D A v The State of Western Australia

[2004] WASCA 259

D A -v- THE STATE OF WESTERN AUSTRALIA [2004] WASCA 259

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 259
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:24/2004	Heard:	10 SEPTEMBER 2004
Coram:	TEMPLEMAN J MCKECHNIE J MCLURE J	Delivered:	16/11/04
No of pages:	26	Judgment Part:	1 of 1
Result:	Leave granted Appeal dismissed
Category:	B
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Parties:	D A THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law and procedure Appeal against conviction Sexual relationship with child under 16 years Whether evidence capable of proving that complainant under 16 years Turns on own facts
Legislation:	Criminal Code 1913 (WA), s 321A, s 689
Case References:	Allegretta v The Queen [2003] WASCA 17 M v The Queen (1994) 181 CLR 487 Polidano v The Queen (2003) WASCA 93 Herbert v The Queen [2002] WAASCA 362 Jones v The Queen (1997) 191 CLR 439 MFA v The Queen (2002) 213 CLR 606

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : D A -v- THE STATE OF WESTERN AUSTRALIA [2004] WASCA 259 CORAM : TEMPLEMAN J

MCKECHNIE J
MCLURE J

HEARD : 10 SEPTEMBER 2004 DELIVERED : 16 NOVEMBER 2004 FILE NO/S : CCA 24 of 2004 BETWEEN : D A

Applicant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : HEALY DCJ

File No : IND 544 of 2001

Result : Appeal dismissed

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Catchwords:

Criminal law and procedure - Appeal against conviction - Sexual relationship with child under 16 years - Whether evidence capable of proving that complainant under 16 years - Turns on own facts

Legislation:

Criminal Code 1913 (WA), s 321A, s 689

Result:

Leave granted

Appeal dismissed

Category: B

Representation:

Counsel:

Applicant : Mr A O Karstaedt
Respondent : Mr D Dempster

Solicitors:

Applicant : Max Crispe
Respondent : State Director of Public Prosecutions

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

Allegretta v The Queen [2003] WASCA 17
M v The Queen (1994) 181 CLR 487
Polidano v The Queen (2003) WASCA 93

Case(s) also cited:

Herbert v The Queen [2002] WAASCA 362
Jones v The Queen (1997) 191 CLR 439
MFA v The Queen (2002) 213 CLR 606


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1 TEMPLEMAN J: The applicant was convicted after trial in the District Court on the single count that between 15 January 1995 and 16 January 1998 at Munster and elsewhere, he had a sexual relationship with the complainant, a child under the age of 16 years.

2 The applicant wishes to appeal against his conviction on the ground that:

"The conviction is unsafe and against the weight of evidence in that a properly instructed jury could not be satisfied to the required standard that the offence of having a sexual relationship with a child under the age of 16 had been proved."

3 The applicant made his application on the standard form which is used both when there is an appeal as of right and where it is necessary to seek leave to appeal. Although the applicant has not identified the category into which he falls, it is clear that he requires the leave of the Court. That is because s 688 of the Criminal Code requires the leave of the Court to be given where, as here, the ground of appeal involves a question of mixed law and fact.

4 I therefore proceed on the basis that this is an application for leave to appeal.

5 The offence of which the applicant was convicted is created by s 321A(3) of the Criminal Code which provides:

"A person who has a sexual relationship with a child under the age of 16 years is guilty of a crime and is liable to imprisonment for 20 years."

6 Section 321A(1) defines the term "a sexual relationship" for these purposes in the following way:

"A person has a sexual relationship with a child under the age of 16 years if that person, on three or more occasions each of which is on a different day, does an act in relation to the child which would constitute a prescribed offence."

7 The term "prescribed offence" is defined by s 321A(11). For present purposes, it is sufficient to note that the sexual penetration of a child of or over the age of 13 years and under 16 years or an indecent dealing with such a child constitutes a prescribed offence.
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8 The acts complained of in the present case were all prescribed offences. They were as follows:

1. When the complainant was 13 years old she went with the applicant and his son to a house in Rockingham to collect wood. The complainant and the applicant went into the house where he tried to kiss her and put his hands down her pants.

2. Later that day the applicant took the complainant to his house at Munster where, in his bedroom, he had sexual intercourse with her.

3. About two weeks after the instance referred to in 1 and 2 above, when the complainant was sleeping over at the applicant's house the applicant came into her bedroom at night and had sexual intercourse with her.

4. Some time after the third incident when the complainant was 15 years old, the applicant took her to his crayfishing boat. The applicant tied the complainant's wrists and feet in the cabin at the bottom of the boat and had sexual intercourse with her.

5. On an unspecified date not more than two months after the complainant moved into the applicant's house, the applicant had sexual intercourse with the complainant in the lounge room of his house.

9 Although there were five complaints, the first two were alleged to have occurred on the same day and therefore constituted a single constituent of the alleged relationship for the purposes of s 321A(1) of the Code. It was therefore necessary for the prosecution to prove beyond a reasonable doubt that the complainant was under the age of 16 years on three out of the four days on which the above offences were alleged to have been committed.

10 By way of background, it should be noted that the applicant is the husband of the complainant's aunt. When the complainant was 13 years old she left the home where she had been living with her mother and stepfather and went to live with her grandparents. They are the parents of the complainant's mother and her aunt. Later, the complainant left her grandparents' house and moved into the house of the applicant, his wife and their family.

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11 The trial at which the applicant was convicted was a re-trial, there having been a successful appeal from the first trial which was conducted in 2002. The ground of appeal relied on here is in substantially the same terms as one of the unsuccessful grounds relied on in the earlier appeal: see Allegretta v The Queen [2003] WASCA 17.

12 At the re-trial, additional evidence was adduced by the defence. This included certain documents to which I shall refer in due course. That being so, it is necessary to consider this appeal on its own merits, without regard to the outcome of the previous appeal.

13 The complainant's evidence was that she had been sexually abused by the applicant, repeatedly, for a number of years from age 13. This evidence was properly admitted as relationship evidence and was the subject of an appropriate direction by the trial Judge.

14 In her evidence, the complainant did not specify the dates on which she alleged that the relevant offences had been committed. She said the first three offences were committed while she was living at her grandparents' house; she was not sure where she was living at the time of the fourth incident and the fifth incident occurred not more than two months after she moved into the applicant's house.

15 A crucial part of the defence case was that the prosecution had not proved beyond a reasonable doubt that the last two of the alleged offences had been committed while the complainant was under the age of 16 years. Thus, in the particulars of the only ground of appeal relied on by the applicant before the Court he contends that:

(a) It was not open to the jury to be satisfied that at least three relevant acts had occurred prior to the complainant moving into the applicant's house;

(b) It was not open to the jury to be satisfied on all the evidence including that of Dr Pauline Swan and the complainant's grandfather, that the complainant had moved into the applicant's house prior to the age of 16. [Dr Swan was the complainant's doctor.]

16 There were other grounds of appeal, but they were abandoned. However, counsel for the applicant relied on certain aspects of those grounds to support the ground set out above. I shall incorporate those additional matters in these reasons.
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17 The applicant accepts there was evidence on which it was open to the jury to convict him. He therefore relies on s 689(1) of the Criminal Code which provides that on an appeal against conviction the Court of Criminal Appeal shall allow the appeal:

"if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice …."

18 A similar provision in the Criminal Appeal Act 1912 of New South Wales was considered by the High Court in M v The Queen (1994) 181 CLR 487. There, Mason CJ, Deane, Dawson and Toohey JJ said (at 493):

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a Court of Criminal Appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the 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 …. But 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. On the contrary, the court must pay full regard to those considerations …."

19 A little later in their reasons, their Honours said (at p 494):

"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to

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conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence."

20 In the present case, the applicant contends that not only was the complainant's evidence inconsistent and unreliable, it was contradicted by what is said to be objective evidence. It is submitted that the combination of these factors should lead this Court to conclude that the verdict was unsafe or unsatisfactory.

21 It is therefore necessary to review the evidence, having regard to the principles set out in M v The Queen (supra).

22 The complainant was born on 16 January 1982 and turned 16 on 16 January 1998. She was 22 years old at the re-trial. She was therefore giving evidence about events which were alleged to have occurred between 9 and 6 years earlier.

23 In opening the case to the jury, the prosecutor said that the fourth offence referred to above (sexual intercourse on the applicant's boat) was committed after the complainant had moved into the applicant's house when the complainant was "at most 15 years of age" (TS 748).

24 In her evidence-in-chief, the complainant said she was not sure where she was living when the fourth offence was committed. When asked "What's the oldest you could have been at the time?", the complainant answered "15". The complainant said she was in Year 10 at the time and that the offence was committed in November or December, at the beginning of the crayfishing season (TS 780).

25 The complainant attended Hamilton Hill Senior High School until the end of 1997, when she was in Year 10. At the beginning of 1998, she moved to North Lake Senior Campus.

26 In cross-examination, the complainant was unable to say when the fourth offence had been committed (TS 831). The complainant said although not "a hundred per cent sure" she was "pretty sure (she) was still at school" at the material time (TS 832). Whether that was a reference to the High School or the Campus is not clear.

27 The complainant was then asked about evidence she had given at the previous trial when she had been somewhat vague about the incident. However, the complainant said the cross-examiner had confused her on

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that occasion. The complainant said also that she had blocked out the incident from her mind. She said she had been trying to get on with her life (TS 833).

28 It was then put to the complainant that in her evidence-in-chief she had alleged that in the boat incident the applicant had tied her with rags and rope, whereas, in her statement to the police, she had made no mention of rags. The complainant explained that by saying:

"I didn't say much to the police at all and I didn't last time in court either. I try not to think about it. The more I think about it, the more I can remember, and I honestly don't want to remember."

The complainant said the police had asked her to tell them everything she could remember and everything she had known about the case but, she said, "I blocked a lot of it out" (AB 834).

29 It was put to the complainant that she had made five statements (including two pages of handwritten notes) between April 2000 and June 2001 and that although she had been asked to tell the police whatever she could, concerning her allegations, she had made no mention of the fourth incident until the final statement, on 28 June 2001. Again, the complainant explained that omission:

"I slowly started unblocking my mind and let (sic) things out." (TS 842)

30 Another reason given by the complainant for not making a full statement to the police was that she was scared of the applicant (TS 844-5).

31 The complainant was asked what age she had been when the boat incident occurred. The complainant said she was not "a hundred per cent sure". It was put to the complainant that it could have been after she had moved in with the applicant. The complainant said she was unable to answer yes or no because she was not quite sure. However, she said she was "about 14" when she moved in with the applicant although she could not say in what year that occurred.

32 In a statement to the police dated 15 June 2000, the complainant said she had moved in to the applicant's house when she was 16. In cross-examination, the complainant said she had thought that was correct when she made the statement. However, in the complainant's next statement to the police, dated 28 June 2001, the complainant said she had

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moved into the applicant's house when she was 14 or 15. She said she was now certain she was not 16 when she moved in with the applicant and that was the reason for changing her statement. She was aware that for the applicant to be found guilty, she must have been under the age of 16 when the relevant events occurred (TS 921-2).

33 The applicant relies not only on these inconsistencies in the statements made by the complainant to the police, but on documentary evidence which, it is contended, leads inevitably to the conclusion that the complainant did not move from her grandparents' house when she was 14 years old: that she did not leave until about mid-1998, when she was over 16 years old.

34 On 15 October 1997, the complainant completed an enrolment form for the North Lake Senior Campus. She was then 15 years and 9 months old. The complainant gave her residential address as that of her grandparents. However, the form required a student under the age of 18 years to provide the residential address of his or her parent or guardian.

35 The complainant said her grandmother was her legal guardian and that she always used her grandparents' address.

36 In fact, neither of the complainant's grandparents was her legal guardian, although they were her de facto guardians. However, her grandmother had signed the complainant's enrolment form for the Hamilton Senior High School as her legal guardian. Further, the complainant's grandfather accepted in cross-examination that his address was shown on documents relating to the complainant because he and his wife were guardians (TS 1374-7).

37 The North Lake enrolment form was apparently countersigned by the grandmother although she signed as the complainant's parent. The grandmother was not called to give evidence. The circumstances in which she signed the form were not explained.

38 The applicant relies also on an extract from the UBD Street Directory showing that North Lake Senior Campus is about 500 metres distant from the grandparent's house. This, it was submitted, suggests that the complainant was living with her grandparents while she attended North Lake Senior Campus, as she did for the first half Year 11, when 16 years of age. The extract from the street directory was tendered in evidence with the consent of the prosecution after the defence case had closed. In my view, the evidence carries little weight because the

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complainant was not asked in cross-examination where she was living when she attended the Campus, or how she travelled there.

39 On 16 May 1998, the complainant consulted Dr Pauline Swan at her rooms in Coolbellup. The complainant was then 16 years and 4 months old. Dr Swan gave evidence for the defence. According to Dr Swan's contemporaneous note, the complainant told her she was living with her grandparents.

40 Dr Swan's records for 17 September and 16 October 1998 also recorded the address of the complainant's grandparents (TS 1279). But on any view, the complainant was not then living with her grandparents. The complainant's address was changed later, apparently on 16 November 1998, to the applicant's address. Dr Swan was unable to give direct evidence about these matters because "the girls do it" (TS 1271). I take that to be a reference to clerical staff employed in the doctor's practice.

41 It was Dr Swan's evidence that the complainant had actually said on 16 May 1998 that she was living with her grandparents. Dr Swan conceded in cross-examination however that she may have been mistaken about where the complainant was living: she may have assumed the complainant was living with her grandparents when that was not the case. When that possibility was put to Dr Swan she said:

"Yes. I can make [a] mistake. Yes. I can easily be flawed. Yes." (TS 1281)

42 The consultation on 16 May 1998 was the first occasion on which the complainant saw Dr Swan, who recalled the visit. She said the complainant was distressed and that they talked about physical abuse. Although the complainant requested the oral contraceptive pill, Dr Swan's note read "Discussed abuse (physical)". She said the note meant "there wasn't sexual abuse which I would ask about …."

43 The complainant said in her evidence that she had been prescribed the contraceptive pill at age 13 for "bad period problems and bad acne" (TS 914). The complainant said also that she did not want to tell anyone about sexual abuse.

44 The complainant's grandfather gave evidence that the complainant came to live with him and his wife in September 1995 and remained there until June 1998.

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45 While the complainant was living with her grandparents, they received a parenting allowance which was paid into their account with the Commonwealth Bank.

46 Some of the bank books were tendered in evidence. However, it is clear that not all the books were produced. There was a gap between 17 April 1997 and 29 January 1998. The last family payment recorded in the bank book was on 10 April 1997, although the grandfather said the payments were received until December 1997. However, according to a Centrelink document dated 27 February 1998, the grandmother was entitled to receive the parenting allowance until 15 January 1998: that is, the day before the complainant's 16th birthday (AB 69).

47 It will be recalled that in October 1997, the complainant had enrolled at the North Lake Senior Campus.

48 In November 1997, the complainant was informed that she was eligible for Austudy from 16 January to 31 December 1998. The complainant was given a notice to this effect by the Department of Employment, Education, Training and Youth Affairs ("DEET"). The notice was dated 23 November 1997 and was addressed to the complainant at her grandparents' address. The notice stated that payment would be made "to your parent". It was the grandfather's evidence that Austudy payments were received by him and his wife from 28 January until 30 June 1998.

49 The grandfather said Austudy payments ceased then because he and his wife notified "Centrelink" when the complainant left them in June 1998 (TS 1362). However, Centrelink has no connection with Austudy. Further, it appears from the DEET notice of 23 November 1997, that major changes were planned from 1 July 1998 when "youth allowance" was to be introduced to replace Austudy for students under 25 years old.

50 Counsel for the applicant submitted that it would have been inherently unlikely that the complainant's grandparents would claim benefits to which they would not have been entitled if the complainant was not living with them. This was particularly so, given the complainant's evidence that her grandparents wanted her to remain with them until the end of the financial year, for tax reasons. That evidence is, I think, equivocal. It supports the view that the grandparents wanted to extract the maximum financial benefit from the complainant's residence with them. If that was so, they would have had an incentive not to notify Centrelink that the complainant had moved away.

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51 The applicant relies also on the grandfather's evidence that the complainant's father came to his house about once a month and gave $100 to the complainant by way of maintenance. The grandfather said that on each occasion the money was handed to the complainant in his lounge room. The payments were recorded in a receipt book. The complainant's father would write out the receipts which he and the complainant signed.

52 The receipt book was tendered in evidence. It showed that the last payment was on 29 December 1997, shortly before the complainant's 16th birthday, when the payments stopped.

53 The grandfather said the complainant was living with him and his wife throughout the time she received maintenance payments (TS 1366-7).

54 It was put to the complainant in cross-examination that she had not received any payments after she moved to the applicant's house. The complainant denied that. The complainant was then asked how she received maintenance from her father while she was living at the applicant's house. The complainant said that sometimes she would go to her grandmother's house after school. Alternatively, her father would collect her from her grandmother's house or from the applicant's house, or the applicant and his wife would take her to her father's house (TS 968-70).

55 Some further documentary evidence was relied on by the applicant as casting doubt on the complainant's evidence that she had moved into the applicant's house well before she was 16 years of age. These were the school reports of the applicant's son, for 1998. There was also a letter dated 22 August 1997 from the son's maths teacher to the applicant and his wife. None of these documents referred to the son's address. They therefore have no relevant probative value.

56 The applicant's evidence was that his son had moved out in April 1998 and that the complainant had moved in following his departure (TS 1115). The applicant's wife said the complainant moved into their house in approximately July 1998 when she had the bedroom which their son occupied previously. She said he moved out of the house in about April 1998 (TS 1300).

57 It was submitted on behalf of the applicant that the complainant agreed she had moved into the applicant's house after the son had moved out. That was not entirely accurate. The complainant accepted that she used the room the son had used previously but "not straightaway"

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(TS 860). The complainant said initially, she had shared the bedroom of one of the applicant's daughters because the child could not sleep by herself (TS 860).

58 A little later in her evidence, the complainant was asked the following rolled up question:

"I suggest to you (the applicant's son) was there until about April of the year that you moved in permanently. You moved in at about July and he moved out in about April, three or four months before you moved in permanently and up until that point he was living there while you were visiting fortnightly. You don't agree?"

The complainant answered "No, I don't agree" (TS 862).

59 I do not think that evidence would have assisted the jury to determine when the complainant moved in to the applicant's house.

60 In my view, the documentary evidence was of little weight. None of it proved that the complainant had not moved from her grandparents' house until after she turned 16. However, there was a prosecution witness who gave direct evidence that the complainant moved away in 1997, when she was 15 years old. The witness was a former school friend of the complainant's. She lived in the same suburb as the complainant and used to go home from school with her on the bus. The witness said in 1997, she stopped visiting the complainant at her grandparents' house and they no longer went home from school together.

61 The witness accepted that a possible reason for her not seeing the complainant late in 1997 was because she (the witness) may have gone away on holiday (TS 1097). However, the witness said she did not recall having gone on holiday.

62 The witness' evidence was, of course, inconsistent with the complainant's evidence that she had moved away from her grandparents' house when aged 13 or 14. However, it was consistent with the complainant's evidence that the incident on the appellant's crayboat occurred in November or December of the year in which she was, at most, 15 years of age.

63 That being so, whether or not the fifth incident occurred before or after the complainant turned 16, it was clearly open to the jury to be satisfied beyond a reasonable doubt that on at least three occasions, the

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applicant had committed the offences which constituted the sexual relationship.

64 The applicant next contends that certain questions asked by the jury during their deliberations cast doubt on the reliability of their verdict.

65 The jury asked two questions relevant to this issue. The first was in two parts:

"We would like clarification of testimony of (the complainant's) examination-in-chief on the boat incident.

Did she say when the incident happened when she was living at the (applicant's house)?

Clarification as to where the incident happened in terms of journey; in pen or out to sea."

66 In answer to that question, the trial Judge referred the jury to p 780 of the transcript where the complainant was asked in her evidence-in-chief if she remembered where she was living at the time. Her answer was "I'm not quite sure".

67 In answer to the second part of the question, his Honour told the jury that there was no evidence as to whether the incident occurred in the pen or out at sea.

68 There was a third question about the orientation of the applicant's house. It has no relevance to this application.

69 The trial Judge answered the questions at 2.46 pm. At about 4 pm, the jury asked a further question. It was as follows:

"In the transcript, what was the time frame stated by (the complainant) between the night incident and the boat incident?"

70 The "night incident" may be taken as a reference to the third offence referred to above.

71 In answer to that question, the trial Judge referred again to p 780 of the transcript. The complainant had been asked, in relation to the incident on the crayboat:

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"When was this incident in relation to the incident you related a moment ago that happened at night time at his house? … Afterwards."

His Honour went on to tell the jury that apart from that evidence there was no direct evidence of the time interval between the house incident and the incident on the crayfishing boat. His Honour reminded the jury that the complainant had not put a time period on that matter and that no questions had been asked in relation to it.

72 At 4.21 pm the jury retired again. At 5.03 pm they returned a unanimous verdict of guilty in relation to the charge now under consideration.

73 It was submitted that the inference to be drawn from the fact that the jury had asked those questions was that they were concerned about when the incident on the crayfishing boat occurred; in particular, whether it was before the complainant turned 16. It was submitted further, that the answers given to the jury by the learned trial Judge could not properly have resolved their concerns.

74 I am quite unable to accept that submission. The fact that the jury asked the questions clearly indicates that they were working through the evidence as they were required to do. But whatever their concern was, it must have been resolved. If that were not so, the jury could not have brought in a unanimous verdict of guilty as they did.

75 There is no complaint about the way in which the trial Judge charged the jury and, of course, it must be assumed that the jury followed his Honour's direction.

76 In this context, it should be noted that the Judge gave the jury the following crucial direction:

" … I have to give you a warning that when you are looking at the evidence of (the complainant) you must look at her evidence very critically and very objectively because she is central to the prosecution case, and unless you can accept her as being not only a truthful witness but also an accurate witness, then you could not rely upon her in order to prove that the offences were committed.

You will bear in mind that she was much younger when the offences were allegedly committed.

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…

You have got to scrutinise her evidence with great care to be satisfied of its truth and accuracy. We know from our own experience that recollections can be fallible and the effects of prejudice or imagination or suggestion or whatever can have an impact on our memory, and the longer the period between an event which occurs and its recall all have built into it a margin for error, so when you come to consider the essential evidence of (the complainant) before acting upon it you should give it that very careful scrutiny and bear in mind the difficulties faced by an accused person in meeting allegations made so long after the event because its easy to test an allegation if it's made against you tomorrow as to what happened today, but it's not so easy to test if it happened a year ago, or two years ago, or three years ago, or ten years ago, and it's dangerous to convict on the evidence of (the complainant) alone unless you scrutinise her evidence with great care considering the circumstances relevant to its evaluation and pay heed to the warning that I am giving you now.

If after such careful scrutiny you are satisfied as to the truth and accuracy of her evidence, then of course you can rely upon it, but it would still be dangerous to convict on her evidence alone unless you have scrutinised it with great care and considered the circumstances relevant to its evaluation." (TS 1421-2)

77 Applying the test set out by the majority of the High Court in M v The Queen (supra) the first question to be asked is whether the trial transcript and the documentary evidence give rise to a doubt about the complainant's credibility.

78 I think that question must be answered in the affirmative. Clearly, there were inconsistencies in the complainant's evidence. And there were inconsistencies between her evidence and the evidence she gave at the first trial.

79 It is also true that some of the documentary evidence was inconsistent with the complainant's evidence.

80 I therefore turn to the second question which requires to be answered: was the jury's advantage in seeing and hearing the evidence capable of resolving that doubt?

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81 In answering that question, it may be noted that the jury had the benefit of seeing the complainant giving evidence for over one and a half days. This included a little over one day during which she was subjected to a detailed and searching cross-examination in which every aspect of her evidence was explored. As will have become apparent from the earlier part of these reasons, the complainant explained inconsistencies in ways which – on paper at least – seem to me to have been plausible.

82 There can be no doubt that in a case such as this, the advantage which the jury has of seeing and hearing a complainant, is incalculable. The doubts I have about the complainant's credibility are entirely resolved by my confidence in the jury system. In other words, because the twelve members of the jury, being properly instructed and alive to the credibility issues raised in the trial, were all satisfied beyond reasonable doubt of the applicant's guilt, they must have accepted the complainant's explanations for the inconsistencies in her evidence and believed her evidence relating to the charge. I am not persuaded, therefore, that there is a significant possibility that the applicant was wrongly convicted. To hold otherwise would, I think be to disregard the instruction given by the High Court in M v The Queen (supra), to pay full regard to the consideration that the jury is primarily responsible for determining guilt or innocence.

83 For these reasons, while I would grant the applicant leave to appeal, I would dismiss the appeal.

84 MCKECHNIE J: I agree with the reasons given by Templeman J and the further reasons and analysis of McLure J and their conclusion that this appeal should be dismissed.

85 MCLURE J: I agree with Templeman J that leave to appeal should be granted and the appeal dismissed.

86 The applicant was convicted of having a sexual relationship with a child under the age of 16 years contrary to s 321A(3) of the Criminal Code 1913 (WA). A person has a sexual relationship with a child under 16 years if that person, on three or more occasions, each of which is on a different day, does an act in relation to a child which would constitute a prescribed offence (s 321A(1)). In this case the State identified five acts, all of which were prescribed offences. However, as two of the five acts were said to have occurred on the same day, the State had to prove beyond reasonable doubt that at least two of the remaining three acts complained of took place before the complainant was 16.

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87 The applicant contended that the verdict of the jury was unsafe or unsatisfactory having regard to the whole of the evidence in relation to the final two acts complained of, being in substance that:

4. Some time after the third incident when the complainant was 15 years old, the applicant took her to his crayfishing boat. The applicant tied the complainant's wrists and feet in the cabin at the bottom of the boat and had sexual intercourse with her.

5. On an unspecified date not more than two months after the complainant moved into the applicant's house, the applicant had sexual intercourse with the complainant in the lounge room of his house.

88 The first two acts complained of occurred when the complainant was 13 years old and the third incident took place about two weeks later when she was sleeping over at the applicant's house and he came into her room at night and had sexual intercourse with her.

89 The relevant legal principles are not in dispute. This Court must undertake an independent review of the evidence to determine whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt: s 689(1) of the Criminal Code; M v The Queen (1994) 181 CLR 487; Polidano v The Queen (2003) WASCA 93.

90 The complainant was born on 16 January 1982 and is the niece of the applicant's wife. It was not in dispute that the complainant went to live with her maternal grandparents when she was aged 13; that at some stage thereafter the complainant spent alternative weekends at the home of the applicant and his family; at some later stage the complainant moved in with the applicant and his family on a full-time basis; and in late 1999 when the complainant was 17, she moved out of the applicant's home. At all material times her grandparents lived in Coolbellup and the applicant and his family lived in Munster.

91 The applicant contended that the weight of the evidence is that the complainant moved into the applicant's home around mid-1998, at which time she was 16½ years old. The complainant's evidence was that the fifth incident occurred shortly after she moved into the applicant's house, and she could not recall whether the fourth incident occurred before or after she moved in. Accordingly, it is said the jury could not be satisfied beyond reasonable doubt that the fourth or fifth incident occurred when

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the complainant was under the age of 16, in which case the State had failed to prove a sexual relationship.

92 The conviction the subject of this appeal was pursuant to a re-trial, there having been a successful appeal from his conviction after a trial in 2002.

The Move to the Applicant's Home

93 The complainant's evidence at trial was that she went to live with the applicant and his family when she was in year 9 at school. The complainant was 14 years old when she was in year 9. She rejected the proposition put in cross-examination that she moved in mid-1998.

94 In cross-examination, she was referred to signed statements she had given to police dated 15 and 28 June 2000 respectively in which she referred to the timing of her move. The applicant's counsel referred her to the second paragraph on page 12 of her 15 June 2000 statement and continued:

"About one year later, when I was 16 years old, I moved in with … [the applicant and his wife]?---That's what it says there.

And you thought that was correct when you wrote that?---At that time, yes.

Can you look at your latest statement, the one dated 28 June 2001? Can you turn to paragraph 116?---Yes.

That paragraph appears more or less in the same place as the other paragraph I referred to in your other statement, doesn't it?

---Yes.

And you say there:


'About one year later, when I was 14 or 15, I moved in with … [the applicant and his wife]'?---Yes.

That's 28 June 2001?---Yes.

What made you change from saying in your earlier statement you were 16 to saying you were 14 or 15?---I'm not quite sure. Probably because I remembered what age I was. I don't know. I can't recall. Sorry.

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Are you certain now you weren't 16 when you moved in?---Yes. That's why I changed it for."

95 In re-examination the complainant was referred to the sentences immediately following the statement that she moved in when she was 16 years old. The statement in context is as follows:

"About one year later when I was 16 years old I moved in with … [the applicant and his wife]. I remember it was halfway through 1996 just after the financial year. My nanna made me stay at her place until after the financial year for tax reason. It's about a week after June 31, 1996."

96 It was not in dispute that the complainant was 14 years old in 1996. That puts the complainant's statement that she was 16 in its proper context.

97 There was no documentary or objective support for the complainant's evidence that she moved into the applicant's house in 1996. However, there is independent evidence that the complainant was not living with her grandparents throughout the 1997 school year. The prosecution called a friend of the complainant who attended Hamilton Senior High School with the complainant. According to this witness, the complainant moved from her grandparents' home in Coolbellup at some time during the school year in 1997 when she and the complainant were in year 10. She remembered that because, until the complainant moved, they used to go home from school together by bus. Prior to the complainant moving, the witness had visited the complainant at her grandparents' house. She was unable to remember when she last visited the complainant at her grandparents' house in 1997 but said the complainant was not at her grandparents' house at the end of the school year when they graduated. She acknowledged the possibility that she may have gone on holiday at the end of 1997. However, that does not impact on her evidence that at some time during the school year the complainant ceased living with her grandparents.

98 The applicant relies on a number of matters in support of his contention that the evidence overwhelmingly pointed to the fact that the complainant moved into the applicant's house in mid-1998 when she was 16½. Firstly, the complainant's statement to police dated 15 June 2000 that she was 16 when she went to live with the applicant. I have already referred to that matter. The statement is immediately contradicted by her assertion that it occurred in 1996 (when she was 14), was altered in a

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subsequent statement to police and is inconsistent with her evidence at trial.

99 Secondly, the applicant relies on a North Lake Senior Campus enrolment form signed by the complainant in October 1997 in which it is said she gave as her residential and mailing address her grandparents' house in Coolbellup. The form is ambiguous. It seeks a residential address, mailing address and the signature of a parent. In relation to the residential address, the form states "(If under 18 this must be parent/guardian)". The completed form shows the grandmother's name and address.

100 The mailing address is to be completed if it is different from the residential address. The completed form states "As above", being a reference to the residential address. Under the words "Signature of parent", where her grandmother signed, are the words "(When student under 18 years and living with parent/guardian on date of enrolment)". The complainant's grandmother did not give evidence. There was no evidence as to why she signed, or the circumstances surrounding her signing, the form. The complainant's evidence was that she regarded her grandparents as her guardians and that she continued to use their address for her mail and with just about all her records after she ceased living with them. This explanation also applies to the next matter. It is pertinent to note in this regard that it is not suggested the complainant's move resulted from, or caused, a rift with her grandparents.

101 Thirdly, the applicant relies on the evidence of the complainant's general practitioner, Dr Pauline Swan. On 16 May 1998, the first time the complainant went to Dr Swan's rooms, she completed a health summary in which she gave her Coolbellup address. At the first consultation, Dr Swan recorded that the complainant was living or lived with her grandparents. However, Dr Swan conceded in cross-examination that the complainant may not have told her who she was living with and she may have assumed the complainant was living with her grandparents. Although Dr Swan's records note a change of address to Munster corresponding with an entry in the medical records on 16 November 1998, the complainant also attended Dr Swan on 17 September 1998 and 16 October 1998 and her recorded address remained that of her grandparents. It was not in dispute that by that stage she was not living with her grandparents.

102 Fourthly, the applicant relies on the evidence of the complainant's grandfather which, it is said, is corroborated by documentary evidence.

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His evidence was that the complainant went to live with the applicant and his family just before the end of the financial year in June 1998. He produced documentary evidence, including a letter dated 25 June 1996 from the Department of Social Security to his wife concerning her parenting allowance to 30 June 1996, two letters dated 27 February 1998 from Centrelink to his wife relating to the amount of family tax payment and parenting allowance she had received in the period 1 July 1997 to 15 January 1998, and a letter dated 23 November 1997 from the Department of Employment, Education, Training and Youth Affairs ("DEET") to the complainant at her grandparents' address. That letter refers to the complainant's entitlement to Austudy and the form notes that the payment method is to be "To your parent". Her grandfather also produced copies of extracts from a passbook account in the name of himself and his wife for the period August 96 to April 1997 recording receipt of family payments and for the period January 1998 to December 1998 showing receipt of DEET payments in the period January-June 1998.

103 The documentary evidence produced by the grandfather does not itself establish that the complainant was living with her grandparents until June 1998. The grandmother was the applicant for the parenting allowance and she did not give evidence. There is no evidence as to what is required to justify a claim for such an allowance. It may be inferred that the complainant had an entitlement to Austudy regardless of where she was living. Even if it is open to infer that the grandmother was claiming government benefits to which she was not entitled unless the complainant was living with her, that does not prove the complainant was living with her grandparents until mid-1998.

104 Further, the documentary evidence needs to be considered in the context of the prosecution attack on the grandfather's oral evidence. The applicant and his wife also gave evidence. Their evidence and that of the grandfather was largely consistent in relation to the timing of events. For example, they all put the complainant's first contact with the applicant at May 1996. That is significant because it is after the dates on which the first three incidents complained of allegedly occurred. The State challenged the veracity of this evidence, relying on the inherent unlikelihood of that being the case when it was not in dispute that the complainant began living with her grandparents by September 1995 and having regard to the visiting habits and closeness of the two households. Further, each of the applicant, his wife and the grandfather gave evidence that the complainant moved in with the applicant and his family around mid-1998 when she was 16½ years old. The prosecution, in

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cross-examination, challenged their evidence in general, suggesting motive for lying and collusion between them.

105 The applicant also relies on other matters, including evidence of the applicant and his wife that the complainant moved in after the applicant's son moved out in April 1998 (said to be corroborated by documents from the son's school), the grandfather's records of receipt by the complainant of maintenance from her father until December 1997 and the proximity of North Lake Senior Campus to her grandparents' home. The other matters relied on are dealt with in detail by Templeman J and, for the reasons he gives, are of limited assistance to the applicant.

The Fourth Incident

106 The complainant's evidence was that the fourth incident occurred in the cabin of the applicant's crayfishing boat and was the first of a number of occasions when he tied her wrists and ankles. The complainant's evidence-in-chief as to the timing of this event is as follows:

"And at the time that that first tying incident occurred at the bottom of that crayfishing boat where were you living at that time? Do you remember where you were living? I wonder if you remember?---I'm not quite sure.

What's the oldest you could have been at that time?---15.

15. Do you recall what year you were in school when this occurred?---Year 10.

Are you able to say what month of the year in year 10?

---November-December, beginning of the crayfishing season.

When was this incident in relation to the incident you related a moment ago that happened at night time at his house [being a reference to the third incident]?---Afterwards.

They [sic] same days or not?---No."

107 The issue was also addressed in cross-examination as follows:

"What age do you say you were when that happened?---The boat one.

This boat incident?---I'm not a hundred per cent sure.

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Right. It could have been after you had moved in to live with … [the applicant]?---I can't answer yes or no because I'm not quite sure.

So it may have been?---I'm unsure.

You're not sure. Do you remember what year you moved in to live with … [the applicant]?---I was about 14. I don't know what year, sorry.

I'd like to ask you about this other incident then. You've spoken about an incident that happened in the lounge room [being a referenced to the fifth incident]. Do you know whether that was before or after you moved into the house?---Pretty sure after.

And do you remember how old you would have been?---14 or 15."

108 She was also asked in cross-examination whether she remembered if she was at school when the incident happened "or had you finished school". She said she was not 100 per cent sure "but I'm pretty sure I was still at school". The question is ambiguous. It is unclear whether the complainant is being asked whether the incident occurred during a school holiday break or after she left a particular school or after she left school for good. Accordingly, the answer is of little assistance. The complainant's evidence is consistent in chief and in cross-examination. She was unsure of her age or where she was living at the time of the fourth incident, but the oldest she could have been at the time was 15. On her evidence, the fourth incident occurred some time after the third incident (when she was 13 and living with her grandparents) and when she was 15. She does not purport to fix the time of the incident by reference to where she was living.

109 It is also the case that the complainant did not refer to the fourth incident until the last of five written accounts relating to her allegations. They comprise two pages of the complainant's handwritten notes, a handwritten statement to police dated 12 April 2000 and typed statements to police dated 26 May 2000, 15 June 2000 and 28 June 2001. The complainant's evidence was that the five incidents relied on were part of a continuing course of sexual abuse of her by the applicant from age 13. She explained that the police asked her whether she could think of further incidents which she did. Her experience was that after she started talking to the police she slowly started unblocking her mind and letting things out.

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110 The applicant also relied on other matters, in particular, the complainant's failure to refer in her statement to being tied with rags (as well as rope) and some confusion in her evidence at the applicant's first trial.

Analysis

111 The applicant's primary contention is that, upon the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that the fourth (and fifth) incident occurred before the complainant was 16 because it could not be satisfied beyond reasonable doubt that the complainant moved in with the applicant and his family in 1996, alternatively 1997, just after the end of the financial year. I do not accept that rolled up contention.

112 There are two aspects to a witness's credibility; truthfulness and reliability. The jury must have accepted that the complainant was truthful. When considering reliability, the time that has elapsed since the incidents is a relevant factor. By the end of June 2001 the complainant had provided to police details of the applicant's conduct the subject of the charges which she said occurred in the years 1995 to 1997, that is, between six and three and a half years earlier. The complainant gave evidence at trial in 2002 and again in 2004.

113 The variations, discrepancies or inconsistencies between the complainant's out-of-court statements and her evidence at both trials that are relied on by the applicant are not of such a nature or frequency, when considered alone or together with the other matters relied on, as to render the jury verdict unreasonable.

114 In my assessment, it would be open to the jury to be satisfied beyond reasonable doubt that the fourth incident occurred before the complainant was 16 even if they had a reasonable doubt as to the timing of her move to live with the applicant. The complainant, in her evidence, did not link the timing of this incident to her residential circumstances or a specific age save that the oldest she could have been was 15. The circumstances of the incident would make it objectively more memorable, it being the first time she was bound.

115 In any event, the documentary and other contemporary evidence relied on by the applicant does not itself establish when the complainant moved in with the applicant and his family. The complainant explained that she continued to use her grandparents' address after she had moved out. There is nothing inherently improbable in her explanation. When

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this Court comes to consider the apparent logic or inherent improbabilities, it must do so in the context of the complainant's life experience which lacks the continuity and security perhaps more typical of an earlier time.

116 The contemporary documents, established facts, inherent probabilities and variations or discrepancies in the complainant's evidence are not such as to justify this Court setting aside the jury's verdict. I am satisfied that it was open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt that the fourth (and, indeed, the fifth) incident occurred before the complainant was 16 years old.

117 The applicant also relied on questions asked by the jury as indicating concern as to whether the complainant was under 16 at the time of the fourth incident and submitted that the trial Judge's responses could not properly resolve those concerns. The questions are set out in the reasons of Templeman J and it is unnecessary to repeat them here. This contention is parasitic in the sense that it goes nowhere if, as I have concluded, it is open on the evidence to be satisfied to the requisite standard that the fourth incident occurred before the complainant was 16. In any event, I agree with Templeman J that the questions indicate the jury was addressing relevant issues (and evidence) and any concerns were subsequently resolved, as indicated by the unanimous verdict.

118 For these reasons I conclude that it was open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt that the applicant was guilty of the offence charged.