NTE v The State of Western Australia - [2024] WASCA 99

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   NTE -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 99
CORAM:   MITCHELL JA
HALL JA
VANDONGEN JA

HEARD:   13 JUNE 2024
DELIVERED          :   13 JUNE 2024
PUBLISHED           :   16 AUGUST 2024
FILE NO/S:   CACR 25 of 2024
BETWEEN:   NTE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

FILE NO/S: CACR 26 of 2024
BETWEEN: NTE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram:   QUAIL P
File Number            :   XX 1508 - 1515 of 2023

Catchwords:

Criminal law - Appeal against conviction - Child sex offences - Where complainant gave inconsistent accounts of one incident - Whether verdicts in respect of that incident unreasonable or unsupported by the evidence - Whether the trial judge erred in his treatment of character evidence - Whether trial judge erred in regard to his treatment of delay

Legislation:

Criminal Code (WA), s 329(2), s 329(4), s 329(5)

Result:

CACR 25 of 2024
Leave to appeal granted
Appeal allowed in part
Convictions of charges 1509 - 1511 of 2023 set aside and judgments of acquittal entered
Respondent resentenced

CACR 26 of 2024
Appeal dismissed

Category: B

Representation:

CACR 25 of 2024

Counsel:

Appellant	:	In person
Respondent	:	L M Fox SC

Solicitors:

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

CACR 26 of 2024

Counsel:

Appellant	:	In person
Respondent	:	L M Fox SC

Solicitors:

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

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

Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651
HDG v The State of Western Australia [2024] WASCA 27
Lang v The Queen [2023] HCA 29; (2023) ALJR 758
Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1
Sturniolo v The State of Western Australia [2023] WASCA 147

REASONS OF THE COURT:

At the conclusion of the hearing of these appeals, we made orders allowing the appeal against conviction in part, setting aside the convictions on three charges, resentencing the appellant on the remaining charges and dismissing the appeal against sentence. These are our reasons for making those orders.
The appellant was convicted of seven child sex offences after a trial by judge alone before the President of the Children's Court. The complainant was the appellant's younger half‑brother. The offending was alleged to have occurred in the course of two separate incidents. The first incident occurred at a hotel in a regional town and will be referred to as the 'hotel incident'. The second incident occurred at a house in Southern River and will be referred to as the 'Southern River incident'.
The complainant gave two materially different accounts of the hotel incident. In a child witness interview conducted on 2 March 2022, the complainant said that this incident had occurred four months prior to the interview at around the time of the appellant's 18th birthday party. At the trial, the complainant gave evidence that the hotel incident had occurred four years earlier at around the time of a wake for a family member. In addition to the timing, the complainant provided other details regarding the hotel incident when giving evidence at the trial that were markedly different from his description of that incident in the child witness interview. These details included whose room the incident occurred in, what was said and precisely what occurred.
The grounds of appeal against conviction are that the learned trial judge failed to take into account or placed insufficient weight upon the prior good character of the appellant, that the trial judge failed to properly consider or take into account the significance of delay in complaint, that a finding that the complainant had a particularly bad concept of time was not open on the evidence and that the verdicts were unreasonable or unsupported by the evidence.
Having regard to the significant inconsistencies in the complainant's evidence regarding the hotel incident charges, we are satisfied that the verdicts on the three charges that related to that incident were unreasonable or unsupported by the evidence. For that reason, we allowed the appeal in respect of those charges. Whilst those inconsistencies were a relevant matter to take into account in considering the credibility and reliability of the complainant's evidence more generally, we are not satisfied that the verdicts in respect of the Southern River incident were unreasonable or unsupported by the evidence.
The other grounds of appeal against conviction are without merit. Accordingly, at the conclusion of the hearing, we made orders granting leave to appeal on the ground alleging that the verdicts were unreasonable or unsupported by the evidence, allowing the appeal in part, setting aside the convictions on the three charges that related to the hotel incident and substituting judgments of acquittal on those charges, otherwise dismissing the appeal and resentencing the appellant on the remaining charges. Because it was necessary to resentence the appellant as a result of the outcome of the conviction appeal, the sentence appeal fell away and that appeal was dismissed.

Prosecution case

The appellant was born on 3 November 2003. His half‑brother, LD, was born on 3 January 2008. The appellant and LD share the same biological father, BD.[1]
[1] Trial ts 10.
The prosecution case was that there had been two incidents of sexual offending by the appellant against LD. These incidents were the hotel incident and the Southern River incident.[2]
[2] Trial ts 10 - 14.
The hotel incident was alleged to have occurred on an unknown date between 6 December 2017 and 31 December 2017 at a hotel in a regional town. The appellant and LD were both present at the hotel because a wake of a family member, known to them as Uncle B, was being held there. At this time, the appellant was 14 years old and LD was 9 years old.[3]
[3] Trial ts 10.
The prosecution case was that the appellant and LD had gone to a room in the hotel and engaged in sexual activity. In particular, it was alleged that the appellant requested LD to play with the appellant's penis and that LD complied by stroking the appellant's penis over his clothing. That alleged conduct was the subject of charge 1508, a charge of procuring, inciting or encouraging a child he knew to be a lineal relative to engage in an indecent act and that the child was under the age of 16 years contrary to s 329(5) of the Criminal Code (WA) (Code).[4]
[4] Trial ts 11.
The prosecution alleged that the appellant then pulled his pants down, exposing his penis and told LD to stroke it. LD placed his hand on the appellant's penis and moved it in an up and down motion on the appellant's penis. This conduct was the subject of charge 1509, a charge of procuring, inciting or encouraging a child who the appellant knew to be his lineal relative to engage in an indecent act and that the child was under the age of 16 years contrary to s 329(5) of the Code.[5]
[5] Trial ts 11 - 12.
It was alleged that the appellant then repeatedly requested LD to suck his penis and said words to the effect of, 'You do me and I will do you'. LD then put the appellant's penis in his mouth, engaging in fellatio. That act was the subject of charge 1510, a charge of sexually penetrating a child who the appellant knew to be his lineal relative by introducing his penis into the child's mouth and that the child was under the age of 16 years contrary to s 329(2) of the Code.[6]
[6] Trial ts 12.
It was alleged that the appellant then got on the floor in front of LD and sucked LD's penis. That act was the subject of charge 1511, a charge of sexually penetrating a child who the appellant knew to be a lineal relative by introducing the child's penis into his mouth and that the child was a child under the age of 16 years contrary to s 329(2) of the Code.[7]
[7] Trial ts 12.
The Southern River incident was alleged to have occurred on an unknown date between 31 December 2017 and 3 January 2021. The incident occurred at a house in Southern River where the boys' father, BD, was living with their stepmother. At this time, the appellant was aged between 14 and 16 years and LD was aged between 9 and 12 years.[8]
[8] Trial ts 12.
The prosecution case was that the incident occurred on a day when both the appellant and LD were staying at the Southern River house. The appellant got into the same bed as LD. The appellant stroked the complainant's penis in an up and down motion. This act was the subject of charge 1512, a charge of indecently dealing with a child who the appellant knew to be his lineal relative by touching the child's penis and that the child was under the age of 16 years contrary to s 329(4) of the Code.[9]
[9] Trial ts 12 - 13.
The prosecution alleged that the appellant then moved LD's hand and placed it on his (the appellant's) penis. He caused LD to move his hand up and down. That act is the subject of charge 1513, a charge of procuring, inciting or encouraging a child who he knew to be a lineal relative to engage in an indecent act and that the child was under the age of 16 years contrary to s 329(5) of the Code.[10]
[10] Trial ts 13.
The prosecution alleged that the appellant then told LD, 'Just let me do it' and LD responded, 'No'. The appellant asked LD, 'Why not' and LD then allowed the appellant to penetrate him by putting his penis into LD's anus. That act was the subject of charge 1514, which is a charge of sexually penetrating a child who he knew to be a lineal relative by penetrating the child's anus with his penis and that the child was under the age of 16 years contrary to s 329(2) of the Code.[11]
[11] Trial ts 13.
The prosecution alleged that while LD was trying to sleep, the appellant told LD he was still hard and asked LD to stroke his penis. LD used his hand to stroke the appellant's penis in an up and down motion until the appellant ejaculated in LD's hand. That act was the subject of charge 1515, a charge of procuring, inciting or encouraging a child the appellant knew to be his lineal relative to engage in an indecent act and that the child was under the age of 16 years contrary to s 329(5) of the Code.[12]
[12] Trial ts 13 - 14.
The prosecution case was that in addition there were numerous other instances where the appellant made LD touch and suck his penis or sent him explicit pictures on Snapchat. This conduct began when LD was about 9 years old and had the effect of normalising the sexual behaviour. The conduct was more frequent when LD was living in the regional town, which was near to where the appellant was living. However, it continued after LD moved to Perth in April 2018 and that was because the two boys would see each other at their father's house or on trips made by LD to the regional town.[13]
[13] Trail ts 14.
The prosecution case was that the frequency of the sexual interactions was relevant to any consideration of why LD may not be able to recall the specific details of charged sexual acts or the specific dates when things happened. It was said to also explain why there was a wide date range for some of the offences.[14]
[14] Trial ts 14 - 15.
The prosecution also relied on evidence of a specific uncharged act that had occurred prior to any of the charged acts. This evidence was led to establish the way in which the sexual interactions escalated and to place into context the first incident. The uncharged acts occurred in early or mid‑2017, where it was alleged that the appellant made the complainant touch his penis whilst they were sleeping in a swag at the front of a house.[15]
[15] Trial ts 15.

Prosecution evidence

Child witness interview of LD

The child witness interview took place on 2 March 2022. LD was 14 years old at the time.[16]
[16] Video interview ts 2.
In the child witness interview, LD said that the appellant had made him do things in the regional town and in Perth 'that a woman would normally do'. He said that this included forcing him to touch the appellant's penis and the appellant putting his penis into his 'behind'. He said that this had happened more than once and that the appellant had told him that he could not say anything to anyone else.[17]
[17] Video interview ts 5 - 6.
When asked about the very first time that something of this nature had happened, LD said it was when he was about 10 years old. They were at the house of an aunty and uncle and there was a swag or 'tent thing' set up at the front of the house. LD was afraid of the dark but was persuaded by the appellant to sleep in the swag. He said that the appellant grabbed his hand and put it on the appellant's penis and started to make him 'play with it'. The appellant then asked him to suck his penis and LD gave in and did as he was asked. LD then made an excuse to go inside and did not return. LD said that during this incident, the appellant pulled his pants down and tried to pull down LD's pants but LD pulled away.[18]
[18] Video interview ts 6 - 13.
LD was then asked to tell the interviewer about 'the very last time' that something had happened. LD said that this was on the appellant's birthday and on an occasion when they had both stayed at a hotel in the regional town. He said that they were both in the beer garden of the hotel and decided to go for a swim in the pool. They went back to the room to get changed. In the hotel room, the appellant asked LD to play with his penis and to suck it and LD said no and then went to the bathroom to get changed. He locked the bathroom door to get changed and then came out with a towel and said that he would meet the appellant down at the pool area. He said that the appellant asked him to wait for him and shut the door.[19]
[19] Video interview ts 18 - 19.
The appellant then again asked LD to play with his penis. LD said that the appellant kept repeating that request and in the end he gave in and complied. When asked what year this was, LD said, 'Last year' and '2021'. He said that when this occurred, he was sitting on the single bed and the appellant was sitting on the double bed in the room. He said that the appellant grabbed his hand and made him touch his penis. The appellant then again asked LD to suck his penis and said, 'If you do me, I'll do you'. LD said that after 'ages of saying no' he ended up giving in and sucking the appellant's penis.[20]
[20] Video interview ts 19 - 21.
LD said that the appellant then asked to put his penis in LD's anus but LD said no, put his clothes back on and went back to the beer garden. LD said that during this incident, the appellant had also asked to play with LD's penis and had done so. He also sucked on LD's penis. He then said that the appellant had also forced him to bend over and that the appellant had penetrated his anus with his penis.[21]
[21] Video interview ts 21 - 25.
When asked again about the date, LD gave the following answers:[22]
[22] Video interview ts 28 - 29.
Q. Yeah. And that was on 3 November, I think you said, last year.
A. Um, it was around that area - - -
Q. Around then.
A. - - - but I'm not sure - - -
Q. Yeah.
A. - - - specifically on what - - -
Q. Yeah.
A. - - - the date was.
Q. You just mentioned it was around his birthday.
A. Yeah.
Q. Yeah, okay. Um, how old was he then? Do you know?
A. 18.
Q. 18? So, um, was it before or after his actual birthday?
A. I think it - I'm pretty sure it was after because the two people - the people that I was staying with in the [hotel] invited him to come back to the [hotel] with us for the night - - -
Q. Mm hm.
A. - - - and that was the day after his birthday - - -
Q. Mm hm.
A. - - - and then the day after all of that happened he ended up coming back out to his auntie and uncle's.
Q. Okay. So you think - just so I'm clear, so you think the day after the - his birthday - - -
A. Yeah.
Q. - - - he stayed at the [hotel] that night?
A. Yeah.
Q. And then the next day he went back to the farm?
A. Yeah.
Q. Okay.
A. Because obviously the people that I stayed with, um, are also from Perth - - -
Q. Yeah.
A. - - - yeah, cos they invited me to go with them.
Q. Yeah. So who's that that invited you?
A. Uh, that's [AZ] and [QF].
Q. And who are they?
A. Uh, there was dad's old partner - - -
LD then said that at the time of this incident he was staying at the hotel with his stepmother (AZ) and her adult daughter (QF). He thought that the room number was 17. When the interviewer expressed surprise at him being able to recall the room number, LD said that he used to live at the hotel with his mother, who was the venue manager at the time, before they moved to Perth.[23]
[23] Video interview ts 29 - 30.
LD said there was no one in the room when this happened but when he went back to the beer garden AZ and QF were there.[24]
[24] Video interview ts 30.
As to the Southern River incident, LD said that there was an occasion when he was at the house of his father (BD) and stepmother (AZ) and that the appellant was also present as he had come to stay. BD was away from home working. LD and the appellant shared a bed and AZ said they could go head to tail in that bed. Late that night, AZ and her children had gone to bed and LD and the appellant were playing a game. LD went to bed and the appellant came to the bed and asked LD to suck on his penis and to play with it. He then made LD stand up and bend over, pulled LD's pants down and put his penis into LD's anus. After that happened, the appellant and LD returned to the bed and the appellant started moving his feet around. The appellant then moved so that his hands were near LD's penis. He then asked LD to play with his penis, which LD did, resulting in the appellant ejaculating on LD's hand.[25]
[25] Video interview ts 30 - 34.
When asked when the Southern River incident occurred, LD said that he could not remember but that it was possibly two years ago. He said that he knew he was not yet 13 years old at the time and thought he was 12 years old. When asked how often these sorts of things happened, LD said, 'Very often' and that before he moved to Perth, it was every weekend.[26]
[26] Video interview ts 36 - 37.
LD said that the appellant would also send him photographs of his penis on Snapchat. The last time this occurred was after the appellant's birthday but before Christmas.[27]
[27] Video interview ts 39 - 41.
LD said that on the night of the appellant's birthday, he had a party. AZ had also attended and the next day AZ, QF and LD had returned to the party venue to help clean up. The appellant asked if he could come and stay with them at the hotel where they were staying. LD said, 'So he ended up coming back with us to the [hotel] to stay and - and then we all went down to the beer garden and that's when it all happened there'. LD said that the appellant had sent him a photo after that event.[28]
[28] Video interview ts 40 - 41.
When asked when the sexual behaviour stopped, LD said it was when he lost contact with the appellant after his (LD's) birthday 'this year' (that is, 3 January 2022).[29]

Trial evidence of LD

[29] Video interview ts 41.

By the time LD gave his evidence at the trial on 12 December 2023, he was 15 years old.[30]
[30] Trial ts 24.
LD said that he had recently viewed the video of his child witness interview and wanted to make some corrections. In regard to the swag incident, LD said that he could not recall sucking the appellant's penis or that the appellant tried to play with his genitals. He said that when he said in the interview that sexual abuse had occurred every weekend before he moved to Perth, he meant that it was every second weekend or so when he would go to the house where the appellant lived.[31]
[31] Trial ts 27 - 29.

In regard to the hotel incident, LD said that it was not correct that it happened around the appellant's birthday in 2021. He said that he could recall it happening at Uncle B's wake. He said that had occurred in 2016 at the hotel and that the whole family was present, including the appellant. LD said that he, BD and AZ were staying at his grandmother's house, which was across the road from the hotel. The appellant and his aunty and uncle, PW and SW, were staying at the hotel. The complainant said he thought that he stayed at his grandmother's house for about a week. He thought that the appellant stayed at the hotel for perhaps one night.[32]
[32] Trial ts 30 - 31.
LD said that on the day of the wake, he was in the beer garden with other members of the family. He and the appellant wanted to go for a swim in the pool and they both went to a room in the hotel to get changed. LD said that he went into the bathroom to get changed and that that was 'when it all happened'. He said that this was the incident that he had described in the child witness interview.[33]
[33] Trial ts 31 - 32.
LD said that the appellant had his pants down and that he (LD) was stroking the appellant's penis in an up and down motion. A little later, he was kneeling on the floor and the appellant was on the bed. The appellant took LD's head and pushed it straight into him. The appellant wanted LD to suck his penis and LD complied. They then swapped positions and the appellant sucked LD's penis.[34]
[34] Trial ts 32 - 34.
LD was asked whether he could recall standing up and being pushed over and anally penetrated by the appellant. He said he could not recall that happening. He could remember walking out because he had had enough. He said that in the video he had referred to stroking of the appellant's penis occurring over clothing. He said that it had started over the clothing and then had continued under the clothing.[35]
[35] Trial ts 34.
When asked what room in the hotel this had occurred in, LD said he could not recall. He said that there were other days where things happened between him and the appellant at the hotel. He said that this had happened more than once but he could not recall how many times.[36]
[36] Trial ts 35.
In regard to the Southern River incident, LD had no corrections to what he said in the interview but did provide some further details when asked. He said that the door to the bedroom was closed and that the appellant put a pillow behind the door. He said that after the appellant and he had touched each other's penises in the bed, he then stood up next to the bed facing the wall. The appellant 'kind of pushed' him, causing him to bend over the bed. The appellant then put his penis into his anus.[37]
[37] Trial ts 39 - 43.
LD said that this was not the first time this had occurred and that it had occurred more than once before. LD said that after being penetrated he got back into bed and said that he wanted to sleep because they had a busy day the next day. LD said that what then occurred was as described in the child witness interview; that is that the appellant procured him to masturbate the appellant until he ejaculated. LD said that he then went to the bathroom to wash his hands.[38]

Cross‑examination of LD

[38] Trial ts 43 - 44.

LD agreed that the appellant had not put his penis in his anus in the swag incident. He was then asked why in the interview he had identified this as being the very first time that something of that nature had happened. He said that he did not remember that. When asked whether he had sucked the appellant's penis in the swag incident, LD said that he did not remember. He said that he could not remember that incident fully as it occurred when he was 9 or 10 years old.[39]
[39] Trial ts 46 - 47.
As regards the hotel incident, LD agreed that he had said in the interview that this had occurred at about the time of the appellant's 18th birthday and that he (LD) was almost 14 years old at the time. LD agreed that he did attend the appellant's birthday party, which was held at a shearing shed. He came from Perth for the occasion with AZ and QF. He agreed that when he spoke to the police he was sure that this incident occurred at the hotel after the appellant's 18th birthday party. He said that he could now remember that it took place at Uncle B's wake.[40]
[40] Trial ts 47 - 48.
LD agreed that the wake was four years before the appellant's 18th birthday, and that at the time of the wake he was 9 years old. He agreed that in the interview he had said that on that occasion the appellant had pushed him over and penetrated his anus with his penis. He said that he did not now remember that. He agreed that he had said in evidence that when the appellant sucked his penis, he (LD) was on the double bed but could not remember having told the police that he was on the single bed at that time.[41]
[41] Trial ts 48 - 49.
LD said that he now remembered that the room he went to with the appellant was the one that the appellant was staying in with his aunty and uncle. The room was not number 17 as far as he could remember. He could remember the room having 'all of their stuff' in it.[42]
[42] Trial ts 49.
LD agreed that he, AZ, QF and AZ's two younger children had stayed at the hotel after the appellant's 18th birthday party. He could not remember saying to the appellant at the party that he should come for a swim the next day. He did remember that the appellant slept at the hotel in their room that night. The appellant slept on the floor in between two mattresses. AZ slept in the double bed with her two younger children. QF slept in the single bed. LD slept on two chairs that were turned into a bed.[43]
[43] Trial ts 49 - 50.
LD was shown photographs of himself at the beach with the appellant and QF. The photographs were dated 31 October 2021. He could recall being at the beach but did not recall whether it was the day after the birthday party.[44]
[44] Trial ts 51.
LD agreed that he did not tell anyone about the sexual conduct involving the appellant until he told his mother. He said that he did not do so because he was 'only young' and 'never realised what this actually meant'.[45]

Re‑examination of LD

[45] Trial ts 55, 58.

In re‑examination, LD said that during the hotel incident, he started by sitting on the single bed and then moved to the double bed. He was on the double bed when he touched the appellant's penis and when they sucked each other's penises.[46]
[46] Trial ts 59.
LD was asked to clarify what the 'stuff' was that was in the hotel room that he had referred to. He was asked:[47]
So what do you recall about that room?---They had all their stuff, like - [the appellant] had just got a air tank so he could breathe underwater. He had that on the big double bed with all their stuff in the room. And while we're in the room, that's when [the appellant] asked me if he want - like, if I wanted to watch him use the gas or the oxygen tank in the pool, which is what made me think that they were staying the night.
So you thought they were staying the night but you didn't actually see them there. Is that correct?---No.
Did you see [PW and SW] in that room that day?---No, but all their stuff was in the room.

Evidence of NP

[47] Trial ts 59 - 60.

NP is LD's mother. She said that in 2017, LD was living with her but going to stay with his father, BD, every second weekend. At the time, NP was living at the manager's quarters of the hotel. She was the venue manager of the hotel at that time.[48]
[48] Trial ts 62 - 63.
In April 2018, NP moved to Perth with her new partner. LD moved with her.[49]
[49] Trial ts 63.
NP said that Uncle B had passed away on 6 December 2017. There was a wake on 15 December 2017 at the hotel. She said that there were many members of the family there, including the appellant and LD. She thought LD stayed with her on the night of the wake but he may have stayed with his father that night.[50]
[50] Trial ts 64 - 65.
NP said that when she moved to Perth, there continued to be shared custody of LD. He lived with her but stayed with his father on weekends or it could have been every second weekend.[51]
[51] Trial ts 66.
NP said that on 3 January 2018, LD told her that the appellant had asked him to touch and suck his 'dick'. She asked LD whether he meant it and he then said that he was joking. About an hour later, she asked him again whether anything had happened and he said no.[52]

Evidence of BD

[52] Trial ts 66 - 68.

BD is the biological father of both LD and the appellant. BD said that in 2017, he was living in Southern River with his partner (AZ) and their children. His partner's adult daughter (QF) was also living at the house. It was a four‑bedroom house and LD had his own bedroom when he came to stay.[53]
[53] Trial ts 70 - 71.
In 2018, the appellant stayed at the house in Southern River whilst he was working. The appellant would sleep on a mattress in the lounge room. At the time, BD was doing fly‑in fly‑out work. He agreed that there were occasions when LD, the appellant and the other children were at the house together whilst he was away from home working.[54]
[54] Trial ts 72.
BD said that Uncle B had passed away on 6 September 2017. There was a wake for him at the hotel in the regional town. A lot of family attended the wake, including the appellant and LD. BD said that on the night of the wake, he stayed at a house next to his mother's house, which was near the hotel. AZ, QF, the appellant and LD also stayed at that house. LD and the appellant were also at the house the night before the wake. BD said that he stayed at the house for a week. He could not recall when in that week the wake occurred. He believed that PW and SW were at the wake but was not sure.[55]

Shanyn Bosveld

[55] Trial ts 74 - 75.

Detective Senior Constable Bosveld was the investigating officer. She interviewed the appellant on 15 March 2022 after he had been arrested. In the interview, the appellant denied the offences. He agreed that there had been an occasion when he set up a swag for the complainant, but that the complainant did not sleep in it. When asked if he had touched the complainant's penis, the appellant said he could have done so by accident when he picked the complainant up and threw him into the swag.[56]
[56] Trial ts 80; accused's video interview, 15 March 2022.
Detective Bosveld had checked the accommodation records of the hotel and confirmed that AZ and QF had stayed at the hotel prior to the appellant's 18th birthday on 3 November 2021. In re‑examination, Detective Bosveld confirmed that they had arrived on 29 October 2021 and departed on 30 October 2021.[57]
[57] Trial ts 88 - 89.

Defence evidence

Evidence of the appellant

The appellant said that he had lived with his aunty and uncle, PW and SW, since he was 18 months old. He left school at 14 and worked as a shearer from that time.[58]
[58] Trial ts 95 - 96.
The appellant said that when his father lived in Southern River, he would stay there and sometimes LD would also be there. However, LD mostly lived with his mother both at the hotel in the regional town and in Perth when they moved.[59]
[59] Trial ts 99.
The appellant said that there was an occasion when LD came to stay at his aunt and uncle's house and they slept in a swag in the yard. He thought LD was about 10 years old at the time and that he was about 14 years old. He said that LD had a fear of darkness and the cold and that he ended up picking up LD and throwing him into the swag. He picked him up above the knees in a rugby tackle. The swag was a mattress with canvas like a half‑dome over it. He said he tackled LD because he wanted to toughen him up to conquer his fear of darkness. He said that he could not recall having touched LD's penis, but he could have done so as he tried to shove LD's legs back into the tent. If he did, it was not deliberate. He denied doing anything sexual or asking LD to play with his penis or his testicles. He said that there was no sexual contact of any sort between them on that occasion.[60]
[60] Trial ts 100 - 103.
The appellant said that he attended Uncle B's funeral in 2017. He was aged 14 at the time and LD was aged 9. He said his aunt was unwell at the time and they ended up going straight home after the funeral. He did not attend the wake at the hotel. He did not stay at the hotel. He agreed that he did have a scuba tank at the time and that he kept it at home in his room. He never took it to the hotel. It stayed at the house. He only used it once in the bathtub. LD could have seen the tank at home on his bed.[61]
[61] Trial ts 105 - 106.
The appellant said that his father stayed at his grandmother's house across the road from the hotel. LD stayed with his father. The appellant stayed with them for a couple of nights during the time they were there.[62]
[62] Trial ts 107.
The appellant stated that he had only ever stayed in the same room at the hotel as LD on one occasion. That was the Sunday night after his 18th birthday party on 30 October 2021. He said that the day after the party he went back to the shearing shed where it was held to clean up. Some others were there, including AZ, QF and AZ's younger children. He then went back with them to the hotel for a swim and ended up staying the night. After the swim, he went to the room, had a hot shower, got dressed and went down to the pub. LD was in the room for only a few seconds. When the appellant finished and got to the pub, LD was already there having lunch. He denied that any sexual contact took place between himself and LD.[63]
[63] Trial ts 107 - 110.
The appellant agreed that he spent time at the Southern River house and sometimes saw LD there. He stayed there perhaps five or six times. He would sleep in the lounge room on a mattress or occasionally in the hallway. He denied ever sleeping in a bed with LD but said that they sometimes shared the same mattress in the lounge room. He never slept head to tail with LD and denied any sexual contact. He said that sometimes they would play‑fight and he would push LD off when he became annoying.[64]
[64] Trial ts 111 - 112.
The appellant said that he had sent photographs of his penis with Snapchat but had not intentionally sent such a photo to LD.[65]

Evidence of PW

[65] Trial ts 113.

PW is the appellant's great aunt. She and her husband have had the care of the appellant since he was 15 months old.[66]
[66] Trial ts 130 - 131.
PW agreed that the appellant had owned a scuba diving tank. She had seen it in his room. She said that she had never seen it at the hotel. LD came to stay with them from time to time.[67]
[67] Trial ts 132, 134.
PW attended the funeral of Uncle B but did not go to the wake at the hotel because she was sick. She went home from the crematorium. She said that her husband and the appellant came with her. She said that she did not stay the night at the hotel on the night of the wake, nor did her husband or the appellant. They did not leave the appellant at the hotel to go to the wake as he was only 14 years old.[68]
[68] Trial ts 134 - 136.
PW has stayed at the hotel on other occasions because she operated a karaoke business that ran karaoke sessions at the hotel at the end of each month. However, on the occasions that she had stayed at the hotel, the appellant and LD had not stayed in the room.[69]

Evidence of QF

[69] Trial ts 136.

QF is the adult daughter of the complainant's stepmother, AZ. She lived with AZ and BD at the Southern River house. She could recall the appellant staying over at the Southern River house. On those occasions, he would sleep on the lounge or in his own bedroom. On some occasions, LD was also there. The appellant and LD never slept in the same bedroom together.[70]
[70] Trial ts 143 - 145.
QF attended the appellant's 18th birthday, which was on 30 October 2021. She drove her car and her mother and LD went together in a second car. They stayed at the hotel on the first night and the next night they went to the party. They had intended to camp out at the party but when they got there, they realised that no‑one else was camping, so they made a last‑minute booking for a room back at the hotel. The first night was booked in her name and the second night in her mother's name. On the first night, she, her mother, LD and her two younger siblings stayed in the room.[71]
[71] Trial ts 146 - 147.
On 31 October 2021, QF and her mother went back to the shearing shed to help clean up. There was a discussion about going back to the hotel and swimming in the pool. LD asked the appellant if he would like to come along. The appellant came with them. When they got back to the hotel, they went straight to the pool and then got some lunch. They went to a beach together later that day.[72]
[72] Trial ts 146 - 148.
That night, the appellant stayed with them in the hotel room. She slept in the single bed, her mother and LD slept on the double bed, the two younger children slept on the floor and the appellant slept on the floor between the beds.[73]
[73] Trial ts 148.
She said that she attended the funeral for Uncle B in 2017. There was a wake at the hotel. She and her mother stayed at BD's mother's house. She said that the appellant did come to visit but she could not remember if he slept over, though she did not think that he did. She could not remember whether she attended the wake.[74]
[74] Trial ts 149 - 150.

Trial judge's reasons

The trial was a trial by judge alone before the President of the Children's Court.[75]
[75] Trial ts 179 - 180.
In his reasons, the learned trial judge acknowledged that the only witnesses who could speak directly about the alleged offending were LD and the appellant. As his Honour noted, the State's case critically depended upon LD's evidence. While there was other evidence of surrounding circumstances, LD's evidence as to the alleged conduct was uncorroborated. The trial judge acknowledged that he had to be satisfied beyond reasonable doubt as to the truthfulness, accuracy and reliability of LD's evidence in relation to a charge that he was considering before he could make a finding of guilt on that charge.[76]
[76] Trial ts 182.
The trial judge referred to the passage of time and the forensic disadvantages for the appellant arising from the delay in complaint (a Longman direction).[77]
[77] Trial ts 182 - 184.
The trial judge then referred to the evidence given by the appellant. In that regard, his Honour said:[78]
Now, I heard some evidence from [the appellant] himself. That he has no relevant criminal record and apart from a few traffic offences, he is a person of good character.
Now, in any Children's Court trial there's less weight that can be attached to character evidence than would be in a trial involving an adult, because children do not have fully formed character and they don't have years of established good character to fall back on. But nevertheless, I do recognise there is some relevance in the character evidence. It goes to two aspects really, firstly, the likelihood - or rather unlikelihood that [the appellant] would commit an offence such as that charged. And, secondly, it's relevant in relation to credibility because it tends to show that he's a person whose evidence can be accepted and relied upon.
Of course, I must not allow convincing evidence of guilt to be overwhelmed by evidence of good character.
[78] Trial ts 185.
Later, in dealing with the appellant's evidence, the trial judge said:[79]
I have considered [the appellant's] record of interview and his evidence very carefully. And I have concluded that I reject his denials of offending and his version of events. Nothing he said raises a reasonable doubt about the State case. Now, there are a number of reasons why I have come to that conclusion; I am only going to deal with the primary ones now. Firstly, in his evidence‑in‑chief in court [the appellant] attempted to distance himself from committing the Southern River offending by maintaining he did not sleep in a bed at the Southern River house with [LD].
He said he only ever had a mattress on the floor in the lounge … Now, in his record of interview, [the appellant] initially said that he slept in the loungeroom … However, what [the appellant] forgot in his evidence‑in‑chief is that he had also said something quite different in his record of interview.
[79] Trial ts 188 - 189.

The trial judge then went on to refer to cross‑examination on this issue in which the appellant had referred to trying to kick LD out of bed. His Honour was of the view that this was significantly different to the evidence that the appellant gave in his examination‑in‑chief.[80]
[80] Trial ts 189 - 190.
The trial judge gave two other reasons for rejecting the appellant's evidence. The first of these was that the appellant said in his evidence that he did not tell the truth to the police about an incident between himself and LD at the hotel. When interviewed by the police, the appellant had said that, at one stage, he had walked out of the room and LD was not there. In his evidence, he said that this was 'a bit of a mix up'. He said that, at the time of the interview, he was 'confused and juggling [his] words'.[81] He later conceded in cross‑examination that when he told the police that LD came back in the door, that was not true.[82]
[81] Trial ts 191.
[82] Trial ts 190 - 192.
The third reason given by the trial judge for rejecting the appellant's evidence was the appellant's reaction to the Southern River and swag incidents when they were put to him in the police interview. His Honour considered it to be odd that the appellant showed no surprise or anger when those incidents were put to him. There was no immediate denial when confronted with the allegations. His Honour also considered that one of the responses of the appellant was consistent with being a concession that there was a sexual component to the swag incident but that it was initiated by LD. His Honour also referred to the appellant's responses under cross‑examination regarding the sending of explicit photographs.[83]
[83] Trial ts 193 - 196.
The trial judge then turned to the complainant's evidence. His Honour said that he found the complainant to be a generally credible witness and, in particular, that his account of the swag incident was credible.[84]
[84] Trial ts 196 -197.
In regard to the complainant's account of the hotel incident, his Honour acknowledged that there was a difference in the timing of that incident between the police interview and the evidence in the trial. His Honour then said:[85]
But focusing on his account in the child witness interview of what happened rather than the timing of it, his account was similarly detailed as to the surrounding circumstances, conversations, and what [LD] was thinking at the time and in that experiential, his account, as with the swag incident was plausible.
It seemed to me that he had a good memory for the whole of the incident. He was internally consistent. The order of what the charged act was, I have to say, a little bit confusing but, again, that's not uncommon. In this case it's not because of any uncertainty as to what occurred, it seems to me, more because [LD's] memory was focused on what the [appellant] was saying and the circumstances of persuasion to do the things that he was asked to do.
[85] Trial ts 197.
The trial judge accepted that, in his evidence regarding the hotel incident, LD could not recall that there had been anal penetration. However, his Honour did not accept that this was a reason for doubting the reliability of that evidence. Rather, his Honour concluded that the complainant's credibility was reinforced because he admitted that part of his memory was gone. His Honour said that this demonstrated that in some specific instances, the account given in the child witness interview was unreliable.[86]
[86] Trial ts 203.
The trial judge then returned to the timing of the hotel incident and noted that the charges alleged that the hotel incident had occurred between 6 and 31 December 2017. His Honour then said:[87]
The problem is that in his child witness interview, [LD] gave a very different date for this event. He said that it occurred after [the appellant's] 18th birthday.[88] Which he - that is [LD] - came up to [the regional town] for along with [AZ and QF]. And [AZ, QF and LD] stayed at the [hotel] on that occasion and [the appellant] was asked to stay over and did. Now, I've heard considerable evidence from multiple witnesses about both the week of [Uncle B's] funeral and also the weekend of [the appellant's] 18th birthday.
…
And then [LD] - as I say - when he gave evidence in court this week corrected his claim about the incident having occurred at the 18th birthday and said it was, in fact, four years previously in December 2017 that the offences occurred. Which is by any measure, a big difference. So why is [LD] so wrong on the timing? Many adult witnesses and very many children have a poor concept of time. [LD], I find, is particularly bad. When asked more generally about times - particularly in his evidence in court this week - he repeatedly said that he could not recall.
And I think that was a consequence of him having realised that he was so wrong about his previous estimation of time that he was not prepared to commit himself after that when on oath in evidence, to any timing knowing in his own mind that he had been completely wrong in his estimation in the child witness interview. That is, in fact, I think, a reflection of how careful he was to be as honest as he could be, even when it didn't necessarily show him in a good light because it does seem odd that he simply cannot recall time.
But as I say, it is not unusual. What is a bit unusual is that he's as bad at it as he is in terms of recalling when things happened. Ultimately, the only incident I am confident that [LD] can date relatively reliably is that swag incident when he was about 10 because it was the first one and also because, as I said, [the appellant] also says it was around 10 and that's a piece of his evidence I do accept.
[87] Trial ts 205 - 206.
[88] The transcript here refers to the complainant's, rather than the appellant's, 18th birthday, but that is clearly an error.
Ultimately, the trial judge concluded that whilst he could not rely on the complainant's evidence as to the date of the hotel incident, he was satisfied that there was an opportunity for the hotel incident offending to have occurred at the time of the wake or in the surrounding week. Whilst there was some evidence of an alibi from PW as to the appellant not attending the wake, his Honour was not satisfied that her memory was reliable in this regard and, in any event, there was opportunity on other days in the week leading up to the wake.[89]
[89] Trial ts 207 - 208.
LD's evidence was that the alleged act of stroking of the appellant's penis at the hotel, had commenced over the clothing and then continued (charge 1508). The trial judge was not satisfied beyond reasonable doubt of that charge and returned a verdict of not guilty in respect of it. However, His Honour found each of the other charges proven beyond reasonable doubt and entered verdicts of guilty in respect of them.[90]
[90] Trial ts 208.

Appeal against conviction - grounds of appeal

The grounds of appeal against conviction are as follows:[91]
[91] WAB 7 - 8.
1.The learned trial judge erred in law by failing to take into account or placed insufficient weight upon the prior good character of the appellant.
Particulars
(a)The appellant was an adult of 20 years old.
(b)the personal circumstances of the appellant were not taken into account.
2.The learned trial judge erred in law by failing to properly consider or take into account the significance of delay in complaint by the complainant in accordance with the decision of the High Court in Crofts v [The Queen] (1996) 186 CLR 427.
3.His Honour's finding that the complainant's particularly bad concept of time was the explanation for the four year difference between his evidence in the Child Witness Interview as to when offending occurred as compared to his evidence at trial was not open on the evidence or by implication.
4.The errors alone or together occasioned a miscarriage of justice.
5.The properly admissible evidence led in respect of those counts on which the appellant was convicted was insufficient to justify a finding of guilt beyond reasonable doubt, those verdicts being unreasonable and the convictions unsafe.
Ground 3 is, in essence, a particular of ground 5. Those two grounds can be conveniently dealt with together. Those grounds will be dealt with first as the consequence of allowing a ground that a verdict is unreasonable or unsupported by the evidence is that a judgment of acquittal must be substituted.

Grounds 3 and 5 - relevant legal principles

The principles governing a ground of appeal that a verdict is unreasonable or cannot be supported by the evidence are well known. The principles established by the leading High Court decisions have been outlined by this court many times. In Sturniolo v The State of Western Australia,[92] the principles were relevantly summarised as follows:
[92] Sturniolo v The State of Western Australia [2023] WASCA 147 [70].
(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.
An appellate court's function is to determine for itself whether the evidence was sufficient in nature and quality to remove any doubt that an appellant was guilty of the offence.[93] 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 (or judge in a trial by judge alone) can be taken to have had by reason of having seen and heard the evidence at trial.[94]
[93] Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651 [7].
[94] Dansie [16].
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 advantages that the jury have over this court.[95] References to the advantage of the jury apply equally to a judge where the finder of fact is a judge sitting alone. In such a case, the trial judge has the advantage of having seen and heard the witnesses - an advantage that this court does not have.[96]
[95] Dansie [37] - [38]; Lang v The Queen [2023] HCA 29; (2023) ALJR 758 [143], [250] ‑ [251].
[96] HDG v The State of Western Australia [2024] WASCA 27 [92].
The fact that this was a trial by judge alone and that the trial judge provided reasons for his verdicts does not relieve this court of undertaking its own assessment of the evidence. In Dansie v The Queen,[97] the High Court said that undue attention to the factual findings on which the trial judge relied can distract an appeal court from the proper performance of the assessment required by a ground alleging that a verdict is unreasonable or cannot be supported by the evidence. The function to be performed is not to determine whether there was any error in the factual findings of the trial judge but to determine whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of the offence.[98]
[97] Dansie [7].
[98] HDG [87].

Grounds 3 and 5 - merits of the appeal

Each of the charges depended critically upon an acceptance that LD's evidence was both credible and reliable and that it proved the occurrence of the alleged sexual acts beyond reasonable doubt. As regards the Southern River incident, LD's evidence was consistent with the child witness interview and clearly identified each of the alleged acts referred to. However, the position was different in regard to the hotel incident.
The prosecution case was that there was only one hotel incident. It was not suggested that the inconsistency between the interview and the trial evidence could be explained on the basis that LD was speaking of two different incidents. Rather, the prosecution case was that in the interview LD was referring to the same hotel incident, but had made a mistake regarding when it had occurred.
In regard to the hotel incident, the differences between the account that LD gave to the police and that which he gave in evidence at the trial were materially different. The differences were not confined to the date on which the incident had occurred. Those differences were as follows:
1.In the child witness interview, LD said that the hotel incident was the last incident of a sexual nature to have occurred. Whereas, in his trial evidence, he said that it in fact occurred in December 2017. On his account at the trial, it was not the last incident, or anywhere near it.
2.At the time of the child witness interview, LD placed the hotel incident as being only four months before that interview, that is, in late October or early November 2021, at the time of the appellant's 18th birthday. He said that he had no further contact with the appellant after his own birthday, which was 3 January 2022. These memory points are used by LD to locate the incident in time and are inconsistent with that incident having occurred in December 2017. Further, the recency of the events referred to in the interview counts against any possible error regarding the dates.
3.In the child witness interview, LD said that the hotel incident happened in late 2021, that is, when he was aged 14 and the appellant was aged 18. At the trial, LD said that the incident occurred at the time of Uncle B's wake, when he was aged 9 and the appellant was aged 14. It is unlikely that when remembering an event of this significance a person would be confused about their own age. The difference between a child of 9 and a child of 14 is obvious.
4.In the child witness interview, LD said that the hotel incident had occurred in a room (specified as room 17) in which LD, AZ, QF, and AZ's younger children were staying. He said that the appellant also came to stay in that room, after asking if he could do so. In his evidence at the trial, LD said that the incident occurred in a room at the hotel that the appellant was staying in with PW and SW, and that he could recall all their 'stuff' being there, including a scuba tank that the appellant offered to demonstrate using in the hotel pool. Further, he said that at the time of the hotel incident he was staying with his grandmother (even though his mother was still living at the hotel as the venue manager until 2018).
5.In the child witness interview, LD said that the hotel incident involved touching, mutual fellatio and anal penetration. In his evidence at the trial, he referred to touching and mutual fellatio, but could not recall any anal penetration.
6.In the child witness interview, LD said that he was on the single bed in the room when the fellatio occurred. In evidence, he said he was on the double bed, though in re‑examination he said he moved from the single bed to the double bed.
7.In the child witness interview, LD said that he went out to the beer garden following the incident and saw AZ and QF. In his evidence at the trial, this was not referred to.
It is apparent from this that the differences between LD's accounts of the incident extended beyond a mere error as to the date on which it occurred. Nor can the differences be explained on the basis that LD was referring to two different incidents. As noted earlier, the State case at the trial and on appeal was that LD was referring to the same incident. The inconsistencies are so numerous and significant as to raise a reasonable doubt that the hotel incident occurred as alleged, or at all. That doubt is not resolved by taking into account the significant advantage that the trial judge had of seeing LD give evidence.
Whilst the unreliability of LD's evidence in regard to the hotel incident is a relevant consideration in assessing his evidence regarding the Southern River incident, the evidence relating to the Southern River incident was different and did not suffer from the same inconsistencies. LD's evidence in respect of the Southern River incident was comparatively clear, straightforward and consistent. There was independent evidence from BD, AZ and QF as to the opportunity for that incident to have occurred. For these reasons, we do not consider that the unreliability of LD's evidence in respect of the hotel incident necessitates a conclusion that there must be a reasonable doubt in respect of the Southern River charges.
For these reasons, we allowed ground 5, set aside the convictions for the hotel incident charges and substituted judgments of acquittal on those charges. In these circumstances, it is only necessary to consider the other grounds of appeal against conviction to the extent that they relate to the Southern River charges.

Ground 1 - the merits

Ground 1 contends that the trial judge failed to take into account or, alternatively, placed insufficient weight on what was said to be the prior good character of the appellant. The passage in which the trial judge referred to good character is referred to above at [8484].
Evidence as to an accused's good character is relevant both in determining the likelihood that the accused would commit offences of the nature alleged and in assessing the credibility of the accused, if he or she gives evidence (or is interviewed by the police). A trial judge retains a discretion as to whether to direct the jury on evidence of good character after evaluating its probative significance in relation to both the accused's propensity to commit the crime charged and the accused's credibility. [99]
[99] Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 [30] (McHugh J).

The trial judge's reference to good character was unfortunately worded. It may give the impression that good character evidence is generally of less relevance in respect of juveniles. That could not, of course, be true. However, when the passage is viewed as a whole, it is plain that what the trial judge meant was that it is often the case that juveniles, by virtue of their youth, are unable to call upon a history of good character. That was not to say, however, that where such evidence of good character exists, it is not relevant. Indeed, it is apparent from the whole of the passage that his Honour recognised that the appellant's good character was a relevant consideration and a matter to be taken into account.
There was no merit in this ground of appeal. It had no reasonable prospect of success and leave in respect of it was refused.

Ground 2 – the merits

The decision of the High Court in Crofts concerned the Victorian equivalent of s 36BD of the Evidence Act 1906 (WA). The difficulty in Crofts was that the judicial direction given in that case was to the effect that the jury were not entitled to rely upon delay in complaint at all in drawing an inference that the complainant in that case was not telling the truth. The principle to be distilled from Crofts is that the direction must make it clear to the jury that when directing in accordance with s 36BD of the Evidence Act, they are nonetheless permitted to consider whether a failure to complain casts doubt upon the complainant's credibility.
In the present case, the trial judge found that LD did in fact complain to his mother but recanted that complaint when challenged. His Honour found that the recantation was explained by the manner and tone of the complainant's mother's response. In these circumstances, there was no delay in complaining. However, even to the extent that such a delay existed, his Honour made reference to that delay and considered it in assessing the complainant's credibility.
There was no merit in this ground of appeal. It had no reasonable prospect of success and leave in respect of it was refused.

Grounds 3 and 4 – the merits

Ground 3 has been dealt with under the heading of ground 5. Ground 4 depends upon the accumulated effect of grounds 1 and 2 and must fail for the same reasons.

Appeal against sentence

Because the appeal against conviction was allowed in respect of the hotel incident charges, it became necessary to resentence the appellant on the remaining charges.[100] Accordingly, the appeal against sentence fell away.
[100] See Criminal Appeals Act 2004 (WA), s 30(6).
On a resentencing, this court considered that the appropriate total effective sentence for the remaining charges was 10 months' immediate imprisonment. That sentence was achieved by substituting a sentence of 10 months' immediate imprisonment on charge 1514 and ordering that the sentences on charges 1512 ‑ 1515 were to be served concurrently with each other. The sentence was deemed to have commenced on 1 March 2024, and an order was made that the appellant be eligible for parole.

Orders

The orders made were as follows:
CACR 25 of 2024
1.Leave to appeal is granted on ground 5.
2.The appeal is allowed in part.
3.The convictions of charges 1509 ‑ 1511 of 2023 are set aside and judgments of acquittal are substituted on those charges.
4.The appeal is otherwise dismissed.
5.The sentence imposed on charge 1514 of 2023 is set aside and a sentence of 10 months' immediate imprisonment is substituted.
6.The sentences on charges 1512 ‑ 1515 are to be served concurrently with each other.
7.The sentences on charges 1512 ‑ 1515 are taken to have commenced on 1 March 2024.
8.The appellant remains eligible for parole.
CACR 26 of 2024
1.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MO
Research Associate to the Honourable Justice Hall
16 AUGUST 2024