DWM v The State of Western Australia [No 2] - [2019] WASCA 143

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   DWM -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2019] WASCA 143
CORAM:   BUSS P
MAZZA JA
PRITCHARD JA

HEARD:   9 APRIL 2019
DELIVERED          :   19 SEPTEMBER 2019
FILE NO/S:   CACR 172 of 2018
BETWEEN:   DWM
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STEWART DCJ
File Number             :   ALB IND 2125 of 2017

Catchwords:

Criminal law - Appeal against conviction - Conviction after trial - One count of indecent dealing with a child under the age of 13 years - Alleged error of law or miscarriage of justice - Longman direction - Delay - Alleged forensic disadvantage - Alleged failure to warn that delay between alleged offending and the appellant becoming aware of alleged offending caused forensic disadvantage

Alleged miscarriage of justice - Alleged failure of defence counsel to cross‑examine complainant about certain issues - Alleged failure of defence counsel to adduce certain evidence

Legislation:

Criminal Appeals Act 2004 (WA) s 40(1)(e)
Criminal Code (WA) s 320(4)

Result:

Appeal allowed
Judgment of conviction on count 1 set aside
Retrial on count 1 ordered

Category: B

Representation:

Counsel:

Appellant	:	Mr S Vandongen SC
Respondent	:	Mr L M Fox

Solicitors:

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

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

Angliss v The State of Western Australia [2005] WASCA 162
Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315
Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314
Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161
Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343
DWM v The State of Western Australia [2018] WASCA 227
Eravelly v The State of Western Australia [2018] WASCA 139
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
Huggins v The State of Western Australia [2018] WASCA 61
IAB v The State of Western Australia [2015] WASCA 238
Jeffery v The State of Western Australia [2018] WASCA 219
JJR v The State of Western Australia [2018] WASCA 51
Kooistra v The State of Western Australia [2018] WASCA 216
Liddington v The State of Western Australia [2005] WASCA 60; (2005) 152 A Crim R 502
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
R v GW [2016] HCA 6; (2016) 258 CLR 108
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96
SPB v The State of Western Australia [2012] WASCA 136
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234

BUSS P & MAZZA JA:

This is an appeal against conviction.
The appellant was charged on indictment in the District Court with two offences, each of which was said to have taken place in the one incident on a date unknown between 31 December 2013 and 1 January 2015, at a country town, in respect of a young girl, T, who was then a child under the age of 13 years. Count 1 alleged that the appellant indecently dealt with T by touching her vagina. Count 2 alleged that the appellant further indecently dealt with T by rubbing his penis on her buttocks. The offences are contrary to s 320(4) of the Criminal Code (WA).
On 9 August 2018, after a trial before Stewart DCJ and a jury, the appellant was found guilty of count 1 and not guilty of count 2.[1]
[1] ts 307.
On 20 August 2018, the appellant was sentenced to 12 months' immediate imprisonment, with eligibility for parole, to commence on that day.[2]
[2] ts 327.
On 10 September 2018, the appellant filed his appeal notice. On 4 December 2018, he was granted bail pending appeal.[3]
[3] DWM v The State of Western Australia [2018] WASCA 227.
The appellant relies on two grounds of appeal. As amended, ground 1 alleges that the learned trial judge made a wrong decision on a question of law, or alternatively occasioned a miscarriage of justice, by failing to warn the jury that the appellant had been forensically disadvantaged by the delay between the date of the alleged offence and the time at which he first became aware of the allegation by losing a chance to adequately test T's evidence or to adequately marshal a defence (particular (a) of ground 1). Alternatively, the learned trial judge made a wrong decision on a question of law, or alternatively occasioned a miscarriage of justice, by failing to warn the jury that the appellant suffered forensic disadvantage because of T's failure to make a prompt complaint, which warning was necessary in order to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case (particular (b) of ground 1). Leave to appeal has been granted in respect of this ground.[4] Ground 2 alleges that a miscarriage of justice was occasioned by the failures of defence counsel to cross‑examine T about certain issues, and to adduce evidence about those issues from the appellant and his de facto partner, Ms Y. The question of leave to appeal on this ground was referred to the hearing of the appeal.[5]
[4] WAB 4.
[5] WAB 5.

The State case

In summary, the State case was as follows. T was born in July 2004. At all relevant times she, her younger brother and her parents lived in a country town. The appellant, Ms Y and their three sons lived next door. The two families were neighbours for some six or seven years.[6]
[6] ts 43.
T and her younger brother would often play with the appellant's children. They spent time at each other's houses. Each house had a swimming pool and the children would often swim together at one or the other property. T also frequently visited Ms Y.[7]
[7] ts 43.
The State's case was that the alleged offences occurred sometime in 2014, when T was in year 4 at school. In the year before the offences were allegedly committed, it was said that the appellant started to compliment T on how she looked and to hug and kiss her. Initially, the kisses were to T's cheek, but after a while the appellant started to kiss her on the mouth.[8]
[8] ts 43.
On the day the offences were alleged to have occurred, T and her brother went to the appellant's house to see if his children wanted to go for a swim. Ms Y was not home at the time, but the appellant and his children were there.[9]
[9] ts 43 - 44.
The State alleged that the appellant took T into his bedroom and told the boys to go outside and wait by the swimming pool. The appellant closed the bedroom door and put T on the bed, face down. He then pulled down her pants and underwear and rubbed her bottom and vagina with his hand (count 1).[10] The appellant then rubbed his penis against T's lower back, her bottom and her upper legs (count 2).[11]
[10] ts 44.
[11] ts 44.
The appellant stopped what he was doing when one of his children knocked on the bedroom door. The appellant told the child to go away. He then pulled up his pants and walked outside the room. T got dressed and left the house.[12]
[12] ts 44.
T did not tell anyone about what had allegedly happened until about May 2017.[13]
[13] ts 44.
On 15 June 2017, T participated in a visually‑recorded interview which, in an edited form, comprised part of her evidence‑in‑chief.
The appellant first became aware of the allegation on 3 August 2017. On that day, Detective Sergeant Dayle Hamilton conducted a video‑recorded interview with the appellant, an edited version of which was played to the jury and tendered in evidence.[14] During the interview, the appellant denied touching T in a sexual way or behaving inappropriately towards her. The appellant accepted that there probably was an occasion in 2014 or 2015 when T came around to his house to swim with his children. He said that he was unable to remember any specific occasion when this occurred.[15]
[14] ts 155 - 160, exhibit 1.
[15] VROI ts 13 - 14; blue green AB 32 - 33.
In addition to T, the State adduced evidence from T's parents, two girls to whom T complained in about May 2017 and the investigating officer.
The State's case depended upon the credibility of the uncorroborated evidence of T.

The defence case

Later in these reasons, we will set out in some detail the evidence the appellant gave and the other testimony adduced by the defence. In summary, as defence counsel put it in his opening address to the jury, the defence case was that 'it didn't happen'.[16]
[16] ts 53.
The appellant elected to give evidence. Evidence was also adduced from Ms Y. In addition, three witnesses gave evidence of his good character.

Ground 1

As amended,[17] ground 1 reads as follows:
The learned trial judge made a wrong decision on a question of law by:
a.failing to warn the jury that because of the delay between the date of the offences alleged to have been committed by the appellant and the time at which he first became aware of [T's] allegation the appellant was forensically disadvantaged by losing a chance to adequately test [T's] evidence or to adequately marshal a defence; or, alternatively
b.failing to warn the jury that the appellant suffered from forensic disadvantages because of [T's] failure to make a prompt complaint, which warning was necessary in order to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case,
or that failure occasioned a miscarriage of justice.

The appellant's submissions

[17] See order made at the hearing of the appeal on 9 April 2019.

It was submitted on behalf of the appellant that there was a potential delay of up to almost four years between the occurrence of the alleged offence on a date unknown during 2014 and when the appellant was made aware of the allegation on 3 August 2017. It was submitted that this was a substantial delay and required the learned trial judge to give the jury a warning in accordance with the principles laid down by the High Court in Longman v The Queen[18] (a Longman direction).[19] Alternatively, even if the delay could not be characterised as a substantial one giving rise to the necessity for a Longman direction, the appellant had suffered forensic disadvantage as a consequence of T's failure to make a prompt complaint. Accordingly, it was necessary for the learned trial judge to warn the jury that the appellant had suffered forensic disadvantage in order to avoid a perceptible risk of a miscarriage of justice.[20]
[18] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79.
[19] Appellant's amended submissions, pars 23 - 25.
[20] Appellant's amended submissions, pars 19 - 21, 26.
While it was acknowledged by the appellant that the learned trial judge had given the jury what her Honour described as a 'modified' Longman direction,[21] that direction did not draw the jury's attention to the effect of delay on the capacity of the appellant to test T's evidence or the opportunity to adequately marshal a defence.[22] It was submitted that, if a Longman direction was required, this omission was contrary to the principles laid down by the High Court in Longman.

The respondent's submissions

[21] ts 226.

[22] See ts 226, regarding 'forensic disadvantage'.

The respondent submitted that a Longman direction was not required because the delay between the occurrence of the alleged offence and when the allegation was first brought to the attention of the appellant was not substantial.[23] As to the appellant's alternative submission, the respondent submitted that the failure of T to promptly complain did not require the learned trial judge to give the jury a warning in order to avoid a perceptible risk of a miscarriage of justice. The respondent submitted that any forensic disadvantage which flowed from 'the relatively minor delay' was obvious and did not suffer 'from the taint of hidden potential unreliability'.[24]

The trial judge's directions

[23] Respondent's written submissions, pars 25 - 28, 31 - 32; WAB 67 - 70.

[24] Respondent's submissions in response to the amended ground 1, pars 17 - 18.

After both trial counsel delivered their closing addresses, her Honour observed, correctly, that neither counsel addressed the jury on the question of any forensic disadvantage caused to the appellant by delay. However, she noted, also correctly, that 'there was a delay in complaint and [the appellant] was not told about the allegations until August 2017'.[25] Senior counsel for the defence suggested that her Honour should give a 'modified' Longman direction.[26] Her Honour acceded to this suggestion and she said that she would give:[27]
A modified [Longman direction] without forensic disadvantage, because it seems that nobody has talked in closing addresses about [the appellant's] forensic disadvantage.
[25] ts 226.
[26] ts 226.
[27] ts 226.
Prior to summing up the case for the jury, her Honour, in the absence of the jury, read to counsel the 'modified' Longman direction she proposed to give.[28] This foreshadowed direction was almost identical in terms to the direction her Honour ultimately gave to the jury. Defence counsel said that he was 'content' with the direction.[29]
[28] ts 251 - 254.
[29] ts 254.
Her Honour's direction was in these terms:[30]
[30] ts 265 - 266.
Now, I turn to some specific directions that I must give you as a result of the evidence adduced in this case. The State asks you to accept [T] as a witness of truth. She is of course the only witness against [the appellant] as to the happening of the events alleged in the indictment. There are no eye witnesses to the alleged offences. No one has confirmed or corroborated her evidence as to the offences themselves.
Therefore, as I explained yesterday afternoon, the position is that you must be satisfied beyond reasonable doubt about the truthfulness, accuracy and reliability of the evidence of [T] before you could convict the accused of any of the counts on the indictment.
Because of the crucial nature in this case of her evidence and because of the seriousness of the allegations she makes and factors [to] which I will now turn, I direct you that you must scrutinise her evidence with special care.
You should take carefully into account that the events are alleged to have happened on a date unknown between 31 December 2013 and 1 January 2015. [T], as you know, was born [in July 2004]. [T] was a young person at the time. She was aged between about nine and 10 years of age at the time of the alleged offending and human memory is fallible.
No complaint was made at the time. The complaint to police was made in May 2017. These are allegations of serious sexual crimes. There is no corroboration or confirmation of the evidence of [T] and no other evidence that the events happened.
Members of the jury, the longer the delay, the more opportunity there is for error and particularly is that so for events occurring in childhood. It is a matter of common experience that the longer that you believe something to have happened, the more convinced you are that it has happened. This can be so even if you are mistaken in your recollection.
You must also bear in mind all the matters that might have an impact on the reliability of the evidence of [T]. As I have said, she made no report to the police until May 2017. She was not interviewed by the specialist child interviewer until 15 June 2017.
You should consider the circumstances of [T] generally. As I have said, human memory is fallible and honest witnesses can be wrong in their recollection. [The appellant] was not questioned by police about the alleged offending until August 2017.
The passage of years between the alleged events and the matter coming to court for hearing raises the question that you must consider, which is the truthfulness, accuracy and reliability of [T]'s recollection and whether or not you can safely rely and act upon it. That is a specific issue which you must address in considering whether or not you accept [T]'s evidence.
These factors that I have set out, along with the delay in making a complaint to the police, should play a part in your evaluation of [T]'s testimony.
Members of the jury, this direction which I have just given you is based on the particular experience of courts in cases such as this. Because of these factors, I direct you that it is particularly important that you scrutinise the evidence of [T] with special care.
The direction is given to you because of the real danger of a miscarriage of justice which arises from convicting on her evidence alone. You are at liberty to act upon the evidence of [T] to convict [the appellant] if you were satisfied of the truth and accuracy of her evidence.
But it would be dangerous to convict [the appellant] on the uncorroborated evidence of [T] unless, having scrutinised her evidence with great care, having considered the circumstances relevant to that evidence to which I have referred and taking full account of the warning I have just given to you, you are satisfied beyond reasonable doubt as to her evidence being true, reliable and accurate.
It may be immediately noted that the direction does not refer to the effect that delay may have had on the capacity of the appellant to test T's evidence or the opportunity to adequately marshal a defence.[31]

Legal principles

[31] Appellant's amended submissions, par 25.

As Brennan J explained in Carr v The Queen,[32] in the majority of cases the assessment of the evidence can be left to the jury's experience unaided by judicial warnings. However, there are some occasions when a warning is required. The trial judge is obliged to give a warning to the jury if, in the circumstances of the particular case, the warning is necessary to avoid a perceptible risk of a miscarriage of justice.
[32] Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, 325.
The relevant principles which dictate when a warning is required were recently summarised by this court in Eravelly v The State of Western Australia,[33] in these terms:
The position may be summarised as follows. The judge must give a warning to the jury about its assessment of particular evidence whenever a warning is necessary in order to avoid a perceptible risk of a miscarriage of justice. As the High Court has recently explained, in such cases the risk is perceptible to the court because judicial experience has shown that evidence of this description or character may be unreliable. A perceptible risk of that kind arises when there is a feature of the evidence which may adversely affect its reliability, the significance of which may not be apparent to a lay jury.
Put another way, a direction is required where it is necessary for alerting the jury to difficulties with particular classes of evidence, or, we would add, particular evidence, with which they are unlikely to be familiar. (citations omitted)
[33] Eravelly v The State of Western Australia [2018] WASCA 139 [27] ‑ [28].
A Longman direction is an example of such a warning.
The circumstances in which a Longman direction must be given and its content have been the subject of many cases decided by this court. We need only mention three such cases, namely SPB v The State of Western Australia,[34] RMD v The State of Western Australia[35] and Eravelly. We adopt the statements of principle set out in those cases without repeating them. It is sufficient to say as follows.
[34] SPB v The State of Western Australia [2012] WASCA 136.
[35] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67.
The circumstances in which a Longman direction is regularly given involve significantly delayed and, at least generally, uncorroborated complaints by alleged victims of sexual offences, who are often young children at the time of the alleged offending.[36]
[36] Eravelly [17].
The primary rationale for giving a Longman direction is that a jury might fail to appreciate that, as a result of a substantial delay between the occurrence of the alleged offence and the accused being informed of the complaint, the accused will have suffered forensic disadvantage by losing the chance adequately to test the complainant's evidence and the chance adequately to marshal a defence.[37]
[37] RMD [129].

When a Longman direction is necessary, the trial judge must direct the jury to the effect that, as a result of the substantial delay, the accused has lost the chance adequately to test the complainant's evidence and the chance adequately to marshal a defence. The jury must be instructed to the effect that, although it can convict solely on the complainant's evidence if satisfied beyond reasonable doubt as to the truth and accuracy of his or her evidence, it must scrutinise the complainant's evidence with great care and take into account any facts and circumstances (including the forensic disadvantage suffered by the accused as a result of the substantial delay) which have a logical bearing on the truth and accuracy of that evidence. It is essential that the warning be given as a direction which the jury is bound to follow. A mere comment will not suffice.[38]
[38] RMD [132].
However, a Longman direction has not been reduced to an immutable formula or a ritual incantation, divorced from the facts and circumstances of the particular case. When the warning is necessary it must be crafted, by reference to the facts and circumstances of the particular case, with the object of ensuring a fair trial and avoiding the perceptible risk of a miscarriage of justice.[39]

Forensic disadvantage and substantial delay

[39] RMD [133].

The length of the delay which gives rise to the necessity for a Longman direction is not something that can be stated with mathematical precision. See Doggett v The Queen[40] and Tully v The Queen.[41] This can give rise to some difficulty in the practical application of Longman. However, as Crennan J pointed out in Tully:[42]
The critical issue in relation to the need for a warning in accordance with Longman is whether any delay in complaint (and/or prosecution), be it twenty years, or two or three years, creates a forensic disadvantage to an accused in respect of adequately testing allegations or adequately marshalling a defence, compared with the position if the complaint were of 'reasonable contemporaneity'. (citations omitted)
[40] Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343 [127] (per Kirby J).
[41] Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234 [179] (per Crennan J).
[42] Tully [181].
In Tully, Crennan J went on to observe that the shorter the delay, the more difficult it is for an accused to assert that he or she has lost the ability to adequately test the complainant's evidence or to adequately marshal a defence.[43]
[43] Tully [182].
In IAB v The State of Western Australia,[44] Hall J observed that there is no prescribed length of delay which will necessarily result in forensic disadvantage and impose a requirement for a Longman direction. The length of any delay needs to be viewed in the context of the particular facts of the case. Hall J identified such factors as whether the allegations are otherwise specific as to their place and nature, whether the time at which the incidents are said to have occurred is specified or can be determined and what options may have been available to the accused to make his own investigations if there had been no delay. His Honour's description of the relevant factors was plainly not intended to be exhaustive.
[44] IAB v The State of Western Australia [2015] WASCA 238 [41].

Ground 1 - disposition

In our opinion, in the circumstances of this case:
(a)the appellant suffered forensic disadvantages as a consequence of the delay between the occurrence of the alleged offences and the appellant being informed of the complaint (being a period potentially of about three years seven months);
(b)the nature and extent of the forensic disadvantages are to be inferred from the length of the delay and the facts and circumstances of the alleged offences, and did not require evidence from the appellant or any other witness;
(c)there was a real risk that the jury would overlook or fail adequately to appreciate the forensic disadvantages without a warning or direction from the learned trial judge;
(d)if the jury overlooked or failed adequately to appreciate the forensic disadvantages there was a perceptible risk of a miscarriage of justice; and
(e)her Honour was therefore obliged to give the jury a warning or direction which drew the jury's attention to the forensic disadvantages.
By reason of the delay, potentially of about three years seven months, the appellant suffered the following forensic disadvantages, the significance of which may not have been apparent to a jury, being:
(1)Bearing in mind that the alleged offences occurred during a single brief episode on an unspecified day, without any alleged uncharged acts of a similar kind, and in the context of T being a frequent visitor to the appellant's home (in order to use the swimming pool), the appellant could not reasonably have been expected to recall, in August 2017:
(a)where he was and what he did on the day he was alleged to have committed the offences; or
(b)where other members of his immediate family were and what they did on the day in question.
(2)Inquiries made in August 2017 were most unlikely to have revealed where his partner, his children or T and members of her family were, or what they were doing, during the day he was alleged to have committed the offences.
(3)The appellant was unable to adequately test T's evidence by reference to the surrounding circumstances, including what she was wearing on the day of the alleged offences.
If T had made complaint with reasonable promptness, and the appellant had been informed within a short period of the particulars of the complaint, the appellant would not have suffered those forensic disadvantages or at least forensic disadvantages of the magnitude that he did suffer.
As we have already observed, her Honour's direction did not draw the jury's attention to the effect of delay on the capacity of the appellant to test T's evidence or to adequately marshal a defence.
We acknowledge that defence counsel made no submissions to her Honour that the appellant had suffered forensic disadvantages as a result of delay, nor did he address the jury in closing to such effect. This is unfortunate and regrettable, given that the forensic disadvantages that we have outlined were real and should have been brought to her Honour's attention. It may be thought that the failure of defence counsel to bring the matters to her Honour's attention contributed to the absence of a direction concerning forensic disadvantages. As unfortunate and regrettable as it is that defence counsel failed to bring to her Honour's attention the forensic disadvantages suffered by the appellant, it remained the responsibility of the trial judge to direct the jury so as to ensure that the appellant received a fair trial. In the circumstances of this case, such a direction was necessary in order to avoid a perceptible risk of a miscarriage of justice. By failing to direct the jury that, in scrutinising T's evidence, it must take into account the forensic disadvantages suffered by the appellant as a result of the delay between the alleged occurrence of the offences and the appellant being informed of the allegations, her Honour's failure occasioned a miscarriage of justice. Particular (b) of ground 1 has been made out.

Ground 2

Ground 2 reads as follows:
A miscarriage of justice was occasioned by the fact that defence counsel did not cross‑examine [T] about certain issues, and did not adduce certain evidence from the accused and from [Ms Y].
Particulars
(a)Evidence in the form of video‑footage taken on 25 October 2014 showing the appellant assisting [T] to ride on a motorcycle was not put to [T] in cross‑examination and was not adduced in evidence through either or both the appellant and his partner, [Ms Y].
(b)Evidence was not adduced from the appellant or [Ms Y] about the cubby incident that was referred to by [T] in her visually recorded interview (at T 5), and [T] was not cross‑examined about this topic.
(c)[T] was not cross‑examined about whether she wanted to go camping with the appellant's family in late 2014, and whether she told [Ms Y] that she did want to go camping.

Applications to adduce additional evidence

In support of ground 2, the appellant filed, pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA), three applications to adduce additional evidence in the appeal dated 12 November 2018 (the first application), 29 January 2019 (the second application) and 4 April 2019 (the third application), respectively. All of these applications were referred to the hearing of the appeal.
The evidence sought to be adduced in the first application is the appellant's affidavit sworn 20 November 2018[45] and Ms Y's affidavit sworn 15 November 2018.[46] The respondent objected to various paragraphs in these affidavits. We will return to these objections later.
[45] WAB 33 - 39.
[46] WAB 7 - 32.
The evidence sought to be adduced in the second and third applications are the affidavits of Ms Y sworn 29 January 2019[47] and 4 April 2019,[48] respectively. No objection was taken to these affidavits.
[47] WAB 45.
[48] WAB 45.
The respondent did not require the appellant or Ms Y to be cross‑examined on any of their affidavits.
Both the appellant's senior and junior trial counsel declined to provide an affidavit after being requested to do so by the respondent.[49] It is unclear why this course was taken. Given the ground of appeal and the evidence sought to be adduced in support of it, there could be no issue of legal professional privilege. In circumstances such as in the present case, the interests of justice require that trial counsel cooperate when requested to provide information as to whether or not certain instructions were given by his or her client.

Evidence adduced at trial

[49] Respondent's written submissions, par 44; WAB 74.

Before setting out the additional evidence sought to be adduced on behalf of the appellant in the appeal, it is necessary to detail some of the evidence adduced at trial.

Evidence of T

T was born in July 2004.[50] T's evidence‑in‑chief largely comprised a relatively brief, visually‑recorded interview (VRI). In that interview, T said, relevantly to the ground of appeal, that:
(1)In the period prior to the commission of the alleged offences, the appellant would, amongst other things, kiss and hug her. She described the appellant kissing her on the cheek at first and then, later, on her lips.[51]
(2)On the day of the alleged offences, the appellant's partner, Ms Y, was not at home. T said that the appellant took her into his bedroom and told his sons to go away. He put her on the bed, face down, pulled down her pants and rubbed her 'in places [she] wouldn't want to be touched'. Then one of his sons knocked on the bedroom door, to which the appellant responded, 'I'll be out in a second. Go away'. The appellant then pulled up his pants and walked out of the room.[52]
(3)The appellant rubbed her around the area of her bottom and vagina, first with his hand, then with his penis.[53]
(4)In about November 2016, T, her brother and the appellant's children made a cubby in the bush outside her house. On an occasion when the appellant and his partner came to the cubby, he entered it and asked T when she was coming over 'so we can have our special cuddle?' (the cubby incident).[54]
(5)After the appellant committed the alleged offences, T did not go to the appellant's house without making sure that he was not there and she would only go over to see the appellant's partner.[55]
(6)She did not know the year the alleged offences happened, but she believed she was in year 4 or 5, at a time when she was aged 8 or 9. T also said that she was 'almost certain' she was in year 5.[56]
[50] ts 131.
[51] VRI, ts 4; blue green AB 8.
[52] VRI, ts 4 - 5; blue green AB 8 - 9.
[53] VRI, ts 7 - 8; blue green AB 11 - 12.
[54] VRI, ts 5; blue green AB 9.
[55] VRI, ts 5 - 6; blue green AB 9 - 10.
[56] VRI, ts 5, 12; blue green AB 9, 16.
At the outset of her examination‑in‑chief, T said that she had viewed the VRI and that everything she had said was true and correct, save for the identity of her year 5 teacher.[57] She elaborated about the use by the appellant of the words 'special cuddle'. T said that the appellant had used the words 'special cuddle' before the cubby incident and she understood the expression to mean a kiss by him on her lips.[58]
[57] ts 73.
[58] ts 74 - 75.
T also said, in examination‑in‑chief, that when the alleged offences occurred she was wearing purple leggings and underpants. She was not wearing bathers.[59]
[59] ts 76.
T also said that she did not tell anyone what had happened straight away because she was scared and uncertain that anyone would believe her. Eventually, she told two school friends, CL and JP, on 14 May 2017, Mother's Day.[60]
[60] ts 78.
In cross‑examination by senior counsel for the defence:
(1)T said that the alleged offences occurred in the appellant's bedroom 'at the start of 2014'.[61]
(2)In 2015, she started a diary. There was no entry in the diary about the appellant touching her sexually.[62]
(3)Although she had been attending counselling sessions since 2012, she had not told her counsellors about the offences allegedly committed by the appellant until after she disclosed the alleged offences to the police in June 2017.[63]
(4)It was put to T, and denied by her, that she had told one of her friends that at the time of the alleged offences she was wearing her bathers.[64]
(5)T agreed that she regularly visited the appellant's home to play with his children.[65]
(6)T said that sometime after Christmas Eve 2014 she found out that the appellant's children were changing schools. She agreed that this caused her to become very upset.[66]
(7)T agreed that at the time the alleged offences were committed she did not see the appellant's penis.[67]
(8)Between the occurrence of the alleged offences and the time she was interviewed by the police, she only went to the appellant's house when he was away.[68] T said that during this period she did not go to the appellant's house very often and repeated that she would only go there while the appellant was away. T acknowledged that by going to the appellant's house she ran the risk of seeing him, but she explained that she did so because the rest of his family had done nothing wrong and she did not want to appear to be hiding something. T also said that if she had run into the appellant, she would have gone home.[69]
(9)T denied going to the appellant's house at all in 2017 and she said that the last time she went to the appellant's house was late in 2016.[70]
(10)T denied propositions put to her to the effect that the appellant had not behaved in a sexual manner towards her.[71]
[61] ts 84.
[62] ts 88 - 89.
[63] ts 89 - 91.
[64] ts 97.
[65] ts 101.
[66] ts 101 - 103.
[67] ts 104.
[68] ts 107.
[69] ts 108.
[70] ts 110.
[71] ts 111.
Senior counsel did not cross‑examine T about the cubby incident, nor about the matters the subject of particulars 2(a) and (c) of ground 2.

Evidence of CL and JP

CL and JP each testified that T disclosed the alleged offences to them in 2017.[72] Their evidence as to what T told them was generally consistent with T's evidence, and CL's evidence was not materially challenged under cross‑examination.[73]

Evidence of SR

[72] ts 119 - 121, 127 - 128.

[73] JP was not cross‑examined; see ts 128.

SR is T's mother.
In examination‑in‑chief, SR said:
(1)She and her family were neighbours with the appellant and his family for around six to seven years.[74]
(2)In about 2014, at about the time when T was in year 4, T was visiting the appellant's house nearly every day.[75]
(3)T's visits to the appellant's house reduced 'a little' after SR told T that she was going to the appellant's house 'a lot' and that T needed to 'tone it back a bit'.[76]
(4)T visited the appellant's house infrequently in 2015 and, by 2017, T 'very rarely' visited.[77]
[74] ts 131.
[75] ts 131 - 132.
[76] ts 132.
[77] ts 136.
SR said that, while in 2016 and 2017 T's visits to the appellant's house reduced 'right down', she still went there on occasions.[78] SR agreed that she was not told about the allegations T had made against the appellant until 2017.[79]
[78] ts 139.
[79] ts 139.
SR agreed that, on Christmas Eve 2014, she found out that the appellant's children were moving schools, news which greatly upset T.[80]

Evidence of MR

[80] ts 140 - 141.

T's father, MR, gave brief evidence. In examination‑in‑chief, he testified that T frequently visited the appellant's house up to around 2013 and 2014, when her visits reduced.[81] In cross‑examination, MR said that T was 'a bit upset' when she learned that the appellant's children were going to attend a different school.[82]

Evidence of Detective Sergeant Dayle Hamilton

[81] ts 147 - 148.

[82] ts 152.

Detective Hamilton testified that, on 3 August 2017, he arrested the appellant and took him to the police station where he conducted a video‑recorded interview with him. An edited version of the video was played to the jury and tendered in evidence as exhibit 1.[83]
[83] ts 155 - 156, 160.
During the interview, the appellant said:
(1)Effectively, that he did not touch T inappropriately.[84]
[84] Police interview, ts 7 - 8; blue green AB 26 - 27.
(2)That he saw T 'as like one of my children'.[85]
(3)T used to come over to swim with his children in their pool.[86]
(4)He believed that the last time he saw T at her house was maybe 12 months ago and that the last time he recalled her coming over for a swim 'could be a couple of years ago'.[87]
(5)When the specific allegations of misconduct were put to the appellant, he said that he did not engage in the misconduct.[88]
(6)There were occasions where he gave T a hug or a kiss on the head 'just like one of the kids'.[89]
(7)The last time the appellant saw T was at a hockey fixture about a week and a half before the interview.[90]
(8)That he had seen T at his house a few times in the last couple of years, although he did not really pay attention to what she did.[91]
(9)Towards the end of the interview, the appellant said that he was 'just dumbfounded' by the allegations.[92]

Evidence of the appellant

[85] Police interview, ts 8; blue green AB 27.

[86] Police interview, ts 8; blue green AB 27.

[87] Police interview, ts 10; blue green AB 29.

[88] Police interview, ts 17 - 20; blue green AB 36 - 39.

[89] Police interview, ts 21; blue green AB 40.

[90] Police interview, ts 23; blue green AB 42.

[91] Police interview, ts 26; blue green AB 45.

[92] Police interview, ts 29; blue green AB 48.

At the outset of his examination‑in‑chief, the appellant confirmed that everything he had said to the police in his interview was true and correct.[93]
[93] ts 165.
The appellant said that, in 2014, T and her brother were at his place 'all the time'.[94] In that year he worked on a fly in/fly out basis with a roster of one week on, one week off.[95]
[94] ts 170 - 171.
[95] ts 170.
The appellant said that, in 2014, he and his wife made a decision to change their children's school so that his children would have less to do with T and her brother.[96] The appellant said that T was notified of this on Christmas Eve 2014.[97] As a result, T became extremely emotional.[98]
[96] ts 172.
[97] ts 172.
[98] ts 173.
The appellant said that after his children changed schools, the contact that T and her brother had with his family 'started to drop right off',[99] although T came to his house from time to time. On those occasions, he had little conversation with her.[100]
[99] ts 174.
[100] ts 174.
The appellant recalled an occasion in 2017 when T came to his house to visit. He recalled seeing her and saying 'Hi'.[101] At the time, the appellant's partner and children were also at home.[102]
[101] ts 174.
[102] ts 174.

The appellant was cross‑examined briefly. He accepted that in 2014 the relationship between his family, on the one hand, and T's family, on the other, changed.[103] The appellant explained that there were issues with T and her brother. For example, when they played in the craft room, they left it 'in a total mess' and destroyed 'hundreds of dollars worth of craft products'. Moreover, the appellant said, T and her brother would 'waltz in and out of the house, used it as their own and never really said thank you for it'.[104]
[103] ts 177.
[104] ts 178.
When the prosecutor pointed out to the appellant that he had not spoken of such things in the police interview, the appellant responded to the effect that at the time he was under pressure and had not recalled 'everything [I've] done in [my] life'.[105]
[105] ts 179.
The appellant denied that he had made up his stated difficulties with T and her brother since the interview with the police.[106]
[106] ts 180.
The final exchange between the prosecutor and the appellant in cross‑examination was as follows:[107]
But I'd be correct in saying it doesn't matter how many questions I ask about that touching, you're going to deny it?‑‑‑I have got - I can't answer those questions. It never happened.
[107] ts 181.
None of the matters raised in the particulars to ground 2 were the subject of evidence adduced from the appellant at the trial.

Evidence of Ms Y

In examination‑in‑chief, Ms Y said:
(1)That she met T's family very soon after her family (the appellant's family) began living next door and that she and T's mother became 'quite close friends'.[108]
(2)In 2014, T and her brother came to her house 'all the time' to play with her children. She and T also 'often spent time together doing craft'.[109] As a result, she developed a close relationship with T.[110]
(3)She and the appellant had strict rules about the use of their pool, including that the children were always to be supervised by either the appellant or herself while they were using the pool.[111]
(4)From towards the end of 2013 through to 2014, her relationship cooled with SR and her family over a number of issues.[112] Eventually, the appellant and Ms Y decided to enrol their children at a new school in 2015.[113] On Christmas Eve 2014, T and her mother were informed of this. T became 'inconsolable'.[114]
(5)After Christmas Eve 2014, T came to Ms Y's house 'a handful of times'.[115]
(6)A few weeks before the appellant was arrested in 2017, T visited Ms Y at her (Ms Y's) house and stayed for about an hour and a half. They had gone through the bedroom into the craft room.[116]
[108] ts 186.
[109] ts 187.
[110] ts 187.
[111] ts 190.
[112] ts 191.
[113] ts 192.
[114] ts 193.
[115] ts 194.
[116] ts 195.
Under cross‑examination, Ms Y said, in effect, that her relationship with T's mother had deteriorated by the end of 2013.[117] However, Ms Y continued to have a good relationship with T until about the end of 2014.[118] Ms Y agreed that when T came to her house in 2017, she had not seen her for some time.[119]
[117] ts 198.
[118] ts 203.
[119] ts 205.
None of the matters raised in the particulars to ground 2 were the subject of evidence adduced from Ms Y.

Evidence of good character

Three witnesses were called by the defence who attested to the appellant's good character. It is unnecessary to detail their evidence.

The affidavit evidence sought to be adduced in this appeal

The first application

As we mentioned earlier in these reasons at [46], the respondent objected to various paragraphs in the affidavits sworn by the appellant and Ms Y in support of the first application. In response to these objections, the appellant did not rely upon large portions of both affidavits. There remained minor disagreements between the parties as to the admissibility of small portions of the affidavits. It is unnecessary to resolve these disagreements because, at best, they concern matters that are peripheral to the resolution of ground 2.
The relevant and admissible parts of Ms Y's affidavit sworn 15 November 2018 were that she provided the appellant's trial counsel with:
(1)Video footage time‑stamped 25 October 2014 which showed the appellant helping T ride a motorcycle (the motorcycle incident). According to Ms Y, T had been at her (Ms Y's) house prior to the incident and T remained there after it.[120]
(2)Instructions that in late 2014, Ms Y and T had a conversation about family holidays. T said that she did not enjoy her family's holidays much. Ms Y told T about her family holidays. T told her that the holidays Ms Y described 'sounded more fun'. T said 'that she would love to come on holiday' with her (Ms Y's) family. T continued that she would ask her parents if she could do so.[121] Ms Y said that at one point in the conversation the appellant entered the dining room and interrupted the conversation to add more about what their family did on holiday.[122]
(3)Instructions in relation to the cubby incident that, in the winter of 2016, her children came home from playing near a creek and wanted to show the appellant and her a cubby they had built along the creek with T and T's brother. Ms Y said that she and the appellant went to view the cubby. When they got there, all of the children (including T) wanted her and the appellant to have a closer look inside. Ms Y said that the appellant, two of her sons and T went inside the cubby. She did not go in because there was no room for her. According to Ms Y, she did not see the appellant alone in the cubby with T. Ms Y said that after the appellant came out of the cubby T was giggling and laughing.[123]
[120] Ms Y's affidavit, sworn 15 November 2018, par 15(ii); WAB 15.
[121] Ms Y's affidavit, sworn 15 November 2018, pars 16(i) - 16(iv); WAB 15 - 16.
[122] Ms Y's affidavit, sworn 15 November 2018, par 16(vi); WAB 16.
[123] Ms Y's affidavit, sworn 15 November 2018, pars 18(i) ‑ 18(ii), 18(v) ‑ 18(vii), 18(ix), 18(xiii); WAB 17 ‑ 18.
The relevant and admissible parts of the appellant's affidavit, sworn 20 November 2018, were that he provided his lawyers with the following instructions:
(1)After his children changed schools, he did not see T for at least the first six months of 2015.[124]
(2)Ms Y took a video of T riding a motorcycle at the back of the appellant's property (this is the video which Ms Y says was taken on 25 October 2014).[125]
(3)In relation to the cubby incident, the appellant entered the cubby, but at no point was he in the cubby with T alone, and he did not speak to her while inside.[126]

The second application and third application

[124] The appellant's affidavit, sworn 20 November 2018, par 10(ii); WAB 37.

[125] The appellant's affidavit, sworn 20 November 2018, par 10(iii); WAB 37.

[126] The appellant's affidavit, sworn 20 November 2018, pars 11(ix) ‑ 11(x), 11(xviii), 11(xix); WAB 38.

In the second application, the appellant sought to adduce as evidence the affidavit of Ms Y sworn 29 January 2019 in which she produced a copy of the video footage taken on 25 October 2014 of the motorcycle incident.[127]
[127] Ms Y's affidavit, sworn 29 January 2019, par 3; WAB 45.
In the third application, the appellant sought to adduce as evidence the affidavit of Ms Y sworn 4 April 2019 in which she confirmed that the video footage of T riding the motorcycle was taken on 25 October 2014.
We have viewed the footage, which lasts approximately three minutes. In it, a young girl, presumably T, can be seen slowly riding what appears to be a low‑powered motorcycle by herself in a park. A man, presumably the appellant, can be seen twice, on each occasion briefly. The footage does not show him touching T. As Ms Y is the person taking the video, it is clear T is not alone with the appellant.

Effect of the applications

As the respondent did not cross‑examine either the appellant or Ms Y on the content of their affidavits or in any other relevant way challenge what each had written, it may be accepted that the appellant's lawyers, prior to trial, were instructed that:
(1)On 25 October 2014, the appellant assisted T to ride on a motorcycle and he and Ms Y provided the lawyers with a recording of the incident.
(2)In connection with the cubby incident, both the appellant and Ms Y were prepared to testify to the effect that the appellant and T were not alone together in the cubby.
(3)In late 2014, T told Ms Y that she would like to go on holiday with the appellant's family.

The appellant's submissions

The appellant submitted that, on 25 October 2014, the appellant assisted T to ride a motorcycle and, in late 2014, T indicated a desire to join the appellant, Ms Y and their children on a camping holiday and that these actions were inconsistent with T's evidence that after the appellant committed the alleged offences she avoided contact with him.[128]
[128] Appellant's written submissions, pars 34 - 36, 41 - 42; WAB 54 - 56.
Further, the instructions given to the appellant's lawyers concerning the cubby incident had potential to cast doubt upon the veracity of T's account of this incident and, in particular, that she and the appellant were alone in the cubby.[129]
[129] Appellant's written submissions, pars 37 - 39; WAB 55 - 56.
The appellant submitted that the failure of defence counsel to cross‑examine T on any of the above matters and to adduce the relevant evidence from the appellant and/or Ms Y about them could not, when objectively viewed, be as a result of any legitimate forensic decision.[130]
[130] Appellant's written submissions, par 43; WAB 56.
The appellant submitted that defence counsel's conduct amounted to a material irregularity; that is, there was a significant possibility that counsel's failures affected the outcome. As a consequence, the appellant has suffered a miscarriage of justice.[131]

The respondent's submissions

[131] Appellant's written submissions, par 44; WAB 56.

The respondent submitted that although it might have been open for defence counsel to have adduced evidence concerning the matters raised on behalf of the appellant and/or cross‑examined T about them, a failure to do so did not amount to a material irregularity and therefore there has been no miscarriage of justice.[132]
[132] Respondent's written submissions, par 46; WAB 74.
The respondent submitted that while T testified that the alleged offences occurred in early 2014, she could not be sure of the exact date. Accordingly, it cannot be established that the video taken on 25 October 2014 was taken after the alleged offences were committed. Further, T's evidence was not that after the alleged offences were committed she never attended the appellant's house. Rather, T testified that she tried to avoid going to the appellant's house when he was there. Further, in cross‑examination T said that she tried to engage with other members of the appellant's family as normal so that no‑one would suspect that anything had happened. In these circumstances, defence counsel may have taken the view that to elicit the evidence and/or to cross‑examine T in respect of it would be of little or no forensic value.[133]
[133] Respondent's written submissions, pars 48 - 50; WAB 74 - 75.
In respect of the cubby incident, the respondent submitted that the incident itself attracted little attention in the trial and to have cross‑examined T on it, and led evidence from the appellant and Ms Y regarding it, may have reasonably been thought by defence counsel to have highlighted the testimony.[134]
[134] Respondent's written submissions, par 51 - 52; WAB 76.
With respect to the conversation Ms Y had with T in late 2014 in which T said she wanted to go camping with the appellant's family, the respondent submitted that counsel may have reasonably thought that to cross‑examine T about this conversation may have been met with an unhelpful response to the effect that T enjoyed being with Ms Y and her children and that it sounded as if their holidays were more fun than T's family holidays.[135]

General principles

[135] Respondent's written submissions, par 52 - 54; WAB 76 - 77.

The general principles relating to a ground of appeal which alleges a miscarriage of justice by reason of the conduct of defence counsel are well established and are uncontentious. They were recently stated by this court in Huggins v The State of Western Australia.[136] We adopt what was written in Huggins without repeating it. See also Jeffery v The State of Western Australia.[137]
[136] Huggins v The State of Western Australia [2018] WASCA 61 [375] - [383].
[137] Jeffery v The State of Western Australia [2018] WASCA 219 [172] ‑ [177].
For present purposes, it is sufficient to note the following.
An appellant who seeks to demonstrate that the conduct of his or her counsel caused a miscarriage of justice undertakes a heavy burden which is not easily discharged. This is a consequence of the adversarial nature of a criminal trial and the role played by counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel. A conviction will not be set aside merely because decisions made by counsel were made without, or contrary to, instructions or involved errors of judgment or even negligence. An apparently rational decision by trial counsel as to what evidence to call or not to call does not give rise to a miscarriage of justice merely because an appellate court thinks it worked to the probable disadvantage of the appellant. In Nudd v The Queen,[138] the High Court concluded that, notwithstanding that counsel's conduct of the trial was incompetent to a serious degree and that some of that conduct could not be rationally justified, there was no miscarriage of justice. That illustrates the challenging character of a ground of appeal that asserts a miscarriage of justice arising through counsel's conduct at trial.[139]
[138] Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 [54] - [55], [101], [104], [158] - [159].
[139] Huggins [376] - [377].
When a ground of appeal alleges that there was a miscarriage of justice, the focus of the inquiry must be upon the consequences of counsel's conduct and the extent to which it caused or contributed to a miscarriage of justice.[140]
[140] Huggins [378].
When an appellant asserts that counsel's conduct caused a miscarriage of justice, an appellate court does not examine whether a decision taken by the accused's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage. Rather, the appellate court is concerned only with whether counsel's decision is capable of explanation on that basis.[141] As Hayne J put it in TKWJ v The Queen,[142] the question for an appellate court is, 'Could there be any reasonable explanation for not calling the evidence?'. If there is, it will not give rise to a miscarriage of justice, subject to the qualification identified by Gaudron J in TKWJ,[143] that:
It may be that, in the circumstances, the forensic advantage is slight in comparison with the importance to be attached to the defect or irregularity in question. If so, the fact that counsel's conduct is explicable on the basis of forensic advantage will not preclude a court from holding that, nevertheless, there was a miscarriage of justice. (footnote omitted)
[141] Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96 [115].
[142] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [107].
[143] TKWJ [28].

Ground 2 - disposition

For the reasons given below, we are of the opinion that ground 2 has not been made out.
We accept that the appellant and Ms Y gave instructions to the defence lawyers as they describe in their affidavits. We also accept that it would not have been unreasonable for defence counsel to have pursued the matters now raised on behalf of the appellant. Plainly, with the advantage of hindsight, the appellant wishes that defence counsel had pursued the matters now raised and he believes that defence counsel's failure to do so worked to his disadvantage. However, having regard to the legal principles mentioned above, acceptance of these things does not establish a miscarriage of justice.
The potential forensic advantage of the motorcycle incident and T's discussion with Ms Y in which she indicated that she wished she could go on holidays with the appellant and his family derives from the alleged inconsistency of this conduct with T's claims that she had been molested by the appellant. Further, it is said that the conduct contradicted her testimony to the effect that after the commission of the alleged offences, T avoided contact with the appellant.
Given that the date on which the alleged offences occurred was any time in 2014, defence counsel may have reasonably thought that the motorcycle incident and the conversation concerning the holiday might readily be explained as having occurred before the commission of the alleged offences.
Even if the motorcycle incident occurred after the commission of the offences, it is, as we have noted earlier, apparent from the video of the incident that T was not alone with the appellant; it did not occur at the appellant's house and it appears from the video footage that T had little interaction with the appellant. Defence counsel may reasonably have formed the view that adducing evidence of the motorcycle incident and cross‑examining T about it would not have materially furthered the appellant's case.
Even if the conversation concerning the holidays occurred after the alleged offences, it took place predominantly between T and Ms Y at a time when T wished to continue having contact with Ms Y and her children and when T did not wish to give the appearance that she was hiding something from them. Further, there is nothing to indicate that T did anything to further her apparent desire to go on holiday with the appellant's family. As with the motorcycle incident, defence counsel may reasonably have formed the view that adducing evidence of the conversation and cross‑examining T about it would not have materially furthered the appellant's case.
It is apparent from T's evidence, and it is not disputed in the proceedings before this court or the court below, that T and the appellant's children built a cubby in a bush area near their respective houses and that the children asked the appellant and Ms Y to come and see it. The particular point which the appellant now wishes to make in regard to the forensic advantage of the cubby incident, and which, it is claimed, defence counsel should have made at trial, is that the appellant and T were not alone, and could not have been alone, together in the cubby and therefore they could not have had the alleged conversation in which the appellant asked T for a 'special cuddle'.
We have viewed the photographs taken by Ms Y of the area in which the cubby was allegedly built, which she says she gave to the appellant's trial lawyers. The photographs do not establish that any cubby that was built there could not have accommodated the children and the appellant. Further, Ms Y's evidence does not establish that, if the appellant asked T for a 'special cuddle', Ms Y would have heard it.
Defence counsel may reasonably have taken the view that adducing evidence from the appellant and Ms Y about the cubby may have confirmed T's testimony, at least to the extent that it confirmed that a cubby was built and that the appellant entered the cubby in close proximity to T. In these circumstances, defence counsel may have formed the reasonable view that it would be better to leave the matter alone. Further, even if defence counsel's decision with respect to the cubby incident was unreasonable, the matter received little attention at the trial. It was not referred to in trial counsel's closing addresses. We are unable to conclude that counsel's decision materially affected the outcome of the trial.

In our view, the appellant has not discharged the heavy burden upon him of establishing a miscarriage of justice as a result of the conduct of defence counsel. None of the matters raised by the appellant, either individually or in combination, establish that he has suffered a miscarriage of justice. While we would grant leave to appeal and grant the applications to adduce additional evidence in the appeal, ground 2 has not been made out.

Conclusion and orders

Particular (b) of ground 1 has been made out. The appellant's conviction must be set aside and a retrial ordered.
The orders we would make are as follows:
1.Leave to appeal on ground 2 is granted.
2.The applications to adduce additional evidence in the appeal, filed 12 November 2018, 29 January 2019 and 4 April 2019, are granted.

3.The appeal is allowed.
4.The conviction on count 1 is set aside.
5.The appellant is to be retried on count 1.

PRITCHARD JA:

I have read the reasons for decision of Buss P and Mazza JA. I agree with their Honours that the appeal should be allowed. I agree that leave to appeal on ground 2 should be granted, but that ground 2 of the appeal has not been made out. While I also agree that ground 1 has been made out, I would prefer to set out my own reasoning to that conclusion. In doing so, I need not repeat the background facts, and the summary of the parties' submissions on ground 1(a), as set out at [1] ‑ [27] of the plurality's reasons.

The issues raised by ground 1, and my conclusion

Ground 1, as amended, asserts that the learned trial judge made a wrong decision on a question of law, or failed to direct the jury, which failure constituted a wrong decision on a question of law, or occasioned a miscarriage of justice, in two alternative ways. First, in ground 1(a) it is contended that the learned trial judge failed to warn the jury that, because of the delay between the date of the alleged offences and the time when the appellant first became aware of T's allegations, the appellant was forensically disadvantaged by losing a chance to adequately test T's evidence or to adequately marshal a defence.
The appellant contends, in the alternative, in ground 1(b) that the learned trial judge failed to warn the jury that the appellant suffered from forensic disadvantages because of T's failure to make a prompt complaint, when that warning was necessary in order to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case.
For convenience, throughout these reasons, when I refer to the delay in this case, I mean the delay between the date of the alleged offences and the time when the appellant first became aware of T's allegations. Bearing in mind that the offences were alleged to have occurred on a date unknown between 31 December 2013 and 1 January 2015, and that the appellant first became aware of T's allegations on 3 August 2017, the delay in this case was between 2 years and 7 months and 3 years and 7 months.

The difference between the two alternative bases for ground 1 amounts to this. The appellant says that in this case, the delay was substantial, and that therefore a Longman direction was required (ground 1(a)), but that the learned trial judge did not give the required Longman direction.[144]
[144] Appellant's amended submissions [25].
In the alternative, the appellant says that even if the delay is not regarded as substantial, then a warning was necessary to avoid a perceptible risk of a miscarriage of justice. That perceptible risk of a miscarriage of justice arose because, in all of the circumstances, the delay resulted in the appellant suffering the forensic disadvantage of being unable to adequately test T's evidence or to marshal a defence.
In my respectful view, for the reasons set out below, the delay in this case cannot properly be characterised as substantial. Consequently, the learned trial judge was not required to give a Longman direction. Ground 1(a) fails for that reason.
However, there clearly was a delay. I do not accept that the appellant has demonstrated that that delay, in all of the circumstances, resulted in all aspects of the forensic disadvantage he now claims. However, I am persuaded that the circumstances, namely the delay, together with the fact that the only persons present at the appellant's house when the alleged offences are said to have occurred were children, meant that the appellant suffered a forensic disadvantage about which the jury would not have been cognisant, in the absence of a direction. That forensic disadvantage was the loss of the chance to test T's evidence, or to marshal a defence, by reference to any recollection the children had of the events of the day in question. In my respectful view, the failure by the learned trial judge to give the jury a direction about that forensic disadvantage and its implications, occasioned a miscarriage of justice, and ground 1(b) must be upheld for that reason.

The appellant's case as to the forensic disadvantages he suffered as a result of delay

The appellant submitted that 'there was a potential delay of up to almost 4 years before the accused first became aware of the allegations'.[145] (As I have said, the delay was, in fact, between 2 years and 7 months and 3 years and 7 months.)
[145] Appellant's amended submissions [16].
Counsel for the appellant submitted that the appellant faced 'obvious forensic disadvantages' as a result of the particular circumstances of this case. Those circumstances were:[146]
(i)T alleged that the appellant indecently dealt with her in his bedroom on a single occasion when she had come over to his house for a swim with his children, an activity which occurred regularly;
(ii)the time when the offences were alleged to have occurred could not be determined, other than that it was on a date unknown during a 12-month period;
(iii)the appellant's family lived next door to T's family, and T was a frequent visitor to the appellant's house;
(iv)the relationship between the two families had soured in late December 2014 (many months after the offences were alleged to have been committed and well before any complaint was made) when T discovered that the appellant's children would be changing schools.
[146] Appellant's amended submissions [19] - [20].
The appellant submitted that the 'obvious forensic disadvantages' to which the delay in these circumstances gave rise included:[147]
(a)the appellant was unable to recall, or make inquiries about, where he was on the day he was alleged to have committed the offences;
(b)the appellant was unable to make inquiries about where his partner, his children, or T, were during the day he was alleged to have committed the offences;
(c)the passage of time, and the lack of specificity about when the offences were alleged to have occurred, may have affected the appellant's ability to marshal reliable evidence, including evidence from his children about relevant events;
(d)the appellant was unable to adequately test T's evidence by reference to any surrounding circumstances, including what she was wearing on the day of the alleged offences, or her assertions that she only went over to the appellant's house after the alleged offences when he was not there.
[147] Appellant's amended submissions [21].
The appellant submitted that the forensic disadvantage referred to at [121(c)] above 'was particularly acute as the appellant's ability to marshal reliable evidence from his young children about relevant events was likely to have been adversely affected by any failure to make a prompt complaint'.[148]
[148] Appellant's amended submissions [22].

Principles

The Longman direction

The circumstances in which a Longman direction is given involve substantial delay and, at least generally, uncorroborated complaints by alleged victims of sexual offences, who were often children at the time of the alleged offending.[149]
[149] Eravelly v The State of Western Australia [2018] WASCA 139 [17].
The Longman direction is required because the implications of the delay in prosecution may not all be apparent to the jury. The delay will very likely result in the accused and complainant, and any potential witnesses, having a diminished memory of the events in question. The jury may not appreciate that the delay may therefore bear upon the reliability of the complainant's evidence and, in a case where there is no corroborative evidence, that will be a significant matter for their consideration.
However, another factor which may not be apparent to the jury is that, as a result of a substantial delay between the occurrence of the alleged offence and the accused being informed of the complaint, the accused will have suffered forensic disadvantage by losing the chance to test the complainant's evidence and the chance to marshal a defence. As the plurality in Longman explained:[150]
[T]here is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them … That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay. (emphasis added)
[150] Longman (91).
Accordingly, the plurality in Longman concluded that the jury should have been given a warning in the following terms:^[151]
[A]s the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy.
[151] Longman (91).
A warning in those terms thus requires the trial judge to explain to the jury the reason why it would be dangerous to convict on the uncorroborated evidence of the complainant, and then to explain to the jury how to avoid that danger.[152]
[152] Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234[174] (Crennan J, Heydon J agreeing).
The kinds of forensic disadvantage which an accused may suffer in cases of delay between the commission of an alleged offence and when the accused first becomes aware of a complainant's allegation include: the ability to locate other witnesses; the difficulty in recollecting precisely what the accused was doing on the occasion in question; the inability to obtain evidence which is capable of providing an alibi, or corroborative evidence of the accused's whereabouts at the time of the alleged offence; and the ability to obtain evidence with which to test the reliability of the complainant's evidence, such as accurate details of the location where the alleged offence occurred, or of what the accused or the complainant was wearing and so on.
It is not, and has never been, the case that the existence of any delay at all between an alleged offence and the complaint coming to the accused's attention, requires a Longman direction to be given.[153] The requirement for such a direction will arise when a substantial delay results in a forensic disadvantage to an accused, which may not be appreciated by the jury without a warning.[154]

The direction given to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case

[153] Kooistra v The State of Western Australia [2018] WASCA 216 [49]; Angliss v The State of Western Australia [2005] WASCA 162 [15] (Wheeler JA).

[154] Kooistra [49].

The purpose of the requirement for a Longman direction is to ensure a fair trial and to avoid a miscarriage of justice. In that respect, a Longman warning can be seen as merely a particular instance of the application of a more general principle, namely that a warning must be given whenever 'necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case'.[155]
[155] Longman (86); Eravelly [18].
In Carr,[156] Brennan J explained the basis for that principle in the following way:
A warning may be needed to ensure that the jury attributes the appropriate significance and weight to the evidence. … In the majority of cases the assessment of the evidence can be left to the jury's experience unaided by judicial warnings but there are some occasions when a warning is needed. A warning is needed when there is a factor legitimately capable of affecting the assessment of evidence of which the judge has special knowledge, experience or awareness and there is a perceptible risk that, unless a warning about that factor is given, the jury will attribute to an important piece of evidence a significance or weight which they might not attribute to it if the warning were given. It is not possible to define a priori the circumstances in which a warning is necessary: the circumstances which show whether a perceptible risk of miscarriage of justice exists in relation to the assessment of evidence include the charge, the evidence and the conduct and atmosphere of the trial.
[156] Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314 (324 - 325).
In considering whether a direction is required in order to avoid a perceptible risk of a miscarriage of justice, it will be relevant to consider whether there is a question about the reliability of some important aspect of the evidence against the accused, whether that arises from a factor the significance of which may not be appreciated by the jury, whether the evidence in question is corroborated and whether and, if so, to what extent, the accused suffered a forensic disadvantage.[157]
[157] Eravelly [26].
The requirement for such a warning may arise from particular features of the evidence, such as features relevant to the reliability of the evidence of a key witness. By way of example, a warning of this kind must be given where there is a real and substantial danger in acting on the evidence of a person with a mental disorder, when the conduct of the trial and the evidence of that disorder are such that the jury may not have perceived that danger.[158] Similarly, such a warning may also be required in respect of the evidence of a very young witness, where a jury may not perceive the danger of the 'fragility of youthful recollection' or the 'possibility of distortion'.[159]
[158] See, eg, Bromleyv The Queen [1986] HCA 49; (1986) 161 CLR 315 (325).
[159] cf Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161[45].
A perceptible risk of a miscarriage of justice may also arise where, having regard to the particular circumstances of the case, a delay between the commission of an alleged offence and when the complainant's allegation came to the accused's attention, results in the accused suffering a forensic disadvantage. The question whether a direction is required in such a case turns on whether there is a perceptible risk that the jury would not appreciate the forensic disadvantage which the appellant suffered as a result of the passage of time, and, as a result, attribute unwarranted or inappropriate significance or weight to either the complainant's or the accused's evidence as to what occurred at the time of the alleged offence.[160]
[160] Eravelly [36].
The reason why the warning will be required is that the accused may be at a forensic disadvantage by reason of the delay, but the circumstances may not reveal to the jury that such a disadvantage may exist.[161] As Wheeler JA explained in Angliss v The State of Western Australia,[162] the jury may not understand that one of the usual ways of testing the evidence of a complainant is by reference to surrounding circumstances, and to details which, while not of significance in themselves, may help to indicate that a witness is either untruthful or unreliable, but when there is a very long delay, those circumstances and details may be lost. In addition, in the case of a very long delay, the details of the offence which can be provided by the complainant may be very limited, or the accused may be unable to call to mind, or to obtain, evidence which might be relevant to marshalling a defence, such as alibi evidence.
[161] Longman (91); Kooistra [47]; Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [52].
[162] Angliss [17] (Wheeler JA).
In considering whether a direction is required to avoid a perceptible risk of a miscarriage of justice based on a forensic disadvantage claimed by an accused, at least four matters must be taken into account.
First, in determining whether the accused has suffered a forensic disadvantage as a result of a delay, in combination with any or all of the circumstances of the case, the comparison is between the opportunity the accused would have had to test the evidence, or marshal a defence, had the complaint been made with reasonable contemporaneity, and the opportunity the accused in fact has to test the evidence or marshal a defence, in light of the delay.[163]
[163] Crampton [45].
Secondly, a perceptible risk of a miscarriage of justice arises where there is a feature of the evidence which may adversely affect the jury's assessment of its reliability, but the significance of that feature of the evidence may not be apparent to the jury.[164] Accordingly, if the forensic disadvantage suffered by an accused, by virtue of a delay, is obvious to the jury, it will not be necessary to give a direction about it.[165] By way of example, a jury may well appreciate, without any direction, the difficulty, after a very lengthy period of time, for an accused to obtain telephone records or CCTV footage, or to recall the names of persons present on a particular occasion.[166]
[164] Longman (91); Kooistra [47]; Eravelly [27]; R v GW [2016] HCA 6; (2016) 258 CLR 108 [50].
[165] Tully [186] (Crennan J, Heydon J agreeing).
[166] cf Eravelly [37].
Thirdly, while the authorities make clear that the loss of a chance or opportunity to marshal a defence, for example by obtaining evidence which an accused contends might have corroborated his or her evidence, will constitute a forensic disadvantage,[167] the loss of that chance or opportunity must be real and actual, and more than simply a theoretical possibility. Accordingly, while it is not necessary that an accused give evidence as to the forensic disadvantage he or she has suffered, the nature of such forensic disadvantage, and its existence in the circumstances of a particular case, must be more than matters of mere speculation.[168] Having said that, it is the accused who will be in a position to identify the actual forensic disadvantages that any delay, in all the circumstances, has caused. If an accused is represented by counsel, the failure by counsel to make reference to any such forensic disadvantages, while not determinative, may nevertheless lend support to the conclusion that there were none.
[167] cf Eravelly [39].
[168] cf Eravelly [34].
Fourthly, the forensic disadvantage to which the direction must be directed is prejudice which arises from, and which is causally connected to, or which arises by reason of, the delay.[169] If there is no proper basis for thinking that the delay, in all of the circumstances, has resulted in the forensic disadvantage claimed by the accused, there will be no need for a direction to be given. By way of example, if a complainant reports an offence promptly and it is immediately investigated, so that the accused is aware of the alleged offence at that time, but if there is then a significant delay before the accused is charged, the accused may not face any forensic disadvantage arising from that delay, or any such forensic disadvantage may be limited.[170]
[169] See JJR v The State of Western Australia [2018] WASCA 51[44] (Martin CJ); Angliss [15] (Wheeler JA).
[170] See, eg, Eravelly [30] - [33].

In giving such a direction, it is not necessary for a trial judge to list each and every particular kind of forensic disadvantage which an accused may have suffered.[171] However, it is still necessary for the trial judge to refer to the nature of the forensic disadvantages the accused has suffered and to relate those to the potential for a miscarriage of justice.[172]
[171] Eravelly [46].
[172] See Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343[13] (Gleeson CJ).
The direction must therefore be crafted, by reference to the facts and circumstances of the particular case, with the object of ensuring a fair trial and avoiding the perceptible risk of a miscarriage of justice.[173] That reinforces the point that any forensic disadvantage cannot be a matter of mere speculation.

When must a Longman direction be given?

[173] Eravelly [29].

In Longman,[174] the plurality proceeded on the basis that the substantial delay (of more than 20 years in that case) necessarily resulted in forensic disadvantage to the accused, which the jury may not appreciate without a direction. Perhaps it is for that reason that in cases involving a substantial delay, a Longman direction is sometimes regarded as required, almost as a matter of course, with the consequence that attention is then focused on the question whether the delay in any particular case is 'substantial'.
[174] Longman (91).
However, there is no specific period of delay which has been recognised as the 'tipping point' for a requirement for a Longman direction. In cases involving substantial delay - for example, 20 years,[175] 19 years,[176] or between 12 and 19 years[177] - between the commission of an alleged offence of a sexual nature and the complaint coming to the accused's attention, and where the complainant's evidence is uncorroborated, the length of the delay has readily supported the inference that the accused will be forensically disadvantaged by losing a chance to adequately test the complainant's evidence, or to adequately marshal a defence.
[175] See, eg, Longman.
[176] See, eg, Crampton.
[177] See, eg, Doggett.
In my view, the Longman direction should be reserved for those cases where there is a very lengthy delay, because it is only in such cases that the inference of forensic disadvantage can readily and incontrovertibly be drawn from the delay itself. Even in those cases, however, it should not be overlooked that the basis for the direction is that it is required to avoid the perceptible risk of a miscarriage of justice which exists in those circumstances.
In contrast, the shorter the delay, the more difficult it will be for an accused to assert that he or she has lost the ability to adequately test the evidence of the complainant or to marshal a defence.[178] The question in all such cases is whether there is a perceptible risk that the jury would not appreciate the forensic disadvantage which the appellant faced, as a result of the delay, in the context of all of the circumstances of the case. Only if that perceptible risk exists is a direction required to be given, of the kind discussed at [31] - [32] above. In both Liddington v The State of Western Australia[179] and Kooistra, for example, delays of two years or less between the alleged offences and the initial complaint were held not to be so substantial that they gave rise to forensic disadvantage of a nature or to an extent which would have been beyond the appreciation of the jury, in the absence of a specific direction from the trial judge.[180]
[178] Tully [182] (Crennan J, Heydon J agreeing).
[179] Liddington v The State of Western Australia [2005] WASCA 60; (2005) 152 A Crim R 502.
[180] Liddington [83] (Roberts-Smith JA); Kooistra [52].

The direction given by the learned trial judge

In summary, the learned trial judge directed the jury that:
(i)T was the only witness against the appellant.
(ii)Her evidence was not corroborated by any other witness.
(iii)Accordingly, the members of the jury could not convict unless they were satisfied beyond reasonable doubt about the truthfulness, accuracy and reliability of her evidence.
(iv)Because T's evidence was crucial to the case, her evidence had to be scrutinised with special care.
(v)It was necessary to bear in mind all matters that might have an impact on the reliability of T's evidence.
(vi)T was between 9 and 10 years old at the date of the alleged offending.
(vii)No complaint was made until May 2017.
(viii)The longer the delay, the more opportunity there is for error in recollection, especially for events in childhood.
(ix)Human memory is fallible, and even honest witnesses can be wrong in their recollection.
(x)T was not questioned by police until August 2017.
(xi)The passage of time between the alleged offending and the case coming to court required the jury to specifically consider the truthfulness, accuracy and reliability of T's evidence, and whether they could safely act and rely upon it.
(xii)There was a real danger of a miscarriage of justice which arose from convicting on T's evidence alone. The members of the jury could act on her evidence to convict if satisfied of the truth and accuracy of her evidence, but it would be dangerous to convict on her uncorroborated evidence unless, having scrutinised that evidence with great care, and having considered the circumstances relevant to that evidence [set out above] and taking full account of her Honour's warning, the jury was satisfied beyond reasonable doubt as to T's evidence being true, reliable and accurate.
Her Honour thus directed the jury as to the relevance of the delay for their consideration of the reliability of T's evidence. However, the learned trial judge did not make any reference to any forensic disadvantage suffered by the appellant.
The learned trial judge expressly invited the attention of counsel, in advance, to her proposed direction in relation to the delay.[181] Senior counsel for the appellant at the trial raised no objection to the proposed direction, and did not submit that her Honour should refer to any forensic disadvantage suffered by the appellant.[182]
[181] Trial ts 251 - 254.
[182] Trial ts 254.

The appellant's submissions

The appellant submitted that in the circumstances of this case, where there was 'a potential delay of up to almost 4 years … the trial judge was required to give the jury a [Longman warning]',[183] because the delay involved was substantial.
[183] Appellant's amended submissions [16].
The appellant submitted, in the alternative, that irrespective of whether the delay was substantial, there was a perceptible risk that, without a specific warning from the trial judge, the jury may not have appreciated the forensic disadvantages that were suffered by the appellant (which I have set out at [121] above), having regard to the circumstances (set out at [120] above), as a result of T's failure to make a prompt complaint.[184] He submitted that that perceptible risk of a miscarriage of justice would exist '[e]ven if those disadvantages arose soon after the offence was alleged to have been committed'.[185]
[184] Appellant's amended submissions [29].
[185] Appellant's amended submissions fn 21.
Counsel for the appellant submitted that the direction given by the learned trial judge was inadequate because it 'did nothing to bring to the jury's attention the forensic disadvantages (including any lost chances or opportunities) that had been suffered by the appellant by reason of [T's] failure to make a prompt complaint'.[186]
[186] Appellant's amended submissions [31] (footnotes omitted).

The adequacy of the direction given

In my respectful view, and having regard to the leading authorities, and in particular to Longman, Crampton and Doggett, the delay in this case - of between 2 years and 7 months and 3 years and 7 months - cannot be described as substantial. For the reasons set out at [33] - [35] above, a Longman direction was not required. In my view ground 1(a) has not been made out for that reason.
In cases such as this, where the delay is not properly described as substantial, the crucial question is whether the delay, in all of the circumstances, meant that the appellant suffered a forensic disadvantage, in that he lost the chance to adequately test T's evidence, or to adequately marshal a defence.
I turn, then, to consider whether there was a perceptible risk of a miscarriage of justice on the basis that the delay, in the circumstances of this case, meant that the appellant faced the forensic disadvantages he now claims, and which are set out at [121] above.
I turn first to the claimed forensic disadvantages referred to at [121(a)] and [121(b)] above. Any such forensic disadvantage appears to be attributable to two factors. First, the alleged offences were said to have occurred within a period of about twelve months. However, particularising the date of an offence in that way is not necessarily a consequence of a lengthy delay. It may result from a complainant's poor memory, or from difficulty identifying the precise date of an offence because the occasion on which it was allegedly committed was otherwise unremarkable. Secondly, any difficulty the appellant faced in marshalling his defence in those circumstances is likely to be attributable to the fact that T and her brother frequently visited the appellant's home to play with his children and swim in their pool. Consequently, I am not persuaded that any forensic disadvantage suffered by the appellant, arising from his inability to identify specific occasions when he may have been alone with T, was causally connected to the delay.
Furthermore, to the extent that T was unable to specifically recall the date of the alleged offences, the implications of that limited recollection for the jury's assessment of the reliability of her evidence, and for the appellant's ability to test her evidence or marshal his defence, were, in my respectful view, forensic disadvantages which would have been readily apparent to the jury, without a direction from the trial judge. As it was, the direction given by the trial judge clearly explained how the passage of time was relevant to the jury's assessment of T's reliability.
I turn next to the appellant's claim that he had suffered the forensic disadvantage set out at [121(d)] as a result of the delay, in that he was unable to adequately test T's evidence by reference to any surrounding circumstances. I am not persuaded the appellant actually suffered such forensic disadvantage, or that such an inference can be drawn in the circumstances. When the appellant was arrested and charged, he and his partner were still living at the house where the alleged offences were said to have occurred. The appellant thus still had the means to test T on her recollection of aspects of the surrounding circumstances, such as the physical layout of the house where the alleged offences were said to have occurred.
The appellant also contended that he was unable to test T's evidence by reference to surrounding circumstances, such as what she was wearing on the day of the alleged offences.[187] However, as counsel for the State pointed out,[188] T was cross‑examined[189] about an alleged inconsistency between what she said in her video recorded interview (namely that she was wearing 'pants' and 'undies'[190]) and in the course of her oral evidence at the trial, when she referred to wearing 'leggings' and 'underwear'.[191] She was also cross‑examined about an alleged prior inconsistent statement to a friend, in which she said she was wearing bathers at the time of the alleged offences.[192] I am not persuaded that the appellant would have been in a position to have tested T's evidence to any greater extent, or in any way that would have affected the jury's assessment of her reliability, even if the complaint had been made with reasonable contemporaneity.
[187] Appellant's amended submissions [21(d)].
[188] State's submissions [31]; WAB 69.
[189] Trial ts 96.
[190] VRI ts 6; blue green AB 10.
[191] Trial ts 76.
[192] Trial ts 96.
I am also not persuaded that the appellant was forensically disadvantaged because he could not test T's assertions that after the alleged offences she only went to the appellant's house when the appellant was not there. The affidavits that the appellant and his partner swore in connection with the appellant's application to adduce further evidence clearly demonstrated that he and his partner still have clear recollections of their interactions with T since 2014. The appellant also referred to those matters in his video recorded interview with the police and in his evidence.[193] I am not persuaded that the appellant in fact suffered a forensic disadvantage as a result of the delay in these circumstances.
[193] VROI ts 9, 10, 22 ‑ 23; trial ts 170 ‑ 174.
The position is, however, different, in relation to the forensic disadvantage referred to at [121(c)] above, which concerns the loss of the opportunity to marshal reliable evidence from the appellant's children. Had the complaint been made immediately, or at least with reasonable contemporaneity, inquiries could have been made of the appellant's children and T's brother, as to their recollections of the day in question. Those enquiries could have addressed whether they had any recollection as to matters such as: whether T was present with them throughout the entire time she was at the appellant's house, or whether she was absent for any period of time; whether they saw the appellant and T come out of his bedroom; and T's demeanour during that day, and whether it changed at any time.
Counsel for the State submitted that:[194]
[T]here was nothing about the involvement of the appellant's … children in the events of that day that would have meant they would be likely to remember that particular occasion. This is especially so if regard is had to the very young age of the appellant's children at that time. Nothing notable was said to have occurred involving them.
[194] State's submissions [30]; WAB 69.
I am unable to accept that submission. There was one notable matter, in particular, on which the children may have been able to give evidence, had the complaint been made with reasonable contemporaneity. That matter concerned T's evidence that one of the children knocked on the door of the appellant's bedroom and was told by the appellant to go away.
All of the children were very young at the time of the alleged offences. Trial judges are aware that the ability of young children to recall details of past events, especially events which are not unusual or which have no particular significance to them - such as a day spent swimming and playing with children at a neighbour's house - is likely to diminish very quickly over time. That that is the case is something about which members of a jury may also be aware, as a matter of their common experience. However, without a direction from the trial judge, members of the jury may not have appreciated that because there was a delay in making the complaint, the appellant lost the opportunity to obtain reliable evidence from the children about the events of the day in question, and which may have provided a basis to test the reliability of T's evidence.
In my view, that was a forensic disadvantage suffered by the appellant in this case. It was not a disadvantage which arose from a substantial delay. It was a disadvantage which would have manifested after even a short period following the alleged offences. This aspect of the forensic disadvantage suffered by the appellant derived from the delay, in the particular circumstances of this case, namely that the only other persons said to have been at the appellant's home on the day of the alleged offences were young children, whose memories of the events of the day may well have diminished very quickly.
Having taken into account all of the circumstances, in my respectful view, a warning was required to be given to counter a perceptible risk that the jury would not appreciate the forensic disadvantage - the appellant's loss of the opportunity to obtain reliable evidence from his children which may have assisted him to test the evidence of T or to marshal a defence - and which was caused by the delay in making the complaint. That being the case, in my view, ground 1(b) of the grounds of appeal has been made out. I would uphold the appeal on that basis.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AW
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza
19 SEPTEMBER 2019