ChJ v Taylor - [2019] WASC 435

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   CHJ -v- TAYLOR [2019] WASC 435
CORAM:   CORBOY J
HEARD:   16 AUGUST 2019 & 1 OCTOBER 2019
DELIVERED          :   1 OCTOBER 2019
PUBLISHED           :   27 NOVEMBER 2019
FILE NO/S:   SJA 1121 of 2018
BETWEEN:   CHJ
Appellant
AND
BENJAMIN ROBERT TAYLOR
Respondent

ON APPEAL FROM:
For File No:   SJA 1121 of 2018
Jurisdiction              :   CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S DE MAIO
File Number             :   CCKA 535 of 2017

Catchwords:

Criminal law - Single judge appeal - Requirements of Criminal Procedure Act 2004, s 120(2) - Whether magistrate delivered adequate reasons to explain finding of guilt - Turns on its own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 14(1)
Criminal Procedure Act 2004 (WA), s 120(2)

Result:

The appellant be granted leave to appeal on each ground of the appeal

The appeal be allowed on each ground

The appellant's conviction and sentence be set aside and the charge be remitted to the Children's Court to be retried

Category: B

Representation:

Counsel:

Appellant	:	Ms C McKenzie (16 August 2019); Mr W Reid (1 October 2019)
Respondent	:	Ms G Beggs (16 August 2019); Ms K Cook (1 October 2019)

Solicitors:

Appellant	:	McKenzie & McKenzie
Respondent	:	Director of Public Prosecutions (WA)

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

HS v Lawford [2018] WASC 257
Johnson v The State of Western Australia [2008] WASCA 164
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
R v Anderson [2001] NSWCCA 488; [2001] 127 ACR 116
RMD v The State of Western Australia [2017] WASCA 70
WS v Gardin [2015] WASC 97

CORBOY J:

(These reasons were delivered orally on 1 October 2019 and have been edited for publication.)

The appeals

The appellant was charged that between 15 December 2016 and 23 April 2017, at South Kalgoorlie, he indecently dealt with AB, a child under the age of 13 years, contrary to s 320(4) of the Criminal Code (WA) (the First Charge).
The appellant is a juvenile.[1] He was convicted following trial and sentenced to an intensive youth supervision order for a period of 6 months (the First IYSO). He appealed from his conviction and sentence on the First Charge (SJA 1121 of 2018; the First Appeal).
[1] The names of the appellant, the complainant and family members have been anonymised on account of the age of the appellant and the complainant.
The appellant was also charged that on 15 October 2017, at South Kalgoorlie, he indecently dealt with CD, a child under the age of 13 years, contrary to s 320(4) of the Criminal Code (the Second Charge). He was convicted following trial. The charge was tried before a different magistrate to the magistrate who heard the First Charge. The appellant was sentenced to an intensive youth supervision order for a period of 5 months and 2 days (the Second IYSO). The intensive youth supervision order was ordered to be served concurrently with the First IYSO.
The appellant appealed from his conviction and sentence on the Second Charge (SJA 1131 of 2018; the Second Appeal).
The First and Second Appeals were heard together. However, these reasons only concern the First Appeal. On that appeal, I have concluded, for the reasons that follow, that:
(1)the appellant should be granted leave to appeal on each ground of the appeal;
(2)the appeal should be allowed on each ground; and
(3)the appellant's conviction and sentence for the First Charge should be set aside and the charge remitted to the Children's Court to be retried.

The prosecution case on the First Charge

The facts alleged by the prosecutor in his opening were that:
(1)at the time of the alleged offence, AB was aged 8 years and the appellant was aged 15 years;
(2) at times between 15 December 2016 and 23 April 2017, AB resided with his father, Mr N, and his stepmother, Ms N, at a house in South Kalgoorlie. Ms N was the appellant's sister;
(3)Mr N has three children: CD, the younger sister of AB – a complaint by her was the subject of the Second Charge; EF, the younger brother of AB; and GH. Ms N was pregnant with GH at the time of the charge;
(4)on a day in the period particularised in the prosecution notice, the appellant visited Ms N and played a game with AB. AB described the game in his evidence. He referred to the game as 'monsters';
(5)when playing the game, the appellant asked AB whether he had ever put his hands down his pants. AB replied that he had not. The appellant then put his hand down AB's pants and touched AB's penis. AB asked the appellant to stop and the appellant withdrew his hand. AB then told his father what had occurred.

The appellant's case

The appellant gave evidence in which he stated he had visited Mr and Ms N on 2 July 2017. The purpose of the visit was to assist them to move into a new house. In the course of the visit, the appellant met AB, CD and EF for the first time. He did not play any games with AB or the other children.
The appellant stated that a few days later, he and his mother, Ms P, again visited Mr and Ms N. They brought some clothes and games for the children. The appellant assisted the children in playing the games.
The appellant denied playing any game of the kind described by AB during either visit and further denied that the incident alleged by AB had occurred.

A brief summary of the evidence

A recorded interview was conducted by a police officer with AB on 25 October 2017. The recording was admitted as AB's evidence-in-chief, pursuant to s 106HB of the Evidence Act1906 (WA). The prosecution also called Mr N. The appellant and Ms P gave evidence.
AB stated in his recorded interview that he had been playing a game of 'monsters' with the appellant. Although CD and EF initially participated in the game, they left the room, leaving AB alone with the appellant. They stopped playing the game and the appellant asked AB a question:
And he told me, um, that you put your hands down your pants cos he does it. I said 'No' and then he said 'Do you want to feel it?' And I said 'No'. And then he stuck his hands down my pants.[2]
[2] 25 October 2017, ts 4.
AB was asked several times what then happened and he replied that he had told his father what had occurred. He also stated the appellant had taken his hand out of AB's pants after AB had said 'no'. It was apparent AB was reluctant to answer questions in the recorded interview about what, if anything, occurred after the appellant allegedly placed his hands down AB's pants. Eventually, AB stated the appellant 'started wiggling my rude part'.[3] AB later confirmed the reference to his 'rude part' was to his penis.[4]
[3] 25 October 2017, ts 10.
[4] 25 October 2017, ts 13.
Although AB was uncertain about some matters of detail put to him in cross-examination, he did not resile from his evidence that the appellant had touched him in the manner described in the recorded interview and while they were playing a game of 'monsters'.
Mr N stated in his evidence that he and Ms N had moved house during either the Easter or April school holidays. AB was residing with him at the time. The appellant had not assisted in the move, but had visited three or four days later. According to Mr N, AB came out of his bedroom during the visit and told him that the appellant had tried to put his hand down AB's pants. Mr N spoke to the appellant, and Ms N took the appellant home. After the appellant had left, Mr N again asked AB what had happened and AB said he had lied because he did not want the appellant in his bedroom.[5]
[5] 28 June 2018, ts 42.
Mr N was cross-examined about whether there had been occasions when AB had been caught lying. He stated AB did not lie, but did make up stories. In re-examination, Mr N explained AB would make up stories about what he and his friends had done in school or fights in which he claimed to have been involved. However, his teachers had advised that the events described by AB had not occurred.
An issue arose in re-examination concerning a discussion between Mr N and AB about the alleged offence. Mr N agreed in cross-examination that he had spoken about the incident with AB in October 2017. However, he was not asked about the detail of the discussion. In re-examination, Mr N was asked what had been said by AB. An objection was taken that the question did not arise out of cross- examination. The prosecutor submitted the question arose out of the cross-examination of Mr N about whether AB was known to tell lies.
The magistrate permitted the question, and Mr N stated that AB had said in the October 2017 discussion that the appellant put his hands down AB's pants to show him how to masturbate. AB also said he had previously told Mr N he had lied about what had occurred because he thought he was in trouble.[6]
[6] 28 June 2018, ts 67, 70.
At the completion of the evidence, the magistrate raised with counsel the use that might be made of Mr N's evidence concerning his conversation with AB in October 2017. The prosecutor indicated he did not rely on the discussion as evidence of recent complaint, but only as a matter going to the credit of AB. Accordingly, the magistrate directed that counsel need only make submissions on the weight to be given to the evidence.
There were several differences between the evidence of the appellant and that given by AB and Mr N. First, as mentioned, the appellant's evidence was he had visited Mr and Ms N to assist with a move into their new house. He described in some detail how he assisted, including by setting up an Xbox in what he described as the 'kid's room'.[7] Mr N stated the appellant did not assist in the move, but visited a few days later. However, Mr N conceded in cross-examination that the appellant's first visit may have occurred during the day on which he and Ms N moved into their new house.[8] AB's evidence was to the effect he first met the appellant at the 'new house' during the move.[9]
[7] 29 June 2018, ts 88.
[8] 28 June 2018, ts 58.
[9] 28 June 2018, ts 33.
Second, Mr N stated Ms N drove the appellant home after the alleged incident. The appellant stated his mother collected him.[10] AB stated the appellant had visited with his parents on the occasion when the offence allegedly occurred.[11] Mr N stated the appellant and his parents had inspected the new house before he and Ms N moved, but the appellant had visited by himself on the occasion of the alleged offence.[12]
[10] 29 June 2018, ts 90.
[11] 28 June 2018, ts 20.
[12] 28 June 2018, 39 – 41.
Third, the appellant stated he had not played a game of 'monsters' with AB, and did not know the game.
Fourth, the appellant stated he had visited Mr and Ms N on two occasions. He had been accompanied by his mother on the second occasion. They had purchased some clothes and board games as gifts. Mr N and AB stated the alleged offence occurred during the appellant's first visit. However, there were differences between the appellant's evidence and that given by Mr N about the circumstances of each visit. Ms P gave evidence she exchanged text messages with Ms N about the move into the new house. An arrangement was made for the appellant to assist with the move. According to the text messages, the arrangement was for 2 July 2017.[13] That date was later than the date given by Mr N in his evidence.
[13] 29 June 2018, ts 111.
Fifth, Ms P also stated she had collected the appellant from the new house of Mr and Ms N on the evening of 2 July 2017. The appellant explained to Ms P what he had done to assist with the move. She conversed with Mr and Ms N, but no mention was made of any inappropriate behaviour by the appellant.[14]
[14] 29 June 2018, ts 113.
There was another conflict in the evidence that might be thought to be significant. Contrary to Mr N's evidence, AB denied he had said to his father he had lied about AB touching him.[15]
[15] 28 June 2018, ts 22.

The grounds of appeal – conviction

The appellant appeals from his conviction on the First Charge on two grounds:
(1)the magistrate erred in law when her Honour delivered reasons that were 'so inadequate and/or devoid of analysis that they did not reveal the intellectual process the court followed to find the appellant guilty';
(2)the magistrate did not comply with the requirements of s 120(2) of the Criminal Procedure Act 2004 (WA) (CPA).
Section 120(2) of the CPA provides that 'the judgment of the judge in a trial by judge alone must include the principles of law that he or she has applied and the findings of fact on which he or she has relied'.
A number of particulars were pleaded to ground 1. The effect of the particulars was to allege that:
(1)the magistrate's reasons did not disclose the extent to which her Honour had considered all of the evidence presented in the trial and the process by which the facts had been found on that evidence;
(2)the reasons did not disclose the basis upon which her Honour had made findings about AB's evidence;
(3)her Honour did not give herself a Liberato direction (a reference Liberato v R);[16]
(4)her Honour did not identify each element in the offence that the prosecution was required to prove beyond a reasonable doubt.
[16] Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507.
There is considerable overlap between the allegations made in each ground of appeal. It is convenient to deal with the grounds together for that reason and because my determination of the First Appeal is best explained by considering the combined effect of each ground.

The magistrate's reasons

The magistrate delivered oral reasons shortly after closing submissions. Her Honour addressed her reasons directly to the appellant, and after noting the prosecution was required to prove every element of the offence beyond a reasonable doubt, her Honour continued:
You're charged with indecently dealing with [AB] who at the time was under 13. They have to prove every element of that offence; you don't have to prove anything. You didn't have to give evidence, but you did give evidence, so I bring that into the mix. I don't judge this case on whose evidence I prefer – whether I prefer your version or [AB's] version; that's not how it goes.
It's, as I said, the prosecution's job to prove the elements beyond a reasonable doubt, and to do that witnesses are called. And I take on board what each witness says, and look to see whether there's anything to corroborate them, or whether there's anything to detract from them; what affects their credibility in a good way, or in a bad way; what affects their reliability in a good way or a bad way.[17]
[17] 29 June 2018, ts 147.
Her Honour observed that the reliability and credibility of AB was a critical issue and shortly following that observation her Honour stated that the only issue to be determined was 'did it happen'.[18] Although it is alleged in the particulars to ground 1 that the magistrate did not identify the elements of the offence with which the appellant was charged, it was apparent from the transcript that the ultimate issue in the trial was, as her Honour observed, whether the State had proven beyond a reasonable doubt that the appellant had dealt with AB in the manner alleged.
[18] 29 June 2018, ts 149.
Her Honour made several findings about AB's evidence. First, although counsel for the appellant challenged the account given by AB during the recorded interview, her Honour observed: '[i]n my view, the interviewer must take on a substantial chunk of blame for the conduct of the interview'.[19] Her Honour identified aspects of the interview she considered to be unsatisfactory but found that:
[AB] provided sufficient detail around the actual incident as to place and manner and what was going on at the time. He remained steadfast when interviewed – when the interviewer misstated his responses, and maintained that steadfastness under significant cross-examination yesterday at the trial.
He remained unshaken as to what had happened. He was not clear as to the time – that is the date – and who was at home with respect to the peripheral adults, but he was always clear on the Monsters’ game; on his siblings' initial presence, his recount to his dad; when that occurred, and he places it at night because it was dark.[20]
[19] 29 June 2018, ts 149.
[20] 29 June 2018, ts 150.
Second, her Honour found AB's evidence that the offence occurred at night was consistent with the evidence of Mr N and Ms P and the text messages exchanged between Ms P and Ms N. The evidence of Mr N and Ms P and the text messages also corroborated AB's evidence that the alleged offence occurred during or around the time Mr and Ms N moved into their new house.
Third, AB made an immediate and unsolicited complaint to Mr N:
[H]e is unshakable as to that, both in his interview and at the trial. That fact is corroborated by [Mr N] and by [the appellant], who was confronted by [Mr N] on that same evening.[21]
[21] 29 June 2018, ts 151.
Fourth, Mr N gave evidence AB retraced his allegation when questioned by his father after the appellant had left and again the next day. AB denied he had told his father the allegation was a lie. However, the magistrate accepted Mr N's evidence. Her Honour then added that this finding – that is, the acceptance of Mr N's evidence that AB had said that he had lied –'might have affected [AB's] credibility fatally but for those matters that I've already outlined that corroborate his account'.[22]
[22] 29 June 2018, ts 151.
Fifth, the conversation between Mr N and AB in October 2017 could be used for the purposes of assessing AB's credit. AB's account in October 2017 was consistent with the complaint he had made to Mr N immediately after the alleged incident.
Sixth, although Mr N was not an 'accurate historian', he was a credible witness 'as to substance'.[23]
[23] 29 June 2018, ts 152.
Seventh, it was not put to AB, Mr N or Ms N that they had sought to influence AB to make a complaint about the appellant, and there was no particular incident that might have 'sparked animosity in any of the witnesses, but particularly between [AB] and [the appellant]'.[24] That circumstance also supported AB's credit.
[24] 29 June 2018, ts 152.
Lastly, Ms P did collect the appellant after the alleged incident. Ms P's evidence concerning what occurred when she arrived to collect the appellant was rejected, as was her evidence about the subsequent visit. That evidence was not corroborated by either AB or the appellant.
As to the appellant's evidence, the magistrate noted that it was to his 'great credit' that he never discounted the possibility that he had spent time alone with AB. Her Honour then noted that the appellant 'simply denies any interaction and, specifically, the substance of the allegation'.[25]
[25] 29 June 2018, ts 153.
Her Honour further noted the appellant's denial was challenged in cross-examination, that the 'substance of the allegation' had been clearly put to him and that he had clearly denied the incident had occurred. Her Honour then made a finding that the charges and the allegations made against the appellant were put to him with sufficient clarity in the course of cross-examination.[26]
[26] 29 June 2018, ts 153.
Her Honour made no further findings about the appellant's evidence, but simply concluded by stating:
Having considered the evidence then, I do find that [AB's] credit and his reliability is sound, and that for the reasons I have outlined above, the prosecution has proven the elements of the offence beyond a reasonable doubt.[27]
[27] 29 June 2018, ts 153.

Some observations about the magistrate's reasons

Several observations can be made about the magistrate's reasons. First, her Honour made no express finding about the credibility and reliability of the appellant's evidence. Her Honour merely noted that the appellant denied the allegation made by AB and that, to his 'great credit' he had not ruled out the possibility that he had spent time alone with AB.

Second, her Honour made no express findings about any part of the appellant's evidence. By implication, her Honour accepted parts of the appellant's evidence as parts of the evidence given by other witnesses were rejected as being inconsistent with the appellant's evidence. However, her Honour did not make any express findings about the detail of the appellant's evidence in contrast to the evidence of the other witnesses.
Third, by implication, the magistrate rejected the appellant's evidence that the offence did not occur. However, her Honour gave no reasons why his evidence had not been accepted, or why his evidence had not given rise to a reasonable doubt as to his guilt. For example, the magistrate placed weight on the fact that AB remained steadfast in his evidence that the offence had occurred, but her Honour did not explain why she had rejected the appellant's equally steadfast denial.
Fourth, the magistrate placed considerable emphasis on findings that the evidence of AB had been corroborated by other evidence. Her Honour considered that AB's evidence that the offence occurred at night because it was dark had been corroborated by evidence given by Mr N, the appellant, Ms P and by the text messages exchanged between Ms N and Ms P about the arrangements for the appellant to visit Mr and Ms N.
Further, AB's evidence that the offence had occurred was corroborated by his 'immediate and unsolicited complaint' to Mr N and by Mr N's evidence about what he was told by AB in October 2017.[28]
[28] 29 June 2018, ts 151.
As her Honour recognised, the evidence of immediate complaint had to be assessed in the context of finding that, contrary to AB's evidence, the complaint was retracted very shortly after it had been made. Her Honour found she would, nevertheless, accept AB's evidence that the incident had occurred because of other matters that corroborated his account. However, in the circumstances, the evidence of AB's complaint could not corroborate AB's allegation.
The only other matter that her Honour identified as corroborating AB's complaint was evidence that the incident occurred after dark. It is difficult to see how that aspect of the evidence could significantly bolster AB's credit and corroborate his account in a meaningful way.
In addition, her Honour considered that the reliability of AB's account was supported by the fact that there was no particular incident that might have 'sparked animosity in any of the witnesses, but particularly between [AB] and [the appellant]'.[29] However, according to the evidence given by Mr N, which the magistrate accepted, AB gave an explanation for why he had lied when he retracted his allegation. That is, that he wanted the appellant out of his bedroom.
[29] 29 June 2018, ts 152.
Finally, the magistrate did not expressly give herself a Liberato direction.

The adequacy of the magistrate's reasons

The magistrate was sitting as a member of the Children's Court of Western Australia, constituted under s 6(1) of the Children's Court of Western Australia Act 1998 (WA) (Children's Court Act). The magistrate exercised exclusive jurisdiction to hear and determine the charge alleged by the respondents under s 19(1) of the Children's Court Act.
In WS v Gardin[30], Mitchell J (as his Honour then was) held that s 120(2) of the CPA applied to indictable proceedings conducted in the Children's Court with the necessary modification that the word 'judge' in the section should be read to include a magistrate of the Children's Court. The decision of Mitchell J was followed by her Honour Jenkins J in HS v Lawford.[31]
[30] WS v Gardin [2015] WASC 97.
[31] HS v Lawford [2018] WASC 257.
It is a fundamental aspect of the exercise of judicial power that judicial officers give reasons that sufficiently explain their decisions. Section 120(2) of the CPA should be understood and applied in that broad context. However, it is important that s 120(2) requires that the reasons given include the principles of law that have been applied by the judicial officer.
In WS v Gardin, the appellant was convicted of one count of indecently dealing with a child and two counts of sexually penetrating a child. As in this case, the critical issue was whether the alleged conduct occurred at all. It was contended on appeal that the magistrate's reasons for rejecting the appellant's evidence did not satisfy the requirements of s 120(2) of the CPA.
Mitchell J explained the requirement of a judicial officer to give reasons where there was a substantial conflict of evidence on a significant point in the following passage:
In the present case the critical issue was whether the alleged conduct of the appellant toward CS occurred at all. She said that it happened; the appellant denied this. The magistrate could only have been satisfied beyond reasonable doubt of the appellant's guilt if he accepted the evidence of CS, rejected the evidence of the appellant and found that the appellant's evidence did not give rise to a reasonable doubt about whether the events described by CS occurred at all.
The common law requirement for a judicial officer's reasons for accepting one set of evidence over a conflicting set of evidence was described by Steytler P in Riley v The State of Western Australia in the following terms
While it is true that overly elaborate reasons are not required from a trial Judge, especially so in criminal trial proceedings in which a prompt outcome is necessary, where one set of evidence is accepted over a conflicting set of significant evidence a trial Judge is required to set out his or her findings as to how it is that one has been accepted over the other: Beale Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443, per Meagher JA, and Mount Lawley Pty Ltd v Western Australia Planning Commission (2004) 29 WAR 273 at 282 – 283. Moreover, it is essential that the reasons adequately disclose the intellectual processes which have resulted in the decision: Garrett v Nicholson (1999) 21 WAR 226 at 248 [73] – [74], per Owen J. It is well accepted that, where there is a right of appeal, the reasons must be sufficient to give effect to that right. If the basis for the decision is not apparent, the losing party cannot know whether there has been a mistake of law or of fact: Carlson v King (1947) 64 WN (NSW) 65 at 66, per Jordan CJ; Pettitt v Dunkley [1971] 1 NSWLR 376 at 387 – 388, per Moffitt JA; Lloyd v Faraone [1989] WAR 154 at 162 – 163, per Malcolm CJ, and Mount Lawley, above, at 282 – 283.
It is well established that, at common law, the judicial officer's task is to engage with, or grapple or wrestle with, cases presented by each party, and that this is not adequately done by setting out the competing evidence and saying that one body of evidence is preferred to another. No lesser requirement is imposed by s 120 of the CP Act.
In dealing with the reasons of a magistrate, it is also necessary to bear in mind the caution of Martin CJ in Strahan. While his comments were made in the context of s 31 of the Magistrates Court Act, they are not irrelevant when considering whether a magistrate's reasons comply with the requirements of s 120 of the CP Act. In that case, Martin CJ observed:
Having regard to that section and the context in which the magistrates of this state conduct their judicial business it is not appropriate to scrutinise the reasons for decision given by magistrates with a fine-tooth comb or an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
Nevertheless it is clear that the reasons of a magistrate must disclose the underlying intellectual process which gives rise to the conclusions – Tran v Claydon [2003] WASCA 318; (2003) 40 MVR 506 [36] – [37] (McLure J, Steytler P & Johnson J agreeing). It is also clear the adequacy of any magistrate's reasons is to be assessed by looking at the reasons as a whole and includes not only findings expressly made but findings to be inferred from the findings expressly made – Bennett v Carruthers [2010] WASCA 131 [27] (Mazza JA, McLure P & Newnes JA agreeing).
Further, the adequacy of a magistrate's reasons in any particular case must be assessed in the context of that particular case so that what might appear to be unacceptable economy of language might be justified by the manner in which the case was conducted or by the evidence that was adduced – Francis v Todd [2011] WASC 185 [18] (Edelman J).[32]
[32] WS v Gardin [167] – [170].
In WS v Gardin, Mitchell J found that the reasons given by the magistrate did not provide a sufficient basis for rejecting the appellant's evidence. The magistrate had rejected a part of the appellant's evidence, but it did not necessarily follow that the whole of his evidence was to be rejected.
After noting that a jury would ordinarily be directed that it was open to accept part of a witness's evidence, notwithstanding that another part had been rejected and that they could not find an issue against an accused person contrary to his or her evidence, if the evidence had given rise to a reasonable doubt on that issue, his Honour concluded that the magistrate's reasons in WS v Gardin did not meet the standard required by s 120(2) of the CPA because it was not evidence that the magistrate had applied those principles.
Mitchell J concluded:
While it can be assumed that the magistrate was aware of the principles, the application of the principles is not evident in the magistrate's approach. The magistrate does not appear to have considered whether some of the appellant's evidence should be accepted, or accepted as raising a reasonable doubt, notwithstanding the magistrate's rejection of the account of the incident at Kings Park.[33]
[33] WS v Gardin [177].

Liberato direction

It is well established that it is not necessary that a jury be given a Liberato direction in every case: Johnson v The State of Western Australia;[34] RMD v The State of Western Australia.[35] However, the direction should be given where the effect of counsels' addresses or of a witness's evidence is to indicate that the jury has the task of choosing between competing stories, especially where the accused has given sworn evidence.[36] Where a Liberato direction ought to be given, it is usually given in the form suggested by Kirby J (Sheller JA and Dowd J agreeing) in R v Anderson.[37] The direction suggested in that case was as follows:
First, if you believe the evidence of the accused, obviously, you must acquit.
Second, if you find difficulty in accepting the evidence of the accused, but think it might be true, then you must acquit.
Third, if you do not believe the accused, then you should put his testimony to one side. The question will remain; has the Crown, upon the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?[38]
[34] Johnson v The State of Western Australia [2008] WASCA 164.
[35] RMD v The State of Western Australia [2017] WASCA 70.
[36] Johnson v The State of Western Australia [17].
[37] R v Anderson [2001] NSWCCA 488; [2001] 127 ACR 116.
[38] R v Anderson [26].
There was a fundamental conflict of the evidence given by AB and the appellant about whether the alleged assault occurred. That required the magistrate to consider not just whether the evidence of AB should be accepted. Her Honour was also required to make findings about the appellant's evidence, whether all or some of his evidence was accepted and, importantly, whether his evidence, or any part of his evidence, had raised a reasonable doubt about his guilt.
However, the only findings that the magistrate made about the appellant's evidence were that it was to his great credit that he did not deny the possibility he had been alone with AB and that the substance of the allegations made against him had been sufficiently put in cross-examination. The magistrate emphasised that AB was unshakeable in his evidence about the alleged result during his prerecording and in examination at the trial. However, the appellant was equally adamant that he had not touched AB or acted in any way that was inappropriate.
I accept that the magistrate will be familiar with the law relevant to determining the ultimate issue of whether the prosecutor had proven the appellant's guilt beyond a reasonable doubt, including the principles embodied in a Liberato direction. However, to paraphrase the observations of Mitchell J in WS v Gardin, it is not possible to discern the application of those principles from her Honour's reasons.
I would add that her Honour did not expressly remind herself of the Liberato direction in her reasons. It may be that her Honour inadvertently overlooked applying the principles embodied in a Liberato direction in the understandable desire to deliver a decision without delay. If so, there was an error of law. Alternatively, if her Honour did not overlook the relevant principles, there was no explanation in the reasons as to why, by implication, the appellant's denial was rejected or why his evidence had not given rise to a reasonable doubt.
In the circumstances, the reasons delivered by the magistrate were not adequate to explain the finding of guilt. That failure constitutes an error of law for the purpose of s 14 of the Criminal Appeals Act 2004 (WA). The inadequacy of the reasons is perhaps aggravated by the fact that there were a number of conflicts in the evidence between all of the witnesses and the magistrate made findings accepting parts of some witnesses' evidence and rejecting other parts.
With respect, there was no real attempt made by her Honour to reconcile those different findings in circumstances where there was much conflict in the evidence between all witnesses.
Section 14(2) of the Criminal Appeals Act provides that this court may dismiss an appeal if it considers that no substantial miscarriage of justice has occurred, despite an error of law or fact having been made by a court of summary judgment. I am satisfied that a substantial miscarriage of justice occurred, having regard to the errors of law to which I have referred, the evidence that was adduced in the trial, and the issues concerning the reliability of the evidence of AB. Whether AB's evidence concerning the alleged assault by the appellant should be accepted as being truthful and reliable and sufficient to establish beyond a reasonable doubt the appellant's guilt, despite the evidence given by the appellant, is not a question that can be determined by this court on appeal.
As the magistrate noted, there was a significant issue concerning the reliability of AB's complaint that he had been assaulted by the appellant. Her Honour considered that AB's credibility might have been affected by evidence that he had withdrawn his allegation against the appellant shortly after it was made and, again, the next day. However, her Honour concluded that AB's evidence ought to be accepted as it was corroborated by other evidence. As I have indicated, the matters apparently identified by the magistrate as corroborating AB's evidence were that he had made an immediate and unsolicited complaint to Mr N and other witnesses agreed that the appellant had been at the house of Mr N and Ms N early in the evening.
However, it is difficult to see how the uncontroversial fact that the appellant was still at the house of Mr and Ms N at about 6.00 pm on the evening of his first visit could substantially corroborate AB's evidence concerning the appellant's conduct. As to the complaint made by AB to his father, the magistrate accepted Mr Ns evidence that AB had subsequently denied that the appellant had inappropriately touched him. That finding was contrary to the evidence of AB who stated that he had not retracted the allegation. Further, AB could not corroborate himself. That is, his evidence that he was assaulted by the appellant is not and cannot be corroborated by his complaint to his father.
There was a further matter that was relevant to the assessment of the reliability of ABs evidence. As the magistrate observed, there were difficulties with the way in which AB had been questioned in the prerecording of his evidence-in-chief. Those difficulties were not the fault of AB. However, the problems with the questioning of AB meant that additional care was required in assessing his evidence and in giving reasons for why his evidence had been accepted as establishing the appellant's guilt beyond a reasonable doubt, despite the appellant's evidence.
In all the circumstances, I do not consider that it can be concluded that a substantial miscarriage of justice did not occur. Accordingly, it is appropriate that:
(1)the appellant be granted leave to appeal on each ground of the appeal;
(2)the appeal be allowed on each ground;
(3)the appellant's conviction and sentence be set aside and the charge be remitted to the Children's Court to be retried.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MB
Associate to the Honourable Justice Corboy
27 NOVEMBER 2019