KMB v The State of Western Australia - [2010] WASCA 212

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: KMB -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 212

CORAM: PULLIN JA
BUSS JA
MAZZA J

HEARD: 5 AUGUST 2010

DELIVERED : 29 OCTOBER 2010

FILE NO/S: CACR 75 of 2009
CACR 76 of 2009

BETWEEN: KMB
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :GROVES DCJ
File No  :IND 1264 of 2008

Catchwords:

Criminal law - Appeal against conviction - Sexual offences against stepdaughter - Sexual relationship with a child under the age of 16 years - Offending over 10-year period - Uncharged sexual acts - Whether uncharged sexual acts admissible as propensity evidence or relationship evidence - Whether trial judge failed adequately to direct the jury as to the complainant's evidence regarding uncharged sexual acts - Whether miscarriage of justice

Criminal law - Appeal against sentence - Whether sentence manifestly excessive - Whether total effective sentence infringed the totality principle - Turns on own facts

Legislation:

Criminal Code (WA), s 321A(3), s 325, s 329(2)
Evidence Act 1906 (WA), s 31A

Result:

Appeal against conviction dismissed
Appeal against sentence dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters & Mr P B Cassidy
Respondent: Mr J Mactaggart

Solicitors:

Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)

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

B v The Queen [2002] WASCA 236
D v The Queen [2003] WASCA 33
D v The State of Western Australia [2009] WASCA 155
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482
Dickens v The Queen [2004] WASCA 179; (2004) 147 A Crim R 343
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106
Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292
KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221
LSC v The Queen [2003] WASCA 303
Ly v The Queen [2007] NSWCCA 28
Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108
Moody v French [2008] WASCA 67; (2008) 36 WAR 393
MPD v The State of Western Australia [2008] WASCA 57
Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457
Perry v The Queen [1982] HCA 75; (1982) 150 CLR 580
Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461
Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303
PIM v The State of Western Australia [2009] WASCA 131; (2009) 196 A Crim R 516
R v Baldock [2010] WASCA 170; (2010) 269 ALR 674
R v Best [1998] 4 VR 603
R v Sadler [2008] VSCA 198; (2008) 20 VR 69
Schaper v The State of Western Australia [2010] WASCA 178
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
Stubley v The State of Western Australia [2010] WASCA 36
Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528
The State of Western Australia v Akizuki [2008] WASCA 267
The State of Western Australia v BLM [2009] WASCA 88;(2009) 256 ALR 129
Upton v The State of Western Australia [2008] WASCA 54
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1

PULLIN JA: I agree with Buss JA that the appeals against conviction and sentence should be dismissed. I agree with Buss JA's reasons for dismissing the appeal against sentence. My reasons for dismissing the appeal against conviction are as follows.
The appellant's ground of appeal alleges error and a miscarriage of justice because of the trial judge's alleged failure to adequately direct the jury as to the evidence about uncharged acts. By uncharged acts I mean acts of sexual offending against the victim which are not made the subject of counts in the indictment. This was a case involving sexual offences committed by the appellant against his stepdaughter commencing when the victim was 8 years old and continuing until she was 18. The details of the counts in the indictment are set out in Buss JA's reasons.
The first alleged 'inadequate' direction to the jury was that the trial judge did not direct the jury that they needed to be satisfied beyond reasonable doubt before they could take into account the evidence of uncharged acts. The submission that such a direction had to be given has no merit. The evidence about the uncharged acts was circumstantial evidence. It did not amount to evidence constituting an indispensible link in a chain of evidence necessary to prove the appellant's guilt in relation to any of the counts in the indictment. This is because the complainant gave direct evidence of the offences the subject of the indictment: see Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 579, 585; PIM v The State of Western Australia [2009] WASCA 131 [157], [314]; Stubley v The State of Western Australia [2010] WASCA 36 [159] ‑ [160], [390].
The next particular supporting the ground was an allegation that the trial judge failed to adequately direct the jury as to the reason why the evidence was admitted. This particular has no merit. It was not necessary for the jury to be given reasons as to why the evidence was admitted.
The next alleged inadequacy in the direction was the fact that the trial judge did not direct the jury as to the purpose for which they could use the evidence of uncharged acts. That particular of the ground has no merit. The trial judge did explain what use could be made of the evidence (and also what use could not be made of the evidence).
Finally, it was alleged that the trial judge failed to adequately identify the evidence in question. That particular has no merit. Buss JA has set out what the trial judge said about the 'uncharged' or 'other' sexual acts. The trial judge reminded the jury of the evidence sufficiently to

allow the jury to understand what the evidence was so that they could understand the direction about what use could, and could not, be made of that evidence.

As a result, none of the particulars to the ground of appeal against conviction has any merit and for those reasons the appeal against conviction should be dismissed.
BUSS JA: On 23 April 2009, the appellant was convicted after a trial in the District Court before Groves DCJ and a jury on seven counts in an indictment which alleged the commission of various sexual offences against his step‑daughter.
The complainant was born on 15 June 1989. The offences occurred between 1 January 1997 and 11 July 2007.
On 21 May 2009, the trial judge sentenced the appellant to a total effective term of 14 years 6 months' imprisonment. The sentence was backdated to commence on 18 March 2009, being the date on which the appellant was taken into custody for the offences. A parole eligibility order was made.
Details of the offences, the maximum penalties and the individual sentences are as follows:

Offence	Maximum Penalty	Sentence Imposed
Count 1: Between 1 January 1997 and 14 June 2005, the appellant had a sexual relationship with the complainant.	20 years	10 years and 6 months
Count 2: On 11 November 2006, the appellant sexually penetrated the complainant, a child whom he knew to be his de facto child, by penetrating her vagina with his tongue.	10 years	18 months concurrent
Count 3: On 11 November 2006, the appellant sexually penetrated the complainant, a child whom he knew to be his de facto child, by penetrating her vagina with his fingers.	10 years	18 months concurrent

Count 4: On 11 November 2006, the appellant sexually penetrated the complainant, a child whom he knew to be his de facto child, by penetrating her vagina with his penis.	10 years	4 years concurrent
Count 5: On 11 July 2007, the appellant sexually penetrated the complainant without her consent, by penetrating her vagina with his tongue.	14 years	18 months concurrent
Count 6: On 11 July 2007, the appellant sexually penetrated the complainant without her consent, by penetrating her vagina with his fingers	14 years	18 months concurrent
Count 7: On 11 July 2007, the appellant sexually penetrated the complainant without her consent, by penetrating her vagina with his penis.	14 years	4 years cumulative on count 1

The appellant has appealed to this court against his conviction and sentence. It is convenient to begin by considering the appeal against conviction and then to examine the appeal against sentence.

The background facts and circumstances

The appellant was convicted on one count of having a sexual relationship with a child under the age of 16 years, three counts of sexual penetration of a child whom he knew to be his de facto child, and three counts of sexual penetration without consent.
At the material time, s 321A of the Criminal Code (WA), which created the offence of engaging in a sexual relationship with a child under the age of 16 years, provided, relevantly:
(1)For the purposes of this section a person has a sexual relationship with a child under the age of 16 years if that person, on 3 or more occasions each of which is on a different day, does an act in relation to the child which would constitute a prescribed offence.
(2)In subsection (1) the act referred to need not be the same act, or constitute the same offence on each of the 3 or more occasions.
(3)A person who has a sexual relationship with a child under the age of 16 years is guilty of a crime and is liable to imprisonment for 20 years.
(4)An indictment under subsection (3) shall specify the period during which it is alleged that the sexual relationship occurred and the accused shall not be charged in the same indictment with any other offence under this chapter alleged to have been committed against the child during that period.
(5)In proceedings on an indictment charging an offence under subsection (3) it is not necessary to specify the dates, or in any other way to particularize the circumstances, of the alleged acts.
In about 1996, the appellant commenced a relationship with the complainant's mother. Shortly afterwards, the complainant, her mother and the complainant's brother commenced living with the appellant at his home. The complainant was then aged about 7 years and 6 months.
In September 1997, the appellant married the complainant's mother. Although he was not her biological father, the appellant's name was placed on the complainant's birth certificate. The complainant was raised in the belief that she was the appellant's biological daughter. She remained of that belief until, at the age of 18 years, her mother told her the truth.
In about 2001, the appellant and the complainant's mother separated. The mother was a drug addict. She left the family home with the complainant's younger brother. The complainant remained with the appellant.
The complainant gave evidence at the trial that from the time she was 8 years old until she was 18, the appellant raped her 'continuously'. She said that sexual acts were committed against her on an almost daily basis.
As to count 1, the three episodes relied on by the prosecution were as follows. The first act involved the appellant causing the complainant to stroke his exposed penis until it became erect, the appellant touching the complainant's vagina and the appellant telling the complainant to remove her clothes, lying on top of her and penetrating her vagina with his penis. This occurred when the complainant was aged about 8 years. The second act occurred a few days after the first act. The appellant removed the complainant's clothes and touched her vagina. On this occasion, he penetrated her vagina with his penis and ejaculated in her vagina. The third act occurred at the appellant's brother's vacant property in rural Western Australia. The appellant removed the complainant's clothes, performed oral sex on her and penetrated her vagina with his fingers and then his penis. He ejaculated in her vagina. The complainant was then aged about 10 years. The three acts I have mentioned were said by the prosecution to be representative of the appellant's sexual abuse of the complainant between 1 January 1997 and 14 June 2005.
Counts 2, 3 and 4 were alleged to have occurred on 11 November 2006 at the appellant's home. The appellant removed the complainant's clothes, penetrated her vagina with his tongue, then with his fingers and finally with his penis. He ejaculated in the complainant's vagina. She was then aged 17 years.
Counts 5, 6 and 7 were alleged to have occurred on 11 July 2007 when the complainant was aged 18 years. The appellant removed most of the complainant's clothes, penetrated her vagina with his tongue, then with his fingers and finally with his penis. He ejaculated in her vagina.
In 2002, when the complainant was 12 years old, she became pregnant. She gave evidence that the appellant was the father of the child. The appellant took the complainant to see medical practitioners. He arranged for her to have an abortion. The appellant told the medical practitioners that the complainant had become pregnant to a 12‑year‑old boy.
According to the complainant, when she was 18 years old she left the appellant's home after an argument with him. She said that counts 5, 6 and 7 occurred shortly before she left. After the occurrence of these counts, she told her mother, her boyfriend and three work mates that she had been abused by the appellant for 10 years. On 25 October 2007, about three months after leaving the appellant's home, she made a complaint to police.
After the complainant made this complaint, police arranged for her to meet with the appellant on 14 December 2007. The complainant wore a covert recording device. During the meeting, which was recorded, the appellant made numerous admissions to the complainant, including the following:
[complainant] So you don't know why you had sex with me at eight and it continued for 10 years. You could have gotten your pleasure from someone else yet you chose it towards me and I was eight years old dad.
[appellant]I never meant to hurt you if that's what you want.
…
[appellant]I don't want you to think I'm some evil guy. I mean what you think means more to me than anybody else. Yes there was nothing malicious or to harm you or anything else. Part of me knew it was wrong but like I said. I just honestly loved you very much and I always wanted to be - look after you and make sure you done well and you can blame your whole life on me or you can sit down and believe what I'm telling you.
The appellant elected not to give evidence in his own defence at the trial. He did, however, call evidence from his niece, his son, his employer and a work colleague.

The prosecutor's opening

The prosecutor said in opening in relation to the three episodes underpinning the sexual relationship count:
The sexual abuse continued at such frequency that [the complainant] is unable to tell you each and every occasion, save for those that stood out in her mind (ts 14).
As to the evidence of other sexual incidents between the appellant and the complainant, the prosecutor said:
(a)The complainant recalled that sexual abuse continued on a regular basis (ts 15).
(b)The complainant kept a diary in which she marked the days on which the appellant had sexual intercourse with her, but 'the sexual intercourse occurred with such frequency that she gave up after a couple of months or so of marking her diary' (ts 17).
(c)The complainant repeatedly told the appellant to stop, and that she did not want him to continue to penetrate her (ts 19).

The appellant's trial counsel's opening

The appellant's trial counsel, in a brief opening, identified the issue in the case as being, 'did it happen?' (ts 20).

The complainant's evidence

The complainant's evidence was not pre‑recorded. She gave evidence at the trial from a remote room in the District Court.
Apart from giving specific evidence as to all of the counts in the indictment (including the three episodes relating to the sexual relationship count), the complainant gave evidence, without objection, about other sexual assaults. In particular:
(a)When giving evidence about an incident in 2003 at a country town, the complainant said the appellant was having sex with her 'just about every day, if he could' (ts 32).
(b)She had an abortion at the age of 12 years, and thereafter the appellant continued to have sex with her (ts 36).
(c)After the abortion, the complainant was prescribed the contraceptive pill, and the appellant continued to have sex with her (ts 36).
(d)When asked how frequently the appellant was having sex with her, the complainant replied, 'very often. It - probably about every - just about every day if he had the chance to' (ts 36).
(e)When giving evidence about incidents around 11 November 2006, after her uncle's wedding, the complainant said, 'He [referring to the appellant] wanted to sleep with me again' (ts 37).
(f)The complainant did not say 'no' to the appellant during the incidents because every time she told him 'no', 'he wouldn't listen and I knew it was no point saying anything else' (sic) (ts 38).
The complainant said in evidence‑in‑chief that she had told her work colleagues, 'my [step‑father] has been sexually abusing me since I was 8' (ts 41). She agreed in cross‑examination that in August 2007 she had told her mother and that in July 2007 she had told her (the complainant's) boyfriend that the appellant had been abusing her since she was 8 years old (ts 106). It was put to the complainant by the appellant's trial counsel that there was no occasion when her step‑father (the appellant) had abused her, as she had described, from the age of 8 years onwards. She replied 'incorrect' (ts 111). Although the complainant told her boyfriend and her work colleagues the abuse had finished when she was 14 years old (ts 112), her evidence was to the effect that the abuse continued until July 2007, when she was aged 18 years (ts 115 ‑ 116). The complainant said in re‑examination that she had been 'abused at a young age' (ts 113).

The prosecutor's closing address

The prosecutor said in her closing address in relation to the evidence of other, uncharged, sexual incidents involving the appellant and the complainant:
(a)A few months after they moved in (to the appellant's house), he started to abuse her sexually (ts 247).
(b)The complainant had told the jury that her step‑father was having sex with her just about every day, if he could (ts 248).
(c)Referring to the events that gave rise to counts 2, 3, and 4, 'by that stage she has learnt that whatever she said or did was never going to make him change his mind' (ts 249).
(d)All the complainant wanted was for the abuse to stop (ts 251).
(e)'[The appellant's] love for her is one of illicit passion and unnatural interest built up over the years when she was a child' (ts 251).
(f)The complainant's evidence was that she was not making it up, and that she had been 'abused at a young age' (ts 252).
(g)The abuse started when she was eight years old, and that is 'just the right age to be groomed and conditioned to accept as normal ... what is ... unnatural' (ts 253).
(h)The complainant had been conditioned over a period of 10 years to accept what he was doing to her, and had been conditioned not to tell anyone (ts 253).

The appellant's trial counsel's closing address

The appellant's trial counsel told the jury that it was important to 'look carefully at the context in which the events which are being spoken of and the allegations that are being made are arising' (ts 255).
Counsel referred to the complainant's evidence about sexual incidents occurring almost every day, if there was a chance, for almost 10 years (ts 262), and questioned the authenticity of this evidence (ts 263).

According to counsel, the relevant 'context' included the fact that the complainant had first raised the issue of the alleged abuse shortly after she had discovered that the appellant was in fact her step‑father. Before that time, she had believed him to be her biological father (ts 263).
Counsel made reference to the complainant having disclosed her 'horrific history' (ts 264), and referred to the complainant's contention that 'it was always the same and it was every other day, if it was possible' (ts 265).

Appeal against conviction: the ground of appeal

The appellant's sole ground of appeal against conviction alleges that the trial judge erred in fact and law, and there was a miscarriage of justice, when he failed adequately to direct the jury as to the evidence about other offending of a sexual nature committed by the appellant upon the complainant.
The particulars to the ground assert that his Honour did not:
(a)direct the jury that they needed to be satisfied beyond reasonable doubt of the evidence in question;
(b)adequately direct the jury as to the reason why this evidence was admitted;
(c)adequately direct the jury as to the purpose for which they could use this evidence; or
(d)adequately identify the evidence in question.
On 2 March 2010, Owen JA granted leave to appeal.

Appeal against conviction: some relevant legal principles

In HML v The Queen [2008] HCA 16; (2008) 235 CLR 334, Gleeson CJ referred to the term 'uncharged acts', in the context of a case involving sexual offending against children, and said he was content, for the purpose of stating his reasons, to adopt that term. His Honour added, however, that he did not suggest it would always, or even usually, be a helpful term in a trial judge's directions to a jury [1]. Like Gleeson CJ, in these reasons I will, solely for convenience, use the term 'uncharged acts'. However, as Gleeson CJ and Hayne J explained in HML, it is preferable that the term not be used by a trial judge in directing a jury.
At common law, evidence that reveals the accused as a person of bad character is not admissible in criminal proceedings if it merely proves that he or she has a general disposition or propensity to commit crime or a particular kind of offence. See Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108, 116 (Gibbs ACJ, Stephen, Jacobs & Aickin JJ agreeing); Perry v The Queen [1982] HCA 75; (1982) 150 CLR 580, 585 (Gibbs CJ), 603 (Wilson J), 609 (Brennan J). The reasons for this exclusion were summarised by McHugh J in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461, 512 ‑ 513.
The exceptions to this exclusionary rule include what has been referred to as 'propensity evidence'. In Pfennig, Mason CJ, Deane and Dawson JJ said:
There is no one term which satisfactorily describes evidence which is received notwithstanding that it discloses the commission of offences other than those with which the accused is charged. It is always propensity evidence but it may be propensity evidence which falls within the category of similar fact evidence, relationship evidence or identity evidence. Those categories are not exhaustive and are not necessarily mutually exclusive. The term 'similar fact' evidence is often used in a general but inaccurate sense (464 ‑ 465).
The term 'propensity evidence' does not appear to have a precise meaning at common law. It includes 'similar fact evidence' and 'relationship evidence'.
The term 'similar fact evidence' usually describes evidence which reveals that the accused has, on previous occasions, engaged in conduct similar to that alleged against him or her in the pending criminal proceedings. The probative value of similar fact evidence lies in the improbability of witnesses giving accounts of happenings having the requisite degree of similarity unless the events occurred.
Where the similar fact evidence is disputed, it remains relevant to prove the commission of the acts charged. See Pfennig (482) (Mason CJ, Deane & Dawson JJ). See also Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528, 556 ‑ 557 (Deane J).
The term 'relationship evidence' refers to evidence relating to the accused and the complainant which will often be admissible because it tends to prove how or why the conduct the subject of the pending criminal proceedings arose, or because it makes it more probable than not that the conduct charged against the accused occurred at the time or place or in the manner alleged. See Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590, 630 (McHugh J). Evidence of the relationship between the accused and the complainant may be admissible for the purpose of proving the accused's guilty passion, intention or propensity, or the accused's opportunity or motive to commit the offence alleged against him. See Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106 [182] (Callinan J).
In R v Best [1998] 4 VR 603, Callaway JA (Phillips CJ & Buchanan JA agreeing) said:
The two main divisions of propensity evidence are similar fact evidence and relationship evidence. There are subdivisions. For example, similar fact evidence may go to the identity of the offender or to the improbability of coincidence if a number of similar accounts are all true. It usually, but not always, involves an offence against a different victim. Relationship evidence is different in that last respect but, like similar fact evidence, its probative value also varies from case to case. Sometimes it is necessarily led to make a complainant's account intelligible. On other occasions it negates accident or establishes motive. The foregoing is neither exhaustive nor intended to be definitive (606).
Propensity evidence may be directly relevant to a fact in issue (this is usually the case with similar fact evidence) or it may be indirectly relevant to a fact in issue (this is usually the case with relationship evidence).
At common law, propensity evidence is admissible only if it is sufficiently highly probative of a fact in issue as to outweigh the prejudice it might cause to the accused. It is inadmissible if there is a reasonable view of the evidence which, when the propensity evidence is considered with other relevant evidence, is inconsistent with the accused's guilt. See Pfennig (481 ‑ 483) (Mason CJ, Deane & Dawson JJ); Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292, 296 (Mason CJ, Wilson & Gaudron JJ); Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 [9], [54] (Gleeson CJ, Gummow, Kirby, Hayne & Heydon JJ).
Also, at common law, evidence is admissible, even though it reveals other criminal conduct or non-criminal but discreditable behaviour by the accused, if it is part of the res gestae. Further, evidence of collateral facts which tends to prove the facts in issue (that is, circumstantial evidence) is often admitted in evidence, even though it reveals other criminal conduct or non‑criminal but discreditable behaviour by the accused. See Harriman (628) (McHugh J). In Harriman, McHugh J said:
If evidence which discloses other criminal conduct is characterized as part of the transaction which embraces the crime charged, it is not subject to any further condition of admissibility. Evidence which directly relates to the facts in issue is so fundamental to the proceedings that its admissibility as a matter of law cannot depend upon a condition that its probative force transcends its prejudicial effect. No doubt in a criminal trial a judge always has a general discretion to exclude prejudicial evidence. But it is difficult to see how evidence directly related to the very facts in issue can be excluded simply because it reveals other criminal conduct on the part of the accused. Consequently, it is a matter of great importance whether the evidence is classified as part of the res gestae or as circumstantial evidence tending to prove the facts in issue: cf Forbes, Similar Facts (1987), at p 19 (633).
Section 31A of the Evidence Act 1906 (WA) provides:
(1)In this section -
'propensity evidence' means -
(a)similar fact evidence or other evidence of the conduct of the accused person; or
(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
'relationship evidence' means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.
(2)Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -
(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
(3)In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.
Section 31A was introduced into the Evidence Act by s 13 of the Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004 (WA). It was introduced in conjunction with amendments to the law of joinder to override the decision of the High Court in Hoch.
The Parliament's purpose in enacting s 31A was to confer on the courts greater power to admit propensity and relationship evidence. See the second reading speech of the Hon Attorney General: Western Australia, Parliamentary Debates, Legislative Assembly, 30 June 2004, 4068. It appears that the policy underlying s 31A reflected these observations of McHugh J, in his dissenting judgment in Pfennig:
The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial (529).
See Western Australia, Parliamentary Debates, Legislative Council, 24 September 2004, 6547 and the terms of s 31A itself.
Section 31A substantially amended the common law. It abolished the test that propensity evidence is inadmissible if there is a rational view of it, when considered with other relevant evidence, that is inconsistent with the accused's guilt. See Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [102] ‑ [130]; Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482 [44] ‑ [73]; Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 [26]. By s 31A, 'propensity evidence' and 'relationship evidence', as defined in s 31A(1), are admissible if the court considers that the requirements of each of pars (a) and (b) of s 31A(2) have been satisfied.
In s 31A(1), 'propensity evidence' is defined by reference to the conduct, character or reputation of the accused or a tendency that the accused has or had. It includes similar fact evidence. Section 31A(1) defines 'relationship evidence' in more specific terms, by reference to the accused's attitude or conduct towards another person, or a class of persons, over a period of time. No doubt, the other person will usually be the complainant (especially in the case of allegations of sexual assault against a child) or a class of persons of which the complainant is a member (again, especially in the case of allegations of sexual assault against a child or children). The categories of 'propensity evidence' and 'relationship evidence', as defined in s 31A(1), are not mutually exclusive. There will, no doubt, often be cases where evidence which answers the description of 'relationship evidence' will also fall within the definition of 'propensity evidence'.
The tests for admissibility in pars (a) and (b) of s 31A(2) apply to both 'propensity evidence' and 'relationship evidence', as defined. Neither 'propensity evidence' nor 'relationship evidence' will be admissible under s 31A unless the court considers that:
(a)the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
The court may decide, in a particular case, that the tests in pars (a) and (b) of s 31A(2) are satisfied in relation to the proposed evidence generally; that is, the evidence should be admitted generally at the trial, and not merely for a particular or limited purpose. Alternatively, the court may decide, in a particular case, that the test in par (a) is satisfied, but the test in par (b) is not satisfied unless the evidence in question is admitted:
(a)solely for a particular or limited purpose; or
(b)subject to the trial judge giving the jury a specific direction or directions in relation to the evidence.
The instances I have given are examples. They are not an exhaustive statement of the issues which may arise in considering the application of s 31A to the facts and circumstances of a particular case or how those issues should be resolved.
Section 31A is concerned with admissibility. It does not deal with the terms of any directions which a trial judge may or must give to a jury in relation to 'propensity evidence' or 'relationship evidence', as defined.
This court has held that if evidence is admitted generally as propensity evidence under s 31A then a 'propensity warning' (that is, a warning of the kind described by McHugh J in KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 [2] ‑ [3]) is not required because the very purpose of the evidence is to prove that the accused is the type of person who is likely to have committed the offence or offences charged. See Noto [26] ‑ [28] (McLure JA, Steytler P & Wheeler JA agreeing); Upton v The State of Western Australia [2008] WASCA 54 [65] (Steytler P, McLure & Pullin JJA agreeing); Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [64] (Steytler P).
However, as Steytler P noted in Upton, it does not follow from the conclusion that if evidence is admitted generally as propensity evidence under s 31A, no warning of any kind is ever required in respect of the evidence [65]. His Honour explained:
Under the common law, if evidence is admitted generally as propensity evidence, a propensity warning is not required. That is because the very purpose of the evidence is to prove that the accused is the type of person who is likely to have committed the crime charged. A propensity direction would contradict the basis on which that evidence was admitted: KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 [39] (McHugh J). The same is true of evidence admitted as propensity or relationship evidence under s 31A. If that evidence satisfies the test for admissibility (as it must do), no propensity direction is required: Noto [26] - [28]. That is not to say that no warning of any kind is required in respect of the evidence. What needs to be said will necessarily depend upon the individual circumstances [65].
A warning should be given if it is necessary, in the circumstances of the particular case, to avoid a perceptible risk of miscarriage of justice. However, no propensity warning is necessary in relation to propensity evidence or relationship evidence which is admitted generally under s 31A.
Section 31A does not deal with the standard of proof in relation to uncharged acts or propensity evidence generally.
In PIM v The State of Western Australia [2009] WASCA 131; (2009) 196 A Crim R 516, I examined, in the context of a criminal trial alleging sexual offending against a child, the basis for the admissibility under s 31A of uncharged acts including any directions which a trial judge may be required to give to the jury in relation to the uncharged acts. It is unnecessary, in the particular circumstances of the present case, to repeat, revisit or elaborate upon the opinions I expressed in PIM. See, however, the observations of Owen JA in Stubley v The State of Western Australia [2010] WASCA 36 [4] in relation to HML and the approach recommended by Nettle, Redlich and Dodds‑Streeton JJA in R v Sadler [2008] VSCA 198; (2008) 20 VR 69 [65].

Appeal against conviction: the trial judge's summing up

The trial judge instructed the jury in his summing up, relevantly, as follows:
(a)The jury had to arrive at a separate verdict in respect of each of the seven counts in the indictment. It was open to the jury to find the appellant guilty of one, some or none of the charges or, conversely, not guilty of one, some or all of the charges. Simply because, for example, the jury found him guilty of one charge, it did not follow that he must therefore be guilty of all of the charges. Conversely, if the jury found him not guilty of one charge, it did not follow that he must therefore be not guilty of all of the charges (ts 194). The jury must not reason on the basis that, 'well, if he did one then he must have done all of them' (ts 194).
(b)The State had the burden of proving each of the elements of each count. There was no onus on the appellant to prove his innocence or, indeed, to prove anything at all. The burden of proof never shifts from the prosecution (ts 194).
(c)The State must prove all of the elements of a count beyond reasonable doubt before the jury could return a verdict of guilty (ts 195). The appellant was entitled to the benefit of any reasonable doubt which the jury may have (ts 196). If the jury had a reasonable doubt in respect of any element of any of the counts, the State will have failed to prove its case on that count and the appellant must be acquitted (ts 196).
(d)As to the 'uncharged acts':
I mentioned earlier, 'uncharged' or 'other' sexual acts. You'll recall that [the complainant] gave evidence that, apart from these particular instances of which she gave evidence, the instances - i.e., the charges on the indictment - those occasions, that she also gave evidence that the accused, 'Would have sex with her just about every day if he could'. There was also evidence, you will recall, when she spoke of having recorded in her diary in the months of January, February and March of 2006, by putting a red asterisk on the day, they being days when she said that the accused had sexual intercourse with her.
Now, those matters are not the subject of any charges on the indictment. So you may be wondering, 'Well, what's the purpose of that evidence?' And what can you do or how can you use that evidence? It is evidence that's referred to as relationship evidence or evidence of extraneous sexual conduct in the sense that it is talking about matters that were done but are not the subject of any charges. This evidence of those alleged ‑ or that alleged sexual conduct is admitted as evidence solely to establish the relationship between the accused … and [the complainant] as part of the context and the setting in which or the background against which the offences charged are alleged to have occurred. By giving, if you like, the bigger picture; that is it is against this background that it is said that these charges were committed. Even if you accept that evidence, that is the evidence of the extraneous sexual conduct, or part of it - the commission of the offences charged - the offences on the indictment can only be proved by the evidence relating to those charges and not by the evidence of the extraneous sexual conduct. That is, if you're not satisfied that the conduct the subject of a particular charge has been proved, then you can't use the evidence of the uncharged acts to convict the accused. You can't rationalise, 'Well, he did these things on these other occasions, therefore, he must have done this charged offence'. You can't use that evidence to rationalise in that way. You must not reason that, because the accused engaged in sexual conduct with the complainant on other occasions, that he was the kind of person who was likely to have done so on the particular occasions with which he has been charged. On the other hand, if you do not accept [the complainant's] evidence of these other occasions, the extraneous sexual conduct; if you don't accept her evidence as to that, then of course, it's likely to influence your assessment of her credibility about the events charged. Unless you find the evidence of extraneous conduct reliable and believe it to be true, then you should simply disregard it; put it to one side and then just consider the evidence in relation to each of the separate charges on the indictment (ts 200 ‑ 201). (emphasis added)
(e)As to count 1:
You can only find him guilty, [the appellant] guilty, on count 1 if all 12 of you are satisfied beyond reasonable doubt that on the first occasion he either sexually penetrated her or indecently dealt with her, that on the second occasion that he sexually penetrated her and that in [the location in rural Western Australia], the third occasion, he sexually penetrated her. You have to be satisfied beyond reasonable doubt as to those matters before you can convict him on count 1, that being the charge of a sexual relationship (ts 207).
(f)As to counts 2, 3 and 4:
Again, you have to be satisfied beyond reasonable doubt that these incidents [the subject of counts 2, 3 and 4] did occur as [the complainant] said they did (ts 208).
(g)As to counts 5, 6 and 7:
[Y]ou have to be satisfied beyond reasonable doubt firstly that [the appellant] did sexually penetrate [the complainant] in the way alleged [in counts 5, 6 and 7] and that he did so without her consent (ts 210).
(h)As to the credibility of the complainant:
Her credibility, of course, is at the very heart of this case. What you make of her and of her evidence is very much a matter for you because, as I've stressed, you alone are the judges of the facts in this case. When assessing the credibility of [the complainant] you will, as I've said, bring to bear your powers of commonsense, your life's experiences and powers of judgment. Assessing credibility means considering firstly the honesty of the witness, the impression of honesty that she gave you. It's also necessary to consider the reliability of what she has said. You may accept the whole of what she said; you may reject the whole of what she said. You may accept parts of it; you may reject other parts of it. Just because you might find that perhaps she's unreliable in certain respects that's not to say that you necessarily find that she is unreliable in respect to all things. Of course, if you have the view that her evidence is unreliable and if you do have, as defence counsel said yesterday, misgivings about her evidence, doubts, concerns, if you were to think, 'Well, I reckon he did it but I can't be sure', well, that's not good enough. You have to be satisfied beyond reasonable doubt. That is you have to be accepting that [the complainant's] evidence is truthful, that it is credible, that it is reliable … Because [the complainant's] evidence is vital to the prosecution's case you must consider her evidence carefully and I do direct you to do that (ts 210 ‑ 211). (emphasis added)

Appeal against conviction: its merits

No application was made by the State or the appellant at or before the trial in relation to the admissibility of the evidence of the uncharged acts or the purpose or purposes for which the State proposed to rely on that evidence.
The appellant was represented at his trial by senior counsel with many years experience as a criminal defence lawyer. Senior counsel did not:
(a)object to the admissibility of the evidence of the uncharged acts;
(b)request the trial judge to give any particular directions in his summing up to the jury about that evidence; or
(c)complain about or request any re‑direction concerning the directions given in his Honour's summing up in relation to the evidence of the uncharged acts.
Before this court, counsel for the appellant (who did not appear for the appellant at his trial) conceded that the evidence in question was admissible under s 31A of the Evidence Act as 'relationship evidence' (appeal ts 19). Counsel also conceded that it was necessary, in view of the forensic decisions taken by senior counsel at the trial, for the appellant to demonstrate to this court that a miscarriage of justice had occurred (appeal ts 13).
In my opinion, evidence of the uncharged acts was, without doubt, admissible under s 31A as 'relationship evidence' and, also, as 'propensity evidence'. The evidence demonstrated the nature of the relationship between the appellant and the complainant and, also, the character of the appellant and a tendency that he had. The evidence of the uncharged acts illustrated the appellant's ongoing sexual interest in the complainant, and revealed the manner and extent to which he had acted on that interest.
The evidence of the uncharged acts had significant probative value, either by itself or taken with other evidence adduced at the trial. If accepted by the jury as truthful and reliable, it could rationally affect, directly or indirectly, the assessment of the probability of the existence of the facts in issue in relation to each of the counts in the indictment. I consider that fair-minded people would think that the interests of justice required the admissibility of the evidence of the incidents in question despite any risk of an unfair trial.
The evidence of the uncharged acts, if accepted by the jury as truthful and reliable, disclosed either criminal or disreputable conduct by the appellant towards the complainant.
The nature and extent of any directions required in relation to 'propensity evidence' or 'relationship evidence' which is admitted under s 31A depends on the character of the evidence in question, whether the evidence is admitted generally or for a particular or limited purpose, and the facts and circumstances of the particular case.
If a trial judge is required, but fails, to give any particular direction or directions in relation to 'propensity evidence' or 'relationship evidence', it does not necessarily follow that there will have been a miscarriage of justice. The whole of the trial judge's summing up must be examined, in the context of the relevant facts and circumstances (including the evidence actually adduced and the course of the trial as a whole), in order to determine whether a miscarriage has occurred.
In the present case, I am satisfied that the trial judge's summing up did not occasion a miscarriage of justice. Also, I am satisfied that his Honour's summing up did not contain any material errors of law. My reasons for these opinions are as follows.
First, the directions which the trial judge actually gave were very favourable to the appellant in that:
(a)they confined the relevance of the evidence of the uncharged acts to background or contextual relevance;
(b)they required the jury to focus solely upon the complainant's direct evidence in relation to the specific acts alleged against the appellant in each count in the indictment; and
(c)they required the jury not to act on any of the complainant's evidence concerning any element of any offence alleged against him in the indictment unless they were satisfied beyond reasonable doubt that her evidence was truthful and reliable.
In particular:
(a)His Honour gave the jury a 'separate consideration warning'. They had to arrive at a separate verdict in respect of each count (ts 194).
(b)His Honour directed the jury that the complainant's credibility was 'at the very heart' of the case. The jury could not be satisfied beyond reasonable doubt in relation to a count unless they accepted the complainant's evidence as truthful and reliable. Her evidence was 'vital' to the State's case and it was therefore necessary for the jury to consider her evidence carefully (ts 210 ‑ 211).
(c)His Honour directed the jury that the evidence of the uncharged acts was admitted as evidence 'solely to establish the relationship between [the appellant] … and [the complainant] as part of the context and the setting in which or the background against which the offences charged are alleged to have occurred' (ts 200 ‑ 201).
(d)His Honour directed the jury that even if they accepted the evidence of the uncharged acts, the counts in the indictment could only be proved 'by the evidence relating to those charges and not by the evidence of the extraneous sexual conduct' (ts 200 ‑ 201).
(e)His Honour directed the jury that if they were not satisfied that the conduct the subject of a particular count in the indictment had been proved then they could not use the evidence of the uncharged acts to convict the appellant (ts 200 ‑ 201). He gave the jury this 'propensity warning': the jury could not use the evidence of the uncharged acts to reason that if he had engaged in the extraneous sexual conduct then he was 'the kind of person who was likely to have done so on the particular occasions with which he has been charged' (ts 200 ‑ 201).
(f)As to count 1, his Honour directed the jury, relevantly, that they could only convict on that count if they were satisfied beyond reasonable doubt that in relation to:
(i)the first episode relied on by the State, the appellant either sexually penetrated the complainant or indecently dealt with her;
(ii)the second episode relied on by the State, the appellant sexually penetrated her; and
(iii)the third episode relied on by the State, the appellant sexually penetrated her (ts 207).
(g)As to counts 2, 3 and 4, his Honour directed the jury, relevantly, that they could only convict on these counts if they were satisfied beyond reasonable doubt that the incidents the subject of the counts actually occurred as the complainant said they did (ts 208).
(h)As to counts 5, 6, and 7, his Honour directed the jury, relevantly, that they could only convict on these counts if they were satisfied beyond reasonable doubt that the appellant sexually penetrated the complainant in the manner alleged in the counts and that he did so without her consent (ts 210).
Secondly, none of the uncharged acts was an indispensible link in a chain of evidence necessary to prove the appellant's guilt on any of the counts in the indictment. The complainant gave direct evidence of the specific conduct alleged against the appellant in the counts.
Thirdly, the trial judge did not direct the jury that the evidence of the uncharged acts could be relied on by them for the purpose of finding that the appellant had a sexual interest in or a 'guilty passion' for the complainant.
Fourthly, in the circumstances I have described in my first, second and third reasons at [74] ‑ [77] above:
(a)it was unnecessary, on any view of the reasons of the High Court in HML, for his Honour to direct the jury that they needed to be satisfied beyond reasonable doubt in relation to the evidence of the uncharged acts;
(b)his Honour adequately directed the jury as to the relevance of the evidence of the uncharged acts including the purpose for which this evidence could be used by the jury; and
(c)his Honour adequately identified the evidence in question.
Fifthly, the only reasonable inference open in the circumstances is that senior counsel for the appellant at the trial (who, as I have mentioned, is a very experienced criminal defence lawyer) decided, for legitimate forensic reasons, not to object to the admissibility of the evidence of the uncharged acts, and not to seek any directions or re‑directions from the trial judge in his summing up in relation to that evidence. As I have mentioned, the evidence in question was, without doubt, admissible under s 31A as 'relationship evidence' and, also, as 'propensity evidence'. Also, as I have mentioned, the directions which his Honour actually gave were very favourable to the appellant. It was in the interests of the appellant for his trial counsel to minimise the impact of the evidence of the uncharged acts. Any objection or application for directions or re‑directions may well have resulted in his Honour scrutinising the authorities of this court which were in point, and giving directions or re‑directions less favourable to the appellant.
The ground of the appeal against conviction is without merit.

Appeal against sentence: the grounds of appeal

The appellant appeals against his sentence on three grounds.
Ground 1 alleges that the trial judge erred in the exercise of his sentencing discretion by imposing a sentence on count 1 (namely, 10 years 6 months' imprisonment) that was manifestly excessive. Ground 2 alleges that his Honour erred in the exercise of his sentencing discretion by imposing a total effective sentence of 14 years 6 months' imprisonment that was 'manifestly excessive'. Ground 2 is, in substance, a complaint about the application of the totality principle. Ground 3 alleges that his Honour erred by failing properly to apply the totality principle and this resulted in a total effective sentence that was disproportionately long when viewed in the light of the appellant's overall criminal culpability. Ground 3 had originally included an allegation that the total effective sentence was 'crushing', but this allegation was disavowed by counsel for the appellant at the hearing of the appeal (appeal ts 32 ‑ 33). Accordingly, the appellant relies only on the first limb of the totality principle.
On 24 August 2009, Miller JA granted leave to appeal.

Appeal against sentence: the appellant's submissions

Counsel for the appellant referred to numerous cases involving intra‑familial sexual offences with children. Many of the cases concerned multiple complainants.
According to counsel, most of the cases where the highest sentences have been imposed (more than 10 ‑ 12 years' imprisonment) have involved multiple complainants. Counsel also submitted that when regard is had to the actual non‑parole periods to be served by the offenders in the cases cited, the non‑parole period to be served by the appellant is higher than in any of those cases.
Counsel also argued that the total effective sentence was disproportionate to the appellant's overall criminality as reflected in the combination of offences for which he was sentenced.

Appeal against sentence: its merits: the individual sentence for count 1

A ground of appeal which alleges that an individual sentence is manifestly excessive asserts the existence of an implied error. It is necessary, in determining whether an individual sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the offender's criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the offender's personal circumstances.
At the material time, the maximum penalty for the offence of having a sexual relationship with a child under the age of 16 years, contrary to s 321A(3) of the Code, was imprisonment for 20 years.
The primary sentencing considerations for offences of the kind in question are punishment of the offender, specific and general deterrence and the protection of vulnerable children.
It is well‑established that in cases of intra‑familial sexual abuse, matters personal to the offender are of less mitigatory weight than might otherwise be the case. The fact that an offender is otherwise of good character has only little weight because the offences are of a kind that, until revealed, generally do not impact on other people or upon their perception of the offender. See MPD v The State of Western Australia [2008] WASCA 57 [58] (Miller JA, Wheeler & Buss JJA agreeing).
There is no 'tariff' for the offence of having a sexual relationship with a child under the age of 16 years (or for sex offences generally) because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum available penalty. It is important, however, in deciding whether a particular sentence is manifestly excessive, to appreciate what sentences are customarily imposed in cases involving similar offending, for the purpose of avoiding the risk of sentencing becoming idiosyncratic and arbitrary. See The State of Western Australia v Akizuki [2008] WASCA 267 [68] (Steytler P, McLure JA agreeing). However, reference in 'micro‑detail' to other cases of sexual offending which have some similarities to the case in question is of very limited value. See MPD [77].
The mere fact that an individual sentence is within the range of other sentences imposed for offences of the kind in question does not necessarily establish that no express or implied error has been made by the sentencing judge. Similarly, the mere fact that an individual sentence is outside that range does not necessarily establish that the judicial discretion has miscarried. See Ly v The Queen [2007] NSWCCA 28 [20] (Adams J, Howie & Price JJ agreeing); R v Baldock [2010] WASCA 170; (2010) 269 ALR 674 [147] (Buss JA). All relevant sentencing factors (in particular, the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender) must be evaluated and synthesised in deciding whether an individual sentence is manifestly excessive or not. See Schaper v The State of Western Australia [2010] WASCA 178 [71] (Buss JA, Mazza J agreeing).
Similarly, as McLure P noted in Schaper:
The range of sentences customarily imposed for an offence does not establish the range of the sound sentencing discretion; were it otherwise, sentences outside the customary range could not be imposed regardless of the particular circumstances of the case or because of broader considerations including changes in the prevalence of an offence: The State of Western Australia v Akizuki [2008] WASCA 267 [71]. The range of sentences customarily imposed is dynamic not static. It can expand at its lower and upper ranges to reflect differences in relevant sentencing considerations [8].
In B v The Queen [2002] WASCA 236, the offender sought an extension of time to apply for leave to appeal against a total effective sentence of 20 years' imprisonment imposed in respect of four counts of having a sexual relationship with a child under the age of 16 years, contrary to s 321A(3) of the Code. Each count related to a different child. The offender was the father of the four victims. The offending the subject of each count occurred between 30 March 1999 and 1 December 1999. Each victim was at that time aged between 3 and 6 years. The offender pleaded guilty.
The sentencing judge described the nature of the offending, as follows:
The facts as to which no dispute was taken by the offender and as recited to the court are in brief terms as follows: all children are the children of the union of the offender and his now estranged partner. In July of 1999 the partner, the mother of the children, left the premises with all of the children save for the child N but within a fortnight all children, including the complainants, returned to live with the offender after he obtained their custody from the Family Court.
Dealing now with complainant N, between March and December 99 on many occasions, the exact extent of those occasions not being known, you, the offender, sexually penetrated her by inserting your fingers into her vagina or having penile vaginal intercourse with her. On at least one occasion there was anal penetration of the child followed immediately by vaginal penetration.
Turning to the child A, who is the second born of the twin girls, again, between March 99 and December 99 there were a considerable number of occasions, the exact number being unknown, when you, the offender, sexually penetrated the complainant by way of penile vaginal and penile anal penetration. In her interview with the interviewing police officer, this complainant said that this happened every second night.
I now turn to the third complainant, the boy R. This child would have turned 4 on 19 April 99 at which time his father was sexually abusing him. It is a harrowing experience to read the child's statement on pages 117 to 135 of the brief, or thereabouts, in which the child details the many occasions that he was sodomised by his father and the occasions upon which the father required this 4-year-old to perform fellatio upon him. Following that act, it appears that on at least one occasion the offender required the child to swallow the ejaculate.
I turn now to the child L, who was born on 5 June 95, and so therefore during the subject period she was between 3 and 4 years of age. The same types of activity, again, to an unknown extent, took place between the offender and the youngest child L in the same manner as previously described with the other children [20].
The sentencing judge said that the case appeared 'to be almost the worst imaginable' [23]. His Honour imposed a term of 15 years' imprisonment in respect of each of the counts. However, after taking into account the totality principle, he structured the individual sentences so that the total effective sentence was 20 years' imprisonment. A parole eligibility order was made.
In B, the Court of Criminal Appeal dismissed the offender's application to extend time. Miller J (Murray & Templeman JJ agreeing) held that the discount given by the sentencing judge on each count (being a 5‑year discount from the maximum of 20 years to 15 years), for the plea of guilty and matters personal to the offender, properly reflected all relevant factors [30]. The court also held that the sentencing judge had properly applied the totality principle.
In D v The Queen [2003] WASCA 33, the offender was convicted, on his plea of guilty, on one count of having a sexual relationship with a child under the age of 16 years, contrary to s 321A(3) of the Code, four counts of indecently dealing with a child between the ages of 13 and 16 years, and two counts of sexually penetrating a child between the ages of 13 and 16 years. The child the subject of the count alleging a sexual relationship was at the material time aged 9 years, and the child the subject of the other counts was at the material time aged 14 years.
The sentencing judge imposed a term of 7 years' imprisonment for the count of having a sexual relationship with the child aged 9 years. His Honour imposed individual terms of imprisonment on the other counts. The total effective sentence was 14 years' imprisonment. A parole eligibility order was made.
Miller J (Malcolm CJ & Murray J agreeing) described the circumstances of the offending:
The facts revealed that the appellant had a sexual relationship with the child 'JAL' at a time when she was 9 years of age and between 1 November 2001 and 31 January 2002. On three separate occasions on three different days, the appellant interfered with JAL whilst she and her sister were staying overnight at the appellant's home in Eden Hill. On the first occasion the appellant put himself on the mattress where JAL was sleeping and placed his hand inside her pyjama pants and over the area of her vagina. On the second occasion, the appellant again placed himself on the mattress and this time put his hand under JAL's pyjamas and inserted a finger into her vagina for a short time. On the third occasion, the appellant lay on the mattress next to JAL and took her hand and placed it upon his penis.
The facts in relation to the other counts related to the child 'ELL' and the facts related to the Court by the Crown prosecutor revealed as follows: On count 2 the offence occurred between 1 and 20 January 2002 when the appellant drove ELL to Mandurah for the purpose of crabbing. Whilst sitting on the tailgate of his vehicle he touched her on the breasts outside her clothing. Count 3 occurred between 25 and 26 January 2002 when the appellant drove ELL to a house in Cervantes for a fishing weekend with friends. Whilst ELL was in bed later in the evening, the appellant entered the bedroom, woke her and touched her outside the vagina on the outside of her pants. Counts 4, 5, 6 and 7 were a continuation of the incident to which count 3 refers. The facts as recited by the Crown prosecutor in relation to these counts were as follows:
'Count 4: he then removed the sleeping bag, rolled the complainant back towards him and then pushed her legs apart and placed a hand beneath the complainant's pants over her vagina area. He moved his hands further between the complainant's legs, removed her tampon and got back off the bed. Count 5: he then returned to the bed with a yellow torch, pulled the complainant's shorts and underpants aside and shone the torch between her legs. The offender then inserted a finger into the complainant's vagina for a short time. Count 6: the offender then moved his hand up under the complainant's top and over her right breast area and pushed her legs open again with his hands. Count 7: he then placed his head between the complainant's legs and began to perform cunnilingus on her. The complainant jumped off the bed and left the room' [7] ‑ [8].

The offender had a prior criminal record. He had been imprisoned in February 1992 for 10 years for a series of sexual offences against five female victims. The victims comprised his three step‑daughters and two natural daughters. The crimes had occurred between 1985 and 1990 and involved genital touching, fellatio, digital penetration, cunnilingus and penile penetration [10].
In D, the Court of Criminal Appeal allowed the offender's appeal against sentence. The court substituted, relevantly, a sentence of 6 years' imprisonment for the count of having a sexual relationship with the child aged 9 years, and a total effective sentence of 11 years' imprisonment. The parole eligibility order was affirmed.
In Dickens v The Queen [2004] WASCA 179; (2004) 147 A Crim R 343, the offender was convicted, on his fast‑track plea of guilty, of two counts of having a sexual relationship with a child under the age of 16 years, contrary to s 321A(3) of the Code. The counts related to separate complainants. He was sentenced to 5 years 4 months' imprisonment on the first count and 2 years 8 months' imprisonment on the second. The sentences were ordered to be served cumulatively. The total effective sentence was therefore 8 years' imprisonment. A parole eligibility order was made.
In the Court of Criminal Appeal, McLure J (Murray J agreeing) set out details of the offending:
The complainant on the first count is the applicant's step-daughter. The offending began when the complainant was 10 years old and the applicant was 34 years old. The sexual relationship occurred in the period 10 February 1998 to 16 December 2002. The applicant had sexual intercourse with the complainant on regular occasions. The applicant impregnated the complainant when she was 13 years old. The pregnancy was terminated. The applicant's sexual activity with the complainant continued after the applicant had separated from the complainant's mother.
The sexual relationship the subject of the second count occurred in the seven month period between 1 November 1998 and 1 May 1999. The complainant was 15 years old at the time. Initially, the complainant slept over a number of times at the applicant's house. Some time later, the applicant moved in with the second complainant's mother for what turned out to be a two month stay. The sexual activity between the applicant and the complainant included fondling each other, masturbation and digital penetration by the applicant and oral sex [5] ‑ [6].
On the first count, the sentencing judge had a starting point of 12 years' imprisonment which he reduced to 8 years for the fast‑track plea of guilty. He then further reduced the sentence by one‑third to 5 years 4 months in accordance with the transitional provisions in the Sentencing Legislation Amendment and Repeal Act 2003 (WA). On the second count, his Honour had a starting point of 6 years' imprisonment which he reduced to 4 years for the fast‑track plea of guilty, and further reduced by one‑third to 2 years 8 months in accordance with the transitional provisions.
In Dickens, McLure J held that a total effective sentence of 8 years' imprisonment was more than was fairly necessary to achieve all of the recognised sentencing objectives. She reached that conclusion having regard primarily to the tangible manifestations and benefits of the offender's remorseful conduct in taking the initiative to confess his criminal conduct to police and making the fast‑track plea of guilty. The majority of the court ordered that 16 months of the term imposed for count 2 be served before the term of 5 years 4 months for count 1 began. On that basis, the substituted total effective sentence was 6 years 8 months' imprisonment. The offender remained eligible for parole.
In VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1, the offender was charged with 44 counts of sexual abuse against two complainants, who were his step‑daughters. The case went to trial. As to the first complainant, the offender was convicted of 10 counts of rape and 10 counts of indecent assault. As to the second complainant, he was convicted of one count of rape, three counts of indecent assault and seven counts of sexual penetration without consent. The sentencing judge imposed a total effective sentence of 6 years' imprisonment. The Crown appealed against the sentencing decision. This court (Wheeler & Roberts-Smith JJA & Miller AJA) allowed the State's appeal and re‑sentenced the offender to a total effective sentence of 10 years' imprisonment. The traditional principles governing Crown or State appeals against sentence applied.
The court in VIM reviewed and compared numerous decisions relating to sexual offences against children. Their Honours expressed two conclusions.
First:
It is very clear that sentences for multiple counts of sexual offending against a child have significantly 'firmed-up' since the survey undertaken by Anderson J. Cases such as Podirsky, Jarvis, Petchell, and Shepherdson, can no longer be regarded as reliable guides. Offending of the type described in them is now regarded significantly more seriously. It should also be noted, in this context, that in a number of the more recent cases reviewed, older examples such as Jarvis and Podirsky were apparently seen as setting roughly an 'upper limit'. Bishop v The Queen [2002] WASCA 79 (16 years, pre-transitional provisions) and Morley v The Queen [2001] WASCA 49 (13 years, pre-transitional provisions) are examples of such cases [307].
Secondly:
Finally, in relation to offences of this kind (that is, cases of frequent or prolonged sexual offending against a child or children), it is convenient to undertake the exercise of converting the sentences which we have discussed into those which would be imposed after the transitional provisions came into operation on 31 August 2003. The 'lower end' cases of up to 4 years formerly, would now be up to 2 years and 8 months; the most common sentence one would expect to see would be approximately 6 years and 8 months, and about two-thirds of sentences in such cases would fall within the range 6 years 8 months to 12 years 8 months (the former 10 to 19-year range). A term other than immediate imprisonment would be imposed only in the most unusual of cases (eg Marris v The Queen [2003] WASCA 171, where the six counts all occurred over the space of one evening, the offender and complainant were unrelated, the offender was a particularly immature young man, the complainant was 13, and there was no question of any force, threat, or 'grooming'). Those sentences, we stress, are the range one would expect to see after a plea of guilty [309]. (emphasis added)
The comments in VIM about the 'range' of sentences in cases of frequent or prolonged sexual offending against a child or children must, of course, be understood in the light of the observations in Schaper. See [92] ‑ [93] above.
In D v The State of Western Australia [2009] WASCA 155, the offender, a physical education teacher at the local high school attended by the complainants, was convicted, on his plea of guilty, of seven counts of sexual penetration of a child (the first complainant) under his care, supervision or authority, contrary to s 322(2) of the Code. The first complainant was aged 16 years 9 months when the offending commenced and had turned 17 when the last three offences were committed. The offender was also convicted, on his plea of guilty, of one count of persistent sexual conduct with a child (the second complainant) under the age of 16 years, contrary to s 321A of the Code. There were about eight separate occasions over a period of nearly five months in which the sexual conduct, mainly penile penetration of the vagina, occurred. The second complainant was aged 15 years 7 months when the offending commenced.
The sentencing judge imposed a term of 5 years' imprisonment for the offence of persistent sexual conduct with the second complainant and a total effective sentence in respect of all counts of 7 years 6 months (11 years 3 months pre‑transitional).
This court allowed the offender's appeal against sentence. It re‑sentenced the offender, relevantly, on the count of persistent sexual conduct with a child to a term of 3 years 6 months' imprisonment and substituted a total effective sentence of 5 years' imprisonment. McLure, Buss & Miller JJA decided, in substance, that the sentencing judge had placed too much emphasis on the sentencing outcome in other cases in which young children had been subjected to pressure or persuasion in the context of sexual offending. Miller JA (Buss JA agreeing) expressed the view that each of the sentences imposed on the offender was more appropriate to a case in which there was an element of abuse of trust, rather than, as in the case in question, where there was a position of authority held by the offender but where each of the two complainants was a willing participant [62].
The individual sentences of 15 years' imprisonment imposed in B equate to individual sentences of 10 years' imprisonment under the transitional provisions. B is, however, distinguishable from the present case because, even though each of the victims in B was materially younger, the offender pleaded guilty and was given a 25% discount for the plea and matters personal to him. By contrast, in the present case, the appellant went to trial and did not demonstrate any remorse. Fast‑track pleas of guilty, and pleas of guilty at the first opportunity, in this State ordinarily attract a reduction in sentence of somewhere between 20% and 35%, depending on the circumstances. See Moody v French [2008] WASCA 67; (2008) 36 WAR 393 [37] (Steytler P, Wheeler, McLure & Buss JJA). If the appellant had pleaded guilty at the first opportunity and had shown real remorse, the head sentence of 10 years 6 months' imprisonment on count 1 would probably have been discounted to a term of about 7 years 6 months. Also, B is distinguishable from the present case in that although each of the victims in B was materially younger, the overall period of the offending against the present complainant was significantly longer than the overall period of the offending against each of the victims in B.
The offending in each of D (2003) and Dickens is also distinguishable from the present case. In D (2003), the offender pleaded guilty, the period of offending was only three months and the nature of the sexual abuse was materially less egregious in that there was no penile penetration of the victim's vagina. In Dickens, the offender pleaded guilty on the fast‑track and took the initiative in confessing his criminal conduct to police. Also, the victim in Dickens was aged 10 years when the offending commenced, compared with the present complainant who was aged only 8 years. Some weight is to be attached to this difference because the sexual abuse included penile penetration of the vagina.
The offending in D (2009) was not, on any view, comparable with the offending in the present case.
I should note that I have considered each of the other numerous cases cited by counsel for the appellant. It is unnecessary, however, to refer to them in these reasons.
In the present case, the trial judge gave careful consideration to the objective seriousness of the appellant's offending. He identified numerous features which, in combination, required that the offending be characterised as within the upper end of the range of seriousness. These features included:
(a)The offending occurred over a period of about 10 years.
(b)The appellant was in a position of trust and authority in relation to the complainant, being her step‑father, and he was regarded by the complainant as her natural father. He had assumed sole care and responsibility for her from 2001.
(c)By reason of the complainant's mother's substance abuse and the appellant's sole parental role for the complainant from 2001, the complainant was particularly vulnerable, having no one else to care for, protect or raise her.
(d)The young age of the complainant at the commencement of the offending, being 8 years.
(e)The marked age disparity between the complainant and the appellant, who was a mature man, being 32 years old at the commencement of the offending and 42 when it ended.
(f)The nature of the offending conduct was exceptionally serious, involving penile/vaginal penetration of the victim from the age of 8 years.
(g)The appellant put his own sexual gratification ahead of all other considerations, including ignoring the complainant's attempts to repel his sexual advances and the obvious physical pain caused to the complainant by sexually penetrating her at such a young age.
(h)Although there was no threat or forceful physical behaviour other than pushing the complainant and removing her clothes, the appellant overbore her mentally and physically by reason of his position of trust, physical size and forceful persistence.
(i)The degree of moral corruption of the complainant involving as it did sexual intercourse with the complainant from the age of 8 years.
(j)The prolonged sexual abuse deprived the complainant of a normal childhood and adolescence and of her innocence.
(k)The appellant's sexual abuse of the complainant caused her to become pregnant at the very young age of 12 years, which resulted in her undergoing a termination procedure.
(l)The significant and ongoing negative effect of the offending behaviour upon the complainant.
The counts in the indictment were representative offences, the complainant having given evidence that she was sexually abused by the appellant from the age of 8 years on an almost daily basis. The appellant is, of course, only to be sentenced and punished for the counts in the indictment. However, the fact that those counts were representative of an ongoing course of conduct demonstrates that the offences for which he was convicted were not isolated incidents. He is not entitled to any mitigation on the basis that his moral culpability for the counts in the indictment was diminished as a result of his behaviour on those occasions being uncharacteristic or an aberration.
The trial judge referred in some detail to the appellant's personal circumstances. He specifically noted the following:
(a)The appellant was born on 19 November 1964. He was aged between 34 and 42 years at the time of the offending and was 44 when sentenced.
(b)Throughout his life, the appellant had adopted the role of a working father and family 'bread winner'. A business he conducted had ended in bankruptcy, and thereafter he had worked 'double shifts' to support his family.
(c)Throughout the years of his offending, the appellant had continued to be the 'bread winner' and in that sense had never shirked his proper family responsibilities.
(d)Recently, the appellant had experienced significant health problems as a result of a relatively aggressive thyroid cancer. This was, however, in remission, and he had a good short‑term prognosis.
His Honour characterised the appellant's offending conduct as a whole as 'nearing the worst category of this type of case to come before the court' (ts 8). The offending was rapacious and exploitative. His Honour elaborated:
By reason of her substance abuse, the mother hardly provided any support for the child such that, other than you, there was no one else to care for, protect, or to raise her. Your conduct in taking her under your wing, so to speak, and raising her in those circumstances might have been seen, in isolation, as something commendable which you have done. However, the reality was that this kindness only clothed your underlying offending. Given that [the complainant] had no one to turn to she was not to know or understand, at the young age when the sexual abuse commenced, that the relationship which you imposed upon her was not right, that it was not proper, and that it was immoral in our society, and that it was criminal in nature. You corrupted her. Her childhood, youth and teenage years, and her innocence, were denied to her. Her virginity was taken from her at a very young age. A child who is abused in a family environment is virtually helpless (ts 8).
The trial judge mentioned the complainant's victim impact statement. Unsurprisingly, she has trouble in trusting men, and had difficulty in her relationship with her former boyfriend. She had and continues to have nightmares and panic attacks. She did not finish school. After leaving school at the beginning of year 11, she failed twice a course at TAFE. After leaving the appellant's house, she abused alcohol to endeavour to forget her suffering.
The facts and circumstances of and underpinning count 1 on the indictment are shocking. The appellant was a predator of the worst kind. He was a man of mature years when he committed the three episodes relied on by the prosecution in relation to count 1. The complainant was then a little girl aged between about 8 and 10 years. The appellant grossly abused his position of trust. His very young step‑daughter was especially vulnerable as a result of her mother's drug addiction and consequent neglect of her maternal obligations. The appellant is responsible for having destroyed the complainant's innocence and deprived her of any prospect of a reasonably satisfactory upbringing with appropriate emotional and psychological nurturing by a father figure. The impact of his offending has been devastating on the complainant and will be long‑lasting. Although the appellant's personal circumstances reveal some mitigatory factors, very little weight can, in all the circumstances, be given to them.
In my opinion, the sentence of 10 years 6 months' imprisonment (with 8 years 6 months to be served before eligibility for parole), although undoubtedly severe, properly reflected all relevant sentencing factors, including the need for appropriate punishment and general deterrence. Neither the head sentence nor the minimum term which the appellant must serve before becoming eligible for release on parole (see The State of Western Australia v BLM [2009] WASCA 88;(2009) 256 ALR 129 [43]) is plainly unreasonable or unjust when it is viewed from the perspective of the maximum available penalty, the customary standards of sentencing and the objective seriousness of the offending, after taking into account the appellant's personal circumstances.
Ground 1 is without merit.

Appeal against sentence: its merits: the total effective sentence

The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate).
I have already dealt with the offending the subject of count 1, for which the appellant was sentenced to 10 years 6 months' imprisonment.
Counts 2 ‑ 4 encompass a distinct period of sexual offending against the complainant when she was aged 17 years. The trial judge gave effect to the totality principle by making the individual sentences imposed for these counts, and for counts 5 and 6, concurrent with each other and with the sentence imposed for count 1.
The offending the subject of counts 5 ‑ 7 occurred in the context of the complainant, who was then aged 18 years, attempting to assert her independence from the appellant, whom she still lived with and thought of as her biological father. Counts 5 ‑ 7 were far removed temporally from count 1.
Counsel for the appellant referred to LSC v The Queen [2003] WASCA 303. The offender in that case was convicted, on his plea of guilty, of 35 offences involving sexual misconduct against his daughter. The offences were perpetrated over an eight‑year period beginning when the complainant was aged 9 years. Most of the offending involved digital and penile penetration of the complainant's anus. There was, however, also penile penetration of the complainant's vagina and mouth. In addition, the offender performed cunnilingus on her, shaved her pubic hair and masturbated in front of her. The complainant frequently cried in the course of the offending but her tears were ignored. The 35 counts were, to some extent, representative in that the offender admitted, generally, weekly sexual offending against his daughter over the eight‑year period in question.

The sentencing judge imposed a total effective sentence of 19 years' imprisonment, with eligibility for parole.
The Court of Criminal Appeal (Hasluck J, Murray ACJ and McKechnie J agreeing generally) allowed the offender's appeal and substituted a total effective sentence of 11 years after applying the transitional provisions (or 16 years 6 months in pre‑transitional terms).
LSC is distinguishable from the present case in that the offender in that case entered a fast‑track plea of guilty and demonstrated real remorse. Hasluck J considered that a discount of 'up to 33%' was appropriate for the fast‑track plea and other mitigatory factors, including the offender's attempt to reduce or ameliorate the damage he had done to his daughter by agreeing to transfer half of his property to her [52], [92] ‑ [93]. If the appellant in the present case had pleaded guilty at the first opportunity and had shown real remorse, the total effective sentence of 14 years 6 months' imprisonment would probably have been discounted to a term of about 10 years 6 months.
In my opinion, the total effective sentence of 14 years 6 months (with 12 years 6 months to be served before eligibility for parole) was a just and appropriate measure of the appellant's total criminality. Count 7 was a serious offence. It was separate and distinct from the offending the

subject of count 1. The ongoing offending against the complainant when she had become an adult required that the individual sentence on count 7 be served cumulatively upon the sentence for count 1. The total effective sentence properly reflected the appellant's appalling criminality, which involved prolonged sexual abuse of a vulnerable and isolated child and the repetition of this conduct when she had become an adult. The term of 14 years 6 months was necessary, in all the circumstances, to give effect to the dominant sentencing considerations of punishment, personal and general deterrence and the protection of vulnerable children.

Grounds 2 and 3 are without merit.

The result of the appeals

I would dismiss both the appeal against conviction and the appeal against sentence.
MAZZA J: I have read in draft the reasons of Pullin and Buss JJA.
Buss JA has set out all the relevant background material including the relevant part of his Honour's directions. I do not need to repeat it. I agree that the appeal against sentence should be dismissed for the reasons he gives.
I will, as briefly as I can, state my reasons for concluding that the appellant's appeal against conviction be dismissed.
The only issue raised by the ground of appeal is the 'adequacy' of the directions given by Groves DCJ concerning the evidence led at trial of acts committed of a sexual nature, other than those the subject of the charges, and some of their consequences. That evidence is set out by Buss JA at [30] ‑ [31] of his reasons. I will, for convenience, refer to that material as 'the evidence'.
The ground of appeal has to be considered having regard to the forensic choices which were made by counsel and the purpose for which the evidence was ultimately put at trial.
Before the trial commenced, the appellant's legal advisors were served with three depositions made by the complainant, dated 13 November 2007, 23 November 2007 and 16 April 2009. These depositions contained the material which was ultimately adduced at trial and is the subject of this appeal. No formal application was made by the prosecution to adduce the evidence nor was any application made to

exclude it. No objection was made by senior defence counsel at trial to the admissibility of the evidence. The State prosecutor, in her opening address to the jury, made some reference to the evidence, but she did not articulate the purpose or purposes for which it was being adduced. No inquiry about this was made by defence counsel or the trial judge.

In her closing address, the State prosecutor dealt with the evidence in some detail. She submitted to the jury that it showed that the appellant had a sexual interest in the complainant and it provided a reason why she (the complainant) did not complain at the time about what had happened to her.
Defence counsel, in her closing address, submitted, in effect, that the evidence of almost daily sexual conduct on the part of the appellant over 10 years was inherently improbable.
Prior to the summing up, there was no discussion about the appropriate directions to be given to the jury about the evidence.
The evidence, if accepted, would have shown not only the nature of the relationship between the appellant and the complainant, but that he also had a propensity, which made it more likely that he had committed the offences in the indictment. It was, as Buss JA has explained, admissible as both propensity and relationship evidence under s 31A of the Evidence Act 1906 (WA). Because the evidence was admissible for propensity reasons, it would not have been necessary to give a propensity warning: Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 [26] ‑ [28]; and PIM v The State of Western Australia [2009] WASCA 131; (2009) 196 A Crim R 516 [136] ‑ [141].
In his summing up, his Honour confined the jury to considering the evidence as 'solely to establish the relationship between [the appellant] and [the complainant]'. He made no mention of the evidence showing that the appellant had a sexual interest in the complainant and did not treat it as propensity evidence. His Honour instructed the jury that, even if it accepted the truth of the evidence, 'the offences on the indictment [could] only be proved by the evidence relating to those charges and not by the evidence of the extraneous sexual conduct'. He went on to give a propensity warning saying, 'you must not reason that because the accused engaged in sexual conduct with the complainant on other occasions, that he was the kind of person who was likely to have done so on the particular occasions with which he has been charged'.
In my opinion, the effect of his Honour's summing up was to exclude from the jury's consideration, contrary to the way that the State had closed its case, any form of propensity reasoning. This was very favourable to the appellant.
Surprisingly, the State prosecutor sought no redirection from his Honour. Defence counsel said nothing about the direction. This was from the appellant's perspective, a forensically understandable decision.
In these circumstances, I cannot see how his Honour's directions were inadequate in the ways alleged by the appellant.
The appellant alleges that his Honour should have directed the jury that the evidence had to be proved beyond reasonable doubt.
There is nothing in HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 which casts any doubt on the correctness of Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573. Shepherd established that 'the "beyond reasonable doubt" standard of proof applies to the material facts constituting the elements of the offence, but generally does not apply to evidence and intermediate facts unless the intermediate facts are "indispensible links in a chain of reasoning towards an inference of guilt"': PIM [22]. His Honour told the jury that they could only convict the appellant of a count if they were satisfied beyond reasonable doubt that the complainant's evidence about that count was true. In other words the decisive evidence in the case was the complainant's direct evidence. The evidence in question was not an indispensible link in the chain of reasoning towards guilt, nor, given his Honour's direction, could it have been seen by the jury in that light. Accordingly, there was no need for his Honour to direct the jury that before any use could be made of the evidence it had to be established beyond reasonable doubt. This particular has, in my opinion, no merit.
The second, third and fourth particulars can be dealt with together. For the reasons that I have already explained, his Honour's directions were very favourable to the appellant. Further elaboration, of the kind now contemplated by the appellant in these particulars, would have been potentially harmful to his case. In my opinion these particulars have no merit.
In my opinion, the ground has not been made out and the appeal against conviction must be dismissed.