Court of Appeal (WA)|2011-05-23|Before: Mr J, Lure P, Buss JA, Hall J

WALSH -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 119 (23 May 2011)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : WALSH -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 119

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Sexual penetration of a child under 13 years of age - Prior inconsistent statements - Whether defence case adequately put to the jury - Whether warning about complainant's alleged motive to lie required - Whether jury adequately directed on evidence of the complainant's distress and change of behaviour - Prosecutor's duty to call all material witnesses - Whether verdict unreasonable or cannot be supported

Criminal Procedure Act 2004 (WA), sch 3, cl 4(5)

Carroll v The State of Western Australia [2004] WASCA 254

Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517

Winmar v The State of Western Australia [2007] WASCA 244

1 McLURE P: The appellant appeals against his conviction on two counts of sexual penetration of a child under 13 years of age, contrary to s 320 of the Criminal Code (WA) (the Code).

2 The appellant moved into the house of his de facto partner, M, in November or December of 2008. M had two children, one of whom was the complainant. The complainant was born in June 1998.

3 The complainant's evidence-in-chief comprised a video-taped interview of the complainant by police officers together with her viva voce evidence given at trial. Her evidence of the offences was to the following effect. On a weekend in February 2009 the complainant was lying on her bed playing with her Nintendo DS. The appellant entered her bedroom and told her to stop. She did so. The appellant then took off his pants, rubbed his penis and pulled the complainant over to him by her ankles. He removed the complainant's pants and knickers and inserted his penis into her anus. The appellant was standing and the complainant was lying on her bed with her feet over his shoulders. This offence was referred to at trial for identification purposes as 'the Xbox incident'.

4 The circumstances of the second offence are substantially the same as the Xbox incident. The second offence occurred on a Sunday in February 2009 in the complainant's bedroom. This offence was referred to at trial as 'the dining room incident'. The complainant was aged 10 at the time of the offences.

5 The grounds of appeal do not clearly and concisely identify the alleged errors made by the trial judge. The substance of the grounds are as follows:

(a) direct the jury that the complainant's evidence of complaint was inconsistent with her evidence relating to the offences and in not giving a 'strong direction to scrutinise the evidence of the complainant with care in light of the demonstrated inconsistency';

(b) identify the issues which bore upon the assessment of the complainant's credibility;

(c) adequately direct the jury on the significance of the complainant's motive to lie and in failing to direct the jury of the need for special care before acting upon the complainant's evidence should they find that motive proven;

(e) direct the jury that they could only be satisfied that sexual misconduct was the cause of a change in the complainant's behaviour if they were satisfied that the alternative causes were not operative.

The trial judge erred in her directions relating to uncharged acts that constituted the complaint evidence;
The trial miscarried as a consequence of:

(a) the failure of the prosecution to call the complainant's mother; and

(b) the admission of inadmissible evidence of distress.

The verdicts of the jury are unreasonable or cannot be supported by the evidence.

6 The primary witnesses for the State were the complainant, her maternal grandmother (P) and Dr Geraldine Goh, a consultant paediatrician.

7 The complainant's evidence-in-chief commenced with her video record of interview. Towards the beginning of the interview, the complainant was asked to tell the interviewer what she had come to talk about. She said:

Um, well, um, my mum and dad have, um, broken up and, um - and my mum's, um, with a boyfriend now and, um, he's been like doing rude stuff to me. Like touching me - down below and stuff.

Q. Anything else?

A. Um - yes, um, when, um, my mum is playing on the X-box, um, um, he, um, normally, um - - he normally, um, um, cos he, um, goes in my room and I want to get my DS out and he says, um - - he doesn't really say anything, he just like, um - - he, um, pulls his pants down and then he, um, thing's showing.

Q. Anything else?

A. Um - um - um, he, um, puts his, um, finger in the, um - hole in between my legs (ts 4 - 5).

8 The complainant was asked what she meant by the appellant doing 'rude stuff' to her. She said:

A. Um, he like being, um - can I say rude words, like - -

Q. You can say any words here that you like, that needs to explain what's going on.

A. Um, he, um, pulls his, um, dick out and, um, puts it in my hole - - the down below hole (ts 8).

9 Further questioning disclosed that the complainant used the word 'dick' to mean the appellant's penis and the hole to which she referred was her anus. The complainant then went on to describe the Xbox incident which she said happened before the appellant's birthday on 17 February (ts 11). She said that after the appellant pulled down his pants he started 'stretching the dick', demonstrating with hand gestures what he had done and then provided detailed evidence of the position she was in on her bed when the offence occurred and how that came about (ts 17 - 19). The interviewer then turned to the basis of her knowledge of what occurred (ts 20):

Q. How do you know that his dick went inside your bum hole?

A. Because I felt it and it hurt.

Q. Okay. Could you see what was happening?

A. No.

10 When asked what else happened the complainant said:

A. Um, when Mum normally like comes near the door, he just quickly pulls his pants up and then, um, he puts me under my blankets and then, um, he just walks out and - - and, um, tells a lie, like, um, 'Oh, she's got a dirty room', or 'I was just cleaning it up.', and stuff, but he wasn't actually doing that.

Q. Okay. On this occasion - is that what happened?

[The complainant nodded her head] (ts 21).

11 After the appellant left the complainant's bedroom, she went and watched her mother playing on the Xbox (ts 24). Sexual offending of the type described occurred before and after the appellant's birthday (ts 11).

12 The interview with the complainant was suspended. When it recommenced the appellant gave evidence about the second incident. When the complainant left her bedroom after the second offence, she sat on a dining table chair. Her mother was in the kitchen making dinner.

13 The complainant was also asked about who she had spoken to about the appellant's conduct:

Who was the very first person you told about, about what happened with [the appellant] in your bedroom, the first time we were talking? You know when we - - before you went on the break, you told about something that happened at home with [the appellant]. Yeah? In your bedroom? Who was the first person you told about that?

A. Nanny.

Q. Nanny. Yeah. And what did you tell Nanny?

A. Um, I just told her that, um, [the appellant's] just been, um, put - - putting his finger in my hole, and that' it (ts 7).

14 She was responding to her maternal grandmother who had questioned her about what was going on.

15 In cross-examination the complainant said she had told her mother that the appellant had been 'putting his finger in my hole' (ts 129). The complainant was then cross-examined about a statement she made in the video record of interview concerning a discussion with her mother. The complainant was asked whether there was anyone else she had tried to tell what had happened. The evidence is as follows:

A. My mum.

Q. And when did you try to tell her?

A. Um, that, um - - that was, um, last weekend.

Q. Um. And what happened when you told Mum last weekend?

A. She didn't believe me.

Q. Okay. All right. And what did - - What is it that you told Mum?

A. Um, that, um, [the appellant's] been touching me rude - - rudely and, um, that, um, he, um - - whenever you've been playing with the X-box, he's been taking me to my bedroom.

Q. Right. Okay. All right. When you told Mum, what made you tell her at that time?

A. Cos mum said, 'Why are you so angry at [the appellant] for?', and that, and, 'What's going on?' (ts 7 - 8).

16 The police interview was recorded on 17 March 2009. The complainant was never asked during the interview or at trial to explain whether or not the digital penetration the subject of the complaints was separate to the penile penetration about which she had spoken or why she did not tell her mother or grandmother that the appellant 'had put his dick in her bum hole'.

17 In her viva voce evidence the complainant gave evidence of two uncharged acts. First, the appellant made a circular motion on his nipple with his finger underneath his tank top (ts 82 - 83). Second, when the complainant accompanied the appellant in his car to visit the appellant's father, the appellant put his finger on her vagina over her clothes (ts 85).

18 The cross-examination of the complainant had multiple themes. One theme was that the complainant did not like the appellant moving in and taking her mother's attention, the complainant wanting that attention all to herself (ts 104). It was also suggested that she blamed the appellant for breaking up the marriage between her father and her mother and that she came to hate the appellant because of that (ts 98, 100).

19 Another theme was that when the appellant first moved in with the family, the complainant really liked him and said he was great fun to be with (ts 97, 100). The complainant agreed that she used to follow the appellant around and liked attention from him (ts 98). The complainant threw a tantrum at Adventure World when she wanted to go on a ride with the appellant (ts 109). The complainant also accepted that after her mother and the appellant went to bed, she would get out of bed and go into her mother's room and watch her mother and the appellant having sex (ts 111).

20 The appellant was cross-examined about the contents of her diary. In one entry she recorded 'my mum has a boyfriend called dumbass I hate sooooo much I wish I could punch him out with my bare hands' and in another entry 'hate dumbass aka [the appellant] ha ha'. The complainant accepted that sometimes she loved the appellant and sometimes she hated him (ts 114). In re-examination the complainant said she wrote the first of the above passages in her diary after she had been touched in a sexual way by the appellant (ts 181).

21 She acknowledged an occasion when she was writing in her diary when her mother took it off her and read it. The cross-examination continued:

And what you wrote in your diary was this, wasn't it: I wish that I was Mummy because then [the appellant] could do the things to me that he does to Mummy. Do you remember writing that---No.

You don't remember writing that---No.

And then you rip out the page after your mum spoke to you---I can't remember that.

You can't remember that. And after those words, in big writing, you then said, 'I hate Greg'---I can't remember that.

You can't remember that? Did you ever wish that you were Mummy so that [the appellant] could do the things to you that he did to Mummy---No (ts 117 - 118).

22 The complainant also had no recollection of saying to her mother '[the appellant] doesn't love you, [the appellant] loves me' (ts 118).

23 The complainant told her mother that the appellant had been 'putting his finger in my hole' in response to her mother wanting to know why she did not like the appellant. She said she had this conversation with her mother before she spoke to her grandmother (ts 129). She thought it was before the appellant's birthday (ts 138). The cross-examination continued:

And you told your mother, didn't you, and I will say what you told your mother, 'I know how to get rid of [the appellant] forever' - - I don't remember saying that.

Q. You don't remember saying that to your mother---No.

And your mother asked you what you meant. Remember your mother asking you what you meant when you said that---No.

And you said, 'I'm not telling, I've spoken to Nanny. Nanny knows everything'---I - - -

Remember telling your mother that you've spoken to Nanny---No.

You don't---No.

Remember---No, I don't remember.

Do you remember telling your mother that Nanny knows everything---No.

You don't remember? And your mother then said to you, 'You need to tell me so I know what's going on.' Remember your mother saying that to you---Yes, I remember her saying that to me.

Yes. She wanted to - you told her that you knew how to get rid of [the appellant], didn't you? You told your mother that---I don't - can't remember that one.

You can't remember. But your mother told you that you need to tell her so that she knows what's going on. You remember saying that---I remember her saying that, but I don't remember telling her that I know how to get rid of him forever (ts 138 - 139).

24 It was put to the complainant that she became moody and sometimes grumpy when her father said she could not live with him after the marriage breakup (and before the appellant moved in with her mother).

25 The complainant agreed that the family home had wooden floorboards, that her bedroom door was never closed and that it was possible to hear noises from other rooms in the house. The complainant was also cross-examined about inconsistencies between her evidence and her out of court statements.

26 The complainant's maternal grandmother (P) gave evidence as follows. She had regular contact with the complainant both before and after her mother (M) separated from her father around November 2008. The complainant went from a fairly happy-go-lucky child to a moody child (sulky, snappy or rude) at the beginning of February 2009, around the start of school (ts 209).

27 On 9 March 2009, P collected the complainant and her brother from school. At P's home she said to the complainant that she could not help her unless the complainant told her what was going on. The evidence continued:

And what did she say to that---And she turned around and she said to me, she said, 'Nanny', she said, 'I'm not going to tell you, you wont' believe me. I told Mummy and Mummy did not believe me'.

What next---So I said to her, I said, '... if you turn around and tell me, I need it so as I can know what - how to help you. You did tell me, I will not tell your mother'. And she told me.

What did she tell you---She told me that [the appellant] had been interfering with her.

28 P was unable to remember exactly what the complainant said. The complainant had gestured to her pubic area and said he touched her there (ts 210). The complainant said the appellant had used his fingers and that was it. P did not want to press the matter (ts 211). The complainant then started to cry.

29 Later M collected the children and took them home. The next day (10 March 2009) P collected the complainant and took her to her home. The complainant has lived with P since that date. P was involved in bringing the allegations against the appellant to the attention of investigating authorities.

30 P said in cross-examination that the complainant had mood swings after the appellant shifted into her mother's house, not before (ts 215). She rejected the proposition that she had spoken to her daughter (M) in early February 2009 when M had read a page of the complainant's diary to her. She said that occurred after the children were with her (ts 228). The cross-examination continued:

I'm suggesting to you that [M] did have numerous conversations with you where she told you the essence of what you eventually got out of [the complainant]---No. I used to get telephone calls quite regularly, would I go round and see if I could talk to [the complainant] to find out what was the problem. That she was in her room, she wouldn't do anything, she wouldn't say anything, and things like that.

The reason why you spoke to [the complainant] on 9 March 2009 was a result of those concerns that [M] had told you---Yes, on the Sunday - can I say something with that? On the Sunday I got a telephone call asking to go round there because she was in a mood. I went around there, I spoke to her, she didn't say anything, she was very moody. I spoke to [M] out the front and I said to [M] ' ... if she's causing all these problems, how about letting her come and stop with me for a fortnight and see what happens.' (ts 229).

31 It is clear that P rejected the proposition that she had been made aware of allegations of sexual misconduct by the appellant against the complainant prior to her discussion on 9 March 2009 with the complainant.

32 Dr Goh did a colposcopic examination of the complainant. The examination disclosed no relevant abnormalities, which neither excluded nor confirmed that the offences had occurred. It is unusual to find anything on examination unless it occurs in the first 72 hours after the event.

33 The appellant gave evidence in his own defence. He denied committing the offences. He also denied having any sexual contact with the complainant or engaging in any sexually suggestive behaviour.

34 The complainant's mother also gave evidence for the defence. Her evidence-in-chief was to the following effect. The complainant had mood swings, going from very happy to very sullen and moody, before the appellant moved into the family home in around the middle of November 2008. She would hear any noise coming from the complainant's bedroom, even if the television was on. She played games on Xbox but the volume was always turned down. She was also always present in the bedroom when the appellant said goodnight to her children. She was adamant that the appellant was never in the complainant's bedroom alone with the complainant.

35 At the beginning of February 2009, the complainant said to her (M) that the appellant did not love M but loved her (the complainant) and was just using M to get to her (the complainant) (ts 302).

36 In another conversation with the complainant prior to the appellant's birthday (17 February) the complainant said to her mother that 'she knew how to get rid of [the appellant]'. M asked her what she meant. The complainant said she wasn't going to tell her and that she had 'spoken to Nanny and Nanny knows everything' (ts 346).

37 On one occasion during a conversation with the complainant in her bedroom, M snatched the complainant's diary off her and read an entry that said 'I hate [the appellant]' and another entry to the effect that the complainant wished that she was M so that the appellant could do things to her that he did to M (ts 303). She used to have a good relationship with her mother, P. After reading the entries M telephoned her mother and read to her exactly what was written in the diary (ts 346). The entry was not in the diary tendered in evidence. However, the complainant accepted that on occasions she had torn pages from her diary (ts 182).

38 Just before she had the telephone conversation with her mother regarding the complainant's diary, she (M) had asked the complainant whether there was a problem because her attitude to the appellant had changed (ts 306). She thought the complainant said that the appellant had touched her, and demonstrated 'down there'. The complainant would not give her the details and told her that Nanny knew what was happening. After this conversation, M contacted her mother and conveyed to her the essence of her discussions with the complainant. She asked her mother to take the complainant. That occurred the next day.

39 The complainant's mother admitted in cross-examination that she was committed to the appellant at the time when the complainant left the house to live with P and still was. The complainant has not been with her mother since she left to live with P.

40 M's evidence is inconsistent in material respects with the evidence of her mother, P.

41 These grounds relate to the use of, and significance to attach to, the evidence of what the complainant said to her mother and her grandmother about what the appellant had done to her. Essentially, the appellant's contentions are that the complaint evidence is inconsistent with the complainant's evidence relating to the offences; that inconsistency required the trial judge to warn the jury to approach the complainant's evidence with special care; and that the complaint evidence could not be used as evidence of an uncharged act to show the context or background of a broader sexual nature. I will deal with the final aspect first, which is the substance of ground 2.

42 It is correct that the complaint evidence is not admissible, and could not be used, for the purpose of establishing that the conduct complained of actually occurred. Complaint evidence is admissible solely for the purpose of buttressing the credibility of the complainant. It is not admissible to prove the truth of the statements made by the complainant. However, there is other admissible evidence of the conduct the subject of the complaint evidence in the video record of interview and in the complainant's viva voce evidence. In the video record of interview the complainant said that the appellant touched her 'down below' and that he also put his finger in the hole between her legs. In re-examination (ts 184) the complainant confirmed that what she had told her mother (that the appellant had digitally penetrated her) was the truth.

43 The 'uncharged acts' the subject of the trial judge's direction were as follows:

They are the alleged tank top incident, the alleged incident in the car and the other alleged touching and fingering mentioned by - well, which - it may be touching, it may be fingering, mentioned by [the complainant] to [P] and [her mother] and also at the start of [the complainant's] visually recorded interview where she said, 'He put his fingers in my hole.' So in relation to those incidents, [the appellant] has not been charged (ts 397).

44 No reference is made in the direction to digital penetration. That was because (as the trial judge directed the jury) the State case was that the offences charged could be proven by either penile or digital anal penetration (ts 383). That was how the State opened its case (ts 32).

45 The reference in the direction on uncharged acts to the 'touching' and 'fingering' the subject of the complaint evidence is an error but causes no prejudice because there was admissible evidence to the same effect. I would dismiss ground 2.

46 There were a number of different versions of what the complainant said to her mother and grandmother about what the appellant had done. The jury's first task was to address this conflict. Whether or not the complaint evidence was inconsistent with the complainant's evidence concerning the offences charged and the consequences of any inconsistency were also matters for the jury on which they were properly directed.

47 The trial judge summarised the defence case at length, including the inconsistencies which were said to impact on the credibility of the complainant. Two of the inconsistencies referred to by the trial judge relate to the complaint evidence. She said:

Another inconsistency is the fact that [the complainant] had said in her visually recorded interview that the first - first she told was her Nanny, [P], but then later in cross-examination she said the first person she said something to was her mother. When she did tell them, she did not say anything about [the appellant] putting his penis in her anus. I'll give you a direction in a moment about this aspect of the evidence ... The defence position is that, even allowing for her age and immaturity, there are so many holes in [the complainant's] evidence, you cannot be satisfied beyond reasonable doubt that these alleged incidents occurred as she said they did. You will need to decide whether, in each case, there is an inconsistency and, if there is, whether there is an explanation for that inconsistency or whether the inconsistency affects your view of [the complainant's] credibility. Obviously, you'll have to consider whether what she said is accurate and reliable. If you find that there are inconsistencies in the evidence that [the complainant] has given, then it is a matter you can take into account in considering her credibility. Whether any or some or all of these inconsistencies do or do not affect her credibility is a matter entirely for you. It is, as I have said already to you, up to you how you assess the evidence and you decide what evidence is important and what is not (ts 390 - 391).

48 The trial judge then gave an orthodox general direction as to the use that can be made of prior inconsistent statements. Turning to the evidence of complaint, the trial judge said:

But first I need to direct you that proof that a complaint was made can never be proof that an event occurred. Evidence of what [the complainant] told [P] or what she told her mother is not to be taken as proof that the conduct of [the appellant], which [the complainant] has complained about, did occur (ts 393).

49 After summarising all the relevant complaint evidence, the trial judge commented as follows:

[T]his is my comment, you can ignore it if you wish - on whatever version of what [the complainant] told them you accept, when she did tell them, she did not say anything about [the appellant] putting his penis in her anus. And nothing about the particular incidents, the subject of these charges. Only that [the appellant] had touched her. The first time she mentioned the penis in her bum hole was later in her interview with the police (ts 394).

50 The trial judge went on to give a direction under s 36BD of the Evidence Act 1906 (WA). She said:

I need to give you a direction about what counsel for [the appellant] has submitted to you about the absence of any mention by [the complainant] to either [P] or [M] about [the appellant] putting his penis in her bum hole and the fact that this was only first mentioned in the visually recorded interview with police. I must point out to you that absence of a complaint or delay in making a complaint that one has been assaulted in a particular way, does not necessarily indicate that the matters complained of did not happen. A person like [the complainant], particularly given her age, might have good reasons for not complaining and not telling anyone about [the appellant] putting his penis in her anus. Bearing that in mind, it's for you to determine what significance you give to the fact that [the complainant] only complained of something of what [the appellant] had done and did not mention anything about his penis penetrating her anus until she had her interview with police. All of this is for you to judge. Absence of complaint or delay in complaining does not necessarily mean that the allegation that the offences were committed is false. There may be good reasons why a victim of an offence like these may hesitate in giving details or may refrain from talking about all of the details of what happened to her (ts 395).

51 Evidence of complaint is only admissible if it is capable of buttressing the credibility of the complainant's evidence relating to the offences with which the offender is charged. The trial of the appellant was conducted by the parties on the basis that what the complainant told her grandmother was admissible complaint evidence. If it were otherwise, it would have been left to the appellant to cross-examine the complainant on it as a prior inconsistent statement under s 21 of the Evidence Act 1906 (WA). This was the approach taken to the complainant's statements in the video record of interview concerning what she said to her mother. That was edited out of the video record because it was thought not to satisfy the requirement that the complaint be 'recent'.

52 If, as the parties accepted at trial and in the appeal (correctly in my view), the complaint evidence was admissible because it was capable of (may, not must) bolstering the complainant's credibility, it cannot be the case that it is a prior inconsistent statement that is only capable of undermining the complainant's credibility. A prior inconsistent statement may have no adverse impact on the credibility of the witness: Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517, 536.

53 The underlying premise of the appellant's contentions in grounds 1(a) and 2 is that the digital penetrations of which the complainant said she told her mother and grandmother could only have been the same penetrations with which the appellant was charged. The evidence simply does not support the premise. At best for the appellant, that may be an available inference. If that inference were to be drawn, it would be necessary to consider whether there was an explanation for the behaviour. A viewing of the record of interview suggests the complainant was or may have been uncomfortable or embarrassed about using the word 'dick' and in describing the detail of the offences.

54 Whether or not there was an inconsistency between the complaint evidence and the evidence of the offences was a matter for the jury. There was no express, positive inconsistency. The complainant did not say that this was everything the appellant had done to her or that he had not done anything else. It was for the jury to determine whether the absence of any reference in the complaints to the conduct the subject of the offences was impliedly inconsistent with her evidence about the offences and whether there was an explanation for the discrepancy which did not prevent the complaints bolstering her credibility.

55 Warnings are usually only required if some aspect of the evidence gives rise to a perceptible risk of a miscarriage of justice and the risk of a miscarriage is not necessarily obvious to the lay mind: Winmar v The State of Western Australia [2007] WASCA 244 [21] - [22].

56 There is no general requirement to warn a jury about the possible consequences of a finding that a person made a prior inconsistent statement, which can be many and varied. There was no necessity in this case to warn the jury that if they were satisfied there was an inconsistency, it was necessary for them to scrutinise the evidence of the complainant with care. The directions given by the trial judge were appropriate and adequate. I would dismiss grounds 1(a) and 2.

57 The appellant contends the trial judge erred in failing to adequately identify the issues bearing upon the complainant's credibility. I infer the gravamen of the ground of appeal is that the trial judge failed to adequately put the defence case to the jury: Carroll v The State of Western Australia [2004] WASCA 254. A trial judge is not bound to comment on all the evidence nor to refer to all the contentions on which the accused has relied. The adequacy of a summing up will depend on all the circumstances of the case. There must be a real risk that the trial judge's omission or approach resulted in a miscarriage of justice: Carroll [192] - [194].

58 The defence contended at trial that if the offences had occurred, the conduct would have been heard and noticed by the complainant's mother. The trial judge reminded the jury of that contention and of a number of the matters on which the defence relied in support of it. The appellant's specific complaint is that the trial judge did not direct the jury that the improbability was a circumstance which was material to the credibility of the complainant. The assertion is without merit. The trial judge introduced the topic as follows:

The defence says it is just improbable that these alleged incidents of sexual penetration occurred as [the complainant] says. The defence says her evidence about the events is not credible, and you can't place any reliance on her evidence for a number of reasons. And I'll give you some of them (ts 388).

59 The fourth matter to which the trial judge referred in that context is as follows:

The fourth thing is that [the complainant] confirmed that her bedroom door was open. She told the police interviewers that the penetration during the Xbox incident went for about 10 to 20 minutes. She said that she said in a normal voice, 'Stop, I don't like it. It hurts.' This was a small house with bare floorboards, thin walls and noises from bedrooms could be heard in the lounge. [The complainant] confirmed her mum was in the lounge room playing with the Xbox only a short distance away from the open door to [the complainant's] room. The defence says it wasn't hard for things from the bedrooms to be heard from the lounge[.] [The complainant] herself gave evidence that she would at night hear her mother and [the appellant] making love, and the defence says it's improbable that if something had in fact occurred as alleged, then it would not have been heard (ts 389).

60 The second aspect of the complaint is that the trial judge dealt with matters going to the complainant's credit throughout the summing up so that its cumulative effect was lost on the jury. The contention is the trial judge should have given the jury a list of factors affecting the complainant's reliability. The complaint relates to the order in which the matters were addressed by the trial judge. The role of this court is to intervene where there is a material error of law or miscarriage of justice. This complaint falls well short of establishing either. It provides no arguable basis for a claim that there was a failure to adequately put the defence case.

61 The final aspect of this ground is the trial judge's failure to refer to a number of matters said to be relevant to the complainant's credibility. The omissions were: the complainant's evidence that she considered herself a very good actress; the inherent incredibility of the complainant's description of the shape of the appellant's penis; and the opportunity, given the appellant's work commitments, to commit the offences.

62 The second and third matters were not significant aspects of the appellant's defence. They did not figure in the closing address of the appellant's counsel. The first matter was mentioned by the appellant's counsel in closing. The evidence was adduced in cross-examination in a contextual vacuum (ts 94) and led nowhere. These omissions do not give rise to an arguable claim of a miscarriage of justice.

64 The appellant contends that the trial judge erred in failing to direct the jury that if they found, as the evidence suggested, a motive to lie, then they should take special care before acting upon the evidence.

65 The trial judge directed the jury on motive as follows:

I need to give you a direction now about the suggestion by the defence that [the complainant] had a motive to lie; wanting to get [the appellant] out of her life, have her mother back and then get her mother and father back together again. [The complainant] admitted that she was heartbroken when her parents separated. There was evidence from [the complainant], [her father], and [her mother] that [the complainant] had wanted to live with her father. [The complainant] agreed in cross-examination that she always wanted her dad to come back and live with her mum. Later, she admitted that what she wanted was [the appellant] out of her mother's life and her parents back together. You are entitled to consider whether the evidence has thrown up anything which might indicate that [the complainant] had some motive for making a false complaint or for giving false evidence. The possible presence of something like that has, of course, as a matter of common sense, the potential to cast doubt on the reliability of [the complainant's] evidence (ts 392).

66 The appellant cites no authority for his contention that the trial judge was obliged to warn the jury to take special care when scrutinising the complainant's evidence if it found she had a motive to lie. There is no general requirement to that effect. Further, there is nothing in the circumstances of this case to necessitate a warning. As the trial judge made clear in her direction, the consequence of finding that the complainant had a motive to lie is a matter of common sense. This ground is without merit.

Ground 1(e): direction concerning change in complainant's behaviour

67 The trial judge directed the jury on the evidence relating to the complainant's change of behaviour in tandem with the direction on distress. The trial judge directed the jury as follows:

It is for you to decide, as a matter of fact, whether you accept that [the complainant's] behaviour did change and, if so, the nature and extent of that change. It's also a matter for you to decide whether she was distressed and crying after her conversation with [her grandmother]. You must appreciate, however, that this change of behaviour and her crying, if you find that there was a change in behaviour and that she did cry, may have resulted in any one of several possible causes. It may have been caused by the alleged incidents, the subject of these charges. It may have been caused by her disappointment in not being able to live with her father. In her cross-examination, [the complainant] agreed that she became moody when her dad said she couldn't go and live with him and [her mother] also gave evidence of how [the complainant's] behaviour changed and she became moody with mood swings after she was told she could not go and live with her father. It may have been caused by the changes in her life following the separation of her parents. [The complainant's grandmother] mentioned that she was not only upset because she could not live with her father, but also because she left all her friends and everything up in Banksia Grove. It may have been caused by her jealousy; thinking about how she might get rid of [the appellant], as the defence put to her and have submitted to you, in an attempt, ultimately, to get her mother and father back together again. You will have to make your own assessment about the evidence of [the complainant's] behaviour and distress. The evidence which [the complainant's grandmother] gave of [the complainant's] change in behaviour and of her crying, cannot of itself be used to confirm the truth of the allegations which [the complainant] has made. In the same way, as evidence of complaint made by [the complainant], can't be used to confirm the allegations of the charges in the indictment. If you're satisfied that [the complainant] did have a change in behaviour or that she was crying after her conversation with [her grandmother] and if you find it was consistent only with the allegations against [the appellant] in this case, it can be an aid to you in assessing the consistency of [the complainant's] conduct. Depending on the view you take, it may indicate to you that her behaviour was consistent with the events that she's now related to you. However, you must exercise considerable caution in making your own assessment because of the potential number of causes which could have given rise to [the complainant's] behaviour and distress. In other words, the evidence of [the complainant's] changed behaviour or her crying, should only be treated as something which supports her credibility if there is no other reasonable explanation for that behaviour consistent with [the appellant's] innocence. You could not use evidence of [the complainant's] changed behaviour or crying or distress as direct evidence that these alleged incidents occurred (ts 396 - 397). (emphasis added)

68 The appellant complains that the jury were not directed that they could only be satisfied that sexual misconduct was the cause of the change in the complainant's behaviour if they were satisfied that the alternative causes were not operative. It is said the language used by the trial judge did not adequately remind the jury they had to exclude other potential causes. This contention is without merit, as the italicised words in the extract demonstrate. It was not contended in this appeal that there is no requirement for such a direction when the evidence is not relied on as corroboration, but only to buttress credibility. That is an issue for another day. This ground should be dismissed.

Ground 3(a): failure of State to call complainant's mother

69 A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice: R v Apostilides [1984] HCA 38; (1984) 154 CLR 563, 575. It is necessary to focus on the objective consequences that the failure to call the witness has had on the course of the trial and its outcome. The critical question is not whether the prosecutor's decision not to call a witness was erroneous or constitutes misconduct, but whether in all the circumstances the verdict is unsafe or unsatisfactory (Apostilides (577 - 578)).

70 R v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450 is an example where a failure to call a witness gave rise to a miscarriage of justice. The appellant had been convicted of having sexual intercourse in circumstances of aggravation without consent. The circumstances of aggravation were that the complainant was under 16 years of age and under the authority of the appellant. The complainant testified that she was screaming in protest and calling for help during the sexual assault. She testified that during the act of intercourse her mother opened the door, looked at what was happening, said 'that's enough' and then walked away. At the beginning of the second day of trial, the prosecutor said he did not intend to call the mother. The defence, who had not interviewed the mother because it was expected the Crown would call her, did not call her to give evidence.

71 The appellant's submissions in this case are focussed entirely upon whether or not the prosecutor ought to have called the complainant's mother. The appellant did not assume the task of identifying any miscarriage of justice in the events that occurred in this case. No miscarriage has been demonstrated. The complainant's mother was not an eyewitness to any offence. Neither was she a hostile witness to the appellant's interests. The appellant had notice of what her evidence was to be. The trial judge gave the appellant's counsel latitude to lead the witness if that was required. There is no claim of any prejudice and none is apparent. The ground must fail for that reason alone. However, it is appropriate to make some observations on whether the prosecution erred in the exercise of its discretion.

72 The Statement of Prosecution Policy and Guidelines 2005 made under the Director of Public Prosecutions Act 1991 (WA) relevantly provides:

The discretion not to call a witness should be exercised only where the prosecutor has a bona fide belief (which should include a proper inquiry of the witness) based on reasonable information that the witness lacks credibility or is otherwise unreliable.

73 The prosecutor did not interview the complainant's mother before determining not to call her. Ordinarily that would be the proper and necessary course. However, the failure to do so will not inevitably establish error. It does not in this case.

74 The complainant's mother had signed two witness statements, both containing a declaration in accordance with cl 4(5) of sch 3 of the Criminal Procedure Act 2004 (WA). The prosecutor explained his reasons for not calling the complainant's mother. The principal reason was said to be that, after reading her statements, the prosecutor concluded that the complainant's mother had at no stage given the allegations any credence whatsoever. The prosecutor also took the view that the statement was not given truthfully and her evidence in court would not be given truthfully.

75 It is apparent from the statements (and confirmed in her evidence) that the complainant's mother had peremptorily dismissed the possibility of sexual misconduct by the appellant. She had unequivocally aligned herself with the appellant and his interests before she knew the detail of the allegations or when, where and how the offences allegedly occurred. This conduct provided a proper basis for the prosecutor to form an adverse view as to the credibility of the statements and the evidence to be based on them. In the circumstances, the failure to interview the witness did not establish an error in the exercise of the prosecutorial discretion. I would dismiss this ground.

76 The appellant contends the evidence of distress was inadmissible because of the delay between the last allegation of sexual penetration and the complainant's distress disclosed to her grandmother on 9 March 2009. This claim is without merit. The distress accompanied the complainant's revelation to her grandmother of sexual abuse. It was accepted by the parties that the complaint was 'recent' for the purposes of admissibility, which it clearly was. It would be nonsensical to reach any different view in relation to the distress.

77 This court must allow the appeal if, in its opinion, the verdicts of guilty on which the convictions are based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported: s 30(3)(a) of the Criminal Appeals Act 2004 (WA). Courts frequently express their conclusion on whether the verdict is unreasonable or not supported by the evidence in terms of a verdict that is 'unsafe or unsatisfactory': M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492.

78 In M, the plurality held that the test for an unsafe or unsatisfactory verdict was whether the court thought that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (493). In answering that question the court must not disregard nor discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or that the jury had the benefit of having seen and heard the witnesses (493). The plurality explained the application of the test as follows:

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. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be 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 (494 - 495). (footnotes omitted)

79 The question before the court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt: Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113].

80 The appellant identified the circumstances on which it relied for its contention that the verdicts are unsafe and unsatisfactory. I start with the uncontentious matters. They are that the medical evidence was neutral, that the complainant's evidence was not corroborated and that there were inconsistencies between the statements made out of court and her evidence on oath. Apart from the complaint evidence, the appellant relies on the following inconsistencies:

(i) in relation to the Xbox incident, the complainant first alleged that the appellant walked out of the room and she followed and the appellant then said to her mother that he just went in and saw her room and it was all messy and he cleaned it up whereas in cross-examination she said she came out 10 minutes later and when she came out her mother said to the appellant 'What are you doing - what were you doing in [the complainant's] room?' prompting the reply 'Oh, her room was dirty and I cleaned it up';

(ii) in her police interview, the complainant did not suggest she had ever said 'ouch' whereas in her evidence she said that when it hurt she was just going 'ouch';

(iii) in her police interview, the complainant did not suggest that the appellant had said 'I want to do it once more' but she testified that he did so;

(iv) whether she was wearing long grey pants or dark blue pants at the time of the Xbox incident;

(v) a change in the complainant's account from her mother normally coming to the bedroom door to her concession in cross-examination that her mother did not come to the door;

(vi) whether she complained to her mother or her grandmother first;

(vii) whether the appellant had put the complainant's pants on the floor or on the bed.

81 The first two circumstances are common in sexual abuse cases, particularly when the victim is a child. The above list of inconsistencies, individually or cumulatively, cannot bear the appellant's description of them as 'serious'. Inconsistencies on matters of detail are common in human experience and ordinarily have no adverse impact on the credibility of the witness. I have already addressed the issues relating to the gap between the content of the complaint evidence and the complainant's evidence of the offences.

82 Another matter relied on is that 'the manner of penetration described appears to be physically impossible, or extremely unlikely'. It appears from the appellant's written submissions that the contention is based on where the complainant said the appellant was standing (marked on exhibit 2). It is said he was so far from the bed 'that it would appear physically impossible for the complainant to have remained on the bed with her ankles lifted up to the Appellant's shoulders'. That clearly raises the possibility of the complainant being mistaken in marking the photograph. In her video record of interview she said the appellant was standing next to the bed (ts 19) with one arm on the bed (ts 20).

83 There is a common thread in the remaining matters relied on by the appellant. They are the complainant's curiosity about the sexual activity between her mother and the appellant; that the complainant articulated a sexual desire for the appellant; and the complainant's 'improper' affection

for the appellant. The last two matters depend in large measure upon the acceptance of the evidence of the complainant's mother, aspects of which are inconsistent with the evidence of the complainant's grandmother. It was open to the jury to reject the mother's evidence, which could have been seen by the jury as stretching credulity and partisan. In any event, any indications that the complainant may have been jealous of her mother's sexual relationship with the appellant or had an 'improper' affection may be regarded as consistent (or at a minimum, not inconsistent) with the appellant having acted sexually towards the complainant.

84 Having evaluated the evidence adduced at trial, including the evidence the focus of the individual grounds of appeal, I am satisfied that it was open to the jury as a matter of both fact and law to be satisfied beyond reasonable doubt that the accused was guilty. I would dismiss this ground.

Public Prosecutions Act 1991

WALSH -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 119 (23 May 2011)

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Judgment (138 paragraphs)

WALSH -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 119 (23 May 2011)

Legislation Cited (3)

Cases Cited (5)