NCH v The State of Western Australia - [2013] WASCA 29

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: NCH -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 29

CORAM: MARTIN CJ
BUSS JA
MAZZA JA

HEARD: 17 OCTOBER 2012

DELIVERED : 11 FEBRUARY 2013

FILE NO/S: CACR 159 of 2011

BETWEEN: NCH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :DEANE DCJ
File No  :IND 535 of 2011

Catchwords:

Criminal law - Appeal against conviction - Appellant charged with multiple counts of sex offences against a girl aged 14 or 15 - Appellant convicted on some counts and acquitted on others - Defence counsel failed to cross examine some prosecution witnesses on some issues - Breaches by defence counsel of the rule in Browne v Dunn - Whether jury's verdicts were factually inconsistent or incompatible -Whether new evidence should be admitted in the appeal - Whether a miscarriage of justice occurred

Legislation:

Criminal Appeals Act 2004 (WA), s 39, s 40(1)
Criminal Code (WA), s 321(2), s 321(4)

Result:

Leave to appeal on ground 2 refused
Appellant's applications to rely on additional evidence in the appeal dismissed
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Ms L Petrusa

Solicitors:

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

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

Adamson v Ede [2009] NSWCA 379
Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1; (1983) 70 FLR 447
Bale v Mills [2011] NSWCA 226; (2011) 282 ALR 336
Browne v Dunn (1893) 6 R 67 HL
Bulstrode v Trimble [1970] VR 840
Burke v Corruption and Crime Commission [2012] WASCA 49; (2012) 289 ALR 150
Chanaa v Zarour [2011] NSWCA 199
DPJB v The State of Western Australia [2010] WASCA 12
Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
Merrey v The State of Western Australia [2010] WASCA 62
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329
R v Birks (1990) 19 NSWLR 677
R v Coswello [2009] VSCA 300
R v Ferguson [2009] VSCA 198; (2009) 24 VR 581
R v Foley [1998] QCA 225; [2000] 1 Qd R 290
R v Morrow [2009] VSCA 291; (2009) 26 VR 526
Rees v Bailey Aluminium Products Pty Ltd [2008] VSCA 244; (2008) 21 VR 478
Riley v The State of Western Australia [2007] WASCA 22
Rinaldi v The State of Western Australia [2007] WASCA 53
Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319
Village Cay Marina Ltd v Acland [1998] BCC 417
WCW v The State of Western Australia [2008] WASCA 232; (2008) 191 A Crim R 22
Williams v Dawson [2000] WASCA 205; (2000) 31 MVR 559
Williams v Smith [1960] HCA 22; (1960) 103 CLR 539

Table of Contents

Martin CJ's Reasons................................................................................................................. 5

Buss JA's Reasons..................................................................................................................... 5

Overview of the State's case at trial
Overview of the defence case at trial
The grounds of appeal
The appellant's applications to rely on additional evidence in the appeal
Ground 1: the appellant's particulars
Ground 1: the rule in Browne v Dunn: the trial judge's directions to the jury
Ground 1: the organisation of the balance of these reasons
Ground 1: particular (a)
Ground 1: particular (b)
Ground 1: particular (c)
Ground 1: particular (d)
Ground 1: particular (e)
Ground 1: particular (f)
Ground 1: particular (g)
Ground 1: particular (h)
Ground 1: did a miscarriage of justice occur at the trial?
Ground 2: the appellant's submissions
Ground 2: its merits
The merits of the applications to rely on additional evidence in the appeal

Conclusion

Mazza JA's Reasons................................................................................................................ 40

MARTIN CJ: The applications to rely on additional evidence and the appeal against conviction should be dismissed for the reasons given by Buss JA, with which I agree.
BUSS JA: The appellant has appealed to this court against conviction.
He was charged on indictment with 14 counts of sexual penetration of a child of or over the age of 13 years and under the age of 16 years, contrary to s 321(2) of the Criminal Code (WA) (the Code), and three counts of indecently dealing with a child of or over the age of 13 years and under the age of 16 years, contrary to s 321(4) of the Code.
All of the counts related to a girl (G) who was born in August 1994. During the period of the alleged offending G was aged 14 or 15 years. She was 17 when the trial occurred.
The appellant was born in June 1983. He was aged between 25 and 27 when the alleged offences were committed.
The appellant pleaded not guilty to all of the counts. He was tried in the District Court before Deane DCJ and a jury. The trial commenced on 12 September 2011 and finished on 16 September 2011.
The trial judge dismissed counts 7, 8, 10, 12, 13 and 17 after defence counsel made a submission of no case to answer. The jury returned verdicts of guilty on counts 14, 15 and 16. The appellant was acquitted on counts 1, 2, 3, 4, 5, 6, 9 and 11.
Counts 14, 15 and 16 alleged:
(a)Count 14: on 14 July 2010, at a Perth suburb, the appellant sexually penetrated G by penetrating her vagina with his penis.
(b)Count 15: on the same date and at the same place as in count 14, the appellant sexually penetrated G by engaging in fellatio.
(c)Count 16: on the same date and at the same place as in count 14, the appellant sexually penetrated G by penetrating her vagina with his penis.

Overview of the State's case at trial

The State's case at trial was as follows:

(a)In early 2009, when the appellant was staying at G's home, he commenced having sex with G, who was then aged 14 (ts 107).
(b)The sexual relationship continued until July 2010.
(c)The appellant had sex with G at her home, except for one occasion on 14 July 2010 when they had sex at the appellant's home. By that time, the appellant and his wife had moved from a town in rural Western Australia to Perth.
(d)G was a willing participant in the sexual activity.
(e)G's best friend, S, informed a teacher at their school of the nature of the relationship between the appellant and G (ts 137). The teacher informed the police, who then commenced an investigation.

The State's witnesses included G, her father, her stepmother and S.

Overview of the defence case at trial

The appellant gave sworn evidence at the trial. He denied having committed any of the alleged offences.
Defence counsel also called, amongst others, the appellant's wife and her employer, K, as witnesses.
The defence case at trial was that G was infatuated with the appellant. After pressure and bullying from S, she made allegations that she and the appellant had a sexual relationship. These allegations were false but, having made them, G felt unable to retract them and tell the truth.

The grounds of appeal

The appellant relies on two grounds of appeal.
Ground 1 alleges that defence counsel 'erred by failing to cross‑examine prosecution witnesses at trial on several key issues' and, as a result, there was a miscarriage of justice.
Ground 2 alleges that the jury returned 'inconsistent verdicts' and, as a result, there was a miscarriage of justice.
On 7 May 2012, this court (McLure P, Buss and Mazza JJA) granted leave to appeal on ground 1 and referred the application for leave to appeal on ground 2 to the hearing of the appeal.

The appellant's applications to rely on additional evidence in the appeal

The appellant has filed applications to rely on additional evidence in the appeal pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA).
The additional evidence is contained in an affidavit sworn 7 March 2012 by Siobhan Jacqueline Nims, an affidavit sworn 2 April 2012 by the appellant, affidavits sworn 5 April 2012 and 17 September 2012 by the appellant's wife and an affidavit sworn 17 October 2012 by counsel for the appellant.
I will refer to the additional evidence and deal with the applications later in these reasons.

Ground 1: the appellant's particulars

During the hearing of the appeal, counsel for the appellant formulated various particulars of ground 1 (appeal ts 36).
The particulars are as follows:
(a)G was not cross‑examined about the assertion by the appellant's wife that the wife was at home on 14 July 2010 when G maintained that she and the appellant were alone at the home and having sex (counts 14, 15 and 16).
(b)G, her father and her stepmother were not cross‑examined about the appellant's assertion that he had accidently left his mobile telephone in G's family motor vehicle on 13 July 2010 and that he did not retrieve it until 16 July 2010, when he collected it from G's father at her home.
(c)G was not cross‑examined about her failure to mention in her witness statement anything about the appellant's dogs (one of whom was, according to the appellant's wife, vicious) when she allegedly went to the appellant's home on 14 July 2010 and had sex with him.
(d)G was not cross‑examined about her description of the appellant's home which, according to the appellant's wife, was materially inaccurate.
(e)G was not cross‑examined about the assertion by the appellant's wife that on about 20 July 2010 she had a conversation with G at a darts competition as to the appellant's genitals and underwear.
(f)G was not cross‑examined about the appellant's assertion that on the afternoon of 13 July 2010 he collected G from a park and gave her a lift to her home in his motor vehicle.
(g)G, her father and her stepmother were not cross‑examined about the assertion by the appellant and his wife that other people (including G, her father and her stepmother) had access to and often used his mobile telephone.
(h)G was not cross‑examined about her failure to mention in her witness statement anything concerning the appellant having (according to the appellant's wife) a distinctive vein that runs from underneath his left testicle to the base of his penis, stretch marks on his legs and a scar on the inside of his right thigh.

Ground 1: the rule in Browne v Dunn: the trial judge's directions to the jury

After the close of the defence case, the trial judge raised with defence counsel and the prosecutor, in the absence of the jury, defence counsel's apparent failure to comply with the rule in Browne v Dunn (1893) 6 R 67 HL (ts 413 ‑ 420).
Defence counsel and the prosecutor accepted that it was necessary for her Honour to give the jury directions in her summing up about defence counsel's non‑compliance with the rule.
The trial judge gave the jury four relevant directions in her summing up.
First:
[The appellant] admits on some occasions, including on 2 June, he may well have and perhaps did send SMS messages to [G's] mobile phone, but they were he said, confined to the topic of darts and dart playing. He said he did not send any SMS messages to her telephone on either 13 or 14 July because he said he did not have access to his mobile phone on those dates for the reasons he explained. That he'd left it in the car, I think [G's family] car, on 13 July after the darts game. Of course, neither [G, her father nor her stepmother], who were also apparently in the car having attended the game that night, were asked about that particular issue; namely, whether a mobile phone was left in the car. And none of them were asked whether, subsequently, arrangements were made for that phone to be collected from [G's] home on Friday of that week. So we do not know what, if anything, any of those three witnesses might have said about that particular issue (ts 436 ‑ 437).
Secondly:
[The appellant] recalled on one occasion when he said he did give [G] a lift to her house … That he said was on 13 July 2010 and he said he remembered that date because he had an interview that day for a job at 3 pm. He said he worked in the morning with … and left around 1.30 to go to the interview. He said he [had] a phone call, or contact, from [G] around 3.30 pm requesting that he pick her up at a park … which he did. He believed that she'd been at [S's] house. He dropped her off at home and then he went [to a Perth suburb] to see his wife who was apparently working there. He was driving the red Hyundai on that occasion because he said his wife had the black Subaru. [G] was not asked in cross‑examination about that particular alleged contact where the accused said he picked her up that day at around 3.30 or thereabouts … and dropped her off at home, so we do not know what she would have said about that (ts 470).
Thirdly:
[The appellant's wife] explained that [the appellant] wears boyleg underwear and then referred to a conversation which she said she had with [G] on one occasion that was quite personal in nature. It touched on sexual matters including what underwear [the appellant] wore, whether he was circumcised and such like. In essence she suggested that this is where perhaps [G] would have obtained information regarding the type of underwear [the appellant] wore. [The appellant's wife] said she did not think that that particular conversation was inappropriate, rather she saw it as a teenage girl being curious and asking questions she may not have felt comfortable asking another person. That conversation in all its detail was not put to [G] in cross-examination, so we do not know what, if anything, she would have said about the particular details of the conversation alleged (ts 474).
Fourthly:
The State remind you of [the appellant's] evidence as to his movements on 13 July, leaving his mobile phone in the car of [G's family] that evening after leaving the darts game and they say that [G, her father and her stepmother] were not asked if the phone was left there, nor was [G] asked if [the appellant] picked her up from a park on 13 July in the afternoon so they say we don't know [what] those witnesses would have said about those matters if asked. And, in fact, I think [G] as I said was not also asked in detail about that alleged conversation with [the appellant's wife] regarding intimate matters (ts 483).
Neither defence counsel nor the prosecutor sought any redirection or additional direction from her Honour in relation to defence counsel's non‑compliance with the rule.

Ground 1: the organisation of the balance of these reasons

I will analyse each of the particulars of ground 1 by reference to the trial record, and decide whether it has been made out. I will then consider whether a miscarriage of justice occurred at the trial as alleged in the ground.

Ground 1: particular (a)

G said in evidence‑in‑chief that on the evening of Tuesday, 13 July 2010 she went to a darts competition with her father, her stepmother and the appellant. They travelled to and from the competition in her family's motor vehicle. During the return trip, the appellant sent her an SMS message to the effect that she should 'cough if [she] wanted to go to his house' the next day (ts 114). She did not reply. She did not 'cough or anything' (ts 115). The appellant then sent her another SMS message. He turned around and she nodded 'to imply that [she] wanted him to pick [her] up in the morning' (ts 116).
G gave evidence that the next day (Wednesday, 14 July 2010) the appellant sent her an SMS message 'about 7, quarter past 7, said that he would pick me up at 7.30' (ts 116). The examination‑in‑chief then proceeded:
Where were your parents when you got that text message---They were at work.
What about your brothers---I'm not too sure.
All right. Anything else you can remember about that day? What sort of day it was---It was sunny.
Okay. When your parents left for work, what time did they leave for work---In the morning so roughly about 6 o'clock.
Did you have school that day---No, I was on holidays.
Who else was living with you at the time---My parents and my brother.
Which brother---[SN].
What was he doing---I think he might have had work or he had to go to court for a driver's licence.
He … had to go to court for a driver's licence---Yeah, he had a driver's licence thing he had to go to court for.
All right. At … that point in time, was [R] still living with you---No, he'd moved in with his girlfriend.
All right. So you got a text message from [the appellant] that morning and ‑ saying that he would pick you up, and then what happened---I got dressed and then he told me he was out the front and I got into his car (ts 116 ‑ 117).
G said that after the appellant picked her up they travelled to his home. It was 'about a 5/10 minutes drive' (ts 117). On arrival at the appellant's home, they 'went through the front door, and then turned right into his bedroom … and he got undressed and [they] started to have intercourse' (ts 117).
The prosecutor tendered in evidence computer records held by the telecommunications carrier, Optus, in relation to a mobile telephone registered in the name of the appellant's wife but used by him. The records related to the period from 1 February 2009 to 24 July 2010.
G gave evidence as to her mobile telephone number at the material time (ts 122). The number ended with the digits 370.
The Optus records reveal that on 14 July 2010 SMS messages were sent from the appellant's mobile telephone to G's mobile telephone at 7.11 am and 7.25 am (AB 149).
The appellant said in evidence‑in‑chief that around 7.30 am or 8.00 am on 14 July 2010 he and his wife were at home (ts 320). He was 'definitely not' having sex with G at his home at that time (ts 320).
The appellant's wife was emphatic in her evidence that she was at home between 7.30 am and 8.30 am on 14 July 2010. The following exchange occurred in cross‑examination:
In relation to … 14 July---Yes.
You indicated that you were working at the time in [a Perth suburb] is that correct---Yes, that's right.
And you said that you were getting ready for work at 7.30---No, … I would have been up getting ready for work at 7.30 in the morning. I would have still been at home at 8.30, 20 to nine.
But you started work at nine, didn't you---Yes, that's right.
And in fact, you were supposed to be there at least 10 minutes earlier, weren't you---I never was.
You never were---Yeah, … I never got there 10 minutes early. I was always smack on. We had long days.
But your supervisor expected you to be there earlier than the 9 o'clock start, didn't she---She did but I never was. If I left at 8.30 in the morning, I still would have been there at 10 to.
It took you some time to get there, didn't it---Yeah, it would take me 20 minutes, 25 minutes.
25 minutes to get there---Yeah.
And especially in the morning, 8.30---Well, no, that's in peak hour traffic you're talking about.
That's in peak hour traffic, 25 minutes---Yes, yes, in peak hour traffic.
And you would still be at home at 8.30---Yes.
For a 9 o'clock start---Absolutely (ts 410 ‑ 411).
K (the appellant's wife's employer) gave evidence that a business operating roster for the week commencing Monday, 12 July 2010, stated that on 14 July 2010 the appellant's wife's shift commenced at 9.00 am and finished at 7.00 pm (ts 384). K expected her staff (including the appellant's wife) to be at work before the commencement of their shift (ts 385). She therefore expected that the appellant's wife would have been at work 'slightly before 9.00 am' on 14 July 2010 (ts 385).
Contrary to particular (a) of ground 1, defence counsel did cross‑examine G about the assertion by the appellant's wife that the wife was at home on 14 July 2010 when G maintained that she and the appellant were alone at the appellant's home and having sex. The relevant passage in the cross‑examination reads:
You were only there for an hour and a bit, weren't you---No, I was at his house till from like 7.30 till 11.
You think you were there from 7.30 to 11---Yes. Well---
And [the appellant's wife] wasn't home---No.
And this was the day that [your brother, SN] had to go to court, is it---Yes.
Well, to make sure you understand what I'm talking about, is this the date your brother [SN] … had to go to court for drink driving---I think so.
Well, according to records, that's 14 July 2010, which is a Wednesday, right---Yes.
The trouble with what you're telling us is that [the appellant's wife] … was working that day but only from 9 o'clock in the morning, which means she would have been home at 7.30. How does that sound?---Well, I don't know. I wasn't sure what time it was.
Well, you're very clear that it was about 7.30, now you say to 11.30, so if that's right---He picks me up at 7.30.
Right---That's what I mean.
He's having sex with you … in his bed shortly thereafter---Yes.
And you say she's not home---No (ts 163 ‑ 164).

Particular (a) of ground 1 fails.

Ground 1: particular (b)

As I have mentioned, the Optus records reveal that on 14 July 2010 SMS messages were sent from the appellant's mobile telephone to G's mobile telephone at 7.11 am and 7.25 am (AB 149).
This evidence was significant because if the appellant sent those messages from his mobile telephone it corroborated G's evidence that she had received SMS messages from him at about those times.
Further, the Optus records reveal that on 13 July 2010 SMS messages were sent from the appellant's mobile telephone to G's mobile telephone at 10.28 pm, 10.32 pm and 10.34 pm (AB 149).
This evidence was significant because it tended to corroborate G's evidence that he sent her SMS messages on the night of 13 July 2010, while they were travelling in G's family motor vehicle after the darts competition, to arrange to pick her up the following morning.
The Optus records also show:
(a)On 7 July 2010, more than 40 SMS and voice messages were sent from the appellant's mobile telephone. However, none was sent to G's mobile telephone (AB 145 ‑ 146).
(b)On 8 July 2010, more than 40 SMS and voice messages were sent from the appellant's mobile telephone. Of these, four SMS messages were sent to G's mobile telephone between 9.04 am and 9.47 am (AB 146 ‑ 147).
(c)On 9 July 2010, more than 30 SMS and voice messages were sent from the appellant's mobile telephone. Of these, eight SMS messages were sent to G's mobile telephone between 10.11 am and 11.21 pm (AB 147).
(d)On 10 July 2010, 11 SMS and voice messages were sent from the appellant's mobile telephone. However, none was sent to G's mobile telephone (AB 147).
(e)On 11 July 2010, four SMS and voice messages were sent from the appellant's mobile telephone. Of these, two SMS messages were sent to G's mobile telephone at 10.58 pm and 11.03 pm (AB 147).
(f)On 12 July 2010, more than 25 SMS and voice messages were sent from the appellant's mobile telephone. However, none was sent to G's mobile telephone (AB 147 ‑ 148).
(g)On 13 July 2010, more than 40 SMS and voice messages were sent from the appellant's mobile telephone. Of these, three SMS messages, being those transmitted at 10.28 pm, 10.32 pm and 10.34 pm, were sent to G's mobile telephone (AB 148 ‑ 149).
(h)On 14 July 2010, 19 SMS messages were sent from the appellant's mobile telephone. Of these, two SMS messages, being those transmitted at 7.11 am and 7.25 am, were sent to G's mobile telephone (AB 149).
(i)No SMS or voice messages were sent from the appellant's mobile telephone on 15, 16 or 17 July 2010.
(j)On 18 July 2010, one voice message was sent from the appellant's mobile telephone, but it was not sent to G's mobile telephone (AB 149).
(k)No SMS or voice messages were sent from the appellant's mobile telephone on 19, 20, 21 or 22 July 2010 (AB 149).
(l)On 23 July 2010, eight SMS and voice messages were sent from the appellant's mobile telephone, but none was sent to G's mobile telephone (AB 149).
(m)On 24 July 2010, more than 20 SMS and voice messages were sent from the appellant's mobile telephone, but none was sent to G's mobile telephone (AB 149).
Defence counsel asked the appellant, at the end of his examination‑in‑chief, whether he had his mobile telephone on 14 July 2010. It appears that counsel had forgotten to ask him about the matter. It was necessary for counsel to reopen the examination‑in‑chief. The relevant passage in the transcript is as follows:
HOFMANN, MR: I have no further questions thank you, ma'am.
DEANE DCJ: I'm just looking at the time in relation to your cross‑examination, Ms Robinson. I don't know whether you want to make a start or whether it would be preferable from your perspective if we commenced your cross-examination after the luncheon adjournment.
ROBINSON, MS: I would prefer to commence it after lunch …
HOFMANN, MR: Sorry, I forgot one question.
DEANE DCJ: No, just bear with us. Yes, certainly.
HOFMANN, MR: And this is important. So, in relation to the use of your telephone on the last occasion of 14 July, could you indicate … if you even had your telephone on that day---Definitely not.
Where ‑ I'm sorry, I didn't mention it - - ----I left it … in the car the night before.
So you're saying on Tuesday 13 July you left it in someone's car---Yes.
And when did you retrieve it---On the Friday, the 16th.
How did you work this out---Because a friend of ours, [K], we went to her house on that Friday night and I made a phone call from her house …
To [G's father]---To [G's father], to see if he was home so that I could go and pick the phone up.
So the text messages generated from that telephone to [G] as per the records on Wednesday 14 July; what do you have to say about that---Well, it was not from me.
HOFMANN, MR: No further questions. Thanks, ma'am (ts 321 ‑ 322).
The appellant gave evidence to similar effect in cross‑examination. After the appellant reiterated that he had left his mobile telephone in G's family motor vehicle on the night of 13 July 2010, the cross‑examination proceeded:
All right. Now your evidence-in-chief was you didn't get it back until 16 July---That's true.
What makes you think that---I went out with my wife to [K's] house, … [who] was actually [my wife's] boss at the time.
Mm hmm--- … I made a phone call to [G's father] …
All right---From [K's] home phone. And I drove across from her house and picked my phone up from [G's father's] house on that Friday night.
On the Friday night---On the Friday (ts 345 ‑ 346).
The appellant's wife gave this evidence, without objection, in examination‑in‑chief:
[A]round 14 July can you remember [the appellant's] telephone, … if he had it or didn't have it, or what became of it---[The appellant] had left his phone in [G's father's] car.
When was that---On the Tuesday night at darts.
Tuesday---It would have been I think---
The 13th of------14th is a Wednesday so, yeah, the 13th. I remember this particularly, because on the Friday night we went to my girlfriend ‑ to [K's] house and [the appellant] had to use [K's] phone to ring [G's house] to see if they were home so he could go pick his phone up.
So did he not to your best knowledge and belief have a telephone from Tuesday the 13th, certainly on 14 July through to the Friday---He didn't have it, he didn't have it at all. I was setting alarms for both of us to get up for work. He didn't - he didn't have his phone.
And when he does have a telephone------Yes.
- - - how often does he use it---He would prefer to text than to call, he is a serial texter it drives me nuts (ts 403).
K (the appellant's wife's employer) corroborated part of the evidence given by the appellant and his wife. She confirmed that the appellant and his wife came to her home on the evening of Friday, 16 July 2010. K said that the appellant and his wife arrived at about 7.30 pm and they decided to have dinner. She said, without objection, that the appellant did not have his mobile telephone. K elaborated:
So he borrowed my home phone to call his friend and then he went to go collect his phone. He was gone for no longer than half an hour 45 minutes. And then we went on to get some dinner (ts 385).
Defence counsel appears to have led the evidence from the appellant, his wife and K about the appellant having allegedly left his mobile telephone in G's family motor vehicle on the night of 13 July 2010, and not having retrieved it until he went to G's home on 16 July 2010, for the purpose of:
(a)undermining the State's contention that the appellant sent the SMS messages to G at 7.11 am and 7.25 am on 14 July 2010; and
(b)eliciting an evidentiary basis for the proposition that G or someone else in her household had sent those SMS messages from the appellant's mobile telephone.
However, defence counsel did not cross‑examine G, her father or her stepmother about the appellant's assertion that he had accidently left his mobile telephone in G's family motor vehicle on the night of 13 July 2010 and that he did not retrieve it until 16 July 2010, when he collected it from G's home.
When the trial judge raised the Browne v Dunn point, defence counsel gave this explanation for his failure to cross‑examine as alleged in particular (b):
HOFMANN, MR: No, I wish I had ‑ no, I don't think they ‑ I'm just checking the transcript now. I don't think there was. The telephone, we never placed much import on but it's obviously become bigger as the trial's evolved and the whereabouts particularly on the 14th, I hadn't covered it because as I said, I wasn't giving it much forensic interest.
DEANE DCJ: No, no.
HOFMANN, MR: It's become more important for the accused---
DEANE DCJ: Well, clearly, in the course of the defence case it has taken on significance.
HOFMANN, MR: I would have happily put that to either of those witnesses (ts 419).
Her Honour referred to defence counsel's omission in her summing up.
Particular (b) of ground 1 has been made out.

Ground 1: particular (c)

G did not mention in her witness statement (or her evidence‑in‑chief) that on 14 July 2010, when she and the appellant went to the appellant's home, she saw or heard the appellant's dogs.
The appellant's wife said in her evidence‑in‑chief that she and the appellant had two dogs. One of them, called Gypsy, was 'very aggressive' (ts 401). She gave this evidence, without objection, about what would, in her opinion, have occurred if, contrary to the appellant's evidence, G had visited her home with the appellant on 14 July 2010:
Yes---And so if [G] got out of our car, Gypsy would have attacked her. There is no doubt in my mind. If Gypsy's inside which our dogs were because … the guy told us to keep them inside until we get a gate which we didn't get … until late September.
Late September---Late September 2010 we got a gate and if the dog was inside, [G] would not have been able to get into the house without [the appellant] having to put her out. When the police came to arrest [the appellant], they asked him to remove the dog.
When the police ultimately came to your house to investigate, you're saying---Yes, they asked [the appellant] to remove the dog, put her outside.
Why---Because she jumps up on the gate. Anybody who knows her, she jumps at the door, … she's protective of the house and she won't let you in unless we calm her down.
So the relevance of the dog, what relevance has that got to this girl being at your house at 7.30 in the morning on Wednesday, the 14th---Because she's not even mentioned the dogs. There is no way that - she's not even mentioned anything about the dogs. She says she's come to our house, gone into our bedroom and had sex with [the appellant]. One, I would have been there. Two, there's no way in the world that she could have got in the house with Gypsy without [the appellant] taking Gypsy outside (ts 402).
Defence counsel did not cross‑examine G about the matter.
However, defence counsel's omission was not mentioned by the trial judge or the prosecutor when the Browne v Dunn point was discussed. Her Honour did not refer to the omission in her summing up.
Particular (c) of ground 1 has been made out.

Ground 1: particular (d)

G said in evidence‑in‑chief that she had 'been to' the appellant's home before 14 July 2010 but she had not 'been inside it' (ts 117).
Defence counsel did not cross‑examine G about that evidence. Also, he did not suggest to G that her description of the appellant's home (in particular, the inside of the home) was materially inaccurate.
The appellant's wife did not give evidence to the effect that G's description of the appellant's home, in the course of G's evidence as to what happened when she went there with the appellant on 14 July 2010, was materially inaccurate.
However, the appellant's wife did state in evidence‑in‑chief in effect that G had been inside the appellant's home before 14 July 2010:
Had [G's family] been to your house in [the Perth suburb]---Yes, yes.
Had [G] been to the house in [the Perth suburb] on previous occasions‑‑‑Yes. She came with [her father] to pick [the appellant] up when they went to darts.
So did she have opportunity to explore how it was laid out and things, how things looked and ‑ ‑ ----Yes, and we had the same furniture in [the Perth suburb] as we did in [the town in rural Western Australia]. She knows what our house looks like. It's very easy for her - she came in. She'd stand in our living room while she was waiting for [the appellant] to get his darts and stuff with her dad (ts 402 ‑ 403).
Defence counsel appears to have led this evidence from the appellant's wife for the purpose of:
(a)contradicting G's evidence that she had not been inside the appellant's home before 14 July 2010; and
(b)explaining how G was able to give a description of the appellant's home even though, on the defence case, her evidence that she went there with the appellant on 14 July 2010 was false.
Particular (d) of ground 1, as formulated, has not been made out. However, defence counsel did breach the rule in Browne v Dunn by failing to put to G in cross‑examination that she had been inside the appellant's home before 14 July 2010.

Ground 1: particular (e)

G did not give any evidence about a conversation with the appellant's wife on about 20 July 2010 as to the appellant's genitals and underwear.
However, the appellant's wife gave this account of such a conversation while they were at a darts competition:
[I]t was girl chat, and we were talking about whether … you could tell whether guys had a big penis or not by the way they walked. And we started talking about boxers, whether the satin ones, or the boyleg ones, or jocks. She asked me what [the appellant] wears. I told her … he wears the boyleg shorts. She told me her dad wears the same ones … she asked me the difference between a circumcised penis and a uncircumcised penis, and why a man would have either/or. I explained to her, you know, sometimes it's medical, sometimes it's a religion thing, some people do, some people don't. She asked me whether [the appellant] had his circumcised, I told her he didn't. She also told me her dad wasn't.
… it sounds like a fairly candid discussion. How far did ‑ - ----Well … her father … is quite hairy. I don't like hairy men, never had. [The appellant's] not hairy; we discussed that. Basically, I just thought it was teenager girl who was too scared to ask anybody else the questions, asking me to get some information. And by no means did I think it would end up here (ts 397 ‑ 398).
Defence counsel did not cross‑examine G about the matter.
The trial judge referred to this omission when she raised the Browne v Dunn point. She had the following exchange with defence counsel:
HOFMANN, MR: Listen, it's not a perfect science, I accept that, ma'am.
DEANE DCJ: No.
HOFMANN, MR: But I thought I had covered it.
DEANE DCJ: No, it is a Browne v Dunn point.
HOFMANN, MR: Yes (ts 414).
Her Honour referred to defence counsel's omission in her summing up.
Particular (e) of ground 1 has been made out.

Ground 1: particular (f)

G said in evidence‑in‑chief that when the appellant collected her from her home on the morning of 14 July 2010 he was wearing a suit and an aqua coloured tie (ts 117).
G did not give evidence about being collected by the appellant from a park on the afternoon of 13 July 2010 and given a lift to her home in his motor vehicle.
The appellant said in his evidence‑in‑chief that on 13 July 2010 at 3.00 pm he had an interview for employment with a company. He had worked in the morning. He finished at about 1.30 pm. The appellant said that he then went home and changed his clothes for the interview. He mentioned that at about 3.30 pm he received a telephone call from G. At her request, he collected G from a park in a Perth suburb and drove her to her home. After dropping G at her home, he went to another Perth suburb to see his wife (ts 326).
The prosecutor asked the appellant in cross‑examination what clothes he wore to the interview. The appellant said he wore a dark navy blue suit, a white shirt and a blue tie (ts 343).
Defence counsel did not cross‑examine G about the clothes the appellant was allegedly wearing on 13 July 2010.
At the hearing of the appeal, counsel for the appellant submitted that at the material time the appellant was employed as a labourer. He did not usually wear a suit and tie. Counsel argued that the 'appellant's case' was that G was confused about the events of 13 and 14 July 2010 and that the appellant was wearing a suit on the afternoon of 13 July 2010 and not on the morning of 14 July 2010 (appeal ts 16).
When the trial judge raised the Browne v Dunn point the prosecutor referred to defence counsel's omission to cross‑examine G about the afternoon of 13 July 2010:
ROBINSON, MS: It was never put to [G] that on the afternoon of the 13th, she was picked up by the accused and he was wearing his suit back then because of the interview. She was never given the opportunity to comment on that.
DEANE DCJ: Well, Mr Hofmann, what do you say about that?
HOFMANN, MR: I didn't even know he was wearing a suit, ma'am. That came out of the blue.
DEANE DCJ: All right. But looking at ‑ ‑ ‑
HOFMANN, MR: A shot out of the blue.
DEANE DCJ: Looking at the question of collecting her on the afternoon of the 13th after the job interview.
HOFMANN, MR: It was never canvassed. I had never thought it was going to be covered in evidence.
DEANE DCJ: Well, I realise that ‑ ‑ ‑
HOFMANN, MR: Yes.
DEANE DCJ: ‑ ‑ ‑ sometimes ‑ ‑ ‑
HOFMANN, MR: It's exactly ‑ ‑ ‑
DEANE DCJ: ‑ ‑ ‑ one does not have a crystal ball but---
HOFMANN, MR: No. But unlike the prosecution, we don't have the benefit of ‑ ‑ ‑
DEANE DCJ: No.
HOFMANN, MR: ‑ ‑ ‑ definitive depositions.
DEANE DCJ: No.
HOFMANN, MR: Our statements sometimes are incomplete.
DEANE DCJ: It happens, Mr Hofmann. But obviously the reverse is that a witness should be given the opportunity to ‑ ‑ ‑
HOFMANN, MR: Sure.
DEANE DCJ: ‑ ‑ ‑ comment on evidence that is going to be led. I accept that one sometimes does not know what will come out (ts 415 ‑ 416).
It appears that what 'came out of the blue' for defence counsel was the appellant's evidence, in answer to a question from the prosecutor, about what he was allegedly wearing on the afternoon of 13 July 2010.
Her Honour referred to defence counsel's omission in her summing up. The reference was to the alleged contact between the appellant and G on the afternoon of 13 July 2010.
Particular (f) has been made out.

Ground 1: particular (g)

The appellant gave evidence that he permitted 'other people' to use his mobile telephone 'lots of times' (ts 313).
The appellant's wife gave evidence about the use of mobile telephones at darts competitions:
What happens to the telephones---They all go on one table where usually [G's stepmother] will be sitting and she likes to hold everything and basically, the guys walk off and play their darts for the night.
What ‑ how liberal was the use of [the appellant's] telephone amongst the ‑ particularly [G's] family, amongst his mates---He ‑ if somebody wanted to use the phone to make a phone call, he'd let them use it. Everybody does that. Like, you'd find it everywhere. If somebody says, 'Can I use your phone to make a text?', it's not a problem. It's easy to pick up somebody else's phone and have a look through it (ts 407).
Defence counsel appears to have led the evidence about the use of the appellant's mobile telephone at darts competitions for the purpose of rebutting G's evidence that the appellant had sent her and her friend, S, a photograph of himself. In the photograph the appellant had a towel across his arms but was otherwise naked. His penis was erect. G thought that the appellant had sent the photograph from his mobile telephone to her mobile telephone, and it was then transmitted to S's mobile telephone, but she was 'not too sure' (ts 131). G added that she and S called the appellant 'Wonky Cock' because in the photograph his penis was 'kind of on the side' (ts 132).

The appellant admitted in evidence that he had taken the photograph in question with his mobile telephone, but denied having sent it to G. He said that he took the photograph when he was living in Perth and his wife was living in the town in rural Western Australia. He accepted that in the photograph he was nude and his penis was erect. After denying that he had sent the photograph to G, the appellant gave this evidence:
Do you have any idea, don't guess, how she got this---We could have had any amount of time for her to have a look at that phone.
Did she have access to your telephone---Absolutely.
On what occasions---On many occasions during darts.
Explain---?---We'd ‑ we'd have and this would be Jan that would have our belongings cos she wouldn't play, she'd be there watching. All the blokes would come there and they'd have all their darts cases and their mobile phones, cos you wouldn't be wanting any in your pockets when you play. So you'd put it ‑ you'd put it all on a - generally a pool table, cover a pool table, and someone would sit there and ‑ and watch all your gear, cos of the thieves around. Terrible in darts (ts 312 ‑ 313).
The appellant's wife gave evidence that when the appellant was living in Perth and she was living in the town in rural Western Australia, the appellant sent her the photograph in question (ts 406).
Contrary to particular (g) of ground 1, defence counsel did cross‑examine G about the assertion by the appellant and his wife that at darts competitions mobile telephones (including the appellant's mobile telephone) were placed on a table and were accessible to other people (including G) and that G had used the appellant's mobile telephone to transmit the nude photograph to her mobile telephone:
[Y]ou and [S] said [the appellant] sent you a picture with a … wonky cock. You had plenty of time with darts competitions to ‑ in fact, he would let you use his telephone, I would suggest; would you agree---I'm not sure.
Right. You had plenty of time to surf through his stuff, his pictures on his telephone. You knew he had a picture, I would suggest, did you not? You had plenty of time---To search through his phone?
At darts competitions they all threw their phones in a bundle and if you're not playing but you're at the table, all the phones are there. And he's a good funny guy, you could surf through his telephone stuff---They don't put their phones in a bundle.
They don't---No.
Well, [the appellant] put his phone close by you because he trusted you‑‑‑Yeah. I don't know, so ‑ ‑ ‑
Well, if you saw a picture of him exposing himself------He sent it to me.
You sure you didn't fiddle with his phone and just send it to yourself, thinking it was pretty bloody funny---No.
You sure---Yes.
You would say he sent you that---Yes (ts 171 ‑ 172).
However, defence counsel did not cross‑examine G's father or her stepmother about the assertion by the appellant and his wife that other people (including G's father and her stepmother) often used his mobile telephone.
Defence counsel's omission was not mentioned by the trial judge or the prosecutor when the Browne v Dunn point was discussed. Her Honour did not refer to it in her summing up.
Paragraph (g) has been made out in part.

Ground 1: particular (h)

The appellant's wife said in her evidence‑in‑chief that the appellant has a distinctive vein that runs from underneath his left testicle to the base of his penis, stretch marks on his legs and a scar on the inside of his right thigh (ts 406). She volunteered this evidence after she had been questioned about the nude photograph of the appellant:
Was it wonky---No … [the appellant] is straight; he's not left, he's not right, he's straight. Can I also say something about [the appellant's] genital area?
I suppose---[the appellant] has a dark vein that runs from underneath his left testicle right up to the base of his penis. You cannot miss it. He also has stretch marks on his legs and a scar on the inside of his right thigh (ts 406).
A little later, the appellant's wife expressed the opinion, without objection, that:
If [G] states ‑ in [G's] statement she says that she has a lot of oral sex with [the appellant], she would have seen this vein (ts 407).
Counts 13 and 15 alleged that the appellant had sexually penetrated G by engaging in fellatio.
Defence counsel did not cross‑examine G about her failure to mention in her witness statement anything concerning the appellant's alleged vein, stretch marks or scar.
However, this omission was not mentioned by the trial judge or the prosecutor when the Browne v Dunn point was discussed. Her Honour did not refer to it in her summing up.
Particular (h) of ground 1 has been made out.

Ground 1: did a miscarriage of justice occur at the trial?

The rule in Browne v Dunncomprises two limbs. The first limb is that, unless notice has already clearly been given of the party's or cross-examiner's intention to rely upon such matters, a party or cross-examiner who intends to invite the court to disbelieve an opposing witness must put to the witness in cross-examination the grounds upon which the evidence is to be disbelieved. The second limb is that, unless notice has already clearly been given of the party's or cross-examiner's intention to rely upon such matters, a party or cross‑examiner must put to an opposing witness in cross-examination the nature of the case upon which it is intended to rely in contradiction of the witness's evidence, especially where that case relies upon inferences to be drawn from other evidence. See Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1; (1983) 70 FLR 447, 16, 18, 26 (Hunt J); Village Cay Marina Ltd v Acland [1998] BCC 417, 426 (Lord Hoffman, Lord Lloyd of Berwick, Lord Nolan, Lord Hope of Craighead & Sir Andrew Legatt agreeing); Williams v Dawson [2000] WASCA 205; (2000) 31 MVR 559 [32] (Parker J, Kennedy & Wheeler JJ agreeing); Merrey v The State of Western Australia [2010] WASCA 62 [9] ‑ [11] (McLure P, Owen JA & Jenkins J agreeing); Bale v Mills [2011] NSWCA 226; (2011) 282 ALR 336 [42] ‑ [48] (Allsop P, Giles JA & Tobias AJA).
The policy rationale that underpins the rule in Browne v Dunn is the securing of fairness in the conduct of adversarial proceedings. See R v Birks (1990) 19 NSWLR 677, 688 (Gleeson CJ, McInerney JJ agreeing); Adamson v Ede [2009] NSWCA 379 [56] ‑ [62] (Campbell JA, Giles & Hodgson JJA agreeing); Chanaa v Zarour [2011] NSWCA 199 [13] (Campbell JA, Bathurst CJ & Tobias AJA agreeing). The first limb is concerned with achieving fairness to witnesses and a fair trial between the parties. The second limb is concerned with the weight or cogency of evidence. See Bulstrode v Trimble [1970] VR 840, 846 ‑ 848 (Newton J); Allied Pastoral Holdings (18). The rule facilitates a court's assessment of the reliability and accuracy of the witnesses. See Rees v Bailey Aluminium Products Pty Ltd [2008] VSCA 244; (2008) 21 VR 478 [21] (Ashley & Redlich JJA and Coghlan AJA).
The rule in Browne v Dunn is not absolute. It must be applied with flexibility. In R v Birks, Gleeson CJ emphasised:
It is plain that their Lordships [in Browne v Dunn], whilst recognising and affirming a rule of practice in the terms in which they expressed themselves, also recognised the need for flexibility in its application. That need arises from the very nature of the subject matter which it concerns. The central purpose of the rule is to secure fairness in the conduct of adversary proceedings. That consideration provides the best guide, both to the practical requirements of the rule in a given case, and to the consequences which may properly flow from its non-observance, including the remedies that are available to deal with a problem so created (688).
Browne v Dunn involved civil litigation. The plaintiff brought an action for defamation. There was a trial before a judge and jury. None of the witnesses was cross-examined on the point in question.
Although it has been held that the rule in Browne v Dunn also applies in criminal proceedings, the rule must be applied with considerable care and circumspection in a criminal context, especially where the defence case has not been adequately put to the complainant or another prosecution witness. The rule does not apply in the same manner or with the same consequences as in civil litigation. See MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 [18] (Gleeson CJ & Heydon J), [40] ‑ [41] (Gummow, Kirby & Callinan JJ); R vCoswello [2009] VSCA 300 [7] (Nettle JA).
Where the rule in Browne v Dunn has been breached in a criminal trial, the manner in which the breach should be dealt with will depend on the nature and extent of the breach and the particular facts and circumstances generally. See R v Foley [1998] QCA 225; [2000] 1 Qd R 290, 291 ‑ 292 (de Jersey CJ, Thomas JA & Derrington J); R v Ferguson [2009] VSCA 198; (2009) 24 VR 581 [276] ‑ [278] (Maxwell P, Buchanan & Weinberg JJA); R v Morrow [2009] VSCA 291; (2009) 26 VR 526 [3] ‑ [6] (Nettle JA), [56] ‑ [70] (Redlich JA, Lasry AJA agreeing); Burke v Corruption and Crime Commission [2012] WASCA 49; (2012) 289 ALR 150 [191] (Buss JA, Martin CJ & Mazza JA agreeing).
Where the rule in Browne v Dunn has been breached in a criminal trial before a judge and jury, it will be necessary for the trial judge to decide how, in the particular circumstances and in the interests of justice, the breach should be dealt with. The authorities indicate that, depending on the particular circumstances, the discretionary responses available to a trial judge include:
(a)having a witness or witnesses recalled for cross‑examination or further cross‑examination;
(b)ruling that it is not fairly open to counsel who breached the rule to make a particular submission in his or her closing address;
(c)drawing to the jury's attention in summing up that a witness was not given the opportunity to respond to particular evidence led from another witness;
(d)informing the jury that the failure to put specified matters to a witness may be taken into account by the jury in assessing the weight to be given to the witness's evidence about those matters;
(e)if the trial judge is satisfied that the omission was the fault of defence counsel or the instructing solicitor and not the accused, informing the jury of the potential disadvantage to the State's case or other witnesses from the omission, and stating that this was defence counsel's or the instructing solicitor's fault and not that of the accused; and
(f)discharging the jury.
See Foley (292); Ferguson [277] ‑ [278]; Morrow [3] ‑ [6], [59] ‑ [70]; Merrey [17].
In my opinion, there was no miscarriage of justice in the present case as a result of any failure by defence counsel to cross‑examine as alleged in the particulars of ground 1. My reasons are as follows.
First, as to particular (a), defence counsel did cross‑examine G about the assertion by the appellant's wife that the wife was at home on 14 July 2010 when G maintained that she and the appellant were alone at the home and having sex.
Secondly, as to particular (d), defence counsel did not suggest to G in cross‑examination that her description of the appellant's home was materially inaccurate, but none of the defence witnesses (in particular, the appellant's wife) gave evidence to that effect.
Defence counsel did not put to G that, contrary to her evidence‑in‑chief, she had been inside the appellant's home before 14 July 2010. As I have mentioned, the appellant's wife said in evidence‑in‑chief that before 14 July 2010 G had been inside the appellant's home. This evidence appears to have been led for the purpose of contradicting G's evidence on the point and, also, explaining how G was able to describe the inside of the appellant's home even though, on the defence case, her evidence that she went there with the appellant on 14 July 2010 was false.
Thirdly, as to particular (g), defence counsel did cross‑examine G about whether mobile telephones (including the appellant's mobile telephone) were placed on a table at darts competitions and were accessible to other people including G. Defence counsel also put to G that she had used the appellant's mobile telephone and that she had transmitted the nude photograph from his mobile telephone to her mobile telephone.
Defence counsel did not cross‑examine G's father or her stepmother about the assertion by the appellant and his wife that other people (including G's father and her stepmother) often used his mobile telephone. Defence counsel had not made any progress in his cross‑examination of G on this issue. If he had cross‑examined G's father and her stepmother the strong likelihood is that no answers favourable to the appellant would have been elicited.
Fourthly, as to particulars (c), (g) and (h), although there was a breach of the rule in Browne v Dunn, defence counsel's omission was not raised by the trial judge or the prosecutor, and her Honour did not refer to it in her summing up.
Fifthly, as to particulars (b), (e) and (f), there was a breach of the rule in Browne v Dunn and the trial judge referred to defence counsel's omission in her summing up. However, her Honour's comments to the jury were, without doubt, fair and reasonable. She merely told the jury, as was the fact, that particular evidence given by defence witnesses had not been put to one or more of the State's witnesses, and in consequence what, if anything, the relevant State witness or witnesses might have said on the issue was unknown. Her Honour did not suggest to the jury that an inference adverse to the appellant could be drawn from the failure. She did not criticise the appellant, the defence case or defence counsel.
Sixthly, the appellant had the advantage of defence counsel adducing evidence from the appellant, his wife and K which, to a material extent, advanced his case, without defence counsel incurring the forensic risk that if the evidence was put to the relevant State witness or witnesses they might contest it and offer an explanation which undermined the defence case. So, the appellant gained the advantage of having his counsel place various propositions before the jury, which were potentially capable of raising a reasonable doubt as to his guilt, without the relevant State witness or witnesses being given an opportunity to accept, reject or explain those propositions (closing addresses ts 26 ‑ 28). To the extent that defence counsel did not place propositions before the jury in his closing address, it may be inferred that he made a forensic decision not to rely upon them.
The appellant gave general, non‑specific, evidence about the alleged loss of his mobile telephone between the night of 13 July 2010 and 16 July 2010 including his visit to G's home to retrieve it. The Optus records established that the appellant's mobile telephone was used reasonably often on 14 July 2010 but was not used on 15, 16 or 17 July 2010. It is plausible that if the appellant had mislaid his mobile telephone then he did so on the night of 14 July 2010 rather than on the previous night. It is mere speculation to suggest that someone in G's household may have used the appellant's mobile telephone to send her the 14 July 2010 SMS messages. If defence counsel had put to G that she sent the 14 July 2010 SMS messages to herself there is no doubt, on the basis of her evidence‑in‑chief, that she would have denied it. There is a strong likelihood that G's father and her stepmother would have made a similar denial if the matter had been put to them.
G was aged 14 or 15 when, on her evidence, she had the sexual relationship with the appellant. It is apparent from her evidence that before she became sexually involved with the appellant she had had only one previous intimate relationship (with a boy, J) (ts 153 ‑ 154, 156 ‑ 157). In these circumstances, it is not remarkable that she did not mention in her witness statement the alleged vein, stretch marks and scar. If defence counsel had raised the matter, and she accepted that the appellant had these physical characteristics, the omission of this information from her witness statement would not have adversely affected her credibility or reliability. Indeed, her answer could potentially have damaged the defence case.
Seventhly, defence counsel did not make application to the trial judge to recall G, her father or her stepmother for the purpose of curing his breaches of the rule in Browne v Dunn. This would have been a dangerous course for defence counsel to pursue. He had already closed the defence case. The only reasonable objective inference is that defence counsel made a forensic decision not to apply for the recall of the witnesses.
Eighthly, the prosecutor did not suggest to the appellant or the appellant's wife in cross‑examination that the matters which defence counsel did not put to the relevant State witness or witnesses were recent fabrications.
Ninthly, the trial judge directed the jury, in orthodox terms, that it was bound to consider only the evidence it had seen and heard in court and it must not speculate about matters not in evidence (ts 434, 479). This direction not to speculate necessarily included speculation about answers to questions not put by defence counsel to G, her father or her stepmother.
Tenthly, my assessment of the breaches of the rule in Browne v Dunn is that any material prejudice was suffered by the State and not the appellant.
Eleventhly, defence counsel otherwise thoroughly and competently scrutinised in cross‑examination the evidence‑in‑chief given by G and the other State witnesses.
Twelfthly, on my assessment, the breaches of the rule in Browne v Dunn did not deprive the appellant of a fair trial according to law, and it cannot reasonably be suggested that the breaches prejudiced any chance of an acquittal that was fairly open on counts 14, 15 and 16. There is no reasonable prospect that the matters complained of in the particulars of ground 1 would or might have affected the outcome of the trial in relation to those counts.
Ground 1 fails.

Ground 2: the appellant's submissions

Counsel for the appellant submitted that a reasonable jury would be unable to reconcile the verdicts of guilty on counts 14, 15 and 16 (in relation to the events on 14 July 2010) with the verdicts of not guilty.
It was argued that the evidence as a whole, especially the alibi evidence relating to counts 11, 12 and 13 (which concerned events on 2 June 2010), should have created a reasonable doubt in the minds of a reasonable jury about G's credibility generally.
According to counsel, no reasonable jury, properly applying their minds to the evidence, could have arrived at different verdicts in relation to the counts on which the appellant was acquitted and the counts on which he was convicted.

Ground 2: its merits

In Riley v The State of Western Australia [2007] WASCA 22 [16] ‑ [25], I examined the relevant decisions of the High Court on inconsistent verdicts. It is unnecessary to reproduce my review of the cases.
In the present case, the appellant alleges that the jury's verdicts were factually inconsistent and incompatible. It is necessary for the appellant to satisfy this court that the verdicts cannot stand together; that is, that no reasonable jury who properly applied their minds to the facts of case could have arrived at the verdicts in question. If there is a proper way in which this court may reconcile the verdicts, and thereby conclude that the jury performed their functions as required by law, the verdicts will not be inconsistent in the relevant sense.
A jury is, of course, entitled to accept part, and not all, of a witness's version of events. Also, a jury, as the tribunal of fact, is entitled to 'work out for themselves a view of the case which [does] not exactly represent what either party [has] said': Williams v Smith [1960] HCA 22; (1960) 103 CLR 539, 545 (Dixon CJ, McTiernan, Fullagar, Kitto & Menzies JJ). That statement, made in the context of civil proceedings, has been applied to criminal trials. See Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319 [29] (McHugh J); WCW v The State of Western Australia [2008] WASCA 232; (2008) 191 A Crim R 22 [14] (Buss JA).

Where several offences of a sexual nature depend upon the complainant's evidence, the circumstances of the case may justify acquittal on some counts and conviction on others. Where the jury returns different verdicts, there is no general rule that they must necessarily have found the complainant generally to be untruthful or that the complainant's credibility was undermined in respect of the counts on which the offender was convicted.
In the present case, the trial judge gave the jury conventional directions in her summing up, as follows:
(a)the jury must give separate consideration to each count on the indictment and must consider the evidence which related to it (ts 431 ‑ 432);
(b)the jury's verdict did not have to be the same on each count (ts 432);
(c)the jury was entitled to accept the whole of a witness's evidence, accept part and reject part of a witness's evidence or reject the whole of a witness's evidence (ts 433 ‑ 434);
(d)on the burden and standard of proof (ts 432 ‑ 433), the presumption of innocence (ts 432 ‑ 433) and that no onus was upon the appellant to prove anything (ts 434);
(e)the jury was bound to consider only the evidence it had seen and heard in court and it must not speculate about matters not in evidence (ts 434, 479);
(f)the State relied very heavily on G's evidence, in particular on her credibility and reliability as a witness (ts 480 ‑ 481); and
(g)if the jury believed the appellant was telling the truth, it must acquit him; if the jury thought that the appellant's evidence might be true, it must acquit him; if the jury did not believe the appellant or accept the defence case then it should put those matters to one side and consider whether, on the evidence that it did accept, the State had proved the appellant's guilt on a particular count beyond reasonable doubt (ts 481).
In my opinion, there is a proper way in which the verdicts of the jury may be reconciled.
Counts 14, 15 and 16, on which the jury returned verdicts of guilty, can be distinguished from the counts on which the jury found the appellant not guilty in that the evidence in relation to counts 14, 15 and 16 had evidentiary features which were not present in the other counts.
As to counts 14, 15 and 16:
(a)The events relating to counts 14, 15 and 16 were connected with a specific date, namely the date on which G's brother, SN, had to appear in court in connection with a motor vehicle driving offence. Independent evidence established that this date was 14 July 2010 (ts 116, 257).
(b)G gave evidence as to the approximate time period in which counts 14, 15 and 16 occurred. She recalled having to be at her home by 12.00 noon because her mother was returning at that time (ts 119).
(c)The appellant did not have an alibi for 14 July 2010 (ts 319).
(d)The Optus records established that on 13 July 2010 SMS messages were sent from the appellant's mobile telephone to G's mobile telephone at 10.28 pm, 10.32 pm and 10.34 pm (AB 149), and this evidence tended to corroborate G's evidence that the appellant sent her SMS messages on the night of 13 July 2010, while they were travelling in G's family motor vehicle after the darts competition, to arrange to pick her up the following morning.
(e)The Optus records also established that on 14 July 2010 SMS messages were sent from the appellant's mobile telephone to G's mobile telephone at 7.11 am and 7.25 am (AB 149). If the appellant sent those messages then it corroborated G's evidence that she received SMS messages from him at about those times.
(f)G was more likely to recall the events of 14 July 2010 because, on her account, this was the first and only time she had sex with the appellant at his home (all of the other sexual encounters having allegedly occurred at her home) and it was the final occasion on which she had sex with him (ts 132).
Counts 1, 2, 3, 4 and 5 (on which the jury returned verdicts of not guilty) were a group of offences which allegedly occurred on a date unknown between 31 January 2009 and 1 March 2009 at G's home. Counts, 1, 2 and 3 alleged indecent dealing, count 4 alleged penile/vaginal penetration and count 5 alleged penile/anal penetration. Counts 1, 2, 3, 4 and 5 allegedly occurred in the course of an afternoon and evening. G could not recall the date in question or link the timing of the alleged offences to a particular event. According to G, counts 4 and 5 happened while her parents were in their nearby bedroom. G's evidence was not corroborated in any respect. The facts and circumstances I have described materially differentiate counts 1, 2, 3, 4 and 5 from counts 14, 15 and 16. There was a reasonable and rational basis for the jury to return verdicts of not guilty on counts 1, 2, 3, 4 and 5 but verdicts of guilty on counts 14, 15 and 16.
Counts 6, 9 and 11 (on which the jury returned verdicts of not guilty) alleged penile/vaginal penetration at G's home. Count 6 allegedly occurred on a date unknown between 27 February 2009 and 1 January 2010, count 9 on another date unknown between 27 February 2009 and 1 January 2010 and count 11 on 2 June 2010.
After G gave her evidence‑in‑chief in relation to counts 1, 2, 3, 4 and 5, the prosecutor asked her about other occasions on which she had sex with the appellant:
Now, was that the only time that you and [the appellant] had sex---No.
Can you remember any other times---I can remember a couple but there were too many, so I can't really remember all of them.
Okay. Are there any that you can remember a bit more clearly---There was one time at his house.
At his place, okay---Yes.
When you said you had sex a number of times was it usually at your house or where was it---It was at my house.
Whereabouts in your house---It was sometimes in my room and then sometimes in my brother's room.
Which brother is that---[R].
Now, [R] was living with you at the time or had [he] moved out---Yes.
All right. Now, can you remember any other occasions when you had sex at your house---I can vaguely but I can't really remember in full detail.
All right. What else can you remember---The time at his house (ts 113 ‑ 114). (emphasis added)
In this passage G conceded in effect that she had a poor recollection of the events the subject of counts 6, 9 and 11 but said in effect that she had a clearer recollection of the events the subject of counts 14, 15 and 16.
G said in evidence that count 11 occurred on 2 June 2010 (ts 121 ‑ 122, 166 ‑ 168). The appellant gave alibi evidence to the effect that at the material time he was at a place some distance from G's home (ts 317 ‑ 319). Defence counsel called three witnesses who gave evidence which supported the alibi.
The trial judge's decision to dismiss counts 7, 8, 10, 12, 13 and 17 (after defence counsel made a submission of no case to answer), and the jury's decision to acquit on counts 1, 2, 3, 4, 5, 6, 9 and 11, did not relevantly undermine G's credibility on counts 14, 15 and 16 or indicate that the verdicts of conviction on those counts are inconsistent, in the relevant sense, with the other verdicts or suggest that the verdicts of conviction are unsafe or unsatisfactory. It merely reveals that the jury was cautious and exacting in reviewing the evidence and discharging its heavy civic duty. It may also be that the jury took a 'merciful' view of the facts on counts 1, 2, 3, 4, 5, 6, 9 and 11, this being a function which, as Gaudron, Gummow and Kirby JJ pointed out in MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, 367 ‑ 368, has always been open to, and often exercised by, juries.
The jury's verdicts were not factually inconsistent or incompatible. The differences in the verdicts do not represent an affront to logic or common sense. They were not unreasonable.
Ground 2 is without merit.

The merits of the applications to rely on additional evidence in the appeal

Section 39(1) of the Criminal Appeals Act provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. By s 39(3), however, s 39(1) does not affect the power of an appeal court to admit evidence pursuant to s 40 of the Act. Section 40(1) provides, relevantly:
For the purposes of dealing with an appeal, an appeal court may do any or all of the following ‑
(a)order the production of any record or thing, whether or not an exhibit, that is or may be relevant to the appeal;
(b)order a witness who would have been compellable at the trial in the lower court, whether or not called at the trial, to attend and be examined before the appeal court;
…
(d)subject to the Evidence Act 1906 section 9, admit the evidence of a witness, including a convicted appellant, who is a competent but not compellable witness;
(e)admit any other evidence.
In Rinaldi v The State of Western Australia [2007] WASCA 53, Steytler P said, in relation to s 40(1)(a), (b), (d) and (e):
While these provisions afford the Court a discretion, which is not expressed to be limited in any way, to do any of the things provided for, it is most improbable that the legislature intended that they 'should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction': CDJ v VAJ (1998) 197 CLR 172 at [111] per McHugh, Gummow and Callinan JJ (dealing with the provisions of s 93A(2) of the Family Law Act 1975 (Cth)) and see also De La Espriella-Velasco at [150] per Pullin JA. The common law principles have, of course, been developed over many years in order to meet the ends of justice and the considerations giving rise to them will plainly be material to the exercise of the statutory discretion, which must be exercised judicially. While the common law principles touching upon the distinction between new and fresh evidence are not necessarily determinative of the manner of exercise of the statutory discretion, the considerations giving rise to those principles will ordinarily be weighty, so much so that it will be a rare case in which an exercise of the statutory discretion produces a different outcome to that produced by application of the common law principles [84].
Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of new as distinct from fresh evidence, unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted. See Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 ‑ 676 (Mason J); DPJB v The State of Western Australia [2010] WASCA 12 [66] (Owen JA, McLure P relevantly agreeing).
Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of fresh as distinct from new evidence, unless there is a significant possibility that, on the basis of all of the admissible evidence (that is, the fresh evidence and the evidence given at trial) a fact finding tribunal, acting reasonably, would have acquitted the accused. See Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 399 (Gibbs CJ), 402 (Mason & Deane JJ); Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273 (Mason CJ), 301 ‑ 302 (Toohey & Gaudron JJ).
Ms Nims' affidavit relates to a mobile telephone number ending with the digits 526. This telephone number appeared very frequently in the Optus records that were tendered at the trial. For example, the records show that on 14 July 2010 the appellant sent 14 SMS messages to this number between 10.56 am and 5.26 pm. Ms Nims deposes that on 21 December 2011 she telephoned the number ending with the digits 526 and spoke to someone who identified herself as SM. Ms Nims also deposes that on 3 January 2012 she telephoned this number again and SM told her that she was G's stepsister.
Ms Nims' evidence is to be contrasted with the instructions given to defence counsel by the appellant and his wife before the trial as to the owner/user of the mobile telephone with the number ending in the digits 526. It is apparent from the appellant's wife's affidavit sworn 17 September 2012 that defence counsel was instructed that the owner/user was a man, HF.
In my opinion, leave should not be granted to rely on Ms Nims' affidavit. Her evidence is new as distinct from fresh. It is evidence that could, with reasonable diligence, have been obtained or discovered for use at the trial. Ms Nims' evidence does not establish, either alone or in combination with any other evidence, that the appellant is innocent and it does not raise, either alone or in combination with any other evidence, such a doubt that I am satisfied the appellant should not have been convicted. In any event, the evidence is not materially probative of any of the particulars of ground 1 and it is not materially probative of ground 2.
The appellant's affidavit sworn 2 April 2012 deals with, relevantly, the following:
(a)the appellant's instructions to defence counsel before the trial that he did not have his mobile telephone between the night of 13 July 2010 and 16 July 2010;
(b)his instructions to defence counsel before the trial that at 3.00 pm, on 13 July 2010, he had an interview for employment with a company and that after the interview he gave G a lift in his motor vehicle to her home;
(c)he does not recollect having described his genital area to defence counsel before the trial; and
(d)he has a dark vein that runs from his penis to underneath his left testicle, purple stretch marks on his legs and a scar on the inside of his upper right thigh.
None of the matters deposed to by the appellant in his affidavit materially advances his case in relation to the particulars of ground 1 or in relation to ground 2. I would therefore refuse leave to rely on the affidavit.
The appellant's wife's affidavit sworn 5 April 2012 verifies that she gave instructions to defence counsel or his assistant before the trial:
(a)explaining the Optus records;
(b)to the effect that the appellant did not, at the relevant time including between the night of 13 July 2010 and 16 July 2010, have his mobile telephone;
(c)stating that members of G's family were aware of other telephone numbers contacted by the appellant's mobile telephone;
(d)stating that on 14 July 2010 she did not commence work until 9.00 am and that she would not have left home until 8.30 am;
(e)referring to a conversation she had with G 'one night whilst at darts' about 'men and what "jocks" we thought they were wearing as well as "how big" we thought they were' and the other matters in that conversation about which the appellant's wife gave evidence at the trial; and
(f)providing details of 'the distinctive vein on [the appellant's] scrotum and the scar on his inner thigh'.
In her affidavit sworn 17 September 2012, the appellant's wife annexes various documents which confirm the matters deposed to in her earlier affidavit. She also annexes email correspondence between her and defence counsel on 29 March 2012, 2 April 2012 and 5 April 2012.
The matters contained in the appellant's wife's affidavits do not materially advance the particulars of ground 1 and do not materially advance ground 2. I would therefore refuse leave to rely on the affidavits.
The affidavit sworn 17 October 2012 by counsel for the appellant annexes an email dated 28 July 2011 from the appellant to defence counsel which sets out the appellant's instructions in relation to G's witness statement.
This affidavit (in particular, the email dated 28 July 2011) does not materially advance the appellant's case in relation to the particulars of count 1 or in relation to count 2. Leave to rely on this affidavit should be refused.

Conclusion

I would make the following orders:
(a)leave to appeal on ground 2 refused;

(b)the appellant's applications to rely on additional evidence in the appeal are dismissed; and
(c)appeal dismissed.

MAZZA JA: I agree with Buss JA.