HVD v The State of Western Australia [No 2] - [2024] WASCA 118

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   HVD -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2024] WASCA 118
CORAM:   MITCHELL JA
HALL JA
VANDONGEN JA

HEARD:   15 & 16 APRIL 2024
DELIVERED          :   30 SEPTEMBER 2024
FILE NO/S:   CACR 67 of 2023
BETWEEN:   HVD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   PRIOR DCJ
File Number            :   IND 784 of 2019

Catchwords:

Criminal law - Appeal against conviction - Child sexual offences - Adult sexual offences - Two complainants - Whether verdicts relating to one of the complainants are unreasonable or unsupported by the evidence - Whether trial judge erred in his directions regarding identification - Whether it was necessary to give a direction that uncharged acts had to be proven beyond reasonable doubt - Whether relationship evidence admitted contrary to trial judge's ruling - Whether motive or sexual interest had to be proved beyond reasonable doubt - Whether miscarriage of justice occasioned by incompetence of counsel - Whether appellant coerced into not giving evidence or not adequately informed about consequences of that decision - Whether counsel's decision not to call other witnesses capable of rational explanation - Application to adduce new evidence on appeal - Whether new evidence establishes that appellant is innocent or raises such a doubt that court is satisfied he should not have been convicted - Whether prosecutor failed to call all material witnesses - Whether prosecutor used uncharged acts evidence in impermissible way

Legislation:

Criminal Code (WA), s 320(4), s 321(2), s 321(4), s 323, s 326

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	R G Wilson

Solicitors:

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

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

AJE v The State of Western Australia [2012] WASCA 185; (2012) 225 A Crim R 242
Beamish v The Queen [2005] WASCA 62
Craig v The Queen [2018] HCA 13; (2018) 264 CLR 202
Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651
Director of Public Prosecutions (Vic) v Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644
DPJB v The State of Western Australia [2010] WASCA 12
Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
Huggins v The State of Western Australia [2018] WASCA 61
ISN v The State of Western Australia [No 2] [2021] WASCA 112
Jago v The State of Western Australia [2022] WASCA 2
KMB v The State of Western Australia [2010] WASCA 212
Lang v The Queen [2023] HCA 29; (2023) ALJR 758
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
Morgan v The State of Western Australia [No 2] [2019] WASCA 185
NTH v The State of Western Australia [2020] WASCA 22
Pell v The Queen [2020] HCA 12; (2020) 68 CLR 123
R v Apostolides [1984] HCA 38; (1984) 154 CLR 563
R v Birks (1990) 19 NSWLR 677
Sturniolo v The State of Western Australia [2023] WASCA 147
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Weglewski v The State of Western Australia [2020] WASCA 28

Table of Contents

The charges

The prosecution case

The defence case

Ruling regarding uncharged acts

Prosecution evidence

ZY's evidence

ZY's cross-examination

ZY's re-examination

WX's evidence

WX's cross‑examination

HN's evidence

Katie Minor's evidence

Defence evidence

Trial judge's directions

Grounds of appeal

Ground 1 - relevant legal principles

Ground 1 - appellant's submissions

Ground 1 - respondent's submissions

Ground 1 - the merits

Ground 2 - relevant legal principles

Ground 2 - appellant's submissions

Ground 2 - respondent's submissions

Ground 2 - the merits

Ground 3 - the merits

Ground 4 - appellant's submissions

Ground 4 - respondent's submissions

Ground 4 - the merits

Ground 5 - the merits

Ground 6 - relevant legal principles

Ground 6 - the additional evidence

The appellant's evidence

LA's evidence

AE's evidence

CB's evidence

Rosanna Brun's evidence

Jorge Diaz's evidence

Carlos Herrara's evidence

Clementina (Tina) Baldwin's evidence

Michael Perrella's evidence

Ground 6 - appellant's submissions

Ground 6 - respondent's submissions

Ground 6 - the merits

Ground 7 - the merits

Conclusion

Orders

JUDGMENT OF THE COURT:

The appellant was convicted after trial of eight sexual offences, of which six were child sexual offences. The offences were alleged to have occurred over an approximately 10‑year period between 2007 and 2016.
The complainant in respect of counts 1 and 8 was the appellant's daughter, ZY. ZY was aged 9 or 10 years old at the time of count 1 and 18 years old at the time of count 8. It was also alleged that there had been other sexual conduct in the intervening period, which occurred when the family was living overseas and in Melbourne. That other conduct was relied on to put count 8 into context and to explain the nature of the relationship between the appellant and ZY.
The complainant in respect of counts 2 ‑ 7 was a female relative, WX. WX and her family migrated to Australia in 2007 and initially resided with the appellant and his family. WX was aged between 11 and 16 years old at the time of these counts.
On 30 April 2021 the appellant was sentenced to a total effective sentence of 8 years 6 months' imprisonment, backdated to 26 March 2021. An order was made that he be eligible for parole.
The appellant seeks leave to appeal against his conviction. There are seven grounds of appeal. Ground 1 alleges that the verdicts on counts 1 and 8 are unreasonable and cannot be supported on the evidence. Ground 2 alleges that the trial judge erred in his directions regarding identification. Ground 3 alleges that the convictions on counts 1 and 8 should be set aside because the trial judge made an error in his directions to the jury regarding the relationship evidence. Ground 4 alleges that the convictions for counts 1 and 8 should be set aside because the trial judge made an error of law in allowing inadmissible evidence of some uncharged acts to be admitted. Ground 5 alleges that the convictions on all counts should be set aside because the trial judge made an error in failing to direct the jury that the State was required to prove motive beyond reasonable doubt. Ground 6 alleges that fresh or new evidence establishes significant inconsistencies in the accounts given by the complainants, establishes alibis for two of the charges and an absence of opportunity for three other charges, and that this raises reasonable doubt as to the appellant's guilt. The appellant asserts that, to the extent this evidence is new and not fresh, it was not adduced due to the incompetence of his counsel. Ground 7 alleges that there was a miscarriage of justice because the prosecutor failed to call all material witnesses, that evidence of uncharged acts was led which was not within the terms of a ruling of the trial judge and that evidence of uncharged acts was used in an unapproved way.
In support of ground 6 the appellant filed an application seeking to adduce additional evidence on the appeal. That application related to affidavits from himself, his wife, his two sons, a statutory declaration from Rosanna Jarava Brun, a woman who lived with the family between 3 November 2006 and 30 November 2007, an affidavit from Jorge Alvarino Diaz, a man who lived with the family from January to November 2007 and a statutory declaration from Carlos Poveda Herrera, another man who lived with the family from December 2010 to March 2011. At the appeal hearing the appellant applied to adduce a further affidavit, from Clementina (Tina) Baldwin, a friend of the family.
The respondent also applied to adduce additional evidence, namely an affidavit from Mr Michael Perrella, the appellant's trial counsel.
The affidavits and statutory declarations were tendered at the appeal hearing. The appellant, his wife, Ms Baldwin and Mr Perrella were called to give oral evidence and were cross‑examined on their affidavits. This evidence was received provisionally with a ruling on the applications and any objections to the evidence to be dealt with in these reasons.

The appellant filed the notice of appeal on 19 May 2023. That was approximately two years out of time and, accordingly, the appellant has also filed an application seeking an extension of time.
In an affidavit in support of his application for an extension, the appellant states that in the months following his conviction, he contacted several lawyers with a view to commencing an appeal. In May 2021, legal aid was granted for an opinion as to the merits of an appeal. In the same month, the appellant submitted notices of appeal against his conviction and sentence. Those notices were not accepted for filing because they did not include details for service of the appellant's legal representative.
After receiving an adverse opinion as to his prospects of appealing, the appellant then sought alternative legal representation. This was made difficult as the appellant was not granted legal aid for an appeal, and he did not have the financial resources to fund an appeal himself. He later obtained a favourable second opinion from another lawyer but did not have the resources to meet that lawyer's expected fees.
On the basis of the second opinion, the appellant again sought legal aid funding, but this was refused on 10 October 2022. Following this, the appellant decided to represent himself on the appeal.
Though the delay is significant, it is apparent that the appellant has made considerable efforts to pursue his appeal, despite the difficulties he faces due to being imprisoned. Though it is arguable that some of the delay could have been avoided, on balance we are satisfied that it is appropriate to grant the appellant an extension of time.
For the reasons that follow, the applications to adduce additional evidence should be refused, leave to appeal in respect of each of the grounds of appeal should be refused and the appeal against conviction should be dismissed.
The appellant also made an application for bail at the hearing of the appeal. The appellant essentially relied on the strength of his grounds as providing exceptional reasons why he should not be kept in custody pending determination of the appeal.[1] At the hearing we indicated that we were not, at that stage, satisfied that there were exceptional reasons for granting bail. We reserved our decision on the bail application to allow for the prospect that our view as to that matter might change as these reasons were prepared.[2] Given the outcome of the appeal, it is appropriate to formally dismiss the bail application.
[1] See Bail Act 1982 (WA), sch 1, pt C, cl 4A.
[2] Appeal ts 196.

The charges

The appellant was charged on indictment with the following counts:[3]
1.On a date unknown in the year 2007 at Manning, the appellant indecently dealt with ZY, a child under the age of 13 years, by touching her genital area, contrary to s 320(4) of the Criminal Code (WA) (Code).
2.On a date unknown between 23 August 2007 and 27 August 2007 at Manning, the appellant indecently dealt with WX, a child under the age of 13 years, by touching her genital area, contrary to s 320(4) of the Code.
3.On a date unknown between 10 February 2009 and 22 February 2011 in the Perth metropolitan area, the appellant indecently dealt with WX, a child of or over the age of 13 years and under the age of 16 years, by placing her hand on his penis, contrary to s 321(4) of the Code.
4.On a date unknown between 9 February 2011 and 22 February 2011 at Piara Waters, the appellant indecently dealt with WX, a child of or over the age of 13 years and under the age of 16 years, by exposing his penis in her presence, contrary to s 321(4) of the Code.
5.On the same date and at the same place as count 4, the appellant indecently dealt with WX, a child of or over the age of 13 years and under the age of 16 years, by touching her vagina, contrary to s 321(4) of the Code.
6.On a further date unknown between 9 February 2011 and 22 February 2011 at Piara Waters, the appellant sexually penetrated WX, a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his finger, contrary to s 321(2) of the Code.
7.On a further date unknown between 10 February 2011 and 26 July 2012 at Piara Waters, the appellant unlawfully and indecently assaulted WX, by touching her vagina, contrary to s 323 of the Code.
8.On 3 July 2016 at Atwell, the appellant sexually penetrated ZY without her consent, by penetrating her vagina with his penis, and that (the appellant) was in a family and domestic relationship with ZY, contrary to s 326 of the Code.
[3] ts 38 - 39, 283.

The prosecution case

ZY was born in October 1997, in Colombia. She is the biological daughter of the appellant.[4]
[4] ts 59.
The appellant is an engineer. In 2006 he obtained work with a mining company in Western Australia. In November 2006, the family emigrated to Australia. The family consisted of the appellant, his wife, ZY and her two younger brothers. After their arrival, the family lived at a house in Manning.[5]
[5] ts 59.
The prosecution case was that on an evening in 2007, the appellant climbed into bed with ZY to soothe her fear of the dark and cuddled her from behind in a spooning position. The appellant reached his right hand around ZY, put it underneath her pyjama pants and touched her vagina area for a few seconds. At that time, ZY was sharing a bunkbed with one of her younger brothers. ZY slept on the top bunk and her brother slept on the bottom bunk. This conduct is the subject of count 1 on the indictment.[6]
[6] ts 59 - 60.
WX was born in February 1996, in Colombia. WX's mother and the appellant are cousins.[7]
[7] ts 63.
In 2007, when WX was 11 years old, she moved to Australia with her family. When the family first arrived in Australia, they stayed with the appellant and his family at their house in Manning.[8]
[8] ts 63.
The prosecution case was that, shortly after WX and her family arrived, ZY had her first Holy Communion on 25 August 2007. There were a number of people at the house on that weekend, assisting with preparations. WX was cleaning ZY's room, whilst ZY was helping to clean her brother's room. WX was wearing pyjama shorts and was bending down. The appellant entered the room, grabbed WX from behind and lifted her to a standing position. WX screamed out in surprise. The appellant then rubbed the palm of his hand over WX's genital area a couple of times on the outside of her pyjama shorts, before letting go. WX's father came into the room to see why she had screamed, and the appellant made an excuse. This conduct is the subject of count 2 on the indictment. [9]
[9] ts 63.
WX and her family moved out to live in their own home.[10]
[10] ts 63.
In 2008, the appellant and his family moved to Indonesia for reasons related to the appellant's work. Whilst living there the appellant came to ZY's bedroom one night to comfort her because she remained afraid of the dark. He got in to bed and lay behind ZY. He reached around and touched her vagina with his hand. This was one of the uncharged acts relied on as relationship evidence. The prosecution case was that this type of conduct occurred about every couple of months during the period that the family lived in Indonesia.[11]
[11] ts 60.
In early 2009, the appellant and his family returned to Western Australia. They acquired a house in Piara Waters and lived there from 2009 to 2012. As WX and ZY were of a similar age, they were friendly and WX would visit the Piara Waters house on occasions for a sleepover.[12]
[12] ts 61.
On a date between 2009 and 2011, ZY, WX and the appellant were in the appellant's car, collecting pizza from a pizza shop. WX was in the front passenger seat and ZY was in the backseat. The appellant was in the driver's seat. ZY went into the store to get the pizzas whilst the appellant and WX remained in the car. The appellant leant over, took WX's hand and placed it on his penis. The appellant then moved WX's hand up and down for a short time, before stopping when he saw ZY returning to the car. This conduct is the subject of count 3 on the indictment. [13]
[13] ts 64.
On another later date in February 2011, WX was at the Piara Waters house for a sleepover. WX and ZY were lying on ZY's bed, watching a movie together. ZY left the room to go to the toilet. While ZY was out of the room, the appellant came in and locked the door. The appellant pulled his pyjama shorts down to his ankles, exposing his erect penis. The appellant then got onto the bed, pulled down WX's pyjama shorts and her underwear, lay on top of her and rubbed her vagina. This conduct is the subject of counts 4 and 5 on the indictment. [14]
[14] ts 64 - 65.
The next morning, WX was woken by a feeling of pain in her vagina. The appellant was beside her. He had pushed her pyjama shorts to one side and had one or more of his fingers in her vagina. The appellant gave a little laugh and left the room. This conduct is the subject of count 6 on the indictment. [15]
[15] ts 65.
On another date in 2011 or 2012, WX was again at the appellant's house in Piara Waters for a sleepover. On this occasion, the appellant got into bed with WX and ZY. While in the bed, the appellant rubbed WX's vagina, underneath her clothing. This conduct is the subject of count 7 on the indictment. [16]
[16] ts 65.
In 2012, the appellant and his family moved to Santiago, Chile. At this time ZY had a bedroom on the top floor of the house where they lived. The sexual abuse of ZY had continued over the preceding years, but ZY could not recall any particular incidents until she moved to Chile, when the abuse increased in intensity and frequency. On one occasion the appellant came to ZY's bedroom and got into bed with her. She pretended to be asleep. The appellant put his penis into her vagina. He had previously penetrated her vagina with a finger, but this was the first time he had used his penis. This is another of the uncharged acts relied on as relationship evidence.[17]
[17] ts 61.
In about 2014, the family returned to live in Australia. They initially lived in Melbourne. The sexual abuse continued at this time and occurred in the house where they lived, in hotels and once in a caravan during a family holiday. Again, these are uncharged acts relied on as relationship evidence.[18]
[18] ts 61 - 62.
The family moved back to Western Australia in 2016 and lived at a house in Atwell. By this time ZY was 18 years old and still living at home.[19]
[19] ts 62.
On 2 July 2016, ZY and her family went to the airport to see off a family member. After coming back from the airport, ZY went to sleep at about 1.00 am. She woke up and felt the appellant's erect penis against her back. The appellant then moved ZY's pyjama shorts to one side and penetrated her vagina with his penis. ZY kept her eyes closed and pretended to be asleep. This was a tactic that she had used on other occasions. When the appellant finished, he left the room. This conduct relates to count 8 on the indictment.[20]
[20] ts 62.
ZY tried to go back to sleep but had difficulty breathing. At about 3.00 am she sent a text message to her then boyfriend, in which she vaguely hinted at what the appellant had done to her. When she saw her boyfriend a couple of days later, she told him that the appellant had been sexually abusing her. She then did some research online and attended at the Sexual Assault Resource Centre. She told her mother, who was not supportive. Arrangements were made for ZY to live with family friends. When circumstances changed and she had to return to the family home she found that a lock had been installed on her bedroom door. No further abuse occurred after that time and ZY moved out permanently about a year later.[21]
[21] ts 62 - 63.

In 2017, WX made a complaint to the police. WX nominated ZY as a potential witness, and this led to the police contacting her. Following that initial contact, ZY disclosed to police what had occurred to her.[22]
[22] ts 65.

The defence case

The defence case was that the appellant had not committed any of the alleged sexual acts. The defence position was that either those acts had not occurred at all, or the complainants were mistaken as to who had committed them.
The defence case was that ZY had told her boyfriend in 2016 that she was unsure of her memories. She had also recorded in her diary that she had doubts about her memories and was not sure if what she thought had happened was true or not. This uncertainty was said to be supported by the fact that ZY had not initiated contact with the police. The suggestion was that ZY's memory was unreliable. It was also suggested that, even if the sexual acts had occurred, ZY's evidence as to the identity of the perpetrator was unreliable and there were other people who could be responsible for the alleged sexual acts.[23]
[23] ts 73 - 74.
The defence case in respect of WX was that she only reported the abuse after spending a lengthy time in hospital, seeing a psychologist and speaking to ZY. The implication was that WX's account might be genuinely believed by her but was not reliable because it could be the result of suggestions made to her by others.[24]
[24] ts 74.
The appellant made admissions as to some facts that were not in dispute. Those facts included: that the appellant is the biological father of ZY; that she was born in October 1997 in Colombia; that the family first entered Australia in November 2006; that WX's mother is the appellant's cousin; that WX arrived in Australia with her father on 24 August 2007; that ZY had her first Holy Communion on 25 August 2007; that the family resided in Indonesia in 2008; that the family returned to Australia on 18 January 2009; that the appellant and his wife purchased the house at Piara Waters on 9 February 2009 and resided at that house from 15 March 2009; that the family resided in Chile between 26 July 2012 and 20 January 2014; that they returned to Australia on 20 January 2014 and resided in Melbourne; that in July 2016 the family resided at the house in Atwell; and that WX's mother flew to Colombia on 3 July 2016.[25]
[25] ts 76 - 78.

Ruling regarding uncharged acts

On the morning of the trial, prior to empanelment of the jury, defence counsel noted that in ZY's witness statement she referred to 'five discrete episodes of alleged offending at five different locations, all of them outside Western Australia'. Counsel said his concern was as to what use was to be made of these uncharged acts. He said he understood that the evidence was not being led as propensity evidence but as context evidence. He said that he had 'no issue with that'.[26]
[26] ts 31.
Counsel then said his concern was that the detail of the evidence of the uncharged acts could cause the jury to form a view that it 'goes beyond context'. The implication was that though the evidence may be admissible as context evidence, there was a risk that it would be misused by the jury if it was led in the detail referred to in the witness statement.[27] Counsel said:[28]
There's no issue with evidence being led of alleged abuse continuing at different places where they lived. My concern is the details to be led in relation to those discrete acts and I think the issue about what use is to be made has effectively been addressed by my friend and that's not really so much of a concern.
The concern is we're going to hear details of five discrete acts at different locations which in fact is more detailed in the statement than the two allegations that the jury is dealing with. And because the State is not relying upon those five acts as propensity evidence, anything more than contextual evidence, my concern is the fairness to [the appellant], having the jury hear all these details of these five incidents and not forming a view that it goes beyond context because of the details of the allegations.
So it's the extent of the details of the allegations that's my concern or my objection.
[27] ts 33.
[28] ts 33.
Counsel identified the five incidents that he was referring to by reference to the paragraphs of ZY's witness statement. Two had occurred in Chile, one in Indonesia, one in Queensland and one in Singapore. He noted that he had also been provided with a proofing note to the effect that ZY would 'say that the abuse continued and escalated in Melbourne without giving any details'.[29]
[29] ts 33 - 34.
The trial judge asked whether counsel's concern was that the detail of the uncharged acts would overwhelm the charged acts. Counsel agreed and said that he was also concerned about the use the jury might make of the evidence.[30]
[30] ts 35.
The prosecutor noted that it was conceded that the evidence was admissible for the purpose for which it was being adduced. He identified that purpose as being to explain, in respect of count 8, ZY's apparent acceptance, lack of surprise and lack of reaction to the act of penetration. He said that the jury could not properly assess that response unless they knew what had happened in the years between counts 1 and 8. The prosecutor said that no greater detail of the uncharged acts would be led than was necessary to establish the basic nature of each incident. He said that any risk that the evidence of the uncharged acts would overwhelm proper consideration of the charged acts or that the jury would misuse the evidence could be minimised by appropriate directions.[31]
[31] ts 35 - 36.
After the jury was empanelled and before opening addresses, the trial judge gave his ruling on the evidence. After referring to the relevant evidence, his Honour said:[32]
The State relies on this evidence as relationship evidence to put the context in the relationship between the complainant, [ZY], and the accused. In other words, there was acts of sexual abuse as part of the relationship between the father and the daughter continuing from 2007 to 2012.
The accused opposes this evidence being admitted, that is the evidence of uncharged acts which occurred outside Western Australia in exercise of the court's discretion, as it's submitted its probative value exceeds [sic, is outweighed by] its prejudice to the accused. It is generally accepted that it is relevant and generally admissible as relationship evidence.
The evidence of the uncharged acts in this case, as per what's contained in relation to these other acts outside Western Australia as described by [ZY], in my view does have some significant probative value. It gives some context to the relationship between the accused and his daughter, the complainant, [ZY], in between 2007 and 2012.
Otherwise the State case would be refined to the two acts that are the subject of counts 1 and 8, alleged to have occurred in 2007 and 2012. The State does not rely on this evidence as propensity evidence under section 31A of the Evidence Act. During the period of 2007 to 2012 it's clear on the evidence of [ZY] that for substantial periods of time both parties, that is [ZY] and the accused, were out of Western Australia.
I'm satisfied that the prejudice of the accused relating to admitting this evidence of the uncharged acts can be reduced by a jury direction as to how this evidence can be used and how it cannot be used by them, in other words engaging in propensity reasoning. I consider the jury will generally follow those directions given.
I'm therefore satisfied the evidence of the uncharged acts and relationship evidence should be admitted. Because in my view its probative value exceeds its prejudicial nature.
[32] ts 55.
The trial judge then clarified that his references to 2012 should have been to 2016, having regard to the evidence and that count 8 was alleged to have occurred in 2016.[33]
[33] ts 55 - 56.

Prosecution evidence

The prosecution relied on the evidence of ZY, WX, ZY's ex‑boyfriend, HN, and Detective Senior Constable Katie Minor. As ground 1 alleges that the verdicts on counts 1 and 8 were unreasonable or unsupported by the evidence it will be necessary to summarise the evidence. That includes the evidence relating to the other counts as that was relied on as propensity evidence (in contrast to the uncharged acts).

ZY's evidence

ZY was 23 years old at the time of the trial. She has two younger brothers. She was born in Colombia and came to Australia when she was 9 years old. She came to Australia with her immediate family because the appellant had a job opportunity with a mining company.[34]
[34] ts 82 - 83.
When ZY first arrived in Australia she lived with her family in Manning. At some point there were extended family members living with them as well.[35]
[35] ts 83 - 84.
ZY said that the first relevant incident she could remember occurred in 2007 at the Manning property when she was sleeping on the top bunk of beds in her brothers' room. The appellant would sleep with the children because they had trouble sleeping. On this occasion, ZY and the appellant were 'spooning' ‑ her back was to the appellant, and they were both facing the same direction. ZY said that there was some 'light touching' of her pubic area. She was 10 years old at the time.[36]
[36] ts 84.
ZY said that in the Manning house there was a guest bedroom, a master bedroom, and her brothers' bedroom. ZY had her own bedroom, but she was in her brothers' room at the time of the incident. Her brother AE was on the bottom bunk. The appellant was under the covers when he lay with her on the top bunk. ZY said that the appellant came into the bedroom around bedtime, no later than 8.00 or 9.00 pm. She was wearing pyjamas and underwear. ZY said that the appellant had previously got into bed with her from time to time because she had trouble sleeping. She said this was because she was young and scared of the dark.[37]
[37] ts 84 - 85.
ZY said that at the time of the incident the lights were off. Her back was to the appellant, the appellant's front was to her back, and they were both facing in the same direction. The appellant touched her in her pubic area with his hands. She said it was not anywhere near the clitoral area but was 'just kind of around it'. The touching did not go on for very long. Neither the appellant nor ZY said anything when the touching occurred. She then fell asleep.[38]
[38] ts 85 - 86.
ZY did not remember any other specific incident in the Manning house that involved sexual touching. The family then moved to Indonesia because the appellant had a different job opportunity with the same company.[39]
[39] ts 86 - 87.
The sleeping arrangements in Indonesia were the same as before. There was a master bedroom, ZY's brothers shared a room and ZY had her own room. She had her own queen size bed. ZY remembered that an incident occurred when she was living in Indonesia. She and the appellant were in a spooning position in her bed and there was 'some touching going on'. ZY's mother came to the door and asked if the appellant was going to bed any time soon. The appellant stopped touching ZY and said words to the effect of 'very soon. I think she's asleep'.[40]
[40] ts 87.
ZY said that the appellant touched her with his hands around the genital area and was 'caressing around the vaginal area'. The touching was under the covers and the pyjama pants she was wearing. Neither ZY nor the appellant said anything when the touching occurred.[41]
[41] ts 88.
ZY and her family returned to Australia in January 2009. Her parents bought a house in Piara Waters. She had her own room with a queen size bed.[42]
[42] ts 88.
WX is ZY's second cousin. They first met in Colombia when they were very young. While ZY was in living at the Piara Waters house, there was a period of time when WX's family stayed in a caravan on the driveway. WX and ZY got along fairly well. They continued to see each other regularly when WX and her family moved into a home of their own. WX slept in ZY's room fairly often.[43]
[43] ts 89.
When WX came to stay, she and ZY would either share the bed in ZY's room or use a pull‑out mattress from under the bed. The pull‑out mattress was the same size as the main bed.[44]
[44] ts 89 - 90.
ZY remembered an incident where there were three people in her bed; ZY, the appellant and WX or a friend that was staying over. ZY remembered positioning herself in between the two people to act as a barrier between them. ZY did not remember whether that was a one‑off incident or whether that happened multiple times. She did not remember any specific incidents of sexual contact involving the appellant and herself at the Piara Waters house.[45]
[45] ts 90 - 91.
ZY and her family lived in Chile from 26 July 2012 to 20 January 2014. The bedroom arrangements in Chile were the same; ZY had her own bedroom and a queen size bed.[46]
[46] ts 91.
ZY said that penile penetration occurred for the first time while she was living in Chile. It occurred on a morning sometime around dawn. ZY and the appellant were lying such that the appellant's front was to her back. She was wearing pyjamas and underwear. She recalled there being some touching and then penile penetration. She felt some discomfort as the appellant was penetrating her vagina with his penis.[47]
[47] ts 91 - 92.
ZY was asked how she knew that she was penetrated by the appellant's penis rather than a finger or some other object. She said that the abuse had become progressively worse. It went from general touching of her crotch area to clitoral fingering to digital penetration. In this instance, it was the first time she remembered there being anything bigger and feeling any discomfort.[48]
[48] ts 92.
ZY did not recall how long the penetration continued but said that neither she nor the appellant said anything. The appellant was able to penetrate ZY's vagina because her pulled her pyjama pants down. There was no one else in the room apart from ZY and the appellant. ZY could not recall any other incidents occurring in Chile.[49]
[49] ts 92.
On 20 January 2014, ZY and her family returned to Australia and lived in Melbourne. She could not recall any specific incidents that occurred in Melbourne.[50]
[50] ts 92.
ZY said that there was an instance of sexual contact with the appellant when the family was caravanning in Queensland. She was 17 years old. The family were going to leave Melbourne and move to Western Australia. ZY's brothers were sleeping in an L‑formation on the top bunk above her and her parents were sleeping at the opposite end of the caravan in a double bed. She was wearing pyjamas and underwear at the time.[51] She recalled that the appellant entered the pod she was sleeping in and stimulated her clitoris with his hands.[52]
[51] ts 93.
[52] ts 93.
ZY also recalled sexual contact from the appellant occurring at hotels when they were between moves. She said that there was one instance where her family stayed in the airport hotel in Singapore and another instance when the family was looking for a property in Chile. During the incident in Singapore, ZY was in a hotel room with the appellant when he touched her in the genital area. She was around 10 years old. A similar incident occurred in a hotel in Chile when she and the appellant were alone in a room when she was turning 15 years old.[53]
[53] ts 93 - 94.
ZY said that in Singapore and Chile her family would have two hotel rooms; her brothers would share with her mother and she would share with the appellant.[54]
[54] ts 94.
In July 2016, ZY and her family moved back to Western Australia and lived in a house in Atwell.[55]
[55] ts 92.
The next incident that ZY recalled occurred in 2016 when she was in the first year of a university course. The family had gone to church and to the house of a friend of the priest, where they had a dinner party. ZY's family then went to the airport to say goodbye to WX and WX's mother who were returning to Colombia to visit WX's grandmother who was sick.[56]
[56] ts 94.
ZY said that after getting home from the airport everyone went to bed. She thought that she went to bed at around 1 am. She had her own bedroom in the house in Atwell. She was wearing pyjamas. She woke up at dawn and the appellant was in the bed behind her. Her pants had been pulled down and the appellant was thrusting his penis into her vagina. She said that the thrusting did not last very long. When the appellant stopped, he put her clothes back on and tucked her back into bed. He then left the room. ZY did not want him to do what he did and did not ask, invite, or agree to him doing it.[57]
[57] ts 95, 97.
ZY said that after the appellant left, she could not breathe and was sobbing quietly. She had to sit up in the bed to try to get some air. She could not calm down, so she decided to write down how she was feeling in a text to her then boyfriend, HN. The text was sent on 3 July 2016.[58]
[58] ts 95 - 96.
At that time, ZY had just finished her first semester at university. She had applied to some universities in Melbourne, hoping to escape from her family. She said she felt trapped and was overwhelmed by what had happened. She was accepted to study in Melbourne but turned down the opportunity because she did not want to be a financial burden on her parents.[59]
[59] ts 96.
ZY and HN had been in a relationship for three or four months. She texted him because she felt like that was the only way she could settle down. Eventually ZY told HN that it was her father that had been sexually abusing her.[60]
[60] ts 96 - 97.
ZY went to the Sexual Assault Resource Centre (SARC) and then disclosed to her mother what had been going on. She said that her mother was in denial and asked her a lot of questions and wanted her to recant. The day ZY made the disclosure to her mother, she stayed with a close family friend. The next day she was moved to the house of a church friend of her mother's, where she stayed for a couple of weeks. She then had to move back to her parents' house.[61]
[61] ts 97 - 98.
After ZY returned home, she found that a lock had been installed on her door. She continued to live at home for about a year. During this time there was little interaction between members of the family and ZY was not allowed to be alone with the appellant. ZY said there was no further sexual abuse from the appellant in that year. She described her relationship with her mother at the time as 'strenuous' as her mother would make a lot of effort to try to get ZY to recant things.[62]
[62] ts 98.
After that year, ZY went to live with a friend. In December 2017, she received a telephone call from Detective Minor asking her to participate in an interview. She attended an interview in January 2018.[63]
[63] ts 99.
ZY said that the last time she had contact with the appellant was before Detective Minor contacted her. She received a telephone call and the appellant said 'Hi [ZY]. It's your dad', to which she replied, 'I'm not ready to talk'. She then terminated the call.[64]
[64] ts 100.
ZY said the last time she had any contact with WX was after she (ZY) moved out of home. ZY had not discussed the allegations, or anything to do with the sexual abuse, with WX.[65]
[65] ts 100.
ZY said the sexual abuse by the appellant happened at least once every year between the first incident when she was aged 9 and the last incident when she was aged 18. She said that the longest period during which there was no sexual abuse was approximately 6 months. She said the sexual abuse started as very subtle grooming and slowly increased to severe abuse. She did not recall making eye contact with the appellant while the sexual touching occurred. Nor did she recall any touching that happened in front of other people. She said that when the sexual touching occurred, she would pretend to be asleep. She said that between 2007 and 2016 she did not talk to the appellant about what was going on and the appellant did not say anything about it to her.[66]

ZY's cross-examination

[66] ts 100 - 101.

In cross‑examination ZY said that it was not uncommon for her and her brothers to be accompanied in bed when they were having trouble sleeping.[67]
[67] ts 109 - 110.
ZY said that there were four bedrooms in the Manning house. From November 2006 to December 2007, four people from ZY's mother's side of the family also lived with ZY and her family in that house. This included Rosana Jarava Brun (ZY's mother's cousin), Jorge Alvarino (Ms Brun's boyfriend), Nancy Brun Gracia (ZY's mother's aunt), WX's father and WX. WX and her father stayed whilst he looked for a house for them to live in. They did not stay very long, possibly a month.[68]
[68] ts 110 - 113.
ZY could not recall whether she shared a room with her brothers in 2007. She said that there were four rooms that had beds, a games room and a living room. She also said that people switched bedrooms often when people were staying over.[69]
[69] ts 114 - 115.
ZY agreed that at times the appellant would lay on the bed, on top of the bed covers, to help the children to get to sleep. She did not accept that he was always on top of the covers.[70]
[70] ts 114 - 115.
ZY said that the first incident occurred at night and that the lights were off in the room. She accepted that in her witness statements she had not referred to the lights being off but said that this was always the case when she went to bed. She said that she was certain that she was not asleep when the touching occurred. She agreed that nothing was said and that the appellant cuddled her from behind. When it was put to her that the person who touched her could have been someone else, she said 'I don't believe so, no'.[71]
[71] ts 120 - 121.
As to the uncharged acts, ZY accepted that she did not make eye contact with the person who touched her in Indonesia. Later in her evidence she accepted that on this occasion the appellant had responded to her mother by saying he was coming to bed soon but could not say with certainty that he said that ZY was asleep.[72]
[72] ts 121, 133 - 134.
ZY accepted that the sleeping arrangements in the Queensland caravan incident were 'pretty pokey', but rejected a suggestion that she had a nightmare and imagined that the appellant touched her. She accepted that she could not remember any specific instance of sexual abuse occurring in Melbourne or at the Piara Waters house. She agreed that on one occasion she and her brothers had slept in a hotel room together. She rejected a suggestion that she and her father had never shared a room in a hotel.[73]
[73] ts 123, 127, 135 - 136.
ZY said that she could recall WX sleeping in her room once at the time WX and her father were staying in the caravan on the driveway at the Manning house. She said that WX stayed over more than once at Piara Waters and would sleep in ZY's bedroom. ZY agreed that her bed would be pushed against one of the walls to make room for the spare bed. She said that there was 'very little room' between her bed and the spare bed.[74]
[74] ts 126, 147 - 148.
As to count 8, ZY agreed that the incident occurred before dawn. She said that she was wearing pyjamas and that her pants had been pulled down. She could not recall saying in her witness statement that her pants had been pulled to one side. She agreed that she did not see the man who penetrated her and that no words were exchanged. It was put to her that she assumed that the man who penetrated her was the appellant and she responded, 'I know it was him'. It was put to her that in her witness statement she said that she always kept her eyes closed. ZY responded by saying that was incorrect and that she did not always keep her eyes closed.[75]
[75] ts 150 - 152.
ZY denied that the incident the subject of count 8 could have been a bad dream. It was put to her that she had told a doctor at SARC that she was confused and couldn't decide whether she was dreaming or not. She said she could not recall the specifics of that conversation but that it sounded like something she would say. It was put to her that in the text message to HN she had not referred to being sexually assaulted by her father but to a vivid nightmare. She denied that what happened was only a nightmare.[76]
[76] ts 153 - 154.
It was also put to ZY that in a diary she had kept at the time she referred to her memory being 'foggy' and of not wanting to accept 'the possibility of it being a reality'. In a later entry she had referred to having insecurity about her memories, to not wanting 'him' touching her anymore and wanting to leave without the consequences of exposing what had happened. The entry goes on to say that she wanted to forget it all, go back to ignoring the issue and pretend that it did not exist. The entry continued '[r]egardless of whether my memories are true or not, I need help. I'm not sure what I'd prefer, feeling crazy enough to make all this up or it having actually happened'. ZY accepted that she had written these entries and said that she did have doubts at the time but that she no longer does.[77]
[77] ts 154 - 156.
ZY agreed that on 12 July 2016 she sent the appellant a text message asking him to give her a driving lesson. She accepted that she tried to act normally at this time. She did not accept that she had no difficulty being around her father after 3 July 2016, or at any time in her childhood. She agreed that as a child she had admired her father and had written her parents a letter in around 2009 to 2012 in which she referred to her love for them. Another similar letter was written by her when she was in high school.[78]
[78] ts 159 - 163.
On 26 July 2016, ZY sent a message to the appellant on WhatsApp in Spanish. ZY agreed that the English translation of that message was:[79]
Dad, I'm not mad at you. I'm not angry. I don't want to sue you. I never meant to hurt my family but what was said is my truth. Why would I cause so much pain? That's not to say I don't want you and mum to get ahead. You and mum can go on to a (indistinct) [AE] and [CB] and for you both, please eat, go to work, seek help with therapies and know that one day I will forgive you. I don't know when but when it happens, it will be a true forgiveness. I still want you to take me down the aisle and I love my family very much and I hope we have dinner together again someday but don't get lost in this.
[79] ts 157 - 158.
After ZY attended SARC she lived with a family friend for two weeks. At that time, she was intending to apply for Centrelink benefits and live independently. She agreed that on 28 July 2016 she sent an email to her mother estimating her possible income and expenditure. She did not accept that she was anticipating receiving money from her parents.[80]
[80] ts 163 - 166.
ZY did not proceed with an application for Centrelink benefits and moved back to the Atwell house. She accepted that the lock on her door was already fitted when she arrived home.[81]
[81] ts 167.
ZY could not recall telling WX that she had been speaking to someone about her father being inappropriate to her. Nor could she recall discussing with WX what the appellant did to her (ZY). When asked if it was possible she did discuss these matters with WX, ZY said 'I don't think so'.[82]
[82] ts 167.
ZY agreed that when she first spoke to her boyfriend, HN, she did not initially disclose that the appellant had sexually abused her. She agreed that HN asked her questions and that when he asked whether it was her father she ran to the bathroom. She didn't know what to do at that stage and HN advised her to seek help. She was then asked whether she expressed doubts about her memory when speaking to HN. She did not agree that she expressed doubts or that she was confused about her memories. She did agree that over time she had less memories but was more certain about what had happened.[83]
[83] ts 167 - 169.
ZY agreed that she gave a statement to the police after being contacted by Detective Minor in early 2018. The initial telephone call was to ask about WX, not anything that happened to ZY. She did not agree that prior to giving her account to the police her relationship with her family was the same as it had always been. She agreed that she had been on a holiday to Bali with her family in 2017 and had tried to interact normally. She agreed that she moved out of the family home in late September 2017.[84]

ZY's re-examination

[84] ts 169 - 170.

In re‑examination, ZY was asked about whether she had ever seen the appellant at the time of any incident of sexual abuse. She was referred to the penetration incident in Chile and agreed that in her statement she had said 'I glanced up in a sideways manner to see if it was really my father and I saw him over the top of me'.[85]
[85] ts 175.
As to why she did not tell HN directly that the person abusing her was her father, ZY said '[i]t took me a really long time to even say it to myself, so I didn't say it to him if I couldn't even say it to myself'.
When asked how she had felt towards her father growing up, ZY said that she was a 'daddy's girl' and tried to do everything she could not to cause trouble. She said she always loved her parents, but that the sexual abuse caused her to feel very confused. She tried to push the abuse out of her mind as much as she could. She said that she repressed it and pretended that it did not exist.[86]
[86] ts 175 -176.
ZY agreed she had not planned to report the abuse to the police but when the police contacted her about WX she wanted to support WX by telling the police what had happened to her (ZY). She felt that by telling them what had happened to her, it would imply that she believed WX.[87]

WX's evidence

[87] ts 176.

WX said that when she first came to Australia in 2007, she came with her father and stayed at the appellant's house in Manning. She was 11 years old at the time. Her mother arrived a month or two later.[88]
[88] ts 181.
The appellant, his wife, their two sons, ZY, the wife's aunty, her daughter and her daughter's fiancé were all living in the house at Manning, along with WX and her father. WX stated that they lived there for about a month.[89]
[89] ts 181.
WX said that a couple of days after she first arrived, it was the morning of ZY's first Holy Communion. WX was helping clean up ZY's room and was still dressed in her pyjamas. She was bent over and the appellant walked up and grabbed her from behind. She squealed in surprise and the appellant quickly moved his hand and 'kind of just wrapped my vagina area' whilst still standing very close to her. WX stated that her father and the appellant's wife quickly came to the room and asked what had happened. The appellant said that something had fallen onto WX.[90]
[90] ts 182 -183.
WX said that no one else was in the room when the appellant touched her. She said that the appellant touched her vagina area while holding her very closely. The incident was very quick, as her father and the appellant's wife ran to the room. WX told her father that she was not feeling well and went to another room to lay down. She did not tell her father or anyone else what had happened. She said that this was because she was so confused.[91]
[91] ts 183 - 184.
After staying for a month at the appellant's house, WX and her father moved into their own home, and the appellant and his family moved into a house in Piara Waters. WX stated that she visited that house quite often and that her 15th birthday was celebrated there.[92]
[92] ts 184.
WX said that there was an occasion when she was in a SUV car with the appellant and ZY, picking up a pizza. The appellant was driving and WX was in the front passenger seat. ZY left the car to go to the bathroom and collect the pizza. The appellant then leant over to the passenger seat, grabbed WX's hand, put it inside his pants, and started using her hand to rub his penis whilst still leaning over her. WX said that this occurred in the afternoon or nighttime because they would usually have a pizza night when she visited the appellant's house.[93]
[93] ts 185.
When asked which pizza shop they had purchased the pizza from, WX stated it was a Dominos' pizza shop, but she was unsure of the suburb, other than that it was not in Piara Waters. She said that it was necessary to go on a main road to get there. WX stated that the car had been parked in a parking lot, and that there were not a lot of cars or people around. The pizza shop was further away from the main shops. She later said that the pizza shop was about a 10 minute drive from the Piara Waters house on South Street.[94]
[94] ts 185, 195.
WX said that when the appellant placed her right hand on his penis it was not erect, but she felt it getting harder. She froze. He said in Spanish 'come touch it'. He moved her hand up and down on his penis. When ZY returned with the pizza, the appellant was still leaning over WX and ZY asked him what he was doing. The appellant said that he was trying to help WX find something on the floor.[95]
[95] ts 186 - 187.
WX said that a week or so after her 15th birthday she stayed at the Piara Waters house. She and ZY watched a movie together on a laptop computer whilst lying on ZY's bed. The only light in the room was from the laptop. ZY went to the toilet and WX remained lying on the bed face down. WX heard the door click and she turned over and saw the appellant in the room. He pulled his pyjama pants down. She said that this was the first time she had seen a man's penis. His penis was hard. He pulled her pyjama shorts and underwear down and laid on top of WX. He used one hand to rub her chest and the other to rub her vagina. After a short time, he rubbed her vagina with his penis. She hit him with her leg and he gave her an annoyed look, pulled up his pants and stormed out. WX pulled up her pants and underwear and ZY returned shortly afterwards. WX did not tell ZY what had happened, only that she was upset and that they should go to sleep. WX slept on a mattress that was next to ZY's bed.[96]
[96] ts 187 - 190.
The next morning WX woke with a pain in her vagina. She opened her eyes and saw the appellant standing between ZY and the mattress that she was on. There was not much space as it was a small room. The appellant's fingers were inside WX's vagina and her pants had been pulled to the side. It was very quick and she heard the appellant laugh. He then walked out and WX cried herself to sleep. This occurred in the early morning. There was no light coming through the window. ZY was sleeping.[97]
[97] ts 191 - 192.
On a later occasion when WX was at the Piara Waters house for a sleepover, the appellant came into the room and laid on the bed between ZY and WX while they were watching a movie. He made a joke about finding a space between them. He turned to each of them to say goodnight. He then put his hand under WX's pyjama shorts and underwear and rubbed her vagina. She did not want him to touch her in this way and did not invite or agree to him doing so. He then left the room and WX and ZY went to sleep. WX said it was possible that this incident happened after her 16th birthday.[98]
[98] ts 192 - 194.
WX said that she has never spoken to ZY about the sexual abuse. She last had contact with ZY on Instagram in 2019. She said she had been advised by the police not to have contact with ZY because of what was happening with the court and the trial.[99]
[99] ts 195.
WX said that in addition to the incidents described it was very common for the appellant to touch her or hug her when she was at his house. She said that he was nice to her and would give her things, like credit for her telephone, and tell her that she was a good girl. Once or twice he 'probably said' that if she ever said anything they would be in trouble with their visa and would be 'out of the country'. She said that when he said this, she looked sad and walked away. She kept quiet.[100]

WX's cross‑examination

[100] ts 195 - 196.

In cross‑examination, WX agreed that at the time of ZY's first Holy Communion there were a number of people in the house and the house was fairly small. She agreed that when the first incident happened the door to the room was open. She said that the appellant said something had fallen, rather than something had fallen on her. She agreed that in her police statement she had said that the appellant had lifted her to a standing position. However, she said that what happened was that she stood up because she was being grabbed.[101]
[101] ts 199 - 204.
WX said that on the night of the pizza shop incident she could not be sure who was present at the house when they returned. When asked about the pizza shop she said that she remembered it was a Domino's, but could not remember the name of the suburb it was in. She said that this was not the only occasion that she went to the pizza shop with the appellant.[102]
[102] ts 205 - 206.
WX accepted that the conversation in the car about helping her to look for something on the floor was not referred to in her police statement. She said that when she gave her statement, she was told to deal with the main points but had since been asked for more details. She agreed that she had told the prosecutor about the conversation in proofing prior to the trial. She could not recall if she had provided all the details of that conversation. She said that the conversation was in Spanish, and she did her best to provide a translation.[103]
[103] ts 209 - 211.
It was put to WX that the appellant always wore a belt with his pants and that he had a blackberry device that he clipped to the belt. It was suggested that it was not possible for WX's hand to have been placed inside the appellant's pants if he was wearing a belt. WX said that he did not always wear a belt and she did not recall him wearing a belt on this occasion.[104]
[104] ts 211 - 212.
It was put to WX that there was no lock on the door of ZY's bedroom at the Piara Waters house. She did not accept this and said that she and ZY would lock that door. After being shown photographs of the room and the door, WX said that she heard a click and assumed it was a lock. However, she maintained that the door was locked sometimes so that the boys could not get in.[105]
[105] ts 216 - 217.
It was put to WX that in proofing she had referred to sleeping on an inflatable mattress in ZY's room. She maintained that she had slept on such a mattress when she went to the house for sleepovers. When it was suggested to her that she slept on a mattress that pulled out from under ZY's bed, WX said that she had slept on such a mattress but did not do so this time. She could not recall whether ZY's bed at Piara Waters had a pullout mattress or not. She maintained that there was space between ZY's bed and the mattress she slept on and that the appellant stood in that space.[106]
[106] ts 219 - 220.
WX accepted that in proofing she said that in the first Piara Waters incident she froze. It was suggested that this was inconsistent with saying in evidence that she hit the appellant. WX said that in proofing she was confused because that incident and the one the following morning were similar. She said that she did recall the first incident and why it stopped.[107]
[107] ts 221 - 222.
WX accepted that in relation to the last incident she had not included in her police statement or in proofing that the appellant had joked about getting a space between them. She said she just told police that the appellant climbed into bed. She denied that she was adding details to make her account more convincing. She said that she was telling the truth to the best of her ability.[108]
[108] ts 223 - 225.
WX agreed that her statements did not refer to other occasions when she had been touched by the appellant. She said this was because she could not remember every such occasion and was told to concentrate on 'the main ones'.[109]
[109] ts 226.
WX agreed that she had been hospitalised on a few occasions. Once for 70 days. She was not asked the reason for that admission but agreed that her parents had been very supportive of her. She agreed that in 2016 her parents were also having marital difficulties. She agreed that she had spoken to a psychologist whilst in hospital and that it was following that that she spoke to the police.[110]
[110] ts 230 - 232.

WX communicated with ZY in 2016 when her (WX's) boyfriend was in hospital following a motorcycle accident. They had not communicated about the appellant.[111]
[111] ts 231.
WX agreed that she did not tell the police, or say initially in proofing, that the appellant gave her things to keep her quiet. She agreed that she had only said this to the prosecutor shortly before the trial. She said this was because the police told her to concentrate on the main events.[112]
[112] ts 233.
It was put to WX that she feigned illness to get her parents' attention. She denied this. She agreed that her parents had supported her since she had made the allegations about the appellant.[113]
[113] ts 234.
In re‑examination, WX said that she did not tell ZY or anyone else about the incidents at the time because she was embarrassed and scared that the appellant would do something to her family. She said that when she spoke to the psychologist in hospital, they went through what happened in her childhood and she felt that she could trust the psychologist. The psychologist suggested that if she wanted to, she could go to the police and that is what she decided to do.[114]

HN's evidence

[114] ts 235 - 236.

HN said that he first met ZY when they were both children in Colombia. In early 2016, he commenced a romantic relationship with her, about six months after he arrived in Western Australia. That relationship continued for about four years.[115]
[115] ts 242 - 243.
HN said that after receiving the text message from ZY on the morning of 3 July 2016 at 3.52 am, he saw her the following evening. He asked her if she had suffered sexual or physical abuse and she confirmed that she had been abused as a child. She did not disclose, at that point, the identity of the perpetrator.[116]
[116] ts 243 - 244.
HN said that he had another conversation with ZY on the following Wednesday, when he asked further questions about the identity of the abuser. He ran through a list of people and finally asked if it was her father. At that point ZY reacted very strongly and ran to the bathroom, locked the door and started crying. He said that ZY had to go to work, and he drove her to her workplace. In the car, they discussed when the sexual abuse had occurred and he asked whether it had only happened when she was a child. ZY said words to the effect of 'I never said it had stopped'. They also discussed the text message she had sent and her use of the word 'nightmare'. He understood ZY to mean that the nightmare she had experienced was a 'living nightmare'.[117]
[117] ts 244 - 245.
In cross‑examination, HN said that ZY stated that she was confused, and he tried to support her. He felt it was important for her to follow up on the confusion she was feeling. He accepted that in his diary he had written that ZY had questioned how truthful her memories were and that he had told her that it would be extremely unlikely for a child to make this up. In his diary he had also recorded that they had spoken about the likelihood that she might not want to believe that it was true, especially because it would put her at odds with her father and the whole family.[118]
[118] ts 250, 252 - 255.
HN said that over time, ZY appeared to become more accepting of what had happened to her. He understood that she saw a therapist. He encouraged her to go to the SARC because that is what he had been advised to do when he contacted a help line. He also encouraged her to go to the police.[119]

Katie Minor's evidence

[119] ts 254 - 258, 261 - 262.

Detective Senior Constable Katie Minor gave evidence that she was assigned the matter relating to WX on 13 November 2017. On reading the materials, she contacted ZY as a potential witness and also as a possible victim. ZY made disclosures to Detective Minor and at the conclusion of the interview, Detective Minor charged the appellant with the offences that were the subject of the trial.[120]
[120] ts 265 - 266.
In cross‑examination, Detective Minor confirmed that the appellant had no criminal record. Nor were there any reported incidents of domestic violence.[121]
[121] ts 266 - 267.
Detective Minor said that when she took over the file there was already a statement from WX. Between December 2017 and February 2018, she had contact with both complainants separately. ZY's statement was taken over several meetings. She would attempt to elicit details of any incidents described. ZY was told that she could make changes to the statement if she wished to do so. [122]
[122] ts 267 - 269.
In re‑examination, Detective Minor confirmed that she never spoke to ZY about the specifics or details of WX's allegations, nor did she speak to WX about the specifics or details of ZY's allegations.[123]
[123] ts 269 - 270.

Defence evidence

The appellant elected not to give or call any evidence.
It is relevant to note that the trial was a relatively short one (four days) and that the prosecution closed its case at 11.18 am on the third day. Defence counsel was granted a 30‑minute adjournment to obtain final instructions from the appellant. The jury returned at 11.56 am and defence counsel stated that the appellant elected not to give or adduce evidence in his defence.[124]
[124] ts 271 - 272.

Trial judge's directions

The trial judge sought submissions from counsel as to the directions that were required. There was an exchange with defence counsel as to whether an identity direction was required, and it was agreed that the appropriate direction was as to what inferences could be drawn. Defence counsel accepted that an identification warning was not required in the circumstances of this case.[125]
[125] ts 279.
There was also a discussion with counsel as to the terms of a direction about how the evidence of uncharged acts could be used. It was agreed that the judge would direct the jury that the evidence was context evidence and that it could also be used by the jury in assessing whether what ZY said about counts 1 and 8 were dreams or false memories.[126]
[126] ts 323 - 328.
In his directions, the trial judge noted that the prosecution case depended on acceptance of the evidence of ZY and WX. His Honour said:[127]
You cannot convict [the appellant] of any count on the indictment, so any of the eight counts, each of them individually, unless you are satisfied beyond reasonable doubt as to the truthfulness, accuracy and reliability of the relevant complainant's evidence so either [ZY] or [WX] in relation to the relevant count you are considering.
[127] ts 299 - 300.
The trial judge told the jury that in assessing the evidence of the witnesses they should consider (amongst other things) the following:[128]
Also, you'll need to consider the ability and opportunity the witness had to see, hear or know the things that the witness has testified about. You'd also need to consider and I'll get back to this later on tomorrow whether what a witness has said differs from what has been said on a previous occasion.
If there is an inconsistency on what they've said on a previous occasion, is there a satisfactory explanation for the inconsistency and broadly, does the witness seem to have a good memory? Now, you may well think that other general considerations will assist you and that's a matter for you but it's up to you how you assess the evidence and what weight, if any, you give to a witness's testimony or to any exhibit.
[128] ts 301.
The trial judge said that whilst the prosecution case was largely a direct one, the issue of inferences did arise in respect of the identity of the perpetrator. His Honour noted that the defence case was that there were other males living in the various houses or visiting and that it could have been one of those men who committed the alleged acts rather than the appellant. His Honour then gave the jury an orthodox inferences direction; that is, that they could only draw an inference adverse to the appellant if it was the only reasonable inference available. His Honour also included the identity question as one that had to be established when he directed the jury on the elements of each of the offences.[129]
[129] ts 306 - 307, 311.
Later in his directions, the trial judge clarified that it was only in relation to counts 1 and 8 that it was suggested that some other man could be responsible for the relevant sexual acts. His Honour said:[130]
But it only is really contested in relation to counts 1 and 8, so that's the [ZY] counts, if I can call them that, because you heard the evidence and the defence, or the accused, said, 'Think about her evidence about how or why she says it was the accused man who did the relevant penetration or indecent dealing', penetration being count 8, indecent dealing being count 1. You know, what were the relevant factual circumstances, and to use a comment used by Mr Perrella in his closing, was it an assumption?
And once again, this is why I gave you that direction yesterday and I gave that example of telephoning my next door neighbour about inferences and how you can and can't use inferences.
[130] ts 330.
The trial judge gave the jury the following directions as to how they could use the evidence of uncharged acts:[131]
However, the State led this evidence of the other inappropriate conduct for the following reasons. The State led the evidence of the other inappropriate conduct to establish the context of the relationship between [ZY] and her father, as tending to show that there was continuing inappropriate conduct between count 1 and count 8. To put it another way, to show that [the appellant] continued to act towards [ZY] in a way that you might think was not normal between a father and a daughter.
In other words, counts 1 and 8 were not isolated incidents of this form of behaviour towards her. You could only use [ZY's] evidence of that other inappropriate conduct if you find her evidence reliable about this and believe it to be true. That is, for you to find her evidence as to those incidents of other inappropriate conduct to be truthful and accurate. It's a matter for you to decide whether you accept that any or all of those other incidents of other inappropriate conduct occurred and has been proved by the State.
If you do, you can use the evidence to assess the acts of the subjects of counts 1 and 8, and with the other evidence which you accept. The evidence of the other inappropriate conduct might be relevant to whether her evidence about counts 1 and 8 were dreams or false memories. The evidence of other inappropriate conduct is part of the circumstances against which you are to judge whether the specific act alleged in the indictment, whether it be count 1 or count 8, which is the two counts involving her, occurred.
[131] ts 347 - 348.
The trial judge went on to say that if the jury did not accept ZY's evidence regarding the uncharged acts, then that may influence their assessment of her overall credibility.[132] His Honour also directed the jury as to how they could not use the evidence of the uncharged acts. His Honour said:[133]
You cannot use evidence of the other inappropriate conduct in substitution for the evidence of the alleged acts as charged on the indictment. You must not reason simply because you find, if you find, that [the appellant] did one or more of the incidents of other inappropriate conduct towards [ZY], then he therefore was the kind of person who was likely to have committed the offences with which he has been charged in this case and appear on the indictment.
Just because [the appellant] on one occasion committed an act, it does not necessarily mean that he did the same or similar act on another occasion. People do not always act in accordance with their inclinations or tendencies at every opportunity. Ultimately what you have to decide on the whole of the evidence which you accept is whether or not the State has established beyond reasonable doubt that [the appellant] committed the acts constituting each of the charges on the indictment, and in particular in relation to counts 1 and 8 concerning [ZY].
[132] ts 348.
[133] ts 348.
The trial judge then gave directions regarding the cross‑admissibility of evidence in respect of the counts and the use that could be made of that evidence as propensity evidence; that is, as evidence that could establish that the appellant had a relevant tendency. His Honour said that if the jury found the appellant not guilty on any count, then evidence of that act could not be used when considering any other count.[134] His Honour then said that, on the other hand, if the jury was satisfied beyond reasonable doubt of one or more charges, then they were permitted to use that evidence when considering the evidence on other counts:[135]
So it would be open to you to conclude that the occurrence of an incident the subject of one or more of the charges increases the likelihood that [the appellant] had committed the specific act the subject of another charge.
However, it is only open to you to come to that conclusion if you're satisfied that, firstly, the occurrence of the incident or incidents establishes that [the appellant] had a sexual interest in [ZY] or [WX] and had a tendency to act on this sexual interest by touching them in a sexual or indecent way when the circumstances permitted. And secondly, that [the appellant] had this sexual interest and tendency at the time of the specific act which is the subject of the remaining charge or charges you're still considering.
[134] ts 349.
[135] ts 350.
The trial judge directed the jury as to possible inconsistencies in the evidence of the complainants and provided examples of such inconsistencies in respect of each of them. His Honour told the jury that if they were satisfied that a witness had said something in a witness statement that was inconsistent with their evidence that was a matter that that they could take into account in considering the credibility of the witness.[136]
[136] ts 351.
The trial judge directed the jury that the evidence of each complainant was critical in respect of the counts concerning them and that they should scrutinise that evidence with special care. His Honour referred to the delay and the fallibility of human memory. He referred to the 'real danger of a miscarriage of justice which arises from convicting on [ZY's] and [WX's] evidence alone'. His Honour gave the jury a Longman direction regarding the forensic disadvantages that can arise from delay.[137]
[137] ts 356 - 358.

Grounds of appeal

As noted earlier, the appellant is self‑represented. His grounds are not in conventional terms and are lengthy. In essence, they are as follows:[138]
1.The verdicts on counts 1 and 8 are unreasonable or cannot be supported by the evidence.
2.The trial judge made an error of law by failing to give an adequate identification warning in respect of counts 1 and 8.
3.The trial judge made an error of law by failing to direct the jury that the relationship evidence (that is, the uncharged acts) had to be proven beyond reasonable doubt.
4.The trial judge made an error of law by permitting inadmissible evidence of uncharged acts to be adduced.
5.The trial judge made an error of law by failing to direct the jury that motive had to be proved beyond reasonable doubt.
6.There has been a miscarriage of justice because fresh or new evidence raises reasonable doubt as to the appellant's guilt. To the extent that the evidence is new, not fresh, that evidence was made known to defence counsel at the time of the trial and not adduced due to a failure by defence counsel to follow instructions or exercise reasonable diligence.
7.There has been a miscarriage of justice because the prosecutor did not act fairly, in that he did not call all available material witnesses, led inadmissible evidence of uncharged acts and used evidence of uncharged acts in an unapproved manner.
[138] WAB 73 - 98.

Ground 1 - relevant legal principles

The principles governing a ground of appeal that the verdict is unreasonable or cannot be supported by the evidence are well known. The principles established by the leading High Court decisions have been outlined by this court on many occasions. See, for example, Jago v The State of Western Australia.[139] In Sturniolo v The State of Western Australia, this court summarised those principles in the following terms:[140]
[139] Jago v The State of Western Australia [2022] WASCA 2 [144].
[140] Sturniolo v The State of Western Australia [2023] WASCA 147 [70].
(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. The appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent on the evaluation of the witnesses in the witness box. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness is, and remains, the province of the jury, and not of the appellate court.
(5)The question for the appeal court is whether, upon its examination of the record - by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence ‑ the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt.
(6)A doubt experienced by an appeal court would be a doubt that a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
(7)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 appeal 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 appeal court must set aside the verdict.
(8)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 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over an appeal court that has not seen or heard the witnesses called at trial.
The appellate court's function is to determine for itself whether the evidence was sufficient in nature and quality to remove any doubt that the appellant was guilty of the offence.[141] The critical issue is:[142]
[W]hether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the jury can be taken to have had by reason of having seen and heard the evidence at trial.
The task of this court is to undertake its own independent assessment of the whole of the evidence to determine whether the only rational inference available on the evidence was as alleged by the State and, if not so satisfied, to determine whether the jury's satisfaction could be attributed to some identified advantage that the jury had over this court.[143]
[141] Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651 [7].
[142] Dansie [16].
[143] Dansie [37] ‑ [38]; Lang v The Queen [2023] HCA 29; (2023) ALJR 758 [143], [251].

LA confirmed the evidence in her affidavit regarding the uncharged acts. She said that ZY continued to ask the appellant to stay with her whilst she fell asleep until she was in year 12 at school. ZY would also come and wake up the appellant when she had a bad dream in the night. LA said that she (LA) would never go to sleep until the appellant came to bed with her.[202]
[202] Appeal ts 73 - 76.
As to count 8, LA said that the appellant went to bed before her and fell asleep. She says that the appellant did not wake up in the night. She is sure of this because she is a light sleeper and would have woken if he got up.[203]
[203] Appeal ts 77.
LA said that after ZY made the allegations, she (ZY) wanted to return home. The appellant and LA had counselling and were advised to put a lock on ZY's door, such that the door could only be opened from the inside. She noticed that ZY did not always lock the door.[204]
[204] Appeal ts 78.
LA repeated her evidence regarding count 2. She said that the only occasion that WX squealed was when LA went to the room and the appellant was not present.[205]
[205] Appeal ts 79 - 81.
LA confirmed her evidence regarding Piara Waters and the pull‑out bed in ZY's room. She said that it was not possible to stand between the pull‑out bed and the main bed. WX only stayed at the house on three occasions at the most.[206]
[206] Appeal ts 81 - 83.
In cross‑examination, LA agreed that when she attended meetings between the appellant and Mr Perrella there was no interpreter present. She accepted that she may not have been able to follow everything that was said. She agreed that there were conversations between the appellant and Mr Perrella in the court room that she did not hear.[207]
[207] Appeal ts 85 - 86.
In cross‑examination, LA agreed that she was present in the public gallery throughout the trial. She said the advice from the lawyer was to sit there and give moral support to her husband. However, she felt very frustrated that she was not able to give evidence. She knew that if she was in the public gallery she would not be allowed to give evidence.[208]

AE's evidence

[208] Appeal ts 86 - 88.

AE is the appellant's oldest son.
As regards count 1, AE states that he never slept in the same room as his sister at that time. The only exception was when they went on holiday. On holiday the children shared a room and their parents were in a separate room. AE says that around the time they lived in Indonesia the appellant would lay in the bed with the children to help them fall asleep.[209]
[209] WAB 38.
As regards the Queensland caravan incident, AE states that the caravan was very small and it would not have been possible for the appellant to crawl over his mother and lay next to ZY without waking up his mother.[210]
[210] WAB 38.
As regards counts 3 to 7, AE says that there was no Domino's pizza shop where they lived at that time. None of the rooms at Piara Waters had locks except for the bathroom and the toilet. When the pull‑out bed was used in ZY's room there was no space between the mattress and the main bed. ZY's bed was not big enough for three people. WX did not sleep over more than three or four times.[211]

CB's evidence

[211] WAB 38 - 39.

CB is the appellant's youngest son.
CB states that ZY and the appellant never shared a room. The appellant would stay with the children when they were going to sleep and tell them stories and give them a blessing. Their mother sometimes checked on them.[212]
[212] WAB 41.
CB gives a similar account as AE of the configuration of the caravan in which they stayed in Queensland and where everyone slept.[213]
[213] WAB 41 - 42.
CB says that in all of the houses that they lived in it was rare to find a lock on the doors. The only time he can recall a lock on a bedroom door was when his parents installed one on ZY's bedroom door in 2017.[214]

Rosanna Brun's evidence

[214] WAB 42.

Ms Brun is a foster sister and cousin of LA and a friend of the appellant. She resided with the family between 3 November 2006 and 30 November 2007. She assisted with the children and with home duties in return for payment of her English tuition. She stopped living with the family when they moved to Indonesia.[215]
[215] WAB 46.
Ms Brun travelled with the family to Chile and states that the appellant always stayed in a separate room to ZY. She never observed anything untoward either in Perth or Chile.[216]
[216] WAB 47.
As regards count 2, Ms Brun states that she was cleaning when she heard WX scream. She said that she immediately ran to the room and the only people present in the room when she arrived were ZY and WX. WX was on the floor and ZY was standing. WX said that ZY had stepped on her.[217]

Jorge Diaz's evidence

[217] WAB 48.

Mr Diaz was the boyfriend of Ms Brun and from January to November 2007 he lived with her in the Manning house. He slept in a separate room on his own and Ms Brun slept in ZY's room.[218]
[218] WAB 57.
Mr Diaz states that there was never an incident where the appellant went to ZY's room in the night. He believes that if such an incident occurred Ms Brun would have been alerted and called out. He claims that during the period he lived there he slept in the house every night. He noticed nothing inappropriate.[219]
[219] WAB 57.
Mr Diaz was living in the Manning house when WX and her father came to stay. WX stayed in ZY's room. He does not recall any physical contact between WX and the appellant. He refers to an 'anecdote' involving WX being stepped on by ZY and screaming loudly. He says that the appellant was not present (though it is not apparent that he has any personal knowledge of this incident).[220]

Carlos Herrara's evidence

[220] WAB 57 - 58.

Mr Herrara is a friend from Colombia who had a work placement in Perth and lived with the family from December 2010 to March 2011. He noticed nothing untoward. There were no locks on the bedroom doors. It was very rare for WX to stay overnight.[221]

Clementina (Tina) Baldwin's evidence

[221] WAB 61.

Ms Baldwin states that she met the appellant and his wife in 2016. She became a friend of the family and states that she never observed any aggressive or abusive behaviour. She is a crisis counsellor and provided some counselling to the appellant and his wife.[222]
[222] Affidavit of Clementina Baldwin, sworn 4 April 2024.
Ms Baldwin became aware of the allegations in late 2017 and suggested that the appellant consult Mr Perrella. She attended two meetings with Mr Perrella and states that Mr Perrella said that it was not the appellant who needed to prove his innocence but that the prosecution needed to prove that he was guilty. This was something Ms Baldwin said she was surprised about (although it is obviously an entirely accurate statement of the onus of proof in criminal matters).[223]
[223] Affidavit of Clementina Baldwin, sworn 4 April 2024.
In oral evidence, Ms Baldwin reiterated what she had said in her affidavit. She said that she found what Mr Perrella said about the onus of proof confusing, but conceded that she was not 'a legal person'. When asked whether she could recall that the appellant told Mr Perrella that he had some witnesses that he could provide, Ms Baldwin said 'I don't recall that'. She did recall one brief conversation about the prospect of the appellant and his wife giving evidence in which Mr Perrella referred to it being difficult and could possibly prove not to be helpful, given that they would be cross‑examined.[224]
[224] Appeal ts 63 - 64.
In cross‑examination, Ms Baldwin accepted that other matters were referred to in the meetings with Mr Perrella. She said that there may have been a secretary present taking notes, but the appellant's wife was not present.[225]

Michael Perrella's evidence

[225] Appeal ts 65.

In his affidavit, Mr Perrella states that at his initial meeting with the appellant he explained, amongst other things, the meaning and effect of a Longman direction and why cross‑examination and demonstration of the forensic disadvantages to the appellant would weigh heavily in his favour. He explained the need to obtain a proof of evidence from the appellant to assist with cross‑examination and, in the event he decided to give evidence, as a guide for that evidence.[226]
[226] Affidavit of Michael Perrella, sworn 4 April 2024, 2.
Mr Perrella states that at a meeting closer to the first day of the trial he explained to the appellant the advantages and pitfalls of giving evidence, including: the meaning and effect of a Liberato direction; that if the appellant gave evidence he would be cross‑examined; that his defence case was to deny the allegations and give evidence that contradicted the complainant's so as to weaken their credibility; and that even though he said he did not want to give evidence, he could change his mind before the close of the prosecution case. The appellant told Mr Perrella that he did not want to give evidence. This was at a meeting close to the start of the second trial.[227]
[227] Affidavit of Michael Perrella, sworn 4 April 2024, 2 - 3.
Mr Perrella states that after the cross‑examination of ZY the appellant was happy with how the trial was progressing. However, he thought the cross‑examination of WX could have gone better. At that stage, Mr Perrella reminded the appellant that he could still give evidence. The appellant said he did not want to but would think about it overnight. The next morning the appellant confirmed that he did not want to give evidence.[228]
[228] Affidavit of Michael Perrella, sworn 4 April 2024, 3.
Mr Perrella states that the appellant provided a draft affidavit from his mother, who lives in Colombia and does not speak English. He states that the affidavit provided little admissible or useful evidence. The affidavit referred to the appellant being a wonderful son and how much he loved his children. She referred to issues in WX's family. Mr Perrella explained to the appellant that most of the affidavit was inadmissible.[229]
[229] Affidavit of Michael Perrella, sworn 4 April 2024 4.
Mr Perrella states that a private investigator was retained to obtain a draft statement from LA. The statement essentially confirmed what the appellant had said in his proof and included inadmissible hearsay conversations and opinions or theories as to why the complaints were made. Mr Perrella told the appellant that if LA gave evidence she could not sit in the courtroom during the trial until after she had given evidence. That would be at the end of the trial because LA would be the last witness to be called. Mr Perrella's assessment was that LA would be a 'hopeless' witness under cross‑examination and that there was a risk that the prosecutor would get her to agree that ZY may be telling the truth. In his view, LA would be a very emotional and less than compelling witness.[230]
[230] Affidavit of Michael Perrella, sworn 4 April 2024, 5.
In oral evidence, Mr Perrella said that both LA and the appellant told him that they wanted her to be in the court room to show support for him. He told them that that would not be possible if she was going to give evidence and that, in that case, she would have to wait outside until she was called. Mr Perrella had also formed the view, and discussed with the appellant, that LA would not make a good witness. He said that he told LA that if she gave evidence it would doubtless be put to her in cross‑examination that she was not with the appellant all of the time and so could not exclude the possibility that things happened to ZY. LA burst into tears and Mr Perrella said that if that was the way she answered the question it would not help the defence. The appellant was present at the time. The appellant then said to LA, '[y]ou won't give evidence then'. Mr Perrella also told the appellant that the private investigator had said that LA was hopeless in giving a clear narrative.[231]
[231] Appeal ts 94 - 96.
Mr Perrella said that he provided the appellant with a document containing an election as to the giving of evidence. He told the appellant he did not have to complete the election until the close of the prosecution case, because his view at the start of the trial may be very different to his view at the end of the prosecution case. In the break at the end of the prosecution case, Mr Perrella spoke to the appellant in the dock and told him that this was his final opportunity to make a decision about whether he wished to give evidence. The appellant ticked the box on the document indicating that he did not want to give evidence and signed it. His signature was witnessed by a court security guard. That signed document was tendered at the appeal hearing.[232]
[232] Appeal ts 96 - 98; exhibit 2.
In cross‑examination, Mr Perrella agreed that the appellant had provided him with draft statements of potential witnesses. One of them was that of the appellant's mother and there were five in total. He said that he read them. He agreed that the appellant had sent him an email providing comments as to inaccuracies in the prosecution witness statements and as to the availability of witnesses. There were also attachments, including statements from character witnesses.[233]
[233] Appeal ts 100 - 105.
Mr Perrella agreed that he received proofs of evidence from both the appellant and LA. He accepted that those proofs contained denials of the offences.[234]
[234] Appeal ts 105 - 106.
When asked whether the witness statements would have assisted the appellant at the trial, Mr Perrella said that his recollection was that the other witnesses (that is, other than the appellant) essentially said that they saw nothing untoward. He accepted that there were references to locks on doors, the location of the pizza restaurant and bed arrangements. He said that he cross‑examined ZY regarding the lock on her door, that WX got the location of the restaurant wrong and that he cross‑examined ZY regarding the pull‑out bed. He said that, in these circumstances, there was no need for additional evidence. He did accept that evidence that contradicted the complainants could be helpful if it was not regarding a collateral issue.[235]
[235] Appeal ts 107 - 108.
Mr Perrella said that he never formed the view that the appellant would not make a good witness. He did, however, form the view that LA was very emotional, found the whole scenario very distressing and wanted to provide the appellant with support in court. Mr Perrella accepted that if the appellant did not give evidence there would be no evidence of his denials. He said he told the appellant this.[236]
[236] Appeal ts 108 - 109.
Mr Perrella said that LA's difficulties with speaking English did not factor into his assessment of her value as a witness. He was more concerned with the content of her evidence and how emotional she would be. He did accept that there was a discussion about using an interpreter in the event that LA gave evidence. He did not tell the appellant that he would have to pay for the interpreter. When asked why he considered that LA would be a hopeless witness, Mr Perrella said that there was a lack of detail about matters that she was disputing and that many of the things referred to were not unusual such that a memory of them was likely after a passage of time.[237]
[237] Appeal ts 109 - 111.
Mr Perrella accepted that he did not have a written record of explaining to the appellant the advantages and disadvantages of giving evidence. However, he said that he had a clear memory of having done so. He could not give a verbatim account of what was said, but said that this was something that he does with every accused person before they make a decision on whether they wish to give evidence. He had an independent recollection of telling the appellant that there would be no evidence of his denials if he did not give evidence.[238]
[238] Appeal ts 112 - 118.
Mr Perrella denied that he coerced the appellant into not giving evidence. He disagreed with a proposition that he wanted the appellant not to give evidence.[239]
[239] Appeal ts 119.
Mr Perrella agreed that he received a proofing note from the prosecution regarding the evidence of ZY on the second day of the trial. He agreed that this was not ideal but that it was not unusual to receive proofing notes late. He read the note. He said that whether late receipt of the note was unfair depended on whether it prejudiced the defence. Whilst he could not recall the contents now, he said that he must not have considered that any prejudice arose as he did not seek an adjournment or a delay in ZY giving evidence.[240]
[240] Appeal ts 120 - 123.
Mr Perrella said that the prosecutor at the first trial had taken the position that she would not adduce evidence of the uncharged acts. The prosecutor at the second trial took a different view. There was an email exchange in which Mr Perrella indicated that he would object to the amount of detail to be led of the uncharged acts. That led to the ruling of the trial judge on the first day of the trial.[241]
[241] Appeal ts 126.
Mr Perrella accepted that he did not cross‑examine ZY about the incident when WX squealed (count 2). He accepted that he did not cross‑examine WX on whether she had made a mistake about the name of the pizza shop she went to. He said that he did not accept that this was such a material point as to undermine WX's credibility. The appellant tendered a Google search that showed a particular Domino's pizza shop was not in existence after 2016. Mr Perella accepted that if that information had been available at trial it might have assisted in suggesting that WX had made a mistake regarding the name of the pizza shop.[242]
[242] Appeal ts 129 - 133.
Mr Perrella accepted that he referred WX to her diary (as distinct from ZY and her diary) but did not question her about the contents of it. He said he read the diary but did not recall that it was inconsistent with the evidence that WX gave.[243]
[243] Appeal ts 134 - 136.
The appellant put to Mr Perrella that he did not put to ZY and WX that they were not telling the truth. Mr Perrella said that he and the appellant discussed this and a decision was made to approach ZY on the basis that she had an unreliable memory rather than that she was lying. The appellant drove this point in the preparations for trial, including by sending Mr Perrella a link to information about false memories. Mr Perrella said that a jury may be more likely to accept that a complainant is mistaken than deliberately lying about her father.[244]
[244] Appeal ts 136 - 138.
The appellant asked why Mr Perrella did not put to the complainants that they had colluded. Mr Perrella said that that was because there was no evidence to substantiate it and an accusation of that nature would simply be denied and would fall flat.[245]
[245] Appeal ts 138.
Mr Perrella clarified that prior to trial he had proofs of evidence from the appellant and his wife and letters or unsigned statements from the appellant's mother, his eldest son, Helen Miller, Tina Baldwin and Andrea Carlos.[246]
[246] Appeal ts 140.
Mr Perrella said that he recalled telling the appellant from an early stage that he had to weigh up giving his denials in evidence with being cross‑examined at large. However, he never gave a recommendation as to what he thought the appellant should do. He said he never gives such recommendations because that is the whole point of the election.[247]
[247] Appeal ts 142.

Ground 6 - appellant's submissions

The appellant contends that the additional evidence is inconsistent with evidence given by the complainants. He says that the additional evidence also establishes alibis in respect of two of the counts and absence of opportunity for three others. The appellant accepts that this evidence was available at the time of the trial but says that it was not adduced due to failings on the part of his trial counsel. In particular, he says that he was induced or coerced by his trial counsel into making a decision not to give evidence. He also maintains that his trial counsel failed to obtain or adduce evidence from available witnesses, despite being made aware of those witnesses. In effect, the appellant asserts that due to the alleged incompetence of counsel there has been a miscarriage of justice.[248]
[248] WAB 77 - 78.

Ground 6 - respondent's submissions

The respondent submits that all of the proposed additional evidence is either irrelevant and inadmissible, or of limited probative value. Whether considered separately or in combination, it does not establish that the appellant is innocent or raise such a doubt that the appellant should not have been convicted. The appellant has not demonstrated that the conduct of his counsel caused a miscarriage of justice. He is bound by the way the trial was conducted by counsel.[249]
[249] Appeal ts 123 - 127.

Ground 6 - the merits

The appellant's argument on this ground has two steps. First, he contends that evidence was available from the appellant and other witnesses that was not adduced due to the incompetence of his counsel. Second, he contends that the evidence was material in that, had it been adduced, it would have caused the jury to have a reasonable doubt as to his guilt.
It is implicit in the first step of the appellant's argument that the additional evidence was available at the time of the trial. The appellant suggests that the evidence was in the form of proofs or affidavits that were provided to the appellant's counsel prior to the trial, or at least that counsel was informed of the existence of this evidence. On any view, it is plainly evidence that was either in existence at that time or could have been discovered with reasonable diligence. It is new evidence, not fresh evidence.
To succeed on this ground the appellant must show that the exercise of his right to give evidence was effectively foreclosed by the receipt of incorrect advice or that the decisions made by defence counsel on matters within counsel's remit were incapable of rational explanation and that those decisions resulted in a miscarriage of justice. The relevant decisions identified by the appellant are: the decision not to call LA as a witness; and the decision not to call any of the other witnesses about whom counsel was informed.
Alternatively, the appellant must show that the new evidence establishes that the appellant is innocent or raises such a doubt that the court is satisfied that the appellant should not have been convicted.
The appellant's trial counsel says that the appellant made his own decision not to give evidence. The appellant, on the other hand, contends that he was coerced into making that decision or that he was not adequately informed about the consequences of that decision. The determination of this issue critically depends on an assessment of the evidence of Mr Perrella, the appellant, LA and Ms Baldwin.
The evidence of Mr Perrella was clear, credible and balanced. He frankly admitted when he could not recall details. He was able to draw on his file records to some extent. He admitted that there was no file note regarding advice to the appellant of the advantages and disadvantages of giving evidence. However, Mr Perrella said that he was sure that such advice had been given and that it included reference to the fact that if evidence was not given, there would be no evidence of the appellant's denials and that if he did give evidence the appellant would be cross‑examined. The signed election not to give evidence is strong proof that the appellant made an informed decision not to give evidence.
We accept Mr Perrella's evidence that the appellant's initial position was that he would not give evidence, that he reconsidered that position after the cross‑examination of WX and finally decided that he would not give evidence. The appellant's changing position reflected an appreciation that the prosecution case depended on the credibility and reliability of the complainants and that the need for him to give evidence to deny the offences might only arise to the extent that there was a likelihood that the complainants would be believed. We accept the evidence of Mr Perrella that he advised the appellant that the decision whether to give evidence was for him to make and that he did not have to make a final decision until the end of the prosecution case. We accept that Mr Perrella did not make a recommendation one way or the other, or exert any pressure on the appellant.
In contrast, the appellant's evidence lacked credibility. He made general assertions or denials as to what Mr Perrella told him at their meetings. When pressed he resorted to saying that the substance of the meetings could not be proved unless there was a contemporaneous record of what was said. The appellant's position varied between saying that he made an uninformed decision to saying that he was coerced into deciding not to give evidence. He claimed to have no understanding that if he did not give evidence there would be no evidence before the jury of his denials. Since those denials could only come from him that position lacks any credibility. As a clearly intelligent man, his denial of understanding the significance of the decision not to give evidence did not ring true, particularly given that he signed the election document. His concession that he later came to regret that decision was telling. It is inherently unlikely that the appellant would have signed the election document, a copy of which he had been given prior to the trial, without having any real understanding of the meaning and consequences of the decision he was making.
The evidence of LA and Ms Baldwin provides no material assistance to the appellant regarding his interactions with Mr Perrella. LA attended only some of the meetings and has a poor command of English. She was not present when the election document was signed. Ms Baldwin gave no evidence regarding the decision not to give evidence, other than that she was surprised to hear that the onus of proof was on the prosecution (a fact that was entirely unremarkable).
We are satisfied that the decision of the appellant not to give evidence was one that was made by him and that he understood the nature and effect of that decision. There is no basis for suggesting that the decision was the product of coercion or pressure.
As to the decision not to call LA to give evidence, that was a decision that was within the province of counsel to make. We accept the evidence of Mr Perrella that in his dealings with LA she presented as being emotional and likely to be distressed by the process of cross‑examination. There was a realistic risk that LA would lose her composure when giving evidence and make inadvertent admissions. We also accept that the evidence that LA could give was largely confined to assertions of her husband's innocence. The jury were unlikely to view LA as an impartial witness. There was also plainly an advantage in not calling LA as a witness as she could then sit in the court throughout the trial and provide moral support to the appellant (and be seen by the jury to be doing so). In these circumstances, the decision not to call LA was one that could be reasonably made by competent counsel.
It is unnecessary to make findings as to why the decision not to call LA was in fact made, as the question is an objective one. However, we note that Mr Perrella says that this was a matter discussed with the appellant and that the appellant made a decision that LA would not be called. Both the appellant and LA accepted that there was a discussion about her being in court to provide him with support. They plainly understood that this was not compatible with her also being a witness. The suggestion by the appellant that he was told by Mr Perrella that if LA was called he would have to pay for an interpreter was denied by Mr Perrella. Further, it does not reflect the true position in regard to witnesses who require the assistance of an interpreter to give evidence.
As to the decision not to call the other witnesses identified, again that was a decision within the province of defence counsel to make. In addition to the appellant and LA, Mr Perrella accepts that he was provided with draft statements or letters from five other witnesses. It is noteworthy that those witnesses are not identical to the witnesses who have provided affidavits and statutory declarations for these proceedings. We accept Mr Perrella's evidence that he read the material that he was given. The material contains much information that would be inadmissible, including statements of opinion and speculation. The matters of possible relevance are small in compass, and it was plainly open to competent counsel to conclude that there was very little to be gained from calling these witnesses. The limitations of this evidence are revealed in the similar (though not identical) affidavits filed on this appeal and which will be dealt with shortly.
The appellant has failed to establish that there is no reasonable explanation for the failure to call as witnesses himself, LA or the other people identified in communications with Mr Perrella. Objectively, there were reasonable explanations for those decisions. The appellant is bound by the conduct of his counsel. An appeal is not an opportunity to advance an alternative defence case. The appellant has not demonstrated that the conduct of his trial counsel caused a miscarriage of justice.
We now turn to consider the alternative position, that the new evidence submitted on the appeal in itself establishes a miscarriage of justice. That evidence has been set out earlier in these reasons. It being new, and not fresh, evidence, the question is whether the evidence establishes that the appellant is innocent or raises such a doubt that the court is satisfied that the appellant should not have been convicted. Evidence that is relevant only to the credibility of the complainants as regards details is very unlikely to meet this standard.
The appellant submits that the new evidence establishes lack of opportunity for count 1. In fact, the additional evidence of the appellant is no more than a denial of the offence. The evidence of LA and AE is to the effect that ZY did not sleep in her brother's room at the relevant time. This does not establish that the offence could not have occurred. Far less does it establish that the appellant did not have an opportunity to commit it. At best, it is evidence that is inconsistent with one detail of ZY's evidence, that is, in what room in the house this act occurred.
As to count 2, the appellant submits that the new evidence of LA, Ms Brun and Mr Diaz provides him with an alibi because each of them says that he was not in the room when WX screamed. That is not an accurate reflection of the evidence. None of those witnesses say that they were in the room at the time WX screamed and their evidence is based only on inference. LA can only say that the appellant was not in the room when she arrived. Ms Brun was cleaning a short distance away and can also only say that the appellant was not there when she arrived. Mr Diaz only recounts an 'anecdote' and his evidence appears to be inadmissible hearsay. Further, the evidence that WX said that she had been stepped on by ZY is inadmissible except as a prior inconsistent statement. It was not put to WX in cross‑examination that she had said this, and it is entirely inconsistent with the evidence that she did give. This evidence does not establish that the appellant could not have committed count 2.
As to count 3, the appellant submits that the additional evidence of himself, LA and AE is inconsistent with the scenario presented by WX. In particular, he says that that evidence calls into question the existence of a Domino's pizza shop near the appellant's house and that WX never went to a Domino's pizza shop with the appellant. He also relies on the Google search that was tendered during the evidence of Mr Perrella. WX did not say where the pizza shop was, she could only give a general description of the location. For that reason, the indictment was amended to change the location of count 3 from 'Canning Vale' to 'Perth Metropolitan Area'. This significantly reduces the relevance of any evidence regarding a Domino's shop in Canning Vale. As to whether WX ever went with the appellant to get pizza, the additional evidence contradicts WX's evidence in very general terms. It does not establish that the offence could not have occurred as alleged.
As to counts 4 to 7, the appellant submits that the additional evidence of himself, LA, AE and CB is inconsistent with that of WX in regard to whether there was a lock on the bedroom door, whether it was possible to stand between the main bed and the pull‑out bed and whether three people could be on the bed at the same time. WX said in evidence that she heard a click and believed it was the door being locked. Proof that there was no lock on the door does not establish that the offence could not have occurred. As to whether it was possible to stand between the beds, this depends on what bedding was used at the relevant time. WX said that she was not sleeping on the pull‑out bed at the time and denials by others that any other bedding was used does not establish conclusively that it was not. Whether ZY's bed could accommodate three people is a matter on which there is conflicting evidence. Again, at best, the new evidence contradicts details of WX's evidence. It does not establish that the offences could not have occurred.
The appellant also submits that WX's diary is evidence that is significant and should have been put to her in cross‑examination. This is evidence that was disclosed prior to trial. The diary includes a description of the acts constituting counts 3 to 6. The appellant suggests that there are material differences between this account and WX's evidence. In fact, the diary entries are very largely consistent with the evidence that WX gave (which no doubt accounts for why she was not cross‑examined about it in detail). If WX had been cross‑examined on the details of her diary entries the likelihood is that the diary would have been tendered by the prosecution and that this would have been adverse to the appellant. This evidence does not establish that the relevant offences could not have occurred.
As to count 8, the appellant submits that the additional evidence of LA establishes that he was with his wife in their bedroom and could not have committed this offence. That overstates the evidence of LA. The best that she can say is that if the appellant had got out of bed that night, she believes that she would have woken. This evidence does not establish that the offence could not have occurred.
Other than the matters referred to, much of the rest of the evidence the appellant seeks to adduce is either irrelevant, inadmissible or of limited probative value. Some of it is character evidence, that is, the witnesses attest to the prior good character of the appellant and say that they saw nothing that caused them to suspect anything untoward. The character evidence cannot establish the test required for new evidence to give rise to a miscarriage of justice.
The new evidence does not establish that the appellant is innocent, nor does it raise such a doubt that we are satisfied that the appellant should not have been convicted.
The appellant's application to adduce additional evidence should be refused. The State's application to adduce additional evidence therefore falls away and should likewise be dismissed. This ground has no reasonable prospects of success. Leave to appeal in respect of it should be refused.

Ground 7 - the merits

This ground can be dealt with briefly. In essence, the appellant contends that the prosecutor caused a miscarriage of justice by failing to call all material witnesses, by leading evidence of uncharged acts that extended beyond the trial judge's ruling and by using the uncharged acts in an unapproved way.[250]
[250] WAB 78.
The contention that the prosecutor failed to call all material witnesses relies on the failure of the prosecutor to call the appellants wife, LA, and his sons. LA and the appellant's sons were not interviewed by the police and did not provide witness statements to the police. The appellant's contention that the prosecutor should have called them appears to rely on an assumption that as residents of the houses where the offences occurred, they must have been able to give relevant evidence (and that that assumption is borne out by the evidence that they have provided on the appeal).
The prosecutor bears responsibility for deciding whether a person will be called as a prosecution witness. A prosecutor may have good reasons for not calling a person, for example that the person is not known to have anything material to say or cannot be relied on to be a truthful witness. The prosecutor is not obliged to give reasons and the trial judge is not required to adjudicate on the sufficiency of any reasons. A decision of a prosecutor not to call a person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it gives rise to miscarriage of justice.[251]
[251] R v Apostolides [1984] HCA 38; (1984) 154 CLR 563, 575.
In the present case the prosecutor was under no obligation to call witnesses who had not indicated that they had anything material to say. In any event, even if statements had been provided, the prosecutor would have had to consider whether these potential witnesses were unbiased and could be relied upon as witnesses of the truth. There would have been obvious reasons to doubt those matters. It has not been established that any failure by the prosecution to call the persons referred to resulted in a miscarriage of justice.
As to the calling of evidence of uncharged acts, this issue has been dealt with earlier in these reasons. There is no proper basis for suggesting that the uncharged acts evidence was inadmissible or was led contrary to the trial judge's ruling.
The appellant submits that the uncharged acts evidence was used as propensity evidence, rather than merely context evidence. He refers to the prosecutor's opening address in which there was reference to the evidence being relevant to 'grooming behaviour'. In context, this reference is part of a passage in which the prosecutor suggests that there may be an explanation for why ZY reacted, or failed to react, in the way she did in regard to count 8. The prosecutor was not inviting propensity reasoning, rather he was seeking to explain the context of the relationship between ZY and the appellant that had developed over many years. In any event, the trial judge directed the jury that the uncharged acts could not be used to establish that the appellant was the kind of person who was likely to have committed the offences with which he had been charged.
This ground of appeal has no reasonable prospect of success. Leave in respect of it should be refused.

Conclusion

None of the grounds of appeal has a reasonable prospect of success. Accordingly, the appeal should be dismissed.

Orders

1.Application for an extension of time to appeal granted.
2.Applications to adduce additional evidence refused.
3.Leave to appeal refused.
4.Application for bail dismissed.
5. Appeal dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ID
Associate to the Honourable Justice Hall
30 SEPTEMBER 2024