Criminal law - Evidence - Identification evidence - Lack of formal identification of accused at trial - Inferential evidence - Inference of identification from conduct of case by counsel for the accused - Overwhelming evidence to support inference of identification

Criminal law - Evidence - Whether conduct of counsel can amount to formal admission pursuant to s 32 of the Evidence Act 1906 (WA) - Whether opening statement can constitute such an admission - Procedure for making statutory admissions

Criminal Appeals Act 2004 (WA), s 33

Criminal Procedure Act 2004 (WA), s 143(2), s 143(3)(a)

Criminal Procedure Rules 2005 (UK), r 37.4

Evidence Act 1906 (WA), s 32

1 STEYTLER P: The respondent is a massage therapist. He was charged with six counts of sexual penetration without consent and one charge of unlawful and indecent assault.

2 The complainants were two of his patients. The first, a woman to whom I shall refer as 'M', alleged that she had been indecently assaulted and sexually penetrated on a number of occasions on 22 May 2004. The second, a woman to whom I shall refer as 'N', alleged that she was digitally penetrated by the respondent on 28 August 2002.

3 The evidence of N was pre-recorded on 13 December 2005. She said that she had been referred to the respondent by her doctor. She first saw the respondent in mid-2001. She went to his treatment rooms in Wembley at least twice a week thereafter until the date of the alleged offences, 28 August 2002. She gave detailed evidence of what took place on that day.

4 N was cross-examined at some length by counsel for the respondent. It was obvious from the cross-examination that he had detailed instructions from the respondent concerning his version of events.

5 There are any number of examples of this. It was put to N that what she had described as a treatment bed in the respondent's rooms was in fact a specialised massage table which included a face hole and available cushions for pillows. She agreed with a suggestion that the pain from which she had suffered at the time of her massage therapy radiated down her left leg and that there would ordinarily be a pillow underneath her ankles to keep her feet off the table. She agreed that she had told the respondent at the time of her previous appointment that she was going to Sydney on 29 August 2002, and was concerned that the plane trip would cause discomfort. She also agreed that the respondent offered to give her specialist treatment to assist with the trip. She denied a suggestion put to her that she generally wore a G-string when she visited the respondent.

6 When shown a series of photographs by the respondent's counsel she agreed that these revealed aspects of the respondent's room. It was put to her that the respondent would say that there was a clock in the room. She agreed that the respondent had offered her a lift home after the alleged assault on that day and that the offer to do so had been made by him in his waiting room.

7 The second complainant, M, gave evidence at the trial itself, from a remote room.

8 However, before the evidence was led, the prosecutor made an opening statement and counsel for the respondent, taking advantage of s 143(3)(a) of the Criminal Procedure Act 2004 (WA), did likewise. In the course of his opening statement the then counsel for the respondent did not suggest, in any way or at any time, that it had not been the respondent who had provided massage therapy to the two complainants.

9 Instead he made it obvious that he regarded the respondent (who was of course present in court during the opening statement) as having done so, at least insofar as M was concerned. He said, amongst other things, the following:

In relation to [N], in effect what we are saying is it didn't happen and what is more, we'll say it really couldn't happen and in that respect I'm going to ask you, when you see her video of evidence that you not only listen very closely to what she says but that you watch her very closely because during the course of the video you are likely to see her stand and I ask you when you see her stand to look very closely at how she stands and look at the size of the person concerned in the context of the allegation.

In relation to [M], the situation is quite different. The position there is that at the end of the day the defendant does not say those incidents did not happen. What the defendant says is, as my friend said in his opening, [M] was asked if she wanted a sensual massage, a choice between a sensual and a relaxation massage. She said she wanted a sensual massage. What does 'sensual' mean? Well, the dictionary I've got in front of me suggests that 'sensual' means 'of physical, especially sexual, pleasure'.

She asked for a sensual massage when she was offered the choice of a sensual massage and she agreed to a sensual massage. You will hear during the course of her evidence that while these incidents about which she now complains were occurring she did nothing, not a thing at any time during something that took place over a reasonable length of time, to bring to anyone's attention, particularly the defendant's attention, that anything he was doing was not with her entire agreement; that is, she had agreed or desired a sensual massage, which clearly has a sexual connotation and it was a matter which developed.

You will hear her evidence and how it developed and you will hear that any time she could have stopped, said, 'Stop', done something; she chose not to. She says she was in some sort of dream-like state and did nothing because of that. Well, she knew during the course of the proceedings, so to speak, what was happening and at no time did she say or do anything which would lead to anything other than belief on the part of Mr Wood that there was consent.

10 When M gave her evidence she said that in about 1998 she was referred to the respondent by her doctor. She said that she saw the respondent between 6 and 12 times at his Wembley rooms. After an injury sustained by her on 12 May 2004, she again saw the respondent. It was for that reason that she was at his rooms on 22 May 2004, the date of the offences of which she complained.

11 She, too, gave a detailed description of what took place there. She was also cross-examined at length. She was shown the same photographs as had been shown to N. These were generally consistent with her recollection of the respondent's rooms. When told by the trial judge that there had so far been no identification of the first two photographs as being the respondent's rooms, the respondent's counsel indicated that those photographs would be put in evidence through the respondent.

12 During the course of the cross-examination of M, counsel for the respondent paused to obtain instructions and then put to M the suggestion that she had not objected to the massaging of her breasts. It was also put to her, and she agreed, that, after the respondent had sucked her nipples and began oral sex, she said nothing. She agreed with a suggestion that, around that time, the respondent asked her if she wanted intercourse and that she asked him if he was still with his partner.

13 It was obvious to the jury that the two women claimed to have been assaulted by the respondent in the course of his provision of massage therapy services to them at his rooms in Wembley. It was also obvious that he did not contest that he was the person to whom they were referring. That was plain from his counsel's opening statement and from the form that the cross-examination took. There was no suggestion, and nor could there have been in the circumstances, that identification of the respondent was in issue.

14 Notwithstanding this, at the close of the State case counsel for the respondent made a no case submission. He submitted that there was no case for the respondent to answer because there had been no identification evidence in relation to him. He said that the jury could not convict in those circumstances.

15 The prosecutor responded with submissions to the effect that identification had never been in issue and that it was obvious that it was the respondent to whom the two complainants were referring when regard was had to their evidence. He also submitted that it was obvious from the respondent's counsel's opening statement, and from the cross-examination, that identification was not in issue.

16 The trial judge offered the State the opportunity to make an application to re-open its case. Surprisingly, in the circumstances, this invitation was declined. The trial judge then gave his judgment in respect of the no case submission. He found that, because the respondent had at no time been physically identified by either complainant as the man in the dock, the evidence was incapable of sustaining verdicts of guilty on any of the charges on the indictment. He consequently entered verdicts of not guilty in relation to each of the seven counts.

17 There is only one ground of appeal. It is that the trial judge erred in law in entering verdicts of acquittal, by finding that there was no sufficient evidence of identification. The ground is supported by three particulars. These read as follows.

(i) Contrary to the decision of the learned trial judge there was abundant and more than sufficient evidence of identification:

(a) there was recognition evidence which was positively and repeatedly confirmed in lengthy cross examination from the complainant [N].

(b) there was recognition evidence which was positively and repeatedly confirmed in lengthy cross examination from the complainant [M].

(ii) The learned trial judge erred in misunderstanding recognition evidence.

(iii) The learned trial judge erred in finding without qualification that questions of counsel do not constitute evidence.

18 The appellant has sought leave to add a further particular, as follows:

(iv) The learned trial judge erred in not taking into account admissions of identification made by counsel for the respondent in opening.

19 The amendment arises out of discussion with the then coram of the Court of Appeal when the appeal first came on for hearing on 8 October 2007. Both parties have since taken the opportunity to lodge additional submissions in respect of it. There is no relevant prejudice to the respondent. Nor does he object to the amendment. I would consequently give the appellant leave to make the amendment.

20 It is common cause that the question to be answered on a no case submission is whether, on the evidence as it stands, the defendant could lawfully be convicted: May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654, 658.

21 In my opinion, on the evidence as it stood at the conclusion of the State case, the respondent could plainly have been lawfully convicted. There was no dispute that it was open to the jury to believe the evidence given by the two complainants. Nor is there any dispute that, if believed, that evidence was capable of establishing the commission of each of the offences charged. The only issue was whether the evidence was capable of establishing that the person who committed the offences was the respondent.

22 It seems to me to be plain that the evidence as it stood was capable of establishing that fact. The inference was overwhelming that he was the person to whom the two complainants had referred. Both knew him well, having been to his rooms on a number of occasions. There was nothing to suggest that the police might have arrested and charged the wrong man. I have said that the respondent was present in the dock when his counsel made his opening address. He was also present when his counsel cross-examined the complainants. There was never any suggestion that he was not the person to whom they were referring.

23 There was some debate whether or not propositions put by counsel to a witness can amount to evidence. The answer is plain. They are only evidence to the extent that what is put is adopted as correct by the witness. When that happens the adopted proposition becomes part of the evidence of the witness. It does not become the evidence of the cross-examining counsel's client. But that is not the point. The point is that a jury can draw inferences from the conduct of the case by an accused's counsel, so long as due regard is had to the requirement of fairness and the possibility of human error: R v Robinson [1977] Qd R 387, 394; R v Baring [2005] SASC 262; (2005) 92 SASR 117 [70]; R v MAP [2006] QCA 220 [57], [58].

24 It may be true, as Vanstone J said in Police v Eiffe [2007] SASC 178; (2007) 98 SASR 79, that questions put in cross-examination cannot amount to admissions by the defendant as to his presence and participation in the incident, or as evidence of facts in issue, but that seems to me to be of no assistance to the respondent. Evidence was given of his presence and participation, and of the fact that he is well-known to each complainant. The only gap said to exist in the evidence is that neither pointed him out in the dock as the person to whom they were referring. In those circumstances the jury was entitled to infer, from his failure to challenge the seemingly obvious, and from his counsel's opening statement and cross-examination, made in his presence, that he was in fact the person to whom the complainants were referring. No other

reasonable inference was open. There is no unfairness in drawing that inference and nor did the conduct of the appellant's counsel raise any sensible possibility of human error. I should add, in this respect, that it is established that, subject to certain qualifications (none of which applies here) parties are bound by the conduct of their counsel: Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 [9]. The respondent's counsel had plainly chosen, for obvious reasons, not to make identification an issue.

25 This conclusion is sufficient to justify setting aside the judgment of acquittal entered by the trial judge. It is unnecessary for me to consider whether what was said in opening constituted formal admissions for the purposes of s 32 of the Evidence Act 1906 (WA). That section provides that an accused person, either personally or by his counsel or solicitor in his presence, may admit on his trial any fact alleged or sought to be proved against him, and such admission shall be sufficient proof of the fact without other evidence. The section does not prescribe any procedure for making statutory admissions but the cases reveal that is desirable that the admission be made in specific terms: see, for example, R v Lewis (1971) 55 Cr App R 386; and that it be made in such a way that a clear record is made of its terms: R v Lennard [1973] 1 WLR 483, 486. J D Heydon, Cross on Evidence (7th Aust ed, 2004) suggests [3180] that 'an admission must be made formally or deliberately, and not by conduct or casually in the course of sworn evidence or in an unsworn statement'. The author refers, in that respect, to L H Hoffman, The South African Law of Evidence (2nd ed, 1970) 304.

26 While it is, as I have said, unnecessary to decide this question (and I do not do so), it seems to me that, in the case of N at least, it is doubtful whether what was said by counsel for the respondent amounted to an admission that the respondent was present at the relevant time.

27 Whatever may be the position in that respect, or as regards admissions said to have been made in respect of M, for the reasons that I have given, I would allow the appeal, and set aside the verdict of acquittal and order a new trial pursuant to the powers given to this court by s 33 of the Criminal Appeals Act 2004 (WA).

28 PULLIN JA: I agree with the President save that I do wish to express a concluded view about s 32 of the Evidence Act 1906 (WA). My observations relate in particular to counts 2 to 7 which related to the complainant M. Each of these charges were read to the jury. They alleged various kinds of sexual activity involving M without her consent.

29 Counsel for the prosecution related what the evidence would be, after the judge said to the jury that counsel for the prosecution would open the case to, 'Explain the case that the State will be attempting to prove against the accused'. The prosecutor said in opening what the evidence of the complainant M would be. There was a reference to the fact that M saw, 'Mr Wood', in 2004.

30 The prosecutor then described in detail to the jury what the complainant M said that 'Mr Wood' did. The judge then informed the jury that he would give the defence an opportunity to make an opening statement and he said, 'I will be asking Mr Stubbs whether his client wishes to make an opening statement through him'. The judge said, 'Mr Stubbs, do you wish to make an opening statement on behalf of the accused at this stage?' Counsel for the accused then said:

The position there is that at the end of the day the defendant does not say those incidents didn't happen. What the defendant says is, as my friend said in his opening, Ms [M] was asked if she wanted a sensual massage, a choice between a sensual and a relaxation massage. She said she wanted a sensual massage.

Knew during the course of the proceedings, so to speak, what was happening and at no time did she say or do anything which would lead to anything other than belief on the part of Mr Wood that there was consent.

32 This statement was made by counsel on behalf of the accused pursuant to s 143(2) of the Criminal Procedure Act 2004 (WA) which reads:

Whether or not an accused intends to give or adduce evidence, the accused is entitled to give an opening address to the court about the accused's case.

33 It is plain that in criminal trials parties can limit issues sometimes by formal admission and sometimes by the way the case is conducted. An opening statement by counsel provides an opportunity for the accused to make admissions pursuant to s 32 of the Evidence Act. Section 32 of the Evidence Act is a provision which is said to have altered the common law which prevented an accused person from making admissions which would save the prosecution the trouble of leading evidence. See the discussion in Cross On Evidence (7th Aust ed, 2004) [3175].

34 In the United Kingdom there is also a statutory provision allowing proof of facts by formal admission, see s 10 of the Criminal Justice Act 1967 (UK). That section requires an admission to be made in writing and

signed by designated individuals if not made in court. If the admission is made during proceedings in court then the combination of s 10 and r 37.4 of the Criminal Procedure Rules 2005 (UK) impose an obligation on the court to cause any admission to be written down and then signed by or on behalf of the party making the admission.

35 There are no such requirements for admissions to be reduced to writing in Western Australia. There can be no doubt that counsel appearing for a party should carefully consider what they say when exercising the right conferred by s 143(2) of the Criminal Procedure Act. They should take care because what is said may well amount to an admission pursuant to s 32 of the Evidence Act.

36 Authorities cautioning that admissions, which can be made in many ways, 'Should appear clearly', on the record are undoubtedly correct. See for example R v Lennard [1973] 1 WLR 483. In this case the admission does appear clearly on the record. It is clear beyond question that counsel on behalf of the accused was, in relation to counts 2 to 7, admitting all of the allegations about the accused having engaged in the conduct referred to in those counts. He made it clear that the only issue was the issue of consent.

37 By admitting that the accused engaged in the conduct referred to in the counts in the indictment, counsel admitted on behalf of the accused that the accused person was the person who carried out the activities alleged. There could be no doubt at all about this. Counsel announced that he appeared for the accused and having referred to him as 'Mr Wood', admitted and deliberately admitted that the accused, Mr Wood, was the person who had committed the acts alleged against him.

38 The accused was bound by his counsel's conduct. See R v Birks (1990) 19 NSWLR 677 and Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 [9]. The trial judge therefore erred and the order that he made dismissing the charges should be set aside.

39 MILLER JA: I agree that the appeal should be allowed and a retrial ordered for the reasons given by President Steytler.