Jago v The State of Western Australia
[2022] WASCA 2
•10 JANUARY 2022
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: JAGO -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 2
CORAM: BUSS P
BEECH JA
HALL J
HEARD: 10 NOVEMBER 2021
DELIVERED : 10 JANUARY 2022
FILE NO/S: CACR 123 of 2020
BETWEEN: ERIC JOSEPH JAGO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: TROY DCJ
File Number : IND 1257 of 2019
Catchwords:
Criminal law - Ten convictions of unlawfully and indecently dealing with a girl under the age of 13 years - Where the trial took place more than thirty years after the offences occurred - Whether the verdicts of guilty were unreasonable and could not be supported by the evidence - Whether the combined effect of several matters meant that it was not open to the jury to be satisfied beyond reasonable doubt of the reliability of the complainant's evidence that the appellant was the offender
Legislation:
Nil
Result:
Leave to appeal on ground 1 refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | T F Percy QC & H E Prince |
| Respondent | : | R G Wilson |
Solicitors:
| Appellant | : | Australian Family Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Dayananda v The State of Western Australia [2021] WASCA 11
M v The Queen (1994) 181 CLR 487
MEN v The State of Western Australia [2020] WASCA 118
Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123
PYN v The State of Western Australia [2020] WASCA 116
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Wells v The State of Western Australia [2017] WASCA 27
JUDGMENT OF THE COURT:
Introduction
The appellant challenges his conviction, after trial, of 10 counts of unlawfully and indecently dealing with a girl under the age of 13 years. The offences were said to have occurred on two separate occasions in the 1980s. The trial took place in 2020.
The State case was that the appellant met the complainant's mother at their local pub. On two occasions, the appellant picked up the complainant, her brother and her brother's friend from the complainant's house and took the children to the beach, and then to a house, before returning the children to the complainant's house. On each occasion, the appellant sexually assaulted the complainant at the beach and also at the house. The defence case was that if the complainant was sexually assaulted, the appellant was not the offender.
The appellant's sole ground of appeal contends that the verdicts are unreasonable and cannot be supported by the evidence. The appellant submits that it was not open for the jury to have been satisfied beyond reasonable doubt as to the credibility and reliability of the complainant's evidence. In particular, the appellant points to inconsistencies between her evidence and other evidence, and other unsatisfactory aspects of her evidence, concerning, among other things, when the offending occurred, features of the appellant's house and the layout of the appellant's bedroom, the appellant's tattoos, and whether it would have been possible for the appellant to lie underneath his car.
For the reasons that follow, the ground of appeal has insufficient merit to sustain the grant of leave to appeal. Leave to appeal must be refused and the appeal dismissed. In our view, the position is accurately reflected in the concluding submissions of the respondent to the following effect.
The complainant gave cogent and detailed evidence of offending against her by the appellant. Her evidence was, in substance, consistent with other evidence led at the trial. It is clear that the complainant was mistaken as to her precise age when the offending occurred. Other evidence in the case firmly established the time period in which the offences occurred. The complainant's mistake as to her age did not significantly undermine the credibility or reliability of her evidence of the offending. The other inconsistencies and aspects of her evidence to which the appellant points are properly regarded as peripheral. The jury was entitled to be satisfied beyond reasonable doubt as to the credibility and reliability of her evidence of the appellant's offending.
The charges
The appellant was charged with, and convicted of, the following offences:
(1)On a date unknown between 19 November 1984 and 5 December 1984 at Waikiki [the appellant] unlawfully and indecently dealt with [the complainant], a girl under the age of 13 years, by rubbing her clitoral area.
(2)On the same unknown date as in Count (1) at Cooloongup [the appellant] unlawfully and indecently dealt with [the complainant], a girl under the age of 13 years, by engaging in cunnilingus.
(3)On the same unknown date and at the same place as in Count (2) [the appellant] unlawfully and indecently dealt with [the complainant], a girl under the age of 13 years, by putting his finger in or on her vagina.
(4)On the same unknown date and at the same place as in Count (2) [the appellant] unlawfully and indecently dealt with [the complainant], a girl under the age of 13 years, by masturbating his penis with her hand.
(5)On the same unknown date and at the same place as in Count (2) [the appellant] unlawfully and indecently dealt with [the complainant], a girl under the age of 13 years, by engaging in cunnilingus.
(6)On another unknown date between 19 November 1984 and 5 December 1984 at a place unknown in Western Australia [the appellant] unlawfully and indecently dealt with [the complainant], a girl under the age of 13 years, by rubbing her vagina.
(7)On the same unknown date and at the same place as in Count (6) [the appellant] again unlawfully and indecently dealt with [the complainant], a girl under the age of 13 years, by rubbing her vagina.
(8)On the same unknown date and at the same place as in Count (6) [the appellant] unlawfully and indecently dealt with [the complainant], a girl under the age of 13 years, by engaging in cunnilingus.
(9)On the same unknown date and at the same place as in Count (6) [the appellant] unlawfully and indecently dealt with [the complainant], a girl under the age of 13 years, by inserting his finger into her vagina.
(10)On the same unknown date as in Count (6) at Cooloongup [the appellant] again unlawfully and indecently dealt with [the complainant], a girl under the age of 13 years, by inserting his finger into her vagina.
The State case
In summary, the State case was that the appellant met the complainant's mother at a pub while the mother was there with her friend (the mother's friend). Sometime after this, the appellant took the complainant, her brother and another child to the beach. The appellant sexually offended against the complainant both at the beach (count 1) and at his house (counts 2 ‑ 5), where he took the children after the beach, before dropping the children home. The appellant took the complainant and the other children on a second trip to a different beach. On the second trip, the appellant again sexually offended against the complainant at the beach (counts 6 ‑ 9) and then at his house (count 10).[1]
[1] ts 33 ‑ 34, 42 ‑ 43.
The prosecutor identified the main people involved in this matter, namely: the complainant, the complainant's mother, the complainant's brother, her mother's friend, and the children of her mother's friend (Daniel (or Danny), David and Debra).[2]
[2] ts 34.
The prosecutor then outlined in more detail the evidence she anticipated would be given by the State witnesses. That outline included the following.
(1)The prosecutor said that the complainant's mother would give evidence that the appellant picked up the complainant and her brother from their house on a few occasions in a red Mitsubishi Triton and would drop the children back home later in the day.[3]
(2)The prosecutor outlined the evidence she anticipated the complainant would give as to the two occasions on which the appellant sexually offended against her, including details about each of the offences.[4] Among other things, the prosecutor said that the complainant would give evidence that the appellant picked up the children in a red four‑wheel‑drive single cab vehicle when he drove them to the beach.[5]
(3)The prosecutor said the complainant would give evidence that, after the two occasions the appellant sexually abused her, she had further contact with him but only while she was also with her mother. One such occasion was the day she had a piece of tissue stuck in her ear and was taken to hospital. The prosecutor said that an outpatient treatment record from the hospital the complainant attended that day would be tendered as an exhibit. The date of that hospital attendance was 5 December 1984.[6]
[3] ts 34, 39.
[4] ts 34 ‑ 38.
[5] ts 34.
[6] ts 38.
As to when the sexual offending occurred, the prosecutor began her opening address by stating that '[i]n late 1984 [the complainant] … was 11 years old'.[7] Towards the end of her opening, the prosecutor said:[8]
Now, in terms of when these events occurred I anticipate that you'll hear different accounts from [the complainant's mother] and [the mother's friend] as to what year it was when they met [the appellant]. [The mother's friend] will give evidence that her daughter [Debra] who was born in 1982 was about two years old which would make it 1984.
[The complainant's mother] will say that she recalls it being sometime around 1980. [The complainant] in her evidence will say that she was around nine or 10 years old when [the appellant] sexually offended against her so that would have made it around 1982 or 1983.
Now, as you've heard from the charges that were read out earlier and as I mentioned already the State's case is that [the appellant] committed these offences on unknown dates in late 1984 specifically between 19 November and 5 December 1984.
I explained already where the end date comes from as that's the date of [the complainant's] attendance at the Rockingham Hospital. The start date relates to the evidence which you'll hear about the vehicle which [the appellant] was driving at the time. Now, I've said already [the complainant's mother] will describe it as a red Mitsubishi Triton, and that [the complainant] will describe a red 4-wheel drive dual cab vehicle.[[9]]
One of the documents or exhibits that you'll be shown as part of the State case will be a certificate from the Department of Transport which confirms that their records show that from 20 November 1984 up until February 1991 [the appellant] had licensed to him a red-and-white Mitsubishi utility. So that gives us a useful starting point for when on the evidence of [the complainant's mother] and [the complainant] the offending could have occurred.
[7] ts 33.
[8] ts 40 ‑ 41.
[9] The reference in this passage to a 'dual cab vehicle' appears to have been an error. The prosecutor, earlier in her address, said that she expected that the complainant would give evidence that the appellant drove a 'red 4‑wheel drive single cab vehicle' (ts 34) and, as summarised below, that was the evidence the complainant gave about the appellant's vehicle.
As this passage demonstrates, it was the State case that the complainant was mistaken as to her age when the offending occurred ‑ the prosecutor anticipated that the complainant would give evidence that she was 9 or 10 years old at the time of the offending, making it 1982 or 1983, whereas on the State case the offending occurred between 19 November 1984 and 5 December 1984.
The defence case
The defence case was that if the complainant was sexually abused as a child, the appellant was not the offender:[10]
Now, it's not simply a matter of us saying ‑ [the appellant] saying these things didn't occur. We don't know whether they occurred or not. What [the appellant] says is 'It was not me' and that's an important difference. We don't know what occurred to [the complainant] but what we do say is that it was not [the appellant] who did these things to her, if they occurred.
So that's a difference from what the State says. So they've got it wrong in that aspect. So remember, we don't know what happened to [the complainant]. She's clearly been very distressed by this, but what we say, that it was not [the appellant], and we will refer to some of the other evidence in due course.
…
As I said, it's not a case of it didn't happen necessarily. All that [the appellant] was saying [in his interview with the police] is, 'I did not do this'.
…
And what you'll clearly hear, and what I've told you on a number of occasions now, is what [the appellant] says is, he doesn't know what happened to [the complainant]. What he is saying to you very clearly, 'It was not me. I did not do these things'. … So we will say that whatever [the complainant's] problems are, her issues are, it's very sad. It is not [the appellant] who did these things to her.
[10] ts 46, 49 ‑ 50.
Defence counsel also pointed out in her opening that it was anticipated that the complainant would say she was 8 or 9 years old when the offending occurred, while the State case is that the offending must have occurred when the complainant was 11 1/2 years old. Defence counsel said that this goes to the complainant's reliability, that it 'may have some consequences in the future' and that the jury would have to 'look at that very carefully'.[11] She also mentioned that, depending on the time period the offences are said to have occurred, the appellant might not have been able to do it.[12]
[11] ts 46 ‑ 47, 49.
[12] ts 49.
The evidence led by the State
The complainant's evidence
As will be seen, the complainant gave a very detailed account of the events that, on the State case, were the subject of the counts in the indictment. Because the nature and extent of that detail was capable of bearing on the credibility and reliability of the complainant's evidence, we set it out below in considerable detail.
Evidence-in-chief
The complainant's evidence was that she was born in 1973 and in the early 1980s she lived with her brother and mother.[13] She said that the appellant was a friend of her mother and that she (the complainant) met the appellant when she was about 9 or 10 years old. The complainant said that the appellant would party with her mother and her friends at her house or at the pub.[14]
[13] ts 52 ‑ 53.
[14] ts 53.
The complainant said she would spend time with the appellant without her mother being present. The first time this occurred was when the appellant asked if the complainant, her brother and David wanted to go to the beach. The complainant's evidence was that she was sitting at the front of her house, while her brother and David were also playing there, when the appellant came and said to her 'Go and get your bathers on. I'm going to take you down to the beach. It's okay with your mum'. The complainant could not recall the time of year when this occurred, but she remembered that it was during a fairly hot time of the year. When asked who else was at the house at this time, the complainant said her mother's friend was there 'with her other kids'. She said her mother's friend's children were Danny, David and Debra, who was 'only a baby'. She did not recall which other adults were there, but she said '[w]e were always together … either at our house or [the mother's friend's] house'.[15]
[15] ts 53 ‑ 54.
The complainant said that the appellant drove them to Waikiki Beach in his car which was a red single cab four‑wheel‑drive. Once they parked the car, they ran down some stairs or concrete 'steppings' and went straight into the water. The complainant, her brother and David were body surfing in the water while the appellant was sitting on some rocks on the shore.[16]
[16] ts 55 ‑ 56.
The complainant said that her legs began to get quite sand chafed and she became uncomfortable. She said she walked out of the water towards the appellant to get her towel. He asked her what was wrong and she explained that the sand was hurting her legs.[17]
[17] ts 55 ‑ 56.
The complainant said that the appellant suggested she take off her bathers, which she did. He then wrapped a towel around her. In addition to the towel, she may or may not have been wearing a shirt ‑ but she did not have any bottoms on other than the towel. The complainant's evidence was that the appellant then sat her on his lap. The complainant's back was facing the water. David and the complainant's brother were still in the water at this point.[18]
[18] ts 56 ‑ 57.
The appellant asked her to open her legs to let the air dry the sand. The appellant then began brushing some of the sand away, and then moved his hand up towards her vagina and brushed over her clitoris. The complainant's evidence was that she flinched, and the appellant apologised and asked if he had hurt her, to which she said 'no'. The appellant continued to brush sand away and was brushing over her clitoris more regularly. When the prosecutor asked her to clarify what she meant by 'more regularly', the complainant said that when the appellant asked whether it was hurting, she told the appellant 'no, it felt nice'. After she said that, he rubbed her clitoris more forcefully and quite vigorously, until she climaxed (count 1).[19]
[19] ts 56 ‑ 58.
Later in her evidence-in-chief, the complainant added that, when she told the appellant that it felt good while he was touching her clitoris, he said '[i]f you think this feels good wait until we get back to the house'.[20]
[20] ts 58.
Soon after, David and the complainant's brother came out from the water and the appellant said it was time to go. They got back into the appellant's car and drove to his house.[21]
[21] ts 58.
When they arrived at the appellant's house, she walked straight through his house to the toilet, which was at the back of the house. When she came out from the toilet the appellant guided her to his bedroom.[22] She described the layout of his bedroom as follows:[23]
So as you're walking into his bedroom door there's a - his bed was to the left-hand side. There was a partial wall on the right-hand side and there was, I think, a set of drawers at the end of his bed and the bedside tables next to the top of his bed here.
She clarified what she meant by 'partial wall':[24]
So behind the wall, I - I never actually was able to go round there but I was under the impression by - - -
…
There was just something around the other side of the wall. There was more room.
[22] ts 58 ‑ 59.
[23] ts 59.
[24] ts 59.
After she and the appellant entered his bedroom, he suggested she take her pants off so he could see if there was more sand. She did so, and the appellant rubbed her clitoris (count 3). The appellant then told her he could not see properly and that she should hop on the bed, so that he could get the sand out from inside her vagina. She asked whether he needed a cloth to remove the sand. The appellant said he would use his tongue to do this. She told the appellant that he would get sand in his mouth and the appellant replied that he would spit it out later.[25]
[25] ts 59 ‑ 60.
She then lay on the bed, while the appellant was kneeling between her legs. The appellant licked her clitoris and inside her vagina, while his hands were positioned underneath her bottom, and he used his thumbs to spread her vagina. The complainant's evidence was that the appellant told her that this would have to be their little secret and that she could not tell her mother. She further gave evidence that she told the appellant that she did not like what was happening and that it was hurting. This continued until the complainant orgasmed (count 2).[26]
[26] ts 60 ‑ 61, 63.
The complainant said that she hopped off the bed and looked for her shorts. The appellant had pulled his pants down, revealing his erect penis. The appellant told her that 'it was his turn to get the sand off'. The appellant used his hand to position the complainant's hand around his penis, moving her hand in a vertical motion to masturbate him. The appellant then lay on the bed, and this continued. The appellant then removed his hand from the complainant's hand, and the complainant immediately removed her hand (count 4).[27]
[27] ts 63 ‑ 65.
The appellant then told her to lay on the bed again, which she did. The appellant licked and pushed his tongue inside her vagina forcefully, and pushed his finger inside her vagina. She did not know how long this continued (count 5).[28]
[28] ts 65 ‑ 66.
She said that the appellant was interrupted when David and her brother were at the front door, rattling the door handle to try to enter the house. The appellant went to unlock the door. She could hear that it was David and her brother who entered. When the appellant left the room, she grabbed her pants, went to the toilet, and stayed there, until she heard where they were standing. When she left the bathroom, they were in the family room area of the house and the appellant said that it was time to go home. The appellant then drove them back to the complainant's house.[29]
[29] ts 66 ‑ 67.
The complainant was then asked whether she had further contact with the appellant after that beach trip. She said that she did and that it was a similar situation where her mother and her friends had got together at the complainant's house and the appellant said he would take the children to the beach again. The complainant gave evidence that she did not want to go to the beach with him and that when she told her mother this, her mother said 'Don't be silly. Off you go with your brother and David'. The complainant said this made her feel like she had to go.[30]
[30] ts 67 ‑ 68.
The appellant drove her, her brother and David in his car[31] to a different beach (not Waikiki Beach, which is where they had gone on the earlier occasion). This time, the appellant parked the car on the sand of the beach, a little way back from the water. The appellant, the complainant, her brother and David were all in the water. The appellant was playing with the children by throwing them in the air so they could dive into the water. Then, David and the complainant's brother went to the shoreline to dig a moat, while the appellant and complainant were still in the water.[32]
[31] In cross‑examination, the complainant said the car the appellant drove to the beach on the day of the second incident was a red four‑wheel‑drive, ts 101.
[32] ts 68 ‑ 69.
The complainant then gave evidence that the appellant said to her '[h]op on my back and we'll do a dolphin dive'. She did as he asked, and the appellant dove under water and went into the deep water. The complainant said in evidence that she was petrified of the deep water. The appellant then suggested to the complainant that she lay on her back, and that he would lay underneath her, and that they would float back to shore. The complainant gave evidence that, while in this position, the appellant put his fingers on the outside of her bathers and started rubbing her clitoris. Then, he put his hand inside her bathers and started rubbing the inside of her vagina. The complainant said she felt so scared she was going to drown and that she felt she either had to stay and be abused or she would drown. The complainant said she could not recall how long this occurred, but that he touched her for a while (count 6).[33]
[33] ts 69 ‑ 70.
When they returned to shore, the complainant got her towel and laid underneath the appellant's car. She explained in her evidence that this was because it was hot and she did not want to get burnt, and that this was also her way of protecting herself from the appellant. She said that, soon after, the appellant was underneath the car with her, touching her vagina over her bathers, and then later inside her bathers (count 7). At this point, the complainant's brother and David had moved further down the beach.[34]
[34] ts 70.
While underneath the car, the appellant said to her that she should get into the car and that they would continue their 'little game'. The appellant's evidence was that she got into the car and proceeded to lay down at the driver's seat but that the appellant told her that she had to sit up and keep watch. She did this while the appellant was kneeling on the sand between her legs, and while the driver's side door was open. The complainant gave evidence that the appellant pulled her bathers to the side and proceeded to lick her clitoris (count 8) and inserted his finger inside her vagina (count 9). The complainant said that she told the appellant to stop because it was hurting, so the appellant stopped with his finger but continued to lick her clitoris. He did so until she reached orgasm. Her evidence was that she told him 'I need you to stop, I'm going to wet myself' and that he said to her 'it's okay, you'll wet on the sand'. The appellant stopped what he was doing when the complainant told him she saw someone approaching. The appellant said that her vagina was so painful and burning, and that it felt like she had been torn.[35]
[35] ts 70 ‑ 71.
When David and the complainant's brother returned, they drove from the beach back to the appellant's house again. The complainant went to the bathroom at the appellant's house. When she came out of the bathroom, the appellant was standing near his bedroom and prevented the complainant from getting through. The appellant told her that he had sent the boys to the deli with $20. She became caught, because she was standing facing towards a brick wall and the appellant was standing behind her. She said that he put one hand on her shoulder and put his fingers inside her bathing suit and started to forcefully put his fingers inside her vagina (count 10). She then pushed his hand away, turned, and ran for the front door. She went outside and sat on the front curb and waited for the boys to come back. The appellant did not go outside. The complainant said that when the boys returned, the appellant ushered them into his car and drove them back to the complainant's house.[36]
[36] ts 72 ‑ 73.
The complainant said in evidence that, after this second beach trip, she had further contact with the appellant,[37] but only while her mother was also present.[38]
[37] ts 73.
[38] ts 74.
One evening, she went in her mother's car to the appellant's house and they ended up staying the night at his house. The complainant said that she had known that they were going to the appellant's house so she put tissues in her ear because she thought that if she could not hear the appellant she would not have to interact with him. She gave evidence that a tissue became lodged in her ear and became very painful. The next morning, while at the appellant's house, the appellant suggested that she lie on the floor and that the appellant would try to the remove the tissue. The complainant's evidence was that the appellant was unsuccessful, so she went to Rockingham Hospital to have the tissue removed.[39]
[39] ts 73 ‑ 74.
The complainant's evidence was that she did not know when the hospital visit occurred and that it was the only time she attended hospital to have a tissue removed from her ear.[40]
[40] ts 74.
The complainant gave evidence that, after the hospital visit, she spent another time with the appellant at his house with her mother, her now‑father (the mother's partner), her mother's friend and other adults but she did not know the names of the other adults. She said that all the children had a sleepover in the loungeroom. The complainant said that she did not recall any other time that she went to the appellant's house after this.[41]
[41] ts 74.
The complainant referred to her mother's partner as her dad. She said that she took his surname when he married her mother and he adopted her and her brother.[42]
[42] ts 53, 74, 84, 86.
The complainant was shown a photo of her as a child in a bathing suit with her brother. She gave evidence that the bathing suit in the photo was the bathing suit she wore during the two trips to the beach that she described in her evidence and that the photo was taken in the period: 'right when it was happening'. She said she was about 9 or 10 years old in the photo.[43]
Cross‑examination
[43] ts 75.
In cross‑examination, the complainant agreed with defence counsel that in the early 1980s, her mother was going to a lot of parties at peoples' homes and at the local pub. She also said that her mother would have had a few boyfriends and that some of the men in her mother's life during that period were violent.[44]
[44] ts 85 ‑ 86; see also ts 112.
She was asked if she recalled an ex‑police officer in respect of whom her mother had said 'he's a good guy … you can rely on him'. She responded, 'She could've done'. She said that he 'could have been' someone she used to visit.[45]
[45] ts 112 - 113.
Defence counsel asked the complainant about her statements as to when the offending occurred. The complainant agreed that she initially told police she was 8 or 9 years old when the offending occurred. Then, when defence counsel put to her that, in chief, she had said that she was 9 or 10 years old at the time of the offending, the complainant said: 'It happened between either 8, 9 or 10 [years old]. I can't pinpoint the exact … date'. The complainant said then and at other times in cross‑examination that she was not 11 1/2 years old when the offending occurred.[46]
[46] ts 87 ‑ 88, 101, 111.
Later in cross‑examination, the complainant gave evidence that when police asked her if she could in any way assist as to the date of the offending, she pointed to the time when she went to hospital to have a tissue removed from her ear because those events occurred around the same time.[47] When asked whether she was 9 or 10 years old when these events occurred, she said '[t]hat's what I recall. That's the age group that I recall. I don't recall it being any other age group'. She also agreed that there is a difference between being 11 1/2 years old, on the one hand, and being 9 or 10 years old, on the other.[48]
[47] ts 111, 115.
[48] ts 111 ‑ 112; see also ts 115.
When asked about the age of Debra at the time of the offending, the complainant said that Debra was a baby, not a toddler; that she was a 'little baby, she wasn't walking'; and that she would have been able to sit up and crawl, but she was not walking around and was not a talking toddler.[49]
[49] ts 92 ‑ 93.
The complainant denied the proposition, put to her by defence counsel, that she did not attend the hospital from the appellant's house, and that she went from her house to the hospital.[50]
[50] ts 116.
Defence counsel also referred to the complainant's evidence that she went down some steps to the beach. She showed the complainant three photos of steps going down to a beach. The complainant did not recognise what was depicted in any of those photos.[51]
[51] ts 89 ‑ 90.
The complainant confirmed that, in the lead up to the trial, she used Google Maps to try to recall the appellant's address. The complainant had identified a house on Google Maps which she thought was around the area of the appellant's house and which she thought could have been the appellant's house, though she did not conclude that it was his house.[52]
[52] ts 91 ‑ 92.
Defence counsel asked the complainant what she remembered about the layout of the appellant's house. The complainant said she remembered there was a sunken lounge to the left as you walk into the house; there was a kitchen a bit further down; and an open area with a bar in the back of the family room.[53] As to the layout of the appellant's bedroom, the complainant said:[54]
[DEFENCE COUNSEL]: … You've explained that in the bedroom the bed was on the ‑ this is [the appellant's] bedroom you say, the bed was on the left-hand side so you walk in the door, the bedroom is on the left and you talked about a set of a chest of drawers at the end of the bed. That was against the wall, wasn't it? Is that what you're saying?---There was some type of, there was some type of drawers or something at the end, against the wall, that's right.
So as you look at the ‑ so what you're saying is the bedroom you were in when you look through the doorway?---Yeah.
The bed is on the left?---Yeah.
And then on the other wall so the far wall if you like from the door where you're standing that's where that chest of drawers was, is that correct? That's what you're saying?---At the end of his bed against that wall.
Sorry. Are you saying that the chest of drawers was actually abutted up against the end of the bed or are you saying it was on the wall in front of the end of the bed if you like on the far wall?---So against the wall at the end of his bed so there was his bed, there was a gap and there was some type of drawers at the end of ‑ on that wall.
All right.
[THE JUDGE]: So perhaps I can just clarify, so the end of the bed, as I understand it, is where your feet would be?---Correct.
Are you saying that's where the chest of drawers was or at the side?---No, it was actually against the wall so there was room to get between the drawers and his bed.
[53] ts 93 ‑ 94.
[54] ts 95 ‑ 96.
The complainant agreed that she had been to the appellant's house with her mother and her mother's friend a number of times before the offending occurred. She also agreed that, though she gave statements to police in February 2016, January 2019 and June 2020, she told the police only in July 2020, one week before the trial started, that she had been to the appellant's house with her mother on occasions before the two times the offending occurred. The complainant explained that this was because her statement had to do with the sexual assault, not to do with being at his house. She denied the proposition, put to her by defence counsel, that she was trying to give the police the impression that the only times she had been to the appellant's house was when she was there with him alone and that that was the only way she could have known the layout of his house.[55] She added that the police did not ask her whether she had been at the appellant's house at times other than when the offending occurred,[56] and she reiterated this in re‑examination.[57]
[55] ts 96 ‑ 98.
[56] ts 98.
[57] ts 119 ‑ 120.
When asked whether there was anything significant about the house, what or who was there or living there, the complainant said 'no'. She also said 'no' when asked whether there were pets at the house. She said she did not recall any animals being there.[58]
[58] ts 98.
The complainant said that she had also been out on a boat with her mother, brother and the appellant. She said that she did not recall that the mother's friend and her children were on the boat as well. The complainant confirmed that the appellant's offending against her occurred during trips to the beach, not when they went out on the boat.
Both incidents occurred when she went to the beach with the appellant, David and her brother and not Danny.[59] On the first of these trips to the beach, the complainant was excited to go. She did not speak to her mum about going to the beach with the appellant. Rather, the appellant had already organised it with her mum and he told the children to get their beach gear.[60]
[59] ts 99, 100.
[60] ts 100.
Defence counsel asked the complainant whether she found it hard to recall the second incident. The complainant responded that she never found it hard to remember any of the incidents, adding '[i]t was just hard to report because of what he had put me through'.[61]
[61] ts 101, see also ts 103 ‑ 104.
The complainant said that after the first incident she felt guilty about it because it made her feel good.[62]
[62] ts 101, 120.
As to the second beach trip, the complainant confirmed her evidence that the appellant parked his car on the beach with the driver's side of the vehicle parked parallel to the water. She said she did not recall how far away the driver's side of the vehicle was from the water. But, she said, the water was not lapping at the tyres.[63]
[63] ts 101 ‑102.
The complainant again said that she was lying under the car and that the appellant got under the car as well ‑ he was actually lying under the car next to the complainant. She said his body was not against her body on one side ‑ there was a little bit of distance between them ‑ but his body was under the car, as was hers.[64]
[64] ts 103.
Defence counsel put it to her that 'these incidents did not occur with' the appellant; that it was not the appellant who did anything to her; that he did not take her and the other children to the beach at all; and that she was never alone with the appellant in his house. The complainant rejected each of these propositions. When the second of them was put to her she responded: '[it] was definitely Eric Jago that did it to me'.[65] She also denied the proposition that the reason she knew about the appellant's house was because she had previously been there with her mother and her mother's friend; she said that she had been to the appellant's house with them but that she knew about his house because he abused her on his bed.[66]
[65] ts 104.
[66] ts 104 ‑ 105, 112, 116 ‑ 117.
After refreshing her memory by referring to one of her statements, the complainant agreed that she had said that the appellant wore shorts and a singlet to the beach on the first beach trip. The complainant said she did not notice anything in particular on his body. The following exchange occurred:[67]
[DEFENCE COUNSEL]: … so there's no tattoos or anything like that, he hasn't got any body markings?---Well, I don't know. I can't remember that. I don't remember - - -
So you - you don't remember any tattoos on his arms or anything?---No. It's not something that sticks in my memory.
[67] ts 106.
The complainant denied counsel's suggestion that she was mistaken about who did these things to her. When it was put to her that it was not the appellant who 'did these terrible things to [her]', she said, '[i]t was definitely Eric Jago that did this to me'.[68]
The complainant's brother
[68] ts 112.
The complainant's brother gave evidence that he lived with his sister (the complainant) and their mother when he was in early primary school. His mother's partner also lived with them from when he (the brother) was about 9 1/2 or 10 years old. He said he remembered a man named Eric being friends with his mum and his mother's partner. Asked if he remembered the surname, he said the name Jago 'rings a bell'. The complainant's brother said he did not recall anything else about Eric and that he did not recall going anywhere with Eric in his car.[69]
[69] ts 122.
The complainant's brother said that he was friends with David. He said David and Danny were the children of his mother's friend and that he did not recall there being any other children in their family.[70]
[70] ts 122 ‑ 123.
As a child, for entertainment, he would (among other things) go to the beach. He said he would have been to the beach with his mother and his mother's friend and that the complainant would have been with them. When asked whether he could recall specific times of going to the beach with the complainant he said he would have been to the beach multiple times, six or eight times, in summer at the Rockingham foreshore. He said he would have travelled to the beach with his mother in the car.[71] In cross‑examination, the complainant's brother said he did not recall going to the beach with anyone other than his mother, the complainant, his mother's partner, his mother's friend and her sons.[72]
[71] ts 123.
[72] ts 123 ‑ 124.
The complainant's brother said that $20 was a lot of money when he was a child and that he did not remember anyone giving him $20.[73] He also said that there was domestic abuse between his mother and his mother's partner. He said that his mother had told him about an ex‑police officer who lived in the area, and she said that he could rely on this man. The complainant's brother gave evidence that there was an occasion when he went to this man's house, and that the man and his son were watching pornography, and they offered to give the complainant's brother a head job or a blow job.[74]
The mother's friend
[73] ts 124.
[74] ts 124 ‑ 125.
The mother's friend had three children ‑ Daniel, David and Debra. In the early 1980s, she was living in Rockingham. She was friends with the complainant's mother at that time, and their children used to hang around together.[75]
[75] ts 127.
She also gave evidence that she knew the appellant, having met him at the pub. The mother's friend said she was pretty sure that the complainant's mother went out with the appellant for a little while, and then after they split up, the mother's friend went out with the appellant for a short while.[76]
[76] ts 128, 131; in cross‑examination the mother's friend added that her relationship with the appellant was a sexual relationship, see ts 132 ‑ 133.
The mother's friend did not recall when she met the appellant at the pub, but said Debra was 2 years old at the time (she had earlier said in her evidence-in-chief that Debra was born in 1982).[77] She added that the appellant worked with her brother.[78]
[77] ts 127, 128, 132.
[78] ts 128.
The mother's friend said that the appellant lived near Waikiki Beach in a cul‑de‑sac near a school, that he lived alone at the time, and he drove a small, red four‑wheel‑drive like a ute.[79]
[79] ts 129.
When asked whether her sons ever spent time alone with the appellant, the mother's friend said that the appellant once picked up David and the complainant from school when it was raining because she and the complainant's mother had asked him to do so.[80] She could not remember when this was, but said that it would have been in 1984 or 1985. She also said that she left her three children with the appellant one time she and the complainant's mother went to play basketball. The mother's friend said in her evidence that she was not sure whether the complainant and her brother were also there. She could not recall when this would have been, but said around about 1984 or 1985.[81]
[80] ts 130.
[81] ts 130, 133.
The cross‑examination of the mother's friend was consistent with the above. However, she was asked in cross‑examination to confirm that she had no recollection of her children going places with the appellant, apart from the time he picked up David and the complainant from school. The mother's friend said there was one other occasion ‑ 'we had a few drinks, that was when my daughter stayed over'. She then said that she woke up late the next morning, and the appellant had taken her daughter Debra to the park.[82]
The complainant's mother
[82] ts 133.
The complainant's mother gave evidence that she has two children, the complainant and her brother. She said she met the appellant at the Rockingham Hotel while there with her friend (the friend who gave the evidence summarised above), but she could not remember the year she met him. She then said it was 'about 1979'.[83]
[83] ts 134 ‑ 135.
The complainant's mother's evidence was that when she and her friend first met the appellant at the hotel, they had a conversation with him during which he said he had a boat and that he would like to take the children fishing for abalone. She said that the complainant would have been about 7 or 8 years old at this time.[84]
[84] ts 135.
The complainant's mother said that, when she met the appellant, she was dating a man named Peter. Her relationship with Peter ended when she met her partner.[85]
[85] ts 135 ‑ 136.
The next time she saw the appellant after first meeting him was, she thought, the next weekend. The complainant's mother said that he came to pick up the complainant and the complainant's brother in a red Mitsubishi Triton. She also said she thought she saw Danny and David in the appellant's car when he arrived. The complainant and her brother went into the car and then the appellant returned them in the afternoon, about four hours later. The complainant's mother said that there were several times when the appellant picked up the children from her place. She could not recall exactly how many times, but said this would occur every couple of weekends.[86]
[86] ts 136 ‑ 137.
The complainant's mother gave evidence that she was a friend of the appellant.[87] She said she met her partner not long after she met the appellant. She further said that the complainant and her brother did not spend time with the appellant after she began dating her partner, and that she did not have any contact with the appellant after she started dating her partner. However, she would go to the hotel (presumably the Rockingham Hotel) with her partner and would sometimes see the appellant there. Further, there was a time she and her partner went to the appellant's place for a drink and a barbecue, and they stayed the night. The complainant and her brother, and the mother's friend and her three children, were also there at the appellant's house on that occasion. She could not recall when this occurred, but said it would probably have been about one month after she had 'been with' her partner. She also said that the night they had the barbecue and stayed overnight at the appellant's house was the last time she saw the appellant. She said this was in 'about 1980'.[88]
[87] ts 136; she later reiterated in cross‑examination that she never had a sexual relationship with the appellant, see ts 139 ‑ 140.
[88] ts 137 ‑ 138.
The complainant's mother gave evidence that she took the complainant to Rockingham Hospital twice when the complainant was a child, once for a spider bite and the other time because she had a cotton bud stuck up her nose. She said she could not remember any of the details of the cotton bud incident. But, after further questioning, she said that the incident occurred before she started dating her partner and that, before going to the hospital, she looked up the complainant's nose but that she could not remove the cotton bud because the complainant was screaming. When asked if there were any other times she took the complainant to the hospital for getting a cotton bud or anything of that nature stuck somewhere, the complainant's mother said 'no'.[89] In cross‑examination, the complainant's mother said she took the complainant to the hospital because she had a car and that she was at her home when she tried to remove the object from the complainant's nose.[90]
[89] ts 138.
[90] ts 143.
In cross‑examination, the complainant's mother said she was waiting for results on tests for whether she has early onset dementia. She said she sought out the diagnosis because her short‑term memory is not good, but her long‑term memory is 'pretty good'.[91]
[91] ts 139.
She added in cross‑examination that she was talking 'generically about a period in the early 1980s'. She said when she met the appellant at the Rockingham Hotel, her friend's daughter was about 2 or 3 years old.[92]
[92] ts 140 ‑ 141.
The complainant's mother reiterated that the appellant took her children out on a boat two or three times, and that it was definitely a boat trip and not a trip to the beach.[93] The appellant never said to her that he wanted to take the children to the beach.[94]
[93] ts 141, 142.
[94] ts 142.
The complainant's mother also reiterated in cross‑examination that, one of the times the appellant took the children on the boat, she thought she saw four children ‑ Danny, David, and her two children. She said 'usually it was the four of them'.[95]
[95] ts 142.
The complainant's mother denied the proposition, put to her by defence counsel, that the appellant was not the person who picked up the children from her house and that her children did not go off with him alone. She also denied the proposition that the only time the appellant had contact with her children was during the barbecue at his house on the occasion that they all stayed the night.[96]
Detective Senior Constable Jamie Brady
[96] ts 142.
Detective Senior Constable Brady was the officer in charge of the investigation into the allegations made by the complainant against the appellant. The State tendered several exhibits through Detective Brady.
The first was the complainant's birth certificate (exhibit 5).[97] The second was an outpatient treatment record for the complainant, dated 5 December 1984, from Rockingham Hospital which refers to a piece of tissue being removed from her ear (exhibit 6).[98] The third was the Department of Transport certificate in relation to a red and white Mitsubishi utility, which was licensed to the appellant (exhibit 7).[99] It records an acquisition date as 20 November 1984 and a disposal date of 27 February 1991. The fourth was a certificate of title for a property that recorded the appellant as the registered proprietor and indicated the property was registered on 24 July 1979 (exhibit 8).[100]
[97] ts 145 ‑ 146.
[98] ts 147 ‑ 148.
[99] ts 148 ‑ 149.
[100] ts 149 ‑ 151.
The fifth was a set of three maps that depict the Rockingham area, which Detective Brady produced from Google Maps. Detective Brady's evidence was that the first of the three pages depicts a red pin, and next to the red pin is marked the address of the appellant identified in exhibit 8. Detective Brady gave evidence that this address is in the area of Coolongup, Waikiki and Safety Bay. On the second page of the maps, Detective Brady said there is a red pin labelled with the address that the complainant had identified in her evidence as being in the same area as the appellant's house and which could have been his house. Detective Brady said that this address had no significance in his investigation until it was possibly identified as an address of interest by the complainant in the week before the trial. He also said that the address the appellant identified was in the area of Safety Bay, Coolongup and Waikiki. As to the third page of the maps, Detective Brady gave evidence that it is titled 'Both on same map' and that he created that title. He said that this was to signify that both the appellant's address (marked on the third map by a red dot) and the address that the complainant identified (marked on the third map by a blue dot) were on the same map.[101]
[101] ts 153 ‑ 155.
The final exhibit was the video record of interview with the appellant that was taken on 14 November 2018, the day he was arrested by police on suspicion of the 10 charges the subject of the trial (exhibit 10). We now turn to outline the video record of interview.
Video record of interview
After being cautioned, the interviewing police officers told the appellant that the allegations involved a person by the complainant's name. The appellant said he had 'never heard of' the complainant and that he did not know anyone by the complainant's first name.[102]
[102] VROI 7 ‑ 8.
When asked if he knew anyone by the surname of the complainant (as it was at the relevant time) the appellant said he went out with a woman by the name of the complainant's mother (as it then was) for a couple of weeks.[103] He said that afterwards, a mate of his (whose name the appellant could not remember)[104] started taking her out and that they moved away down south somewhere.[105]
[103] VROI 8.
[104] VROI 11.
[105] VROI 8 - 10.
The appellant said he met the complainant's mother at the Rockingham Hotel, and that she had a girlfriend. He said after he went out with the complainant's mother a couple of times, he went out with the girlfriend. The appellant could not remember when he met the complainant's mother.[106]
[106] VROI 10 ‑ 11.
The appellant said that the complainant's mother had two children, a boy and a girl. He said he did not know anything about them really. He could not recall their ages, but said they were fairly young ‑ the boy was about 6 or 7 years old and the girl was older but there was probably not a lot of difference in their ages. He said he met the children when he went to see the complainant's mother and said that this would have occurred probably only two or three times. The appellant said he did not know the names of the children and when asked whether he spent time alone with them, he said 'No, I don't think so'.[107]
[107] VROI 11 ‑ 13.
The appellant said that, after he finished dating the complainant's mother, and once his friend started dating her, he (the appellant) no longer had any contact with that friend. The appellant also said that he did not have cause to see the complainant's mother through the mother's friend, who he started to date after he dated the complainant's mother.[108]
[108] VROI 13 ‑ 14.
When asked if the appellant knew someone by the name of the mother's friend, he said that she was the girlfriend (of the complainant's mother).[109] He used to work with the mother's friend's brother and that he went out with the mother's friend for a couple of months. He did not know how old he was when he was with the mother's friend. He added that she lived by herself with her children, but he did not know how many children she had. He went to her house about half a dozen times, and they would go out to the pub. He stayed overnight at the mother's friend's house once, and went to work the next morning.[110] Later in the interview, he said he did not spend any time alone with the children of the mother's friend ‑ he reiterated that he could not remember how many children she had, but he was pretty certain she had children.[111]
[109] VROI 14.
[110] VROI 14 ‑ 16.
[111] VROI 17.
The interviewing officers asked the appellant whether he had a vehicle around this time. He gave a history of all the vehicles he had ever owned, one of which was a Triton. When asked about the Triton, he said he brought it brand new and it was a red Mitsubishi Triton. It was a ute with two doors and a single full bench seat. He said he was the only person who had access to drive the ute. He said he bought it in 2000 and that he had never owned any other red Mitsubishi Triton utes. He could not recall the registration number. He said he did not have that ute at the time he was dating the complainant's mother and the mother's friend and that he never owned any other red vehicle nor any other Mitsubishi.[112] Later, when an interviewing police officer read one of the complainant's statements to the appellant, which mentioned that he drove her and other children in a red four‑wheel‑drive single cab, he said 'Oh, I can't remember what vehicle I had then but, yeah. It was probably the, um, Triton'.[113]
[112] VROI 20 ‑ 24.
[113] VROI 39.
The appellant was asked about the home he was living in at the time of the interview. He said he bought the land and built the house on it in 1979. He was asked about, and gave, a history of all the people who had lived or stayed with him at the house.[114] When asked whether the children of the complainant's mother or those of the mother's friend ever went to his house, he said 'Ah, not that I can remember … I don't think [the complainant's mother] ever went there'.[115] Later, when asked if he could recall whether those children ever went to his house he said 'I, it's, no, I can't remember them coming there'.[116] As explained below, he added later that 'they' had never been to his house unless they went there with their mother for drinks.
[114] VROI 25 ‑ 29.
[115] VROI 29.
[116] VROI 33.
The police officers asked the appellant to draw a diagram of the layout of his house.[117] He said that his bedroom has always been the back bedroom.[118]
[117] VROI 29 ‑ 31.
[118] VROI 31 ‑ 32, 33 ‑ 34.
The appellant said he had owned several boats. He could not remember which boat he owned in 1984, but said it was probably one of the cray boats he had owned.[119] He said he used the boats for fishing and said he had never taken children out fishing with him. He said he never took the children of the complainant's mother or those of the mother's friend out fishing on his boat and that he never went fishing for abalone. He then said he took people out on his boat to go fishing for abalone once. He did not know when this happened, but it was while he was working at the shipyards because he took his boss out.[120]
[119] VROI 34 ‑ 35.
[120] VROI 35 ‑ 36.
The interviewing officers then returned to the topic of the complainant's mother's children. When asked whether he knew someone by the name of the complainant's brother, and when told that he was one of the complainant's mother's children, the appellant said that the name rings a bell and that he thought that was the boy's name. When told the first name of the girl (that is, the complainant's first name) and when asked whether that name rings a bell, he said 'no' and that he could not 'remember what her name was. It could have been'. When told that David was one of the mother's friend's children, he said that that name rings a bell.[121]
[121] VROI 37 ‑ 38.
Next, one of the interviewing officers read to the appellant one of the complainant's statements and asked the appellant some questions along the way. In short, the appellant made statements about the layout of his house and his bedroom. He denied ever taking the complainant to the beach and said the complainant would not have been to his house unless her mother had gone to his house for drinks. He denied all of the allegations of sexual abuse.
More specifically, as to the first incident:
(1)Asked if he had ever taken the complainant, her brother and David to Waikiki Beach, he said, 'I've never taken them there in me bloody life'. He said that, as far as he could remember, he never took those children to any beaches and he added that, if he had done this, the complainant's mother would have been there.[122]
[122] VROI 39.
(2)He responded in a similar tone when specific parts of the complainant's statement were put to him, saying, for example, 'that's just garbage' and '[m]y, Jesus'.[123]
[123] VROI 39, 40.
(3)He said he did not even remember these people being at his house.[124]
[124] VROI 40.
(4)At a later point he said, referring to the complainant, '[w]hat's this woman got against me?' and 'I'm getting quite pissed off with this'.[125]
[125] VROI 45.
(5)The appellant said that the toilet in his house is at the back of the house, and that his bedroom is opposite a bathroom.[126]
[126] VROI 40.
(6)The appellant described the layout of his bedroom. He said his bed is in the middle of the room, against the backwall. There is a retreat on the right side of the door as you walk in the room.[127] One of the interviewing officers further asked:[128]
[127] VROI 41 ‑ 42.
[128] VROI 41 ‑ 42.
[INTERVIEWING OFFICER]: Okay. So it could be described that the bed's on the left‑hand side of that room as she described it and then the retreat's on the right‑hand side. Does that sound right?
[APPELLANT]: Yeah. Well, when you walk in, the bed's there.
He said there is nothing at the end of his bed, and he rejected that part of the complainant's statement which says that at the end of the bed, against the wall, there was a chest of drawers. The appellant said that there were drawers on either side at the head of the bed, against a wall.[129] He has a built‑in wardrobe in the retreat.[130]
[129] VROI 42.
[130] VROI 42 ‑ 43.
(7)The appellant also said:[131]
[INTERVIEWING OFFICER]: [In the course of reading the complainant's statement as to events in the appellant's bedroom during the first incident] Did you, ah, tell her to spread her legs?
[APPELLANT]: No. This hasn't happened, mate.
[INTERVIEWING OFFICER]: Okay.
[APPELLANT]: I, I'm certain they have never been to my house unless they come there on the piss one night but apart from that I've never had those kids at that house. I never took them anywhere.
…
[INTERVIEWING OFFICER]: [After finishing reading the complainant's statement as to the first incident] … So can you tell me anything about that incident and the allegations she's made?
[APPELLANT]: No. That's all bullshit.
[INTERVIEWING OFFICER]: No.
[APPELLANT]: They've never ever been to my house as far as I can remember. Unless they went there one night, bloody, with the mother and that. If we had drinks there. I'm not sure whether we did or whether we didn't.
[131] VROI 44, 46.
He responded in similar terms when the complainant's account, in her statement, of the second incident was put to him. For example, at one point he said, '[t]his is complete crap, mate. Honestly'.[132] At another point he said '[i]s this girl sick or something ... what's the story with her?'.[133]
[132] VROI 48.
[133] VROI 49.
After the interviewing officer finished reading the complainant's statement as to the second incident, he asked the appellant generally about the allegations. The appellant said, '[d]idn't happen'.[134] The following exchange then occurred:[135]
[INTERVIEWING OFFICER]: And, obviously, the whole account that she's giving, you're saying never happened. You never went to the beach - - -
[APPELLANT]: No.
[INTERVIEWING OFFICER]: Alone with them. Um, she was never at your house.
[APPELLANT]: I, I can never remember taking them to [indistinct] I didn't even know them [indistinct] You know, it was only a matter of a couple of weeks, I suppose, that I knew them.
[134] VROI 50.
[135] VROI 51.
One of the interviewing officers then read to the appellant the statement of the complainant's mother and again asked him questions throughout doing this. Relevantly, the officer read aloud the part of the statement that said that the appellant picked up her children from her house in a red Mitsubishi Triton, with the mother's friend's sons already in his car, and that he took the children out. The statement said that this occurred on about three occasions and that, as far as the complainant's mother was aware, each time they went out to go on the appellant's boat. In response, the appellant said he was taking the mother's friend out ‑ not the children. He also said he never took the children out, that he never had much to do with kids and that he did not like kids.[136]
[136] VROI 52.
The interviewing officers read the appellant a statement by the complainant's brother. Relevantly, that statement mentioned his mother being with a man whose name was the familiar form of the mother's partner's name. The appellant confirmed that that was the name of the partner the complainant's mother had after she dated the appellant.[137]
[137] VROI 52 ‑ 53.
The interviewing officers then returned generally to the complainant's allegations. The appellant reiterated that he could not recall ever taking the children to the beach,[138] and said he could not recall taking the children anywhere.[139] He also said that if the complainant was ever at his house, her mother would have been there as well.[140]
[138] VROI 53, 59.
[139] VROI 54.
[140] VROI 54.
The evidence led by the defence
As already noted, the defence called a number of witnesses. We will deal individually with the evidence of those of most significance and will briefly summarise the remainder of the evidence.
Faye Fraser
Ms Fraser lived on the same street as the appellant when he moved into his house in 1979. She had been in the appellant's house with the girlfriend he was living with when he moved in. Ms Fraser said that the appellant's bedroom was at the back of the house. Ms Fraser said the bedhead was on the opposite wall from the doorway. She could not recall whether there was ever any chest of drawers in that bedroom. She also said there was a parents' retreat to the right side of his bedroom, and on the left was a window facing the backyard. Ms Fraser said she has stayed in touch with the appellant over the years, and that the bed is in the same place.[141]
[141] ts 168 ‑ 170, ts 173 ‑ 174.
Ms Fraser said that when she first met the appellant he had a big Afghan dog named Ranger.[142] She thought the dog was there for 'quite a while' and she did not remember when the dog died.[143]
[142] ts 170.
[143] ts 170.
She said that the street on which she and the appellant lived was not a cul‑de‑sac.[144]
[144] ts 171.
Ms Fraser said that the appellant has some 'tacky‑looking tattoos' and that he got them when he was a 'young bloke in gaol'.[145]
[145] ts 171.
Ms Fraser said that, in the mid‑1980s, the appellant was not fat, but had a stocky, solid build and a pot tummy. She said that the appellant had in the 1970s and 1980s a red ute and then he got rid of it and got another red ute.[146] She said that it was a normal ute, low to the ground, and that she could not see the appellant being able to climb under it.[147]
[146] ts 171.
[147] ts 172.
Ms Fraser also gave positive character evidence about the appellant.[148]
Edmund Haines
[148] ts 172.
Mr Haines lived with Ms Fraser and was another of the appellant's neighbours. Mr Haines said he met the appellant shortly after June 1983, when he moved in with Ms Fraser.[149]
[149] ts 175.
Mr Haines said he probably first went into the appellant's house in October 1983. He gave evidence, with reference to a photo (exhibit 13), as to the layout of the appellant's house and, in particular, that there were two fish tanks in his house.[150]
[150] ts 175 ‑ 176.
Mr Haines said the appellant had a big Afghan dog that would be outdoors, but would be indoors when the appellant was home from work.[151]
[151] ts 177.
Mr Haines said that, when he first met the appellant, he had a solid to fat build. He also said the appellant has tattoos on his arms.[152]
[152] ts 178.
Mr Haines said that the appellant had a red Mitsubishi Express ute, which was probably about 8 or 9 inches, or 25 cm, off the ground and that he had never seen the appellant working on the car. He said the appellant would have virtually no chance of being able to get under the vehicle with his build at the time. Mr Haines used to work for a tyre and muffler company and he said that he would fit mufflers on utes that looked like the appellant's ute. He said that there was no way one could get underneath a ute like that to work on it.[153]
[153] ts 178, 179.
Mr Haines also gave character evidence in favour of the appellant.[154]
Anthony Bailey
[154] ts 178 - 179.
Anthony Bailey was the acting manager of asset services at the City of Rockingham. He said that the City of Rockingham maintains an electronic asset register, which would include any wooden stairs or beach access in the area. The asset register was first created in about 2011.[155]
[155] ts 223 ‑ 224.
Mr Bailey said he was given exhibit 2 ‑ the aerial photo of Waikiki Beach from Google Maps, captured in a screenshot taken by the complainant on her phone in the week before the trial, and marked with a red circle to indicate where the complainant said the offending the subject of the first beach trip occurred. Mr Bailey said he checked the asset register to see what assets the City of Rockingham now has in that place. He said there is a timber staircase there, for which the construction date is listed as 2004. The asset register, he said, does not indicate whether this is the date of first construction or whether it is a replacement date.[156]
[156] ts 224.
Mr Bailey then said that the City of Rockingham has aerial photos of that place from various years. The photos were shown in court and became exhibits 20.1 ‑ 20.6. The 2006 and 2007 images depicted the carpark and staircase that was also depicted in exhibit 2.[157] The 2005 image was not clear. Mr Bailey also had aerial photos from 1985 and 1995. As to the image from 1985, Mr Bailey said that it depicts the same carpark as the other photos. It also depicts a beach access coming directly from the corner of the carpark, whereas the later photos depict a beach access slightly north of that area. He further said that the beach access depicted in the 1985 photo is more consistent with it being a natural path, as opposed to a built structure.[158] The next photo was from 1974. At that time, the bituminised carpark depicted in the other photos did not exist, but Mr Bailey said that one could see where the carpark would have been, in reference to the other photos.[159]
[157] ts 226.
[158] ts 227.
[159] ts 227 ‑ 228.
In cross‑examination, Mr Bailey was again shown exhibit 2. He confirmed that the 1985 aerial image shows there was a carpark in the same location as marked on exhibit 2. When asked whether there was in 1985 an accessway in the same place as the access depicted on exhibit 2, he said the digital photographs appear to show that there was a beach access path in the vicinity, but that it appears to have been slightly to the south and that it came off a slightly different spot from the carpark. He could not say with certainty, from the 1985 photo, whether there were stairs or any kind of steps on the access way.[160]
Other witnesses
[160] ts 229.
There were five other defence witnesses, none of whom knew the appellant until after 1984.
The appellant's wife, Mrs Jago, gave evidence that she met the appellant in 1985 and started dating him in June of that year. She then moved in with him in October 1985. She said that when she met him in 1985 he was not fat, but was stocky and had a pot belly.[161] She said the appellant has tattoos and that, when she first met him, he already had all of the tattoos that he had at the time of the trial.[162]
[161] ts 190 ‑ 191.
[162] ts 201.
Mrs Jago said the appellant had a dog when she first met him, that the dog was an indoor dog, but would be outdoors when the appellant went to work. She said that, when the appellant came home, the dog would howl and carry on until the appellant let him inside.[163]
[163] ts 196.
She also said that the appellant had a red Mitsubishi Express ute when she first met him and that, later, he got a red Mitsubishi Triton ute.[164]
[164] ts 198.
Mrs Jago gave evidence the appellant had fish tanks when she moved in, which she had removed after she moved in.[165] Mrs Jago also described the appellant's bedroom as it was when she first met him. She said that the bed was on the back wall, facing you, as you walk into the bedroom door. She said the bed had a wooden bedhead with attached bedside tables - it was one piece. She said that it would not have been possible for the bed with the attached bedside tables to have been put against the wall on the left side of the room (as you walk into the door) because that wall would have been too small to accommodate it.[166] She said the chest of drawers in the retreat belonged to her and she brought it into the relationship; it was not there when she first met the appellant.[167]
[165] ts 192, 197.
[166] ts 199 ‑ 200.
[167] ts 200.
In cross‑examination, Mrs Jago confirmed she started seeing the appellant in June 1985 and that, prior to then, she had never been to his house. She said she had 'no idea' what furniture was in the appellant's bedroom in November or December 1984, and she did not know how any furniture in his bedroom was configured until June 1985.[168]
[168] ts 205.
Ms Joanne Cassidy is the daughter of Mrs Jago, and the stepdaughter of the appellant. Her evidence was that she was 13 years old when her mother first got together with the appellant and that she and her mother moved in with the appellant about two or three months later, in about October 1985.[169]
[169] ts 180.
Ms Joanne Cassidy also gave evidence as to the layout of the appellant's bedroom, and said that there was a chest of drawers in the retreat in the appellant's bedroom.[170]
[170] ts 181 ‑182.
Ms Joanne Cassidy said that the appellant had a galah and an Afghan dog when she first met the appellant. She said that the dog was an inside dog and that this remained the case when she and her mother moved in.[171] She gave character evidence favourable to the appellant.[172]
[171] ts 181, 183 ‑ 184.
[172] ts 184 ‑ 185.
Ms Michelle Cassidy was also Mrs Jago's daughter and the appellant's stepdaughter. She was living in Canberra when her mother first got together with the appellant. Ms Michelle Cassidy met the appellant for the first time in 1988.[173]
[173] ts 206 ‑ 209.
Ms Simone Bell was born in 1983 and was an employee of the appellant from 2001 ‑ 2002 at the fish and chip shop that he owned with Mrs Jago. While working at the fish and chip shop, Ms Bell was alone with the appellant several times. In cross‑examination, Ms Bell said she was about 18 ‑ 19 years old in 2001 ‑ 2002 when she was working at the fish and chip shop.[174]
[174] ts 186 ‑ 187.
Ms Kayla Hare was one of the appellant's neighbours. She first met him in 2002, when she was 11 years old. She gave evidence that she spent a lot of time with the appellant, both on her own and also while Mrs Jago was also there, while she was growing up.[175]
[175] ts 209 ‑ 211.
Ground of appeal
The appellant appeals his convictions on all 10 counts on the ground that the verdicts are unreasonable and cannot be supported by the evidence. The ground is particularised as follows:
PARTICULARS
(a)The complainant's evidence lacked credibility and was unreliable.
(b)There were significant issues concerning the reliability of the complainant which ought to have resulted in the jury not being satisfied beyond a reasonable doubt of the truth and accuracy of the complainant's evidence.
(c)There was no or no adequate direct evidence of corroboration of the complainant's allegations.
(d)The appellant's evidence, including his denials, were credible and could not be excluded beyond a reasonable doubt in an 'oath on oath' case.
(e)The appellant's good character supported the believability of his evidence and the unlikelihood of him committing the offence.
The question of leave to appeal was referred to the hearing of the appeal.[176]
[176] Order of Buss P, 23 December 2020.
The appellant's submissions
The appellant's submissions begin by identifying the framework in which the question of the reliability of the complainant's evidence is to be evaluated. The very long delay between the alleged incident and the complaint ‑ more than 30 years ‑ gave rise to significant forensic disadvantages for the appellant, engaging the requirement for a Longman direction. The appellant also points to the absence of corroboration and of any admissions by the appellant.[177]
[177] Appellant's submissions [62], [85]; appeal ts 8.
The central thrust of the appellant's case on appeal is that, taking into account the combined effect of a number of matters, it was not open to the jury to be satisfied beyond reasonable doubt of the reliability of the complainant's evidence to the effect that the person who engaged in the conduct against her was the appellant.
First, the appellant places particular emphasis on the complainant's evidence that she was 9 or 10 years old when the offending occurred, not 11 1/2 years old, describing her testimony in that regard as 'unshaken' and 'emphatic'. The appellant further points out that the complainant's evidence in this regard was the result of her examining and reflecting on a photograph of her as a child wearing her bathers. He also points to the complainant's evidence that at the time of the offending, the mother's friend's daughter, Debra, was a baby, not a toddler.[178]
[178] Appellant's submissions [63],[77]; appeal ts 12 - 14.
According to the appellant, this evidence is inconsistent with evidence given by the complainant's mother and her friend that they met the appellant when Debra was about two or three years old, meaning in 1984 or 1985.[179]
[179] Appellant's submissions [64], [78].
In light of this evidence, the appellant submits, there is a reasonable doubt as to the time of occurrence of the events described by the complainant. It not being established beyond reasonable doubt that the offending had not occurred in 1982 or 1983, when the appellant could not have been the offender, compels a reasonable doubt as to whether the appellant was the offender. In other words, the appellant submits, taking the complainant's evidence as to how old she and Debra were when the offending occurred, and taking the mother's and the mother's friend's evidence as to how old Debra was when they first met the appellant, the complainant had not met the appellant when the offending occurred.[180]
[180] Appellant's submissions [64].
Further, the appellant submits that the conflicts in the evidence as to the timing of the events recounted by the complainant undermine the reliability of her evidence as to the identity of the offender. Specifically, he says, the evidence as to when the appellant purchased the red utility and the date the complainant attended hospital to remove a tissue from her ear is not corroborative of her account. Rather , he submits, it undermines the accuracy of her memory because either she was wrong about how old she was when the offending occurred, or she is wrong about the offending occurring around the time of these two events.[181]
[181] Appellant's submissions [79] ‑ [80].
Secondly, the appellant submits that the complainant's evidence was inconsistent with or was contradicted by other evidence given by prosecution witnesses:[182]
(a)While the complainant described the appellant as a boyfriend of her mother, the complainant's mother denied ever being in a sexual relationship with the appellant.
(b)The complainant's evidence was that both incidents occurred during visits to the beach. However, the complainant's mother's evidence, and the mother's friend's evidence, was that the appellant never took their children to the beach. The complainant's brother did not remember going to the beach with anyone apart from his family and his mother's friend and her children.
(c)The complainant said that during the second incident, the appellant gave her brother $20 to go to the delicatessen. But her brother gave evidence that nobody ever gave him $20, which was a lot of money at that time.
[182] Appellant's submissions [65] - [68]; appeal ts 10, 16.
Thirdly, the appellant submits that the reliability of the complainant's evidence was undermined in several respects:[183]
(a)During the period in question the appellant had distinctive, readily visible tattoos and he was wearing a singlet and shorts during the first incident, yet the complainant did not notice any tattoos.
(b)The complainant's description of where, in the offender's house, the bed and chest of drawers were located is inconsistent with evidence called by the appellant and not challenged.
(c)The complainant said the offender got underneath his vehicle in the course of committing one of the offences (count 7). However, evidence called by the appellant at trial suggested it was not possible for the appellant, or any adult male, to get under the vehicle that the appellant owned.
(d)The complainant gave evidence that some of the offences occurred in a house in a cul‑de‑sac. However, the street in which the appellant's house was located was not a cul‑de‑sac.
(e)The complainant had no memory of the appellant having an Afghan hound dog or fish tanks. In fact, both were present at the appellant's house and would be expected to be remembered by a child.
[183] Appellant's submissions [69] - [82]; appeal ts 18 - 22, 24 -26, 30 - 31, 35.
Fourthly, character evidence called by the appellant established his good reputation as a person of honesty and integrity. That supported the honesty and reliability of the account he gave to police and the unlikelihood of him offending in the manner alleged by the complainant.[184]
[184] Appellant's submissions [84].
Legal principles
The principles governing a ground of appeal that the verdict is unreasonable or cannot be supported by the evidence are well known. This court has outlined the principles established by the leading High Court decisions including M v The Queen,[185] SKA v The Queen,[186] R v Baden-Clay[187] and Pell v The Queen[188] many times.[189] In summary:
(a) 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.
(b) 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.
(c)That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
(d) 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.
(e)The appeal court performs its function on the assumption, in a case such as the present case, that the evidence of the complainant was assessed by the jury to be credible and reliable. 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.
(f)A doubt experienced by an appeal court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
(g) 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.
(h)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 Act2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over an appeal court which has not seen or heard the witnesses called at trial.
[185] M v The Queen (1994) 181 CLR 487, 493 - 495.
[186] SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [11] - [14].
[187] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [65] - [66].
[188] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 [37] - [39].
[189] See, for example, Wells v The State of Western Australia [2017] WASCA 27 [13]; MEN v The State of Western Australia [2020] WASCA 118 [403] - [410]; Dayananda v The State of Western Australia [2021] WASCA 11 [43] - [53].
Disposition
Introductory observations
As already noted, in a case such as the present one, this court performs its function on the assumption that the complainant's evidence was assessed by the jury to be credible and reliable. Consideration of the record of the trial demonstrates that it was well open to the jury to be satisfied of the complainant's credibility. On appeal, senior counsel for the appellant rightly accepted that the complainant's evidence was compelling in its detail.[190] It was open to the jury to find the detail of the account given by the complainant, including her candour as to what occurred and as to her physical and emotional reactions to it, to be compelling. As senior counsel for the appellant also accepted, there was no plausible basis to doubt the honesty of the complainant's account of events.[191]
[190] Appeal ts 33.
[191] Appeal ts 7- 8.
Nor was there any basis to doubt the reliability of the complainant's evidence that someone had in fact sexually offended against her in the way that she described. In other words, it was well open to the jury to consider that the complainant could not, by any sensible possibility, be honestly mistaken about whether the events had occurred at all.
Accordingly, the appellant's case on appeal, as at trial, focused on the identity of the person who did the acts described by the complainant. The gist of the appellant's case on appeal is that, when the evidence is considered as a whole, the jury must have had a reasonable doubt as to whether the appellant was the offender. For the reasons that follow, in our view the appellant has fallen well short of demonstrating that this is so.
Why the verdicts of guilty were well open
We begin with some basic propositions. It is open to a jury to accept some but not all of a witness' evidence. In evaluating the weight to be given to particular evidence and in resolving conflicts in the evidence, it is open to the jury to consider the extent to which each witness might have a reason to recall the matters in question. In that respect, evidence as to surrounding details that are wrapped up with a memorable occurrence ‑ which the offending described by the complainant undoubtedly would have been ‑ could reasonably be seen by the jury to be appreciably more reliable than evidence as to other details that are unconnected to any memorable occurrence.
In her evidence, the complainant said that the person who offended against her was the appellant, referring to him by name. On both occasions when it was put to her in cross‑examination that it was not the appellant who had offended against her she said, in terms, that it was 'definitely Eric Jago' that had done so.[192] But the prosecution case did not simply rely on her identification or recognition of the appellant.
[192] ts 104, 112.
First, the complainant said that the offender had a relationship with the complainant's mother for a brief period. That was supported by other evidence. In his police interview the appellant said he took out the complainant's mother a few times, 'for only a couple of weeks'. The mother's friend's evidence was to similar effect.[193] Secondly, the complainant's evidence included details concerning a house in which some of the offending occurred. Those details were consistent with the house being the appellant's house.[194] Thirdly, and significantly, both sets of offences were said by the complainant to occur after the offender drove his red single cab four‑wheel‑drive vehicle to the beach. Some of the offences were said to have occurred underneath (count 7) and in (counts 8 and 9) the vehicle, so the jury were entitled to consider that the complainant had good reason to remember details of the offender's vehicle. Independent evidence established that the appellant owned a red and white 1981 Mitsubishi utility from 20 November 1984.[195] The complainant's mother said that the appellant drove a red Mitsubishi Triton during the period she saw him.[196]
[193] ts 128.
[194] See the evidence referred to at footnote 43 of the respondent's submissions.
[195] Exhibit 7.
[196] ts 136.
When the evidence as a whole is evaluated in the light of the features of the evidence referred to in [149] ‑ [150] above, it was well open to the jury to be satisfied beyond reasonable doubt that the person who offended against the complainant was the appellant.
The appellant's contention ‑ that the complainant is or may be mistaken as to the identity of the offender ‑ in effect involves:
(1)the offences having been committed by a different person who had a relationship with the complainant's mother, and the complainant having transposed the true offender's identity for the appellant; and
(2)either:
(a) the true offender also having driven a red single cab four‑wheel‑drive vehicle; or
(b) the complainant having transposed the car in and under which some of the offending occurred, in other words the offending had occurred in and involved a different car and yet the complainant accurately recalled significant details as to the car driven by the appellant (a car which, on this hypothesis, was not involved in any significant or memorable event); and
(3)the complainant having transposed details concerning the house where some of the offending occurred ‑ the offences had in fact occurred in a house with no connection to the appellant, but in recounting the offending the complainant had brought to mind details of the wrong house, although she had accurately recalled some details of the appellant's house.
In effect the appellant accepted that this was so.[197]
[197] Appeal ts 15, 17 ‑ 18, 24.
The possibility of this combination of transposition and other errors by the complainant could readily be seen by a reasonable jury to be extremely remote and not a reasonable possibility.
The matters on which the appellant relies
When the offending occurred
The complainant gave evidence that sometime after the offending had occurred she was told that she and her family were going to the appellant's house. Because of that, she put tissues in her ears, thinking that if she could not hear the appellant she would not have to interact with him. One of the tissues caused a lot of pain in her ear, as a result of which she went to Rockingham Hospital to have the tissue removed. She said that she was 9 or 10 years of age when this occurred.[198]
[198] ts 73 ‑ 74, 111, 115 ‑ 116.
Independent evidence established that the complainant attended Rockingham Hospital as an outpatient on 5 December 1984 to have a piece of tissue removed from her ear.[199] It was open to the jury to find the complainant's evidence as to why she put the tissue in her ears to reflect thinking that rings true of an 11 year old child.
[199] Exhibit 6.
The complainant's evidence that she was 9 or 10 years old at the time of the offending was not, on her evidence, directly wrapped up with any aspect of her recollection of the offending. The same is true of her evidence that at the time of the offending Debra was a baby not a toddler. By contrast, her evidence concerning the red single cab four‑wheel‑drive and her evidence concerning putting tissues in her ears, resulting in a trip to hospital, were closely connected with the offending she described in her evidence. Some of that offending occurred underneath or in the red vehicle, and she went underneath that vehicle to protect herself from the offender after the first of the offences during the second beach trip. It was because of the offending that she put the tissues in her ears, resulting in the trip to hospital. It was well open to the jury to consider these aspects of her evidence ‑ the vehicle that the offender drove and the occasion she put tissues in her ears ‑ to be substantially more reliable than her evidence that at the time of the offending she was 9 or 10 years of age and Debra was a baby, and to be satisfied beyond reasonable doubt that the offending occurred within the period alleged by the State.
The appellant's description of the complainant's evidence as to her age as 'unshaken' and 'emphatic' is rhetorical flourish. She expressed her view that her age was 9 or 10 years old, and not 11 1/2 years old. She was asked to do so several times. The terms in which she expressed her view varied. At times it was said in an unqualified manner. However, she also said, when asked if she was 9 or 10 years old at the time, '[t]hat's what I recall. That's the age group that I recall. I don't recall it being any other age group'.[200] Moreover, (for understandable reasons) the view she expressed was not challenged, so it can hardly be said to have been unshaken.
[200] ts 111.
A conclusion that the complainant was mistaken as to her age, and as to Debra's age, at the time of the offending did not undermine the reliability generally of her evidence. Nor did it require a reasonable doubt as to the reliability of those aspects of her evidence that identified, or tended to identify, the appellant as the person who offended against her.
Inconsistencies in the evidence?
The asserted inconsistencies or contradictions referred to in [141] above do not, in themselves or in combination with the other matters on which the appellant relies, require a reasonable doubt as to the reliability of the complainant's evidence concerning the identity of the person who offended against her:
(a)It is an overstatement to say that the complainant described the appellant as a boyfriend of her mother. In any event, in substance, both the mother's friend (in her evidence) and the appellant (in his police interview) said that the appellant and the complainant's mother went out for a brief period.
(b)The jury were entitled to consider that the complainant had considerably more reason than her mother or her brother to recall the appellant taking the complainant and her brother to the beach.
(c)The complainant did not give evidence that the appellant gave her brother $20. Rather, her evidence was that that is what the appellant told her in the course of the second incident.
Other indicators of unreliability?
Similarly, the matters outlined in [142] above do not, in themselves or in combination with the other matters on which the appellant relies, require a reasonable doubt as to the reliability of the complainant's evidence concerning the identity of the person who offended against her:
(a)It was well open to the jury to consider the complainant's failure to refer in her evidence, or to recall, the appellant's tattoos to be a matter of no moment whatsoever. The tattoos had no particular connection to the offending conduct. For the complainant, in giving evidence more than 30 years later about horrific sexual offending against her when she was a child, not to recall the presence of tattoos is entirely unremarkable.
(b)Assuming, favourably to the appellant, that it were established, the existence of some inaccuracy in the complainant's description of the location of furniture in the offender's house does not materially assist the appellant. As already observed, the complainant's description of the internal layout of the house matched the layout of the appellant house. Further, it was not in doubt that the complainant did spend some time at the appellant's house. That her recollection of the location of some furniture was, or may have been, less than perfect did not detract materially from the reliability of her evidence.
(c)The evidence fell well short of establishing that it was impossible for the appellant to have got under his vehicle, in the course of committing count 7, in the manner described by the complainant. It was not put to the complainant that the appellant could not have physically fitted under the car. There was no evidence as to the contours of the beach nor as to what part of the vehicle the complainant and the appellant were under at the time the offence occurred. This aspect of the evidence did not require a reasonable doubt as to count 7, much less as to any of the other counts.
(d)The fact that the street in which the appellant's house was located was not a cul-de-sac does not undermine the complainant's evidence. Apart from anything else, she was not the only witness who described the appellant's house as being so located. The mother's friend gave evidence to the same effect.[201]
(e)Neither an Afghan hound dog nor any fish tanks located at the appellant's house had any connection to the offending. The fact that the complainant had no memory of those things did not bear to any material extent on the reliability of the critical aspects of her evidence.
Character evidence
[201] ts 129.
The character evidence led by the appellant did not, alone or in combination with the other matters on which the appellant relies, require the jury to have a reasonable doubt as to his guilt. We adopt, without restating, the principles outlined in PYN v The State of Western Australia.[202] In this case, notwithstanding the evidence given by the character witnesses, the jury was not obliged to find that the appellant was a person of good character. At trial, the appellant's counsel adduced evidence of the appellant's criminal history which, although including no sexual offences, included offences of dishonesty, as well as cultivation of cannabis around and after the time the offending the subject of the trial was said to have occurred.
[202] PYN v The State of Western Australia [2020] WASCA 116.
In any event, assuming that the jury found the appellant to be of good character, the weight to be given to the evidence of his good character was a matter for the jury to evaluate in light of the evidence as a whole. It is the experience of the courts that people of prior good character commit crimes. That is especially so of sexual offending against children by adults of previously unblemished reputations. The judge directed the jury that they should bear in mind that people do commit crimes, including crimes of a different nature, for the first time and that evidence of previous good character cannot prevail against evidence of guilt which, notwithstanding the appellant's previous good character, the jury found to be established.[203]
[203] ts 238.
It was open to the jury to conclude that the opinions of the character witnesses should be accorded only modest weight in deciding whether the jury was satisfied beyond reasonable doubt that the appellant committed the charged offences. Notwithstanding the character evidence led by the appellant, for the reasons outlined in [148] ‑ [160] above, it was open to the jury to be satisfied beyond reasonable doubt as to the appellant's guilt.
Conclusion as to ground 1
The trial record does not require the conclusion that the jury must necessarily have entertained a reasonable doubt about the appellant's guilt on the charged offences. The verdicts of guilty were not unreasonable. They were supported by evidence that the jury was entitled to accept and inferences that the jury was entitled to draw. Our review of the record does not give us a reasonable doubt as to the appellant's guilt. Had we experienced any such doubt, we would have been required to consider whether the jury's considerable advantage in having seen and heard the complainant's evidence and the evidence of the other witnesses was capable of resolving that doubt. However, no such question arises. The matters relied upon by the appellant do not persuade us that the jury, acting reasonably, should have decided that the State had not proved guilt beyond reasonable doubt.
For these reasons, the ground of appeal has insufficient merit to sustain the grant of leave to appeal.
Conclusion
For the above reasons, we would refuse leave to appeal and order that the appeal be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RC
Associate to the Honourable Justice Beech
10 JANUARY 2022
13
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