Dark v The State of Western Australia - [2024] WASCA 163

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   DARK -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 163
CORAM:   BUSS P
VANDONGEN JA
DALTON AJA

HEARD:   15 OCTOBER 2024
DELIVERED          :   23 DECEMBER 2024
FILE NO/S:   CACR 81 of 2023
BETWEEN:   MICHEAL RICHARD DARK
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   MASSEY DCJ
File Number            :   IND 11 of 2022

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of aggravated sexual penetration without consent - Whether the verdict of guilty was unreasonable or cannot be supported having regard to the evidence - Whether the verdict of guilty for the circumstance of aggravation is unreasonable or cannot be supported having regard to the evidence

Legislation:

Criminal Code (WA), s 325

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	S Auburn
Respondent	:	G N Beggs

Solicitors:

Appellant	:	Sharon Auburn Lawyers
Respondent	:	Director of Public Prosecutions (WA)

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

Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 307
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 599
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123
R v Soloman [2006] QCA 244

JUDGMENT OF THE COURT:

This is an appeal against conviction. The appellant was found guilty by a jury on a charge that he sexually penetrated the complainant without her consent (penetrating her vagina with his fingers). There was a circumstance of aggravation on the indictment: that the offence occurred in circumstances which constituted an aggravated home burglary. The jury found the appellant guilty on the charge of penetration, and found that the circumstance of aggravation had also been proved beyond reasonable doubt.
The notice of appeal asserts that the verdict of guilty was unreasonable in two respects: firstly, in relation to the act of sexual penetration (ground 1), and secondly, in relation to the circumstance of aggravation (ground 2).
The grounds of appeal and written submissions in support were prepared by competent senior counsel. That counsel did not appear at the hearing of the appeal, and midway through the hearing, the appellant (via video) terminated the retainer of counsel who did appear. The Court granted the appellant leave to file further written submissions, which he did on 29 October 2024. These further submissions emphasised matters which the appellant submitted 'undermined the complainant's credibility such that a jury must have entertained a reasonable doubt of the Defendant's guilt'. Those matters are dealt with as part of ground 1. The further submissions also sought to impugn the way the trial was run below. These submissions went to matters outside the grounds of appeal and are dealt with under the heading, 'Additional matters' below.

Overview of cases below

The State case was that the appellant and complainant had been friends since high school. At the time of the offending they were in their mid‑30s. The complainant had a boyfriend (TJ) and lived with her two young children. On the weekend of the offending, TJ had gone to Perth for a wedding, and her eldest child was away on an interstate visit. That left her at home with a baby. An arrangement was made for the appellant to visit the complainant and he did, arriving around 8.00 pm. She drank two or three standard drinks over a period of about six hours during the appellant's visit. During the course of the evening the appellant made sexual advances to the complainant; they were rebuffed. This caused the appellant to become angry and he left.
The CCTV at the front of the complainant's home showed that the appellant left at 2.31 am. It was common ground that he lived 20 minutes away. He is shown on the CCTV as returning to the complainant's house at 3.43 am. Although he had left wearing a tracksuit and shoes, he returned barefoot, wearing only a pair of shorts. The key to the complainant's house had been left in the front door. The appellant used it to open the front door and entered the house.
The complainant was asleep in her bed by this stage. She awoke to find that someone was in her bed, half on top of her, kissing her ear and vigorously penetrating her vagina with their fingers. She left the bed and turned on the light. She recognised the appellant, took her phone, and locked herself in her bathroom. She had a shower and then rang her father. She made a recent complaint to her father. Her father told her to ring the police, which she did. In the meantime her father rang the appellant and told him to leave the house. At 4.01 am the CCTV at the front of the house shows the appellant lighting a cigarette outside the house and then leaving. At 4.16 am police arrived. At a later time that morning the appellant rang TJ and made a recent complaint to him.
The appellant gave evidence at the trial. He said that his relationship with the complainant had been platonic until she broke up with a previous boyfriend in February (the offending occurred in December). From March their relationship began to be sexual. In about August the complainant began a relationship with TJ. TJ and the appellant disliked each other. At about the time the complainant took up with TJ, the appellant was working away and had little contact with the complainant. On one or two occasions after she had formed a relationship with TJ, the complainant behaved in a sexual way towards the appellant.
The appellant attended at the complainant's home on the night before the offending. He drank a little, but she drank a lot. She behaved in a physically intimate way with him. She wished to go shopping in a nearby town the next day. She suggested he accompany her and that they stay overnight. He needed some clothes from his home in order to go away with her the next day; he also needed his phone charger. That is why he left and then returned to the house. During the evening the key had been left in the front door of the house so that they could both access the house after going outside. The front door had a deadbolt and could not be opened from the outside without a key. He returned to his house and then came back to the complainant's house. The key was still in the front door and he used it to go in. The complainant understood where he was going and why. She instructed him to leave the key in the front door when he left at 2.31 am so that he could use it to open the front door when he returned.
When he returned, he went to the complainant's bedroom. She was still awake and made sexual advances to him. He rejected her. She became annoyed and went to have a shower. The first indication he had that anything was badly amiss was that her father rang him up and asked what was going on.

Ground 1

As to ground 1, the appellant attacks the complainant's evidence on two bases. First, it was said that tests carried out during a forensic examination on the morning of the offending showed that the complainant must have been very intoxicated during the evening and early morning. Objectively then, she must have given false evidence as to the amount she had drunk through the evening. This damaged her credibility. Secondly, it was said that any reasonable jury must have found that the complainant lied concerning intimate videos of herself in the appellant's possession. The complainant acknowledged making such videos and sending them to TJ. She denied sending them to the appellant; so did TJ. The appellant produced them at trial. His evidence was that the complainant had sent them to him. He did not say when, and did not produce any documentary evidence from his phone or other electronic device to show that this was so.
With those two arguments in mind, we turn to consider all the evidence which was before the jury.

The State case

The complainant's evidence

The complainant said she had known the appellant since she was 16; he was a couple of years older than her. They were 'platonic friends'. The complainant said she had never had 'sexual intercourse of any sort' with the appellant. They were members of the same sporting club. The appellant knew her father quite well and had worked with him at some point. The appellant would call her his little sister. She had seen less of the appellant after taking up with TJ, because the appellant did not like TJ.
On the day preceding the offending, TJ had gone to Perth for a wedding, and her eldest child was visiting interstate. Her baby was teething and she was very tired as she had not been getting enough sleep as a result of this. Also, TJ had telephoned her at 4.00 am that morning and she had been awake since that time. The appellant telephoned her at about 5.00 pm. She was going to a friend's housewarming. He asked if he could come over to her house after that because he was feeling depressed. The appellant offered to help her move a trampoline which a storm had blown into the house. She agreed.
The appellant brought a bottle of Jack Daniels and some Coca Cola. At about 8.00 pm she let him into her house. During the course of the evening she did not have much to drink because she was overtired. She had a couple of vodka and soda water drinks and made herself a drink with some of the appellant's Jack Daniels and coke. She had about three drinks over a six hour period. She did not feel intoxicated, but she did feel tired.
The front door of her house had a deadbolt and it was necessary to have a key to open it. That evening, 'we just left the key in the door because [the appellant] just went out and came back inside [when] having cigarettes'.
The appellant made comments to her that she should start an OnlyFans page. He offered to be her 'pimp'. He often spoke like this. She said she did not want to talk about it again, so he dropped it. At some point the appellant asked for a hug, but she refused. Then as she walked past, he grabbed her and pulled her onto his lap. She 'jumped off and pushed him off'. She said, 'don't'.
During the evening TJ called and wanted to know why the appellant was in her house. The appellant snatched her phone away from her during this conversation. The appellant used her phone to speak to TJ and they had a heated argument for about 10 minutes. When the appellant gave the phone back to her, TJ asked her to make sure the appellant left soon.
Together she and the appellant moved the trampoline. At some point the baby woke needing a bottle. The complainant took the baby and the bottle to her bedroom and lay in her bed with the baby. She was tired and so she fell asleep. The appellant came into her bedroom and yelled at her, 'What are you doing? You've got me over … why are you sleeping?'. She explained that she was tired and wanted to go to bed soon. They went into the lounge room.
The appellant said that he had drunk too much. The implication was that he therefore could not drive. He said that he was going to 'hop in bed next to my goddaughter'. At this point the baby was still lying in the complainant's bed. The complainant told him that he was not going to do that. She went and picked up the baby and put her back in her own room.
When she returned to the lounge room, the appellant looked agitated and annoyed. At that point TJ telephoned again. They had an argument. TJ was annoyed that the appellant was still at the house. During this telephone call the complainant went outside to talk to TJ. When she came back into the house she found that the appellant was in her bed apparently passed out. She then got a blanket and went to the couch to sleep.
After this she heard the appellant 'come storming from the bedroom'. He was angry, rude to her, and then said that he was leaving. He 'grabbed his shoes, stormed out, slammed the door'. She switched off all the lights and went to bed. She was tired and 'maybe' forgot to take the key from the front door. She went to her room and got into bed. She fell asleep.
She awoke smelling bad breath and feeling that someone was kissing and sucking her ear and neck. Someone had their fingers inside her vagina. The motion of the fingers in her vagina was vigorous and painful. She could not breathe properly because the person was 'half on me'. The person was saying 'just enjoy it'. She grabbed her phone and jumped off the bed. Her underwear had been pulled down. She switched on her bedroom light and was horrified to see the appellant.
She ran to the bathroom, closed the door and got into the shower. Very soon afterwards the appellant knocked on the door and asked her what was wrong. He said, 'You've just woken up from a bad dream'. She told him to leave.
Once out of the shower, she tried to telephone her father who did not answer. She then telephoned her mother. They were in another town, some eight hours drive away. When her mother answered her phone, the complainant asked to speak to her father. She told him what had happened. She asked her father to get the appellant to leave her house. Her father told her to call the police. She did. After that, she received another phone call from her father. As a result of something he said to her she denied having taken any drugs. She got upset at this and hung up on her father. She heard the front door slam and assumed it was the appellant leaving the house.
After the police arrived, but while she was still at her house, the complainant received a Facebook message from the appellant which said:
Dude idk wtf is going on one minute you rolled over and started hugging and kissing me and holding my hand then next I'm getting a call from your dad and your in the shower crying or something, I know you were pretty wasted and got up saying you had a bad dream but wtf hey, I'm lost for words.
She was taken through the elements of this message one by one and denied hugging, kissing or holding the hand of the appellant. She denied having any drugs that night and denied having any bad dreams.
The police organised a forensic examination of the complainant.
The complainant called TJ many times (presumably in the early hours) but he did not answer. When he did return her call she told him what had happened.
In cross‑examination the complainant said she was really good friends with the appellant when she was in high school. At times they both moved away from the town where they went to school, but they stayed in touch and visited each other. This contact diminished and for a number of years they did not see each other at all, but they stayed in contact through social media. Two years before the offending the appellant had moved back to live in the same town where they went to school.
At that stage the complainant was in a relationship. Difficulties arose in the relationship, and she saw the appellant more and more. The complainant's relationship ended in February, and she moved into a new house in March or April of that year. This was the house where the offending took place. The appellant would visit and spend time at her house. 'He would rock up unannounced a lot, which was fine'. She did not agree that the appellant would visit five times a week, or that he would sleep at her house on a regular basis, up to three times a week. She said sometimes he visited on one or two nights per week, but he did not sleep at her house. On one occasion he did stay the night because he was too intoxicated to drive home.
She denied that she had asked the appellant to be her baby's godfather, but acknowledged that he used to call himself the baby's godfather.
She had never asked the appellant to massage her. She had never asked him to massage her while she was naked. She sometimes sat on his lap when they hugged, but did not habitually sit on his lap. She denied walking around naked in front of him.
She denied having sexual intercourse on two occasions with the appellant in about May or June 2020. She denied that the appellant would sometimes perform oral sex with her. She acknowledged that the appellant had a good relationship with her father based on work, sporting interests and socialising.
She acknowledged that on one occasion she lifted up her top and allowed the appellant to photograph her breasts; that was because he 'badgered' her to do so. She denied discussing with the appellant her setting up an OnlyFans account. She denied that on a particular occasion, when she accepted she was out with the appellant, she asked him to take nude photographs of her. She denied that she had ever sent an explicitly sexual video of herself to the appellant.
In July or August 2020 she started dating TJ and as a result hardly saw the appellant. She denied kissing the appellant in a sexual way after she took up with TJ.
As to the day preceding the offending, the complainant denied telling the appellant that she would like him to come over and stay the night. She told him TJ was in Perth. The appellant asked if he could come to visit as he was having a bad time with his brother and needed a friend. She told the appellant she was going to a housewarming and would message him when she got home. During this conversation she talked to the appellant about moving the trampoline. He had seen it pushed up against the house by a recent storm and offered to help her move it. That phone call was between 4.00 and 5.00 in the afternoon. When she got back from the housewarming she called the appellant and told him that she was home.
She denied telling the appellant that her father had invited him down to stay at her parents' place for Christmas. She denied telling the appellant that this Christmas her children could stay in the house and she would stay with him in a caravan. She denied asking the appellant to go shopping in a nearby town with her in the morning. She denied suggesting staying the night in the nearby town after shopping.
She denied sitting on the appellant's lap in a bean bag over the course of the evening. She denied taking and posting a Snapchat video of her sitting on the appellant's lap on a beanbag during the course of the evening.
The complainant's account of the appellant taking her phone and talking to TJ at some point in the night was challenged, but she did not resile from it. Her account of feeding the baby a bottle in her bed and falling asleep was challenged, but she did not resile from it. It was after the baby had fallen asleep in her bed, and the appellant had woken her up, that they went outside and moved the trampoline together.
In cross‑examination she reiterated that she did not drink on that evening and was not intoxicated; she then conceded that she had two or three drinks. She measured each standard vodka and soda she made for herself with a little shot glass. She particularly denied that she drank a whole bottle of vodka and drank shots of the appellant's Jack Daniels. Her evidence that the appellant encouraged her to drink more was challenged, but she did not resile from it.
She denied telling the appellant that she loved him and was glad he was there. She denied hugging him. Although he asked for a hug, she refused this and then after that he pulled her down onto his lap and hugged her. She denied she sat in his lap voluntarily. She denied the appellant told her that he hoped she would find someone to love and care for her the way he did. She did not dance with the appellant. She may have played at fighting with him that night and, in that context, said that he sometimes 'pushed the boundaries'. She denied cuddling him on the couch and putting her hands into the appellant's pants. She denied that he put his hands 'up her dress'. She was wearing shorts or pants, not a dress; she never wore dresses.

She denied that the appellant told her that he needed to go to his home to get some clothes and a phone charger in order to go to the neighbouring town the next day. She gave particular reasons for saying that the appellant's phone was not low on charge during the course of the night and early morning. In any case, she had phone chargers at her house which were working perfectly.
She denied that the appellant said he was going out and would be back. She agreed it was about a 40 minute round trip from the appellant's house to hers. She was asleep when the appellant arrived back at her house (at about 3.43 am) and denied a version of events in which she was awake and attempted to initiate sexual activity with him. Further, he did not decline to take part in sexual activity with her, and she did not sit up in her bed and say that she felt as though she had had a bad dream. She did not tell the appellant she thought she had been drugged.
The appellant's trial counsel obtained leave to use sexually explicit video material of the complainant in cross‑examination. First she was shown a series of photographs taken near her house. She agreed that the appellant took the photos of her, and that she was baring her breasts in the photographs. She agreed that she had allowed the appellant to do that. It was only one occasion, and it was after 'a lot of badgering'. These photos were tendered, and it was for the jury to evaluate whether her facial expressions in the photographs indicated she was a willing participant in this enterprise or not.
Two videos were shown to the complainant. They were sexually explicit. After some initial hesitation, she acknowledged that it was her in the videos, and that she made the videos of herself. She denied sending them to the appellant. She said she sent the videos to TJ and no one else. She did not know how the appellant had copies of the videos. It was a matter for the jury to consider whether her initial hesitation in identifying herself in the videos was because she was genuinely unsure, or dishonestly trying to avoid identifying herself.
The complainant was recalled on the application of defence counsel. Video evidence was played which showed that, at least at some stage during the night, she was wearing a dress. Her response was that she might have changed her clothes at some stage during the evening.
The complainant's father recalled the telephone call he got from his daughter on the early morning of the offending. Her tone of voice was 'a bit panicked and really concerning'. He said, 'I could hear in her voice she was upset'. The complainant told him that the appellant had been at her house that evening. He had left, and then he had come back and got into her bed where she was asleep and assaulted her.
He asked the complainant where she was. She said she had locked herself in the bathroom. He was in a town which was about eight hours drive away. He told her to immediately ring the police, and she agreed to do that.
He then rang the appellant. He knew the appellant through work and sporting pursuits. The appellant told him that he was at the complainant's house. He sounded very calm. He informed the appellant that the complainant, at his direction, was ringing the police and that the appellant should leave.
He tried to ring the complainant again but could not get a signal. At about 6.00 am that morning he began driving from his location to the town in which the complainant lived. At some point he received a text message from the appellant asking him to come and see the appellant before going on to see the complainant. He did not do this. He went straight to the complainant's house.
When he spoke to the complainant in person she told him that the appellant had been at her house earlier the preceding evening. She was nervous because he was staying there longer than she was comfortable with, and she asked him to leave. He did leave. Then he came back when she was asleep; went into her room, and 'put his hands between her legs'. She was able to get into her bathroom and lock herself in and that was when she rang him.
In cross‑examination he agreed that he had thought the appellant was a genuine friend to him. He doubted that he had asked the appellant to come and stay with his family, either over Christmas, or generally. He thought that the appellant and complainant were close friends. He did not know whether or not the appellant ever stayed overnight at the complainant's house.
It was put to him that he spoke to the appellant twice in phone calls six minutes apart immediately after the offending. He could not recall. When confronted with telephone records which showed there were two calls six minutes apart, the complainant's father said that he did ring the appellant a few times to try to find out what was going on. He had no recollection of saying to the appellant that the complainant thought she had been drugged.
He did recall that when he was driving to see the complainant he sent a text message to the appellant asking him to telephone. He recalled that they had a telephone conversation. He denied that during that conversation he said words to the effect that every time the complainant drinks she causes problems, and that the complainant sounded 'off her face' when she rang him. He vehemently rejected the proposition that the appellant told him that the complainant had attempted to initiate sexual relations between herself and the appellant.
A forensic scientist was called. He had received samples and swabs from police after the complaint in this matter. The laboratory found a mixed DNA profile on a pair of underpants belonging to the complainant. Her DNA was identified on the underpants but it was not possible to interpret the other DNA profile found, other than to say that there was material consistent with having originated from 'at least three male individuals'. The appellant could not be excluded as a possible contributor to the swab taken from the outer waistband surfaces and the inner waistband surfaces. There was not sufficient information from the DNA testing to draw any reliable conclusions relating to possible contribution from the appellant to the material found on the inside crotch surfaces of the underpants.
Swabs from the complainant's neck and ear showed a mixed DNA profile, but the number of contributors could not be reliably determined, and the sample was not suitable for further interpretation. The scientist agreed that having a shower could wash away saliva (and DNA) which was otherwise present on skin. There was no evidence to support the appellant's DNA being a contributor to results obtained from swabs of the complainant's vagina and vulva.
A sample taken from the appellant's right hand showed a mixed DNA profile that was not suitable for further interpretation.
The appellant submits that the DNA evidence did not support the State case. That may be accepted. There was no challenge to that part of the summing up that dealt with this evidence. This is not a reason that the State case was bound to fail. Nor was the absence of any proven physical injury to the complainant.
As well, there was a scientific analysis document tendered by consent. It recorded a forensic examination of the complainant's blood alcohol at 0.052% and urinary alcohol at 0.101%. There was paracetamol in her urine but no other drugs were detected. The document is a little unclear, but it seems that, at worst for the complainant's credit, the blood sample was taken at 8.07 am on the morning of the offending and the urine at 7.42 am that same morning.
TJ, the complainant's ex‑boyfriend was at his mate's wedding on the day of the offending. He had known the complainant for a long time, and been going out with her for approximately six months at the date of the offending. She sometimes sent him messages with sexual content on social media. He never gave any of these videos to friends or family, and in particular, never gave any to the appellant.
On the night of the offending he spoke to the complainant on the telephone and the appellant took the phone and 'stated some stuff about … him being her friend and stuff and whatnot'. His own view was that the complainant and appellant were best friends but he did not think there was any sexual aspect to their relationship. He stayed in contact with the complainant until about 2.00 am that morning either by talking to her on the phone or by sending social media messages. He then woke up to a lot of missed calls. He rang the complainant and she was in hospital. She told him that she had gone to bed and woken up with the appellant on top of her, fingering her. She said she had jumped up and locked herself in the bathroom.
In cross‑examination he said that he and the appellant did not like each other. He thought that it was odd that the appellant was at the complainant's house at night to move a trampoline. He thought he was likely there for some other purpose. When he telephoned the complainant, he questioned her about why the appellant was at her house. The complainant sounded intoxicated. During the telephone conversation he had with the appellant that night the appellant told him 'I'm always going to be there. You're going to have to get used to me'. He had told the police in his statement that while the appellant was speaking on the telephone to him the complainant had said to the appellant 'He thinks we're rooting' in such a way that he heard her.

The defence case

The appellant's evidence

The appellant grew up in the same town as the complainant and they met in their late teens in high school. He had lived in the town for the majority of his life, although at times he had lived elsewhere. They had always stayed in contact with each other; sometimes when he lived away they were not in really close contact.
He had returned to that town about two years prior to the offending. Their main form of communication was social media. About 12 months prior to the offending she started to lean on him because her relationship with her previous boyfriend was starting to fall apart. Her previous boyfriend had worked away and there were times that she needed help. The complainant would talk to him about how her relationship with her previous boyfriend was not working out. She went into great detail about experiences with other previous boyfriends. During the course of these conversations they became very close, intimate and affectionate. There were lots of hugs. They spent time going for lunches and 'just chilling on the couch watching movies and stuff'. In the six months before the alleged offence he was seeing her about five times a week, nearly every day. This was after she had ended the relationship with her previous boyfriend. He would visit the complainant's house at her invitation, but also would visit unannounced 'on the rare occasion'.
He had a close relationship with the complainant's baby. The complainant asked him to be the baby's godfather. No one else knew about this because he wanted 'a bit of time to consider it'. It was 'a pretty big deal' and 'a big thing to consider'. He had told the complainant that 'we need to keep it to ourselves for now'.
During the six months before the offending the appellant would stay the night at the complainant's house; he thought about three times a week. They would play games, watch movies and sit on the couch and cuddle. On a couple of occasions she asked him to massage her. On one of those occasions she was completely naked on the couch.
He thought there had always been some kind of sexual aspect to their relationship, or at least since 2017 when, 'she was sitting on the bench and I was putting motorcross boots on her and like it was like just a really intimate connection'.
From May 2020 a form of sexual relationship developed between them; there was cuddling, foreplay and sexual intercourse in her bedroom. That was the nature of their relationship:
… she would be getting changed in front of me. She would be naked in front of me. We had sex. We foreplayed. We had done all sorts of other things. It was just a very comfortable relationship. It's a very unique relationship. It's not one that I've had with very many people.
She asked him to help her set up an OnlyFans account because, as a single mother, she needed the cash. He did not know much about OnlyFans but he supported her.
He did consider whether or not to have a more orthodox relationship with the complainant but, 'like she's pretty crazy'; there was too much drama for him, 'I'm a pretty simple person. I like to keep myself as limited as possible to explosive stuff'.
He thought they had only had sexual intercourse twice. He was not really interested in having penetrative sex with her, 'It wasn't the type of thing I was pursuing out of her. I wasn't actively seeking a sexual relationship with her. My relationship with her was purely based on ‑ on the trust and the love that I had with her'. As well, he had erectile dysfunction.[1] He didn't really care about sex; 'It's not a big deal to me'.
[1] In cross‑examination, the appellant said that after a car accident he suffered from HSDD. He explained that this meant 'hypo sexual desire disorder' and that as part of that, he had erectile dysfunction, but also generally disclaimed an interest in sex.
After her relationship with TJ began, the appellant stayed in contact with the complainant over social media. He began working again and his physical contact with her was reduced. He still saw the complainant, and one day when he was at her house, at the same time as TJ, the complainant kissed him a sexual way. Once he was out with the complainant and she asked him to do a nude photo shoot for her. This did not eventuate as her father arrived.
He had a good relationship with the complainant's father and had worked with him at one stage. In the months leading up to the offending he would drop in and visit the complainant at her place of work.
On the day before the offending the complainant's father had telephoned him and invited him to spend Christmas with their family at another town.
Later that day he sent the complainant a message 'Want to get fucked up?'. She asked what he meant, and he replied 'Get on the beers'. She rang and invited him to stay the night because she had had a bad day; TJ had rung her at 4.00 am and they had argued. She had to go to a housewarming party, but she would let him know when she got back home. He did not want to stay the night because she had indicated she was having relationship problems with TJ. She called him about 7.30 pm that night. He said '…I went to my alcohol cabinet above my fridge and I looked at a bottle of Jacks and I grabbed that out and I was, like, I guess I'm going to go up there'.
The appellant submitted that the complainant would never have asked him over to her house when her boyfriend was in Perth if she was tired, and if she did not want him to stay the night. First, this submission assumes that the jury found she did ask him over when his own evidence was that he initiated contact. Secondly, it by no means inevitably follows from an invitation to the complainant's home that she wished him to stay the night. His submission is not compelling.
He drove to the complainant's house. He was wearing a jumper and a tracksuit because he kept his house very cold with air‑conditioning. The complainant's house was kept very cold with air‑conditioning too. The complainant was sitting in her car outside her house waiting for her baby to fall asleep. They went inside the house. The trampoline was blocking the walkway to the front door. He did not know that the trampoline had blown into this position before that point in time; they had had a wind storm a couple of days earlier.
He saw the complainant unlock the door and saw that she had left the key in the lock on the outside of her front door. She had taken the key off her key ring in order to do this. This was unusual for her to do. The key stayed in the front door so that he could go outside to smoke.
The complainant put the baby to sleep and he began drinking. Once the baby was asleep the complainant also began drinking. She told him about her relationship with TJ. He told her that her Dad had invited him for Christmas. She suggested that they take the caravan, and that they stay in it. The kids could stay in her brother's house and she would stay with him in the caravan.
She asked him whether he wanted to go to a neighbouring town in the morning to go shopping for Christmas. She suggested that they stay the night at a hotel in that town. He tried to book a hotel, but his phone was pretty much flat. He asked the complainant for a charger, but she could not find her charger; then she did find it, but it did not really work. Coincidentally, he took a screenshot on his phone at that time which showed that the phone had low battery. This screenshot was tendered as an exhibit in the trial. Also tendered was a video which the appellant took of himself and the complainant during the night.
During the night the complainant sat on bean bags with him and had 'her legs all over me'. She was being 'very flirty, playing with my earhole and being very sexual'. She sat on his lap and she made a short video of them. She put this video on social media and then TJ contacted her because he had seen it.
The appellant said that when TJ rang he spoke to him. He denied taking the phone from the complainant to do so. Instead, the complainant put it on speaker and placed it on the kitchen bench so that there was effectively a three‑way conversation. The appellant's counsel asked him whether:
At any point in time did you take the phone and go and engage ---? --- No
--- in a conversation with [TJ]? --- The phone - no. I've never been in possession of the phone. The phone stayed on the bench on speaker.
He described the complainant as being erratic during this conversation: 'it was a bit of a game to her'. She said at one stage 'He [TJ] thinks we're rooting'. In response he told TJ that they were just good mates. He said the complainant made hand signals to shut this part of the conversation down because she wanted to keep the relationship between them their business, not TJ's.
At some point the baby woke and the complainant went into the baby's room and fed her. She came back a few minutes later. The baby was not in the main bedroom.
They moved the trampoline about 1.00 am. During the course of this the complainant fell over and hit her head. She said she had a lump on her head as a result. During the course of this there was 'play fighting' which included some sexual touching by both of them. After that they just kept drinking and smoking and chatting. The complainant drank the most part of a bottle of vodka and towards the end of the night drank some of his Jack Daniel’s.
At one point they were both outside because the appellant was having a cigarette. The complainant had become a little sad, and she said to him that she loved him and was glad he was there. He gave her a hug and said 'I want you to be happy. I want you to find somebody who loves you and cares for you, loves you like I do and treats you like I do, but is not me'.
The appellant asked the complainant whether they were still going to the neighbouring town the next day. She said that they were. He said that he would need to go home and get a change of clothes and get a charger cable for his phone. When he left, the complainant shut the door behind him. She left the key in the lock on the outside of the door and told him she was going to leave it there for him to get back in when he returned. He said that he was just going to get his stuff and would be back soon. He asked whether she would be awake when he got back, and she said she would.
Throughout the night the appellant noticed that the complainant's mood changed erratically. For this reason he did not really want to return to her house after having left, but he felt obliged to. He thought that the complainant was 'just not stable'. However, he decided he would go back because he felt a sense of obligation towards his friend.

When he returned to the complainant's house, the key was still in the front door. He used it to enter. Some lights were still on. He walked to the complainant's bedroom. She was lying on the bed in a foetal position. She was not asleep. When she saw him she said, 'babe, you're back' and he said, 'yes, I was just getting my stuff'. Then he lay down beside her and played a game on his phone, 'a little adventure explorational kind of game where you build walls and stuff'.
The complainant began making physical and sexual advances to him. They kissed and she moved his hand towards her vagina, but at that point he objected. His reason was that, 'I've never had an STD and I didn't want her to be ‑ I didn't want to be worried about getting one from the type of people that she had been with'. She protested at his refusal, calling him 'mean'. Then she moved to the end of the bed, sat up and said, 'Oh, my head hurts. I feel like I've just had a bad dream'. He continued to play his phone game, and then she went to the bathroom. At this point he went outside for a cigarette. He received a phone call from the complainant's father who said that the complainant was upset in the bathroom. He offered to go and check on her and the father asked him to do so. He went to the bathroom, knocked on the door and the complainant said 'I'm just going to have a shower’. The appellant thought 'everything was cool'. He went back outside and finished his cigarette.
The complainant's father telephoned him again five minutes later and passed on the complaint that he had been 'fingering' the complainant. He was in shock and did not know how to deal with this accusation. The complainant's father told him that police were coming and that he should leave. The complainant remained in the bathroom. Before he left he told the complainant to get in touch with him 'when you figure your shit out'. He sent her a message when he got home. He identified the message which had been tendered during the complainant's evidence, see above.
The appellant identified a document containing screen data from his phone. It showed two telephone calls from the complainant's father six minutes apart, and attempts by the complainant's father to ring him later in that day. There was also a text message from the complainant's father asking the appellant to ring him. At some point during the morning he did ring the complainant's father and told him that he had been charged. The father said that he could not believe this and said, 'Every time [the complainant] drinks she has a tendency for trouble'. He described his daughter as 'just a shitshow' when she had rung him earlier in the day. The appellant said he told the complainant's father his version of events. The complainant's father said that he would visit him 'when I get back' and asked the appellant to send his address. So he did send his address, and waited, but the complainant's father did not show up.
In cross‑examination it was suggested to the appellant that his ideas of romance about the complainant were all in his head. The appellant denied this and gave some vague and argumentative evidence which, on the transcript at least, seems quite unconvincing. He denied that he was trying to paint a romantic picture of their involvement prior to the night of the offending in order to explain his actions on that night.
His assertions that he had been asked to be the baby's godfather were challenged. This produced the same type of vague, argumentative response.
Cross‑examination consisted of many questions giving the appellant the chance to repeat his version of events of the night and early morning prior to the offending. He did, along the way denying the complainant's version of events.
The prosecutor asked questions about the content of the phone conversation between the appellant and TJ, on the night before the offending. The appellant volunteered, non‑responsively to the line of questioning, 'I didn't send the videos of [explicit sexual content] to myself or anything either'. This had not been suggested by the prosecutor, or by the complainant in her evidence. The prosecutor then asked whether the appellant 'got access to her phone and got them off her ---'. The appellant replied that the complainant had sent them to him and that 'I've never had access to her phone, no'.
The prosecutor put to the appellant that the time between him leaving the complainant's house (2.31 am) and his return at 3.44 am did not tally with the idea that he went home (20 minutes drive), waited 10 to 15 minutes at home, and then drove back. The appellant said he spent some time between 2.31 am and 3.44 am charging his phone and playing a game on his phone. It was put to him that his account of his leaving and returning to the complainant's house made no sense: the purpose of the trip was said to be to get clothing, but when the appellant left at 2.31 am he was wearing a tracksuit; he returned wearing only shorts and not carrying any clothes. The appellant said he had other clothes in the car. The appellant was questioned by the prosecutor as to why he left the key in the front door when he drove back to his home. It was put to him that it was unsafe because anybody walking past could have gone into the house. He replied that this was the complainant's 'instruction'.
At times the appellant made sarcastic answers to challenges in cross‑examination which conceded the correctness of the prosecution's case. This cannot have helped the jury's understanding of the evidence, or persuaded them of his reliability.

Unreasonable verdicts

The test in M v The Queen[2] is well known:
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.
[2] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493.
The appellant conceded that the evidence given by the complainant was sufficient to prove the offending alleged, but, as set out above, challenged the complainant's credit. The submissions filed on his behalf relied upon the approach described by the High Court in Pell v The Queen:
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment ‑ either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence ‑ the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt. [3]
[3] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123, [39].
Here the jury was properly instructed in terms of Liberato v The Queen,[4] and it is a necessary implication from their verdicts of guilty that they did not find the appellant's evidence persuasive, and that it did not cause them to have a reasonable doubt as to his guilt. That does not, of course, mean that the jury rejected everything the appellant said in evidence, nor that they accepted everything the complainant said. A jury may make findings based on a moderated version of the evidence that is not entirely in accord with the evidence of any particular witness.[5] However, the verdicts of the jury do mean that the jury rejected the appellant's evidence insofar as it was necessarily exculpatory.
[4] Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507.
[5] R v Soloman [2006] QCA 244.
As noted above, two matters were relied upon by the appellant in support of his unreasonable verdict ground as to the sexual offending. First, the appellant says that the complainant must have given false evidence as to the amount of alcohol she consumed, when regard is had to the blood alcohol reading taken as part of the police forensic examination. The evidence was that the complainant was a small woman, 5'4" and petite. The evidence given by TJ was that the complainant sounded drunk when he spoke to her on the telephone. At best for the appellant, the complainant's blood alcohol reading was 0.05% at about 8.00 am on the morning of the offending. Again, at best for the appellant, the concentration of alcohol in the complainant's urine about 25 minutes before that was over 0.1%.
The jury was offered no scientific information as to how to use these figures. Given the amount of publicly available information in relation to blood alcohol readings, we are prepared to accept that the evidence showed that the complainant had consumed more than three standard drinks in the six hour period between, say, 8.30 pm and 2.30 am. Let it be assumed that the jury could also come to such a conclusion on the evidence. In circumstances where the complainant had been detailed and emphatic in her assertions about how little she drank that night, the jury certainly had grounds to consider whether or not her evidence in this regard was unreliable, and perhaps deliberately tailored to downplay the amount of alcohol she consumed.
What to make of the complainant's unreliability, or lack of creditworthiness, on the topic of her alcohol consumption was a matter for the jury. Even if the jury found that she had deliberately downplayed her alcohol consumption, it did not mean that 'the jury must as distinct from might, have entertained a doubt about the appellant's guilt'.[6]
[6] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 596 ‑ 597 [113], cited in Pell v the Queen [2020] HCA 12; (2020) 268 CLR 123, [44].
A jury finding that the complainant's alcohol consumption was more than she stated, even significantly more, in the hours prior to the offending does not bear directly on the complainant's evidence establishing any element of the offending. However, if the jury concluded that the complainant was drunk, they might have considered whether that affected her memory of events; whether someone who was drunk would be more likely to consent to sexual activity, or would, in the early hours of the morning be more likely to fall asleep as the complainant said she did. Even if the jury found that the complainant had deliberately given false evidence minimising her alcohol consumption, they did not have to reject her truthfulness as to the offending.
The second challenge to the credibility of the complainant is in relation to her having sworn that she never sent intimate videos of herself to the appellant. It was beyond doubt that the appellant had the videos in his possession, but on the evidence of the complainant, and TJ, he had not received the videos from either of them. The appellant asserted that the complainant sent him the videos, but produced no proof of this in his evidence, such as a message from the complainant on social media or email. The appellant's submissions in relation to this evidence were:
There was no evidence before the jury that the Appellant had ever accessed the complainant's phone where the videos were stored or that he had the technical information to enable him to access to the complainant's phone (in terms of knowing her PIN or any other security feature).
Accordingly the jury ought not have been able to draw the inference against the Appellant that he had in some way accessed the videos without the complainant's permission.
They were instead obliged to, applying His Honour's directions appropriately, draw the inference that the complainant had sent those images to the Appellant and that in those circumstances her evidence about the platonic nature of their relationship was incorrect and her credibility as a witness was critically damaged.[7]
[7] Appellant's written submissions on appeal, par 18 ‑ 20.
In fact there was evidence before the jury that on the evening before the offending the appellant had taken the complainant's phone during her conversation with TJ. On the complainant's evidence, the appellant had the phone for about 10 minutes. Interestingly, the appellant's evidence about that was different; he said that the phone was on speaker and placed on the kitchen bench. The jury was also entitled to have regard to the odd, non‑responsive denial of access to the explicit videos which the appellant gave in his evidence ‑ above. It will be remembered that the subject matter of the cross‑examination at the time of the non‑responsive answer was the conversation on the telephone between the appellant and TJ.
The jury did not need to find that during his conversation with TJ the appellant accessed the complainant's explicit videos. They were entitled though to find that because the appellant was often in the complainant's home, and because they were often using their phones in each other's company,[8] there was opportunity for the appellant to pick up and access the content on the complainant's phone while it was unlocked.
[8] The evidence from both the appellant and the complainant at trial was that apart from two telephone conversations with TJ that night, the complainant and TJ were messaging each other throughout the night. At some stage the complainant created a video or selfie of herself and the appellant sitting on a beanbag and posted it on social media.
It seems to us that, contrary to the appellant's submissions above, there was an available inference that the appellant could have accessed the complainant's phone without her permission while it was open, on any number of occasions when they were together. Again, contrary to the submissions, the jury was not compelled to draw the inference that, contrary to her testimony, the complainant had sent the images to the appellant.
There are further difficulties with this part of the appellant's argument. Even if the jury was uncertain as to whether the complainant sent the images to the appellant, or found that she had done so, the relevance is said to be that it casts doubt on her evidence that her relationship with the appellant was purely platonic. Even if the jury made a moderated finding of fact, to use the words from Soloman above, that at times the relationship between the complainant and appellant had sexual aspects to it, and that the complainant had downplayed, or been dishonest about that in her evidence, it did not mean that the jury was obliged to reject her evidence about the sexual offending which was before them.
On the appellant's submissions, at their highest, it was open to the jury to find that the complainant had been deliberately dishonest in her evidence, downplaying her consumption of alcohol in the lead up to the offending, and failing to reveal a sexual aspect to her long‑standing friendship with the appellant. If the jury came to this conclusion, they might also conclude that the complainant had tailored her evidence in this way because she felt it strengthened her case against the appellant. Even so, these conclusions did not mean that the jury must have had a reasonable doubt about her evidence of the offending.
There was strong objective evidence in favour of the State case. The CCTV footage from the front door of the complainant's house showed the appellant leaving the house at 2.31 am dressed in a tracksuit, and with shoes on. At 3.43 am he is shown returning to the house barefoot and wearing nothing but a pair of shorts. Seventeen minutes later (4.01 am) he leaves the house again.
The appellant's phone data shows that he received a 39 second call from the complainant's father and then six minutes later, a call lasting one minute eight seconds. Although the time records in the appellant's phone data are not an exact match for the time recordings on the CCTV, it can be inferred that the seven minutes between the first of those calls and the end of the second of those calls was at the end of the 17 minutes during which the appellant was at the complainant's house.
The visit to the complainant's house thus lasted 10 minutes before the complainant's father rang the appellant. In this time there was credible corroborating evidence that the complainant made a distressed phone call to her father.
All this evidence was strongly consistent with what the complainant said happened after the appellant returned to her house at 3.43 am.
The evidence of recent complaint and distressed condition from the complainant's father was also strong evidence which bolstered the complainant's credit about the offending. The credit of the complainant's father was not attacked in any way which would undermine the bolstering effect of his evidence. His evidence was that at 6.00 am that morning he began an eight hour drive to the complainant's house. This gave strong support to the idea that he did in fact perceive the complainant to be very distressed when she made telephone calls to him between 3.43 am and 4.01 am.
Apart from this solid supportive evidence of the complainant's account of the offending, the jury was entitled to have regard to the long‑standing friendship between the complainant and the appellant, and the friendship between the complainant's father and the appellant, in considering whether the complainant would lie about the facts of the offending. Such a lie was very serious; it would necessarily destroy her friendship with the appellant, and the friendship between her father and the appellant. The jury might well think that lies about alcohol consumption, or occasional sexual relations with the appellant, were in a very different category.
In our view the appellant has failed to show that the jury must have had a reasonable doubt about the complainant's evidence of the offending, to use the words from Pell, and failed to show that on the whole of the evidence it was not open for the jury to be satisfied beyond reasonable doubt as to guilt, to use the words from the test in M.

Ground 2

The jury's verdict was also said to be unreasonable insofar as it related to the circumstance of aggravation. The appeal ground was not to impeach the jury verdict so far as it related to actual consent to enter the house at 3.43 am. The submission was that the jury must have had a reasonable doubt about the issue of honest and reasonable, but mistaken, belief as to consent to enter the house at 3.43 am.
The evidence was that the appellant attended the complainant's house frequently before she began a relationship with TJ, but only on a few occasions after that. The relationship with TJ had begun in August, and the offending took place in December. Even before the relationship with TJ, the evidence was that the appellant would normally attend at the house after an arrangement had been made to do so, although he did attend unannounced at times. There was certainly no evidence that he would attend unannounced at extraordinary times, such as occurred here. Thus, if there was any room for an honest and reasonable mistake about his licence to enter the complainant's home at 3.43 am on the date of the offending, the factual origins for that honest and reasonable belief must be found in the circumstances of the appellant's visit beginning at about 8.00 pm the previous day.
The evidence was uncontentious that the appellant's arrival at the house at 8.00 pm the previous night had been pursuant to an arrangement whereby he would visit, but not until the complainant had returned home from her housewarming party and contacted him. The appellant's evidence was that the complainant had invited him to stay the night. His evidence was that such an arrangement was not unusual before the relationship with TJ began, but there was no evidence that he had done so since the relationship with TJ began. TJ was away, and the complainant had told him there were difficulties in her relationship with TJ. The complainant's evidence was that there was no arrangement for the appellant to stay the night. Even if the jury was uncertain about this matter, the appellant had not stayed the night: he left at 2.31 am in the morning. The circumstances of his leaving were contentious on the evidence.

The evidence was that the key to the front door was still in the front door when the appellant left the house at 2.31 am, and when he returned to the house at 3.43 am. While the appellant gave evidence (which the jury might well have thought was over‑elaborated) about how there was an express arrangement for the key to remain in the front door so that he could use it to re‑enter the house, the appeal is on the basis that this evidence was rejected and there was no express arrangement for the appellant to re‑enter the house.
On the complainant's evidence there was no room for an honest and reasonable mistake. She had a young child who was teething; she had been awake since 4.00 am that morning, and was tired. She had told the appellant that she had been up since 4.00 am; she had told him she was tired and wanted to go to bed to sleep. She had rebuffed the appellant's sexual advances and he had left in an angry mood. She had fallen asleep while the appellant was still at the house, and the jury was entitled to think, had consumed quite a quantity of alcohol. In these circumstances there could be no basis for an honest, much less a reasonable, belief that the key remaining in the front door constituted some type of standing invitation to the appellant to re‑attend the house in the early hours of the morning.
The appellant's evidence was that he and the complainant had agreed that he would stay the night and made a plan to visit a neighbouring town the next day. He went home to get clothes to wear the next day. The complainant was aware of this. The key to the house was left in the front door. When the appellant returned, he assumed it was there so that he could use it to enter the house.
The jury would not consider the circumstance of aggravation unless they had reached a verdict of guilty on the sexual penetration charge. That would, we think, necessarily involve their having found that when the appellant returned to the house the complainant had fallen asleep in bed; that is, the jury rejected the appellant's evidence that she had stayed awake waiting for his return.
The assessment of this inconsistent evidence was the constitutional role of the jury. An appeal in a criminal matter 'does not involve the substitution of trial by an appeal court for trial by a jury'.[9] The jury saw and heard the witnesses and that advantage is very important in a case such as this.[10] There is no reason why the jury must have preferred the appellant's version of events, or why they could not act on the complainant's version of events. If they accepted the complainant's evidence about matters relevant to this issue, there was no room for an honest or reasonable mistake on the part of the appellant.
[9] Pell, above [37].
[10] Pell, above [38].
We would add that, even importing the arguments advanced in relation to ground 1, there was no reason that the jury could not accept the complainant's evidence relevant to this issue. That is, even if they had come to the conclusion she had given evidence which deliberately downplayed the amount of alcohol she had drunk that night, and the sexual elements of her relationship with the appellant, there was no reason that they must have rejected her evidence about the circumstances in which the appellant left the house.

Additional matters

In his further written submissions the appellant raised matters which were not within the scope of the grounds of appeal. On consideration they do not raise matters which would incline us to allow any amendment to the grounds of appeal, or to prolong argument on this appeal any further.
One of the points raised by the appellant is that he did not see the entire CCTV footage which was disclosed by the State (two months before trial). He feels that the parts of the CCTV footage which were played at trial supported the complainant. He says other parts of it would have supported him. They would have supported his contention that the complainant was drunk. As discussed above, even if the jury found that the complainant was drunk, that would not mean their verdict was unreasonable. Further, the appellant said that the CCTV would have shown that at some point during the night or early morning he followed the complainant back into the house, so there was no opportunity for the complainant to find him apparently asleep in her bed. This misunderstands the complainant’s evidence, see [19] above. It cannot assist the appellant.
The appellant says that the CCTV would show that when he left at 2.31 am on the morning of the offending he did not slam the door and that the complainant stood at the door while he put on his shoes and left. Even if the CCTV did show these things, it could make no difference to the appellant's case.
The appellant said that the CCTV would show that when he left at 2.31 am, the complainant left the hallway light and the outside light on. He relies on an implication that seems to be that she was expecting his return. Even assuming the CCTV does show what the appellant expects, that is not a necessary implication. The complainant may have left the lights on for the same reason she left the key on the outside of the front door ‑ tiredness, drunkenness or forgetfulness, or a mixture of all three. This could not be compelling evidence in support of the appellant.
As well as the points based on the absence of CCTV footage, the appellant said that his clothing was seized for forensic analysis, but no evidence was led as to the results of that analysis. He makes submissions based on an assumption that the analysis would have in some way supported his version of events. There is no evidence before this Court as to whether or not there was forensic analysis of the appellant's clothing; what it showed, or why there was no evidence led as to these matters at trial. This Court would not act in the absence of such evidence. The Court should not adjourn the appeal so that evidence can be obtained. At best for the appellant, a DNA analysis of his clothing would not have revealed evidence which incriminated him. That evidence would be neutral, and not affect the strength of the State case.
The appellant said he had evidence of messages and photographs showing that his relationship with the complainant was sexual, and that she was sexually aggressive towards him. He said that the messages would show that she left keys for him to access her house when she was not there and would show that when he was at her house 'I acted and was treated like I lived there'. These assertions were not sworn. The messages to which they refer were not put before the Court. There was no evidence as to whether or not they were given to trial counsel, or why they were not used at trial. There was no evidence before this Court that trial counsel for the appellant did not do a competent job in advising as to such matters. For all these reasons this Court should not and could not act upon these assertions in the appellant's further submissions.
As well, even if there was evidence that supported the idea that the relationship between the complainant and the appellant was sexual, or that on other occasions there had been express arrangements made for the appellant to use the complainant’s key to access her house, these matters would go to context only, and not bear directly on the facts relevant to the offending alleged.
Lastly, the further submissions filed on behalf of the appellant contained unsworn assertions as to factual matters which were contrary to the evidence led at trial, argumentative, and in some cases went to matters which could never have been the subject of admissible evidence. (See particularly pages 9 and 10). This Court cannot act on such material.
Leave to appeal should be refused. The appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
WH
Research Associate to the Honourable President Buss
23 DECEMBER 2024