Criminal law - Application for leave to appeal against conviction - Whether miscarriage of justice occasioned by prosecutor's references to appellant's religion - Whether trial judge's directions invited jury to find appellant guilty on the basis of a 'truer' version of events without being satisfied beyond reasonable doubt on the evidence - Turns on own facts

Paterson v The Queen [2004] WASCA 63; (2004) 28 WAR 223

1 On 21 October 2015, the appellant was convicted after trial of four counts of indecent dealing with a child under 14 years of age, one count of unlawful carnal knowledge of a girl under 13 years of age and two counts of attempted unlawful carnal knowledge of a girl under 13 years of age. These offences, which were alleged to have occurred between 1975 and 1982, all concerned the appellant's adopted daughter, to whom we shall refer as A. The appellant was also convicted of one count of indecently dealing with a child over 13 and under 16 years of age. That count related to his niece, to whom we shall refer as N, and was alleged to have occurred on an unknown date between 12 September 2003 and 26 December 2003.

2 The appellant seeks leave to appeal against his convictions on two grounds. The first ground is that remarks by prosecuting counsel at trial concerning the appellant's Muslim faith created a risk of unfair prejudice to the appellant, resulting in a miscarriage of justice. The second ground alleges that there was a miscarriage of justice when, over objection, the trial judge determined not to correct a direction he had given to the jury to the effect that they could find the appellant guilty on the count relating to N if they found N had given a 'truer version'.

3 For the following reasons, neither ground of appeal has any reasonable prospect of success. Leave to appeal to this court must be refused on all grounds, with the consequence that the appeal is taken to be dismissed.[1]

4 The State's case at trial was as follows (ts 29 - 37).

5 A was born in 1969. The appellant commenced a relationship with A's mother, to whom we shall refer as L, when A was only a few months old. A thought that the appellant was her father throughout the time he sexually abused her. The State explained that the counts involving A were representative.

6 The first count on the indictment occurred when A was about 6 years old, and watching television while lying with the appellant and L in their bed. It was alleged that, while they were all in the bed, the appellant put his hand on top of A's vaginal area.

7 The second count occurred when A was 7 years old, and being driven to a basketball game by the appellant. It was alleged that the appellant forced his penis into A's mouth.

8 The third count occurred when A was 7 - 8 years old, and the appellant rubbed his penis against A's body in the shower. The appellant had showers in which he would have the couple's children come into the shower with him naked.

9 The fourth count occurred when A was 8 - 9 years old and her family went to a friend's house where there was a swimming pool. The appellant had sexual intercourse with A while they were in the pool.

10 L separated from the appellant in 1982. A's sisters went to New South Wales to live with the appellant's family, leaving A and the appellant residing in the family home. The appellant made A wear clothing which was not appropriate for her age and made her seem older than she was. Over a period of some years, the appellant essentially treated A as his wife. A would often sleep with the appellant in his bed.

11 The fifth count related to an incident in the appellant's bed where the appellant placed A's hand on his penis and showed A how to masturbate him.

12 The sixth count related to an incident of sexual intercourse in the office area of a garage where the appellant worked as a mechanic.

13 The seventh count related to another occasion where the appellant had sexual intercourse with A in his bedroom.

14 The prosecutor indicated that the jury would hear evidence from A about these matters. He said that the jury would also hear evidence from S, the daughter of the appellant and L, who was 18 months younger than A and who would give evidence about the family dynamics. We will deal with that aspect of the prosecutor's opening in more detail when considering ground 1.

15 The prosecutor also referred to the appellant starting a relationship with M, who was A's babysitter and only a couple of years older than A, and eventually marrying her.

16 In relation to the eighth count, the State's case was that in 2003 the appellant indecently dealt with N. N was the appellant's niece, and was about 15 years old when the alleged offence occurred. The State's case was that the appellant was driving by and offered N a lift as she walked home from school. The appellant took N to another street near her home where he stopped the car, grabbed her face and kissed her passionately on the mouth. This constituted the alleged indecent dealing.

17 The prosecutor said that A first reported the offences to police in the early 1990s and that 'the matter just stalled there for a while and didn't really start up again until 2010 or thereabouts and then again in 2012'. He referred to interviews police conducted with the appellant in 2012, and admissions about certain matters which the State contended the appellant made in those interviews.

Ground 1: references to the appellant's Muslim faith

18 There were a number of references during the course of the trial to the appellant's Muslim faith. To put those references in context, it is necessary to set them out in some detail.

19 The prosecutor's opening anticipated evidence which S would give about the family dynamics in the following terms:

And she will tell you about the family dynamics and you will hear that part of the evidence from both [A] and [S] is that it was not a happy household with [the appellant] and their mother, [L].

That [the appellant] was quite strict with the children, and you'll hear about some examples of that. That he was quite controlling of the children and indeed his wife, [L]. And you'll find that the dynamics in that family home were such that you wouldn't expect [A] to have made any complaint sooner.

You'll also hear evidence that towards the later years that [A] was living in the house with [the appellant] that he became more religious, that he's a man of a Islamic faith, is a Muslim.

And you'll hear evidence that he became more strict in his views about that which involved the children having to wear head scarves and his wife having to wear a head scarf and those sorts of things and you'll hear that that caused some friction in the household.

It's an example, the State says, of more of that controlling behaviour and that the children, especially [A], knew that she couldn't say no to her dad. And as I said, that enabled these offences to continue (ts 33).

20 The prosecutor said that the appellant became more religious as he involved himself with M's family and another family and spoke of 'the increase in his religious doctrine being put upon his family members' (ts 34).

21 In relation to the appellant's interviews with police, the prosecutor said:

he admitted that he did tell [A] he was sorry, for what he did to her and her sisters, but suggested that what he meant by that was in relation to him not practicing his - the Islamic faith at that - when they were young kids and that he shouldn't have had showers with them.

Of course what the State says is that when you watch this interview, in the context of the evidence, that [the appellant] is really making an admission that he knew that [he] shouldn't have done what [A] says he did in the shower, namely rub his penis up against her (ts 36).

22 The appellant's competent and experienced trial counsel elected to make an opening statement to the jury before the State's evidence commenced. His opening contained the following passage which related to the appellant's religion:

Now, finally I want to say something in terms of prejudice about [the appellant's] faith. Now, in some ways I was torn as to whether to mention the issue of [the appellant's] faith and possible prejudice because I don't want any of you to think that I'm making assumptions about whether you have any prejudice towards those of the Muslim faith. But I thought I should say something because, as an extreme understatement, the Muslim faith has received some very bad press in the recent perhaps decade, maybe more. We are, that is, Australia is currently at war nominally with an organisation that has the word 'Islamic' in its title in the Middle East.

But what I'm asking you to do, and I understood that none of you have sworn on the Quran so I'm assuming that none of you are Muslim, is to treat [the appellant] fairly and impartially regardless of his faith because there has been a lot of prejudice towards Muslims. There's been a lot of misunderstanding of the Muslim faith. And you're going to hear some things in relation to [the appellant's] faith that may seem odd to you.

The prosecutor's already referred to some of those. He says in his interview that he makes some apology for the way he dealt with his children. But what [the appellant] says is he's not apologising for doing anything criminal. He's apologising, in effect, for not being a particularly good Muslim at the time.

Now, you might understand - probably all understand that those who are devout Muslims don't drink alcohol. [The appellant] will say to you - or you'll hear him say on the interview with the police he was drinking at that time, sometimes to excess. And he did some things that he later on thought were inappropriate for a Muslim man to do in relation to his family, in relation to female members of his family, and he's talking about showering them, changing them, things of this sort.

And he came to an understanding later as a more devout Muslim that that probably wasn't what someone of his faith should be doing. He came to an understanding through his faith that there was, I suppose, a gender division in how children were to be looked after.

But that's a matter of his faith and when he talks about apologising and being a different person at that time he's not talking about, 'Well, I was a child molester back then and I'm not now'. He's saying, 'I was a bad Muslim back then' effectively. 'I was not doing what my faith requires me to do now.'

And so I suppose I'm asking you to be open and broadminded when you hear about what his faith involves and his beliefs and so on. So I'm not asking you to simply disregard his faith, because it is relevant to some of these answers, but simply don't hold it against him (ts 44 - 45).

23 During the course of her evidence in chief, A said that the appellant was the disciplinarian in the house, and would usually discipline her on the bottom of her feet with a cane or extension cord or slap. The following exchange then occurred:

And from what age do you remember that, the way you were disciplined by [the appellant]?---Since I can remember. It was - just got worse I think as he got more religious.

What do you mean by more religious?---Very - very into his religion by, you know, going to the mosque. We're not allowed to speak English in the house, we had to speak Arabic at home. We had to do Ramadan, we - later on I wore a scarf, pray to Allah. I can - I can read the Quran - well, I can't read it but I can recite it.

And when was it that you said he got more religious and that's when it got worse? Do you recall when that - when [the appellant] got more religious like how old you were?---Seven (ts 52).

24 Later, A described the discipline to which she was subject, as it became stricter and she was 6 or 7 years old, in the following terms:

Putting our tongue on the kitchen bench and you know, he's got a wooden spoon and talking about how he's going to - pretend to hit it. Just hitting - a lot of hitting and a lot of caning on the feet, a lot of extension cords, not speaking English, getting slapped around the face if you spoke English or - 'Who did you speak to?' Like, boys. It was always about boys, you know, 'Who did you,' - not allowed to talk to boys, not allowed to be near boys, you know, paranoid of - - - (ts 57).

25 The appellant's trial counsel also asked A about her father's religion, in the following terms:

And would you agree with me that around the time your father got into the relationship with [M] and met her parents, that he then became more interested and more focused on Islamic faith and became [a] more religious man overall?---Yes.

And that they were, [M's] family, quite a religious family as far as you could tell?---Fanatical as far I could tell.

Right. And as far as you're aware [the appellant] ultimately, in terms of pursuit of this faith, spent some time on pilgrimage to Mecca on some occasions, you're aware of that?---Yes.

He also asked your mother, [L], to wear the hijab - - -?---Yes.

- - - and she said no?---Yes.

She didn't wear it in the house but you ultimately did for a period of time. And he arranged for the children to receive some schooling in Arabic - - -? ---Yes.

- - - and some teaching about the Quran?---Yes, and myself.

Do you agree that all of those things, that is, all of the steps that [the appellant] took in terms of promotion of his Islamic beliefs, conflicted with your mother's view of the world?---Yes.

And she wasn't a Muslim?---No.

She didn't want to wear the hijab - - -?---No.

- - - and she didn't want the family to be a Muslim family, would you agree with that?---I agree (ts 120).

26 Later, the appellant's trial counsel asked A the following questions about a time she stayed with a family in Sydney:

And when you got there you said, 'I want to stay here. I don't want to go back to [the appellant's] family', where you had been staying?---Correct.

Because they were also quite a strict Islamic sort of family, weren't they, in terms of the rules they put on, particularly, female children in the household. Do you agree with that?---I totally agree with that.

Yes. In terms of you weren't able to use the phone. You weren't able to go to the swimming pool because it was considered immodest, things of that sort?---Yes.

Those sort of Islamic type of rules that someone like your mother, [L], would never have wanted imposed on you and didn't when you lived with her?---No (ts 128 - 129).

27 In her evidence in chief, A said that in 2000 she met with the appellant in Sydney. She described the conversation in the following terms:

And I said something and then I said to [the appellant] that I just wanted to understand why he did what he did. He said - he - - -

What did he say?---He said that it was the evil in him, it was - the evil and the evil in my mother, not to talk about it. And I said, 'Well, you don't have sex with children'. And he didn't get it.

Sorry?---He didn't get - he didn't seem to - - -

Did he say anything?---I can't remember any more of the - I think he told me not to talk about it (ts 95).

28 The appellant's trial counsel cross-examined A about this conversation, putting to her the proposition that the appellant had apologised for the way in which she was raised and not for any sexual offending. In the course of doing so, the appellant's trial counsel posed the following questions:

Well, he talked about religion, didn't he?---I don't know. Probably. Cos that's all he talks about.

Didn't he say that he was a - a Muslim now - a practising Muslim and he wasn't back then?---Well, he's been a Muslim back then. Yeah, he was a Muslim. He's always been a Muslim. It's just the degrees of Muslim.

All right. Well, he effectively said to you that he was more religious now than he had been in those days?---I don't know, maybe.

Did he say to you, 'I'm praying. I'm religious now'?---No. He was praying back then.

All right. Well, did you say to the police when you told them in 2010 about this conversation these words?

He went on to say, 'I've got a family. I'm praying. I'm religious now.'

---Okay. Maybe he did. If it's in my statement that's what he said.

Okay. Did he say to you - - -?---He was always praying.

Did he say to you that he had a different knowledge of Islam at that time?

---No, not that I recall.

And I need to put to you, [A], that he never said these - never said the words, 'Don't talk about that', or 'It was the evil in me'?---No. 'And the evil in your mother', I remember that.

All right. I'm going to suggest that he mentioned your mother in the sense that if there was a different lifestyle that they lived at that time?---Mm hmm.

Did he say something along those lines?---Yeah, yes.

And then he related that back to religion and said that he was more religious now than he was then?---He may have. If that was in the statement.

And that he was sorry that he hadn't raised you in the right way in terms of Islam?---I don't know. Maybe. Probably. I'm sure Islam - it makes no difference on what he's done (ts 180 - 181).

29 L gave evidence at trial. She said that she was not particularly religious when she met the appellant. She said that the appellant was always a Muslim and he did practice his religion when she met him (ts 240). She described the appellant becoming more obsessive in the practice of his religion and more controlling of the children towards the end of their relationship (ts 253 - 254, 257). L gave the following evidence about the way in which the appellant treated A and S:

He said to the two elder girls who were going to the local schools that they would have to start wearing head scarves, and he also wanted me to start wearing a head scarf. I totally refused but he won out with the two older girls and they started wearing the head scarf to school, which they felt humiliated by.

Can you give any other examples of that controlling behaviour relative to his religion, or relevant to his religious beliefs?---He insisted that they speak Arabic all the time. They mostly knew English but he expected them to speak Arabic, and if they didn't they were hit across the face or the head (ts 257 - 258).

30 The prosecutor adduced evidence from S that the appellant started teaching A and S Islam before L left him. S said:

It wasn't that he was suddenly a Muslim, he was always a Muslim, but I'd say maybe in the last year of their marriage dad became more religious and practising. He started taking [A] and I to Muslim school on a Sunday. We had to speak Arabic in his presence.

Was that a language that you spoke naturally at home before your dad became more religious?---No. It was something that we just had to learn (ts 304).

31 S gave evidence that she and A would have to kiss the appellant's hand to greet him and were not allowed to associate with boys at all. She said that they had to dress more modestly 'than your average Aussie child' but didn't have to wear a headdress until the appellant married M, who was also Muslim (ts 305). She gave evidence to the effect that the appellant's religion caused friction between him and L (ts 306).

32 The appellant's trial counsel cross-examined S about the appellant's religion in terms designed to elicit from her the 'zealous' and 'fanatical' way in which he approached Islam:

After your father moved from being a Muslim who was a Muslim sort of in name only to a Muslim who is very enthusiastic about Islam - is that a fair description? He went from, 'I'm a Muslim,' to, 'Not only am I a Muslim but you all must be Muslims as well,' as in trying to push it onto the rest of the family?---Force it onto the rest of the family, yes.

Yes. He became very sort of zealous about it or - - -?---Mm.

You might use a stronger word?---I would use a stronger word.

All right?---I was forced to wear a headscarf and pray at school so - - -

You might use the word fanatical?---Yeah, that would be accurate (ts 315).

33 The appellant's edited recorded interview with police, which was tendered and played to the jury without objection, contained a number of references to the appellant's faith. These references included an indication that the appellant and L 'split, because I start practise my religion' (interview ts 24). In the interview, the appellant explained how his lifestyle had changed since his devotion to Islam had increased. He said that his apology to A in 2000 concerned conduct, such as changing nappies or clothes, which he now considered not to be appropriate between a father and daughter. The appellant told police:

Because, at the time, and at the time, I married my second wife. My second wife a Muslim. I have eight kids from her, okay. Lot of things, my wife, she straight me up on things. I used to do a lot of things. I used to do, like I know Australian ways. I know it's a friendly way, but then Islamic, in Islamic believe and religion is wrong way. Like let's say I seen a friend of mine I know for many years. I come in and kiss her 'cause I can. My wife, she used to say, no, don't do that. We're not allowed to do that. We, we Muslim. And then I learn a lot of things from my second wife ... So this what I said to her, please forgive me if I hurt you somehow, because I used to do that and you feel et cetera, but not doing sexual. For god sake, no way (interview ts 43).

34 At the commencement of his closing address to the jury, the prosecutor made the following observations:

You're dealing with matters, allegations that date back between 12 and 40 years ago. Now, just because these allegations date back that far does not mean that there is any inherent unreliability in someone's memory. And the reason why I say that is you are all of differing ages, so I'd like to just ask you to think about this.

Do you remember seeing for the first time on television those two planes going into the twin towers of the World Trade Centre? Do you remember where you were when you saw that happen? And if you remember where you were when you saw that happen, I suspect it's because it was a significant event for you. It had an impact upon you.

That was 14 years ago tomorrow, but you'd remember, I suspect, where you were when you saw it. Would you remember what you were wearing? Probably not. Would you remember what you had for dinner that night? Probably not. And would you remember what day of the week it was? I suspect not, because they're details, they're surrounding details. The significant event is those planes going into that building and what it represented (closing ts 2).

35 Later, the prosecutor submitted that the appellant was controlling the family in a manner which normalised what was otherwise completely inappropriate behaviour and explained why A did not say anything even when her mother was present as the abuse occurred (closing ts 4). The prosecutor said:

But it wasn't just that he was her biological father. It wasn't just that he was a disciplinarian or the only adult figure in the house, and it wasn't just that he controlled the household; he isolated the children, and he did that by making them speak Arabic when he was around, making them wear the headwear, the Muslim headwear, I forget the name of it, making them attend Arabic school to learn Arabic, not letting them see boys, not letting them go out. That is not only socially isolating them, but it's culturally isolating them, and by doing that they are dependent upon the father in the household, [the appellant].

So when it's suggested, well, why wasn't there a complaint made to someone at the school which were friends, well, you've heard about what friends they had, very few. And the only one that [A] befriended at school ... you'll recall [s]he was of a family of the same faith and coincided with the time when [the appellant] became more religious. So it's not as though she is someone, I suggest to you, that she could have complained to.

And I'll say some more about the delay in complaint later. But when you think about that context of the discipline in the household, and the isolating, and him becoming more serious, fanatical - I think [S] agreed with the description of his practicing Islam - you'd well understand why this abuse was allowed to continue in the home (closing ts 5).

36 In dealing with the absence of complaint at the time the alleged abuse occurred, the prosecutor said:

My friend might suggest, 'Well, it's objectively improbable that [the appellant] would do this in the swimming pool and, secondly, perhaps physically impossible.' I suggest to you it certainly would not be physically impossible for an adult man to sexually penetrate a young girl who he was holding close to him, and moving.

What could [A] do in that situation? A young child with her father, who could she complain to? Do you think she could complain to her mother, her mother who, clearly, when she left the house, despite wanting to take the children with her, was not going back to be with that man? And for good reason, you might think.

When the mother protested about the religious, cultural doctrine that [the appellant] was forcing upon his children - she protested and it had no effect. It doesn't take much thinking to realise that the children realised that the mother had no say over the father, and so there was no point in complaining to the mother (closing ts 8).

37 Later in his closing submissions, the prosecutor observed:

Now, [the appellant is] not on trial for the way he disciplined his children, I want to make that clear. The relevance of all of this is why [A] never said anything. This is why this complaint was not made 40-odd years ago (closing ts 17).

38 The appellant's trial counsel made the following comments about Islam in concluding his closing submissions to the jury:

And you might think that he was fanatical about Islam. And I've invited you to consider that and to make sure that when you assess this case and you bring in verdicts that you don't take into account any preconceived ideas you might have. And frankly, that you ignore some of the fanatical ways that he might have behaved in relation to his views about Islam.

Because the fact that he took some strict views in terms of people wearing the hijab and things of that sort doesn't help you in deciding whether he did anything illegal in relation to [A] because there are many Muslim people in Australia, there are many who wear the hijab. There would be many fathers in the Muslim community who want their daughters to wear a hijab or who don't want their daughters to go and chat up boys or who don't want their daughters, because of their faith, to go to a swimming school.

Now, you may not agree with that, that may not be your system of belief. Nothing wrong with that, we each have our own systems of belief. You may think that's oppressive and controlling. But it's not equal to being a sex offender. It's not the same as sexual interfering with your children because you take a fanatical view about your religion and because you might impose some aspects of that religion on them.

I don't like the sound of some of that any more than perhaps some of you do. But the State's taking that and running with it and saying therefore he must be guilty of these offences because he's such a controlling man, he's fanatical about Islam. That's a different issue, members of the jury. And I ask you, if people in the jury room say, well, look at the way he was in terms of Arabic, look at the way he was in terms of the hijab he must be guilty, to deal with that appropriate, to deal with that with an enormous grain of salt.

So members of the jury, what I'm saying to you is there is no proof beyond reasonable doubt in relation to these allegations. And you have a difficult task but please, approach it objectively and return verdicts accordingly (closing ts 41 - 42).

39 In the course of a discussion about the directions which the trial judge would give, the appellant's trial counsel said that he had made some comments in his opening and closing submissions about Islam and prejudice. The following exchange occurred:

DERRICK DCJ: I'm a bit reluctant to make any express statement to the jury about Islam, and I'm not criticising you at all for doing it, but it just concerns me that the jury might even be offended by me suggesting to them that perhaps they might be prejudiced against somebody because of his Islamic faith.

FREITAG, MR: Yes. I considered that - - -

DERRICK DCJ: And I know you thought about that. I understand that. I'm not criticising, but I just wasn't proposing to use that as an example.

FREITAG, MR: No, and I understand that, your Honour. I don't know if your Honour was making notes or watched the reaction of the jury when I got to some of that issue right at the end, and there are certainly people on the jury who seemed to me to have a strong view about some of that evidence because obviously there's elements of control in the sense of telling people how to live their lives and what they can and can't do that are unappealing to - - -

DERRICK DCJ: Yes.

FREITAG, MR: - - - a relatively liberal Western jury.

DERRICK DCJ: All right. Well, I'll give thought as to how I weave that into the prejudice/sympathy part of my direction, but I don't propose to give any specific direction as to relationship evidence (ts 363 - 364).

40 The trial judge directed the jury to assess the evidence dispassionately, and directed them that they must not decide the case on the basis of prejudice or sympathy. The trial judge gave a lengthy direction in relation to the evidence of the appellant's religion and the manner in which the appellant disciplined his children. The direction was as follows:

Let me give you one example in an attempt to demonstrate what I'm talking about. During the trial you heard evidence from the complainant, [A], and her sister, [S], as to the authoritarian way in which [the appellant] brought them up particularly as he became more strict in his following of his Islamic faith.

More specifically they gave evidence of how [the appellant] made them speak Arabic in his presence, how he made them go to an Islamic school, how he prevented them from socialising with boys, how he at some point made them wear a head scarf and how he would administer harsh physical punishment to them.

This evidence was put before you by the State to show what the State says was the nature of the relationship that existed between [A] and [the appellant] at around the time that [the appellant] is alleged to have committed the charged offences against [A].

The State's position is that the evidence given as to the nature of the relationship that did exist between [the appellant] and [A] is relevant to your assessment of the credibility of the evidence that she gave as to the alleged offences.

The State's position is also that the evidence of the dynamics of their relationship is relevant to your assessment of the issue of delay in complaint, something that I will speak about in more detail later on ...

Now, members of the jury, some, if not all of you, may hold adverse views or have certain adverse feelings about the authoritarian type of parenting that [the appellant] would appear to have engaged in or the infliction on children, whether female or male, of the type of physical punishment that [A] and [S] described or the imposition on family members of certain religious belief systems.

That is all okay. You are entitled to hold those types of feelings or views however the point that I am making, assuming you accept some or all of the evidence that [A] and [S] each gave on these issues, is that if you do hold those types of adverse views or feelings then you must put them to one side when you are considering your verdicts in this case.

What you might think about father figures who adopt a domineering or authoritarian form of parenting or who inflict what you might consider to be unnecessary and over the top physical punishment on young children or who impose their religious beliefs on their children is completely irrelevant to your determination of whether [the appellant] committed any of the offences with which he is charged.

To put it bluntly I suppose [the appellant] is not on trial for having bad parenting techniques or for that matter imposing his religious beliefs on members of his family.

You can, if you see fit, use the evidence given by [A] and [S] to which I've referred in making any findings as to the nature of the relationship that existed between [A] and [the appellant] at the time of the alleged offences.

However, that is the only use that you can make of the evidence. So in that regard the evidence is relevant. You can make findings based on it as to what the relationship was like.

What you can't do is allow any feelings you might have about that time of relationship to somehow impact upon your objective consideration of the evidence in the case and in deciding whether the State has proved the charges beyond reasonable doubt.

As I've said, any adverse views or feelings or in other words prejudices that you may hold towards people who adopt an authoritarian approach to parenting or who use physical punishment or to impose their religious beliefs on other members of their family are irrelevant to your determination of the issues in this case and they must be put, by you, to one side.

Now, similarly, and I have some hesitation in saying this to you because I don't want you to think I'm insulting you by saying it but Mr Freitag understandably also raised it in his opening address. You know here that [the appellant] is an Islamic man.

Now, I don't know whether any of you have any views about Islam or otherwise but clearly if you do hold any such views, whether they're sympathetic or prejudicial, again they're irrelevant. That's the sort of thing I'm talking about. You need to put those sort of feelings, if you have them, to one side.

So in summary if having heard the evidence in this case you do find yourself experiencing some sympathy for or prejudice against any of the people that are involved in the trial you must put those feelings to one side. You must assess the evidence clinically and dispassionately (ts 377 - 379).

41 The appellant's written submissions contend that the remarks made by the prosecutor in relation to his Muslim faith created an unfair risk of prejudice to him and that this risk was not cured by the trial judge's directions. The appellant complains that no specific direction was given in relation to the World Trade Centre example, other than to reference this incident when summing up the prosecution case (ts 450).

42 Prosecuting counsel are entitled to be firm and to urge the prosecution case vigorously. They are entitled to test and, if necessary, attack the version of facts advanced on behalf of the accused. However, prosecuting counsel have an overriding duty to ensure that the prosecution case is fairly and properly presented and should not fight for a conviction or seek to persuade a jury to convict by means of prejudice or emotion or language likely to inflame the jury against an accused. A miscarriage of justice will arise where unfair or improper tactics of this kind have been used and may have improperly influenced the jury to convict the accused.[2]

43 In the present case there is no basis for contending that the prosecutor used unfair or improper tactics or that the references to the appellant's religion may have improperly influenced the jury to convict the appellant so as to give rise to a miscarriage of justice.

44 The prosecutor did not use inflammatory language in describing the appellant or his religion. Evidence of the appellant's increased religious fervour at the time of the alleged offences was relevant to both the prosecution and defence cases. The prosecutor's submissions to the jury were appropriately focused on the relevant aspects of the evidence.

45 The State relied on evidence of the domineering way in which the appellant imposed religious practices on his children, over L's objections, and the consequent social and cultural isolation of the children. The State relied on that evidence as tending to explain why A 'couldn't say no to her dad'. The evidence was also said to explain why A did not make any complaint at or about the time of the alleged offences, even when L or other adults were close by.

46 The appellant relied on evidence of his understanding of the requirements of Islam to explain the apology which he made to A in 2000.

47 Both the prosecutor and the appellant's trial counsel adduced and referred to evidence concerning the appellant's faith. The appellant's trial counsel sought, for tactical reasons, to emphasis the depth of the appellant's religious beliefs by putting to S that they were 'zealous' and 'fanatical'.

48 The prosecutor did not invite the jury to use evidence of the appellant's religious or cultural practices other than for a legitimate purpose. The trial judge gave a strong and clear direction as to the permissible and impermissible uses of that evidence.

49 Counsel making submissions to a jury in a case where witnesses are asked to recall traumatic events which occurred a long time ago will commonly use notorious events to illustrate how a person may recall important elements although they cannot recall less important details. The Kennedy assassination or the Moon landing would once have been effective, but now only resonate with older jurors. The attack on the World Trade Centre on 11 September 2001 would be in the minds of all but the youngest jurors, and therefore provides a good example with which to illustrate the point.

50 In the context of this particular trial, it was an unfortunate example for the prosecutor to use. However, when the whole of the transcript is considered it cannot be said that the use of this example may have produced a miscarriage of justice. Given the way in which the evidence was presented at trial and the directions as to the use of evidence about the appellant's religion, this example could not have improperly influenced the jury to convict the appellant.

51 Having regard to the whole of the trial record, including the passages set out above, this ground has no reasonable prospects of success.

Ground 2: a 'truer version' The direction of which the appellant complains

52 The appellant's second proposed ground concerns the mistaken addition of one letter to one word in a long and comprehensive direction which the appellant's appeal counsel described as 'otherwise impeccable' (appeal ts 4). The misspoken word appears in the following passage in relation to count 8 on the indictment (concerning N):

It seems to me, and it's a matter for you of course, because you're judges of the fact, but if you find beyond reasonable doubt that [N's] version of events is a truer version, and that [the appellant] did kiss her in the way she alleges, then I don't think you're going to have much difficulty in finding that that was an indecent dealing, and that [N] was under the age of - between the ages of 13 and 16, and that therefore the offence was committed (ts 426). (emphasis added)

53 The trial judge clearly meant to direct the jury as to what would follow if they found that N's version was true, rather than 'truer'. That is clear from the exchange between the trial judge and the appellant's trial counsel during a break in the judge's direction (ts 440). When counsel raised the matter, the trial judge mistakenly told counsel he had said 'true version' and not 'truer version'.[3]

54 The appellant correctly notes that, as N's evidence was the only evidence that the appellant had committed the offence alleged in count 8 of the indictment, the jury could only find him guilty of that count if satisfied beyond reasonable doubt that her account of being kissed was true. The same point may be made in relation to A's evidence, which was the only evidence that the appellant had committed the other offences charged.

55 The appellant submits that a miscarriage of justice arose because the use of the phrase 'truer version' invited the jury to weigh up which account they believed or preferred, the evidence of N or the appellant's recorded interview (he did not give evidence at trial). The appellant submits that this invited the jury to find the appellant guilty merely because they preferred N's account to his, without being satisfied beyond reasonable doubt that N's account was true.

56 The adequacy of the trial judge's direction must be assessed by considering the whole of the direction, rather than by focusing on a particular passage (or, in this case, word) in isolation. When the direction is considered as a whole, it clearly conveyed to the jury that they must be satisfied beyond reasonable doubt that the account given by N was true before they could find the appellant guilty of count 8.

57 The immediate context in which the trial judge's slip occurred is noteworthy. The trial judge had just instructed the jury in relation to counts 1 - 5 that, if they were ultimately satisfied beyond reasonable doubt that the acts occurred, they may not have any difficulty in being satisfied that there was an unlawful indecent dealing or unlawful carnal knowledge (ts 425). He identified the critical question in relation to those counts as whether the jury were satisfied beyond reasonable doubt that the events occurred (ts 426). The trial judge then said that the '[s]ame goes for count 8, which is the charge concerning [N]' (ts 426). This direction made it clear that the jury had to be satisfied beyond reasonable doubt that the relevant event occurred before they could convict.

58 Further, in the impugned passage the trial judge does not say that it is sufficient for the jury to be satisfied that N's version of events is a 'truer version'. In the passage quoted above, the trial judge states that the jury must be satisfied beyond reasonable doubt that the appellant did kiss N in the way she alleges. Moreover, the point to which this passage is directed is not the manner in which the jury should assess N's evidence. The point being made is that, if the jury were satisfied beyond reasonable doubt that the appellant did kiss N in the way she alleged, then the jury may not have any difficulty in finding the other elements of the charge proven.

59 Other parts of the trial judge's direction made it clear to the jury that they could only find the appellant guilty if satisfied beyond reasonable doubt that N's account was true.

60 The trial judge gave the standard direction about the presumption of innocence and the burden and standard of proof (ts 380 - 381). He also noted, in relation to the appellant's recorded interviews with police, that:

You cannot find an issue against [the appellant] if what he said during an interview about that issue has given rise to a reasonable doubt on the issue (ts 385).

61 Shortly after the slip of which the appellant complains, the trial judge gave a long direction that made it plain that the jury had to be satisfied that the complainant's account was true, and not merely 'truer'. After warning the jury that each complainant's evidence was the only evidence of the charged acts, the trial judge said:

It follows that for each of the offences charged in counts 1 to 7, the State's case stands or falls on whether you are, having taken into account all of the evidence adduced during the trial that is relevant to the particular charge, satisfied beyond a reasonable doubt of the honesty and accuracy, or in other words the truthfulness of the evidence of [A].

Similarly, for the offence charged in count 8, the State's case stands or falls on whether you are, having taken into account all of the evidence adduced during the trial that is relevant to the charge, satisfied beyond a reasonable doubt of the honesty and accuracy, or in other words truthfulness of the evidence of [N].

The position is that you must be satisfied beyond a reasonable doubt about the truthfulness of the relevant complainant's evidence given in relation to the incident the subject of the charge which you are considering before you can convict [the appellant] of that charged offence, or an available alternative. If you're not satisfied beyond reasonable doubt of the truthfulness of the relevant complainant's evidence given in relation to a charged offence, you will not be satisfied beyond reasonable doubt that there was an indecent dealing as alleged or an act of attempted carnal knowledge as alleged and consequently you will find [the appellant] not guilty of the charge ...

So unless you're satisfied beyond reasonable doubt of the truthfulness of the relevant complainant's evidence given in relation to a charged offence you would find [the appellant] not guilty of that charge (ts 427 - 428).

62 After warning the jury about issues concerning the length of time since the offences were allegedly committed, the trial judge said:

In light of the matters that I have mentioned, I am going to give you two warnings. One relating to [A] and the other to [N]. These warnings are based on the experience of the courts in dealing with cases such as this, where there has been a long delay.

The first warning is that it would be unsafe to convict [the appellant] of any of the offences charged in counts 1 to 7 on the indictment on the evidence of [A] unless, after scrutinising her evidence with great care and having considered the matters relevant to her evidence, to which I have referred and having taken into account the effect of the passage of time on [the appellant's] ability to adequately test her evidence and marshal a defence, you are satisfied beyond reasonable doubt as to the honesty and reliability or in other words, the truthfulness, of [A's] evidence.

The second warning is that it would be unsafe to convict [the appellant] of the offence charged in count 8 on the indictment on the evidence of [N], unless after scrutinising her evidence with great care and having considered the matters relevant to her evidence to which I have referred and having taken into account the effect of the passage of time on [the appellant's] ability to adequately test her evidence and marshal a defence, you are satisfied beyond reasonable doubt as to the honesty and reliability, or in other words truthfulness, of her evidence (ts 432 - 433).

63 Considered in the context of the direction as a whole, the trial judge's slip in saying 'truer' rather than 'true' on a single occasion, if noticed at all, could not have led the jury to misapprehend what they had to find in order to find the appellant guilty. The direction as a whole could not have led the jury mistakenly to think that they could find the appellant guilty of an offence merely because they preferred the complainant's evidence to the account given by the appellant in the recorded interview. There is no merit in this proposed ground of appeal, which the appellant sought leave to add at the hearing of this appeal.

64 For the above reasons, we would grant the appellant leave to add the second ground of appeal in terms of the Minute of Proposed Additional Ground of Appeal dated 23 May 2016, refuse to grant leave to appeal on both grounds of appeal and dismiss the appeal.

[1] Section 27 of the Criminal Appeals Act 2004 (WA).

[2] Paterson v The Queen [2004] WASCA 63; (2004) 28 WAR 223 [93] - [99], [217] - [218], [270].

[3] I have verified the accuracy of this part of the transcript by reference to the audio recording of the trial.