156 Detective Senior Constable Berry was the police officer with the carriage of the investigation (ts 488). He testified that Ms O lived at the Marangaroo address from 4 January 2002 until 7 November 2011, and at the Madeley address from 27 December 2011 until 4 February 2014 (ts 489 - 490). Detective Senior Constable Berry testified as to his efforts to locate Mr M for the purpose of obtaining a witness statement. Detective Senior Constable Berry said that Mr M initially contacted him, but efforts to locate him thereafter were unsuccessful (ts 490 - 491).
157 Detective Senior Constable Berry said that police records showed that there were four attendances by police officers at the Madeley address in early 2012. On the first occasion, 30 January 2012, police were called to investigate someone shouting at children (ts 492). The other attendances, on 11 February 2012, 25 February 2012 and 12 April 2012, were as a result of neighbours seeing young children playing outside without any supervision (ts 492).
158 Mr Monisse cross-examined Detective Senior Constable Berry briefly. Detective Senior Constable Berry confirmed that police records did not reveal any complaint consistent with W's statement in his first interview that police came and told Mr B not to rub Ms O's 'boobs' in front of her children (ts 493).
Ms O's evidence
Ms O's examination-in-chief
159 Ms O's examination-in-chief was quite brief. She explained that in October and November 2011, she was living at the Marangaroo address with all six of her children and Mr M. When she and her children moved to the Madeley address, Mr M moved in shortly afterwards, perhaps in January 2012 (ts 495).
160 Ms O said that Mr B moved into the Madeley address on '6 or 7 April 2012' (ts 495). Up until then, she and Mr B had been in a sexual relationship, but he had not lived with her at that address apart from a period of one week, earlier in 2012 (ts 496).
161 Ms O said that in the approximately three-week period in which Mr B was at the Madeley address in April 2012, he had 'very little contact' with the children and that most of the time, he stayed in her bedroom (ts 497).
162 Ms O said that the only time her children saw her naked was if she was 'getting out of the shower', or if they walked in on her while she was in the toilet (ts 498). She said that she and Mr B always had sex in her bedroom, and that no one else could see what was happening because the bedroom door would be locked and there would also be a 'plastic box full of books behind the door' as the lock did not always work properly (ts 498).
163 Ms O was shown the indictment. When asked what she wanted to tell the jury about the allegations, she responded:
I'm totally innocent of all these charges. They're my children. I'd never, ever touch them. I was bonded with these children before I even met them. And to be accused of this has just horrified me and totally and utterly killed me and destroyed everything. It's destroyed me, it's destroyed my entire family life (ts 499).
164 Ms O testified that in January 2012 she was diagnosed with breast cancer and, on 27 April 2012, she had a mastectomy (ts 497).Ms O's cross-examination by Mr Sutherland
165 Ms O said that no one ever touched her 'boobs' because of 'the lump that was in [her] breast' (ts 502). She said that the statements made by W about police attending the house after R had called for assistance were not true (ts 502). Ms O agreed that there were occasions in 2012 on which she was telephoned by police about her children playing in the middle of the street (ts 502).
166 Ms O said that there was no occasion on which Mr M pulled Mr B off W and ejected Mr B from the house (ts 502).
Ms O's cross-examination by the prosecutor
167 In cross-examination by the prosecutor, Ms O:
(a) said that Mr M left the Madeley address 'a week and a half before 27 April 2012' (ts 509); (b) said that Mr B and Mr M were 'civil' towards each other (ts 509);
(c) said that she and Mr B shared meals together in her bedroom (ts 510);
(d) said that there was no cutlery kept in the bedroom (ts 511);
(e) agreed that she ate her meals with a fork, but denied using a knife (ts 510 - 511);
(f) denied using a spoon to eat anything in her bedroom (ts 511);
(g) said that it was very hard to find cutlery in the house 'considering there were six children there' (ts 511);
(h) denied engaging in any sexual activity with Mr B that involved him inserting any object in her bottom (ts 514);
(i) said that there was no pornography allowed in her house 'whatsoever' and that there was no DVD player with which to watch any such material (ts 514); and
(j) was 'absolutely 110% sure' that her children never witnessed anything that went on between her and Mr B behind closed doors (ts 514).
168 It was put to Ms O by the prosecutor that the allegations made by W and M in the visually-recorded interviews were true (ts 514). Ms O responded that '… they absolutely did not happen whatsoever' (ts 515).Mr B's evidence
Mr B's examination-in-chief
169 Mr B testified that as far as he was aware, there was no occasion on which any of Ms O's children might have seen sexual activity between him and her (ts 517).
170 Prior to April 2012, Mr B recalled staying at the Madeley address for about a week at the time that Ms O was diagnosed with breast cancer (ts 517 - 518).
171 He said that he had no recollection of either W or M in Ms O's bedroom (ts 519).
172 Mr B testified that nearly all of his meals were eaten in Ms O's bedroom because he was 'shy' about being around her children and ex-partner (ts 519).
173 Mr B recalled an incident where he broke R's mobile telephone in the presence of Ms O and two of her children. He said that he broke the telephone in reaction to a person who was ringing R up (ts 520 - 521).
174 Mr B denied that police were called to the Madeley address, and that a complaint was made about him rubbing Ms O's breasts (ts 521).
175 Mr B's attention was drawn to the various allegations against him in the indictment. He denied them (ts 522 - 523). He also denied the allegation made by W that, on one occasion, he was behaving in an inappropriate manner towards W causing Mr M to intervene (ts 523).
Mr B's cross-examination by the prosecutor
176 Mr Monisse did not cross-examine Mr B (ts 523).
177 In cross-examination by the prosecutor, Mr B agreed that he had a 'very strong' sexual relationship with Ms O, but that their relationship did not involve either the use of sex toys, anal penetration or watching pornography (ts 524 - 526). Mr B confirmed that no sexual activity engaged in with Ms O occurred in the presence of the children (ts 531 - 532).
178 As to his relationship with W and M, he said that he 'didn't really get to interact with them' (ts 527).
179 Mr B agreed that there was a shed at the Madeley address and that he took his toolbox which contained, amongst other things, spanners and sockets, to the house (ts 528).
180 He said that when he ate his meals in Ms O's bedroom, he used a fork, knife and spoon (ts 529).
181 Mr B described his relationship with Mr M as 'good', adding 'I'll call him a bro' (ts 529).
182 When the prosecutor asked Mr B why he smashed R's telephone, he said that he did so because R 'was receiving messages from a paedophile' and that he was 'more or less protecting her' (ts 530).
183 When it was put to him that the allegations made by W and M were in fact true, Mr B denied them (ts 533 - 534).
Mr M's evidence
184 Mr M was called to give evidence on behalf of Mr B.
185 Mr M confirmed that he was the father of W, M, S and T (ts 537).
186 Mr M said that he became 'friends' with Mr B while he was living at the Marangaroo address (ts 537). He said that he saw Mr B at the Madeley address 'occasionally' (ts 538).
187 Mr M testified that he observed nothing untoward about Mr B's interactions with any of the children at the Madeley address (ts 539).
188 In cross-examination by Mr Monisse, Mr M said that he never walked in on nor observed Mr B doing anything inappropriate with W or M (ts 540). He denied that there was an occasion on which he:
(a) pulled Mr B off W; (b) told Mr B to leave the house; or
(c) removed Mr B's belongings from the Madeley address (ts 540).
189 In cross-examination by the prosecutor, Mr M said that he moved out of the Madeley address because he and Ms O were arguing and that he felt 'uncomfortable' and 'out of place' there (ts 545). 190 Mr M said that during the time he lived at the Madeley address, he did shift work in a truck yard. He said that when he worked a night shift, he would arrive home by 10.30 pm or 'sometimes sooner' (ts 547).
191 Mr M accepted that on 28 April 2014, he spoke to Detective Senior Constable Berry by telephone. After some hesitation, Mr M agreed that he telephoned Detective Senior Constable Berry (ts 549, 561). He said that he was informed that Ms O had been charged with sexual offences in respect of the W and M (ts 549). Mr M agreed that Detective Senior Constable Berry wanted to speak to him with a view to taking a statement; however, Mr M claimed that Detective Senior Constable Berry made an appointment for that purpose, but he did not keep it (ts 549 - 550). Mr M elaborated later in his cross-examination that Detective Senior Constable Berry organised 'to come around and pick me up, and [he] didn't show up' (ts 551).
192 Mr M agreed, in effect, that he did not return subsequent calls made to him by Detective Senior Constable Berry. Mr M explained:
Because if he [Detective Senior Constable Berry] can't stick to his agreement, well, that's it (ts 552).
193 Mr M denied the proposition put to him by the prosecutor that he had come to court merely to assist Ms O and Mr B (ts 555).Detective Senior Constable Berry's further evidence
194 O'Neal DCJ allowed an application by the prosecutor to recall Detective Senior Constable Berry to give further evidence about the efforts made by him to contact Mr M. His Honour allowed the application (ts 559 - 561). His Honour's decision is not challenged in this appeal and it is unnecessary to say anything more about it.
195 Detective Senior Constable Berry testified that a 'detailed statement' of his attempts to contact Mr M had been prepared and disclosed to the defence (ts 561).
196 He said that on 28 April 2014, he received a telephone call from Mr M during which Detective Senior Constable Berry told him that some allegations had been made by his children. Detective Senior Constable Berry said that Mr M indicated he was willing to meet with him to provide a statement and assistance in the investigation (ts 563). He said that he made an appointment with Mr M to meet at Child Abuse Squad offices, however Mr M failed to attend the meeting (ts 564).
197 In cross-examination by Mr Monisse, Detective Senior Constable Berry denied making any arrangement to collect Mr M and bring him to the police station to make a statement (ts 566).
Mr B's submissions
198 Among the written submissions in support of proposed ground 3 are arguments to the effect that O'Neal DCJ failed to adequately direct the jury as to 'significant inconsistencies in M's evidence' (see Mr B's white AB 15 - 16, pars 44 - 52). At the hearing of the appeal, senior counsel for Mr B told the court that this argument, which was not (and never had been) a ground of appeal, was not being pursued (appeal ts 4 - 6).
199 With respect to W, Mr B submitted that his evidence that objects were inserted into his anus was unsupported by any medical evidence. Mr B refers to the evidence of Dr Shah, to the effect that he was unable to confirm the allegations (Mr B's white AB 15, par 41). Mr B points to an absence of evidence from W to the effect that he had suffered any lasting physical effects of the alleged anal penetrations (Mr B's white AB 15, par 42). Mr B also alleges that, having regard to Mr M's evidence, no jury could be satisfied beyond reasonable doubt that the offences occurred (Mr B's white AB 15, par 40).
200 With respect to M, Mr B once again relies upon the evidence of Dr Shah, and points to those parts of Mr Sutherland's cross-examination to which we referred in [45] - [48] of these reasons in which M:
(a) was unable to remember anything 'naughty' being done to her with a knife, a fork, a broom and a scary doll (Mr B's combined blue and green AB 48); (b) could not recall Mr B putting anything on her vagina (Mr B's combined blue and green AB 50); and
(c) denied that Mr B had ever asked her to kiss his penis (Mr B's combined blue and green AB 56; Mr B's white AB 15, par 43).
201 Mr B says that, because M did not explicitly state in her pre-recorded evidence that the acts said to constitute counts 12 and 13 had occurred, he should not have been convicted (Mr B's white AB 15, par 38).The law - unreasonable verdict
202 Section 30(3)(a) of the Criminal Appeals Act 2004 (WA) provides that this court must allow an appeal if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported. There is no material difference between the expression frequently used by courts that a verdict is 'unsafe or unsatisfactory', and that which is 'unreasonable or cannot be supported' having regard to the evidence.
203 The relevant legal principles were explained by Buss JA in Mack v The State of Western Australia [2014] WASCA 207 [141] - [147] as follows:
By s 30(3)(a) of the Criminal Appeals Act 2004 (WA), in the case of an appeal against conviction, the Court of Appeal must allow the appeal if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported. In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said, in relation to s 6(1) of the Criminal Appeal Act 1912 (NSW) (which is in substance identical to s 30(3) of the Western Australian Criminal Appeals Act):
Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory (492).
See also Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439, 450 (Gaudron, McHugh & Gummow JJ). In Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, Hayne J (Gleeson CJ & Heydon J relevantly agreeing) said that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is:
[W]hether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt (M v The Queen (1994) 181 CLR 487 at 492 - 493). It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt [113]. (original emphasis)
See also Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300[41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ). It is a question of fact whether a conviction is unsafe or unsatisfactory. This court must decide the question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand. See M (492 - 493); SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).
The appellate court's task is not to consider, as a question of law, whether there was sufficient evidence to sustain a conviction. See Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, 473 (Deane, Toohey & Gaudron JJ); M (492 - 493); SKA [20].
Rather, the appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the evidence (in particular, the competing evidence). See SKA [22], [24].
However, an appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty, 'must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations': M (493); R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ); SKA [13].
Disposition of Mr B's proposed ground 3 204 There was no issue at trial that the evidence of W and M was cross-admissible. There was no allegation of collusion or that someone had improperly influenced them to make false allegations against Ms O and Mr B. Nor was there evidence of any motive that would lead either of them to make false allegations, particularly against their mother.
205 Both W and M were very young at the time the offences were alleged to have occurred and, indeed, when they participated in the visually-recorded interviews and their pre-recorded evidence. Given their ages, neither was likely to have been aware of sexual activity of the type they described if they had not experienced it. There was no evidence as to how they would have been able to describe the alleged sexual activity if they had not been subjected to it by the appellants. There was no evidence capable of innocently explaining the allegations they made. The possibility that the allegations were flights of imagination, acknowledging their highly unusual nature, is remote. The evidence of W and M was consistent in the sense that each said that they were sexually abused by Ms O and Mr B in highly unusual ways. Each said that cutlery was used by Ms O and Mr B in at least some of the alleged offending behaviour.
206 The effect of Ms O's and Mr B's evidence was that, on occasions, they ate meals in Ms O's bedroom. Mr B testified that when he did, he used a fork, knife and spoon. Ms O said she used a fork. Mr B said he brought his toolbox to the house, which contained, amongst other things, spanners.
207 Mr B pointed to the evidence of Dr Shah and noted that his evidence did not confirm the testimony of W and M. While that is true, Dr Shah's evidence was to the effect that blunt objects of the type described by W could be inserted into a child's anus without leaving any lasting signs of injury. His findings with respect to W (and, for that matter, M) neither supported nor refuted their allegations.
208 Mr B submitted, in substance, that the evidence of Mr M, the children's father, who lived at the Madeley address for much of the relevant time, contradicted any notion that Ms O and Mr B were behaving improperly towards W and M. Further, Mr M's evidence directly contradicted W's evidence in respect of count 10 that Mr M saw Mr B indecently deal with W, stopped Mr B and then ejected him from the house.
209 Mr M's credibility was very much in issue at trial, particularly in light of the evidence that Detective Senior Constable Berry gave when he was recalled. The jury had the advantage of seeing Mr M give evidence. In our view, it was open to the jury to regard Mr M as an unreliable witness.
210 We now turn to specific aspects of the evidence of W and M. Before doing so, it is appropriate to say something about their demeanour. We have described the way W and M behaved in the pre-recording of their evidence. It was open on the evidence for the jury to conclude that W and M were raised in a highly dysfunctional family environment, putting to one side any allegation of sexual abuse. This is evident from the long-standing involvement of the DCP with the family, and from the fact that they were taken into State care. The reason for the family dysfunction was not an issue canvassed at trial. However, it was well capable of explaining, at least in part, the manner in which each child gave their evidence, and does not compel the conclusion that their evidence was unreliable or untruthful.