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[2005] WASCA 233
Court of Appeal (WA)
2005-12-02
Wheeler JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : "VIM" -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 233
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Appeal - Criminal law and procedure - Joinder of charges of sexual offences against two female complainants - Offences against children by stepfather - Severance - Application for separate trials - Whether similar fact or propensity evidence - Whether evidence in relation to offences against one complainant admissible in relation to offences against other
Appeal - Criminal law and procedure - Application for separate trials - Whether prejudicial effect of similar fact or propensity evidence likely to outweigh its probative value - Principles applying to determination of admissibility of propensity evidence and joint trial of multiple charges of offences against two complainants
Appeal - Criminal law and procedure - Convictions of sexual offences - Whether verdicts inconsistent with verdicts of acquittal
Appeal - Criminal law and procedure - Jury - After third day of trial juror advised she was acquainted with son of accused in acrimonious circumstances - Juror discharged - Whether reasonable perception of bias of other jurors - Whether miscarriage of justice
Criminal law and procedure - State appeal against sentence - Aggregate sentence of 6 years' imprisonment for 31 separate sexual offences against two stepdaughters over eight years - Need for general deterrence - Whether undue weight on factors personal to offender - Whether sentences manifestly inadequate - Whether overall sentence reflected overall criminality
Evidence Act 1906 (WA), s 31A
Bell v The Queen [1982] Qd R 216
BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275
Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427
David Syme & Co Ltd v Swinburne [1909] HCA 92; (1909) 10 CLR 43
Duncan v The Queen (1983) 47 ALR 746
Eastough v The Queen, unreported; CCA SCt of WA; Library No 980108; 12 March 1998
Fairclough v The Queen (1995) 12 WAR 103
Green v The Queen, unreported; CCA SCt of WA; Library No 970052; 20 February 1997
Hamilton v The Queen, unreported; CCA SCt of WA; Library No 970082; 4 March 1997
House v The King [1936] HCA 40; (1936) 55 CLR 499
Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1
Phillips v The Queen [2005] HCA Trans 455
R v Boyle (1987) 34 A Crim R 202
R v Bright [2000] NSWCCA 258; (2000) 114 A Crim R 466
R v Connell (No 1) (1992) 8 WAR 518
R v Correia (1996) 15 WAR 95
R v Cranston [1988] 1 Qd R 159
R v Demirok [1976] VicRp 19; [1976] VR 244
R v Gibb & McKenzie [1983] VicRp 78; [1983] 2 VR 155
R v Glennon [1992] HCA 16; (1992) 173 CLR 592
R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82
R v Melville [2003] WASCA 124; (2003) 27 WAR 224
R v Schmahl [1965] VicRp 95; [1965] VR 745
R v Wedd [2000] WASCA 273; (2000) 115 A Crim R 205
S v The Queen [1989] HCA 66; (1989) 168 CLR 266
Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319
Sloane v The Queen (2004) 35 SR (WA) 121
Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528
Trimboli v The Queen (1979) 21 SASR 577
Wagenaar v The Queen [2000] WASCA 325
Winning v The Queen [2002] WASCA 44
1 JUDGMENT OF THE COURT: This is another case which is importantly affected by changes to the relevant law between its inception and its resolution following trial.
2 The appellant was indicted on 44 counts of sexual abuse against two complainants, "L" (counts 1 - 31 inclusive) and "J" (counts 32 - 44 inclusive).
3 On 5 December 2003 an application for an order for separate trials was argued in the District Court before his Honour Judge H H Jackson DCJ.
4 On 16 January 2004 his Honour dismissed the application and gave reasons.
5 Following trial before her Honour Judge French and a jury between 18 January and 2 February 2005, the appellant was convicted in relation to the complainant L, of 10 counts of rape, contrary to s 325 of the Criminal Code 1913 (WA) ("the Code") (counts 1, 7, 8, 10, 13, 20, 23, 25, 26 and 29) and 10 counts of indecent assault contrary to s 328 of the Code (counts 6, 9, 12, 16, 17, 18, 19, 21, 22 and 24). He was convicted in relation to the complainant J of one count of rape (count 34), three counts of indecent assault, contrary to s 324B of the Code (counts 35, 38 and 40) and seven counts of sexual penetration without consent contrary to s 324D of the Code (counts 36, 37, 39, 41, 42, 43 and 44).
6 The jury returned verdicts of acquittal in relation to the complainant L on five counts of rape (counts 2, 5, 11, 14 and 27), three counts of indecent assault (counts 15, 28 and 30), one count of sexual penetration without consent and two counts of indecent dealing of a child under 14 years (counts 3 and 4). In relation to the complainant J, the jury returned verdicts of acquittal on two counts of indecent dealing with a child under 14 years (counts 32 and 33).
7 The verdicts of acquittal in respect of counts 3, 4 and 15 were returned by direction of her Honour.
8 On 16 March 2005 the appellant was sentenced to a total of 6 years' imprisonment with eligibility for parole backdated to 2 February 2005.
9 The appellant's application for leave to appeal against conviction was filed on 22 February 2005; the State's notice of appeal against sentence was filed on 30 March 2005.
10 There were six grounds of appeal against conviction. Grounds 3 (failure to consider whether reasonable possibility of concoction) and 5 (inadequate direction on evidence of appellant's good character) were subsequently abandoned. The remaining grounds are:
"GROUND ONE: SEPARATE TRIALS: WERE THERE ANY SIMILAR FACTS?
GROUND TWO: SEPARATE TRIALS - PREJUDICIAL EFFECT AND PROBATIVE VALUE
(i) have sufficient regard to, the degree of prejudice that would result from the joinder of the counts compared to the probative value of the similar fact evidence; and
(ii) failed to make any finding to this effect.
...
GROUND FOUR: SEPARATE TRIALS - DISSIMILAR COUNTS
...
GROUND SIX: INCONSISTENT VERDICTS
11 At the hearing the appellant sought and was granted leave to add a new ground 7:
"7. The Accused elected to continue the trial as he was not fully aware of the full circumstances surrounding the original foreperson's association with his son. This election resulted in a miscarriage of justice.
PARTICULARS
(A) The jury foreperson remained on the jury until the fourth day of trial when disclosed to the Court that she knew the Accused's son, [SM].
(b) The foreperson told the Court she had limited discussions with the other jurors.
(c) When the list of Prosecution witnesses was read to the Court the foreperson should have recognised the name of [JB] as she had had some association with her prior to the trial.
(d) The Accused chose to proceed with the trial on the basis that the foreperson was only an acquaintance.
(e) It was subsequently discovered that the son of the Accused had an association with the juror which was of an acrimonious and unpleasant nature and the Accused had an apprehension that the juror's antipathy toward his son may have operated to his prejudice over the four days until the juror was discharged."
12 The relevant provision in respect of joinder was at the time s 585 of the Code. In December 2003 and January 2004, that was in the following terms:
"Except as hereinafter stated, an indictment must charge one offence only, and not 2 or more offences:
Provided that when several distinct indictable offences form or are a part of a series of offences of the same or a similar character or when several distinct indictable offences are alleged to be constituted by the same acts or omissions, or by a series of acts done or omitted to be done in the prosecution of a single purpose, charges of such distinct offences may be joined in the same indictment against the same persons.
In any such case the several statements of the offences may be made in the same form as in other cases, without any allegation of connection between the offences.
But, if in any such case it appears to the court that the accused person is likely to be prejudiced by such joinder, the court may require the prosecutor to elect upon which of the several charges he will proceed, or may direct that the trial of the accused person upon each or any of the charges shall be had separately."
13 Section 585 of the Code was amended by the Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004 (WA) which came into operation on 1 January 2005. That relevantly restructured the provision and added the following subsections:
"(4) But, if charges are joined under subsection (2) and it appears to the court that the accused person is likely to be prejudiced by such joinder, the court may, in proceedings under s 611A, require the prosecutor to elect upon which of the several charges he will proceed, or may direct that the trial of the accused person upon each or any of the charges shall be had separately.
(5) A court may decide that any likelihood of the accused person being prejudiced by the joinder of charges of offences can be guarded against by a direction to the jury.
(a) irrespective of the nature of the offences charged; and
(b) even if evidence on one of the charges is inadmissible on another.
(6) In considering any likelihood of the accused person being prejudiced by the joinder of charges of offences of a sexual nature, a court must not have regard to the possibility that similar fact evidence, the probative value of which outweighs its potentially prejudicial effect, may be the result of collusion or suggestion.
(7) Despite anything in this section and any rule of law to the contrary, if charges of offences of a sexual nature are joined under subsection (2), it shall be presumed that those charges are triable together.
That presumption is not rebutted merely because evidence on one charge is inadmissible on another charge."
14 Section 585 of the Code, as amended from January 2005, was repealed by the Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA) (No 84 of 2004) and replaced by provisions of the Criminal Procedure Act 2004 (WA) ("CPA") which came into operation on 2 May 2005.
15 By cl 7 of Sch 1 of the CPA, an indictment may charge a person with two or more offences if they form or are part of a series of offences of the same or similar character; are alleged to arise substantially out of the same or closely related acts or omissions; or are alleged to arise from a series of acts or omissions done or omitted to be done in the prosecution of a single purpose, and may do so without alleging a connection between them (cl 7(3)).
16 By cl 9 of Sch 1, where an indictment contains two or more charges, they must be tried together unless a court orders otherwise under the CPA.
17 The general procedural provisions relating to separate trials are now to be found in s 133 CPA. They are relevantly:
"(1) The powers in this section may be exercised by a court on its own initiative or on an application by an accused and may be exercised before or during a trial.
(2) A court may amend or cancel an order made under this section.
(3) If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it contains 2 or more charges, the court may order -
(a) that the accused be tried separately on one or more of the charges_;_ and
(b) the prosecutor to tell the court the order in which the charges will be tried.
(4) ...
(5) In deciding whether to make an order under subsection (3) or (4) in respect of an indictment to be tried by a jury, it is open to a superior court -
(a) to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury;
(b) to so decide irrespective of the nature of the offence or offences charged_;_ and
(c) to so decide even if -
(i) the evidence on one of the charges is inadmissible on another_;_ or
(ii) the evidence against one of the accused is not admissible against another,
(6) In considering, for the purposes of this section, the likelihood of an accused being prejudiced in the trial by a jury of an indictment that contains 2 or more charges of a sexual nature, the court must not have regard to the possibility that similar fact evidence, the probative value of which outweighs its potentially prejudicial effect, may be the result of collusion or suggestion.
(7) If a superior court makes or refuses to make an order under subsection (3) or (4), the court must adjourn the trial to enable an appeal against the order or refusal to be commenced and concluded under the Criminal Appeals Act 2004 section 26."
18 For completeness, it is necessary to mention s 31A of the Evidence Act 1906 (WA) which came into operation on 1 January 2005:
"(1) In this section -
'propensity evidence' means -
(a) similar fact evidence or other evidence of the conduct of the accused person_;_ or
(b) evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
'relationship evidence' means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.
(2) Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -
(a) that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value_;_ and
(b) that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the ['acceptable'?] risk of an unfair trial.
(3) In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion."
19 It can thus be seen that the statutory law relating to joinder which applied at the time H H Jackson DCJ made his ruling was s 585 of the Code in what we will describe as its original form; the law which applied at the time of trial was s 585 in its amended form; the law which applies now is that contained in s 133 of the CPA and s 31A of the Evidence Act.
20 It was common ground before us that were the appeal against conviction to succeed and a retrial be ordered, any application for severance would fall to be decided according to the law as it currently stands. We accept that to be so. The legislative changes relating to the admissibility of propensity evidence, joinder of charges and severance, all go to matters of procedure, and:
"A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial. The principle is sometimes succinctly ... expressed by saying ... that no-one has a vested right in any form of procedure". (Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515, 521)
21 However, if that issue arises at all in this appeal, it will do so only in the context of the application of the proviso (s 30(4) Criminal Appeals Act 2004 (WA)). It is first necessary to consider whether or not the grounds of appeal have been made out and that is to be determined having regard to the law as it applied at the time the ruling was made.
22 In his ruling on 16 January 2004, H H Jackson DCJ began by outlining the submissions advanced by the parties. For the appellant it was argued that as neither sister could give evidence directly corroborative of the appellant's offending against the other, to permit the matters to go ahead in one trial would be to raise unacceptable prejudice against him which could not be cured by judicial direction to the jury. It was also submitted there was no sufficient basis for the admission of the other complainant's evidence on the ground that it was admissible as evidence of propensity or similar fact.
23 It was also submitted that admission of the evidence would raise the possibility of concoction given the relationship of the sisters and the proximity in time of their complaints to police.
24 It was further submitted that the nature of the alleged offending against each of the complaints raised nothing of an unusual or strikingly similar nature common to them both, either in particular isolated facts or with respect to the totality of things, such as would lead to a conclusion that it was inherently unlikely that the two complainants were not dealt with by the same person. Thus, it was argued that the commonality of facts failed to overcome the prejudice arising against the appellant by reason of any probative value they might have.
25 His Honour then turned to the substance of the Crown's submissions. That was, effectively, that the cumulative probative force of the areas of striking similarity in the evidence of each complainant satisfied the test that if accepted, it would permit no reasonable explanation other than the inculpation of the appellant.
26 These similarities were said to be that the appellant began by commenting on each complainant's physical changes at 12 or 13 years of age, namely with the onset of puberty and then to touching or fondling them sexually. Then it progressed by demanding by word or action that the complainant touch the appellant's penis and eventually came to vaginal penetration of each of them at home at night alone, followed by sexual activity at home either alone or sometimes with others in the house and also at other locations.
27 As his Honour put it, it was thus submitted to him that the pattern of offending included the gradual increase in seriousness from touching to penetration, combined with a similar nature of acts including the appellant requiring the complainants to perform fellatio on him, culminating in his ejaculation into their mouths, sexual intercourse in various positions both clothed and unclothed and kissing the complainants on the mouth. His Honour said the complainants were of similar ages at the commencement of these activities and on the culmination of it, both complainants left the family home as a result. The incidents are also alleged to have occurred under similar circumstances, such as while their mother was in the shower or out of the house, the appellant and the complainant were at home alone in the house or the offences occurred either at a place near their grandmother's home or at the appellant's place of work and at the Perry Lakes Stadium area. While there was a period of time when both complainants were allegedly being sexually abused, the appellant is said to have continued the abuse of the younger sister following the departure of the older from the family home.
28 His Honour opined that there was considerable force in the Crown's submission, although by itself those matters might not justify a refusal of the defence application. However, he pointed out that propensity and similar fact were not the only bases to the Crown's submissions. Additionally (and his Honour said, importantly) the Crown's submission was that the younger complainant J would be able to give evidence of the close relationship between the appellant and the older complainant and of witnessing him at least once in her bed with her and that each of the complainants could give evidence of a family meeting at which the appellant made admissions to his son, in the presence of his wife and both complainants, of having a sexual relationship with each of them and of receiving a letter of apology from him.
29 Even so, his Honour said, the evidence of the close relationship and the bed incident would not, in his view, of themselves support a single trial.
30 His Honour noted that as to the meeting and the letters, counsel for the appellant had said the fact of those would be admitted, although the extent of the admissions made at the meeting was limited and was the subject of dispute. Counsel argued that it would be possible at separate trials to limit the evidence of the other complainant to those questions of admissions concerning the complainant in the particular trial and to his letter to her.
31 As to that, his Honour said that "such an artificial situation" would mean the appellant need only explain one part of his admission, namely one of his letters at each trial, which would deprive the evidence of a very great part of its probative value. Indeed, he said, it would also be relevant to the separate issue of concoction which might be raised at a joint trial or even at separate trials. He said the Crown argued that concoction was, in the circumstances, not a real issue because to be relevant, it must be a reasonable possibility based upon some factual foundation, whereas the circumstances of the meeting, followed by the letters (neither of which was denied), together with other factors, rendered a concoction fanciful. The Crown submitted that although sisters, the complainants were, for significant periods, not living together and indeed that no motive for collusion either existed or had been suggested.
32 Senior counsel for the appellant conceded before his Honour that it was possible that allegations of concoction would be put to the two complainants as it had at the preliminary hearing.
33 His Honour said he did not consider the issue of concoction "critical" to his decision. He concluded (AB 69):
"In addition, at the level or [sic: of] practicality the Crown says the severance would in fact involve a significant increase in the length of the case. Additional emotional distress and embarrassment and considerable inconvenience to the complainant, [J], who currently resides in the USA and who would be required to give evidence and face the accused not once, but twice. In the end though the Crown accepts that, as I think it must, those latter issues are not conclusive.
In my view the issue of the meeting and of the letters is critical. To isolate the separate parts of the issues would be difficult to do and would entirely, in my view, mislead the witnesses [sic] or would be likely to do so and the jury. The cumulative weight of those matters and the propensity of the similar fact issues raised by the Crown, in my view, supported to only a minor degree by the other matters, however, requires that the application be dismissed. I thus decline the application."
34 The Crown's submissions before the Judge were in part that the evidence of the complainants was mutually admissible because it was "similar fact" evidence.
35 However, although his Honour thought that there was "considerable force" in that submission, he was of the view those matters in themselves "may not" justify a refusal of the application for severance. It is apparent, though, that it was the "cumulative weight" of the evidence in respect of the family meeting and the letters, together with the propensity and similar fact issues raised by the Crown, which led his Honour to dismiss the application.
36 The prosecution conceded before his Honour that there was no "strikingly similar" feature of the evidence. From the submission it is clear the Crown sought to rely upon the evidence as "propensity evidence" in the sense that it disclosed a similar course of conduct in respect of each girl and demonstrated an underlying unity or pattern.
37 The position of the Crown was explained this way (AB 50 - 51):
" ... if the accused concedes that he did sexually deal with both complainants after the age of 16 and says the only question is whether the two girls, who have been his children since they were aged 8 and 4, would consent to sexual activity with him, it seems to me there is now a far higher degree of probative value in the jury hearing the evidence of both girls because the question the jury are going to have to ask themselves is, 'Would a girl who has been in the position of a daughter to the accused since the age of 8 or 4 respectively - would that girl have consented to sexual activities with their stepfather after they turned the age of 16?'
The answer to that question in relation to one girl may be a very different answer than if you are aware of the fact that the accused is claiming that both girls, and it seems to me that because of that concession, if that's the way the trial is going to run, then there is now a much greater probative value in there being the evidence of both girls at the same trial; that is, we would say it is far less likely that two girls would consent to sexual activity with their stepfather than one.
Your Honour summarised really the Crown position well. The Crown doesn't say there is any one feature of the accused's conduct towards each of the girls that stands out as being so strikingly similar or bizarre as to justify hearing the two cases together. What we say is there was a course of conduct by the accused in relation to each girl and that course of conduct was similar and does constitute an underlying unity or pattern." (My emphasis).
38 As at January 2004, the law which applied to the severance of charges otherwise properly joined, on the basis of prejudice outweighing probative value, was that explained by the High Court in De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1; Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292; Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461.
39 In contrast to the position now under s 31A of the Evidence Act 1906 (WA) and s 133 of the CPA, the starting-point was that unless the evidence in respect of each offence charged on the indictment was admissible in relation to the other offences charged, separate trials should be ordered (Hoch (supra) per Mason CJ, Wilson and Gaudron JJ at 294, citing De Jesus (supra)).
40 The criterion of the admissibility of the evidence was the strength of its probative value, that strength lying in the fact that it revealed "striking similarities", "unusual features", "underlying unity", "system" or "pattern" such that it raised, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution (ibid, 294 - 5). Where the accused disputed the offences upon which the subject evidence was said to bear, that evidence was relevant to prove the commission of the disputed acts. Their Honours continued (Hoch at 295):
"Certainly that is the thrust of its probative value. That value lies in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred. So much is clear from the well-known passage in the speech of Lord Wilberforce in Boardman [1975] AC 421 at 444:
'This probative force is derived, if at all, from the circumstance that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence.'
Similar fact evidence which does not raise a question of improbability lacks the requisite probative value that renders it admissible."
41 The High Court revisited the admissibility of propensity in Pfennig, noting the contemporary position has its origins in the statements of principles by Lord Herschell LC in Makin v Attorney-General for New South Wales [1894] AC 57 at 65. Those principles were that first, the prosecution cannot adduce evidence tending to show the accused has been guilty of criminal acts other than those charged, for the purpose of leading to the conclusion that he is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. As their Honours observed, that principle has since been described as "fundamental" in the law of evidence. The second principle was that the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury; and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged were designed or accidental, or to rebut a defence which would otherwise be open to the accused.
42 In reviewing the development of the law in England, Mason CJ, Deane and Dawson JJ noted that in R v Boardman [1975] AC 421, the House of Lords adopted as the guiding principle to determine the admissibility of such evidence the test whether the prejudice to the accused was outweighed by the probative force of the evidence. In Boardman, the House held the trial Judge was entitled to decide that the probative force of the similar fact evidence (as it was in that case) outweighed its prejudicial effect because there was a striking similarity or underlying unity between the similar fact evidence and the evidence of the acts charged. Their Honours continued (at 478):
"Lord Cross of Chelsea, who reflected the majority view in Boardman, observed that the reason for the general rule of exclusion in relation to propensity evidence is (42):
'not that the law regards such evidence as inherently irrelevant but that it is believed that if it were generally admitted jurors would in many cases think that it was more relevant than it was so that ... its prejudicial effect would outweigh its probative value. Circumstances, however, may arise in which such evidence is so very relevant that to exclude it would be an affront to common sense.'
'The question must always be whether the similar fact evidence taken together with the other evidence would do no more than raise or strengthen a suspicion that the accused committed the offence with which he is charged or would point so strongly to his guilt that only an ultra-cautious jury, if they accepted it as true, would acquit in face of it. In the end - although the admissibility of such evidence is a question of law, not of discretion - the question as I see it must be one of degree.'"
43 Their Honours next noted that subsequently, in Director of Public Prosecutions v P [1991] 2 AC 447, the House of Lords rejected the proposition that "striking similarity" was an essential prerequisite of admissibility of similar fact evidence in all cases, holding that the essential feature of the evidence to be admitted is that its probative force is sufficiently great to make it just to admit it, despite its prejudicial effect.
44 Their Honours referred to the speech of Lord Mackay of Clashfern LC (with whom the other Law Lords agreed) rejecting the noting that "striking similarity" is an essential element in every case in allowing evidence of an offence against one victim to be heard in connection with an allegation against another. At 479 they set out the following passages from the Lord Chancellor's speech:
'[T]he essential feature of evidence which is to be admitted is that its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime. Such probative force may be derived from striking similarities in the evidence about the manner in which the crime was committed ... But restricting the circumstances in which there is sufficient probative force to overcome prejudice of evidence relating to another crime to cases in which there is some striking similarity between them is to restrict the operation of the principle in a way which gives too much effect to a particular manner of stating it and is not justified in principle.'
'Whether the evidence has sufficient probative value to outweigh its prejudicial effect must in each case be a question of degree.'
The Lord Chancellor regarded the relationship between the evidence relating to one victim and the evidence relating to another victim as critical. In this respect, his Lordship said:
'This relationship, from which support is derived, may take many forms and while these forms may include "striking similarity" in the manner in which the crime is committed, consisting of unusual characteristics in its execution the necessary relationship is by no means confined to such circumstances. Relationships in time and circumstances other than these may well be important relationships in this connexion. Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connexion, obviously something in the nature of what has been called in the course of the argument a signature or other special feature will be necessary. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle'." (Citations omitted)
45 In his judgment, Toohey J (at 506) referred to the passage from the judgment of Mason CJ, Wilson and Gaudron JJ in Hoch at 294 to the effect that the basis for the admission of such evidence lies in its possessing particular probative value by reason that it reveals a pattern of activity such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused person in the offence charged. His Honour referred to the passage from their Honours' judgment in which they pointed out that the strength of the probative force of the evidence lies in the fact that it reveals "striking similarities", "unusual features", "underlying unity", "system" or "pattern" such that it raises as a matter of common sense and experience the objective improbability of some event having occurred other than as alleged by the prosecution. Toohey J concluded that although that passage refers to "striking similarities" and the like, the emphasis of it is on the relationship between the evidence and improbability which follows from that relationship. As his Honour said, although the language used is not identical with that in Director of Public Prosecutions v P, there is a consistency of approach in the two judgments.
"The probative force of the evidence ... is the basis for its admissibility; nevertheless, the trial judge may exclude it. Evidence that an accused has committed other relevant offences must inevitably have a prejudicial effect. But, in the language of Director of Public Prosecutions v P, it may nevertheless be 'just' to admit the evidence. The reference to just aptly conveys the notion that it is not only the interests of the accused that are involved. The legitimate interests of the Crown and of the community cannot be overlooked ... "
47 Apropos the passage from Hoch at 294 - 5, the majority in Pfennig pointed out (at 482) that it should not be understood as asserting that "striking similarities" or the other characteristics mentioned in relation to propensity or similar fact evidence are essential prerequisites of its admissibility in every case. They noted that where the propensity or similar fact evidence is in dispute, it is still relevant to prove the commission of the acts charged, not only that it was the accused who committed them. The probative value of the evidence lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred. At 483, their Honours noted that the discussion in Hoch was expressed in terms of evidence of similar facts rather than probative evidence, because the evidence in that case lent itself to that classification. They noted that there has been a tendency to treat evidence of similar facts, past criminal conduct and propensity as if they each raise the same considerations in terms of admission into evidence:
"The difficulty is that their probative value varies not only as between themselves but also in relation to the circumstances of particular cases. Thus, evidence of mere propensity, like evidence of a general criminal disposition having no identifiable hallmark, lacks cogency yet is prejudicial. On the other hand, evidence of a particular distinctive propensity demonstrated by acts constituting particular manifestations or exemplifications of it will have greater cogency, so long as it has some specific connection with or relation to the issues for decision in the subject case. That evidence, as has been said, will be admissible only if its probative value exceeds its prejudicial effect."
48 Against this background of authority, as at January 2004, it is immediately apparent that particular (a) to ground 1 does not adequately state the law even as it was then, and cannot be sustained. This is not a case in which "striking similarity" was said to be the sole nor even the principal basis of admissibility and was only one of the reasons for his Honour refusing the defence application. The submissions before the primary Judge do appear to have fallen in some respects into confusing the characterisation of the evidence. Nonetheless, the essential submission by the Crown was that the evidence possessed such probative force that it revealed a pattern of activity bearing no reasonable explanation other than the guilt of the appellant.
49 In our view, the real nature of the subject evidence was that it demonstrated an underlying unity, system or pattern in the appellant's conduct with respect to each of the complainants as to raise, as a matter of common sense and experience, the objective improbability of any particular offence charged, as having occurred other than as alleged by the prosecution - that is to say, that it tended to prove the commission of the offence charged. This was evidence of a particular distinctive propensity of the appellant, demonstrated by acts constituting particular manifestations or exemplifications of it, having specific connection with the issues for decision in this case. To put it in the terms of the judgment of Mason CJ, Deane and Dawson JJ in Pfennig at 482, the probative value of the evidence lay in the improbability of both complainants giving accounts of offences committed upon them by the appellant having that degree of similarity, underlying unity, system or pattern unless the offences occurred - or unless the evidence was concocted. Ground 3, which went to the possibility of concoction, was abandoned and so it is not necessary to deal with that issue in respect of ground 1.
50 In broad outline, the prosecution case was as follows. Where a particular incident is one charged on the indictment, we have indicated the count number in brackets.
51 L and J are sisters. L is the elder and at the date of trial was 37 years old. She has three children and works in Perth. J at the time of trial was 33 years of age and, together with her partner, has a business in Europe.
52 Their parents were married, but split up about 1975, when the girls were aged about 8 and 3 respectively. After the breakdown of their parents' marriage, the complainants remained living with their mother in Perth.
53 About six months after the separation, their mother began to keep company with the appellant. Almost from the beginning, he became a part of the complainants' lives. Within a reasonably short time, they and their mother moved into a unit with him. They remained living there until about 1977, when they moved interstate as a family.
54 From the time of their parents' separation, neither complainant recalls spending much time with their natural father and such as there was diminished when they moved interstate. It was while they were interstate on that occasion that the appellant cemented his place in the girls' lives, to the extent that by that time they were referring to him as their father. He treated them as such and made them feel special. They wanted his attention and affection. He was the dominant male figure in their lives and, to all intents and purposes, was their father. He was also the sole breadwinner for the family and remained so for essentially 10 years or so. The complainants wanted to do all they could to keep him in their lives. This was something that was reinforced in the home by their mother.
55 During that period, L began to go through puberty. There were times the appellant made her feel special and important, but others when he would tease her. This confused her. He would tease her about her body, saying she would not need to wear a bra for a while, or that she was pear-shaped. It was the State's case that this was the context in which the appellant began to sexualise his relationship with her. His comments were later followed by him touching her sexually and having her touch him. On one occasion, the appellant had been working out with weights in the back shed. He was sitting on a bench and took L's hand and put it on his crotch on the outside of his clothing and held it there. She said this frightened her and after he released her hand, she picked up the family dog and ran with it into the house into her bedroom. She recalled this because she got into trouble for bringing the dog into the house.
56 Not long afterwards, when the appellant was driving L to or from school, he again took her hand and put it onto his crotch area on the outside of his clothing. He had an erection. L was able to say this because she remembers saying to him at the time it was banana-shaped.
57 The next incident she recalled occurred in a rabbit hutch they had on the side of the house. She was in the hutch when the appellant came up behind her and grabbed her by the hips and pushed himself against her. She could feel his penis against her.
58 On another occasion, she was sitting, wearing her nightdress, on a desk in a room in which the appellant would do some work. The appellant pulled her nightie up, opened her legs and pressed himself against her. She recalled that while this was happening, she could hear water running in the shower and knew her mother was taking a shower.
59 On the Crown case, that was a significant feature because the pattern of the appellant having sexual contact with L whilst her mother was showering became a regular part of L's life.
60 The appellant continued to touch L sexually during the time the family lived there and in that way, on the State case, he began to groom her to get her used to that type of sexual touching, so that she would think it normal; to make it so that in her mind it was part and parcel of a loving father/daughter relationship and so that she would accept it without question and in fact eventually to anticipate it.
61 The family returned to Western Australia at the beginning of 1979. L was attending a primary school in year 7 and turned 12 that year. They lived at a house in Subiaco. It was there the appellant first had sexual intercourse with L.
62 The family lived at that house from 1979 until the beginning of 1982; L was aged between 12 and 14 years. They had some extensions put onto the house, including a swimming pool and sunroom. L said it was in the sunroom that the first act of sexual intercourse with the appellant occurred (#1: rape, under s 325 Code). It was night-time and she was sitting on a single cane chair. She said the appellant was kneeling in front of her, between her legs. He put Vaseline on his penis and then pushed himself inside her. It hurt. She cried out, but he told her to be quiet because her sister was asleep. She said she recalled hugging the appellant and then going to the bathroom where she brushed her teeth and then went to bed. She said that in the following days she regularly asked the appellant if he loved her and he told her each time that he did.
63 The evidence was that in the years that followed, the appellant would regularly touch or have sexual intercourse with L, or have her touch him. He would come into her room or seek her out during the day when her mother was otherwise engaged in household duties or was having a shower. He would also create opportunities for him and L to be alone, taking her for drives or to the shop. During this time, he would often say things to her such as she was his "special little girl"; that he loved her; it was not the same as with her mother; it was all right; she was not his real daughter and he was not her real father; that she was his favourite, and things of that sort.
64 The Crown case was that the young and impressionable girl had been trained in that way to accept the love of the appellant in a sexual sense and so it was that she became infatuated with him to the extent that she would seek him out, she would sit on his lap and she would want to go everywhere with him. She would often lie in bed at night listening, or stand outside her mother's and the appellant's bedroom listening, fearing that they were having sexual intercourse. Her evidence about that was confirmed by both her sister J and her mother. They testified that they would see L outside the parents' bedroom and L would readily tell them that she did not want her mother having sex with the appellant because she didn't want them to have other children because, if they did, the appellant would not love her any more.
65 The Crown case was that the abuse was so regular and occurred over such a lengthy period of time (until L was about 18 or 19) that it was difficult for her to recall specific details of each event. Those which she could specifically identify were the subject of the charges on the indictment.
66 L described an act of sexual intercourse with the appellant in the back shed of the Subiaco house (#2: rape). She was standing in the shed with her hands on the weight bench with the appellant standing behind her and penetrating her from that position. She said that on that occasion she had been wearing tracksuit pants and a skirt over the top that had been part of her primary school uniform.
67 She described another occasion when she was standing in the sunroom of the house with her mother and the appellant (#3: indecent dealing with child under 14, s 183 Code). Her mother had just come back from cooking lessons and was showing them a pecan pie that she had made. L recalls that semen was running down her leg onto the floor. She could not recall precisely how it came to be there, but described her apprehension that they would be found out.
68 She also described an act of digital penetration in the lounge room of the house, when she was sitting watching television and working on a tapestry that her grandmother had given her (#4: indecent dealing with child under 14). The appellant was sitting next to her and they had a blanket over their laps. The mother and sister were in the room with them. The appellant put his hand under the blanket, between her legs and digitally penetrated her vagina. She says she reacted by pushing her legs together, trying to stop him from having access.
69 The appellant and the complainants' mother were married on 10 October 1981. L was very upset about this. Her distress was such that she begged her mother not to marry the appellant. Her distress was evident to everyone, particularly on the wedding day when she cried and was apparently openly resentful.
70 An aunt had travelled from Europe to attend the wedding. L recalled that she was with the appellant in the swimming pool at the back of the house and whilst they were having sexual intercourse the aunt came around the side of the house. L became frightened that the aunt would see something, but the appellant reacted quickly and began to splash her in a playful way, giving the impression they were engaging in some sort of game (#5: rape).
71 L also described an act of oral sex which occurred in the pantry of this house, when the appellant pushed her head down to his penis and held it there (#6: indecent assault, s 328 Code). She recalled him ejaculating into her mouth and him holding her head until she swallowed the semen. Although he often had her perform oral sex on him, that was the only occasion on which he made her swallow the semen. She said that before or around this happening she had seen her mother out of the window in the pantry, in the backyard.
72 She described an incident in the bathroom whilst she was having a shower (#7: rape). It was an old-fashioned bathroom, with the shower actually over the bath itself. She said that the appellant came in and had sexual intercourse with her from behind, standing by the side of the bath whilst she held onto the taps in the wall.
73 One occasion L described whilst they lived in Subiaco was when she went for a drive with the appellant to a dirt track on the City Beach side of Perry Lakes, where the appellant had sexual intercourse with her on the front seat of the car. She was sitting on top of him at the time (#8: rape).
74 Another incident whilst at the Subiaco house was one when the appellant penetrated her using a cucumber (#9: indecent assault). It was night-time and she recalled that he pushed a cucumber in and out of her; she tried to push his hand away to stop him, but he would not. She recalled the cucumber was very cold and at some point the appellant said words to the effect that if she liked it, they could get a dildo.
75 A short time after the appellant and the complainants' mother married, the family moved to a house in another Perth suburb, set amongst bushland. At this time, L was in year 10.
76 The sexual abuse continued whilst the family lived in this location. It included an act of sexual intercourse which occurred in the cellar of the house (#10: rape). L said she recalled being in the cellar, bent over, with her hands on her knees as the appellant had intercourse with her whilst he stood behind her. While this was happening, she could again hear water running in the en suite bathroom of her mother's bedroom which was just adjacent to that area. When the water was turned off, the two of them panicked and the appellant left quickly via a side door into the carport, whilst the complainant went in the opposite direction into the kitchen.
77 On one occasion, the appellant asked L to meet him outside the house where he had gone to practise his Tai Chi. It was night-time and he told her to join him in about 20 minutes. She obeyed and when she went to him they had sexual intercourse in bushland near the house (#11: rape).
78 There was a further occasion on which he took L to a bottle shop which was near the house. Again, it was night-time and in a delivery lane adjacent to the bottle shop the appellant had L perform oral sex on him (#12: indecent assault). She recalled that he ejaculated into her mouth and she spat the semen onto the ground. She said it was very dark and they had bought a bottle of Black Bottle brandy and a packet of Cheezels from the bottle shop.
79 There was a workshop area in this house. It was in that area where the family dog slept of a night.
80 L recalled the appellant having sexual intercourse with her in the workshop (#13: rape). She was standing with her hands on her knees whilst he had sexual intercourse with her from behind. She recalled the dog licking her legs and kicking the dog to one side whilst this was occurring.
81 It was at that house that L celebrated her 16th birthday. She was allowed to have girlfriends over for a sleepover. Her room was set up so they could all sleep in there. Her bedroom was adjacent to a courtyard. It was a large house and apparently in a U-shape. It was quicker to get to the kitchen from her room by crossing the courtyard than by going through the house. She said she recalled doing so and whilst she was in the courtyard she encountered the appellant. He had sexual intercourse with her (#14: rape). She recalled standing with her hands on the window frame of her bedroom looking into the room and watching her friends whist the appellant had sexual intercourse with her from behind. She said she was very stressed. About this and other instances of obviously risky behaviour on the part of the appellant, she said that it seemed to stimulate him.
82 Whilst they were living in that house, it was a long trip for L to attend school. Usually, she took the train and bus, but there were occasions when the appellant would be coming into the city and he would drive her. L recalled that on one occasion he took her to a motel near the city. At the time, she was dressed in her school uniform. He left her in the car whilst he went to the reception desk and checked in. When he returned, they went into the motel room and she stripped and got into bed. The appellant showed her a dildo. In her opening to the jury, the State prosecutor said that L recalled that the appellant pushed the dildo into her, however in her evidence she said she could not remember him using it on her, although she did recall he washed it afterwards. She said, "I would assume we had sex", although she could not remember the actual act. She said once he had washed the dildo, he put it in a yellow envelope and placed that in his briefcase. The two of them showered together before they left the motel. She was late for school that morning and that caused a problem (#15: indecent assault by penetrating vagina with dildo).
83 The family left that house just prior to the birth of their brother, "S", in October 1983. They moved into a unit in another Perth suburb and stayed there for approximately 12 months.
84 Notwithstanding the birth of his son, the appellant continued to sexually abuse L and, indeed, her evidence was that whilst living in the unit the amount of sexual contact increased. At this stage, she was 16 years old. The Crown case was that, notwithstanding her age, the appellant's corruption of L was so complete by this time that on the one hand she saw him as her boyfriend, although she still called him "Dad" and interacted with him as one would a father. The appellant treated her in all respects, except for the sexual one, as a father.
85 One specific event she recalled was when the appellant ejaculated into her mouth while she performed oral sex on him in the powder room of the unit (#16: indecent assault). She recalled that she spat the semen into a basin afterwards. She was wearing her summer school uniform at the time.
86 She also described an incident in the kitchen when they were both standing. She said she gave him oral sex and he showed her how to touch his testicles. He put her hand down there. It seemed to "turn him on". He ejaculated into her mouth and she spat out in the kitchen sink (#21: indecent assault).
87 L referred to another occasion in the double carport. The appellant was in the car. Again, she was in her school uniform. She was standing outside the car and gave him oral sex while he was seated in it (#19: indecent assault). He did not ejaculate and she said she recalled him then having intercourse with her from behind, with her hands on the bonnet of the car (#20: rape). He ejaculated and the semen dribbled onto her school stockings so that she had to go inside and change and wash them.
88 She next described an occasion when the two of them were sitting in a love seat on the balcony of the unit. The appellant was wearing white moleskins. He unzipped them and began to masturbate. He then took her hand and she worked on him until he had an erection (#17: indecent assault), then she gave him oral sex (#18: indecent assault). He ejaculated and she spat out in the bathroom.
89 L described an occasion when she was sitting on the end of her bed. The appellant came in wearing a black silk dressing-gown, which he opened and then pulled down his underpants. He stood in front of her and she gave him oral sex (#22: indecent assault). He then pushed her back on the bed and they had sexual intercourse (#28: rape). That incident particularly upset her because she was at the time supposed to be looking after her baby brother and he began crying whilst they were doing this and she could not attend to him.
90 In late 1984, when L was 17 years old, the family moved from the Perth unit to another coastal town in the south of Western Australia. As a result of the move, L did not finish year 12. At first, the family lived in a small two-bedroom duplex while a house was being built for them. They moved into the house about August 1985.
91 The appellant established himself in a financial advising business and L went to work for him.
92 During the time L worked for the appellant, he would occasionally take her with him to see clients on their farms. This happened more often in the beginning whilst he was establishing the business. It was L's evidence that during some of these excursions, the appellant would take the opportunity to have sexual contact with her. He also continued to do so in the office.
93 She described one occasion on which he parked his grey Ford Fairlane by the side of the road. She straddled him and they had intercourse in the car. He ejaculated inside her and she ran into the bush, where she inserted a tampon. Her evidence was that she would do that from time to time to conceal evidence of their activity (#24: indecent dealing (oral sex); #25: rape).
94 L described another occasion near some salt lakes, where she again had sexual intercourse with the appellant whilst sitting astride him in the driver's seat (#26: rape). Before they went out on that occasion, he told her to be sure to wear a skirt to work.
95 Shortly after they moved to that town, L met the man who later became her husband. That was in January 1985. She was married to him 18 months later. There was still sexual contact with the appellant until then.
96 One occasion described by L occurred at Eagle Bay at Easter, which was about April, in 1985. She was with him in his brother's BMW sedan. He took her driving and parked by a beach. She straddled him in the front seat of the car (#27: rape). The appellant did not ejaculate during intercourse and he then moved her off him and guided her onto the handle of the handbrake which was in the centre console and manoeuvred her so that it penetrated her vagina (#28: indecent assault). She said that was painful and she managed to pull away.
97 The complainant recalled one occasion on which the appellant was taking her home from the office for lunch with her mother. He stopped the car on a gravel parking area not far from the house and had her give him oral sex (#30: indecent assault). She spat out the door. She recalled this particularly because when they got home the mother said she had been telephoning the office and asked them why they had taken so long to get there.
98 In the appellant's office, he had a substantial wooden antique desk. L described an occasion upon which he called her in and had sexual intercourse with her on the desk (#29: rape). He ejaculated inside her on that occasion. She described feeling embarrassed about the incident because she had to walk past other staff to go outside to the toilets to clean herself up afterwards.
99 L's grandfather died in August 1985. A short time later, her grandmother came to stay with them. It was a two-storey house and the grandmother gave evidence that she was staying in a room downstairs, directly below L's bedroom. The house had floorboards upstairs and it was possible to hear people walking on the upper level. According to the grandmother's testimony, the appellant and L's mother went to a party at a neighbour's place and arrived home late. Everyone else was in bed. The grandmother says she heard them return and then heard the mother go to the bathroom downstairs, which was the only operating bathroom at the time. She heard the shower going and then heard the appellant's footsteps walking from the main bedroom across the hallway into L's room. About 15 minutes or so later, she heard him leaving L's room. Given the lateness of the hour and the length of time the appellant had been in L's room, the grandmother decided to confront him about the visit. She did that the following morning, asking him what he was doing in L's room at that time of night. Her evidence was that he said something like, "She's my daughter" and simply walked away.
100 It was in this house that the last incident of sexual intercourse between the appellant and L occurred.
101 The relationship between them had been problematic because L was trying to spend time with her then fiancé. According to her, the appellant had been making it difficult for her to see her fiancé and putting restrictions upon her outside activities. Despite all that, she still desperately wanted his approval and affection and so, when he wanted to have sex with her on her mother's bed she complied. She said this was early in the morning. He called her into the bedroom where she found him lying completely naked on his back on the bed. She recalled being on top, straddling him, wearing only a bra. She noticed a Vaseline jar with pubic hair inside it, on the bedside table. The appellant ejaculated inside her (#31: sexual penetration without consent; s 324D Code).
102 It was shortly after that, L was compelled to leave home. On 6 April 1986, she went out on a date with her fiancé and returned home after the midnight curfew imposed by the appellant. When she arrived home, she found herself locked out. She returned to her fiancé's parents' house, where he was staying for the time being, and slept in his room while he slept in the lounge. She went back home the following morning, packed her belongings and returned to Perth where she lived with her grandmother until she married her fiancé in January of 1987.
103 It was the Crown case that while L was 17 and J was only 13, while the family was living on the coast in the south of the State, the appellant began to groom and prepare J in much the same way he had L.
104 In her evidence, J said that she had noticed that the appellant seemed to spend more time with her sister, L, and that it was clear to J that L was the appellant's favourite. She, of course, regarded the appellant as her father and also wanted his love and approval. She had watched and envied the apparent attention the appellant gave her sister and coveted some of that attention for herself.
105 Whilst the family was still living in the duplex, the appellant came to her one night while she was sleeping on a mattress in the lounge room. That was because they had visitors and the unit being small, the visitors were staying in her bedroom and she was sleeping in the lounge. This was the first time J could recall there being any sexual contact between her and the appellant. He put his hand down her pyjamas and rubbed her on her genital area (#32: indecent dealing with child under 14). She did not resist.
106 It was also about this time that the appellant began to make comments to J about her body.
107 J described another occasion on which she was in bed in the room she shared with L. The appellant climbed into bed with her and got her to place her hand on his penis. He held her hand in his and guided her hand up and down on his penis. At this time, she was in year 8 (#33: indecent dealing with child under 14).
108 J testified that after they moved to their own house, she saw the appellant in bed with L on one occasion while their mother was having a shower.
109 So far as she herself was concerned, the next event she described was one which occurred while she was in year 9. The appellant climbed into her bed and began rubbing himself on her, trying to make himself hard. He then penetrated her with his penis (#34: rape). She remembered being scared and telling him to stop and get off her. However, he persisted, causing her pain. She ran to the bathroom and found she was bleeding. The appellant assured her it was natural for that to occur the first time a girl had sex.
110 J then described an incident when the family visited their grandmother's place in New South Wales. The appellant took J for a walk up a nearby hill and had her perform oral sex on him. She said she remembered him spitting on his fingers and rubbing the outside of her vagina. He then put his fingers inside and she also remembered lying down on the grass and having sex with him. She could not recall if he ejaculated.
111 After the appellant, J and her mother moved back to Perth midway through 1986, they stayed for a short time with the appellant's brother and his wife, before moving to another house in Subiaco. They remained there until the end of 1988, whilst J was in year 11 and all of year 12. She was then aged 15 to 17. In her evidence, she said she remembered a lot of sexual contact between her and the appellant in this house. It included him trying to kiss her, trying to touch her breasts, exposing himself, rubbing his penis on her face and holding her face and trying to kiss her on the lips.
112 Her sister, L, had left home some time before and J saw very little of her during this period.
113 J described an incident in her bedroom. She was standing in front of her dressing table. The appellant was standing behind her. He wanted her to look at them in the mirror. He pulled her bra down and touched her breast and then put his fingers inside her vagina (#35: indecent assault; s 324B Code).
114 She remembered another occasion when she was in her bed. The appellant came in and pulled her to the edge of the bed and penetrated her with his penis whilst he was standing against the bed (#36: sexual penetration without consent; s 324D Code).
115 She described an occasion in the sewing/laundry room where the appellant stood behind her and penetrated her vagina with his penis while she bent over with her hands on the sewing table (#37: sexual penetration without consent). She recalled that her mother was taking a shower at the time.
116 J said that sexual contact between them was a regular occurrence, especially when her mother was in the shower. At transcript 587 - 8, she described it this way:
" ... I remember it being a regular occurrence, that it was something that was going on all the time.
What do you mean, it was going - what's 'it'? What sort of contact are we talking about?---Him trying to touch me at any available moment it seemed. If mum was taking showers, he'd try and touch me, touch my breast, try and kiss me on my lips. There were times when mum would be taking showers and I'd be in bed with him in their bed. They'd have the television on, mum would be around at the time. She'd go in and take a shower and he'd try and touch me and try and do things then. I remember lots of times that that would happen, that mum would be taking a shower. I remember feeling uncomfortable about it, but also at the same time it was - it was like, it would just be a frequent occurrence of things. I'd feel under pressure.
You felt under pressure, of what form? How do you mean?---That he was - that he was in control of what was going on. He was in control of what I thought. It was, it was just life, that's what was happening, and I was going along with him doing those things, him trying to make me feel special or important or whatever, so there was mixed emotions of feeling not comfortable about it, but at the same time not wanting to upset him. A lot of the family, and this is going back to very, very early stages, was, you know, mum - you know, 'Go and make him a cup of tea' and 'Go and sit on his knee' and 'Go and' - you know, 'Make sure that', you know, 'that he was happy', that he was happy about taking care of us. That was huge pressure of feeling like, holding this family together, because there was going to be nothing else. I felt like, you know, I loved him because he was my father and he was in our house and my brother; I loved my brother, I loved my mother, and all this time there was also, you know, just feeling under pressure about keeping all of this together. There was definitely a feeling of wanting a happy family, of, like, wanting to feel special, wanting to feel - not wanting to upset that, you know, and that's also - so many reasons about not saying anything to anyone about what was happening in the house because - who were you going to say anything to? Like, how were you going to get out of there and also at the same time thinking, feeling that pressure about keeping that family together, because - and I think for a lot of reasons wanting, you know, wanting a happy family, like wanting - I remember telling friends all the time about how close I was to my, you know, my stepfather, but my father who was in my house now, so much closer to him than my mother, like wanting everybody else to think of it as, you know, a happy family, so on the exterior I was happy to everybody, you know, like I was always trying to make everyone else happy and what - all the other stuff that was going on was either not happening to me, because I block it out of - I'd not try and think about it, but it was - I guess that's how you deal with it at the time. You know, it's like you go along with those things because that's just life ... "
117 J remembered a time when the appellant wanted her to spend the night with him in her mother and the appellant's bed. This was in 1987. They were going on an international trip. For some reason, her mother and little brother left first. The appellant wanted her to spend the night in the bed he shared with her mother. She was naked in bed with him and recalled how uncomfortable she felt about that, but could not recall if there was any other sort of sexual contact on that occasion.
118 According to J, the appellant would take other opportunities to try to touch her, or to have her touch him, or to have her perform oral sex on him, or other sexual contact. As a protective measure, she took to having her young brother in bed with her to try to discourage the appellant from sexual contact while still enabling J to maintain his attention. Nonetheless, there were still occasions when the appellant had sexual intercourse with her.
119 One such occasion was when they were staying at Eagle Bay. The appellant came into the bed where she was with her brother. She was lying facing her brother, away from the appellant. He pulled her pyjamas down and rubbed his penis on her (#38: indecent assault). That was one occasion on which the complainants' mother actually saw something. She and the appellant were sleeping upstairs in a loft area. In her evidence she said that the appellant went downstairs ostensibly to check on J and her little brother. After the appellant had been gone a little time, the mother looked over the balcony and saw him in bed with them, lying against J. He then got out of bed and she saw that he was naked except for underpants and that he had an erection. She said she was mortified and confronted the appellant about it when he returned upstairs, because she was concerned at what J might have seen. The appellant told her she was overreacting. She said that she later spoke to J about it to see whether there was anything wrong, although she did not specifically mention why. Whatever J said to her reassured her that J had not seen anything. In her evidence, J said she could not recall her mother talking to her about it at all.
120 J said that they lived at the Subiaco house for less than six months. She was then in her first year at university. They moved to a house at Floreat. The sexual contact between her and the appellant continued. She described one occasion in her brother's bedroom. They were standing by the window where they could see out into the street and whether or not anyone was coming. The appellant was standing behind her, rubbing himself up against her and touching her breasts (#40: indecent assault).
121 She described an incident in the bathroom she shared with her little brother. She was having a shower when the appellant came in. She told him to get out. He tried to pull the curtain aside to look at her, but she wrapped herself in it and he left after she told him to get out.
122 On one occasion she described, they again had sex in the bed the appellant shared with her mother. There was a dressing table mirror opposite the bed. The appellant wanted her to sit up and watch while they were having sex. She was on top with his penis inside her (#39: sexual penetration without consent). She said she was very uncomfortable and self-conscious about it. She did not want to look.
123 At that time, the appellant had an office in West Perth. J needed to do some photocopying for her university studies. He drove her there. After she had finished photocopying and they were about to leave, he took her into a waiting area in which there was a black leather sofa. He sat her on the sofa and knelt in front of her. She remembered him getting a condom and showing her how to put it on him by guiding her hand while he put it on. He then spread her legs, pulled her to the edge of the sofa and penetrated her (#41: sexual penetration without consent). She said she remembered just holding him and just wanting to keep still and not wanting to move or do anything. He ejaculated in the condom and then took the condom off, tied a knot in it and went into the bathroom. That was the first and only time he used a condom.
124 When they lived in Floreat, she would sometimes go for a run in the area around Perry Lakes and Bold Park. She described an incident when the appellant drove her to the car park and they went for a run. He ran behind and made some comment about her "butt". After they had run some way into the bush, he made her take one leg out of her shorts and underpants. He then spat on his fingers and rubbed the outside of her vagina before putting his fingers inside her. He then penetrated her vagina with his penis from behind, whilst she leaned forward slightly (#42: sexual penetration without consent). He then took his penis out of her vagina and put it in her mouth and ejaculated (#43: sexual penetration without consent). She said she never liked that and could remember on numerous occasions spitting his semen out in the bathroom, putting it on a tissue, or otherwise getting rid of it. She said those incidents occurred while they were living at different houses.
125 There was another incident while they were at Floreat. He made J go into the study. She said she did not want to. He made her lie on the floor and when she did so pushed her underwear to one side, spread her legs and used his tongue on her vagina (#44: sexual penetration without consent). That was the only time he did that.
126 They moved to Subiaco in 1993 and she graduated at the end of that year. She got a job in February 1994 and then moved into a house with a girlfriend, before moving to Melbourne in October 1995.
127 None of these matters came to light until 1995.
128 After L had left home in April 1986, her relationship with her family was not good. She had very little contact with them. She did receive a couple of letters from her mother whilst living at her grandmother's house, but they were critical and complained that she was ungrateful for all that her mother and stepfather had done for her. Nonetheless, there were some occasions on which she did have some contact with them. She still loved and cared for them, including the appellant.
129 A little later that month, things seemed to be a bit better. She wrote in her diary that her mother was talking to her now about the appellant and her young brother was gorgeous. She had lunch in the city with her mother and they later watched a family movie, before she and the appellant went for a drive to talk. Later that month she spent the day with him, and she noted that she had told him about being on the pill and having sex with her fiancé. She noted that he was disappointed but not angry and that she loved him (that is the appellant). She wrote, "I think this is the end. He is over me."
130 She married her fiancé in January 1987 and the appellant gave her away. She felt that would please him.
131 She said she immediately wanted to fall pregnant and they tried immediately, but she had problems. She subsequently had three children, the eldest being born at the end of 1988. Over those years she had a number of surgical procedures to ascertain whether there was any physical problem, but said nothing to anybody about the sexual relationship with the appellant until she went to see a counsellor on 21 September 1995. The counsellor told her that it was not healthy to keep such a secret and that she should tell someone she trusted and who would believe her. She testified that she telephoned her natural father and told him.
132 Asked why she had not said anything about this in the previous 9½ years after she had left home, she explained that she had the children, that she had intimacy problems with her husband and was having nightmares. She went through a phase where she could not tolerate her husband touching her. She said she even had trouble putting a nappy on her daughter and being affectionate with her children.
133 She said she did have a relationship with a man just before or around the time they moved to Perth.
134 L said she remembered going back to the counsellor a second time and the counsellor telling her she needed to tell her husband because the barrier between them could cause problems and it would help in the healing process to discuss it with him. She said she went home straight away that day and told him. By reference to her diary she was able to say that was on 25 September 1995. However, the person she was most concerned about telling was her mother. She telephoned her and told her over the phone the following week. That was on 5 October 1995.
135 The mother related that she received the telephone call from L and subsequently told J. At that stage J did not say that anything had occurred with her, but made a comment to the effect that L would not say something like that unless it were true.
136 In her evidence J said that L also telephoned her and said she was worried about J being in Melbourne when the appellant visited. L asked if anything had happened to her. She said no.
137 J then immediately telephoned the appellant and told him. She drove over and picked him up and they drove to Kings Park. He told her he knew it would eventually come out. She asked him what he wanted to do and told him he had to tell their mother. They drove to the mother's shop and went inside. J told her mother, "It was me also." She said that was in the presence of the appellant although he said he came in a little after and did not hear what was said. The mother began crying and J comforted her. The appellant left to pick up the complainant's brother. This was on 5 October 1995.
138 J had already made arrangements to go to Melbourne for her employment and had no choice but to do so. However, she returned to Perth the following week to attend a family meeting.
139 The mother had already made arrangements to move into a unit in West Perth. She told the appellant he would not be coming with her.
140 L helped her mother move over the weekend. She and her husband had come up to Perth to attend a wedding that weekend. Her natural father had made inquiries with a psychologist and he, the mother and the two complainants attended an appointment with the psychologist on the Saturday. The main concern arising out of that was how the little brother would be told. They arranged a meeting for the afternoon. The mother telephoned the appellant and demanded he attend and bring the brother with him. They all sat around a table outside the unit. The brother, who was about 12 at the time, sat on J's lap.
141 According to the complainants, the appellant told their brother that he and his mother could not live together any longer because he had done a terrible thing to J and L when they were young. The brother asked what, and he said, "I had sex with L and J." The brother became distraught, crying out, "Why, why, why?" and ran into his bedroom. J ran in after him. According to the mother's evidence, all the appellant said was that he had had a relationship with L and that he did not mention J at all. The appellant's own evidence was to the same effect.
142 Sometime over that weekend the appellant had written a letter to each of the complainants. He had given it to their mother and asked her to pass it on to them. She did so.
"Dear [L], I am so proud of you. You have a beautiful family and I always will care for you and your family at a distance. I understand the hurt I have caused will never let me see the kiddies grow up. There are no words to explain my regret for the pain I have caused. My life was so empty twenty years ago, then I discovered the most perfect family in the world. Although I knew there would be financial and emotional hardships I loved you all so deeply it didn't matter. What happened was totally my fault and the guilt and remorse will be with me for the rest of my life. [L], your mother loves you deeply and you cannot blame her or yourselve [sic] in any way. My sole purpose in life must be to provide [your mother] with the financial support to enable her life to continue without the worry of money. [L], you must know how deeply I love [S]. I would never do anything to change this and I understand [S]'s needs are complex now. We must all try to protect him from any further uncertainty in his life. I cannot change the past. I can only do what's right now. My feelings will never change. I will love you always. I will love you all for ever."
"Dear [J], Words can never explain the deep regret I have. I had the most perfect family and are [sic] now soley [sic] responsible for the pain everyone is feeling. There is no excuse for my actions and I will suffer the consequences for the rest of my life. You have achieved so much and now on the threashold [sic] of beginning a wonderful life. [Your mother] and [S] love you dearly as I always will but I accept you may never wish to see me again. My focus now must soley [sic] be on providing financial security for mum and [S]. I will always love [your mother] and never do anything more to hurt her. [S] needs the security of being loved by all his family. I would never do anything to affect this. When you have settled in maybe [your mother] and [S] could come and visit you. If you feel you need to come home for a few days let mum know. I can use my frequent flyer points for you as well. All our lives have changed. Now I can never expect anything but pain. I am totally heartbroken by what I have done and seeing your beautiful mother hurting so much. [J], I will always think of you as a loving and kind daughter of [your mother] and brother [sic] of [S]. There is know [sic] way I can change what has happened. I must do what's best for all from now on."
145 I turn now to what the appellant said about the family meeting and the letters.
146 He said there was an incident at Bentley about December 1986 just before L married. He said he received a telephone call from her in his office about the middle of the day and she said she wanted him to come over and see what her fiancé had done to her. She did not elaborate. He said he drove straight over to her at Bentley. That was where she was living at the time and where most of her belongings were.
147 He said that when he knocked on the door she opened the door and just stood back. He asked her what was wrong and without saying anything lifted up the long skirt she was wearing. He could hear a television going inside the house. She then said, "I just want to know." He said he was expecting to see bruising or something of that kind, but the only thing he could recall was that she was not wearing any underwear and she was shaven. He said he was confronted with something that he did not quite understand and asked her what she was doing. All of this took place straight through the front door and into the lounge or living area. There was a couch there and the appellant said that as he went to sit down on that he saw there was a pornographic video playing on the television. It was two head shots of a woman giving a man oral sex. He testified that he said the first thing she should do is turn that off. However, he said that she sat down with him and was endeavouring to undo his belt and saying, "I just want to find out. I just want to know." He said something to the effect that she was about to get married and should reassess whether or not she should and that he was married to her mother. He said she made no response to that, but by that time his belt was undone and his fly was half undone. He said he tried to stop her doing that by holding her hand, but she was frenetic and it was "a surreal experience".
148 He said she managed to get his belt undone and his fly half undone, even though he attempted to stop her doing both of those. Asked whether she actually got access to his genitals, he said:
"I believe she did position her mouth on top of my penis, yes"
and that he was certainly without an erection at the time. He said she did not manage to get her hands onto his penis because at that stage he stood up, pulled his fly up and did up his belt. He said he stood up and did himself up without saying anything. She tried to guide him into the side room where her bed was. She was tugging him while he was standing, and in the end he told her he was going. He thought she was in trouble. He said she did ask him not to tell her mother. He said he was there for only about 10 minutes. He said he was shocked when he left the house and drove back to the office. He did not tell her mother because L was about to get married and he felt that it was a "one-off act" of trying to experiment or something.
149 It was the appellant's evidence that it was the Bentley incident to which he was referring in his letters to the complainant and also at the family meeting. His testimony was that what he said on that occasion was something to the effect that the reason why he and their mother could not live together at the moment was because he had an inappropriate relationship with L. He said he was talking about the incident at Bentley and definitely not about any inappropriate relationship of a sexual nature over a long period of time.
151 This was not a case where identification was the area of dispute, nor was it a case in which the appellant admitted certain acts but said they were misinterpreted, nor in which he admitted the acts but said they were consensual. Here the appellant denied any of the offences alleged had occurred at all.
152 There were only three possibilities. The complainants had either concocted their allegations in concert, or had coincidentally fabricated very similar accounts independently, or they were telling the truth about the appellant's conduct towards them.
153 It was put to L in cross-examination that she had invented her allegations and that they were all fabricated. She denied that. She maintained that everything had happened as she had described it.
154 She was cross-examined about her evidence that it had all come to a head in 1995 because she was having great difficulty with her marriage and in her relationship with her husband, as a result of which she went to the counsellor. It was put to her that in fact she was then having an affair with a man by the name of Brad and it was that which was causing the problems in her marriage, that she wanted this other man and not her husband, and that she was looking for someone to blame.
155 Senior counsel for the appellant put it to her (t/s 402):
" ... this whole thing was born out of the difficulties that you were having in 1995 with your marriage, the dreadful situation you were placed in with your husband's - the strictness of his religion and the fact that you were having an affair behind his back."
"The real difficulty with him being close was that there was another man in your life?---No, that's untrue.
You couldn't face the blame. It was blame of yourself and you were looking to place all your problems at the hands of [the appellant]?---That's untrue."
157 Finally, it was put to L that the allegations all stemmed from the Bentley incident and her cheating on her husband. She repeated that the Bentley incident had never happened (which had been her evidence throughout) and denied all else that had been put to her. She pointed out that the Bentley house was the residence of her then fiancé's parents, who were strictly religious and she was hardly likely to have engaged in behaviour of that kind there. She adhered to her evidence that she had realised her nightmares and marital problems were the consequence of what the appellant had done to her and that is why she sought counselling and subsequently decided to reveal to the family, and in particular to her little brother, what had happened between her and the appellant.
158 It was put to J in cross-examination that she knew what allegations her sister had made and had attempted to replicate them in her own statement to police. It was put that she had "agreed" to say certain things, such that some of the sexual activities between her and the appellant had happened while her mother was in the shower and that she saw a jar of Vaseline with a pubic hair in it (being aware that L had said a similar thing). She denied all of this. She maintained she had only ever been aware of the general nature of her sister's allegations, not specifics. Since leaving Perth she had been living in Melbourne, then in New York, and later in Europe and had very little contact with L, even after L had made her allegations.
159 The jury had all of this evidence before them. Their verdicts show they were satisfied beyond reasonable doubt the complainants had neither invented their allegations independently nor colluded to fabricate them.
160 If not the product of collusion, given the similar nature of the initial sexual activity of the appellant and its progression over time, combined with those aspects of the allegations of offending which had similar characteristics, it is objectively improbable that he molested one girl but not the other. It would not be a rational nor reasonable view of the evidence that the appellant committed the offences against one sister but not the other.
161 The grooming process was similar with respect to each sister. It began with the onset of puberty, the appellant making personal remarks about their bodies. In each case, the first physical contact was similar. It commenced with the appellant touching their vaginas and having them touch his penis. It progressed to digital and then penile penetration. In each instance the appellant manifested a preference for fellatio, with him ejaculating in their mouths. In each instance he also demonstrated a preference for sexual intercourse from behind, whilst standing. Each sister recounted the appellant having sexual contact with them at their grandmother's house in New South Wales, at Perry Lakes in Perth, in his office, whilst at home alone with him and whilst in bed with them. A common feature of the account of each complainant was that the appellant would take opportunities to have sex with her whilst their mother was showering. Both recounted incidents in which the appellant had sexual contact with them when there was a real risk of discovery.
162 It is significant that when the complainants finally revealed what had been happening, the appellant wrote a letter of apology to both of them in substantially similar terms. On the appellant's account, that related only to the Bentley incident, which involved only L. So too, if the jury accepted the evidence of the complainants, the appellant admitted at the meeting on 5 October 1995 to having had a sexual relationship with both of them.
163 There is an underlying unity or pattern to all of this evidence and his Honour was right to so find. The evidence was mutually admissible.
164 There is no complaint about the trial Judge's direction to the jury on how the propensity evidence was to be used and how it was not to be used. It is not contended that the potential prejudice from charging the offences together was not obviated by the directions given by the trial Judge.
165 That is sufficient to dispose of this ground, but having regard to the way it was argued we should deal with what the situation would have been had we come to the conclusion an order for separate trials should have been made on the law as it stood at January 2004.
166 In that event, we would nonetheless not allow the appeal on this ground. As it would be open to have convicted the appellant on the evidence, a successful appeal could not result in verdicts of acquittal. There would have to be a retrial. The retrial would have to be conducted on the law as it now is.
167 The relevant provisions are s 31A of the Evidence Act and s 133 of the CPA. Their interrelationship and effect in Donaldson v The State of Western Australia [2005] WASCA 196 was explained by Roberts-Smith JA, and we adopt without repeating what his Honour said there about that.
168 The evidence of each complainant here would be admissible under s 31A. It is "propensity evidence" as defined in that section, being evidence of the conduct of the appellant (s 31A(1)(a)). It is also "relationship evidence" as there defined, being evidence of the appellant's conduct towards another person over a period of time (s 31A(1)). For the reasons expressed above, the evidence would be admissible because both by itself and having regard to other evidence in the case it has significant probative value (s 31A(2)(a)) and that probative value, compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial (s 31A(2)(b)). Involving as it does, allegations of sexual offences by a stepfather against his two stepdaughters, separately, over a period of years, in the circumstances described by the complainants, this is an example of the very type of case in which the legislature intended the jury to have the benefit of a full evidentiary familial picture.
169 The evidence of the complainants being mutually admissible in respect of the charges pertaining to them individually, there is here no prejudice arising from the joinder by reason of which a court could order separate trials under s 133(3) of the CPA.
170 That being so, even if ground 1 were to be upheld, there would have been no substantial miscarriage of justice and the appeal on that ground would have to be dismissed pursuant to s 30(4) of the Criminal Appeals Act 2004 (WA).
Ground 2: Separate trials - prejudicial effect and probative value
171 The first particular of this ground asserts that the 31 counts relating to L should have been the subject of a separate trial to those counts relating to J. We have already found to the contrary. Particulars (b) and (c) are predicated on particular (a) being sustained. They accordingly fall away.
172 The evidence of offences charged in respect of one complainant being admissible in respect of the offences charged in relation to the other complainant, the only prejudice which could potentially have arisen from the joinder would have been that the jury may have engaged in impermissible propensity reasoning. By that we mean contrary to the first of the two principles articulated by Lord Hershel LC in Makin v Attorney-General for New South Wales (supra) at 65, namely that evidence showing the accused has been guilty of criminal acts other than those charged cannot be relied upon for the purpose of concluding that the accused is a person likely, from his criminal conduct or character, to have committed the offences charged - that is to say, that he is the kind of person likely to have done so. As we have already observed, there is no ground of appeal which complains the trial Judge's directions on this aspect were deficient or could not have overcome any such potential prejudice.
173 Senior counsel for the appellant did not develop ground 2 in his oral argument and was content to rely upon his written outline of submissions. Apart from arguing the evidence with respect to one complainant was inadmissible with respect to the other, the appellant's submissions were that there were no witnesses to any of the incidents apart from the complainant and the appellant; there was no corroboration for any of the individual offences, and neither of the complainants could give evidence which was directly corroborative of the appellant's offending against the other. That is an accurate statement of the nature of the evidence, but simply does not take the appellant's appeal anywhere. None of the features there said to be absent were necessary to establish either admissibility or probative value. It was further submitted that the evidence of one complainant was not relevant to the charges concerning the other in any way other than to show that the appellant had a propensity or disposition to commit a crime or that he was the type of person likely to commit the crime charged. That submission has no basis for the reasons we have give in relation to ground 1.
174 So far as particular 2(d) is concerned, his Honour did give weight to various practical matters, they being that severance would involve a significant increase in the length of the case, additional emotional distress and embarrassment and considerable inconvenience to J, who was then living in the United States and would be thus required to give evidence and face the appellant not once, but twice.
"In the end, although the Crown accept that, as I think it must, those latter issues are not conclusive."
176 The substance of his Honour's finding was (AB 49):
"... the issue of the meeting and of the letters is critical. To isolate the separate parts of the issues would be difficult to do and would entirely, in my view, mislead the witnesses [sic] or would be likely to do so and the jury. The cumulative weight of those matters and the propensity of the similar fact issues raised by the Crown, in my view, supported to only a minor degree by the other matters, however, requires that the application be dismissed."
177 It is apparent that the critical factors militating in favour of a joint trial for his Honour were the family meeting on 5 October 1995, the appellant's letters to the complainants, the potential that separation of the issues would have to mislead the jury and the propensity or similar fact issues raised by the Crown. Although considerations of practicality supported that conclusion, they did so "to only a minor degree". In asserting that his Honour gave "significant weight" to these practical matters, ground 2(d) misstates what his Honour expressly said and so is founded on a fundamentally wrong premise.
Ground 4: Separate trials, dissimilar counts
179 The appellant's submissions on this ground were that the indictment contained 44 counts relating to two complainants and whilst those pertaining to L may have contained broad similarities to those pertaining to J, there were numerous counts where no unifying features were present. It was submitted that in the event that any of the counts were thought to be sufficiently strikingly similar to justify a joint trial, they should have been separated from those where there was no unifying similarity, which counts should have been the subject of a separate trial in respect of each complainant.
180 The appellant relied particularly on Stickland v The Queen [2002] WASCA 339.
181 In that case, the appellant had been charged on one indictment with 63 counts involving nine complainants. There were 33 counts of indecent dealing, 18 of indecent assault, and 15 of gross indecency with a male. The case was one in which the Crown contended there were a number of features common to at least some of the offences such that there was a "striking similarity" between them so that the evidence of each of the complainants was admissible as similar fact evidence on the counts involving each of the other complainants.
182 Malcolm CJ (with whom Wallwork and Steytler JJ agreed) comprehensively examined the facts alleged in respect of each offence and reached the view, expressed at [111] - [113] that:
"111 In my opinion, it is apparent from the case put by the Crown that there was not a single set of facts and circumstances which was common to all of the alleged offences, save that there were numbers of alleged offences which had one or more aspects in common, so that there might be said to be several different groups of offences which had some similarities. In the context of determining whether all of the offences had common features that were common to each so as to enable the evidence of the commission of one or more alleged offences admissible in respect of one or more of the other offences alleged, however, a close degree of analysis of the evidence is required.
" ... However, given that there were various categories of offences, some of which had striking similarities with others, the combination of several different categories in the one trial was not open. It may have been possible to combine a number of counts involving different complainants where the facts were strikingly similar, but the necessary degree of similarity was not present so as to justify a joint trial of all of the counts on the indictment. It follows that the applicant has not had a fair trial according to law. The right to a fair trial is fundamental. It follows that the convictions should be quashed and a new trial ordered ..."
184 As we have observed above, Stickland articulated no new principle. That case was an application of the principles established by De Jesus, Hoch and Pfennig, and turned on its own facts. More particularly, the sole basis relied upon for the mutual admissibility of the evidence was that it was "similar fact" evidence in the strict sense, that it showed offences with strikingly similar characteristics. Once it was concluded that the evidence was not mutually admissible, there was obviously a significant prejudice to the appellant from the joinder. The situation in the present case is entirely distinguishable. Here the evidence was mutually admissible - and not on the basis the offences bore strikingly similar characteristics, but on the basis they revealed an underlying unity or pattern.
185 This ground is predicated on the assumption that for the evidence to be mutually admissible, it had to go to counts charging offences which bore striking similarity. But that was not the way in which the case was presented, and it was not the basis for the admission of that evidence.
187 The jury returned guilty verdicts on 20 counts in respect of L and seven counts in respect of J. There were directed acquittals on three counts, being counts 3, 4 and 15. The jury returned not guilty verdicts on nine counts in respect of L and two counts in respect of J.
188 The test for determining whether a verdict is unsafe or unsatisfactory is that formulated by the majority in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493-494. It is whether the Court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. It is not the function of the Court to answer that question merely by an examination of the transcript of evidence and the exhibits; the appeal court must not disregard or discount the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, nor the consideration that the jury has had the benefit of having seen and heard the witnesses, but on the contrary, must pay full regard to those considerations (Jones v The Queen (1997) 191 CLR 439, 451).
189 The application of the test was explained by the majority in M v The Queen as follows (at 494):
"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence." (References omitted).
190 In Jones, convictions were set aside on the basis they were unsafe and unsatisfactory because, given the jury's finding of not guilty on one count, it was not open for them to be satisfied beyond reasonable doubt of the appellant's guilt on the other two counts. There were three counts of unlawful sexual intercourse with a female child. The complainant was a pupil at a gymnastic academy at which the accused was an instructor. The trial took place five years after the first alleged offence. The complainant was between 11 and 12 years of age at the relevant times. She made no allegation against the appellant until more than 4 years after the first alleged act. On her evidence, the acts of intercourse occurred when there was no-one present but she and the accused. The court held that the quality of her evidence on the second count was no higher than that upon the first and the third, so that once the jury found her evidence with respect to the second count lacked sufficient cogency to convict, the Crown's case on the first and third counts wore a different complexion. It meant that when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof.
191 In MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, the High Court made it clear (at [89]) that the decision in Jones was fact specific and did not stand for any principle that in cases of complaints of a number of sexual offences, a jury must either accept or reject the entirety of the complainant's evidence.
192 There is no general rule that in cases in which several sexual offences depend upon the testimony of the complainant, acquittal on one or more counts compels a conclusion that the jury must necessarily have regarded the complainant generally as an untruthful witness or that her credibility was undermined in respect of the counts upon which they have convicted (R v PMT [2003] VSCA 200; (2003) 8 VR 50 at [25]). Circumstances of the particular case may justify different verdicts, as was explained by Gaudron, Gummow and Kirby JJ, in MacKenzie v The Queen (1996) 190 CLR 348 at 367:
" ... the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury." (References omitted).
193 Whether or not there is inconsistency in a case of this kind will depend entirely upon the evidence in the particular case (R v Whitehead [2000] NSWCCA 400 at [18]- [20].) The decision of the High Court in MFA v The Queen (supra) is apposite. There, Gleeson CJ, Hayne and Callinan JJ pointed out the differences between verdicts may not, in truth, involve inconsistencies even of a factual kind. At [617] they said:
"Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every jury must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman (1987) 44 SASR 591 at 593, and referred to in later cases, eg MacKenzie v R (1996) 190 CLR 348 at 367-8; [1996] HCA 35; 141 ALR 70 at 84: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed. "
194 Their Honours went on to describe as "erroneous" the view that Jones is authority for the proposition that where multiple offences are alleged involving the one complainant, verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. Their Honours said the proposition overlooked the attention to factual detail in the reasoning of Jones, the principles stated in MacKenzie and the considerations referred to in the last passage set out above.
195 The appellant submits that where a jury is required to be convinced beyond reasonable doubt of the truthfulness of the complainant's evidence before a conviction is possible, then, absent any other feature of the evidence which would have created a reasonable doubt about a particular offence, the verdict of the jury in accepting the complainant's evidence on one count and rejecting it on another would lead to a situation where the guilty verdict must be considered unsatisfactory. As a broad proposition stated in the abstract, that submission is correct. But it must be considered in the light of the authorities to which we have referred above which compel attention to the facts of each case.
196 One particular submission made on behalf of the appellant in respect of the evidence of L was that it "is difficult to understand" how the jury would have perceived the complainant as a witness of truth after her admission of not being "completely truthful" during the preliminary hearing.
197 This submission is a reference to the fact that at the preliminary hearing before a magistrate on 12 June 2001, L testified that she had not had sex with her fiancé at any time before they were married, whereas she later acknowledged that was not true.
198 The subject was raised first at the very end of L's evidence-in-chief (at T266):
"Have you at any time said that you hadn't had premarital sex with [your fiancé]?---Yes.
When did you do that?---In my statement in 2000.
Why did you say that?---[My fiancé] was from a family of strict Catholics; would not have approved of us having sex before marriage or living together. I was under pressure. He was at the pre-trial and present through my evidence. It was like a pact between us that he wouldn't have wanted anyone to know that we had sex before we were married.
And so when you were asked about that and you said you hadn't had sex before marriage, that wasn't true?---No."
199 Senior counsel for the appellant immediately pursued the point in cross-examination, putting to her that by June 2001 she and her husband had been divorced and there was no prospect of a reconciliation and that the real reason for her telling a deliberate lie to the magistrate was to create the impression that certain marks in her diary indicating sexual activity all indicated such activity with the appellant, when in fact they referred to activity with her fiancé. She denied that. She insisted the marks did not indicate sex with her fiancé, but conceded that she had had sex with him some time prior to the wedding. She reiterated her explanation for telling the magistrate otherwise, adding that she thought it had no relevance to the case anyway. Some weeks before the trial she had herself brought this to the attention of the prosecutor and explained what she had done and why. That information was properly passed on to defence counsel.
200 What to draw from this, and how that complainant's evidence should be looked at in light of it, was manifestly a matter for the jury. It was not something which inevitably rendered her evidence worthless. It was open to the jury to accept her explanation for what she had told the magistrate and (whilst no doubt regarding it as seriously wrong) to conclude her evidence about the alleged offences was nonetheless truthful.
201 In relation to J, the appellant's submission is also that there was nothing in her evidence to suggest the quality of it was higher or more reliable in relation to the counts on which the jury convicted as distinct from those on which they acquitted.
202 The acquittals on counts 3, 4 and 15 were directed by the trial Judge because of uncertainty about when the incidents were said to have occurred, in relation to changes which were made to the law at the relevant times. They do not impact on this ground.
203 It is important to bear in mind the trial Judge gave the usual and appropriate directions to the jury about the need to consider the evidence in respect of each count separately. No complaint is made about her Honour's directions in that respect. The jury were therefore specifically told that they could return different verdicts, depending upon their assessment of the evidence.
204 Count 2 charged an offence of rape between 1 January 1979 and 31 December 1981 in the house at Subiaco. L testified that at the time of this offence she was at least 14 years old. The said the offence occurred in a shed behind the swimming pool. The appellant used to have a weight bench in there. It was an open shed area with a lattice screen between it and the pool. L also had a table set up in there on which she used to do leatherwork as an art and craft in year 7. She said she could not remember how they came to be there, but she could recall the appellant being behind her. She was wearing her primary school tracksuit pants and a sports skirt over the top. She could not remember undressing or taking her clothes off. She could not recall what the appellant was wearing, nor where his clothes were. She reiterated that she was wearing her tracksuit pants and, because she was a bit self-conscious about her hips, she used to always wear a netball skirt over the top of them. She could not recall how old she was at the time.
205 The complainant's mother gave evidence that the pool was not put in at that house in until March 1981. That and the sunroom were built together. At that stage L had well and truly finished at her primary school and she would not have thought there would be any cause for L to wear any part of her primary school uniform after that. The mother said it was her practice to always pack up the school uniforms and give them back to the school if they were any good.
206 The acquittal in respect of this count is not explicable only on the basis the jury positively disbelieved L. Given her age at the time, the vagueness of her recollection of the incident (other than the actual penetration), the evidentiary conflict or uncertainty about the tracksuit pants, the years which had elapsed between the incident and the trial, and her Honour's directions to the jury to act only on the evidence they were able to accept and the importance of the requirement for proof beyond reasonable doubt, the jury may well simply not have been taken to that degree of satisfaction in respect of that incident having occurred at that time in that way.
207 Count 5 was a charge of rape between 1 January 1980 and 31 October 1981, also at Subiaco. This was the swimming pool incident. The reason for the acquittal is obvious. This count was the subject of a question from the jury. The question was:
"[L] cross-examination by Mr Percy.
Issue of penetration in swimming pool.
Does [L] make a reference to being unsure if penetration occurred? We believe that at one stage during cross-examination that [L] stated that she did not know if penetration happened."
208 The jury's recollection was correct. The complainant's evidence was that she could not recall the appellant's penis inside her. She did recall semen floating in the pool and assumed she must have had sex with the appellant. But she could not say there had been penetration. Even if her evidence was taken as completely truthful, that evidence was incapable of supporting the charge of rape.
209 Count 11 was another charge of rape, between 1 January and 31 December 1982. This was the Tai Chi incident. L testified that this occurred "probably towards the end" of their stay in that particular house. She said the appellant used to do Tai Chi out in the back grass or courtyard area behind the house. Behind that was bushland. She said he would do his Tai Chi exercises for half an hour at a time, sometimes in the morning and sometimes at night. She said she remembered it just being night-time. She said he told her to meet him out there about 20 minutes later. She said she just remembered being out there, both of them standing, him again having sex with her from behind and she with her hands on her knees. She said, " ... and I can't remember how long it went on for or too much about it." She could not remember if he ejaculated, nor what she was wearing, nor what he was wearing. She could not remember any conversation other than his instruction to meet her out the back.
210 The appellant's evidence was that he was not doing Tai Chi but a regime called "Chi Kung" which had to be done in the mornings. He explained particular reasons why it was only a morning exercise. The complainants' mother, in her evidence, also said that the appellant used to do those exercises only in the mornings.
211 It has to be remembered that all of these counts were said by the complainant to be particular incidents she could specifically recall, against a background of general sexual conduct by the appellant towards her, of varying kinds. The jury had to be satisfied beyond reasonable doubt in respect of each count, that the particular incident had occurred and, inter alia, that the complainant was not mistaken or confusing one incident with another. In this context, the requirement for them to be satisfied beyond reasonable doubt had particular significance. In light of the mother's evidence about when the appellant did his exercises, and L saying she could not remember too much about it, as she did, the jury might have accepted the complainant as truthful, but having a mistaken or confused recollection about this incident, or may simply not have been prepared to regard her recollection of it as sufficiently reliable to persuade them beyond reasonable doubt that she was raped by the appellant in that particular way in the evening, on that particular occasion. The jury might well have accepted she had been raped by the appellant in that way, but not been satisfied of the specific occasion she described, especially as she said she could not remember too much about it.
212 Count 14 charged an offence of rape, again between 1 January and 31 December 1982. This was the occasion in which L testified that the act of intercourse took place as she stood in the courtyard with her hands on the window, looking directly into her own bedroom.
213 The mother's evidence was that although there was a door from L's room going into the courtyard, she could not recall there being windows on that side. She said she thought that it was simply a wall. She did not recall there being a window there. She was asked if it were to be suggested that a person could stand in the courtyard and look through a window into L's room, what she would say to that, and her response was (t/s 807):
214 "No, I don't recall there being a window there."
215 The appellant's evidence (t/s 866-7) was that although L's room had windows, they were on the other side and not into the courtyard. Reminded by his counsel of L's evidence that on her 16th birthday she had some girls stay over and that the appellant then had sexual intercourse with her from behind up against the window and she could look in and see the girls, the appellant said:
216 Again, this was an instance in which there was evidence from the mother tending to support the appellant's evidence that if there was a window there it did not look into L's bedroom. It would be entirely understandable for the jury to be inclined to believe the complainant's account, yet at the same time be left thinking the mother's evidence, together with that of the appellant, cast at least a reasonable doubt upon it. A direction commonly given to juries is that even if they do not positively believe evidence given by an accused person, they cannot convict if it leaves them with a reasonable doubt about the truth or reliability of the prosecution evidence. The point is, the verdict does not necessarily show the jury came to a positive conclusion the complainant was untruthful about it.
217 Counts 27 and 28 were counts of rape and indecent assault respectively, in the BMW sedan at Eagle Bay. L testified the acts occurred in the appellant's brother's dark-coloured BMW. The evidence of the mother and uncle was that the only BMW he had owned was light-coloured. A photo was tendered in evidence at the trial. When the photograph was shown to L (t/s 351) and she was asked whose car it was she said she "wouldn't have a clue". She said she could not recall whose car that was. Counsel put it to her it was the car her uncle owned at the time. She said no, she thought he had a black BMW. She did not recognise the car in the photograph. She was then shown a photograph of the interior and the handbrake was pointed out to her. Asked whether that was the one with which she had been sexually interfered she said she could not be sure. The photo shows a handbrake parallel to the floor of the car, and with very little space between it and the centre console. There might be thought to be an obvious physical difficulty in achieving penetration of a woman's vagina in the way described by the complainant, with that handbrake. In cross-examination, asked whether the handbrake was in an elevated position at the time or was down, she said she did not know in what position it would have had to have been to be inside her. She said she remembered it going in and remembered it hurting and remembered it not lasting for very long. It was put to her that the way the handbrake is in that sort of car, it would have been almost impossible for her to have the handbrake in her. She said it was not a very pleasant experience to just want to make up.
218 The combination of the conflicting evidence about the colour of the car, the photo of the handbrake, and the lack of any independent corroboration, may well have left the jury unable to be satisfied of that offence beyond reasonable doubt. It does not inevitably follow that they must have found L was untruthful about it. Again, it is entirely feasible that the jury may have been inclined to believe her but in the circumstances not taken to the point of being satisfied of that beyond reasonable doubt.
219 The next acquittal was in respect of count 30. That was the incident of oral sex in the car park near the family home.
220 In her evidence-in-chief, L said that at that time she and the appellant always used to go home from the office to have lunch with her mother. On this occasion he stopped at the very end of the street where there was a gravel parking area with steps down to the beach. While they were parked there, she gave him oral sex.
221 In cross-examination she said the street was a dead-end. She was asked whether her evidence was that they had driven to the dead-end of the street, parked the car, had oral sex and then returned to the home. She said that to get to the car park, it was not necessary to always drive past the front of their house. It was put to her that she had never said they went around the back way. She replied that she never said they drove past the house either. It was put to her that out of all the places they could have gone, they chose the dead-end of the street where her mother was actually waiting at home at the time. She replied "I didn't choose it, no." Later in cross-examination, asked whether the end of the street was only 100 yards from their front driveway, she said it was further. She denied that their house was one of the last down at the end of that street. Asked how far away from the house they were parked, she said she could not say, 200 or 300 metres. Asked whether she was now saying they did not drive past the mother's house on the way there, she said she could not remember driving or getting there; she did not know how they got there.
222 In his evidence, the appellant denied the incident happened at all and added that it just seemed ridiculous to him to assert that they would drive down in front of their own house. He did accept there were other ways to get to the end of the street, but they would not be the quickest route. He said there were toilets and change rooms there and even in winter times there were lots of people who would come down - it was a very public spot.
223 Having regard to L's agreement that the street was a dead-end street, her uncertainty about how they got there and the appellant's own evidence about it, at least one reasonable explanation for the verdict is that the appellant's evidence about that and the fact that the most direct way to get there would have been to drive past the house where the complainant's mother was waiting for them, the jury simply were not satisfied beyond reasonable doubt that the particular incident occurred in the circumstances described by the complainant. To entertain a reasonable doubt does not require positive disbelief.
224 Count 31 was a charge of penile sexual penetration without consent. This was said to be the last time the appellant had sexual intercourse with L. It was the occasion she said she noticed the Vaseline jar.
225 In her evidence-in-chief, L said she remembered this being fairly early in the morning. Her mother was visiting the next door neighbours. Asked in cross-examination why her mother would have been visiting the neighbours that early in the morning, she said she did not know why her mother had gone next door. She said she could remember it being light when the incident happened. Sometime later in cross-examination, being asked about what she had initially told the police in her statement, she agreed that she had initially told the police this incident happened on 1 April 1985, but that was subsequently altered to 1986. She could not recall why that change had been made, it could have been a typing error. In her statement she had said that the appellant came home in the morning and her mother had gone out with the next-door neighbour. She had no idea where the appellant had been. In evidence, she reiterated that she thought her mother had just gone next door to visit the neighbour. She was cross-examined about times and about her diary entries which indicated that she had gone shopping with her mother, had seen someone in town and the mother had dropped her off at her fiancé's at 10.30. She said (t/s 506):
"It could have happened early in the morning. I don't know."
226 She was referred to her statement, in which after describing having sex with the appellant, she said he had a shower in the en suite and she had a shower downstairs and later her mother came home and dropped her over to her fiancé's house. It was put to her that what really happened was that she went shopping with her mother and from there her mother dropped her off at her fiancé's at 10.30. She said "It's 20 years ago. I'm not too sure." She denied that the allegations had been made up.
227 In her testimony, the mother gave uncontested evidence that for about a year or more during 1985 and 1986, the appellant was very ill. He suspected he had a tumour on his bladder or something like that. Asked whether that had an effect on his genitals or urinary tract function or sexual performance, she said that he was "not great at all" in any of those areas - he had bowel and urinary problems and his sexual function was not good at all. She said he had to go into hospital to have it all sorted out. He was given an internal inspection of the bowel and urinary tract because he was bleeding badly from the bowel and vomiting up blood as well. This was a short while before they moved back to Perth. She said he was "... just uncontrollably sick, you know. It was just awful."
228 Because of the complainant's uncertainty about the events combined with the evidence that the appellant was unwell at that time and that affected his sexual functioning, again the jury may simply have been left with a reasonable doubt, without necessarily disbelieving the complainant.
229 Count 32 was the first of the charges in relation to J. Her evidence-in-chief on this was (t/s 570):
"The first time was - I was on the living room floor. We had someone staying with us because - [L] and I had a single bed each in that room and for some reason I was out on the living room floor. I remember him, [the appellant], leaning over and kissing me goodnight, which was a regular thing that happened, and I remember him putting his hand down the front of my pyjama bottoms and just touching me. That was the first time.
You say the front of you [sic] pyjama bottoms, was that on the inside or the outside of your clothing?---I believe it was on the inside.
Just so we're clear where you were touched, where exactly were you touched?---On my vagina.
Did that go on for very long?---Not that I recall.
When you say touching, was there movement or - just describe for us what you recall?---I just remember it being like a quick - there was rubbing, that's all I remember.
Do you remember what time of day it was?---I believe it was night.
Do you remember where other people were?---I think everyone was all in bed; I think it was night-time.
In terms of - you lived at this ... residence for a while. Are you able to say if it was closer to the time you moved in or closer to the time you moved out?---I couldn't say.
Do you recall why it was you were sleeping on the living room floor?---Sorry?
Why you were sleeping on the floor there, do you remember why?---I believe someone was staying with us, but I don't recall who it was."
230 In her evidence the complainant's mother said J had actually turned 14 when they were living at that unit. She described it as a "very, very small unit" with "a tiny little bedroom" which had two single beds.
231 Even if one entirely accepted J's evidence about this, one is readily able to see why a jury would have entertained a reasonable doubt about whether or not there was a deliberate touching by the appellant of a sexual nature. J said only that she "believed" his hand was on the inside of her pyjamas. She described it simply as a touching which did not go on for very long - it was just a quick rubbing. And on her evidence it occurred in a very small unit in the living area at a time when there were guests staying there. The acquittal on this count clearly could not only have been the result of the jury positively disbelieving the complainant. On her evidence and given her uncertainty, they may well not have been satisfied that particular act was not accidental. Much the same may be said of the final acquittal, which was in respect of count 33.
232 Count 33 was a charge of indecent dealing with J, a child under the age of 14, by placing her hand on his penis. This and the incident in count 32 were the only ones which J said she could remember the specifics of as happening while they were living at that unit. Her evidence about this too, was brief, in chief (t/s 571):
"I remember - I remember [the appellant] getting me to place my hand on his penis, but he had his hand over my hand.
Where were you when this happened?---In bed.
Where was he?---He was in my bed.
So he was in bed with you, and tell us what happened?---And his penis was outside his pants and he had my hand with his hand over it and he was guiding it to rub up and down. That's all I
Do you remember if that went on for very long?---I don't recall.
Do you remember where other people were in the house? You're shaking your head?---No.
Do you remember any conversation?---No.
Did you want that to happen?---No.
Do you recall what year at school you were in when that happened?---Year 8."
233 In cross-examination she said she could not recall where L was when the appellant got into her bed on this occasion. She said she was sleeping on a single sized mattress but could not recall whether it had a frame to it or it was on the floor. She said she could recall that L had a white wrought iron bed, a single bed. She said she could recall what happened although she could not recall whether it was on a mattress or a bed. She insisted that the incident did happen and what she had said was true, but again said she could not recall where her sister L was. Pressed further, she said she was not in the room. The complainant's mother had said that the complainant J had a single bed in the girls' room at this unit.
234 Counsel for the respondent points out that the appellant was physically a large man and in light of that, together with the vagueness of J's account, it would again be reasonable to accept that the jury were not brought to a state of satisfaction beyond reasonable doubt, albeit without positively disbelieving the complainant.
235 There is nothing about the verdicts of acquittal in respect of the counts relating to either L or J which leads to a conclusion they are explicable only on the basis the jury positively disbelieved either of the complainants about them. In light of the trial Judge's directions to the jury, it must be the case that they were satisfied beyond reasonable doubt of the truth of the evidence of each complainant in relation to those counts on which they returned guilty verdicts. The not guilty verdicts demonstrate no more than that the jury complied with her Honour's directions to deal with each count only on the evidence which went to it. Indeed, the selective acquittals are much more indicative of the jury having a sound appreciation of the requirement that the Crown prove each element of each offence beyond reasonable doubt. There is no necessary inconsistency in the verdicts and they have not been shown to be unsafe or unsatisfactory on that account.
236 It appears that on the morning of 21 January 2005, the fourth day of the trial, and before the trial resumed, the Judge received a communication from the woman foreman of the jury. We say it appears so, because unfortunately whatever the communication was, it was neither read nor repeated into the transcript. What the transcript does show is that (at t/s 421) her Honour said that from the communication it appeared there would only be a problem if the complainants' brother was to be called to give evidence. As her Honour understood it, the foreman did not know any of the people involved and nor that he had half-sisters. Senior counsel for the appellant expressed the view that even if the brother was not going to be called, the degree of polarisation of the families in the case would make it unfortunate if someone knew or had an association even with a distant member of the family. He said that in any event he would envisage that the brother was going to be called. After some brief discussion her Honour opined that it would be necessary to discharge the foreman, but before doing so called that juror into court in the absence of the other members of the jury. What followed appears at t/s 424:
"I understand from the sheriff's officer that you have realised you now know - it's [S] I think. He's a friend's ex-boyfriend or anyway. Have you mentioned this to the other members of the jury or has there been any discussion about this at all?
THE JUROR: No discussion, I just mentioned on the way, "Oh my goodness, I think I might know something about evidence."
FRENCH DCJ: Okay. Thank you very much for letting us know. I discussed it with counsel and we feel that, although it probably wouldn't make any difference, I'm sure it wouldn't make any difference in terms of your decision on the evidence, the difficulty is that, particularly with perception
THE JUROR: I think it would be quite difficult for me as well.
FRENCH DCJ: There you are, you have answered the question. The nature of the matters involving family members at odds with one another always makes it very difficult; so thank you very much for your participation. Thank you very much for advising us in a timely manner and you are now excused from further attendance."
237 Following the discharge of the juror, the other members of the jury returned. Her Honour directed them as follows (t/s 424-5):
"Members of the jury, you may have noticed the foreman is missing. She has advised the court, and I understand she may have mentioned that to you, that she suddenly realised that she knows somebody connected with the people involved in this trial and she would find it difficult in those circumstances and it means she wouldn't be able to continue on the jury. It's all part and parcel of what I was saying to you before; you focus only on the evidence from an objective point of view, that's why you are asked if you know people.
Unfortunately, occasionally the penny doesn't drop perhaps until something is said, so she wasn't aware unfortunately that she did know someone connected with the people involved in this trial until yesterday as I understand it, so she has advised the court now and she has now been excused. That means that we are down to 12 of you ..."
238 At the hearing of the appeal the appellant sought leave to rely upon three affidavits. There was one from the complainants' mother and the appellant's ex-wife sworn 22 July 2005, one from the complainants' younger brother also dated 22 July 2005, and one from the appellant himself sworn on 25 July 2005. Mr Stone, counsel for the respondent, objected to a portion of the affidavits, essentially on the ground of hearsay. We received the affidavits subject to objection. To the extent they do contain hearsay material, it is essentially only repetitive of what another deponent says.
239 According to the brother, in July 2000 he began dating a girl, Z. The relationship continued for nearly 3 years, ending in June 2003. A year or so into the relationship he told Z that his father was facing criminal charges which involved offences committed against his stepsisters J and L. He deposes that they did not really discuss the topic any further. Whilst dating Z, he was introduced to B, a friend of hers. The three went out together quite often. Z told him that she and B had been best friends since they were very young.
240 During the first few months B and S got along quite well. However, one evening in 2002 the three of them, along with a group of approximately 15 male and female friends, were at a hotel in Nedlands where there was a confrontation. S had travelled there in a car with the two girls. B was driving. On the way, Z and S had what he believed to be a minor argument. He cannot remember why they were arguing. B involved herself in the argument. It stopped before they arrived at the hotel, and they went inside. Later that evening, one of B's male friends approached S and asked why he had hit Z earlier in the evening, which he said B had told him. S became angry at this and confronted B and asked her what these lies were about. He became quite upset and some of B's male friends turned on him. There was some pushing and shoving but no punches were thrown. S was unhappy and decided to leave. As he was going into the car park he saw B and Z getting into B's vehicle. He went to speak to B again and ask why she had made these false allegations against him. When he got to her vehicle she was seated in the driver's seat with the window down. He deposes that he stood next to her window and asked what she was doing and why she was lying to people. She wound up her window and starting the car without answering him. This made him quite angry and frustrated, as a result of which he punched her passenger car door with his fist. B then got out of her car and went back inside the hotel. Some of her male friends then came out into the car park and threatened to assault S. He left as soon as that occurred.
241 S deposes that a couple of months later B attempted to contact him. Z told him there was $250 worth of damage done to B's vehicle. B called and sent text messages on several occasions asking for money and claiming she would issue court proceedings to recover the money from him. He never answered any of her phone calls or her messages.
242 According to the mother, S had told her about this incident in 2003. Later, she received a telephone call from B who said she had been calling and leaving messages for S but he would not contact her. She wanted the money for the repair of the car. The mother told S that if he wanted to stop B harassing him he should just pay her the money. As he did not have the money to pay her at the time and the mother wanted to put an end to the situation, she posted a cheque to B for $250. The cheque was banked on 13 July 2004.
243 During the appellant's District Court trial S telephoned Z and asked her whether she would consider appearing in court as a character witness for the appellant. She agreed to do so. She also told him that B had been a juror at the trial " ... and indicated that they had discussed the trial at length." That last is, of course, hearsay, and not only that, is so vague as to be meaningless. That statement should be rejected.
244 In his affidavit the appellant deposes that whilst the jury were being empanelled he did not identify anyone amongst the jurors whom he believed he had ever met before and nor did he specifically recognise any of them. When they chose a young woman in her early twenties as the foreman he thought he recognised her but was not sure. He did not say anything to his counsel at the time. He deposes that four days into the trial, on 21 January 2005, the foreman informed the Court that she believed she knew S. He states that at this stage he assumed the foreman must have been a friend or acquaintance of S's and believed the best course of action would be to continue the trial. Those were accordingly his instructions to counsel. He deposes further that towards the end of the trial he asked S to speak to his ex-girlfriend Z about whether she would be willing to give character evidence for him. S told him that he had spoken to Z and that she was willing to be a character witness. (We note she was not in fact called.)
245 S told the appellant that he had spoken to Z and that he knew the young woman who had been chosen as the foreman as he was Z's best friend and he had been involved in an incident with her. He told the appellant that he and the foreman were on bad terms as a result of the incident. The appellant deposes that at that stage he did not believe the matter was very serious, but since his conviction, he has learned that the incident between S and the foreman was much more serious and of an acrimonious nature. The extent of his present knowledge is derived from S and is in accordance with what S has deposed to in his affidavit, which the appellant has read. The appellant deposes that he believes the foreman may have had strong feelings of resentment towards S and that she had an opportunity to influence the other jury members. He says that if he had known then what he now knows about her he would have asked the trial be aborted and for a new jury who were not connected in any way with him or his family.
246 Insofar as the appellant deposes to what he was told, we would receive that evidence, not as evidence of the truth of what he was told, but as the fact that he was given that information.
247 In Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 the High Court held that the test to be applied for determining whether an irregular incident involving a juror warrants the discharge of the juror or, indeed, the whole jury, is whether the incident is such that, notwithstanding any proposed or actual warning of the judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge their task impartially.
248 Webb was a case in which a woman juror had given a bunch of flowers to a person at the courthouse with a request that it be given to the deceased victim's mother. The trial Judge held that the question was whether there was a real danger that the position of the accused had been or might have been prejudiced by what had occurred. He dismissed the application, stressing to the jury the need for them to have regard only to the evidence, which they were to consider in a dispassionate manner, putting aside all feelings of sympathy or emotion.
249 Whilst holding that the "real danger of prejudice" test was not the appropriate test, on then applying the "reasonable apprehension" test, the majority nonetheless concluded that the ground of appeal failed. Mason CJ and McHugh J said (at 56):
"Although, by her own admission, the juror was an impulsive person and had disobeyed an earlier warning not to communicate with persons associated with the case, we think that a fair-minded and informed person would not apprehend bias on her part. While her sympathy for the deceased's mother had caused her to act as she did, that sympathy had not manifested itself in any act of hostility towards the accused or of partiality to the Crown. Its significance lay in the fact that it indicated that the juror was or might be incapable of examining the evidence dispassionately and impartially. But the public ventilation of the incident, the juror's apology, the recognition of the seriousness of what she had done, the general attentiveness and diligence of the juror, and the strength and detail of the judge's second warning were countervailing factors of considerable strength. A fair-minded person would assume that the juror would do her best to follow the judge's direction to look at the evidence 'coldly, dispassionately and above all, objectively and using [her] common sense'. When a fair-minded observer also considered the opinion of the judge - the person on the spot - that the juror would be able to approach the issues dispassionately, we think that a fair-minded person would not have an apprehension of bias or lack of impartiality on the part of the juror. It follows that this ground of appeal fails."
250 In this case there are really two questions. The first is whether a fair-minded and informed member of the public might have a reasonable apprehension or suspicion that the foreman was not impartial, and secondly, if so, whether as a consequence of anything she may have said to the other members of the jury, a fair-minded and informed member of the public might have a reasonable apprehension or suspicion that one or more of them had not discharged their task impartially. We recognise that the appellant deposes to having such an apprehension, and that is a matter to be taken into account, but it is by no means conclusive and it is not the test.
251 As Mason CJ and McHugh J pointed out in Webb (supra) at 53, in considering whether a reasonable apprehension of bias exists, it is necessary to consider the likely effect of the Judge's directions, as well as the irregularity in question.
252 Dealing with the latter first, the first observation to be made is that there is nothing to suggest the foreman knew the appellant. The appellant deposes that he may have met her on one occasion at his son's 18th birthday party. That is only a possibility and does not take the matter any further. The brother was not a prosecution witness, and so was not mentioned when the names of the prosecution witnesses were read out to the jury panel.
253 The situation was that the foreman did not realise she knew anybody involved in the trial until it had been running for three days. Anything she might have contributed to any discussion amongst the jurors to that point could clearly be of no concern. Once she realised she might know the appellant's son, the brother of the complainants, she told the sheriff's officer that she "might know something about evidence". She said she had no discussion with other members of the jury about that. Even if she had, it is difficult in the extreme to see how what she might have said about the son could have had any bearing or influence upon her or the jury's attitude to the appellant in respect of the offences with which he stood charged - especially as the brother had not given (and in fact eventually did not give) evidence.
254 As to the effect of the Judge's directions, once she had discharged the foreman and the jury had returned, her Honour spoke to them in the terms I have set out above. Her Honour then gave the jury instructions to select another foreman and the trial continued.
255 In her introductory remarks and again in her summing up, the Judge repeatedly directed the jury that they had to decide the case in an objective way and only upon the evidence they had heard in court. At t/s 1151 she said:
"So far as the evidence is concerned you focus only on the evidence that you have heard in court, you take care in drawing inferences, as I have just suggested to you, and perhaps most importantly in a case like this, you focus on the evidence in an objective - or perhaps a dispassionate way may be the best way of putting it. It is for that reason why when your numbers are first selected a couple of weeks ago when you were chosen to go on the jury everyone was asked if you knew anybody, any of the names of the witnesses who were going to be called, if you knew any of the people involved in this trial.
You are asked when you go home at night and on weekends don't discuss this case with anyone other than the people on the jury with you because it's important that you focus on the evidence from an objective point of view. If you know any of the people involved in a trial it may consciously, or perhaps subconsciously, affect the way you view the evidence. If you get comments from somebody else about the trial, about any of the evidence or about the nature of the case that can affect you and you focus on the evidence only what you hear in court and from an objective point of view."
256 There is no reason to think the jury would not have complied fully with these directions. Indeed, their different verdicts indicate they did.
257 Taking account of the nature of the irregularity which occurred, what the juror said about it and the likely effect of the Judge's directions to the jury, the circumstances are incapable of giving rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the jury (or any member of it) did not discharge their task impartially.
259 As the appellant has not succeeded on any of his grounds of appeal against conviction, we would dismiss the appeal.
260 Her Honour imposed sentence on the respondent M on 16 March 2005.
261 She began by noting that in respect of L, the respondent had been convicted on 10 offences of rape under the repealed s 325 of the Code, in addition to 10 convictions for offences of indecent assault. The offences were representative of a continuing course of sexual contact and could be characterised as representing a continuing and abusive sexual relationship which continued for over four years from 1985 to 1989 when L was approximately 14 to 18 years of age.
262 Her Honour noted that in relation to J, the respondent had been convicted of one offence under the repealed rape provision and seven offences of sexual penetration without consent, together with three offences of indecent assault. These offences also, her Honour described as representative of an ongoing course of conduct which consisted of an abusive sexual relationship covering a period of over four years from 1981 to 1985 and, as with L, whilst J was approximately 14 to 18 years of age.
263 The first offence was committed against L when she was approximately 14 and the respondent was approximately 26 years of age.
264 The Judge said that putting aside the incidents of sexual abuse, the evidence painted a picture of a close and intimate family relationship in which both complainants addressed the respondent as their father. She said that in those circumstances it was difficult to work out how these lengthy periods of offending occurred. The close family relationship also included the extended family. She said there seemed to be no issue that the complainants were closely nurtured and in fact they had acknowledged that through the course of their evidence.
265 Her Honour repeated that the respondent was in his early twenties when the sexual conduct started with L and in his early thirties when it commenced with J. She said the evidence was consistent with what would today perhaps be characterised as a relationship that was, apart from the sexual abuse, a close one and indicative of a close family where the respondent had bonded very closely with his two stepdaughters. She noted that both used his surname even before they were able to and both called him father and acknowledged him as such so that to the outside world, to all intents and purposes, this was a normal, happy and loving family. At t/s 1230 her Honour said:
"Although trying to work out the dynamics of how the tragic events occurred is really not possible, perhaps the genesis of it can be seen in the evidence of [J]. She said that in the circumstances she was anxious to please you. She craved your attention and affection. Tragically, and for reasons which are really, I would think, unknowable, this turned into the relationship, which was clearly an abusive one. There was no force used. No coercion, or threats or intimidation in any way, and this is on the complainants' evidence - both complainants' evidence.
It would seem that, somehow or another, and perhaps because of the way the relationship commenced, you managed to gain the girls' complete trust, and they became, in effect, and apparently, complicit in keeping the sexual contact and the relationship secret from their mother, and even from each other, and from anyone else in the immediate and in the extended family. In saying this, I am not suggesting in any way that they were to blame or responsible for what happened.
Clearly, at the age of 14, or close to that, or even younger, older, when it involved a stepfather who was in their eyes a charismatic man, larger than life, someone that they loved, and someone whose affection that they sought, they were not in a position to understand or appreciate the significance of what was happening. Once it started, it appears, on their evidence, they did not know how to stop it, or how to control it. In relation to the complainant [L], she described it as not being able to distinguish the love and affection from the sexual contact, and a great deal of confusion that arose as a result of that.
In relation to [J], that seems to have been less of a factor, and she appears to have been significantly controlled by her strong need to keep the family together, and to keep up the appearances. While she says the appearance of, to all exterior analysis, what appeared to be a very close and happy and loving family - while she says that she didn't, her evidence was that she tried avoidance techniques in a variety of ways."
266 The Judge noted that the sexual abuse in relation to L ceased when she left home at 18 years of age and became engaged to be married and that it was at approximately that time that the sexual abuse of J commenced. This continued, she said, until approximately 1989 after she had turned 18 and was effectively independent and in a position to control what was happening to her.
267 Her Honour said that the victim impact statements, especially that of J, poignantly articulated the difficulties both young women experienced in making the initial disclosure and then in making the formal complaints and initiating the criminal justice processes that ultimately led to the lengthy trial and the convictions on the majority of the offences. As her Honour observed, the delay in lodging formal complaints was, as with the initial delay in disclosure to the immediate family, caused by real concerns as to the consequences and the effect on their mother, their brother and other family members. She referred in particular to J's victim impact statement in which she described in some detail the battle that she had waged and the fact that she and her sister L realised that they needed to look to their own circumstances and difficulties and their own realisation and acceptance that in order to be able to heal themselves, they needed to go though the formal process. Turning to the respondent, her Honour acknowledged having read the sentencing submissions presented on the respondent's behalf, as well as the pre-sentence, psychological and psychiatric reports.
268 She referred to the fact that the respondent was then before the Court as a man aged 50 and that he had been married to the complainants' mother until they separated following the disclosure of these offences in 1995. His son, the complainants' stepbrother, was then 21 years of age. Her Honour said the respondent left school early and had obviously worked very hard throughout his life. He was a talented sportsman and by sheer effort rather than education, built up a very successful insurance and financial business. She said it was apparent from the information before her that that had now effectively gone and that since the disclosure of the offences and the formal charging of the respondent it had been impossible for him to maintain the business which had suffered significantly. She said it was her understanding that the respondent was "imminently" bankrupt and in effect all his efforts had gone as a result of the failure of the business. She noted that he came before the Court as a first offender and a man of otherwise impeccable character. She referred to the lengthy references provided to her as well as the evidence led during the course of the trial attesting to his good character both professionally and in community projects and enterprises.
269 One feature of the reports to which her Honour made particular reference was the fact that the respondent had throughout maintained his innocence and was still so doing. She said that meant that while there was no remorse or a plea of guilty for her to consider as mitigation "... clearly, issues of rehabilitation are not relevant, apart from the fact that I accept that there is no real issue of any significant risk of reoffending" (t/s 1232).
270 The Judge said that it was clear that the only appropriate disposition would be a substantial period of imprisonment to be served immediately. She said the sexual violation in the case was clearly aggravated by the breach of trust, the multiplicity of offences and the length of time the offending spanned. Furthermore, the fact there was a second complainant, in this case the younger sister of the first complainant, increased the seriousness of the offending and as was apparent from their victim impact statements, had compounded the profound and devastating effects of the abuse on the two young women.
271 Her Honour said there was little by way of mitigation apart from the respondent's good character and antecedents. She said she thought the case was difficult to compare with other sentencing cases put before her, adding that (t/s 1233):
"In this case while the offences involved full sexual intercourse and of course a breach of trust there were no elements of physical force or brutality or depravity that is often the hallmark of some of the cases that are generally characterised as occupying the upper range of the scale in offending of this nature."
272 Although there was one offence which on its base could be taken as indicating some kind of unusual or depraved conduct, seen against the whole context of the offending and the relationship, she did not consider it significant nor that it detracted from the general nature of the offending throughout the relevant period. Her Honour was there presumably referring to count 9, involving the penetration of L with a cucumber.
273 Having pointed out the fact there is no tariff for offences of this kind and referred to the difficulty of a comparison of individual cases, her Honour said (t/s 1234 - 1236):
"It is I consider significant in evaluating the nature and extent of the offending in this case to recall [L's] comments which were made on a number of occasion[s] in the course of cross examination that she did not see [the respondent] as a monster. There were also numerous comments when she was trying to detail the course of the offending when she described the confusion she felt in mixing up the love she felt and the loving relationship she regarded as having with [him] with the sexual relationship and in distilling that she described I think on a number of occasions as saying, wanting the love, but not the sex.
While that doesn't detract from the fact that the serious offences were committed against her and clearly have had a devastating affect [sic], nonetheless they are matters that must be taken into account in attempting to evaluate the nature and extent of the offending and for purposes of comparison to the extent that that is possible with other cases. Although [J's] evidence was perhaps somewhat different in terms of the nature of how the offending commenced and the nature of her relationship with [the respondent], nonetheless many of her comments were also of a similar nature.
Indeed, the fact that the relationship continued albeit until the disclosure within the family in 1995, the nature of the contact and the extent of the contact does throw some light on the nature of the offending in the previous periods. I note that in the High Court decision in the matter of Ibbs (1987) 163 CLR at page 45, although dealing with the offences of a different - falling into a different category the court commented on perhaps - or made what perhaps could be described as the trite observation that crimes bearing the same general description have not equally evil content or characteristic.
I think a little further on the comment is made that the heinousness lies in the facts of the case; not in the statute defining the offence. For those reasons I would not characterise the offending in this case as falling in the worst case category on the scale of criminality and I consider that the circumstances of this case - and when I refer to the circumstances I am relying entirely on the evidence of the complainants. This case can be distinguished from the cases that are described as falling into the category of worst case in offences of this nature."
274 Moving to the actual imposition of sentence, her Honour prefaced her further remarks by saying that in relation to the offences of rape against L she had drawn no distinction between them for the purposes of sentence, given that they reflected an ongoing course of conduct. She said that prior to the Sentencing Act amendments, she would have imposed a sentence of 6½ years' imprisonment for those offences. In respect of the indecent assault offences, although they would now be classified as sexual penetration, they fell at the upper end of the scale in terms of indecent assault offences and she would have imposed sentences of 3 years in respect of those. In respect of the complainant J, she would previously have imposed a sentence of 6½ years in relation to the first count of rape and for the offences of sexual penetration without consent. In respect of the three counts of indecent assault, she would have imposed sentences of 3 years on each of counts 35 and 38 and one of 18 months on count 40. Her Honour said that all those sentences had to be reduced by one-third to reflect the amendments to the Sentencing Act.
275 In relation to L, her Honour imposed a sentence of 52 months on counts 1, 7, 8, 10, 13, 20, 23, 25, 26 and 29; 2 years' imprisonment on counts 6, 9, 12, 16, 17, 18, 19, 21, 22 and 24. In relation to the complainant J, her Honour imposed a sentence of 52 months on counts 34, 36, 37, 39, 41, 42, 43 and 44; in relation to counts 25 and 38 she imposed sentences of 2 years each and one of 12 months in respect of count 40.
276 Turning to the question of concurrency and accumulation, her Honour said (t/s 1236 - 1237):
"I consider that it is appropriate that the sentence [sic: sentences] in relation to each complainant should be concurrent. The offences reflect a continuing course of conduct, albeit over an extended period of over four years."
277 Her Honour said that the question of cumulation for sentences for each complainant was more difficult. While it was the case that the course of offending against each complainant was separate and it was arguable there should be a cumulation of the sentence for both complainants, in the circumstances of the case she was persuaded that the combination of the circumstances and the totality principle meant it was appropriate to make the sentences in relation to each complainant partly, rather than wholly, cumulative.
278 It was at this point and in this context that her Honour returned to a consideration of the respondent's antecedents.
"The offender is a man who has enjoyed a position of good regard in the community. He is hard working and has enjoyed a position of high regard both from his professional colleagues, sporting associates and a wide circle of friends and associates. The pre-sentence report confirms the submissions from his counsel that his business has suffered significantly and he is essentially bankrupt and has lost everything that he has worked for as a consequence of his businesses failing following being charged with these offences.
I am also conscious of the fact that any period of time in prison will be probably very difficult for him because of the personal circumstances that I have just outlined. Although the psychiatric report and in some parts the psychological report indicate that he is on their interview coping well in terms of adapting to the prison environment, a closer examination of some of the comments of Mr Greble in the pre-sentence report sheds some light on that. I note at page 3 of his report and there's also comments to this effect in the psych report as well, [the respondent] proposes to appeal against his convictions.
He described at some stage the effect of his imprisonment in the last six weeks as being surreal. He advised the interviewers, the psychologist and psychiatrist, that he was confident of being released upon his appeal being dealt with. So in that extent I think his responses that he is coping well with the imprisonment needs to be seen in that light. I consider that looking at all of the information before me and the psychological report that any period of imprisonment will be extremely difficult for him. Mr Greble comments in his last paragraph:
'It will be his first term of imprisonment. He is not hardened to the rigours and morays [sic] of prison life - so the experience is likely to be difficult for him.'
I note also that in the psychological report there are comments about the effect on [the respondent's] family, and in particular, on his young son, and I note the comments in the reports, that [the respondent] became very distressed when talking about the impact of these offences on his son. While I accept that the effect on family members, even a child, on the imprisonment of an offender is not a matter that is usually taken into account, it does affect and have impact on my view as to how [the respondent] will cope with a period of imprisonment.
It is clearly going to be made more difficult for him when he is conscious of this stress that his imprisonment and his situation are having on his young son, and what that means is that, together with all of the other factors I have mentioned, operate to mean that any period of imprisonment will be a very difficult ordeal for him. Although these offences are clearly serious and, as I said, require nothing other than an immediate term of imprisonment, there is no indication on the information before me that constitutes any danger, or that there is any real risk of offending upon release.
Although the psychological report referred to the fact that issues of rehabilitation and sex offender treatment programs are not relevant, it is also the case that there is no indication of any other offending since 1989, and there is nothing in the psychological reports or the psychiatric reports that would indicate that there is any danger to the community, which is perhaps not unusual, given the circumstances of these offences. I am satisfied that in the circumstances - and certainly I don't consider there would be any danger or risk of reoffending upon his release from prison.
I am satisfied that in the circumstances of this case the reduction of a period of imprisonment by the imposition of a partly cumulative and partly concurrent sentence is appropriate. It will, in the circumstances of this case, taking into account all of [the respondent's] circumstances, operate as a significant deterrent, and as a significant general deterrent, and I also consider that in the circumstances, it will also operate as an appropriate and effective punishment for him.
Therefore, all of the sentences will be - as I said, in relation to each complaint, all the offences will be concurrent with each other, with the exception of count 34. The sentence of 52 months on count 34 will be served only partly concurrent with the sentence in count 1 of 52 months. It will commence after the expiration of 20 months of the sentence on count 1. This makes a total head sentence, on my calculations, and on my understanding of the provisions of the Sentencing Act, of 72 months, or six years."
280 Her Honour made an order that the respondent be eligible for parole which she indicated on her understanding would be after he had served 4 years. She ordered the sentence to be backdated to commence from 2 February 2005.
"1. The learned Judge erred in imposing a sentence which failed to reflect proper regard to the requirement for general deterrence and the need for condign punishment to protect children in the community.
(i) The offending behaviour was conducted over approximately an eight year period,
(ii) The Respondent was in a position of trust and authority in relation to the complainants, being their step-father,
(iii) The offences were perpetrated against 2 complainants,
(iv) The complainants were children and the respondent was a mature man,
(v) The offences were representative charges,
(vi) The degree of corruption of the complainants involving as it did sexual intercourse with the complainants from the age of 14 years,
(vii) The effect of the offending behaviour on the complainants, and
(viii) The persistence of the offending.
(i) The prior good character of the respondent, and
(ii) The rehabilitation of the respondent when in fact the respondent had only desisted from offending as a result of changed circumstances resulting in the lack of opportunity.
The Appellant repeats particulars (ii), (iv), (vi) and (vii) under paragraph 2.
By making the orders for concurrency as described above the learned sentencing judge failed to adequately reflect the seriousness of the offences in the circumstances in which they were committed namely:-
(i) the offending behaviour was conducted over approximately an eight year period,
(ii) the respondent was in a position of trust and authority in relation to the complainants, being their step father,
(iii) the offences were repeated over a considerable period of time, hence the displayed recidivism on the part of the respondent, and
(iv) the complainants were children and the respondent a mature man at the time of the commission of the offences.
(I) The effect on the respondent's son of the respondent's incarceration.
282 The gravity of the respondent's offending is reflected in the statutory maximum penalties for the offences committed. The offence of rape was punishable by imprisonment for life, although the proven conduct in the circumstances of this case amounted to aggravated sexual penetration without consent in respect of which the maximum penalty is 20 years' imprisonment (s 10 of the Sentencing Act; s 326 and s 319 of the Criminal Code). The statutory maximum for indecent assault was 4 years' imprisonment (s 328 and s 324B of the Code) and the maximum for sexual penetration without consent was 14 years' imprisonment (s 324D of the Code).
283 The principles upon which an appellate court must approach an appeal by the State against sentence are well-established. An appellate court may not substitute its own opinion for that of the sentencing Judge merely because the appellate court would have exercised its discretion in a different manner than the sentencing Judge did. It must be shown by the appellant that the sentencing Judge failed to properly exercise his or her discretion by imposing a sentence that falls outside the range of a sound exercise of the sentencing discretion or is the product of some identifiable error (Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671 - 672).
284 Both the general principle and the particular principle which applies to appeals by the State, were articulated by Malcolm CJ (with whom Wallace and Pidgeon JJ agreed) in R v Podirsky (1989) 43 A Crim R 404 at 406:
"The principles applicable to an appeal by the Crown under s 688(2)(d) of the Code are well settled. In Peterson [1984] WAR 329 at 330; 11 A Crim R 164 at 165 they were said by Burt CJ to be identical to those stated by Brennan, Deane, Gallop JJ in Tait (1979) 46 FLR 386 at 387-388. After referring to Harris [1954] HCA 51; (1954) 90 CLR 652; Kovac (1977) 15 ALR 637 and Cranssen [1936] HCA 42; (1936) 55 CLR 509 at 519-520, their Honours said:
'An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error: see generally Skinner [1913] HCA 32; (1913) 16 CLR 336 at 339-340; Withers (1925) 25 SR (NSW) 382 at 394; Whittaker [1928] HCA 28; (1928) 41 CLR 230 at 249; Griffiths [1977] HCA 44; (1977) 137 CLR 293.
Although an error affecting the sentence must appear before the appellate court will intervene in an appeal either by the Crown or by a defendant, a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence. Crown appeals have been described as cutting across "time-honoured concepts of criminal administration" (per Barwick CJ, Peel [1971] HCA 59; (1971) 125 CLR 447 at 452). A Crown appeal puts in jeopardy the vested interests that a man has to the freedom which is his, "subject to the sentence of the primary tribunal" per Isaacs J, Whittaker at 248. The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court'."
And see also Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at [61] - [62].
285 It is necessary to consider what is a usual range of sentences in cases of sexual offending against children. That task was performed a little over 11 years ago by Anderson J in Woods v The Queen (1994) 14 WAR 341. His Honour reviewed a number of cases which were frequently cited, including Podirsky v The Queen (1990) 3 WAR 128, R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993, and Jarvis v The Queen, unreported; CCA SCt of WA; Library No 930341; 14 June 1993, which he classed, obviously correctly, as "worst category" cases. To that list, we would add Shepherdson v The Queen, unreported; CCA SCt of WA; Library No 920179; 27 March 1992, which is often cited as such a case. His Honour reviewed also cases that might be regarded as being at the other end of the scale, including Price v The Queen (1988) 33 A Crim R 359, R v Ginder (1987) 23 A Crim R 1 and Sullivan v The Queen, unreported; CCA SCt of WA; Library No 8626; 11 December 1990. His Honour, after that review, concluded at 354 that:
"Cases of intra family sexual assaults of young children that have attracted heavy sentences, that is, sentences of 8 years or more in total, often, but not always, are cases where more than one child has been victimised or where there has been multiple offending over an extended period and the offending has included sexual penetration in one form or another, or where some degree of violence, cruelty or aggression or threats have been employed."
286 His Honour also noted that in relation to those cases which might be regarded as being not in the worst category, sentences of 6 years or less had been imposed (at 357).
287 Communicating the collective sentencing experience of the judiciary is one of the responsibilities of a Court of Appeal (Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 per Gleeson CJ at 591). It is to that end that we have undertaken the exercise the results of which appear in what follows. It must be emphasised that our purpose is to set out an historical survey, as well as identifying some factors particularly relevant to sentence in cases of this kind, rather than be prescriptive about what sentences should be imposed in particular cases (see Gleeson CJ at [42] and Callinan J at [165] in Wong (supra)). Nothing in what we say should be taken to mean a sentencing Judge may not impose a non-custodial penalty or one outside an apparent range if the circumstances of the individual case clearly demand such a disposition in accordance with proper legal principle.
288 It has been said on a number of occasions recently that there has been a "firming-up" of sentences in cases involving sexual offences against children, as the courts have, over the years, gained a better understanding of the long-term effects of such offending upon the children concerned: see, for example, S v The Queen [2004] WASCA 113 per Malcolm CJ at [56] and [71] (Templeman and Miller JJ agreeing), Rogers v The Queen [2004] WASCA 147 per Templeman J at [54] and per Miller J at [95].
289 It is desirable to spell out in a little more detail precisely what is meant by that "better understanding". It is fair to observe that if one goes back more than a decade in relation to such cases, there is frequently a degree of emphasis placed upon factors such as loss of virginity or risk of pregnancy (in relation to young girls) and to considerations such as threats of force or violence. These factors remain of significance.
290 However, more information about the effects of this type of offending often emerges from the more detailed submissions now made by the State at the time of sentencing, and a pattern emerges from victim impact statements. Hypotheses about the likely effect of such behaviour on young children can be tested against evidence, which emerges at trial or which is contained in victim impact statements, from adult women who now come forward as complainants in relation to sexual offences which occurred against them many years ago, and in whose lives the effect of such offending has had time to develop.
291 In the light of those experiences, courts now understand much more clearly the destructive effect of all such offending (whether accompanied by overt violence or not) upon a child's capacity to trust others and to form relationships, and upon the child's sense of self-worth. Particularly in cases of frequent or prolonged abuse, an inability to form adult relationships, or an inability to maintain them, exaggerated doubts and fears in relation to the parenting of the complainant's own children, and disrupted schooling which adversely affects the complainant's future educational and employment prospects, are very common. Also frequently encountered in such cases are drug or alcohol abuse, self-harm, and attempted suicide.
292 In some of the past cases one can detect a sense that if an offender's wife, or other members of the family, were said to be "standing by him", that was seen as potentially mitigating. It is now understood, however, that most child complainants feel that the abuse is to some degree their fault and that broken family relationships are their responsibility, so that the estrangement of a complainant from other members of the family which often occurs where family members "take sides", is rightly seen now as yet another serious consequence of the offender's choice to offend in that way.
293 In cases where the offender is not a family member or trusted adult, even in a loose sense, the effect upon family relationships and the child's sense of trust is not such a significant factor, but, depending upon the circumstances, there can nevertheless be very serious consequences in terms of loss of confidence in dealing with others, and damage to self-esteem, even where there are not overt threats, force or violence.
294 The effects to which we have referred are particularly evident in cases where sexual offending against the child has been frequent and/or has occurred over a long period. It hardly needs to be said that all sexual offending against a child is reprehensible. However, where there is an isolated occurrence, then, depending upon the circumstances, it may well be that, with support, a child will be able to overcome the experience, in the way that other adverse events can be largely overcome. The difference in cases of prolonged offending against a child is that the whole of the victim's childhood and potential for normal development is taken from him or her. When one comes to consider totality considerations, then, a relevant factor is that, as the amount of offending increases, so the likelihood of very significant harm to the victim or victims of the offending is dramatically increased. In the majority of such cases, cumulation of sentences is therefore to be expected, to reflect the increasing severity of effect upon the victim; as well as to reflect the fact that the offender has not simply given way to an impulse on an occasion, but has chosen repeatedly to commit serious offences.
295 Cumulation of sentence is also to be expected where there is more than one victim. That is consistent with patterns of sentencing in relation to other types of offences. In such cases, we note, however, the frequently cited observation that totality is of marginal importance "particularly where each victim is aware of the offending conduct perpetrated on the other" (DeLuce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996, per Ipp J). One can imagine that there will be cases in which one child's awareness of the offending against another will be of significance (eg, where, as is not unusual in such cases, there is particular deviance, or violence in order to dominate more than one child at a time, or where an older child has the additional burden of feeling himself or herself helpless to protect the younger). However, it is difficult to regard such awareness, or lack of it, as necessarily making one case more or less serious than another, since where each child believes that he or she is the only victim, there may be an increased sense of isolation and shame felt by each.
296 The way in which questions of totality are considered is also likely to have been affected by Pearce v The Queen (1998) 194 CLR 610. Prior to that case, it was not unusual for a sentencing Court to commence with an instinctive view of the appropriate overall sentence for the totality of the offending, and to impose sentences for individual offences to reflect that impression. Pearce, however, requires the reverse process. That is, a sentencer is first to arrive at the appropriate sentence for individual offences, and then to consider questions of cumulation or concurrency. In many cases, particularly where offending has occurred regularly over years, the total of the sentences so imposed, before any considerations of concurrency, will be very high, often significantly exceeding the average span of a human life. A sentencer coming to arrive at an appropriate "total" penalty in such a case cannot help but be struck by the contrast between the sentence which would be imposed if each individual offence were considered separately, and the sentence which will actually be imposed, once totality considerations are taken into account. That process may, since 1998, have resulted in some degree of increase in the total sentences imposed in cases with very significant numbers of counts.
297 One would also expect to see, over the period since 1985, some gradual firming-up of sentences to reflect the Court's understanding that the alteration in penalties for sexual offences, which was effected in that year, was done with the legislative intention "that the actual penalty in the worst case should be towards the top of the maximum penalty" (R v Ginder (supra) at 5-6, per Pidgeon J). That legislative intention would be expected gradually to influence sentences for single and multiple offending of the relevant type.
298 Against that background, we have looked to more recent patterns of sentencing for offences of a sexual nature against children. We have examined some 25 cases of multiple sexual offending against children between 1999 and 2005. All are cases in which there had been a plea of guilty. The sentences imposed are therefore generally sentences which have been discounted somewhere between 20 per cent and one-third. Because these are often "oath against oath" cases, so that conviction is usually far from inevitable, and because of the trauma which the victim of the offence is spared by reason of the plea, the discounts would generally be towards the higher end of the scale.
299 Since during that period, the Sentencing Legislation Amendment and Repeal Act 2003 (the "transitional provisions") came into operation (on 31 August 2003) it is necessary to adjust, either by scaling later sentences up, or scaling earlier sentences down, in order to find a true comparison.
300 The cases we examined were selected on the basis that they involved more than five sexual offences against a child, or against a number of children, or involved a charge of maintaining a sexual relationship with a child, in circumstances where it was clear that there had been multiple offending. In the majority of cases, there has been at least one count of sexual penetration of a child's vagina or anus by the offender's penis. There are some exceptions, in which there has been no such penetration; for example, Pendleton v The Queen [2002] WASCA 4 involved digital penetration only, together with indecent dealing, possession of child pornography and indecent recording, but, where there is offending of that kind in the cases selected, there has usually been a very significant number of counts (Pendleton, for example, involved 129 counts, together with some summary offences dealt with under a s 32 notice).
301 Accepting that each case in this area turns very much on its own facts, and that there is no tariff, it is nevertheless useful to consider what are the usual sentences imposed, and what is the range of sentences imposed. Only against that information can a claim that a term is either within or outside the appropriate range be understood. The cases which we have reviewed are listed in Sch A to these reasons. We there set out only the reference to the case and the total effective sentence; the facts and circumstances giving rise to the sentences must be gleaned from the reasons given in the particular case.
302 An examination of those cases (scaling up where necessary, to arrive at sentences as they were or would have been prior to the transitional provisions) reveals a sentencing range from suspended terms (two in total) to a term of 20 years. There are five terms of immediate imprisonment falling within the range 1 to 5 years (several being exactly 4 years and none of 5); one in the range 5 to 9 years; 11 in the range 10 to 14 years (with 10 years being the most common - five in total in this category); five in the range 15 to 19 years; and one of 20 years. In each case, any odd months have been rounded down, so that a term of 10½ years would fall into the category of 10-year terms. Approximately two-thirds of the sentences, then, fell into the range of 10 to 19 years, while one-third involved either suspended terms or terms of 9 years or less.
303 If one assumed in relation to those cases that there had been a discount of between 20 per cent and one-third for the plea of guilty, then the range of sentences one would expect to see imposed in similar cases after trial (prior to the transitional provisions) would be a range of up to 30 years, with the most common term being somewhere between 12½ and 15 years.
304 The sentences imposed in recent years can then be compared with the "worst cases" selected by Anderson J in Woods, and with Shepherdson. Podirsky received an aggregate custodial term of 18 years. Although Anderson J refers to him as being sentenced "after trial" in each case, it appears that, in relation to the first convictions relating to his stepdaughter, he pleaded guilty to some offences. That aggregate term is somewhat in excess of the 12½ to 15 years which we have indicated would be the most common sentence one would expect to see after a plea of guilty, but well short of the 30 which results from the "scaling-up" in the case of "B" v The Queen [2002] WASCA 236 to reflect what one might have expected without a discount for a plea of guilty in that case. The term of 18 years is close to some of the sentences imposed following a plea of guilty.
305 Petchell involved a long history of intimidation and sexual intercourse by a father upon his stepdaughter, involving two pregnancies, cruelty, physical aggression, threats, and the child's alienation from her natural mother. The offender was convicted after trial. On a Crown appeal (R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993), a sentence of 12 years in aggregate was imposed. Again, that appears to be well under that which would be considered appropriate, having regard to more recent sentences. It is, in part, explained by the fact that it was a Crown appeal. Jarvis involved serious offences against a stepson and a natural daughter. The offender was convicted after trial. The total effective term imposed was 15 years, which also does not appear to be severe, having regard to more recent cases.
306 Shepherdson v The Queen was an extremely serious case involving sexual assaults on three daughters and the offender's wife, including what the Court described as "the chilling victimisation" of very young girls, involving physical damage to them, with threats of violence throughout, various of the complainants required to engage in sexual acts with each other, and forcing the offender's wife to submit to bestiality. That case did involve a plea of guilty and there were mitigating circumstances in relation to the offender, who was himself the victim of serious sexual abuse and was (perhaps because of that fact) an alcoholic. He was also, however, at high risk of reoffending. The total aggregate sentence of 15 years imposed in that case is, when seen against the range of sentences imposed more recently, rather low. One would have expected a term comparable with that imposed on "B" of 20 years, or thereabouts, even allowing for the plea of guilty.
307 It is very clear that sentences for multiple counts of sexual offending against a child have significantly "firmed-up" since the survey undertaken by Anderson J. Cases such as Podirsky, Jarvis, Petchell, and Shepherdson, can no longer be regarded as reliable guides. Offending of the type described in them is now regarded significantly more seriously. It should also be noted, in this context, that in a number of the more recent cases reviewed, older examples such as Jarvis and Podirsky were apparently seen as setting roughly an "upper limit". Bishop v The Queen [2002] WASCA 79 (16 years, pre-transitional provisions) and Morley v The Queen [2001] WASCA 49 (13 years, pre-transitional provisions) are examples of such cases.
308 Of course, as the survey of cases we have undertaken indicates, recent "firming-up" does not mean that it would be appropriate to impose the extraordinarily lengthy terms which are arrived at simply by adding together sentences properly imposed in respect of each individual count. Considerations of totality arise. Considerations of comparability with other offences also arise.
309 Finally, in relation to offences of this kind (that is, cases of frequent or prolonged sexual offending against a child or children), it is convenient to undertake the exercise of converting the sentences which we have discussed into those which would be imposed after the transitional provisions came into operation on 31 August 2003. The "lower end" cases of up to 4 years formerly, would now be up to 2 years and 8 months; the most common sentence one would expect to see would be approximately 6 years and 8 months, and about two-thirds of sentences in such cases would fall within the range 6 years 8 months to 12 years 8 months (the former 10 to 19-year range). A term other than immediate imprisonment would be imposed only in the most unusual of cases (eg Marris v The Queen [2003] WASCA 171, where the six counts all occurred over the space of one evening, the offender and complainant were unrelated, the offender was a particularly immature young man, the complainant was 13, and there was no question of any force, threat, or "grooming"). Those sentences, we stress, are the range one would expect to see after a plea of guilty.
310 We have endeavoured to undertake the same exercise in relation to sentences imposed after trial. However, it seems that the sample is too small, and too diverse, to be reliable. In roughly the same category of cases - that is, involving more than five sexual offences against a child or children - we located only nine cases during the same period. The majority of those appeared to involve relatively fewer counts than did the cases we reviewed where there had been pleas of guilty. Two of them were State appeals. A number of them involved offences which had occurred a considerable period ago, so that there were mitigating factors such as the age, ill health and reduced life expectancy of the offender (eg, State of Western Australia v Henderson [2005] WASCA 89), or the offender's voluntary return from overseas to face trial (eg, "S" v The Queen [2001] WASCA 245). We attach a Schedule of those cases as Sch B to these reasons.
311 Having regard to the small size of the sample, and the factors to which we have referred, a more reliable guide to appropriate sentencing in cases of frequent or prolonged sexual offending against a child or children, following trial, is to be found by undertaking the sort of "scaling-up" exercise to which we have referred. If one assumed a discount for a plea of guilty of the order of one-third, then the range of sentences we have discussed in relation to those cases where there had been a plea of guilty, but prior to the transitional provisions, would be roughly appropriate. That would, of course, only be the case where the offending was truly comparable to that occurring in the plea of guilty cases discussed. If, as the small sample we have found appears to indicate, it is the case that there are often relatively fewer counts, and more limited offending, in relation to those offenders who go to trial, one would expect to see the aggregate sentences correspondingly reduced to reflect that fact. Further, "scaling-up" would be likely to result in some undue inflation, since some of the cases involving a plea of guilty involved an unusually small discount for the plea, because of factors peculiar to the particular case (eg, Broome - 1 year discount only).
312 The most that can be said, perhaps, is that, after the transitional provisions the authorities reviewed suggest an aggregate sentence of 10 to 19 years would be imposed after trial in most cases of very serious repeated sexual offending where the offences are representative of a course of conduct.
313 Finally, we turn to those cases in which there have been fewer than five counts of sexual abuse of a child and there has been a plea of guilty. Again, the sample located has been relatively small. We found nine cases which appear to fall into this category between 1998 and 2005. They are attached as Sch C. Those offences do not display anything which could reasonably be regarded as a pattern. Three attracted sentences which did not involve immediate terms of imprisonment. If one converts to the sentences which would be imposed after the transitional provisions and rounds down so that a sentence of 4½ years, for example, would be regarded as a sentence of 4 years, one each of the offenders who received a term of immediate imprisonment received a term of 1, 2, 3, 4, 5 and 6 years. This is a very considerable range.
314 At one end of the range were cases such as State of Western Australia v ABM [2004] WASCA 90, in which the complainant (although mildly intellectually disabled) invited the offender into her bed, and the offender was himself relatively youthful, being 9 years older than the 15-year-old complainant. By contrast, Rogers v The Queen [2004] WASCA 147, involved penile vaginal penetration of the 11-year-old complainant, who was a stepdaughter of the offender. The two counts to which he pleaded guilty were not isolated incidents and, despite his plea, he nevertheless maintained the complainant was a "little liar", so that one would expect the discount for the plea to have been reduced somewhat for the apparent lack of remorse. This category of cases demonstrates most clearly that wide variety of circumstances which have led to the frequently repeated proposition that there is no "tariff" for sexual offences.
315 For completeness, we note that the survey we have undertaken of course covers only cases which have been the subject of appeal. We have endeavoured to find data of a more general kind. However, such data is readily available only in relation to offences which are defined to involve sexual offending against a child, such as s 320 Criminal Code (sexual offences against a child under the age of 13 years); and s 321 (sexual offences against children between 13 and 16 years of age). Some serious offences have often been charged simply as, for example, aggravated sexual assault, so that there is no ready way of separating those involving child and adult victims (Ferrante & Fernandez, "Sex Offences Against Children", Crime Research Centre, University of Western Australia, April 2002, p 13). In any event, there is limited data on aggregate terms, as opposed to sentences for individual offences (Ferrante & Fernandez, pp 3-4).
316 In the present case, when her Honour was considering the issue of concurrency and cumulation, she said (t/s 1236 - 1237) that:
"I consider that it is appropriate that the sentence [sic: sentences] in relation to each complainant should be concurrent. The offences reflect a continuing course of conduct, albeit over an extended period of over four years."
317 It is true that the offences in respect of L reflected a continuing course of conduct over an extended period of four years, but that would not justify making all of those sentences wholly concurrent unless that consequence was made necessary by some other principle, such as that of totality where there were sentences for other offences to be taken into account. Absent such additional consideration, making all the sentences with respect to L concurrent would necessarily not have resulted in any additional punishment for any offence after the first and would therefore not have been an appropriate reflection of the respondent's overall criminality with respect to L (see Bishop v The Queen (supra)). The same analysis applies to the sentences with respect to the offences against J.
318 Her Honour also made several references to the respondent's "young son" and the distress of the respondent as a result of his consciousness of the stress that his imprisonment and situation were having on "his young son". In fact, the "young son" was, at the time sentencing, a 21-year-old man who had not lived with the respondent since 1995.
319 The proposition that the respondent's time in prison would probably be very difficult for him because of his knowledge of the stress his situation and imprisonment are having on his (adult) son and the respondent's personal circumstances (that he had lost everything as a consequence of his business failing following him being charged with these offences), was not a matter to which significant mitigatory weight should have been given. Her Honour clearly did attribute that to it. Her Honour's reference to the respondent's "young son" would seem to indicate that she was thinking of the distressed boy who was 12 years old in 1995, when the offences were first revealed to the family. In any event, none of these personal circumstances were unique to, nor outside the experience of other offenders: many, if not most, would have loved ones, including young children and spouses or partners who would suffer as a result of their incarceration and many would have lost their livelihoods as a consequence of it. In short, none of those matters to which her Honour referred brought the respondent into that category of offender which would justify reducing an otherwise appropriate sentence because imprisonment would be more arduous for him than other prisoners (cf R v Bekink [1999] WASCA 160; (1999) 107 A Crim R 415 and the authorities there referred to at [9] - [11]).
320 Both in imposing individual sentences and more particularly in fixing an aggregate sentence appropriate to the respondent's overall criminality, the sentencing Judge gave a degree of weight to his previous good character and matters personal to him which, on any view, could not properly be justified having regard to the principles applicable to sentencing for offences of this kind. As Anderson J (with whom Kennedy J and Stein AJ agreed) said in Bell v The Queen [2001] WASCA 40, at [12]:
"... in cases of intra-familial sexual abuse, the offending often goes undetected for a long time, the offender will often be a person who has led an otherwise blameless life, will often be of no danger to anyone except children in the family and will usually be most unlikely to re-offend once the offending in question is disclosed, or the opportunity to commit offences against the particular complainant has gone. Because these are common features in cases of this kind, they are not of much mitigatory weight. Other sentencing considerations overwhelm them. Sentencing objectives in this kind of case focus on the need to protect young, defenceless children from abuse at the hands of adults who are in a position of trust and authority over them in the family setting and who are in a position to conceal their offending."
(Se also R v GP (1997) 18 WAR 196 per Malcolm CJ at 207).
321 A similar point was made by Franklyn J (Walsh and Rowland JJ concurring) in R v Petchell (supra) at 10, when his Honour pointed out that in cases involving offences of a sexual nature, the fact that the offender is otherwise of good character can have only little weight. The offences are of such a nature that, until brought to light, they generally do not impinge upon others nor upon their perception of the offender and can coexist quite comfortably, so far as the offender is concerned, with an otherwise apparent good character. That was very much the situation in this case.
322 In this regard it should also be noted that the respondent did not cease his offending of his own volition, but because the opportunity for further offending was no longer available. Indeed, when L was no longer available to him, he turned his attentions to her sister J, and only stopped offending in relation to her when she left home. There was no remorse and no contrition. There was no plea of guilty which could carry with it any mitigatory effect. In the circumstances, matters personal to the respondent (and in particular his previous "impeccable" good character) were properly incapable of carrying the substantial weight in mitigation which the sentencing Judge obviously gave to them.
323 The foregoing conclusions of themselves indicate a miscarriage of the exercise of the sentencing discretion. However, we are persuaded that error is also revealed in the actual sentences imposed by her Honour in respect of the rape and aggravated sexual penetration offences as well as the aggregate term of imprisonment. Against the background of the range of sentences imposed for offences of penile penetration, particularly of children under 16 years of age, and particularly where the offences are representative of a course of conduct extending over a number of years by an offender abusing his position of trust as a parent (or stepfather), a sentence of 4 years 4 months (equating to one of 6 years 6 months' imprisonment prior to 31 August 2003) is so much below the range as to show manifest inadequacy. That is especially so where there is no significant mitigating feature, such as remorse, contrition, an early plea of guilty, voluntary termination of the offending due to the realisation of the nature of it, or the like.
324 An aggregate term of imprisonment of 6 years (equivalent to a pre-August 2003 term of 9 years' imprisonment) manifestly fails to reflect the respondent's overall criminality constituted by this series of offences. This was not a case in which the offences constituted a series of one course of criminal conduct, nor comprised essentially a single transaction. An aggravating feature of the case was that the respondent's offending was against two complainants, and essentially over different periods of time, over some eight years. Nor was this a situation in which a more substantial overall sentence than that imposed by her Honour could be regarded as "crushing". And as we have said, proportionality to the overall offending required an appreciably more substantial overall term.
325 By making an order that the sentences be served concurrently to the extent that she did, her Honour failed to have sufficient regard to the facts that some offences were committed when L was under 16, with sexual intercourse occurring for the first time when she was 14 years old; the respondent was 12 years older than her and was her stepfather at the time; the sexual abuse persisted against her for four years and there was a period of grooming leading to the first act of sexual intercourse; that sexual intercourse commenced against J when she was under 16 and he was 16 years older than her at the time and was her stepfather and the offences persisted against her for four years (not including any grooming conduct). This demonstrated persistent offending over a period of at least eight years against two separate complainants, each of which involved a gross abuse of trust.
326 In our opinion, each of the grounds of appeal has been made out. It accordingly falls to this Court to exercise the sentencing discretion afresh. In doing that, however, it is necessary to allow for the fact that this is a re-sentencing following a State appeal, by imposing sentences somewhat less than would properly have been imposed at first instance.
327 In respect of each of the offences of rape and sexual penetration without consent (counts 1, 7, 8, 10, 13, 20, 23, 25, 26, 29, 34, 36, 37, 39, 41, 42, 43 and 44), we would impose a sentence of 6 years' imprisonment to be served concurrently (equivalent to a pre-August 2003 sentence of 9 years' imprisonment). For each of the indecent assault offences (counts 6, 9, 12, 16, 17, 18, 19, 21, 22, 24, 35, 38 and 40) we would impose a sentence of 2 years' imprisonment (equivalent to 3 years pre-August 2003).
328 The 2-year sentences on counts 6, 9, 12, 16, 17 and 18 should be served concurrently with each other but cumulatively upon the 6-year sentences; the 2-year sentences on counts 19, 21, 22, 24, 35, 38 and 40 should be served concurrently with each other but cumulatively on the first group of 2-year sentences. That would produce an aggregate term of 10 years' imprisonment (equivalent to one of 15 years prior to August 2003), which would appropriately reflect the applicant's overall criminality, yet still accommodate the constraints on resentencing following a State appeal. The 6-year sentences should be backdated to commence on 2 February 2005. We would order that the respondent be eligible for parole.
"G" v The State of Western Australia [2005] WASCA 150
TJD v The State of Western Australia [2004] WASCA 310
Germain v The State of Western Australia [2004] WASCA 293
State of Western Australia v DMS [2004] WASCA 255
R v Dickens [2004] WASCA 179; (2004) 147 A Crim R 343
S v The Queen [2004] WASCA 113
Playle v The Queen [2004] WASCA 86
Bosworth v The Queen [2004] WASCA 43
LSC v The Queen [2003] WASCA 303
Marris v The Queen [2003] WASCA 171
Order that the balance of the 3-year term imposed by the sentencing Judge be suspended for 18 months
R v Chilvers [2003] WASCA 87
Bishop v The Queen [2003] WASCA 79
D v The Queen [2003] WASCA 33
Merino v The Queen [2003] WASCA 18
R v Hunt [2002] WASCA 324
B v The Queen [2002] WASCA 236
R v Avery [2002] WASCA 136
R v Hough [2002] WASCA 42
Pendleton v The Queen [2002] WASCA 4
R v EPR [2001] WASCA 214
R v Western [2001] WASCA 194
Morley v The Queen [2001] WASCA 49
Broome v The Queen [1999] WASCA 202
Trescuri v The Queen [1999] WASCA 172
State of Western Australia v Henderson [2005] WASCA 89
Liddington v The State of Western Australia [2005] WASCA 60; (2005) 152 A Crim R 502
Lawrence v The State of Western Australia [2005] WASCA 14
S v The Queen [2001] WASCA 245
Boudville v The Queen [2001] WASCA 133
King v The Queen [2001] WASCA 103
R v Major [2001] WASCA 46
Clegg v The Queen [2000] WASCA 326
Cook v The Queen [2000] WASCA 78; (2000) 22 WAR 67
"HAS" v The State of Western Australia [2005] WASCA 29
Rogers v The Queen [2004] WASCA 147
State of Western Australia v ABM [2004] WASCA 90
Edwards v The Queen [2001] WASCA 263
Chinnery v The Queen [2000] WASCA 295
Little v The Queen [2000] WASCA 87
R v Dalgety [2000] WASCA 10
18 months suspended for 12 months; 12-month ISO with 175 hours community service
Kakai v The Queen, unreported; CCA SCt of WA; Library No 990082; 23 February 1999
"W" v The Queen, unreported; FCt SCt of WA; Library No 980597; 1 October 1998
2 years 6 months suspended for 2 years; 2-year ISO with community service and programme requirement
(1997) 191 CLR 275
(1996) 186 CLR 427
(1909) 10 CLR 43
(1983) 47 ALR 746
(1995) 12 WAR 103
(1936) 55 CLR 499
(1999) 198 CLR 1
(1992) 8 WAR 518
(1996) 15 WAR 95
(1992) 173 CLR 592
(2001) 52 NSWLR 82
(2003) 27 WAR 224
(1989) 168 CLR 266
(1980) 144 CLR 319
(1984) 152 CLR 528
(1979) 21 SASR 577
(1990) 169 CLR 515
(1986) 61 ALJR 1
(1988) 165 CLR 292
(1995) 182 CLR 461
(1994) 181 CLR 487
(1997) 191 CLR 439
(2002) 213 CLR 606
(2003) 8 VR 50
(1996) 190 CLR 348
(1987) 44 SASR 591
(1994) 181 CLR 41
(1999) 195 CLR 665
(1979) 46 FLR 386
(1954) 90 CLR 652
(1977) 15 ALR 637
(1936) 55 CLR 509
(1913) 16 CLR 336
(1928) 41 CLR 230
(1990) 3 WAR 128
(2001) 207 CLR 584
(1998) 194 CLR 610
(1997) 18 WAR 196
(1977) 137 CLR 293
(1971) 125 CLR 447
(2000) 202 CLR 321
(1994) 14 WAR 341
(2000) 22 WAR 67