//
[2015] WASCA 159
General information, not legal advice.
Court of Appeal (WA)
2015-08-14
Mr J, Lure P, Buss JA, Hall J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : PAH -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 159
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Criminal law - Appeal against conviction - Appellant convicted on five counts and acquitted on two counts of child sex offending - Whether verdicts of guilty unsafe and unsatisfactory - Whether a miscarriage of justice occurred as a result of the trial judge permitting the prosecutor to speak to the complainant during an adjournment at the trial while she was still giving evidence - Inconsistent verdicts - Whether a miscarriage or substantial miscarriage of justice occurred as a result of the prosecutor's failure to comply with disclosure obligations prior to trial - Proper construction of the definition of 'evidentiary material relevant to a charge' in s 42(1) of the Criminal Procedure Act 2004 (WA) - Proper construction of s 95(9)(b) of the Criminal Procedure Act
Criminal Procedure Act 2004 (WA), s 3, s 42, s 80, s 95
State's applications for leave to adduce additional evidence in the appeal granted
Button v The Queen [2002] WASCA 35; (2002) 25 WAR 382
Carney v The State of Western Australia [2010] WASCA 90; (2010) 201 A Crim R 537
'D' v The State of Western Australia [2007] WASCA 272; (2007) 179 A Crim R 377
Davis v The State of Western Australia [2007] WASCA 267
Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154
Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
Mack v The State of Western Australia [2014] WASCA 207
MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
NCH v The State of Western Australia [2013] WASCA 29
R v Brown (Winston) [1994] 1 WLR 1599
Riley v The State of Western Australia [2007] WASCA 22
Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319
WCW v The State of Western Australia [2008] WASCA 232; (2008) 191 A Crim R 22
White v The Queen [2006] WASCA 62
Williams v Smith [1960] HCA 22; (1960) 103 CLR 539
2 BUSS JA: The appellant appeals to this court against conviction.
3 He was charged on an indictment dated 7 January 2014 with seven counts of sex offending against his de facto child.
4 On 16 May 2014, after a trial in the District Court before Stone DCJ and a jury which began on 13 May 2014, the appellant was convicted on five counts and acquitted on two counts.
5 The counts on which he was convicted, being counts 3, 4, 5, 6 and 7, alleged:
(a) as to count 3, on a date unknown between 31 December 2007 and 1 February 2009, at a location in rural Western Australia, the appellant sexually penetrated the victim, a child under the age of 16 who he then knew to be his de facto child, by engaging in cunnilingus, contrary to s 329(2) of the Criminal Code (WA) (the Code);
(b) as to count 4, on the same date and at the same place as in count 3, the appellant sexually penetrated the victim, a child under the age of 16 who he then knew to be his de facto child, by introducing his penis into her mouth, contrary to s 329(2) of the Code;
(c) as to count 5, on a date unknown between 21 August 2010 and 22 August 2011, at a location in rural Western Australia, the appellant sexually penetrated the victim, a child under the age of 16 who he then knew to be his de facto child, by penetrating her anus with his penis, contrary to s 329(2) of the Code;
(d) as to count 6, on 7 July 2013, at a location in rural Western Australia, the appellant sexually penetrated the victim, a child under the age of 16 who he then knew to be his de facto child, by penetrating her vagina with his penis, contrary to s 329(2) of the Code; and
(e) as to count 7, on the same date and at the same place as in count 6, the appellant sexually penetrated the victim, a child under the age of 16 who he then knew to be his de facto child, by penetrating her anus with his penis, contrary to s 329(2) of the Code.
6 The counts on which he was acquitted, being counts 1 and 2, alleged:
(a) as to count 1, on a date unknown between 31 December 2005 and 1 January 2008, at a location in rural Western Australia, the appellant indecently dealt with the victim, a child under the age of 16 who he then knew to be his de facto child, by exposing his penis in her presence, contrary to s 329(4) of the Code; and
(b) as to count 2, on another date unknown between 31 December 2005 and 1 January 2008, at a location in rural Western Australia, the appellant indecently dealt with the victim, a child under the age of 16 who he then knew to be his de facto child, by rubbing her chest, contrary to s 329(4) of the Code.
The age of the victim and the appellant, the making of complaint and the charging of the appellant
7 The victim was born in 1998. During the period of the alleged offending she was aged between 7 and 14. The victim was aged 15 when she gave evidence at trial.
8 The appellant was born in 1972. During the period of the alleged offending he was aged between 33 and 40.
9 On 8 July 2013, the victim showed her mother a text message she had received earlier that day from the appellant. The message said, 'I want yr sweet tastying [sic] pusy [sic]'. On 9 July 2013, the victim and her mother went to a police station and showed the text message to a police officer. The mother then took the victim to a hospital for a physical examination.
10 On 10 July 2013, the victim participated in a video-recorded interview at a police station with Kaye Townsend.
11 On 12 July 2013, the appellant participated in a video-recorded interview with police. At the conclusion of the interview, the appellant was charged with two offences of indecently dealing with the victim and three counts of sexually penetrating her. By the indictment dated 7 January 2014, the appellant was charged with the seven counts that I have mentioned.
The victim's video-recorded interview with Ms Townsend
12 During her video-recorded interview with Ms Townsend, the victim said that count 1 had occurred in a paddock at her grandparents' property (VROI 6). She gave this account of the alleged offending:
A. Walked down there and I was asked to help him find something and then we were down there and we were looking and he said to me, 'Have you learnt about' - - 'What have you learnt about at school?', I was like, 'Not much'. He goes, 'Oh, okay'. Then he pulled his penis out and said, 'Have you learnt about this?', and I said, 'No'. And that's basically all I can remember, cos I've tried to shut it out since then.
...
Q. Okay. How's he, um, shown you his penis?
A. He basically just pulled it out of his pants and that was about it.
Q. So where were his pants when he did that?
A. Um, they were still on him but he just like pulled it out like he was going to grab here or something.
Q. Okay. And, um, tell me what he said when he did that?
A. He just said, um, 'Have you learnt about this yet?' and I said, 'No', and that's all I can remember.
Q. And tell me, what did you see?
A. Um, I seen basically just his penis (VROI 10 - 12).
13 The victim told Ms Townsend about the text message from the appellant which said, 'I want yr sweet tastying [sic] pusy [sic]' (VROI 15). The victim said she had received similar messages from the appellant (VROI 16 - 17). They were 'dirty messages, basically saying the same thing as that one' and that 'he wanted me' (VROI 17). The victim said she deleted the messages from her mobile telephone (VROI 17).
14 The victim also told Ms Townsend that 'it just started [with the appellant] showing me [his penis] and then it started to become touching and then him getting me to suck his penis and ... him licking me and then penetration' (VROI 19). She added he would 'touch' her 'bits' and 'grope' her in the 'breast area' (VROI 19 - 20).
15 The victim gave this account of the offending the subject of count 2:
Q. And ... so you were in your bedroom, um, sleeping.
A. Yeah.
Q. And tell me what happened?
A. Um, well I felt something touching me and rubbing up my legs and groping me and I was like asleep but still aware of what was going on. And I remember like cos it's very easy to wake me up, I remember after a few seconds I opened my eyes and I seen him walking out of my room.
Q. All right. So you said you felt something rubbing up your leg, tell me what did you feel?
A. Um, I felt - - do you know how if someone goes like this, like how it feels like it's a tickling sensation kind of thing.
Q. Mm hm.
A. That's what I could feel up my legs.
Q. Okay.
A. And just felt like someone was going like this.
Q. So tell me what body part was touching your body part?
A. It was his hand.
Q. And what was it touching?
A. My leg and then it moved up to my breast.
Q. And how long was he touching your leg and your breast for?
A. Um, I'm not actually sure.
Q. And how - - and what were you wearing at that time?
A. My pyjamas, I think it was winter ones.
Q. How do you remember it was your winter pyjamas?
A. Cos I used to always wear them, like - -
Q. Tell me, where were your pyjamas when he was touching you?
A. On my body still.
Q. Okay. So tell me, how's he touched?
A. Um, he pulled the leg up of my pyjamas and, um, with my winter shirt it had buttons and you could slip your hand in there.
Q. So tell me, how's he touched your breast?
A. He, um, basically went like this over them, rubbing them.
Q. And, um, tell me how long that lasted for?
A. Um, probably about a minute, I think.
Q. And tell me, um, what could you see ... (indistinct) ...
A. I was - - still had my eyes closed and then, umm, I woke up and I seen him walking out of my room, so I didn't see much (VROI 22 - 23).
16 The victim said that on the day of the offending the subject of counts 3 and 4 she had informed the appellant that she wanted to visit a friend and stay at her friend's house (VROI 27 - 28). The appellant responded that if she wanted to visit her friend then she would have to 'do something for him' (VROI 28). The victim described in detail the offending the subject of counts 3 and 4 as follows:
A. I said to him, um, 'What is it that I have to do?'.
Q. Mm.
A. And that's when he told me.
Q. And what did he say?
A. He said, 'If you want to go out, you have to let me, just lay on the bed and don't move'.
Q. Tell me, what did you do?
A. I was confused and didn't really understand, so I went and laid on the bed.
Q. Tell me what bed did you lay on?
A. Mum and Dad's.
...
Q. And when you've got in to the room and laid down, um, tell me where was [the appellant]?
A. He was in the dining area. After a few seconds he came in.
Q. And was there any conversation when he came in?
A. No.
Q. Tell me, what did he do?
A. He, um, pulled my legs apart, he pulled my pants off.
Q. Yeah.
A. And then he started licking me.
...
Q. All right. Were you wearing any other clothes, apart from your singlet and your denim shorts?
A. My underwear.
Q. Okay. Um, was your underwear still on when he pulled your pants off?
A. He pulled them off with them.
Q. Okay. So you said he licked you, so tell me where did he lick?
A. Um, my vagina.
...
Q. And, um, tell me how long did he do this for?
A. Um, a few minutes.
Q. And tell me, why did he stop?
A. Cos I pushed him away and told him to go. Like I didn't want to do it.
Q. Okay. Um, and did he say anything when you said that?
A. He gave me a foul look and said, 'If you're not going to do that then you can suck my dick'.
Q. Tell me what did you do?
A. I hesitated.
Q. Yeah.
A. But I ended up doing it.
Q. Okay. So tell me, what did you do?
A. I sucked it.
Q. Okay. And, um, tell me what you - - what do you mean by 'dick'?
A. His penis.
...
Q. Yeah. And how long did that last for?
A. Um, probably about a minute.
Q. A minute. And why did it stop?
A. Because he said that he was going to come.
Q. All right. And tell me what you mean by 'he was going to come'?
A. He was going to ejaculate.
Q. All right. And did he ejaculate?
A. He did after I pulled away.
Q. Tell me, um, when did he ejaculate?
A. Um, as soon as I kind of pulled back.
Q. Yeah. And where did he ejaculate? What - - what - -
A. In to a, um, piece of towel.
Q. Yeah.
A. It's like bigger than a flannel.
Q. And where did he get that from?
A. It was sitting on the floor (VROI 28 - 34).
17 The victim said that, after the appellant committed counts 3 and 4, he drove her to her friend's house and, during the journey, said, 'Don't tell anyone, it's our secret' (VROI 35).
18 Ms Townsend asked the victim, after the victim had recounted the events associated with counts 3 and 4, whether there were 'any other times' (VROI 36). The following exchange occurred:
19 The victim told Ms Townsend about the vaginal and anal penetration. She said 'it started with anal' and then, after a while, the appellant 'started to trying to get into my vagina' (VROI 36). She said the anal penetration began when she was aged 12 (VROI 36).
20 As to count 5, the victim gave this account of a conversation she had with the appellant:
I said to him, 'Can I go out?', and he goes, 'What do you mean?'. I was like, 'It's [A's] birthday today, so am I allowed to go and stay at her house?', and he goes, 'Well, if you want to do that, I have to penetrate you' (VROI 39).
21 The victim then recounted in detail an incident in which the appellant penetrated her anus with his penis (VROI 39 - 43). She said the incident happened in her bedroom; she 'felt scared' and was in 'a lot of pain from it'; 'it felt really weird'; the penetration continued for 'about a minute'; and the appellant stopped because he was going to ejaculate (VROI 39 - 42). He ejaculated into a piece of clothing that was in the laundry (VROI 43). After the incident, the appellant repeatedly told the victim, 'it's our secret, don't tell anyone' (VROI 43). He then drove her to A's house (VROI 44).
22 The victim gave a detailed account of the offending the subject of counts 6 and 7 (VROI 44 - 53). Her account included this summary:
A. I wanted to go to my best friend [C's] house and, um, he told me, 'No', and I said, 'Why not? I've done everything that I'm supposed to do'. And then he said 'Fine but we've got to do our thing first'. And, um, we went home and we went in to Mum and Dad's room - -
Q. Mm hm.
A. - - and he pulled my pants off, he pulled his off, he climbed completely on to the bed. He tried to get in to my vagina. Um, he didn't get in, he got like a little tiny bit in and then I pushed him away with my legs and I kept pushing on him and then, um, he said, 'If you want to go, we have to do this'. So [we] end up going to anal and then after that, um, I got dressed, I went and grabbed the car keys, I went to the car, I stuck ... the keys on the seat, I sat in the car, he came in the car. Um, there was no conversation about it. We went and got my little brother and my sister and my big brother some food, then he took me ... to [C's] house (VROI 44).
The appellant's video-recorded interview with police
23 During his video-recorded interview with police, the appellant made or adopted the following statements:
(a) The appellant and the victim's mother had been together for 11 years (VROI 7).
(b) The victim's mother and the appellant were the biological parents of two children. The victim's mother had two children (including the victim) from a previous relationship. The appellant had two children by two other women (VROI 7 - 8).
(c) The appellant's relationship with the victim's mother had had its 'ups and downs' (VROI 10). However, apart from the victim's mother saying recently that he had been 'pulling away from her', their relationship was 'good'. He had been 'pulling away' because of his work and leisure activities (VROI 10, 14).
(d) The appellant's relationship with the victim was 'good', apart from normal father/daughter 'sort of things' (VROI 14). The victim treated the appellant as her father because her biological father did not talk to her (VROI 11).
(e) There was never a time when the appellant was alone with the victim at her grandparents' property. There was always someone around (VROI 15 - 16).
24 As to count 1, the appellant denied having exposed his penis to the victim. She may have seen his penis when he was having 'a pee or something like that', but he had not 'shown [it to] her' (VROI 18 - 19). To his knowledge, she had not seen his penis while he was urinating (VROI 20).
25 As to count 2, the appellant denied, in substance, that the alleged offending had occurred (VROI 22). He had never entered the victim's bedroom, while she was asleep, and rubbed her chest (VROI 28).
27 As to counts 3 and 4, the appellant denied that the alleged offending had occurred (VROI 31).
28 The appellant was then questioned by the police about whether he had ever spoken to the victim about performing cunnilingus on her. The following exchange, which included an admission by the appellant in relation to the text message he sent to the victim on 8 July 2013, occurred:
OFFICER JAMIE: ... Have you ever spoken to her about licking her vagina, or not?
[APPELLANT]: Oh, probably, nah, um, probably in pass [sic] comments to her mother, or something like that, or I've said, um, something to her mother and she's overheard.
OFFICER JAMIE: Okay, but you've never said anything like that directly to [the victim], is that what you're saying?
[APPELLANT]: Oh, well, I think ... I've done it in a text message, for a joke around.
OFFICER JAMIE: Yep.
[APPELLANT]: Which I know that's wrong.
OFFICER JAMIE: All right, and ... what do you mean by that ... what have you said?
[APPELLANT]: I just said, oh, I'd like to lick your pussy.
OFFICER JAMIE: Okay. Ah, explain to me ... how did that come about?
[APPELLANT]: I don't know, it's just, one day I was, cos, when I used to text her, she doesn't answer me. So, I'd just write, I know it's stupid, crude fucking messages to her.
OFFICER JAMIE: Oh, all right.
[APPELLANT]: So, like I said to her once was that, I said, I'd like to, um, meet [sic] your sweet pussy, and then after that she texts me.
OFFICER JAMIE: Why would you do that - - - -
[APPELLANT]: I know it's - - - -
OFFICER JAMIE: To a, a fourteen year old girl?
[APPELLANT]: I know it's wrong. I don't know why I do it.
OFFICER JAMIE: How many times have you done that before?
[APPELLANT]: Ah, probably been a couple of times, I've done that.
OFFICER JAMIE: Yeah. And what other things have you said in these text messages?
[APPELLANT]: Um, oh, that's about it. Yeah, probably been about it, I've said in text messages.
OFFICER JAMIE: So, you've only sent one text message saying that?
[APPELLANT]: No, there's been a couple.
OFFICER JAMIE: All right, so ... what was the substance of those other text messages?
[APPELLANT]: Substance, what do you mean by substance?
OFFICER JAMIE: Ah, what's the type of thing that you've said in those text messages?
[APPELLANT]: Oh, just, like, um, the sexual bits, or?
OFFICER JAMIE: Yes.
[APPELLANT]: Just, oh, like I said, oh, I would like to, um, lick your sweet pussy.
OFFICER JAMIE: Have you said anything besides, sweet pussy, have you said anything about having sex with her?
[APPELLANT]: No, I don't think I would've, but, nah. I'm pretty sure I wouldn't have, no (VROI 32 - 33).
29 The appellant stated that he had never performed cunnilingus on the victim (VROI 36). His explanations for sending the text message that said, 'I want yr sweet tastying [sic] pusy [sic]', included that he 'thought it might get her attention to talk to me' (VROI 34) and that he 'must be just sick in the head' (VROI 36).
30 Although he had sent other crude text messages to the victim, the appellant could not recall what those other messages said because 'when I text them, I can delete them' (VROI 36 - 37). The other text messages were 'probably similar' to the message which said, 'I want yr sweet tastying [sic] pusy [sic]' (VROI 37).
31 The appellant was questioned as to whether he had communicated with the victim about other parts of her body:
OFFICER MATT: Yep? Do you make reference to any other body parts?
[APPELLANT]: Um, not that I can remember ... no.
...
OFFICER MATT: Nothing about her arse or her legs, or anything like that?
[APPELLANT]: I always tell her she's got a fat arse.
OFFICER MATT: Do you?
[APPELLANT]: Mm.
OFFICER MATT: Okay.
[APPELLANT]: She sits on it too much.
OFFICER MATT: All right, and when you send these text messages to her, does she respond in a sexual manner?
[APPELLANT]: She has, yes.
OFFICER MATT: Yeah? What does she respond with?
[APPELLANT]: She says, I want to suck your dick.
OFFICER MATT: Does she? Okay.
[APPELLANT]: So, that's something I know youse haven't got on here, the response.
OFFICER JAMIE: Oh, and did she respond with that at this time?
[APPELLANT]: Not that one, no.
OFFICER JAMIE: Okay.
[APPELLANT]: So.
OFFICER MATT: And ... when she sends that back to you, what, what do you do?
[APPELLANT]: Well, what, ah, every other bloke does, um, yeah, you just keep going, don't ya?
OFFICER MATT: Yep?
[APPELLANT]: So.
OFFICER MATT: So, you have the sexual conversation with her?
[APPELLANT]: Mm.
...
OFFICER MATT: Okay. And beyond the text messages, has it ever gone any further than that?
[APPELLANT]: No. Nah.
OFFICER MATT: And it seems that the instances we're talking about, um, you licking her pussy, and you putting your penis in her mouth, that seems to be the, the conversations that you're having with her.
[APPELLANT]: Mm.
OFFICER MATT: You wanting to lick her pussy, and her wanting to suck your dick.
[APPELLANT]: Mmhmm. Yeah, but, nah, like I said, nothing's happened with it.
OFFICER MATT: Mmhmm. Okay, thanks, mate.
OFFICER JAMIE: Is that something that ... you've thought about or fantasised about, or not?
[APPELLANT]: Oh, [indistinct], not with a young girl, no.
OFFICER JAMIE: With [the victim], I mean - - -
[APPELLANT]: Nah.
OFFICER JAMIE: Obviously you're talking about it, ah - - -
[APPELLANT]: Yeah, but, oh - - -
OFFICER JAMIE: Is it something you, you've thought about happening or not?
[APPELLANT]: No. Cos, [the victim's] the spitting image, like her mother.
OFFICER JAMIE: Yep.
[APPELLANT]: So, that's the stuff that I'd do with her mother (VROI 37 - 39).
32 As to count 5, the appellant denied that the alleged offending had occurred (VROI 42). He also denied having had anal sex with the victim at any time (VROI 42 - 43). He could not think of a time when he had spoken with the victim on the telephone about having anal sex with her (VROI 42 - 43). However, the appellant admitted that in text messages he and the victim would have spoken about having sexual intercourse (VROI 43). These questions and answers then followed:
OFFICER JAMIE: [W]hat would the context of those text messages be?
[THE APPELLANT]: Same as what the other ones would've been about, can I lick your pussy, and she wanted to lick my dick.
OFFICER JAMIE: Yep.
[THE APPELLANT]: And stuff like that.
OFFICER JAMIE: In those text messages, would you have spoken about having sexual intercourse with her?
[THE APPELLANT]: No, I think, might've been a couple of times there, she's, she's text me in the morning, and says, I want you, and I went, want me where? She said, in my pussy.
OFFICER JAMIE: Okay.
[THE APPELLANT]: That was her texts.
OFFICER JAMIE: And what was your understanding from that? What she meant by that?
[THE APPELLANT]: Oh, she wanted to have sex, but I know I'm not gonna do it with her.
OFFICER JAMIE: Okay. Again, is that something that you've thought about doing, after she's - - -
[THE APPELLANT]: Nah.
OFFICER JAMIE: Sent you these text messages?
[THE APPELLANT]: Nah. I'd rather pull meself off.
OFFICER JAMIE: All right.
[THE APPELLANT]: Than do it with a child (VROI 43 - 44).
33 Next, the appellant was questioned by the police about his sexual fantasies in relation to the victim:
OFFICER JAMIE: All right. But have you ... masturbated and thought about [the victim]?
[THE APPELLANT]: Probably, yes.
OFFICER JAMIE: Whilst you're masturbating?
[THE APPELLANT]: Probably, yes.
OFFICER JAMIE: Probably, or yes, you have?
[THE APPELLANT]: Yeah, I probably would've, yeah.
OFFICER JAMIE: All right. And what, what sort of thing would you think about whilst masturbating and thinking of [the victim]?
[THE APPELLANT]: Just like every other bloke, ah, probably do, just having sex, and thinking.
OFFICER JAMIE: All right. And in what sort of way would you have sex, in your, in your thoughts what, what positions and that sort of thing would you be thinking of having sex with her, while you're masturbating?
[THE APPELLANT]: Just laying on top of her.
OFFICER JAMIE: Yep.
[THE APPELLANT]: And that would've been about it.
...
OFFICER JAMIE: All right. So, are we talking penile, vaginal intercourse? When, when you're thinking about having sex with her?
[THE APPELLANT]: Oh, it would be when you're pulling yourself off.
OFFICER JAMIE: Yep. What about anal?
[THE APPELLANT]: Nah (VROI 44).
34 The following exchange occurred about the appellant's interest in and experience of anal sex:
OFFICER JAMIE: All right. Is that something that you're interested in, or not?
[THE APPELLANT]: Oh, I'd like to do it, yes.
OFFICER JAMIE: Okay. Like to do it with [the victim], or?
[THE APPELLANT]: No.
OFFICER JAMIE: All right.
[THE APPELLANT]: No, with her mother.
OFFICER JAMIE: All right. Have you ever had ... anal intercourse with [the victim's mother]?
[THE APPELLANT]: Yes.
OFFICER JAMIE: All right.
[THE APPELLANT]: Many years ago.
...
OFFICER JAMIE: Okay. So, when would be the last time that you had anal sex with somebody?
[THE APPELLANT]: With [the victim's mother].
...
OFFICER JAMIE: All right. When was the last time that you ... fantasised, or you thought about having anal sex with someone?
[THE APPELLANT]: ... I say it all the time to the missus.
OFFICER JAMIE: Okay.
[THE APPELLANT]: So, and she tells me, no.
OFFICER JAMIE: All right. In the context of the text messages that, that's been between you and [the victim], have you spoken about anal sex?
[THE APPELLANT]: Not that I can think of, no.
OFFICER JAMIE: All right. Is it possible that you've spoken about it?
[THE APPELLANT]: Could've done, yes.
...
OFFICER MATT: Oh, if it, if it was discussed, who would've raised that?
[THE APPELLANT]: Might've been me.
...
OFFICER MATT: But you think it is possible you may have referred to having anal sex with [the victim], by text message?
[THE APPELLANT]: Might've done, yes.
OFFICER MATT: Okay. Do you ... remember that text message?
[THE APPELLANT]: Nah. As I said, I don't remember bugger all.
...
OFFICER MATT: Okay. So, have you had anal sex with any other woman?
[THE APPELLANT]: Oh, um, in previous ones beforehand, yes (VROI 44 - 46).
35 As to counts 6 and 7, the appellant admitted that, as alleged by the victim, on 7 July 2013 the appellant, the victim and her mother were at his parents' house (VROI 49). However, the appellant denied that the alleged offending had occurred (VROI 51 - 52). The police asked the appellant if he could recall what the victim was wearing on the day in question:
OFFICER MATT: Do you remember what she was wearing on Sunday?
[THE APPELLANT]: When we went home she had, um, long pants on, and a white top, then when she come out of her room to go, she's had a pair of little shorts on.
OFFICER MATT: Mmhmm.
[THE APPELLANT]: Denim shorts.
OFFICER MATT: Okay.
[THE APPELLANT]: So, and the white top still.
OFFICER MATT: All right, and, with ... the short shorts, can you see what underwear she's wearing?
[THE APPELLANT]: No, but you can see them going up her arse.
OFFICER MATT: Yeah?
[THE APPELLANT]: Which I hated all the time, I've ... always said she, kids shouldn't be wearing that shit.
OFFICER MATT: What do, what do you mean they're going up her arse, like?
[THE APPELLANT]: Like you can see, like, she's wearing a g-string if you know what I mean.
...
OFFICER MATT: ... why do you hate it so much?
[THE APPELLANT]: Cos, kids show stuff off.
OFFICER MATT: Yep.
[THE APPELLANT]: So, it pulls that up that hard, and they're [indistinct], yeah, that's what happens to, people look - - -
OFFICER MATT: Mmhmm.
[THE APPELLANT]: And stuff.
OFFICER MATT: Yep. Do you - - -
[THE APPELLANT]: So.
OFFICER MATT: Look at her in that way?
[THE APPELLANT]: I have looked at her, yes, and then, go on, get them off.
...
OFFICER MATT: But do you look at her in a sexual way when she's wearing those short shorts?
[THE APPELLANT]: Nah.
OFFICER MATT: The tight clothing?
[THE APPELLANT]: Nah. Nah.
OFFICER MATT: Mm, I mean, you've said earlier, that you, you fantasise her - - -
[THE APPELLANT]: Yeah, I fantasise her.
OFFICER MATT: About her, ah, on occasions.
[THE APPELLANT]: Cos, like I said, she's a splitting [sic] image of her mother, and I love her mother dearly.
OFFICER MATT: Yep.
[THE APPELLANT]: So.
OFFICER MATT: Okay. So, you never look at [the victim] in, in a sexual way?
[THE APPELLANT]: Nah (VROI 52- 54).
36 The appellant said he did not 'know actually' what caused him to have sexual fantasies about the victim (VROI 60). He added, however, that the victim looked like her mother (VROI 60).
37 At trial, the State called evidence from the victim, Caroline Bursle (a medical practitioner who carried out a physical examination of the victim), the victim's mother and Detective Senior Constable Jamie Boryczewski (the investigating police officer).
38 The appellant elected not to give or adduce evidence at trial.
39 The appellant's case at trial was that he had not sexually offended against the victim as alleged in the indictment or at all.
40 Defence counsel said the appellant admitted that he had sent a 'highly inappropriate' text message to the victim (ts 200). However, it was submitted that the text message was not evidence that the appellant had a sexual interest in the victim and that the victim had shown the text message to her mother to avoid punishment for deceiving her mother (ts 200).
41 Defence counsel asserted that the victim's motivation for fabricating the allegations against the appellant was to deflect attention from herself (ts 200).
42 Nevertheless, defence counsel accepted that the appellant had sexual fantasies about the victim (ts 200). The trial judge recounted, in his summing up, defence counsel's explanation of the appellant's sexual fantasies:
[Defence counsel] explained to you that the [appellant] has sexual fantasies about his stepdaughter because she is the spitting image of his wife, and it was submitted to you, and it's a matter for you, but [defence counsel] says, well, [the victim] looks very much like her mother. You've seen both of them in court, it's a matter for you, but that's what this man's fantasies are based upon. The only evidence, it was submitted by [defence counsel] - the only evidence that [the appellant] acted on his fantasies comes from [the victim] and she cannot remember what happened. It's submitted to you that there are enormous gaps in [the victim's] evidence and you cannot use this evidence to plug the gaps ... [Defence counsel] submitted to you that she has lied about what happened to avoid punishment (ts 200).
43 It was submitted that the only evidence that the appellant had acted on his sexual fantasies came from the victim, that she had admitted in cross-examination that she could not remember what had happened and, in addition, there were significant gaps in her evidence.
44 The appellant relies on three grounds of appeal.
45 Ground 1 alleges that the verdicts of guilty on counts 3, 4, 5, 6 and 7 are unsafe and unsatisfactory 'having regard to the whole of the evidence'. The particulars of ground 1 assert that the verdicts of guilty 'are not consistent with the [victim's] failure ... during cross-examination to recall whether or not the appellant had committed any sexual acts towards her' and that the verdicts of guilty are 'not consistent' with the verdicts of acquittal on counts 1 and 2.
46 Ground 2 alleges that a miscarriage of justice occurred as a result of the trial judge permitting the prosecutor to speak to the victim, during an adjournment at the trial while she was still giving evidence, 'in the presence of a police officer and not under the direct supervision of the court or of an independent third party'.
47 Ground 3 alleges that a miscarriage of justice occurred as a result of the State's failure to comply with its disclosure obligations in that the State did not disclose to the appellant prior to trial 'the fact that the [victim] had indicated a wish that the prosecution not proceed and the details of those statements or conversations'.
48 On 5 October 2014, Mazza JA granted leave to appeal on ground 3 and referred the application for leave to appeal on grounds 1 and 2 to the hearing of the appeal.
The State's applications for leave to adduce additional evidence in the appeal
49 On 6 November 2014, the State filed an application for leave to adduce additional evidence in the appeal. The additional evidence comprises an affidavit sworn by Kerry Murdoch on 5 November 2014. On 11 November 2014, Mazza JA referred the State's application to the hearing of the appeal.
50 On 26 November 2014, the State filed another application for leave to adduce additional evidence in the appeal. The additional evidence comprises an affidavit sworn by Cameron Henderson on 26 November 2014. On 26 November 2014, Mazza JA referred the State's application to the hearing of the appeal.
51 At the hearing of the appeal, counsel for the appellant informed the court that the State's applications for leave to adduce the additional evidence were not opposed (appeal ts 7). I would grant leave in respect of each of the applications.
52 The additional evidence is relevant to ground 3. I will set out the evidence in the course of dealing with that ground.
53 The appellant's complaints in ground 1 are, in substance, that:
(a) the verdicts of guilty on which the convictions on counts 3, 4, 5, 6 and 7 are based are unreasonable or cannot be supported having regard to the evidence; and
(b) the jury's verdicts are factually inconsistent and incompatible.
54 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].
55 In Riley v The State of Western Australia [2007] WASCA 22 [16] - [25], I examined relevant decisions of the High Court on inconsistent verdicts.
56 If an appellant alleges that a jury's verdicts are factually inconsistent and incompatible, it is necessary for the appellant to satisfy the appellate 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 the appellate 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.
57 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).
58 As I noted (Martin CJ & Mazza JA agreeing) in NCH v The State of Western Australia [2013] WASCA 29 [130]:
(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.
59 In the present case, counsel for the appellant relies, to a substantial extent, on the victim's evidence under cross-examination on 14 May 2014. Counsel also relies on aspects of the victim's evidence in the video-recorded interview with Ms Townsend on 10 July 2013. The State tendered the video-recorded interview at trial as part of the victim's evidence-in-chief. According to counsel for the appellant, the earlier evidence (that is, the evidence in her video-recorded interview) was given when the victim had 'a clear motivation for deflecting her mother's anger away from her'.
60 In addition to her evidence in the video-recorded interview, the victim gave oral evidence at trial. Her evidence at trial commenced on the afternoon of 13 May 2014 and concluded at about noon on 14 May 2014.
61 The prosecutor asked the victim, at the commencement of her evidence-in-chief at trial, whether she had recently watched her video-recorded interview (ts 45). The victim said she had watched the whole of the interview on the previous day (ts 45). The victim then gave the following evidence:
Can I ask you this? You've watched the video yesterday. Is there anything about that video that you want to change?---No.
Is there anything about that video that you want to clarify or correct?---Not that I can think of.
Okay. Was what you said in that interview; was it the truth?---Yes (ts 46).
62 During cross-examination, defence counsel put to the victim that none of the offending had occurred; that is, the appellant had never penetrated her anus or vagina with his penis, he had never licked her vagina, he had never made her suck his penis, he had never rubbed her breasts and he had never exposed his penis to her. The relevant series of questions and answers were as follows:
Your stepfather has never penetrated your anus with his penis?---I have no idea.
You have no idea. And your stepfather has never tried to penetrate your vagina with his penis?---I can't remember.
And your stepfather has never licked your vagina?---I can't remember.
And your stepfather has never made you suck his penis?---I can't remember that either.
And your stepfather has never rubbed your breasts?---I don't remember it.
And your stepfather has never exposed his penis to you?---That, I'm unsure of (ts 93).
63 Defence counsel suggested to the victim that on the morning of 10 July 2013 she did not want to go to the police station to participate in the video-recorded interview which happened on that day (ts 96). The relevant question and answer read:
Did ... your mother wake you up and say, 'We've got to leave,' and you asked her, 'Do we have to?'?---I do that mainly every morning because I would like to sleep in (ts 96).
64 It appears that defence counsel was suggesting, in essence, that the victim was reluctant to attend the police station because her allegations against the appellant were untrue. The following exchange occurred between defence counsel and the victim:
Did you go through the interview and tell Ms Townsend what you told her because you were afraid that you couldn't tell your mother the truth?---No.
... What you said in the interview about each and every allegation you had made, none of that was true, was it?---What do you mean?
None of the allegations you made against your stepfather in the interview are true?---They are. I have no - I can't remember.
Thank you. And you can't remember because you were making it up in the interview?---No (ts 97 - 98).
65 The prosecutor asked the victim in re-examination whether there was any reason why she was not able to remember things during cross-examination (ts 99). She replied, 'I shut out a lot of memories' (ts 99). The prosecutor then asked the victim to explain what memories she was shutting out in relation to her video-recorded interview (ts 99). She replied, 'Everything' and added 'I've shut out everything. I don't remember half the stuff' (ts 99). The victim also said in re-examination that when she watched her video-recorded interview on Monday, 12 May 2014, that was the first time she had seen the interview since the interview happened on 10 July 2013 (ts 45, 99).
66 The victim's mother gave evidence at trial to the following effect:
(a) When the victim was aged about 12, the appellant said to the mother that the victim 'was coming to the age ... where she would be ... sexually active' and 'we should put her on the pill' (ts 120). The mother added that at that stage the victim had not 'started puberty' and she did not 'start developing until she was nearly 14' (ts 120).
(b) On an evening in or about June 2013, the mother left the house to collect her older son from work. The victim and her younger siblings were alone with the appellant. After leaving the house, the mother returned because she had forgotten her purse. When she entered the house she saw the appellant standing in front of the victim's closed bedroom door. The mother asked the appellant what he was doing. He replied that the victim's light was on. The mother recalled that the victim's light was not in fact on. The mother then kissed the appellant goodbye. She attempted to grope his genital area and noticed that his penis was partly erect (ts 121 - 123).
67 The State tendered at trial the appellant's text message to the victim of 8 July 2013 and the appellant's video-recorded interview with police.
68 As I have mentioned, the text message read, 'I want yr sweet tastying [sic] pusy [sic]'.
69 The appellant's video-recorded interview with police included admissions to the following effect:
(a) the appellant had sent a couple of text messages to the victim saying he would like to 'lick her pussy' (VROI 32 - 33);
(b) the victim had sent him a text message saying that she wanted to 'suck [his] dick' (VROI 38) (a matter that was not put to the victim at trial);
(c) he would have had a sexual conversation with the victim by means of text messages including a conversation about having sexual intercourse with her (VROI 43);
(d) while he was masturbating he would probably have thought about having sex with the victim (VROI 44);
(e) those thoughts involved laying on top of the victim (VROI 44);
(f) he could have sent text messages to the victim about having anal sex with her (VROI 46);
(g) he only thought about having anal sex with the victim while he was masturbating (VROI 48); and
(h) he did not know why he had sexual fantasies about the victim but she looks like her mother (VROI 60).
70 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 173).
(b) The jury's verdicts did not have to be the same on each count (ts 173).
(c) When dealing with a count, the jury must consider only the evidence that is relevant to that count (ts 173).
(d) 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 173).
(e) 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 173 - 174).
(f) 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 178 - 179).
(g) The jury was entitled to accept part of a witness's evidence and reject other parts of that witness's evidence (ts 172).
(h) If the jury believed all of the appellant's statements in his video-recorded interview with police, it must find him not guilty. The jury could not find an issue against the appellant contrary to his statements in the interview if those statements gave rise to a reasonable doubt on the issue. If the jury did not believe what the appellant had told the police then it should put that 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 187).
71 His Honour said that the 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 (ts 178). His Honour elaborated:
To be so satisfied, you must be satisfied beyond reasonable doubt as to the truthfulness, reliability and accuracy of [the victim's] evidence that [the appellant] exposed his penis in her presence, rubbed her chest, engaged in cunnilingus with her, put his penis into her mouth, sexually penetrated her anus with his penis on the two occasions, and sexually penetrated her vagina with his penis, and you must reject [the appellant's] evidence in the police interview that he did not do so. When you consider the evidence, you should not guess or speculate or look for theories not supported by the evidence (ts 178).
72 The trial judge instructed the jury that it would not be open to the jury to draw an inference that the appellant had a sexual interest in the victim unless it was satisfied of that fact beyond reasonable doubt (ts 179).
73 His Honour gave the jury conventional directions in relation to relationship evidence (including evidence about other acts of inappropriate sexual conduct by the appellant towards the victim) relied on by the State (ts 179 - 181).
74 The trial judge gave the jury a warning in accordance with Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 and a corroboration warning (ts 183). The warnings concluded with the following instruction:
You are at liberty to act upon [the victim's] evidence to convict [the appellant] of the charges that allegedly occurred between 3 and 8 years ago if you are satisfied of the truth and accuracy of her evidence. But it would be dangerous, particularly in the circumstances of this case, to convict [the appellant] on the uncorroborated evidence of [the victim] unless, having scrutinised her evidence with great care, having considered the circumstances relevant to that evidence to which I have referred, and taking full account of the warning I have just given to you, you are satisfied beyond reasonable doubt as to its truth and accuracy (ts 183).
75 His Honour explained to the jury the notion of corroboration (ts 183). He then observed that there was evidence which was capable of corroborating the victim's evidence on counts 3 and 4:
With respect to the charge in count 3, the corroboration evidence is the text message [the appellant] sent [the victim], 'I want your sweet tasting pussy.' With respect to the charge in count 4, the corroboration evidence is [the appellant's] evidence in the police interview that [the victim] sent him the text message, 'I want to suck your dick.' It is for you to consider that evidence and to determine whether you accept the evidence itself, and, if you do, whether you regard it as corroborating the evidence of [the victim] with respect to count 3 or count 4.
If you do not find any corroborating evidence, you must regard the warning I have given you. You are at liberty to act upon it to convict [the appellant] if you are satisfied of the truth and accuracy of [the victim's] evidence, but it would be dangerous to convict him on [the victim's] uncorroborated evidence unless, having scrutinised her evidence with great care, having considered the circumstances relevant to that evidence to which I have referred, and taking full account of the warning I have just given you, you are satisfied beyond reasonable doubt of its truth and accuracy (183 - 184).
76 The trial judge said that there was evidence of recent complaint by the victim in relation to counts 6 and 7, as follows:
You heard evidence from [the victim's mother] and [the victim] that, on the Monday after the alleged events, the subject matter of counts 6 and 7, [the victim] was at [C's] house when [the victim's mother] said, 'You've got some explaining to do.' Apparently, the understanding was that [C's] mother would be there but she had gone to work. [The victim] said, 'Before you start yelling at me, have a look at this and tell me who you should be yelling at,' and she handed her mother her phone to read the text she had received from [the appellant], 'I want your sweet tasting pussy.'
She had received the text about 20 minutes after her mother had dropped her off earlier that day. Under cross-examination by [defence counsel], [the victim] said she showed her mother the text message because her mother asked her why she didn't want to come home. You may use this evidence as evidence of recent complaint by [the victim], with respect to counts 6 and 7, if you are satisfied that the only inference reasonably available from the evidence is that [the victim] was in fact complaining about [the appellant's] sexual conduct towards her on 7 July 2013, when she showed her mother the text message because her mother asked her why she didn't want to come home (ts 184).
77 At the conclusion of his Honour's summing up, neither the prosecutor nor defence counsel requested a redirection or an additional direction on any point (ts 201 - 202).
78 On 16 May 2014, at 12.10 pm, the jury retired to consider its verdicts. At 7.18 pm on that date, the jury returned with unanimous verdicts of not guilty on counts 1 and 2 and unanimous verdicts of guilty on counts 3, 4, 5, 6 and 7.
79 In my opinion, the not guilty verdicts on counts 1 and 2 can properly be reconciled with the guilty verdicts on counts 3, 4, 5, 6 and 7.
80 The not guilty verdicts on counts 1 and 2, and the guilty verdicts on counts 3, 4, 5, 6 and 7, are reasonably explicable on the following basis:
(a) The victim alleged that the offences the subject of counts 1 and 2 occurred when she was in year 2 or 3 at school (VROI 4); that is, about seven or eight years prior to the trial. By contrast, the victim said the cunnilingus started when she was aged 10 or 11 (VROI 25 - 26) and the vaginal sex combined with the anal sex started when she was about 12 (VROI 36 - 37).
(b) The Longman warning had greater significance in relation to counts 1 and 2 than in relation to the other counts. Counts 1 and 2 allegedly occurred well before the other counts.
(c) There was no evidence which was capable of corroborating the victim's evidence on counts 1 and 2 and there was no evidence of recent complaint in relation to those counts. By contrast, there was evidence which was capable of corroborating the victim's evidence on counts 3 and 4 and there was evidence of recent complaint by the victim in relation to counts 6 and 7. The nature of the offending on count 5 was similar to the nature of the offending on count 7 in that both offences involved the appellant penetrating the victim's anus with his penis.
(d) The victim's account of the offending the subject of counts 3, 4, 5, 6 and 7, and the background circumstances in relation to that offending, was more precise, detailed and descriptive in her video-recorded interview than her account in relation to counts 1 and 2.
(e) The victim said in re-examination that she could not remember 'much' about the incident the subject of count 1 and she was 'unsure if it's reality anymore' (ts 111).
(f) The victim agreed in cross-examination that her belief that the appellant came into her bedroom in the context of count 2 could have been a 'dream' (ts 79).
(g) The victim said in re-examination that she had 'no idea' whether she was awake when the appellant allegedly rubbed her breasts, while she was in bed, as alleged in count 2 (ts 113). None of counts 3, 4, 5, 6 or 7 occurred while the victim was asleep or when she had only recently woken.
81 It is true that the credibility and reliability of the victim'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 victim'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 and accuracy of the victim'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 (ts 178).
82 I am satisfied, on my examination of the trial record, that the jury's decision to acquit on counts 1 and 2 did not relevantly undermine the victim's credibility on counts 3, 4, 5, 6 or 7 (being the counts on which the jury convicted), and does not indicate that the verdicts of guilty are inconsistent, in the relevant sense, with the other verdicts.
83 The different verdicts merely show 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 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.
84 The length of time the jury deliberated, and the differences in the unanimous verdicts, indicate that the jury properly discharged its duties and followed his Honour's directions.
85 The jury's verdicts are not factually inconsistent or incompatible. The differences in the verdicts are not illogical or an affront to common sense.
86 In my opinion, on the basis of my review of the trial record and my weighing of the evidence (in particular, the evidence of the victim and the statements made by the appellant in his video-recorded interview with police), 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 3, 4, 5, 6 and 7.
87 A jury, acting reasonably, was not precluded by the state of the evidence at trial (in particular, the evidence of the victim) from convicting the appellant. A jury, acting reasonably, was entitled to reject the statements of the appellant in his video-recorded interview with police, at least on the issue of whether those statements exculpated, or tended to exculpate, him or created a doubt, or tended to create a doubt, about his guilt on counts 3, 4, 5, 6 and 7. There was significant and persuasive circumstantial evidence, in addition to the victim's evidence, in relation to counts 3, 4, 5, 6 and 7, on which the jury was entitled to rely in deciding to convict on those counts.
88 The jury had the very significant advantage of seeing and hearing the witnesses (notably, the victim) give their evidence. The jury was well placed to assess the victim's allegations in her video-recorded interview with Ms Townsend, and her confirmation on oath at trial that those allegations were true, in the context of her answers in cross-examination and in re-examination. The jury was entitled to accept the victim's explanations in re-examination as to why she was unable to remember relevant events during cross-examination. As I have mentioned, the victim said, 'I shut out a lot of memories' (ts 99); she had shut out 'everything' in relation to her video-recorded interview (ts 99); and she did not remember 'half the stuff' (ts 99). All of that evidence was consistent with her statement to Ms Townsend in the video-recorded interview that she was unable to recall numerous other, uncharged, occasions of sexual misconduct by the appellant. The victim said, 'I shut it all out, like in my mind and put it in an area where I can't access it cos it's not something I want to remember' (VROI 36). Also, the victim said in re-examination that when she watched the video-recorded interview on Monday, 12 May 2014, that was the first time she had seen the interview since the interview happened on 10 July 2013 (ts 45, 99).
89 The trial record does not require the conclusion that the jury must necessarily have entertained a doubt about the appellant's guilt on counts 3, 4, 5, 6 and 7. The verdicts of guilty are not unreasonable. They were supported by evidence that the jury was entitled to accept. After reviewing the trial record and weighing the evidence, 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 3, 4, 5, 6 or 7 or as to the correctness of his conviction on those counts.
91 The appellant complains in ground 2 that his trial miscarried as a result of the trial judge permitting the prosecutor to speak to the victim, during an adjournment at the trial while the victim was still giving evidence, in the presence of a police officer and not under the direct supervision of the court or of an independent third party.
92 The victim's evidence-in-chief was adduced on 13 May 2014, being the first day of the trial.
93 Defence counsel commenced his cross-examination at 3.27 pm on 13 May 2014 and continued until 4.06 pm on that day. The cross-examination resumed at 10.15 am on the next day, 14 May 2014, and was completed at about noon.
94 During cross-examination on the second day of the trial, the prosecutor objected on a number of occasions to defence counsel's questions. Also, his Honour intervened a number of times during cross-examination because of his concerns about the appropriateness of defence counsel's questions (ts 54 - 55, 58, 74 - 75, 77, 82 - 84, 90 - 91, 93, 96).
95 Towards the end of his cross-examination, defence counsel put to the victim that none of the offending had occurred. The victim answered to the effect that she had 'no idea' or she could not remember. See [62] above.
96 As I have mentioned in dealing with ground 1, the prosecutor sought to explore with the victim in re-examination why she was not able to remember things during cross-examination. The relevant questions and answers read:
Yes. Perhaps if I can ask you this. You were asked questions by Mr Arndt about watching the DVD of your interview with Kaye Townsend on Monday. You said you did watch it on Monday, is that right?---Yes. I watched it on Monday.
Had you seen it before Monday?---No.
So was Monday the 4th [sic: 12 May 2014] the first time you had seen that interview since you had that interview with Kaye back in July of 2013?---Yes.
Now, [I'll] just ask you, you were saying on a few occasions that there are things today you don't remember. Is there any reason that you're able to say why you're not able to remember things today?
ARNDT, MR: Your Honour, I don't know the witness could - - -
THE WITNESS: Because I tend to shut everything out.
...
DIXON, MR: You said there that you tend to just shut things out, is that correct?---I shut out a lot of memories. I can't even remember what I did on Monday, let alone what I did last week.
Yes. Okay. What memories are you shutting out about what you said in the visually recorded interview?---Everything.
Sorry?---I've shut out everything. I don't remember half the stuff (ts 99).
97 Next, the prosecutor asked the victim why she had 'shut out everything' and did not remember 'half the stuff' (ts 100). Defence counsel objected to the question. His Honour dealt with the objection in the absence of the jury and upheld the objection (ts 103).
98 The prosecutor then sought an adjournment to 'take some instructions' (ts 104). Defence counsel did not object and his Honour allowed the adjournment (ts 104).
99 When the court resumed after an adjournment of about one hour, the prosecutor informed the trial judge, in the absence of the jury, that he had taken 'some instructions' (ts 104). He sought permission from his Honour to speak with the victim, in the company of the investigating police officer, before recommencing his re-examination (ts 104 - 105). The prosecutor said '[t]here seems to have been quite a remarkable change in position overnight' in relation to the victim's version of events (ts 105). The question the prosecutor wanted to ask the victim was as follows:
The [question] we want to ask her is essentially what happened from her giving evidence yesterday up until her giving evidence this morning. Whatever we receive in response ... we will disclose to the defence (ts 105).
100 Defence counsel submitted to his Honour that a 'mutual third party' should be present during any interaction between the prosecutor and the victim 'to make sure that there can be no suggestion of any interference by [the prosecutor] or the investigating officer [with] the witness' (ts 105). The prosecutor contended that the presence of a 'mutual third party' was unnecessary because he was an officer of the court (ts 106). Defence counsel then suggested that any enquiries the prosecutor wished to make of the victim should be made, in the absence of the jury, in open court (ts 107).
101 The trial judge decided that the prosecutor should be permitted to speak with the victim, in the company of the investigating police officer, before recommencing his re-examination, on the following conditions:
(a) the prosecutor must not ask the victim any questions except 'what people [she had] seen since she gave her evidence yesterday until this morning' and whether she had discussed with any of those people how she should give her evidence; and
(b) the police officer must not ask any questions of the victim and he should take a note of the conversation (ts 108).
102 When the court resumed after another adjournment, the prosecutor informed his Honour, in the absence of the jury, that he had spoken with the victim, in the presence of the investigating police officer, and that he had disclosed notes of the conversation to defence counsel. The prosecutor said the victim had 'identified the people [she had been] in contact with since giving evidence yesterday, to [recommencing] evidence this morning', and she had 'indicated that nobody [had] discussed her evidence with her' (ts 109).
103 The prosecutor then completed his re-examination of the victim. Most of the remaining re-examination was interrupted by objections from defence counsel and discussion between the trial judge, the prosecutor and defence counsel in relation to the objections. The only questions and answers were as follows:
DIXON, MR: [The victim], you can see and hear me?---Yes.
And we're just going to go back to where we were before we had the break this morning, and I was asking you some questions about the questions and answers that [defence counsel] had with you, the questions he asked you and the answers you gave?---Yes.
...
DIXON, MR: The questions I want to ask, [defence counsel] was asking you about what happened at the paddock, and the answer you said to [defence counsel] was you were unsure as to whether your stepfather exposed his penis to you. What can you - what do you remember about that incident?---Not much.
...
DIXON, MR: When you said to [defence counsel] that you're unsure if your stepfather had exposed his penis, what do [you] mean by that answer that you're unsure?---I'm unsure if it's reality anymore.
...
DIXON, MR: ... Firstly, can you tell us at what stage - if you're able to tell us this - were you awake?---I have no idea.
And some questions were asked of you either early this morning or yesterday about your younger brother and sister coming into your bed when they were having nightmares?---Yes.
Are you able to say whether or not your sister or your brother came into your bed on that occasion?---No idea (ts 109 - 113).
104 At the hearing of the appeal, counsel for the appellant conceded (rightly, in my opinion) that the trial judge was empowered to permit the prosecutor to speak with the victim, during the adjournment at the trial, while she was still giving evidence (appeal ts 18).
105 I accept that, ordinarily, when a trial judge permits a prosecutor to speak with a State witness, during an adjournment at the trial while the witness is still giving evidence, the discussion between the prosecutor and the victim should occur in the presence of an independent person who has been approved by the trial judge.
106 However, I am satisfied that, in the circumstances of the present case, no miscarriage of justice occurred as alleged in ground 2. My reasons are as follows.
107 First, the trial judge imposed strict conditions on the discussion which he allowed the prosecutor to have with the victim. The issue permitted to be raised with the victim was very narrow, namely who she had seen since she gave her evidence the previous day and whether she had discussed with any of those people how she should give her evidence. Further, the investigating police officer was not permitted to ask the victim any questions.
108 Secondly, when the court resumed after the prosecutor had spoken with the victim, the prosecutor's re-examination in effect petered out to nothing.
109 The matters of which counsel for the appellant complains did not produce any adverse consequence for the appellant. No miscarriage of justice occurred.
111 The appellant complains in ground 3 that his trial miscarried as a result of the State's failure to disclose to the appellant prior to trial:
(a) the fact that the victim had indicated a wish that the prosecution not proceed; and
(b) the details of relevant statements by or conversations with the victim.
112 In a document dated 22 July 2014, prepared by the victim as a victim impact statement and made available by the prosecutor to the trial judge at the sentencing hearing on 31 July 2014, the victim said:
I want them all to leave me alone and this is on the people who were rude and didn't let me withdraw what was said I didn't want this to be pushed through I was told it wasn't my case anymore and I have no say but if it wasn't for me you would have nothing. I was made feel like crap. I want my dad to come home he is my dad. I didn't want to go through with all of this I didn't want to go to court I didn't want any of this I tried to get you to let it go I've been spoken to rudely by many people that had anything to do with this case and I'm so sick of everything I want people to stop putting in my head that it's for the best because it's not people try to tell me how to feel All I want is for my dad to come home so please let him come home. You have destroyed my life because none of youse understand. You say that I don't know what I'm doing and I'm just a stupid little girl.
113 At the sentencing hearing, the prosecutor said:
The State's handed [the victim impact statement] up ... I don't accept her assertions that she was treated rudely or like a silly girl. I've handed it up but the State does not accept those comments in it ... The background of the prosecution is she's never refuted from [sic] the allegations but it [sic] indicated she did not want the matter to proceed. A decision was made by a consultant that it were [sic] to proceed (ts 212).
114 As I have mentioned, the affidavits the subject of the State's applications for leave to adduce additional evidence in the appeal comprise an affidavit sworn by Ms Murdoch on 5 November 2014 and an affidavit sworn by Mr Henderson on 26 November 2014.
(a) He is a State Prosecutor at the Office of the Director of Public Prosecutions (WA).
(b) He was the file manager for the prosecution of the appellant. Ms Murdoch, a law clerk at the Office of the Director of Public Prosecutions (WA), was also allocated to this file.
(c) On 5 May 2014, Ms Murdoch informed him that, in accordance with his request, she had booked a video link facility from Perth to the Western Australian country town where the victim and her mother resided. The purpose of the booking was to conduct a preliminary proofing session with the victim and to ascertain the attitude of the victim and the victim's mother to the prosecution proceeding to trial.
(d) On 6 May 2014, he spoke to the victim and the victim's mother via video link. He had previously asked Ms Murdoch to attend the sessions to observe and write notes about what was said.
(e) After speaking with the victim and the victim's mother, he sent an email to Carmel Barbagallo, a Consultant State Prosecutor, on 6 May 2014 seeking instructions as to whether the matter should proceed to trial.
(g) He did not disclose to the appellant's lawyer that the victim had told him that 'she did not want to go ahead with the trial on the basis that she said the allegations were true'.
116 The email sent by Mr Henderson to Ms Barbagallo reads, relevantly:
I spoke to the 15 year old [victim] today by video link. She told me that:
I spoke to the [victim's] mother separately by video link. She said:
I have spoken to the victim support services, who have advised me that they have not spoken to the [victim] because the [victim's] mother is hostile to them over the matter continuing.
I have advised the [victim] and her mother that it is for this office to decide, taking into account a number of factors including the public interest, whether or not the matter will proceed.
This is a very serious matter and the [victim] has told me that the allegations are true and she appeared to be credible. Although the [victim] thinks she is old enough to deal with the matter she is clearly not, and she may regret it in the future if the matter does not proceed. Although the [victim] became a little emotional when talking about her younger siblings, she did not seem so emotional that she would clearly be unable to give evidence at trial. I consider that it is absolutely in the public interest for this matter to proceed to trial given the seriousness of the allegations.
Could I please have your instructions as to whether the matter should proceed.
117 Ms Murdoch confirmed in her affidavit that on 6 May 2014 she attended the proofing sessions with Mr Henderson and that the victim and the victim's mother were proofed by Mr Henderson in her presence. Ms Murdoch said that after the proofing sessions she prepared a file note dated 6 May 2014. She 'specifically [recalled] that [the victim] said that her allegations [were] true in the proofing session'. She did not record that statement in her file note because she was focusing on the reasons why the victim did not want to proceed with the prosecution. The file note reads, relevantly:
[The victim] lives with her mother, little brother and sister and sometimes her older brother when he comes home. She does not see the accused ... and has not seen him since she moved out of his house after her first semester at school. They ([the victim], mother and siblings) moved out because the accused was to stay there and his bail conditions. Her mother still sees the accused only when she drops of [sic] her younger brother and sister to see their father.
[The victim] is not 100% sure if her mother and the accused are in a relationship, she doesn't think they see each other apart from when she drops off her younger siblings for visits but belaives [sic] they are still married.
[The victim] wants to drop the case as she is over it and at a pint [sic] where she just wants it to go away. Her mother is not pressuring her to drop the charges she wants to. She has spoken to Detective Jamie and told her mum she does not want to proceed. Detective Jamie told her she needed to think long and hard about the decision and that it was up to the DPP now.
[The victim] believes it is tearing the family apart, she does not want her little brother and sister to lose their father, she grew up without hers, not seen him since she was 7 and [the accused] is like her real dad everything is just ripping the family apart. She is putting her younger siblings first she thinks she is old enough now to say no and old enough to protect herself now. It bothers her that her little brother and sister will not have a dad.
[The victim] understood that if the DPP do decide to discontinue that in the future she cannot pick it up again. She then said she was 100% sure that she did not want to go through with it anymore.
[The victim] also understands that because of the severity of the charges the decision would have to be made by a senior consultant and it may be the case that the DPP will still proceed into trial next week.
[The victim] was clearly emotional and upset during the conference.
118 In 'D' v The State of Western Australia [2007] WASCA 272; (2007) 179 A Crim R 377, I referred to the prosecution's common law duty of disclosure [4] - [8]:
At common law, the prosecution must disclose to an accused all relevant evidence in its possession or available to it. Evidence should be disclosed if it is relevant to:
(a) a fact in issue;
(b) a fact relevant to a fact in issue; or
(c) the credit or reliability of a prosecution witness.
The prosecution's duty of disclosure is an incident of an accused's right to a fair trial. If the prosecution breaches its duty, and the accused is convicted and appeals, it will be necessary to consider whether the breach has occasioned a miscarriage of justice. If a miscarriage of justice has occurred, the conviction should be set aside unless the State demonstrates that there has been no substantial miscarriage of justice and the 'proviso' in s 30(4) of the Criminal Appeals Act 2004 (WA) should therefore be applied. See R v K (1991) 161 LSJS 135, 140 (King CJ); Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708 [25] - [27] (Gleeson CJ, Gummow & Callinan JJ); Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154 [194] - [203] (Steytler J, as his Honour then was (with whom Roberts-Smith J relevantly agreed)); Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 [17] (Gummow, Hayne, Callinan & Heydon JJ), [63] - [67], [81] - [84] (Kirby J); Koushappis v Western Australia [2007] WASCA 26; (2007) 168 A Crim R 51 [153], [156] (Roberts-Smith JA (with whom McLure JA and I agreed)).
In Grey, the prosecution failed to disclose that a significant prosecution witness had been given a 'letter of comfort' by the police officer investigating the charges against the accused, despite 'widespread and deep involvement' in crimes of the type with which the accused was charged. Gleeson CJ, Gummow and Callinan JJ held, at [23], that there was no reason why the defence in a criminal trial should be obliged to 'fossick' for information of the kind in question and to which it was entitled in the proper conduct of the prosecution.
The discharge of the prosecution's duty to disclose evidence in its possession or available to it depends upon the relevance of that evidence and, therefore, what must be disclosed in a particular case will depend upon the relationship between the evidence in question, on the one hand, and the facts in issue (including facts relevant to the facts in issue) or the credit or reliability of the prosecution witnesses, on the other. See R v TSR [2002] VSCA 87; (2002) 5 VR 627 [73] (Chernov JA (with whom Phillips CJ and Phillips JA agreed)).
In R v CPK (Unreported, NSWCCA, 21 June 1995), Gleeson CJ (with whom Clarke and Hulme JJA agreed) held that the prosecution was obliged to disclose to the accused medical reports in its possession which contained information appearing to contradict some of the complainant's evidence and other information appearing to cast doubt on her reliability.
In R v Lewis-Hamilton [1998] 1 VR 630, the prosecution did not disclose to the accused until after he had been convicted of two counts of sexual penetration, a victim impact statement which had been prepared, and was in the possession of the prosecution, before the trial. The statement contained relevant evidence which defence counsel could have used in cross-examination of the complainant. Charles JA (with whom Winneke P and Hayne JA agreed) held, at 635, that the statement should have been disclosed before trial and that cross-examination of the complainant, based upon information contained in the statement, might reasonably have been expected to elicit answers materially affecting the complainant's credibility. In the circumstances, the failure to disclose the document occasioned a miscarriage of justice. The convictions were quashed and a new trial was ordered.
See also Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154 [194] - [203] (Steytler J, Robert-Smith J relevantly agreeing); White v The Queen [2006] WASCA 62 [185] - [194] (McLure JA).
119 In Easterday [196], Steytler J approved the formulation of the prosecution's common law duty of disclosure in R v Brown (Winston) [1994] 1 WLR 1599. In Brown (1606), Steyn LJ (delivering the judgment of the Court of Appeal) adopted the following test suggested by Jowitt J in R v Melvin (Graham) (Unreported, 20 December 1993):
I would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; (3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2). (emphasis added)
See also Button v The Queen [2002] WASCA 35; (2002) 25 WAR 382 [14] (Malcolm CJ, Wallwork & Owen JJ agreeing); White [187].
120 In White, McLure JA set out the proper approach to and the issues for determination when it is alleged on appeal that the prosecution breached its duty of disclosure [185]:
On my understanding of the law, the approach to and issues for determination on the facts in this case are: (1) was the prosecution obliged to disclose the relevant material to the defence; (2) if yes, does the failure to do so give rise to a miscarriage of justice; (3) if yes, the Court must allow the appeal unless it concludes affirmatively that no substantial miscarriage of justice has occurred: Criminal Appeals Act 2004 (WA) s 30; Mallard v The Queen [2005] HCA 68; (2005) 80 ALJR 160 at [16] - [17] per Gummow, Hayne, Callinan and Heydon JJ; at [83] per Kirby J; Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708; Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659 at 678 per Mason J; R v Easterday [2003] WASCA 69; (2003) 143 A Crim R 154 at [194] - [203] per Steytler J.
121 The prosecution's common law duty of disclosure can extend to evidence which relates solely to credit. See Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708 [15] - [18], [21] - [22] (Gleeson CJ, Gummow & Callinan JJ); White [188].
122 In Western Australia, the prosecution has a statutory duty of disclosure. This duty is imposed, in the case of prosecutions in superior courts, by s 95 of the Criminal Procedure Act 2004 (WA).
123 Section 95 provides, relevantly:
(1) In this section, unless the contrary intention appears -
confessional material has the meaning given by section 42;
evidentiary material has the meaning given by section 42;
lodge means to lodge with the superior court concerned;
serve, an accused, means to serve the accused in accordance with Schedule 2 clause 2, 3 or 4.
(2) A requirement under this section to serve evidentiary material includes a requirement to serve the things that are required to be served under section 42(2).
(3) The operation of this section is subject to section 137A and any order made under section 138, whether in relation to a requirement of this section or a requirement of section 35 or 42.
(4) This section does not affect the operation of the Criminal Investigation Act 2006 section 117.
...
(6) Within the prescribed period after an accused is committed for trial on a charge, the relevant authorised officer must lodge the following and, if any of the following has not already been served on or received by the accused, serve the accused with it -
(a) a statement of the material facts of the charge;
(b) any confessional material of the accused that is relevant to the charge;
(c) any evidentiary material that is relevant to the charge;
(d) a copy of the accused's criminal record;
(e) a copy of the certificate given to the officer under section 45;
(f) any other document that is prescribed.
...
(9) If, after complying with subsection (6) ... and before a charge is finally dealt with, a prosecutor receives or obtains -
(a) confessional material or additional confessional material that is relevant to the charge; or
(b) additional evidentiary material that is relevant to the charge; or
(c) any statement or recording referred to in section 42(2)(b); or
(d) the name or address of a person described in section 42(2)(c),
the prosecutor must lodge it or a copy of it, and serve it or a copy of it on the accused, as soon as practicable.
124 Part 4 of the Criminal Procedure Act is entitled 'Prosecutions in superior courts', and comprises s 80 - s 124. Section 80(1) provides that in pt 4, unless the contrary intention appears, 'relevant authorised officer', in relation to an indictable charge, means the authorised officer who is responsible for the prosecution of the charge in a superior court. By s 80(2), authorised officers for the purposes of pt 4 include, relevantly, the Director of Public Prosecutions (WA) (the Director) and a member of the Director's staff appointed in writing by the Director as an authorised officer.
125 By s 3(1) of the Criminal Procedure Act, in the Act, unless the contrary intention appears, 'prosecutor' means, in a prosecution in a superior court, the authorised officer (as defined in s 80) who commenced the prosecution or a person who in court represents that person.
126 Section 42 of the Criminal Procedure Act provides, relevantly:
(1) In this section, unless the contrary intention appears -
confessional material of an accused charged with an offence, means -
(a) a copy of any material referred to in the definition of confessional material in section 35; and
(b) a copy of any electronic recording, other than a recording that is part of the material referred to in paragraph (a), of a conversation between the accused and a person in authority that is relevant to the charge and that is in the possession of the organisation that investigated the offence; and
(c) if the accused said anything that is relevant to the charge to a person employed in the organisation that investigated the offence and that was not so recorded, a written version of the substance of what was said;
evidentiary material relevant to a charge, means -
(i) every statement that has been made in accordance with Schedule 3 clause 4 by; and
(ii) every recording that has been made in accordance with Schedule 3 clause 6 of evidence given by; and
(iii) every recording that has been made under the Evidence Act 1906 of; and
(iv) every other recorded statement, whether oral or written, by,
any person who may be able to give evidence that is relevant to the charge, irrespective of whether or not it assists the prosecutor's case or the accused's defence; and
(b) if there is no statement or recording referred to in paragraph (a) of a person who the prosecutor intends to call as a witness, a written summary of the evidence to be given by the person; and
(c) a copy of any document or object to which a statement or recording referred to in paragraph (a) refers; and
(d) a copy of every other document or object that the prosecutor intends to tender in evidence at trial; and
(e) a copy of every other document or object that may assist the accused's defence,
that is in the possession of the organisation or person who investigated the offence;
serve an accused, means to serve the accused in accordance with Schedule 2 clause 2, 3 or 4.
(2) A requirement under this section to serve evidentiary material includes a requirement -
(a) if it is not practicable to copy a document or object referred to in paragraph (c), (d) or (e) of the definition of evidentiary material in subsection (1) - to serve a notice that describes it and states where and when it can be inspected;
(b) if a copy of a statement or recording of a person is served - to also serve a copy of any statement or recording of the person that contains material that is inconsistent with that statement or recording;
(c) to serve notice of the name and, if known, the address of any person from whom no statement or recording of the kind referred to in paragraph (a) of the definition of evidentiary material has been obtained but who the prosecutor thinks may be able to give evidence that may assist the accused's defence and a description of the evidence concerned.
127 Section 95(9)(b) imposes, in essence, a duty on a prosecutor to disclose to the accused 'additional evidentiary material that is relevant to the charge' which the prosecutor receives or obtains.
128 In s 42(1), the phrase 'evidentiary material relevant to a charge' is defined to mean, relevantly:
(a) 'a copy of ... every other recorded statement, whether oral or written, by ... any person who may be able to give evidence that is relevant to the charge, irrespective of whether or not it assists the prosecutor's case or the accused's defence': par (a)(iv); and
(b) 'a copy of every other document or object that may assist the accused's defence': par (e),
'that is in the possession of the organisation or person who investigated the offence'.
129 The words 'relevant to a charge', within the compilation 'evidentiary material relevant to a charge', are part of the phrase which is defined in s 42(1).
130 The phrase 'evidentiary material relevant to a charge', as defined in s 42(1), corresponds with the phrase 'evidentiary material that is relevant to the charge' in s 95(9)(b). Section 95(1) states that in s 95, unless the contrary intention appears, 'evidentiary material' has the meaning given by s 42.
131 In my opinion, when s 95 is read with s 42, it is plain that the meaning ascribed to the phrase 'evidentiary material relevant to a charge', in s 42(1), applies to the phrase 'evidentiary material that is relevant to the charge', in s 95(9)(b).
132 Paragraph (a)(iv) of the definition of 'evidentiary material relevant to a charge', in s 42(1), refers to 'every other recorded statement, whether oral or written, by ... any person who may be able to give evidence that is relevant to the charge ... that is in the possession of the organisation or person who investigated the offence'. The words 'relevant to the charge' in the last three lines of par (a) relate to the 'person who may be able to give evidence', and not to the 'recorded statement' in par (a)(iv).
133 The test of relevance in par (a)(iv), in the context of 'any person who may be able to give evidence that is relevant to the charge', is objective. It is not qualified or conditioned by reference to the opinion or evaluation of the relevant authorised officer or the prosecutor or the organisation or person who investigated the offence. In particular, the notion of 'a sensible appraisal by the prosecution', which is part of the prosecution's common law duty of disclosure adopted in Brown (1606) and approved in Easterday [196], is not incorporated in s 95 read with s 42.
134 So, 'every other recorded statement' that is in the possession of the organisation or person who investigated the offence will be 'evidentiary material relevant to a charge', within par (a)(iv) of the definition in s 42(1), if the recorded statement was by a person who, objectively, may be able to give evidence that is 'relevant to the charge'. Further, if the recorded statement was by a person who, objectively, may be able to give evidence that is relevant to the charge then, if a prosecutor receives or obtains the recorded statement, after complying with, relevantly, s 95(6) and before the charge is finally dealt with, the prosecutor must lodge it or a copy of it, and serve it or a copy of it on the accused, as soon as practicable in accordance with s 95(9).
135 Paragraph (e) of the definition of 'evidentiary material relevant to a charge', in s 42(1), refers to 'every other document or object that may assist the accused's defence ... that is in the possession of the organisation or person who investigated the offence'.
136 The test in par (e), in the context of 'every other document or object that may assist the accused's defence', is objective. It is not qualified or conditioned by reference to the opinion or evaluation of the relevant authorised officer or the prosecutor or the organisation or person who investigated the offence. As I have mentioned, the notion of 'a sensible appraisal by the prosecution' is not incorporated in s 95 read with s 42.
137 So, 'every other document or object' that is in the possession of the organisation or person who investigated the offence will be 'evidentiary material relevant to a charge', within par (e) of the definition in s 42(1), if the document or object, objectively, 'may assist the accused's defence'. Further, if the document or object is of that character then, if a prosecutor receives or obtains the document or object, after complying with, relevantly, s 95(6) and before the charge is finally dealt with, the prosecutor must lodge it or a copy of it, and serve it or a copy of it on the accused, as soon as practicable in accordance with s 95(9).
138 The phrase 'that is in the possession of the organisation or person who investigated the offence', at the conclusion of the definition of 'evidentiary material relevant to a charge', in s 42(1), is not defined in the Criminal Procedure Act. In my opinion, when s 95 is read with s 42, and in the context of the evident purpose or object of the prosecutor's disclosure obligation under s 95, it is apparent that the reference to 'the organisation or person who investigated the offence' has a broad connotation. Those words are not confined to the police service. They include the Director and his officers and employees where, for example, the Director or any officer or employee has inquired into or examined the offence in the course of preparing the State's case against the accused for trial.
139 In my opinion, the oral statements made by the victim to Mr Henderson and Ms Murdoch on 6 May 2014, which Mr Henderson recorded in his email of 6 May 2014 to Ms Barbagallo, and Ms Murdoch recorded in her file note dated 6 May 2014, were 'additional evidentiary material that is relevant to the charge', that the prosecutor received or obtained after complying with, relevantly, s 95(6) and before the charge was finally dealt with, for the purposes of s 95(9)(b).
140 As to par (a)(iv) of the definition of 'evidentiary material relevant to a charge' in s 42(1):
(a) the victim's oral statements were 'recorded' within par (a)(iv) in that Mr Henderson and Ms Murdoch made a handwritten record of the statements within the definition of 'record' in s 3(1) of the Criminal Procedure Act;
(b) the victim was a person 'who may be able to give evidence that is relevant to' each charge against the appellant, within par (a) of the definition of 'evidentiary material relevant to a charge';
(c) it was immaterial whether or not the victim's recorded statements assisted the State's case or the appellant's defence; and
(d) at all material times on and after 6 May 2014, the victim's recorded statements were in the possession of an officer or employee of the Director as a result of Mr Henderson and Ms Murdoch having inquired into or examined the alleged offences, by proofing the victim, in the course of preparing the State's case against the appellant for trial.
141 In the circumstances, the victim's recorded statements were 'additional evidentiary material that is relevant to the charge', within s 95(9)(b), and the prosecutor was bound to lodge the statements or a copy of them, and serve them or a copy of them on the appellant, as soon as practicable in accordance with s 95(9).
142 It is unnecessary to consider the possible application, in the present case, of par (e) of the definition of 'evidentiary material relevant to a charge' in s 42(1) or the prosecution's common law duty of disclosure. Also, it is unnecessary to consider whether, and if so to what extent, the provisions of the Criminal Procedure Act which have imposed the prosecution's statutory duty of disclosure, have abrogated or altered the prosecution's common law duty of disclosure. See Davis v The State of Western Australia [2007] WASCA 267 [36] (Steytler P, Buss JA agreeing); Carney v The State of Western Australia [2010] WASCA 90; (2010) 201 A Crim R 537 [4] (Owen JA).
143 I am satisfied, for the reasons I have given, that the prosecutor's failure to disclose the victim's oral statements constituted a material irregularity in the statutory pre-trial procedures.
144 However, I am satisfied, on my examination of the trial record and after weighing the evidence, that the State proved beyond reasonable doubt that the appellant was guilty of counts 3, 4, 5, 6 and 7 and that no miscarriage or substantial miscarriage of justice has occurred as a result of the prosecutor's failure to disclose to the appellant prior to trial:
(a) the fact that the victim had indicated a wish that the prosecution not proceed; and
(b) the details of relevant statements by or conversations with the victim.
146 First, both Mr Henderson and Ms Murdoch deposed that the victim had said on 6 May 2014 that the allegations against the appellant were true. Her reasons for wanting the prosecution to be discontinued were unrelated to the truth of the statements in her video-recorded interview which incriminated the appellant.
(a) reviewing the trial record and weighing the evidence;
(b) taking into account the oral statements made by the victim to Mr Henderson and Ms Murdoch on 6 May 2014;
(c) paying full regard to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence; and
(d) 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 3, 4, 5, 6 or 7 or as to the correctness of his conviction on those counts. See my reasons in relation to ground 1 of the appeal.
148 Thirdly, it would have been dangerous for defence counsel to have cross-examined the victim about the oral statements she made to Mr Henderson and Ms Murdoch; in particular, about the victim's subjective reasons (including her feelings or emotions) for wanting the proceedings against the appellant to be discontinued. There was a real risk that any such cross-examination would have rebounded very seriously on the appellant. The cross-examination may well have revealed that, although the offending described by the victim in her video-recorded interview with Ms Townsend (and other offending) had in fact occurred, she felt (unjustified) guilt and shame about what had happened, and (unjustifiably) responsible, at least in part, for the conflict and pain that the proceedings had caused her mother and for the loss her siblings would suffer if the appellant were to be convicted and sentenced to a lengthy term of imprisonment. Also, the cross-examination may well have produced a compelling explanation for the victim's answers in cross-examination to the effect that she had 'no idea' about or could not remember the offending. Further, the cross-examination may well have detracted significantly from other progress that defence counsel had made or would make in other cross-examination of the victim. Any cross-examination of the victim on her oral statements would have been a very risky strategy. The only reasonable conclusion, on an objective evaluation of the oral statements in the context of the whole of the evidence at trial, is that any reasonably competent defence counsel would have made a forensic decision not to pursue the matter.
149 Fourthly, nothing which occurred prior to, at or in the conduct of the trial (including the prosecutor's failure to disclose the victim's oral statements) precludes this court from deciding that no miscarriage or substantial miscarriage of justice has in fact occurred.
151 Finally, I note for completeness that it was not suggested, and there is no basis in the material before this court for suggesting, that the prosecutor's failure to make disclosure of the victim's oral statements was intentional or negligent.
152 Leave to appeal should be refused on grounds 1 and 2. The appeal must be dismissed.
(2002) 25 WAR 382
(1989) 168 CLR 79
(2005) 227 CLR 319
(2002) 5 VR 627
(1979) 142 CLR 659
(2001) 75 ALJR 1708
(1996) 190 CLR 348
(1960) 103 CLR 539
(2005) 224 CLR 125
(2005) 80 ALJR 160