Court of Appeal (WA)|2008-09-16|Before: Martin CJ

NARRIER -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 191 (16 September 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : NARRIER -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 191

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Inadmissible evidence - Evidence of bad character of the accused adduced inadvertently - Whether evidence of the accused's sister that accused had criminal record and had been in prison caused miscarriage of justice - Where trial judge refused to discharge the jury - Where no directions given to jury in relation to the sister's evidence - Appellate court to determine whether refusal to discharge jury deprived accused of a fair trial or occasioned risk of substantial miscarriage of justice - Application of the proviso Criminal Appeals Act 2004 (WA) s 30(4)

Respondent : Mr B Fiannaca SC & Mr M J Clifford-O'Sullivan

3 BUSS JA: The appellant was tried in the District Court before Judge Deane and a jury on an indictment alleging four counts, as follows:

(1) On or about 8 January 2005 at Osborne Park Shane Christopher Narrier sexually penetrated [the complainant] without her consent, by penetrating her vagina with his penis.

(2) On the same date and at the same place Shane Christopher Narrier sexually penetrated [the complainant] without her consent, by penetrating her vagina with his fingers.

And that Shane Christopher Narrier did bodily harm to [the complainant].

(3) On the same date and at the same place Shane Christopher Narrier unlawfully assaulted [the complainant] and thereby did her bodily harm.

(4) On or about 9 January 2005 at Osborne Park Shane Christopher Narrier sexually penetrated [the complainant] without her consent, by penetrating her vagina with his penis.

4 The duration of the trial was 3 days. It commenced on 7 April 2008 and concluded on 9 April 2008.

5 The learned trial judge directed an acquittal in relation to count 3 after the complainant did not mention the alleged assault in her evidence. The jury returned verdicts of not guilty on count 1, and guilty on counts 2 and 4.

6 The appellant appeals to this court, pursuant to orders of Miller JA granting an extension of time in which to appeal and leave to appeal, against his convictions. He contends, in essence, that the learned trial judge should have discharged the jury after inadmissible evidence was adduced that he had a prior conviction for which he was sentenced to 10 years' imprisonment. The appellant asserts, in effect, that her Honour's refusal to discharge the jury deprived him of a fair trial or occasioned the risk of a substantial miscarriage of justice.

7 The complainant gave evidence in relation to counts 1, 2 and 4. The appellant elected not to give sworn evidence.

8 The learned trial judge instructed the jury that the only issue concerning counts 1, 2 and 4 was whether the 'particular sexual acts did occur' without the complainant's consent (ts 270).

9 As to count 2, the complainant said in evidence that the appellant was 'rough and violent' (ts 127) when he inserted his fingers into her vagina, and his action caused her to bleed (ts 129). As to count 4, the complainant said that the alleged penile penetration followed the alleged digital penetration, and she was 'sore [and] it was hurting' (ts 131).

10 The respondent called Dr Michael Oehlers, a medical practitioner, as a witness.

11 Dr Oehlers gave evidence that on 9 January 2005 he examined the complainant and found she was 'bleeding from the vagina' (ts 174). He made this finding upon a 'cursory external examination' (ts 175).

12 Later that day, the complainant was examined by another medical practitioner, Dr Nicholas Martin. He gave evidence that the complainant had injuries to her face and head. During a 'speculum examination' he noted that there was blood and the complainant was experiencing pain (ts 179).

13 On 10 January 2005, the complainant was examined by Dr Catherine Nixon, a medical practitioner. She gave evidence that in the course of her examination she noted an injury on the inner aspect of the complainant's right vaginal lip, as well as an injury on 'the posterior wall of the vaginal vault just internal to the opening of the vagina' and 'clear blood streaked fluid in the high vagina' (ts 196 - 197). Dr Nixon said that these injuries were consistent with having been caused by blunt force and movement (ts 198), and were indicative of 'recent blunt penetration of the vagina' (ts 198) that was 'likely to have caused pain' (ts 198). Dr Nixon conceded, in cross-examination, that the two vaginal injuries could not be excluded as having occurred during consensual sex (ts 200). In particular, there were these questions and answers:

In respect of the vaginal injuries, the two abrasions that you made reference of, when you indicated that commonly in consensual sex it's not common to have an injury, you are not saying, are you, that it doesn't occur from time to time in consensual sex that injuries do result?---That is correct.

A fingernail might scrape the wall of the vagina and the like. Isn't that right?---That is correct.

Obviously in a digital penetration scenario. Correct?---That is correct (ts 200).

Dr Nixon said she was not giving evidence that any intercourse was 'non-consensual' (ts 201). Also, she was unable to say whether the injuries she had noted to the complainant's face had occurred at the same time as the vaginal abrasions (ts 202).

14 At the trial, the respondent relied on and tendered an out-of-court video record of interview between police officers and the appellant (ts 221). It contained both inculpatory and exculpatory material (ts 273, 288).

The evidence of the appellant's sister, Tanya Marie Eades

15 The respondent named the appellant's sister, Tanya Marie Eades, on the back of the indictment as a witness it would call at trial. Ultimately, however, the respondent did not call her.

16 The appellant's counsel called Ms Eades as a witness.

17 On 8 April 2008 at approximately 4.25 pm, in the course of Ms Eades' cross-examination, the following exchange occurred:

If I just read what you have said in your statement at paragraph 17:

Went back to our house in Manning. [The complainant] and I had a shot of speed. [The complainant] said she wasn't going to drink, but had a couple of cans of UDL.

That's what you told the police, isn't it?---Yeah, she had a couple, but that couple led on to more and more. Everyone do that. They say they have a few, but they drink a lot.

The truth is you never told the police that she was intoxicated at any time, did you?---I didn't - that didn't seem to matter; didn't matter to me.

But you have said that today in court, haven't you, that she was intoxicated?---Yeah, I - - -

That's to help your brother's case, is it?---Yeah, well, I'm trying to help my brother the best way I can, because I don't want my brother to go down for something he didn't did (sic). My brother done 10 years. He done it like a man. He don't need a girl like her to put him behind bars again. I know [the complainant], you know (ts 250). [emphasis added]

18 On the morning of 9 April 2008, the learned trial judge summed-up the case for the jury and, at 1.50 pm, they retired to consider their verdicts. Her Honour left to the jury the defence of mistake of fact under s 24 of the Criminal Code. Neither counsel sought any redirection in relation to the summing up.

19 After the jury had been deliberating for a little more than 2 hours, the appellant's counsel requested the learned trial judge to reconvene the court. Counsel raised with her Honour the evidence of Ms Eades to the effect that she did not want the appellant 'to go down' for something he did not do, the appellant had previously 'done 10 years' and had 'done it like a man', and the appellant did not need a girl like the complainant 'to put him behind bars again'. The appellant's counsel explained that he had not heard Ms Eades make these statements and had only ascertained that she had made them by speaking to other people who had been in court at the material time and by examining the transcript which had only recently become available.

20 The following exchange occurred between the learned trial judge, the appellant's counsel (Mr Hope) and the respondent's counsel (Mr Van Zalm):

DEANE DCJ: I have got no doubt that what you're saying [is] correct, Mr Hope. I heard her say something like 'Her brother,' and '10 years' and I didn't hear her say, 'He done it like a man,' and I didn't hear her say, 'He doesn't need a girl like -' and I do recall her saying, 'I know Mary.'

HOPE, MR: Yes, I heard that.

DEANE DCJ: Yes.

HOPE, MR: My problem is, frankly this: assuming some jurors heard that and by proper direction they are to discuss evidence that evidence we now can assume or that information because it's not admissible evidence is now in the realms of the minds of all the jurors. The difficulty is it's not just an allusion to custody. It's a reference to a 10 year term of imprisonment and there's only one inference that's available there that whatever the offence was it was of a very grave nature and the source is the sister. It's for that reason I took instructions and my client's instruction essentially is he no longer has confidence that he will get a fair trial. I do regret that I did not raise this point earlier but the transcript was not made available and - - -

DEANE DCJ: In the sense that it didn't come to you until quite recently and obviously there's pressure on the transcription service.

HOPE, MR: I'm not being critical of them.

DEANE DCJ: No, no, I know that and you raise it at the time you say because you didn't hear.

HOPE, MR: I wrote it down differently, frankly, but having checked with two independent people now those two independent people clearly heard that information or most of it and I now must assume the foreman at the very least and perhaps two or three - - -

DEANE DCJ: One just can't assume, I think. We just don't know.

HOPE, MR: No, we just don't know.

DEANE DCJ: What are you asking Mr Hope?

HOPE, MR: My instruction is to apply for an abandonment of [the] trial.

DEANE DCJ: Thank you. Does the state have a submission it wishes to make?

VAN ZALM, MR: Your Honour, I certainly heard the witness say that she didn't want her brother to go down for something he didn't do and certainly I heard something about 10 years but the rest of it I didn't hear.

DEANE DCJ: No, you obviously heard the same as me.

VAN ZALM, MR: I'm pretty sure that most of us heard the same thing but firstly I don't know that the transcript is correct without hearing it, without hearing the tape.

DEANE DCJ: Let us assume that it's correct or - for the purposes of this argument. This does happen from time to time and in my experience it's not always the case that a jury is discharged. Often a judge will, if counsel request it, direct the jury; sometimes counsel don't want that to happen because quite frankly it simply puts more emphasis on something that one doesn't want emphasised, so it's really obviously horses for courses as it were and it sometimes even happens and I'm not saying this is a parallel case but it's apparent to the jury anyway that the accused person might even be in custody at the time, might be a serving prisoner and it depends for forensic reasons sometimes that becomes apparent or part of the case, even the defence case.

VAN ZALM, MR: Yes.

DEANE DCJ: It seems to me, and I certainly understand why Mr Hope makes the application that he does on instruction, and obviously if I had been asked to give a direction in relation to it I would have, but as I say that's always at the peril of emphasising something that a juror may not have heard or, more particularly, putting emphasis on something that really creates a problem rather than resolves a problem.

VAN ZALM, MR: Yes.

DEANE DCJ: I have to say it's obviously unfortunate, but it does seem to me that, and this is based on experience in this court over the years with many juries and many different types of trials, but jurors at the end of the day do as judges request. They do approach the evidence neutrally and fairly, and they often hear most unflattering things about not only accused persons, but witnesses and even complainants. It seems to me that they aren't swayed by that, true to their oath or affirmation.

This jury has now been out for over two hours. We haven't heard from them; so it's hardly as if one could say, and this is hypothetically, hearing a piece of information like that, if they did, taking it on board, they have gone into the room and said, in effect, 'Well, he's guilty because of that particular piece of background.' I mean, that's a very exaggerated analysis, but it seems to me that obviously, given the time that they are taking, they are seriously approaching the task, so I am really not minded now, particularly as they have been out deliberating for over two hours, to bring them back and discharge them. I would have thought, Mr Hope, not that you're asking for this, to bring them back and emphasise it now would really, I think, be most unwise.

HOPE, MR: My instruction isn't that, for those reasons, as a matter of fact.

DEANE DCJ: No, I understand.

HOPE, MR: We have discussed it - - -

DEANE DCJ: I'm sure you have. It does seem to me to be a sensible attitude (ts 301 - 303).

21 The learned trial judge dismissed the application by the appellant's counsel for the jury to be discharged and the trial abandoned. Her Honour said:

I'm not really minded to grant your application. All I can comment on or say by way of comment at this stage is, depending on what happens, and no-one knows what is going to happen, this may be a matter for another day in another place, and of course that's entirely up to you on instructions from your client, but at this stage I am not minded to bring back the jury and discharge them. That is my ruling (ts 305).

22 The learned trial judge dismissed the appellant's application at approximately 4.10 pm on 9 April 2008.

The questions from the jury and their verdicts

23 On 9 April 2008, at approximately 5.17 pm, the learned trial judge received a note from the jury with two questions:

(a) What were [the complainant's] responses to the series of questions asked by the prosecutor in respect to the time [the appellant] penetrated her vagina with his fingers?

(b) What were Dr Nixon's responses to the prosecutor's questions regarding the level of pain due to the vaginal injuries?

24 After a discussion between the learned trial judge and counsel, her Honour recalled the jury at approximately 5.24 pm and their questions were answered. The jury retired again at approximately 5.30 pm.

25 Two minutes later, at approximately 5.32 pm, the jury returned with their verdicts.

Inadmissible evidence was before the jury such that it created a prejudice to the Appellant which was incapable of being overcome by direction, such that there was a miscarriage of justice;

Particulars:

evidence was given of a previous term of incarceration served by the Appellant;
the jury were given no direction at all concerning that evidence;
Her Honour then refused to discharge the jury once the evidence was clarified.

The affidavit of the appellant's trial counsel

27 An affidavit of the appellant's trial counsel, Ian Douglas Hope, sworn 14 July 2008, was received in evidence in the appeal. Mr Hope deposes, relevantly:

During the course of her evidence on 8 April 2008, Ms Eades made reference to my client having served 10 years imprisonment. Unfortunately, I did not hear this utterance at the time and did not draw the matter to the attention of the Court.
The transcript of Ms Eades evidence was not available by the close of day, nor was it available the following morning prior to the Trial Judge's charge to the jury on 9 April 2008.
I attended to [sic] my client in custody after the jury was sent to deliberate. It was during the course of that conversation that I learned that my client had heard Ms Tanya Eades make reference to the 10-year term of imprisonment that he had been sentenced to. It was clearly my client's view that the evidence was particularly prejudicial, and that the jury could not deliberate impartially therefore.
I then returned to the Courtroom and spoke with the Sheriff's Officer who confirmed that she too had heard that evidence.
I then contacted the Clerk of Arraigns and again learned that she had heard that evidence.
It was against that background that I addressed the Court and applied for the abandonment of the trial on the basis that the evidence of Ms Eades was so significant an impugnation on the character against the accused, that the jury could not be reasonably expected to deliberate objectively in the knowledge that my client had served 10 years imprisonment for an offence that must have been particularly serious.
I enclose a drawing (Annexure 'A') that is not to scale, depicting the layout of the Courtroom in which the trial took place. The witnesses gave evidence on the right hand side of the Judge near the jury and particularly near the foreperson. The Sheriff's Officer sat at the far end of the Jury. The Clerk of Arraigns was situated immediately in front of the Trial Judge. The accused was to the left of the Judge.

28 The respondent did not object to the tender of Mr Hope's affidavit and did not require his attendance for cross-examination.

29 According to the respondent's written submissions, there is a threshold question in the appeal, namely, whether the relevant evidence of Ms Eades was sufficiently audible that the jury may have heard reference to the appellant's earlier term of imprisonment. Counsel for the respondent accepted, in oral argument, that there was a significant risk that one or more members of the jury had heard the evidence in question. Counsel also accepted, in oral argument, that the relevant evidence of Ms Eades was not only inadmissible but (at least, potentially) highly prejudicial.

30 The respondent submitted, however, that there were seven factors which, in combination, demonstrated that there had been no miscarriage of justice, alternatively no substantial miscarriage of justice, as a result of the admission of the evidence and the learned trial judge's refusal to discharge the jury:

(a) the seriousness of what was said, being unresponsive and unforeseen, is tempered by the fact that it arose from the witness' concern for the appellant's interests and may have had greater impact for the jury on the credit of the witness rather than the credit of the appellant;

(b) the critical issue at trial was consent, or more exactly absence of consent, and a prior conviction of the appellant for an unspecified offence did not bear on that issue;

(d) there was medical evidence supportive of the two counts which resulted in convictions;

(e) there was an emphatic direction, and comment from both counsel, as to the presumption of innocence (ts 304);

(f) the two questions asked by the jury (ts 306), as to the evidence of the complainant and Dr Nixon respectively, show that they were focussed on the central issue; and

(g) there had been a warning against propensity reasoning in the context of uncharged acts (ts 287).

31 When a trial judge refuses an application to discharge a jury and the accused is convicted, an appeal by the accused is against the conviction and not against the exercise of the trial judge's discretion not to discharge the jury. See Maric v The Queen (1978) 52 ALJR 631, 634 (Gibbs ACJ, Mason and Jacobs JJ agreeing); Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 90 (Toohey J); R v Fraser [2001] QCA 187 [37] (White J, McMurdo P and Dutney J agreeing).

32 In Hall v Braybrook [1956] HCA 30; (1955) 95 CLR 620, Dixon CJ said that the general rule that a tribunal of fact responsible for determining the guilt or innocence of an accused should not be informed of his or her criminal record, bad character or antecedents before the tribunal pronounces a finding of guilt has become a principle which pervades the law governing the conduct of criminal proceedings (627 - 628). His Honour added that all concerned in the criminal law are highly sensitive to any infringement of this principle because of 'the prejudice to the issue of guilt which is thought inevitably to ensue' (628). Also see, to similar effect, the observations of Fullagar J (648). And see, too, Dawson v R [1961] HCA 74; (1961) 106 CLR 1, 16 (Dixon CJ), Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45, 50 - 51, 55 (Mason, Wilson, Brennan and Dawson JJ), 59 - 60 (Deane J) and the discussion by Hunt AJA (Simpson and Rothman JJ agreeing) in Seymour v The Queen [2006] NSWCCA 206; (2006) 162 A Crim R 576 [46] - [48].

33 In R v Glennon [1992] HCA 16; (1992) 173 CLR 592, Mason CJ and Toohey J said, relevantly:

Knowledge of an admissible prior conviction for a similar offence stands in a different position from other prejudicial information. Reception of inadmissible evidence of a prior conviction has been said to offend against one of the most deeply rooted and jealously guarded principles of our criminal law (Maxwell v Director of Public Prosecutions, [1935] AC 309, at p 317). And the wrongful reception or transmission of such evidence by or to the jury is calculated to set the prospect of a fair trial at risk. It is then for the trial judge to decide whether it is necessary to discharge the jury in the interests of securing a fair trial (Reg v George (1987) 9 NSWLR 527, at p 533) and, if the trial proceeds and results in a conviction, for a court of criminal appeal to decide whether the accused has been deprived of a fair trial (604).

34 In Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427, the appellant was charged with 13 counts of committing sexual offences against a child aged between 10 and 16 years. The prosecutor led evidence from the complainant to the effect that the appellant had committed further acts of sexual misconduct against her. The evidence was inadmissible and highly prejudicial. The appellant was convicted on five counts. The Court of Criminal Appeal of Victoria followed the earlier decision of that court in R v Boland [1974] VicRp 100; [1974] VR 849, 866 and held that the test for the discharge of the jury, in these circumstances, was one of necessity. In particular, whether, in the circumstances, there was such a high degree of necessity for the jury's discharge that the failure to have ordered such a discharge has resulted in a mistrial. On appeal to the High Court in Crofts, Toohey, Gaudron, Gummow and Kirby JJ said:

It may be accepted that the Court of Criminal Appeal approached the matter with the correct principles in mind. No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.

Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable? (Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1 at 8-9; Maric v The Queen (1978) 52 ALJR 631 at 635; 20 ALR 513 at 521.) In our view, in the particular circumstances of this case, that could not be said (440 - 441).

35 I should make reference to the decision of the Court of Criminal Appeal of Victoria in R v Knape [1965] VicRp 63; [1965] VR 469. In that case, Winneke CJ, Pape and Starke JJ said, in relation to an appeal against conviction where inadmissible evidence of the accused's bad character had been admitted at his trial:

However, if evidence of bad character is inadvertently and improperly given there is undoubtedly a discretion in the trial judge to determine whether or not the jury should be discharged, a discretion to be exercised according to the circumstances of the particular case. An examination of the authorities leads us to the view that unless it can be said, upon the evidence, that the irregular disclosure could not in any way affect the judgment of the jury in coming to their decision of guilty or not guilty, the trial judge should exercise his discretion in favour of the accused (473).

36 In R v George (1987) 9 NSWLR 527, the Court of Criminal Appeal of New South Wales refused to follow Knape. The court considered and followed the subsequent decisions of the Court of Criminal Appeal of Victoria in Boland and R v Vaitos (1981) 4 A Crim R 238. Street CJ (Yeldham and Finlay JJ agreeing) set out the passage from Knape at [35] above, and then said:

This particular paragraph has been considered in two subsequent Victorian decisions and it can, I think, be fairly stated that the second sentence in that paragraph is wrong and should not be followed. The first subsequent Victorian decision to which reference should be made is the decision of R v Boland [1974] VicRp 100; [1974] VR 849, again a Full Court decision. In the judgment of the Court in that case it was stated (at 866):

The power of a trial judge to discharge a jury when some incident occurs during a trial which may adversely affect its fairness depends for its exercise upon the principle stated in Winsor v R (1866) LR 1 QB 390. The principle is really one of necessity. There must be evident 'a high degree of need for such discharge', that high degree being 'such as in the wider sense of the word might be denoted by necessity...'.

Reference should also be made to a later Victorian decision of R v Vaitos (1981) 4 A Crim R 238 in which (at 243) there was reference to R v Knape and criticism of the second sentence in the passage that has been quoted.

The law in this State has never been regarded as approaching that enunciated in R v Knape. In the light of the two subsequent Victorian decisions to which reference has been made one can be confident that the law of Victoria does not differ in this regard from the law of this State. The principle is essentially one that places responsibility upon the trial judge to determine, in the light of the atmosphere of the trial and the nature and extent of the publicity, whether it is necessary to discharge the jury in the interests of ensuring a fair trial (532 - 533).

These observations in George were cited with approval by Mason CJ and Toohey J in Glennon (604).

37 More recently, in R v Hortis [2004] VSCA 143, Nettle JA rejected the suggestion in Knape that an irregular disclosure of evidence of an accused's bad character must result in the discharge of the jury, unless the trial judge is satisfied that the disclosure could not in any way affect the jury's judgment in coming to their verdict. His Honour said:

But that is not the law. As is shown by subsequent decisions of the Court of Criminal Appeal in R v Boland [1974] VicRp 100; [1974] VR 849 at p 866 and R v Vaitos (1981) 4 Crim App R 238 at p 243 and was observed by the New South Wales Court of Criminal Appeal in R v George, Harris and Hilton (1987) 9 NSWLR 527 at p 533, the informing principle is one which places responsibility on the trial judge to determine in light of the nature of the trial and the extent of the prejudice caused by the disclosure whether it is necessary to discharge the jury in the interests of ensuring a fair trial.

That approach was sanctioned by the High Court in Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 at p 440, in which it was said that much depends on the seriousness of the occasion in the context of the contested issues, the stage at which the mishap occurs, the deliberateness of the conduct, and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. The point was reiterated by this Court in R v Su [1997] 1 VR 1 at p 39. There are no rigid rules. The principle is one of necessity. There must be a high degree of need for discharge before that course should be adopted [18] - [19].

38 The applicable principle to be derived from the authorities I have mentioned is this: where inadmissible evidence of an accused's prior conviction has been adduced at trial, and the trial judge refuses to discharge the jury, and the accused is convicted, an appellate court must determine for itself whether, in the circumstances, the trial judge's refusal to discharge the jury has deprived the accused of a fair trial or occasioned the risk of a substantial miscarriage of justice.

39 The principle which I have stated should be expressed in the context of the statutory provisions in Western Australia which govern appeals against conviction to this court. By s 30(3) of the Criminal Appeals Act 2004 (WA), this court must allow an appeal against conviction 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

(c) there was a miscarriage of justice.

By s 30(4), despite s 30(3), even if a ground of appeal might be decided in favour of the offender, this court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

40 If inadmissible evidence is adduced in the course of a criminal trial, an 'irregularity' occurs which will constitute a miscarriage of justice. See Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [18], [36]; Bounds v The Queen [2006] HCA 39; (2006) 80 ALJR 1380 [78]; Rinaldi v The State of Western Australia [2007] WASCA 53 [178]; Marshall v The State of Western Australia [2007] WASCA 96 [18]. However, where such a miscarriage occurs, this court may refuse to allow the appeal and set aside the verdict of conviction if it considers that no substantial miscarriage of justice has occurred within s 30(4) of the Criminal Appeals Act. See King v The Queen [2003] HCA 42; (2003) 215 CLR 150 [100]; Weiss [35], [39], [40]; Marshall [18].

41 It is necessary, in considering whether no substantial miscarriage of justice has occurred, to have regard to all the circumstances of the trial, including the degree to which the inadmissible evidence was prejudicial to the accused in the context of the issues in dispute at the trial; the stage of the trial at which the relevant evidence was adduced; whether the relevant evidence was adduced inadvertently or not; and whether any direction given by the trial judge to the jury was likely to have overcome the prejudicial nature of the relevant evidence.

42 I have listened to the tape recording of the critical passage from Ms Eades' evidence and parts of her evidence on each side of that passage. The crucial words she uttered were audible and reasonably distinct. I am satisfied that at least one (and, probably, several) of the jurors heard the inadmissible evidence. I proceed on that basis, and also assume that Ms Eades' words were made known to any jurors who did not hear them.

(a) whether the complainant did not consent to the particular sexual acts referred to in the indictment; and

(b) if the complainant did not in fact consent, whether the appellant had an honest and reasonable, but mistaken, belief that she had consented.

It was, of course, necessary for the jury to be satisfied beyond reasonable doubt that the complainant did not consent, and that the appellant did not have an honest and reasonable, but mistaken, belief that she had consented, before they could convict.

44 The evidence which was relevant to the issues in contest included the complainant's evidence, the evidence of the medical practitioners who examined her after the alleged offences had occurred, the out-of-court video record of interview between police officers and the appellant (which, as I have mentioned, contained both inculpatory and exculpatory material) and the evidence of Ms Eades.

45 The learned trial judge, in her summing up, summarised the appellant's assertions in the interview:

[The appellant] said he had been in a boyfriend/girlfriend intimate relationship with [the complainant] for a number of months prior to the allegations. He said it was a good relationship in his view. He denied that the complainant left the house where they were early on Christmas morning because he was aggressive to her. He said she was jealous and suspicious of him. He said he saw her at a party in Belmont for her nephew.

In fact, he said that they actually went there together and they left together. He implied that all was well between them at that time. He said it was New Year's night in Northbridge when they bumped into each other and he said he certainly wasn't aggressive towards her. He said that he, in effect, didn't form the impression she didn't want to be there with him, although she did leave and he didn't know where she went. He said that she contacted him on the mobile that she had lent him when he was in Supreme Court Gardens.

It was from there they went to Centrelink and then they went back to her house together. He agreed the next day they went to look for a car together in Victoria Park which he bought and purchased and put in her name. He said they went to his sister Tanya's in the car. He said that an argument developed after the three of them and the complainant's young child were driving around in the car. The complainant, he said, like himself and Tanya at that time was adversely affected by alcohol.

He got annoyed when she tried to take her child out of the car. He agreed they had an argument in the car and said they were both punching each other and Tanya saw everything. His recollection was that the only punches that were thrown in the car when they were both arguing and fighting were those that he described. He said he got a split lip after she threw the first punch at him. He, at the time, was sitting in the back of the car.

He denied that he pulled her hair or punched her. He agreed that they slept at Tanya's that night and the next day they went to the complainant's mother's home. I think he also said he bought some chicken for his sister and for them. On the night of 8 January [2005] he said he and [the complainant] were together at her unit in the evening. They had some food and they were drinking wine. She told the children to go to bed. They had a bit of a verbal argument but he denied throwing anything at her or pulling her hair.

They went up to bed late in the evening after midnight having consumed, he thought, about two casks of wine or eight litres, because I think there are four in each, but it's not entirely clear whether in fact it was just the two of them who drank it or whether Ms Eades might have been involved in the drinking but really the general impression he seemed to give was that they had both been drinking quite a bit. However, they went up to the room.

They watched TV and he said after that they had consensual intercourse as they lay on the bed naked and drunk. He said it was entirely consensual and not forceful in any way and she never told him to stop and she never tried to push him away. In fact, he suggested it was her idea to go to bed. He then said that he was not wearing a condom because he never did and he went on to describe their very active sex life together.

On this particular occasion he said they had sexual intercourse and he also said that he placed three fingers in the complainant's vagina and the following morning when they awoke they had consensual sexual intercourse again. He denied that she ever told him to stop and she never, he said, complained of his behaviour causing her any pain. He denied that he ever asked her to bend over or that she refused because she said she was in pain (ts 288 - 289).

46 Although the particular offence for which the appellant had received the sentence of 10 years' imprisonment was not identified at the trial, the jury were likely to have concluded that he had committed a very serious crime. (The appellant had, in fact, been convicted of attempted murder.)

47 The appellant's trial occupied only 3 days. Ms Eades was the last witness to give evidence. There is no real possibility that the jury would have forgotten the evidence in question when they commenced deliberating.

48 It was not alleged by the respondent that Ms Eades gave the relevant evidence for the purpose of procuring an abandonment of the trial. It is appropriate, in the circumstances, to proceed on the basis that the inadmissible evidence was adduced inadvertently and not pursuant to a strategy adopted by or on behalf of the appellant.

49 The learned trial judge, having concluded that the jury should not be discharged, decided, consistently with the position advocated by the appellant's trial counsel, not to give the jury any direction concerning the evidence in question.

50 Ms Eades' statements as to the appellant having received a prior sentence of 10 years' imprisonment appear to have been made as a result of her concern for the appellant's interests; in particular, her apparent belief that there was no substance in the allegations against him at the trial and her fear that he may be unjustly convicted and again be imprisoned. I consider the statements were unlikely to have had a material impact on Ms Eades' credit in the eyes of the jury. Certainly, her statements would not have had a greater impact on her credit than the appellant's credit.

51 As I have mentioned, the issues in contest at the trial were whether the complainant did not consent and, if she did not in fact consent, whether the appellant had an honest and reasonable, but mistaken, belief that she had consented. It is true that the appellant's prior conviction and lengthy imprisonment for an unspecified offence did not bear directly on those issues. However, the prior conviction for what must have been, from the perception of the jury, a very serious crime was likely to have diminished significantly or obliterated any weight the jury might otherwise have given to the appellant's exculpatory statements in his out-of-court interview with the police.

52 As I have mentioned, the jury unanimously acquitted the appellant on count 1, and there was medical evidence from Dr Oehlers, Dr Martin and Dr Nixon which corroborated the complainant's evidence in relation to counts 2 and 4, on which the appellant was convicted. The acquittal on count 1 may be explained on the basis that the jury were not willing to act solely on the complainant's evidence that she did not consent, and they required some corroboration of her evidence before being satisfied beyond reasonable doubt that she did not, in fact, consent. This corroboration existed in relation to counts 2 and 4 (the digital penetration alleged in count 2 having occurred before the penile penetration alleged in count 4). There was, however, no corroboration from the medical practitioners in relation to count 1 (another count alleging penile penetration), which occurred before count 2 (during which she sustained the vaginal injuries). The two questions asked by the jury, as to the evidence of the complainant and Dr Nixon respectively, support the view that the jury may not have been willing to act on the complainant's evidence without some corroboration. In my opinion, however, the different verdicts returned by the jury in relation to count 1 on the one hand, and counts 2 and 4 on the other, and the apparent reasons for that difference, are not a secure basis for concluding that none of the jurors relied on the relevant evidence from Ms Eades for the purpose of discounting the appellant's exculpatory out-of-court statements or placing no weight on them.

53 The learned trial judge told the jury, in relation to the presumption of innocence, that:

In any criminal trial, the onus does not shift to an accused, and that's really because of the presumption of innocence, which is another very important principle in our criminal justice system, and that means that any person, no matter who they are and no matter what they are charged with, is presumed by law to be innocent of that allegation unless and until a jury finds it proved (ts 267).

Counsel for the appellant and the respondent made similar comments in their closing addresses. Her Honour commented on relationship evidence and evidence of uncharged acts, such as physical and verbal violence:

If you were to find that any of those particular occasions or incidents by way of physical violence or verbal arguments occurred, clearly they are not charges on the indictment. This material is led or put before you by way of evidence to establish what was said to be the background to the relationship between these two people. If you were to find that the other incidents or any of them occurred then it doesn't follow that the accused is guilty of any of the three offences which he's charged with on the indictment.

You must not proceed on the basis that because someone has done something else then they must have done whatever they are charged with on the indictment. You may, however, find the evidence of those other alleged incidents which are not charged on the indictment and which are not alleged incidents of sexual misconduct if they happened, which is entirely a matter for you, of assistance in determining (sic) when you are considering the nature of the relationship between these two people as it existed in January 2005 (ts 287).

In my opinion, her Honour's direction as to the presumption of innocence said nothing about the irrelevance of the appellant's bad character, as evidenced by his prior conviction and imprisonment, in evaluating the weight to be given to his exculpatory out-of-court statements in the police interview. Further, her Honour's instruction as to the uncharged acts concerned evidence of the appellant's physical and verbal violence towards the complainant in the course of their relationship, and said nothing about the irrelevance of the appellant's bad character, as evidenced by his prior conviction and imprisonment.

54 In my opinion, the evidence in question from Ms Eades seriously damaged the appellant's defence at the trial. The inadmissible evidence was highly prejudicial to him in the context of the issues in contest. It was a short trial and the relevant evidence was adduced shortly before the commencement of closing addresses by counsel. It is not suggested that the evidence was adduced deliberately for the purpose of procuring an abandonment of the trial. No direction was given by her Honour to the jury in relation to the evidence. None of the matters relied on by the respondent, either singly or in combination, sufficiently diminished the prejudicial nature of the relevant evidence. Although my impression of the record is that the respondent's case against the appellant was strong, his conviction on counts 2 and 4 was not inevitable. See and compare R v Bartle [2003] NSWCCA 329; (2003) 181 FLR 1.

55 I am satisfied, in the circumstances, that the learned trial judge's refusal to discharge the jury has deprived the appellant of a fair trial. I am not satisfied, within s 30(4) of the Criminal Appeals Act, that no substantial miscarriage of justice has occurred.

56 I would allow the appeal, quash the convictions and order a retrial.

NARRIER -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 191 (16 September 2008)

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Judgment (96 paragraphs)

NARRIER -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 191 (16 September 2008)

Legislation Cited (1)

Cases Cited (12)