Mills v The State of Western Australia - [2017] WASCA 51

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MILLS -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 51

CORAM: BUSS P
MAZZA JA
BEECH J

HEARD: 2 MARCH 2017

DELIVERED : 22 MARCH 2017

FILE NO/S: CACR 84 of 2016

BETWEEN: ALEX CARL MILLS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :SCHOOMBEE DCJ
File No  :IND 943 of 2015

Catchwords:

Criminal law - Appellant convicted of sexual offending against children - Whether verdict unreasonable and cannot be supported having regard to the evidence - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal on ground 1 refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr R G Wilson

Solicitors:

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

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

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
Wells v The State of Western Australia [2017] WASCA 27

REASONS OF THE COURT: The appellant was convicted, after trial, of five counts of indecently dealing with a child under 14 and one count of committing an act of gross indecency. He appeals against his convictions on the ground that the verdict was unreasonable and cannot be supported having regard to the evidence.
The question of whether leave to appeal should be granted was referred to the hearing of the appeal.[1]
[1] Order of Mazza JA dated 17 September 2016.
For the reasons that follow, we would not grant leave to appeal and would dismiss the appeal. In our opinion it was well open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt of the offences of which he was convicted.

The charges against Mr Mills, and the verdicts

The appellant was charged on an indictment containing charges against him and Richard Coombs. None of the charges was of a joint offence.
The allegations against the appellant were in counts 1 to 5, and 12, as follows:
1.On an unknown date in about 1985 at Wattleup he unlawfully and indecently dealt with BM, a child under the age of 14 years, by washing his genitals.
2.On an unknown date in about 1985 at Wattleup he unlawfully and indecently dealt with BM, a child under the age of 14 years, by exposing his penis to him.
3.On an unknown date in about 1985 at Wattleup he unlawfully and indecently dealt with BM, a child under the age of 14 years, by washing his genitals.
4.On an unknown date between 26 August 1985 and 26 August 1986 at Wattleup he unlawfully and indecently dealt with BM, a child under the age of 14 years, by placing BM's hand on his penis.
5.On the same date and at the same place as in count 4, he unlawfully and indecent dealt with BM, a child under the age of 14 years, by introducing his penis into the mouth of BM.
…
12.On an unknown date in January or February 1986 at Kalamunda and elsewhere, he committed an act of gross indecency with SM, a male person, by putting his hand on his groin.
There was an alternative charge to count 12. However, it is not necessary to detail that, given the appellant was convicted of count 12, as well as counts 1 to 5.

Outline of the evidence

Given the nature of the ground of appeal, we have examined the whole record of the trial. The evidence at trial may be summarised as follows.

BM was born on 26 August 1975.[2]
[2] ts 234; exhibit 1.
The appellant, now known as Alex Mills, was known by BM as Carl Schick. BM knew the co‑accused, Coombs, as Doug Kenzitt.[3]
[3] ts 235.
BM's older brother, SM, worked for the appellant and Coombs at a car detailing business.[4]
[4] ts 235.
The four of them, as well as SM's girlfriend, went to the airport to see the Concorde jet. This was in early 1985. The appellant bought BM a chocolate éclair on the way home. The appellant suggested BM might like to spend a weekend at their place in Wattleup. BM thought this was great and agreed.[5]
[5] ts 237.
At the time, there was a lot of alcohol and physical abuse at BM's home, involving BM's stepfather.[6]
[6] ts 236 ‑ 237.
BM spent a weekend at Wattleup, being picked up and dropped off by the appellant.[7] BM considered that weekend to be an escape from the abuse at his home.[8]
[7] ts 238 ‑ 239.
[8] ts 239.
Two weeks later, BM returned to the appellant and Coombs' home for another weekend.
The appellant suggested BM have a shower. While BM was showering, the appellant came into the bathroom, saying that he would wash BM's back. The appellant washed BM's back, and then his front. In doing so, he paid particular attention to BM's penis and genital area. The appellant used a sponge.
BM was in shock while this occurred, and did not say anything. The appellant dried BM and told him to get dressed.[9]
[9] ts 239 ‑ 240.
That is the conduct the subject of count 1.
At about 5 am that Monday morning, the appellant woke BM by stroking his hair. When BM woke up, the appellant showed to BM the appellant's erect penis, saying, 'See what you do to me'.[10] The penis was circumcised. The appellant did up his pants and said, 'Come on, we'd better get moving'. This incident was the subject of count 2.
[10] ts 241.
Later, BM went back to the appellant's property for a third weekend visit. He was asked, if the things described by BM had occurred, why he returned. BM said that as a child he did not fully understand what was going on. There was an element of taking the good with the bad. He was given snacks and other treats that he did not usually receive at home. He was subject to beating and other abuse at home. There was no one that he felt he could tell. He thought he might be given another flogging for being 'not right'. It is a question he has asked himself over the years.[11]
[11] ts 242.
A few weeks after BM's second visit, he spent another weekend at the appellant's home.[12]
[12] ts 244 ‑ 245.
Again, on the Saturday afternoon of the weekend, the appellant told BM to go and have a shower. The appellant came in, saying he was going to wash BM's back. Using the same sponge as before, he did the same again, first washing BM's back and buttocks area. The appellant then washed the front of BM, paying particular attention to BM's penis and genital area. He did not say anything to the appellant while this occurred.[13]
[13] ts 245.
This conduct was the subject of count 3.
While at the Wattleup house, BM ran up a large telephone bill on the Telstra party line.[14]
[14] ts 246.
On the Monday morning, the appellant woke BM by stroking his hair. When BM woke up, he saw that the appellant had his erect penis out of his pants.[15] The appellant grabbed BM's hand and put it on the appellant's penis. BM pulled his hand away. The appellant said, 'You've run up a big telephone bill and I can tell your parents'.[16] The appellant then stood up and put his hand behind BM's head. The appellant pushed BM's head down onto his penis and made him suck his penis.[17] BM was unsure how long that went on, saying that it might have been about a minute.[18]
[15] ts 247.
[16] ts 247.
[17] ts 248.
[18] ts 248.
BM said that he was frightened by the threat that the appellant would tell his parents about the phone bill,[19] fearing that he would cop a flogging for it.[20]
[19] ts 248.
[20] ts 248.
These incidents were the subject of counts 4 and 5.
BM said that similar incidents occurred again later in that year and early in 1986.[21]
[21] ts 249.
Asked again why he continued to have contact with someone who had done these things to him, he again referred to taking the good with the bad, his bad situation and the fact that there was no one he could tell.[22]
[22] ts 249.
In the weeks before BM's 11^th birthday (which occurred in August 1986) the appellant bought BM a new bike.[23] Later in 1986 he resumed going to the appellant's house. The 'shower thing would sometimes happen'.[24]
[23] ts 249 ‑ 250.
[24] ts 250.
For BM's 12^th birthday he received a surfboard from the appellant.[25] In the summer holidays of 1987 and 1988 he would work for the appellant and Coombs at their car detailing business. He was paid for his work. When he was working he would stay with them.[26] BM also gave evidence of sexual acts done to him by Coombs.[27] It is not necessary to detail those.
[25] ts 250 ‑ 251.
[26] ts 252 ‑ 254, 257.
[27] See, for example, ts 262.
After an incident involving a car at the workshop, the appellant punched BM in the jaw. BM thought to himself, 'This is my way out'. He walked home and told his mother that the appellant had punched him.[28] The appellant came to BM's house and spoke to BM's mother. When questioned, the appellant did not deny that he had hit BM. BM's mother said that BM was not coming back to work for the appellant and Coombs.
[28] ts 271.
BM went back to the house to get his bike and that was the last contact he had with the appellant or Coombs.[29]
[29] ts 272.
Asked why it took him so long to complain, BM said that he was not strong enough to do it sooner than he did.[30]
[30] ts 272.
BM was cross‑examined very extensively by both counsel, especially by counsel for Coombs.
BM said that during his 20s he had issues with drugs and alcohol addiction.[31] He accepted he knew that there needs to be a criminal conviction in order that criminal compensation is payable.[32]
[31] ts 279.
[32] ts 279.
BM denied counsel's suggestion that he had stayed over at the appellant's and Coombs' house on only one occasion, and that that was at his or his brother's request.[33] He also denied the suggestion that they had left a key for him to let himself in to the house.[34]
[33] ts 280.
[34] ts 283.
BM denied that the telephone calls he made had been to a sex line.[35] He denied the suggestion by counsel for Coombs that all of BM's evidence as to any sexual acts between him and Coombs were fiction.[36]
[35] ts 284.
[36] ts 287.
Asked why he did not tell his mother, BM said that he was stuck in a situation and he did not know what to say or how to do it.[37] He has never discussed what happened with his brother.[38]
[37] ts 288.
[38] ts 288.
After Coombs penetrated his anus, BM got $20 from Coombs, and went to the Skyshow with someone else.[39] BM was asked why he did not tell his friend about this incident. BM said that he could have done so, but that he was too ashamed.[40]
[39] ts 292 - 293.
[40] ts 295 - 296.
Counsel put to BM that the reason given by him for not going back, namely being punched in the mouth, pales into insignificance compared to being sexually assaulted. BM agreed that that was so, but said that he did not know how to talk to anyone about being sexually assaulted. When he was punched in the mouth, he was out of that situation.[41]
[41] ts 298.
After working in a furnishing company, BM went back to working with the appellant and Coombs.[42] Asked why, BM said he does not know why he did that, he was young, just a kid.[43]
[42] ts 299.
[43] ts 299 - 300.
In cross‑examination by counsel for the appellant, BM confirmed and repeated his evidence about count 1.[44] BM agreed that the appellant had arthritis and that his hands were shrivelled. However, his evidence was that the appellant was able to use the sponge and did so in the course of his work at the car detailing business.[45]
[44] ts 316 - 317.
[45] ts 320, 329.
All the incidents involving the appellant were pretty quick, taking only a couple of minutes.[46]
[46] ts 320.
BM denied the suggestion from both counsel that his mother asked Coombs and the appellant to purchase a bicycle for BM.[47]
[47] ts 284, 325, 327.
When BM was about 14, he went back to work for the appellant and Coombs.[48] This was after both of them had sexually abused him.[49]
[48] ts 328.
[49] ts 328.
His brother, SM, did not stay at Wattleup while BM was there.[50]

[50] ts 330.

SM was born on 11 May 1970.[51]
[51] ts 342, exhibit 7.
He worked at a car detailing business from about October or November 1985. He worked for two people known to him as Doug Kinzett and Carl Schick, who he identified as Richard Coombs and the appellant.[52]
[52] ts 343 ‑ 344.
SM said that the appellant started teaching him to drive from around early 1986. The appellant would take him up to an area in Kalamunda or Roleystone in the hills,[53] using a manual Suzuki Swift.[54] On one occasion he was with the appellant driving in the hills. SM got into the driver's seat. The appellant put his hands on SM's groin area, 'straight on top of where [his] penis is'.[55] He did not say anything. He took the appellant's hand away and then they continued driving.[56] He did not do anything to encourage the appellant to put his hand on his groin area.[57]
[53] ts 345.
[54] ts 346.
[55] ts 346.
[56] ts 347.
[57] ts 347.
He continued to work at the car detailing business after this had happened because he wanted to get away from home as much as possible. He had an alcoholic stepfather and suffered mental and physical abuse.[58] SM also gave evidence of offences committed by Coombs against him, including oral and anal penetration.[59] It is not necessary to outline that evidence. Asked why he kept going back and working for the business run by these two men, when Coombs was doing these things to him, SM said that he wanted to get away from home and that they used to take him out for dinner to restaurants and things like that.[60]
[58] ts 347.
[59] ts 348 ‑ 364.
[60] ts 362.
SM got his driver's licence just before he was 18. Apart from a driving instructor, the only other person who taught him to drive was the appellant, in the Suzuki.[61] SM was given a reference by the appellant.[62]
[61] ts 363.
[62] ts 366, exhibit 10.
He did not know that anything had happened to his brother.[63] He has never discussed what happened to him with his brother.[64] He did not tell anyone until he spoke with a detective in 2014.[65] When it was put to him that if either man had ever touched him sexually he would have told someone, SM responded, 'If I had the balls years ago, mate, I would have'.[66] He also rejected suggestions that if any of these things had happened he would never have gone back to work at the business.[67] SM maintained his version of events under cross‑examination.[68]
[63] ts 368 ‑ 369.
[64] ts 373.
[65] ts 375.
[66] ts 375.
[67] ts 376.
[68] ts 377 and following.
Counsel for the appellant pointed out, in cross‑examination of SM, that SM's statement had said that when the driving lessons occurred, 'I think we were driving in [the appellant's] Suzuki Swift'.[69] SM said he did not know why he used the word 'think'.[70]
[69] ts 393.
[70] ts 393.
SM said that both men were there together at the business at that time.[71] He rejected the suggestion that the appellant's job was mainly bookwork and administrative work.[72] He accepted that the appellant had arthritis and clawed hands.[73]
[71] ts 394.
[72] ts 394.
[73] ts 394.
He rejected the suggestion that he never stayed the night at Wattleup.[74]
[74] ts 396.
SM denied the suggestion that the appellant never taught him to drive and never took him up in the hills to do so.[75]
[75] ts 399.
SM rejected the suggestion that the reason he did not tell his mother or his brother about the incident up in the hills was that it never happened.[76]

Other prosecution evidence

[76] ts 403.

On 7 June 2014, BM made a telephone call to Coombs, making sexual allegations of things done by Coombs to BM when BM was a boy.[77]
[77] ts 272 ‑ 273.
Both accused men changed their name on 18 June 2014.[78]
[78] ts 433 ‑ 434, exhibit 13, exhibit 14.
It is not necessary to outline the evidence of the other witnesses called by the State.

The evidence of the co‑accused: Coombs

The bulk of Coombs' evidence related to the allegations against him. It is not necessary to detail his evidence in that respect.
Coombs said that SM asked if BM could stay at Coombs' place because he was 'in danger at home'.[79] He denied that there was a spare bedroom at the Wattleup residence in which either of the boys could have stayed.[80] The spare bedroom was packed full of furniture.[81] He denied that BM stayed more than one night at Wattleup at any stage.[82]
[79] ts 496.
[80] ts 497 ‑ 498.
[81] ts 498.
[82] ts 498.
Coombs said he never saw the appellant touch BM or SM inappropriately.[83] He never saw the appellant act violently towards BM.[84]
[83] ts 549.
[84] ts 548.
Coombs said that he discovered that BM had been making telephone calls to a Telstra sex party line.[85] He challenged BM about that, but did not take it up with BM's family. He did not tell the appellant about this.[86]
[85] ts 499 ‑ 500.
[86] ts 500.
He bought a bike for BM because BM's mother asked him to pay for it.[87] Although the intention was that he be repaid, the bike was stolen soon after it was bought and in the end he said, 'Don't worry about it'.[88]
[87] ts 500.
[88] ts 500 ‑ 501.
Coombs denied that he had changed his name because he wanted to stay anonymous, having learned that BM was complaining to the police.[89]
[89] ts 531.
Coombs said that back in the mid‑eighties when they were living at Wattleup, the appellant's hands were 'all screwed up', in the same condition as at the time of the trial.[90] The appellant did not and could not physically do the car detailing.[91] Coombs never saw the appellant take SM for any driving lessons.[92]
[90] ts 534.
[91] ts 535.
[92] ts 542.
He never saw the appellant take BM or SM to the Fremantle Markets, the Rockingham Markets, or surfing.[93]
[93] ts 547.
Coombs never saw the appellant act violently towards BM, or punch him.[94]

The appellant's evidence

[94] ts 548 ‑ 549.

The appellant was born on 5 February 1940.[95] He is blind in his right eye.[96]
[95] ts 696.
[96] ts 697.
He moved to Australia from New Zealand in May 1980.[97]
[97] ts 698.
The appellant has shrivelled hands and feet due to osteoarthritis.[98]
[98] ts 700.
When he was 17, he spoke to a minister of the church about his inability to gain an erection.[99] He has been unable to have an erection for the past 36 years.[100]
[99] ts 703.
[100] ts 702 ‑ 703.
From the early 1980s until about 1987, he lived in a house at Wattleup owned by Coombs.[101] Apart from him and Coombs, no one stayed in that house.[102] The spare bedroom was packed with boxes and other things and did not have a bed.[103]
[101] ts 706 ‑ 707.
[102] ts 707.
[103] ts 707, 709.
In this period, the appellant was on an invalid pension. He worked at Coombs' business, but was not paid to do so.[104] He did not detail cars because he was physically unable to do so.[105]
[104] ts 714.
[105] ts 715 ‑ 716.
On 18 June 2014, he changed his name. His brothers had changed their last name to Neale when they were about 15 or 16.[106] Coombs said to him that he was going to change his name, as a result of which the appellant said that he wanted to do it and so he would do his as well.[107]
[106] ts 726.
[107] ts 727.
He recalls meeting BM when BM and SM went with them to the airport to see the Concorde.[108] BM's mother asked if there was enough room for BM to come.[109]
[108] ts 729.
[109] ts 729.
BM only stayed once at Wattleup, for one night.[110] That occurred because SM brought him and said that BM was in danger from his father.[111] He stayed a Friday night and the appellant took him home early in the morning on the Saturday.[112]
[110] ts 731.
[111] ts 732.
[112] ts 732 ‑ 733.
He never went into the bathroom while BM was there. He never helped him wash himself.[113] He never touched BM inappropriately.[114] It would have been impossible for the appellant to have shown an erect penis to BM as BM had alleged, given he has not been able to gain an erection since his adolescence.[115] He denied that, as BM had said, he ever got BM's head and got him to suck the appellant's penis.[116] They did not have a sponge of the kind BM described.[117]
[113] ts 733 ‑ 734.
[114] ts 734.
[115] ts 734.
[116] ts 735.
[117] ts 735.
He first became aware of the phone bill that BM had run up when he read the police brief in 2015.[118] He took BM to purchase a bike. He paid for it with a signed blank cheque from Coombs' business.[119] About a week later, BM said that he had not locked the bike up and it had been stolen.[120]
[118] ts 736.
[119] ts 737.
[120] ts 739.

He never took BM to the Fremantle Markets, the Rockingham Markets, the Rockingham Shopping Centre, or to Timezone.[121]
[121] ts 739, 740.
There was an incident where BM damaged two cars while working for the business.[122] The appellant did not punch BM in the face after this incident.[123] He said he would not be able to do that, given the state of his hands.[124]
[122] ts 741.
[123] ts 742.
[124] ts 742.
He never took SM for any driving lessons.[125] He never placed his hand on SM's groin area.[126]
[125] ts 743.
[126] ts 746.
The reference he wrote for SM was not all true. He embellished things, looking after SM's interests.[127]
[127] ts 747; see also 788 - 790.
He never touched SM inappropriately in the car, or anywhere else.[128]
[128] ts 751.
The only connection he had to SM was when they went and collected him and took him to the airport, and that he would be a potential worker because they knew he wanted to work with them later on.[129]
[129] ts 765.
The appellant denied that when he invited BM to come to his house he did it because he knew that the boy had come from a vulnerable home environment.[130]
[130] ts 773.
The appellant was asked a number of times why he would take a 9‑year‑old boy with whom he had no family or other connection to go home to his house to sleep the night. The appellant said it was because he was told by SM that BM's father may do something to BM. The appellant denied that it was because he wanted the boy to be at his house.[131]
[131] ts 774 ‑ 775.
The appellant denied that he was capable of picking up a sponge at the time referred to in BM's evidence.[132] The appellant has a circumcised penis, so he accepted BM's evidence to that effect is correct.[133]
[132] ts 777 ‑ 778.
[133] ts 781.
He recalled seeing a number of doctors in the 1980s and 1990s about his erection problem. He could not remember the names of any of them.[134] He said it was so long ago that he cannot remember the doctors' names.[135]
[134] ts 783 ‑ 784, 785.
[135] ts 785.
He took BM to buy the bike because Coombs asked him to do so.[136] He denied he bought the boy a bike because he had already engaged in a number of sexual acts with him.[137]
[136] ts 790.
[137] ts 790 ‑ 791.
The appellant denied that he washed BM's penis and genital area on two occasions in the bathroom at Wattleup.[138]
[138] ts 795.
The appellant agreed that he was furious about the damage done to the car involving BM.[139] He denied that he hit BM in the face.[140]
[139] ts 801.
[140] ts 801.
He denied taking SM for driving lessons, generally, or in going up to the hills around Kalamunda and Roleystone.[141]
[141] ts 803 ‑ 804.
He denied that around Roleystone he put his hand on SM's groin area while sitting in the car.[142]
[142] ts 804.
After Coombs left a key out for BM, the appellant made BM a cut lunch and gave him four biscuits.[143]
[143] ts 809.
The phone call to Coombs was on 7 June 2014, a Saturday. On Monday, 9 June, the appellant organised the paperwork for both name changes by phoning up the registry office and having the papers sent out.[144]
[144] ts 810 ‑ 811.
He changed his name because, at high school, people used offensive variations of his surname, Schick.[145]
[145] ts 812.
Shortly after June 2014, he moved addresses.[146]
[146] ts 820.

Ground of appeal

The appellant advances one ground of appeal: that the verdict of guilty was unreasonable and cannot be supported having regard to the evidence.

Legal principles

The principles governing a ground of appeal that the verdict is unreasonable or cannot be supported by the evidence are well known. They may be summarised as follows.
(1)The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
(2)The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(3)That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
(4)In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses.
(5)A doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
(6)If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict.
(7)The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial.[147]

The appellant's submissions

[147] Wells v The State of Western Australia [2017] WASCA 27 [13], and cases there cited.

The appellant submits that the verdict was unreasonable for the following reasons:
(a)there was no corroborative evidence such as blood spots on the underpants, medical evidence of penetration, DNA on the complainant's clothes or sheets or anybody having observed the conduct in question;
(b)there was significant delay in bringing the charges, placing the appellant in a position of considerable disadvantage:
(ii)the house in Wattleup was no longer there and there were no photographs of it or proof of the absence of a lock on the bathroom door;
(ii)it was not possible to obtain business or tax records to show that BM was never employed at the car detailing business;
(iii)the possibility of using ATM records or CCTV footage to show the appellant's whereabouts was also lost;
(iv)the appellant has been unable to show doctors' records regarding his inability to have an erection, and the opportunity to show he had treatment for the condition;
(c)the timing of the appellant's name change was purely coincidental, in that the appellant had always wanted to change his name;
(d)the complainants' evidence that they kept going back to the house after they had been seriously sexually interfered with does not make sense, and it is inherently unlikely that they would have failed to complain to their mother, to each other or their other siblings; and
(e)given the enormous delay in bringing the charges of almost 30 years, there is a greater possibility of error by witnesses.[148]
[148] Appellant's submissions [7] ‑ [18].
In his oral submissions, the appellant made a number of assertions of fact consistent with the version of events he advanced in his evidence at trial. For example, he said that:
(a)BM only stayed once at the Wattleup house;
(b)the appellant never invited BM to stay at the house - that occurred as a result of a request by SM who said BM's father may hit him; and
(c)on the occasion when BM stayed at the house, BM slept on the couch and did not have a shower. No touching occurred.[149]
[149] Appeal ts 17 - 19.

The disposition of the appeal

The State case relied on the jury being satisfied beyond reasonable doubt as to the truth and reliability of the evidence of BM and SM about the respective offences each described. The judge directed the jury accordingly.[150] At trial the appellant, as well as Coombs, gave evidence that was directly in conflict, in very important respects, with the evidence of BM and SM.
[150] ts 858 - 859.
It was the jury's task to consider all the evidence at trial, including the appellant's evidence, to determine whether it was satisfied beyond reasonable doubt of the appellant's guilt of any or all of the offences. The judge correctly directed the jury that if it accepted the appellant's evidence, or if it thought it might be true so as to leave them in doubt, then they must acquit the appellant.[151]
[151] ts 855 - 856.
By its verdicts the jury was satisfied beyond reasonable doubt that the appellant's evidence was to be rejected and that the appellant was guilty of the offences of which he was charged. In order to succeed on his appeal, the appellant must demonstrate that it was not open to the jury to be so satisfied. For the reasons that follow, in our opinion the appellant has fallen well short of demonstrating this.
Most of the complaints made in the appellant's submissions do not seek to identify discrepancies or inadequacies in the complainants' evidence. Rather, they refer to matters going to the consequences, for the appellant, of the substantial delay between the occurrence of the alleged offences and the complaints, and the consequential disadvantages for the appellant. All of these matters were specifically referred to in the trial judge's careful and detailed Longman direction.[152] There is no complaint about these directions, and nor could there be.
[152] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79; ts 859 ‑ 861.
Further, the appellant's submission about the absence of corroborative evidence such as blood spots on the underpants or medical evidence (including medical evidence of anal penetration) is misplaced. None of the charges against him alleged anal penetration or any conduct in respect of which it would be expected that there would be blood spots on underpants or medical evidence to support the charges.
The appellant submits that the timing of his name change was purely coincidental. That was a matter for the jury to assess. In circumstances in which, on the appellant's evidence, his reason for wanting to change names related to what had occurred at school almost 40 years earlier, it was well open to the jury to reject the appellant's evidence in this respect, and to find that the name change, coming almost immediately after Coombs received a phone call from BM, and had told the appellant about it, was an attempt to avoid detection.
It was also for the jury to assess what weight it would give, in the context of the case as a whole, to the fact that the complainants returned to the house after they had been seriously sexually interfered with, and the fact that, for more than 25 years, they did not tell others about what had occurred. Those matters were the subject of appropriate directions from the trial judge. They do not mean that the jury could not have been satisfied beyond reasonable doubt of the truth and reliability of the complainants' evidence. Nor do those matters lead us to have any reasonable doubt as to the guilt of the appellant.
The jury had the considerable advantage of seeing and hearing the complainants give their evidence. Their evidence was described by the trial judge, in the course of sentencing, as 'very compelling'.[153] The appellant's submissions fall well short of persuading us that the jury must have had a reasonable doubt as to the appellant's guilt of all or any of the offences of which he was convicted.
[153] ts 948.
Upon our review of the record, the evidence does not contain discrepancies, and it is not tainted or otherwise lacking in probative force such as to raise any reasonable doubt in our minds as to the guilt of the appellant. The evidence satisfies each of us beyond reasonable doubt of the guilt of the appellant. In our opinion, it was well open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences of which he was convicted. The ground of appeal has no reasonable prospect of succeeding.
In his oral submissions, the appellant appeared to express some misgivings about the fact he was tried jointly with Coombs, in circumstances where Coombs had previous convictions for offending against a child, and the appellant did not.[154] There is no ground of appeal about this, but in any event there is no substance to the complaint. First, no application was made at the trial or before the trial for a separate trial. It was clear from the appellant's oral submissions on appeal that that accorded with his instructions to his counsel at trial.[155] Secondly, the judge gave the jury a clear and specific direction that the convictions were relevant only to Coombs and were 'totally irrelevant' to the appellant.[156] Thus, any risk of prejudice to the appellant arising from Coombs' earlier convictions was removed by the trial judge's direction to the jury.
[154] Appeal ts 17, 19 - 20
[155] Appeal ts 20.
[156] ts 869.

Conclusion

For these reasons, we would refuse leave to appeal and dismiss the appeal.