficacy of juries, it is not assumed that the decision-making of juries is unaffected by matters of possible prejudice. See Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 [13] (Gleeson CJ & Gummow J); Dupas [27] - [29].
334 In R v Glennon [1992] HCA 16; (1992) 173 CLR 592, Mason CJ and Toohey J accepted that '[t]he possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial' (603). However, as the High Court noted in Dupas, what is vital to the criminal justice system is 'the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations' [29].
335 Parliament, in enacting s 118, must be taken to have known the propositions I have enunciated in relation to criminal trials by or before juries. The propositions are well-established and long-standing.
336 As Owen JA observed in Coates, a jury has certain advantages, in making findings of fact, which a trial judge does not have, and a trial judge has the advantage of experience in making findings of fact, which a jury does not have [10] - [11].
337 It may be 'in the interests of justice', within s 118(4), to order a trial by a judge alone instead of a trial by or before a jury if, for example, there is a real and substantial (as distinct from a remote) risk that:
(a) pre-trial publicity has created a public climate of hostility or prejudice to the accused which a jury may be unable to put aside (The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383);
(b) the nature of some of the evidence to be adduced by the State is so graphic and disturbing that the jury may be unable properly to consider its relevance and significance (Bell v The State of Western Australia [No 2] [2014] WASC 260); and
(c) the jury may have difficulty in properly understanding intricate and disputed expert evidence to be adduced at the trial or in properly applying difficult legal principles in the context of complicated questions of fact (The State of Western Australia v Brown [No 2] [2013] WASC 280; Chiha v The State of Western Australia [No 2] [2015] WASC 147).
See also, for example, the facts in Arthurs v The State of Western Australia [2007] WASC 182 and Schmidt v The State of Western Australia [No 3] [2014] WASC 156.
338 Plainly, the examples to which I have referred are not exhaustive.
Appeal against conviction: ground 1: its merits
(a) the critical proposition, on the basis of which the appellant applied for a trial by a judge alone, was that the propensity evidence would 'overwhelm the jury so that no direction given could cure the prejudice' (appeal ts 13);
(b) Martino CJDC rejected that proposition and found that a jury would be able to 'put aside prejudice and impermissible reasoning ... particularly with appropriate directions from the trial judge' (ts 73);
(c) his Honour concluded that it was not in the interests of justice for there to be a trial by a judge alone because of his confidence that 'a jury, properly directed, could put aside impermissible reasoning and any prejudice' (ts 74); and
(d) his Honour therefore dismissed the application.
340 As Martino CJDC contemplated, the trial judge instructed the jury in his summing up that the jury must disregard any feelings of prejudice or sympathy and assess the evidence clinically and dispassionately. Specifically, the trial judge said:
When you assess the evidence you must do so dispassionately. You must not decide the case on the basis of prejudice or sympathy. All of us have subjective feelings of prejudice or sympathy one way or the other when we first encounter different situations. It is important that you recognise any feelings of that type which you have and you put them to one side.
Feelings of prejudice or sympathy will not assist you in your decision making. To the contrary, they will be a hindrance to you and they will stand in the way of you living up to the oath or affirmation that you took at the beginning of the trial.
So if, for example, having heard the evidence in this case, you do find yourself experiencing some sympathy for, or prejudice against any of the people who are involved in the trial, put those feelings to one side. You must assess the evidence clinically and dispassionately.
As I have said, you must decide the facts of the case on the evidence that has been put before you and on nothing else. It is your responsibility to ensure that whatever verdicts are delivered in this case are delivered solely on the basis of the evidence produced during the trial and not on any other matters (ts 715 - 716).
341 Also, as contemplated by Martino CJDC, the trial judge gave conventional directions to the jury in his summing up about the relevance of the propensity evidence, the manner in which the jury may use the propensity evidence, and impermissible reasoning in relation to that evidence. The trial judge's directions on these issues are standard practice in this State when an accused is tried for alleged child sex offences and the State adduces propensity evidence under s 31A of the Evidence Act (including evidence of previous convictions for child sex offences). His Honour instructed the jury:
(a) The State was permitted to adduce evidence of the appellant's previous convictions for the purpose of attempting 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' (ts 793 - 794).
(b) If the jury was satisfied beyond reasonable doubt that the evidence of the appellant's prior sexual offending against the four other boys established 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' (ts 794).
(c) If the jury was 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 as 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 ... be irrelevant to your determination of whether [the appellant] committed any of the offences with which he is charged' (ts 794).
(d) The jury must not 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 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' (ts 794). It would be wrong for the jury to reason in that way (ts 794).
(e) Proof that the appellant did have a sexual interest in boys of the complainant's age and was 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' (ts 795). Proof 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' (ts 795).
342 His Honour summarised the position in relation to the propensity evidence as follows:
[T]he evidence of [the appellant's] prior offences, if you are satisfied beyond reasonable doubt that the commission by [the appellant] of them establishes that he has a sexual interest in boys of around the complainant's age, and he is prepared to act on that interest, and is therefore more likely to have committed the offences with which he is charged, is evidence that you can take into account in deciding if one or more of the charges have been proved beyond reasonable doubt.
However, the evidence is not by itself proof that the charged offences have been committed. The evidence cannot be used as a substitute for the evidence of the charged offences. The question for you at all times remains whether having regard to the whole of the evidence, the State has proved to your satisfaction beyond reasonable doubt the charged offence which you are considering.
[The appellant] cannot be found guilty of any of the offences with which he is charged unless you [are] satisfied beyond a reasonable doubt on all of the evidence that the act forming the basis of that charge occurred (ts 795).
343 Earlier in his summing up, the trial judge directed the jury that:
(a) the State must prove beyond reasonable doubt that the alleged conduct, the subject of a count, had occurred, and if the jury was not satisfied beyond reasonable doubt that the alleged conduct, the subject of a count, had occurred, it must find the appellant not guilty of the count (ts 784); and
(b) the jury must be satisfied beyond reasonable doubt about the 'truthfulness of the complainant's evidence given in relation to the incident the subject of the charge on the indictment which [the jury was] considering' before the jury could convict the appellant of that charged offence (ts 786).
344 In the present case, the alleged risk of an unfair trial was a risk that, notwithstanding a direction from the trial judge to the contrary, the jury might wrongly reason that, because the appellant had committed sex offences against children on previous occasions, it necessarily followed that he had committed sex offences against a different child on a later occasion, as alleged in the indictment. In my opinion, there was no reasonable possibility, in the present case, that the interests of the appellant (and the public interest) in negating that alleged risk, and otherwise ensuring a fair trial for the appellant, could not be achieved by appropriate directions from the trial judge (indeed, by the directions which the trial judge in fact gave) to the jury.
345 As Wheeler JA (Miller JA agreeing) observed in The State of Western Australia v Osborne [2007] WASCA 183, it is the common experience of the courts in this State that, in cases of sexual offences where a number of counts are joined in an indictment, juries will return verdicts of guilty on some counts and verdicts of not guilty on others [39]. Those observations apply in the case of child sex offences. See also, in a different context, NCH v The State of Western Australia [2013] WASCA 29 [130] (Buss JA, Martin CJ & Mazza JA agreeing). That is in fact what occurred in the present case.
346 In my opinion, there was no reasonable possibility at any material time that the propensity evidence would 'overwhelm the jury' or that directions from the trial judge could not 'cure the prejudice'.
347 Martino CJDC was correct in finding that a jury, properly directed, could put aside impermissible reasoning and any prejudice.
348 I am satisfied that Martino CJDC's conclusion that it was not in the interests of justice for there to be a trial by a judge alone, instead of by or before a jury, was not vitiated by any material error. The directions which are standard practice in Western Australia when an accused is tried for alleged child sex offences, and the State adduces propensity evidence of previous convictions for child sex offences, are not complex or difficult to understand. There was no reasonable possibility at any material time that a jury would be unable properly to understand the directions or correctly apply them.
349 Counsel for the appellant did not assert before Martino CJDC, and ground 1 of the appeal does not allege, that the obligation of a judge sitting alone to publish reasons for judgment was a relevant factor, in the present case, in determining whether it was 'in the interests of justice', within s 118(4), that the trial of the charges against the appellant be by a judge alone instead of by or before a jury. In any event, the point has no merit in the present case. As McKechnie J noted in TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183, the inscrutability of a jury's verdict is tempered by the requirement that its verdict be unanimous (or, in the case of a majority verdict, the decision of at least 10 members of the jury) [32]. The point may have some merit in other cases; for example, where a jury may have difficulty in properly understanding intricate and disputed expert evidence to be adduced at the trial or in properly applying difficult legal principles in the context of complicated questions of fact. However, that is not the present case.
350 A trial by a judge alone was neither necessary nor desirable to ensure the appellant received a fair trial according to law. There was no real or substantial prospect that the appellant would not receive a fair trial according to law by or before a properly directed jury. Martino CJDC's decision to dismiss the application was not unreasonable or plainly unjust.
351 The facts and circumstances of the present case do not reveal any reasonable basis for being affirmatively satisfied that it was 'in the interests of justice', within s 118(4), that the trial of the charges against the appellant be by a judge alone instead of by or before a jury.
352 I would grant leave to appeal on ground 1, but the ground fails.
Appeal against conviction: ground 4: the appellant's submissions
(a) each count in the indictment required the jury to be satisfied beyond reasonable doubt as to the accuracy and reliability of the complainant's evidence on that count before the jury could convict;
(b) there were no admissions against interest and there was no corroboration of any count in the indictment and there was no forensic evidence which supported the complainant's evidence on any count;
(c) there was no evidence which made the State's case on the counts in respect of which the appellant was convicted any stronger than or different from the counts in respect of which he was acquitted; and
(d) the convictions on counts 1, 4, 9 and 22 - 33 are 'factually and legally inexplicable on any basis having regard to the acquittals on the other counts', and the convictions are therefore unsafe and unsatisfactory.
Appeal against conviction: ground 4: its merits
354 In Riley v The State of Western Australia [2007] WASCA 22 [16] - [25], I examined the relevant decisions of the High Court on inconsistent verdicts. It is unnecessary to reproduce my review of the cases.
355 In the present case, the appellant alleges that the jury's verdicts were factually inconsistent and incompatible. It is necessary for the appellant to satisfy this court that the verdicts cannot stand together; that is, that no reasonable jury whose members properly applied their minds to the facts of the case could have arrived at the verdicts in question. If there is a proper way in which this court may reconcile the verdicts, and thereby conclude that the jury performed its functions as required by law, the verdicts will not be inconsistent in the relevant sense. The critical issue is whether it was logically and reasonably open to the jury to acquit on some counts and convict on others.
356 A jury is, of course, entitled to accept part, but not all, of a witness's version of events. Also, a jury, as the tribunal of fact, is entitled to 'work out for themselves a view of the case which [does] not exactly represent what either party [has] said': Williams v Smith [1960] HCA 22; (1960) 103 CLR 539, 545 (Dixon CJ, McTiernan, Fullagar, Kitto & Menzies JJ). That statement, made in the context of civil proceedings, has been applied to criminal trials. See Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319 [29] (McHugh J); WCW v The State of Western Australia [2008] WASCA 232; (2008) 191 A Crim R 22 [14] (Buss JA).
(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].
358 In the present case, the trial judge gave the jury directions in his summing up, as follows:
(a) The jury must deal with each count separately, and make a decision on each count separately (ts 725).
(b) When dealing with a count, the jury must consider only the evidence that is relevant to that count (ts 725).
(c) The jury's verdicts did not have to be the same on each count (ts 725).
(d) If the jury found the appellant guilty of one count, it did not follow that he was guilty of any other count (ts 725).
(e) Having considered all of the evidence, the jury may find the appellant guilty of all charges, or it may find him not guilty of all charges, or it may find him guilty of some and not guilty of others. Those were matters for the jury to determine on the evidence that is relevant to each charge (ts 726).
(f) The appellant was presumed to be innocent. The burden of proving the appellant's guilt was on the State. The standard of proof that the State must achieve was proof beyond reasonable doubt. For the State to discharge its burden of proving the guilt of the appellant it must prove beyond reasonable doubt that he was guilty of the offence with which he was charged (ts 716).
(g) Before the jury could draw an inference against the appellant, it must be satisfied that it was the only inference that was reasonably available. The jury could not draw an inference that the appellant was guilty of an offence with which he had been charged unless the evidence was inconsistent with any reasonable conclusion other than that he was guilty of that offence (ts 724).
(h) The real issue for the jury on each of the charges was whether the State had proved beyond reasonable doubt that the alleged conduct the subject of the charge had occurred. If the jury was not so satisfied, it would find the appellant not guilty of the charged offence (ts 784).
(i) On each of the offences charged in the indictment, the State's case 'stands or falls on whether [the jury], having taken into account all of the evidence adduced during the trial that is relevant to the particular charge', was satisfied beyond reasonable doubt of the honesty and accuracy of the complainant's evidence. The jury must be satisfied beyond reasonable doubt about the truthfulness of the complainant's evidence 'given in relation to the incident the subject of the charge on the indictment which [the jury is] considering' before the jury could convict the appellant of that charged offence (ts 786).
(j) The jury was entitled to accept all of a witness's evidence, to accept some of a witness's evidence or none of a witness's evidence. The jury was entitled to accept part of a witness's evidence and reject other parts of that witness's evidence (ts 718).
(k) If the jury believed the appellant's evidence, it must find him not guilty. If the jury had difficulty in accepting the appellant's evidence but thought it might be true, then the jury would acquit because it would be left with a reasonable doubt. The jury could not find an issue against the appellant contrary to his evidence if his evidence gave rise to a reasonable doubt on the issue. If the jury did not believe the appellant's evidence then it should put his evidence to one side and consider whether, on the evidence that the jury did accept, the State had proved his guilt beyond reasonable doubt (ts 720).
359 Defence counsel did not object to any part of his Honour's summing up, and did not seek a further direction or a redirection on any matter (ts 814).
360 It is true that the credibility and reliability of the complainant's evidence was critical to all counts on the indictment. That is not an unusual feature of criminal trials involving alleged child sex offending. The critical importance of the complainant's evidence was highlighted by the trial judge in his summing up. His Honour instructed the jury that it must be satisfied beyond reasonable doubt about the truthfulness of the complainant's evidence, given in relation to the incident the subject of the count which the jury was considering, before it could convict the appellant on that count.
361 It is necessary, in considering ground 4, to take into account all of the facts and circumstances of the case. An inability to identify with precision a single factor or a combination of factors which affirmatively explains why a jury acquitted on one or more counts and convicted on one or more counts does not necessarily impugn the integrity of the conviction or convictions.
362 In my opinion, the verdicts of the jury may properly be reconciled in the manner explained by Martin CJ in his reasons.
363 I am satisfied, on my examination of the trial record, that the jury's decision to acquit on counts 2, 3, 5 - 8 and 10 - 15 did not relevantly undermine the complainant's credibility on counts 1, 4, 9 or 22 - 33 (being the counts on which the jury convicted), and does not indicate that the verdicts of conviction are inconsistent, in the relevant sense, with the other verdicts.
364 It merely shows that the jury was cautious and conscientious in reviewing the evidence and discharging its heavy responsibility. It may also be that the jury took a 'merciful' view of the facts on some of the counts on which it acquitted, this being a function which, as Gaudron, Gummow and Kirby JJ pointed out in MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, 367 - 368, has always been open to, and often exercised by, juries.
365 The jury's verdicts are not factually inconsistent or incompatible. The differences in the verdicts are not illogical or an affront to common sense.
366 In the present case, the appellant also alleges that the convictions are 'legally inexplicable on any basis having regard to the acquittals'. This point was not developed by counsel for the appellant in either his written or his oral submissions. The contention is not reasonably arguable. An acquittal by the jury on one or more of the counts in the indictment did not, as a matter of law, require the jury to acquit on all of the counts or preclude the jury from convicting on any of the counts. I am satisfied that there is no basis in the evidence, in the trial judge's summing up or at law for concluding that the convictions are 'legally inexplicable' having regard to the acquittals.
367 Ground 4 is without merit. Leave to appeal on ground 4 should be refused.
Appeal against conviction: ground 5: the appellant's submissions
368 Counsel for the appellant submitted that, having regard to the acquittals and the following matters:
(b) the absence of any forensic or other corroborative evidence;
(c) the absence of any confession or admission by the appellant;
(d) the evidence relating to the appellant's circumcision;
(e) the evidence relating to the time at which the appellant 'checked-in' at the Ocean Clipper Inn;
(g) the absence of any sexual or affectionate references in any of the Facebook entries tendered in evidence; and
the convictions on counts 1, 4, 9 and 22 - 33 were 'not reasonably open to the jury and were unsafe and unsatisfactory'.
Appeal against conviction: ground 5: its merits
369 In Mack v The State of Western Australia [2014] WASCA 207, I summarised (Martin CJ & Mazza JA agreeing) the principles to be applied by an appellate court in determining whether a verdict of guilty on which a conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported [141] - [147]. It is unnecessary to repeat the relevant principles.
370 I agree with the analysis and conclusions of Martin CJ in relation to the matters complained of by counsel for the appellant; namely, the absence of any early complaint; the absence of any forensic or 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 at which the appellant 'checked-in' at the Ocean Clipper Inn; the evidence relating to the offences in the country (counts 4 - 6); the absence of any sexual or affectionate references in any of the Facebook entries tendered in evidence; and the evidence relating to the Point Perron incident (count 8).
371 I am satisfied, after evaluating the evidence of the complainant and the appellant, in the context of the trial record as a whole, that the matters of which counsel for the appellant complained do not materially detract from the complainant's evidence in relation to the counts on which the appellant was convicted.
372 In my opinion, on the basis of my examination of the trial record and my weighing of the evidence (in particular, the evidence of the complainant and the appellant), it was reasonably open to the jury to reject the appellant's defence and to be satisfied beyond reasonable doubt as to his guilt on counts 1, 4, 9 and 22 - 33.
373 A jury, acting reasonably, was not precluded by the state of the evidence at trial (in particular, the evidence of the complainant and the appellant) from convicting the appellant. A jury, acting reasonably, was entitled to reject the evidence of the appellant at least on the issue of whether the evidence exculpated, or tended to exculpate, the appellant or created a doubt, or tended to create a doubt, about his guilt on counts 1, 4, 9 and 22 - 33.
374 The jury had the very significant advantage of seeing and hearing the witnesses (in particular, the complainant and the appellant) give their evidence.
375 The jury, by their verdicts, rejected the evidence of the appellant at least as to whether the evidence exculpated, or tended to exculpate, the appellant or created a doubt, or tended to create a doubt, about his guilt on counts 1, 4, 9 and 22 - 33. The jury, having rejected that evidence, was persuaded by and acted on relevant parts of the evidence of the complainant in relation to the alleged offending on those counts, and concluded it was satisfied beyond reasonable doubt that the State had proved those offences.
376 The trial record does not require the conclusion that the jury must necessarily have entertained a doubt about the appellant's guilt on counts 1, 4, 9 and 22 - 33. The verdicts of guilty are not unreasonable. They were supported by evidence that the jury was entitled to accept. After paying full regard to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that the jury has had the benefit of having seen and heard the witnesses, I do not have a reasonable doubt as to the appellant's guilt on counts 1, 4, 9 and 22 - 33 or as to the correctness of his conviction on those counts.
Appeal against conviction: ground 1: the proviso
378 Section 30(3) of the Criminal Appeals Act 2004 (WA) provides that this court must allow an appeal against conviction by an offender if, in its opinion:
(a) the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported;
(b) the conviction should be set aside because of a wrong decision on a question of law by the judge; or
380 In Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92, French CJ, Gummow, Hayne and Crennan JJ reiterated that an appellate court must undertake the task of determining whether to apply the proviso to the Australian common form criminal appeal statute in the same manner as it would decide whether the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence [27]. The task of determining whether no substantial miscarriage of justice has actually occurred must be undertaken on the whole of the trial record including the jury's verdict of guilty [27]. Their Honours then made two further points. First, the appellate court, in assessing the significance to be given to the jury's verdict of guilty, must pay proper regard to the issues the jury were directed to decide in order to arrive at a verdict of guilty [28]. Secondly, the statement by Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [44], that the proviso cannot be engaged 'unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty', is a negative proposition [29]. The statement enunciates a necessary but not sufficient condition for the application of the proviso. French CJ, Gummow, Hayne and Crennan JJ observed in Baiada Poultry:
As this Court's decision in AK v Western Australia ((2008) [2008] HCA 8; 232 CLR 438 at 457 [58]) shows, demonstration that a chain of reasoning can be articulated that would require the verdict reached at trial does not always permit, let alone require, the conclusion that no substantial miscarriage of justice actually occurred [29].
See also Reeves v The Queen [2013] HCA 57; (2013) 88 ALJR 215 [50] - [51] (French CJ, Crennan, Bell & Keane JJ).
381 Even if (contrary to my opinion) Martino CJDC was in error in failing to order a trial by a judge alone instead of a trial by or before a jury, I am satisfied beyond reasonable doubt that no substantial miscarriage of justice has occurred. My reasons are as follows.
382 First, I am satisfied beyond reasonable doubt, on my examination of the trial record, as to the appellant's guilt on each of the counts on which he was convicted. I refer, in particular, to my consideration of the issues raised by grounds 2, 3, 4 and 5 of the appeal and my conclusions that the propensity evidence was admissible under s 31A of the Evidence Act, the jury's verdicts were not factually or legally inconsistent or incompatible, and the verdicts of guilty are not unreasonable and were supported by evidence that the jury was entitled to accept. Secondly, I am satisfied beyond reasonable doubt that nothing occurred at or in the conduct of the trial (including the trial judge's directions to the jury) which occasioned an unfair trial or otherwise precludes this court from deciding that no substantial miscarriage of justice has occurred. No complaint was made at the trial or in the appeal about any of the trial judge's directions (including the directions about the propensity evidence) to the jury. Thirdly, if (contrary to my opinion) Martino CJDC was in error in failing to order a trial by a judge alone instead of a trial by or before a jury, that error was not, on the facts and in the circumstances of the present case, of a kind that precludes 'the proviso' from being engaged. The trial record reveals that the appellant received a fair trial according to law.
383 I would grant leave to appeal on ground 1 but refuse leave on each of the other grounds. The appeal should be dismissed.
Appeal against sentence: the grounds of appeal
384 The appellant relies on three grounds of appeal.
385 Ground 1 alleges that the trial judge erred in his decision to impose sentence on the basis that the appellant represented a high risk to the community of committing further sexual offences against boys.
386 Ground 2 alleges that the total effective sentence 'was excessive having regard to the totality principle'. The particulars of ground 2 read:
2.1 The imposed sentence failed to adequately deal with the criminality involved and the totality of the offending. It was excessive having regard to all the relevant circumstances of the appellant and the circumstances of the offending.
2.2 The sentence imposed was one which, having regard to the appellant's age and personal circumstances, was crushing and had the effect of removing any expectation of the appellant having a useful life after release from custody.
387 Ground 3 alleges that the total effective sentence 'was manifestly excessive having regard to the comparable cases'. The particulars of the ground read:
3.1 In contrast to many of the decided cases that resulted in comparable sentences, the present offending did not include multiple victims.
3.2 The present offending did not involve any violence, threats or coercion to the complainant.
3.3 The present offending did not involve any acts of gross perversion.
3.4 The present offending did not involve a child of a very young age, as is the case with many of the authorities that resulted in the imposition of head sentences comparable to that imposed in the present case.
388 On 9 February 2014, Mazza JA referred the application for leave to appeal on these grounds to the hearing of the appeal.
389 I agree with Martin CJ, for the reasons he gives, that ground 1 is without merit.
390 It is apparent from grounds 2 and 3 and the particulars of those grounds, read together, that the appellant alleges in substance that the total effective sentence of 7 years 10 months' imprisonment infringed the first and second limbs of the totality principle. I will deal with grounds 2 and 3 on that basis.
391 A complaint that a sentencing judge has infringed the totality principle involves an allegation of implied or inferred error. The first limb of the principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases. The second limb of the principle is that the total effective sentence imposed on an offender should not constitute a 'crushing' sentence; that is, it should not destroy any reasonable expectation of useful life after release from custody. These propositions are well-established by the case law.
392 Advanced age is a relevant consideration in determining whether a sentence will be crushing. The rationale is that each year of a sentence represents a substantial proportion of the period of life which is left to an offender of advanced age. See R v Hunter (1984) 36 SASR 101, 103 (King CJ); Braham v The Queen [1994] NTCCA 60; (1994) 116 FLR 38, 51 (Angel J); R v Whyte [2004] VSCA 5; (2004) 7 VR 397, 405 - 406 (Winneke P, Bongiorno & O'Bryan AJJA agreeing); Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 [34] (Steytler P, McLure & Miller JJA agreeing); R v Iles [2009] VSCA 197 [31] - [35] (Redlich JA, Neave JA agreeing).
393 However, whether and, if so, to what extent, leniency should be given to an offender of advanced age depends on all the facts and circumstances of the particular case. As Steytler P noted in Gulyas, the authorities emphasise that age is only one factor in the sentencing process, and that advanced age can never be a justification for a sentence which is not fairly proportionate to the offence or otherwise inappropriate [35]. See also Hunter (103). An offence may be so serious that humanitarian considerations cannot be accommodated.
394 In Smith v The State of Western Australia [2010] WASCA 176, I reviewed various provisions of the Prisons Act 1981 (WA) and the Prisons Regulations 1982 (WA) in relation to the provision of medical treatment for prisoners. I noted (McLure P & Mazza J agreeing):
First, the chief executive officer of the department of the Government principally assisting the Minister in the administration of the Prisons Act (the Department) is under a duty to ensure that medical care and treatment is provided to the appellant in prison. Secondly, a medical officer is bound, on the request of the chief executive officer, to examine and treat the appellant if he requires medical care and treatment. Thirdly, the chief executive officer is empowered to give written permission for the appellant to be absent from prison for a period specified, and for a reason described, in an absence permit. An absence permit may be given by the chief executive officer for the appellant to be admitted to the Frankland Centre at Graylands Hospital or to any other authorised hospital for the purpose of the treatment of his psychiatric illness. Fourthly, if the chief executive officer were to give an absence permit in relation to the appellant, the chief executive officer may give the permit subject to conditions or restrictions for the purpose of protecting the safety and interests of the public [68].
395 The primary sentencing considerations for offences of the kind committed by the appellant are appropriate punishment of the offender and personal and general deterrence, having regard to the need to protect vulnerable children. See Woods v The Queen (1994) 14 WAR 341, 345 - 346 (Anderson J, Malcolm CJ & Seaman J agreeing); PP v The State of Western Australia [2004] WASCA 144 [14] (McLure J, Malcolm CJ & Murray J agreeing); M v The State of Western Australia [2006] WASCA 256 [30] (Wheeler JA, Steytler P & McLure JA agreeing).
396 There is no tariff for offences of the kind in question (or for sex offences generally) because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing considerations. It is important, however, to appreciate what sentences are customarily imposed in cases involving similar offending, for the purpose of avoiding the risk of sentencing becoming idiosyncratic and arbitrary. See The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [68] - [69] (Steytler P, McLure JA agreeing).
(a) the appellant's offence, contrary to s 320(4) of the Code, was 10 years' imprisonment;
(b) the appellant's offences, contrary to s 321(4) of the Code, was 7 years' imprisonment; and
(c) the appellant's offences, contrary to s 321(2) of the Code, was 14 years' imprisonment.
398 I have examined numerous cases in which this court has heard and determined appeals against sentence for child sex offences. In particular, I have considered the facts and circumstances, and the sentencing dispositions, in The State of Western Australia v Prince [2011] WASCA 22; Rowan v The State of Western Australia [2009] WASCA 185; RFS v The State of Western Australia [2012] WASCA 58; The State of Western Australia v FJG [2012] WASCA 206; Downie v The State of Western Australia [2013] WASCA 244; and the cases referred to in those decisions. I have also considered the facts and circumstances, and the sentencing dispositions, in other cases cited by counsel for the appellant and counsel for the State.
399 It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.
400 The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive or a total effective sentence infringes the totality principle. The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
401 When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
402 The appellant's offending was correctly characterised by the trial judge as falling towards the higher end of the scale of seriousness for this type of offending (ts 852).
403 The offences were inherently serious. The offending was persistent and spanned a period of two to three years. It did not involve isolated incidents or momentary lapses by the appellant.
404 The offending was planned and premeditated. As his Honour rightly said, the appellant engaged in a 'prolonged course of conduct directed at gaining the complainant's trust and grooming him for the commission of the offences' (ts 852). The appellant groomed the complainant, and secured his cooperation and silence, through friendship, obligation and shame.
405 There was a considerable disparity between the age of the appellant and the age of the complainant. During the period of the offending the appellant was aged in his mid to late 60s and the complainant was aged between 11 and 14 years.
406 After the appellant was released from prison, having served a custodial term for the previous child sex offences of which he had been convicted, the complainant's extended family, though wary, gradually reposed an increasing degree of trust in him. The appellant abused this trust by using the opportunities it gave him for contact alone with the complainant to groom and then sexually abuse the complainant.
407 The trial judge noted that the complainant was, to some extent, an 'easy target' for the appellant, and that the appellant took advantage of the complainant's unfortunate domestic situation (ts 844). The discord between the complainant's parents reduced the prospect of the appellant's offending being detected.
408 The appellant ingratiated himself with the complainant by the provision of expensive gifts, including computers, cameras, music lessons and CDs.
409 The appellant's use of the complainant for his own sexual gratification had a significant adverse effect on the complainant's emotional and social well-being (ts 853). The victim impact statement shows that the appellant's misconduct deprived the complainant of his innocence and had a detrimental impact on his family and personal relationships.
410 The fact that some aggravating factors (for example, violence, threats, coercion and acts of 'gross perversion') were absent from the appellant's offending does not diminish the seriousness of his actual conduct in relation to the complainant. It merely demonstrates that the appellant's offending could have been worse.
412 As I have mentioned, the appellant was aged in his mid to late 60s at the time of the offending and was 68 when sentenced. He was not youthful or inexperienced for sentencing purposes.
413 The appellant did not have the mitigation of being otherwise of good character. He had previous convictions for child sex offences. This did not aggravate the current offending, but it underscored the importance of personal deterrence as a sentencing factor.
414 Although the appellant was, of course, entitled to proceed to trial, he could not claim the mitigation that pleas of guilty would have brought.
415 There was no evidence that the appellant had taken any steps with a view to his rehabilitation. The appellant steadfastly maintained his denial of the offending. He was not remorseful. The trial judge was entitled to find, on the material before him, that the appellant posed a high risk of reoffending.
416 It is true that the appellant had a number of health issues. He suffers from type 2 diabetes. However, his health issues appear to be stable and there is no basis for concluding that they are unable to be well-managed within the prison system. I accept that, given his age, there is a reasonable possibility that the appellant's health may deteriorate while he is in custody. However, the Prisons Act and the Prisons Regulations require that proper medical treatment be made available to prisoners and, if necessary, an absence permit may be given to enable their treatment in an appropriate institution in the general community.
417 The appellant was not, when sentenced, of very advanced years. He will be aged 74, when he becomes eligible for release on parole, and will be 76 when he completes his sentence.
418 In my opinion, the total effective sentence of 7 years 10 months' imprisonment does not infringe the first limb of the totality principle. The term of 7 years 10 months was necessary to give effect to the dominant sentencing factors of appropriate punishment and personal and general deterrence, having regard to the need to protect vulnerable children. An accumulation of some of the individual sentences was required in order to mark the seriousness of the appellant's offending. The total effective sentence bears a proper relationship to the criminality involved in all of the offences against the complainant, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing considerations, including the seriousness of the offending, the pattern of sentencing in reasonably comparable cases and the limited mitigation.
419 In my opinion, the total effective sentence of 7 years 10 months' imprisonment does not infringe the second limb of the totality principle. The trial judge took into account the appellant's age in determining the total effective sentence. Unfortunately, from the appellant's viewpoint, the serious nature of his offending, the risk of his reoffending, the necessity for condign punishment and the demands of personal and general deterrence substantially reduced the extent to which humanitarian considerations, based on the appellant's age, could be accommodated in the sentencing disposition. In any event, the total effective sentence was not disproportionate to the appellant's overall offending and it cannot reasonably be said that he has been left without any reasonable prospect of useful life after his release.
420 It is not reasonably arguable that the existence of error on the part of the trial judge should be implied or inferred, based on the first or the second limb of the totality principle, from the sentencing outcome.
422 I would refuse leave to appeal on each of grounds 1, 2 and 3. The appeal should be dismissed.
[1] Pursuant to s 118 of the Criminal Procedure Act 2004 (WA).
[2] Pursuant to s 98 of the Criminal Procedure Act 2004 (WA).
[4] See Criminal Procedure Act 2004 (WA), s 118(2).
[7] TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183 [29].
[24] ts 677 - a portion of that recorded police interview had been tendered as part of the prosecution case.
[58] TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183.
[60] Coates v The State of Western Australia [2009] WASCA 142.
[63] The State of Western Australia v Rayney [2011] WASC 326; (2012) 42 WAR 383.
[69] The State of Western Australia v Schmidt [2012] WASC 172.
[71] Schmidt v The State of Western Australia [No 3] [2014] WASC 156.
[73] Bell v The State of Western Australia [No 2] [2014] WASC 260.
[80] Hinch v Attorney General (Vic) [1987] HCA 56; (1987) 164 CLR 15.
[81] R v Glennon [1992] HCA 16; (1992) 173 CLR 592.
[82] House v The King [1936] HCA 40; (1936) 55 CLR 499.
[83] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [9]; Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92 [21].
[86] AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438.
[87] Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413.
[88] Ninyette v The State of Western Australia [2012] WASCA 184; Stubley v The State of Western Australia [2011] HCA 7; (2011) 242 CLR 374; APC v The State of Western Australia [2012] WASCA 159.
[90] [2007] WASCA 22 [16] - [25] (Buss JA, Wheeler and McLure JJA agreeing).
[91] MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348.
[92] BDS v The State of Western Australia [2009] WASCA 215 [28] (McLure P, Wheeler and Buss JJA agreeing); MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 [34].
[93] R v Kirkman (1987) 44 SASR 591, 593 (King CJ), cited with approval in MacKenzie v The Queen, 366.
[96] Complainant interview, 6 June 2012 - ts 20.
[101] Interview 6 June 2012, ts 88, 90.
[104] M v The Queen [1994] HCA 63; (1994) 181 CLR 487; SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400.
[107] Compare The State of Western Australia v FJG [2012] WASCA 206 (69 years, held not to be of very advanced years); Stubley v The State of Western Australia [2010] WASCA 36 (80 years); FGC v The State of Western Australia [2008] WASCA 47; (approximately 77 years); Gulyas v The State of Western Australia [2007] WASCA 263 (78 years).
[108] JAW v The State of Western Australia [2012] WASCA 7; JS v The State of Western Australia [2012] WASCA 198; GGM v The State of Western Australia [2011] WASCA 259; EPD v The State of Western Australia [2011] WASCA 264; Scrutton v The Queen [2000] WASCA 360.
[109] See for example VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1.
[111] See The State of Western Australia v Akizuki [2008] WASCA 267 [68] (Steytler P).
[112] [60] (Mazza JA, McLure P and Buss JA agreeing).
(2009) 239 CLR 27
(1994) 116 FLR 38
(2012) 248 CLR 378
(2008) 232 CLR 438
(2012) 246 CLR 92
(2008) 36 WAR 413
(2010) 241 CLR 237
(1936) 55 CLR 499
(2002) 213 CLR 606
(1998) 194 CLR 355
(1992) 173 CLR 592
(1987) 44 SASR 591
(2013) 88 ALJR 215
(2011) 243 CLR 400
(2011) 42 WAR 383
(2005) 224 CLR 300
(1960) 103 CLR 539
(1994) 14 WAR 341
(2012) 42 WAR 383
(2011) 242 CLR 374
(2000) 201 CLR 414
(1987) 164 CLR 15
(2000) 201 CLR 488
(2011) 242 CLR 573
(1994) 181 CLR 487
(1996) 190 CLR 348
(2005) 222 CLR 194
(1984) 36 SASR 101
(2004) 7 VR 397
(2005) 227 CLR 319
(2010) 241 CLR 510
(2005) 31 WAR 1
(2004) 221 CLR 400
(2002) 76 ALJR 1024
(2006) 225 CLR 303
(1995) 61 FCR 171
(2000) 106 FCR 51