NNR v The State of Western Australia - [2024] WASCA 64

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   NNR -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 64
CORAM:   MAZZA JA
MITCHELL JA
VANDONGEN JA

HEARD:   4 JUNE 2024
DELIVERED          :   12 JUNE 2024
FILE NO/S:   CACR 26 of 2023
BETWEEN:   NNR
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
For File No:   CACR 26 of 2023
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   TROY DCJ
File Number            :   IND 1750 of 2021

Catchwords:

Criminal law - Appeal against conviction - Sexual offences - Sexual penetration of a child of or over the age of 13 years and under the age of 16 years - Whether verdicts of guilty were unreasonable or unsupported by the evidence - Turns on own facts

Legislation:

Criminal Code (WA), s 321(2)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	B S Hanbury
Respondent	:	G N Beggs

Solicitors:

Appellant	:	B S Hanbury
Respondent	:	Director of Public Prosecution (WA)

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

Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123
Sturniolo v The State of Western Australia [2023] WASCA 147

JUDGMENT OF THE COURT:

Summary

The appellant was charged with eight counts of sexual offending against a child of or over the age of 13 years and under the age of 16 years. The charges all related to the same complainant, a 14‑year‑old girl suffering from severe intellectual disability and attention deficit hyperactivity disorder (ADHD). The appellant lived with the complainant's grandmother in a house on a farm in a country town (Town). The relationship between the appellant and the complainant's grandmother was platonic. In 2020, the complainant would ordinarily stay at the house every second weekend. The alleged offences occurred on two specific occasions in 2020.
The first occasion was in September 2020, when the appellant and complainant were collecting eggs and feeding chickens at a shed on the farm. It was alleged that the appellant indecently dealt with the complainant by kissing her breast (count 1) and touching her vagina (count 2). The appellant pleaded guilty to these offences.
The second occasion was on 21 November 2020, when the appellant and complainant were driving to the local rubbish tip in the appellant's car. It was alleged that the appellant pulled the car over and indecently dealt with the complainant by masturbating in her presence (count 3) and procuring the complainant to touch his testicles (count 4). The appellant was also alleged to have encouraged the complainant to engage in sexual behaviour, by encouraging her to perform fellatio upon him (count 5). The appellant also pleaded guilty to these offences.
On that second occasion, the appellant was also alleged to have sexually penetrated the complainant by penetrating her vagina with his finger (count 6), penetrating her vagina with his penis (count 7) and introducing his penis into her mouth (count 8). The appellant pleaded not guilty to these offences against s 321(2) of the Criminal Code (WA).
On 15 February 2023, the appellant was convicted of counts 6 ‑ 8 after trial by jury. On 21 February 2023, the appellant was sentenced to a total effective sentence of 8 years' imprisonment for all counts on the indictment. He now appeals against his conviction of the sexual penetration offences charged in counts 6 ‑ 8 of the indictment, on the sole ground that the verdicts are unreasonable and cannot be supported having regard to the evidence.
For the following reasons the appellant's sole ground of appeal is without merit. Leave to appeal should be refused and the appeal should be dismissed.

Prosecution and defence cases at trial

The prosecution case at trial was that, on the weekend of 21 ‑ 22 November 2020, the 14‑year‑old complainant was staying at her grandmother's house on a farm near the Town. The appellant, who was then 62 years old, was a friend of the complainant's grandmother, who also lived at the house. On the morning of Saturday 21 November 2020, the appellant took the complainant for a drive to the local rubbish tip. On the way, the appellant pulled over, stopped the car and proceeded to sexually offend against the complainant.[1]
[1] Trial ts 64, 66.
Whilst in the car, the appellant masturbated himself in front of the complainant. He also asked her to touch his testicles. The complainant complied with this request. The appellant then asked the complainant to 'suck his cock'. Although the complainant said, 'no', the appellant put his penis in her mouth, ejaculating inside. Whilst in the car, the appellant also penetrated the complainant's vagina with his finger. He also 'had sex' with the complainant, penetrating her vagina with his penis.[2]
[2] Trial ts 64 - 65, 67.
The defence case was that the events of sexual penetration described by the complainant did not occur, although the appellant admitted the other conduct. The defence case was not that the complainant was mistaken or lying about the acts of sexual penetration. Rather, the defence contention was that, by reason of her intellectual disability and inconsistencies in her evidence, the complainant was not a reliable witness whose evidence could satisfy the jury beyond reasonable doubt that sexual penetration occurred.[3]
[3] Closing submissions ts 39 - 44.

Evidence at trial

The following is a summary of the evidence adduced at trial.

Complainant's evidence

The complainant's evidence was comprised of a recorded child witness interview conducted on 2 December 2020 and pre‑recorded evidence given on 6 May 2022. Both recordings were edited by consent.
In the child witness interview, the complainant told the interviewer she had come to speak about the appellant doing something to her on Saturday when he was driving to the rubbish tip with her. The complainant said the appellant pulled her pants down and started 'rooting' her. She said, 'four times he rooted me'.[4] The complainant described the appellant being on top of her and 'rooting' her. She said that 'rooting' means 'having sex' and that while he was doing this, the appellant 'licked my tits'.[5]
[4] Child witness interview ts 5 - 6 (Blue/Green AB 115 - 116).
[5] Child witness interview ts 8 (Blue/Green AB 118).
The complainant said the appellant 'put his cock in my thing', and that her 'thing' was used for 'peeing'. She said she was scared and frustrated as the appellant was on top of her, that she told him to stop but 'he kept doing it'.[6] The complainant said the appellant 'blew on top' of her and this meant 'white stuff' which went in her mouth. The complainant said the white stuff got in her mouth because the appellant 'put his cock in my mouth'.[7] The complainant said the appellant was 'touching my thing' with his hand and that his finger went 'up my thing' and was 'playing around with it'.[8]
[6] Child witness interview ts 10 (Blue/Green AB 120).
[7] Child witness interview ts 11 (Blue/Green AB 121).
[8] Child witness interview ts 12 (Blue/Green AB 122).
In her pre‑recorded evidence, the complainant said that she told the truth in her interview with the police. She said that the appellant 'did some things' to her on two different days, one time in the chicken shed and one time at the rubbish tip. The complainant said that, when she told police that the appellant had put his cock in her thing, the reference to her 'thing' was to her vagina. The complainant said that, when she told police that the appellant had put his finger in her thing, the reference to her 'thing' was also to her vagina.[9]
[9] Trial ts 31 - 32.
Under cross‑examination, the complainant was asked details regarding the car that she and the appellant were in. The complainant said the front seat was 'like one seat'.[10] The complainant said that the appellant had 'rooted' her and that this meant 'having sex'.[11] The complainant described the appellant getting on top of her. The appellant then took the complainant's seatbelt off. The complainant was asked if the seat stayed up and she said yes. The complainant described the appellant pulling his shorts down and playing with his penis. The complainant said 'white stuff was coming out of his - out of his penis'.[12] She said that, at this time, she was sitting in the passenger seat, and she saw the white stuff go on the floor of the car. When she was asked if any of the white stuff went on her, she said 'no'.[13] The complainant then described the appellant playing with 'the fluffy bit' of her vagina with his finger.[14] The complainant said that when the appellant was finished, he pulled his pants up and they went back to her grandmother's house. The complainant was then asked about when the appellant had asked her to suck his cock. The complainant said this happened in the car, and that white stuff got on her chest and on the appellant's balls.[15]
[10] Trial ts 35.
[11] Trial ts 36.
[12] Trial ts 37.
[13] Trial ts 39.
[14] Trial ts 42.
[15] Trial ts 44.
Under re‑examination, the complainant gave evidence that the order in which the events happened was that the appellant put his finger in her vagina, then she touched his balls, then the appellant put his penis in her vagina. The complainant said she had seen white stuff come out of the appellant's penis before he put his finger in her vagina.[16] She then said that she could not remember when she saw the white stuff.[17]

Evidence of Ms Walker

[16] Trial ts 47.

[17] Trial ts 48.

The complainant attended the local high school where she was helped by a special needs education assistant, Ms Walker.[18]
[18] Trial ts 86.
On Tuesday 24 November 2020, the complainant told Ms Walker the appellant had taken her for a drive in a car to the rubbish tip on Saturday morning. He had parked the car, took off his seatbelt and taken down his pants. The complainant told Ms Walker that the appellant had asked her to 'touch his balls' and to 'suck his cock'. The complainant said that when she did this, 'white stuff came into my mouth'. The complainant, who was usually quite gregarious, was very quiet and crying when she made her disclosure to Ms Walker. Ms Walker made a mandatory report following this conversation with the complainant.[19]
[19] Trial ts 69, 90.
When the complainant attended school the next day, she again sought out Ms Walker but was this time agitated and manic. The complainant said to Ms Walker, 'I want to kill my head' and 'I've got to stop my head'. The complainant was very distressed.[20] Ms Walker asked the complainant why she was upset, and the complainant then told Ms Walker that, when the appellant had taken her to the rubbish tip, he had stopped the car and that he got on top of her, and she felt like she could not breathe. The complainant then gestured vigorously with both hands, one hand making a 'C' shape and the other hand pointing a finger to place inside the shape, which she then closed to make an 'O' shape and said, 'he rooted me'. Ms Walker asked the complainant what the gesture meant, and the complainant replied 'rooting' and 'he put his thing down there'.[21] Ms Walker said she was under no doubt that the complainant was talking about the appellant putting his penis inside her vagina.[22] Ms Walker said that she had never heard the complainant use the words 'rooted', 'balls' or 'white stuff' before.[23] Ms Walker made a second mandatory report following this conversation with the complainant.[24]

Evidence of the complainant's mother

[20] Trial ts 90.

[21] Trial ts 91.

[22] Trial ts 96.

[23] Trial ts 92 - 93.

[24] Trial ts 92.

The complainant's mother gave evidence that the complainant was born in September 2006.[25]
[25] Trial ts 98.
In 2020, the complainant would spend time at her grandmother's house every second weekend.[26] The complainant stayed at her grandmother's house on the weekend of 21 ‑ 22 November 2020, going on the Saturday and returning home on the Sunday.[27]
[26] Trial ts 100.
[27] Trial ts 101.
The complainant went to school on Wednesday 25 November 2020 but did not come home. A police officer attended the complainant's mother's home and informed her that 'child protection services' had taken the complainant into care due to 'sexual harm'. The complainant's mother briefly spoke on the phone to the complainant's grandmother 'but didn't go into detail about it'.[28]
[28] Trial ts 101.
The complainant's mother and the complainant's infant brother stayed at the complainant's grandmother's house on the weekend of 28 ‑ 29 November 2020. On Monday 30 November 2020, the appellant (who had been away) arrived back at the house. The complainant's mother said the appellant was 'moping around the house'. In the presence of the complainant's mother and the complainant's grandmother, the appellant then 'blurted that he was touching' the complainant. The appellant said that he kissed the complainant and touched her breasts.[29]
[29] Trial ts 102 - 103.
Both the complainant's mother and the complainant's grandmother reacted angrily to this disclosure. The complainant's mother picked up a knife and the complainant's grandmother picked up a baseball bat. The complainant's grandmother was shouting at the appellant. The complainant's mother went outside and, after about 20 seconds, the appellant approached her and asked what he should do. The complainant's mother said that the appellant had to go and 'hand himself in' and swore at the appellant. He walked away, and the complainant's mother did not see or speak to the appellant again.[30]

Evidence of the complainant's grandmother

[30] Trial ts 103 - 105.

The complainant's grandmother gave evidence that the complainant stayed at her house on the weekend of 21 - 22 November 2020 and went with the appellant to the rubbish tip that weekend.[31]
[31] Trial ts 133.
On Wednesday 25 November 2020 or the day following, the complainant's mother told the complainant's grandmother that the complainant had been taken into care by the Department of Child Protection because she had been abused. The complainant's grandmother told the appellant that the complainant was taken by the Department but did not say why. The appellant started getting frustrated and angry, 'putting his fingers up towards his head pointing like a gun to his forehead' and saying that he wanted to kill himself, 'moping in and out of the house' and 'swearing and cursing to himself'.[32]
[32] Trial ts 134 - 137.
The appellant was away from the house over the weekend. When he returned, the complainant's grandmother asked the appellant what was going on. The appellant told the complainant's grandmother that he had touched the complainant on the 'boobs' and kissed her. The appellant started walking around with his hands to his head saying, 'I'm a dumb fuck. I should kill myself'.[33]
[33] Trial ts 135, 137 - 138.
The complainant's grandmother described her holding a baseball bat, the complainant's mother holding a knife and the appellant being told to leave. The appellant left the house and the complainant's grandmother did not see him again.[34]
[34] Trial ts 139 - 140.
In cross‑examination, the complainant's grandmother said that she asked the appellant whether he had sexually penetrated the complainant and the appellant denied that he had done so.[35] The complainant's grandmother said she had told the appellant to go to the police, face up and tell the truth.[36]

Evidence of Detective Senior Constable Alan McKay

[35] Trial ts 140.

[36] Trial ts 141.

The appellant presented at the Town police station on Monday 30 November 2020 and was placed under arrest on suspicion of sexual penetration of a child. The appellant was interviewed by the two detectives who had been assigned the case following the school's mandatory reports. At this stage, the complainant had not been interviewed and the only information available to police was what was contained in the mandatory reports from the complainant's school.[37]
[37] Trial ts 145.
An Electronic Record of Interview (EROI) was conducted, and an edited copy of that interview was admitted into evidence. In the EROI, the appellant described having an 'altercation' with the complainant but that it 'wasn't sexual penetration'. The appellant stated that he had kissed her and touched her, but that was all that had happened.[38] The appellant said that this 'misdemeanour' had occurred at the chicken shed on the farm where the appellant lived with the complainant's grandmother. The appellant stated:[39]
I touched her. I suppose I shouldn't of and I kissed her, which I suppose I shouldn't. That's about it. Because there is no way on earth I'd ever do sexual penetration with [the complainant] or anything like that.
[38] EROI ts 13 (Blue/Green AB 29).
[39] EROI ts 31 (Blue/Green AB 47).
The appellant said the incident occurred around September 2020.[40] The appellant provided further details of this incident, which constitute the offences charged in counts 1 and 2 to which the appellant pleaded guilty.[41] This involved the appellant kissing the complainant on the breasts and touching the complainant's vagina.
[40] EROI ts 32 (Blue/Green AB 48).
[41] EROI ts 32 - 50 (Blue/Green AB 48 - 65).
The appellant was then asked if there was anything else that had happened between him and the complainant that he wished to disclose. The appellant said there was nothing else, in the following terms:[42]
DET S/CON MCKAY: Is there anything else that you want to tell us that's happened between you and [the complainant]?
[APPELLANT]: No. Yes.
DET S/CON MCKAY: Are you sure?
[APPELLANT]: That's what happened.
DET S/CON MCKAY: Okay, but is there any other occasions that something has happened between youse? Not just this one day, other occasions.
[APPELLANT]: Nah.
DET S/CON MCKAY: Okay. All right. And are you sure about that?
[APPELLANT]: Yeah.
[42] EROI ts 62 (Blue/Green AB 78).
The appellant was then questioned about whether he ever took the complainant out in his car. The appellant said he took the complainant sometimes to the shops and to the rubbish tip.[43] The appellant said that the last time he had taken the complainant to the tip was his birthday, 21 November 2020.[44] The appellant said nothing had happened at the tip on that occasion, that it was just a visit to drop the rubbish off.[45]
[43] EROI ts 64 (Blue/Green AB 80).
[44] EROI ts 66 (Blue/Green AB 82).
[45] EROI ts 68 (Blue/Green AB 84).
The police advised the appellant that the reason they were asking about the visit to the rubbish tip was that the complainant had said that something had happened on this trip. The appellant was told the complainant had said he had taken off his seatbelt and pulled his pants down. He then admitted having done so. The appellant was asked what had happened next. The appellant then said, 'I didn't do anything to [the complainant] on that day but I did it to myself'.[46] The appellant said he had masturbated while he was in the front driver's seat and the complainant was in the front passenger seat.[47] The appellant was asked what the complainant did, and the appellant responded that she 'just sat there'. The appellant said this went on for 10 minutes and that he ejaculated.[48]
[46] EROI ts 71 (Blue/Green AB 87).
[47] EROI ts 72 (Blue/Green AB 88).
[48] EROI ts 73 (Blue/Green AB 89).
The following exchange then occurred:[49]
[49] EROI ts 74 (Blue/Green AB 90).
DET S/CON MCKAY: Um, did [the complainant] do anything to you?
[APPELLANT]: Nah.
DET S/CON MCKAY: Did you ask her to do anything to you?
[APPELLANT]: Nah.
DET S/CON MCKAY: Okay.
[APPELLANT]: Well, did she say that I did something or asked her to do something?
DET S/CON MCKAY: Yeah. You asked her to touch your - yeah, your balls.
[APPELLANT]: Did I touch my balls or did I ask [the complainant]. Yeah, I did ask but she didn't touch my balls.
DET S/CON MCKAY: Yeah, so - - -
[APPELLANT]: So I did ask her, yeah, but she didn't.

The appellant was then told that the complainant said the appellant had told her to suck his cock. After saying, 'I don't know about that', the appellant admitted that, 'I might have asked her if she wanted to … But she didn't'.[50]
[50] EROI ts 74 (Blue/Green AB 90).
The appellant was told the complainant said that white stuff came out into her mouth. The appellant then admitted that the complainant had in fact touched his balls but denied again that he had penetrated the complainant's mouth with his penis, saying the complainant 'never put her lips anywhere near [his] penis'. The appellant denied that he had ejaculated on the complainant or in her mouth.[51]
[51] EROI ts 75 - 76 (Blue/Green AB 91 - 92).
The appellant was then told the complainant said that the appellant had 'rooted' her.[52] The appellant maintained that he had never 'had sex' with the complainant. He denied all allegations of sexual penetration with the complainant.[53] In doing so, the appellant observed:[54]
I've got no reason to bullshit … about that because why would I have sex with [the complainant]? What's that going to get out of me? 20 years of jail or something.
[52] EROI ts 85 (Blue/Green AB 101).
[53] EROI ts 85 - 86, 88 - 91 (Blue/Green AB 101 - 102; 104 - 107).
[54] EROI ts 89 (Blue/Green AB 105).
Detective Senior Constable McKay also produced a copy of the complainant's birth certificate,[55] and photographs of the exterior and interior of the appellant's car taken on 30 November 2020.[56]

Evidence of Dr Phillip Watts

[55] Trial ts 144; Exhibit 3 (Blue/Green AB 7).

[56] Trial ts 146 - 147; Exhibit 4.1 - 4.9 (Blue/Green AB 8 - 16).

Dr Phillip Watts, a registered psychologist who assessed the complainant, gave evidence at trial.
Dr Watts assessed that the complainant presented as a child who had ADHD type functioning. Dr Watts described the complainant as coming across 'as very simple' and that he had to use everyday terms and had to 'dumb [his] language down' to make sure he spoke simply and basically, otherwise the complainant would not understand what he was saying. Dr Watts said the language the complainant would use was very simple, and she tended to use 'blunt type everyday language'.[57] Dr Watts said he did not get the impression that the complainant was misusing words in his conversations with her. He said that while some people with an intellectual disability might use correct words in the completely wrong context, the complainant did not understand complex words, but she was not trying to put them into her sentences.[58]
[57] Trial ts 116 - 117.
[58] Trial ts 117.
Dr Watts administered an IQ test called the Wechsler Intelligence Scale for Children (WISC). The WISC measures five different types of intelligence. Dr Watts spoke of several measurements taken by the test, and said the complainant's results indicate that she is in the bottom one in 1,000 in terms of her ability to process language. Dr Watts said that the complainant's score for total functioning was 47. Dr Watts said that a score of 100 is average and a score of 70 is the cut‑off point for intellectual disability. The lower the score is, the more severe the intellectual disability. The complainant's score of 47 is a severe intellectual disability.[59] Dr Watts considered the complainant to be a highly vulnerable young person.[60]
[59] Trial ts 118 - 119.
[60] Trial ts 123.
Dr Watts stated that the complainant was likely to recount things in dot points rather than as a story.[61] Dr Watts considered that the complainant would have difficulty with concepts of time and the order of memories. He said he would not put too much weight on how she sequences or conceptualises time.[62] Dr Watts said that because the complainant has a low IQ, one danger is that she may 'try and please whoever's asking the questions by trying to come up with an answer or she may just get confused'.[63] However, Dr Watts said that while the complainant was likely to recall less detail in her memory, she will be able to recall things and was likely to be fairly consistent. Dr Watts said he saw nothing to suggest that the complainant was likely to make things up or add things into her story unless there was a lot of leading in the question.[64]
[61] Trial ts 120.
[62] Trial ts 123 - 124.
[63] Trial ts 124.
[64] Trial ts 125.
Under cross-examination, Dr Watts said that memory is a constructive process and when we experience things, we store it in our minds and if we believe something to be true, we will act like it is true. Dr Watts stated that if the complainant 'believed something or was told something she would report it like it was true and once she's thought it she would see it as true'. Dr Watts said this was how memory worked.[65]
[65] Trial ts 127 - 128.
Under re‑examination, Dr Watts was asked for his opinion on the complainant's capacity to fabricate things that did not occur. Dr Watts said that the complainant's intellectual age was more akin to a 5‑year‑old. At that age, children can learn to lie for gain, so while the complainant probably had some capacity to lie, she was most likely to make something up to get out of trouble and not likely to fabricate something to get somebody else in trouble. Dr Watts said while he could not rule out the complainant's capacity to lie in that manner, in his opinion there was a low likelihood of the complainant engaging in this kind of lying.[66]

Defence evidence

[66] Trial ts 128 - 129.

The appellant elected not to give or adduce any evidence at trial.[67]
[67] Trial ts 151.

Case left for the jury by the trial judge

The trial judge identified the essential question as whether the jury was satisfied beyond reasonable doubt on the evidence that the appellant sexually penetrated the complainant as alleged in counts 6 ‑ 8. There was no real issue that, if the conduct occurred, it amounted to sexual penetration of a child of or over 13 years but under 16 years of age.[68]
[68] Trial ts 157, 163 - 164, 169.
The jury were directed that they were required to find the appellant not guilty if they believed his denials of the alleged sexual penetration or thought his denials might be true. Even if they did not believe his denials, they were required to ask whether the State, on the basis of the evidence that they did accept, had proved the appellant's guilt of the charges beyond reasonable doubt.[69] The jury were directed that they must be satisfied beyond reasonable doubt about the truthfulness, accuracy and reliability of the complainant's evidence about the charged act before they could find that the alleged sexual penetration occurred. If they could not be so satisfied, then the jury would be required to find the appellant not guilty.[70]
[69] Trial ts 160.
[70] Trial ts 164.
The trial judge directed the jury that Ms Walker's evidence of the complainant's disclosure and distress did not amount to proof that the alleged sexual penetration occurred. The disclosure and, if the jury accepted that it was genuine and consistent with the allegations, distress of the complainant could be used in assessing the consistency of the complainant's conduct and the truthfulness and reliability of her evidence.[71]
[71] Trial ts 164 - 166.
The trial judge directed the jury that they could use evidence of the appellant's admitted conduct the subject of counts 1 ‑ 5 to find that the appellant had a sexual interest in the complainant and a propensity or tendency to act on that interest by engaging in sexual conduct with her when the circumstances permitted. If the jury made that finding, they could consider whether that increased the likelihood that the appellant committed the specific acts charged in counts 6 ‑ 8 on the indictment.[72]
[72] Trial ts 166 - 168.
The trial judge directed the jury that, if they found the appellant told a lie to police, that may be a factor in their assessment of the appellant's credibility but was not evidence that the appellant was guilty of a crime.[73]
[73] Trial ts 170.

Unreasonable verdicts: general principles

The general principles governing an appeal on this ground are well established. They were summarised in the following terms in Sturniolo v The State of Western Australia:[74]
[74] Sturniolo v The State of Western Australia [2023] WASCA 147 [70], [72].
(1)The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether, as a matter of law, there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
(2)The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(3)That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
(4)In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses. The appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent on the evaluation of the witnesses in the witness box. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness is, and remains, the province of the jury, and not of the appellate court.
(5)The question for the appeal court is whether, upon its examination of the record - by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt.
(6)A doubt experienced by an appeal court would be a doubt that a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
(7)If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appeal court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appeal court must set aside the verdict.
(8)The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over an appeal court that has not seen or heard the witnesses called at trial.
…
The appellate court's function is to determine for itself whether the evidence was sufficient in nature and quality to remove any doubt that the appellant was guilty of the offence. The critical issue is 'whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the jury can be taken to have had by reason of having seen and heard the evidence at trial'. The task of this court is to undertake its own independent assessment of the whole of the evidence to determine whether the only rational inference available on the evidence was as alleged by the State and, if not so satisfied, to determine whether the jury's satisfaction could be attributed to some identified advantage that the jury had over this court. (citations omitted)

Disposition

It was well open to the jury to reject the appellant's denials of the charged sexual penetration on the basis that his account to police was not credible. The appellant repeatedly lied about having performed non‑penetrative sexual acts on the complainant before eventually admitting that the conduct occurred when confronted with the complainant's allegations. On his own account, the appellant lied to police when he said that the incident at the chicken shed was the only sexual conduct which occurred; that nothing had happened during the trip to the rubbish tip on 21 November 2020; that the complainant did not do anything to him that day and he did not ask her to do anything to him. As the appellant's counsel accepted in oral submissions,[75] the jury could reasonably regard this repeated lying as destroying the appellant's credibility generally.
[75] Appeal ts 29.
On our assessment of the evidence, the above matters demonstrate that the appellant's account to police was not truthful or credible and form a proper basis for rejecting his denial of the offending.
While the complainant was clearly very limited in her use of language, her account does clearly disclose that the appellant penetrated her vagina with his finger and penis and introduced his penis into her mouth. The complainant's account was disjointed and her description of the sequence and some details of events (such as when and where the appellant ejaculated) was inconsistent. However, that feature of her evidence was explained by her intellectual disability and the effects of that disability described by Dr Watts, particularly the evidence summarised at [44] above. It was open to the jury to conclude that this was not a reason for disbelieving the complainant's evidence of the charged sexual penetrations or regarding it as unreliable.
The penetrative acts described by the complainant were not something she was likely to have been mistaken about. At trial, the appellant's counsel disavowed any attack on the complainant's honesty.[76] The complainant's disclosure to Ms Walker and her distressed state on 24 and 25 November 2020 indicate consistency of conduct which supports a conclusion that the complainant's evidence was reliable. The complainant's unprompted account to Ms Walker described acts of sexual penetration, and so was consistent with the complainant's evidence of the charged penetrative acts having occurred. The appellant's admitted propensity to act on his sexual interest in the complainant by engaging in sexual conduct with her made it more likely that the complainant's account of the sexual penetrations was true. The fact that he admitted being willing to ask the complainant to perform fellatio upon him, and the fact that she was generally compliant with his requests, made it more likely that her account of the appellant introducing his penis into her mouth in the car was true.
[76] Closing ts 40 - 41.
The appellant says that there are inconsistencies in relation to the complainant's sequencing of events and details of where and when he ejaculated. While that is true, it is explained by Dr Watts' evidence noted above and is not inconsistent with the reliability of the essential aspects of the complainant's account.
The appellant says that the complainant makes allegations as to events in her child witness interview that she does not make in her pre‑recorded evidence. That was a function of the more limited questions she was asked in her pre‑recorded evidence. The only questions asked by the prosecutor in evidence‑in‑chief related to clarifying that the complainant's vagina was the 'thing' which the complainant described in her child witness interview as being penetrated by the appellant's finger and penis. The appellant's trial counsel did not ask questions directed to the oral penetration, about which the complainant had been clear in her child witness interview. In oral submissions, the appellant's counsel accepted the position advanced by the respondent's written submissions to the effect that the fact that the complainant was not asked about the offence charged in count 8 in her pre‑recorded evidence means that her failure to refer to the conduct does not demonstrate any inconsistency or insufficiency in her account.[77]
[77] Appeal ts 40; Respondent's submissions, par 59 - 60 (White AB 40).
The appellant says that the complainant's evidence that the front passenger car seat in which she was sitting when her vagina was penetrated by the appellant's penis was upright demonstrates that her account of events is unlikely. The appellant says that it is unlikely he could have got on top of the complainant if she was seated upright as she said. However, the complainant was never actually asked about her precise position and that of the appellant at the specific time when he penetrated her vagina with his penis. Further, the pictures of the front passenger seat do not show that there would have been insufficient space for the appellant, who can be seen from the EROI to be slightly built, to have possibly acted as described by the complainant. The complainant was described by the appellant in the EROI as tall and slim.[78] In oral submissions, the appellant's counsel accepted the complainant's account of the penile penetration was not impossible, although he contended it was improbable.[79]
[78] EROI ts 21 (Blue/Green AB 37).
[79] Appeal ts 37 - 38.
The appellant points to Dr Watts' testimony that if the complainant 'believed something or was told something she would report it like it was true and once she's thought it she would see it as true' as a basis to submit that while the complainant may have honestly believed what she said occurred, she was mistaken about what had happened between herself and the appellant.[80] The appellant submits that this example 'fits with the situation in this case in that the appellant admitted that he did commit offences against the complainant'. In those circumstances, the appellant says that it is open to conclude 'that when afterwards spoken to about what occurred, the complainant believing that penetration did occur, has seen it as true and reported it as true'.[81] However, there was nothing in the evidence to suggest that the complainant was ever questioned about the appellant's conduct in a leading manner.
[80] Appellant's submissions pars 32 - 34 (White AB 17).
[81] Appellant's submissions par 35 (White AB 17 - 18).
The appellant also submits there was no definitive corroboration of the complainant's allegations of sexual penetration, and points to the lack of forensic and medical evidence.[82] That is not unusual in a case of alleged child sexual abuse and does not preclude an acceptance of the complainant's evidence of the sexual penetrations. Any forensic evidence of the location of any DNA or biological material in the appellant's own car is unlikely to have been other than neutral in the assessment of the prosecution case.
[82] Appellant's submissions pars 7 - 8 (White AB 15).
None of the matters raised by the appellant precluded an acceptance by the jury of the complainant's evidence of the sexual penetrations or lead us to experience any reasonable doubt about the honesty or reliability of that evidence.
As the High Court observed in Pell v The Queen:[83]
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
[83] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 [39].
In the present case, there was no evidence, other than the appellant's denial of the sexual penetrations, which tended to contradict the complainant's account. The evidence of the complainant as to the commission of the offences was clear. For the reasons explained above we are not satisfied that the jury, acting rationally, ought to have entertained a reasonable doubt as to the appellant's guilt of the offences charged in counts 6 ‑ 8 of the indictment. It was open to the jury to be satisfied that the complainant's evidence was truthful, accurate and reliable in its essential respects.

Our review of the whole of the evidence led at trial does not give rise to a reasonable doubt as to the appellant's guilt of the offences charged in counts 6 ‑ 8 of the indictment. Upon the whole of the evidence, it was well open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences charged in counts 6 ‑ 8 of the indictment.
We note that, at the appeal hearing, there was some discussion as to whether the court should view parts of the recorded child witness interview of the complainant. Both parties adopted an essentially neutral view of that question. Ultimately, we found it to be unnecessary to view any part of the complainant's recorded evidence.

Orders

For the above reasons, in our view the appellant's sole ground of appeal is without merit and has no reasonable prospect of succeeding. The following orders should be made:
1.Leave to appeal is refused on the sole ground of appeal.
2.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KP
Associate to the Hon Justice Mitchell
12 JUNE 2024