MJS v The State of Western Australia - [2011] WASCA 112

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MJS -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 112

CORAM: McLURE P
BUSS JA
MAZZA J

HEARD: 10 SEPTEMBER 2010

DELIVERED : 9 MAY 2011

FILE NO/S: CACR 119 of 2009
CACR 120 of 2009

BETWEEN: MJS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STEVENSON DCJ
File No  :IND 1623 of 2007

Catchwords:

Criminal law - Appeal against conviction - Various acts of a sexual nature committed by the appellant against his daughters - Evidence of breach of restraining order inadvertently adduced - Evidence of uncharged acts - Whether trial judge erred in refusing to discharge jury - Whether trial judge erred in his directions to jury - Whether trial judge erred in admitting allegedly inadmissible evidence

Criminal law - Appeal against sentence - Whether sentencing judge erred in failing to backdate the sentences he imposed

Legislation:

Criminal Appeals Act 2004 (WA), s 30(4), s 40(1)(e), s 41(3)
Criminal Procedure Act 2004 (WA), s 116(2)
Evidence Act 1906 (WA), s 5, s 8(1)(e)(ii), s 8(1)(f), s 31A, s 36BD
Restraining Orders Act 1997 (WA), s 6, s 11A, s 11B, s 25(1)(a), s 25(2)(a), s 26, s 27, s 29, s 31, s 32, s 33, s 33(1)
Sentencing Act 1995 (WA), s 87
Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(4)(b)

Result:

CACR 119 of 2009 (conviction appeal):
Extension of time granted
Appeal dismissed

CACR 120 of 2009 (sentence appeal):
Extension of time granted
Leave granted
Appeal allowed
Sentence varied

Category: B

Representation:

Counsel:

Appellant: Mr S K Shepherd
Respondent: Mr D Dempster

Solicitors:

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

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

Crofts v The Queen (1996) 186 CLR 427
Hamilton v The Queen (1993) 68 A Crim R 298
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
House v The King (1936) 55 CLR 499
Longman v The Queen (1989) 168 CLR 79
Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1
Narkle v Hamilton [2008] WASCA 31
Narrier v The State of Western Australia [2008] WASCA 191; (2008) 38 WAR 161
Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457
R v Stalder (1981) 2 NSWLR 9

McLURE P: I agree with the orders proposed by Mazza J in the appeal against conviction generally for the reasons he gives. I agree with Mazza J's reasons for upholding the appeal against sentence. I have a number of additional observations to make in relation to grounds 1, 4, 5 and 6 of the appeal against conviction. All the relevant factual background is detailed in Mazza J's reasons and not repeated here.

Grounds 1 and 6

The underlying assumption in the appellant's written submissions is that the unresponsive evidence of the appellant's former wife was inadmissible unless the court ruled otherwise under s 31A of the Evidence Act 1906 (WA) (the Act). The assumption is wrong. Prior to the unresponsive evidence being given, the appellant had by his counsel asked questions of a prosecution witness, NM, with a view to establishing the appellant's good character thereby bringing himself within s 8(1)(e)(ii) of the Act. In that event, the prosecution was entitled under s 8(1)(f) of the Act to call evidence that the appellant 'is of bad character or has been convicted of or charged with any offence other than that with which he then stands charged'.
Further, the provisions of the Act are in addition to and not in derogation of any rules of evidence existing at common law that are not inconsistent with the provisions of the Act (s 5). There is some uncertainty as to whether evidence of discreditable conduct is admissible at common law for non‑propensity purposes (such as, for example, to rebut evidence of good character) if the evidence also shows that the accused had a propensity to commit an offence: see Noto v The State of Western Australia (2006) 168 A Crim R 457 [22]. However, until the matter has been authoritatively determined by the High Court, I would follow R v Stalder (1981) 2 NSWLR 9 and Hamilton v The Queen (1993) 68 A Crim R 298 and proceed on the basis that evidence of bad character is admissible at common law to rebut evidence of good character even if the evidence does not satisfy the test of admission of propensity evidence. It was not contended that the common law on this subject is inconsistent with s 31A of the Act. The common law is summarised by Hunt CJ in Hamilton as follows:
But, once character has been so raised by the accused, the Crown becomes entitled to elicit or to lead evidence of bad character (or bad disposition) to rebut the evidence upon which the accused relies … The evidence of bad disposition which becomes admissible for that purpose is not necessarily limited to the particular type of disposition raised by the accused; the whole of the character of the accused may be exposed, provided that it tends to disprove his or her assertion of good character … Nor is the evidence which becomes admissible to rebut the claim by the accused limited to his or her previous convictions; the Crown may seek to elicit or to lead evidence of specific events which demonstrate a bad disposition, notwithstanding that they have not been the subject of any charge or conviction …
The admissibility of such evidence of bad character ‑ particularly of material other than convictions ‑ is subject to the discretion of the trial judge to exclude it if, having regard to the issues before the jury and to the risk that the jury may be misled as to what those issues really are, its reception would be unfair … ; or where its undoubted prejudice to the accused is undue or disproportionate, having regard to its probative significance upon this issue of good character … In other words, prejudice is inevitable from the admission of such evidence and the mere existence of that prejudice will not alone justify the discretionary exclusion of the evidence of bad disposition, even where … it is of convictions for crimes of the same general type as that with which the accused has been charged (299).
Thus, the fact that the appellant had breached interim violence restraining orders, which is an offence under the Restraining Orders Act 1997 (WA), was admissible under s 8(1)(f) of the Act and at common law to rebut the good character evidence adduced on behalf of the appellant. The fact that the breaches resulted in the appellant spending a weekend in gaol added nothing to the prejudice inherent in the admissible evidence of bad character.
The State contended that the evidence of bad character was also relevant to its case that the appellant was overbearing, dominating and controlled his family and its interactions in a way that made them scared to upset him for fear of how he might react or what he might do (ts 732). This was part of the explanation for the complainants' failure to make a timely complaint as to his conduct. It is unnecessary to rule on this proposition.
The State did not rely on the existence of the violence restraining orders (interim or otherwise) as evidence of the appellant's bad character. It relied solely on the breaches of the orders. There was no evidence at trial identifying the circumstances that resulted in the making of the restraining orders. However, the title of the orders itself suggests that the person subject to them had or may have engaged in actual or threatened violence against the persons nominated in the order. That was prejudicial because a live issue at trial was whether or not the appellant had behaved violently towards members of the family. That prejudice associated with the admissible bad character evidence had to be negated. In my view it was.
Evidence was adduced by the appellant of the procedure for the making of the restraining orders, in particular their 'ex parte' nature and what that meant, that the orders were to be contested by the appellant and the circumstances of the breaches (ts 437, 543 ‑ 545). Against that background, it would have been clear to the jury from the trial judge's direction (which is set out in Mazza J's reasons) that the only matter relied on by the State was the breaches of the restraining orders and not their existence or the fact that the appellant had spent some time in prison, both of which the trial judge directed had to be put aside. The direction given by the trial judge negated the possibility of the jury using the bad character evidence beyond the purpose for which it was relied on by the State.
The appellant failed to establish that the trial judge erred in refusing to exercise his power under s 116(2) of the Criminal Procedure Act 2004 (WA) to discharge the jury from giving its verdict or that there was a miscarriage of justice.

Ground 4

The appellant complains of the trial judge's observation in his summing up that the complainants and their mother (who gave evidence that the appellant had assaulted her) had not had the opportunity to comment on the evidence given by NS that he regularly visited the appellant's family in his capacity as a 'home teacher' from the church they all belonged to. In that role he was there to support and assist the appellant's family and, if asked, to deal with any issues that may exist in the family.
The defence case was that the complainants' evidence should be disbelieved because of their failure to complain when there were opportunities to do so, including by complaining to church members (ts 744, 752). NS, a potential church confidante, was unable to recall precisely when he had acted as home teacher to the appellant's family. In the circumstances it was appropriate for the trial judge to comment that the complainants and their mother had not been given the opportunity of addressing whether or not NS visited their home in the capacity of home teacher in the relevant period.

Ground 5

The gravamen of this ground is that the trial judge in his summing up inappropriately confined the relevance of the evidence adduced by the defence of the appellant's good character and of the complainants' relationship with him.
Both complainants gave evidence that they did not complain of the appellant's conduct because they were scared of the appellant who was prone to react violently in his dealings with members of his family. The appellant called eight witnesses and adduced evidence from NM to demonstrate his good character. A number of the character witnesses also gave evidence of their observations of the complainants' positive interaction with the appellant. That is conceptually different from good character evidence.
The trial judge commenced his directions on this aspect of the defence case by informing the jury that they had heard a great deal of evidence about the good character of the accused (ts 752). The trial judge then went on to summarise all relevant aspects of the evidence given by the witnesses called by the defence. The trial judge ended his summary of the evidence with the standard direction as to the use that can be made of good character evidence, in particular, its relevance to both guilt and credibility.
The appellant's complaint is that both the good character evidence and the evidence concerning the complainants' public interaction with the appellant were also relevant to rebut the complainants' evidence that they did not complain because they were frightened of the appellant.
The trial judge did not expressly direct the jury that the defence evidence of the appellant's good character and of the complainants' public interaction with the appellant was also relied on to rebut the complainants' evidence of why they failed to complain. However, that could not have escaped the jury's attention. The State case was that the family 'kept up appearances' in their interaction with people outside the family which belied the actual dynamics and conduct within the family. That constituted an express acknowledgement by the State that there was an inconsistency in the private and public conduct of, and between, family members that directly raised for the jury's consideration the credibility of the complainants, including in relation to their failure to complain.
BUSS JA: I agree with the orders proposed by Mazza J in the appeal against conviction, generally for the reasons he gives. I agree

with Mazza J's reasons for allowing the appeal against sentence. I agree with the additional observations of McLure P in relation to grounds 1, 4, 5 and 6 of the appeal against conviction.

MAZZA J: The appellant applies for an extension of time to appeal and, if granted, leave to appeal against conviction.
He also applied for an extension of time and leave to appeal against sentence. The only issue to be determined in this appeal was whether the learned sentencing judge had erred in failing to backdate the sentences he imposed, to take into account all of the time the appellant had spent in custody prior to trial. On 28 September 2010, this court allowed the appeal against sentence and varied the sentences imposed to the extent that they were taken to have taken effect from 11 April 2008. The court said that the reasons for this course would be published together with the reasons in respect of the appeal against conviction.

The indictment, the convictions and the sentences

The appellant was charged on an indictment presented in the District Court at Perth with a total of 18 offences of a sexual nature against his two daughters. Counts 1 ‑ 11 related to A, born in 1989, and counts 12 ‑ 18 related to J, born in 1986.
At a trial before Stevenson DCJ and a jury, between 1 ‑ 12 December 2008, the jury acquitted the appellant of three charges and convicted the appellant of 11 offences of indecent dealing and four offences of indecent assault.
On 19 June 2009, the appellant was sentenced to a total of 4 years' imprisonment with eligibility for parole. His Honour ordered the sentences to commence on 15 November 2008.
The following table sets out the charges as amended at trial, a brief description of the allegation in each charge, the verdicts and the sentences that were imposed.

SCHEDULE OF CHARGES
A - Date of Birth: 1989

Count	Charge	Date	Act	Place	Sentence
1	Sexual penetration of a lineal relative under 16 years	Date unknown 1/1/1998-1/1/2000	Inserted his finger in her vagina	Bathroom at 1st house	Acquitted
2	Indecent dealing with lineal relative under 16 years	Date unknown 1/1/1998-1/1/2000	Twisted her nipple	Bathroom at 1st house	Acquitted
3	Indecent dealing with lineal relative under 16 years	Date unknown 1/1/2004-31/12/2004	Touched her pubic hair	Children's bathroom at 2nd house	20 months
4	Indecent dealing with lineal relative under 16 years	Date unknown 25/12/2004-1/3/2005	Rubbed her breast	A's bedroom at 2nd house	18 months
5	Indecent dealing with lineal relative under 16 years	Date unknown 25/12/2004-1/3/2005	Touched her vaginal area	A's bedroom at 2nd house	24 months
6	Indecent dealing with lineal relative under 16 years	Date unknown 1/1/2005-1/7/2005	Touched her breasts	Ensuite bathroom at 2nd house	20 months
7	Indecent dealing with lineal relative under 16 years	Date unknown 1/1/2005-1/7/2005	Touched the inside of her thigh	Ensuite bathroom at 2nd house	20 months

8	Indecent dealing with lineal relative under 16 years	Date unknown 1/7/2005-21/8/2005 (Amended on 9/12/2008 to date unknown 1/6/2005-21/8/2005)	Kissed her breast	A's bedroom at 2nd house	18 months
9	Indecent dealing with lineal relative	Date unknown 21/8/2005-31/12/2005 (Amended on 9/12/2008 to date unknown 21/8/2005-31/1/2006)	Rubbed his erect penis against her bottom	Kitchen at 2nd house	Acquitted
10	Indecent dealing with lineal relative	Date unknown 1/1/2006-1/7/2006	Touched her breast	Bush area	24 months
11	Indecent dealing with lineal relative	8/4/2007 (Amended on 9/12/2008 to date unknown 1/3/2007‑13/4/2007)	Touched her breast	Entrance hall of 2nd house	12 months

SCHEDULE OF CHARGES
J - Date of Birth: 1986

Count	Charge	Date	Act	Place	Sentence
12	Indecent dealing with lineal relative under 16 years	Date unknown 1/4/2002-31/5/2002	Touched her breast	Lounge room at 2nd house	18 months
13	Indecent dealing with lineal relative	Date unknown 1/11/2003-22/7/2004	Touched her breasts	Children's bathroom at 2nd house	20 months
14	Indecent dealing with lineal relative	Date unknown 1/11/2003-22/7/2004	Touched her vaginal area	Children's bathroom at 2nd house	24 months
15	Indecent assault in family/domestic relationship	Date unknown 1/1/2005-31/12/2005	Touched her breast	Children's bathroom at 2nd house	18 months
16	Indecent assault in family/domestic relationship	Date unknown 1/2/2006-30/9/2006	Rubbed her bottom and thighs	J's bedroom at 2nd house	18 months
17	Indecent assault in family/domestic relationship	Date unknown 1/2/2006-30/9/2006	Touched her breasts	J's bedroom at 2nd house	18 months
18	Indecent assault in family/domestic relationship	Date unknown 1/3/2007-10/4/2007	Touched her breast	Hallway of 2nd house	20 months

The sentences on counts 5 and 14 were ordered to be served cumulatively.

I will deal first with the appeal against conviction.

The grounds of appeal

There were seven grounds of appeal. Ground 3 was abandoned: appeal ts 2. Of the rest, grounds 1, 2, 6 and 7 were not, as the Supreme Court (Court of Appeal) Rules 2005 (WA) require, concisely particularised: r 32(4)(b). For example, the particulars of ground 1 were spread over three pages. Grounds 1 and 2 referred to an alleged failure by the learned trial judge to consider whether evidence was admissible pursuant to s 31A of the Evidence Act 1906 (WA). These contentions were not pursued at the hearing of the appeal: appeal ts 22. Ground 5 did not accurately reflect either the appellant's written or oral submissions in support of it. Ground 7 was expressed too generally.
The grounds, as argued at the hearing of the appeal, may be summarised as follows:
1.The learned trial judge erred by refusing to discharge the jury when G, in an unresponsive answer to a question put to her in cross‑examination, gave inadmissible evidence to the effect that the appellant 'broke' a violence restraining order and went to gaol for a weekend.
2.The learned trial judge erred by ruling that evidence about an incident of violence by the appellant towards G was admissible.
…
4.The learned trial judge misdirected the jury about evidence adduced from a defence witness, NS.
5.The learned trial judge misdirected the jury as to the use that could be made of evidence led from witnesses describing, in favourable terms, their observations of the appellant's interaction with members of his family.
6.The learned trial judge failed to adequately direct the jury as to the use that could be made of the evidence concerning violence restraining orders made against the appellant and any alleged breaches of those orders.
7.The learned trial judge gave inadequate directions with respect to conduct of a sexual nature which was not the subject of charges, specifically in relation to an incident at Karragullen involving A and incidents involving J in the appellant's study and the appellant's kitchen.
This ground further alleges that his Honour:
(a)Failed to direct the jury to consider the temporal relationship between an uncharged act and a particular alleged offence, when deciding whether it demonstrated that the appellant, at the time of the offence, harboured a sexual interest towards the complainant.
(b)Should have, but failed to specify each alleged sexual touching of A and J which was not the subject of a count in the indictment.
(c)Failed to warn the jury not to substitute the evidence of uncharged acts with the specific activity which is the subject of the offence charged.

Leave to appeal on all grounds was granted by Owen JA on 31 March 2010.

The background facts and circumstances

In 1981, the appellant and G married. They had seven children. Each complainant was the appellant's biological daughter.
At all relevant times, the appellant, G and the children resided at two addresses in a suburb of Perth. The family resided at one address until some time in 2001 (the first house), and then at a second address up until the appellant and G separated (the second house).
On 10 April 2007, during a family meeting attended by G and the complainants, the appellant said that his marriage was over. On 12 April 2007, A and J made disclosures to G. On the following day, allegations were made to the police that the appellant had behaved in a sexually inappropriate way towards A and J.

Evidence concerning the offences in the indictment

Evidence of A and the appellant

A alleged that when she was either in year 4 or 5 at school, she was in the bathroom of the first house, taking a shower. She said that the appellant entered the bathroom and he sat on the edge of the bath. He began talking to her about sex. She said that the appellant put his right pointing finger between the lips of her vagina: ts 46 ‑ 47, count 1. She further said that, in the same incident, he 'pinched' her nipple: ts 47, count 2.
The appellant, who testified at the trial, denied that he touched A in the way that she alleged: ts 469 ‑ 471.
The appellant was acquitted of counts 1 and 2.
Count 3 was alleged to have occurred when A was either 14 or 15 years old. A said that she was taking a shower in the children's bathroom at the second house. She testified that the appellant sat on the edge of the bath and stroked his thumb across her pubic hair: ts 55.
The appellant said that he recalled an occasion when he went into the bathroom while A was showering, in order to get some ointment. He denied touching her, and specifically stroking her pubic hair: ts 475.
A testified that counts 4 ‑ 5 occurred in an incident during the Christmas holidays after she had completed year 10: ts 56 ‑ 57. She said that one Saturday morning, while she was in bed reading a book, the appellant entered her room and lay down on the bed behind her. She said that the appellant put his hand underneath her T‑shirt and stroked her nipple for a couple of minutes (ts 56 ‑ 57, count 4), and then he touched her vaginal area in the region of her pubic hair: ts 57, count 5.
The appellant testified that there was an occasion on a Saturday morning when he went into A's room and saw her in bed reading a book. He said that he lay on the bed with her and they discussed the book that she was reading. He said that he rubbed her on the shoulders and then on the hip in an affectionate way. He denied touching her breast or her pubic hair: ts 478, 480 ‑ 481.
A testified that counts 6 and 7 occurred in an incident one Wednesday afternoon when she was in year 11. She said that she was in the ensuite bathroom in the second house, taking a shower. A testified that the appellant asked her to scrub the floor of the shower at the same time that she was taking a shower. She said that while she was in the shower scrubbing the floor, the appellant came into the bathroom and touched her nipples and her breasts (ts 58, count 6), after which he massaged the inside of her thighs: ts 58 ‑ 59, count 7.
A said that she did not say anything to the appellant, '[b]ecause father used to just threaten me like that I would get hurt or he would, you know, if I didn't get into line then something would happen or he'd get angry and just blow up for no reason': ts 58.
The appellant testified that he recalled an incident where A came home from school and said that she was going to take a shower. He said that he asked A to scrub the shower in the ensuite bathroom, which she agreed to do: ts 484. The appellant said that while she was in the shower, he entered the bathroom and asked, 'How is it going?' to which A replied, 'Yeah, no problem', after which he left the bathroom: ts 486. The appellant denied touching A's breasts or the inside of her thighs: ts 487, 490.
With respect to count 8, A testified that in about the middle of year 11, at around the time she was to participate in a school event called The Rock Eisteddfod, she was in her room, lying on top of her bed, reading a book. She said that the appellant came into her room and sat down on her bed, and asked her what she was doing that day. She said that the appellant suddenly bent over, and with an open mouth, kissed her breast and then placed his head between her breasts: ts 59 ‑ 60, count 8.
The appellant denied kissing A's breasts. He said, 'I have never kissed my daughters in that way': ts 493. He denied placing his head between her breasts: ts 493.
With respect to count 9, A alleged that, at some time after Christmas in 2005, she was in the kitchen washing dishes. She said that the appellant came up to her from behind and rubbed his erect penis 'on the back of [her] bottom to the small of [her] back': ts 61.
The appellant testified that he recalled an incident when A was washing dishes at the kitchen sink. He said that he came home from work and put his arms around her in an affectionate way, but did not rub his erect penis against her: ts 497.
The appellant was acquitted of count 9.
A gave evidence in relation to count 10 as follows. She recalled that during term 1 of year 12, she was at home because she was not feeling well. She said that the appellant asked her to go with him to see a friend, NM. After visiting NM, the appellant took her for a drive in the bush. While in that area they visited a small lake and walked around it. A said that they then drove to what she described as a burnt‑out farmhouse, which she explored. They then drove to a brook. A said that the appellant touched her breasts at the small lake and, while driving, put his hand between her legs, after going to the burnt‑out farmhouse. A said that while they were at the brook, the appellant cupped her breast and stroked her nipple: ts 62 ‑ 63. The touching of A's breast at the brook is the allegation made in count 10.
In his evidence, the appellant agreed that A accompanied him to NM's house and that they later went for a drive to the Karragullen area. He denied touching her in a sexual way at the small lake (which he described as a pond). He testified that A put her arms around him so that her breasts were against his right arm. He said that he pointed this out to A, who replied, '[y]ou don't mind', to which he responded, 'I do mind': ts 504. He denied touching A at the brook (which he described as a stream): ts 507.
With respect to count 11, A said that this occurred in about April 2007, when she was at TAFE. She said that she was at home getting ready for church. A testified that she was doing her make‑up in a mirror at the entranceway of the second house, when the appellant put his arms around her and then grabbed her left breast: ts 65.
With respect to this count, the appellant said that he recalled an incident before church where A was standing at the entranceway mirror. He said that in a gentle way he told her that she was inappropriately dressed for church, saying, '[y]ou're just too far there', indicating her bust area. He denied touching her breasts: ts 514.

Evidence of J and the appellant

J testified that the first time that anything of a sexual nature occurred involving the appellant was when she was in year 11, at the age of 15. She said that one evening she and the appellant were watching television in the lounge room of the second house. She said that she was lying on the lounge room floor, on her stomach. She testified that the appellant slipped his hand underneath her pyjama top, rubbed her back and then moved his hand to her left breast, which he tickled and then cupped: ts 182, count 12.
The appellant testified that he recalled a night when he and J were in the lounge room watching television. He said that J told him that she was feeling tense and stressed and that she requested him to massage the top of her shoulders. The appellant testified that he massaged the top of her shoulders on the outside of her clothing. He denied touching her left breast at any stage: ts 517 ‑ 518.
With respect to counts 13 ‑ 14, J said that these occurred before her 18th birthday, in the children's bathroom at the second house. She said that while she was taking a shower, the appellant came into the bathroom and sat on the edge of the bath. She said that the appellant stroked the outside of her right thigh and then her stomach. He then stroked her breasts and played with her nipples: ts 185, count 13. J testified that the appellant then stroked her pubic hair. She said that she felt his thumb slip in between the lips of her vagina: ts 185, count 14.
The appellant said that he recalled going into the bathroom while J was taking a shower to discuss with her reducing the days that she went to ballet. The appellant said he did not touch her during this conversation. Specifically, he denied touching her body, breasts and the area of her pubic hair: ts 520 ‑ 521.
In relation to count 15, J said that some time in 2005 she was taking a shower in the children's bathroom in the second house, when the appellant banged on the door, demanding entry. J said that she let him into the bathroom. She said that while she was in the shower, he told her that she was beautiful and that he loved her, and then he cupped her left breast in his hand and rubbed his thumb around her nipple: ts 200.
The appellant denied touching J on the breast in the manner alleged, or at all: ts 525.
As to count 16, J testified that in 2006 there was an occasion when she was lying on her bed reading, when the appellant entered her room and crawled on top of her. J said that the appellant kissed her on the neck and on her cheek, and then, with his right hand, he rubbed her back, bottom and thighs, on top of her clothing: ts 189 ‑ 191.
The appellant testified that he recalled an occasion when he went into her bedroom and said, 'hello'. He said that he leant over and kissed J on the cheek. In doing so, he had his right hand on her hip or shoulder. He said that he did not touch her in a sexual way. He said that he, 'just had a chat with her and left': ts 526.
With respect to count 17, J testified that about a week after the appellant committed the offence which constitutes count 16, the appellant once again came into her bedroom while she was lying on her bed reading. She said that the appellant climbed on top of her and gave her a kiss on her cheek, and then rubbed her back, bottom and thighs. She said that he slipped his hand underneath her top and started to move his hand towards her chest, and that he placed his hand flat between her breasts, over her bra: ts 198 ‑ 199. The appellant denied touching J in this way at any time: ts 527.
With respect to count 18, J said that at approximately the end of March or early April 2007, she was walking down the hallway of the second house. She said that one of her brothers and the appellant went past her. After her brother went past, the appellant squeezed her breast hard. She said that she called out, '[w]hat was that?', to which the appellant laughed: ts 201.
The appellant said that he recalled an incident where he and one of his sons were coming down the passageway, and that as he passed J, he reached out and grabbed her 'round the midriff': ts 528. In cross‑examination, he explained that by 'midriff', he meant below J's ribs: ts 645. The appellant testified that J said, '[w]hat was that for?' and that he responded, '[b]ecause I love you'. The appellant denied grabbing J's breast: ts 529.

Evidence of other sexual misconduct

Both complainants testified that the specific incidents which constituted the charges in the indictment were not the only occasions when the appellant touched or dealt with them in a sexually inappropriate way.
For example, A testified that between the incident which had allegedly occurred when she was in year 4 or 5, to when she was in year 10, the appellant touched her 'over and over again' in a sexual way. She described his conduct in these terms:
Like touching my breasts or rubbing himself on me or grabbing my bum, just coming into the shower and looking and rubbing his hands on my breasts and that (ts 49).
She added that these things happened '[i]n the shower or in the car, in bed': ts 49.
Defence counsel cross‑examined A on this evidence. A said that while she was unable to recall any specific things which occurred between her and her father between years 4 to 5 and year 10, he would conduct himself in a sexual way towards her '[m]ostly every day': ts 93. Defence counsel asked for a description of some of the things that would happen. A replied:
He would come in when I was in my - asleep in my bed and he would put his hands under my clothes. He would, you know, if we were out walking he would put his arm around me and grab my boob when I was - when I had developed. He would come into the shower when I was just naked and just - and look at me and talk to me. He would, yeah, just lots of things like that (ts 93).
A's testimony about what occurred in connection with count 10 involves allegations of sexual misconduct in addition to the specific allegation made in that charge.
A also gave evidence that the appellant touched her inappropriately when she accompanied the appellant to Tasmania in 2004 (ts 169 ‑ 170), and on a holiday to Walpole in 2003: ts 172 ‑ 173.
With respect to J, she testified that between the commission of counts 12 and 13, the appellant touched her '[w]henever the chance arose': ts 185. J said (incorrectly transcribed as the prosecutor speaking):
He used to come into my room in the morning and touch my breasts - in the morning - 6 o'clock in the morning. Sometimes he would come back three times in that one morning. He used to come into the shower and offer to wash me with soap off my body. He used to offer to dry me down with a towel after, he was always - just whenever the chance arose everyday he would touch me (ts 186).
J also testified that in 2006 she walked into the study when the appellant was looking at some photographs. She said that she leaned over to look at the photographs, and as she did so, the appellant's nose and face 'bumped into [her] breasts': ts 202. J said she recalled a time when she was washing dishes at the kitchen sink and the appellant came up behind her, put his arms around her waist and started to sway his hips from side to side. J said that she felt his erection against the lower half of her back: ts 203. J also testified that the appellant took her to see My Fair Lady, and on the way home, while he was driving, he let go of the steering wheel of the car and rubbed her breast with his left hand: ts 204.
The appellant testified that he did not behave in a sexually inappropriate way with either A or J. He denied seeking sexual comfort from A and J: ts 638.

Evidence of absence of recent complaint

Neither A or J made a prompt complaint to anyone concerning the appellant's sexual misconduct. Each complainant gave a number of reasons for this failure. Both stated that they were scared of the appellant. Each said that the appellant was unpredictably violent in his behaviour towards each of them and other members of the family. Each said that they had witnessed the appellant behave in a threatening or violent manner.
For example, in evidence‑in‑chief, A said that she did not tell anyone about what had occurred with respect to count 3 because 'I was scared of Father': ts 55. When asked to expand on this answer by the prosecutor, she said:
It was like walking on eggshells all the time. You didn't - like, waiting for a time‑bomb to go off. He was angry and would get violent and hit people or throw things and break stuff (ts 55).
Towards the end of her evidence‑in‑chief, the State prosecutor led the following evidence from A:
Now, up to that time, that last incident, did you ever tell your mother what your father was doing‑‑‑No.
And was there any reason why you didn't tell her what was happening‑‑‑Father - I tried telling father once and he really went off and started saying that nobody would believe me and that I was just a little girl.
Okay. So just go back a bit. When you said, 'I tried telling father,' what were you saying to him‑‑‑?‑‑‑I was trying to tell him that I didn't like it and that he should stop, that I felt uncomfortable and I felt like it was wrong. And then he just, you know, went off and started saying, 'Nobody's going to believe you and if you tell anybody, then I'll take you all the way down if you tell the police,' and that he would hurt mum and the family, and take them away from me and chuck me out in the street, and like get angry and hurt them as well (ts 65 ‑ 66).
In cross‑examination, A was asked on a number of occasions by defence counsel why she did not complain to anyone about the appellant at the time that she was molested. Early in defence counsel's cross‑examination of A, the following exchange took place:
Well, why didn't you tell your mum‑‑‑Because. I thought that it would be - if I told Mum, then Father would hurt her.
I'm sorry‑‑‑If I told Mum, then Father would hurt her.
'Father would hurt her'‑‑‑Yeah.
Right. So he's a pretty violent man, is that right‑‑‑Yes.
He'd hit you and punch you a lot of the time, is that right‑‑‑He would hit us.
You‑‑‑Yes.
Discipline you‑‑‑Yes.
Hit you? Well, when did he hit you, personally‑‑‑Whenever some - he thought something was wrong.
Well, give me an example. Give the jury an example so they know‑‑‑Well, I forgot to feed my rabbits once‑‑‑
Right‑‑‑‑‑‑and he stripped my whole bedroom of sheets and pillows, and I had to sleep with nothing‑‑‑
Right‑‑‑‑‑‑and then he told me I wasn't allowed to eat for a week, and then he would clip us around the ear if we said something that he didn't like (ts 70 ‑ 71).
J testified that she confronted the appellant about what he was doing to her. She said:
I remember telling him I didn't feel comfortable with the way he was touching me and he didn't talk to me for a good three to four days and then I remember he asked me to take a day off ballet to clean the house which I did. I cleaned the house up and I was sitting on my bed and the door was closed but he came in and was yelling and he threw open the door. He just kept yelling and yelling, and yelling and my - I just blocked out what he was yelling about. I can't remember what he was yelling about.
So you blocked it out‑‑‑Yeah, yeah. Every time he yelled he got closer and then he was bending over me and then to make point [sic] when he was yelling he would thrust his finger and poke my chest really hard. Then he grabbed the - like, the top of my jacket up against my throat and was yelling at me while he was bending over me. Then he used his hand to hit me across the left side of my fact [sic]. Then he grabbed my jacket again but the zip had got caught up underneath my throat and I was finding it really hard to breath [sic] because it was pressed up against my throat. I remember grabbing his hand and pulling it away and he was like going to hit me again (ts 186).
At numerous points in her evidence, J testified that she did not immediately complain because she was scared of the appellant: ts 182, 192, 204, 216.
In J's cross‑examination, the following exchange took place:
Why were you too scared to tell somebody about this‑‑‑I don't know. He was my dad.
Right. Your mum was away but when your mum came back why couldn't you have just gone to your mum and explained what had happened to her‑‑‑I was too embarrassed. I didn't ‑ I was scared.
Why would you be ‑ sorry, go ahead‑‑‑I didn't want ‑ I was scared because I didn't want father to get angry at me.
But this is somebody who you had trust in obviously as a parent ‑ your father‑‑‑No.
You didn't have trust in your father at all‑‑‑Not when he'd been hitting us all our lives.
…
Scared that your mother, what, wouldn't believe you or something else‑‑‑No, because father's so controlling (ts 248).

Evidence of intrafamilial violence

Both complainants gave evidence concerning physical violence perpetrated upon them and other members of the family by the appellant. This evidence was led without objection. Some of it was adduced by defence counsel in cross‑examination.
Both A and J gave evidence that the appellant hit them with a stick. For example, in cross‑examination A gave the following evidence:
Tell me about the other things that you've described him as being. Firstly, had he been violent to you previously‑‑‑Yes.
I asked you a question earlier about being physical towards you, you say he clipped you around the ears if you said something he didn't like, what else did he do to you‑‑‑He would give us a stick or use the belt or anything he could pick up and find (ts 90).
In cross‑examination, J said:
So he hit you all the time. Is that right‑‑‑Yeah, he used to hit us with a stick or just clip us over the ear.
When you say, 'hit you with a stick', that was with a wooden spoon, wasn't it‑‑‑No.
What type of stick was it‑‑‑It depends if it broke or not. It was whatever he could find up the back in his wood pile.
Right. So he'd go out to the wood pile, grab a stick; are we talking a big stick, or a small stick, or what are we talking here‑‑‑At least a metre long.
And what would he do? Wind up and whack you, would he‑‑‑Yes.
Right. Whereabouts would he whack you on occasion‑‑‑The majority of the time he'd take us into our bedroom, and whack us on our bottom, or our thighs, and other times if he was really angry, he'd just whack us wherever he could.
Like on the head, as well, I presume. Is that right‑‑‑Not on me, no (ts 223).
A testified that when she was in year 11 or 12, the appellant hit G. She said:
Father, I remember once that Father hit mum and he would, you know, go up to [J] and say, 'Oh, watch yourself,' you know, 'I'll hit out at you,' or something like that. He used to put his fist up to our faces (ts 166).
Defence counsel cross‑examined J concerning the appellant's alleged violent temperament and acts. The following exchange took place:
Because he was a pretty violent man, obviously, at this house, wasn't he‑‑‑Yes.
He'd raised his voice and yell at you and the rest of the family, all the time‑‑‑Yeah.
Sorry‑‑‑Yes.
And he'd hit you, and he'd hit everybody else in the family, is that right‑‑‑Yes.
With a big stick‑‑‑Yes.
And with his hands. Correct‑‑‑Yes (ts 224).
G testified, over objection, about the incident which occurred in 2005 when the appellant came home from work in an angry state. She said that he entered their bedroom and pushed her onto the bed and hit her around the head 'a few times'. She said that she subsequently had bruising to her face. She said that after the incident the appellant asked her to go into the lounge room and tell the children 'that it was my fault and everything was okay': ts 330. G said that she did this. She said that the children noticed the bruising she had sustained.
Without objection, she testified that the appellant used a stick 'and hit the kids': ts 331. She said that the appellant hit one of their sons with a riding crop and on another occasion he punched another son up against a wall: ts 331.
The appellant denied being physically violent towards family members.

Evidence of good character

The appellant's trial counsel, in his opening address to the jury, told the jury that evidence of good character would be called during the course of the defence case: ts 35 ‑ 36.
Evidence of good character was adduced in the course of the trial. Defence counsel cross‑examined a prosecution witness, NM, to the effect that the appellant was a good citizen who participated in community activities such as scouts and children's sports. Further, NM said he had never observed anything untoward in the appellant's interaction with his family: ts 289, 291 ‑ 292.
The appellant testified that he was an active member of the church over many years and he had been, at one point, a bishop in the church. He testified as to his community involvement in sports, such as tee‑ball and Australian rules football.
He called, as part of the defence case, eight character witnesses.
One of those witnesses was NS. NS testified that he was a member of the church and that he had known the appellant's family for approximately 20 years: ts 654 ‑ 655. He testified that at times during the period he had known the appellant's family, he played a church‑appointed role as 'home teacher'. He explained that the role of the home teacher was to befriend a family and to assist that family. One of the requirements was that the home teacher pay at least monthly visits to the family.
NS said that he was the appellant's home teacher on several different occasions. He testified that he observed 'a very loving family inter‑relationship between the family and the wife and the children': ts 656.
NS said generally a home teacher did not pry into the personal lives of a family 'unless the family offered it to us': ts 656.
NS said that the appellant was 'a very loving person towards his family; very dedicated to his family. I always admired [the appellant] and his family': ts 657.
KE testified that she was best friends with J between years 6 and 10 at school: ts 660. She said that the appellant and J had 'a typical father and daughter relationship. I saw nothing untoward': ts 661. She said that neither J nor A seemed afraid of the appellant.
KE's parents, PE and TE, said that based on their interaction with the appellant's family, they appeared to be a happy family.
WC and EC both referred to the appellant's community service. Each of them testified that A and J appeared to have a very good relationship with the appellant. WC described the appellant, amongst other things, as an extremely hard worker and a good father: ts 682.
The appellant's partner said that the appellant was 'Very supportive. Very compassionate. Very honest and just a decent person': ts 690.
AD said that A and J did not indicate that they were scared of the appellant: ts 692. He said that the appellant's family interacted normally: ts 694. He also said that he found the appellant to be very caring and a person who would 'try and help everyone': ts 695.

Application to discharge the jury

In the afternoon of 4 December 2008, the fourth day of the trial, during the cross‑examination of G, defence counsel asked questions about a conversation that G had with the appellant in April 2007, where G told the appellant that she was taking the children down south for a few days. During the course of this cross‑examination, the following exchange took place:
Did he speak to the kids before you took them down south‑‑‑No.
Did you let him see the children before you took them down south‑‑‑No.
Incidentally did [the appellant] go to the bank and change the joint signatures in relation to yours and his bank account‑‑‑Yes, he did.
When did that take place, please‑‑‑He got a violence restraining order on him, he broke the violence restraining order and went into gaol for a weekend. I went into the bank to try and get some money to pay some bills and the bank said I wasn't allowed to use the account because [the appellant] had been into the bank and it now required both signatures (ts 373 ‑ 374). (emphasis added)
The italicised evidence was unresponsive to the question and was unexpected.
Defence counsel immediately made an application to discharge the jury. The matter was dealt with in the absence of the jury. The application was opposed by the State prosecutor.
The State prosecutor informed his Honour that the appellant had breached a violence restraining order on 18, 19, 21 and 22 April 2007, for which he had been charged, pleaded guilty and fined. She confirmed he had spent a weekend in custody before being granted bail. She told his Honour that the appellant had been found not guilty of an alleged breach which occurred in March 2008: ts 381. She submitted that the evidence was relevant to rebut the defence case that the appellant was a man of good character: ts 376, 382. She also submitted that in the context of the evidence led of the appellant's violent behaviour, any prejudice caused by the evidence could be dealt with by direction.
Without ruling on the admissibility of the evidence given by G, his Honour refused the application to discharge the jury. He concluded that in light of the evidence of violence allegedly committed by the appellant that had already been adduced, G's evidence was not so prejudicial to the appellant as to justify the discharge of the jury: ts 382 ‑ 383.
Having ruled that the trial would continue, the focus of the discussion between his Honour and counsel became whether the State proposed to lead evidence concerning the restraining orders, and if so, what would that evidence comprise and how would it be admissible. His Honour was also concerned that any evidence be properly disclosed to the defence and that defence counsel be given the opportunity to take instructions from his client and deal with the material.
The prosecutor said she envisaged adducing certified copies of the complaints to show the charges, the appellant's pleas of guilty and the dates upon which the breaches were committed: ts 384. The prosecutor informed the court that if the evidence was to be led, she would do so in what she described as a 'clinical' way (ts 385), perhaps by consent. She said that evidence that the appellant had breached a violence restraining order was relevant to the issue of the appellant's character: ts 385.
Defence counsel conceded that the appellant's good character had been put into issue and that the State was entitled to lead evidence in rebuttal. Defence counsel said:
So having said that the State would be entitled to place those matters before the jury and indeed cross‑examine my client about them and so I believe that they would be permitted to do that (ts 387).
Shortly before G was recalled for further cross‑examination, the following discussion took place between his Honour and defence counsel:
STEVENSON DCJ:    It may be that you could reach agreement as to some things which are not in dispute.
MOEN, MR:Yes.
STEVENSON DCJ:     And which would be, succinctly, summarised so that the evidence is plain, rather than - but it's entirely a matter for yourselves, obviously, but that is one way in which it could be done, perhaps more efficiently going forward.
MOEN, MR:Yes, I understand that. And that would need a bit of time for my friend and I to sit down and obviously nut that out - there's that word. Okay, subject, of course, to my client's instructions in that regard, and how he would like that matter to be dealt with, and what my advice to him would be, once I'm apprised of that information.
STEVENSON DCJ:     All right. In those circumstances, then, perhaps all I need say at this point in time is to direct the witness to try and be more responsive and confine her answers to the questions asked of her.
MOEN, MR:Yes.
STEVENSON DCJ:     And I think say nothing further about this matter to the jury at this point in time.
MOEN, MR:Yes.
STEVENSON DCJ:    Because it seems like it's going to become evidence which they can have regard to, in any event.
MOEN, MR:Yes, and I think that your Honour would be, with no disrespect, confusing them, I think, at this stage, if your Honour did go down that path and given them the direction.
STEVENSON DCJ:     Yes, I was just trying to make sure that we don't - I was just trying to do it effectively and efficiently to continue the momentum of the trial.
MOEN, MR:Yes.
…
O'CONNOR, MS:      Your Honour, can I just indicate I don't see that it would be at all relevant for my learned friend to go into detail about a matter that wasn't raised by the State, namely that are crucial in respect of the charge of breach of restraining order. All the State would be leading in terms of bad character, would be the pleas of guilty in respect of a number of breaches, and then what I'd be seeking to agree with my learned friend is the statement of material facts in respect of those. That that would be put in through the investigating officer by way of certified copies of complaints, showing a plea of guilty, leading that from her and leading the statement of material facts that were behind the pleas of guilty (ts 388 ‑ 389).
The position at this point was that defence counsel had accepted that evidence in connection with the violence restraining orders was admissible to rebut the appellant's case that he was a person of good character. His Honour left to counsel how the matter was to be pursued by them. At no stage after this did either counsel seek any ruling from his Honour about the admissibility of this material.
The proceedings on the fourth day of the trial finished early. On the following day, proceedings adjourned at 11.30 am without any oral testimony being adduced. The weekend followed and on 8 December 2008, the trial resumed. G's cross‑examination was completed and some other witnesses, whose evidence for present purposes is not relevant, testified.
At the conclusion of the proceedings on 8 December 2008, in the absence of the jury, the State prosecutor told his Honour:
We've sorted out what's going to be said about the violence restraining orders. I'm simply going to ask the officer [Senior Constable Kelly], and the evidence has come out through [G], in any event, that there was an order made, or at least an interim order made on 17 April. The [appellant] was served with the order, the order concerned [A and G] and there were breaches of that order and charges in respect of which the [appellant] pleaded guilty. And I'm going to have the officer read out the facts in relation to each of the breaches (ts 430).
Defence counsel voiced no disagreement with this statement.

Evidence in respect of violence restraining orders

It was not easy to obtain a clear and coherent picture of the evidence adduced at trial, about the violence restraining orders, from the appellant's written submissions. The appellant's counsel, in oral submissions before this court, was unable to provide the court with much further assistance. As a result, an order was made at the hearing of the appeal requiring the appellant to file a schedule, cross‑referenced to the trial transcript, setting out the relevant evidence. Later, by application dated 10 November 2010, the appellant sought leave to adduce further evidence in the appeal pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA). The purpose of this evidence was to provide the court with evidence which was not before the jury, concerning the restraining orders and the alleged breaches of them. Leave was not granted. This appeal must be decided on what was actually before the jury. The evidence concerning violence restraining orders was led from G, Senior Constable Kelly and the appellant. It may be summarised as follows.
On 17 April 2007, G applied for and obtained an interim violence restraining order against the appellant protecting herself. On 18 April 2007, G obtained an order protecting A. The order she obtained restrained the appellant from communicating or attempting to communicate by whatever means with G or from entering or remaining upon the second house. The order protecting A restrained the appellant from communicating or attempting to communicate by whatever means with A or entering any premises where she worked or being within 100 metres of the nearest external boundary of such premises. Both of these orders were served on the appellant on 18 April 2007.
The appellant breached the order protecting G on five occasions between 18 and 22 April 2007. He unsuccessfully attempted to telephone G on 18 and 19 April 2007 and on three occasions he entered the second house. He was arrested by police on 22 April 2007 and he was remanded in custody for a weekend, before being released on bail. In due course, he pleaded guilty to five counts of breaching the interim violence restraining order protecting G. He was fined $50 for each breach.
On 27 April 2007, the appellant went to A's workplace and walked past her by a matter of about a metre and stood outside the front glass doors about five metres from her. The appellant was charged with breaching the order protecting A. Eventually, the appellant pleaded guilty to the charge and was fined $850.
The appellant was charged with three breaches of a violence restraining order, which was said to have occurred at the Perth Concert Hall on 9 March 2008. Evidence was adduced at trial from one of J and A's brothers that he and his two sisters were at a church function at the Perth Concert Hall and saw the appellant: ts 307 ‑ 308. These charges were later dismissed.
The appellant was also charged with breaching the order protecting G by allegedly making indirect contact with her via one of the appellant's sons. The appellant was acquitted of this charge.
The appellant was remanded in custody for a weekend, after his arrest on 22 April 2007 for the breaches on 18, 19, 20 and 21 April 2007. He was also remanded in custody between 25 May 2007 and 19 November 2007 (in one part of the transcript the date is erroneously expressed as 14 November 2007: ts 454), with respect to an alleged breach of a violence restraining order. There was conflicting evidence about which breach that related to.
There was further evidence that the appellant was remanded in custody for a period of eight weeks in relation to the breaches which were alleged to have occurred at the Perth Concert Hall, and for which he was later acquitted.
The order protecting G had not, at the time of the trial, been made final. There was no evidence about whether the order in relation to A was a final order.

The State's case at trial

The State's case was that both A and J were credible witnesses and that the jury could rely on their testimony alone to prove each of the charges in the indictment.
The State alleged that although the appellant presented to the outside world as a family man and a person of good character, in truth, he was a controlling, dominating and violent father. The State's case was that neither A nor J immediately complained about the appellant's sexual conduct because of the fear that the appellant had instilled in them.
The State submitted that the appellant had behaved in a sexually inappropriate way on many occasions apart from those occasions that were the subject of specific charges. The State relied upon this evidence to show that the appellant's relationship with each of A and J was not a normal father/daughter relationship. Instead, the appellant harboured a sexual attraction towards each of them. The State's case was that the appellant was not, in truth, a man of good character and his violent conduct towards members of his family belied this appearance. It was submitted that the appellant's breaches of the violence restraining orders made in favour of G and A were indicative of his bad character and showed his controlling nature.

The defence case at trial

The defence case was that the appellant was a good father who had been wrongly accused of committing sexual offences against A and J and behaving in a sexual way towards them. It was submitted that numerous witnesses, who gave evidence at the trial, had never observed any untoward behaviour on the part of the appellant towards his children. It was said that he was a man of good character involved in his church and numerous community activities. It was submitted that the appellant had not acted violently towards his family.
The defence case was that none of the alleged offences occurred. It was submitted that if the appellant had behaved in the way alleged, each complainant would have complained about what had occurred. The significant similarity between A and J's evidence was said to be indicative of fabrication. The defence case was that despite the frequency and period of time over which the offending was said to have occurred, no one in the household saw the appellant touch A or J in an inappropriate way.

With respect to the breaches of the violence restraining orders, it was submitted that they were very minor and of a non‑violent nature and reflected the stress surrounding the breakdown of the appellant's marriage with G. They did not reflect adversely on his good character.

The learned trial judge's summing up

His Honour told the jury that it could not find the appellant guilty of an offence unless they were satisfied, based on the evidence of A or J, that the appellant had committed a particular offence: ts 723. He gave a direction in accordance with Longman v The Queen (1989) 168 CLR 79. In the course of giving that direction, he told the jury that it was particularly important that they scrutinise the evidence of A and J with special care: ts 746 ‑ 747.
His Honour correctly directed the jury as to the significance of the absence of recent complaint by either A or J. He instructed the jury that such an absence was relevant to the jury's assessment of whether the alleged offences had been committed. His Honour then gave directions in accordance with s 36BD of the Evidence Act. He instructed the jury that absence of complaint or delay in complaining does not necessarily indicate that the allegation that an offence was committed is false. Further, the jury were told that there may be good reasons why a victim may hesitate in making or may refrain from making a complaint. His Honour referred the jury to the evidence given by each of A and J that they were too scared to tell anyone about what was happening: ts 744 ‑ 745.
His Honour gave directions with respect to alleged acts of inappropriate sexual touching of both A and J by the appellant, which were not the subject of a charge on the indictment.
His Honour did not refer to each and every uncharged act. Instead, his Honour gave examples of such acts. With respect to A, his Honour referred to the incident at Karragullen and reminded the jury that A alleged that other touching occurred in the course of that incident, apart from the act which was said to constitute count 10 on the indictment.
In respect of J, his Honour referred to the incident in the study and in the kitchen which are summarised at [66] of these reasons.
His Honour instructed the jury that if they were satisfied beyond reasonable doubt that some or all of the other acts occurred, that might show that the appellant had an interest (by which he meant sexual interest) in a complainant and that he had been willing to give effect to that interest. His Honour told the jury that they may take such an interest into account 'on the basis that it is more likely that the [appellant] did what is alleged in the charge you are considering': ts 750. He then directed the jury:
You may be persuaded of the [appellant's] guilt of one or more counts, even if you are unable to decide about whether or not one of the uncharged acts did or did not occur. Conversely, if you are persuaded that the other conduct did occur, you may entertain a reasonable doubt of guilt in respect of any of the counts.
Even if the other events did occur, the conclusion that the [appellant] did what is charged is not inevitable. To prove that a person did something many times does not compel a conclusion that he did it again on the occasion in question in the count. However, it might make it more likely that sworn testimony that he did it again is true. People do not act in accordance with all their inclinations at every opportunity, but proof of a person's inclinations may provide strong support from [sic] direct testimony as to that person's conduct.
You must decide whether, having regard to all the evidence, you are persuaded beyond reasonable doubt that the count which you are considering has been proved. On the other hand, if you do not accept the complainant's evidence of these other events then it is likely to influence your assessment of her credibility about the events named in the indictment. This is entirely a matter for you because you are the sole judges of the facts, but you must consider the evidence of the uncharged acts in the way that I have said (ts 750 ‑ 751).
His Honour succinctly, but accurately, summarised the evidence adduced at the trial to the effect that the appellant was a loving and dedicated family man and that they saw nothing untoward in the way that he interacted with the members of his family. At ts 752 ‑ 753, his Honour referred to NS' evidence. He said:
The evidence was given to you firstly by [NS]. He told you that for a period of time where he could not recall precisely when he was in fact a home teacher, from the church, visiting the family of the [appellant]. That was not put to either [A or J], so they were not given the opportunity to comment on whether or not they visited their home during that period of time in that capacity as a home teacher that he described as being there to support and assist the family and also being available if asked to deal with any issues that may exist in the family.
It was also not put to [G] on the basis that he came to the family in that role as a home teacher either, so she did not get an opportunity to tell you her evidence in that regard.
As to the evidence of good character, his Honour instructed the jury as follows:
In relation to the evidence of this nature, I say two things to you. Firstly, evidence of good character is relevant to whether or not the [appellant] would commit an offence such as the ones which he has been charged in this case. The evidence of his good character shows that it is less likely that he would commit such an offence.
Secondly, it is that this evidence of his good character is relevant to his credibility. You may have regard to it and take it into account when you consider his credibility, because it tends to show that he's a person whose evidence can be accepted and relied upon.
You should consider the evidence of the [appellant's] good character in both of these ways, in considering whether the State has satisfied you beyond reasonable doubt that the [appellant] is guilty of the offences of which he has been charged (ts 753).
His Honour then referred to the evidence of bad character. In this regard, he said:
[Y]ou have heard a great deal of evidence in this trial about [the appellant] as a person, about the family as a family, about the individuals; in particular [J and A]. The State relies on all of the evidence to suggest to you that the [appellant] at home with his family was not the same person that was portrayed by him and the family at church or in the company of others, outside the home or outside when they were together.
The State says that there was a different person in the home as to when they were as a family together outside the home. In this regard, the State relies on the evidence of the admitted breach by the [appellant] of the violence restraining order which was obtained against him by [G and A]. He has explained to you the circumstances in which he breached that order of the court, but the State says that the [appellant], by committing those breaches, was simply reaffirming his true character.
You have been told by [defence counsel] that that violence restraining order was obtained on an ex parte basis, which means that whether or not it will be made permanent, and if so, what terms or conditions has not yet been decided by the court with [the appellant] being present. You've been told that that hearing will take place in January 2009. In respect of that matter you should put it out of your mind. It is not relevant to your consideration of the counts which you are considering in this trial.
Similarly, the fact that you heard evidence in the course of the trial that [the appellant] had been for some time in prison because of his conduct in respect of that order, that again is not something that you should pay any attention to or have any regard to. You should not give him any sympathy in respect of that because your job in this trial is to consider the evidence and only the evidence insofar as it relates to whether or not each of the counts which you have heard evidence about has been proved to you in satisfaction beyond reasonable doubt.
The State also relies in this case upon the evidence of [G], that in the course of their relationship [the appellant] hit her in the face on one occasion. Again, it's entirely a matter for you whether you wish to form any final view about whether or not that occurred. If you do form a view in respect of it then you may use that view to assist you in considering the evidence. If you don't wish to form a view or give that matter any consideration, you can simply put it to one side, but the State does rely upon it to you in respect of the character evidence which you have heard from the witnesses on behalf of the [appellant] (ts 753 ‑ 754).
His Honour did not, at this stage of the summing up, instruct the jury that they must not use any evidence of bad character, which they accept, to reason that because of his bad character, he was a person who is more likely to have committed the offences alleged in the indictment. However, after the jury retired, the matter was raised by the prosecutor. His Honour redirected the jury in these terms:
The second matter concerns the evidence in respect of alleged violence by the [appellant] to his family members. You heard me mention the allegation by [G] that she was struck by the [appellant] on one occasion. There was other evidence in the course of the trial of a similar nature of alleged violence concerning [J and one of the appellant's sons].
In respect of all that evidence concerning violence, if you were to form any concluded view about any particular incidents and therefore, as a result, conclude that the [appellant] was a violent person, you must not reach that conclusion to assist you to therefore reason that he is a person who would have or might have committed the offences. So it's a warning in respect of how you use that evidence if you make findings in that regard (ts 761 ‑ 762).

Ground 1 - the refusal to discharge the jury

The legal principles relating to the refusal to discharge a jury when inadmissible evidence has been inadvertently adduced are uncontroversial.
Section 116(2) of the Criminal Procedure Act 2004 (WA) empowers a judge to discharge a jury from giving its verdict if the judge is satisfied that it is in the interests of justice to do so.
In Crofts v The Queen (1996) 186 CLR 427, Toohey, Gaudron, Gummow and Kirby JJ said, at [440] ‑ [441]:
No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. … [M]uch leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.
Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable?
In Narrier v The State of Western Australia [2008] WASCA 191; (2008) 38 WAR 161, Buss JA (with whom Martin CJ & Wheeler JA agreed) undertook, at [31] ‑ [37], an analysis of Crofts v The Queen and other cases where a trial judge has refused an application to discharge a jury following the irregular disclosure of evidence of an accused's bad character. At [38], his Honour said:
The applicable principle to be derived from the authorities I have mentioned is this: where inadmissible evidence of an accused's prior conviction has been adduced at trial, and the trial judge refuses to discharge the jury, and the accused is convicted, an appellate court must determine for itself whether, in the circumstances, the trial judge's refusal to discharge the jury has deprived the accused of a fair trial or occasioned the risk of a substantial miscarriage of justice.
His Honour said that in considering whether no substantial miscarriage of justice has occurred, it is necessary:
[T]o have regard to all the circumstances of the trial, including the degree to which the inadmissible evidence was prejudicial to the accused in the context of the issues in dispute at the trial; the stage of the trial at which the relevant evidence was adduced; whether the relevant evidence was adduced inadvertently or not; and whether any direction given by the trial judge to the jury was likely to have overcome the prejudicial nature of the relevant evidence [41].
The appellant submitted that the evidence which G gave concerning the appellant's breach of a violence restraining order was inadmissible and so prejudicial that his Honour should have discharged the jury. It was also submitted that as a consequence of his Honour's failure to discharge the jury, further inadmissible evidence concerning violence restraining orders and alleged breaches of those orders was led, which compounded the initial prejudice.
The respondent conceded that G's evidence was inadmissible and, as a result, a miscarriage of justice arose. However, the respondent contended that no substantial miscarriage of justice occurred and that the proviso contained in s 30(4) of the Criminal Appeals Act applied.
This ground raises an important threshold issue. Was the evidence given by G inadmissible? The parties to this appeal assumed that it was. At the hearing of this appeal, the court questioned the accuracy of that assumption.
The first step is to identify the relevance of the evidence. It is trite to say that if the evidence was not relevant, it was inadmissible.
The jury had, prior to G's evidence, heard testimony from J and A, which had not been the subject of objection, that the appellant had behaved violently and that they were afraid of him. That evidence was admissible to explain why each of J and A had not promptly complained about the sexual abuse and to rebut the appellant's case that he was a loving father and a man of good character.
The evidence given by G with which this ground is concerned is irrelevant to the question of absence of complaint. G did not, at any point, give evidence about the factual basis upon which the order she spoke of was made. Indeed, at no time was any evidence on this point adduced in the trial. It is unknown when the events which were said to justify the making of the order occurred and if they were in any way connected with the alleged sexual or violent conduct committed upon the complainants and the family prior to the family meeting on 10 April 2007.
The only logical basis upon which the evidence could be admissible was with respect to the appellant's character. Generally, evidence of an accused's bad character is inadmissible. However, there are circumstances where such evidence is admissible. One such circumstance is where an accused puts his character in issue. Where that occurs, the prosecution is entitled to call evidence of bad character in rebuttal: Hamilton v The Queen (1993) 68 A Crim R 298, 299; and s 8(1)(e)(ii) of the Evidence Act.
Evidence of bad character may come in the form of convictions, but it is not restricted to convictions. Conduct other than convictions may be admissible.
The appellant, from the outset of the trial, asserted that he was a man of good character. As I mentioned earlier in these reasons, he adduced evidence to this effect from NM. He foreshadowed calling good character witnesses. The prosecution was therefore entitled to adduce rebuttal evidence. If the evidence given by G was admissible, it could only be for this purpose.
The evidence given by G contained three pieces of information, the admissibility of which must be analysed. First, that a violence restraining order had been made against the appellant. Second, that the appellant had breached the order. Third, as a result of the breach, the appellant went to gaol for a weekend. Before I undertake this analysis, it is necessary to say something about the legislative provisions concerning violence restraining orders.
A violence restraining order (VRO) is made pursuant to the Restraining Orders Act 1997 (WA) (ROA).
The circumstances in which a violence restraining order may be made are set out in s 11A and s 11B of the ROA. In general terms, a violence restraining order may be made where a respondent has committed an act of family and domestic violence or an act of personal violence, as those terms are defined in s 6 of the ROA. The behaviour set out in s 6 includes assaults, threats and behaving in an ongoing manner that is intimidating, offensive or emotionally abusive towards the person.
An application for a VRO may be made in person by an adult or, if the person seeking to be protected is a child, by a parent on behalf of that child: s 25(1)(a) and s 25(2)(a) of the ROA. A VRO may be made on an interim or final basis. Where an application for an interim order is made, those proceedings occur in the absence of the person against whom the order is sought: s 26, s 27 and s 29 of the ROA. If an interim order is made, the respondent, once served with it, has 21 days to endorse on it either that the making of a final order is, or is not, objected to: s 31, s 32 and s 33 of the ROA. If the order is the subject of objection, a hearing is fixed to determine whether a final order should be made: s 33(1) of the ROA. At that hearing, assuming that the parties attend and the making of a final order is still opposed, a court determines whether a final order should be made on the merits, according to the evidence.
G did not say whether the order was interim or final. It did not clearly emerge until Senior Constable Kelly gave evidence that an interim VRO was made in favour of G on 17 April 2007 and A on 18 April 2007. The factual basis upon which the interim VROs were made was unknown. Whatever the allegations, they had not been determined by a court on the merits. In isolation, the making of an interim VRO was not of any relevance to the issue of the appellant's character.
However, the evidence of the making of the VRO spoken of by G did not stand in isolation. It was linked to the alleged breach. Evidence of a breach would not make any sense without knowledge of what was breached.
A breach of an interim or final VRO amounts to a deliberate disobedience of a court order and constitutes a criminal offence: s 61 ROA. It is conduct which is prima facie inconsistent with the usual behaviour of a person of good character. It is evidence capable of rebutting an assertion of good character. As such, it was admissible.
The evidence that the appellant had spent a weekend in gaol was not relevant to character. That evidence was inadmissible, but it was not so prejudicial that it could not be dealt with by direction. Its potential prejudice to the appellant was mild, especially when one compares it to the evidence elicited from J and A as to the appellant's intrafamilial violence.
Ground 1 fails because, contrary to the appellant's submissions, the evidence inadvertently adduced from G was substantially admissible. The only part of the evidence which was inadmissible could be dealt with by direction. I will, in due course, address his Honour's directions on this when I consider ground 6.

If I am wrong, and the evidence of G was inadmissible, it does not follow that the jury should have been discharged.
The evidence was very general. There was no detail as to when the VRO was made, who was the protected person, what was the basis for the order and what the appellant did to breach it. It was unexplained why the appellant had spent the weekend in gaol. The evidence did not explicitly allege that the appellant had been convicted of any offence.
It can be accepted that, if the evidence was inadmissible, its effect was, to some extent, prejudicial to the appellant.
G's evidence was unexpected and apparently spontaneous. Having regard to its nature and to its prejudicial value, bearing in mind the evidence that I have referred to concerning intrafamilial violence, any prejudice caused by the evidence could have been dealt with by adequate direction. Accordingly, even if the appellant is right and G's evidence was inadmissible, the jury should not have been discharged.
This is sufficient to deal with ground 1. However, I wish to make some observations about the submission that, as a consequence of his Honour's alleged failure to discharge the jury, further inadmissible evidence concerning VROs and alleged breaches of those orders was led.
Following G's unexpected evidence, and during the dialogue between bar and bench concerning the evidence, it became apparent to both counsel and his Honour that evidence that the appellant had breached VROs was relevant to the issue of character. Defence counsel expressly acknowledged this and conceded that the State would be able to cross‑examine his client about such breaches.
The issue at this point was how best to proceed. His Honour gave counsel the opportunity to confer. Counsel took up this opportunity. An arrangement was reached. Defence counsel came to know what evidence the prosecution intended to lead on the issue. Defence counsel had sufficient time (three days) to reflect on the situation and take instructions from the appellant. He made no application to delay or adjourn the trial, and said nothing which indicated that he was unprepared to deal with the evidence.
Defence counsel cross‑examined Senior Constable Kelly at some length. The purpose of the cross‑examination was to put before the jury evidence of alleged breaches of VROs for which the appellant was acquitted. Defence counsel also adduced evidence of lengthy periods of time that the appellant had spent in custody on remand with respect to charges for which he was ultimately acquitted.
The appellant gave evidence about the orders and the breaches that he admitted and that he denied. He explained the circumstances of the breaches he admitted.
There were several obvious forensic purposes for the course taken by defence counsel. First, to trivialise the breaches; second, to convey to the jury that G and perhaps A harboured, and continued to harbour, unnecessary animosity towards him; and third, to engender sympathy in the jury as a result of spending lengthy periods in custody for offences he did not commit.
The evidence concerning the breaches of the VROs adduced after G's initial disclosure was admissible to rebut the appellant's case that he was a man of good character. It was not unfair to the appellant for that evidence to be adduced. His counsel was able to deal with it. Nothing that occurred after G's disclosure led to a miscarriage of justice.
Finally, in respect of ground 1 (although it is difficult to see how the submission arises under this ground), the appellant submitted that in the course of the State prosecutor's cross‑examination of the appellant, his Honour allowed the State to link evidence of the breach of the VRO concerning A at her place of work, with the offences in question. At ts 606, the following exchange took place, after the prosecutor questioned the appellant about his admitted breach of the interim VRO against A:
This is just another example of you doing what you liked, regardless of everybody else's feelings; isn't that right---That was not the case whatsoever.
And that's what you did with both [A and J] regardless of how they viewed your touching of them, you did touch them on the breasts and vaginal regions, didn't you---I did not - never touch my daughters on the vaginal or the breast area and if there was any incidental contact‑‑‑
The link, if it was made, was very tenuous. He denied the proposition that he was inconsiderate of the feelings of others or that he touched his daughters. This submission has no merit.

Ground 6 ‑ the directions given by his Honour about the VROs

Having dealt with the question of the admissibility of the evidence concerning the VROs, it is convenient to deal with the ground of appeal complaining of the directions his Honour gave in relation to it.
The complaint which the appellant makes is that his Honour allegedly failed to adequately explain to the jury the nature of an interim VRO and to direct the jury to put out of their minds the fact that the order had not been the subject of a final hearing. Further, the appellant submits that his Honour should have told the jury that the only aspect of the evidence which they should take into account was the admitted breaches, and then only for the purposes of judging his character.
The directions which his Honour gave concerning bad character are set out at [131] of these reasons.
The directions accurately summarised the parties' cases on the issue. His Honour told the jury that the State relied on 'the admitted breach' by the appellant. His Honour observed that the State's case was that the commission of the breaches reaffirmed what the State said was the appellant's true character.
His Honour then continued:
You have been told … that that violence restraining order was obtained on an ex parte basis, which means that whether or not it will be made permanent, and if so, what terms or conditions has not yet been decided by the court with [the appellant] being present. You've been told that that hearing will take place in January 2009. In respect of that matter you should put it out of your mind. It is not relevant to your consideration of the counts of which you are considering in this trial (ts 754).
The first part of this direction summarises what defence counsel told the jury in his closing address about the ex parte nature of the VRO obtained against the appellant. His Honour does not use the authority of his office to confirm that a court had not determined on its merits whether a final VRO should be made. It would have been desirable for him to have done so. However, the last two sentences of the direction are instructions to the jury to put 'that matter' out of their minds. The question is what matter his Honour was referring to. Was his Honour referring to the ex parte VRO or was he referring to the hearing which will take place in January 2009? In my opinion, having regard to the paragraph as a whole, his Honour was referring to the ex parte VRO. The effect of his Honour's direction was to instruct the jury that the ex parte basis upon which the order was obtained meant that the making of the order was not relevant evidence in the trial. There is no substance to the submission that his Honour failed to direct the jury to put out of their minds the fact that the order had not been the subject of a final hearing.
His Honour did not tell the jury in explicit terms that it could only take the admitted breaches into account for the purposes of judging the appellant's character. However, he told the jury that the State's case was that the admitted breaches were relevant to character. Having told the jury that the ex parte VROs and the time spent in custody were irrelevant, a reasonable jury would have understood that the only possible relevance of the evidence was with respect to the appellant's character.
Although his Honour's directions could have been fuller, they were sufficient in their treatment of the evidence concerning the VROs and the appellant's breaches of them.
Ground 6 has not been made out.

Ground 2 - admissibility of evidence of an assault on G

This ground complains that his Honour erred in admitting evidence from G, over objection, that the appellant had, on an occasion in 2005, been physically violent towards her.
The evidence the subject of this ground is set out at [80] of these reasons.
The appellant submitted that the evidence was irrelevant, but if it was relevant, it should have been excluded in his Honour's discretion because its prejudicial effect outweighed its probative value.
This submission must be rejected. The evidence, if accepted by the jury, was at least evidence of bad character. It was evidence that rebutted the appellant's case that he had a loving family relationship. Further, A had given evidence that when she was in year 11 or 12 (which would have been in approximately 2005 or 2006), the appellant hit G. That evidence was given without objection and was relevant as part of the evidence which explained why A had not made a prompt complaint about the appellant's alleged sexual abuse. G's evidence that the appellant assaulted her in approximately 2005, and that the children had seen the bruising G sustained, was sufficient for the jury to reasonably link G's evidence with A's testimony. In other words, G's evidence was relevant to the issue of why A had not promptly complained.
The evidence should not have been excluded in his Honour's discretion. Its probative value was not slight. His Honour was correct to admit the evidence.
Ground 2 has not been made out.

Ground 4

This ground complains about the direction that his Honour gave in connection with the evidence of NS. The appellant submits that his Honour's directions with respect to the evidence of NS 'appeared to criticise [that evidence] on the basis that it was not put in cross examination to either complainant nor [G] that NS attended the [S] family home in his capacity as "home teacher"': white AB 28.
The direction complained of is set out at [129] of these reasons.
On a plain reading of his Honour's directions, there is no apparent criticism of the evidence of NS. His Honour pointed out to the jury that neither complainant nor G had been asked in cross‑examination about NS' visits to the family in the role of home teacher. His Honour pointed out that the witnesses were not asked about this and, accordingly, did not have an opportunity to comment on the matter. His Honour's observations were accurate and appropriate.
Ground 4 has not been made out.

Ground 5

His Honour instructed the jury that evidence of good character was relevant to both whether the appellant had committed the offences for which he was charged and to their assessment of the credibility of his evidence. This direction is in accordance with the authorities and was unobjectionable: Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1.
The appellant submitted that the character evidence adduced on his behalf was not only evidence of good character, but it doubled as evidence that the complainants interacted normally with the appellant and were not in fear of him.
The appellant submitted that his Honour should have drawn the jury's attention to this other aspect of the evidence. Counsel contended that by failing to do so, his Honour effectively instructed the jury that they could only use the evidence as evidence of good character and not to rebut the complainants' evidence that they feared the appellant.
This submission must be rejected. The direction given by his Honour, which is at [130] of these reasons, does not in any way limit the jury's consideration of the evidence in the way that the appellant's counsel submitted.
His Honour was not required to give directions about every aspect of the evidence and how it might be applied to the issues the jury had to decide in the case. The issue of the failure of each of A and J to make a recent complaint was the subject of a specific direction by his Honour. In the course of that direction, his Honour fairly put to the jury the defence case on the point. No submission to the contrary was made by the appellant. It would have been obvious to the jury that the defence disputed that the complainants were in fear of their father.
Ground 5 has not been made out.

Ground 7

This ground concerns his Honour's directions about alleged sexual behaviour by the appellant towards A and J, which was not the subject of a particular charge. His Honour referred to this behaviour in his summing up as evidence of uncharged acts. For convenience, I will refer to this evidence in that way, although the term may not always be a helpful one to use when directing a jury: HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 [1].
I observed earlier in these reasons, that the ground was drawn too generally. In argument, the court asked the appellant's counsel to specifically identify the statements or omissions in the direction which were said to be erroneous. Counsel identified three errors.
The first matter was expressed by the appellant's counsel in these terms:
[F]irstly, it ought to have been set out clearly for the jury that the offences with which the [appellant] was charged took place over a lengthy period of time, so there was a broad expanse of time, and there should have been a caution in relation to using these matters temporally, so that, to the extent to which an uncharged matter was considered by the jury to have been proven beyond reasonable doubt, they considered whether or not … how that assisted them, given the time over which these matters were said to have taken place (appeal ts 32).
It is not easy to understand what is meant by this submission. Doing the best I can, the submission seems to be that the jury should have been told (but was not) to consider the temporal relationship between an uncharged act and a particular alleged offence, when deciding whether the uncharged act demonstrated that the appellant, at the time of the offence, harboured a sexual interest towards the complainant.
The second matter raised by counsel was that his Honour should have specified each event said to be an uncharged act.
Finally, counsel contended that the jury should have been specifically warned not to substitute the evidence of uncharged acts with the specific activity which is the subject of the offence charged.
The direction his Honour gave is set out between [125] and [128].
The basis upon which the evidence of uncharged acts was left to the jury, was to demonstrate that the relationship between each complainant and the appellant was not a normal father/daughter relationship and that the appellant had a sexual interest in each complainant.
His Honour's direction made it clear that proof of the uncharged acts, while providing support for the direct testimony of A or J, did not prove the charged offences.
Having regard to the purposes of the evidence, I do not see why the trial judge was required to instruct the jury about the temporal relationship between an uncharged act and a particular alleged offence. This submission has no merit.
The submission that his Honour should have specified each event said to be an uncharged act also has no merit. His Honour was not required to mention all the evidence of the uncharged acts. To do so would have been unnecessary and, in all likelihood, unhelpful to the appellant's case. In relation to A, his Honour referred to the alleged acts of touching committed by the appellant during the incident at Karragullen. In relation to J, he mentioned the incident in the study when she was looking at photographs and the incident in the kitchen. These examples were sufficient to illustrate to the jury the type of conduct said to be uncharged acts.
There is nothing to the submission that the jury should have been specifically warned not to substitute the evidence of other acts with a specific activity which was the subject of an offence. While such a direction is often given, it is not mandatory. When one looks at his Honour's summing up as a whole, it is clear that the jury were directed that they could not convict the appellant of any charge unless they were satisfied that the act said to constitute that charge had been proved beyond reasonable doubt.
Ground 7 has not been made out.

Conclusion on the appeal against conviction

Although the appeal was out of time, it was not grossly so. I would grant an extension of time. None of the grounds of appeal have been made out. I would dismiss the appeal against conviction.

Appeal against sentence

On 19 June 2009, the appellant was sentenced to a total of 4 years' imprisonment backdated to commence on 15 November 2008.
By the time he was sentenced, the appellant spent 434 days in custody on remand prior to being sentenced. [This period was erroneously calculated in the appellant's submissions as 410 days. The period between 11 March and 4 April 2008, although referred to in those submissions, was not counted.]

26 May 2007 to 19 November 2007 (inclusive)

178 days

11 March 2008 to 15 May 2008 (inclusive)

66 days

12 December 2008 to 19 June 2009 (inclusive)

190 days

TOTAL

434 days

The total period spent in custody, attributable only to the principal offences, was 217 days. The balance of time spent in custody, 217 days, was in relation to a combination of the principal offences and the various charges of breaching an interim violence restraining order for which he was acquitted.

Proceedings before the sentencing judge

On 4 June 2009, his Honour took the unusual course after hearing sentencing submissions of indicating the sentence he intended to impose. However, two issues remained unresolved at that stage. For present purposes, the only one which is relevant was how time spent in custody on remand should be treated. His Honour did not formally impose the sentences he indicated. Instead, he remanded the appellant to 19 June 2009 for further submissions.
On 19 June 2009, the appellant's then counsel referred his Honour to Narkle v Hamilton [2008] WASCA 31 and submitted that the entire period the appellant spent in custody on remand should be, as an exercise of discretion, taken into account.
Counsel then appearing for the State submitted that his Honour should only take into account the time the appellant spent in custody on remand for the principal offences. Counsel submitted that the need for retribution, coupled with the appellant's alleged poor prospects of rehabilitation, justified his Honour exercising his discretion not to give the appellant full credit for the time he had spent in custody on remand.
In the end, his Honour only gave the appellant credit for time spent in custody relating solely to the principal offences. He did that by backdating the total sentence of 4 years' imprisonment to commence from 15 November 2008, pursuant to s 87 of the Sentencing Act 1995 (WA). He declined to give the appellant any credit for the remaining period in custody. At blue AB 112, his Honour explained his decision to take this course as follows:
Each case must obviously, to the extent the court exercises its discretion in this regard, depend on the particular facts of the case and the circumstances of the offender. In my view, the proper sentencing disposition is that the [appellant] serve a total effective sentence of imprisonment of four years commencing from 15 November 2008. I am of that view, that this is the appropriate sentence, having regard to the overall criminality of the offending by the [appellant] which occurred over a substantial period of time at a critical stage in the life of the complainants.
In reconsidering the sentencing disposition I have had regard to the matters referred to in paragraph 40 of the judgment of the Court of Appeal in Narkle v Hamilton and have again reflected on the need for personal deterrence, the extent to which the time in custody previously spent by the [appellant] may have resulted in appropriate retribution in relation to these particular offences and, as mentioned on the previous occasion, I am not persuaded that there is any real understanding or acceptance by the offender of the true gravity and impact of his conduct on his own daughters.
So for these reasons the court orders that the term of imprisonment is to be taken as having commenced from 15 November 2008, which in my view is the appropriate sentencing disposition having regard to all of the circumstances and the overall criminality of the [appellant's] conduct in this matter.

Appeal to this court

The appellant's counsel submitted that all of the time spent on remand should have been taken into account by his Honour. It was submitted that his Honour should have, in fairness, not only backdated the 217 days spent on remand in relation to the principal offences, but reduced the total sentence by the days spent on remand for the principal offences and the offences of breach of an interim violence restraining order.
Counsel for the respondent submitted that it was difficult to see why the time the appellant had spent on remand in custody for the principal offences and the allegations of breach of the interim violence restraining orders should not, in fairness, have been taken into account. Although counsel's concession does not bind this court, it is a concession which, in my opinion, was properly made.
The law in this State is that a court has a general power to take into account time spent in custody, including on remand, in the exercise of its sentencing discretion. It is for the court to decide, having regard to the circumstances of the case, whether credit will be given for time spent in custody and, if so, how much credit will be given.
Section 87 of the Sentencing Act is neither the source of the court's power to take into account time spent in custody on remand, nor does it impose any express or implied limitation on the court's general power. Section 87 is facilitative in that it enables a court which has resolved to use its power to backdate or reduce the sentence: Narkle v Hamilton [30], [31] and [40]. However, s 87 in its terms states that a primary court's power to backdate a sentence of immediate imprisonment can only be exercised if the time spent in custody is in respect of the offence under sentence and for no other reason. Therefore, if a court decides to take into account time spent in custody for other reasons, the court may reduce the length of the custodial sentence to be imposed. In some cases, the time in custody may be such as to justify a disposition other than immediate imprisonment. For example, where the sentence that would have otherwise been imposed is commensurate with or less than the time spent in custody.
In the present case, it is not alleged by the appellant that his Honour made any express error of law, rather it is submitted that his sentencing discretion miscarried.
An appeal of a discretionary decision is governed by the well known principles set out in House v The King (1936) 55 CLR 499, 504 ‑ 505 where it was said by Dixon, Evatt and McTiernan JJ:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In my opinion, this is a case where the decision not to give the appellant full credit for the time spent in custody on remand, with great respect to his Honour, was unjust.
The appellant, having been acquitted of all relevant charges of breaching a violence restraining order was, to adapt the words used in Narkle v Hamilton at [44], in no different position than that in which he would have been had he been remanded in custody solely in respect of the principal offences. Ordinarily, in such a case, full credit is given to time spent in custody.
Once his Honour decided to give him credit for the time spent on remand solely for the principal offences, I can see no reason why, in fairness, the time spent in custody for all practical purposes for those other offences should not have been taken into account. I do not think that any lack of insight or remorse on the part of the appellant would, in this case, justify a failure to give the appellant full credit for the time he had spent in custody on remand. These were matters that his Honour had already taken into account when he decided the appropriate sentences on 4 June 2009: blue AB 59.
For these reasons, I was of the opinion that the extension of time to appeal should be granted and the appeal allowed. The appellant did not seek an order setting aside any of the sentences imposed by his Honour. Rather, the appellant sought a variation of the orders made by his Honour to take into account all of the time spent in custody on remand.
Section 41(3) of the Criminal Appeals Act provides:
If under this Act an appeal court decides to vary a sentence, it may do one or more of the following -
(a)vary the sentence as imposed;
(b)impose a different sentence involving a different sentencing option;
(c)order that the sentence is to be taken to have taken effect on a date before the date of the order;
(d)order that the sentence is to take effect on a date on or after the date of the order.
In my opinion, it was appropriate to make an order under s 41(3)(c) of the Criminal Appeals Act, to, in effect, backdate the commencement of the sentence.

Orders

With respect to the appeal against conviction, I would make the following orders:
(1)The application for an extension of time to appeal is granted; and
(2)The appeal is dismissed.
The precise orders that were made on 28 September 2010, in relation to the appeal against sentence, were:
(1)An extension of time to appeal is granted.
(2)Leave to appeal is granted.
(3)The appeal is allowed.
(4)The sentences imposed on 19 June 2009 are varied to the extent that they are to be taken to have taken effect from 11 April 2008.

11 March 2008 to 15 May 2008 (inclusive)	66 days
12 December 2008 to 19 June 2009 (inclusive)	190 days
TOTAL	434 days