HAR v The State of Western Australia [No 2] - [2015] WASCA 249

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: HAR -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2015] WASCA 249

CORAM: BUSS JA
MAZZA JA
HALL J

HEARD: 1 OCTOBER 2015

DELIVERED : 4 DECEMBER 2015

FILE NO/S: CACR 142 of 2015

BETWEEN: HAR
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STEVENSON DCJ
File No  :IND 52 of 2013

Catchwords:

Criminal law - Appeal against conviction - Evidence - Cross-examination solely as to credit - Proper construction and application of s 25 of the Evidence Act 1906 (WA) - Two counts of alleged sexual offending - Whether the trial judge erred in refusing to permit defence counsel to crossexamine the complainant about her having previously made a false complaint to police of sexual abuse by someone other than the appellant - Complainant had pleaded guilty in the Children's Court to the offence of creating a false belief - Whether the trial judge took into account irrelevant considerations in exercising his discretion under s 25(1) of the Evidence Act - Whether the trial judge's exercise of discretion under s 25(1) was plainly unreasonable or unjust

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3), s 30(4)
Criminal Code (WA), s 321(2), s 321(4)
Criminal Procedure Act 2004 (WA), s 98, s 144
Evidence Act 1898 (NSW), (repealed), s 56
Evidence Act 1906 (WA), s 25, s 26, s 36BC
Evidence Act 1929 (SA), s 23, s 24
Evidence Act 1939 (NT), (repealed), s 13, s 14, s 15
Evidence Act 1958 (Vic), s 37 (repealed), s 37A (repealed)
Evidence Act 1977 (Qld), s 20
Indian Evidence Act 1872, s 148
Oaths and Evidence Act 1890 (Vic), (repealed), s 9
Young Offenders Act 1994 (WA), s 189, s 190

Result:

Appeal allowed
Judgments of conviction on counts 5 and 6 set aside
New trial ordered

Category: A

Representation:

Counsel:

Appellant: Mr S Vandongen SC & Mr C L J Miocevich
Respondent: Mr L M Fox

Solicitors:

Appellant: C & G Miocevich Law Offices Pty Ltd
Respondent: Director of Public Prosecutions (WA)

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

APC v The State of Western Australia [2012] WASCA 159; (2012) 224 A Crim R 59
Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474
Bolton v The State of Western Australia [2007] WASCA 277; (2007) 180 A Crim R 191
Bugg v Day [1949] HCA 59; (1949) 79 CLR 442
Doughty v The Queen [2002] WASCA 238
Filippou v The Queen [2015] HCA 29; (2015) 89 ALJR 776
Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024
House v The King [1936] HCA 40; (1936) 55 CLR 499
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196
R v Aldridge (1990) 20 NSWLR 737
R v Hawes (1994) 35 NSWLR 294
R v Reed (Unreported, VSCA, 30 October 1995)
R v Sadler [2008] VSCA 198; (2008) 20 VR 69
R v Slack [2003] NSWCCA 93; (2003) 139 A Crim R 314
R v Taylor (1892) 18 VLR 497
Thompson v The Queen (Unreported, WASCA, Library No 980600, 19 October 1998)
Table of Contents

Buss JA's reasons..................................................................................................................... 5
The State's case against the appellant at the trial
The appellant's case at the trial
The grounds of appeal
The course of the trial in relation to the matters the subject of the grounds of appeal
The trial judge's reasons for his decision not to permit defence counsel to cross‑examine SRB about her having made a false complaint to police as to sexual abuse by GJM
Cross‑examination for the purpose of attacking the credibility of a witness
The proper construction of s 25 of the Evidence Act
The enlivening of the trial judge's discretion under s 25(1) of the Evidence Act
The merits of ground 1 of the appeal
The merits of ground 2 of the appeal
The merits of ground 3 of the appeal
Section 30(4) of the Criminal Appeals Act: the proviso

Conclusion
Mazza JA's reasons................................................................................................................. 41
Hall J's reasons....................................................................................................................... 44

BUSS JA: This is an appeal against conviction.
The appellant was charged on indictment with 13 counts of alleged sex offending. There were four complainants:
(a)counts 1, 2, 3, 4 and 8 related to a boy, STK;
(b)counts 5 and 6 related to a girl, SRB;
(c)counts 7, 12 and 13 related to a woman, VM; and
(d)counts 9, 10 and 11 related to a boy, BRV.
The appellant pleaded not guilty to all of the charges.
Between 5 May 2015 and 15 May 2015, the appellant was tried in the District Court before Stevenson DCJ and a jury. The jury returned verdicts of not guilty on all charges, except for counts 5 and 6 relating to SRB. He was convicted, by majority verdicts, on counts 5 and 6.
Count 5 alleged that '[o]n an unknown date between 1 May 2008 and 30 June 2008 ... [the appellant] indecently dealt with [SRB], a child over the age of 13 years and under the age of 16 years, by fondling her breasts', contrary to s 321(4) of the Criminal Code (WA) (the Code).
Count 6 alleged that '[o]n an unknown date between 1 May 2008 and 25 December 2008 ... [the appellant] sexually penetrated [SRB], a child over the age of 13 years and under the age of 16 years, by penetrating her vagina with his penis', contrary to s 321(2) of the Code.
On 24 July 2015, the trial judge sentenced the appellant to 14 months' immediate imprisonment on count 5 and 5 years' immediate imprisonment on count 6. The sentence on count 5 was ordered to be served concurrently with the sentence on count 6. The total effective sentence was therefore 5 years' immediate imprisonment. A parole eligibility order was made.
The appellant's complaint in the appeal relates to his Honour's decision to prevent defence counsel from cross‑examining SRB about her having previously made a complaint that someone, other than the appellant, had unlawfully sexually penetrated her on four occasions, and her later withdrawal of the complaint and admission that the complaint was false.
I would allow the appeal, set aside the judgments of conviction and order a new trial. My reasons are as follows.

The State's case against the appellant at the trial

The State's case against the appellant at the trial was that between 2003 and 2012 the appellant had unlawfully interfered sexually with the four complainants on numerous occasions.
The appellant and VM were partners for about 10 years. They married in March 2006 and separated in September 2012. STK and BRV were the children of VM from previous relationships. SRB was STK's girlfriend.
In May 2015, when the trial occurred:
(a)VM was aged 41;
(b)STK was aged 21;
(c)BRV was aged 16; and
(d)SRB was aged 22.
The facts and circumstances of counts 5 and 6, being the offences of which the appellant was convicted, were summarised by the trial judge at the sentencing hearing, as follows:
Count 5 on the indictment was an occasion when you were aware that the victim [SRB] was having sex with [STK] in their bedroom. You entered the bedroom and told them to continue doing what they were doing. They were taken by surprise and froze, being the first occasion that this happened. You then remained in the bedroom and proceeded to touch the victim on her breasts. At the time she was in the bed with [STK], both were naked and, according to her, engaged in sexual activity.
During her relationship with [STK] and after it had finished there were other sexual activities between you and [SRB] in the presence of [STK] in particular, in the family swimming pool and also in the family spa. On each of those occasions all three of you were present.
Also during this period when she was 15 and under 16 you provided her with sleeping pills allegedly to assist her to sleep. You then took advantage of her in the middle of the night when she was under the influence of the sleeping tablets to further the sexual activity with her, even though she was no longer in a sexual relationship with [STK].
Count 6 on the indictment for which you were convicted by the jury is representative of one of those occasions when you, having provided her with sleeping tablets, sexually penetrated her vagina with your penis in the early hours of the morning at night-time. The victim awoke to find you on top of her having sex with her. Sexual intercourse occurred without a condom and you ejaculated.
The sexual activity occurred in circumstances where she was not consenting fully and voluntarily as a matter of law by reason of her condition, bearing in mind, of course, that being under the age of 16 she could not, in any event, legally consent to such activity (841 ‑ 842).
Apart from count 5, all counts in the indictment were alleged to have occurred when no other witnesses were present, but SRB's evidence that STK was present when the appellant committed count 5 was not corroborated by STK.
STK did, however, give evidence that, in other circumstances, he saw the appellant having sex with SRB (ts 254 ‑ 256). In particular, STK said he disturbed the appellant and SRB while they were having sex. The appellant punched him in the face and threw him onto a bed. The appellant used a leather belt to tie STK's wrists, and he then continued having sex with SRB while holding onto STK with the belt. The incident came to an end when STK attempted to kick the appellant. This incident was not the subject of any of the counts in the indictment. STK's evidence about the incident was not corroborated by SRB. She gave no evidence about it.

The appellant's case at the trial

The appellant gave sworn evidence at the trial. He denied that any sexual misconduct had occurred. The defence case was, in essence, that all of the complaints, and the other evidence of sexual misconduct, were fabricated. Specifically, the appellant alleged that:
(a)The appellant and VM separated in September 2012 after the appellant found VM in bed with STK's friend, Mick.
(b)Upon separation, VM retained possession of the appellant's SS Commodore motor vehicle. However, in mid‑December 2012, STK drove and had an accident in the vehicle. At the time STK did not have a valid driver's licence. The vehicle was written off.
(c)A report was made to police that the SS Commodore had been stolen. This report was untrue and made with a view to avoiding adverse consequences for STK arising from his having driven the vehicle without a licence. However, the police were informed of the dishonesty and STK was charged with attempting to pervert the course of justice. On 13 May 2014, he pleaded guilty to the charge.
(d)The appellant received money from an insurance company in respect of the SS Commodore. VM demanded that the appellant pay her some of the money. The appellant refused. VM then began to threaten the appellant.
On 1 June 2013, VM made a complaint to police that STK and BRV had been sexually abused by the appellant. At that time she did not allege that the appellant had sexually abused her.
On 11 June 2013, VM made a complaint to police that she had been sexually abused by the appellant.
On 15 July 2013, SRB made a complaint to police that she had been sexually abused by the appellant.
Defence counsel called two women, NTN and RAM, as witnesses.
NTN said, in summary, that:
(a)at the time of the trial she was aged 19 (ts 706);
(b)in 2011 she met VM (ts 707);
(c)VM told her that she was going to have the appellant charged for sexual assault but, later, VM told her that it had never happened (ts 707);
(d)STK told her that the appellant had tried to have sex with him once (ts 709) (whereas his evidence in court was that it had happened numerous times); and
(e)BRV told her repeatedly that the appellant had never touched him (ts 718 ‑ 719).
RAM said, in summary, that at the time of the trial she was aged 44 (ts 722). In June or July 2012, she began living in the Western Australian country town where the appellant and the complainants resided (ts 723). She became friendly with SRB about two months later (ts 723). At some stage, SRB introduced her to the appellant (ts 723). SRB told RAM that the appellant was 'a really nice guy' and that his relationship with VM had recently ended (ts 723). SRB told RAM that the appellant was her foster dad (ts 723). In January 2013, RAM began living in a relationship with the appellant (ts 724).

The grounds of appeal

The appellant relies on three grounds of appeal.
Ground 1 alleges that the trial judge made a wrong decision on a question of law, by purporting to exercise a discretion pursuant to s 25(1) of the Evidence Act 1906 (WA), in circumstances where the preconditions for the exercise of the discretion did not exist.
Ground 2 alleges, in the alternative to ground 1, that his Honour made a wrong decision on a question of law, when exercising a discretion pursuant to s 25(1) of the Evidence Act, in that his Honour took into account irrelevant considerations, further or alternatively, reached a decision that was plainly unreasonable or unjust.
Ground 3 alleges that a miscarriage of justice occurred at the trial by virtue of his Honour preventing defence counsel from cross‑examining SRB about the fact that she had previously made a complaint that someone, other than the appellant, had unlawfully sexually penetrated her on four occasions, and that she had admitted later that the complaint was false.
On 18 August 2015, Mazza JA granted leave to appeal on each of the grounds.

The course of the trial in relation to the matters the subject of the grounds of appeal

On 5 May 2015, during the course of the trial, defence counsel raised with the trial judge whether he would be permitted to cross‑examine SRB on certain matters relating to her conviction on 17 April 2008, in the Children's Court, on a charge of creating a false belief, contrary to s 171(2) of the Code (ts 59 ‑ 60).
It was common ground at the trial that:
(a)On 17 April 2008, SRB was convicted in the Children's Court, on her plea of guilty, on a charge of creating a false belief, contrary to s 171(2) of the Code, the offence having been committed on 24 August 2007.
(b)SRB was sentenced to a good behaviour bond for 6 months with a $100 personal undertaking.
(c)The statement of material facts in relation to the offence stated as follows. On 24 August 2007, SRB made a complaint to police at a police station that she had been sexually assaulted by GJM while she was living with him and her grandmother. SRB gave the police a witness statement in which she alleged that GJM had sexually penetrated her on four occasions while she was under the age of 16 years. On 29 August 2007, SRB attended at the police station and 'further enhanced this fabricated deposition'. In November 2007, SRB admitted to her mother that 'she initiated this action because she was unhappy with [GJM] insisting [she] complete domestic chores'.
(d)In her witness statement dated 15 July 2013, which formed part of the prosecution brief served on the appellant, SRB sought to explain why she did not make a complaint against the appellant immediately:
I did not tell anyone because I was too scared to, I have a past history of similar things happening. I had spoken out before, at my school about what had happened to me. I was later blackmailed by my mum to tell the police it was all a lie, I had to do that in order to keep a house over my head [41] ‑ [43].
On 5 May 2015, after defence counsel raised the issue, the trial judge said:
I would be reluctant to allow you to go down this course of action, especially if it's an allegation in relation to a sexual matter given the provisions of the Evidence Act (ts 60).
The issue was not resolved at that time.
At the commencement of the proceedings on 6 May 2015 and 7 May 2015, the issue was discussed again between his Honour, defence counsel and the prosecutor, but his Honour did not make a ruling (ts 123 ‑ 124, 223 ‑ 224).
Late on 7 May 2015, the issue was argued in detail by defence counsel and the prosecutor (ts 320 ‑ 332).
Defence counsel informed the trial judge that he wanted to ask SRB why 'she made an allegation about somebody else in a period of time shortly before these relevant proceedings, and retracted that allegation' (ts 328). It appears from this statement, in the context of the facts that were common ground at the trial, that defence counsel proposed to put to SRB in cross‑examination that she had made a false complaint to police concerning GJM at about the time (in fact, some 12 months earlier than) she alleged that the appellant had sexually abused her.
Defence counsel submitted:
(a)Section 36BC of the Evidence Act did not apply because his proposed cross‑examination would not include any questions as to SRB's sexual experience (ts 323).
(b)Section 189 and s 190 of the Young Offenders Act 1994 (WA) prohibited any reference to the fact that, on a particular date, SRB was convicted of the offence of creating a false belief, but the prohibition did not limit defence counsel's right to cross‑examine SRB about the fact that she had, by pleading guilty, admitted in fact creating a false belief (ts 321, 330).
(c)As to his Honour's general discretion and the provisions of s 25 of the Evidence Act:
(i)the fact that SRB had, on the appellant's case, fabricated allegations of sexual abuse was relevant to her credibility (ts 321, 324 ‑ 325);
(ii)the fabricated allegations were made at or about the time (in fact, some 12 months earlier than) SRB made the allegations the subject of counts 5 and 6 in the indictment against the appellant (ts 321, 337); and
(iii)SRB's explanation that she had been blackmailed by her mother to tell the police that her complaint about GJM was a lie was inconsistent with her pleading guilty in the Children's Court to the charge of creating a false belief (ts 323 ‑ 324).
The prosecutor submitted:
(a)s 36BC of the Evidence Act had no application (ts 325 ‑ 326); and
(b)(despite a lack of clarity about the State's position) s 189 and s 190 of the Young Offenders Act did not prevent the 'facts giving rise to [SRB's] conviction' being 'dealt with in cross‑examination' (ts 326).
The prosecutor made no submissions in relation to the trial judge's general discretion or the provisions of s 25 of the Evidence Act, apart from stating:
As for the final barrier, as it were, the question of your Honour's discretion, that's a matter entirely for your Honour and I don't have any authorities which shed any light on that (ts 326).
During the course of argument, his Honour made the following observations, without ruling on the issue:
(a)the subject matter on which defence counsel sought to cross‑examine SRB was collateral and went only to her credit (ts 321);
(b)SRB was 'disadvantaged in the sense that she was not living in a [family] home of her own at some point in time' (ts 322 ‑ 323);
(c)the trial would not determine where the truth lay in relation to the matter on which defence counsel proposed to cross‑examine SRB (ts 323); and
(d)the trial was not 'a fair forum for that inconsistency to be determined one way or another' and, further:
It has been adduced solely for the purpose of discrediting her, and if it's not fair to her, in the sense that there is not a contest which is equal in relation to the relevant evidence for the issue, then it's prejudicial and it's unfair. It's a matter which goes to discretion, at the end of the day, if the blanket prohibition is in some way got around and section 36BC, if it's concerned about her sexual activity, is also not invoked. Section 36BC has a discretion in it as well (ts 323).

The next day, 8 May 2015, defence counsel made this additional brief submission:
[T]here is a logical nexus to the evidence I propose to ask [SRB] about as to the issues in this trial, which is the credibility of [SRB]. That goes to a fact in issue, or a relevant fact in issue … that is, [SRB's] credibility (ts 337).
On 8 May 2015, at 1.59 pm, the trial judge ruled that he would not permit defence counsel to cross‑examine SRB in the manner proposed (ts 401). His Honour made the ruling before SRB was called as a witness. His Honour reiterated the ruling immediately before SRB began her evidence (ts 420 ‑ 421).

The trial judge's reasons for his decision not to permit defence counsel to cross‑examine SRB about her having made a false complaint to police as to sexual abuse by GJM

On 8 May 2015, at 4.30 pm, the trial judge gave reasons for his decision not to permit defence counsel to cross‑examine SRB about her having made a false complaint to police as to sexual abuse by GJM (ts 454 ‑ 458). In summary, his Honour said:
(a)It was an 'open question' whether s 36BC of the Evidence Act applied and it was unnecessary to decide that issue (ts 456).
(b)Section 189 of the Young Offenders Act had to be taken into account (but his Honour did not make any determination as to the effect of that provision) (ts 456).
(c)The questions that defence counsel wanted to put to SRB merely went to her credit and were not relevant to a fact in issue and, accordingly, s 25 of the Evidence Act applied (ts 456 ‑ 457).
(d)He had 'had regard to [the considerations in s 25(2)] in arriving at the decision' he had made (ts 457).
(e)In exercise of the discretion conferred by s 25(1), and after having regard to the considerations in s 25(2), defence counsel should not be permitted to cross‑examine SRB in the manner proposed, because:
(i)the 'body of evidence' sought to be adduced by defence counsel was a 'separate and discrete part of evidence' concerning SRB;
(ii)the 'body of evidence' was 'personal' to SRB;
(iii)SRB indicated in her witness statement that she was not 'truly guilty' of the offence;
(iv)pleas of guilty are sometimes entered for reasons other than that the person is guilty;
(v)the 'body of evidence' would open up a 'collateral issue';
(vi)it would not be 'fair to [SRB] or to the issues which the jury must determine in this trial';
(vii)it would be a 'distraction to the trial of the allegations against [the appellant]';
(viii)SRB was a young person, aged 14 years and 6 months, when she made the allegations against GJM; and
(ix)at that time she was living in 'difficult personal and, perhaps, dysfunctional circumstances' (ts 457 ‑ 458).
I will refer to those matters as factors (i), (ii), (iii), (iv), (v), (vi), (vii), (viii) and (ix).
His Honour added without elaboration that, having recently heard SRB give evidence, he was 'fortified' in his decision not to permit cross‑examination in the manner proposed by defence counsel (ts 458).

Cross‑examination for the purpose of attacking the credibility of a witness

The ordinary and natural meaning of 'credibility' is, relevantly, 'the quality of being credible' and the ordinary and natural meaning of 'credible' is 'believable; worthy of belief or support'. The ordinary and natural meaning of 'credit' is, relevantly, 'trustworthiness; credibility'. See the Shorter Oxford English Dictionary (6^th ed, 2007) 555. The dictionary definitions reveal that there is no material difference between the relevant ordinary and natural meanings of 'credibility' and 'credit'.
However, differences of opinion have been expressed as to whether any distinction exists between the terms 'credit' and 'credibility' in the context of the 'credit' or 'credibility' of a witness. See T Simos, 'The Nature and Scope of Cross‑Examination as to Credit' in Glass (ed), Seminars in Evidence (1970), 166 ‑ 168.
As Mr Simos points out:
(a)Some commentators distinguish between the 'credit' and 'credibility' of a witness on the basis that 'credibility' may be unconnected with 'credit' in that it may depend upon matters relating to the reliability of the witness's evidence, whereas 'credit' may relate to the witness's antecedents, associates, character, impartiality and consistency.
(b)Other commentators take the view that the terms 'credit' and 'credibility' in relation to a witness are in essence synonymous, and the 'credit' or 'credibility' of a witness or of his or her evidence may be affected by matters relating to the reliability of his or her evidence, further or alternatively, by such matters as antecedents, associates, character, impartiality and consistency.
Professor Wigmore appears to be of the opinion that there is no material difference in this context between 'credit' and 'credibility'. See Wigmore on Evidence, Chadbourn rev, (vol 3A, 1970) pars 874 ‑ 881. See also Phipson on Evidence (17^th ed, 2010) par 12‑36.
Like Mr Simos, I am of the opinion that the view to which Professor Wigmore subscribes is to be preferred. So, the 'credit' or 'credibility' of a witness may be impugned in cross‑examination, for example, by answers to questions which impeach his or her veracity, capacity to observe or remember, impartiality and consistency.
However, the critical point is that it is important to appreciate in each case the context and sense in which the terms 'credit' and 'credibility' are used.
At common law, evidence is, in general, admissible if it is relevant. Evidence will be relevant 'if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding': Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [2] (Gleeson CJ). But, as McHugh J pointed out in Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196, a balance must be struck, in a trial, between considerations of justice and matters of practicality and, consequently, the common law rule concerning relevance as the touchstone of admissibility is qualified by other rules of evidence [37].
Wigmore on Evidence gives this explanation of the fundamental quality of veracity as an aspect of the character of a witness (not being the accused), and its relevance in the trial process:
In determining the relevancy of character as affecting the credit to be given to a witness, the first question is, what kind of character is relevant? Since the argument is to be against or for the probability of his now telling the truth upon the stand, it is obvious that the quality or tendency which will here aid is his quality or tendency as to truth‑telling in general, ie, his veracity, or, as more commonly and more loosely put, his character for truth. This must be, and is universally conceded to be, the immediate basis of inference. Character for truth is always and everywhere admissible.
Moreover, any other trait or quality, or combination of them, is relevant only so far as involving, necessarily or probably, the presence or absence of this quality as to truth‑telling …
The argument for the use of bad general character to discredit a witness is, in brief, that it necessarily involves an impairment of the truth‑telling capacity, that to show general moral degeneration is to show an inevitable degeneration in veracity, and that the former is often more easily betrayed to observation than is the latter [922]. (original emphasis)
At common law, cross‑examination of a witness (not being the accused) is permitted in relation to previous misconduct for the purpose of discrediting the witness. This kind of cross‑examination endeavours to show that the witness has a bad general character which is, in turn, relevant to the witness's credit or credibility. So, the previous commission of an unlawful assault (whether the subject of a conviction or not) is relevant to indicate a violent character and the previous commission of a fraud (whether the subject of a conviction or not) is relevant to indicate a dishonest character. See Wigmore on Evidence, par 982.
However, the scope at common law for cross‑examination of a witness (not being the accused) in relation to previous misconduct is not without limits.
For example, a witness's character or previous conduct cannot be used to attack his or her credit or credibility unless the character or previous conduct is of such a nature as to tend logically and rationally to weaken confidence in his or her veracity or in his or her trustworthiness as a witness of truth. See Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474, 494 (Hunt J); R v Aldridge (1990) 20 NSWLR 737, 741 (Hunt J, Enderby & Grove JJ agreeing); R v Hawes (1994) 35 NSWLR 294, 301 (Hunt CJ at CL, Simpson & Bruce JJ agreeing); Doughty v The Queen [2002] WASCA 238 [34] (Templeman & Miller JJ).
In Bugg v Day [1949] HCA 59; (1949) 79 CLR 442, Dixon J said the better view is that, at common law, a conviction of a witness for an offence cannot be used for the purpose of discrediting him or her 'if the offence was not of such a nature as to tend to weaken confidence in the credit of the witness, that is to say in his character or trustworthiness as a witness of truth' (467).
In JF Stephen, A History of the Criminal Law of England (vol 1, 1883) it is said:
[The judge] has a right on all occasions to exercise the power … of stopping examinations which are not necessary for any legitimate purpose (436).
See also R v Slack [2003] NSWCCA 93; (2003) 139 A Crim R 314 [37] (Sheller JA, Wood CJ at CL & Smart AJ agreeing).
The scope for cross‑examination of a witness in relation to so‑called 'collateral matters' has been circumscribed since at least the early 18^thcentury.
The collateral evidence rule states that an answer given by a witness to a question in cross-examination relating to collateral issues is final, and may not be contradicted or rebutted by other evidence. This common law rule is subject to exceptions. The rule does not apply to:
(a)evidence of prior inconsistent statements;
(b)previous convictions;
(c)evidence of a reputation for untruthfulness;
(d)medical evidence affecting the reliability of a witness's evidence; or
(e)evidence of bias, interest or corruption.
There are probably some other exceptions. See Nicholls [248] (Hayne & Heydon JJ, Gleeson CJ agreeing).
In Nicholls, McHugh J explained the nature of collateral facts. His Honour said:
Collateral facts are 'facts not constituting the matters directly in issue between the parties' (Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533 at 546, per Latham CJ; Goldsmith (2002) 76 ALJR 1024 at 1025 [3]; 190 ALR 370 at 372, per Gleeson CJ) or 'facts that are not facts in issue or facts relevant to a fact in issue' (Goldsmith (2002) 76 ALJR 1024 at 1030 [32]; 190 ALR 370 at 378, per McHugh J). In most cases, a fact that affects the credibility of a witness is a collateral fact. Hence, an answer given by a witness to a matter that relates to credibility alone ‑ in other words, a collateral matter - is final and cannot be rebutted [38]. (emphasis added)

The proper construction of s 25 of the Evidence Act

Section 25 of the Evidence Act deals with questions put to a witness in cross‑examination which affect 'the credit' of the witness by injuring his or her character, and whether the imputation conveyed by the questions affects 'the credibility' of the witness. It provides:
(1)If any question put to a witness upon cross examination relates to a matter not relevant to the proceeding, except in so far as it affects the credit of the witness by injuring his character, it shall be the duty of the court to decide whether or not the witness shall be compelled to answer it, and the court may, if it thinks fit, inform the witness that he is not obliged to answer it.
(2)In exercising this discretion, the court shall have regard to the following considerations ‑
(a)such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the court as to the credibility of the witness on the matter to which he testifies;
(b)such questions are improper if the imputation they convey relates to matters so remote in time, or of such character, that the truth of the imputation would not affect, or would affect in a slight degree only, the opinion of the court as to the credibility of the witness on the matter to which he testifies;
(c)such questions are improper if there is a great disproportion between the importance of the imputation made against the witness's character and the importance of his evidence.
(3)Nothing herein shall be deemed to make any witness compellable to give evidence upon any matter he is now by law privileged from disclosing.
Section 25 has been part of the Evidence Act since its enactment in 1906. The provision has never been amended.
Section 25 is to be distinguished from s 26 of the Evidence Act, which deals with unduly offensive or otherwise improper questions put to a witness in cross‑examination. Section 26 provides:
(1)The court may disallow a question put to a witness in cross‑examination, or inform the witness that it need not be answered, if the question is ‑
(a)misleading; or
(b)unduly annoying, harassing, intimidating, offensive, oppressive or repetitive.
(2)Subsection (1) extends to a question that is otherwise proper if the putting of the question is unduly annoying, harassing, intimidating, offensive or oppressive.
(3)Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account ‑
(a)any relevant condition or characteristic of the witness, including age, language, personality and education; and
(b)any mental, intellectual or physical disability to which the witness is or appears to be subject.
Section 25 of the Evidence Act was based upon, although not identical to, s 148 of the Indian Evidence Act 1872. The Indian Evidence Act was drafted by Sir James Stephen. That Act began by repealing (with a few exceptions) the whole of the law of evidence then in force in India, and proceeded to re‑enact it in the form of a code of 167 sections. See the introduction to Stephen JF, A Digest of the Law of Evidence (5^th ed, 1887).
Sir James Stephen submitted in A Digest of the Law of Evidence that a court has the right to exercise a discretion to refuse to compel a witness to answer questions in cross‑examination when the truth of the matter suggested would not, in the opinion of the court, affect his or her credibility as to the matter to which he or she is required to testify (141).
Later in his work, Sir James Stephen elaborated:
I shall not believe, unless and until it is so decided upon solemn argument, that by the law of England a person who is called to prove a minor fact, not really disputed, in a case of little importance, thereby exposes himself to having every transaction of his past life, however private, inquired into by persons who may wish to serve the basest purposes of fraud or revenge by doing so. Suppose, for instance, a medical man were called to prove the fact that a slight wound had been inflicted, and been attended to by him, would it be lawful, under pretence of testing his credit, to compel him to answer upon oath a series of questions as to his private affairs, extending over many years, and tending to expose transactions of the most delicate and secret kind, in which the fortune and character of other persons might be involved? If this is the law, it should be altered (196 ‑ 197).
Sir James Stephen then referred to s 148 of the Indian Evidence Act as 'perhaps … deserving of consideration' (197).
Section 25 of the Evidence Act confers a discretionary power on the court which will be enlivened in the circumstances described in the provision. The court may intervene in the cross‑examination of a witness and inform the witness that he or she is not obliged to answer a question which relates to a matter not relevant to the proceedings, except in so far as it affects the witness's credit by injuring his or her character, if, in general, the imputation sought to be made is insignificant to the witness's credibility on the matter to which he or she testifies or there is a great disproportion between the importance of the imputation, on the one hand, and the importance of his or her evidence, on the other.
The apparent purpose of s 25 is to advance the public interest in the administration of justice in two respects. First, to protect a witness from unnecessary attacks on his or her character or credibility. Secondly, to enhance the efficiency of the trial process by eliminating unnecessary cross‑examination and maintaining focus upon the relevant matters in issue between the parties.
Statutory provisions similar to s 25 of the Evidence Act have been enacted in s 9 of the Oaths and Evidence Act 1890 (Vic) (repealed), s 37 of the Evidence Act 1958 (Vic) (repealed), s 20 of the Evidence Act 1977 (Qld), s 23 and s 24 of the Evidence Act 1929 (SA), and s 13, s 14 and s 15 of the Evidence Act 1939 (NT) (repealed).
In R v Taylor (1892) 18 VLR 497, the defendants were convicted, after a trial, of conspiracy. During the trial, defence counsel desired to cross‑examine a prosecution witness by putting questions designed to show that the witness had prepared the prosecution's case or had prepared a statement in anticipation of cross‑examination. The trial judge said that, apart from s 9 of the Oaths and Evidence Act 1890 (Vic) (repealed), he would have prevented this cross‑examination. He went on to hold that, under s 9, he was compelled to do so. His Honour was of the view that the imputation which defence counsel desired to put to the witness related to 'matters of such a character that the truth of it would not … affect the credibility of the witness on the matter to which he testified' (498).
The trial judge reserved, for the consideration and determination of the Full Court of the Supreme Court of Victoria, the question whether he was correct in refusing to allow the desired cross‑examination of the witness. The Full Court (Holroyd, a'Beckett & Hood JJ) held that the trial judge's refusal to allow the questions to be put in cross‑examination was not justified by s 9 of the Oaths and Evidence Act 1890 (Vic) (repealed) because the proposed questions 'were not intended to affect the credit of the witness by injuring his character within the meaning of s 9' (500). However, the Full Court said that the trial judge had not exceeded his discretionary power, apart from s 9, in disallowing the cross‑examination (500).
In R v Reed (Unreported, VSCA, 30 October 1995), the applicant was convicted, after a trial, on one count of trafficking in a drug of dependence, namely amphetamine, contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). He applied for leave to appeal against conviction and sentence. The relevant ground of appeal against conviction concerned the cross‑examination of three defence witnesses. It was argued on behalf of the applicant that the questions asked of those witnesses and the answers they gave severely prejudiced the defence and resulted in a miscarriage of justice. The questions went to their credit and they were vital witnesses for the defence. The answers given revealed, amongst other things, an association with drugs in the case of two of the witnesses [5]. At the trial, apart from one intervention, defence counsel did not object to the questions asked of the witnesses in cross‑examination [9] ‑ [10].
In the Court of Appeal of Victoria, Callaway JA (Charles JA & Vincent AJA agreeing) referred to s 37 of the Evidence Act 1958 (Vic) (repealed), which provided:
If any question put to a witness upon cross‑examination relates to a matter not relevant to the suit or proceeding except in so far as it affects the credit of the witness by injuring his character it shall be the duty of the court to decide whether or not the witness shall be compelled to answer it, and the court may if it thinks fit warn the witness that he is not obliged to answer it.
In exercising this discretion the court shall have regard to the following considerations: ‑
(a)Such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the court as to the credibility of the witness on the matter to which he testifies.
(b)Such questions are improper if the imputation which they convey relates to matters so remote in time or of such a character that the truth of the imputation would not affect or would affect in a slight degree only the opinion of the court as to the credibility of the witness on the matter to which he testifies.
(c)Such questions are improper if there is a great disproportion between the importance of the imputation made against the witness' character and the importance of his evidence.

That provision was, in substance, identical to s 25(1) and s 25(2) of the Western Australian Evidence Act.
In Reed, Callaway JA said:
The discretion conferred by s 37 is to be exercised according to all the circumstances of the trial. Apart from the three considerations set out in the section itself, there is no presumption as to how it is to be exercised, and it may be that some of the statements made by Hunt J, with whom Enderby J and Grove J concurred, in R v Aldridge (1990) 20 NSWLR 737 at pp 741 ‑ 742 should be received with caution. The New South Wales provision appears from the report to be significantly different from ours, even though it is expressed in superficially similar terms.
Questions designed to show that these witnesses were not wholly respectable members of their profession may well have been allowed if objection had been taken under s 37, but that need not be determined because no substantial miscarriage of justice resulted from the reception of any of this evidence [17]‑ [18].
In Aldridge, the Court of Criminal Appeal of New South Wales construed and applied s 56 of the Evidence Act 1898 (NSW) (repealed). Section 56 permitted a judge to disallow a question directed to a witness's credit if, in his or her opinion, 'the matter [suggested by the question] is so remote in time or of such a nature that an admission of its truth would not materially affect the credibility of the witness'. Hunt J (Enderby & Grove JJ agreeing) said:
(a)when a trial judge is exercising his or her discretion under s 56, following questions directed to a witness's credit and relating to criminal convictions, the judge should consider the relevance of the convictions themselves rather than the relevance of the nature of the offences which have been committed (742);
(b)where a witness's credit is 'very much in issue', it is unwise, in exercising the discretion under s 56, to exclude from consideration matters which are relevant to credit unless they are 'clearly of no material weight whatsoever upon that issue' (742); and
(c)a decision by a trial judge to reject evidence pursuant to s 56 should always be taken 'with great caution and as an exception to the rule rather than as the rule itself' (742).
Those appear to be the statements of Hunt J which, according to Callaway JA in Reed, 'should be received with caution' in the context of s 37 of the Evidence Act 1958 (Vic) (repealed) [17].
In R v Sadler [2008] VSCA 198; (2008) 20 VR 69, the applicant was convicted, after a trial, of a number of serious offences including one count of rape, six counts of making a threat to kill, one count of intentionally causing serious injury and one count of false imprisonment. The complainant was a woman who had lived with the applicant. She had come to Victoria with him from South Australia where she had worked as a prostitute and was or had been addicted to heroin. When the complainant met the applicant in South Australia she was aged 30 or 31. She was about 34 when they came to Victoria.
Before the jury was empanelled, defence counsel sought leave from the trial judge under s 37A of the Evidence Act 1958 (Vic) (repealed) to cross‑examine the complainant as to whether she had continued to work as a prostitute in Melbourne at the time of the alleged offences. Also, defence counsel otherwise sought leave to cross‑examine the complainant as to her drug addiction as a matter relevant to her ability to recount events. The trial judge rejected both applications. He ruled that he would not allow any questions relating to the complainant's work as a prostitute and would not allow any evidence of her drug‑taking as there was not 'a scintilla of evidence' as to either matter. His Honour held that to allow the cross‑examination would be to permit gratuitous injury to the complainant's character, contrary to s 37 of the Evidence Act 1958 (Vic) (repealed). He also held that to allow cross‑examination about the complainant's alleged work as a prostitute would offend s 37A of the Evidence Act 1958 (Vic) (repealed).
As I have mentioned, s 37 of the Evidence Act 1958 (Vic) (repealed) was, in substance, identical to s 25(1) and s 25(2) of the Western Australian Evidence Act. Section 37A of the Evidence Act 1958 (Vic) (repealed) specified special rules of evidence in relation to certain offences relating to rape.
The Court of Appeal of Victoria held that the trial judge was wrong to have prevented defence counsel from cross‑examining the complainant as proposed. Nettle, Redlich and Dodds‑Streeton JJA made the following points about s 37.
Section 37 was, in terms, confined to a question in cross‑examination which 'relates to a matter not relevant to the suit or proceeding except in so far as it affects the credit of the witness by injuring his character'. The Court of Appeal said that defence counsel's purpose in seeking to cross‑examine as to the complainant's addiction was to establish that she lacked or was affected in her capacity to perceive or recall the alleged offences and, hence, s 37 had no application [29] ‑ [30]. Their Honours added:
Apart from any effect that cross‑examination as to the complainant's addiction might have had upon the jury's assessment of her character, the jury might have inferred that heroin addiction affected her capacity to perceive and recall events and thus the weight to be given to her evidence [30].
Also, s 37 was concerned with whether the truth of the imputation conveyed by the questions would seriously affect the opinion of the court as to the credibility of the witness on the matter to which the witness testifies. The Court of Appeal said that the trial judge erred in concluding that, if the cross‑examination as to addiction were otherwise permissible, there was nothing to be gained from the questions sought to be asked unless defence counsel could point to direct evidence that the complainant was still using heroin while she and the applicant were together in Melbourne [31] ‑ [32]. Their Honours elaborated:
The discretion conferred under s 37 is to be exercised having regard to the questions. The judge wrongly focussed upon the possible answers that might have been given. If the questions satisfied the criteria set out in s 37(a) the judge was not entitled to prohibit the questions because of the anticipated answer. Nor was counsel obliged to indicate the nature and extent of the other evidence that might be called to establish the truth of the imputation.
His Honour appears to have reasoned that, because the complainant had previously denied using heroin while she was with the applicant in Melbourne, she would continue to deny it if asked about it at trial; and that, because there was no direct evidence with which to contradict her, it would be futile to allow counsel to ask her. But, with respect, it can hardly ever be a sufficient reason to deny defence counsel the chance to put questions relevant to the credit of a witness that the witness has previously denied what is proposed to be put …
If the circumstances were such that it was beyond dispute that any suggestion of drug addiction was totally baseless or implausible (Wren v Emmett Contractors Pty Ltd (1969) 43 ALJR 213 at 220 ‑ 1 per Windeyer J; R v Slack (2003) 139 A Crim R 314 at 323, [31] per Sheller JA) the judge could have prohibited the questions. But that was not the case [32] ‑ [34].
In my opinion, a number of propositions may be distilled from the text of s 25 of the Evidence Act, in the context of the apparent purpose of the provision, including the following.
First, s 25 is concerned with a question put to a witness in cross‑examination which relates to 'a matter not relevant to the proceeding, except in so far as it affects the credit of the witness by injuring his [or her] character'.
Secondly, the discretionary power which s 25 confers on the court is not enlivened unless the question put to the witness 'affects the credit of the witness by injuring his [or her] character' and the question does not otherwise relate to a matter relevant to the proceeding.
Thirdly, the question put to the witness will have the requisite effect on his or her credit if the question embodies an imputation and the truth of the imputation is injurious to his or her character.
Fourthly, the court should exercise the discretion by reference to the question put to the witness, and not by reference to the witness's anticipated or possible answer, unless the imputation embodied in the question is baseless or totally implausible.
Fifthly, the considerations specified in s 25(2)(a), s 25(2)(b) and s 25(2)(c) are mandatory relevant considerations; that is, the court must have regard to those considerations in exercising the discretion.
Sixthly, s 25(2)(a) specifies circumstances in which the question will be 'proper', s 25(2)(b) specifies circumstances in which the question will be 'improper' and s 25(2)(c) specifies circumstances in which the question will be 'improper'.
The terms 'proper' and 'improper' are not defined in the Act. Section 25 empowers the court to intervene in a cross‑examination and decide whether, in the exercise of its discretion, a witness should or should not be required to answer a question of the kind to which the provision applies. The text of s 25, in the context of the apparent purpose of the provision, indicates that 'proper' connotes that the question is permissible and 'improper' connotes that the question is impermissible.
So:
(a)by virtue of s 25(2)(a), if the question is of such a nature that the truth of the imputation conveyed by it would seriously affect the court's opinion as to the credibility of the witness on the matter to which he or she testifies, then the question is 'proper' and therefore permissible;
(b)by virtue of s 25(2)(b), if the imputation conveyed by the question relates to matters so remote in time, or of such character, that the truth of the imputation would not affect, or would affect in a slight degree only, the court's opinion as to the credibility of the witness on the matter to which he or she testifies, then the question is 'improper' and therefore impermissible; and
(c)by virtue of s 25(2)(c), if there is a great disproportion between the importance of the imputation made against the witness's character and the importance of his or her evidence, then the question is 'improper' and therefore impermissible.
Seventhly, if a question is within s 25(2)(a), then the court's discretion under s 25(1) is to be exercised according to that classification unless the court decides that, in all the circumstances of the proceeding and after having regard to all relevant considerations, its discretion should be exercised, in effect, to disallow the question.
Eighthly, if a question is within s 25(2)(a), that classification does not fetter or otherwise constrain the court's power to rule that, on some other basis than s 25, the question is improper or objectionable (for example, by virtue of s 26 of the Evidence Act) and should therefore be disallowed.
Ninthly, if a question is within s 25(2)(b) or s 25(2)(c), then the court's discretion under s 25(1) is to be exercised according to that classification unless the court decides that, in all the circumstances of the proceeding and after having regard to all relevant considerations, its discretion should be exercised, in effect, to permit the question.
Tenthly, if a question is not within s 25(2)(a), s 25(2)(b) or s 25(2)(c), then the court's discretion under s 25(1) is to be exercised according to all the circumstances of the proceeding and after having regard to all relevant considerations. The subject matter and text of the considerations specified in s 25(2)(a), s 25(2)(b) and s 25(2)(c) may provide guidance as to the manner in which the discretion should be exercised, even though the question is not within any of those provisions.
Eleventhly, any other factors which the court is entitled or bound to consider or take into account (apart from the mandatory relevant considerations specified in s 25(2)), and any factors which the court is not entitled to consider or take into account, are to be ascertained by implication from the subject matter, scope and purpose of s 25 as a whole. See Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39 ‑ 40 (Mason J).
Twelfthly, the word 'credit' in s 25(1) describes the injuring of the witness's character by the truth of the imputation conveyed by the question put to the witness. The word 'credibility' in s 25(2) describes the impact of the truth of the imputation conveyed by the question on the court's opinion as to the truthfulness and reliability of the witness's evidence on the matters to which he or she is to testify.
Finally, in this connection, it is important to appreciate that the discretionary power conferred by s 25 must be exercised, not only in the context of the apparent purpose of the provision, but also in the context of the object of a court proceeding (especially a criminal proceeding), which is to secure a fair trial as between the parties (and, in a criminal proceeding, a fair trial of the accused).

The enlivening of the trial judge's discretion under s 25(1) of the Evidence Act

The parties were agreed at the trial that defence counsel's proposed line of questioning of SRB enlivened his Honour's discretion under s 25(1) of the Evidence Act. The parties' agreement on the point was correct.

The merits of ground 1 of the appeal

The appellant asserts in ground 1 that the trial judge made a wrong decision on a question of law by purporting to exercise the discretionary power under s 25(1) of the Evidence Act in 'circumstances in which the preconditions for the exercise of [the] discretion did not exist'.
The particulars of ground 1 assert:
(a)by s 25(1), the court is invested with a discretion to 'inform [a] witness that he [or she] is not obliged to answer';
(b)the discretion may only be exercised when a 'question [is] put to a witness upon cross‑examination'; and
(c)in the present case, no question was 'put to [SRB] upon cross‑examination'.
The assertions in ground 1 must be examined in the context of s 98 of the Criminal Procedure Act 2004 (WA) and s 30(3) of the Criminal Appeals Act 2004 (WA).
Section 98(1) of the Criminal Procedure Act provides that s 98 applies if an accused is committed to, or charged on indictment in, a 'superior court' (that is, the Supreme Court or the District Court). See the definition of 'superior court' in s 3(1) of that Act.
By s 98(2)(a), at any time before the accused's trial begins, the court 'may determine any question of law or procedure, give any direction, or do any thing, that is necessary or convenient in order to facilitate the preparation for, or the conduct of, the trial, or that is otherwise desirable'.
The judge constituting the court that deals with any matter under s 98(2) need not be the judge who constitutes the court when the trial of the accused takes place: s 98(5).
Section 98(6) provides that any proceedings under s 98(2) are to be taken to be part of the accused's trial.
By s 98(7), the powers of a judge in a trial include, but are not limited to, the powers in s 98.
In my opinion, s 98(1), s 98(2)(a) and s 98(7), read together, empowered the trial judge in the present case to determine, before 'any question [was] put to [SRB] upon cross‑examination' (within s 25(1) of the Evidence Act), whether defence counsel's proposed questions:
(a)'[related] to [matters] not relevant to the proceeding, except in so far as [they affect] the credit of [SRB] by injuring [her] character', within s 25(1); and
(b)if so, 'whether or not [SRB] shall be compelled to answer [the questions]', within s 25(1).
In particular, the procedure adopted by his Honour in relation to defence counsel's proposed questions for SRB involved his Honour '[determining a] question of law', '[giving a] direction' or '[doing another] thing' that was 'necessary or convenient in order to facilitate … the conduct of … the trial' or that was 'otherwise desirable', within s 98(2)(a).
Section 30(3) of the Criminal Appeals Act provides, relevantly, that this court must allow an appeal against conviction by an offender if, in its opinion:
(b)the conviction should be set aside because of a wrong decision on a question of law by the judge; or
(c)there was a miscarriage of justice.
In my opinion, if the trial judge in the present case made a wrong decision, in exercising the discretionary power under s 25(1) of the Evidence Act, that erroneous decision may have constituted 'a wrong decision on a question of law' within s 30(3)(b), further or alternatively, may have occasioned 'a miscarriage of justice' within s 30(3)(c).
Ground 1 fails.

The merits of ground 2 of the appeal

The appellant asserts in ground 2 that, alternatively to ground 1, the trial judge made a wrong decision on a question of law in exercising the discretionary power under s 25(1) of the Evidence Act, in that his Honour took into account irrelevant considerations, further or alternatively, arrived at a decision that was plainly unreasonable or unjust.
I will deal, first, with the aspect of ground 2 which alleges that his Honour erred by taking into account irrelevant considerations.
Although the trial judge said, in his reasons for decision:
I have had regard to [the] factors [in s 25(2)] in arriving at the decision I have made (ts 457),
it is unclear from his Honour's reasons whether he found that defence counsel's proposed questions were:
(a)'proper' within s 25(2)(a), but that, in all the circumstances of the proceeding and after having regard to all relevant considerations, his discretion should be exercised, in effect, to disallow the questions; or
(b)'improper' within s 25(2)(b), further or alternatively, 'improper' within s 25(2)(c), and that in all the circumstances of the proceeding, and after having regard to all relevant considerations, his discretion should not be exercised, in effect, to permit the questions.
However, it is clear from his Honour's reasons that he expressly took into account the nine factors I have enumerated at [41(e)] above in deciding not to permit defence counsel to cross‑examine SRB about her having allegedly made a false statement to police as to sexual abuse by GJM.
It was submitted on behalf of the State that each of the factors taken into account by the trial judge was a relevant consideration in the exercise of his discretion.
Factor (i) stated that 'the body of evidence' sought to be adduced by defence counsel was a 'separate and discrete part of evidence' concerning SRB, and factor (ii) stated that the 'body of evidence' was 'personal' to her.
It is not readily apparent how factors (i) and (ii) were, of themselves, relevant to the exercise by his Honour of the discretionary power under s 25(1). It is probable that factors (i) and (ii) were merely aspects of part of factor (vi), factor (viii) and factor (ix). I will consider factors (i) and (ii) later in the course of considering those other factors.
Factors (iii) and (iv) were as follows:
(a)SRB indicated in her witness statement that she was not 'truly guilty' of the offence of creating a false belief (factor (iii)); and
(b)pleas of guilty are sometimes entered for reasons other than that the person is guilty (factor (iv)).
As I have mentioned, SRB said in her witness statement:
I did not tell anyone [about the appellant's alleged offending] because I was too scared to, I have a past history of similar things happening. I had spoken out before, at my school about what had happened to me. I was later blackmailed by my mum to tell the police it was all a lie, I had to do that in order to keep a house over my head [41] ‑ [43].
The parties were agreed that the reference in that passage:
(a)to 'a past history of similar things happening' was to the alleged sexual abuse by GJM; and
(b)to being 'later blackmailed by my mum to tell the police it was all a lie' was to SRB having withdrawn, and the reasons for the withdrawal of, her complaint to police about that sexual abuse.

As Nettle, Redlich & Dodds‑Streeton JJA observed in Sadler, it can hardly ever be a sufficient reason, to prevent defence counsel from putting a question as to credit to a witness in cross‑examination, that the witness has previously denied what is proposed to be put [33]. In Sadler, the trial judge appears to have reasoned that, because the witness had previously denied using heroin while she was with the applicant in Melbourne, she would continue to deny it if asked about it at the trial; and that, because there was no direct evidence with which to contradict her, it would be futile to permit defence counsel to ask her [33]. Their Honours said that if the circumstances were such that it was beyond dispute that any suggestion of drug addiction was 'totally baseless or implausible', the trial judge could have prohibited defence counsel from asking the questions, but that was not the case [34].
In the present case, the trial judge, in relying on factors (iii) and (iv), took into account, in substance, a consideration that was irrelevant to the exercise of his discretion, namely the answers which he anticipated SRB would or might give in cross‑examination. Factor (iii) reflected an assumption by his Honour, based on SRB's witness statement, as to the manner in which she would respond to defence counsel's proposed questions and that her responses would not be shaken or undermined by cross‑examination. Factor (iv) was a development of and sought to reinforce factor (iii) by suggesting a rationale, based on the experience of the court, consistent with SRB's assertions in her witness statement. His Honour should have focused on the proposed questions and not on SRB's anticipated or possible answers or whether those answers would withstand scrutiny.
The imputation conveyed by defence counsel's proposed line of questioning was that SRB's complaint of alleged sexual abuse by GJM was a fabrication and that she acknowledged the fabrication by later withdrawing her complaint and admitting in the Children's Court that she had created a false belief in relation to her complaint about GJM. The obvious forensic purpose of the questioning was to endeavour to establish, together with other evidence, a proper basis for submitting to the jury in closing that:
(a)SRB was not a person of good character in that she was prepared to allege falsely that she had been sexually abused; and
(b)SRB was therefore not a witness of truth and her evidence as to alleged sexual abuse by the appellant was untrue, inaccurate and unreliable.
The imputation conveyed by defence counsel's proposed line of questioning was not baseless or totally implausible.
Neither factor (iii) nor factor (iv) related to the mandatory relevant consideration in s 25(2)(b) or s 25(2)(c). Also, neither of them was within any other relevant consideration ascertainable by implication from the subject matter, scope and purpose of s 25 as a whole. On a proper construction and application of s 25, the trial judge was not entitled, in the circumstances, to consider or take into account factor (iii) or factor (iv) in exercising his discretion.
Factor (v) stated that the 'body of evidence' sought to be adduced by defence counsel would open up a 'collateral issue'. Part of factor (vi) stated that it would not be 'fair to … the issues which the jury must determine in this trial'. Factor (vii) stated that it would be a 'distraction to the trial of the allegations against [the appellant]'. All of those matters appear to relate, in substance, to the trial judge's view that defence counsel's proposed questions should not be permitted because they merely raised a matter relating solely to SRB's credit and therefore a 'collateral issue'.
Section 25 is not concerned with the collateral evidence rule. As I have mentioned, according to that rule an answer given by a witness to a question in cross‑examination relating to a collateral issue is (subject to some exceptions) final, and may not be contradicted or rebutted by other evidence. Ordinarily, an answer given by a witness to a question on a matter relating solely to his or her credit is a collateral matter, and the answer is final and cannot be rebutted.
Section 25 deals with cross‑examination as to credit. As McHugh J noted in Nicholls, in most cases a fact that affects the credibility of a witness is a collateral fact [38]. In the present case, defence counsel's proposed questions related to a collateral issue; that is, a matter concerned solely with SRB's credibility. It was not suggested, either at the trial or at the hearing of the appeal, that any of the exceptions to the collateral evidence rule may have applied. His Honour did not refer to any of the exceptions. On that basis, the answers given by SRB would have been final and could not have been rebutted.
I am satisfied, in those circumstances, that each of factor (v), that part of factor (vi) to which I have referred and factor (vii) was an irrelevant consideration in the exercise of the trial judge's discretion. The fact that defence counsel's proposed line of questioning related to a collateral issue was not, of itself, a relevant consideration because s 25 relates to collateral issues. A question on a matter concerned solely with a witness's credibility will, of its nature, relate to a matter not relevant to the proceeding, except in so far as it affects the witness's credit by injuring his character. A question relating to a matter concerned solely with a witness's credibility will, in that sense, always be separate and distinct from the matters which are relevant to the proceeding. In the present case, any point or dispute about the application of the collateral evidence rule would not arise, if at all, until the proposed questions had been put and answered.
None of factor (v), that part of factor (vi) to which I have referred or factor (vii) related to the mandatory relevant consideration in s 25(2)(b) or s 25(2)(c). Also, none of them was within any other relevant consideration ascertainable by implication from the subject matter, scope and purpose of s 25 as a whole. On a proper construction and application of s 25, his Honour was not entitled, in the circumstances, to consider or take into account factor (v), that part of factor (vi) to which I have referred or factor (vii) in exercising his discretion.
The other part of factor (vi) stated that it would not be 'fair to [SRB]'. Factor (viii) stated that SRB was a young person, aged 14 years and 6 months, when she made the allegations against GJM. Factor (ix) stated that at that time she was living in 'difficult personal and, perhaps, dysfunctional circumstances'. I have set out factors (i) and (ii) at [118] above.
I am not persuaded that any of factor (i), factor (ii), the other part of factor (vi) to which I have referred, factor (viii) or factor (ix) was an irrelevant consideration in the exercise of the trial judge's discretion. All of those factors, viewed together, appear to relate to the mandatory relevant consideration in s 25(2)(b); namely, whether, in the trial judge's assessment, defence counsel's proposed questions related to matters so remote in time, or of such character, that the truth of the imputation would not affect, or would affect in a slight degree only, the opinion of the court as to SRB's credibility on the matters to which she was to testify.
So, in summary, I am of the opinion, for the reasons I have given, that each of factor (iii), factor (iv), factor (v), that part of factor (vi) which stated it would not be 'fair to … the issues which the jury must determine in this trial' and factor (vii) was an irrelevant consideration in the exercise of his Honour's discretion.
I am unable to conclude, on an evaluation of the trial judge's reasons as a whole, that the irrelevant factors which his Honour took into account did not materially affect his decision.
The aspect of ground 2 which alleges that his Honour erred by taking into account irrelevant considerations has been made out.
I turn now to the aspect of ground 2 which alleges that the trial judge, in exercising the discretionary power under s 25(1) of the Evidence Act, arrived at a decision that was plainly unreasonable or unjust.
The residuary category of error in the making of a discretionary judgment, as identified by Dixon, Evatt and McTiernan JJ in House v The King [1936] HCA 40; (1936) 55 CLR 499, is where the result embodied in the court's order 'is unreasonable or plainly unjust' and the appellate court infers 'that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance' (505).
The aspect of ground 2 which alleges that his Honour's decision was plainly unreasonable or unjust must be examined in the context of my opinion as to the proper construction of s 25 and without regard to those factors, taken into account by his Honour, which I have held were irrelevant, in the circumstances, to the exercise of his discretion.
It was submitted on behalf of the State, in effect, that the trial judge's decision was not plainly unreasonable or unjust in that defence counsel's proposed line of questioning involved the putting of questions that were 'improper' within s 25(2)(b). In particular, counsel for the State submitted that the proposed questions were 'improper' in that the imputation they conveyed related to 'matters so remote in time … that the truth of the imputation would not affect, or would affect in a slight degree only, the opinion of the court as to the credibility of [SRB]' on the matters to which she was to testify. In other words, the State sought to defend the appellant's conviction on counts 5 and 6 on the basis that s 25(2)(b) applied to defence counsel's proposed line of questioning and that his Honour's decision was supported by that provision. Alternatively, the State contended that, even if s 25(2)(b) did not apply, his Honour nevertheless correctly exercised his discretion.
The relevant sequence of events, and SRB's age when each of the events occurred, were as follows:
(a)SRB was aged 14 years and 6 months when, on 24 August 2007, she made a complaint to police about the alleged sexual abuse by GJM;
(b)SRB was aged 15 years and 2 months when, on 17 April 2008, she admitted in the Children's Court that she had created a false belief in relation to her complaint about GJM;
(c)SRB was aged about 15 years and 6 months when, between 1 May 2008 and 25 December 2008, the appellant allegedly committed counts 5 and 6 in relation to her;
(d)SRB was aged 20 years and 5 months when, on 15 July 2013, she made a complaint to police about the alleged sexual abuse by the appellant; and
(e)SRB was aged 22 years and 3 months when, on 8 May 2015 and 11 May 2015, she gave evidence at the appellant's trial.
In my opinion, the applicable intervals of time, for the purposes of s 25(2)(b), were these:
(a)the period of about five years and 11 months between SRB's complaint to police on 24 August 2007 (when she was aged 14 years and 6 months) about the alleged sexual abuse by GJM and her complaint to police on 15 July 2013 (when she was aged 20 years and 5 months) about the alleged sexual abuse by the appellant; and
(b)the period of about five years and three months between SRB's admission in the Children's Court on 17 April 2008 (when she was aged 15 years and 2 months) that she had created a false belief and her complaint to police on 15 July 2013 (when she was aged 20 years and 5 months) about the alleged sexual abuse by the appellant.
At the trial, the jury's assessment of SRB's credibility was of critical importance in relation to counts 5 and 6. The prosecutor accepted, properly, in his opening address that the jury could not convict the appellant on counts 5 and 6, or either of them, unless it was satisfied beyond reasonable doubt that her evidence was, in material respects, truthful, accurate and reliable (ts 74, 76).
The trial judge gave the following directions to the jury, in his summing up, about the fundamental importance of the truthfulness, accuracy and reliability of the evidence of each complainant (including SRB):
Each complainant is, of course, the only witness against the accused as to the happening of the events alleged in the relevant count on the indictment except count 5 where [STK] was present at the time of the touching by the accused of [SRB]. Whilst there has been other evidence as to occasion and opportunity, no one has confirmed or corroborated the complainant's evidence as to the offences themselves because obviously the offences occurred when nobody else was present if you accept that they occurred except for count 5 as mentioned.
As a result, as I have told you, the position is that you must be satisfied beyond reasonable doubt about the truthfulness, accuracy and reliability of the complainants' evidence before you could convict the accused of the charge you are considering. Because of the crucial nature of the evidence of each complainant in relation to the allegation they make and because of the seriousness of the allegations each complainant makes separately you should scrutinise their evidence with special care.
You should take into account that the alleged events are said to have occurred some years ago. They are allegations of serious sexual crimes. No complaint was made at the relevant time, bearing in mind the directions I've given to you in relation to the issue of complaint. [STK], [SRB] and [BRV] were all young people at the time of the alleged sexual abuse. They were, I would suggest, living in a family and domestic situation which the accused accepted involved pushing and shoving between him and his wife, [VM], from time to time.
Members of the jury, you will appreciate that the human memory is fallible. The longer the delay, the more opportunity there is for error and that is so particularly for events occurring in childhood. It is a matter of common experience that the longer 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 should consider the personal circumstances of each complainant generally and in particular at the time of the alleged offending. You should also bear in mind that because of the delay, the evidence of each complainant cannot be adequately tested. By reason of the delay the accused has lost the opportunity to bring forward matters of defence and to test the evidence of the complainants and to this extent he has been forensically disadvantaged.
By disadvantage I suggest to you that one way of testing the complainant's evidence is often by reference to surrounding circumstances and to details while not necessarily of significance themselves which may help to indicate whether the complainant's evidence is truthful, reliable and accurate. The passage of time is a factor in people's recollection of events and memory and recollection often dims with the passage of time.
The passage of years between the alleged events and the matter coming to court for hearing raises the question that you must consider and that is the truthfulness, reliability and accuracy of the complainants' recollection as to the allegation made and whether or not you can safely rely and act upon their evidence in that regard. This might also be seen and understood in the context of the complainant's own inability some years later to be certain about certain matters of detail at the time as opposed to the nature of the actual alleged touching itself (ts 807 ‑ 808).
The fundamental importance to the State's case on counts 5 and 6 of the truthfulness, accuracy and reliability of SRB's evidence was apparent when his Honour exercised his discretion under s 25(1).
I am satisfied that the applicable intervals of time to which I have referred were a relevant consideration to be taken into account, both for the purposes of s 25(2)(b) and generally, in the exercise of his Honour's discretion. However, those intervals of time did not, either on their own or together with any other relevant considerations, render defence counsel's proposed questions 'improper', either for the purposes of s 25(2)(b) or generally. Even if the imputation conveyed by the proposed questions related to matters 'remote' in time, either for the purposes of s 25(2)(b) or generally, it could not reasonably be concluded that the truth of the imputation would not affect, or would affect in a slight degree only, the opinion of the court as to SRB's credibility on the matters to which she was to testify.
The relevant circumstances in which the imputation conveyed by defence counsel's proposed line of questioning had to be evaluated and weighed included:
(a)Both SRB's complaint against GJM and her complaint against the appellant involved allegations of serious sexual offending by adult men with whom she had been living.
(b)SRB not only made the complaint against GJM to police, but she also recorded her allegations in a deposition and, later, embellished the deposition.
(c)If the complaint against GJM was a fabrication then, on the statement of material facts relating to the charge of creating a false belief, the allegation appears to have been made for a trivial and base reason, namely SRB's unhappiness with GJM insisting that she complete domestic chores.
(d)If the complaint against GJM was a fabrication then, when SRB made the complaint to police about him and when she recorded her allegations in a deposition and, later, embellished the deposition, she must have realised, given her age at the time, that her conduct involved, at the least, significant moral wrongdoing. Her conduct was persistent and repetitive, and was not, on any reasonable view, a mere childhood indiscretion.
(e)If the complaint against GJM was not a fabrication then SRB in effect told a lie by admitting in the Children's Court that she had created a false belief in relation to that complaint.
(f)A substantial interval of time elapsed between SRB making the complaint against GJM and her admitting in the Children's Court that she had created a false belief in relation to that complaint, on the one hand, and SRB making the complaint against the appellant, on the other.
(g)The other matters which the trial judge was entitled to and did take into account.
In my opinion, the circumstances to which I have referred in pars (a) to (e) at [148] above, decisively outweighed the circumstances to which I have referred in pars (f) and (g) at [148] above.
Section 36BC of the Evidence Act was not an obstacle to the propriety of defence counsel's proposed line of questioning. The proposed questions did not involve cross‑examining SRB about her sexual experiences. It is well‑established that defence counsel can, without leave under s 36BC, suggest to the complainant that a previous complaint of unlawful sexual offending was false because the alleged sexual acts in question never occurred. The absence of sexual experience generally or of a particular sexual experience is not caught by s 36BC. See Bolton v The State of Western Australia [2007] WASCA 277; (2007) 180 A Crim R 191 [36] (Steytler P, Buss & Miller JJA agreeing).
Similarly, s 189 and s 190 of the Young Offenders Act were not an obstacle to the propriety of defence counsel's proposed line of questioning. It is true that, by virtue of s 189(2), SRB's conviction, on 17 April 2008, of creating a false belief was 'not to be regarded as a conviction for any purpose', except as provided in s 189. None of the exceptions in s 189 applied. Also, by s 190(1), if s 189 provides that a conviction of an offence is not to be regarded as a conviction, evidence of that conviction is not admissible in any proceedings. Although s 189(2) read with s 190(1) made inadmissible at the appellant's trial any evidence of SRB's previous conviction, defence counsel was not precluded by those provisions from putting to SRB in cross‑examination questions about her having made the complaint against GJM, the recording of her allegations in a deposition, the embellishing of the deposition and the subsequent withdrawal of her complaint including her admission in the Children's Court that the complaint was false. See, generally, Thompson v The Queen (Unreported, WASCA, Library No 980600, 19 October 1998) 19 ‑ 20 (Steytler J, Kennedy & Wallwork JJ agreeing).

After evaluating and weighing all the circumstances to which I have referred, in the context of the State's case against the appellant on counts 5 and 6 (which, as I have mentioned, required the jury to be satisfied beyond reasonable doubt that SRB's evidence was, in all material respects, truthful, accurate and reliable), I am of the opinion that the mandatory relevant consideration in s 25(2)(a) applied. In other words, defence counsel's proposed questions were 'proper' in that they were of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the court as to the credibility of SRB on the matters to which she was to testify. In all the circumstances of the proceeding and after having regard to all relevant considerations, including the object of securing a fair trial of the appellant, the proper exercise of the discretion under s 25(1) required that defence counsel be permitted to pursue his proposed line of questioning.
His Honour should have ruled that defence counsel be permitted to put his proposed questions to SRB in cross‑examination. That is the only conclusion reasonably open in the circumstances to which I have referred and in the context of the State's case against the appellant on counts 5 and 6 and all relevant considerations, including the object of securing a fair trial of the appellant. Ultimately, it was a question for the jury as to what impact, if any, defence counsel's proposed line of questioning would have on the jury's assessment of the truthfulness, accuracy and reliability of SRB's evidence in relation to counts 5 and 6. The jury would have been well able to evaluate the significance of, and make any appropriate allowance for, SRB's age and personal circumstances when she engaged in the conduct concerning GJM.
The aspect of ground 2 which alleges that the trial judge, in exercising his discretion under s 25(1), arrived at a decision that was plainly unreasonable or unjust, has been made out.

The merits of ground 3 of the appeal

The appellant asserts in ground 3 that a miscarriage of justice occurred at the trial by virtue of the trial judge preventing defence counsel from cross‑examining SRB about her complaint to police as to alleged sexual abuse by GJM.
The expression 'a miscarriage of justice', in s 30(3)(c) of the Criminal Appeals Act, 'covers cases where, by reason of irregularity or otherwise, an accused has not received a trial according to law or has not received a fair trial': Filippou v The Queen [2015] HCA 29; (2015) 89 ALJR 776 [14] (French CJ, Bell, Keane & Nettle JJ).
By s 144(1) of the Criminal Procedure Act, relevantly, an accused is entitled to defend a charge and to cross‑examine any witness called by the prosecutor. However, by s 144(2), that entitlement is subject to the powers of the court in the Evidence Act to control the questioning of witnesses.
In my opinion, generally for the reasons I have given in the course of considering ground 2, his Honour's decision to prevent defence counsel from putting his proposed questions to SRB in cross‑examination was vitiated by material errors and occasioned a miscarriage of justice at the trial. As a result of his Honour's decision, the appellant did not receive a trial according to law.
Ground 3 has been made out.

Section 30(4) of the Criminal Appeals Act: the proviso

The State did not seek to rely upon the proviso in s 30(4) of the Criminal Appeals Act. Counsel for the State conceded that if the State's submissions as to the proper construction and application of s 25 of the Evidence Act were not accepted, then it could not be said that no substantial miscarriage of justice has occurred. The State's concession was properly made.
As French CJ, Bell, Keane and Nettle JJ noted in Filippou, the phrase 'substantial miscarriage of justice', in this context, means that 'the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him or her (Pollock v The Queen (2010) 242 CLR 233 at [70]; 84 ALJR 713) or that there was some other departure from a trial according to law that warrants that description (Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 at [22] ‑ [23]; 86 ALJR 459 per French CJ, Gummow, Hayne and Crennan JJ; see, eg, AK v Western Australia (2008) 232 CLR 438 at [57] ‑ [59]; 82 ALJR 534 per Gummow and Hayne JJ; at [109] ‑ [110] per Heydon J)' [15].

In the present case, the possibility cannot be excluded beyond reasonable doubt that the trial judge's decision denied the appellant a chance of acquittal on counts 5 and 6 which was fairly open to him.

Conclusion

I would allow the appeal. The judgments of conviction entered on counts 5 and 6 should be set aside. Counsel for the appellant did not submit that this court should enter judgments of acquittal. An order to that effect would not be appropriate. There should be a new trial.
MAZZA JA: All of the relevant background has been set out in the reasons of Buss JA.
The issue in this appeal is whether the learned trial judge erred in preventing the appellant's defence counsel from cross‑examining SRB as to a fabricated allegation of sexual abuse she made when she was 14 years 6 months of age in respect of a man other than the accused.
The sole purpose of the cross‑examination was to base an argument on behalf of the appellant that SRB was a person of bad character and thus, could not be trusted to tell the truth regarding the alleged offences and the nature of her relationship with the appellant. The evidence sought to be adduced by defence counsel was not adduced for any other purpose.
As Buss JA points out, at common law, cross‑examination for this purpose has always been permitted, although not without limits. A trial judge has the discretion to prevent or curtail cross‑examination of a witness directed only to establish bad character where, for example, the cross‑examination is baseless or has no legitimate purpose.
Section 25 of the Evidence Act 1906 (WA) applies to the cross‑examination of a witness (whether in a civil or criminal case) that relates to a matter not relevant to the proceedings except insofar as it reflects his or her credit by 'injuring [his or her] character'. In other words, it applies where a witness is being cross‑examined, not as to a factual matter in issue, but only as to that witness's alleged bad character. The proposed cross‑examination enlivened the operation of s 25 of the Evidence Act.
In the day‑to‑day work of the criminal courts in this State, s 25 of the Evidence Act is rarely mentioned or invoked. Despite the fact that s 25 has been in the Evidence Act since its commencement, there has

apparently been no case decided by this court (or its predecessor) as to its proper construction.

Buss JA has analysed the history, purpose and proper construction of s 25 in detail. I respectfully agree with all that his Honour has written as to its history and purpose. Subject to two observations, I agree with his construction of the section.
The first observation is that the words in s 25(1) '… it shall be the duty of the court to decide …' do not compel a judicial officer to intervene on his or her own motion every time a witness is cross‑examined only as to their bad character in order to decide whether the witness should be compelled to answer the question. Of course, a judicial officer may do so to prevent unfairness, but usually, bearing in mind the adversarial nature of civil and criminal proceedings, the matter shall arise for determination after objection by counsel or, as occurred in the present case, where counsel seeks a ruling before embarking upon the cross‑examination.
The second observation is that where, having regard to the mandatory considerations in s 25(2)(a), s 25(2)(b) and s 25(2)(c), a determination is made that the questions are proper or improper (as the case may be), the discretion should be exercised accordingly. For example, where questions are ruled to be proper (and subject to s 26 of the Evidence Act), the cross‑examination should be permitted; conversely, where questions are ruled to be improper, the witness should be informed that he or she is not obliged to answer them.
I now turn to the grounds of appeal. For the reasons given by Buss JA, ground 1 must fail. However, I have taken a different view to his Honour with respect to grounds 2 and 3. I would dismiss these grounds. My reasons for doing so are as follows.
I recognise at once that the credibility of SRB was crucial to whether the State could satisfy the jury that the sexual conduct alleged in each of counts 5 and 6 had occurred.
The task for the jury was to assess the credibility of SRB's testimony given by her in May 2015 when she was an adult aged 22 years.
Defence counsel sought to cross‑examine her by asking questions which conveyed clear imputations that, when she was 14 years 6 months of age, she had fabricated allegations that GJM had sexually abused her. These allegations were founded in fact. If necessary, defence counsel foreshadowed cross‑examining SRB to show that she:
(a)made allegations against GJM to the police in August 2007;
(b)gave two statements to the police to that effect;
(c)told her mother the allegations were false; and
(d)admitted to the Children's Court that they were false by pleading guilty to an offence of creating a false belief.
I have already described the forensic purpose of this cross‑examination, the rationale behind it being that SRB's conduct as a 14 1/2‑year‑old child shows that she is a person of bad character whose testimony as a 22‑year‑old adult cannot be relied upon. In my opinion, this logic is unsound. I accept, as I must, that SRB made fabricated allegations against GJM. However, she did so as a 14 1/2 year old child. As I said in APC v The State of Western Australia [2012] WASCA 159; (2012) 224 A Crim R 59 [99], albeit in a different context, a child, particularly one under the age of 16 years, cannot be expected to have developed the same sense of moral responsibility as an adult. Decisions and actions made as a child are ordinarily viewed, in a moral sense, differently from those made as an adult.
No circumstance has arisen in the lengthy intervening period between SRB making the fabricated allegations and her giving evidence which could base an imputation that her bad character when she was a 14 1/2‑year‑old (if that is what it was) has continued into her adult years.
I regard the circumstances of this case as being unusual. Ordinarily, a cross‑examination such as the one proposed in this case would have been permitted, but, bearing in mind:
(a)the age of SRB at the time she made the fabricated allegations against GJM;
(b)the lengthy period of time that has passed since those events; and
(c)the absence of any other event tending to prove that SRB was a person of bad character as an adult,
I have come to the view that the imputations in the questions sought to be asked by defence counsel would not have affected, or would have affected only to a slight degree, the opinion of the court as to the witness's credibility.

It is arguable that the circumstances of this case came within s 25(2)(b). This would depend upon whether the matters were considered to be 'remote in time'. It is unnecessary to decide this issue because, in any event, the discretion to compel (or not compel) a witness to answer questions of the type sought to be put by defence counsel is not confined to the considerations in s 25(2).
In my opinion, his Honour did not err in the exercise of his discretion in this case. This is not to say that his Honour's reasoning to the conclusion he reached was entirely correct. His Honour took into account some irrelevant considerations, being those identified by Buss JA in his reasons. However, the ruling his Honour made was ultimately correct.
In my opinion, grounds 2 and 3 have not been made out. As none of the grounds of appeal have been established, the appeal should be dismissed.
HALL J: I agree with Buss JA.
I have also had the benefit of reading the draft reasons of Mazza JA. Whilst I accept that the age of SRB at the time she made the earlier allegations in August 2007 is a relevant consideration I am unable, with respect, to accept that the questions sought to be asked by defence counsel would not have affected, or would have affected only to a slight degree, a judgment as to the witness's credibility. Other factors such as the similarity of the earlier allegation and the fact that it was persisted with and embellished in statements to the police are also relevant. This was not, in my view, a mere childish indiscretion. If any allowance for SRB's age was necessary the jury would have been capable of making it.