AHN v The State of Western Australia - [2023] WASCA 9

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   AHN -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 9
CORAM:   BUSS P
VAUGHAN JA
HALL JA

HEARD:   14 DECEMBER 2022
DELIVERED          :   25 JANUARY 2023
FILE NO/S:   CACR 64 of 2022
BETWEEN:   AHN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   GETHING DCJ
File Number            :   XXX of XXXX

Catchwords:

Criminal law - appeal against conviction - indecent dealing - whether trial judge erred by failing to give a direction that the jury could not convict unless satisfied beyond reasonable doubt that the complainant was truthful and reliable - whether trial judge erred by directing jury that they must be satisfied that the touching was deliberate rather than directing as to the defence of unwilled act - whether trial judge erred by failing to warn the jury about the risk that the complainant had been coached - whether the trial judge misdirected the jury as to a matter of fact - turns on own facts

Legislation:

Nil

Result:

Extension of time to appeal refused.
Leave to appeal refused.
Appeal dismissed.

Category: B

Representation:

Counsel:

Appellant	:	Ms E R Zillessen
Respondent	:	Mr R G Wilson

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319

JUDGMENT OF THE COURT:

The appellant was convicted after trial of one count of indecent dealing with a child under the age of 13 years contrary to s 320(4) of the Criminal Code (WA) (the Code). He seeks leave to appeal against that conviction.
The appellant requires an extension of time. The appeal notice was filed approximately four months after the last date for appealing. In an affidavit the appellant's legal representative states that the delay is a result of difficulties the appellant had in accessing legal advice and COVID‑related health issues that then delayed the provision of legal advice. The information provided is insufficient to determine whether the delay is justified. Whether an extension should be granted depends on the merits of the appeal.
There are four grounds of appeal. The first contends that the trial judge erred by failing to give a direction to the jury that they could not convict the appellant unless satisfied beyond reasonable doubt that the complainant was truthful and reliable. The second contends that the trial judge erred by directing the jury that they must be satisfied that the alleged touching was deliberate rather than directing them as to the defence of unwilled act. The third contends that the trial judge erred by failing to warn the jury about the risk that the complainant had been coached. The fourth contends that the trial judge misdirected the jury as to a matter of fact.
In our view, none of the grounds of appeal has a reasonable prospect of success. The application for an extension of time should be refused, leave to appeal should be refused and the appeal should be dismissed.

Prosecution case

The complainant, B, was 5 years old in 2019 when the relevant events occurred. She was living with her mother, K, her grandfather, S, and her five siblings in a regional town. The appellant was a friend of the family and a frequent visitor to the family home. He lived in another nearby country town.[1]
[1] ts 90 - 91.
In early 2019, S was hospitalised with pneumonia. He was discharged in about May 2019. He returned to live at the house and K cared for him whilst he recovered. At around that time, the appellant became a more frequent visitor.[2]
[2] ts 91.
On an occasion in 2019, after S had been discharged from hospital, K left the house to do some shopping. At the time she left, S and the children were in the house. When she returned, S was asleep in bed and the appellant was the only other adult in the house.[3]
[3] ts 92.
The prosecution case was that whilst K was away at the shops, B went to her bedroom and the appellant followed her. They were tickling each other, and the appellant told B to close her eyes. He then put his hand inside her underwear and touched her vagina. At the time of this incident, B was wearing knickers, pink shorts and a shirt.[4]
[4] ts 92.
B told police that at the time of this incident she was alone with the appellant. Her siblings were playing somewhere outside. She said that when the appellant touched her inside her underpants he closed his eyes and said, 'I don't know where my hand is, but I'm not going to get into trouble'. B told the police that she thought at the time that the appellant had intended to tickle her hip.[5]
[5] ts 92.
After the incident B went to bed. The matter was not reported until about a year later. At that time, B disclosed to her mother that something had happened and she was then interviewed by the police. The police investigation commenced in the second half of 2020.[6]
[6] ts 93.

Defence case

The defence case was that the appellant was an old friend of S and often visited the family. When he visited it was common for him to play with the grandchildren. It was accepted that on occasions the play may have involved mutual tickling. However, the defence case was that there had never been any deliberate indecent touching.[7]
[7] ts 96, 171.

Prosecution evidence

Evidence of B

B's evidence was pre-recorded and her evidence‑in‑chief comprised her recorded interview. In the interview, when asked to tell the interviewer what she had come to talk about, B said:[8]
[8] BGAB 33 - 34.
A.Um, when we - when him and me were playing around and tickling each other - - -
Q.Mm hm.
A.- - - um, [the appellant] - - -
Q.Mm.
A.- - - um, when he told me to close my eyes - - -
Q.Mm hm.
A.- - - and then he - his hand was going there and then he closed his eyes and then - and then he just tickled me on the privacy.
Q.He tickled you on the private parts?
A.Yeah.
Q.Yeah. And has that happened one time or more than one time?
A.Only one and it was [the appellant’s] birthday.
Q.Okay. Okay. So tell me everything about that time starting from the beginning, okay. In as much detail as you can, tell me what happened.
A.So it will be first - - -
Q.Mm hm.
A.- - - um, when - when we were - when he came over - - -
Q.Mm hm.
A.- - - and we come over from school and then we were so excited and then mum told us to go inside and then he went inside and then we start to calling each other before we tickled each other, we had cake and then we tickles each other in the girls' room while, um, pop and mum was at the shops and also we - and also he's like - he told me to close my eyes and then his hand was slipping there and then he closed his eyes and then he tickled me on the privacy.
Later in the interview B described how the appellant's hand had been under her clothes and 'going in circles' and that he had then touched her on her privates. She said the appellant had also accidentally scratched her on the hip. These events had occurred in the bedroom that she shared with her sisters and whilst her mother and her grandfather were away at the shops.[9]
[9] BGAB 35 - 36.
B said that whilst the appellant was tickling her the appellant said, 'I don't know where my hand is, but I'm not going to get in trouble.' She said that at the time this was happening everyone else was watching a movie. She said that the appellant closed his eyes and told her to close hers. She said that, '[t]hen he thought he was tickling my hip, but he was really tickling my privates.' She said that the scratching of her hip occurred before he tickled her privates.[10]
[10] BGAB 41 - 43.
B was asked whether she had told anyone about the appellant tickling her:[11]
[11] BGAB 46 - 47.
Q: So did you tell anyone about [the appellant] tickling you?
A: At home, yes, in mum's room and we talked about it.
Q: Okay. And do you remember what you told your mum?
A: (no audible answer).
Q: Yeah. What did you tell mum?
A: Um, that [the appellant], um, he - he was tickle - we were tickling each other -
Q: Mmhm
A: - - - and then when we went in the room, we tickled each other and then he told me to close my eyes and he closed his as - and then his hand was slipping and then he tickled me in the middle of the privates.
Q: Okay. Do you remember when you told her that?
A: Huh?
Q: Do you remember when you told mum that?
A: (no audible answer)
Q: How long ago was that?
A: Um, three days.
Q: Okay. Three days ago or three days after it happened?
A: Three days ago.
When cross‑examined at the pre-recording, B agreed that the appellant and her grandfather are good friends and that he (the appellant) would play with her and her siblings when he came to the house. She agreed that when her mother and grandfather were at the shops and the other children were watching a movie, the movie was turned up because her sister did not have her cochlear implant turned on. She agreed that the appellant watched the movie with them in the lounge room. She agreed that whilst they were watching the movie, she and the appellant were tickling each other. However, she said it (the tickling) also occurred in 'the room'.[12]
[12] ts 51.
When it was put to B that the appellant did not tell her to close her eyes she said, '[h]e did tell me to close my - he said it was a game, but it wasn't a game. And then he did tickle me.' When it was put to her that he tickled her under her arms she disagreed and said he tickled her on her 'private'. She maintained this, saying, '[h]e closed his eyes and then - he told me to close my eyes and then he closed his eyes as well and then he - he tickled me under my pants onto my fanny'. She insisted that this tickling occurred in her room and that the appellant put his hand underneath her clothes. She accepted that she could not recall whether she was wearing long pants or pink shorts, although she had told the police that she was wearing shorts.[13]
[13] ts 53 - 55.
When asked whether she told her mother what had occurred or whether her mother had asked her first, B said, 'I told mum first'. She was then asked:[14]
JOUBERT, MR: Now, before you came to court today, did you and your mum talk about what you were going to say?
B: Yes.
JOUBERT, MR: And did you practise what you were going to say?
B: Yes.
JOUBERT, MR: And did your mum help you with what you were going to say.
B: Yes.
[14] ts 57.
In re‑examination, B confirmed that she had gone to the girls' bedroom with the appellant because she wanted to show him something she had made. She said the tickling took place in the bedroom, although she could not remember whether that was the same time as she took him there to see something.[15]

Evidence of K

[15] ts 58 - 59.

K is B's mother. She is the mother of six children. B was born on 7 May 2014.[16]
[16] ts 104.
K said that she moved into the premises where the offence occurred in 2013. Her father, S, started living with her and her children in 2017. The house is a four‑bedroom, two‑bathroom house. She has a bedroom, her father has a bedroom, the girls share a bedroom and the boys share a bedroom. In 2019, there were three daughters in one bedroom (B and her two sisters).[17]
[17] ts 105.
K has known the appellant since she was a child. He is a good friend of her father's.[18]
[18] ts 105 - 106.
In 2019, B was attending a local primary school. 2019 was her pre‑primary year. At this time B attended school from 8.50 am until 2.50 pm Monday to Friday.[19]
[19] ts 106.
In 2019, S became sick with pneumonia and was hospitalised. He spent a month in hospital and was in a coma for a few days. He went into hospital in April of that year. When he was discharged he came back to live at K's house. He remained sick and she was his full‑time carer.[20]
[20] ts 106.
K believes that the appellant came to her house on four or five occasions in 2019. One of those occasions was for his birthday in August. She took photographs on this occasion with the children because her elder daughter had made the appellant a cake. On that occasion the appellant stayed overnight, and possibly more than one night.[21]
[21] ts 107 - 109.
K said that prior to the photographs being taken she had gone to the shops to buy things to make a cake and also, very likely, things for dinner. When she went to the shops her father was in bed and the appellant was with the children. When she returned from the shops her father was in bed asleep and the appellant was still with the children.[22]
[22] ts 111.
K said that she had seen the appellant playing games with the children. She said that he was always 'very hands on' and would get on the floor and play with them. She had seen him playing games with B. This had occurred in the living room of the house.[23]
[23] ts 112.
In cross‑examination, K was asked about an occasion about a year later, on 3 August 2020, when she had spoken to her children. She agreed that that day was a school day and that when the children came home from school she called them into her bedroom to speak to them. She agreed that she had asked the children about the appellant and whether he had been doing anything with them. She was then asked:[24]
JOUBERT, MR: And you were asking the children about [the appellant] and whether he had been doing anything with them, didn't you?‑‑‑Yes.
And you were asking specifically if [the appellant] had touched any of them inappropriately didn't you?‑‑‑I don't know.
But before you called the kids into your room you made it quite clear to the appellant that he was not welcome, didn't you?‑‑‑Yes.
And he left that same afternoon in 2020?‑‑‑Yes.
So when the kids were in your room you were asking the children about what had been happening between them and [the appellant] weren't you?‑‑‑I don't know.
Well, I suggest that's why you told the appellant to leave. He is no longer welcome because you wanted to find out from the children what had been going on with them?‑‑‑I need a minute.
[24] ts 113.
There was then a break in K's evidence. In the absence of the jury, the prosecutor said that he had advised K that she should not mention anything about complaints received relating to another of her children. The prosecutor said it was possible that K was concerned as to how she could answer the questions being put to her in cross‑examination whilst adhering to that advice.[25]
[25] ts 114.
The trial judge confirmed with the witness that she had been told to speak only about the allegations involving B and not anything about another of her children. K confirmed that it was because she had been told not to mention the complaint regarding the other child that she had begun to feel uncomfortable and had asked for a break. She was then told by the trial judge that if it was necessary in order to answer a question to speak about the other child then she was free to do so. Defence counsel said that he understood the risk involved in pursuing this line of questions.[26]
[26] ts 117 - 119.
On return of the jury the following exchange occurred:[27]
[27] ts 120 - 122.
JOUBERT, MR: You remember [the appellant] visiting you in August 2020?‑‑‑Yes.
And he left on the Monday didn't he?‑‑‑Yes.
And it was about that time you heard about the tickling that went on between B and [the appellant] wasn't it?‑‑‑Yes.
And did you ask B whether he had touched her inappropriately when there was another incident?
GETHING DCJ: So just concentrate on ‑ ‑ ‑
JOUBERT, MR: No, no.
GETHING DCJ: Just concentrate on answering the questions. So we're talking about the conversation you were having on the Monday. Well, maybe I think you will get a better answer if you ask it open‑ended.
JOUBERT, MR: Yes.
GETHING DCJ: So I think the question is what did you say to B?
JOUBERT, MR:   Yes?‑‑‑Not on that day.
Yes?‑‑‑It wasn't discussed with B that day.
I see. And when was it discussed with her? Was it the day after?‑‑‑No.
Was it around about that time?‑‑‑The children were talked to because there was another incident, and we had to establish if anything had happened to any of the other children.
Yes. Now, when you were talking to the children were they all together?‑‑‑No.
So what did you ask B?‑‑‑I discussed with B that something had happened and had anything that she felt was inappropriate happened to her, and that's when she disclosed what happened and I notified the detectives.
Well, how did you ask her? Do you remember?‑‑‑No.
Because a child of five wouldn't have known what 'inappropriate' means?‑‑‑No.
So how did you ask her?‑‑‑I don't know.
But you agree that you asked her for details?‑‑‑No, I didn't. I wasn't aware of what had happened until she had disclosed with the detectives.
So are you aware that the questioning of children in relation to such matters is a fairly specialised skill?‑‑‑Yes.
And you don't have training in that regard, do you?‑‑‑No.
So when you first questioned B about anything happening with her and [the appellant], she denied it, didn't she?‑‑‑No.
No?‑‑‑She didn't deny it.
And she had said nothing at all to you or anyone else about what had happened with [the appellant] during the preceding 12 months, did she?‑‑‑No.
So you helped B with what she had to say in court, didn't you, because she was so young?‑‑‑No. We discussed the difference between telling the truth and a lie. We discussed that if someone told her her favourite colour was green and that's a lie, she could say, 'No, that's not the truth'.
And you practiced with her what she had to say?‑‑‑No.
So in her evidence under cross-examination B confirmed that you did, in fact, help her with what she had to say in court.
GETHING DCJ:   Well, I think that's an unfair question.
JOUBERT, MR:   I beg your pardon?
GETHING DCJ:   I think that's an unfair question.
JOUBERT, MR:   I will withdraw that question. So what seems to be clear is that B didn't spontaneously volunteer details of the tickling incident with [the appellant], did she?‑‑‑She discussed it with the detectives. I wasn't aware of what had occurred until she had discussed it with the detectives.
And this was a year later?‑‑‑Yes.
Later in the cross‑examination counsel returned to this issue:[28]
JOUBERT, MR: … Well, let's go back to August 2020. It was in that month that you heard that something had happened between B and [the appellant], correct?‑‑‑Yes.
And it was about a week after you heard about that that you took her to the police, didn't you?‑‑‑They discussed it with B because of the incident with [her sister].
Yes?‑‑‑They needed to establish whether anything had happened to any of the other children, other than just [her sister].
[28] ts 125.
A little later the following question was put:[29]
So I suggest to you that you only learnt about the incident with [the appellant] and B when you asked B persistently about what had happened with her and [the appellant]?‑‑‑No, she discussed it with the detectives. I wasn't aware of what had happened until she had disclosed it with them. Then they told me what had happened.

Police interview

[29] ts 126.

The appellant was arrested and interviewed by police on 19 August 2020. He agreed that he knew the family and visited them at their house, including on his birthday. He agreed that when he was at the house he would play with the children and that, if they tickled him, he would tickle them back. The allegation was then put to him:[30]
So around this time last - last year or on July August last year, um, so we've spoken to [B] during a specialist child's interview, okay, and she has told us that one morning you were playing a game, you were tickling each other, and [B] says, [B] told us that she or you have tickled her on the private parts. Tell me about that.
No, I didn't.
She said it was last year and you've come over - sorry, the kids have come back from school, you've gone into the girls' room where you started to tickle each other. You've told [B] to close her eyes.
No, I didn't.
And then once you've told her to close her eyes you've closed your eyes and then you've tickled her on the stomach and then put your hands under her knickers and tickled her vagina.
No, I never.
Tell me about that.
Never did anything like that at all.
[30] BGAB 86.

Other evidence

Evidence was also called from S to confirm surrounding circumstances, such as the date of his hospitalisation and the date when the photographs shown to K were taken. A police officer was also called to prove formal matters that were not in contention.[31]
[31] ts 130 - 134, 145 - 146, 148 - 150.

Jury question

After the close of the prosecution case, the judge received a note from the jury which read:[32]
Your Honour, we need to know who reported the incident with [B] to the police. Was it reported in the police interview about an incident involving another child? How was the incident first reported?
[32] ts 152.
His Honour said that he intended to answer that question by telling the jury that they could not speculate. Defence counsel agreed that such a direction was appropriate. His Honour then said the following to the jury:[33]
The answer to that is that you - that that's something that you're not - that you may well not hear any evidence about. So that's not something you'll be able to speculate upon and I will reiterate that when I give you some closing directions.
[33] ts 153.

Defence evidence

The appellant elected not to give or adduce any evidence.[34]
[34] ts 151.

Closing addresses

Counsel for the State submitted that B was an honest and accurate witness whose evidence the jury could accept. He pointed out that B's account of what had occurred had been consistent and detailed, including correcting the interviewer at one point when it was suggested that the appellant had tickled her hip. Counsel noted that B had referred to her belief that the tickling of her privates was not intentional, but the State said that it could not be accidental that the appellant had his hand inside B's knickers, rubbing her vagina.[35]
[35] ts 153 - 156.
Defence counsel pointed out that B was a very young child at the time of the incident. He said that, in many respects, B had a good recollection of the tickling incident and she was matter of fact and displayed no anger, animosity or ill will towards the appellant. Counsel said that the timeline was important. He submitted that something was said to make K take B to the police for an interview in August 2020. He said that K was evasive about what B had said to her and seemed to distance herself from any suggestion that she had asked B what had transpired. He said that K had said that the details of what happened only came out in the police interview, but if that was true it begged the question of why she took B to the police.[36]
[36] ts 157 - 158.
Defence counsel referred to B's evidence that the appellant did not know that he had put his hand on her vagina. He said that B was consistent about the touching being unintentional and accidental. He said that this explained why B demonstrated no ill will towards the appellant when she gave her evidence. He submitted that the appellant may well have accidentally touched B while they were tickling one another. He reminded the jury that B had given evidence that her mother had helped her with what she had to say in court and practiced what she had to say, although this was denied by K. In essence, defence counsel's submission was that the jury should be cautious in accepting B's evidence because she had been coached by her mother and because any touching may well have occurred unintentionally.[37]
[37] ts 158 - 159.

Trial judge's directions

The trial judge directed the jury that they must determine the case on the evidence and that they should not speculate. In this regard, he returned to the jury note and said:[38]
There's no specific evidence about who reported the incident with B to the police and whether it was reported in the police interview or how the incident was first reported. So they're all matters that are not in evidence so they're matters that you must not speculate about. So you must decide the case only on the basis of the evidence which is before you.
[38] ts 161.
His Honour then gave standard directions regarding the presumption of innocence and the onus and standard of proof. In relation to the standard of proof, his Honour said:[39]
It's the highest standard known to the law. If you have a reasonable doubt as to whether the appellant is guilty then he gets the benefit of that doubt and it's your duty to return a verdict of not guilty. More specifically you cannot return a verdict of guilty unless the State proves each of the essential ingredients or elements of the offence beyond a reasonable doubt.
[39] ts 162.
In regard to the evidence of witnesses, his Honour told the jury that they did not have to accept all of a witness's evidence. He said that they were free to accept part of a witness's evidence and reject other parts. He said that the jury were entitled to work out for themselves a view of the case which does not exactly represent what either counsel has invited them to find. He then said:[40]
Now, in order to deliver a verdict in this case, you're going to have to form a view as to the honesty, accuracy and reliability of the evidence given by each witness. In particular, you will need to form a view as to the honesty, accuracy and reliability of [B's] evidence. As to the honesty of the witness, you may wish to consider whether the witness is telling the truth or whether the witness is lying or embellishing or perhaps bolstering their recollection. As to the accuracy of the evidence, you may wish to consider whether the witness was able to accurately observe and form a memory of the events at the time. As to the reliability of the evidence, you may wish to consider how well the witnesses recall the events in question. Matters like the length of time between the incident and the trial, the age of the witness at the time of the events and the extent to which the witness has spoken about their evidence with others can affect the reliability of the evidence of a witness. The assessment of the honesty, accuracy and reliability of the evidence of each witness is a matter for you. It is a matter on which I would invite you to bring to bear your commonsense and experience of life. Nothing I say to you can bind you in terms of the factual findings you make. You alone make those findings. However, the decisions you make about the facts must be based on the evidence presented to you in this trial. (emphasis added)
[40] ts 163 - 164.
After referring to the fact that the appellant did not give evidence and that the jury could draw no adverse inference from that fact, his Honour said:[41]
So the question for you to consider is whether, on all the evidence before you, the State has proven the offence by [the appellant] beyond a reasonable doubt. If you have a reasonable doubt as to whether [the appellant] is guilty or not guilty of the offence, then it's your duty to find him not guilty.
[41] ts 165.
His Honour then referred to the appellant's interview with the police and told the jury that if they accepted the appellant's denials, or if the denials engendered a reasonable doubt, they would find him not guilty. However, if they did not believe what the appellant said in his interview it did not automatically follow that he was guilty. The jury should then put aside that evidence and consider whether the State had, on the basis of all of the evidence at the trial, proven that the appellant was guilty beyond a reasonable doubt.[42]
[42] ts 166 - 167.
His Honour then turned to the charge and provided the jury with a handout setting out the elements. He gave oral directions consistent with the handout. Relevantly to the issues in this appeal, the handout set out the first element of the charge in the following terms:[43]
1.Has the State proven beyond reasonable doubt that [AHN] dealt with [B] by touching her on the vagina?
To deal with another person includes, but is not limited to, touching any part of the body of that person.
The touching must have been deliberate and intentional.
[43] ts 168.
In explaining this element the trial judge also said in his oral directions that '[t]he touching must have been deliberate and intentional. So, an unintentional, accidental touching of a person would not constitute a dealing'.[44]
[44] ts 168.
His Honour summarised the prosecution and defence cases. In respect of the defence case he said:[45]
The defence case is also that if there was any tickling on the vagina, that the State has not proven beyond a reasonable doubt that it was a deliberate and intentional act.
Mr Joubert invites you to place significant weight on [B's] statements that the tickling that occurred was accidental and that [the appellant] did not know that he was doing that. So the defence case is that there was tickling on the vagina. If that, in fact, occurred, that the State has not proven beyond a reasonable doubt that it was not an accident. So in summary, Mr Joubert invited you to conclude that there's insufficient evidence of indecent dealing and that the State has not proven the offence against [the appellant] beyond a reasonable doubt and so you should enter a verdict of not guilty.
[45] ts 171.
Trial counsel raised no issues with the trial judge's directions.[46]
[46] ts 174.

Grounds of appeal

The grounds of appeal are as follows:[47]
[47] WAB 9.
1.The trial Judge's directions to the jury in relation to the issue of the burden of proof gave rise to an error of law.
In particular
i)The trial judge failed to direct that the jury were required to be satisfied beyond a reasonable doubt of the truth (or alternatively the honesty accuracy and reliability) of the complainant's evidence before they could find the appellant guilty of the offence.
2.The trial Judge's directions to the jury in relation to whether the touching of the complainant was intentional and deliberate gave rise to an error of law.
In particular
i)The trial Judge failed to direct the jury that if they were satisfied beyond reasonable doubt that the appellant did touch the vagina of the complainant in the way she described then they additionally needed to be satisfied beyond reasonable doubt that the act of touching was deliberate and not unintentional before they could find the appellant guilty of the offence.
3.There is an appreciable risk of a miscarriage of justice by reason of the learned trial judge's failure to give the jury an appropriate warning to take care in assessing the reliability of the complainant's evidence.
4.There is an appreciable risk of a miscarriage of justice by reason of the learned trial Judge's misdirection of fact and associated direction not to speculate in response to a question from the jury that there was no evidence bearing on their question about who first reported the incident to police.

Ground 1 - appellant's submissions

The appellant submits that because the State's case relied on the strength of B's evidence it was essential that the jury be directed that they needed to be satisfied beyond reasonable doubt of the truth of her evidence before convicting the appellant. It is contended that the critical role of B's evidence was not a feature of the directions as a whole.[48]
[48] WAB 12.
Although the ground refers to an error of law, it was accepted in oral submissions that the suggested direction was not required as a matter of law. Rather, it was said to be required having regard to the facts and circumstances of this particular case to avoid a perceptible miscarriage of justice.[49]
[49] Appeal ts 2 - 3.
The appellant submits that the passage in the directions extracted at [44] failed to give the requisite emphasis to the importance of the assessment of the honesty, accuracy and reliability of B's evidence. The repeated use of the word 'may' in that passage is particularly relied upon. It is submitted that to tell the jury that they may wish to consider certain matters when assessing credibility suggested that an assessment of B's evidence was 'discretionary'.[50]
[50] WAB 15.
In oral submissions counsel for the appellant identified the risk as being that the jury was satisfied that B was reliable in only some respects and accurate in only some respects and might have reasoned to guilt without finding that her evidence on the critical issue was accurate and reliable. In other words, the jury were not required to rule out that there was a reasonable doubt about the accuracy and reliability of B's evidence on the critical issue.[51]
[51] Appeal ts 8.

Ground 1 - the merits

There was only one issue at this trial - whether the appellant deliberately touched B's genitals. There was no doubt that such an act, if done deliberately, was indecent. The evidence was straightforward, and the trial was completed in two days. The only evidence as to the touching came from B.
The only way that the jury could convict the appellant was if they accepted the evidence of B and, on that evidence, were satisfied beyond reasonable doubt that the touching was deliberate. That would have been abundantly plain to the jury from the trial judge's direction. The directions to the jury requiring that they be satisfied beyond reasonable doubt that the appellant deliberately and intentionally touched B on the vagina necessarily required them to be satisfied beyond reasonable doubt that B's evidence in this regard was honest, reliable and accurate.
In the circumstances of this case the directions given by the trial judge regarding the onus and standard of proof were sufficient. There was no perceptible risk that the jury would fail to understand that proof of the offence required them to be satisfied of the truth of B's account beyond reasonable doubt. The direction contended for by the appellant would not have materially added to the directions given by the trial judge.
The appellant's interpretation of the passage extracted at [44] is misconceived. The plain meaning of this passage is that his Honour was telling the jury that in assessing the credibility and reliability of witnesses there is a range of matters that can be taken into account. That direction properly recognises that findings of fact are a matter for the jury. It is an entirely orthodox direction. There was no suggestion, express or implied, that it was optional to make an assessment of the evidence of B. Indeed, his Honour particularly noted that the jury would need to form a view of the honesty, accuracy and reliability of B. Plainly, for the reasons already given, such an assessment was a necessary step in reaching a conclusion as to guilt.
It is noteworthy that trial counsel did not consider that there was any deficiency in the directions, nor any need to seek a redirection. Whilst the view of trial counsel is not determinative as to whether there has been a miscarriage of justice, it is telling that the matter complained of on appeal was not viewed as significant by experienced counsel present at the trial. This reinforces the view that there was no necessity to say more in the directions.
Furthermore, there may well be good reasons why a direction such as that suggested in this ground would not have been seen as desirable by defence counsel. A significant aspect of the defence case was that the touching may have occurred as alleged, but that it was inadvertent. This claim was based on B's evidence that her impression at the time was that the appellant had not intended to touch her vagina. Putting to one side that that evidence was inadmissible opinion as to the appellant's state of mind, the defence case in this regard did not seek to impugn the credibility of B. Rather, the defence position was that the jury could accept the evidence of B in its entirety and still find the appellant not guilty. A direction that the jury should only convict if they were satisfied beyond reasonable doubt of B's evidence might have obscured this aspect of the defence case.

Ground 2 - appellant's submissions

The appellant submits that accidental, involuntary or unintended conduct is ordinarily dealt with under s 23A and s 23B of the Code. As the offence of indecent dealing is not an offence requiring proof of specific intent, the jury should have been told to first consider whether an act of touching occurred as a matter of fact and then been told to consider whether the defence of unwilled act had been excluded.[52]
[52] WAB 15.
The appellant contends that the formulation provided by the trial judge referred to at [47] and [48] above 'fell short of doing justice to the defence raised by the evidence of the complainant, because the question of whether the act was intentional or deliberate was a question necessarily distinct from whether the act itself was proven, and the answer to each question involved distinct considerations of different types of evidence'.[53]
[53] WAB 15.
The appellant submits that the failure to separate the issue into two questions created a risk that the jury may have reasoned that 'they had to be satisfied that the act was unintentional before they might find a dealing did not occur'. The appellant suggests that this may have involved a reversal of the onus of proof on a critical issue.[54]
[54] WAB 15.

Ground 2 - the merits

There is an air of unreality about this ground and the submissions made in support of it. The suggestion is that the direction to the jury - that they had to be satisfied beyond reasonable doubt that the touching was deliberate and not unintentional - should not have been given. Rather the jury should have been directed to first consider whether the touching occurred and then been told that they had to be satisfied beyond reasonable doubt that the possibility that the touching was not intentional or deliberate had been excluded.
The direction given by the trial judge was expressed in clear and positive terms that were likely to be understood by the jury. It addressed the matters necessary for the jury to decide in order to reach a conclusion as to proof of the first element of the offence. The appellant's formulation recasts the issue into two questions and frames the second in the form of a negative. It is essentially no more than a re‑statement of the direction given by the trial judge, without the virtue of being simple and readily understandable.
The submission that there was reversal of the onus of proof is entirely without merit. The directions made plain that the onus was on the prosecution to prove beyond reasonable doubt that the touching was deliberate and intentional. In summing up the defence case his Honour made it clear that accidental touching had to be excluded before the jury could convict the appellant.

Ground 3 - appellant's submissions

The appellant submits that there was an evidentiary basis for a finding that B had been 'improperly questioned' by K before she was interviewed by police and that her recollection of events may have been 'contaminated' by speaking to her mother about the incident. The evidence of K is described as 'evasive', though it is accepted that 'there was no evidence to which either side could point which proved the issue one way or another due to the lack of recollection of [K]'.[55]
[55] WAB 18.
The appellant submits that there was an inconsistency between what B said in her child witness interview as to what she told K about the offending and what K said in her evidence. This inconsistency is said to support the possibility that B's evidence was contaminated by improper questioning by K. The appellant submits that the danger in relying upon the evidence of a young child, which may have been contaminated, may not have been appreciated by the jury. For these reasons a warning was required and the lack of such a warning gave rise to a miscarriage of justice.[56]
[56] WAB 20 - 21.

Ground 3 - the merits

The combined effect of the evidence of B and K on this issue (set out at [15], [18] and [28] to [33]) established that K asked B if anything had happened with the appellant, B told K that the appellant had tickled her and told her to close her eyes and had then tickled her on her 'privates', K then reported the matter to the police, the police later told K the details of what B had said to them and prior to giving evidence K had discussed with B the difference between telling the truth and telling a lie. This does not provide an evidential basis for a conclusion that B's evidence was contaminated or improperly influenced by K.

The suggested inconsistency between B and K is that B told police that she told her mother something about what had happened but K said that she did not know the details until told by the police. Whether that is an inconsistency depends on what K meant by 'details'. There was certainly more to the events than what B said she had told her mother, for example who was present in the house at the time and that the touching was under the clothing B was wearing. It is not clear that there was any inconsistency. In any event, an inconsistency of the type suggested does not in itself provide an evidentiary basis for an assertion that B's evidence was contaminated.
Any suggestion that B's evidence had been contaminated, improperly influenced or that she had been coached would have been an invitation to speculate. There was certainly no reason to give a specific warning to the jury in that regard and no miscarriage of justice arises by the failure to give such a warning. The direction to the jury that in assessing the evidence of witnesses they could consider, amongst other things, 'the age of the witness at the time of the events and the extent to which the witness has spoken about their evidence with others' was sufficient in the circumstances of this case.
There was no hidden danger that would not have been apparent to the jury that required the giving of a specific direction of the type suggested. There is no merit in this ground of appeal.

Ground 4 - appellant's submissions

The appellant submits that the trial judge misstated the evidence when he told the jury that there was no specific evidence about who reported the incident to the police (see [42]). The appellant relies on the evidence of K that she reported the matter to police on the day the disclosure was made to her by B.[57]
[57] WAB 23.
The appellant contends that the circumstances surrounding the initial disclosure had the capacity to affect the jury's assessment of the credibility of the complainant. For this reason, the factual error is said to raise a perceptible risk of a miscarriage of justice.[58]
[58] WAB 24.

Ground 4 - the merits

When viewed in context, the direction of the trial judge was not intended to convey that there was no evidence as to who reported the matter to the police. The direction was prompted by the jury question. That question included reference to whether the matter came to light in the interview regarding another child. The concern was to ensure that the jury did not speculate as to that issue. The jury would have understood it in that sense and there is no perceptible risk that it would have been understood as a direction to disregard the evidence of K.
In any event, a misdirection as to a matter of fact will not necessarily occasion a miscarriage of justice. In Simic v The Queen[59] the High Court said:
In the case of the facts, the trial judge must tell the jury that the facts are for them, that their verdict must be grounded on the evidence that they have heard, and that although he will review that evidence and make some comments of his own relative thereto they are not bound to accept anything that he may say. The scope for a misstatement of the evidence will often be very wide, and the effect of such misstatement may vary a great deal. It is right and proper therefore that an onus rests upon an appellant to bring himself within s. 568 by showing that the misdirection which occurred in the instant case amounted to a miscarriage of justice. Nevertheless, it is putting that onus too high to require it to be shown that it was reasonably probable, rather than possible, that the misdirection affected the verdict. Of course minor inaccuracies and omissions will not be likely to make it possible that the verdict was affected. Bare and remote possibilities may be disregarded, but if it is considered reasonably possible that the misstatement may have affected the verdict and if the jury might reasonably have acquitted the appellant if the misstatement had not been made, there will have been a miscarriage of justice, and a substantial one. In considering a question of this kind, the appellate court must have regard to the gravity of the misstatement as well as to the strength of the case against the appellant.
[59] Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319, 331 ‑ 332 (Gibbs, Stephen, Mason, Mundy & Wilson JJ).
In this case, even assuming that there was a misstatement, there is no reasonable possibility that it would have caused the jury to overlook what K had said about reporting the matter to the police. Furthermore, the misstatement is not of a character as to raise a reasonable possibility that it could have affected the verdict. The mere fact that K reported the matter to the police could not affect the assessment of B's credibility as a witness. That is so particularly bearing in mind that the trial judge directed the jury concerning the delay in reporting the matter and that whether witnesses may have spoken to others was a matter that could impact on their reliability. K was also cross‑examined on the circumstances of the disclosure and this was referred to by the trial judge in summarising the defence case.

Conclusion

None of the grounds of appeal has a reasonable prospect of success. Leave in respect of each of them should be refused and the appeal dismissed. An extension of time should be refused.
The following orders should be made:
1.Extension of time to appeal refused.
2.Leave to appeal refused.
3.Appeal dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AZ
Associate to the Honourable Justice Hall
25 JANUARY 2023