Hayward v The State of Western Australia
[2025] WASCA 35
•11 MARCH 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HAYWARD -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 35
CORAM: MAZZA JA
HALL JA
VANDONGEN JA
HEARD: 2 SEPTEMBER 2024
FURTHER SUBMISSIONS FILED 9 & 16 SEPTEMBER 2024
DELIVERED : 30 JANUARY 2025
PUBLISHED : 11 MARCH 2025
FILE NO/S: CACR 122 of 2023
BETWEEN: JAMES DORRIN HAYWARD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: LEMONIS J
File Number : IND 924 of 2022
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted after trial of two counts indecent dealing with a child under 13 years, and acquitted of two further counts - Whether miscarriage of justice was occasioned by the admission of a video recording of interview conducted with the complainant which was admitted as part of her evidence‑in‑chief pursuant to s 106HA and s 106HB of the Evidence Act1906 (WA) - Whether miscarriage of justice was occasioned by the manner in which prosecutor conducted the trial - Whether the jury's verdicts are unreasonable or cannot be supported having regard to the evidence - Whether verdict of guilty on count 2 is inconsistent with verdict of not guilty on count 4 - Whether a miscarriage of justice occurred due to an 'aggregate of errors' at appellant's trial
Evidence - Where primary judge admitted visual recording of interview with a child pursuant to s 106HB of the Evidence Act - Statutory construction of 'visual recording of an interview with a child' under s 106HA of the Evidence Act - Whether the meaning of 'visually recorded interview' requires a witness' face to be visible to the jury whilst giving evidence - Whether primary judge erred in the exercise of the discretion under s 106HB of the Evidence Act - Whether jury were able to make an adequate assessment of the credibility and reliability of the witness in circumstances where witness' face was not visible - Appeal allowed
Legislation:
Criminal Code (WA), s 320(4)
Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004 (WA), s 20
Evidence (Visual Recording of Interviews with Children and Persons with Mental Impairment) Regulations 2004 (WA), reg 5
Evidence Act 1906 (WA), s 106H, s 106HA, s 106HB, s 106HC
Interpretation Act 1984 (WA), s 3(1), s 56(1)
Result:
Leave to appeal granted on ground 1
Leave to appeal refused on grounds 2, 3 and 4
Appeal allowed
Convictions on counts 1 and 2 set aside
Retrial ordered
Category: A
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | K C Cook |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
AKG v The State of Western Australia [2024] WASCA 139
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
BUSB v The Queen [2011] NSWCCA 39; (2011) 80 NSWLR 170
Cavill v The State of Western Australia [2008] WASCA 108
Coomer v The State of Western Australia [2024] WASCA 133
Dayananda v The State of Western Australia [2021] WASCA 11
Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237
Elzahed v The State of New South Wales [2018] NSWCA 103; (2018) 97 NSWLR 898
Farnworth v The State of Western Australia [2024] WASCA 154
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
Goedecke v The State of Western Australia [2013] WASCA 25
HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978
Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506
Hughes v The State of Western Australia [2024] WASCA 160
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
MHS v The State of Western Australia [2024] WASCA 85
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Mohammadi v Bethune [2018] WASCA 98
Pearson v Connor [2024] WASCA 49
Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123
Police v Dunstall [2015] HCA 26; (2015) 256 CLR 403
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Lodhi [2006] NSWCCA 101; (2006) 65 NSWLR 573
SJX v The State of Western Australia [2010] WASCA 243
Smith v The State of Western Australia [2024] WASCA 52
Sturniolo v The State of Western Australia [2023] WASCA 147
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
The State of Western Australia v JDH [2023] WADC 37
Walsh v The State of Western Australia [2024] WASCA 78
Table of Contents
Mazza & Vandongen JJA
Overview of State's case at trial
Overview of defence case at trial
The charges and the jury's verdicts
Grounds of appeal
The evidence: State case
The complainant ('S')
Visually recorded interview
Pre‑recorded evidence
The complainant's sister ('B')
The complainant's mother ('D')
The complainant's father ('P')
Detective Senior Constable Shanyn Eileen Morrison
Video record of interview
The evidence: defence case
The appellant
Ground 1
The interview with S
Was the edited recording of the interview with S admissible?
Ground 2
Ground 3
Inconsistent verdicts
Unreasonable verdicts
Ground 4
Application in the appeal
Orders
Hall JA………………………………………………………………………………..105 ‑ 111
MAZZA & VANDONGEN JJA:
The appellant was convicted by a jury after a trial in the District Court of two counts of indecently dealing with 'S', the very young daughter of his close friends, contrary to s 320(4) of the Criminal Code (WA) (Code). He was subsequently sentenced to a total effective sentence of 2 years and 9 months' immediate imprisonment.
The appellant now appeals against conviction, relying on four grounds of appeal. In his first ground of appeal, the appellant contends that a miscarriage of justice was occasioned because an edited video recording of an interview that was conducted with S was admitted at his trial as part of her evidence‑in‑chief pursuant to s 106HA and s 106HB of the Evidence Act 1906 (WA). In that regard, the appellant complains that the interview should not have been admitted at his trial because it was conducted in circumstances in which S could not be seen throughout almost the whole interview.
By ground 2, the appellant contends that a miscarriage of justice occurred because of the way in which the trial was conducted by the State prosecutor. By ground 3, the appellant says that the jury's verdicts should be set aside because, having regard to the evidence, those verdicts were unreasonable or cannot be supported. By ground 4, the appellant contends that a miscarriage of justice was occasioned by an 'aggregate of errors'.
In our view, the visually recorded interview conducted with S should not have been admitted at the appellant's trial as part of S's evidence‑in‑chief. On that basis, we would allow ground 1, set aside the judgments of conviction and order that the appellant be retried. However, we would dismiss grounds 2, 3 and 4.
Overview of State's case at trial
The appellant and his wife were close friends with S's family. At one stage, they all lived in the same country town in Western Australia. When the appellant and his wife moved away from that town, they remained friends.
On occasions after he had moved away, the appellant would stay with S's family at their home. Sometimes, the appellant would stay with S's family on his own, and sometimes he would stay there with his wife. On other occasions, the children in S's family would stay with the appellant and his wife at their home, so that they could attend sporting activities.
S formed a close bond with the appellant from a young age, and he would regularly put her to bed at night, both when S and her family stayed at the appellant's house and also while he stayed at their home. When the appellant was interviewed by police, he told them that he had fallen asleep on S's bed on at least one occasion when he was putting her to bed.
The appellant would also communicate with S via an application called Messenger Kids, and he would play online video games with her, including a game called Roblox.
On 22 November 2021, S's sister, B, found her watching animated pornography on an iPad. S was only 8 years old at the time. S then told B that the appellant had showed her the pornography, and had been sexually offending against her.
After B informed her parents of what S had told her, S took part in a visually recorded interview on 25 November 2021. Approximately two years later, S gave evidence at trial that was pre‑recorded in accordance with orders made under s 106K of the Evidence Act.
The State's case at trial was that, on three occasions, the appellant indecently dealt with S by taking one of her hands and putting it under his pants and onto his penis. The State alleged that on two of those occasions, the appellant was with S at her home (counts 1 and 3 on the indictment), and that the third occasion happened at the appellant's home (count 2 on the indictment).
The State also alleged, in count 4 on the indictment, that the appellant indecently dealt with S by showing her pornographic material. Initially, the State's case was that this occurred on a different occasion from any of the occasions on which the appellant had forced S to touch his penis. However, based on a late re‑assessment of S's pre‑recorded evidence, by the end of the State's case, it was alleged that this incident occurred on the same occasion that the appellant forced S to touch his penis while they were at the appellant's home.
In the evening of 24 November 2021, the appellant wrote and sent to himself an email addressed to his wife. The State alleged that this was, in effect, a draft suicide note. In that email, the appellant said that he 'expect[ed] in the coming days to be accused of child sex assault in relation to [S]'.
Approximately one week later, just after 3.00 am on 1 December 2021, the appellant sent that email to his wife. However, immediately after writing that he expected to be accused of 'child sex assault in relation to [S]', this version of the email included the words, 'Which I have done' followed by ☹ (sad face emoji).
The appellant was arrested later on 1 December 2021. He then took part in an electronically recorded interview with police. During that interview, the appellant denied the allegations that had, by then, been made by S. The appellant also explained that he had, in effect, made a false admission in the email he sent to his wife earlier that day so that she would not blame S for his death, and so that she could maintain a relationship with S and her family after he was gone.
Overview of defence case at trial
The defence case was that the allegations made by S were untrue.
As senior counsel who appeared for the appellant at his trial explained to the jury in his opening address, the defence case was that when S was caught by her sister looking at pornography on her iPad, she realised she was in trouble and that she would lose her iPad. It was argued that because S's iPad was very important to her and she did not want to lose it, S needed a 'scapegoat'. The defence contended that the scapegoat S chose was the appellant.
The defence accepted that the appellant had been a close friend of S's family, and that he and S had a very close relationship. It was suggested that the appellant was 'like an uncle' or 'a godfather' to S.
The defence also accepted that the appellant would, on occasions, tuck S into bed at night, and read to her. The defence agreed that the appellant was also familiar with the video games S enjoyed playing, and that the appellant and his wife gave S vouchers and credits for these video games for her birthday. The defence asserted that S was not singled out in this regard, as the appellant and his wife would give birthday presents to all of S's siblings.
The defence case was that the appellant did not commit any sexual offence against S and that he never showed her how to access pornography on the internet. In that regard, senior counsel argued that S's allegations were uncorroborated; that S did not spontaneously complain about the appellant; and that S's account was dishonest or 'at best vague, patchy, uncertain, inconclusive, and inconsistent'.[1]
[1] ts 206.
In relation to the email the appellant sent to himself, and the modified version of that email he later sent to his wife, the defence case was that the appellant was under enormous financial and personal pressure at the time because his business had just gone into liquidation and a large amount of money was owing to various creditors. As senior counsel for the appellant explained to the jury in his opening address, the defence case was that the appellant was in complete shock after hearing of S's allegations and that he had decided to end his own life. However, the appellant argued that those emails were not an admission of guilt but that they had been written in a misguided and foolish attempt to shield both his family, and S's family, from recriminations.
The charges and the jury's verdicts
The appellant was charged with four counts of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Code. The first three counts on the indictment each alleged that the appellant indecently dealt with S by putting her hand on his penis. The final count alleged that the appellant indecently dealt with S by showing her pornographic material. It was ultimately alleged that the offence the subject of the final count was committed at or about the same time as the offence the subject of count 2.
After deliberating for some time, the jury returned unanimous verdicts of guilty in relation to counts 1 and 2, and unanimous verdicts of not guilty in relation to counts 3 and 4.
Grounds of appeal
The appellant represented himself in his appeal.
The appellant relies on four grounds of appeal, which are in the following terms:
1.There was a miscarriage of justice occasioned by His Honour Ritter QC DCJ, erred in Law and fact in allowing the Child Witness Interview (CWI) of the Complainant to be played during the course of the trial.
Issue of Law and Fact
2.There was a miscarriage of justice occasioned by the attitude and approach of the Prosecutor in that he continually denigrated the Accused and let his own personal beliefs affect the evidence adduced and presented.
Issue of Fact
3.The verdict of the Jury was unreasonable and could not be supported, where a Jury acting reasonably should have had sufficient doubt to acquit the Accused.
Issue of Law
4.There was a miscarriage of justice occasioned by an Aggregate of Errors.
Issue of Law
Having regard to ground 3, it is necessary to summarise the evidence that was adduced at the appellant's trial.
The evidence: State case
The complainant ('S')
The evidence adduced from S took the form of a visually recorded interview that was conducted on 25 November 2021, when S was 8 years old. It also took the form of an electronic pre‑recording of her evidence that took place on 31 July 2023, when S was almost 10 years old.
Visually recorded interview
The way that the visually recorded interview was conducted with S is the subject of ground 1. Accordingly, we will say more about that topic later in these reasons when disposing of that ground.
The order in which the counts appear on the indictment does not correspond with the order in which S spoke about the events the subject of those counts in her interview.
S began by telling the interviewer the following:[2]
A. Mm, sure. Um, [the appellant] unbuttoned his pant - uh, unbuttoned his pants and put my hand under it and - yeah, yeah.
Q. So [the appellant] unbuttoned his pants and put his hand under your knickers - under his knickers?
A. No, my hand.
Q. Your hand? Sorry. That's a good job you're telling me about things I get wrong. So he unbuttoned his pants and put your hand under his knickers.
A. Yeah.
Q. And when did this happen?
A. A year ago or something.
[2] Video record of interview, ts 8.
S said that this happened more than once, and that it had happened 'like five or something' times. She said that it happened downstairs at her house, in her games room, and that she talked with the appellant about it being a secret.
Although S could not remember the time of day when it happened, she said she was wearing daytime clothes and that her whole family was at home, upstairs, when it happened.
S was reluctant to tell the interviewer what part of the appellant's body she touched with her hand while it was under the appellant's 'knickers'. When she was asked what that part of the appellant's body was used for, S eventually agreed that it does 'pee'. She also spelled out the letters of the word 'dick' on a piece of paper.
The evidence given by S may be summarised by referring to the following excerpt from the interview:[3]
Q. Fair enough. Okay. So [the appellant] unbuttoned his pants and took your hand and put it under his knickers - - -
A. Yeah.
Q. - - - onto his dick.
A. Yeah.
[3] Video record of interview, ts 12.
S said that while this was happening, the appellant talked to her, but she could not remember what he said.
This incident formed the basis of count 3 on the indictment, which alleged that on an unknown date between 1 January 2019 and 22 November 2021, the appellant had indecently dealt with S, a child under the age of 13 years, contrary to s 320(4) of the Code.
Next, S was asked about 'the first time this happened'. S said that she did not 'even know when [she] was touching it first'. However, she said that it happened at the home where the appellant and his wife lived, in a spare bedroom 'with all the weights and stuff'.
When she was asked to tell the interviewer everything that happened on this occasion, S said that it was over two years ago. She then said that she remembered being at the appellant's house, in the spare bedroom, and that the appellant was 'like chit chat'. Later in the interview, S said it happened two times at the appellant's house in the spare bedroom with the weights. When she was asked to tell the interviewer everything that happened on the other occasion at the appellant's house, S said all she knew was that it was in the country town in which the appellant lived. She also said that '[h]e did the exact same thing every time'.
This event was the subject of count 2 on the indictment. It was alleged that on an unknown date between 1 January 2019 and 22 November 2021, the appellant committed a further offence contrary to s 320(4) of the Code.
S then talked about an event that occurred one night when both she and the appellant were lying on her bed together in her bedroom. She said that this happened although she was too old to have people lying next to her.
She said that one of her sisters was having a shower at the time and that everyone else was out in the kitchen. S said that while they were lying on her bed together, the appellant unbuttoned his pants and once again put her hand inside his 'knickers'.
This incident formed the basis of count 1 on the indictment. As was the case in relation to counts 2 and 3, the State alleged that on another unknown date between 1 January 2019 and 22 November 2021, the appellant committed a further offence contrary to s 320(4) of the Code.
When the interviewer then informed S that one of her sisters, 'B', had told the interviewer that S had been watching something 30 days ago, S expressed surprise at what her sister had done. S said that her sister said that she would not tell anyone. The interview was then suspended because the memory card for the camera ran out of space.
When the interview resumed, S was asked about what she had watched on her iPad. She said that she had watched scary videos about zombies on YouTube. However, when the interviewer pressed S for more details about what she had watched, S said that she did not want to say what it was. Eventually, S told the interviewer that she had been watching a video of 'random people'. The interviewer questioned S on what those random people were doing and S spelled out the letters of the word 'sex'.
S also told the interviewer that it was the appellant who showed her how to find that video. When asked what the appellant showed her to do, S said, 'Type it up'. She said that she typed up videos of people having sex into a search engine on her iPad, and that the appellant told her to do this 'like three years ago'.
This incident was the subject of count 4 on the indictment.
Count 4 alleged that the appellant committed an offence contrary to s 320(4) of the Code 'by showing [S] pornographic material'. At the trial, the State prosecutor accepted that the State was required to prove that the appellant showed pornographic material to S, and that it was not enough to prove that he had merely shown her how to search for that material.[4]
[4] ts 390.
We will shortly summarise S's pre‑recorded evidence. However, it is convenient to note at this point that, at the close of the State's case, the State amended the indictment to allege that the incident the subject of count 4 occurred at the same time and at the same place as the incident alleged in count 2.
S said in her interview that she talked to the appellant by text messages, in person, and via Messenger Kids. However, she also said that she did not speak to the appellant very often anymore. S said that the last time she spoke to the appellant was 'last term'. S said that they talked about 'random stuff', and she made specific mention of the video game, Roblox.
When S was asked how she felt about the appellant, she said that she did not really know yet. She appeared to accept that she had previously told her sister that she loved the appellant, but she also said that she had recently taken that back because the appellant always asked her what game she was playing and this made her angry.
S told the interviewer that she had previously asked the appellant for things, like the video game, Roblox. She said that the appellant had given her $50 for Roblox for her birthday, but nothing else.
Towards the end of the interview, S denied ever sending videos or photographs of herself to the appellant.[5] She also denied that the appellant had ever touched her.
[5] S appeared to describe an occasion on which she may have sent the appellant a photo of herself; however, based on the transcript, this is unclear.
S said that the first person she told about the fact the appellant made her touch him was her sister, B. S said that she told B 'on Monday'. The interview took place on a Thursday.
Pre‑recorded evidence
S's evidence was pre‑recorded at a special hearing conducted in accordance with orders made under s 106K of the Evidence Act. That hearing took place on 31 July 2023.
The judge who presided over the special hearing was satisfied that S was competent to give evidence after making an affirmation, for the purposes of s 106B(1) of the Evidence Act. After S was affirmed, she gave further evidence‑in‑chief, and she was then cross‑examined.
In her further evidence‑in‑chief, S confirmed that she had taken part in an interview. She also confirmed that she spent some of the interview under the table in the interview room because she was 'a bit nervous', although when she was asked what she was nervous about, she said she did not know. When further prompted by the prosecutor, S agreed that her nervousness related to the questions she was asked during the interview.
S confirmed that the things she had said in the interview were the truth.
S was then shown various photographs of her home and its surrounds. S gave evidence that one of the photographs that was taken in her bedroom showed the bed that the appellant had come and laid down on with her. She also gave evidence about a spare room and agreed that the appellant and his wife sometimes slept there.
The prosecutor asked S to clarify what she meant when she said in the interview that she was 'touching it'. She replied, 'His dick'. She said the appellant put her hand into 'his knickers', and agreed that this happened in the spare bedroom 'with all the weights'.
The prosecutor also asked S to clarify what she had said in her interview about video games. He also asked her to clarify some other things that she had spoken about in that interview, with variable degrees of success.
Senior counsel for the appellant then cross‑examined S.
In that cross‑examination, S confirmed that she remembered being interviewed when she was 8 years old, and she recalled the name of the interviewer. When asked whether she told the interviewer the truth, S said that she had.
S agreed that she had spoken to her sister, B, some days before the interview. She also agreed that she spoke to her mother in the time between speaking to B and the interview. She gave evidence that she told her mother what had happened, but she could not recall whether she spoke to her sister again. She also could not remember speaking to her father about what had happened to her.
When she was asked how many times the appellant put her hand on his penis, S said that she did not remember, but that she was about 7 years old when it happened. However, she also agreed that this was a guess and said that she did not really know how old she was at the time. She said that she was pretty sure that it happened more than once.
S confirmed that she could not remember the first time it happened, although she was sure that it happened. She said that it was in the spare room at the appellant's home. She then said that this was the first time that it happened. She agreed that this room was what was sometimes called 'the weights room'.
Senior counsel for the appellant showed S a photograph of the weights room and S confirmed that she would sleep in that room with her siblings when they stayed overnight there. She also identified the beds in which she and her sisters would sleep. There was a bunk bed as well as a 'pull-out' bed underneath the bunk bed.
S agreed that the appellant and his wife were close friends of her family. She accepted that they were like her uncle and aunty, and that they were very nice to her. She agreed that this never changed right up until the time she was interviewed.
S also agreed that her family had been on holidays with the appellant and his wife. She said that nothing bad happened to her during those holidays.
Senior counsel then returned to the topic of the first time 'anything happened' and asked S a series of questions. S again confirmed that it occurred in the weights room at the appellant's house. She said that she was pretty sure she was 6 years old, and that she was sure that it happened.
S said that when it happened, her other sister, T, was having a shower and 'the rest' were out in the kitchen. It was night, although she was not sure what time it was. She did, however, remember that she was in her pyjamas and that the appellant was wearing jeans, which had one button and a zipper.
When S was asked how this event started, and what she was doing, she said that she did not remember. She could not say whether the appellant was reading to her or whether he was playing a game with her. She did remember that the appellant was not lying down with her on any of the beds in the weights room.
S was then asked about the second time this happened, but she said that she could not remember. She did say that she was 'pretty sure there was a second time' and that it might have been at her house when she was about 6 years old, halfway through the year. S also said that she was pretty sure that this occasion occurred in her own room, which she shared with her sister, T. She said that she was pretty sure that T was having a shower or that she was in the kitchen at the relevant time.
When S was asked what she was wearing she said that she was in her pyjamas, although she could not remember what time of day it was. She agreed that she remembered what the appellant did to her and that it was the '[s]ame as last time'.[6] S agreed with propositions that were put to her by senior counsel, that the appellant unbuttoned his pants and put her hand into his 'knickers'. S said that the appellant was wearing jeans again, with one button at the top of the jeans and a zip.
[6] ts 126.
S then gave the following evidence:[7]
[7] ts 126 - 127.
Do you know what an erection is?---No.
When a man's penis gets hard. You don't know what that is?---No.
You haven't seen anything like that on - on of the websites you've been to?---No.
You've never heard that word before, 'erection'?---No.
Not before today?---Yep.
Nothing - nothing changed about his - if I use the word, 'dick', you'll know what I'm talking about, won't you - - -?---Yes.
- - - when you were touching it?---No.
It didn't change from soft to hard or anything like that?---No.
You're sure about that?---Yes.
On neither of these times that you told us about in the weights room or in your bedroom?---I don't understand.
All right. Now, both - they were both very much the same, you told us?---Yes.
What happened?---Yes.
On the first time, did anything about his dick change?---No.
It didn't go from being soft to hard?---No, it did not do that.
No. And what about the time in your bedroom after that? It didn't change on that occasion?---Yeah, didn't change.
Okay. Now, how long - on the first time, that's in the weights room at his place, how long did he leave your hand there?---I don't know.
Well, was it one second?---I don't know.
An hour?---I don't know - not really.
You - you can't say?---I don't know.
And you can't tell us about - about the time in your bedroom either, can you?---No, I don't know.
When S was then asked whether there was any other occasion that the appellant touched her, she said, 'No'. However, when senior counsel went to confirm the answer S had given, she said that she did not really know how many times, but that she was pretty sure it happened on more than two occasions. Although she said that she thought it had happened more than twice, she could not remember any other time that it had happened.
S then said that she was pretty sure that 'it' happened at the appellant's house about five times, although she immediately changed her evidence to being pretty sure that it had happened two or three times at the appellant's house. She also said that it happened at her house two or three times, and agreed that it was always the same. Later in her evidence, S agreed that, although it might have happened five or six times, she could only remember two of them for sure. One of the incidents she could remember happened at the appellant's home, and one happened at her own home.
When she was asked about the last time it happened, S said that she was pretty sure she was about 7 years old, and that nothing else has happened to her since she was that age.
Later in her evidence, when she was asked to confirm how old she said she was the first time something happened, S again said that she thought she was about 6 years old, and repeated that she was pretty sure she was 7 years old the last time it happened.
S gave evidence that the appellant told her that what had happened should be kept a secret, and that he said this on the first occasion something happened.
S agreed that she had a games room at her home, and that nobody sleeps in that room. She said that it was downstairs and that she goes to that room to play pool or ping pong, and to do exercise. When she was asked whether it had ever happened in the games room, S said that she did not remember and agreed that she could not really say for sure. S agreed with senior counsel that the only times she could remember were one occasion in the weights room at the appellant's house and another occasion in her bedroom at her house.
S also agreed that the appellant had never touched her on her private parts, and that nothing had ever happened outside either of those two locations, including when they were on holidays.
Senior counsel then asked S a series of questions about her iPad.
When it was initially put to S that she had an iPad at the time she participated in the interview, she gave evidence that she was pretty sure that it had been sent to Perth right before the interview because the screen had cracked.
S agreed that her sister, B, found her looking at images of people having sex on her iPad. She agreed that this occurred on 22 November 2021. When she was asked how she had located those things, S gave evidence that the appellant told her. When senior counsel challenged S by suggesting that her evidence was untruthful, and that this was something she had made up so that she would not lose her iPad, she disagreed and said that it was true. S also rejected a suggestion that she loved her iPad, and gave evidence that she loved her pets more than her iPad.
S accepted that she had spent a lot of time on her iPad when she was not at school. However, when she was asked whether she knew that it was wrong to look at websites of people having sex, S said, 'Not back then, no, I didn't know'.[8]
[8] ts 133.
S said that she had never heard the word 'pornography' or 'porn', even at the time she was giving evidence, and that she did not have a word to describe what she had seen on websites showing people having sex.
When she was asked about whether anyone else used her iPad, S said that she was the only person who used it. S agreed that the iPad had access to the internet and that she knew how to search for things herself using the search engine, Safari. Significantly, S agreed with senior counsel when he suggested to her that the appellant had never shown her how to search on Safari and that he did not need to do that because she already knew how to do that herself.
Senior counsel then asked S several questions about her usage of the iPad, and about her access to the internet. S said that she could not remember what website she was looking at when her sister found her looking at images of people having sex. Counsel put several websites which appeared on a search history report taken from the iPad to S and asked her if she had ever heard of them. S denied knowledge of any of them. She also said that she could not remember accessing any websites with images of people having sex with each other and said that she could not remember what she was watching when her sister found her.
Senior counsel then asked S several questions about some information that had been obtained from the history of the iPad, which indicated that it had been used to search the internet for pornographic material. S either denied making the searches, when they were specifically put to her, or she said that she could not remember. However, she did say that the appellant showed her how to 'do this'.[9]
[9] ts 136.
S said that she did not know where the appellant had shown her how to 'do this', and that it may have been in the weights room at his house. S displayed a general lack of memory about what she said the appellant showed her, or when he showed her.
S gave the following evidence:[10]
So he showed you how to do it, to find people having sex. Is that what you say he typed in?---Yeah.
People having sex?---Yeah.
And then it came up?---Yeah.
And did you watch it with him?---I don't remember.
Well, you didn't, did you? He never - he never ever watched any of that sort of stuff with you?---(No audible answer).
Did he?---I don't really know.
Well, if he did, you'd know, wouldn't you?---It was a while ago so I still don't really know.
[10] ts 138.
S then agreed that she had said in her interview that the appellant had showed her how to search for this sort of material about three years before the interview. However, she gave evidence under cross‑examination that it might have been two years before the interview. When challenged about whether she was telling the truth, S said that it was true, and that the appellant did tell her how to type things up and access what senior counsel referred to as 'sexy websites' on the internet.
Senior counsel asked S whether she remembered going to 140 websites. S said that she did not know. She said that probably 40 of them were 'like YouTube'.
S agreed that it was 'most likely' that she communicated with the appellant on the mobile telephone. Curiously, she also said that she did not own a mobile telephone in those days but said that she could text him on the iPad or use Messenger Kids.
S also agreed that the appellant and his wife had given her a Roblox voucher, and that her mother and father were aware of that.
S then confirmed again that the time the appellant showed her how to access people having sex on the iPad was the first time he put her hand into his pants and made her touch his penis. However, she then said:[11]
So you don't - you're unable to say whether after the time he showed you how to do it you ever did it again on your own?---No, not that I know of.
But you did, didn't you? You did do it again sometimes?---Yeah, I'm pretty - well - - -
That is, went to - on your own went to search sites of people having sex?---No, he always did it.
He always did it?---Yeah, I'm pretty sure.
Well, I thought you said - tell me if I'm wrong - that you could only remember him doing it once?---I don't know how many times, though.
[11] ts 141.
Senior counsel again asked S what was on the website when she went there, and S said she would need to think about that. She said she did not know whether the people on the website had their clothes on or off. She also said that although she knew what a penis was, she could not remember whether she had seen one on a website. She also appeared to say that she could not remember seeing a woman on the website who was not wearing clothes.
When S was asked whether she could remember what she was watching when B found her, she said that she could not because it was quite a while ago.
Senior counsel then asked S a series of questions about getting into trouble at school because she had kissed a boy and because she had lifted her dress up in front of a friend when she was not wearing any underwear. S said, in effect, that she had no memories of those events and denied ever being in trouble for that type of behaviour.
It was also suggested to S that she had made up a story about the appellant showing her how to use her iPad to look things up on the internet so that she did not lose her iPad. However, S denied that suggestion and said that she had lost her iPad many times, but for different reasons. She said that she had never been upset because her iPad had been removed from her.
S then gave the following evidence:[12]
[12] ts 147 - 148.
Do you know that [B] recorded your conversation with her that day when she found you looking at those things on your iPad?---No.
You didn't know that she was recording you?---I didn't know.
You didn't say to her, 'I don't want you to record this'?---Yes, I did say, 'Don't you - I don't want you to record this'.
Why would you have said that?---Because - I don't know.
You wouldn't say that unless you knew she - - -?---It's because I thought I would get in trouble by mum.
For looking at sexy things on your iPad?---Yeah.
Because that's what you were looking at, weren't you?---I don't remember.
And if anyone had looked at your search history, they'd have found out that you'd done that?---Yes.
Cos you had done that, hadn't you?---No, I hadn't done that.
And you were really scared that mum would take your iPad off you?---No, I wouldn't be scared.
You needed an excuse, didn't you?---No, I didn't need an excuse.
You knew that you were doing something that was very wrong?---I didn't know that it was wrong at the time. I know that's wrong now.
And you'd been looking at those sorts of sites right through October and November?---Yes.
I'm talking about sites where people had - were having sex?---[The appellant] showed me that, as I have said many times.
You said that he showed you years ago?---Yeah. He had showed me years ago. I just hadn't gone on it very often.
And you kept doing it, didn't you?---Yeah. Cos I didn't know it was bad at the time, as I said.
So you did keep doing it?---Mm hmm.
On your own?---Not on my own.
Well, it wasn't with [the appellant]?---Some - - -
Sorry?---Well, it was only sometimes I did it on my own.
You did it on your own sometimes?---Yeah. Maybe like two times, I'm pretty sure.
On your own?---Yeah.
Why did you do that?---Cos as I said, I didn't know it was wrong at the time.
You knew it was wrong, didn't you?---No, not at the time.
And your - if your iPad history shows us that you did it through October and November 2021, that was you doing it yourself, wasn't it?‑--No, that was [the appellant] showing me.
[The appellant] showed you every time?---Not every time because I used my - cos I didn't do it on my own most of the time. I don't really know and you're - - -
…
See, I want to ask you this, [S]. [The appellant] never showed you how to access those sorts of sites on your iPad, did he?---He did. And I've said that multiple times.
But it's not true, is it?---He only showed me about 40 (?) times.
After S then had a short break in giving evidence, her cross‑examination concluded in the following way:[13]
[13] ts 150 - 151.
When you spoke to [the interviewer] you told her that when [the appellant] showed you how to access people having sex on Safari it was three years ago, that is, three years before you spoke to [the interviewer]. Was that true?---I don't really remember, I'm pretty sure. It might have been two or three.
But you told [B], didn't you, that you started watching it about 30 days ago?---He showed me about two to three years ago but I only started watching it about 30.
30 days before?---Yeah.
That's on your own without him?---Yes.
He never actually sat down and watched any of this with you, did he?---I don't think so. He only showed me the website.
But he never watched it with you?---Never.
Never. And [the interviewer] asked you what other things he'd showed you or told you to do and you said:
Nothing else.
?---Yes, nothing else.
And that was true, wasn't it?---Yes, that's true.
So you say he only once showed you how to access these sites?---Yes.
Never ever did anything after that?---Nope, never.
And never ever watched them with you?---Yes.
And that's all true?---Yes, that is now true but that is all true but I (indistinct) now, now there's four(?).
[S], he never ever showed you anything, did he? He never showed you how to - - -?---He did.
- - - watch pornography - - -?---He showed me.
- - - at all?---He did. He showed me the website but since I didn't know it was wrong at the time I watched it on myself - by myself cos I didn't know it was wrong.
And that was through October/November that year too?---Yeah.
Did it all yourself?---Yes.
Accessed those sites yourself?---Yes.
Which were people having sex?---Yes.
He didn't - if you'll accept one more, you tell me if it's wrong or right, he never ever took your hand and put it on his private parts, did he?---You are wrong.
In re-examination, S was asked questions about whether the appellant was present when she looked at a video on the iPad. S said that they were in the weights room at the appellant's house when the appellant showed her 'how it was spelt in the website'.[14] She said she did not remember what the appellant told her to search but remembered that it included the word 'sex'.
[14] ts 151.
She also said that the appellant went onto Safari on her iPad and 'searched it up'.[15] She said that she saw a video and that she was 'pretty sure he pressed on the video', and then he left. She said that she watched it while sitting on her bed while the appellant was out in the kitchen.
[15] ts 152.
S said that the video showed people having sex. She gave evidence that she did see the people in the video but she did not really know whether they had clothes on. She also said that the video was only about one minute in duration, although she also appeared to say that it could have been 30 minutes long, and that she had a very bad concept of time.
Later in her re-examination, S said that the appellant showed her the video 'right after' he put her hand on his penis. She said that it was at night-time and that the appellant had gone out to the kitchen to sit and talk to her parents, before he returned to her bedroom and showed her the video.
S was also asked questions about how many times the appellant put her hand onto his penis under his underwear. S said that she was trying to remember but that she was pretty sure that she had said in the interview that it was about five times. She said it was all the same, and that she cannot really remember.
The prosecutor who appeared at the pre‑recording asked S about whether anything happened in the games room at her house. S said:[16]
So did anything happen in the games room?---I'm trying to remember but I'm pretty sure in the interview I said about once, yeah, I think.
Is that - is that right? Was it - did something happen once in the games room?---I'm pretty sure I said at the interview and I - I'm pretty sure it did happen in the games room.
[16] ts 155.
Finally, S confirmed that the appellant had told her not to tell anybody else about what he was doing to her when he unbuttoned his pants and put her hand into his 'knickers'. S said that the appellant said this to her the first time he did that to her.
The complainant's sister ('B')
The complainant's older sister, B, gave evidence at the appellant's trial.
B explained that S was the youngest of four children. She also gave evidence that the appellant and his wife were long-standing friends of her family.
B gave evidence that she had a conversation with S on the afternoon of 23 November 2021[17] after she walked into the loungeroom at their home and found S sitting behind a couch, using an iPad. B explained that when she approached, S hid the screen of her iPad, which made B worried about what she was doing. B then told S to unlock her iPad and show her what she was doing.
[17] B agreed with the prosecutor that the date of the conversation was 23 November 2021, however, that conversation appears to have actually occurred on 22 November 2021.
After initially refusing to show her sister what she had been doing on the iPad, S handed the iPad to B and went and hid in a bathroom. When B looked at what was on the iPad she saw some images of animated pornography.
B then went to speak to S and asked her who had shown this to her. B asked whether it was a particular boy from school. S said no, and that it was the appellant who had shown her. B said that when she asked S if she was sure that it was not the boy from school, S confirmed that it was the appellant.
B asked S to come out of the bathroom and talk with her in the loungeroom. B gave evidence that their parents were out at a birthday party at the time. B also gave evidence that when she spoke to S in the loungeroom, S told her that she did not want to get anyone into trouble, and that the appellant had told her not to tell anyone. B also gave evidence that S told her that when she was alone with the appellant, he would unzip his pants and put her hand in his jocks.[18]
[18] ts 236.
B said that she told her parents what S had told her the next day.
B gave evidence that she did not know the PIN code to access S's iPad.
When B was asked about her relationship with the appellant and his family, B gave evidence that they would sometimes stay at her family's home, and she would sometimes stay at the appellant's home when playing basketball away from home. She also confirmed that she would stay in the 'weights room' in the appellant's house, which she identified in some photographs. B explained that she and her sisters, including S, would stay overnight in that room.
In cross‑examination, B agreed she had previously participated in an interview. She also agreed that in that interview she said, in effect, that she was able to access S's iPad using a four digit PIN code which her entire family knew of. She also agreed that the iPad that S would use was not exclusively hers, and that other people sometimes used it. However, B denied ever using S's iPad as she had her own.
B agreed that S was very attached to her iPad, and that when B found S looking at the animated pornography on the iPad, B told S that she would tell their mother if S did not tell her herself. S said that she was very scared that she would get into trouble and have it taken off her.
B was asked about what she saw on the iPad. B said that she saw animated characters having sex with each other. She said that the characters were male and female, they were naked, and she could see their genitals. She also said that she could see that the male character had an erect penis.
B was then asked about the search history on the iPad. She confirmed that she looked at the history, and saw a lot of searches about pornography. She showed S how to erase her search history.
B said that she then decided to record her conversation with S. Senior counsel for the appellant put to B that she had asked S to tell her whose house she was in when the appellant told her how to access pornography. B ultimately accepted that S told her that it happened 'sort of' at the appellant's house. B also agreed that when she asked S whether the appellant told her that he wanted it kept a secret, S said, 'Yes'. B confirmed that the fact that the appellant had said it was a secret was not something that S volunteered, but rather that it was something S said in response to a question from B.
Senior counsel then put a series of questions to B that were plainly based on a transcript of the recording B had made of her conversation with S. In one of the passages that was put to B, it was suggested that S told her that the appellant 'unbuttons his pants and puts his hands under - [her] hand under his knickers'.[19] The point counsel appeared to be attempting to make in his cross‑examination of B was that S told her that the appellant 'unbuttoned' his pants, as opposed to 'unzipping' them.
[19] ts 247.
B also agreed that when she asked S when this occurred (putting her hand under the appellant's 'knickers'), S told her that it was 'about one year ago'. In relation to the pornography, B agreed that S told her that she only started watching it about 30 days before.
B then agreed that on several occasions during this conversation with S that she recorded, S expressed concern that her iPad would be taken away from her. B also said that S did not want the appellant to get into trouble.
B agreed that she had known the appellant since she was a young child, and that he was like an uncle to her and her siblings. She accepted that the appellant had always been good to her, and she gave evidence that described the close relationship he had with her family.
B was asked about occasions on which the appellant was at her home and he would tuck S into bed at night. B agreed that she was aware that the appellant did this but had not seen it occur herself. She also agreed that she had seen the appellant in S's room at night, but that he would never be in there very long. She said that she was not able to say whether there was ever a time when the appellant was alone with S in her bedroom.
Senior counsel then asked B about the weights room at the appellant's home.
B agreed that the weights room changed from time-to-time, and that when she first started to go to the appellant's home it was not a weights room. She said when she first started to stay at the appellant's home, she and her siblings would stay in a different room.
When senior counsel suggested that there was never an occasion that B saw the appellant and S on their own together, B said that they used to 'go upstairs by themselves'.[20] B said that the upstairs area of the house included the appellant's bedroom, a bathroom, another room, and a lounge area.
[20] ts 254.
In relation to her own home, B agreed that no one slept in the games room and that, other than playing pool or table tennis, there was no real reason for anyone to be in that room. B confirmed that she was not aware of any time the appellant and S were alone in the games room.
B was asked about S's use of the iPad. She accepted that S would spend a lot of time on the iPad, and that she did not have a lot of supervision from her parents. B could not recall whether S's iPad was subject to any parental lock. B agreed that she thought that S was 'almost obsessed with the iPad'.[21]
[21] ts 256.
B also agreed that S had previously been in trouble for kissing a boy at school.
At the end of her cross‑examination, B agreed that the appellant had never done, said or sent anything inappropriate to her, and that she had never noticed the appellant acting inappropriately towards S.
In re-examination, B said that although S had previously had her iPad taken away from her, she had always got it back, and that she would only ever lose it for an hour or two at most.
B also said that the appellant never put her (B) to bed, never laid down on her bed and read her a story, never got under the covers with her and she never went anywhere on her own with the appellant in either his house or her own.
Finally, B said that S had been alone with the appellant in her house.
The State also adduced evidence from S's parents.
The complainant's mother ('D')
D gave evidence that she had known the appellant's wife for many years. She met the appellant later, after he and his wife began a relationship.
D explained that after the appellant and his wife moved away from the country town in which they all lived, her children would stay with the appellant at his home when they played sport nearby. The appellant would also stay overnight with her family when he was travelling in the South West of Western Australia.
D gave evidence about the layout of the appellant's home. She explained that there was a weights room, but that it moved around. She said that it had been located in an upstairs lounge area and an upstairs bedroom at some stage, before ending up in a downstairs games room. D was shown some photographs of that room, which she identified. The photographs showed that there was a bunk bed, with a trundle bed, and confirmed that her daughters would sleep there when staying with the appellant.
Evidence was adduced from D that S was born in 2013, and that she was 7 years old at the end of 2020.
When asked about S's bedtime routine, D explained that she liked to be put to bed, and to have someone lay next to her and read her a story. When they were staying with the appellant, S would ask the appellant to put her to bed, which he would do. D said that neither she nor her husband, P, would go with them but they would walk into the bedroom every now and then. D said that the appellant put S to bed '[a] lot of times'.[22] She also said that when the appellant would put S to bed, S's sisters would usually have been in the same room at the time, although she could not say that they were there every time.
[22] ts 270.
D said that S would still want the appellant to put her to bed when the appellant was staying at their home. She explained that S was close to the appellant and that S thought a lot of him.
D gave evidence that S had an iPad that had been bought for her. She explained that no parental controls had been applied to that device and that she 'just let the kids go with them'.[23] She said that while she knew that S's iPad required a PIN code in order to access it, she did not know that code.
[23] ts 273.
D explained that if S was in trouble, the iPad would be taken from her as punishment. When asked how long S would be without her iPad when it had been taken from her, D said that it would usually be 'until we turned around and [S would] notice we weren't looking'. She said that they would usually ignore the fact that she had retrieved the iPad because '[i]t keeps her quiet'.[24] D said that S would not typically lose the iPad for long periods of time. She said that she might threaten taking it away for three days but, at most, it would be one day.
[24] ts 273.
The State prosecutor then asked D about 23 November 2021. D said that she was home that night and that she had a conversation with B when they got home from school. She said that B told her about something S had told her (B). As a result of that conversation, D telephoned her husband and told him to come home. The following day, they attended the police station with S.
Senior counsel for the appellant commenced his cross‑examination of D by eliciting evidence that her family had been close to the appellant's family for a long period of time. D agreed that she, herself, was quite close to the appellant, and that right up until the time S made her complaint she would exchange messages with him, including via Snapchat.
D agreed that both her family and the appellant's family had gone away on holidays to various places together. She confirmed that she had never seen anything untoward that gave her any concern about the appellant's behaviour towards her children. She agreed with senior counsel's propositions that the appellant would openly give birthday and Christmas presents to all of her children.
D agreed that when the appellant and his wife moved away from the country town in which they had all lived, her family would visit the appellant and stay at his house. D accepted that she trusted the appellant with all of her children.
D said that the appellant would sometimes tuck S into bed at night, that this was done openly, and that S would ask the appellant to do this for her. D agreed that S would not go to sleep without someone lying next to her.
D said that she would sometimes go up to the bedroom when the appellant was with S and that she never saw anything untoward. She said that, on occasions, the appellant would fall asleep on S's bed.
Senior counsel then asked D about the games room in her home. She confirmed that no one slept in that room on a regular basis, and that it constituted a passageway from the carport to the staircase. D also said that it provided access to a drinks fridge. D said that while she could not recall any occasion on which the appellant and S had been alone together in the games room, she could not exclude it as a possibility.
D was then asked questions about S's iPad. She confirmed that S had an iPad from a young age and that she had an interest in electronic devices. S was given a new iPad in March 2020, but D did not know the PIN code for that device and there were no parental controls on it. She affirmed that when S was not at school or playing sport, S was generally using the iPad.
D agreed that she would remove the iPad from S as a form of discipline if she did something wrong. D said that if the iPad was taken from her, S would get 'grumpy' about it, although she would get over it. D said that she had never checked the browsing history on S's iPad.
D gave evidence that S got into trouble at school for kissing a boy in October 2021, and that D told her off. D agreed that this emerged around the time the appellant was coming and going, and staying with her family while travelling in the South West. D also agreed that she had once found S in her cubbyhouse with a friend, and that S was standing up with her dress up.
Senior counsel for the appellant then cross‑examined D about specific occasions on which the appellant visited her family while travelling in the South West during 2021.
D was shown copies of text messages she had exchanged with the appellant's wife on 14 October 2021 in which the appellant's wife asked if they could stay at their house for the weekend. D accepted that the appellant and his wife did in fact stay at her home on that weekend, although she said that she could not remember whether they went out to a local restaurant together that night or not.
D was shown other text messages she had exchanged with the appellant's wife in early November 2021. After being shown those messages, D accepted that the appellant and his wife stayed at her home over the weekend of 13 November 2021. She also accepted that this was the last occasion on which they stayed at her home before she became aware of her daughter's allegations.
D was shown one final message, which indicated that she had accidentally telephoned the appellant's wife in a 'pocket dial' on 24 November 2021, which was after she had taken S to the police.
D said that she could not recall seeing the appellant or his wife again before the allegations regarding S surfaced.
D confirmed that the first time she heard of S's allegations was from B during the mid‑afternoon on 23 November 2021. When asked if she remembered calling the appellant that afternoon to tell him that an allegation had been made about him, D said she did not. She also denied a suggestion that she contacted the appellant on social media. D denied that she told the appellant about the allegation before she took S to the police, and she specifically denied that there had been a series of communications between herself and the appellant during the evening of 23 and 24 November 2021 about what had emerged.
When D was asked whether she had any communications with the appellant about the matter, D said, 'I did not tell him'.[25] She specifically said that she did not tell the appellant that S had made a complaint that he had sexually offended against her, that the police were involved, or 'anything about something that was about to happen or emerge'.[26]
[25] ts 291.
[26] ts 291.
D did accept that the appellant sent her a message about a week later and that she replied by saying that she was in a meeting. She said that she sent this message because she did not want to communicate with the appellant. D once again denied that she had previously been in communication with the appellant.
D's cross‑examination concluded in the following manner:[27]
We know that [the appellant] read to [S] and tucked her in, et cetera. That was never a secret within your household, was it?---No.
And you'd see him do that?---Yeah.
Including laying on the bed?---Yeah.
And that caused you no concern?---No.
And [S] made no complaint about that, did she?---No.
In fact, she would regularly ask if [the appellant] could do that, come and put her to bed?---Yes.
And, indeed, during the whole of the time that you knew that family, right up to the time this allegation was made, you never noticed anything untoward in her behaviour towards [the appellant] at all?---No.
[27] ts 292 - 293.
In re-examination, D said that S did not lose her iPad as punishment for kissing the boy at school, or for the incident in the cubbyhouse, but she did tell her off. She also explained that she did not tell the appellant about S's allegations because she did not want him to get rid of any evidence. D said that the police told her to keep life as normal and that if the appellant or his wife sent her any texts then she should just text back.
After D completed her evidence, a lunch break was taken. When the trial resumed the trial judge granted leave to the prosecutor to re-call D. It appears that D provided a further witness statement over the lunch break that touched on the communications she had with the appellant after she became aware of S's allegations.
Contrary to what she appeared to have said to the jury before the lunch break, D gave evidence that she did in fact communicate with the appellant before she took S to the police station on the morning of 24 November 2021.
D said that the appellant sent her a message on Snapchat asking her what was going on over the weekend. D explained that she replied saying, 'Leave me and my family alone'. She said that the appellant then replied by asking what was going on, and she responded to him, saying, 'You know what you've done'.[28] D then said that she deleted the Snapchat application because she did not want it open when she went to the police station. She confirmed that other than that exchange, there had been no communication between herself and the appellant between 23 November and 1 December 2021.
[28] ts 300.
Senior counsel for the appellant then further cross‑examined D. He suggested to D that she had contacted the appellant on the afternoon of 23 November 2021 and told him that S had made an allegation of sexual assault, and she was going to the police. However, D denied that suggestion.
D confirmed that messages sent and received via Snapchat are deleted 'straight away' after being read, and so she agreed that there would not have been any messages on Snapchat when she went to the police. D explained that she deleted the Snapchat application because she did not want to keep in contact with the appellant. She also said that she did not want to get into trouble with the police for having communicated with the appellant.
D agreed that she told the police that she had not been in communication with the appellant when she took S to see them on 24 November 2021. Further, she agreed that when she met with the prosecutor prior to the commencement of the trial he asked her whether she had communicated with the appellant about her daughter's allegations, and that she told him that she had not. D explained that she did that because she was worried that her husband would find out that she had alerted the appellant.
Senior counsel suggested to D that she had said more to the appellant than for him to leave her family alone. However, D denied that suggestion. She gave evidence that she definitely did not tell the appellant that there was an allegation of sexual assault concerning S. She also denied that her communication with the appellant on Snapchat went through until the evening. D said that she barely knew about the allegations herself, although she accepted that she did know that S alleged that the appellant had shown her how to use the internet to access pornography and that the appellant had put S's hand down his pants.
D also denied that she deleted the Snapchat application in case the police might be able to recover the messages.
D said that she had not been untruthful in her evidence. She explained that she had come back to give further evidence because she had missed out the conversation she had with the appellant on Snapchat. She also denied that she had hidden anything from the jury, but she agreed that she had not told the prosecutor or the police about the communications.
The complainant's father ('P')
P gave evidence that he had known the appellant for a long time. He said that he first met the appellant through a church and that he got to know the appellant more following the birth of P's first daughter. P also said that he had known the appellant's wife from an early age.
P said that when the appellant moved away from the country town in which they had all lived, P's family would visit the appellant and stay at his house, including when his children were playing sport away from home. P also explained that the appellant would travel to the South West and that, when he did so, he would stay with P's family.
P explained that the appellant had a weights room at his house. Initially, the weights room was upstairs. However, the weights were later moved into a games room downstairs. P said that there was also a bunk bed and a trundle bed in that room, which his children used when they stayed overnight.
P gave evidence about S's night‑time routine when she was younger. He said that either he or his wife would take her to bed and that they would then have to stay with her for a while. He would lay next to her and read stories, and he sometimes laid next to her until she fell asleep.
P said that the appellant would sometimes put S to bed when he was staying over at P's house with his wife. P explained that the appellant would sometimes take S into the bedroom or lay next to her on her bed. P said that S would ask the appellant to take her to the bedroom. According to P, from a very young age S loved the appellant, and he was like a grandfather to her.
P said that on occasions the appellant would also put S to bed when P's family were staying at the appellant's house. P said that it would have been S's idea for that to occur.
P was asked questions about S's iPad. He confirmed that she was given an iPad in 2020, although she previously had a 'hand-me-down' iPad from her brother. The new iPad did not have any parental controls on it, and S had her own PIN code. P said that he could not recall whether he knew what the PIN code was at the time.
P said that one of their punishments for S was to take her iPad off her. He said that it was never taken off her for more than a week, and that she would most often find the iPad and take it back for herself.
P was asked questions about what happened on 23 November 2021. He said that he spoke to his wife, D, during the afternoon. As a result of that conversation, P then spoke to a police officer that he knew personally and asked to speak to him later in the day. P made a telephone call to that police officer that evening. P explained that they then took S to the police station the following morning and made a report.
P confirmed that he knew that the appellant had exchanged messages with S, including via 'Facetime messages'. He also knew that they played Roblox together.
In cross‑examination, P confirmed that he became aware that S had been looking at pornography on the internet. He said that he looked at S's iPad but could not recall looking at the search history. P explained that he went through the photographs on the iPad, and saw a video of S exposing herself in a 'provocative manner'. He explained that the video was about two minutes in duration, and that it had a date stamp of 20 October 2021.
P said that he also found messages on the iPad that had been exchanged between S and the appellant. He confirmed that there was nothing untoward about those messages. He also confirmed that there was nothing to suggest that the video of S had any connection with the appellant.
P said that after he learned of the allegations against the appellant on the afternoon of 23 November 2021, he never contacted the appellant again.
P gave evidence that S mostly had unsupervised access to her iPad. He said that S could send messages on a platform called 'Child Messenger',[29] but that if she sent a message using that application it would come up on D's mobile telephone as well. P confirmed that there was nothing untoward in any of those messages that S exchanged with the appellant.
[29] This is presumably a reference to the application 'Messenger Kids', which has been referred to earlier in these reasons.
P said that he recalled an occasion when the appellant and his wife came to stay at his home in mid-October 2021, and also on the night of 13 November 2021. He agreed that they went to a local restaurant together but he could not recall which occasion that was on.
He agreed that the appellant and his wife arrived very late on the second occasion and that he did not think that the appellant would have had anything to do with putting S to bed that night.
P agreed that he was aware that the appellant would go into S's bedroom to read to her. He said that there was nothing secret about this, there was nothing untoward, and that they did not think anything of it. P also agreed that during the whole time he knew the appellant he had never given him any cause for concern.
Detective Senior Constable Shanyn Eileen Morrison
Detective Senior Constable Morrison was the investigating officer.
Detective Morrison gave evidence that in the early hours of 1 December 2021, concerns were raised with the police about the appellant's safety. After the appellant was found, police executed a search warrant at his home. There, police found the appellant's will together with a handwritten note in which the appellant asked two named people to witness the will. The appellant had signed the will, and it was dated 30 November 2021.
The police were also forwarded an email from the appellant's wife. The email had been sent by the appellant to his wife at 3.17 am on 1 December 2021.
It is unnecessary to reproduce the email in full. It is apparent that the email constituted a suicide note. For the purposes of the appeal, it is only necessary to record that the email included the following:
In context I expect in the coming days to be accused of child sex assault in relation to [S].
Which I have done [sad face emoji]
I know you repeatedly warned me and it's so disappointing this has happened.
Given my position [redacted] and public scrutiny that would come with a trial and the pending relationship breakdown with people who have been our best friends, it seems tidier for me to take another way out.
At least that way you and [our son] will be spared the embarrassment as well as our extended family.
I am so sorry I have let you down.
I hope at some point you can both forgive me.
Police also seized one of the appellant's electronic devices. A further email was found on that device. The appellant had sent this email to himself at 5.00 pm on 24 November 2021. The email was in almost identical terms as the email the appellant later sent to his wife. However, most relevantly, this email did not include the phrase, 'Which I have done [sad face emoji]'.
Police were also able to locate the copy of the email the appellant sent to his wife during the early hours of the morning of 1 December 2021.
Detective Morrison also gave evidence about what the police found on S's iPad when it was examined, by reference to a report prepared by Technology Crime Services. Relevantly, that report showed that:
(a)The iPad had been used to make 44 searches using the Safari search engine on various dates between at least 21 October 2021 and 22 November 2021. A number of those searches were repeated over multiple entries. The 'value' of each search was concerned with various sexual behaviours. None of the searches matched S's evidence that the appellant typed the phrase 'people having sex' into the iPad.
(b)The iPad had one 'web bookmark' for a website that appeared to relate to sexual content.
(c)The iPad had a 'web history' which demonstrated 140 instances of searches on Safari and accessing websites between at least 21 October 2021 and 22 November 2021. Based on the descriptions of the 'URLs' in the report, almost all of those websites and searches included sexual content.
(d) The searches, the web bookmark and the web history had all been deleted.
Detective Morrison said that S first went to the police station on 24 November 2021 at 9.15 am. Further, the appellant was found on 1 December 2021 at about 10.55 am.
The appellant was interviewed by police later that day. That interview is summarised later in these reasons.
In cross‑examination, Detective Morrison agreed that a large number of electronic devices were seized from the appellant from a number of locations, although they were not all examined. The detective confirmed that no material that would have been of any interest to the investigation of S's allegations was found on any of those devices. Specifically, the police found no child pornography, nor any photographs taken of S.
The detective also confirmed that there were no messages exchanged between the appellant and S that were indecent or obscene, or that contained any overtures to participate in sexual activity.
Detective Morrison noted that a video of S in a 'compromising position' was found on a device seized from S's family, but there was no evidence to suggest that it may have been sent or transmitted to anyone, nor that it had any connection with the appellant.
The detective said that when they first found the appellant, he had just attempted suicide and they had concerns for his mental health. He was then medically assessed before he voluntarily participated in a video record of interview.
When Detective Morrison was asked whether S's mother, D, had ever said that she had indicated to the appellant that there may be some sort of investigation pending, the detective said no. Detective Morrison said that she made it clear to D that if she got any indication the appellant might know that something was about to happen, then she was to let the police know. However, D never informed the police. The first time the detective learned that D had communicated with the appellant after S had made her allegations was during the trial.
Video record of interview
The appellant participated in a video record of interview on 1 December 2021.
During that interview, the appellant confirmed that he was very close friends with S's family, and that he had known S for her entire life. He also agreed that he would regularly see S's family, at least once a fortnight.
The appellant admitted that S would communicate with him via 'Messenger Friends',[30] which was connected to her mother's Facebook page. He also said they would occasionally communicate on a game called Roblox, but that those communications were public for all players of the game to see.
[30] Again, this is presumably a reference to the application 'Messenger Kids', which has been referred to earlier in these reasons.
The appellant said that he had stayed overnight on many occasions at S's house, and the last time he stayed there was about two weeks before the interview. The appellant said that he would stay in their guest room, which was two doors down from S's bedroom.
The appellant also said that he had tucked S into bed at night-time on many occasions. He said that he was 'pretty close' to S and that she would insist that he tuck her in and read her a story. He also accepted that he may have fallen asleep on her bed before, but he appeared to be unclear about whether S was in the bed at the time.
The appellant said that he would always check with S's sister, T, before going into the room to make sure that she was comfortable with him being in there. He would then sit on S's bed and read her a story, and her mother and father would come in and kiss her goodnight. The appellant accepted that he would sometimes get under the covers of S's bed with her during winter.
The appellant agreed that S's family were regular visitors to his home after he moved away from the country town they previously lived in. S's family would stay at his home because it was near the beach, and they would often come up for sporting events nearby.
The appellant said that S would sleep in a room with her sisters or end up in bed with her parents. S's sisters would stay in a room downstairs. One of those rooms was the 'weights room'.
The appellant agreed that he would also read stories to S as he would do at her house, but he said it would not happen as often.
When the appellant was asked questions about the messages he sent to S via Messenger Kids, he said that none of them had been deleted and he offered to show them to police. The appellant also explained to police that he would play online video games with S and with her sister, B, and that he gave S some gift cards for Roblox on her birthday.
The appellant denied that he had any interest in child pornography and told the police that he had nothing to fear from the fact they had taken his electronic devices. He did, however, admit to watching pornography when he was away from home and going to bed, but said that it was not an addiction. He said that he usually visits a website called 'Pornhub'.
The appellant denied ever watching pornography with S. He also denied ever teaching her how to view pornography.
The appellant told the police that he sent an email to his wife at about 3.30 am that morning. He said that it was 'private and personal' and that he did not want to go into it any further at that stage.
The appellant admitted that he had just written a will in which he left the assets of the family to his wife.
When the allegations S had made in her interview were put to the appellant, he said that he was 'very surprised'.
The appellant was then again asked about the email he sent to his wife, and a copy of that email was shown to him. The appellant admitted that it was a copy of the email he sent. After one of the interviewing officers read out the email, the appellant explained what he had written in that email in the following way:[31]
[31] Video record of interview, ts 41 - 44.
THE APPELLANT: Well, I think it's self-evident that, uh - that, um, this is gonna [sic] be a difficult road.
DET S/CON MORRISON: Mmm.
THE APPELLANT: Uh, uh, whether I'm found guilty or not guilty, it will almost be irrelevant because the things that are put in place now, uh, have ended my [redacted] career or will end my [redacted] career. And - and, um, you know, [P] and [D] are our closest friends. So, there's, uh, there's a - there's a price to pay there, too.
DET S/CON MORRISON: Mmm. Have you got anything [to say] in relation to this email?
DET SGT CALZADA: [W]ould you agree that that, in a way, is some sort of a confession in relation to some of the events that's happened.
THE APPELLANT: So - so, I wouldn't necessarily. Um, it's the second draft of the email. The other draft of the email was on my phone, uh, which doesn't include all the elements that that one has. Um, so, again, I need to take some legal advice about it. Um, and obviously, there's a journey ahead in terms of understanding exactly what the charges that you will be bringing will be. Um, and - yeah. I think we take it from there.
THE APPELLANT: I mean one of the things, as well, is that, um, you will write about the - about a dark event, uh, and one of the - I guess, one of the things I probably didn't want to happen was to have, um, given the close friendships between the family was to have my wife blame [S] for what had occurred. So, one of the ways of mitigating that was to add a line to that version that's not in the original version. Um, so, anyway.
DET S/CON MORRISON: What - what - - -
DET SGT CALZADA: Can I just look at that email, please?
DET S/CON MORRISON: Yeah.
THE APPELLANT: Yeah.
DET S/CON MORRISON: In regards to [the] sad face, it's right there. It's, uh, in - - -
THE APPELLANT: Yeah. Okay. Look, it may be.
DET S/CON MORRISON: Yeah.
THE APPELLANT: It was 3.15 in the morning. It was a fairly stressful time.
DET S/CON MORRISON: Yeah.
THE APPELLANT: Um, yeah.
DET S/CON MORRISON: Yeah. Just before you said that you didn't want [your wife] to blame [S]. What do you mean by that?
THE APPELLANT: Well, I - I didn't want, uh, if - if I had - if my (indistinct) had happened, I didn't - I didn't want there to be ongoing animosity between those - the families. So, it's got nothing to do with [my wife]. And - and [my wife] was actually friends with [P] and [D] before I was. So, she - she - she's known [P] since, oh, probably 35 years, something. Long, long time. So, I didn't want a situation where she felt that - that I'd said that she'd made these allegations and she'd determined that it was - that was the reason why I wasn't around.
THE APPELLANT: So, you know, these two families are really close.
DET S/CON MORRISON: Yeah.
THE APPELLANT: If I'm out of the equation, then it would have been nice to have thought that they may have been able to continue a relationship of some sort.
DET S/CON MORRISON: Yeah. That, uh (indistinct) that didn't really answer my question when you said that you hoped she didn't blame [S]. Why would she blame [S] for this?
THE APPELLANT: Because - becau - which is the reason the second email has the added line that you're ref - you're saying is a confession, uh, is, the first version didn't ha - didn't have that in and after reflection I thought I don't want her thinking that it's [S's] fault.
DET S/CON MORRISON: Okay.
THE APPELLANT: If that makes any sense.
DET SGT CALZADA: So, what you're saying is that you put that last bit in where he says, 'Which I have done' to put the blame on your - like, to put the blame on yourself?
THE APPELLANT: Yes.
DET S/CON MORRISON: Okay.
THE APPELLANT: In [my wife's] mind.
The trial judge also told the jury that for it to constitute an admission in that way, the jury needed to be satisfied that the only reasonable inference in all of the circumstances was that the appellant was truthfully and accurately admitting in that email that he had sexually assaulted S.
No issue was taken with this aspect of the directions by either party. Accordingly, it is unnecessary to decide whether these directions were required in the circumstances of this case. However, it should not be assumed from these reasons that we are of the view that these directions were required. There is, in fact, much to be said for the proposition that the directions were unduly favourable to the appellant.[108]
[108] [2023] WASCA 179 (decision suppressed) [107] - [124].
The trial judge then directed the jury that if they were satisfied that the appellant had truthfully and accurately admitted that he had sexually assaulted S, it was open to them to also be satisfied that this demonstrated that at the time of the charged offences, the appellant had a sexual interest in S and that he was willing to act on it. The jury were directed that if they were satisfied that the appellant had such a sexual interest in S, it was open to them to conclude that it was more likely that the appellant engaged in the conduct the subject of the charges.
The jury were also directed that if they were satisfied that the appellant had made an admission in the email that he had sexually assaulted S then it could not be used as a substitute for evidence of the alleged conduct the subject of the charges. The jury were told that they could not reason that because of the admission the appellant must therefore be guilty of any specific charge.
We have already set out earlier in these reasons what the appellant told the police about these emails, when he was interviewed about S's allegations on 1 December 2021. What the appellant said to the police was reflected in his evidence at the trial. In summary, the appellant's explanation was that he believed that if he sent the draft email to his wife then she would blame S and her family for his death. The appellant said, in effect, that he wanted to avoid this happening. According to the appellant, the solution he came up with was to amend the draft email to include a false confession that he had sexually assaulted S. The appellant's explanation was, in effect, that this would reduce the risk that there would be any animosity between the families after he was gone, so that his wife would then continue to have the support of S's family.
In our view, and based only on the record of the trial, the appellant's explanation for confessing to sexually assaulting S in the email he sent to his wife was contrived and implausible. The idea that the appellant would attempt to take his own life in the face of what were, on his version, false accusations of sexual assault, and then, before making that attempt, make an untruthful confession to his wife that he had sexually interfered with the very young daughter of their close friends in order to ensure the survival of her friendship with them, is risible.
We note that there is no suggestion in the email itself that the appellant anticipated or hoped that his wife's friendship with S's family might be preserved. On the contrary, the appellant himself contemplated the inevitable, whether the appellant had confessed to his wife or not:
Given my position … and public scrutiny that would come with a trial and the pending relationship breakdown with people who have been our best friends, it seems tidier for me to take another way out. (emphasis added)
The appellant's explanation is also inconsistent with his evidence that while he was making preparations to take his own life, he prepared a new will, in which he replaced S's father as the executor of his estate because he did not think that it would be good for his wife to have to deal with S's family in finalising his estate.
In our view, the only sensible explanation for the email the appellant sent to his wife is that the appellant was wracked with guilt and shame because he had indeed sexually interfered with S. In circumstances in which he was then intending to take his own life, and believed that the email would remain private, the appellant admitted that he had sexually assaulted S to explain to his wife and family why he decided to commit suicide. The only reasonable inference in all of the circumstances was that the appellant had truthfully and accurately admitted that he had sexually assaulted S. The jury were plainly entitled to reach the same conclusion.
Of course, as the trial judge told the jury, the fact that the appellant had sexually assaulted S was not, of itself, proof that the appellant had committed either one or both of the offences the subject of counts 1 and 2. However, it did prove that the appellant had a sexual interest in S, which he was prepared to act on, including at the time the offences were alleged to have been committed.
There was, of course, no evidence found on any of the 28 electronic devices that were seized from the appellant when he was arrested that suggested that he had any sexual interest in S or in children more generally. There was also no evidence that the appellant had communicated with S, using social media or by any other electronic means, in an inappropriate way. However, this does not in any way detract from the fact that the appellant admitted that he had sexually assaulted S, or from the irresistible inference that he had an unnatural sexual interest in her that he had acted on.
The appellant's sexual interest in S, and his willingness to act on that interest, provided considerable objective support for S's evidence that the appellant forced her to touch his penis under his clothing on the two particular occasions that she confirmed in cross‑examination she recalled, and that were the subject of counts 1 and 2 on the indictment. Having regard to the whole of S's evidence, the appellant's confession that he had sexually assaulted S, and the irresistible inference that he therefore had a sexual interest in S that he was prepared to act on, dispels any reasonable doubt in our minds that the appellant committed the offences in respect of which the jury returned verdicts of guilty.
Apart from the email, there was further support for S's allegations that the appellant had sexually interfered with her in the manner alleged. In that regard, the appellant gave evidence in which he agreed that he had, on occasions, put S to bed and read her stories. It was uncontroversial that this was encouraged by S and that it occurred with her parents' consent.
As the appellant's wife apparently warned him, this sort of behaviour might be considered unusual and even raise suspicions. However, of itself, it would not necessarily suggest that the appellant had a sexual interest in S. The appellant was a long-term and well-liked friend of S's family. Nevertheless, the fact that the appellant would regularly lie down in bed with S and read her stories demonstrated that he had opportunities to sexually offend against S, particularly in the manner alleged in count 1.
As we have already observed, it must be assumed that the jury, having had the benefit of seeing and hearing the appellant give evidence and having seen his record of interview with the police, rejected his denials that he had committed the offences the subject of counts 1 and 2. Based on the record of the trial, this was well open to the jury.
We have already referred to the appellant's explanations about the email he sent to his wife in the early hours of the morning of 1 December 2021. For the reasons we have already given, it was open to the jury to conclude that those explanations were patently false.
The appellant also admitted at the trial that he had lied to the police in his record of interview when he told them that he had not heard about S's allegations from her parents. The jury were told that they could take this lie into account as a matter relevant to the appellant's credibility.
In circumstances in which it was plainly open to the jury to conclude that the appellant had been untruthful in these respects, it was also open to the jury to reject the appellant's denials that he had behaved in a sexual manner towards S, on the basis that his evidence was not credible or reliable generally.
The appellant's evidence does not give rise to a reasonable doubt in our minds that he committed the offences charged in counts 1 and 2. It was open to the jury, who had the benefit of seeing and hearing the appellant give evidence, to reject his evidence.
Based on our examination of the record of the appellant's trial, we are not persuaded that the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of the appellant's guilt in relation to counts 1 and 2. On the contrary, it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant of both of those offences. Although there were some unsatisfactory aspects of the evidence given by S, after independently reviewing all of the evidence adduced at the appellant's trial as a whole, we do not think that S was a witness whose evidence could not be accepted on matters that were critical for proof of the offences charged in counts 1 and 2.
Ground 3 has no reasonable prospect of success and leave in respect of it should be refused.
Ground 4
By ground 4 the appellant argues that there was a miscarriage of justice occasioned by an 'aggregate of errors'. In that regard, the appellant submits that if the court is not persuaded that an individual ground of appeal has merit, the combined weight of all three of the other grounds of appeal establishes that there was a miscarriage of justice.
As we have concluded that grounds 2 and 3 should be dismissed, there are no errors to be 'aggregated'. Accordingly, ground 4 does not have a reasonable prospect of succeeding, and leave to appeal on that ground must be refused.
Application in the appeal
By an application in an appeal dated 26 August 2024, which was supported by affidavit sworn by the appellant on 30 August 2024, the appellant applied for an order that he be permitted to rely on several documents annexed to that affidavit in support of his appeal against conviction.
At the hearing of the appeal, an order was made that annexures 'B' and 'C', which comprised an updated Practice Direction 7.4 schedule and an updated list of authorities, stand as the appellant's Practice Direction 7.4 schedule and as his list of authorities.
In relation to the other annexures, 'A', 'D' to 'I', and 'K' to 'M',[109] the court indicated that it would rule on the admissibility of those documents in these reasons.
[109] Annexure 'J' was not attached to the appellant's affidavit.
Annexures 'A', and 'D' to 'I' comprise various extracts from reports, including by the Western Australian Law Reform Commission, and various academic articles the appellant wished to rely on in support of ground 1. As we would allow ground 1 without reference to any of that material, it is unnecessary to decide this part of the appellant's application in the appeal.
Annexure 'K' is a timeline prepared by the appellant that relates to digital recordings that S's sister, B, made of a conversation she had with S on 22 November 2021, after B had discovered S looking at pornography on her iPad. The appellant submitted at the hearing of the appeal that the timeline demonstrated that, contrary to the prosecution case, S did not make a spontaneous complaint to her sister and that she must have been placed under pressure to make that complaint.
However, the appellant successfully objected to the recordings that were made by S's sister being adduced in evidence at his trial. Accordingly, it is now not open to him to attempt to rely on the recordings on appeal. We would refuse the appellant leave to adduce annexure 'K' on the appeal.
The appellant did not make any submissions about annexures 'L' or 'M', and so the relevance of those two annexures is unclear. It follows that we would also refuse the appellant leave to adduce annexures 'L' and 'M' on the appeal.
Orders
For the foregoing reasons, we would make the following orders:
1.Leave to appeal is granted on ground 1.
2.Leave to appeal is refused on grounds 2, 3 and 4.
3.The appeal is allowed.
4.The convictions on counts 1 and 2 are set aside.
5.The appellant is to be retried.
HALL JA:
I have had the benefit of reading in draft the reasons of Mazza and Vandongen JJA. I differ from them in only one, albeit critical, respect. The issue on which I have reached a different view is whether it was reasonably open to exercise the discretion to admit the child witness interview. In my view, in the particular circumstances of this case and having regard to the informal nature of child witness interviews, it was open to exercise the discretion to admit the interview of S.
It has long been recognised that children face many obstacles to their fair participation in the criminal justice system.[110] That is particularly the case where children are complainants in cases of alleged sexual abuse. These disadvantages arise not only in respect of court proceedings but at the investigation stage. Children may be intimidated by adult authority figures who are unknown to them. Understandably, they may be reluctant to speak to adult strangers, particularly about allegations of sexual misconduct. They may be too embarrassed or lack the vocabulary to give a concise account of what occurred. They may mistakenly think they are to blame for what occurred and will suffer adverse consequences if they reveal sexual acts committed against them. They may believe that information is private or cannot be revealed, particularly if the alleged perpetrator has sought to bind them to silence by promises of secrecy. They may be intimidated by the formality of court proceedings and traumatised by the prospect of having to confront their alleged abuser. All of these factors, and more, have historically acted as a significant impediment to
the reception of evidence from child complainants in sexual abuse cases.
[110] See Law Reform Commission of Western Australia, The Evidence of Children and Other Vulnerable Witnesses, Discussion Paper, Project 87 (April 1990).
In this State, as in many other jurisdictions, the legislature has recognised the need to make changes to laws relating to procedure and evidence to allow for the vulnerabilities of child witnesses.[111] These changes have made it possible for evidence of child witnesses to be more readily received, whilst still ensuring that accused persons receive a fair trial.
[111] See Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004 (WA); Criminal Law and Evidence Amendment Act 2008 (WA); Evidence Amendment Act 2016 (WA).
These changes to the law include the provision that is central to the determination of this case, namely s 106HB of the Evidence Act 1906 (WA). The effect of that section is to make a visual recording of a child witness interview admissible as the evidence‑in‑chief of the child. There are several advantages to this course. It avoids the child having to give repeated accounts of their experience, with the obvious risk of re‑traumatisation. It also preserves the first account given by the child to a person in authority, when their memory of the events is likely to be clearer. The delays inherent in the criminal justice system are often disadvantageous to child witnesses whose memory of the events may fade, particularly if they are very young or do not fully appreciate the significance of those events. The provision does not, however, entirely obviate the need for a child to give evidence. A child witness interview recording is admissible only as the evidence‑in‑chief of a child witness. Thus, it is only admissible where the child is available at the trial (or in pre‑recorded evidence) to be cross‑examined.
Section 106HB of the Evidence Act was introduced by the Criminal Law Amendment (Sexual Assault and Other Matters) Act2004 (WA). In the relevant part of the second reading speech, the Attorney General said:[112]
The third major area of reform relates to the visual recording of interviews of children suspected of having been sexually or physically abused, or child witnesses. In the Australian Institute of Criminology study I previously referred to, 70 per cent of children gave their evidence at trial and just 30 per cent fully pre‑recorded their evidence months before the trial.
The process of visually recording a child's evidence was a recommendation of the Joint Response to Child Abuse Taskforce and the Gordon inquiry, and has significant benefits for the child. The interviews are completed by skilled and professional people who are aware of the child's needs, and they are taken in a more conversational style in 'child friendly' surroundings. This allows the child to feel more secure, less distressed by the experience, and hopefully facilitates their delivering a more free‑flowing account of what took place. As a result of these reforms, children will be required to describe what happened to them less often, as their accounts can be viewed by professionals who may be treating them, and ultimately used in court proceedings. At the same time, interviews will be more transparent, accurately recording the environment and setting in which the interview took place, thereby reducing the incidence of allegations against the investigating officers about how the evidence was obtained. Interviews will also take much less time to record than they presently take.
The Bill further provides that multiple interviews can be visually recorded and that access to the recordings be restricted. The visual recording may stand as the evidence‑in‑chief in a trial and the grounds on which courts may exclude visually recorded evidence are limited to when the prejudicial effect of the evidence exceeds its probative force. When a visually recorded interview is used in a trial, a number of judicial directions must be given to the jury. Counsel will also maintain the right to elicit further evidence from the child in some circumstances. It is also the experience in Victoria and New Zealand that the visual recording of interviews has increased the rate of guilty pleas in these matters.
[112] Western Australia, Parliamentary Debates, Legislative Assembly, 30 June 2004, 4608 ‑ 4609 (Mr JA McGinty, Attorney General).
As is apparent from the second reading speech, there were seen to be real advantages to child witness interviews taking place in 'child‑friendly' surroundings and being conducted in a more conversational style. One such advantage is that a child who feels more secure and less distressed by the experience is more likely to be willing to give an unimpeded account of what occurred. The relative lack of formality was not merely an accepted feature of child witness interviews but a necessary means by which some of the disadvantages arising from the vulnerability of children could be overcome.
Typically, and consistently with what was said in the second reading speech, child witness interviews are less formal than interviews with adults. The interview is usually conducted in a room that is similar to a sitting room and is furnished in a way that is warm and welcoming. The child is often allowed to move around or play with toys. Recording equipment is usually discrete so as not to be distracting to the child. Questioning is by a trained child witness interviewer and is more conversational in style and adapted to the age and education of the child. The intention is to put the child at ease so that they feel safe making revelations about adults who are often in a position of power over them. The objective is to remove impediments that may cause a child to be reluctant to talk.
Whilst there are some prescribed rules for the conduct of interviews with children, those rules do not extend to any requirements regarding the positioning of the child with respect to the video camera. This is unsurprising as requirements of that type would be likely to undermine the intended informality of child witness interviews. The relevant rules are contained in the Evidence (Visual Recording of Interviews with Children and Persons with Mental Impairment) Regulations 2004 (WA) (Evidence Regulations). Those rules are confined to a requirement that, as far as practicable, statements by the child not be elicited by the use of leading questions,[113] and requirements to ensure that the child understands that participation is serious, that there is an obligation to tell the truth, and that the child is able to understand and respond rationally to questions.[114] There is also a requirement in s 106HA(1)(a) that the interview be conducted by a person of a 'prescribed class'.[115]
[113] Evidence Regulations, reg 5(a).
[114] Evidence Regulations, reg 5(b).
[115] For the requirements as to who is a prescribed class of persons, see Evidence Regulations, reg 4.
In making child witness interviews admissible it is apparent that Parliament appreciated the relative informality of such interviews as compared to giving evidence in a court. In my view, when determining whether the discretion in s 106HB(1) should be exercised to admit a visual recording of a child witness interview, comparisons with how court testimony would be conducted are not useful. There are many things that may occur in the course of a child witness interview that would not be permitted when giving evidence in a court. For example, in an interview the child may be permitted to move around, sit on the floor, play with toys and tell their story in a way that may involve digressions. It would be wrong to view the adequacy of a child witness interview based on what would happen in a court.
It is true that when making an assessment of the credibility of a witness a jury is entitled to consider the demeanour of the witness. Credibility is, of course, critically important in cases involving sexual offences where the complainant is the only witness for the prosecution as to the alleged events. Demeanour means conduct, the way of acting or behaviour, especially towards others.[116] Demeanour is not confined to facial expression. It can include other elements, such as tone of voice, the speed or manner of delivery, and the physical behaviour of the witness. Ideally the face of a witness should be visible when they are giving their evidence. However, I would hesitate to conclude that an accurate assessment of the credibility of a witness is impossible unless their face can always be seen. As I have pointed out, there are other matters relevant to the question of demeanour. Further, credibility is not simply a function of demeanour but of the combination of a range of factors that also include clarity and consistency.
[116] Shorter Oxford English Dictionary (5th ed, 2002).
In the present case, it is relevant to consider why S chose to hide under the table and, later, behind a chair during the course of the child witness interview. It is apparent from the interview that it was conducted at a regional police station in a room that was not specifically furnished for the conduct of child interviews. The formality of the room, in that S was initially seated on an upright chair at a table opposite the interviewer, was not ideal. The video camera was very prominently situated close to the table at which S and the interviewer were seated. It is apparent that the camera made S self‑conscious and reluctant to speak about the allegations. An observer may well conclude that it was for this reason, and not because S was not telling the truth, that she sought to hide. That aspect of her behaviour was relevant to her demeanour.
S's face is fully visible at the start of the interview and briefly at other times as she raises her head from behind the table or an adjacent chair. The jury therefore had some opportunity to assess her appearance and her sense of unease. S was clearly audible throughout the interview. However, her reluctance to talk about the allegations also manifested at times in her answers when she preferred to spell out a word rather than saying it.[117] The jury might well have concluded that S's conduct was consistent with a child who felt embarrassed and awkward about speaking to a stranger about such matters and having the conversation recorded.
[117] Child witness interview, 25 November 2021, 11, 17 ‑ 18.
It is also relevant to recall that the recording was only ever to be admitted as the evidence‑in‑chief of S. S was required to, and did, appear as a witness at a pre‑recording and was cross‑examined. In that pre‑recorded evidence she was visible and confirmed her evidence as to what had occurred with the appellant. Thus, in making any assessment of the credibility of S, the jury was able to take into account not merely the child witness interview but also the pre‑recorded evidence. The fact that the pre‑recording occurred two years after the child witness interview does not, to my mind, reduce the significance of the jury being able to observe the appearance of S during that evidence.
Whilst the ability to see a witness is usually a necessary component of testimonial evidence, it is not invariably so. Depositions of dead, sick or unavailable witnesses are sometimes admitted. On occasions, evidence is admitted of witnesses who are present only by telephone link. Sometimes the disadvantages that flow from this can justify the exercise of a discretion not to admit the evidence, but that is not invariably so. Often, as here, any disadvantage arising from an inability to see the face of the witness can be addressed by giving an appropriate direction to the jury.[118] Further, it remained necessary for the jury to be satisfied as to the accuracy and honesty of S's evidence. That requirement was not diminished or undermined by the admission of the child witness interview recording. The jury had to be satisfied beyond reasonable doubt that S was an honest and reliable witness before they could conclude that the appellant was guilty.
[118] The trial judge directed the jury that 'in relation to [S’s] child witness interview, [the jury] may take account in [their] assessment of what [S] said that [the jury] were not able to observe her when she described what she alleges [the appellant] did to her' (ts 672).
In all of the circumstances, I am unable to accept that the only reasonable exercise of the discretion in this case was to decline to admit the child witness interview. Plainly, the fact that S was not visible for much of the interview was a relevant consideration, but it did not compel the conclusion that the evidence must not be admitted. The significance of facial expressions in assessing whether a witness is telling the truth can be overstated, particularly where the witness is a child. An adequate assessment of the credibility and reliability of S could be made by the jury notwithstanding the fact that she could not be seen during most of the interview. In coming to that conclusion, I have taken into account the following factors:
1.The age and immaturity of S.
2.The circumstances in which S was interviewed, including the furnishing of the interview room and the prominence of the video camera.
3.The reason why S hid under the table.
4.The fact that S was visible at the beginning of the interview and, briefly, at other times.
5.That S's voice, including her tone and manner of speaking, was clearly audible throughout the recording.
6.That the interview recording formed only part of the evidence of S. S also gave evidence at a pre‑recording at which she was visible and at which she confirmed the truthfulness of the allegations made in the child witness interview.
Clearly it was undesirable for S to remain under the table and not be visible throughout most of the child witness interview. It would have been preferable had the interviewer not told S that she could remain where she was and, rather, had encouraged her to sit up where she was visible. However, the interviewer may well have been concerned that there was a risk that the evidence of S may have been lost if not gathered early and in a way that S was comfortable with. In any event, the fact that the recording does not show the facial expressions of S does not necessarily lead to a conclusion that the evidence should not have been admitted. That deficiency in the recording must be seen in context.
I also note that, in dealing with ground 3 and the question of whether the verdicts were unreasonable or unsupported by the evidence, it has been necessary to consider whether it was open for the jury to be satisfied beyond reasonable doubt that the appellant committed the alleged offences. In the circumstances of this case that means that it must have been open to the jury to conclude that the evidence of S was credible and reliable in the critical respects. I agree with Mazza and Vandongen JJA that ground 3 has no reasonable prospect of success. That conclusion has not been impeded by the nature of the child witness interview.
Whilst I would grant leave to appeal on ground 1, I would not uphold that ground for the reasons I have given. I agree that leave to appeal should be refused on grounds 2, 3 and 4. In my view the appeal should have been dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ST
Associate to the Honourable Justice Mazza
11 MARCH 2025