SNOOK -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 56 (17 May 2024)

1. The appellant was charged on indictment with three offences. Count 1 alleged that the appellant indecently dealt with the complainant on or around 20 May 1993, when the complainant attended Bunbury Regional Hospital after being kicked in the groin. The appellant was said to have entered the complainant's room and touched his testicles. The appellant was acquitted of that charge.
2. Counts 2 and 3 alleged that the appellant indecently dealt with, and then sexually penetrated, the complainant during one incident that occurred on an unknown date between 1 June 1993 and 10 June 1993, when the complainant attended Bunbury Regional Hospital for asthma. The appellant was alleged to have entered the complainant's room and touched his penis (count 2) before he then digitally penetrated the complainant's anus (count 3).
3. The prosecution adduced evidence from two witnesses, namely the complainant and the investigating police officer. The prosecution also relied on evidence that, in 1993, the appellant had been convicted of indecently dealing with two children. Those offences involved the appellant touching or masturbating the penis of a boy between the ages of 13 and 16 years while the child was in bed and going to sleep.
4. The appellant formally admitted that he was a registered nurse at Bunbury Regional Hospital between 20 May 1993 and 9 June 1993, which covered the period when the complainant was an admitted patient at that hospital.
5. The complainant gave evidence that in March or May 1993, he was kicked in the groin and taken to hospital. He said that he remembered that there was a male nurse called Tim who had a moustache and blue scrubs. He said that Tim came into his room at night and played with his testicles under the guise of checking on the injury. This incident formed the basis of the offence alleged in count 1. The complainant stayed overnight at the hospital, and he was discharged the following day.
6. The complainant was hospitalised again in June 1993 for about seven days, for problems associated with his asthma. Whilst in hospital on this occasion, the complainant recognised the appellant as the nurse from his last visit. The complainant said that on the first night, the appellant came into his room and said he wanted to check the complainant's injury from the last time. He then pulled up the complainant's hospital gown and did the same thing as alleged in count 1.[4]
7. The complainant gave evidence that he thought that the appellant did 'a bit more'[5] on the second night. The complainant said that he felt a hand playing with his penis and his testicles, and that he then felt the hand slide down and the tip of a finger go into his anus. The complainant also gave evidence that he remembered that the appellant would come into his room 'pretty much every night' during his hospitalisation and do the same things as alleged in counts 2 and 3. He said that he thought he was in hospital for about a week, so estimated that this occurred six or seven times, although he could not recall specifics.[6] However, in cross‑examination, it was specifically put to the complainant on two occasions that his evidence was that, although this occurred frequently, it occurred on the second night of his stay in hospital.
8. The appellant participated in an electronic record of interview with police in January 2022, during which he did not make any admissions and declined to answer most questions on legal advice.
9. The appellant gave evidence at his trial. He accepted that he worked at the Bunbury Regional Hospital as a registered nurse at the relevant time. However, he had no recollection of the complainant until he reviewed the hospital records which confirmed that they had come into contact. The appellant denied offending in any way against the complainant.
10. The appellant also adduced evidence from a Ms Roslyn Brown, an enrolled nurse at Bunbury Regional Hospital. However, it is unnecessary to summarise her evidence as it is not relevant to the issues raised by the grounds of appeal or by the application for bail.

1. The appellant relies on two grounds of appeal, which are in the following terms:
   1. There was a miscarriage of justice occasioned by the convictions on counts 2 and 3 because the evidence led in support of those counts revealed multiple offences fitting the same description that were never particularised.
   2. The learned trial judge erred by directing or ordering the appellant after he completed his evidence in chief and before cross-examination commenced that he was not permitted to speak to anyone about the evidence he had given or the evidence he might give.
2. The appellant has filed his appellant's case. The respondent's answer has also been filed. Both parties have filed certificates that they have complied with Practice Direction 7.4, and they have also filed the required schedules of evidence. Accordingly, I have had the benefit of considering the detailed written submissions that the parties intend to rely on at the hearing of the appeal. The only substantive procedural step that needs to be taken before that hearing takes place is the preparation and filing of appeal books.

1. The appellant submits that bail should be granted because there are strong prospects that ground 1 will succeed,[7] and that if bail is not granted, there is a real prospect that he will have served a reasonable proportion of the non‑parole component of his sentence of 3 years' immediate imprisonment by the time an appeal is heard and determined.

Risk of serving a reasonable proportion of the non-parole period

1. The appellant's earliest release date is 13 August 2025. Given that the appeal is now ready to be listed, there is little risk that the appellant will have served a substantial proportion of the non‑parole component of his sentence before his appeal is heard and determined. There is, in fact, every reason to think that if all remaining procedural steps are taken in a timely manner, that the appeal is likely to be listed in September or October 2024.

1. In relation to the question of whether there are strong prospects that ground 1 will be successful, any opinions expressed by me at this stage can only be preliminary in nature. Further, it is generally appropriate to deal with the merits of the appeal in a conclusionary way.
2. Considering the submissions that appear in the appellant's case and in the respondent's answer, the written submissions filed in support of this application, and counsel's oral submissions, I am not satisfied at this stage that ground 1 is strongly arguable, or that there is any other basis for concluding that exceptional reasons exist sufficient to justify the grant of bail pending the hearing and determination of the appeal.

1. By ground 1, the appellant asserts that there was a miscarriage of justice because the verdicts of guilty that were returned by the jury in relation to counts 2 and 3 were affected by latent duplicity. In other words, it is contended that given the way in which the prosecution case was conducted, and having regard to the evidence adduced at the appellant's trial, the appellant was subjected to the possibility of being convicted of one of several distinct offences even though only one offence was charged in each of counts 2 and 3.
2. The appellant submits, in effect, that the prosecutor who appeared at the appellant's trial did not provide any particulars in his opening address about when the events the subject of counts 2 and 3 were alleged to have occurred, and that at no time during the balance of the trial did he sufficiently distinguish those events from the other similar occasions on which the complainant said the appellant had offended against him during the same period he was in hospital. The appellant also submits that the effect of the complainant's evidence is that he knew that counts 2 and 3 did not happen on the first night he was in hospital, and that he thought that it occurred on the second night. However, the appellant says that the complainant's evidence was ambiguous because he also remembered that the same thing happened when the appellant came into his room almost every night. In that context, the appellant argues that there was no evidence about any surrounding circumstances that might have differentiated any incident, other than that they all occurred at night during the second period of his hospitalisation.

1. The respondent accepts that it was not open to the prosecution to allege that the appellant committed more than one offence for each of the offences charged in counts 2 and 3 on the indictment. In that regard, the respondent notes that cl 2(4) of sch 1 of the Criminal Procedure Act 2004 (WA), provides that '[a] charge must allege one offence only, unless clause 8 or another written law permits otherwise'. There is no question that cl 8 of sch 1 of the Criminal Procedure Act did not otherwise permit a charge to allege more than one offence contrary to s 320(2) or s 320(4) of the Code, and that no other written law would have permitted that to have occurred.
2. However, the respondent submits that there was no latent duplicity. In that regard, it is accepted that it would have been preferable for the prosecutor to have more specifically identified in his opening and closing addresses the events that were alleged to have been the subject of counts 2 and 3. However, the respondent contends that there was a narrow time frame of about one week in which the incident giving rise to counts 2 and 3 allegedly occurred.
3. The respondent also submits that the complainant's evidence excluded the first night that he was in hospital as being the occasion on which that incident could have occurred and contends that when he gave evidence about the relevant incident, the complainant gave a detailed description of what had occurred by reference to it having occurred during his second night in hospital. The respondent also refers to the trial judge's directions and submits that those directions made it clear that the incident the subject of counts 2 and 3 occurred on the second night of the complainant's hospitalisation.

1. In my view, and on a preliminary assessment only, it is not strongly arguable that there was latent duplicity in the context of counts 2 and 3. The complainant gave evidence that he was in hospital for about a week, and he gave detailed evidence about what he said happened during the first night of that week. In that respect, the complainant gave the following evidence:[8]

You said you were in there for about a week and you've just told us about Night 1. What - what happened subsequently?---So he - [the appellant] would come in most - most nights that I remember, but I think it was the second night he did a little bit more. (emphasis added)

1. After giving this evidence, the complainant took a short break before returning to court to explain what he meant when he said that the appellant 'did a little more'.[9] In that regard, the complainant gave relatively detailed evidence about what he said occurred '[f]rom memory'[10] on the second night that he was in hospital. Accordingly, although the complainant also later gave evidence that the appellant would come into his room 'pretty much every night' that he was in hospital, and that he would do 'the same things',[11] he appears to have described a discrete event that he remembered had happened on a particular occasion, namely the second night of his stay. That an event of this nature occurred on the second night was, in effect, reinforced in cross‑examination when it was expressly put to the complainant that his evidence was that it occurred for the first time on that night. It was evident that the appellant's counsel was pursuing what she believed to be a forensic advantage to the defence case by emphasising this aspect of the complainant's evidence.
2. In his closing address, the prosecutor referred to this evidence when speaking about counts 2 and 3.[12] Further, the trial judge extensively quoted from the same evidence in his summing up when giving the jury directions about what he suggested was the 'real issue in terms of counts 1 and 2',[13] namely whether the prosecution had proved that those events had occurred. The trial judge adopted a similar approach when identifying the issue for the jury to determine in the context of count 3.[14]
3. I also note that the trial judge drew a distinction between the acts the subject of counts 2 and 3, on the one hand, and the 'evidence about other conduct that occurred during the course of his hospital admissions which is not the subject of any charge on the indictment',[15] on the other, when he gave the jury directions about the use to which evidence of uncharged acts could be put:[16]

He also stated that during the course of the second admission, on the first night, the nurse Tim came into the room and did the same thing as he remembered from the May admission. And he also said that subsequent to the second night, so that is after the night that he said nurse Tim did the acts, the subject of counts 2 [and] 3.

That nurse Tim would come in every night and do the same thing. He said that he remembered it being every night for about a week, so six or seven times, or on multiple nights. Now, the State led that evidence as part of the overall context of what occurred whilst [the complainant] was in hospital during two admissions. (emphasis added)

1. Accordingly, and on a preliminary assessment, the complainant's evidence, the prosecutor's closing address, and the trial judge's directions appear to have identified the relevant acts as having occurred on the second night the complainant was in hospital and, in any event, in a manner that was sufficient to distinguish them from the similar acts the complainant said occurred on subsequent nights that were relied on as uncharged conduct. It follows that it is not strongly arguable that a miscarriage of justice was occasioned because the charges in counts 2 and 3 suffered from latent duplicity.
2. Accordingly, I dismiss the appellant's application for bail pending the hearing and determination of the appeal.

1. In the alternative to his application for bail, the appellant seeks an urgent appeal order. The respondent does not oppose the making of such an order.
2. This appeal is ready to be listed for hearing. Accordingly, there is no basis for concluding that a significant period of the appellant's non‑parole period will be served before the hearing of the appeal given that the appellant's earliest eligibility date for consideration to be released on parole is in August 2025, now over 15 months away. There is also nothing to suggest that the hearing of this appeal should be given priority or that there are any other reasons justifying an expedited hearing.
3. I would therefore also refuse the application for an urgent appeal order.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Research Associate to the Honourable Justice Vandongen

[1] Serukai v The State of Western Australia [2020] WASCA 127 [12] ‑ [15].

[2] Fermanis v The State of Western Australia [2005] WASCA 212.

[3] Wheeler v The Queen [2010] WASCA 2 [6] - [12]. See also LBH v The State of Western Australia [2022] WASCA 154 [19].

[4] ts 107. This act did not form a count on the indictment.

[7] The appellant does not submit that there are strong prospects that ground 2 will succeed.