OKS v Western Australia

• Jurisdiction: Australia Federal only
• Judge: Bell,Keane,Nettle,Gordon JJ,Edelman J.
• Judgment Date: 20 March 2019
• Neutral Citation: [2019] HCA 10
• Docket Number: P62/2018
• Court: High Court
• Date: 20 March 2019

OKS

Appellant

and

The State of Western Australia

Respondent

[2019] HCA 10

Bell, Keane, Nettle, Gordon AND Edelman JJ

P62/2018

HIGH COURT OF AUSTRALIA

Criminal practice — Appeal against conviction — Application of proviso that no substantial miscarriage of justice actually occurred — Criminal Appeals Act 2004 (WA), s 30(4) — Where jury found appellant guilty of indecently dealing with child under 13 years of age — Where credibility and reliability of complainant's evidence central issue at trial — Where complainant admitted and was alleged to having lied — Where trial judge directed jury not to reason that complainant's lies meant that all her evidence dishonest and could not be relied upon — Where Court of Appeal found direction by trial judge was wrong decision on question of law — Where Court of Appeal found no substantial miscarriage of justice occurred — Whether error in application of proviso.

Words and phrases — “misdirection”, “natural limitations of proceeding on the record”, “no effect upon the jury's verdict”, “proviso”, “substantial miscarriage of justice”, “sufficiency of evidence to prove guilt”, “very significant weight”, “weight to the verdict of guilty”, “wrong decision on a question of law”.

Criminal Appeals Act 2004 (WA), s 30(4).

Representation

S A Vandongen SC with S Nigam for the appellant (instructed by Nigams Legal)

A L Forrester SC with K C Cook for the respondent (instructed by Director of Public Prosecutions (WA))

ORDER

• 1. Appeal allowed.

• 2. Set aside the order of the Court of Appeal of the Supreme Court of Western Australia made on 11 April 2018 and in lieu thereof substitute the following orders:

  • (a) appeal allowed;

  • (b) the appellant's conviction be quashed; and

  • (c) there be a new trial.

1 Bell, Keane, Nettle AND Gordon JJ. The appellant was convicted before the Perth District Court (Judge Stevenson and a jury) of indecently dealing with the complainant, S, a child under the age of 13 years 1. The trial took place nearly 20 years after the alleged offence. The central issue at the trial was the credibility and reliability of S's evidence. In the course of summing-up the case to the jury, the trial judge directed:

“[D]o not follow a process of reasoning to the effect that just because [S] is shown to have told a lie or she has admitted she told a lie, that all of her evidence is in fact dishonest and cannot be relied upon” (“the impugned direction”).

2 The appellant appealed against his conviction to the Court of Appeal of the Supreme Court of Western Australia (Buss P, Beech JA and Pritchard J) on a ground which contended that the impugned direction was a wrong decision on a question of law 2. The Court of Appeal was unanimous in concluding that it was 3. Their Honours held that, even though the ground of appeal might have been decided in the appellant's favour, the appeal should be dismissed under s 30(4) of the Criminal Appeals Act 2004 (WA) because no substantial miscarriage of justice occurred 4 (“the proviso”).

3 On 16 November 2018, Bell, Keane and Nettle JJ gave the appellant special leave to appeal. In issue in the appeal is the correctness of the conclusion that the impugned direction did not occasion a substantial miscarriage of justice. This conclusion largely turned upon reasoning that, in the context of the summing-up as a whole, the impugned direction would have made no difference to the jury's verdict of guilty, which verdict for that reason should be accorded very significant weight 5. As will appear, it was an error to so conclude. The

appeal must be allowed and the appellant's conviction quashed. As the appellant recognises, the appropriate consequential order is that there be a new trial

The course of the trial

4 On 4 April 2016, an indictment was signed charging the appellant that in March 1997 he indecently dealt with S, a child under the age of 13 years, by placing his hand on her vagina on top of her underwear (count one); in December 1998, he indecently dealt with S, a child under the age of 13 years, by placing his penis over her vagina on top of her underwear and moving up and down (count two); on the same date and place as charged in count two, he indecently dealt with S, a child under the age of 13 years, by stroking her vagina on top of her underwear (count three); and on a date between 6 March 1999 and 5 March 2000, he attempted to indecently deal with S, a child under the age of 13 years, by attempting to put his hand down the front of her pants (count four).

5 On 21 November 2016, at the commencement of the trial, the prosecutor applied to amend counts one and three to delete the words “on top of her underwear”. Consistently with the amendment, it was S's evidence that the indecent dealing charged in count one involved the appellant placing his hand directly on her vagina. S admitted to having lied to the police in her earlier accounts of this assault. She said that she had been ashamed.

6 S did not give evidence of the incident charged in count three and the jury was discharged from giving a verdict on that count. S's evidence of her age at the date of the offence charged in count four did not establish that she was aged under 13 years and the jury was also discharged from giving a verdict on that count.

7 The prosecution case was opened to the jury on the basis that the appellant moved into the family home in 1997 and began touching S sexually very soon afterwards. It was the prosecution case that the appellant continued to touch S sexually “almost every day or so” from when she was ten until she was about 13.

8 S gave evidence that the offence charged in count one occurred on an occasion when the appellant was lying on the bed in her brother's bedroom, S was lying next to him, her mother was sitting on the end of the bed and her brother, B, was also present. The appellant was tickling S on her back as he told them a story. At some point her mother and B left and the appellant continued telling the story and tickling S. He manoeuvred S so that he could tickle her front. He stroked her chest and ultimately he rubbed her vagina.

9 S gave evidence that the offence charged in count two occurred on an occasion when she was in her mother's bedroom wrapping a Christmas present. The appellant and her mother were lying on the bed. Her mother left the room to answer the telephone. The appellant made S sit on the end of the bed, saying words to the effect of, “I've been waiting for this”. He pushed her onto the bed, adjusted his penis so it was over her vagina and simulated sex by moving up and down on S. Both S and the appellant were clothed, but S could see the appellant's erect penis through his shorts.

10 In early 2001, S was interviewed by officers of the Department of Family and Children's Services (“the first Departmental interview”) as the result of something she was heard to say while she was at a Naval Cadet camp. In the first Departmental interview S gave an account that the appellant was touching her chest and vagina on the outside of her clothes. In a further interview with other officers of the Department of Family and Children's Services in early 2001, S said that she and the appellant were play-fighting when he touched her on the chest and the touching had not been sexual (“the second Departmental interview”). In her evidence, S said that she had lied in the second Departmental interview.

11 In February 2010, the appellant sent a request to be added to S's Facebook account as her friend. S responded negatively to the suggestion, saying, among other things, “[d]o u have any idea what u did to me as a kid?” After an interval of just over a fortnight, the appellant sent S a message in which he expressed his surprise at her response to his request to be a Facebook friend. There were no further communications between the two until July 2012, when S sent a message to the appellant saying “[j]ust thought I'd give you the heads up, im seeking legal advice!” Following this communication, the appellant and S exchanged Facebook messages with varying frequency until July 2015. The appellant repeatedly expressed his desire to meet S for coffee. S's responses included generalised allegations that the appellant had behaved wrongly towards her and that he was a “sick old man”. Defence counsel acknowledged that the appellant's messages to S in 2014 conveyed his interest in engaging in sexual relations with her as an adult but he pointed to passages in the messages in which the appellant denied sexual misconduct with S when she was a child.

12 S said that she had decided to complain to the police about the appellant's sexual abuse after receiving a Facebook message from him wishing her a happy birthday in 2014. S made her first statement to the police about the matter on 13 May 2015.

13 On 16 July 2015, the appellant participated in an electronically recorded interview with the police in which he denied any offending against S. The interview was tendered in the prosecution case. The appellant did not give or adduce any evidence at the trial. It was his case that S had fabricated her allegations and that he did not commit any of the acts charged.

14 The focus of defence counsel's closing submissions was on inconsistencies in S's evidence and on her admitted, or asserted, lies. Defence counsel submitted that the one issue for the jurors to resolve was whether they were satisfied to the criminal standard of the credibility of S's account. The submission appears to have been based on seven lies, or asserted lies, told by S.

15 The first lie was in a telephone call that S made to the appellant around Mother's Day 2015. S explained that at the time of this call she was in a predicament brought about by her use of, and dealing in, methylamphetamine: her partner's car had been taken by “standover...