Headley v The State of Western Australia - [2019] WASCA 119

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   HEADLEY -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 119
CORAM:   MAZZA JA
BEECH JA
PRITCHARD JA

HEARD:   21 MAY 2019
DELIVERED          :   14 AUGUST 2019
FILE NO/S:   CACR 91 of 2017
BETWEEN:   RAYMOND BRIAN HEADLEY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STEVENSON DCJ
File Number             :   IND 1865 of 2015

Catchwords:

Criminal law - Appeal against conviction - Conviction after trial - Five complainants - 13 counts of unlawful and indecent dealing with a child under 14 years old - Six counts of inciting a child under 14 years old to unlawfully and indecently deal - One count of attempted carnal knowledge against the order of nature - Three counts of sexual penetration without consent of a person under 16 years old - One count of sexual penetration of a child of or over 13 years old and under 16 years old under care, supervision or authority - Four counts of unlawful and indecent assault of a person under 16 years old - Three counts of indecent dealing with a child of or over 13 years old and under 16 years old under care, supervision or authority - Whether trial judge gave adequate Longman direction - Whether verdict of jury unreasonable and not supported by the evidence

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3)(a)
Criminal Code (WA), s 182, s 183, s 321(4), s 321(7)(b), s 321(8)(b), s 324C, s 324E, s 324H
Criminal Procedure Act 2004 (WA), s 110

Result:

Leave refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	LM Fox

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

EPD v The State of Western Australia [2011] WASCA 264
Headley v The State of Western Australia [2018] WASCA 37
Krencej v The State of Western Australia [2019] WASCA 82
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67

JUDGMENT OF THE COURT:

This is an appeal against conviction.
The appellant stood trial in the District Court before Stevenson DCJ and a jury on 32 counts of alleged sexual offences committed upon young boys. On 24 March 2017, he was found guilty and duly convicted of 31 offences.[1] On 30 March 2017, he was sentenced to a total effective sentence of 12 years' imprisonment, with eligibility for parole, to commence on 13 May 2015.[2] An application for leave to appeal against sentence has been dismissed.[3]
[1] ts 989 - 998.
[2] ts 1042.
[3] See Headley v The State of Western Australia [2018] WASCA 37.
The appellant was represented by experienced counsel at trial. He has represented himself throughout this appeal. On 20 April 2019, the appellant filed an application in the appeal to, in effect, adjourn the appeal hearing. On 21 May 2019, when the appeal was called on for hearing, the appellant pressed that application. The application was opposed. The application was dismissed with reasons to be published.[4] Our reasons for doing so are set out later.
[4] Appeal ts 64.
The appellant relies upon two grounds of appeal. Ground 1 alleges that the learned trial judge gave 'an inadequate Longman direction'.[5] Ground 2 alleges that the verdicts were unreasonable and cannot be supported by the evidence. The question of leave to appeal on these grounds was referred to the hearing of the appeal.[6] For the reasons that follow, leave to appeal should be refused on each ground and the appeal dismissed.
[5] WAB 5.
[6] Order, 24 September 2017, WAB 3.

The charges

Counts 1 ‑ 20 concerned three brothers whom we will refer to as R, A and D. The counts are contrary to s 182 or s 183 of the Criminal Code (WA) (the Code).[7]
[7] WAB 50 ‑ 52.
Counts 1 - 9 concerned R. It was alleged that the appellant either unlawfully and indecently dealt with R, a child under the age of 14 years (counts 1, 4, 5 and 7), or he incited R, a child under the age of 14 years, to indecently deal with him (counts 2, 3, 6, 8 and 9). These offences were alleged to have occurred in two suburbs in Perth on unknown dates between 20 July 1980 and 1 January 1983.
Counts 10 ‑ 12 concerned A. Counts 10 and 12 alleged that the appellant unlawfully and indecently dealt with A, a child under the age of 14 years. Count 11 alleged that the appellant attempted to have carnal knowledge of A against the order of nature. These offences were alleged to have occurred in a suburb in Perth, and elsewhere, on unknown dates between 20 July 1980 and 27 June 1985.
Counts 13 ‑ 20 concerned D. These counts alleged that the appellant unlawfully and indecently dealt with D, a child under the age of 14 years (counts 13, 14, 15, 16, 17, 19 and 20) and that the appellant incited D, a child under the age of 14 years, to unlawfully and indecently deal with him (count 18). These offences were alleged to have occurred in two suburbs in Perth on unknown dates between 20 July 1980 and 31 December 1983.
Counts 21 - 31 concerned another set of brothers whom we will refer to as M and T.[8]
[8] WAB 52 ‑ 53.
Count 21 related to M. It is unnecessary to describe this offence as the appellant was acquitted of it.[9]
[9] ts 994.
Counts 22 - 31 concerned T. Counts 22, 23, 26 and 27 alleged that the appellant unlawfully and indecently assaulted T who was, at the time, under the age of 16 years, contrary to s 324C and s 324H of the Code. Counts 24, 25 and 28 alleged that the appellant sexually penetrated T when T was under the age of 16 years, contrary to s 324E and s 324H of the Code. Counts 29 and 31 alleged that the appellant indecently dealt with T, who was then a child of or over the age of 13 years and under the age of 16 years, and at the time T was under his care, supervision or authority, contrary to s 321(4) and s 321(8)(b) of the Code. Count 30 alleged that the appellant sexually penetrated T when he was a child of or over the age of 13 years and under the age of 16 years, and at the time T was under his care, supervision or authority, contrary to s 321(2) and s 321(7) of the Code. The offences against T were alleged to have occurred at four suburbs, and elsewhere, in Perth on unknown dates between 5 June 1989 and 31 December 1994.
Count 32 concerned another young boy whom we will refer to as AL. This count alleged that on a date unknown between 1 August 1992 and 21 August 1992 at a suburb in Perth, the appellant indecently dealt with AL, a child of or over the age of 13 years and under the age of 16 years, and at the time AL was under his care, supervision or authority, contrary to s 321(4) and s 321(8)(b) of the Code.

Overview of the State's case at trial

The appellant was born on 15 October 1948.[10]
[10] ts 236.
The complainant, R, was born in mid‑1969. His mother died tragically in 1972. Thereafter, R and his siblings lived with their father at various locations. R's father was an alcoholic who was sometimes physically abusive to his children.[11]
[11] ts 238 - 239.
On 20 July 1980, R's father, along with R and his siblings, moved into a HomesWest house at an address in a southern Perth suburb.[12]
[12] ts 239.
The State's case was that, in about May 1982, R, his brothers and his father were at a hotel in Fremantle where R's father met the appellant. The appellant drove them home in his car. The appellant and R's father drank beer throughout the afternoon. Later that evening, the appellant asked R if he would like to go to the appellant's car and check out his two‑way radio. R agreed. While in the vehicle, the appellant rubbed R's leg and then slid his hands under R's pants and underwear and felt R's penis and testicles (count 1).[13] As the appellant did this, he undid his own fly and pulled out his penis and started to masturbate it. He then grabbed R's hand and placed it around the appellant's penis (count 2).[14] The appellant then pushed R's head down and held it there with the appellant's penis in R's mouth (count 3).[15]
[13] ts 240.
[14] ts 240.
[15] ts 241.
A few months later, the appellant took R and his brother, A, to the Royal Show. When they returned to R's home, the appellant invited R back outside to his car to use the two‑way radio. R did not want to go with the appellant, but the appellant said words to the effect of, 'You promised me. I told you I would take you to the [Royal] [S]how'.[16] R accompanied the appellant to the car. While inside, the appellant touched R's penis and testicles (count 4).[17] The appellant then put his mouth around R's penis (count 5).[18] The appellant then grabbed R's head and pushed it onto the appellant's penis. Eventually, the appellant ejaculated into R's mouth, causing him to gag (count 6). The appellant then gave R five dollars.[19]
[16] ts 241.
[17] ts 241.
[18] ts 241.
[19] ts 241 - 242.
Not long after the Royal Show incident, the appellant invited R to go fishing with him. The appellant parked his vehicle a long way from other cars. While in the car, the appellant masturbated R (count 7).[20] The appellant then grabbed R's head and made him suck his penis, which he did for a few minutes (count 8). He then asked R to masturbate him.[21] The appellant wrapped his hand around R's hand as this was happening. Eventually, the appellant ejaculated (count 9).[22]
[20] ts 242.
[21] ts 242.
[22] ts 242.
The State alleged that the appellant's sexually interfered with R on other occasions, but R was unable to give sufficient details of these incidents.[23]
[23] ts 243.
A was born in mid‑1972. A first recalled the appellant sexually interfering with him when he was about 9 or 10 years old.[24]
[24] ts 243.
On this occasion, the appellant came into A's bedroom while he was asleep. The appellant felt A's penis over his clothes (count 10).[25] When A asked the appellant what he was doing, the appellant walked out of the bedroom.[26]
[25] ts 243.
[26] ts 243.
On another occasion, when A was about 10 or 11 years old, the appellant drove him to a BMX track. Once there, they went into some public toilets where the appellant tried to anally penetrate A with his penis (count 11).[27]
[27] ts 243.
On yet another occasion, this time when A was about 12, A went to visit the appellant at the appellant's then place of residence. There, A participated in various card games which involved the loser getting naked. At one point, after A lost a game, the appellant sucked A's penis (count 12).[28]
[28] ts 244.
Like R, A said that the appellant sexually interfered with him on other occasions, but he was unable to give details of those incidents.[29]
[29] ts 244.
D was born towards the end of 1970. When D was 11 or 12 years old, the appellant drove him to a bush area. The appellant allowed D to drive the vehicle down a dirt track in bushland. As D did so, the appellant said something to the effect of, 'Right, I've given you something now you need to give me something'. The appellant undid D's jeans and put his hand on his penis and testicles. He then touched or masturbated D's penis over a period of time (count 13).[30]
[30] ts 244.
Several weeks later, in the vicinity of where count 13 occurred, the appellant once again touched D's penis (count 14).[31]
[31] ts 245.
In late 1982, as D's father's alcoholism worsened, D resided with the appellant at his flat.[32]
[32] ts 245.
The State alleged that 'pretty well on the first day that [D] moved in', the appellant sexually interfered with him. The appellant provided D, who was 12 years old, with alcohol.[33]
[33] ts 245 - 246.
On one occasion, the appellant told D to masturbate himself, which he did. D then took a shower, after which the appellant told D to take off his towel and get on the bed in the appellant's room. The appellant then touched D's testicles and penis (count 15).[34] The appellant then sucked D's penis (count 16), after which he told D to move into a 'sixty nine' position and give him a 'blowjob'. D refused. The appellant then again sucked D's penis (count 17) and, while he did that, the appellant grabbed D's hand, placed it on his penis, in effect forcing him to masturbate the appellant. The appellant ejaculated onto D's shoulder (count 18).[35]
[34] ts 246.
[35] ts 246.
The last incident concerning D which was the subject of charges occurred at the appellant's unit. After D consumed some cannabis and had dinner, he went to bed. A short time later, the appellant came to D's bed and asked D for anal sex.[36] D refused, but the appellant persisted, telling D that he felt that D owed him some sexual favours. The appellant then touched D's penis and testicles (count 19) and then placed his mouth on D's penis until D ejaculated (count 20).[37]
[36] ts 247.
[37] ts 247.
Shortly after this incident, D stole $20 from the appellant's wallet, gathered up some clothes and moved back with his father.[38]
[38] ts 247.
The State's case in respect of M and T was as follows. M and T's parents were long‑time drug users. Their father was a convicted armed robber. They became wards of the State when they were about 4 or 5 years old. Both boys were placed in a variety of homes, from which they moved frequently. They regularly lived on the streets.[39]
[39] ts 247 - 248.
The State alleged that, in 1989 or 1990, T introduced his brother to the appellant. It was alleged that the appellant, M and T 'hung out' together at various places around Perth.[40]
[40] ts 248.
As the appellant was acquitted on count 21, which was the only offence said to have been committed against M, it is unnecessary to set out the State's case in relation to it.
T was born in mid‑1979. According to T, on the first occasion he visited the appellant at his flat, the appellant took him into the shower and washed his back. The appellant then turned T around and touched T's penis (count 22).[41] T wrapped himself in a towel and commenced watching television. The appellant pulled the towel away from T and then touched or masturbated T's penis (count 23).[42] The appellant then kissed T on his neck and body, eventually he put his mouth over T's penis and sucked it (count 24).[43]
[41] ts 249.
[42] ts 249.
[43] ts 249.
That night, T fell asleep on the appellant's couch. When he woke up the next morning, the appellant was again sucking on his penis (count 25).[44]
[44] ts 249 - 250.
T said the appellant sexually interfered with him on other occasions, but T was unable to give particulars of the abuse. No charges were laid in relation to these incidents.[45] The State led this evidence as providing the context of the relationship and as tendency evidence.
[45] ts 250.
Eventually, T left the appellant's flat and lived on the streets. The next time T saw the appellant was in about mid‑1990 at a fast‑food restaurant. The appellant brought T some food and invited him back to his place. T accompanied the appellant to his flat, which was at a different location to where counts 22 - 25 were said to have occurred. When they got there, the appellant joined T in the shower, where he touched or masturbated T's penis (count 26).[46] T then fell asleep on the appellant's couch. The following day, the appellant told T to take a shower. Again, the appellant joined T in the shower and touched or masturbated T's penis (count 27).[47] The appellant dried T, sat next to him on the lounge room couch and sucked T's penis (count 28).[48]
[46] ts 250.
[47] ts 250.
[48] ts 250.
When T was around 13 or 14 years old, on 7 and 8 April 1993, the heavy metal band Metallica played two concerts at the Perth Entertainment Centre. T recalled that at about this time he stayed with the appellant in a single room at a backpackers' hostel in Perth.[49] While they were together in the appellant's room, the appellant touched or masturbated T's penis (count 29)[50] and then sucked T's penis (count 30).[51]
[49] ts 251 - 252.
[50] ts 252.
[51] ts 252.
Later, on another occasion, the appellant drove T to a beach. While they were in the car, the appellant masturbated T (count 31).[52]
[52] ts 252.
AL was born in mid‑1979 and, in the early 1990s, he was living on the street or at a hostel.[53]
[53] ts 252.
In August 1992, AL was in Perth with some friends when he met the appellant. The appellant grabbed AL and forcibly put him into the back seat of his car. The appellant drove AL to his flat and went inside, where AL briefly chatted with a woman AL believed to be the appellant's wife. AL took a shower. While he was doing so, the appellant joined him and then touched AL's penis (count 32).[54] AL complained to police about the appellant's conduct on 21 August 1992.[55] No charges were laid against the appellant at that time.
[54] ts 252.
[55] ts 253.
The State's case was that the appellant, at all relevant times, had a sexual interest in young boys and was prepared to act on that interest.[56] In support of this contention, the State adduced evidence pursuant to s 31A of the Evidence Act 1906 (WA), including that:[57]
1.On 30 August 1975, the appellant was convicted on his plea of guilty of one count of insulting behaviour. On 25 August 1975, the appellant picked up three boys, all aged 12 years, and drove them to the beach and later to Nollamara. On the way, he produced several pornographic books and showed them to the boys.[58]
2.On 27 September 1977, the appellant was convicted of 10 counts of unlawful and indecent dealing of a child under the age of 14 years. In July 1977, the appellant was working as a milk vendor in the northern suburbs. He employed two male children, one aged 11 and the other 13 years, as his assistants. Between 8 July 1977 and 12 August 1977, he committed 10 sexual acts on the complainants, involving nine occasions when he masturbated them and one occasion when he got the boys to masturbate him.[59]
3.On 6 March 1979, the appellant pleaded guilty to three counts of unlawful and indecent assault in respect of an 11‑year‑old boy. The appellant befriended the boy's parents and eventually asked them if he could take their son on a trip to Kalgoorlie in his truck. The boy's parents agreed to this proposal. While on this journey, the appellant fondled the boy's private parts. Over the next few weeks, the appellant took the boy on further trips, during which he again fondled the victim's genitals.[60]
4.On 8 February 1982, the appellant pleaded guilty to three counts of contributing to the neglect of a child. On 23 January 1982, the appellant went 'skinny dipping' with three boys all aged 14 years of age. Later he took them to a motel where he gave them beer. On 26 January 1982, the appellant invited them to go fishing at a riverside location. While there, the appellant and the boys again went 'skinny dipping' and again the appellant gave them beer. On 28 January 1982, the appellant and two of the 14‑year‑old boys again went skinny dipping and he again gave them beer.[61]
[56] ts 947.
[57] ts 715 - 718; exhibit 22.
[58] ts 715.
[59] ts 715.
[60] ts 716.
[61] ts 716 - 717.

Overview of the appellant's case at trial

In defence counsel's opening address to the jury, he said that the defence case was 'very simple'.[62] While the appellant did not deny knowing R, A and D, along with their father, they did not meet until 1985. The appellant admitted that he knew T and M and their mother. He also admitted that he had met AL on one occasion.[63]
[62] ts 263.
[63] ts 263.
However, the appellant denied each and every one of the charges brought against him.[64] Specifically in respect to counts 1 ‑ 20, the appellant denied that, at the relevant times, he lived in Perth as alleged.[65] The effect of his evidence was that he was living in regional Western Australia, specifically in the Pilbara and around Kalgoorlie.
[64] ts 263.
[65] ts 263.
Defence counsel relied upon a number of what were said to be prior inconsistent statements on the part of various of the complainants to impugn the complainants' testimony. The appellant also relied upon the delay by the complainants in making the allegations against him.[66]
[66] ts 948.

Ground 1 - the Longman direction

A prosecution witness, Detective McKnight, testified, in substance, that, in 2014, T made a formal complaint to the police about the offences alleged to have been committed by the appellant. Later that year, and by coincidence, A made a complaint about the appellant to the Victorian police. Further investigation led to complaints by R and D.[67] Detective McKnight searched archival records and found AL's complaint to police on 21 August 1992.[68] Enquiries revealed that around the time of this complaint the appellant was interviewed by police and denied that it had occurred. In 1993, the matter was written off.[69]
[67] ts 705 - 708.
[68] ts 709.
[69] ts 710.
It was accepted at trial that, in relation to the allegations made by both sets of brothers, the appellant was not aware of them until 2015.[70]
[70] ts 969.
Given the long delay between the alleged occurrence of the offences and when the appellant was first made aware of the allegations, his Honour was bound to give a Longman direction.[71]
[71] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79.
The direction given by the judge was as follows:[72]
[72] ts 969 - 974.
Members of the jury, I'm going to come now to my last and final direction of law. This direction is necessary in every case like this where there has been a significant delay in time between when the events the subject of the charge on the indictment are said to have occurred. In this case, in the period 1980 to 1994 and when Mr Headley was first made aware of the allegations by police in 2015.
This is not mere comment. This is a direction of law based on the experience of courts as a result of the forensic difficulty an accused person faces in all cases such as this where the State is asking you to convict the accused based on the uncorroborated direct evidence of a complainant after a long delay since the alleged offence is said to have occurred.
In a case such as this, it is the experience of the courts that it would be unsafe and dangerous to convict the accused on the uncorroborated of [sic] the complainant alone unless you have first taken full account of this warning. So you must take this direction of law into account in your deliberations. But what I am about to say to you does not mean you cannot convict the accused based on the testimony of the complainant only.
You can only do so provided you have taken into account what I'm about to say to you. You can only convict the accused as I have told you if you are satisfied beyond reasonable doubt that the alleged offence happened which requires you in this case to be satisfied beyond reasonable doubt of the truthfulness, accuracy and reliability of the complainant's evidence of the count you are considering. But you must do more than just scrutinise and evaluate the evidence of the complainant with great care in your deliberations.
You must in addition bear in mind matters I am about to tell you. As you know, in this case the alleged offences were committed many years ago. For example, in relation to count 1, the date period range is 20 July 1980 to 1 January 1983, about 35 years ago. In relation to counts 29 and 30, the date is 7 April 1993, about 23 years ago. So you are concerned about events which are alleged to have happened in the early 1980s and early 1990s.
This is 25 to 35 years ago and over a period of about 14 years. The evidence is with respect to the complainants that they were aged at the time of the alleged offending between eight and 15. And I'll just remind you, [R] turned 14 [in mid‑1983], [A] turned 14 [in mid‑1986] being the youngest, and [D] turned 14 [in late 1984].
[M] turned 12 [in mid‑1992], [T] turned 16 [in mid‑1995], and [AL] turned 13 [in mid‑1992]. As you know, the accused became aware of the allegations in this trial against him in 2015. This direction is concerned with the delay in time between when the offences allegedly occurred and now and also the delay in time between when the accused was formally made aware for the first time of the allegations by police in 2015.[73]
[73] Note that the appellant was interviewed by police for the complaint made by AL in early 1993.
The State asks you to find the evidence of the complainants whose count [sic] you are considering was honest, accurate and reliable. The complainant is, of course, the only witness to give direct evidence as to the happening of the events alleged in each count on the indictment. Whilst there has been some other evidence as to occasion and opportunity, no witnesses confirmed or corroborated the complainants' evidence as to the occurrence of the offence themselves.
Therefore, the position is as a matter of law that you must be satisfied beyond reasonable doubt about the truthfulness, reliability and accuracy of the complainant's evidence before you can find the accused guilty of the charge you are considering. Because of the crucial nature in this case of the complainants' evidence and the seriousness of the allegations made, you must scrutinise the complainants' evidence with special care.
In assessing the credibility of the complainants' evidence, you should bear in mind that the longer the delay between the happening of the alleged offence and the formal complaint to the police or authorities and the trial itself, the greater the possibility of error in the recollection of the incident which gives rise to the offence and the details of the alleged offence.
In saying this to you, I'm simply telling you what you probably already know as a matter of human experience, namely that the passage of time makes it more difficult to accurately recall a particular incident and, importantly, the details associated with the incident.
The passage of time increases the possibility of factual errors being made when a person is describing an incident which occurred sometime in the past. The human memory is fallible. The longer the delay, the more opportunity there is for error, and that is particularly so for events occurring in childhood.
It is a matter of common experience the longer you believe something to have happened, the more convinced you are that it happened. This can be so even if you are mistaken in your recollection. Even honest witnesses can be wrong in their recollection, so bear in mind the fragility of youthful recollection and the possibility the evidence might have been distorted by intervening events.
You should also take into account the personal circumstances of the complainant at the time of the alleged offence and their vulnerability, given that those circumstances, if you think there is any, and the fact of their young age. These are all matters which you should bear in mind when you are looking at and considering the credibility of the evidence of the complainants.
You must also bear in mind that the longer the delay between the alleged incident which gave rise to the charge and a formal complaint being made to police or authorities and the accused therefore becoming aware of the allegations, the more difficult it is for the evidence relating to the incident to be fully or adequately tested by the accused person.
The allegations are serious allegations of child sexual abuse and no complaint was made at the time, except for [AL].
Delay caused by the passage of time, coupled with the lack of factual precision in some aspects, in particular to contextual matters, makes it difficult for the accused person to examine in detail the circumstances of the alleged offences. Such delay places the accused at a disadvantage.
And by 'disadvantage', I suggest that the usual way of testing a complainant's evidence is very often by reference to the surrounding circumstances at the time and to details which, while not necessarily of significance in themself, may help to indicate whether the complainant is or is not truthful, accurate and reliable.
As I have said, you must therefore bear in mind the forensic disadvantage suffered by Mr Headley in not being able to challenge what the complainant says because the incidents giving rise to the charge is alleged to have occurred some years ago and he was not made aware of the allegations until 2015.
Because of the passage of time in relation to each count on the indictment before he was formally notified, it is difficult for him to be able to recall or know the surrounding circumstance so as to challenge the complainants' allegations. He has lost the opportunity in this regard to bring forward matters of defence that may, or might, have existed in order to test the complainants' evidence, and to that extent he has been forensically disadvantaged.
There is evidence of opportunity. The accused does not contest that he knew the complainants and had the complainant made known the allegation at the time, it would have, for example, been possible for the accused to prove whether or not he was in fact in the company of the complainant at the relevant time of the alleged offence.
The accused has also lost the opportunity to identify and locate potential witnesses, or to precisely account for his own whereabouts and movements at the time of the alleged offences; for example, in determining who was in the place or present in the place at the relevant time of the alleged offence, or where he was living or staying or working himself. Also, as I have said, it is more difficult for the accused to recall the events, and in particular, to do so when a specific date and time of the alleged offence is not known.
By reason of the delay, the accused has therefore been denied a chance to assemble, soon after the alleged incident, any forensic inquiry in relation to that aspect of the evidence. This includes, for example, the evidence in relation to the statement of the police officer now deceased with respect to [AL], who described in his notes at the time that the complainant was confused and contradicted his testimony, or at least his statement, and the file was not prosecuted and put away. So the accused has been disadvantaged by not being able to call that police officer to give evidence in relation to his assessment of [AL] at that point in time.
Also in relation to the evidence of the accused that he did not live in Perth until 1985, and in particular, during the period of 1982 and 1983 when the [three brothers] complainants say they first met him, he has been deprived of the opportunity of obtaining employment records and other records of location to indicate where he was in fact living.
This is also borne out by the evidence of Inspector - Detective McKnight in that he has no police records indicating where the accused was living before 1985, except in some respects by reference to offence reports. Also, a number of the witnesses who may have been able to give evidence in respect of these matters are deceased and cannot therefore be called as witnesses.
So, members of the jury, these are some of the forensic disadvantages, being the loss of a chance to adequately test the complainants' evidence and to adequately prepare a defence. If the complaints had been known to the accused soon after the alleged events, it would have been possible to explore the pertinent circumstances in detail at that time and to perhaps gather and look to call at trial evidence throwing doubt on the complainants' evidence. Those opportunities have now been lost by the delay.
The fairness of the trial has necessarily been impacted by the delay. I've drawn your attention to these circumstances, which you must take into account in your deliberations. So the passage of time is a factor so far as people's recollection of events, and memory and recollection often dims with the passage of time.
The accused's memory will inevitably have been diminished by the passage of time. There may have been relevant details about the time of the alleged incidents which he has now forgotten. It wouldn't now be possible for him to put together a precise time line of relevant details about what was happening or which concerned his movements and activities at the relevant time of the alleged offending. This results in lost opportunities to test the complainants' evidence.
The passage of time is also a specific issue which you should bear in mind when you're assessing the evidence of other witnesses and whether it has affected their recollection of details. For example, Ms Cottier.
The passage of time and years between the alleged events and the matter coming to court for hearing similarly raises the same question that you must bear in mind when you consider the truthfulness, reliability and accuracy of the complainant's recollection and whether or not you can safely rely and act upon them.
Likewise, the complainants were not able to recall certain details when they gave evidence and this has as mentioned meant that the accused has lost the opportunity to test that evidence which has been lost due to the passage of time.
This is a specific issue which you must address in considering whether or not you accept the complainant's evidence because as I have explained, the passage of time and the way the matter has unfolded in the past means that the accused has lost the means of testing certain aspects of the evidence against him.
Because of the delay and the impact of that delay which I have just described, there is a risk or danger of a miscarriage of justice arising if you convict Mr Headley without first taking into account the direction I have given you.
For this reason as a result of the delay and passage of time, it is particularly important that you scrutinise the complainant's evidence with special care and you must do so to afford the accused a fair trial. This is a direction of law and you must follow it.
In summary, you must by reason of the delay and passage of time carefully consider the complainant's evidence, carefully consider matters that might have an impact on the reliability of the complainant's evidence and what they say occurred and carefully consider the opportunities the accused has lost to test the complainant's evidence and carefully consider the opportunities the accused has lost to obtain evidence to advance his defence of the allegations made against him.
If after taking into account the matters I have drawn to your attention in this direction, you are at liberty as I have told you to act on the complainant's evidence and to convict the accused if you are satisfied beyond reasonable doubt of the truth and accuracy of it in relation to the count you are considering.
The ultimate question after taking into account this direction is are you satisfied beyond reasonable doubt of the guilt of the accused on the charge you are considering? If yes, then your duty is to convict him. If no, then your duty is to acquit him. (emphasis added)

Ground 1 - the appellant's submissions

In support of ground 1, the appellant pointed to the learned trial judge's use of the words 'should' and 'may' at various points in the direction and submitted that, by reason of that terminology, the Longman direction was not emphatic and did not convey to the jury the requirement to take into account forensic disadvantage the appellant had suffered as a result of the long delay.[74] In support of this contention, the appellant cited this court's decision in EPD v The State of Western Australia.[75]
[74] Appellant's written submissions, par 18; WAB 13.
[75] EPD v The State of Western Australia [2011] WASCA 264.
The appellant also drew attention to his Honour's use of the phrase 'special care'. The written submissions on this point are unclear. However, it appears that the appellant claims that the trial judge was merely commenting to the jury that they should take special care when assessing a complainant's evidence, rather than giving the jury an unmistakeable direction to that effect.[76]
[76] Appellant's written submissions, par 18; WAB 13.

Ground 1 - disposition

Much has been written about Longman. In RMD v The State of Western Australia,[77] Buss P (with whom Mazza JA and Beech J agreed) comprehensively set out the relevant principles which apply to a case such as the appellant's, where there has been a long delay between the alleged commission of the offences and the appellant being informed of the complaint.[78] We adopt that statement of the relevant principles without repeating it.
[77] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67.
[78] See RMD [114] ‑ [133].
When, in a case such as this one, a Longman warning is necessary, a trial judge must direct the jury to the effect that, as a result of the substantial delay, the accused has lost the chance to adequately test a complainant's evidence and a chance adequately to marshal a defence. The jury must be instructed to the effect that although it can convict solely on a complainant's evidence if satisfied beyond reasonable doubt as to its truth and accuracy, it must scrutinise the complainant's evidence with great care and take into account any facts and circumstances (including the forensic disadvantage suffered by the accused as a result of the substantial delay) which have a logical bearing on the truth and accuracy of that evidence. It is essential that the warning be given as a direction which the jury is bound to follow. A mere comment will not suffice.[79]
[79] RMD [132].
However, a Longman warning is not to be reduced to an immutable formula or a ritual incantation divorced from the facts and circumstances of the particular case. When the warning is necessary it must be crafted by reference to the facts and circumstances of the particular case with the object of ensuring a fair trial and avoiding the perceptible risk of a miscarriage of justice.[80]
[80] RMD [133].
It is trite to observe that when assessing the effect of a direction given to a jury by a trial judge, the whole of the direction is to be considered and that the language used must be considered in its context. When such an approach is adopted, there was nothing inadequate about his Honour's Longman warning.
At the outset of the summing up, his Honour gave the jury a standard direction that they must follow any direction of law that he gave them.[81]
[81] ts 925, 927.
Later, his Honour prefaced his Longman warning by reference to it being his 'last and final direction of law' in the case.[82] He referred to his instructions as a 'direction' and not a 'mere comment'.[83]
[82] ts 969.
[83] ts 969.
His Honour informed the jury that it was the experience of the courts that, as a result of such a delay, an accused suffers 'forensic difficulty' when confronted with a prosecution case based on the uncorroborated evidence of a complainant.[84]
[84] ts 969.
His Honour told the jury in clear and unmistakeable terms that it would be 'unsafe and dangerous to convict the accused' on the uncorroborated evidence of a complainant without taking into account the warning.[85]
[85] ts 969.
The learned trial judge instructed the jury that it could only convict the accused if they were satisfied beyond reasonable doubt that the alleged offence occurred and that required the jury to be satisfied to that standard 'of the truthfulness, accuracy and reliability' of the complainants.[86]
[86] ts 969.
Given the importance of the evidence of each complainant, it was entirely appropriate for his Honour to instruct the jury, as he did, that it must scrutinise each complainant's evidence with special care.[87]
[87] See, for example, ts 970, 974.
With respect to the question of forensic disadvantage caused by delay, his Honour directed the jury that they 'must also bear in mind' that the longer the delay the more difficult it is for the evidence relating to the incident to be fully or adequately tested by an accused.[88] His Honour told the jury that delay 'makes it difficult for the accused person to examine in detail the circumstances of the alleged offences. Such delay places the accused at a disadvantage'.[89]
[88] ts 971.
[89] ts 971.

The learned trial judge then explained what he meant by 'disadvantage'.[90]
[90] ts 971.
His Honour told the jury, correctly, that by reason of the delay in being informed of the complaint, it was difficult for the appellant to recall or know the surrounding circumstances so as to challenge the complainant's allegations. Further, the appellant had lost the opportunity to bring forward matters of defence that may or might have existed in order to test the complainant's evidence. His Honour told the jury that the appellant had lost the opportunity to identify and locate potential witnesses or to precisely account for his own whereabouts and movements at the time of the alleged offences.
In this regard, his Honour alerted the jury to the specific disadvantage that the appellant had in calling evidence which may have assisted him to demonstrate that he did not live in Perth until 1985.[91]
[91] ts 972 - 973.
His Honour pointed out to the jury that the police officer who investigated AL's complaint, and who had made notes to the effect that AL was confused and had made contradictory statements, was deceased at the time of the trial.[92] His Honour also highlighted to the jury Detective McKnight's evidence that there were no police records indicating where the appellant was living before 1985.[93]
[92] ts 972.
[93] ts 973.
The judge directed the jury that the appellant had been forensically disadvantaged because he had lost the chance to adequately test the complainants' evidence and adequately prepare a defence. His Honour told the jury in unequivocal terms that the fairness of the trial had necessarily been impacted by the delay which was a matter 'you must take into account in your deliberations'.[94]
[94] ts 973.
The emphasised passages in the opening paragraphs of the judge's Longman direction made it clear that what followed was a direction of law which the jury was bound to follow. The concluding paragraphs of the trial judge's Longman directions, which we have italicised above, could not be clearer in encapsulating the necessary requirements of a Longman warning with respect to the question of the forensic disadvantage caused by delay.
While it is true that his Honour, on occasions, uses the words in his Longman direction 'should' and 'may' and the phrase 'special care', his Honour's use of these words and this phrase could not, and did not, when the direction is considered as a whole, in any way detract from its clear and unmistakeable effect, namely, that what his Honour said was a binding direction of law and not a mere comment or suggestion.
When the Longman warning is considered as a whole, the propositions put by the appellant are unsustainable. Ground 1 has no reasonable prospect of succeeding. Leave to appeal on ground 1 must be refused.

Ground 2 - were the verdicts unreasonable and not supported by the evidence?

Section 30(3)(a) of the Criminal Appeals Act2004 (WA) requires this court to allow an appeal against conviction if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported. The general principles governing an appeal on this ground are well established. They were recently summarised in Krencej v The State of Western Australia[95] as follows:[96]
1.The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
2.The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
3.That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
4.In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses.
5.A doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
6.If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict.
7.The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial.
[95] Krencej v The State of Western Australia [2019] WASCA 82.
[96] Krencej [28].

The appellant's submissions

The focus of the appellant's submissions in support of ground 2 was upon his testimony and that of the brothers R, A and D. The appellant submits that, by virtue of the following, which demonstrate or suggest collusion or deliberate untruths, and by virtue of the unreliability arising from the passage of time, there must be a reasonable doubt as to the accuracy and reliability of the evidence of R, A and D:
(1)His own evidence that he was elsewhere than in Perth during the period that the offending against these complainants occurred.[97]
[97] Appellant's written submissions, pars 23 - 30; WAB 14.
(2)R admitted to:
(a)a poor recollection of events and drug and alcohol abuse;[98]
(b)lying to the police and a number of dishonesty offences, including giving a false name, fraud, and making a false report;[99]
(c)speaking to his brothers about his abuse and some details of the alleged abuse in R's redress application;[100] and
(d)knowing of the police statement A made against the appellant.[101]
(2)A admitted to past dishonesty and dishonesty offences and to discussing the appellant with D.[102]
(3)D admitted to dishonesty offences.[103]
(4)Another brother, MD, admitted that all three complainants had discussed their abuse by the appellant with him.[104]
[98] Appellant's written submissions, par 31; WAB 15; referring to ts 351, 361.
[99] Appellant's written submissions, par 32; WAB 15; referring to ts 341, 351, 361.
[100] Appellant's written submissions, pars 33 - 35; WAB 15; referring to ts 346, 348.
[101] Appellant's written submissions, par 36; WAB 15; referring to ts 348.
[102] Appellant's written submissions, pars 37 - 38; WAB 15; referring to ts 402 - 403, 409.
[103] Appellant's written submissions, par 39; WAB 15; referring to ts 491.
[104] Appellant's written submissions, par 40; WAB 16; referring to ts 647.
In essence, the appellant contended that in the period in which it is alleged he committed offences against R, A and D, he did not live in Perth. He also contended that the jury must have had a reasonable doubt as to the truthfulness and reliability of R, A and D due to 'the impact of the passage of time', their alleged collusion and the alleged 'deliberate untruths' told by them.[105]
[105] Appellant's written submissions, par 46; WAB 16.
Essentially, the appellant submits that if the convictions with respect to R, A and D are set aside, the convictions with respect to T, and presumably AL, should also be set aside, because the State relied on the convictions on the counts concerning R, A and D as propensity evidence in its case against the appellant with respect to T and AL.

The evidence at trial

As to the factual details of each count that concerned them, R, A and D gave detailed testimony which essentially reflected the allegations outlined by the prosecutor in his opening address and which we have already summarised.[106] On appeal, the appellant does not suggest otherwise.
[106] ts 275 - 277 (counts 1 - 3), 281 - 282 (counts 4 - 6), 286 - 287 (counts 7 - 9), 371 - 378 (counts 10 ‑ 12), 437 ‑ 447 (counts 13 - 20).

Evidence of the offences against the three brothers

R (counts 1 - 9)

R gave evidence of the following:
(1)In (May) 1982, on the day he and his brothers first met the appellant at the Federal Hotel in Fremantle,[107] after driving them back to their house, while in the appellant's car: the appellant
[107] ts 272.
(a)felt R's penis and testicles under his underwear for a few minutes (count 1);[108]
[108] ts 275.
(b)grabbed R's hand and placed it around the appellant's penis, which became erect, and used it to masturbate for a few minutes (count 2);[109] and
[109] ts 275.
(c)pushed R's head down, had him place the appellant's penis in his mouth and hold it for a few minutes while he sucked the appellant's penis (count 3).[110]
[110] ts 276 - 277.
(2)Around September 1982, after the appellant had taken him and A to the Royal Show and they had returned home,[111] once in the appellant's car, the appellant:
[111] ts 279.
(a)touched and then played with R's penis and testicles, masturbating him until he ejaculated (count 4);[112]
[112] ts 281.
(b)put his mouth around R's then erect penis, sucking it for a few minutes (count 5);[113] and
(c)pushed R's head down onto the appellant's erect penis and made him suck it, after which the appellant ejaculated in his mouth (count 6).[114]
(3)Around October 1982, the appellant invited him to go fishing and after driving him to the carpark at South Beach, Fremantle, the appellant:
(a)masturbated R's penis and touched his testicles (count 7);[115]
(b)pushed R's head down to, and made him suck, the appellant's penis (count 8);[116] and
(c)put R's hand on the appellant's penis and, wrapping it in the appellant's own hand, used it to masturbate for a few minutes, before ejaculating (count 9).[117]

A (counts 10 - 12)

[113] ts 281 - 282.

[114] ts 281.

[115] ts 287.

[116] ts 287.

[117] ts 286.

A gave evidence of the following:
(1)On the first occasion, when he was around 9 or 10, while in his bedroom at their house and his brothers were asleep, the appellant felt his penis over his clothes (count 10).[118]
(2)On another occasion, when he was around 10 or 11, having taken him to a BMX track in Hilton Park, in public toilets there situated, the appellant tried to anally penetrate him with his penis (count 11).[119]
(3)On a further occasion, when he was around 12 and went to visit the appellant's apartment. The appellant proposed that they play a variety of games, requiring the loser to get naked. The appellant sucked his penis while he was semi-naked on the appellant's bed (count 12).

D (counts 13 - 20)

[118] ts 371 - 372.

[119] ts 375.

D gave evidence of the following:
(1)On one occasion, when he was around 11 or 12, the appellant offered him a drive in his car and drove him to a bush area in Jandakot. Once there, the appellant touched and masturbated D's penis while D was driving the car (count 13).[120]
[120] ts 437.
(2)A week or so later, he and the appellant took another trip to the same Jandakot area. Again, the appellant permitted D to drive the appellant's car. The appellant touched D's penis (count 14) and also sucked it.[121]
[121] ts 438 - 439.
(3)Sometime before his thirteenth birthday and after he had moved into the appellant's flat in Mosman Park, after D had taken a shower, the appellant:
(a)touched D's testicles and penis, making it erect (count 15);[122]
(b)put his mouth on D's penis and sucked it for a period of time, while touching his own penis (count 16);[123] and
(c)again sucked D's penis (count 17),[124] while getting D to masturbate him before ejaculating on D's shoulder (count 18).[125]
(4)Soon after that occasion, at a different unit of the appellant, after he had gone to bed, the appellant:
(a)played with D's penis and testicles (count 19);[126] and
(b)then sucked D's penis until he ejaculated into the appellant's mouth (count 20).[127]
[122] ts 444 - 445.
[123] ts 445.
[124] ts 445 - 446.
[125] ts 443, 445.
[126] ts 447.
[127] ts 447.
The testimony of R, A and D concerning the appellant's conduct toward them was not materially shifted in cross-examination.
As to when they first met the appellant, R testified that it was in 1982 at the Federal Hotel in Fremantle with his father.[128] He recalled that after about a 'couple of hours', his father invited him back to their house for more drinks. R said that, before they left for home, the appellant bought a carton of beer.[129] Later that day, the events the subject of counts 1 ‑ 3 occurred. He reiterated, in examination‑in‑chief, that these events occurred in or around May 1982.[130]
[128] ts 271 - 272.
[129] ts 272 - 273.
[130] ts 277.
In cross‑examination on this point, R said that his first meeting with the appellant could have been April or June of 1982.[131] Defence counsel took R to a statement made by him in his application for compensation under the Redress scheme in which he said that he met the appellant in the September school holidays, around Royal Show time, in 1982.[132] In cross‑examination, R acknowledged that there was a difference between his testimony and his Redress application about when he first met the appellant, but he said that since making the Redress application he had 'gained more clarity on when we actually met [the appellant]'.[133] Later in cross‑examination, R denied that he was confused about the year he met the appellant.[134] R denied that the meeting could have occurred in 1983, 1984 or 1985 because he recalled that the offences were committed before he was, as he put it, 'incarcerated'[135] at the Longmore Detention Centre in 1984 and at Riverbank Detention Centre in 1985.[136]
[131] ts 294.
[132] ts 295.
[133] ts 296.
[134] ts 331.
[135] ts 331.
[136] ts 298.
Defence counsel took R to a number of other alleged inconsistencies between his Redress application and his testimony. For example, contrary to his testimony at trial, there is no reference in the Redress application to the appellant ever ejaculating in his mouth.[137] R accepted that there was no reference in the Redress application to the appellant's ejaculating, but explained that he felt disgusted and ashamed by what had occurred and that he had not been required to go into explicit detail in the application.[138]
[137] ts 333 - 334.
[138] ts 334.
In cross‑examination, R accepted he had a criminal history which included burglary offences, offences of dishonesty, giving a false name, fraud and making a false report to police.[139]
[139] ts 296 - 298, 341.
R also admitted that he had abused alcohol and drugs over many years.[140]
[140] See, for example, ts 343.
R agreed that he had been placed under the control of the Department for Community Welfare after being convicted of a stealing offence in August 1982 and that he remained in the Department's care until he was 18.[141] He agreed he did not inform his welfare officer that he had been abused by the appellant.[142]
[141] ts 345.
[142] ts 346.
R agreed that he had spoken to his brothers about the abuse he had allegedly suffered at the hands of the appellant and his father, but said he had not gone into detail about the things the appellant did to him.[143]
[143] ts 348; see also 363 - 364.
When it was put to him that he had made up the allegations against the appellant, R said:[144]
I have not made that up. It is true, and I swear on my mother's grave on it. It's true.
He also said that what had happened 'made me want to sometimes commit suicide and just escape … the reality of what's happened in my life'.[145]
[144] ts 351.
[145] ts 365.
A was unable to remember precisely when and where he first met the appellant. He recalled that in 1980, he moved into an address in a Perth suburb, and that he first met the appellant perhaps 6 to 12 months later.[146] Later in examination‑in‑chief, when the prosecutor raised the possibility that he may not have met the appellant until 1985, A responded that he may or may not be mistaken about this point, but he knew 'for a fact' that the appellant molested him when he was a child.[147] He was about 8 or 9 when the first incident occurred.[148] He thought that, at the time of the second incident, he 'may have been about 10 years old'.[149] At the time of the third, he was 'around about 12'.[150] A went on to say that although he believed the appellant committed offences against him when he was aged about 9 to about 12, he accepted that he may have been as old as 14 years when it first happened.[151] He could not say whether the incidents happened before or after he reached puberty.[152] In cross‑examination, A agreed that he was not 100% sure about when he met the appellant. According to A, it was 'in the 80s'.[153]
[146] ts 368 - 369.
[147] ts 381 - 382; see also 389.
[148] ts 372.
[149] ts 376.
[150] ts 378.
[151] ts 382.
[152] ts 386.
[153] ts 390.
In further cross‑examination, A agreed that he had taken a lot of drugs and consumed a lot of alcohol over the years, although over the past 10 ‑ 15 years he had not used cannabis, and at the time he gave evidence he was no longer drinking alcohol.[154] He said that he took a lot of drugs and alcohol 'to numb the pain'.[155] A accepted that he had a criminal record, including for burglary, stealing, receiving, using cannabis and driving without a licence.[156]
[154] ts 402 - 403.
[155] ts 402.
[156] ts 402 - 403.
A said that he had spoken to D about the appellant but not, as he put it, 'excessively'.[157] He agreed that he had spoken to R, and that R had told him about the Redress scheme. A explained that he registered for the scheme but did not ultimately make an application for compensation because, in effect, he found the process too emotional.[158] Ultimately, he received no money from the Redress scheme.[159]
[157] ts 402.
[158] ts 405 - 406.
[159] ts 410.
When it was put to him that the appellant never sexually abused him in any way, A replied, 'That's the biggest lie of them all, sir'.[160]
[160] ts 404.
A agreed that he did not make a formal complaint in respect of the appellant until 2014. When asked to explain the delay, he said:[161]
I could not tell the reason why - I - I - I - I don't have a reason why … It's just something that I - I - I've lived with for so long and I just - I've learned to live with it - well, maybe not learned to live with it, I've just had to live with it.
[161] ts 380.
In re‑examination, A said that he was in primary school when the appellant started to sexually interfere with him.[162]
[162] ts 408.
D testified that he first met the appellant at the National Hotel in Fremantle.[163] After that, D said that the appellant frequently visited their home.[164] In cross‑examination, D said, in substance, that he could not remember the particular date on which he first met the appellant.[165] D testified that he was 11 or 12 years of age when the appellant took him to bushland, let him drive the car and committed offences against him.[166] With respect to the offences said to have occurred at the appellant's flat, D said that he moved in with the appellant before his 13^th birthday.[167] Given that D was born in late 1970, it may be inferred from D's testimony that he recalled the appellant committing the offences against him in the period between about 1981 ‑ 1983. In cross‑examination, D maintained that he was aged between 11 and 13 when the appellant committed the offences.[168] At one point in cross‑examination, it was put to D that the appellant did not move into his flat until late 1985. Initially, D said that the proposition was 'a lie'. However, D conceded that he could be wrong about this, adding that it was a long time ago.[169]
[163] ts 435.
[164] ts 435.
[165] ts 457.
[166] ts 435 - 439.
[167] ts 440.
[168] ts 464, 468.
[169] ts 471.

In examination‑in‑chief, D was asked why he did not make a formal complaint about the appellant until September 2014. D explained that what occurred was 'very embarrassing' and that he was 'scared'.[170]
[170] ts 449 - 450.
D testified that he had informed his brothers that he had made a statement to police regarding the appellant, but he had not provided them or anyone else with a copy of the statement or disclosed the particulars or details of it to his brothers.[171]
[171] ts 450.
In cross‑examination, D agreed that he was 'an alcoholic and a drug addict'.[172] He said that he had been 'drug‑affected and alcohol‑affected because of this person [referring to the appellant]'.[173] When it was put to D that if the appellant had been abusing him when he stayed at his unit he could have told his father or his brother that he wanted to come home, D said:[174]
Yes, I could have, but I was a very scared young child and I didn't know pretty much right from wrong at that time.
[172] ts 459; see also 464.
[173] ts 459.
[174] ts 472.
D agreed that he had a criminal record which included convictions for stealing, burglary, 'lying to police', possession of drugs, giving a false name to police and cultivation of cannabis.[175]
[175] ts 473 - 474.
D said that he learned through A that R had made an application to the Redress scheme. D said that he did not make any application to that scheme.[176]
[176] ts 476.
In cross‑examination, defence counsel took D to various paragraphs of his police statement and suggested that parts of his testimony were inconsistent with parts of the statement. D accepted there were some differences, but explained:[177]
At - I do recall saying that to the police. At - at the time it was something that I tried to remember and since that statement a lot of stuff come back to my head, you know, and which actually the odd thing is different to what I, you know, said in the statement but overall what's in the statement is correct.
[177] ts 481.

Other evidence at trial

The State adduced evidence to support the State's case that, in respect of counts 1 ‑ 20, the appellant was living at various addresses in the Perth metropolitan area rather than in the Pilbara and Kalgoorlie.
The State adduced evidence from the appellant's brother, Byron John Headley, who testified to the effect that he moved to Kalgoorlie in 1981 and stayed there for many years.[178] He recalled the appellant visiting him and staying at his house for a short period of time in 1984, but other than that he had little contact with the appellant.[179]
[178] ts 596 - 598.
[179] ts 597.
Margaret Rose Cottier testified that she and her late husband owned Cottiers Tyre Service in Port Hedland. She testified that the appellant worked in that business for about six months in 1985. In cross‑examination, she agreed that the records of that business had been destroyed and that, in effect, her testimony was based upon her memory.[180] In cross‑examination it was put to Ms Cottier that the appellant worked in the business between 1982 and 1983. She replied that she thought it was more '85', but she accepted she did not have a strong recollection to that effect.[181]
[180] ts 612 - 613.
[181] ts 613.
MD, who was born in late 1964, is the older brother of R, A and D. He testified that he completed high school at the end of year 10 in 1979.[182] In 1980, he, along with his father and his brothers, moved into an address in a Perth suburb.[183] MD testified that in approximately 1981 he met the appellant at either the Newmarket Hotel or the Buffalo Club in Fremantle. At the time he was with his father and his brothers.[184] He met the appellant again two or three months later at their house where the appellant was drinking with his father.[185]
[182] ts 640.
[183] ts 640.
[184] ts 642 - 643.
[185] ts 643 - 644.
MD testified that in the period between 1980 and 1985 his father was a chronic alcoholic who was violent to him 'a few times'.[186]
[186] ts 645.
MD said that he moved out of their home in mid‑1985 and did not see the appellant again.[187]
[187] ts 644 - 645.
During cross‑examination, defence counsel put to MD that, in his police statement, he said that he first met the appellant in mid‑1982. MD agreed that this statement was different to his evidence, but said that what was in the police statement was an error on his part. MD denied defence counsel's suggestion that he first met the appellant in 1985.[188]
[188] ts 647 - 648.
Detective McKnight testified to the following effect. In early 2014, he became aware of a Redress application made by T.[189] In July 2014, he received information from police in Victoria concerning A's complaint in respect of the appellant. The two events were purely coincidental.[190] A's disclosure led to witness statements being taken from R on 3 September 2014 and D on 23 September 2014.[191]
[189] ts 705.
[190] ts 706 - 707.
[191] ts 707 - 708.
Inquiries undertaken by Detective McKnight revealed that the appellant's ex‑wife was in a nursing home and was in her late eighties. As a result of discussions he had with her doctors, a statement was not taken from her.[192]
[192] ts 708 - 709.
Detective McKnight outlined the lines of inquiry he undertook to confirm where the appellant lived in the 1980s. He said that there were no documents or records which could definitively show his address during that decade.[193]
[193] ts 711.
Detective McKnight said he had found records which showed that in July 1980, R, A and D's family moved to the HomesWest house.[194] Detective McKnight referred to an intelligence report that was prepared by the police during the course of his investigation. That report contained a number of addresses to which it was said the appellant had been linked or associated with[195] from 1985, including an address in Port Hedland.[196] However, Detective McKnight said he placed very little, if any, weight upon any of the information concerning the appellant's address in the report as it was not, as he put it, 'an evidence based document'.[197] Detective McKnight agreed that there was nothing in the intelligence report concerning where the appellant may have been living between 1980 and 1985.[198]
[194] ts 711.
[195] ts 728.
[196] ts 731.
[197] ts 732.
[198] ts 732.
With respect to the three offences to which the appellant pleaded guilty on 8 February 1982 (referred to in [43] of these reasons), Detective McKnight confirmed that the police records showed that, at the time of the offences, the appellant had no fixed place of abode.[199] In cross‑examination, Detective McKnight accepted the proposition put to him by defence counsel that for the period between 1980 to the beginning of 1985, he had not been able to find any information about whether the appellant was living in the Pilbara or in Perth.[200]
[199] ts 743 - 744.
[200] ts 748.
The appellant elected to testify in his defence.[201] He was the only witness called on his behalf at the trial.[202]
[201] ts 763.
[202] ts 897 - 898.
The appellant denied sexually interfering with any of the complainants. He maintained these denials throughout his evidence, including in cross‑examination.
The appellant said that after he was released from prison in 1979, he initially moved in with his mother at an address in Melville and then went to Port Hedland.[203] In 1980, his wife came up to live with him in Port Hedland. She remained with him there until 1981.[204] In early 1982, he came down to Perth for a short time,[205] but returned to Port Hedland where he found work with Cottiers Tyre Service. He said that he lived on site for Cottiers and worked in that business for about 12 months, until the end of 1982 or early 1983.[206] He then worked on the Dampier to Perth gas line for about three months, where he lived on site, after which he found a job, until late 1983, carting fuel. During this time he had a room in a boarding house in Port Hedland.[207]
[203] ts 763 - 764.
[204] ts 765.
[205] ts 766.
[206] ts 768, 770.
[207] ts 771.
In 1984, after taking some time off to prospect around Marble Bar, the appellant came down to Perth, purchased a Holden vehicle and travelled to Kalgoorlie where he lived for the whole of that year.[208] According to the appellant, he left Kalgoorlie and came to Perth at Christmas in 1984, where he remained thereafter.[209]
[208] ts 771 - 772.
[209] ts 772 - 773.
In 1985, he obtained employed at the Newmarket Hotel and got a flat in Mosman Park.[210]
[210] ts 773.
The appellant testified that sometime in 1985, while at the Federal Hotel in Fremantle, he met R, D, A and their father. He said that when he was introduced to the boys, their father said, '[R] he's 17, [D] he's 14 and [A] he's about 12'.[211]
[211] ts 773.
The appellant said that he occasionally went over to the father's house to drink with him.[212]
[212] ts 774.
With respect to the allegations made by R, the appellant denied owning a vehicle with a two‑way radio in it. He also denied taking R 'anywhere' in his car and, in particular, he denied that he took R fishing.[213]
[213] ts 774 - 775.
In relation to the allegations made by A, the appellant said that he never had A in his car without his father and brothers and that he did not know the BMX track A referred to in his evidence.[214]
[214] ts 778.
In relation to the allegations made by D, the appellant denied that he lived with the appellant in his apartment in Mosman Park.[215] He also denied allowing D to drive his car.[216]
[215] ts 780.
[216] ts 781.
In cross‑examination, the prosecutor asked him about the offences for which he had been convicted in 1975, 1977, 1979 and 1982. Despite his pleas of guilty in all of these matters, during cross‑examination, the appellant, in substance, denied the conduct[217] and denied that he had a sexual interest in children.[218]
[217] ts 780.
[218] ts 800.
In cross‑examination, the appellant said that he did not see much of R, A and D.[219] The appellant agreed that even though he did not have much contact with the boys, he 'bailed out' both R and D.[220]
[219] ts 814.
[220] ts 815.
In cross‑examination, the appellant said that he came to know that R, A and D had been molested by their father, but the appellant did not distance himself from the family.[221]
[221] ts 830 - 834.
The appellant agreed in cross‑examination that he went to the Royal Show with A and his father. The appellant thought this occurred in 1985.[222]
[222] ts 837.
The appellant agreed that he drove D to an outer Perth suburb. He agreed that he took a short cut between streets through a bush area.[223]
[223] ts 851 - 852.

Ground 2 - disposition

The testimony of R, A and D as to the circumstances of each count which concerned them was uncorroborated. In respect of each count, unless the jury was satisfied beyond reasonable doubt that the complainant was an honest and reliable witness and that the appellant's denial was untrue, the appellant was entitled to be acquitted. Thus, the jury's assessment of the credibility and reliability of the relevant complainant and the appellant was crucial.
At the outset, it must be recognised that the jury had the considerable advantage that this court does not have of seeing and hearing the witnesses.
Insofar as the record in the court below reveals, each of R, A and D gave detailed and clear evidence of each count allegedly committed by the appellant. That account was not materially shifted under cross‑examination by defence counsel.
On appeal, the appellant did not suggest, in his submissions, that anything in the contents of the complainants' accounts of, or manner in which they described, the occurrences the subject of the charges tended to undermine the credibility of those accounts. On our review of the record, we see nothing of that kind.
The propensity evidence adduced by the State showed that in a period approximate to the relevant time when the appellant allegedly committed the offences against R, A and D, he had a sexual interest in boys about their age, and had acted on it. This evidence strongly supported the State's case. The appellant's denials of the many offences that constituted propensity evidence and that he had a sexual interest in boys are incapable of acceptance and were very damaging to his overall credibility.
Subject to the question of alibi, which we will discuss below, the appellant's friendship with the boys' father enabled him to have time alone with each of R, A and D. Each boy was vulnerable by virtue of their father's inability to properly care for them.
The offending in respect of each of R and D was materially similar. Each of R and D alleged that the appellant sought some sexual favour from him as a quid pro quo for a benefit the appellant had given him. In the case of R, the appellant sought sexual favours for taking R to the Royal Show. In D's case, the demand was made after the appellant allowed D to drive a motor vehicle and later when D went to stay with him.
There is no evidence, beyond conjecture, to show that R, A and D colluded against the appellant to falsely accuse him of the offences. The fact that there was some discussion between R, A and D, after their complaints were made to the police, is hardly surprising given their familial relationship. In any event, on the evidence, to the extent that there was conversation about the allegations, it was not detailed.
Similarly, there is no evidence to support the notion that each complainant was motivated by the prospect of compensation to falsely accuse the appellant. R was the only person who sought compensation from the Redress scheme, and he was paid out before the trial. Further, and in any event, there was no evidence that compensation from the Redress scheme was dependent upon someone being convicted of an offence. A and D testified that they had not made any application to the Redress scheme.
Undoubtedly, there was a long delay in each of R, A and D reporting their allegations about the appellant to the police. The delay is a matter plainly relevant to an assessment of their credibility. It is a factor which may, depending on the circumstances, indicate that the allegations are untrue, or it may give rise to a reasonable doubt about their truth.
However, as to each complainant, the delay is readily explicable and does not adversely affect their credibility.
At the time of the commission of each offence, each complainant was young and vulnerable. Their only surviving parent, their father, was unable to properly care for them. Moreover, as their evidence revealed, each was embarrassed, afraid and humiliated by what had occurred, and found it difficult to give an account of what happened to them. As R said, he did not make a complaint because of 'the shame of it … [b]ecause it's disgusting [and] degrading'.[224]
[224] ts 289.
Each of R and D admitted that their testimony at trial was, to some extent, inconsistent with previous statements they made. Having regard to the nature of the inconsistencies, in our opinion it was open to the jury to conclude that any such inconsistencies were insignificant, or satisfactorily explained by the relevant complainant.
It is true, as the appellant points out, that each of R, A and D has a criminal record, and each has engaged in problematic alcohol and drug use. R, A and D openly admitted their criminal history and alcohol and drug abuse. These were matters that were relevant to the jury's evaluation of their credibility. Nevertheless, it remained open to the jury to find their evidence credible despite these factors.
Of course, the evidence of each of R, A and D cannot be considered in isolation. It must be assessed and weighed having regard to all the evidence and, in particular, the appellant's evidence. It cannot be overlooked that on his oath, the appellant denied committing all of the offences. In doing so, he alleged, in substance, an alibi to the effect that between 1979 and 1984, he could not have committed the offences because he did not live in Perth.
In assessing R, A and D's testimony and that of the appellant, we have borne firmly in mind the Longman principles and, in particular, the forensic disadvantage that the appellant has undoubtedly suffered as a result of the very long delay between the alleged offences and when he was first informed of them. An example of that forensic disadvantage is the absence of records which may have corroborated his testimony that he lived in the Pilbara and Kalgoorlie in the relevant period.
Further, it must also be kept firmly in mind that the onus was on the State to disprove the alibi. Even if the State disproved the alibi, the giving of a false alibi does not by itself establish guilt.
R testified that he first met the appellant in 1982, and that the offences against him were committed after that date. R denied that he met the appellant later, and said that the offences were committed before he was placed in juvenile detention facilities in 1984 and 1985.
The effect of D's evidence was that the offences committed against him by the appellant were committed between 1981 and 1983 when he was aged between 11 and 13 years.
A, who was born in mid‑1972, showed less certainty as to when the offences against him were committed. He initially testified that he was between about 9 and about 12 years old when the offences against him occurred (that is, between about mid‑1981 and about mid‑1984), but he accepted that he may have been older.
The appellant gave detailed evidence as to his whereabouts between 1979 and 1984. According to that evidence, he did not live in the Perth metropolitan area during that period.
In our opinion, it was well open to the jury to conclude that the appellant was not a truthful witness and to reject his evidence, including his alibi evidence. We have already referred to the appellant's denials of the propensity evidence and his sexual interest in boys and how damaging those denials were to his credibility.
The evidence of Ms Cottier as to when the appellant worked at Cottier's Tyre Service in Port Hedland contradicted the testimony of the appellant. However, we acknowledge the apparent certainty that she exhibited in her examination‑in‑chief was, to some extent, eroded by her answers in cross‑examination. The evidence of the appellant's brother tended to suggest that the appellant's presence in Kalgoorlie in 1984 was more temporary than permanent.
The police intelligence report to the effect that from 1985 the appellant lived at an address in Port Hedland undermined the appellant's alibi, but we have given no weight to this evidence, having regard to the evidence of Detective McKnight on this point.
Finally, the evidence of MD suggests that the appellant was living in the Perth metropolitan area in the early 1980s. It will be recalled that he testified that he first met the appellant in 1981 while in the company of his father and his brothers. Further, he recalled that, on occasions, up until he moved out of home in 1985, the appellant continued to visit and, on occasion, to drink with his father.
In our opinion, having regard to all of the evidence, and to the jury's advantage in seeing and hearing the witnesses, it was well open to the jury, on each count, to accept the evidence of the relevant complainant as being both honest and reliable, and reject the appellant's denial, and thus to deliver a verdict of guilty.
Our analysis of the trial record does not leave us with a reasonable doubt as to the appellant's guilt on any of the charges on which the jury delivered a verdict of guilty. In our opinion, there is no significant possibility that an innocent person has been convicted. It would not be dangerous for the verdicts to stand.
As the guilty verdicts with respect to R, A and D must stand, there is no basis upon which to set aside the guilty verdicts in respect of counts 22 ‑ 32 concerning T and AL.
Ground 2 has no reasonable prospect of succeeding. Leave to appeal must be refused.

Application for an adjournment

On 23 April 2019 the appellant filed an application dated 14 April 2019 which sought:
An extension of time for me to subpoena evidence [and] to get legal advice on some of the trial judge's decisions.

The affidavit sworn by the appellant in support of the application on 18 April 2019 was brief and stated that the appellant required an adjournment of three months to send subpoenas to 'various people' in order to 'obtain evidence against the prosecution and the police'. He also deposed to wanting 'to get advice about some of the decisions of the trial judge'.
At the appeal hearing the appellant confirmed that he wished to adjourn the proceedings.[225] The application was opposed by the respondent. When the appellant was invited to make oral submissions in support of his application to adjourn the proceedings, he alleged from the bar table that Detective McKnight had altered the police database by deleting a record that showed that the appellant lived in South Hedland at some point in time, presumably during the period in which he allegedly committed offences against R, A and D.[226] Detective McKnight testified at trial and was cross-examined about the police records concerning the appellant's addresses. It was not suggested in cross-examination that Detective McKnight had altered the police database. There is no evidence before this court which supports this allegation.
[225] ts 61.
[226] ts 61 - 62.
The appellant did not identify the decisions of the trial judge about which he wished to obtain legal advice.
This court is mindful of the difficulties that may be encountered by in‑person litigants who are also prisoners and does, where it is in the interests of justice to do so, make allowances for such difficulties. Sometimes this will require the adjournment of the proceedings.
However, in our opinion, in this case it was not in the interests of justice for the appeal to be adjourned. As can be readily seen from the application and the appellant's submission, the appellant did not specify the names of the people whom he wished to subpoena or what evidence they might give which would assist his case. As we just observed, the appellant failed to identify what decisions of the trial judge upon which he required legal advice. There is no issue indicated by the appellant which would give this court any indication that to proceed with the appeal would be in any way unfair to the appellant.
This conclusion is reinforced by the appellant's conduct in this appeal. The appeal notice was filed on 7 April 2017. The appellant's case (which appears to have been prepared with the assistance of a lawyer) was not filed until 22 September 2017, and only after a springing order was made. After the respondent filed and served its respondent's answer, the appellant sought leave to file an amended appellant's case. On 21 November 2017, leave was granted for him to do so by 22 January 2018. It appears from the transcript of proceedings on 21 November 2017 that the appellant wished to amend his appellant's case to include allegations of misconduct against the trial prosecutor and the 'investigating officer'.[227]
[227] Appeal ts 3.
Despite the appellant being given ample opportunity to file an amended appellant's case, he did not do so. Eventually an order was made that the appeal proceed on the basis of the appellant's case filed on 22 September 2017, which is what occurred.
Over the course of the proceedings the appellant was given leave to issue subpoenas, including to Detective McKnight, to produce documents. Documents were produced to the court and leave was given to the appellant to inspect them. The appellant has not sought leave to adduce any of them as evidence in this appeal.
The appellant has been given great latitude in the conduct of this appeal. Every opportunity was given to him to amend his appellant's case, subpoena documents and produce them.
The interests of justice include the timely disposal of appeal proceedings. Further delay in the hearing and the resolution of this appeal would be futile and contrary to those interests. It is for these reasons that the application to adjourn was refused.

Some other matters

At the hearing of the appeal, when the appellant was asked if he wished to make oral submissions in support of his grounds of appeal he proceeded to make some allegations which were not raised in the grounds of appeal namely:
1.The trial judge was biased against him because he allowed the jury to have a copy of the trial transcript that was 'full of errors';[228] and
2.That his trial counsel refused to call as a defence witness, AC, who was M and T's welfare officer.[229]
[228] Appeal ts 64.
[229] Appeal ts 64.
There is no merit in either of these allegations. A transcript of the testimony of all the witnesses called at the trial was provided to the jury by the trial judge with the consent of both counsel. It was provided as an aid to the jury's task of properly considering and assessing the evidence. An appropriate direction as to the use of the transcript was given to the jury by the trial judge.[230]
[230] ts 928 and 948 - 949.
There is no evidence to support the assertion that the transcript was 'full of errors'. His Honour directed the jury that if it thought that there was an error in the transcript they would act on the evidence as they understood it to be.
There is no basis to the allegation of bias or, for that matter, perceived bias by the trial judge as a result of the provision of the transcript. His Honour had the power to provide the jury with the transcript (see s 110 of the Criminal Procedure Act2004 (WA)).
As to any miscarriage of justice as a result of the failure to call AC, the appellant has not said what evidence AC would have given if called to testify.
On 31 May 2019, the court received for filing two applications from the appellant. One was for the appellant to 'receive a copy of the DVD/CD that the Court holds', the other was for leave to issue a number of subpoenas to produce documents. The applications have not been accepted for filing. The nature of the DVD/CD sought by the appellant was not identified. A search of this Court's file does not reveal that it has any DVD/CD. The proposed subpoenas to produce documents should not be issued in light of the decision not to adjourn the appeal. Moreover, it appears some of the documents the subject of the proposed subpoenas have already been produced and inspected by the appellant as a consequence of subpoenas issued by him earlier in the proceedings.
On 11 July 2019, the Court of Appeal office received a bundle of documents sent to it by the appellant. There was no application to adduce these documents as evidence in the appeal, and leave was not granted to allow the appellant to file the documents. The documents were not accepted for filing. We have viewed a copy of this bundle of documents. The documents in the bundle, which could only be relevant to ground 2, include documents generally relevant to the police investigation into the complaints of M, T, A, R and AL against the appellant, and also include some comments by the appellant on some documents in the bundle. Each of the documents are either irrelevant or do not assist the appellant.

Orders and conclusion

There is no merit in the appellant's appeal against conviction. The orders we would make are:
1.Leave to appeal is refused on grounds 1 and 2.
2.The appeal is dismissed.

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