Dgo v The State of Western Australia - [2023] WASCA 79

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   DGO -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 79
CORAM:   BUSS P
MITCHELL JA
HALL JA

HEARD:   20 FEBRUARY 2023
DELIVERED          :   19 MAY 2023
FILE NO/S:   CACR 21 of 2022
BETWEEN:   DGO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram:   PRESIDENT QUAIL
File Number            :   CC MI 463 of 2019

Catchwords:

Criminal law - Appeal against conviction - Child sexual offence - Procuring an indecent act - Where appellant and complainant both juveniles - Whether appellant told lies in police interview - Whether trial judge impermissibly used lies as consciousness of guilt (Edwards) lies - Where reliability of complainant a crucial issue - Where appellant made some admissions in police interview but denied procuring the act - Where trial judge relied on admissions as being supportive of complainant's version - Whether trial judge made an error of fact as to nature of admissions made - Whether error was material

Legislation:

Nil

Result:

Extension of time granted
Leave to appeal granted
Appeal allowed
Conviction set aside and retrial ordered

Category: B

Representation:

Counsel:

Appellant	:	Mr F P Merenda
Respondent	:	Ms G N Beggs

Solicitors:

Appellant	:	The Defence Lawyers
Respondent	:	Director of Public Prosecutions (WA)

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

Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319
Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234

JUDGMENT OF THE COURT:

The appellant was charged in the Children's Court on a prosecution notice as follows:
(1)That between 24 September 1988 and 26 September 1988 at Swan View he committed sexual penetration upon the complainant without her consent in circumstances of aggravation in that she was a child under the age of 16 years, contrary to s 324E of the Criminal Code (Code).
(2)That between 24 September 1988 and 26 September 1988 at Swan View he unlawfully and indecently dealt with the complainant, a girl under the age of 14 years, contrary to s 183 of the Code.
(3)That between 24 September 1988 and 26 September 1988 the appellant unlawfully and indecently dealt with the complainant, a girl under the age of 14 years, contrary to s 183 of the Code.
After a trial the appellant was found not guilty of the first two charges but guilty of the third charge. He seeks leave to appeal against his conviction on charge 3.
The appeal notice was filed approximately one week late. The delay is relatively short and an explanation for it has been provided by the appellant's solicitor. An extension of time should be granted.
There are two grounds of appeal. The first ground alleges that the trial judge, the President of the Children's Court, erred in law by reasoning that lies told by the appellant during his police interview were Edwards[1] lies, that is lies told out of a consciousness of guilt, in circumstances where the prosecution had not contended that any lies told by the appellant could be used in that way. The second ground, which is expressed as an alternative, contends that the trial judge erred in law by finding that the appellant had made specific admissions during the police interview when there was no evidentiary basis for that conclusion.
[1] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.
The prosecution case depended critically on the complainant's evidence. The events that were the subject of the trial occurred 31 years ago when both the complainant and the appellant were juveniles. At the relevant time the complainant was aged 13 and the appellant was aged 15. The prosecution case was that the alleged offences had occurred at a party at which the complainant drank alcohol for the first time and became extremely intoxicated. Having regard to the passage of time and the intoxicated state of the complainant, the reliability of her recollection of the events was a critical issue at the trial.
The prosecution case on charge 3 was that the appellant had procured the complainant to perform fellatio upon him. The complainant said that this had occurred in the context of a game. In his police interview the appellant admitted that there had been an occasion when the complainant had briefly touched his penis with her mouth, but that he was not the initiator of that act and did not procure it.
The trial judge, though he found that the complainant was generally a credible witness, was unable to be satisfied beyond reasonable doubt that her evidence was reliable in respect of charges 1 and 2. Those charges related to the same series of events as charge 3. The essential difference in the evidence between charges 1 and 2 and charge 3 was that the appellant had made some admissions regarding charge 3 when interviewed by the police. In these circumstances, the exact nature and meaning of the admissions was of critical importance.
The trial judge made findings that the appellant had admitted to the police that he had received fellatio from the complainant during a game that he wanted to play. In fact, whilst the appellant admitted that a brief act of fellatio had occurred on an occasion, he did not admit that it occurred in the course of a game or that he had been a willing participant in that game. This error was material because the trial judge relied on the admissions as supporting the evidence given by the complainant in these respects. The error had the potential to affect the outcome, that is, it could have affected the conclusion that charge 3 was proven beyond reasonable doubt. In these circumstances the appeal must be allowed, the conviction on charge 3 set aside and a retrial on that charge ordered.

Prosecution case

The prosecution case was that on the Queen's Birthday long weekend in 1988 the complainant went to the appellant's family home for a two-night sleepover. The complainant was a friend of the appellant's younger sister. The complainant was 13 years old at the time. The appellant was 15 years old. The appellant's parents were away for the weekend.[2]
[2] ts 6.
On the second night of the sleepover a number of other school friends arrived at the house and a party was held. The boyfriend of one girl brought some bottles of Jim Beam bourbon. The complainant was encouraged to drink the Jim Beam and took big swigs from the bottle. She became intoxicated quickly and at one stage was slumped on the front lawn. Her next memory was waking up on a mattress on the floor in her friend's bedroom. A boy who she did not know was lying next to her. She heard a bang at the front door and she and the boy got up and walked to the front door. The complainant was still very intoxicated and slumped down near the front door. Some time later she woke up to find herself in her friend's bed with the appellant's penis in her mouth. The light was on in the room and there were several other boys present. That allegation was the subject of charge 1 in the prosecution notice.[3]
[3] ts 6 - 7.
The complainant's next memory was being woken up by another girl. The complainant was again on the mattress in her friend's room. Water had been thrown on her and the other girl kicked her and said words to the effect that she should get up because the appellant wanted an orgy. The other girl gave the complainant some coffee. She was still intoxicated.[4]
[4] ts 8.
When the complainant came out of the bedroom into the hallway, she was told that they were going to play a game. She felt that she had to join the game. She was told to pair up with another person. The complainant paired up with a friend of the appellant, to whom she gave a love bite during the course of the game. She was then told by the appellant to come to him. He lifted up the complainant's shirt and put his mouth on one of her nipples. That allegation was the subject of charge 2 in the prosecution notice.[5]
[5] ts 8.
The appellant then instructed the complainant to perform fellatio which she did. The appellant exclaimed that the complainant had a cat's tongue or words to that effect. This allegation was the subject of charge 3 in the prosecution notice.[6]
[6] ts 8.
The prosecution prepared a table of particulars. The particulars for charge 3 stated that the offence was constituted by the appellant having 'procured [the complainant] to introduce his penis into her mouth'. This reflected the second limb of s 183 of the Code, which at the relevant time provided:
Any person who unlawfully and indecently deals with a child under the age of fourteen years or who procures such a child to so deal with him or another is guilty of a crime.
Following the incidents referred to, the complainant felt sick and went to the toilet and vomited. One of the other girls followed the complainant and called her names. The complainant went outside and the other girl followed and continued to verbally abuse her. That girl followed the complainant inside and spat on her. The complainant then pushed the girl who fell backwards onto a glass coffee table causing it to smash. There was no further sexual activity that night.[7]
[7] ts 10.
The complainant lay down on a couch and her next memory is getting onto a train the following day to go to the Royal Show with two of her other friends. On the way to the Royal Show she had to get off the train twice to vomit. Once she arrived at the Royal Show she went on a ride but had to get off and again vomited. She was taken to a first aid tent and her mother was called and took her to hospital. The complainant's illness was due to her alcohol consumption. The attendance at the first aid tent and the hospital enabled the date of the alleged offences to be determined.[8]
[8] ts 10.
A complaint was made to the police in 2018. On 26 August 2019 the appellant was interviewed by police. He denied the offending as described by the complainant but did admit that there had been an act of fellatio performed on him by the complainant and that there had been a party at which a table in the lounge room of the house was broken.[9]
[9] ts 10.

Defence case

It was accepted on behalf of the appellant that there had been an occasion, on a date which he could not remember, when he had had a sexual encounter with the complainant. However, the circumstances in which that occurred were entirely different to that alleged by the prosecution.[10]
[10] ts 11.
When interviewed by the police the appellant had explained that the complainant had attempted to perform oral sex on him and that he had rebuffed it. She had attempted to pull his penis out of his pants and attempted to suck it a few times. He had said 'no' and pulled away because he did not like it. He believed that the complainant had a crush on him, and there had been other occasions when she had tried to kiss him.[11]
[11] ts 11.
The appellant accepted the possibility that this incident could have occurred at the party referred to by the prosecution but given the lapse of time he could not recall. He accepted that a party occurred because he remembered that the table was broken and that he was disciplined by his parents for that breakage.[12]
[12] ts 12.
Defence counsel made it clear that the reliability of the complainant's account of events was the central issue in the case. In this regard, her level of intoxication and the admitted gaps in her memory over the course of the evening were said to be significant. It was anticipated that the complainant's evidence would be inconsistent with the recollection of others who were present at the party. Counsel also suggested that there would be evidence to show that the complainant had reconstructed her evidence. Whilst it was not disputed that the complainant honestly believed something had happened, the reliability of her evidence was said to be 'front and centre'.[13]
[13] ts 13.

Prosecution evidence

For the purposes of this appeal it is only necessary to refer to the evidence that relates to charge 3. Evidence in relation to the other charges will only be referred to where it is necessary to do so for the purposes of context or comparison.

The complainant

The complainant said that she started high school, that is year 8, in 1988. In that year she formed a friendship with the appellant's sister, J. She was aware that J had an older brother, that is the appellant.[14]
[14] ts 16.
The complainant recalled going to J's house on two occasions in 1988. The second occasion was in September. On that occasion she stayed over at J's house for two nights. She arrived on a Saturday and left on Monday. When she arrived at the house J and the appellant were present.[15]
[15] ts 17.
On the first night another girl and boy were present. The appellant put on a pornographic video. Three girls were seated on a couch together. The appellant was on the other side of the room sitting on another couch. The complainant said that the appellant took his penis out and was touching it and laughing and encouraging the girls to engage with him sexually. He asked if the complainant wanted to 'suck his dick'. She said that he could have been speaking to either her or the other girl (not his sister). Nothing else of note happened on that evening.[16]
[16] ts 17 - 20.
The following day the complainant and J just 'hung around the house'. She did not remember much detail until the afternoon. She had only minimal interaction with the appellant during the day.[17]
[17] ts 20.
A number of people came over to the house in the latter half of the Sunday afternoon. One of those people was a friend of the appellant, a boy who will be referred to as P. There were a number of other friends of the appellant as well as two sisters JA and ND. At about 3.00 pm or 4.00 pm in the afternoon they all gathered on the front lawn. One of the boys who was present was older and had brought alcohol with him. This consisted of three full bottles of Jim Beam bourbon. One of the bottles was handed to the complainant and she was encouraged to drink from it.[18]
[18] ts 21 - 22.
The complainant does not recall how much she drank, but it was at least three or four swigs. It made her very sick and she recalls feeling that she had a burnt mouth and burnt tummy. Her legs were not working well and she could not coordinate her movements. The effect was pretty quick. She was unable to stand up and recalls being slumped on the front lawn. She believes that she was unconscious for some of the time.[19]
[19] ts 23.
The complainant's next memory was of waking up in J's bedroom. She was on a mattress on the floor with a boy lying behind her. By this time it was dark outside. She was woken up by a banging noise coming from the front of the house. She and the boy got up to investigate. At the front door she recalls seeing eight or ten boys shouting and asking to be let in. The boy she was with refused to let them in. She believes that she was still intoxicated at this time. She lost control of her legs and slumped against the wall.[20]
[20] ts 23 - 25.
The next recollection that the complainant had was waking up with a sense of being hit and the appellant's penis in her mouth. She said that she woke up to a sensation of the appellant hitting her in the face and making a claim that she had bitten him. She said that the appellant's penis was in her mouth momentarily as far as she could recall. He said something about her having bitten him.[21]
[21] ts 26 - 27.
The complainant's next recollection was of being on the mattress in J's bedroom and someone throwing water on her. ND then kicked her in the ribs and told her to get up. ND said that the complainant had to get up because the appellant wanted an orgy. J was 'fussing around at the edges and asking [ND] to leave me alone'.[22]
[22] ts 27 - 28.
The complainant got up and went to the hallway. The appellant, P, ND and J were there. There were also a couple of other boys that she did not know. The appellant said they were going to have an orgy. He said that the rules were 'no sex, no going down on the girls and no brother/sister action'. The complainant went to sit next to P because she found him the least threatening. She sat down in a corner with P and gave him a love bite. At some stage the appellant told the complainant to come over to him. She made her way to where he was sitting at the other end of the hallway and sat down on the ground next to him. He lifted up her top and put his mouth on her nipple and made a comment about how small it was.[23]
[23] ts 28 - 31.
The complainant said that the appellant had his penis out and that it was erect. She couldn't recall whether or not he was wearing clothes. He told her to 'suck his dick'. She complied by putting her mouth over his penis. She said that 'he coached a little bit' because she didn't know what to do. This included him saying 'open your mouth' and 'get your tongue around it'. His penis was in her mouth but not for a long time. He said that her tongue was furry like a cat's tongue. He recoiled and shrieked.[24]
[24] ts 31 - 32.
The next thing that happened was that the complainant went to a toilet off the hallway and vomited. ND followed her and verbally abused her. The complainant then went outside, and ND continued to follow and abuse her. They went to the lounge room. ND spat on the complainant, the complainant pushed ND, she fell over and broke a coffee table.[25]
[25] ts 33 - 34.
The complainant stayed at the house that night. The next day she went to the Royal Show. On the way she was vomiting uncontrollably. This continued at the Royal Show and, at one point, she collapsed and lost consciousness and was taken to a first aid tent. Medical records established that this had occurred on 27 September 1988.[26]
[26] ts 34 - 35.
In cross‑examination, the complainant accepted that she did not have a recollection of what occurred between the time she was drinking on the front lawn and when she woke up later in J's bedroom. She also did not have a recollection of what occurred between the time she was trying to hold herself up in the hallway until she again woke up in J's bed. She accepted that she again had no recollection between that time and when she was woken up by ND throwing water onto her face and kicking her. It was put to the complainant that, due to her state of intoxication, she did not have a complete memory of what occurred and had reconstructed the events. She responded by saying that she had not made anything up and that what she had said in evidence represented her recollection. She did accept that the gaps in her memory were due to intoxication.[27]
[27] ts 43 - 45.
The complainant accepted that she had made a complaint to police in 2018, however prior to that she had started a process of gathering information. She was referred to an email that she had sent to the investigating police officer on 15 March 2019. She accepted that in that email she had said, 'I worked really hard to form a narrative from my fragmented memories and present as much detail for you as I possibly could so the police would have some angles as details and angles to work with'. She said that that statement was about the way in which the information had been gathered at that point and the fact that the other people who she had identified as being present would not have been on 'her side'. The reference to working hard was to the process of putting together a statement that had some continuity and formed a narrative from fragmented memories. She did not, however, accept that she had reconstructed a version of events based on fragmented memories.[28]
[28] ts 55 - 56.
Defence counsel then put to the complainant the appellant's version of what had occurred in respect of charge 3:[29]
[29] ts 60.
And what I wanted to do is that, the only sexual encounter that ever occurred between yourself and [the appellant] was on an occasion where you attempted to give him oral sex but he had said no?---That's not true.
HIS HONOUR: And I just want this to be clear. Is it being put to [the complainant] that it was on an entirely different occasion or was it on this weekend?
[DEFENCE COUNSEL]: I think you will appreciate from the video record of interview - - -
HIS HONOUR: Well I haven't seen the video recording.
[DEFENCE COUNSEL]: Yes, that's what I'm saying though is that there is no capacity to be able to nail it down to a particular time so we're going to do it - - -
HIS HONOUR: All right. So you're just putting it as a proposition.
[DEFENCE COUNSEL]: It was an event. Yes, that's right.
HIS HONOUR: All right. So just - let's go back one step and just put it again to [the complainant].
[DEFENCE COUNSEL]: So what I was putting was that on some date, there was a sexual encounter between yourself and [the appellant] but the nature of it was such that you attempted to give him oral sex and he said no?---Yes, well no. No.
And so what I'm suggesting is that the recollection that you have of a time when [the appellant] pulled away from you whilst you were giving him oral sex is actually a recollection of that particular incident?---No. I'm not sure what you're referring to. I never volunteered to give him oral sex, and I never did it willingly.

A little later the following question was put:[30]
There was never an incident where [the appellant] arranged an orgy, and encouraged you to perform oral sex on him?---Well, he did.
[30] ts 61.
It was put to the complainant that her recollections regarding ND were incorrect and that ND was not actually present on this night. The complainant said that she had never met ND prior to this night and maintained that she was there. It was put to the complainant that she and J and other friends had often played a game of truth, dare or torture. The complainant said that she did not recall ever playing such a game with J. She denied that there were other occasions when she drank with J, or that sometimes she would make a pass at the appellant.[31]

Appellant's police interview

[31] ts 68.

The appellant was interviewed by police on 26 August 2019. The appellant was asked whether he could recall a party in which a table at his parents' house was smashed. He said he was not there at the time and turned up late, although he was held responsible for the damage by his parents. He could not recall whether the complainant was present.[32]
[32] BGAB 15.
When asked when he first became sexually active the appellant said when he was about 17 and went to Kalgoorlie. He agreed that his first sexual encounter occurred at that time. When asked whether anyone had ever touched or sucked his penis before that, he said, 'Not that I recall, no'.[33]
[33] BGAB 38.
A little later the appellant was asked:[34]
[34] BGAB 39 - 40.
DET S/CON BEATTIE: … I suppose before moving on I do want to ask was there a point in time, either this party or any other party or event after school, anything, where you and [the complainant] engaged - - -
[THE APPELLANT]: Yeah, there was, um, one time where, um, she wanted to suck my dick - - -
DET S/CON BEATTIE: Uh-huh.
[THE APPELLANT] - - - and I said no and then she's ripping it out and then, um, I told her to get off. So that was the only other time and if that's what this is about, that's unbelievable.
DET S/CON BEATTIE: Tell me about that.
[THE APPELLANT]: Well - - -
DET S/CON BEATTIE: Start from the beginning, if you can, about how it all started.
[THE APPELLANT]: Well, it was one night - can't remember if it was that night or another night but - 'cause she was always - all trying to - when she was drunk, trying to crack onto me, her and her sister.
DET S/CON BEATTIE: Uh-huh.
[THE APPELLANT]: I don't know if she - she mentioned her sister in there or not. They used to play truth, dare or torture.
DET S/CON BEATTIE: Her sister.
[THE APPELLANT]: Mmm.
DET S/CON BEATTIE: Okay.
[THE APPELLANT]: Anyway, and then, um, she just said, um, 'I want to suck your dick,' and I said - I said, 'No,' and she's proceeded to pull it out and then, um, she has sucked it and I've told her to get off, so - - -
DET S/CON BEATTIE: Okay. Um, can you recall - get you to think - have a think about it, uh, where were you when it happened, your - time of day, all that kind of stuff.
[THE APPELLANT]: Oh I can't remember. I think - I think it was in the lounge room. I - I can't remember exactly where it was.
The appellant said that the complainant and others would congregate at his house and play 'truth, dare or torture'. The appellant was then asked:[35]
[35] BGAB 41 - 42.
DET S/CON BELL: Sorry, when you said there was alcohol involved, do you mean with the truth, dare, torture or do you mean with the incidence that we're talking about?
[THE APPELLANT]: No, not - not - no, not truth, dare, torture. There's no alcohol back then.
DET S/CON BELL: Yeah. Okay.
DET S/CON BEATTIE: Okay. And - so correct me if I'm wrong, she was - she'd get drunk and sort of want to suck your dick, basically.
[THE APPELLANT]: Well, she used to try and kiss me and stuff like that.
DET S/CON BEATTIE: Okay.
[THE APPELLANT]: And - and, I mean, she - um, she wasn't my type anyway, so I turned it - I mean, I liked her, but she - yeah, and, um, didn't want a girlfriend.
DET S/CON BEATTIE: Okay. So on this occasion, um, describe to me how she actually managed to get to the point where she did suck your penis.
[THE APPELLANT]: Well, she pulled my pa - she had me pants down and then, um, she started sucking it. I think she sucked about once or twice and - and I didn't like the feel of it 'cause the first time, for me, and I've told her to get off, so - - -
DET S/CON BEATTIE: Okay.
[THE APPELLANT]: And then she got offended and, um, so well, yeah.
DET S/CON BEATTIE: Okay.
[THE APPELLANT]: Sorry but - - -
DET S/CON BEATTIE: And did you tell anybody about that?
[THE APPELLANT]: I think I told my sister, um, the next day or something like that.
DET S/CON BEATTIE: Okay. And did you make comment on - about the way it felt to your sister?
[THE APPELLANT]: Oh, I think - I can't remember what I said.
DET S/CON BEATTIE: Okay.
[THE APPELLANT]: It's a long time ago. All's I said is I didn't like it.
DET S/CON BEATTIE: Okay.
[THE APPELLANT]: So - - -
DET S/CON BEATTIE: All right. And was this around the same period of time that all these parties were happening?
[THE APPELLANT]: Yeah, it would have been, yeah.
DET S/CON BEATTIE: Okay. Um, so you - you seem to think you're about 14 to 15.
[THE APPELLANT]: Yeah. Well, I was still working at, um - I can't even remember where I was working. I was - I was working with Seamus, so I was - I would have been 14 and is tarted there when I was 13 and I didn't do it for two years, so I would have been 15 or 14, some - so it was all new to me.
DET S/CON BEATTIE: Okay. Um, so just the one occasion that you recall this has - this has happened?
[THE APPELLANT]: Yeah, that's the only one occasion, yeah.
DET S/CON BEATTIE: Okay. So before you sort of mentioned that your first occasion was in Kalgoorlie. This is the first occasion where you had - - -
[THE APPELLANT]: My father took me to the whorehouse, if that's what you're going on about.
DET S/CON BEATTIE: I - I was interest in any sexual contact.
[THE APPELLANT]: No. so it was - that was the first time that anything's ever happened to me down there.
DET S/CON BEATTIE: Yep.
[THE APPELLANT]: And, um - and I didn't like it.
DET S/CON BEATTIE: Okay. So when I asked you before about Kalgoorlie, that's the first time you ever had intercourse.
[THE APPELLANT]: Yeah. Yep.
The allegation in respect of charge 3 was then put to the appellant:[36]
DET S/CON BEATTIE: … [L]ater on, um, in the hallway, uh, there was, for lack of better description, a game, um, I'll use the word 'orgy' because that's a word that's sort of been knocked around, that you had sort of instructed the - a couple of the girls to go from bloke to bloke, just performing sex acts on them, that, um, after [the complainant] had been, um, at a different location with somebody else in the hallway she's come over to your position, uh, you're both on the floor, you've lifted her top up and put your mouth on her nipple or there wasn't must (sic) of it, but a little bit of a boob. What can you tell me about that?
[THE APPELLANT]: Ah, it's a load of crap. That's what I'm hearing now.
DET S/CON BEATTIE: Okay. And that you said, um, that she - she said she only had really small - really small breasts at the time and you said something along the lines of, 'You got tits like mozzie bites.' Can you recall anything like that?
[THE APPELLANT]: No I don't think so.
DET S/CON BEATTIE: And that shortly after that you've told her to suck your dick, that she's leant down, put your penis in her mouth and that you instructed her what to do and she put her - your penis further sort of into her mouth and you've pulled back and made a comment that - it was, 'Ew, she's got a cat's tongue, it's prickly.' Can you recall anything like that?
[THE APPELLANT]: No, I [indistinct] deny it. All's I said was, uh, 'Get off,' so that's all I said.
DET S/CON BEATTIE: Okay. Could that be the same occasion?
[THE APPELLANT]: I'd - I'd say that would be, yeah.
[36] ts 44.
Later the appellant said:[37]
[37] BGAB 46.
[THE APPELLANT]: All's I'm saying is that's what happened - - -
DET S/CON BEATTIE: Yep.
[THE APPELLANT]: - - - and that's what I did. I told her to get off.
DET S/CON BEATTIE: Okay.
[THE APPELLANT]: So whatever games they were playing, well, I wasn't there.
DET S/CON BEATTIE: Okay.
[THE APPELLANT]: All right. So - - -
DET S/CON BEATTIE: Um, have you got anything to ask about any of that?
DET S/CON BELL: No. Probably the only thing - I mean, you - just to clarify, I know we're talking about a long time ago - would there be any other reason why you couldn't remember playing games where someone is sucking your penis, as in drug affected, alcohol?
[THE APPELLANT]: That was the first time my penis was ever sucked, so, I mean, no other girl sucked my penis bar her. So, I don't know where the game they're talking about has come from, so - - -
DET S/CON BELL: Okay.
[THE APPELLANT]: Yeah. (emphasis added)

Other evidence

The complainant's mother gave evidence that in 1988 the complainant was friendly with J and that she had dropped her off at J's house on one occasion in 1988. She believed that it was in September of that year. She also recalled the occasion when the complainant collapsed at the Royal Show.[38]
[38] ts 76 - 77.
ND gave evidence that her sister and J were best friends at school, but that she (ND) did not know the complainant and had never met her. ND said that she had been to J's house on one occasion to pick up her sister. That was when she was 17 and had first got her driver's licence. On that occasion she had gone into the house and recalled that there were other people there, but she did not know their names. She denied that there was any occasion at the house in which she had assaulted or abused anyone. She denied that there was any occasion when she had fallen onto a table and caused it to break. She denied ever kicking or throwing water into anybody's face. She denied any engagement with the complainant in her teenage years.[39]
[39] ts 82 - 83.
J gave evidence that she had formed a friendship with the complainant when they were both in year 8. She agreed that the complainant had come to her house. On one occasion, when J and the appellant's parents were away for the weekend, the complainant came to stay. Some alcohol was available and everyone, including the complainant, drank some. She said that nothing unusual happened on this occasion other than that the complainant broke or fell on a glass table. She said that the appellant was present in the house at the time. J said that she continued a friendship with the complainant after this weekend. That included going to each other's houses. She had no recollection of anyone organising an orgy or of the complainant engaging in oral sex with the appellant. She had no recollection of ND being present and abusing or physically assaulting the complainant. She does not recall ND being present on that occasion at all. She did recall that there were occasions when she, the complainant and other friends would play a game of truth, dare or torture.[40]
[40] ts 95 - 101.

Closing addresses

In closing, the prosecutor said that the appellant had been inconsistent in the account that he gave to the police during his interview. Two inconsistencies were relied on. The first was said to be that the appellant initially said that before he went to Kalgoorlie, no one had ever touched or sucked his penis. That position changed later in the interview. The second inconsistency was said to be that the appellant had changed his account from saying that he liked the complainant to then later saying that he disliked her. The prosecutor suggested that, in the interview, the appellant had attempted to distance himself from the alleged offences. There was, however, no suggestion that the inconsistencies amounted to lies told out of a consciousness of guilt which provided independent evidence of the offences.[41]
[41] ts 108 - 109.
Defence counsel submitted that, given the way that the State particularised its case, the appellant could not be found guilty in relation to any of the charges if the appellant's version of events was accepted. Counsel said that the only charge that could marry up with the event as described by the appellant in his interview was charge 3. If the complainant's version of what occurred is unreliable, then that charge could not be made out. The trial judge said that if he was satisfied that the admission regarding fellatio related to the third charge, then that was a matter he could take into account, albeit that the appellant's version of events was quite different and amounted to a denial of the offending. Defence counsel submitted that, having regard to the complainant's level of intoxication, the gaps in her memory and the inconsistencies with other witnesses, the trial judge could not be satisfied that the complainant's evidence in respect of the relevant events was reliable.[42]
[42] ts 116 - 125.

The trial judge's reasons

The trial judge gave his reasons orally on the day following the conclusion of the trial. It is not contended that the trial judge made any error of law or fact other than in relation to his findings regarding admissions made by the appellant in his police interview, and the significance of those admissions.
The trial judge noted that the prosecution case 'stands or falls ultimately on the complainant's evidence'. He then said:[43]
She's the only prosecution witness to give direct evidence as to what happened during the events complained of, and whilst there is other evidence of surrounding circumstances, no one has corroborated her evidence as to the occurrence of the alleged offences. There is one qualification to that which I will identify now: his record of interview. [The appellant] does admit that the complainant performed fellatio on him on one occasion. It's for me to consider whether that is an admission in relation to a specific charge, and if so, whether it is reliable and whether the circumstances were as he said happened or whether the complainant's version is reliable.
Although I've put it in that way, of two different versions, I will always, of course, bear in mind that [the appellant] doesn't have to prove anything and it's for the State to prove the case beyond reasonable doubt. It's not a question of a contest of belief. Depending on my - depending upon my conclusions about what he said in the interview, that statement by him is capable of being an admission and corroborative of [the complainant's] account on that charge. Accordingly I must be satisfied beyond reasonable doubt when I'm looking at the complainant's evidence as to her truthfulness, accuracy and reliability in relation to a charge that I'm considering before making a finding of guilt.
[43] ts 131 - 132.
His Honour observed that he needed to 'scrutinise [the complainant's] evidence with special care … in order to assess her truthfulness, accuracy and reliability' because the alleged offending occurred more than 30 years ago.[44]
[44] ts 132.
His Honour gave himself a direction in accordance with Longman v The Queen.[45]
[45] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79; ts 132 ‑ 133.
When dealing with the third charge, his Honour said:[46]
Thirdly, the State must prove that the indecent dealing was unlawful and in the context of this trial, the State must prove that the touching was a willed act of the accused; unwilled or accidental contact is not an unlawful dealing.
This is in issue in that if the dealing on the third charge, it's really an issue in relation to the third charge, in that the defence position is even if I was satisfied that it occurred, it was not a willed act by the accused, in other words, the performance of fellatio was independent of the exercise of his will, with something done to him by the complainant, his only act was to push her away to end it. Now, the defence don't have to prove that, [the appellant] bears no burden of proof, the State must rebut that if they can do so.
[46] ts 136.
His Honour said that the complainant appeared to him to be a completely honest and very forthright witness. He found that her account was detailed, plausible and largely internally consistent. He recognised that credibility was not enough and that he needed to be satisfied that the complainant was also a reliable witness. He expressed some concerns in that regard, in particular as regards the complainant's state of heavy intoxication at the time of the alleged offending and the passage of time since the events had occurred. His Honour referred to the significant gaps in the complainant's memory when she fell unconscious or passed out due to intoxication. He said that he must carefully consider whether the complainant's perception was altered and whether her memories were formed reliably at the time. He noted that the complainant was completely convinced that the memories she recounted were true, and that that was why she was such a compelling and believable witness. He said that ND's evidence caused him to doubt not what the complainant said happened to her but her identification of the person who assaulted and abused her.[47]
[47] ts 138 - 141.
His Honour then turned to the appellant's record of interview. He referred to the answers given by the appellant as to when he first became sexually active. The appellant said that his first sexual experience occurred in Kalgoorlie when he was aged about 17. In regard to the answer that the appellant gave, to the effect that he could not recall whether anyone had previously touched or sucked his penis, his Honour said:[48]
Again, an unambiguous answer. Now, those answers by [the appellant] were not true. [The appellant] was trying to distance himself from the allegations that he had been arrested for. The reason those answers were not true is because of what happened next.
[48] ts 142 - 143.
His Honour then referred to the appellant's answer regarding an occasion when the complainant had sucked his penis. He then said:[49]
Now, the reason I'm satisfied [the appellant] changed his position from the answer I read out on page 28 to that answer there is this. It's because the detective told him that she had spoken to [the complainant], but, importantly, the detective also told him that she had spoken to [J], his sister. Now, [the appellant], I'm satisfied, knew that his sister knew what had happened, because she had been there that weekend. And, indeed, [the appellant] goes on later to say, in - page 31 is the transcript reference of that interview - that he had told his sister about this fellatio incident with [the complainant].
Although, at that point, Detective Beattie had told [the appellant] that she had spoken to [the complainant] and also his sister, of course, [the appellant], at that point, didn't know what [the complainant] had said, but, more importantly, didn't know what his sister had said. So in his own mind, he knows his sister knows what happened, and he doesn't know what his sister has told the police. So at that point, [the appellant], in fact, decides to tell the detectives the truth or, rather, some of it, anyway, lest he land up in trouble because he has contradicted what his sister might have said to the police.
That, I'm satisfied, was his thought process, and it's why he then said what he said about what he says [the complainant] did, in terms of ripping out his penis and performing fellatio on him. He then goes to elaborate that on more detail, so this is direct contradiction to his denial a moment before.
[49] ts 143 - 144.
A little later, his Honour said:[50]
[50] ts 146 - 147.
So - now, Mr - apart from what I've already said in terms of the contradiction and the shifting position, the reason for it, [the appellant] always knew that, notwithstanding the long passage of time and that that had happened. It's implausible, even after 30 years, that he would forget what he said was his first sexual encounter and the only time at that period of his life that a girl had sucked his penis. So those first denials of his to Detective [Beattie] were untrue.
Now, what do I take, then, from the record of interview? In combination with the complainant's evidence, I'm satisfied that [the appellant] was, in those transcript references that I've just gone expressly to, referring to the conduct in relation to Midland charge 463 of 2019.
Now, I will resolve the differences between [the complainant's] and [the appellant's] version in my findings shortly, but I am satisfied that [the appellant] reliably admits that this charge occurred on that party weekend in September of 1988 - sleepover weekend, from [the complainant's] perspective, I will add in there - that there was alcohol involved and drinking; that [the complainant] performed fellatio on him briefly; that it was in the context of some sort of a game, he says Truth or Dare or Torture; she says, an orgy game. I will say more about that later.
It was a game that he wanted to play, and it ended by - that is, the fellatio ended by him pushing or pulling away from her and indicating that she should stop. Further, his final answer, which I read out at transcript 38, is significant because it clarifies or refines his first description of how that fellatio came about. Remember he said:
Because I've knocked her back heaps of times, and this time I just thought I would do it -
that's the significant words, 'I would do it' -
and I didn't like it, so I told her to get off, and then she cracked the shits.
Now, the importance of that and the reason that it's significant is because it disposes of the section 23 argument on [the appellant's] own account of events. This is something he did and chose to do, albeit briefly. It was a willed act, in that sense, albeit a brief one, which he has then changed his mind about. Now, there are a few other aspects of [the appellant's] record of interview which I need to say something about. The prosecution say I should also conclude that [the appellant's] account should be rejected across the board because he changed his position in interview in relation to his attitude towards [the complainant] and whether he liked her or not.
I don't accept the prosecution's submission in relation to that matter. (emphasis added)

In respect of charge 1, his Honour was satisfied that something happened to the complainant and that it was likely that someone put his penis into her mouth. However, there were a number of boys present in the house and the complainant was only conscious for a very brief period before passing out again. Because of concerns regarding the complainant's reliability, his Honour was not satisfied beyond reasonable doubt that charge 1 was proven, and found the appellant not guilty of that charge.
His Honour then turned to charges 2 and 3:[51]
I turn then to consider charges 462 and 463 of 2019. In relation to those charges, I am satisfied that someone woke [the complainant] and this time she became fully conscious, perhaps because she was pushed or kicked violently, water thrown on her or because [J] gave her coffee. She was told that [the appellant] wanted to play a game. There were still some seven or eight people around in the hallway then. [The appellant] explained the rules of the game, and it was probably a game of Truth, Dare or Torture, and there were sex rules attached to those general rules: no brother/sister action; no sex, in other words, no penile/vaginal sex; and no going down on girls.
The game started. [The complainant] was seated with [P]. [The appellant] then came over and sat next to her. Now, what follows from after that point I do need to be satisfied beyond a reasonable doubt about, and although [the complainant's] account of the [appellant] putting his mouth on her nipple is credible, and I prefer it to the [appellant's] version, when I have regard again to the dangers, which I must, I cannot be satisfied beyond reasonable doubt in relation to charge 462, and [the appellant] is not guilty of that charge. I enter a judgment of acquittal and dismiss it. The position in relation to charge 463 is different.
I am satisfied beyond reasonable doubt that [the appellant] then told [the complainant] to suck his dick. I reject his version that she was coming onto him and had done so in the past. That account was untrue and said by him to minimise his own involvement. I'm satisfied beyond reasonable doubt that [the complainant] then put her mouth briefly on the [appellant's] penis as he had directed her to do and coached her how to do and his penis was in her mouth. It didn't go on for a long time, but it stopped because [the appellant] recoiled and said something to the effect of, 'She's got a cat's tongue.'
I'm satisfied beyond reasonable doubt that the complainant's evidence about that act is credible and reliable and I am satisfied it is corroborated by the [appellant's] admissions in the record of interview in relation to that conduct occurring. I'm satisfied beyond reasonable doubt it was a willed act by him and I'm satisfied beyond reasonable doubt that he is guilty of charge 463 of 2019, being indecent dealing with a girl under the age of 14 years. (emphasis added)
[51] ts 149 - 150.

Ground of appeal

There were originally three grounds of appeal. The first ground was abandoned at the hearing of the appeal. The remaining two grounds are as follows:[52]
2.The President erred in law by reasoning that lies of the appellant, which he had found that the appellant had told in his record of interview, were evidence of an implied consciousness of guilt, in circumstances where the prosecution had not contended that any lies told by the appellant could be used on that basis.
3.In the alternative to ground 2, the President erred in law by finding that the appellant had reliably admitted that he had received fellatio from the complainant during a game that he wanted to play, when there was no evidentiary basis to draw that conclusion from the record of interview.
[52] ts 8.

Appellant's submissions

As regards ground 2, the appellant submits that the trial judge concluded that the appellant's initial denial of any sexual contact prior to the time he was 17 went beyond considering whether the appellant's account was credible and was used as positive evidence of guilt. This is said to be an error in circumstances where the prosecution did not seek to rely on any lies told by the appellant during the interview as consciousness of guilt lies.[53]
[53] Appellant's case dated 22 March 2022, pars 43 - 47.
As regards ground 3, the appellant submits that the trial judge erred by finding that the appellant had admitted that fellatio had occurred in the context of a game of which he was a willing participant. The appellant's references to a game of truth, dare or torture were in the context of his explanation of a game that the appellant would often play with his sister and other friends. The appellant did not admit that the game was one that he wanted to play, or that the act of fellatio occurred during the playing of any such game. His explanation was that the complainant had wanted to suck his penis, that he had initially said no, that she had then removed his penis from his pants and performed the act before he rebuffed her. The appellant submits that these findings were significant in a context where reliability was in issue, and the trial judge used the admissions made by the appellant as being corroborative of the complainant's testimony. The materiality of the appellant's admission is reflected in the fact that the other two counts, in respect of which there were no admissions, resulted in verdicts of not guilty.[54]
[54] Appellant's case pars 48 - 49.

Respondent's submissions

The respondent submits that ground 2 is not made out because his Honour did not rely on the lies told by the appellant in his police interview as evidence of guilt. The finding that the appellant lied about only becoming sexually active when he was 17 was only used in the assessment of the appellant's credibility.[55]
[55] Respondent's Submissions [33] - [35]
As regards ground 3, the respondent submits that the respective cases run by the parties did not leave open the possibility that there was more than one occasion on which the complainant and the appellant engaged in a sexual act. Accordingly, if the trial judge was satisfied that the act did occur, it either occurred as alleged by the complainant, in the context of an activity or game directed by the appellant, or it occurred as described by the appellant, as part of an on-going campaign by the complainant to 'crack on to him', having been dared to do so as part of a game, which he initially consented to before deciding to stop. The respondent submits that in either case the appellant's admissions meant that the act of fellatio occurred in the context of a game that the appellant wanted to play.[56]
[56] Respondent's Submissions [40] -[41]

Ground 2 - the merits

A lie will only constitute an implied admission if it is told out of a consciousness of guilt. That is to say that the accused told the lie because of a realisation of guilt and a fear of the truth. In those circumstances, such a lie becomes circumstantial proof of guilt capable of supporting the prosecution case.[57] However, a direction will usually be required in a jury trial to ensure that the evidence is not used as evidence of guilt unless it is established that the relevant statement was untrue, was a deliberate lie and that there is no other reasonable explanation for the lie other than a desire on the part of the accused to conceal their guilt of the offence charged (an Edwards direction).[58]
[57] Edwards [9] - [10] (Deane, Dawson & Gaudron JJ).
[58] Edwards [13] (Deane, Dawson & Gaudron JJ).
In some cases, a lie told by an accused can be taken into account by a trier of fact in their assessment of the credibility of other statements made by the accused either in or out of court. Lies that merely affect the credit of an accused may be used by a trier of fact to reject the accused's exculpatory statements. Where lies are relied upon for this limited purpose, a direction may be required in a jury trial to ensure that the jury only uses the evidence for that purpose and does not impermissibly reason that the accused is guilty because he or she lied (a Zoneff direction).[59]
[59] Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234[14] - [17], [23] (Gleeson CJ, Gaudron, Gummow & Callinan JJ).
In a case where the trier of fact is a judicial officer, there will often be less risk that a lie will be misused because of the requirement to give reasons. That requirement will serve to focus attention on how evidence is used. Furthermore, it should be possible to discern from the reasons how any alleged lie has been used by the judicial officer in reasoning to a conclusion. Any impermissible use of the evidence should be apparent.
In the present case, the prosecution did not rely on any lies told by the appellant in the interview as consciousness of guilt lies, that is as independent circumstantial evidence of guilt. In particular, it was not suggested that the appellant's statement in the police interview that his first sexual experience was at age 17 was a deliberate untruth told in order to conceal his guilt.
It might be thought that in the context of a police interview involving events that occurred 31 years ago there was room to doubt whether the appellant was being deliberately untruthful when he said that he did not recall anyone having touched or sucked his penis prior to the age of 17. However, the trial judge did find that that answer was untruthful and was told with a view to minimising the appellant's conduct.[60] What is less clear is whether this was evidence used by the trial judge as independent evidence capable of proving guilt on charge 3. The reference to 'minimising' could mean that the appellant was lying to protect himself or that this was a reason why his explanation should not be accepted.
[60] ts 150.
The trial judge did not state that the evidence was independent evidence of guilt. Nor did he give himself either an Edwards or a Zoneff direction. However, when it came to stating his conclusions, his Honour did not refer to any lies as being independent evidence supportive of a conclusion of guilt. Had he been relying on the lies as consciousness of guilt lies, it is likely that he would have referred to them in that regard in his conclusions.
When read in the whole context of his reasons, his Honour's references to the lies are consistent with those lies being used only for the purposes of assessing the credibility of the appellant's version of the events that related to charge 3. That is, that his Honour reasoned that the appellant's false statements about his sexual history and whether he liked the complainant reflected upon the credibility of his claim that the act of fellatio was not procured by him.
In the circumstances, we are not convinced that his Honour was using any lies told by the appellant in the police interview for any purpose other than determining whether the appellant's version of relevant events was true or whether there was a reasonable possibility that his version might be true. That is, in deciding whether the appellant's version was credible.
Ground 2 has not been made out.

Ground 3 - the merits

The appellant's essential contention in respect of ground 3 is that the trial judge erred when he made a finding that the appellant had admitted in the police interview that the act of fellatio alleged in charge 3 had occurred in the context of a game which 'he wanted to play'.[61] The appellant says that this was a material error because it was a factor in determining that the complainant's version of the events should be believed.
[61] ts 146.
In the context of a jury trial an error of fact in the judge's directions to the jury will not necessarily occasion a miscarriage of justice. Whether it does will depend on the potential for that error to affect the verdict. In Simic v The Queen[62] the High Court said:
In the case of the facts, the trial judge must tell the jury that the facts are for them, that their verdict must be grounded on the evidence that they have heard, and that although he will review that evidence and make some comments of his own relative thereto they are not bound to accept anything that he may say. The scope for a misstatement of the evidence will often be very wide, and the effect of such misstatement may vary a great deal. It is right and proper therefore that an onus rests upon an appellant to bring himself within s 568 by showing that the misdirection which occurred in the instant case amounted to a miscarriage of justice. Nevertheless, it is putting that onus too high to require it to be shown that it was reasonably probable, rather than possible, that the misdirection affected the verdict. Of course minor inaccuracies and omissions will not be likely to make it possible that the verdict was affected. Bare and remote possibilities may be disregarded, but if it is considered reasonably possible that the misstatement may have affected the verdict and if the jury might reasonably have acquitted the appellant if the misstatement had not been made, there will have been a miscarriage of justice, and a substantial one. In considering a question of this kind, the appellate court must have regard to the gravity of the misstatement as well as to the strength of the case against the appellant.
[62] Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319, 331 - 332 (Gibbs, Stephen, Mason, Murphy & Wilson JJ).
In the context of a trial by judge alone the significance of any error of fact will, similarly, depend on the potential for the error to affect the verdict. In such a trial, the obligation of the trial judge to provide detailed reasons will assist in determining the significance of the error. If the factual error has made a material contribution to the resolution of the issues this should be apparent from the reasons.
The reliability of the complainant was a critical issue in this trial. It was due to factors relevant to the complainant's reliability, in particular her level of intoxication, fragmentary memory and the passage of time, that the trial judge was unable to be satisfied beyond reasonable doubt of the first two charges.[63]
[63] ts 149 - 150.
The material difference in respect of charge 3 was that the appellant had made an admission regarding an act of fellatio.[64] Of course, that admission was not in itself sufficient to prove the charge because the appellant specifically denied that he had initiated the act, and in doing so denied the critical element of procuring. The content and meaning of the appellant's admission was, therefore, important.
[64] ts 150.
The trial judge, in effect, reasoned that it could be inferred from the appellant's admissions that he and the complainant were talking about the same incident, namely the incident that was the subject of charge 3. His Honour then concluded that he was satisfied that that incident had occurred as described by the complainant, rather than as described by the appellant.[65]
[65] ts 150.
In this reasoning process, a critical step was determining that the appellant was speaking of the same incident as that described by the complainant. In this respect, it is significant that the trial judge found that the act of fellatio referred to by the appellant was admitted by him to have occurred in the context of a game of truth, dare or torture, and that he was a willing participant in that game. If the appellant had made those admissions, they would provide significant corroboration of the complainant's version of events (albeit that she did not refer to the game in those terms).
In fact, it is apparent from the appellant's interview with the police that he did not admit that the act of fellatio that he was referring to occurred in the context of a game, or that he was a willing participant in it.[66] Those contextual features did not form part of the conduct that he admitted to.
[66] See [43] - [46] above.
There were some references to the complainant and the appellant's sister playing truth, dare or torture.[67] However, when asked where the truth or dare game came into it, he said that was when they would wag school and he did not know when it happened. The appellant said that there would not have been anyone about at the time of the fellatio 'or I wouldn't have done that'.[68] He said that the alcohol was involved with the 'incidents we're talking about' not the 'truth or dare, torture'.[69] He said that the fellatio happened on only one occasion,[70] but when asked whether that could be on the same occasion as described by the complainant, the appellant said 'I'd say that would be, yeah'.[71] However, he said that it was not in the hallway,[72] and 'whatever games they were playing, well, I wasn't there'.[73] He also said this was the first time his penis was ever sucked so 'I don't know where the game they're talking about came from'.[74]
[67] BGAB 39.
[68] BGAB 40.
[69] BGAB 41.
[70] BGAB 42.
[71] BGAB 44.
[72] BGAB 45.
[73] BGAB 46.
[74] BGAB 46.
Taken as a whole, while he mentions games of truth or dare the appellant does not admit that the fellatio occurred in the course or context of a game of truth or dare, or while he was willingly participating in a game in the presence of others.
The contextual features of the fellatio having occurred in the context of a game with other people in which the appellant wanted to participate therefore did not form a part of the conduct that he admitted to. Those features were clearly relevant in determining whether the complainant's account of charge 3 was corroborated, whether to accept that the appellant's account was true, whether there was a reasonable possibility that the appellant's account might be true and whether to reject the appellant's account.
The trial judge erred when making findings as to the details of the admissions made by the appellant. The errors were material in that they had the capacity to affect the conclusion that the complainant's version of events in respect of charge 3 was reliable and that the prosecution had proved the appellant's guilt on charge 3 beyond reasonable doubt. Had the error not been made it is reasonably possible that the verdict would have been different. That error in making a finding of a material fact which the evidence was not capable of supporting constitutes a miscarriage of justice.
In the circumstances, ground 3 must succeed.
The State did not seek to rely on the proviso in s 30(4) of the Criminal Appeals Act 2004 (WA), as applied by s 42A of the Children's Court of Western Australia Act 1988 (WA). The appellant did not contend that an order other than a retrial was appropriate.

Conclusion

We would grant leave to appeal on both grounds. We would allow the appeal on ground 3, set aside the conviction and order a retrial before a different judge.
We would order a retrial rather than enter a judgment of acquittal on charge 3 for the following reasons. First, there is a public interest in the due prosecution and conviction of offenders and it is desirable, if possible, for the guilt or innocence of an accused to be finally determined by a tribunal of fact. Secondly, despite the trial judge's error, the evidence relied upon by the prosecution at the trial was capable of satisfying a tribunal of fact beyond reasonable doubt that the appellant was guilty of charge 3. Thirdly, there are no circumstances that would render it unjust to the appellant to make him stand trial again.
The orders should be as follows:
1.Extension of time granted.
2.Leave to appeal granted.
3.Appeal allowed.
4.Conviction set aside and a retrial ordered before a different judge.

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