Anderson v The State of Western Australia

[2014] WASCA 137

ANDERSON -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 137

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASCA 137
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:150/2013	Heard:	20 MAY 2014
Coram:	McLURE P BUSS JA MAZZA JA	Delivered:	31/07/14
No of pages:	19	Judgment Part:	1 of 1
Result:	Extension of time refused Appeal dismissed
Category:	A
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Parties:	SHAWN QUIN ANDERSON THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Conviction Child sexual offences Child pornography Complainant did not give evidence regarding sexual offences Need for Longman direction Prosecution case circumstantial Need for identification or recognition warning Cross-admissibility of evidence Unsafe and unsatisfactory
Legislation:	Acts Amendment (Sexual Assaults) Act 1985 (WA) Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA), s 60(4) Criminal Code (WA), s 320 Evidence Act 1906 (WA), s 36BE
Case References:	AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161 Doggett v The Queen [2001] HCA 46; (2001) 75 ALJR 1290 Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439 Kemp v The State of Western Australia [2006] WASCA 6 Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 McLeod v The State of Western Australia [2009] WASCA 233 R v Henry (1968) 53 Cr App R 150 Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ANDERSON -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 137 CORAM : McLURE P

BUSS JA
MAZZA JA

HEARD : 20 MAY 2014 DELIVERED : 31 JULY 2014 FILE NO/S : CACR 150 of 2013 BETWEEN : SHAWN QUIN ANDERSON

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : STONE DCJ

File No : IND ALB 72 of 2010

Catchwords:

Criminal law - Conviction - Child sexual offences - Child pornography - Complainant did not give evidence regarding sexual offences - Need for Longman direction - Prosecution case circumstantial - Need for identification or recognition warning - Cross-admissibility of evidence - Unsafe and unsatisfactory

Legislation:

Acts Amendment (Sexual Assaults) Act 1985 (WA)

Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA), s 60(4)
Criminal Code (WA), s 320
Evidence Act 1906 (WA), s 36BE

Result:

Extension of time refused

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant : Mr T F Percy QC
Respondent : Ms A L Forrester

Solicitors:

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

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

AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161
Doggett v The Queen [2001] HCA 46; (2001) 75 ALJR 1290
Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439
Kemp v The State of Western Australia [2006] WASCA 6
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
McLeod v The State of Western Australia [2009] WASCA 233
R v Henry (1968) 53 Cr App R 150
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234



1 McLURE P: The appellant applies for an extension of time to appeal against his conviction after trial of six offences.

2 On 24 February 2012, the appellant was convicted of the following offences:

Count	Offence
1.	On a date unknown between 1 January 2009 and 7 December 2009 at Narrogin the appellant sexually penetrated X (the complainant), a child under the age of 13 years, by penetrating her vagina with his finger.
2.	On the same unknown date and at the same place as in count 1 the appellant indecently recorded the complainant by taking a video recording of the offence the subject of count 1 using a silver LG mobile phone.
3.	On 10 February 2010 at Narrogin the appellant had in his possession child pornography in the form of films on a silver LG mobile phone (being the recording of the offence the subject of count 1).
4.	On a date unknown between 31 December 2006 and 20 February 2010 at Narrogin the appellant had in his possession child pornography in the form of photographs.
5.	On the same unknown date and at the same place as in count 4 the appellant had in his possession child pornography in the form of cartoons.
6.	On the same unknown date and at the same place as in count 4 the appellant had in his possession child pornography in the form of written stories.

3 The offences the subject of counts 1 and 2 are contrary to s 320 of the Criminal Code (WA). All of the other offences are contrary to s 60(4) of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA).

4 This appeal was commenced on 18 July 2013, some 16 months out of time. The very lengthy delay is not adequately explained. This court will not grant an extension of time unless satisfied that a miscarriage of justice has occurred. To demonstrate a miscarriage of justice, it may be necessary to do more than simply point to a ground of appeal that would have succeeded in a regularly instituted appeal: McLeod v The State of Western Australia [2009] WASCA 233 [79].

5 The appellant relies on four grounds of appeal. He claims that:

1. the trial judge erred by failing to give the jury an adequate Longman direction;

2. the trial judge erred by failing to direct the jury adequately as to the dangers of identification inherent in the case;

3. the trial judge erred in failing to warn the jury of the use to which they could put the facts the subject of counts 1 and 2 in their consideration of counts 3, 4, 5 and 6;

4. the verdicts of guilty on counts 1 and 2 are unsafe, unsatisfactory and not supported by the evidence.

Leave to appeal was granted on ground 4. The application for leave on the other grounds was referred to the hearing of the appeal. At the hearing of the appeal it became clear that ground 4 is dependent on establishing the error the subject of ground 2.

The evidence at trial

6 The prosecution case was as follows. On 10 February 2010 police conducted a search of a house in Narrogin occupied by the appellant, his de facto partner, S, and their two young children. Police, who had a search warrant, were investigating an unrelated matter. One of the items seized by police was a silver coloured LG brand 3-network mobile telephone (the Phone) which was located on top of a TV cabinet in the lounge room of the appellant's house.

7 After the search, police examined the Phone and found five video files which showed a sexual offence being carried out at night on a young girl who appeared to be asleep at the time. The film footage is grainy. The first of the video files shows a darkened room and the face of a young girl. She is covered by a distinctive looking multi-coloured blanket or doona. The footage then centres on the groin area of the young girl. The left-hand of an adult caucasian male then comes into view and adjusts or rearranges the young girl's underwear to expose her genitals. He then digitally penetrates the young girl's vagina. The young girl continues to sleep on what appears to be a blue couch or recliner. That is the first video file. The remaining four video files are similar in content. The fifth video file had been manually saved into a user-created file named '3mobile camra data files' (emphasis added). The evidence was that the recording and file creation took around 48 minutes.

8 On 18 February 2010, police conducted a second search of the appellant's house pursuant to a search warrant. A laptop computer was seized from the house. This was the appellant's computer. The following day an identical laptop computer was seized from a shop where it was undergoing repairs. This was S's computer. Police also seized from the house a multi-coloured 'Hot Wheels' blanket or doona found in the laundry. That doona was very similar to that seen in the video footage of the sexual assault on the young girl.

9 During the second search, the appellant said in response to questions from police that he may have used the two laptop computers to look up pornography and that he may have stumbled across some suspect sites that involved children. He said he would report suspect sites to internet regulatory agencies and that he never downloaded child pornography.

10 Police conducted a full computer analysis of the two laptop computers. The appellant's laptop contained hundreds of images of child pornography in photographs and cartoons, known as 'anime'. A small number of child pornography images were also found on S's laptop. The child pornography photographs and cartoons on the laptop computers were the subject of counts 4 and 5 respectively.

11 Four stories containing child pornography were also found on the appellant's laptop computer (count 6). The stories were obviously written by an amateur and some of the events took place in locations within Western Australia with which the appellant had a connection. One of the stories entitled 'Harsh Reality' features a description of a sexual assault on a sleeping female child which is very similar to the footage on the Phone. There are many spelling errors in the stories including the word 'camra' for 'camera' appearing five times in 'Harsh Reality'.

12 At all material times the complainant and her mother lived in the same street in Narrogin as the appellant and S. The complainant's mother was a friend of S.

13 On 17 March 2010 the appellant participated in a video record of interview with police. The appellant was shown the footage on the Phone seized from the top of the TV cabinet in the lounge room of the appellant's house during the first police search.

14 The appellant said that he and his partner had purchased two identical LG mobile phones in around 2006 in Perth. They were advised by a salesman that they would get reception for those mobile phones in the Narrogin area. That turned out to be incorrect. The only data on the Phone was the video files the subject of counts 2 and 3.

15 During and after viewing the video files on the Phone, the appellant made a number of admissions. They were first, that the child in the footage looked very much like the complainant. Second, that the blanket or doona seen in the footage looked very similar to the 'Hot Wheels' doona that police had taken from his house on 18 February 2010. Third, that the complainant appeared to be in the lounge room of his house. Fourth, that the complainant was either lying on his blue couch/sofa or one of the recliner chairs. Finally, that the male person's hands seen in the footage looked very similar to that of his own. However, the appellant strongly denied any involvement in the sexual offences. He said he had some scarring on his left hand which would show up if it had been him, that the scarring occurred in 2005 but that it had recently been infected as a result of getting nicked at work. Whilst admitting the Phone was his, the appellant said he had no prior knowledge of the footage on the Phone or how it might have got there.

16 The appellant said that the complainant had slept over at his house on different occasions in the past and that he and his partner were visited by drug dealers and drug users at all hours of the day and night. He said he could only presume that one of these people had slipped into the main part of the house undetected, taken the footage and left the Phone there.

17 At the time of the police interview, the analysis of the laptop computers had not been completed. The appellant was questioned about whether police were going to find any other child pornography on the two laptops. The appellant said he considered it his personal mission to chase down rogue sites on the internet that contained child pornography and to inform regulatory agencies.

18 As a result of a number of formal admissions made by the appellant at his trial (ts 721) the only live issues at trial for counts 1 and 2 were the identity of the young girl the subject of the video files on the appellant's Phone and the identity of the offender who committed the offences with which he was charged.

19 The complainant was born on 18 September 2000 and was aged 11 at the time of trial. She had made no disclosures or complaint of having been sexually assaulted prior to trial and did not give evidence at trial of having been sexually assaulted.

20 The complainant gave evidence that there was one occasion when she slept over at the appellant's house when she was 8 going on 9. She could not remember any other occasion when she had done so. On the only occasion she recalled, her evidence was as follows. She played games in the lounge room with the appellant. The only people present were the appellant, S, their two children and herself. No-one came to visit while she was there. She went to sleep on a blue couch in the lounge room and was covered by a blanket. She wore pyjamas. She awoke in the morning and walked home. She thought the person in the still images of the video files on the Phone looked similar to herself because of the similar facial features.

21 HS, a person who lodged at the complainant's house and who was a friend of the appellant, gave evidence that he would visit the appellant's home twice or three times every week to smoke cannabis with the appellant and S. He said there was only one occasion when the complainant stayed over at the appellant's home and that was between December 2008 and January/February 2009. He had gone to the house with the complainant and the complainant's older sister, T. The appellant, S and their two children were there. There were no other visitors that night. The complainant fell asleep on a royal blue two-seater sofa in the lounge room while watching TV. S put a child's doona over the complainant. HS and T left between 10.00 pm and 11.00 pm, leaving the complainant at the appellant's house.

22 The complainant's mother gave evidence that the complainant had stayed over at the appellant's house once. The following morning she sent one of her daughters to collect the complainant from the appellant's house. When shown still images of the video files, she said she recognised the complainant because of her prominent teeth and her sleeping position. Further, she recognised the doona in the photographs as the one the appellant and S had on their couch and the pyjamas worn by the young girl as being the pyjamas she had purchased for the complainant. At the relevant time, the complainant's mother was a heavy user of cannabis. She sold cannabis to the appellant and S but had never received laptops or mobile phones or any other items as collateral for the drugs. She also had convictions for dishonesty, assault and cannabis.

23 N (another sister) gave evidence that she regularly went to the appellant's home for drinks and cannabis. She saw the complainant at the appellant's home on no more than about three occasions. On one occasion she saw the complainant playing a video game inside the appellant's house. She was there with HS, the appellant and S. No other adults were present. She and HS walked home because they had been drinking. The complainant did not accompany them home.

24 The appellant's older half-brother gave evidence of the various locations where the appellant's family had resided in Western Australia and Victoria. The appellant attended high schools in Wanneroo and Yanchep. The story on the appellant's laptop computer about a sexual assault upon a sleeping child contained references to the Yanchep Boating Club and eight named females, including KL. KL gave evidence that she and the appellant were in the same class at Yanchep District High School and that five of the other girls referred to in the story were also students at the school and one was a teacher. There were other stories referring to people known to or connected with the appellant.

25 S gave evidence that she and the appellant purchased two LG mobile phones and that they did not work. She confirmed they had also purchased two laptop computers and identified which was the appellant's and which was hers. S said the mobile phones were left in the lounge room, were not charged, and were used as collateral for drugs. She said the two laptop computers were also used as collateral for drugs. Her evidence was that she did not look up or download child pornography.

26 S said that the complainant had stayed the night only once some time in 2009. She arranged the sleep over with the complainant's mother. When S came home from work at around 9.00 pm, the appellant, their two children, the complainant and possibly N were present. She gave the 'Hot Wheels' doona to the complainant. When she went to bed at 11.00 pm the complainant was in the lounge room on a blue recliner chair with the 'Hot Wheels' doona, playing a video game (GameCube). The appellant was on the other recliner chair or couch and N had gone. There were no other adult visitors and no unusual incidents. In the morning she took the complainant home.

27 S also gave evidence that she had burnt the appellant's left hand with a cigarette lighter in 2005, resulting in a scar around the left thumb webbing. The appellant told her he was looking at child pornography and reporting it to ASACP (Association of Sites Advocating Child Protection).

28 The appellant did not give evidence at his trial. The defence case was that:

1. he was not the person who committed and recorded the sexual penetration of the young girl because, unlike the offender in the film, he had a scar on his left hand;

2. there were large numbers of regular visitors to his house who had the opportunity to commit the offences the subject of counts 1 - 2; and

3. drug-using and drug-dealing associates who regularly visited his house could have used the Phone and laptop computers at the house or when they were taken as collateral for drugs.

Ground 1 - Longman

29 The question of a Longman type direction was first raised by the trial judge who advised counsel of the terms of the proposed direction. Both the prosecutor and defence counsel, an experienced criminal trial lawyer, agreed with its content. Defence counsel was given the opportunity to identify any further areas of forensic disadvantage to the appellant arising from the delay following the commission of the offences. He could add nothing to what had been identified by the trial judge (ts 677).

30 The trial judge directed the jury as follows:

Members of the jury, you should take carefully into account that the events the subject matter of counts 4, 5 and 6 on the indictment are alleged to have happened between five and two years ago. There is a lack of precision as to the dates on which these offences are alleged to have occurred; there is also a lack of precision as to the date on which the offences the subject matter of counts 1 and 2 on the indictment are alleged to have occurred.

The charges are allegations of serious sexual crimes and no complaint was made to police at the time of the alleged offences. By reason of that long delay the evidence concerning the two laptop computers cannot be adequately tested. There was no police investigation at the time; there was no examination of the two laptop computers around the time of the alleged offences.

By reason of the delay and the lack of precision as to the dates on which the offences the subject matter of counts 4, 5 and 6 are alleged to have occurred [the appellant] has lost the opportunity to bring forward matters of defence and to test the evidence concerning the two laptop computers. Because of the delay and the lack of precision as to the dates on which these offences are alleged to have occurred it is difficult for [the appellant] to present evidence of what he was doing on the particular occasion.

The same considerations, members of the jury, the same considerations apply to the evidence of the alleged offences concerning [the complainant] because of the late - because of the lack of precision as to the date on which the offences are alleged to have occurred. There was no medical examination of [the complainant] at the relevant time, no police investigation at the time, no forensic evidence. The clothing worn by [the complainant] at the time was not seized by police. There was no examination of the mobile phone around the time of the alleged offences.

The direction which I am about to give you is based on the experience of courts of the difficulty that accused people have in cases such as this. Because of the long delay and the lack of precision as to when the alleged offences occurred and the lack of a police investigation at the relevant time it is particularly important that you scrutinise all of the State's evidence against [the appellant] with special care (ts 735 - 736).

31 As to counts 1 - 3, the appellant says the trial judge should have directed the jury that:

(a) the opportunity to call alibi evidence had effectively been lost;

(b) it was difficult to ascertain which people might have been at the appellant's house at the time of the offence and any potential witnesses who were present could therefore not be called; and

(c) due to the effluxion of time and uncertainty of date the appellant could not identify and call the persons who had been in possession of the Phone as collateral for drugs.

32 In relation to counts 4 - 6, it is said the appellant was unable to identify and call the persons to whom the laptop computers had been given as collateral for drugs.

33 In relation to all counts, it is said the trial judge erred in failing to tell the jury that it was 'dangerous to convict' the appellant and that the direction given had the tone of a comment rather than a warning.

34 At the hearing of the appeal, the respondent contended that a Longman warning was not required in the circumstances of this case.

35 It can be difficult to say with conviction what Longman v The Queen (1989) 168 CLR 79 requires of a trial judge directing a jury in a particular case. That is so notwithstanding the benefit of the explanations and clarification in Jones v The Queen (1997) 191 CLR 439, Crampton v The Queen (2000) 206 CLR 161, Doggett v The Queen (2001) 75 ALJR 1290, Dyers v The Queen (2002) 210 CLR 285 and Tully v The Queen (2006) 230 CLR 234.

36 However, I am satisfied that Longman only applies to sexual offences in which the evidence of the complainant as to the fact and circumstances of the offence is a significant part of the prosecution case. That is consistent with the legal history of the relevant rules and the reasoning in Longman.

37 Up to the commencement of the Acts Amendment (Sexual Assaults) Act 1985 (WA), which inserted the former s 36BE into the Evidence Act 1906 (WA), there was a rule of practice that the trial judge was required to warn the jury that it was dangerous to convict on the uncorroborated evidence of the victim of a sexual offence. Victims of sexual offences, like accomplices and children, were 'suspect' witnesses. The rationale for this treatment of victims was that 'human experience has shown that … girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute': R v Henry (1968) 53 Cr App R 150, 153. Although in Australia the rule was articulated in gender neutral terms, in practice it mostly affected females.

38 Longman held that the effect of s 36BE was to abolish the rule that victims of sexual offences were in the special category of suspect witnesses. However, the High Court held that a warning may still be required because of circumstances 'other than, albeit in conjunction with, the sexual character of the issues which the alleged victim's evidence is tendered to prove' (Brennan, Dawson & Toohey JJ, (87)). Thus the need for a warning remains tied to the reliability of the victim's evidence as to the sexual offence.

39 For the plurality, the other circumstance that enlivened the requirement for a warning was the significant delay (over 20 years) in the accusations coming to the defendant's notice, which meant the victim's evidence could not be adequately tested (p 91). The Longman warning formulated by the plurality (which bears a close similarity to the sexual offence corroboration warning) was that:

[A]s the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy (91).

40 That is, the delay caused forensic disadvantages to a defendant are linked with his inability to adequately test the evidence of the complainant relating to the commission of the sexual offence(s).

41 As substantial delay in complaining is frequently a factor in child sexual abuse cases, Longman warnings are routinely given. No doubt out of an abundance of caution, Longman type warnings are now being given after relatively short delays, as in this case. Trial judges have been permitted to soften the warning by omitting any reference to it being 'dangerous to convict': Kemp v The State of Western Australia [2006] WASCA 6 [9]. However, given the now proven magnitude of past sexual offending against children and the scepticism which allowed it to flourish, the time may have arrived to reassess the rationale for or terms of the warnings given in child sexual abuse trials.

42 That the credibility of the evidence of the complainant on sexual issues is at the essential heart of the requirement for a Longman warning is also apparent from the judgments of Deane J (at 96) and McHugh J (at 106).

43 A Longman warning was not required in this case for the following reasons. As to counts 1 and 2, the complainant did not give evidence at trial that she had been the victim of any sexual assault or other sexual offence. She did not know or complain of any sexual offence against her. It is nonsensical to direct a jury on the absence of complaint by a victim who has no knowledge of the commission of the offences. Recent complaint of a sexual offence (or the lack of or delay in making a complaint) is only relevant to a complainant's credibility. The credibility (honesty and reliability) of the complainant in this case was not in issue. The circumstantial and other evidence at trial established beyond reasonable doubt that an adult male had sexually penetrated the sleeping complainant in the appellant's lounge room and that the offence was recorded on a mobile phone owned by the appellant that was in his custody and control when it was seized by police. Further and in any event, the relevant delay, which is between the commission of the offences and when the appellant was put on notice of the allegations, was not substantial.

44 As to the offences the subject of counts 3, 4, 5 and 6, a Longman warning was not required because the offences were unrelated in any relevant way to the complainant or her evidence on sexual matters. Further, there was also no relevant delay, the element of possession being continuous.

45 There is nothing to distinguish the facts of this case from the prosecution of any non-sexual offence in which there is a delay in a defendant becoming aware that he is a suspect. The usual rules apply. A trial judge must give a warning to the jury about the impact of delay only if a warning is necessary to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case. There was no forensic disadvantage to the appellant arising out of the delay which would have been palpable or obvious to the trial judge but not apparent to the jury. No warning was required.

46 In any event, there is no substance in the appellant's claims that the trial judge's direction was by way of comment rather than a warning or that it was deficient in any material respect. The appellant was positively advantaged by the direction given by the trial judge. There is no merit in ground 1 and leave to appeal should be refused.

Ground 2 - identification

47 The appellant contends the trial judge erred in failing to direct the jury that they had to be satisfied beyond reasonable doubt that the hand shown in the recording of the sexual assault belonged to the appellant before convicting him on counts 1 and 2 because that was an indispensable link in the chain of reasoning rather than a strand in the cable, as those terms are explained in Shepherd v The Queen (1990) 170 CLR 573, 579 and HML v The Queen (2008) 235 CLR 334 [32]. This claim is without merit.

48 As is abundantly clear from the prosecution case and the trial judge's summing up, it was not part of the prosecution case that the appellant could be positively identified or recognised from the video footage on the Phone. Moreover, the prosecution did not invite the jury to reject the appellant's scar defence on the ground that the hand in the video footage may have scarring. The footage was grainy, of low resolution and there was a lot of camera movement. The State's clear position was that whether or not the appellant had the scar on his left hand at the time of the offences made no difference to its case because of the poor quality of the video footage. That is, the jury could not rely on the video footage to positively identify or exclude the appellant as the offender. The force of that proposition was acknowledged by the appellant in his police interview (ts 18, 35). Contrary to the suggestion made at the hearing of the appeal, there was no risk that the jury would go on a frolic of its own and use the video footage to positively identify the appellant as the offender from the scarring on his hand.

49 The case against the appellant was circumstantial and the hand in the video was part of the circumstances. It was not an indispensable link in the chain of reasoning towards guilt and the prosecution did not have to prove beyond reasonable doubt that the hand in the video belonged to the appellant. No identification or recognition warning was required in this situation: Festa v The Queen (2001) 208 CLR 593 [56] - [57]. Circumstantial evidence of identification can be more reliable and compelling than direct evidence: AK v The State of Western Australia (2008) 232 CLR 438 [27].

50 The appellant also contends that the trial judge should have directed the jury that (1) the complainant did not purport to identify the offender; (2) the video recording did not show the face of the offender; (3) there was uncontradicted evidence that the appellant had a scar on his hand as a result of being burned in 2005 which predated the offending; (4) the hand shown on the video recording could belong to anyone; and (5) the jury could not be satisfied beyond reasonable doubt that the hand of the offender depicted in the video was 'unscarred' (sic).

51 Point 5 is misconceived for the reasons already discussed. Points 1, 2 and 4 are patently clear from the summing up. As to point 3 the trial judge referred to the defence case that because of the scar above the left thumb webbing the appellant could not be the perpetrator because the left hand of the person filmed interfering with the child was not scarred (ts 725, 731). Nothing further was required. Ground 2 does not have a reasonable prospect of success. Leave to appeal is refused.

Ground 3 - cross-admissibility

52 Prior to directing the jury, the trial judge raised with counsel his proposed directions regarding counts 4, 5 and 6. He proposed to direct the jury that, if they were satisfied beyond reasonable doubt that the appellant possessed the child pornography materials the subject of those counts and that he had an interest in child pornography as well as a sexual interest in young girls, they could use that evidence to assist them in their consideration of counts 1, 2 and 3 (ts 662 - 664).

53 Defence counsel opposed that course (ts 664 - 672). The trial judge ruled, correctly, that the evidence in relation to counts 4, 5 and 6 was both evidence of propensity and circumstantial evidence (ts 666, 671) and directed the jury in the following terms:

The State also submits the alleged child pornography on the two laptop computers, and in particular the four stories, shows that [the appellant] had an interest in child pornography. He had a sexual interest in young girls in particular, and that he was likely to have had an indecent or sexual interest in [the complainant] from which you could conclude that it was likely he was the person who sexually penetrated her vagina with his finger and filmed himself doing so with the mobile telephone.

Of course you could only use the evidence of the alleged child pornography on the two laptop computers in this way if you are satisfied beyond reasonable doubt that [the appellant] had possession of the alleged child pornography on one or both of the laptop computers as I've explained the term possession to mean, and if you are satisfied beyond reasonable doubt that he had an interest in child pornography and a sexual interest in young girls.

If you do find [the appellant] had possession of the alleged child pornography on one or both of the laptop computers and an interest in child pornography and a sexual interest in young girls, you can consider the evidence along with all the other evidence to decide whether the State has proved the charges in counts 1, 2 and 3 on the indictment beyond reasonable doubt.

…

In so far as the State relies on [the appellant's] possession of the alleged child pornography on one or both of the laptop computers to show that he had an interest in child pornography and a sexual interest in young girls in particular, I need to direct you that you cannot conclude that [the appellant] had such interest unless you are satisfied beyond reasonable doubt of the existence of that interest.

Also, I need to direct you that you cannot use the evidence of [the appellant's] possession of the alleged child pornography on one or both of the laptop computers in substitution for evidence of the alleged sexual penetration, indecent recording and possession of the indecent recording as charged in counts 1, 2 and 3 on the indictment. It can't make up a gap in that evidence.

You should not reason simply because you find [the appellant] had possession of the alleged child pornography on one or both of the laptop computers and he had an interest in child pornography and a sexual interest in young girls that therefore, he committed the offences of sexual penetration, indecent recording and possession of the indecent recording with which he's been charged in counts 1, 2 and 3 on the indictment.

You could not convict [the appellant] of a charge alleged in the indictment unless the State has satisfied you beyond reasonable doubt that he had committed the specific acts alleged against him in the charge. If you are satisfied beyond reasonable doubt that: (1) [the appellant] had possession of the child pornography on one [or] both laptop computers; and (2) he had an interest in child pornography; and (3) he had a sexual interest in young girls it is open to you to conclude that; (4) he had an indecent or sexual interest in [the complainant] and that increases the likelihood that [the appellant] had committed the sexual penetration, indecent recording and possession of the indecent recording alleged in counts 1, 2 and 3 in the indictment (ts 733 - 734).

54 The directions given to a jury must reflect the live issues at trial and the way in which the cases are conducted. The trial judge's direction reflected the way the State ran its case. The prosecutor in his closing address advised the jury to deal with the counts in reverse order, starting with count 6. There is no perceptible risk of the jury determining their position on counts 1, 2 and the very closely connected count 3 and then relying on any of those counts as propensity or alternatively circumstantial evidence in their consideration of counts 4, 5 and 6. Defence counsel did not see any such risk.

55 In any event, the evidence in relation to all counts is clearly cross-admissible and, having regard to the trial judge's directions, there was no perceptible risk that the jury would reason that just because the appellant was guilty of counts 1, 2 or 3 he was therefore guilty of counts 4, 5 and 6. Ground 3 does not have a reasonable prospect of succeeding. Leave to appeal should be refused.

Ground 4 - unsafe and unsatisfactory

56 At the hearing of the appeal, senior counsel for the appellant quite properly conceded that if ground 2 was unsuccessful, this ground must also fail (ts 34). However, I will deal with it for the sake of completeness.

57 In his written submissions the appellant contends it was not open to the jury on the whole of the evidence to convict him of the offences the subject of counts 1 and 2. The relevant test remains that identified in the majority judgment in M v The Queen (1994) 181 CLR 487. The question which this court must ask itself is whether it 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. In answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. However, 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 this court 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 set aside a verdict based on that evidence (493 - 494).

58 This is an unusual case of its kind. True it is, the complainant made no complaint or allegation of sexual assault to anyone, including police, and did not give evidence at trial that she had been the victim of a sexual assault. Further, in her evidence at trial she was not able to positively identify herself as the girl in the still images taken from the recording the subject of count 2 and was not able to positively identify where and when the images were taken.

59 On the other hand, the evidence at trial overwhelmingly established that a young girl was digitally penetrated in the lounge room of the appellant's house and that the offence was contemporaneously recorded on the appellant's mobile phone which was in his custody and control when it was seized by police from his house in February 2010. The location of the assault is supported by the evidence of the complainant's mother, the appellant's friend, HS, the appellant's de facto partner, S, and the second, third and fourth admissions made by the appellant in his interview with police. The absence of any DNA or forensic testing of the 'Hot Wheels' doona or the Phone or the fact that the pyjamas worn by the complainant when she stayed at the appellant's house were destroyed in a house fire on 3 February 2010 does not alter the assessment as to the weight of the evidence.

60 For counts 1 and 2, the only live issues at trial were the identity of the victim and the identity of the offender. As to the identity of the victim, it was not in dispute that the complainant had slept over in the lounge room of the appellant's house where the video footage was taken. The complainant's mother positively identified the young girl in the video footage as the complainant. This identification was based upon the mother's recognition of the complainant's features, of the pyjamas worn by the young girl as the pyjamas she had purchased for the complainant and the manner in which the young girl slept. Further, in his record of interview with police the appellant twice suggested that the child in the film footage was the complainant (ts 15 - 16). The appellant said, 'it looks very, very, very similar to [the complainant] and I wouldn't doubt that it would be her' (ts 18).

61 The date the video footage was taken could not be identified from the Phone. The appellant's defence was that the uncertainty of the date, the fact that the Phone was accessible to other persons who visited the house and the fact that he had frequent visitors to the house, including drug users and dealers, meant the offences the subject of counts 1 and 2 could have been committed by someone else.

62 However, the strong weight of the evidence including that of the complainant, her mother, HS and S is that the complainant only ever slept at the appellant's house on one occasion. The evidence of HS, N and S was that on that occasion, after the visitors left, the appellant was the only male adult present in the house. The appellant's partner gave evidence that when she went to bed the appellant was in the lounge room with the complainant. In his interview with police the appellant admitted that the offender shown on the film footage was clearly a male and agreed the hand looked 'pretty similar' to his (ts 17).

63 Further, the guilty verdicts on counts 3, 4, 5 and 6 are strongly probative of the appellant's guilt on counts 1 and 2. The description of the sexual assault on the sleeping female child in the 'Harsh Reality' story on the appellant's laptop computer is particularly damning evidence.

64 It is apparent from the verdicts that the jury positively rejected all of the appellant's out of court statements that were directly or indirectly exculpatory. Based on my review of the evidence, that course was clearly open.

65 I am satisfied on the whole of the evidence that the only reasonable inference is that the appellant committed the offences the subject of counts 1 and 2. Accordingly, there is no significant possibility that an innocent person has been convicted of counts 1 and 2.

Conclusion

66 Leave to appeal on grounds 1, 2 and 3 should be refused. An extension of time within which to appeal should also be refused and the appeal dismissed.

67 BUSS JA: I agree with McLure P.

68 MAZZA JA: I agree with McLure P.