Morgan v The State of Western Australia

[2011] WASCA 185

MORGAN -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 185

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASCA 185
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:87/2010	Heard:	21 JUNE 2011
Coram:	McLURE P PULLIN JA HALL J	Delivered:	8/09/11
No of pages:	55	Judgment Part:	1 of 1
Result:	CACR 87 of 2010 : Leave to appeal on ground 4 allowed Leave to appeal on grounds 2, 3 and 5 refused Grounds of appeal 1 and 4 dismissed CACR 116 of 2010 : Leave to appeal on grounds 2 and 3 refused Ground of appeal 1 dismissed
Category:	A
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Parties:	DERAN JOHN MORGAN THE STATE OF WESTERN AUSTRALIA SHIRLEY ANN VERONICA BULSEY
Catchwords:	Criminal law Whether verdicts unreasonable or could not be supported having regard to the evidence Whether there was a misdirection concerning the use of propensity evidence Whether a corroboration warning should have been given Whether leave should be given to adduce fresh evidence
Legislation:	Criminal Code (WA), s 320(2), s 320(4), s 321(2), s 321(3), s 321(4) Criminal Appeals Act 2004 (WA), s30(3)(a), s 30(4) Evidence Act 1906 (WA), s 31A, s 50
Case References:	Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 Beamish v The Queen [2005] WASCA 62 Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315 CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521 Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432 Coffman v The Queen [2010] WASCA 54 Darkan v The Queen (2006) 227 CLR 373 DPJB v The State of Western Australia [2010] WASCA 12 Dumoo v Garner (1998) 7 NTLR 129 Evans v The State of Western Australia [2011] WASCA 182 FGC v The State of Western Australia [2008] WASCA 47; (2008) 183 A Crim R 313 Kemp v The King [1951] HCA 39; (1951) 83 CLR 341 Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659 Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359 R v Nguyen [2010] HCA 38; (2010) 271 ACR 493 R v Storey [1978] HCA 39; (1978) 140 CLR 364 R v Young (1998) 1 VR 402 Riley v The State of Western Australia [2007] WASCA 22 SKA v The Queen [2009] NSWCCA 186 SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571 Stack v The State of Western Australia [2004] WASCA 300; (2004) 29 WAR 526 Suvaal v Cessnock City Council [2003] HCA 41; (2003) 200 ALR 1 Warren v Coombes [1975] HCA 9; (1979) 142 CLR 531 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 White v The Queen [2006] WASCA 62

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MORGAN -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 185 CORAM : McLURE P

PULLIN JA
HALL J

HEARD : 21 JUNE 2011 DELIVERED : 8 SEPTEMBER 2011 FILE NO/S : CACR 87 of 2010 BETWEEN : DERAN JOHN MORGAN

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

FILE NO/S : CACR 116 of 2010 BETWEEN : SHIRLEY ANN VERONICA BULSEY

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

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ON APPEAL FROM:

For File No : CACR 87 of 2010

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : STAVRIANOU DCJ

File No : IND KUN 11 of 2009

For File No : CACR 116 of 2010

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : STAVRIANOU DCJ

File No : IND KUN 11 of 2009

Catchwords:

Criminal law - Whether verdicts unreasonable or could not be supported having regard to the evidence - Whether there was a misdirection concerning the use of propensity evidence - Whether a corroboration warning should have been given - Whether leave should be given to adduce fresh evidence

Legislation:

Criminal Code (WA), s 320(2), s 320(4), s 321(2), s 321(3), s 321(4)

Criminal Appeals Act2004 (WA), s30(3)(a), s 30(4)
Evidence Act 1906 (WA), s 31A, s 50

Result:

CACR 87 of 2010 :

Leave to appeal on ground 4 allowed
Leave to appeal on grounds 2, 3 and 5 refused
Grounds of appeal 1 and 4 dismissed

CACR 116 of 2010 :
Leave to appeal on grounds 2 and 3 refused
Ground of appeal 1 dismissed

(Page 3)

Category: A

Representation:

CACR 87 of 2010

Counsel:

Appellant : Mr R W Richardson
Respondent : Ms A J Burrows

Solicitors:

Appellant : Aboriginal Legal Service (WA)
Respondent : Director of Public Prosecutions (WA)

CACR 116 of 2010

Counsel:

Appellant : Mr C L J Miocevich
Respondent : Ms A J Burrows

Solicitors:

Appellant : Aboriginal Legal Service (WA)
Respondent : Director of Public Prosecutions (WA)

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

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Beamish v The Queen [2005] WASCA 62
Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315
CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172
Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521
Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432
Coffman v The Queen [2010] WASCA 54
Darkan v The Queen (2006) 227 CLR 373
DPJB v The State of Western Australia [2010] WASCA 12
Dumoo v Garner (1998) 7 NTLR 129
Evans v The State of Western Australia [2011] WASCA 182

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FGC v The State of Western Australia [2008] WASCA 47; (2008) 183 A Crim R 313
Kemp v The King [1951] HCA 39; (1951) 83 CLR 341
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359
R v Nguyen [2010] HCA 38; (2010) 271 ACR 493
R v Storey [1978] HCA 39; (1978) 140 CLR 364
R v Young (1998) 1 VR 402
Riley v The State of Western Australia [2007] WASCA 22
SKA v The Queen [2009] NSWCCA 186
SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571
Stack v The State of Western Australia [2004] WASCA 300; (2004) 29 WAR 526
Suvaal v Cessnock City Council [2003] HCA 41; (2003) 200 ALR 1
Warren v Coombes [1975] HCA 9; (1979) 142 CLR 531
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
White v The Queen [2006] WASCA 62


(Page 5)

1 McLURE P: I agree with the orders proposed by Pullin JA. As much of the factual background has been provided, I can state my reasons quite shortly.

Ground 1 in both appeals

2 The appellants contend that the guilty verdicts against them are, having regard to the whole of the evidence, unreasonable or cannot be supported. The principles relating to the proper construction and application of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) have been stated by the High Court: M v The Queen (1994) 181 CLR 487, 492 - 493. M v The Queen was explained by Hayne J in Libke v The Queen (2007) 230 CLR 559. After noting that the evidence adduced at the trial in that case did not all point to the appellant's guilt, Hayne J continued:

But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard [113]. (original emphasis)

3 It is clear from this explanation that the task of an appellate court under s 30(3)(a) is not to form, and act upon, its own assessment as to the verdict it would reach. That remains the position even if this court is in as good a position to weigh and assess the facts as the jury. Contrast that with this court's role in a civil appeal: Warren v Coombes (1979) 142 CLR 531; Evans v The State of Western Australia [2011] WASCA 182.

4 Further, I am not persuaded that this court's role under s 30(3)(a) is the same in all respects as the task it is required to perform when determining whether an error of law or miscarriage of justice has actually occasioned a substantial miscarriage of justice under s 30(4) of the Criminal Appeals Act. The High Court has made it clear that an intermediate appellate court cannot conclude there was no substantial miscarriage of justice unless it is satisfied (as a necessary but not always sufficient condition) that the evidence admitted at trial proved beyond reasonable doubt the accused's guilt of the offence on which the jury returned its verdict: Weiss v The Queen (2005) 224 CLR 300 [44]; Darkan v The Queen (2006) 227 CLR 373 [84], [94] - [96]. Where the irregularity is material, the appellate court must first weigh all the evidence and be positively satisfied of the accused's guilt before concluding that there was no substantial miscarriage of justice. However,

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that is not a necessary condition for rejection of a claim that a verdict is unsafe or unsatisfactory. The basis for the distinction in the intermediate appellate court's roles may be traced to the differing consequences of the exercise of the functions. If this court applies the proviso, the jury's verdict will be upheld notwithstanding an error or irregularity in the conduct of the trial. By contrast, a conclusion by this court that a jury verdict is unreasonable or not supported by the evidence results in that verdict being set aside and ordinarily, the entry by the court of a verdict of acquittal.

5 The jury in this case deliberated for 13 hours before delivering its unanimous verdicts. Most of the complainants' evidence was read to them again after they retired.

6 The male appellant was found guilty on counts 1 - 12 and 17 - 20, all of which related to the complainant ABC. The offences the subject of counts 1 - 6 occurred when ABC was under 13 years and the others occurred when she was under 16 years. The real issue in the trial was whether the sexual conduct occurred when ABC (and SBG) were relevantly 'underage'. Two matters were primarily relied on as undermining the reliability of the evidence of ABC, being her evidence connecting the time at which some of the offences were committed with first, the appellants' occupation of their 'new house' and secondly, the age of one of the appellants' children, Shania.

7 It was accepted by the parties that the appellants' new house was not practically complete until December 2002. At that time, ABC was nearly 21 years old and the mother of two children, then aged 2 1/2 years and 1 year.

8 There is an internal contradiction in ABC's evidence. In particular, ABC's evidence as to her age, and that she was at school, when the offences were committed is inconsistent with her evidence that counts 13 - 16 at the Marsh occurred after the appellants had moved into the new house and that counts 17 - 20 at Donald Crossing occurred after the Marsh offences.

9 The internal contradiction was never put to ABC for an explanation. As there was no challenge to the honesty of ABC (or SBG) the contradiction can only go to reliability. ABC had lived with her grandmother until she moved in with her partner, Shane, in 1997 (according to ABC) or 1998 or 1999 (according to Shane). Save for count 21, of which the male appellant was acquitted, the offences were

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said to have occurred before she moved in with Shane. ABC turned 16 on 27 January 1998, nearly five years before practical completion of the new house in December 2002, by which time her personal circumstances had dramatically changed. It offends common sense to suggest that she was mistaken in her recollection that the offences occurred whilst she was at school if in fact they occurred when she was in her 20s, had been living with Shane for around five years and had two children. The jury must have accepted that ABC was mistaken about when the appellants moved to the new house. That was the obvious, logical and compelling conclusion on the evidence as a whole.

10 The contradiction based on ABC's evidence about the age of the appellant's child Shania is even less significant. Shania was born on 11 November 1998, some 10 months after the latest date on which the offences against ABC were allegedly committed. The appellants had another daughter (Livinia) living with them who was born on 6 February 1994. The way the evidence on the matter was elicited in cross-examination reduced the weight to be given to it for the reasons explained by Pullin JA. Moreover, there is nothing in the evidence to explain why ABC, a child under 16, would be expected to have a reliable recollection of the age or stages of development of the appellants' children.

11 It was open to the jury as a matter of fact to be satisfied of the guilt of the male appellant beyond reasonable doubt notwithstanding the internal contradictions in ABC's evidence whether viewed individually or collectively. There were other matters on which ABC was shown to have a faulty recollection, such as the birth dates of her children. However, they do not advance the male appellant's claim.

12 The male appellant also claims that the guilty verdicts on counts 1 - 12 and 17 - 20 are inconsistent with the not guilty verdicts on counts 13 - 16 and 21. The legal principles relating to inconsistent verdicts are not in dispute: see DPJB v The State of Western Australia [2010] WASCA 12; Riley v The State of Western Australia [2007] WASCA 22. For convenience, I repeat the summary from DPJB at [8] - [10]:

The appellant has to satisfy the court that the verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their minds properly to the facts in the case could have arrived at the conclusion: MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, 366. If there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their

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functions as required, the verdicts will not be inconsistent in the relevant sense: MacKenzie (367). In essence, the question is whether the different verdicts in the case represent an affront to logic and common sense.

Where multiple offences are alleged involving one complainant, verdicts of not guilty on some counts do not necessarily reflect a view that the complainant was untruthful or unreliable or reflect a want of confidence in the evidence of the complainant. A verdict of not guilty may reflect a cautious approach by the jury to the discharge of a heavy responsibility. For example, supporting evidence may be sought or the complainant may have shown some uncertainty as to matters of detail or been shown to have a faulty recollection on some matters but not others. The significance of a verdict of not guilty must be considered in light of the facts and circumstances of each case.

Further, verdicts might be explicable on the basis that one or more of them is merciful or that they accord with the juror's innate sense of fairness and justice: MacKenzie (367); MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 [34]; Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 [71].

13 The male appellant contends that the jury's failure to be satisfied beyond reasonable doubt in relation to counts 13 - 16 was solely attributable to ABC's evidence that the offences were committed after the appellants moved to the new house. I do not accept that submission. Counts 13 - 16 were the only counts in which it was alleged that both appellants jointly committed offences against ABC. The offences involved an isolated incident with the female appellant playing an active and independent role in the joint offending. The nature and extent of the female appellant's participation in the alleged offences is in sharp contrast with the limited and facilitative role she played in the joint offences committed against SBG. Essentially, the female appellant's role was to facilitate the offences committed by the male appellant against SBG.

14 The verdict of not guilty in relation to count 21, which ABC said took place after she had moved in with Shane, can be explained by Shane's evidence that ABC moved in with him in 1998 or 1999 and thus when she was over the age of 16.

15 The different verdicts can be reconciled in the ways indicated and do not represent an affront to logic and common sense. The verdicts of not guilty are not inconsistent with the jury having been properly satisfied beyond reasonable doubt of the truthfulness and reliability of ABC's evidence, resulting in the 16 convictions.

(Page 9)

16 Counts 22 - 31 in the indictment related to the complainant SBG. Count 22 alleged digital penetration by the male appellant when SBG was under the age of 13 years. Count 22 is referred to as the 'Warden's incident' because the evidence was that she was taken to the Warden's office to make a complaint about a sexual assault by two boys. The remaining charges were made jointly against both appellants and were alleged to have occurred when SBG was of or over the age of 13 and under the age of 16 years. The trial judge upheld a no case submission in relation to offences alleged to have been committed at Donald Crossing (counts 25 - 26) and at the Marsh (counts 27 - 29). Verdicts of acquittal were entered on these charges because SBG had been unable to recall how old she was when the sexual conduct occurred or whether she was at school.

17 SBG was born on 29 May 1983. SBG's school reports confirm that she was in year 6 in 1994, year 7 in 1995, year 8 in 1996, year 9 in 1997 and year 10 in 1998.

18 The matters on which the male appellant relies to challenge the guilty verdicts are broadly summarised as follows. The male appellant contends that: SBG's evidence about the Warden's incident was unreliable for a multitude of reasons including the fact that she could not remember how old she was at the time or what grade she was in at school; she said she was interviewed by police but there was no record to corroborate that evidence; she told police in September 2008 that apart from the Warden's incident, this was the first time she had told police anything about what had happened to her of a sexual nature in Oombulgurri when in fact she had made a complaint against her father and another person in 2005 which she subsequently withdrew; and there was no evidence as to when the appellants arrived in Oombulgurri. The male appellant also relies on the fact that SBG was not sure of her age at the time of the commission of counts 23 - 24 (at Sandy Creek) and that her evidence on the timing of the offences in general was inconsistent with her evidence relating to the ages of the appellant's children.

19 The female appellant was convicted on counts 23 - 24 (committed at Sandy Creek), and 30 - 31 (committed at Alison Crossing). There was a directed acquittal on the counts said to have occurred at Donald Crossing and at the Marsh (counts 25 - 29). The female appellant relies on the absence of evidence as to why SBG could recall being at school at the time of the Sandy Creek and Alison Crossing incidents but not when the Donald Crossing or Marsh incidents occurred; SBG could not give evidence as to the order in which the incidents occurred; she did not give

(Page 10)

evidence as to the grade she was in when the incidents occurred save that she said she might have been in year 9 in relation to the Sandy Creek incident but could not say why she thought that; SBG's evidence as to the ages of the appellants' children at the time of the offences; SBG said she probably went to Darwin in June 2000 and that all the offences happened roughly within 12 months before that (which meant she had to be over 16 years); SBG did not complain until approximately 10 years after the events the subject of the convictions and she accepted in cross-examination that she suffered 'flashbacks'.

20 The matters relied on by the appellants, individually and collectively, do not require a conclusion that the jury must have entertained a doubt about the appellants' guilt on counts 22 - 24 and 30 - 31. SBG's evidence was that the Warden's incident occurred probably in year 7 when she was 12. She also said it occurred during her first year of school in Oombulgurri. She commenced school at Oombulgurri in year 6 in 1994 when she was aged 11. Her evidence was that all of the incidents occurred whilst she was still at school (and thus under the age of 16 years). She commenced CDEP when she was 16 and gave evidence that the events the subject of the charges did not occur when she was on CDEP. SBG's contact with the male appellant during the offending period was in his capacity as Warden of the community, the duties of which included rounding up children to take them to school and overseeing the performance by students of disciplinary action (including collecting rubbish after school). The school records show significant levels of non-attendance by SBG from time to time.

21 The strong impression conveyed in the evidence of both complainants is that they accepted or acquiesced in the offending conduct against them. That offending occurred in the context of them consuming alcohol supplied by one or both of the appellants as the case may be. I do not intend these observations as a criticism of the complainants but of the adults responsible for their welfare. But the point is that the jury could be satisfied that they were particularly vulnerable to conduct of the kind in issue at an early age. It is but a small step to accept (as I do) the reliability of their evidence that they were at school when all the offences occurred. Confusion about peripheral matters is to be expected, particularly in the dysfunctional life glimpsed in their evidence.

Ground 2 of the Morgan appeal

22 The male appellant sought leave in the appeal to adduce the evidence given by ABC in cross-examination during the subsequent trial of the

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appellant and Floyd Grant in KUN 59 of 2009 (the second trial). The counts in KUN 59 of 2009 were originally part of indictment KUN 11 of 2009 but were severed.

23 ABC's evidence-in-chief in the second trial included her pre-recorded evidence in the trial of the counts in KUN 11 of 2009 (the first trial) save for all references in that evidence to the 'new house' and to the counts on which the male appellant was acquitted.

24 The appeal was conducted by the parties on the basis that the only relevant questions are whether the evidence is fresh or new and whether the test for establishing a miscarriage of justice has been satisfied. Fresh evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered. Where evidence is fresh, the test for establishing a miscarriage of justice is whether the appellant has established that there is a significant possibility that, in light of all the admissible evidence, including that given at the trial, a jury, acting reasonably, would have acquitted him. New evidence is evidence which was available at the trial or which could, with reasonable diligence, have been discovered. New evidence will not give rise to a miscarriage of justice unless the appellant establishes that he should not have been convicted: Beamish v The Queen [2005] WASCA 62 [8] - [15].

25 Little attention was given to what is the allegedly new or fresh evidence. It could be either the relevant subject matters on which ABC was cross-examined in the second trial or ABC's evidence itself in the second trial. If it is the former, the evidence would be new and, if the latter, the evidence would be fresh. There are also additional public policy considerations in a case such as this where the springboard for the cross-examination in the second trial was ABC's evidence in the first trial. The male appellant has had a 'second bite at the cherry' as a result of the severance of charges against him which prima facie could and, but for the prejudice to Mr Grant, should have been heard together. The focus of cross-examination (more structured and forensic the second time around) was on the appellants' new house and matters relating to the appellants' children.

26 The male appellant (and his co-accused) were acquitted on all counts in the second trial. A review of the cross-examination of ABC in the second trial reflects the same internal contradictions as were apparent in the trial of the charges the subject of KUN 11 of 2009. Yet again, the internal contradictions were not put to ABC for an explanation. ABC did

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not recant on her evidence given at the first trial that she was at school when the relevant offences were committed and was under the relevant statutory minimum age. In those circumstances, the male appellant is required to establish with sufficient cogency the actual unreliability of ABC's evidence relating to the offences of which he was convicted (White v The Queen [2006] WASCA 62; Coffman v The Queen [2010] WASCA 54) which cannot be done without hearing her explanation as to the contradictions. Forensic success in the second trial falls well short of the mark. The male appellant has failed to establish a miscarriage of justice whether the material be categorised as fresh or new.

Ground 4 of the Morgan appeal/ground 2 of the Bulsey appeal

27 I am not persuaded that the trial judge misdirected the jury as to the use that could be made of the evidence relating to counts 25 - 29 on which there were directed verdicts of acquittal. That evidence was relevant to the appellants' sexual interest in the complainants. However, it could not be relied on to establish that the remaining counts in issue were committed when the complainants were under the age of 16 or 13 as the case may be. I do not think a reasonable jury would understand the trial judge's direction as permitting the latter.

28 The jury had been informed by the trial judge and the appellants' counsel that the directed acquittals resulted from SBG's evidence that she could not remember how old she was, or whether or not she was still at school, at the time of the offences (ts 288, 450).

29 The trial judge's direction is set out in the judgment of Pullin JA and need not be repeated. Leading up to the passages complained of, the trial judge directed the jury that the State relied on all of the remaining charges against both appellants to show 'that the accused had a tendency to sexual assault young children and a preparedness to have sex with a young girl in the presence of another adult' (ts 285). The trial judge then identified the particular matters which did not fall within that category, including ABC's evidence of uncharged acts, SBG's evidence on counts 25 - 29 and ABC's evidence relating to charges solely against the male appellant. After referring to the verdicts on counts 25 - 29 the trial judge then talked of 'the evidence of the other alleged sexual activity' which is a reference back to the State's proposition about the remaining charges. Viewed in context, I am not persuaded that the jury may have believed they could rely on the evidence relating to counts 25 - 29 to establish that the appellants had a tendency to sexually assault children under 16. I am fortified in that view

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by the failure of experienced counsel for the appellants to identify it as an issue requiring a redirection.

30 However, if I am wrong in that assessment, I agree with Pullin JA based on my review of the evidence as a whole that there has been no substantial miscarriage of justice.

Remaining grounds

31 I would dismiss grounds 3 and 5 of the male appellant's appeal and ground 3 of the female appellant's appeal for the reasons given by Pullin JA. I note for the record that in addition to a Longman warning, the trial judge expressly directed the jury that there were no separate witnesses as to the dates when the alleged events occurred and that they had to be satisfied beyond reasonable doubt about the truthfulness, accuracy and reliability of the complainants' evidence which they should scrutinise with special care (ts 289).

32 PULLIN JA: This is an appeal against conviction by the appellants Morgan and Bulsey. The appellant Morgan was convicted of 21 sex offences against two female children (ABC and SBG) while they were either under 16 years of age or under 13. Bulsey was convicted of four sex offences against one of the children.

33 They were charged on indictment with other offences of which they were found not guilty. The circumstances of the charges on which they were found not guilty remain important because of certain grounds of appeal. Verbatim details of the indictment are set out later in the reasons.

Summary of the charges

34 In summary, Morgan was charged with:

(a) 21 offences against the complainant ABC. He was found not guilty on five of them. On four of those charges, Morgan had been charged jointly with Bulsey. She was also found not guilty on those charges. Morgan was convicted of the remaining 16 charges against ABC;

(b) 10 offences against the second complainant SBG. A no case submission in relation to five charges was upheld and not guilty verdicts entered by the trial judge in relation to them. Of the latter five charges, all were charges on which Morgan was charged jointly with Bulsey. Morgan was convicted of the remaining five charges against SBG.

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35 As to Bulsey, she was charged with:

(a) four offences against ABC (jointly with Morgan) and as mentioned above, she was found not guilty on all those charges;

(b) nine offences against SBG. She was found not guilty by the trial judge after a successful no case submission on five of those charges. She was convicted by a jury of the remaining four charges against SBG.

36 The offences of which the appellants were convicted and the incidents involved in the charges of which the appellants were found not guilty, were all committed or occurred at or near a remote Aboriginal community in the Kimberley, in the north of Western Australia. The community was accessible by a short air flight from Wyndham but the road journey from any other centre of population took many hours and at certain times of the year the road was impassable. The community consisted of a small group of houses, infrastructure buildings and a school. There was no police station.

37 The evidence revealed that at the time of the offences the appellant Morgan was the head warden at the community. The duties of the warden included ensuring that children attended school. If the children misbehaved at school, the duties included allocating and supervising community work to be performed by the children after school. The warden had an office in an administrative building which also contained a conference room. During material times, Morgan drove a vehicle which was referred to by witnesses as a 'troop carrier'.

38 The two complainants did not turn 16 before they left the school. That is not in dispute. In relation to some of the offences, the evidence of each was that at the time when the complainants were still attending school and were therefore under 16, the appellant Morgan would pick one or the other of them up in the troop carrier, take the complainant to a location outside the settlement, provide her with alcohol and cigarettes and then indecently deal with, or sexually penetrate her. There were some occasions where the complainants gave evidence that the sexual conduct occurred in the settlement itself. In relation to some of the sexual conduct by Morgan, the complainants gave evidence that it occurred when they were under 13 years of age. The evidence of such conduct resulted in charges under s 320(2) or (4) of the Criminal Code (WA) (sexual penetration of a child under the age of 13 or indecently dealing with a child under the age of 13). In respect of the other offences, the

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complainants could only say that the conduct occurred while they were still at school and as a result the appellants were charged with offences under s 321(2), (3) or (4) (sexual penetration or procuring a child to engage in sexual behaviour or indecent dealing with a child over 13 but under 16 years of age).

39 Neither of the appellants gave evidence. The no case submission in relation to the five charges concerning SBG was upheld because SBG did not give evidence of how old she was, or that she was at school when the sexual conduct occurred. The evidence of what was done to her in relation to those matters, however, remained relevant because it was propensity evidence admissible to show that the appellants had a sexual interest in SBG.

40 One of the tactics adopted by counsel for each appellant at trial was to identify events which could be proven to have occurred after the complainants turned 16 and then to elicit or seek to elicit evidence from the complainants to support a submission that the sexual conduct occurred after those events.

41 For example, the appellants cross-examined ABC to establish that certain of the offences against ABC occurred after the appellants shifted into a new house at the settlement. It was not in issue that the construction of the new house occurred many years after ABC turned 16. However, ABC was insistent in her evidence that the offences occurred when she was at school and therefore under 16. That contradiction was a matter for the jury and now for this court to weigh up and consider.

Dates of relevant events

42 The dates of events which were relevant were as follows:

(a) ABC - date of birth 27 January 1982;

(b) SBG - date of birth 29 May 1983;

(c) dates of birth of the appellants' children:


• Livina - 6 February 1994;
• Desmond - 12 April 1995;
• Shania - 11 November 1998;
• Bronson - 7 May 1990;
• Douglas - 2 February 1992;

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(d) dates of birth of children of ABC:

• E - 17 August 2000;
• T - 24 November 2001;
(e) date of construction of appellants' new house - practical completion 20 December 2002.

The history of proceedings

43 It is also important for the proper understanding of issues in relation to certain grounds of appeal, to state the history of the proceedings. It was as follows:

(a) on 15, 16 and 17 September 2009, a witness MM, gave evidence before Goetze DCJ at Kununurra which was recorded on DVD. MM gave evidence that she witnessed the sexual activity which was the subject of some of the charges concerning the complainant ABC. The evidence recorded consisted of the evidence-in-chief and cross-examination by counsel for both complainants. The DVD of this evidence was edited and played to the jury at the trial;

(b) on 5 and 6 October 2009, ABC gave evidence before Stone DCJ. Her evidence-in-chief, cross-examination and re-examination was also recorded on DVD. This was played to the jury at the trial;

(c) on 7 October 2009, SBG gave some evidence in examination-in-chief before Stone DCJ. The examination was aborted because SBG was unable to continue because she appeared distressed and worried about one of her children who was in hospital. The evidence was recorded on DVD. It was edited and played to the jury at trial;

(d) on 9 November 2009, the trial of the two appellants and another person jointly charged with them, FG, was listed for hearing. At the time, the indictment contained many more charges than those referred to in the indictment below. It was planned at the trial that SBG would give her remaining evidence in person. However, for reasons not now relevant, the trial was adjourned but it was agreed that SBG's evidence should be taken and recorded on DVD. Thus, on 12 November 2009, SBG gave the remainder of her evidence. She was examined and cross-examined by counsel for Morgan. Counsel for Bulsey was present but elected not to cross-examine.

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She was re-examined by counsel for the prosecution. The DVD was edited and played to the jury at the trial;

(e) on 1 December 2009, a fresh indictment was presented in its final form. This was the indictment which contained the 31 counts against the appellants which are set out below. A judge ordered that the charges in which FG had been jointly charged with Morgan should be the subject of a separate trial. Those charges were incorporated into a new indictment numbered KUN 59 of 2009. The DVD recording of the evidence of the complainants was edited to delete evidence relating to the charges concerning FG together with Morgan. The edited DVDs were those played to the jury in the trial in KUN 11 of 2009;

(f) on 16 February 2010 the trial of Morgan and Bulsey on indictment KUN 11 of 2009 commenced. The trial was conducted in Perth before Stavrianou DCJ. The verdicts and convictions recorded are set out at [34]. The sentencing of Morgan and Bulsey was adjourned until after the trial of the severed counts involving FG and Morgan which were presented in a new indictment numbered KUN 59 of 2009;

(g) on 10 March 2010, in relation to the proceedings KUN 59 of 2009, the State brought an application before Martino DCJ (as his Honour then was) to adduce 'propensity/relationship' evidence against Morgan from ABC in the form of the pre-recorded evidence given by ABC in October 2009. An order was made by Martino DCJ permitting this to occur subject to some editing.

(h) on 18 March 2010 the trial of FG and Morgan on indictment KUN 59 of 2009 took place. Counsel for Morgan was granted leave to further cross-examine ABC. The transcript of this cross-examination is relied on by Morgan as providing fresh evidence to support one of his grounds of appeal;

(i) on 12 May 2010 a victim impact statement of SBG was made available to the appellants. Some of the information in that document is relied on as providing fresh evidence to support another ground of appeal.

The indictment

44 The indictment against the appellants in KUN 11 of 2009 read:

(Page 18)

(1) On an unknown date between 27 January 1994 and 26 January 1995 at Deran Morgan's old house at [the settlement] Deran John Morgan indecently dealt with [ABC] … a child under the age of 13 years, by touching her vagina.

(2) On the same date and at the same place as Count (1) Deran John Morgan sexually penetrated [ABC], a child under the age of 13 years, by penetrating her vagina with his finger.


******

(3) On another unknown date between 27 January 1994 and 26 January 1995 at the gravel pit at [the settlement] Deran John Morgan indecently dealt with [ABC], a child under the age of 13 years, by touching her breast.

(4) On the same date and at the same place as count (3) Deran John Morgan sexually penetrated [ABC], a child under the age of 13 years, by penetrating her vagina with his fingers.

(5) On the same date and at the same place as count (3) Deran John Morgan indecently dealt with [ABC], a child under the age of 13 years, by touching her breasts with his mouth.

(6) On the same date and at the same place as count (3) Deran John Morgan sexually penetrated [ABC], a child under the age of 13 years, by penetrating her vagina with his penis.


******

(7) On another unknown date between 27 January 1995 and 26 January 1996 at old barge landing at [the settlement] Deran John Morgan indecently dealt with [ABC], a child of or over the age of 13 years and under the age of 16 years, by touching her breasts.

(8) On the same date and at the same place as count (7) Deran John Morgan sexually penetrated [ABC], a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his finger.

(9) On the same date and at the same place as count (7) Deran John Morgan sexually penetrated [ABC], a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his penis.


******

(10) On another unknown date between 27 January 1995 and 26 January 1996 at the tap at [the settlement] Deran John Morgan sexually penetrated [ABC], a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his finger.

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(11) On the same date and at the same place as count (10) Deran John Morgan sexually penetrated [ABC], a child of or over the age of 13 years and under the age of 16 years, by introducing his penis into her mouth.

(12) On the same date and at the same place as count (10) Deran John Morgan sexually penetrated [ABC], a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his penis.


******

(13) On another unknown date between 27 January 1995 and 26 January 1997 at the marsh area near [the settlement] Deran John Morgan and Shirley Ann Veronica Bulsey indecently dealt with [ABC], a child of or over the age of 13 years and under the age of 16 years, by Deran John Morgan introducing his penis into the mouth of Shirley Ann Veronica Bulsey in the presence of [ABC].

(14) On the same date and at the same place as Count (13) Deran John Morgan and Shirley Ann Veronica Bulsey sexually penetrated [ABC], a child of or over the age of 13 years and under the age of 16 years, by Deran John Morgan introducing his penis into her mouth.

(15) On the same date and at the same place as Count (13) Deran John Morgan and Shirley Ann Veronica Bulsey encouraged [ABC], a child of or over the age of 13 years and under the age of 16 years, to engage in sexual behaviour by [ABC] performing cunnilingus upon Shirley Ann Veronica Bulsey.

(16) On the same date and at the same place as Count (13) Deran John Morgan and Shirley Ann Veronica Bulsey sexually penetrated [ABC], a child of or over the age of 13 years and under the age of 16 years, by Deran John Morgan penetrating her vagina with his penis.


******

(17) On another unknown date between 27 January 1996 and 26 January 1998 at Donald Crossing via [the settlement] Deran John Morgan indecently dealt with [ABC], a child of or over the age of 13 years and under the age of 16 years, by touching her vagina.

(18) On the same date and at the same place as Count (17) Deran John Morgan sexually penetrated [ABC], a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his finger.

(19) On the same date and at the same place as count (17) Deran John Morgan sexually penetrated [ABC], a child of or over the age of

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13 years and under the age of 16 years, by penetrating her vagina with his penis.

(20) On the same date and at the same place as Count (17) Deran John Morgan again sexually penetrated [ABC], a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his penis.

******

(21) On another unknown date between 27 January 1997 and 26 January 1998 at [the settlement] Deran John Morgan indecently dealt with [ABC], a child of or over the age of 13 years and under the age of 16 years, by putting his hand down her trousers.

******

(22) On another unknown date between 29 May 1995 and 28 May 1996 at the warden's office at [the settlement] Deran John Morgan sexually penetrated [SBG], a child under the age of 13 years, by penetrating her vagina with his fingers.

******

(23) On another unknown date between 29 May 1997 and 28 May 1999 at Sandy Creek via [the settlement] Deran John Morgan and Shirley Ann Veronica Bulsey sexually penetrated [SBG], a child of or over the age of 13 years and under the age of 16 years, by Shirley Ann Veronica Bulsey penetrating her vagina with her fingers.

(24) On the same date and at the same place as Count (23) Deran John Morgan and Shirley Ann Veronica Bulsey sexually penetrated [SBG], a child of or over the age of 13 years and under the age of 16 years, by Deran John Morgan penetrating her vagina with his penis.


******

(25) On another unknown date between 29 May 1998 and 28 May 1999 at Donald Crossing via [the settlement] Deran John Morgan and Shirley Ann Veronica Bulsey sexually penetrated [SBG], a child of or over the age of 13 years and under the age of 16 years, by Shirley Ann Veronica Bulsey penetrating her vagina with her fingers.

(26) On the same date and at the same place as Count (25) Deran John Morgan and Shirley Ann Veronica Bulsey sexually penetrated [SBG], a child of or over the age of 13 years and under the age of 16 years, by Deran John Morgan penetrating her vagina with his penis.

(Page 21)

******

(27) On another unknown date between 29 May 1998 and 28 May 1999 at the marsh via [the settlement] Deran John Morgan and Shirley Ann Veronica Bulsey sexually penetrated [SBG], a child of or over the age of 13 years and under the age of 16 years, by Shirley Ann Veronica Bulsey penetrating her vagina with her fingers.

(28) On the same date and at the same place as Count (27) Deran John Morgan and Shirley Ann Veronica Bulsey sexually penetrated [SBG], a child of or over the age of 13 years and under the age of 16 years, by Deran John Morgan penetrating her vagina with his fingers.

(29) On the same date and at the same place as Count (27) Deran John Morgan and Shirley Ann Veronica Bulsey sexually penetrated [SBG], a child of or over the age of 13 years and under the age of 16 years, by Deran John Morgan penetrating her vagina with his penis.

******

(30) On another unknown date between 29 May 1998 and 28 May 1999 at Allison Crossing via [the settlement] Deran John Morgan and Shirley Ann Veronica Bulsey sexually penetrated [SBG], a child of or over the age of 13 years and under the age of 16 years, by Shirley Ann Veronica Bulsey penetrating her vagina with her fingers.

(31) On the same date and at the same place as Count (30) Deran John Morgan and Shirley Ann Veronica Bulsey sexually penetrated [SBG], a child of or over the age of 13 years and under the age of 16 years, by Deran John Morgan penetrating her vagina with his penis.

Evidence in chief of the complainants about the offences

Charges concerning ABC

Counts 1 and 2 - Morgan's offence against ABC at Morgan's old house

45 ABC gave evidence that she was allowed to go and sleep over at Morgan and Bulsey's old house. In a bed made up in the lounge room, ABC woke to find Morgan committing the acts referred to in counts 1 and 2. ABC gave evidence that she was 12 years old when this happened.

Uncharged act (old house incident)

46 ABC gave evidence that she was walking down one of the streets in the settlement when Morgan called out to her to go into his house, which

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she did. He then touched her genital area with her clothes on and then told her to lie on the bed, lifted her top and played with her breasts, inserted his finger into her vagina, committed cunnilingus and then had intercourse with ABC. She was 12 years old.

Counts 3 to 6 - offences by Morgan against ABC at the gravel pit

47 ABC gave evidence that when she was still 12 years old, Morgan picked ABC up from her grandmother's house in the 'troopie'. ABC said she had been at school that day but it was night time. Morgan then gave her cans of beer to drink. He then committed the acts referred to in counts 3, 4, 5 and 6.

Counts 7, 8 and 9 - offences by Morgan against ABC at the old barge landing

48 ABC gave evidence that she was walking out from her grandmother's house. Morgan gave her $50 and took her out to the barge landing. She said that she was 13 years old at the time. She remembered that the incident was a couple of weeks after her 13th birthday. At the old barge landing, he then committed the acts referred to in counts 7 to 9.

Counts 10 to 12 - offences by Morgan against ABC at the tap

49 ABC gave evidence that Morgan took her to the tap in the troop carrier from near the clinic. She said she was 13 years old at the time. Morgan had a plastic bag of beers with him. ABC's evidence was that he gave her beer and then committed the acts referred to in counts 10 to 12.

Uncharged act - Morgan's sexual conduct with ABC at the airport

50 ABC said that Morgan picked her up and took her for a ride to the airport at night time when she was 13. She said that she was drunk. She was given beer to drink by Morgan. He then touched her vagina, inserted a finger into her vagina and then had vaginal intercourse with her after he asked her to bend over.

Counts 13 to 16 - offences by Morgan and Bulsey against ABC at the marsh area

51 ABC gave evidence that she was taken to the marsh in the 'troopie'. She said that she was 'about 14, 13' (AB 151) and that it was 'after the gravel pit', and after the 'tap' (AB 151). ABC said that Bulsey drove to her house and picked her up and asked if she wanted to go for a drink and said that she had been drinking at her new house. ABC said that Bulsey had been in the new house 'for a while not so long' (AB 152). ABC said that Morgan was at the new house. They had a few cans and Bulsey was

(Page 23)

drinking Jim Beam from white cans. They then drove to the marsh and ABC said that a mattress was put down on the ground; that Morgan and Bulsey started making love on the mattress; that Bulsey then encouraged ABC to commit the act referred to in count 15 and that in Bulsey's presence, Morgan committed the act referred to in count 14 and later the act referred to in count 16. Before that act was completed, Bulsey induced ABC to commit cunnilingus upon Bulsey.

52 In opening the case for the prosecution, counsel for the prosecutor pointed out to the jury that the evidence of ABC was that these events occurred when she was under 16, but that other evidence of ABC related the incident to a time when Morgan and Bulsey were in the new house which was not completed until a date many years after she turned 16.

Uncharged act - indecent dealing by Morgan against ABC at Morgan's new home

53 ABC gave evidence that Morgan was driving ABC around in the troop carrier; that he drove to the new house and that Morgan touched ABC's hand, which was on her lap and leg (BAB 158).

Counts 17 to 20 - offences by Morgan against ABC at Donald Crossing

54 ABC gave evidence that she and MM were driven out to Donald Crossing. Morgan and another man, K, were also in the vehicle. An esky was taken out. ABC said that MM and K went swimming. ABC then said that the acts referred to in counts 17 to 20 were committed by Morgan. Counts 19 and 20 alleged that Morgan penetrated ABC's vagina with his penis. The second of those allegations, count 20, was said to have been committed when Morgan asked ABC to bend over. ABC said that this act was committed with MM and K sitting in the driver's seat watching the incident. ABC said that she was '14 or 15' at the time of the Donald Crossing incident.

55 MM gave evidence corroborating the fact that she was present at Donald Crossing on an occasion where she witnessed Morgan committing such an act on ABC.

Count 21 - alleged offence by Morgan on ABC at the house of Shane U

56 ABC gave evidence that when she was 15, she struck up a relationship with Shane U. She moved into his house. One day Morgan called with beer; Morgan and Shane were drinking at the house. Morgan asked Shane to collect some items from another location using the troop carrier, and while he was away ABC said that Morgan came into the

(Page 24)

bedroom and put his hands down her trousers. ABC said she was 15 years old at the time. However, Shane's evidence was that he shifted into the new house in 1998 and that ABC shifted into the house towards the end of that year. If that evidence was correct, then the conduct occurred when ABC was already 16.

Offences against SBG

Count 22 - offence by Morgan against SBG at the warden's office

57 SBG gave evidence that early in her school years she was taken by her father to the warden's office to make complaint about two boys who had been touching her vagina.

58 SBG said that she was taken alone into the conference room by Morgan. She said that he began asking how the boys touched her. He asked whether they touched her 'like this' and 'how many fingers did they put in?' and while he was doing this he inserted his fingers into SBG's vagina. She said she was in her first year of school at the settlement at the time this happened, which meant she was 12 years old.

Counts 23 and 24 - offences by Morgan and Bulsey against SBG at Sandy Creek

59 SBG said that she was taken to Sandy Creek by the two appellants and given alcohol and smokes, that Bulsey touched her vagina until it was wet and that Bulsey then called Morgan, who came and had intercourse with SBG. The acts are described in counts 23 and 24. SBG said she was at school when this happened (ts 219, 12 November 2009).

Counts 25 and 26 - alleged offences by Morgan and Bulsey against SBG at Donald Crossing

60 SBG gave evidence that at Donald Crossing, conduct the same as that described by SBG in relation to counts 23 to 24 occurred. SBG was unable to recall how old she was when this conduct occurred. She could not recall whether she was at school or not. As a result of her inability to say when this conduct occurred, the no case submission was upheld.

Counts 27 to 29 - alleged offences by Morgan and Bulsey against SBG at the marsh

61 SBG gave evidence that the same conduct was engaged in by Bulsey and Morgan at the marsh. However, when she was asked how old she

(Page 25)

was at the marsh, she said she could not remember. As a result, the no case submission was upheld in relation to these counts.

Counts 30 to 31 - offences by Bulsey and Morgan against SBG at Allison Crossing

62 SBG gave evidence that the same conduct involving Bulsey and Morgan occurred at Allison Crossing and that she was still at school when this happened (ts 214, 12 November 2009).

Cross-examination of complainants

63 Counsel for the appellants in cross-examination of the complainants adopted two main tactics. First, they sought to show that the complainants' evidence was generally unreliable and, secondly, they sought to have the complainants agree that certain events had occurred or conditions existed when the conduct complained about occurred, in order to show that the conduct must have occurred after the complainants turned 16 years of age.

64 Thus, for example, counsel for Bulsey cross-examined ABC to have her agree that:

(a) the incident at the marsh (counts 13 to 16) occurred when Bulsey and Morgan were living in their new house. ABC agreed that this was so. If that were so then she was over 16 when the marsh incidents occurred because other evidence showed that the new house was constructed well after ABC turned 16. However, ABC also gave evidence that she was 13 or 14 at the time of the offences;

(b) Morgan and Bulsey's child Shania was walking or crawling when Morgan first started touching her (BAB 188). If this was correct, then all the offences must have occurred after ABC turned 16 because Shania was born after ABC turned 16;

(c) her son E was born when she was 16 (in fact he was born when she was 18) and that her son T was born when she was 17 (in fact he was born when she was 19 years old (BAB 193).

65 Counsel for Morgan cross-examined ABC also to demonstrate unreliability and to identify events or conditions which had occurred or existed when the conduct occurred, such events or conditions occurring after ABC turned 16. Thus, counsel for Morgan cross-examined ABC and had her admit:
(Page 26)

(a) that her son E was born when she was 16 (as mentioned, she was 18) (BAB 176). Her son T was born when she was 17 or 18 (as mentioned, in fact she was 19) (BAB 176 - 177);

(b) that Morgan first touched her after Shania was born (BAB 178);

(c) that her relationship with Shane began when she was 15 or 16 (BAB 180);

(d) that it was hard to remember dates and times (BAB 181);

(e) that she was drinking a lot as a teenager (BAB 181);

(f) that she did not complain about the incidents because she was frightened of Morgan and yet when she eventually gave a statement to the police, she did not include in her statements that she was frightened of Morgan.

66 SBG was cross-examined with the same tactics in mind.

67 Counsel for Morgan cross-examined SBG and had her agree that:

(a) Shania was walking around and talking 'while these things were happening' (BAB 236) and that she was 'around three or four when these events were happening'. If that were so, then the conduct complained of occurred when SBG was over 16 years of age;

(b) she told the police that Morgan and Bulsey 'usually took their youngest ones out when they were young'; 'Desley (sic: Desmond) five, Livinia six and Shania three or four' (BAB 237). However, SBG said 'I just sort of guessed, it wasn't accurate' (BAB 237);

(c) that she went to Darwin around 14 June 2000 (BAB 238) and that 'these events that you have described, apart from the warden's office matter, they all happened within roughly 12 months before you left to go to Darwin'. SBG agreed. If that were so, then the offences occurred after SBG turned 16;

(d) that she spoke to the police around the time of the warden's office incident. This was about the complaint about sexual interference with her by some boys (BAB 252). Subsequently, one of the investigating policemen (Detective Bertoli) was cross-examined to say that there was no evidence of any such complaint in police records;

(Page 27)

(e) that she made a complaint on 29 June 2005 at the Wyndham police station that she had been sexually abused since she was about 15 years of age at the settlement (BAB 253). She told the police that one of those persons was FG. (At this stage of proceedings FG was the subject of some of the charges. This cross-examination prompted an objection from counsel for FG which eventually led to the charges involving FG to be severed from the indictment as explained earlier in these reasons). She also agreed with counsel for Morgan that another complaint was about another person from the settlement. She agreed with counsel for Morgan that no complaint was made about Morgan and Bulsey during this report to the police (BAB 256). She agreed that subsequently she signed a statement dated 18 December 2005 withdrawing the complaint she had made at the Wyndham police station on 29 June 2005.

68 Counsel for Bulsey did not cross-examine SBG.

Other evidence

69 It is not necessary to refer to all of the other evidence led by the prosecution. However, it is necessary to mention that evidence was given by Shane U, who was born in 1977. He began a relationship with ABC at the settlement. He gave evidence that he was given permission to occupy his own house in 1998 and that ABC moved into this house towards the end of the year (ts 125, 18 February 2010). He gave evidence that on one occasion he saw Morgan in a bedroom of the house while ABC was in bed. This was partial corroboration of ABC's evidence regarding the conduct alleged in relation to count 21. If it was correct that this conduct occurred after ABC moved into the house, and if it was correct that this was towards the middle or end of 1998, then ABC was over 16 at the time of that conduct. This did not correspond with ABC's evidence that she was 15 years old when this happened (BAB 167).

70 Two police gave evidence. It is only necessary to mention Detective Bertoli's evidence. He gave evidence that he searched Wyndham police records and found no incident report relating to an occasion when SBG reported sexual interference by two boys.

71 Various documents were tendered. They included maps showing the settlement and the location of the old house and the new house occupied by Morgan and Bulsey, birth certificates of the complainants, of ABC's children and of Morgan and Bulsey's children. School reports were tendered to prove that both complainants were under 16 up until the time

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they finished school and to show when they started school at the settlement. Photographs of locations out of the settlement where alleged conduct occurred were tendered, along with photographs of Morgan and Bulsey's old house and new house.

The case for Morgan and Bulsey

72 Both Morgan and Bulsey elected not to give evidence. Counsel for Morgan tendered some of the documents referred to above.

Closing addresses by counsel for the appellants

73 Counsel for Morgan emphasised the importance of the complainants' age. He emphasised that 'the only thing that makes these matters unlawful … is when it happened'. He said:

If you take the first count, if these events as described happened one second before midnight on 26 January 1995, if these events happened as described, then Mr Morgan is guilty. If they happened one second after midnight - and if you want to be really technical, one-millionth of a second after midnight; not guilty. That's how technical it is. It is time. One second before; guilty. One second after; not guilty. It's technical. I'm going to be focusing on time.

74 Submissions were made by counsel for Morgan about inconsistencies in the evidence and ABC's unreliability in matters such as her age when her children were born. Counsel also referred to the importance of known events or conditions which were established in cross-examination or other evidence which the complainants said occurred or existed when the conduct occurred, which contradicted their evidence that the offences occurred when they were at school. Counsel said that these inconsistencies should give rise to reasonable doubt about Morgan's guilt.

75 Counsel for Morgan also submitted that SBG was 'not good with dates and times' (ts 475, 22 February 2010). He attacked her credibility by referring to the matters emphasised in cross-examination.

76 Counsel for Bulsey said that everything that counsel for Morgan had said applied in respect of Bulsey because all the charges she faced, she faced jointly with Morgan. Counsel for Bulsey emphasised the fact that ABC linked the only offences Bulsey was alleged to have committed against ABC (counts 13 to 16) with the new house. He pointed out to the jury that the new house did not exist when ABC was 15. He also referred to the fact that Morgan and Bulsey's child Shania had not been born when ABC turned 16. It was submitted therefore, that ABC was not a reliable witness.

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77 His submissions concerning the offences against SBG were based on her alleged unreliability given her evidence that Morgan and Bulsey's child Shania was 'walking and talking' (ts 489, 22 February 2010) when the offences occurred, and that all the conduct happened 'within the 12 months before she went to Darwin' (ts 490).

The trial judge's summing up

78 No complaint is made about the trial judge's summing up, save in relation to propensity or relationship evidence. As to that, the trial judge directed the jury:

The State's case is that the evidence of all the charges is relevant to all the other charges, because it shows that the accused had a tendency to sexually assault young children and a preparedness to have sex with a young girl in the presence of another adult. These are matters for you to consider. It's for you to assess the evidence and to decide whether it shows that the accused had such a tendency and if so whether it assists the State case on the charges. Even if you are satisfied beyond reasonable doubt that the accused is guilty of one charge, you can't move automatically to a finding that the accused committed others. It would not follow automatically that because he or she did one of the things alleged, against him or her, he or she also committed other offences for which he or she has been charged. It is of course important, that you bear in mind as I've already indicated that unless you're able to accept in respect of the charges that you're considering, the complainant's evidence in respect of that charge is truthful, accurate and reliable, you couldn't be satisfied beyond reasonable doubt as to the guilt of the accused. Now, the complainant, [ABC], gave evidence not only about the events identified in the indictment, but also other sexual conduct involving Mr Morgan. [ABC's] evidence concerning those matters involved incidents which were alleged to have occurred at the airport, at Darrell Morgan's new house and Darrell Morgan's old house. There was also evidence from [SBG] in relation to conduct which comprised counts 25 to 25 [sic - 29] on the indictment. This evidence was of sexual conduct of Mr Morgan and Ms Bulsey. As you're aware I've found each accused not guilty in relation to those matters, but that evidence is still before you. [ABC's] evidence of the other - [ABC's] evidence of the other conduct involving Mr Morgan, doesn't in any way affect Ms Bulsey. There's not evidence in the case against her. It's evidence only in the case against Morgan. [SBG's] evidence as to conduct which form the basis of counts 25 to 29 inclusive is evidence against each accused. You'll not as I said, be asked for verdicts on counts 25 to 29. The evidence of the other alleged sexual activity is led for specific purposes by the State. The State put the evidence before you as evidence of the relationship between the parties. It helps to set the background in which you can evaluate the complainant's evidence, in respect to the charges actually laid. The State also led the evidence as tending to show the accused had a tendency to sexually assault children and the accused had a

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preparedness to have sex with a young girl in the presence of other adults. Of course, you could only use this evidence of acts of alleged sexual conduct by the accused, Morgan and Bulsey with the complainants for which the accused have not been charged if you find it reliable and believe it to be true. And if you find the evidence as to the events which the accused has not been charged before you to be truthful and accurate.

That is a matter for you to consider. It's for you to decide and to assess the - decide upon and assess the evidence and to just determine whether it shows the accused had such a tendency and, if so, whether it assists the case on the charges. The evidence of the acts for which the accused have not been charged is not direct evidence that they committed the acts for which they have been charged. It doesn't follow that because they did the acts for which they've not been charged, they also did the acts for which they have been charged. You could not find the accused guilty of an offence with which he's been - which he or she's been charged unless you were satisfied beyond reasonable doubt, by direct evidence, that the offence for which the accused has been charged was done. It doesn't follow automatically that because he or she did one of the things alleged against him or her, he or she also committed other offences for which he or she has been charged. As I've said, if you are satisfied that any or some of the other sexual conduct occurred, you cannot move automatically to a finding that the accused committed the act you are then considering. Even if you are satisfied that the other sexual conduct occurred, you may still entertain a reasonable doubt in respect of the count you are considering. The reason for this is, of course, it just doesn't follow that because the accused has been involved in other sexual conduct on another date on another occasion, that he is guilty of the offence that you are then considering. However, before you can use the evidence in the ways I've outlined, you must be satisfied that the other conduct occurred and that it demonstrates the accused had the tendency to sexually assault young children and to do so in the presence of other adults and was willing to give effect to those tendencies by doing those other acts (emphasis added).

79 The parts of this summing up about which the appellants complain are italicised.

Grounds of appeal

Morgan's grounds of appeal

Ground 1

The verdicts of guilty on which the convictions are based should be set aside because, having regard to the evidence, they are unreasonable or cannot be supported

80 Particulars were given referring to the inconsistency in both complainants' evidence on oath and out of court and that the jury's
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verdicts of not guilty on counts 13, 14, 15 and 16 (the marsh incidents) and 21 were 'only explicable' on the basis that the jury was not satisfied that ABC was under the age of 16 because of her evidence that the conduct occurred after Morgan and Bulsey had moved into the new house at the settlement.

Ground 2

There was a miscarriage of justice in relation to verdicts based on the evidence of the complainant [ABC]

81 Particulars were given revealing that the appellant sought to make out this ground by seeking leave to adduce 'fresh/new' evidence of ABC elicited in cross-examination during the subsequent trial of Morgan and FG in KUN 59 of 2009.

Ground 3

There was a miscarriage of justice in relation to verdicts based on the evidence of the complainant [SBG]

82 Particulars were given revealing that the appellant sought to make out this ground by seeking leave to adduce 'fresh' evidence consisting of SBG's victim impact statement tendered at the sentencing hearing on 1 June 2010. The appellant alleged the victim impact statement was 'to the effect that the sexual misconduct against her commenced when she was 'about 15 years of age', thereby contradicting SBG's evidence about count 22.

Ground 4

The learned trial judge erred in law in directing the jury that, in relation to counts 25 to 29 where he had entered verdicts of 'not guilty' in relation to charges concerning the complainant [SBG], they were entitled to have regard to that evidence in considering the other charges as relationship and propensity evidence

Ground 5

The learned trial judge erred in failing to warn the jury of the danger of convicting the appellant on the uncorroborated evidence of the complainants, given their evidence as to when the alleged incidents occurred and given the significant inconsistencies in their evidence, and, additionally, in relation to the complainant

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[SBG], her failure to complain about Morgan to the Wyndham police in June 2005.

83 Leave to appeal has been granted on ground 1. The application for leave on the other grounds was referred to the hearing of the appeal.

Bulsey's grounds of appeal

Ground 1

The verdicts of guilty on which the convictions are based should be set aside because, having regard to the evidence, they are unreasonable or cannot be supported.

84 Particulars were given which pointed to the inconsistencies in SBG's evidence.

Ground 2

The learned trial judge erred in law in directing the jury that, in relation to counts 25 to 29 where he had entered verdicts of 'not guilty' in relation to charges concerning the complainant, they were entitled to have regard to that evidence in considering the other charges as propensity and relationship evidence.

85 Particulars were given complaining about the fact that the trial judge directed the jury that they could have regard to the sexual misconduct alleged in relation to counts 25 - 29 and use that evidence to reason towards guilt, notwithstanding the verdicts of 'not guilty'.

Ground 3

The learned trial judge erred in failing to warn the jury of the danger of convicting [Bulsey] on the uncorroborated evidence of the complainant given her evidence as to when the alleged incidents occurred, the significant inconsistencies in her evidence and her failure to complain about [Morgan and Bulsey] to the Wyndham police in June 2005.

86 Leave to appeal has been granted on ground 1. The application for leave on the other grounds was referred to the hearing of the appeal.

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Morgan's appeal - CACR 87 of 2010

Ground 1

87 This ground requires the court to examine the whole of the evidence, not just to determine its sufficiency, but to weigh it and decide whether or not it gives rise to any reasonable doubt: see M v The Queen [1994] HCA 63; (1994) 181 CLR 487 and SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571. In SKA, French CJ, Gummow and Kiefel JJ said that:

On appeal, the task of the [appellate court] was to make an independent assessment of the whole of the evidence, to determine whether the verdicts of guilty could be supported … [and to] weigh the whole of the evidence' [22].

88 It is not sufficient to merely conclude that the complainant's account of the incident was 'sufficiently particular to enable the jury to accept it' [23]. It is necessary for this court to articulate the ground or grounds for the formation of any opinion that the verdicts of guilty can be supported': SKA [81] (Crennan J). This court must ask itself whether it thinks it was 'open to the jury' to be satisfied about the guilt of the accused: M v The Queen (493). If there is any reasonable doubt experienced by this court, then it is a doubt the jury should have experienced: M v The Queen (494). If there is no such doubt, then the verdicts were open to the jury and ground 1 should be dismissed.

89 Some of the statements by the High Court in M v The Queen have the potential to give rise to some uncertainty in the mind of an intermediate court of appeal about the task it has to perform. The plurality in M v The Queen directs this court to determine whether the verdict of guilty was 'open to the jury': M v The Queen (493); R v Nguyen [2010] HCA 38 [33]; (2010) 271 ACR 493. Read alone, that suggests that the task of the appellate court is to consider what the reasoning of the jury at the trial may have been. However, in M v The Queen the plurality made it plain that the task is not one of determining what the jury did. The task of the appellate court is to make its own assessment of the evidence. The task involves determining a question of fact. The requirement that this court should make its own assessment of the evidence might be read as suggesting that the appellate court reviews the evidence, reaches its own conclusion about whether it is satisfied beyond reasonable doubt about the guilt of the accused, and if it is not so satisfied, then it allows the appeal and the opinion of the court of appeal is substituted for that of the jury. That would suggest a kind of de novo

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hearing with the appellate court exercising original rather than appellate jurisdiction. This possibility is further suggested by the statement that if the appellate court experiences doubt, then the jury ought 'also to have experienced' such doubt: M v The Queen (494); SKA [13], although it will only be on 'rare occasions' that an appellate court will experience such doubt where the jury has not: Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521, Deane J, 621.

90 On the other hand, the plurality in M v The Queen stated, at 493, that 'the court must not disregard or discount … the consideration that the jury is the body entrusted with the primary responsibility for determining guilt or innocence' and that 'the court must pay full regard to (that) consideration' (citing Chamberlain v The Queen (621) per Deane J). In Chamberlain, at 534, Gibbs CJ and Mason J made a similar statement, but in a passage which read, in full:

To say that the Court of Criminal Appeal thinks that it was unsafe or dangerous to convict, is another way of saying that the Court of Criminal Appeal thinks that a reasonable jury should have entertained such a doubt. The function which the Court of Appeal performs in making an independent assessment of the evidence is performed for the purpose of deciding that question. The responsibility of deciding upon the verdict, whether of conviction or acquittal, lies with the jury and we can see no justification, in the absence of express statutory provisions leading to a different result, for an appellate tribunal to usurp the function of the jury and disturb a verdict of conviction simply because it disagrees with the jury's conclusion.

91 To integrate or resolve these apparently conflicting statements or 'competing considerations' (as they were called by McHugh and Kirby JJ in Suvaal v Cessnock City Council [2003] HCA 41 [76]; (2003) 200 ALR 1) about the role of the appellate court, it is necessary to consider the legislation because there is 'no substitute for giving attention to the precise terms' of the Act conferring jurisdiction; see Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [31]. The right of appeal against conviction on indictment is conferred by s 23(1)(a) of the Criminal Appeals Act 2004 (WA). The right conferred is a right of 'appeal'. Section 58(1)(f) of the Supreme Court Act 1935 (WA) confers jurisdiction on this court to hear and determine such an appeal. Section 50 of the Criminal Appeals Act2004 authorises the Supreme Court to make rules for giving effect to the purposes of the Act. Rule 25 of the Supreme Court (Court of Appeal) Rules 2005 (WA) provides that an appeal is an appeal by way of rehearing. In CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172, McHugh, Gummow and Callinan JJ spoke about the nature of an
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appeal by way of rehearing and observed that the jurisdiction is neither 'purely appellate nor purely original' (202). However, they added that:

[I]t is highly unlikely that Parliament in conferring jurisdiction … to hear appeals intended that [it] should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction.

92 In Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, Gaudron, McHugh, Gummow and Hayne JJ said that [23]:

For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error.

93 In Suvaal v Cessnock City Council, McHugh and Kirby JJ made it clear that an appellate 'rehearing' is not, and cannot be, a hearing de novo.

94 Thus, this court, when deciding an appeal, does not proceed by making new findings of fact on all relevant issues and then substituting its verdict for that of the jury merely because this court's opinion differs from that of the jury. That would mean substituting trial by Court of Appeal for trial by jury and the High Court has made it plain that this is not the function of the appellate court: Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432, 443, 458 (cited in M v The Queen (495)). In order for this court to form the opinion that the verdict of guilty should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported, it must be satisfied that the verdict of the jury is infected by error. For example, it may be satisfied that there is error if it reaches the conclusion that, having regard to the evidence, the jury unreasonably failed to draw inferences that should have been drawn from facts established by that evidence or must have drawn inferences which could not be supported by that evidence. Cases where the appellate court concludes that findings of fact the jury must have made were 'glaringly improbable' or contrary to 'compelling inferences' are likely to be 'extreme cases': Suvaal [76]. However, error will not be demonstrated merely because the jury made a choice between competing inferences which were open, being a choice that the court considers it would not have made if it had been the jury. The conclusion that error must be found is supported by the High Court in Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 where Hayne J said (Gleeson CJ & Heydon J agreeing) that:

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[T]he question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must,as distinct from might, have entertained a doubt about the appellant's guilt [113].

95 If the appellate court forms the view that the jury must have entertained a doubt about the appellant's guilt, then it is saying in effect, that the jury erred in reaching its verdict.

96 In short, the approach of this court on a criminal appeal is similar to its approach in determining a civil appeal (subject only to the difference in approach required because of the difference in the burden of proof). In Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359, 369, Beaumont and Lee JJ explained that in relation to a civil appeal:

[T]he court is not obliged to proceed to make new findings of fact on all relevant issues and discharge the judgment appealed from if those findings differ from those of the trial judge and do not support the judgment. The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be so satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made. Where the majority judgment in Warren v Coombes at (552 - 553) states that an appellate court must not shrink from giving effect to its own conclusion, it is speaking of a conclusion that the decision of the trial judge is wrong and that it should be corrected. (See also Edwards v Noble (1971) 125 CLR 296, per Barwick CJ (at 304), per Menzies J (at 308-309) and per Walsh J (at 318-319).)

119 In relation to SBG, the appellant, in order to demonstrate that the verdict was unreasonable or could not be supported having regard to the evidence, pointed to aspects of SBG's evidence which it was submitted, gave rise to doubt that the conduct occurred when she was either at school or under 13 as the charges indicated. In relation to count 22, which was the incident at the conference at the warden's office, she said that the incident occurred in her first year of school at the settlement, which by reference to the school records and her birth date, meant that she was under 13 at the time.

120 It is true, as counsel for Morgan pointed out, that in relation to other questions she said that she could not remember which grade she was in and said that it was 'probably [grade] 7' (BAB 279). Counsel for Morgan also lists references to other aspects of SBG's evidence that it was submitted should have given rise to a reasonable doubt. For example, counsel points to SBG's evidence that the Wyndham police were called and travelled to the settlement and interviewed her and took notes concerning the complaints about the two boys who had interfered with her and yet Detective Bertoli gave evidence that he conducted a search of the Wyndham police occurrence books and could find no reference to a visit to the settlement concerning the matter. Reference was also made by counsel to SBG's concession to the police that it was difficult to remember how old she was and that her memory was a lot of 'flashbacks' (ts 732, 12 November 2009) and that she did make complaint in 2005 to the Wyndham police against FG and another.

121 The appellant also points to the evidence of SBG under cross-examination that the offences all occurred in the 12 months before she went to Darwin. If that were true, then she was not under 16 when the offences occurred. However, in re-examination she said she did not understand the question. As a result, little or no weight should be given to SBG's answers on this point in cross-examination.

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122 All the points made concentrate upon events on which SBG may have been uncertain about, but it does not affect the strength of her evidence that the conduct that resulted in the convictions was conduct that she said occurred while she was at school or under 13. In my opinion, having viewed the evidence available on DVD, having weighed that evidence to take into account the evidence drawn from the complainants in cross-examination and the documentary material, the verdicts of guilty were open to the jury. The jury showed clear discernment by returning verdicts of not guilty where there was a basis for doubting the prosecution case; they took a long time over the verdicts and sought further assistance from the trial judge during their deliberations. The verdicts of the jury are part of the record and I take them into account in reaching my conclusion. I experience no reasonable doubt about the guilt of the appellant. This ground of appeal should be dismissed.

Ground 2

123 This ground alleged that there was new or fresh evidence elicited from ABC in cross-examination in a subsequent trial. The subsequent trial was that of the appellant and FG on the charges in KUN 59 of 2009. In that trial, the prosecutor tendered the DVD containing those parts of SBG's evidence recorded on 12 November 2009 relating to the charges in KUN 59 of 2009. This had been edited out of the DVD played to the jury in the trial of KUN 11 of 2009. The prosecutor sought an order in KUN 59 of 2009 to adduce propensity evidence from ABC. This was the evidence given by ABC in the trial of KUN 11 of 2009 which demonstrated Morgan's sexual interest in ABC. An order was made by Martino DCJ (as his Honour then was) allowing this propensity evidence to be led, but with all references to Morgan and Bulsey's 'new house' being excised and with leave granted to the appellant to cross-examine ABC in relation to that aspect.

124 Mr Richardson, who had been counsel for Morgan at the trial of Morgan and Bulsey before Stavrianou DCJ and a jury on KUN 11 of 2009 and was counsel for him on the appeal, cross-examined ABC in KUN 59 of 2009. The questions related to whether conduct of Morgan complained about by ABC occurred when Morgan and Bulsey were living in their new house. The significance of that was of course that the new house was not completed until 20 December 2002, which was long after ABC turned 16. In 2002, SBG was 19 years old. If the incidents she complained about occurred after Morgan and Bulsey had shifted into the new house, then Morgan could not have committed offences against ABC when she was under 16 years of age. The cross-examination sought to draw out,

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and did draw out from ABC, that she had made statements to the police that the tap incident (relating to counts 10 - 12) and the Donald Crossing incident (relating to counts 17 - 20) occurred when Morgan was living in the new house. Cross-examination also involved having ABC agree that Shania was one or two, walking or crawling at the time of the first touching by Morgan (ts 97 - 98, 18 March 2010).

125 Quite clearly this was not fresh evidence. Morgan knew before the earlier trial of KUN 11 of 2009 when he had shifted into the new house. When ABC was examined, cross-examined and re-examined before the trial, counsel for Bulsey (as mentioned above) clearly had instructions that the new house was constructed well after ABC turned 16. As a result of that line of questioning, the State made inquiries and located the evidence from Monsoon Architects. It was then provided to the appellants. Both appellants, therefore, had this evidence before the trial of KUN 11 of 2009. At the trial, there was no application by Mr Richardson to further cross-examine ABC. Some of the cross-examination of ABC, when it was pre-recorded in October 2009, revealed that counsel for Bulsey was well alive to the significance of the date of construction of the new house. Thus, the evidence which counsel for Morgan elicited from ABC in the cross-examination in 2010 at the second trial, was evidence which with reasonable diligence could have been elicited by Morgan's counsel at the trial on KUN 11 of 2009 (and which was in fact elicited by counsel for Bulsey): see Beamish v The Queen [2005] WASCA 62 [9].

126 I should note that in the cross-examination of ABC in KUN 59 of 2009, ABC again confirmed that she was at school when the incidents at the tap and at Donald Crossing occurred. The evidence that the appellant Morgan was able to adduce in cross-examination of ABC in this latter trial was 'new' and not 'fresh' evidence and it was not evidence strong enough to show that Morgan was innocent or to raise such a doubt that the appellant should not have been convicted: see Lawless v The Queen [1979] HCA 49;(1979) 142 CLR 659, 676. The evidence does no more than reveal a belief in ABC's mind about when Morgan and Bulsey lived in the new house. It reveals no confusion in ABC's mind that the conduct complained about in the indictment in this case, occurred while she was at school and in some cases when she was not only at school but under 13.

127 The evidence elicited in cross-examination in KUN 59 of 2009 about Shania was not new or fresh evidence. That subject had been well covered at the trial in this case. It was merely a repeat of the point made at the trial under review.

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128 The appellant should be refused leave to adduce as additional evidence in this appeal the evidence of ABC given in the trial of KUN 59 of 2009. As a result, ground 2 has nothing to support it. Leave to appeal on ground 2 should be refused.

Ground 3

129 Ground 3 also alleged that there was a miscarriage of justice because of alleged fresh evidence. The fresh evidence was said to be the victim impact statement of SBG prepared after the trial of KUN 11 of 2009. It was submitted that the victim impact statement of SBG disclosed that she said the sexual misconduct against her commenced when she was about 15 years of age and that this contradicted her evidence that she was under 13 when the conduct referred to in count 22 occurred. This ground can only relate to count 22 which alleged that the first offence against SBG occurred when she was under 13 years of age. However, the victim impact statement does not say that the offences first occurred when she was 15. What it states is that the 'impact' of the offences first occurred when she was about 15. It is highly likely that the major impact of the offences was caused by the other sexual conduct on SBG. The victim impact statement does not contradict SBG's evidence about the one incident at the warden's office. The appellant should be refused leave to adduce as additional evidence in this appeal the victim impact statement. As a result, ground 3 has nothing to support it and leave to appeal on this ground should be refused.

130 Finally, I should add that even if there were any merit in this ground, it would result in the quashing of count 22 but the conviction of another offence, namely sexual penetration of a child under the age of 16 years: see s 30(5)(c) of the Criminal Appeals Act 2004 (WA).

Ground 4

131 Ground 4 is a complaint about the direction concerning what was conceded to be relationship or propensity evidence. Such evidence is admissible if it has significant probative value: see s 31A Evidence Act 1906 (WA). To understand this ground, it is necessary to repeat that there were three categories of relationship or propensity evidence which were admissible.

132 First, there was the cross-admissibility of evidence regarding all counts on which Morgan was convicted in relation to ABC and likewise in relation to SBG. The judge correctly directed that the jurors must judge each charge separately, but in judging each charge, they could take into

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account the evidence on the other charges (if they accepted it) which showed the tendency or interest the appellants had in sexual activity with children. No complaint is made about this part of the trial judge's direction. Furthermore, although not mentioned by the trial judge, it also showed Morgan's propensity to have sexual relations with the two complainants.

133 Secondly, there was evidence of the 'uncharged' acts committed by the appellant Morgan against the complainant ABC. These were the airport incident and the incident at Morgan's old house. This evidence showed the sexual interest Morgan had in ABC (and if the jurors were satisfied that she was under 16 at the time, then in sexual activity with children). No complaint is made about the direction in relation to this evidence.

134 The third category was the evidence of the incidents regarding counts 25 - 29 which involved alleged conduct by Morgan with SBG. If the trial judge's direction can be read as saying that this evidence could be used to prove that Morgan had an interest in children, then it revealed error. The appellant submitted that because the trial judge had upheld the no case submission in relation to counts 25 - 29 and entered verdicts of not guilty on the basis that there was no evidence capable of being left to the jury to satisfy them that the conduct was committed when SBG was under 16, then it was erroneous to say that this could be used by the jury as 'tending to show the accused had a tendency to sexually assault children and the accused had a preparedness to have sex with a young girl in the presence of other adults'. Counsel for Morgan submitted that this direction 'offends the principle in R v Storey (1978) 140 CLR 364'. It is correct that because verdicts of not guilty were entered by the trial judge, Morgan must be taken to have been innocent of the charges: Kemp v The King [1951] HCA 39; (1951) 83 CLR 341 (342).

135 In R v Young (1998) 1 VR 402, 423 (Ormiston, Charles JJA and Vincent AJA) in a joint set of reasons, dealt with a case involving issues relating to the admission of the evidence of one incident in relation to which no charge was brought and in relation to evidence of acts of which the accused had been acquitted as propensity evidence on another charge. The court said (423):

In the present case the vice inherent in the Crown case, of which the applicant complains, does not arise out of a challenge to the earlier acquittals whereby the prosecution sought a directly contrary finding or verdict in the later trial, but by reason of its calling evidence seeking to establish that the applicant had been guilty of indecent assaults on three

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other occasions in respect of which there had been final verdicts of acquittal. It matters not whether one calls it similar fact, propensity or 'guilty passion' evidence: what was wrong was that the Crown sought to use it in a way which challenged the findings explicit in the earlier three acquittals. It did that by asking the jury to accept, admittedly for the limited purposes to which such evidence may be adduced, that these incidents were indecent assaults, so that it thereby sought to undermine what was already the subject of a binding judgment of the court. In that sense the applicant was not being given the 'full benefit of his acquittal', in as much as the prosecution was challenging each of the verdicts and asking the jury to reconsider the guilt of the applicant and to discount, indeed in the circumstances to ignore, the effect of his acquittal … Lest it be thought that each of the other cases in which this principle has been applied involved a challenge to an earlier verdict which led either to a formal inconsistent ruling on evidence or to a final verdict which implicitly denied the effect of an earlier acquittal, it is desirable to turn to one earlier judgment of the High Court, the result of which has never been questioned except as to the use therein of the expression 'issue estoppel', and the circumstances of which are so similar to the present that it is surprising that counsel for neither applicant and respondent … did not refer to it.

Reference was then made to Kemp's case referred to above.

136 In Young's case, the issue was about admissibility because the acquittals were known beforehand. In this case, once the trial judge had ruled that there was no case to answer in the evidence about counts 25 - 29, the conduct alleged in those counts could not have been used by the jury as providing evidence that Morgan had an interest in children. However, counsel for both appellants agreed that the direction would not have been erroneous if the trial judge had said only that it was relevant to show that the appellants each had an interest in sexually dealing with SBG.

137 It does appear from reading the transcript, however, that his Honour was suggesting that the evidence could be used as tending to show that both accused had a tendency to 'sexually assault children'. To give that direction involved an invitation to the jury to reject the verdicts which the trial judge had entered in relation to counts 25 - 29.

138 This ground therefore has merit even though the jury probably understood that the evidence about counts 25 - 29 could not be treated as showing that the appellant had an interest in SBG when she was under 16. This is because the trial judge informed the jury that he had entered verdicts of not guilty of those charges because SGB gave no evidence that she was under 16 when the conduct occurred.

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No substantial miscarriage of justice

139 However, the question then is whether the misdirection led to any substantial miscarriage of justice. In my opinion, it did not do so, because ground 1 has required this court to consider all of the evidence; to consider not just whether the evidence in relation to the charges on which the appellants were convicted was sufficient to sustain the verdicts, but also to weigh the evidence and to consider for itself whether there was any reasonable doubt that the accused were guilty of the offences of which they were convicted. In making that assessment it is necessary for this court to do so based on a correct understanding of the law. It is a review carried out without taking into account any misdirection by the trial judge. Because the evidence about what was done by the appellants to SBG as alleged in counts 25 - 29 was admissible as showing that the appellants had an interest in sexually dealing with SBG, there has been no substantial miscarriage of justice.

140 Thus while ground 4 should be decided in favour of the appellant and leave to appeal granted on that ground, the appeal should be dismissed by reason of the application of s 30(4) of the Criminal Appeals Act.

Ground 5

141 The submission was that there should have been a warning given to the jury not to act upon the uncorroborated evidence of the complainants because of significant inconsistencies in their evidence. Section 50 of the Evidence Act 1906 provides, in effect, that a judge is not required by any rule of law or practice to give a corroboration warning to the jury in relation to any offence of which the person is liable to be convicted on indictment. The section also states, in effect, that the judge shall not give a corroboration warning unless the judge is satisfied that such a warning is justified in the circumstances.

142 The section does not prevent a judge from giving a warning in an appropriate case. In fact, the authorities require that a trial judge must warn the jury as to the need for careful scrutiny of a complainant's evidence whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice in relation to the assessment of his or her evidence which arises from the circumstances of the case. The need for such a warning depends first on the particular circumstances and also upon whether there is something in the circumstances which makes it likely that the evidence will, or may be unreliable. Secondly, the risk inherent in the evidence must arise from a factor of which the courts have special knowledge, experience or awareness so that the jury would not appreciate

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the risk without a judicial warning, or alternatively, even if the jury has the ability to understand and assess the risk, the circumstances of the case are such that the jury may be led to overlook it or place insufficient weight upon the potential risk: FGC v The State of Western Australia [2008] WASCA 47; (2008) 183 A Crim R 313 [3] (Wheeler JA), [120] - [121] (Buss JA), [143] (Murray AJA).

143 In Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315, 325, Brennan J observed that there is no universal rule of practice that a trial judge should give a warning, much less a warning according to prescribed formula. In Bromley's case the circumstance was that a witness of importance was suffering from a mental disability. That is not the circumstance here.

144 At trial there was no request by experienced counsel that such a direction should be given. It is true that there was a circumstance which meant that the evidence of the two complainants and MM had to be scrutinised with care. This circumstance was created by the long period of time between the offences occurring and the three women giving evidence. However, that was a risk specifically addressed by a Longman warning. That drew to the jury's attention the need to carefully scrutinise the evidence of the witnesses. In my opinion, there was nothing in the case which required a warning to be given to the jury not to convict unless the evidence of the complainants was corroborated. Leave to appeal on this ground should be refused.

Bulsey's appeal - CACR 116 of 2010

Ground 1

Verdicts of guilty unreasonable or cannot be supported having regard to the evidence

145 The appellant Bulsey, although charged with offences against both complainants, was convicted of offences only against SBG. The convictions were on counts 23, 24, 30 and 31 and which were all offences against s 321(2) of the Criminal Code - sexual penetration of a child of or over the age of 13 and under 16 years. The particulars to the ground read:

1.1 On each count the prosecution had to prove that the complainant was under the age of 16;

1.2 [SBG] could not remember her age at the time the incidents occurred but did recall she was at school. The complainant was 15 when she left school. The evidence that the complainant was at

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school was the only evidence upon which the jury could find that she was under the age of 16;

1.3 the inconsistencies and nature of the complainant's evidence, together with the lack of complaint till 2008 (some 10 years after the event) meant that the finding that the complainant was under the age of 16 was unreasonable or not supported by the evidence.

146 In the appellant's own words, the 'primary issue' at trial was the age of each complainant at the time of the alleged offence. The appellant's submissions state that 'the defence focus was that the evidence did not prove beyond reasonable doubt that the complainants were under the age of 16'.

147 The appellant points out correctly that the directed verdicts of acquittal on counts 25 - 29 were on the basis that SBG could not remember her age or whether she was at school at the time of those offences. The appellant acknowledges that the prosecution case on age rested solely on the basis that SBG gave evidence that she was at school at the time of the offences. The appellant acknowledges that if the offences occurred whilst she was at school, then she must have been under the age of 16.

148 The appellant points out that SBG was 26 years of age when her evidence was pre-recorded concerning events which occurred 11 to 12 years earlier, that no unsolicited complaint was ever made and that she first spoke to the police about the matters in 2008. The appellant in written submissions pointed out that SBG conceded that she could not remember details about the incident at Sandy Creek and Allison Crossing.

149 Following the same approach as counsel for Morgan, counsel for Bulsey at trial (not the same counsel who appeared on appeal) identified events or conditions which occurred or existed after SBG turned 16 and then asked SBG whether these events or conditions existed at the time of the offences. Thus, in cross-examination it was put to SBG that Bulsey and Morgan's child, Desmond, was five when SBG was taken 'out to the bush' and that Livinia was in pre-primary and that Shania was 'something like 3 or 4 years of age' and that the incidents occurred roughly 12 months before SBG went to Darwin in 2000.

150 If all these events or conditions did exist at the time that the conduct the subject of counts 23, 24, 30 and 31 occurred, then SBG was not under 16. However, SBG was never confronted with the apparent contradiction in her evidence that the offences occurred at a time when she was at

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school and therefore under 16 and the fact that she was prepared to agree that at the time the offences occurred, the other events or conditions could not have occurred or existed. The difficulty in not having done so emerged in re-examination. Thus, in relation to the events having occurred within 12 months of going to Darwin, SBG was asked in re-examination whether she was on 'CDEP' in the 12 months before she went to Darwin (SBG did not go onto CDEP until after she left school). She was then asked in re-examination whether the conduct complained about occurred when she was at school. She was asked:

When he [Morgan's counsel] asked the questions about these things happening in the 12 months before you went to Darwin, did you understand that question about what things he was talking about?

The answer was: 'Not really'. The transcript reveals the following:

What didn't you understand?---Can't remember. By just the way how he pronounced it I couldn't think.

What do you mean by that?---I need him to break it down a bit.

Have you broken it down a bit?---No.

151 This reveals the importance of taking care not to persuade unsophisticated witnesses to accept the proposition concealed in a question without giving them the opportunity to say whether they agree with the proposition or not. An example can be seen in the following interchange which was set out in a longer passage earlier in these reasons:

What about Shania? While these things were happening, was she in nappies or was she walking around and talking?---No, yeah, walking around, talking.

So while these things were happening that you have described, Shania was about three or four years of age. Correct?---I don't know what her age was.

Do you agree that you would think that she was around three or four when these events were happening?---Yes, something like that.

Something like that?---Mmhm.

152 The uncertainty revealed by the answers, that is, disagreeing with the first question and agreeing with it in the same answer, reveals the possible discomfort about the unstated proposition concealed in the question, namely that SBG was able to relate Shania's age to the occurrence of the events.

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153 Having viewed the DVD and having weighed all the evidence, I am satisfied that the verdicts of guilty were open to the jury. SBG was unshaken in her evidence that the conduct the subject of complaint in relation to counts 23, 24, 30 and 31 occurred when SBG was still at school. I am left in no reasonable doubt about the guilt of the appellant. This ground should be dismissed.

Ground 2 - use of directed acquittal

154 The reasons given for refusing leave to appeal on this ground in the Morgan appeal apply equally in this case.

Ground 3 - failure to warn not to convict on uncorroborated evidence

155 The reasons given for refusing leave to appeal on this ground in the Morgan appeal apply equally in this case.

156 HALL J: I agree with Pullin JA.