Rhu v The State of Western Australia [No 2]

[2023] WASCA 49

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   RHU -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2023] WASCA 49

CORAM:   QUINLAN CJ

BEECH JA

HALL JA

HEARD:   5 DECEMBER 2022

DELIVERED          :   29 MARCH 2023

FILE NO/S:   CACR 31 of 2022

BETWEEN:   RHU

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   GILLAN DCJ

File Number            :   IND XXXX of XXXX

Catchwords:

Criminal law - Conviction appeal - Child sex offences - Collateral evidence rule - Where defence case was that father of children had coached them - Where father denied coaching - Where trial only related to complainant A - Whether pre‑recorded evidence of complainant B admissible at trial under s 106T of Evidence Act - Whether evidence of complainant B relevant to whether complainant A was coached - Whether evidence of complainant B admissible under fraud, bias or corruption exceptions to collateral evidence rule

Criminal law - Conviction appeal - Where miscarriage of justice alleged to be caused by forensic decisions not to call witnesses or to cross‑examine witness on an issue - Where forensic decision made by defence counsel - Objective test - Whether decisions have rational explanation

Legislation:

Evidence Act 1906 (WA), s 106A, 106I, 106T

Result:

Applications to adduce evidence granted
Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	Mr K G Robson
Respondent	:	Ms K C Cook & Mr T B L Scutt

Solicitors:

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

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

Ali v The Queen (2005) 79 ALJR 662

Attorney-General v Hitchcock (1847) 1 Exch 91; (1847) 154 ER 38

BGH v The State of Western Australia [2020] WASCA 124

CFM v The State of Western Australia [2017] WASCA 15

Goldsmith v Sandilands [2002] HCA 31; (2000) 76 ALJR 1024

Huggins v The State of Western Australia [2018] WASCA 61

Jeffery v The State of Western Australia [2009] WASCA 133; (2009) 51 WAR 96

KLM v The State of Western Australia [2009] WASCA 73; (2009) 194 A Crim R 503

McMahon v The State of Western Australia [2010] WASCA 143

Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196

Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614

Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123

R v BBQ [2009] QCA 166; (2009) 196 A Crim R 173

R v Birks (1990) 19 NSWLR 677

R v De Angelis (1979) 20 SASR 288

R v Lawrence [2001] QCA 441; [2002] 2 Qd R 400

R v LSS [1998] QCA 303; [2000] 1 Qd R 546

R v Phillips (1936) 26 Cr App R 17

RMM v The State of Western Australia [2018] WASCA 183

Smith v The Queen (1993) 9 WAR 99

TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124

US v Haggett, 438 F2d 396 (1971)

Table of Contents

Introduction

The prosecution case

The defence case

Trial evidence - prosecution evidence

IW (the complainant)

GW (the complainant's father)

SW (the complainant's grandmother)

Carlo Cecchele

Police Interview

Defence trial evidence

Closing addresses

Evidence on the appeal

HW

The appellant

DW

Clint Hampson

Aidan Kraus

Grounds of appeal

Ground 1 - preliminary issue - viewing the pre-recording

Ground 1 - the appellant's submissions

Ground 1 - the respondent's submissions

Ground 1 - relevant law - admissibility of the pre-recording

Ground 1 - relevant law - collateral evidence

Ground 1 - relevant law - incompetence of counsel

Ground 1 - the merits

Ground 2 - appellant's submissions

Ground 2 - respondent's submissions

Ground 2 - relevant law

Ground 2 - the merits

Ground 3 - appellant's submissions

Ground 3 - respondent's submissions

Ground 3 - relevant law

Ground 3 - the merits

Conclusion

JUDGMENT OF THE COURT:

Introduction

1. The appellant was convicted after trial of eight counts of sexually penetrating a child under the age of 13 years, contrary to s 320(2) of the Criminal Code (WA) (Criminal Code), and one count of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code. He seeks leave to appeal against his conviction.

2. The offences were alleged to have taken place on three occasions between 29 October 2019 and 16 November 2020.  The offences all related to one complainant, IW, who is the daughter of the appellant's de facto partner.  IW was 5 years old at the relevant time. 

3. The appellant was originally charged with a further count relating to HW, IW's younger brother.  The evidence of both HW and IW was pre‑recorded prior to the trial.  In his pre‑recorded evidence HW made inconsistent statements as to whether the alleged offending against him had occurred.  He also appeared to agree with a proposition put to him in cross‑examination to the effect that he had been told what to say by his biological father.  Following the pre‑recordings, and prior to the trial, the State discontinued the count relating to HW.  Thus, at the trial there was no allegation relating to HW.  He was not called as a witness, nor was his pre‑recorded evidence played to the jury. 

4. There are three grounds of appeal.  The first ground contends that there was a miscarriage of justice arising from the failure of defence counsel to adduce the pre‑recorded evidence of HW at the trial.  Alternatively, it is said that there was a miscarriage of justice arising from the prosecutor referring to the evidence of HW in his closing address without having adduced that evidence.  The second ground contends that there was a miscarriage of justice arising from the failure of defence counsel to cross‑examine IW on a statement made by her to the prosecutor in proofing.  The statement was to the effect that she knew her complaint was true because HW had told her what the appellant did to him.  The third ground contends that there was a miscarriage of justice arising from the failure by the prosecution or the defence to call DW, the appellant's partner and mother of the children, as a witness.  It is submitted that had DW been called, she could have given evidence of a potential motive for the biological father of the children, GW, to coach IW to make a false complaint.

5. In support of the grounds of appeal, the appellant sought to adduce additional evidence on the appeal.  That evidence comprised the pre‑recorded evidence of HW, and evidence from the appellant, DW.  The respondent made a responsive application to adduce evidence from the lawyers who represented the appellant at the pre‑recording of IW's evidence and at the trial.  The pre‑recorded evidence of HW related to ground 1.  The evidence of DW related to ground 3.  The evidence of the appellant and the lawyers related to all three grounds, in that each of the grounds asserted a miscarriage of justice arising from a forensic decision made by defence counsel.  The evidence was received on a provisional basis at the hearing of the appeal.

1. Viewed objectively, there were sound forensic reasons for not adducing evidence from HW at the trial and for each of the other decisions challenged in the grounds of appeal and the contrary is not reasonably arguable.  For the reasons that follow, whilst the application to adduce additional evidence on the appeal should be granted, leave to appeal should be refused and the appeal should be dismissed.

The prosecution case

1. At the time of the alleged offences, IW was aged 5.  Her parents, DW and GW, were divorced and shared custody of IW.  DW had formed a new relationship with the appellant.[1]

   [1] ts 132.

2. The State case was that on a date unknown between 29 December 2019 and 16 November 2020, the appellant sexually penetrated IW by engaging in cunnilingus twice and penetrating her vagina with his finger twice.  That conduct is the subject of counts 1 ‑ 4 of the indictment.[2] 

   [2] ts 133.

3. Further, the State case was that on another unknown date between 29 December 2019 and 16 November 2020 the appellant sexually penetrated IW by engaging in cunnilingus, penetrating her vagina with his finger and penetrating her anus with his finger and indecently dealt with IW by licking her buttocks.  That conduct is the subject of counts 5 ‑ 8 of the indictment.[3] 

   [3] ts 133.

4. On a third occasion, on a date unknown between 29 October 2019 and 16 November 2020 on the State case the appellant had sexually penetrated IW by introducing his penis into her mouth.  That conduct is the subject of count 9 on the indictment.[4]

   [4] ts 133.

5. The State case was that the incidents all happened at DW's house, either on a couch, on a bed, or in the toilet.  On each occasion DW was in the house attending to other jobs.[5]

   [5] ts 133.

6. On 16 November 2020, IW was staying with her father, GW.  GW thought that IW appeared anxious, and he asked her whether she was alright.  IW shook her head and GW then asked her about the normal routine at her mother's.  IW began to cry and touched her mouth and then her vagina.  When asked to use words, IW said that the appellant had used 'his mouth on my girly bits'.  GW's mother, the child's grandmother, was present when this was repeated.[6]

   [6] ts 133.

7. Police were contacted and on 18 November 2020 IW was interviewed by specialist officers.  She then disclosed what had occurred on the three occasions referred to.  This resulted in the appellant being charged with the nine charges in the indictment.[7]

   [7] ts 134.

The defence case

1. The defence case was that IW and HW were coached by their father (GW) to make false allegations against the appellant.  The motive for doing so was alleged to be that GW wished to secure primary custody of the children.

2. After their relationship ended, GW and DW initially had an informal arrangement as to custody.  This changed in November 2017, when an allegation was made that the appellant had assaulted IW.  Orders were made in the Family Court giving primary custody of the children to GW.  The assault charge was subsequently discontinued and on 18 July 2018 the Family Court ordered that custody of the children be shared.  The relationship between GW and DW was marred by arguments, occasional violence and disputes over custody of the children.[8]   

   [8] Closing address, ts 13.

3. The defence case was that GW, having seen that the assault allegation against the appellant resulted in him (that is, GW) obtaining primary custody, coached both HW and IW to make false allegations of a sexual nature against the appellant.[9]

   [9] Closing address, ts 13.

Trial evidence - prosecution evidence

1. It is not necessary for the purposes of this appeal to summarise the whole of the evidence.  It is sufficient to refer to those parts of the evidence that are relevant to the grounds of appeal.

IW (the complainant)

1. IW's evidence was pre‑recorded on 25 November 2021.  Her evidence‑in‑chief consisted of her recorded child witness interview of 18 November 2020.  She confirmed that the contents of the interview were true.  She was then cross‑examined.[10] 

   [10] ts 31.

2. The child witness interview began by IW being asked what she had come to talk about.  IW said that [the appellant] 'puts his fingers in [her] girly bits and his mouth, and he also one time put, um, his willy in [her] mouth too'.  When asked when these things had happened, IW said 'it happened, like, um, when [she] always [goes] to mummy's house'.  She said that these things took place 'anywhere where we are', such as on the couch and bed, 'when mummy's doing one of her jobs like making lunch or dinner'.[11]

   [11] BAB 99 - 100.

3. When asked about the last time something like this had happened, IW said 'He, um, like, um, did it, like - he first, put it in his mouth on there, and then put his finger on it'.  She gestured towards her genitals as she said this.  IW said that the appellant first 'put it in his mouth on there, and then put his finger on it and circled it around'.  She described how the appellant picked her up and lay her down on the couch, with her bottom and back touching the couch.  The appellant pulled down IW's knickers to her feet and then 'put his mouth on [her] girly bits and his finger and then he circled it around'.[12]  

   [12] BAB 99 - 101.

4. When asked what she meant by 'going in a circle', IW said, 'It means you're, like, making it really sore'.  When asked what part of her the appellant was putting his finger on, IW gestured to her genitals and said 'Here, inside it'.  The interviewer asked IW how she knew it was inside, and IW said, 'Because I always see [the appellant] do it to me'.[13] 

   [13] BAB 102 - 103.

5. When asked what the appellant did next, IW said that a 'little bit later he put me on his bed and then did the same thing to me'.  She said this happened on the same day.  She said that the appellant called her from his room, and she went to him.  He put her down on the bed.  Her back and bottom were touching the bed.  He then 'put his mouth on [her] girly bits in the inside'.  The interviewer then clarified with IW, 'you said that he's put his mouth on your girly bits'.  IW replied, 'And then he put his finger in the inside … he was … making it go in a circle, and it hurted [sic]'.  IW then said that the very next thing that happened was that the appellant made her sit down and watch movies again.[14]

   [14] BAB 103 - 105.

6. When asked whether this sort of thing ever happened anywhere other than the couch and the bed, IW said that on one occasion it happened in the toilet, specifically the toilet she shared with her brother.  She said that on this occasion the appellant 'put his mouth and his finger on [her] girly bits … in the inside again'.  She said that the appellant made her bend over and that her hands, her legs and her feet were touching the floor.  The appellant was 'bending doing - and, like, putting his mouth and finger on [her genitals] and making it go around in a circle'.  He was 'going in a circle with his tongue'.  When he put his finger in her [genitals], he was 'circling around … making it really sore'.  He then 'also puts [sic] his mouth and his finger in my bum'.  He made his tongue 'go in a circle' and 'also then he put his finger' in a circle.[15]

   [15] BAB 105 - 106.

7. IW said that the appellant had only put his penis in her mouth on one occasion and said, 'he was putting his willy in [her] mouth, like, near [her] throat' and then went on to say, 'it was really not nice.  I didn't like it.  It was really yucky'.  When asked where she was when this happened, IW said she was on the couch in the front room of her mother's house.  Her mother was cooking lunch at the time and her brother was playing.  When asked what she was doing before this happened, IW said she was on the floor when the appellant 'picked [her] up and made [her] lay down'.  He then pulled his shorts down and '[put] his willy in [her] mouth'.  When the appellant's penis was in her mouth 'he was still pushing it a bit more further [sic]', towards her throat.  She could 'feel the yuckiness and the hair on it'.  When asked where she could feel the hair, she pointed to her throat.  The interviewer asked whether the appellant said anything, and IW replied that the appellant told her to 'be quiet' when she was talking to her mother.[16] 

   [16] BAB 108 - 111.

8. When asked who was the first person was she told, IW replied 'daddy'.  She said she 'told daddy all the things that [the appellant] did to [her]'.  She said she had also told her grandmother at the same time, which was the day before the interview took place.[17]

   [17] BAB 118 - 119.

9. In cross‑examination IW maintained her account of each of the incidents.  She was unable to give the dates or times but was otherwise unshaken.  She agreed with a suggestion that she could tell her mother anything.  She disagreed with a suggestion that she had ever told her mother that her father had touched her on the genitals, stating that it was the appellant who had done that.[18]

   [18] ts 34.

10. IW agreed that she had spoken to her father about what the appellant had done to her.  Defence counsel then asked:[19]

    [19] ts 43.

    Did your dad tell you to say these things about [the appellant]?---No.  No.

    Okay.  I'm just going to ask you some questions and can you just tell me whether they're true or not?---Okay. 

    Okay.  So if I said to you [the appellant] never touched your girlie bits, would that be true or false?---Not true. 

    …

    Has [the appellant] ever touched your girlie bits? True or false?---True. 

    …

    If I said to you that [the appellant] hasn't touched you on the girlie bits, would that be true or false?---False. 

    Okay.  And is it true or false that [the appellant] has put his mouth - [the appellant] has put his mouth on your bum?---That's true. 

    That's true.  And is it true or false that [the appellant] has put his willy in your mouth?---True. 

    Okay, it's all true.  So if I said that - if I said that none of that happened, that would be false, would it?---Yes

11. In re-examination IW was asked why she did not tell her mother what had happened.  She said it was because '[the appellant] said not to'.  She said that after one of the occasions on the couch the appellant told her 'not to tell Mummy'.[20]

GW (the complainant's father)

[20] ts 44.

1. GW said that he was in a relationship with DW for about four‑and‑a‑half years until they separated on 1 October 2017.  There have been various Family Court orders in respect of custody.[21] 

   [21] ts 173 - 174.

2. In 2020, DW commenced a new relationship with the appellant.  The appellant had been a friend of DW and GW before they separated.[22]

   [22] ts 174.

3. At about 7.30 pm on Monday 16 November 2021, GW was at home with the children (IW and her brother HW).  GW's mother, SW, was also present.  The children had been staying with GW since the previous Friday.  IW was restless and having difficulty going to sleep.  In an effort to establish the usual bedtime routine GW asked IW some questions.  She said the name of the appellant and began to cry.  She used her hand and put it on her mouth and then moved the same hand down to her vagina.  IW then said, '[the appellant] used his mouth on my girly bits'.  She started crying hysterically.[23]

   [23] ts 175 - 176.

4. On hearing this, GW called out to his mother (SW), who was in the living room.  IW then told SW what the appellant had done, expressing herself in similar terms.[24]

   [24] ts 176 - 177.

5. SW contacted the police the next morning.  IW was interviewed by the child assessment team on 18 November 2021.[25]

   [25] ts 177.

6. Under cross‑examination, GW agreed that the relationship between him and DW was a difficult one.  He agreed that during their relationship there were arguments about many things relating to the children.  He was referred to incidents involving both DW and her father and accepted that those incidents had occurred.[26] 

   [26] ts 178.

7. GW agreed that DW's relationship with the appellant began not long after his relationship with DW ended.  In October 2017 there was an informal agreement between him and DW whereby GW had the children every second weekend and DW would have them for the rest of the time.  GW would also have the children on some other weekends by agreement.  GW felt as though DW had more power in relation to the custody arrangements and wanted more time with his children so he took the matter to the Family Court.[27]

   [27] ts 183.

8. GW agreed that the custody arrangements changed in November 2017 because of an allegation that the appellant had assaulted IW.  GW agreed that he contributed to bringing that allegation.  As a result of the allegation the Family Court gave him primary custody of the children.  DW was only permitted supervised visits once or twice a week.  GW did not agree that he manufactured the allegation of assault, or that he did so to gain custody of the children.[28] 

   [28] ts 183 - 184.

9. The charge of assault occasioning bodily harm against the appellant was later dropped by police.  GW agreed that in July 2018, new Family Court orders were made in relation to custody which resulted in a 'much more shared custody arrangement'.  In 2019 the orders changed again, which resulted in 'somewhat shared' custody of the children.[29]

   [29] ts 185.

1. On 27 July 2020, GW received an email from DW requesting his consent to an amendment to the parenting orders.  DW said that she wanted to move to the appellant's house and for the children to go to a new school in the same area.  GW did not agree to those changes.[30] 

   [30] ts 186.

2. GW rejected a suggestion that in around November 2020 he began coaching HW to make allegations about the appellant:[31]

   [31] ts 187 - 188.

   And I suggest to you that around November of 2020 you began coaching your son, [HW] to give a certain statement?---No.  I do not coach my children. 

   You coached [HW] to tell people that [the appellant] put his willy in [HW's] mouth?---No.  I did not. 

   And on 13 November that year, a complaint was made to the police about that allegation?---Yes, it was, by my sister and my mother. 

   And you're aware that your son spoke to police about that?---Yes.  I am. 

   He was living with you at that time?---Under direction of DCP putting them in to my - my care - - -

   Yes?---- - - of a safety plan - - -

   Yes?---- - - away from [the appellant]. 

   And you're aware that your son later gave evidence in court about that?‑‑‑Yes.  I do. 

   And are you aware that your son was asked about telling a police lady things about [the appellant]?---Yes.  I am. 

   And it was suggested to your son that the things that he said about [the appellant] were not true and your son agreed?---I'm not aware of that. 

   And it was suggested to [HW] that it wasn't the truth that [the appellant] put [HW's] willy in [the appellant's]mouth and [HW] agreed?---I'm not privy to that information, I was not told. 

   It was suggested to [HW] that he only said those things about [the appellant] because someone told him to say it and [HW] said, 'Yeah'?‑‑‑Not that I was told.  Nor did I tell him.

3. A little later it was put to GW that he had also coached IW:[32]

   I suggest to you that when you were coaching [HW] to make statements, [IW] - - -?---Which I was not. 

   [IW] was there as well?---No, I was not coaching either of them to make statements. 

   And you coached [IW] to make a statement against [the appellant]?‑‑‑No, I did not.

   [32] ts 189.

4. In re-examination the issue of coaching was raised again:[33]

   [33] ts 190.

   At any stage did you coach or do anything towards [HW] to get him to say things about [the appellant]?---No, I did not. 

   And when I say things, to suggest that [the appellant]put his mouth on his penis?---No, I did not.  I refrained from talking about the - both of them, as that was their relationship and I was spending time with my children.  At the time, I wanted to make the best of my kids. 

   All right.  Now, as far as the - what was said in court, you said you weren't aware of what [HW] said, in court at all?---No, I wasn't. 

   All right, how old was [HW] when this allegation first came out?  It's 2020, isn't it?---Yeah, he was -it was just after his fourth birthday. 

   And - so that's November 2020 and he was giving evidence in November 2021, is that correct?---Yes, that's correct. 

   Now, again, have you ever, and it was suggested that you coached [IW] to say things about [the appellant]?---I have never coached [IW] to say anything about [the appellant]. 

   You've also mentioned that [IW], what she did she touched her mouth and touched her vagina and mentioned that [the appellant] put his mouth on her girlie bits?---Yes, that's correct. 

   Did you get any other detail of any other offences?---No, that was the only thing that she told me. 

   Are you aware of what the other offences are?---No.  I am not. 

   Did you at any stage coach [IW] at all?---No.

SW (the complainant's grandmother)

1. SW gave evidence that in November 2020 her son (GW) was living with her.  At that time he had a joint custody arrangement with DW.[34]

   [34] ts 193 - 194.

2. On the evening of Monday 16 November 2020, the children were at SW's house and GW was attempting to settle them for bed.  GW called out to SW and when she went to the bedroom she saw that IW was very upset and crying.  GW told IW to tell SW what she had just told him.  IW said, 'Nanna, [the appellant]' and then she touched her mouth and her genitals.  SW said that at that stage she just told IW that it was okay and that they would get it sorted, and she cuddled her.  IW was still very upset, but she was less agitated.  SW cuddled IW until she fell asleep.[35]

   [35] ts 194.

3. The next morning, SW rang the police and organised an appointment for IW to be interviewed by the Child Assessment Team.[36]

   [36] ts 194 - 195.

4. In cross‑examination SW agreed that on 13 November 2020 she picked up HW and IW from day care.  She was driving the children when HW said, '[the appellant] put my willy in his mouth'.  IW was present in the car when this was said.  SW agreed that IW did not make any complaint to her on that day.  However, SW said IW went 'very, very quiet'.[37] 

   [37] ts 195.

5. In re-examination, SW said that IW is usually very chatty.  She said that IW did not say a word for probably half an hour after HW complained to SW.  SW said that this was very unusual for IW.[38]

Carlo Cecchele

[38] ts 196.

1. Detective Cecchele was the investigating officer.  He gave evidence relevant to the layout of the appellant's house and an interview conducted with the appellant (referred to later).[39]

   [39] ts 199 - 204.

2. In cross‑examination, Detective Cecchele agreed that the appellant had no relevant prior convictions and there were no outstanding charges against him other than the ones before him in the trial.  He agreed that he was aware that there had been a charge brought against the appellant that he sexually penetrated HW and that that charge had been discontinued.[40]

Police Interview

[40] ts 205 - 206.

1. The police interview of the appellant conducted on 26 November 2020 dealt with the allegations relating to both HW and IW.  However, those parts dealing with the allegation relating to HW were edited out by consent.  The remaining parts were relatively brief and did not deal with the allegations relating to IW in great detail.

2. The appellant denied all of the allegations and said that he would never do such things.  He said that he believed the allegations were made with 'malicious intent' to discredit him and DW, so that GW could get custody of the children.  Later, when asked whether he was saying that GW got IW to make the allegations, the appellant said, 'I'm not saying that at all … I'm saying it's a possibility'.[41] 

   [41] BAB 143, 146.

Defence trial evidence

1. The appellant elected not to give or adduce any evidence.

Closing addresses

1. The prosecutor submitted that the prosecution case depended on the jury accepting the evidence of IW as truthful and reliable.  As to the defence case the prosecutor said:[42]

   [42] ts 349 - 351.

   [T]he whole thrust of the defence is that [GW] has cajoled, forced, persuaded both [HW] and [IW] to make this up.  It's also suggested that he fabricated the offence of bodily harm which was discontinued at some stage.

   …

   [HW].  Again a very young child, and that one count has disappeared.  Again you have to think about - again this is something that's alleged.  This is that a parent has tried to persuade their child to tell a story of such seriousness to a number of people over an extended period of time, because that's what it is. 

   So on the defence version of events he's persuaded both children to make an allegation.  Firstly, they go and tell it to a grandparent.  So that's the first stage.  Then it comes to a police officer with the Child Assessment Team.  So that's another person. 

   Then, once it gets through that process, it then goes to a prosecutor.  You saw and you heard that - Tara Payne was the prosecutor who saw [IW] a day or so before and watched the initial child interview.  Then it comes to court. 

   And when you think about all the difficulties - I mean think of a place to be.  Putting a child up to do that very, very serious, very important job.  This is not some paid criminal who's coming here to lie and give an alibi for someone. 

   This is a very, very young child and she's come - on the defence account, really, she's come here to lie because dad has told her to do this, because dad is going to get a benefit, seeing her more often or something.  So you're putting a child up to do this very, very difficult job.

   …

   So threats?  I mean, it's very difficult to know what you'd have to do to a very young child to persuade her to carry on, to say all these things.  I'd suggest there's nothing you can do to say - or to make, persuade a child to continue with a story that they know is a lie.  Children inherently, I suggest, want to tell the truth.

2. Later in his address the prosecutor returned to the defence contention that both children had been coached to make allegations:[43]

   But of course, that is the thrust of [it]isn't it? It's all a stitch-up.  He's being stitched up by [IW] because [GW]wants her to do this job. 

   It failed with [HW].  Again a very young child being cross‑examined, even younger than [IW] was.  And he did change the story.  Yes, I accept that.  No problem with that.  But again very young.  Look at the child.  And you didn't even see him but obviously a very, very young child. 

   And you heard [GW] say the age.  I think he said he wasn't even three at the time.  Again think of any child yourself who's not even three, whether they could stand up to it.  (emphasis added)

   [43] ts 352 - 353.

3. Defence counsel in his closing address submitted that GW had seen the effect the assault allegation had had on custody arrangements and that provided an incentive to him to coach both HW and IW to make the allegations of sexual offending against the appellant.[44]

   [44] ts 356 - 357. 

Evidence on the appeal

1. The appellant filed three applications for leave to adduce additional evidence on the appeal.  The first application sought leave to adduce an affidavit of the appellant affirmed on 22 June 2022.  The second application sought leave to adduce an affidavit of DW sworn on 23 June 2022.  The third application sought leave to adduce the transcript of the pre‑recorded evidence of HW (including the transcript of the child witness interview).

2. The respondent filed two applications for leave to adduce additional evidence on the appeal.  The first application sought leave to adduce an affidavit of Aidan Kraus.  Mr Kraus was the appellant's counsel at the trial.  The second application sought leave to adduce the affidavit of Clint Hampson.  Dr Hampson was the appellant's counsel at the pre‑recordings of HW and IW.

3. The appellant, DW, Mr Kraus and Dr Hampson were all called at the appeal hearing and cross‑examined.

4. The parties adduced detailed evidence directed to identifying the forensic decisions made on behalf of the defence and the reasons for them.  As explained later in these reasons, the enquiry whether the conduct of the defence case gave rise to a miscarriage of justice is objective.  The question is whether what occurred is capable of explanation as a rational forensic decision, not whether the decision actually made and reasons for it were rationally based.  Nevertheless, for completeness we outline the evidence below.

5. It is convenient to deal with the evidence of HW first.  The fact that the appellant sought to adduce the transcript of HW's evidence was based on an assumption that the pre‑recorded evidence of HW would have been admissible at the trial.  For reasons that will be dealt with later, that assumption was erroneous.  However, for present purposes, we will summarise that evidence as it is necessary to do so in order to understand some of the contentions raised by the appellant. 

HW

1. HW's evidence was pre‑recorded on 25 November 2021.  His evidence‑in‑chief consisted of the recording of his child witness interview of 18 November 2021.  At the pre‑recording he was cross‑examined. 

2. At the time of the child witness interview, HW was aged 4.[45] 

   [45] Affidavit of Andrew Wun Nam Au sworn 4 August 2022, page 32.

3. The interviewer asked HW whether he had told his aunty about something that happened with the appellant at his mum's house.  HW nodded and then said, 'um, put my privates in he [sic] mouth'.  The interviewer clarified, 'put your privates in his mouth?' and HW replied, 'yeah'.  HW said that happened two times.[46]

   [46] Affidavit of Andrew Wun Nam Au sworn 4 August 2022, page 34.

4. HW said that the incident happened when he and the appellant were at home.  HW was in his room, lying on his bed, when it happened and was wearing pyjama shorts.  He said that the appellant pulled HW's pyjama shorts down before putting HW's 'privates' in his mouth.[47]   

   [47] Affidavit of Andrew Wun Nam Au sworn 4 August 2022, pages 34 - 37.

5. When asked what was the very next thing that happened, HW said he and the appellant went outside.  Once outside, HW played with his truck and then went to the toy room.[48] 

   [48] Affidavit of Andrew Wun Nam Au sworn 4 August 2022, page 37.

6. HW was asked whether this happened one time, or more than one time.  He replied 'lots'.  He was asked whether it happened when he was somewhere different and replied, 'Yeah', but then said, 'Um, in my room'.[49]

   [49] Affidavit of Andrew Wun Nam Au sworn 4 August 2022, page 38.

7. HW was asked whether the appellant said anything when he put HW's privates in his mouth.  He said that the appellant said 'bad words' but could not provide any further details.[50]  

   [50] Affidavit of Andrew Wun Nam Au sworn 4 August 2022, page 41.

8. HW said he told his aunty and nanna what happened.  He said he did not tell anyone else before he told his aunty and nanna.[51] 

   [51] Affidavit of Andrew Wun Nam Au sworn 4 August 2022, page 43.

9. At the pre-recording HW agreed that he had watched the recording of his child witness interview and that everything said by him in it was the truth.[52] 

   [52] ts 17.

10. In cross‑examination HW agreed that he got on well with his dad and that his dad was a good dad.  When asked whether his dad ever talked about the appellant, HW said, 'no'.[53]

    [53] ts 20.

11. Defence counsel asked HW about the things he had told the interviewer:[54]

    [54] ts 20 - 21.

    Now, those things that you told about [the appellant] - - -?---[the appellant], yeah?

    - - - that wasn't true, was it?---No. 

    No.  So - and I just want to - - -

    WALLACE DCJ:  Maybe just be a little bit more specific, please, Mr Hampson. 

    THE WITNESS:  Yes.  Yes.

    HAMPSON, DR: You told that lady in the video - - -?---Yes. 

    - - - that [the appellant] - - -?---Yeah.

    Hold on, [HW], for a second?---Yeah?

    You told that lady in the - in - in the video that [the appellant] - - -?‑‑‑Yeah. 

    - - -[the appellant] put his willy in your mouth.  Do you remember telling her that?---Mm hmm. 

    PAYNE, MS:  I object.  That's not his evidence. 

    THE WITNESS:  Yes. 

    HAMPSON, DR:  (Indistinct).

    Sorry, [HW].  Sorry, you told that lady, [HW] - - -?---Yeah?

    - - - that you put your willy - - -?---Yeah.

    - - - in [the appellant's] mouth.  Do you remember telling her that?‑‑‑Yeah.

    Yes, but that's not the truth, was it?---No.

    No.  That didn't happen, did it?---Mm mm.

    No.  But did you just tell that lady that that happened because - - -?‑‑‑Mm hmm.

    - - - someone else told you to say that?---Yeah.

    Yes.  And who told you to say that? Was it your dad?---Yeah.

12. When asked in re-examination what his dad told him, HW replied, 'he loves me'.  He said his dad did not tell him anything about the appellant but agreed that he had spoken with his dad about the appellant.  He said he did not know what his dad had spoken to him about.[55] 

    [55] ts 22.

13. HW was then asked about what he had said in the child witness interview:[56]

    [56] ts 22.

    Do you remember when the lady was asking you about your private parts?---Yeah. 

    Sorry?---Yes. 

    Okay.  And she asked you about something that - if [the appellant] did something to your private parts?---Yeah. 

    And you - you told her about something that [the appellant] did to your private parts?---Yeah. 

    Did that really happen?---No. 

    When you spoke to the lady in the interview - - -?---Yeah. 

    - - - were you trying to tell her everything that you could remember that happened with [the appellant]?---Yes. 

    Okay.  And were you telling her the truth?---Yeah.

The appellant

1. In his affidavit the appellant states that he first met Mr Kraus on 8 March 2022.  He says that at that meeting he asked Mr Kraus about the pre‑recorded evidence because he 'thought it was important for the jury to see [HW's] evidence about being coached by [GW]'.  He says that Mr Kraus told him that HW's evidence was not admissible.[57]

   [57] Affidavit of Andrew Wun Nam Au sworn 22 June 2022, page 2.

2. The appellant refers to a letter dated 24 November 2021 from the DPP to Dr Hampson regarding the evidence of IW.  The letter provides additional information arising from a pre-trial conference with IW.[58]  Relevantly, the letter states:[59]

   [IW] said she knows it's the truth [as to what [the appellant] did to her] because he did the same thing to her brother.  When asked what she meant by this, she said that her brother, [HW], had told her what [the appellant] did to him.  She said that this occurred at her Nanna's house when her Daddy and Nanna were present.  She cannot recall what day this was.

   [58] Affidavit of Andrew Wun Nam Au sworn 22 June 2022, pages 3 - 4.

   [59] Affidavit of Clint James Hampson sworn 17 June 2022, page 27.

3. The appellant states that he was not shown the letter at the time, was unaware of the contents and thus gave no instructions regarding it.  He says that had he known of the letter he would have instructed Dr Hampson to put the matters raised in it to IW in cross‑examination.[60]

   [60] Affidavit of Andrew Wun Nam Au sworn 22 June 2022, page 3.

4. In cross‑examination the appellant accepted that he had discussed a trial strategy with Mr Kraus.  One aspect of that strategy was to call DW as a witness to raise an allegation made in 2017 that GW had touched IW.  The difficulty was that the police had not believed that allegation.  The appellant knew that if DW was called as a witness she could be cross‑examined and that in all likelihood it would be put to her that she made up the 2017 allegation.  He accepted that Mr Kraus advised him not to call DW as a witness because of this risk.  He agreed that he had been worried that DW would struggle with being a witness.[61]

   [61] Appeal ts 23 - 24.

5. The appellant accepted that Dr Hampson's affidavit is an accurate record of their dealings.  He also largely accepted that Mr Kraus's affidavit was an accurate record of their dealings, though he believed that several of the strategies discussed were not pursued to the 'full extent'.[62]  

DW

[62] Appeal ts 24.

1. In her affidavit DW gives an account of her relationship with GW.  She alleges that GW was violent and abusive, to both her and other family members.  She refers to the allegation that the appellant assaulted IW in 2017.  She refers to an occasion when IW told her that she had been touched by GW.  This was reported to police, but no charges eventuated.  She refers to a long history of contested custody disputes.  She says that she saw part of IW's recorded evidence and believes she was not 'acting like her normal self'.[63]

   [63] Affidavit of [DW] sworn 23 June 2022, pages 2 - 4.

2. DW states that she spoke to Mr Kraus prior to the trial and gave him the same background information as is contained in her affidavit.  After GW gave evidence at the trial, Mr Kraus told DW that she would not be required as a witness as GW had agreed to the questions put to him about the Family Court proceedings.[64]

   [64] Affidavit of [DW] sworn 23 June 2022, page 4.

3. In cross‑examination it was put to DW that Mr Kraus had only said that she might be called as a witness.  DW disagreed and said that Mr Kraus had told her that she would be called as a witness.  She accepted that her assessment of IW's evidence was based on only seeing a part of that evidence.[65]  

Clint Hampson

[65] Appeal ts 27. 

1. In his affidavit Dr Hampson states that he acted for the appellant on a grant of legal aid that was assigned on 30 November 2020.  He met with the appellant and took a proof of evidence from him.  Amongst other things, the appellant instructed Dr Hampson that he believed that IW and HW may have been coached by their father to make up the allegations.[66] 

   [66] Affidavit of Clint James Hampson sworn 17 June 2022, pages 2 - 3.

1. Dr Hampson represented the appellant at the pre‑recordings of the evidence of IW and HW on 25 November 2021.  He states that he cross‑examined IW and HW in accordance with the appellant's instructions.  In particular, he put to both witnesses that they had been told by GW to make the allegations.  He states that, given HW's concessions in cross‑examination, he made a forensic decision not to ask further questions, including whether HW had spoken to IW about the allegations.[67]

   [67] Affidavit of Clint James Hampson sworn 17 June 2022, page 4.

2. Dr Hampson states that he received the letter from the DPP dated 24 November 2021 by email on the same day (that is, the day prior to the pre‑recordings).  As regards the appellant's criticism that he did not cross‑examine IW on the matters raised in the letter, Dr Hampson says that the objective factors that he was aware of at the relevant time included:[68]

   1.That his instructions were that IW had been coached by her father.  Those instructions included a motive for why the father might do this.  The instructions did not include any material to suggest that IW made a complaint as a consequence of speaking to HW.

   2.That IW's demeanour in court was that of a compelling witness.  She gave a detailed account of each allegation.  Her account was independent and completely different from the alleged offending against HW.  IW confirmed that HW did not witness the abuse.  Her evidence at the pre-recording was largely consistent with the evidence she gave in her child witness interview.

   3.That he was not aware of any information that might suggest that HW had witnessed the abuse of IW or spoken of it to IW or anyone else. 

   [68] Affidavit of Clint James Hampson sworn 17 June 2022, pages 4 - 5.

3. As regards DW, Dr Hampson received a letter from her on or about 17 November 2021, which provided a useful chronology, though much of it focussed on the character of GW.  The letter did not expressly refer to any allegations of sexual abuse of IW by GW, but the appellant had previously referred to that allegation and it was mentioned in the proof of evidence.  Dr Hampson put that allegation to IW in cross‑examination, and it was rejected by her.[69]

   [69] Affidavit of Clint James Hampson sworn 17 June 2022, page 6.

4. Dr Hampson did not represent the appellant at the trial as he was unavailable.[70]

   [70] Affidavit of Clint James Hampson sworn 17 June 2022, page 7.

5. In cross‑examination Dr Hampson accepted that if he had spoken to the appellant about the letter from the DPP it is likely that he would have made a file note about such a discussion.  There is no note of that kind on the file.  He agreed that there is a chance that he did not speak to the appellant about the letter.[71]

Aidan Kraus

[71] Appeal ts 30.

1. Mr Kraus commenced acting for the appellant on 1 February 2022, when he was briefed to act as trial counsel.  He first met the appellant and DW on 8 March 2022.  When he realised who DW was and that she could be a potential witness, he asked her to leave the room while he spoke to the appellant.  Mr Kraus spoke with the appellant about his proof of evidence and the appellant agreed that the trial should proceed on the basis that he completely denied the alleged offending.[72]

   [72] Affidavit of Aidan Ferdinand Kraus sworn 19 May 2022, pages 1 - 2.

2. Mr Kraus discussed a case theory with the appellant.  It was to the effect that GW had coached the children to concoct the allegations as a way of securing custody of them.  Possible strategies and potential witnesses were discussed.  The appellant confirmed that he had a preference not to give evidence himself but understood that the decision was his and that he did not need to make a final decision until the prosecution case had closed.[73]    

   [73] Affidavit of Aidan Ferdinand Kraus sworn 19 May 2022, page 2.

3. Mr Kraus spoke to DW separately and made notes of what she told him regarding the history of the Family Court proceedings.  He did not tell DW that he would call her as a witness but asked that she be available in the event that he chose to do so.  He told her that she would have to wait outside the courtroom until either she was called as a witness, or it was decided that she was not needed.[74]

   [74] Affidavit of Aidan Ferdinand Kraus sworn 19 May 2022, page 2.

4. On 11 March 2022 Mr Kraus had a telephone conversation with the appellant and later the same day sent an email summarising what was said.  In regard to whether DW was to be called as a witness, the email states:[75]

   In my opinion we may well call [DW] to give evidence - but only if certain evidence is not adduced through [GW].  I suspect most of the evidence we would need from [DW] can be garnered from [GW] in cross‑examination anyway.  I don't think he will have much cause to dispute the existence of various Family Court orders over the years, for instance, although he may quibble about the reasons and justifications for those orders.

   [75] Affidavit of Aidan Ferdinand Kraus sworn 19 May 2022, pages 2 - 3, 24.

5. In the email of 11 March 2022 Mr Kraus also set out a case theory:[76]

   The case theory as I see it is this: [GW] has motivation to coax his children into making false allegations.  There have been numerous Family Court struggles over the years between he and [DW], including an accusation that he abused his daughter.  He was, unjustifiably or not, angry and vindictive at [DW].  When [DW] notified him that she wanted to move address and ultimately take the children to a different school he was angry again and wanted to maintain control of the children to spite [DW].  It was only after [DW] notifying him of he [sic] proposed move that the complaints of abuse surfaced.

   I will also draw attention to the lack of complaint from [IW] when she was in the car with [HW] and [SW].  When [HW] apparently made his complaint to [SW], [IW] was present, responsive to [SW]'s questions, and would have heard it.

   [76] Affidavit of Aidan Ferdinand Kraus sworn 19 May 2022, page 24.

6. On 14 March 2022, Mr Kraus had another telephone conversation with the appellant, followed by an email.  The email concerned a directions hearing that was to take place that afternoon.  There were two issues to be dealt with at that hearing: whether the appellant's police interview would be adduced and whether the defence should be permitted to cross‑examine GW and SW on matters concerning the complaint made by HW.[77]  As to the second issue, the email states:[78]

   I will also argue that I should be permitted to cross examine [GW] and [SW] on two things: one, that [HW] apparently made a complaint to [SW] on 13 November 2020, but later contradicted his complaint in evidence.  Secondly, [IW] was present when [HW] apparently made his complaint on 13 November but did not make any complaint herself.  It was not until two days later that [GW] claims she made her complaint.  I will argue that this is relevant to our case theory that [GW] has put both of his children up to making false allegations because of the extended Family Court disputes between he and [DW].

   [77] Affidavit of Aidan Ferdinand Kraus sworn 19 May 2022, page 5.

   [78] Affidavit of Aidan Ferdinand Kraus sworn 19 May 2022, page 26.

7. In the email of 14 March 2022 Mr Kraus goes on to refer to the potential negative consequences of this strategy, including that it would bring the appellant's character into issue, which could result in the allegation being raised by the prosecution that the appellant had previously assaulted IW.  There was also a danger in cross‑examining GW on matters that had not been put to IW at the pre-recording.  Mr Kraus noted that this might result in an adverse direction by the trial judge to the jury.[79]

   [79] Affidavit of Aidan Ferdinand Kraus sworn 19 May 2022, page 26.

8. Mr Kraus states in his affidavit that he initially entertained the idea of 'in some way' adducing HW's apparent evidence that he had disavowed his previous allegation and had agreed to the suggestion that GW had asked him to make the allegation.  He sought advice from colleagues and ultimately concluded that the evidence was inadmissible as it was collateral.  He was also of the view that there was a real risk that, even if he was mistaken and HW's pre‑recorded evidence was adduced at the trial, the State may recall HW and ask him to explain his previous answers and this might lead to HW reiterating his original allegation.  Mr Kraus states that, having watched the pre-recording, he was of the view that HW's answers regarding the allegation of concoction were not reliable.  In this regard he notes that HW was very young and answered the relevant questions before they were fully articulated.[80]

   [80] Affidavit of Aidan Ferdinand Kraus sworn 19 May 2022, pages 3 - 4.

9. Mr Kraus states that he told the appellant that he considered HW's evidence to be inadmissible and 'dangerous besides'.  The appellant, however, was adamant that HW's evidence 'be included'.  Mr Kraus considered that the only way he could adduce any evidence on this issue was to obtain a concession from the State that the appellant had been originally charged with a sexual offence against HW but that that charge had been discontinued after HW gave evidence.  He could also put the discontinuation of the charge to GW in cross‑examination and suggest that GW had a motive to lie and to have HW lie.[81]

   [81] Affidavit of Aidan Ferdinand Kraus sworn 19 May 2022, page 4.

10. Mr Kraus says that he made the decision to follow the course described in the last paragraph.  In pursuance of this he cross‑examined the investigating officer as to the discontinuance of the charge relating to HW and cross‑examined GW as to his awareness of HW's evidence.  In following this course he accepts that he disregarded the appellant's desire to call HW as a witness or to play his pre‑recorded evidence.[82]

    [82] Affidavit of Aidan Ferdinand Kraus sworn 19 May 2022, page 4.

11. As regards DW, Mr Kraus states that after meeting her he formed a view that as a witness she may well attempt to avoid answering difficult questions.  Some of the information that she gave to him contradicted information provided by the appellant.  Mr Kraus was concerned that she would not perform well under cross‑examination and would not create a favourable impression with the jury.  He spoke to the appellant about his concerns.  He told the appellant that information about the history of the relationship between DW and GW could likely be obtained through cross‑examination of GW.  The appellant also expressed concerns about calling DW, saying that he thought she might become angry or emotional in cross‑examination.  Mr Kraus and the appellant agreed that this would be negative to the defence case.[83]

    [83] Affidavit of Aidan Ferdinand Kraus sworn 19 May 2022, pages 4 - 5.

12. Mr Kraus states that he and the appellant discussed a 'warts and all' strategy that involved bringing out all of the prior allegations, including the allegation of assault of IW by the appellant, the allegation of sexual abuse of IW by GW and the allegation of sexual abuse of HW by the appellant.  As to the latter, Mr Kraus had a concern that this could lead to HW being recalled as a witness and that the jury might believe the original allegation.  This was in a context where the State did not intend to raise the allegation regarding HW due to the likely prejudice to the appellant.  On the other hand, the allegation fitted into the case theory that GW had a motive to coach the children to bring false allegations.  Despite the risks, the appellant was adamant that the allegation involving HW should be brought to the attention of the jury.[84]

    [84] Affidavit of Aidan Ferdinand Kraus sworn 19 May 2022, pages 5 - 6.

13. As to bringing out the allegation that GW had sexually abused IW, this would necessitate DW giving evidence, as it was to her that a complaint had allegedly been made.  Mr Kraus considered that this course would be 'disastrous' as police records indicated that DW lied about this allegation.  There was, therefore, a risk that if DW gave evidence as to this issue she would be cross‑examined to the effect that she had concocted an allegation against DW.  The appellant said that he did not want to pursue this aspect of the strategy but did wish to pursue the other two aspects.[85] 

    [85] Affidavit of Aidan Ferdinand Kraus sworn 19 May 2022, page 6.

14. As a result of these discussions Mr Kraus prepared written instructions regarding the trial strategy, which the appellant signed on 15 March 2022, confirming that he wished to pursue the aspects referred to.  These instructions relevantly state:[86]

    I have been given legal advice about the strategy of the defence case.  One proposed strategy is to admit evidence of [HW]'s complaint against me, as well as the fact that the charge was discontinued when [HW] contradicted his own evidence and agreed that [GW] had urged his to say things about me.

    I understand the downside to this strategy is that the jury will hear that I had another charge against me.  A further downside is that the State may well recall [HW] as a witness, in which case [HW] might go back to his original evidence.

    I understand that the benefit to my case is that the jury will hear that the State discontinued a charge against me and that [HW] gave evidence that [GW] urged his to lie.  A further benefit is I can establish evidence of the timing of [HW]'s complaint when [IW] was present, and [IW]'s later complaint.

    Further, even if [HW] were recalled the point could still be made that his evidence was inconsistent and that he has been in the corrupting influence of [GW] since the case began.

    [86] Affidavit of Aidan Ferdinand Kraus sworn 19 May 2022, pages 28 - 29.

15. In cross‑examination Mr Kraus accepted that the appellant had a strongly expressed desire that HW be called as a witness.  Mr Kraus had raised that possibility with the prosecutor, who had said that he did not think it was a good idea.  The prosecutor considered that the evidence was inadmissible and potentially prejudicial, and Mr Kraus agreed with that assessment.[87]     

    [87] Appeal ts 33.

16. It was put to Mr Kraus that the written instructions did not refer to the third aspect of the strategy.  He agreed and said that that was because that aspect had been ruled out.  He recalled the appellant saying that he was comfortable with that decision.[88] 

    [88] Appeal ts 35.

Grounds of appeal

1. There are three grounds of appeal:[89]

   [89] WAB 6.

   1.There was a miscarriage of justice arising from a failure by defence counsel to adduce the pre‑recorded evidence of [HW], given [HW's] admission that his complaint was untrue and that his father had told him to make his complaint which was the original count 1.  Further, or alternatively, there was a miscarriage of justice in the prosecutor closing on the evidence of [HW] without adducing it.

   2.There was a miscarriage of justice arising from a failure by defence counsel to cross‑examine [IW] on her disclosure to the prosecutor [in a pre‑trial conference two days before the pre‑recording of her evidence] that she knew her complaint was the truth because [HW] told her what the appellant did to him, in the presence of their father and their father's mother.

   3.There was a miscarriage of justice arising from the failure by the prosecution or the defence to call [DW] as a witness.

   Particulars

   (a)She alleged [GW] had sexually abused [IW].

   (b)That allegation was before [IW and HW] complained against the appellant.

   (c)That allegation was a potential motive for [GW] to coach [IW].

Ground 1 - preliminary issue - viewing the pre-recording

1. The appellant submitted that for the purposes of ground 1 this court should only have regard to the transcripts of the child witness interview and the pre-recording of the evidence of HW.  It was not appropriate, according to the appellant, for this court to view the recordings to form any view as to the cogency of the evidence of HW.  The suggested rationale for this position was that the transcript was clear, that the evidence should be viewed in its most favourable light from the perspective of the appellant and that it was not necessary for this court to form any view as to the cogency of the evidence.[90] 

   [90] Appeal ts 50 - 53.

2. The appellant relied on a statement made by the High Court in Pellv Queen[91] to the effect that, in an appeal against conviction where the ground is that the verdict is unreasonable or unsupported by the evidence, the appeal court should not impinge upon the province of the jury by viewing any recording of evidence.[92]

   [91] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123.

   [92] Pell v The Queen [36] - [39] cited in affidavit of Andrew Wun Nam Au affirmed 4 August 2022, pages 2 ‑ 3.

3. The appellant's position is untenable.  This is not a case where the jury saw the evidence in question and made its own assessment of it.  In this case the whole point of the appeal is that the jury did not see the evidence of HW.  No question of impinging on the role of the jury arises. 

4. In this case one of the essential issues is whether defence counsel, in not adducing evidence from HW, caused a miscarriage of justice.  Any assessment of that forensic decision requires this court to consider the material that was available to counsel at the relevant time.  An objective assessment of the decision not to adduce evidence from HW (either by tendering the pre-recording or calling him to give evidence at the trial) requires this court to view the pre-recording.

5. The pre‑recorded evidence of HW was provided to the court on the hearing of the appeal so that it could be viewed in the event that the appellants submissions in this regard were not accepted.  Having viewed the pre-recording (and, in particular, the cross‑examination) we make the following observations:

   1.HW was 4 years and 2 weeks old at the time of the child witness interview and just under 5 years and 1 month old at the time of the pre‑recording.

   2.As might be expected of child of that age, his pronunciation is not always clear and he expresses himself in ungrammatical terms.

   3.At times during the pre-recording his concentration wanders and he does not always appear to understand the questions.

   4.At the pre-recording he says that he cannot remember the specific incident but does say that everything said in the child witness interview was the truth.

   5.He answers 'yes' to many questions, often before the questioner has finished asking a question.  This gives the impression that he is being agreeable to the questioner, but not necessarily accepting the proposition that is being put to him.

   6.The answers in cross‑examination upon which the appellant relies have a number of ambiguous features.  In particular:

   (a)When it is put to him that what he told the interviewer about the appellant was not true, he answers 'no' and then, seconds later, without another question being asked, 'yes, yes'.

   (b)Counsel puts to HW that he told the interviewer that the appellant put his willy in HW's mouth.  Counsel then corrects this to HW put his willy in the appellant's mouth.  In fact, neither of these formulations is correct.  What HW told the interviewer was that the appellant put HW's willy into the appellant's mouth.  The question of who did the 'putting' might well have been significant to a 5‑year‑old child.  When HW agreed that the second formulation was untrue the error contained in the question may have been significant. 

   (c)When asked whether someone had told him to 'say that', HW nods and says 'Mm hmm' halfway through the question.  He does not refer to his father but agrees when the suggestion is put to him.  This has the appearance of being gratuitous concurrence.

   (d)In re-examination when asked what his dad had told him, HW says that his father had told him that he loves him.  Asked if his dad had told him anything about the appellant, HW says 'no'.  He then agrees that he had spoken to his father about the appellant but when asked about what says 'I don't know'.

   (e)In re-examination HW gives an unambiguous 'no' answer when asked whether what he alleged really happened, but immediately after that answer he says that everything he had told the interviewer was the truth.

   7.There are no details regarding any alleged coaching.  Having obtained an apparent admission in this regard the cross‑examiner, understandably, stops.  This means there is no information about when any such coaching occurred, what was said or how the child's compliance was obtained.  This is significant given the very different nature and number of  allegations made by IW. 

Ground 1 - the appellant's submissions

1. The appellant submits that the pre‑recorded evidence of HW was admissible as evidence capable of supporting the defence case that GW had coached IW to make a false allegation.  That is, that evidence made it more probable that GW had coached IW to make similar allegations.  This, it is said, was relevant to the assessment of the evidence of IW and was the 'sole way that the appellant could impeach that evidence'.  For these reasons the appellant contends that, considered objectively, no competent counsel would have failed to adduce the pre‑recorded evidence of HW and the failure to do so was a miscarriage of justice.[93]

   [93] Appeal ts 41.

2. At the appeal hearing counsel for the appellant was asked to explain the basis for suggesting that the pre‑recorded evidence of HW was admissible at the trial, given that at the trial there was no allegation of offending against HW.  The concern was that the provisions of the Evidence Act 1906 (WA) pursuant to which the recording had been made did not appear to allow for such a situation. Counsel responded by saying that, if the pre-recording was not admissible, then the obligation of defence counsel was to request an adjournment and make an application for HW to be declared a special witness. The implication was that the evidence of HW would then be called as a witness to give evidence again, either in person or by way of a fresh pre-recording.[94]

   [94] Appeal ts 40 - 41.

3. The appellant submitted that the relevance of the evidence was not confined to the credibility of GW (that is, to rebut his denial that he had coached HW).  Rather, the appellant says that the evidence establishes bias or a motive to provide false evidence and, therefore, falls within the bias exception to the collateral evidence rule.  The appellant submits that evidence that GW had coached HW is evidence of bias on the part of a witness regarding the matters in issue at the trial.  Counsel said that this only applied to 'a witness whose evidence shines sufficient candlepower' upon the crucial issues in the case.[95]  Counsel accepted that there was no evidence that IW had been coached, but said that the evidence of HW was relevant in this way:[96]

   The jury, upon adequate instruction, would not find it unreasonable that a person, the father ,who had coached [HW] would not have coached [IW] as well … if the jury had been told the [HW] had been coached, then it would not be unreasonable for the jury to say he could have coached [IW] too … That lays a foundation for the jury to find a reasonable doubt about whether [IW]'s evidence was true and accurate or, instead, whether it had been coached. 

   [95] Appeal ts 43 - 44.

   [96] Appeal ts 44 - 45.

4. Although counsel initially denied that this involved a form of propensity reasoning, he ultimately conceded that it did.[97]  In response to a possible objection that evidence that GW coached HW has insufficient bearing on IW's credibility, the appellant particularly relied on a case from the United States of America, United States v Haggett.[98]  It was suggested that that case provided a basis for HW's evidence to be admissible and is persuasive because 'every court in this nation as well, would think twice about a witness who had coached one witness already, could easily have coached the other witness'.[99]

   [97] Appeal ts 47 - 48.

   [98] US v Haggett, 438 F2d 396 (1971).

   [99] Appeal ts 45 - 47.

1. The appellant accepts that there was a danger in calling HW that he would confirm the original allegation and deny that he was coached, however there was said to be far greater danger that the jury would believe that GW had told the truth.  It was submitted that when it became clear that GW denied coaching HW the only rational decision was to adduce evidence from HW.  The appellant did not accept that, objectively, it was a legitimate forensic decision for trial counsel to not wish to reopen a separate allegation of abuse because of the danger of prejudice to the appellant.  The appellant accepted that calling HW might, effectively, backfire, but said that there was no other choice because otherwise conviction was inevitable.[100]

   [100] Appeal ts 55 - 58.

2. As to the second limb of ground 1, the appellant submits that it was unfair for the prosecutor to tell the jury in closing that they could discount the fact that HW had retracted his allegation in circumstances where the jury had not had the benefit of seeing HW give evidence.  The appellant suggests it was necessary to ensure a fair trial that HW's pre‑recorded evidence be played (or he be called as a witness) and when it became apparent that the defence was not going to do so, it was incumbent on the prosecution to adduce that evidence.[101]  

   [101] Amended appellant's case [41] - [43].

Ground 1 - the respondent's submissions

1. The respondent submits that the pre‑recorded evidence of HW regarding the possibility of coaching was of minimal cogency.  The concessions apparently made by HW could be discounted by the jury as concessions easily obtained from a young child by an experienced advocate in the course of a skilful, albeit gentle, cross‑examination.  There was no other evidence of coaching and the concessions form a very insubstantial foundation for the appellant's submission that HW had been coached by his father.  Furthermore, none of HW's evidence related to the offending against IW.  There was no evidence at all that IW was coached.[102]

   [102] Respondent's answer [17].

2. The respondent submits that the assessment of trial counsel, Mr Kraus, that the evidence of HW was likely to be inadmissible as collateral evidence was correct.  Furthermore, counsel's view was that even if admissible the evidence was dangerous.[103] 

   [103] Respondent's answer [20].

3. The respondent says that there were rational forensic reasons for not adducing the evidence of HW:[104]

   1.The evidence before the jury was that the appellant had been charged in respect of HW but that the charge had been discontinued after HW gave evidence.

   2.Counsel had put to GW in cross‑examination that HW had accepted that the allegation regarding him was untrue and that he had been told by his father to say it.  Whilst GW did not accept those propositions, no evidence to the contrary was led by the prosecution.

   3.The cogency and reliability of the pre‑recorded evidence of HW was dubious.  There was a risk that if that evidence was tendered it might result in the jury concluding that the appellant had offended against HW and that the apparent concessions were not reliable.  This could result in prejudice to the appellant that could not be guarded against by a direction.

   4.If HW was called to give evidence at the trial there was a real risk that in cross‑examination by the prosecutor HW might resile from any suggestion of coaching and affirm the truth of his original allegation.

   [104] Respondent's answer [21].

4. The respondent submits that the only possible relevance of HW's evidence would have been to contradict GW's evidence that he had not coached HW.  Whether or not HW had been coached was not an issue that had any direct relevance to whether IW's evidence was truthful.  It was a matter going only to the credibility of GW on a collateral issue and was therefore inadmissible.  GW's evidence that he had not coached HW was final and not open to be contradicted by further evidence.[105] 

   [105] Respondent's answer [29].

5. The respondent submits that the position might well have been different if the appellant sought to adduce evidence that IW was coached.  Such evidence could well have been admissible because it would go to the motivation of the critical witness in the trial: See R v Phillips,[106] R v LSS[107] and R v BBQ.[108]  In each of those cases the evidence in question was to the effect that a complainant had been coached.  In contrast, the evidence of HW was not evidence that IW had been coached.[109]

   [106] R v Phillips (1936) 26 Cr App R 17.

   [107] R v LSS [1998] QCA 303; [2000] 1 Qd R 546.

   [108] R v BBQ [2009] QCA 166; (2009) 196 A Crim R 173.

   [109] Respondent's answer [26] - [28]; WAB 37 - 39.

6. The respondent submits that the US case of Haggettis inconsistent with the established authority of Attorney-General v Hitchcock[110] and represents a 'remarkable extension' of the corruption exception.  Furthermore, what was said in Haggett has not found support in any Australian or English appellate authority.[111]

   [110] Attorney-General v Hitchcock (1847) 1 Exch 91; (1847) 154 ER 38.

   [111] Respondent's answer [31] - [32].

7. The respondent submits that the suggestion that if GW coached HW, then he also coached IW, is pure speculation.  The denials of coaching by GW and IW did not render the evidence of HW admissible and, in any event, there were rational forensic reasons for not seeking to adduce that evidence.[112]

   [112] Respondent's answer [32] - [33].

Ground 1 - relevant law - admissibility of the pre-recording

1. There is a threshold question regarding the admissibility of the pre‑recorded evidence of HW at the trial. That evidence was pre‑recorded pursuant to orders made by a District Court judge on 17 September 2021. The orders included an order that the evidence of HW be taken at a special hearing and recorded on a visual recording, made pursuant to s 106I(1)(b)(i) of the Evidence Act. There was also an order that the recording of the child witness interview be presented as part of the evidence in chief at the special hearing, made pursuant to ss 106HB and 106K(4) of the Evidence Act.

2. Section 106I(1)(b) provides that, where a Schedule 7 proceeding has been commenced in a court, the prosecutor may apply to a judge of that court for an order directing that the whole of the 'affected child's' evidence be taken at a special hearing and recorded on a visual recording. A Schedule 7 proceeding includes a proceeding in which a person stands charged with an offence under ch XXXI of the Criminal Code. That chapter relates to sexual offences and includes the offences charged in this case.

3. The term 'affected child' is defined in s 106A to mean, relevantly for present purposes, the child upon or in respect of whom it is alleged that an offence was committed, attempted or proposed.

4. Section 106T(1) provides that the evidence of an affected child recorded on a visual recording under s 106K or s 106N in relation to a Schedule 7 proceeding is admissible in any hearing in relation to that proceeding to the same extent as if it was given orally in the hearing in accordance with the usual rules and practices of the court concerned. For the purposes of that section 'hearing' is defined to include the trial of the proceeding.

5. The admissibility of pre‑recorded evidence under s 106T(1) depends on the evidence being that of an affected child in respect of the proceeding in which its admission is sought. In the present case the issue is whether HW was an affected child in respect of the trial. HW was an affected child at the time his evidence was recorded because at that time he was a child in respect of whom it was alleged that an offence was committed. However, by the time of the trial the charge relating to HW had been discontinued and there was no allegation of any offence in respect of him. Thus the pre‑recorded evidence of HW was not admissible under s 106T(1) of the Evidence Act.

Ground 1 - relevant law - collateral evidence

1. The collateral evidence rule provides that answers given by a witness to questions put to him or her in cross‑examination concerning collateral facts are final.  Those answers cannot be contradicted or rebutted by other evidence.  Collateral facts are facts that do not relate directly to the matters in dispute between the parties.  In most cases a fact that affects the credibility of a witness is a collateral fact, hence an answer given by a witness to a matter that relates to credibility only is final and cannot be rebutted.[113]

   [113] Goldsmith v Sandilands [2002] HCA 31; (2000) 76 ALJR 1024 [3] (Gleeson CJ).

2. There are exceptions to the collateral evidence rule.  Evidence rebutting a witness's evidence may be adduced where the witness is affected by bias, interest or corruption.  Bias is concerned with hostility or prejudice against the opponent personally, or in favour of the proponent personally.  Interest is concerned with a specific inclination on the part of the witness as to the cause in issue in the litigation.  Corruption is concerned with conscious false intent on the part of the witness, which can be inferred from conduct such as the giving or taking of a bribe.  The essential element of evidence showing corruption is a willingness to obstruct the discovery of the truth by manufacturing or suppressing testimony.[114]

   [114] Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196 [62].

3. The bias and interest exceptions to the collateral evidence rule are typically limited to evidence about the feelings of the witness towards a party or the cause in issue.  The corruption exception is not so confined.  An offer to testify corruptly has been described as a clear example of the corruption exception.[115]

   [115] R v Lawrence [2001] QCA 441; [2002] 2 Qd R 400 [27] (McPherson JA).

4. Evidence of bias or corruption of a witness has been said to be admissible in several cases.  These cases include Phillips; Lawrence; LSS; Smith v The Queen[116] and R v De Angelis.[117]  In Phillips the English Court of Appeal held that evidence ought to have been admitted to prove that a child who was a victim of, and witness to, an alleged act of incest had admitted that her mother had put her up to making the allegations.  The court held that the evidence of two women to whom the child had allegedly made the statements went directly to the appellant's defence and not merely to the credibility of the child.[118]

   [116] Smith v The Queen (1993) 9 WAR 99.

   [117] R v De Angelis (1979) 20 SASR 288.

   [118] Phillips (21).

5. In Lawrence the Queensland Court of Appeal held that evidence ought to have been admitted to prove that the complainant had told a witness that she was going to set the witness up by telling the police that he had propositioned her for sex.  The evidence was characterised as an offer to testify corruptly.  In that case McPherson JA said that it was a noteworthy feature of all the cases in which the collateral rule has been relaxed that emphasis had been placed on the fact that the matter of credibility was inextricably linked with the principal issue in the case.[119]  

   [119] Lawrence [12].

6. In LSS the Queensland Court of Appeal held that evidence ought to have been admitted to prove that a child who was the victim of incest had been seen being coached by her mother.  The person who had seen the coaching was the victim's brother.  The Court said that the brother's evidence was inextricably linked to the appellant's defence.  In that case Thomas JA said that evidence demonstrating the coaching of a witness, when there is clear opportunity for a person apparently hostile to the accused to influence the witness, ought to be able to be called by an accused person.[120]

   [120] LSS [28] (Thomas JA, Pincus JA relevantly agreeing).

7. In Smith this court's predecessor, the Court of Criminal Appeal of the Supreme Court of Western Australia, held that evidence ought to have been admitted in a sexual offence case of out-of-court statements made by the complainant that suggested bias on her part against the appellant.  In cross‑examination the complainant, the foster daughter of the appellant, had denied making a statement that she had been ejected from the home of her foster family for drug taking and had said to the witness 'Don't worry.  They will pay for it'.  The court held that the evidence that such a statement had been made was capable of proving bias on the part of the complainant leading to the fabrication of the allegations.[121]

   [121] Smith (101, 105).

1. In De Angelis the Full Court of the Supreme Court of South Australia upheld the admission of evidence from police officers that a defence witness had said that if required to go to court he would lie in order to avoid offending the appellant.  The Full Court held that the evidence was admissible under the common law rule which allows statements by witnesses indicating bias or partiality to be proved.[122]

   [122] De Angelis (295).

2. To the extent that any common themes can be drawn from these cases, all of them related to evidence that suggested a reason why a witness may have given false testimony as to a matter directly in dispute at the trial.  Those cases involving allegations of coaching all related to evidence that the complainant had been coached.  None of them related to evidence that another person, who was not a complainant or a prosecution witness, had been coached.  In any event, it has been observed that the law as it stands does not permit any relaxation of the traditional rules merely on the ground that the particular witness's credibility is inextricably linked with the principal issue in the case.[123]

   [123] Nicholls [286] (Kirby J).

3. No authority has been cited to support the proposition that evidence of coaching or suborning of a person who is not a witness is admissible, other than the decision in the US case of Haggett.  That case involved allegations of fraud by a former bank officer.  In cross‑examination, the principal prosecution witness, another bank officer, denied suggestions that he had promised favoured treatment to three bank customers in return for giving perjured evidence.  The appellant was not permitted to call those customers to rebut that denial, because any alleged bias revealed by the evidence was of a general nature since none of the charges related to the three customers in question.  The appeal court disagreed and held that the bias revealed by the proposed evidence was not merely collateral and that it was irrelevant that the loans of the proposed witnesses were not the subject of the indictment.  The rationale for this conclusion was that proof that a prosecution witness had unsuccessfully attempted to suborn perjury of other persons could have led the jury to doubt the veracity of prosecution witnesses, 'the jury perhaps suspecting that these witnesses were successfully bribed to testify falsely'.[124]   

   [124] Haggett (399).

4. The reasoning in Haggett has not been adopted in any Australian or English case.  That is unsurprising as it represents a significant extension to the bias, interest and corruption exceptions.  Indeed, it might be viewed as not merely an extension but the endorsement of a form of reasoning that would undoubtedly be viewed in this jurisdiction as improper speculation. 

Ground 1 - relevant law - incompetence of counsel

1. The relevant principles regarding a claim that a miscarriage of justice has been occasioned due to the conduct of defence counsel were conveniently and comprehensively set out in Huggins v The State of Western Australia.[125]  Those principles can be summarised as follows:

   [125] Huggins v The State of Western Australia [2018] WASCA 61.

   1.Incompetence of counsel is not itself a ground of appeal, rather the ground of appeal is that there has been a miscarriage of justice.[126]

   2.An appellant who claims that the conduct of their counsel has caused a miscarriage of justice bears a heavy burden which is not easily discharged.[127]

   3.Ordinarily, an accused is bound by the way the trial is conducted by counsel, even if that was not in accordance with their wishes.[128]

   4.It is not a ground for setting aside a conviction that decisions made by counsel were made without or contrary to instructions or involved errors of judgment or even negligence.[129]

   5.It is not the role of an appeal court to review the wisdom or prudence of counsel's conduct of a trial.  For example, an apparently rational decision of counsel to call or not call evidence does not give rise to a miscarriage of justice simply because the appeal court thinks it was to the disadvantage of the appellant.[130]

   6.The focus of the inquiry must be on the consequences of the alleged incompetence and the extent to which it caused or contributed to a miscarriage of justice.  The focus is on what happened or did not happen, not on why any error occurred.[131]

   7.The inquiry on appeal has an objective character.  The appeal court does not examine whether a decision taken by counsel at the trial was taken for the purpose of obtaining a forensic advantage or a forensic disadvantage.  Rather, the appeal court is concerned only with whether the decision is capable of explanation on that basis.  That is, could there be any reasonable explanation for the decision?[132]

   8.Generally, an appeal of this nature is not an investigation into the performance of counsel.  The subjective views or reasoning of counsel are not relevant.  Thus, the evidence of the appellant and counsel as to the reasons for their conduct at the trial are of very limited assistance and it is not necessary to resolve conflicts in that evidence.[133]

   9.A miscarriage of justice arising from the conduct of counsel can occur because it has deprived the appellant of a fair trial.  In this category, a complete failure to cross‑examine a complainant, a complete failure to address the jury or wrong advice that the accused is not entitled to give evidence may result in an unfair trial.[134]

   10.In most cases the issue is whether there has been a material irregularity.  It is difficult to establish such an irregularity where the alleged error of counsel involves forensic choices upon which competent counsel could have different views.  In this category the appellant must show that there was a material irregularity arising from counsel's conduct and that there is a significant possibility that the irregularity affected the outcome.[135]   

   [126] Criminal Appeals Act 2004 (WA) s 30(3)(c); Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 [2]; KLM v The State of Western Australia [2009] WASCA 73; (2009) 194 A Crim R 503 [49].

   [127] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [74]; McMahon v The State of Western Australia [2010] WASCA 143[24]; CFM v The State of Western Australia [2017] WASCA 15 [118].

   [128] Nudd [9].

   [129] TKWJ [74], [79]; R v Birks (1990) 19 NSWLR 677, 685; McMahon [24].

   [130] Nudd [8]; KLM [51]; TKWJ [16].

   [131]KLM [50]; McMahon [28]; Nudd [25].

   [132] TKWJ [17] (Gleeson CJ), [27] (Gaudron J, Gummow J agreeing), [107] (Hayne J, Gummow J agreeing).

   [133] Nudd [9] - [10]; TKWJ [107].

   [134] TKWJ [76]; Nudd [17].

   [135] TKWJ [79], [81] (McHugh J); Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662 [18] (Hayne J).

1. The principles referred to in Huggins have been approved by this court in RMM v The State of Western Australia[136] and Jeffery v The State of Western Australia.[137]

   [136] RMM v The State of Western Australia [2018] WASCA 183.

   [137] Jeffery v The State of Western Australia [2009] WASCA 133; (2009) 51 WAR 96.

Ground 1 - the merits

1. There are two limbs to this ground of appeal.  The first limb relates to the alleged failure to adduce the evidence of HW at the trial.  The second limb relates to the reference to HW in the prosecutor's closing address. 

2. In order for the first limb to succeed the appellant must establish two things: first, that the evidence of HW was admissible at the trial, and second, that the failure by defence counsel to adduce it occasioned a miscarriage of justice.

3. The appellant's submissions proceeded on an assumption that the pre‑recorded evidence of HW would have been admissible if relevant. That assumption was not well-founded. A recording of statements made by a person is inadmissible hearsay unless it falls under some common law or statutory exception to the rule against hearsay. The only relevant exception in this case was s 106T(1) of the Evidence Act, which, for the reasons earlier stated, could not be utilised because HW was not an affected child in respect of the trial (or, for that matter, the appeal). 

4. As to the appellant's alternative fallback position that HW should have been called to give evidence at the trial, that will be considered in the context of the forensic decision made by trial counsel.

5. There was another barrier to admissibility.  To be admissible, evidence must be capable of meeting the threshold requirement of relevance.  Evidence is relevant if it is capable of rationally affecting the assessment of the probability of a fact in issue.  The evidence of HW went only to the issue of whether he had been told to make an allegation.  It could not rationally affect an assessment of whether the evidence of IW was true and accurate.  It is not, therefore, evidence that was admissible in the positive defence case.

6. The fact that in cross‑examination GW denied coaching HW does not assist the appellant.  That was an issue that was relevant only to the credibility of GW.  The answers of witnesses to questions going only to credit are final and it is not open to call evidence to rebut those answers.  There are exceptions to the collateral evidence rule, but none of them can apply in the circumstances of this case.

7. Evidence that a complainant has been coached to make false allegations may well be admissible as falling within the bias, interest or corruption exceptions to the collateral evidence rule.  However, HW's evidence was not of that nature - viewed most favourably to the appellant it was only evidence regarding the allegation that HW made, which was materially different to the allegations made by IW.  HW said nothing in the pre-recording about the allegations made by IW, far less that she had been coached. 

8. The process of reasoning inherent in the appellant's submissions is that if GW did something in relation to HW he is likely to have done something similar in respect of IW.  This form of reasoning invites speculation.  That would occur in the absence of any direct evidence that IW was coached (and in the face of denials by both GW and IW).  Evidence that GW coached HW cannot prove that he coached IW to make false allegations about entirely separate matters.  There is no logical connection between proof of the one thing and proof of the other.  Any invitation to the jury to reason in the way suggested would have been improper.

9. At best the evidence of HW might show some general disposition on the part of GW as regards the appellant, but the relevance of that was very limited.  There was other evidence of animosity between GW and the appellant.  Furthermore, GW's evidence was confined to evidence of recent complaint by IW.  GW gave no direct evidence as to whether the alleged sexual acts had occurred.  In that regard the prosecution case depended entirely on the evidence of IW.  Evidence of GW's disposition towards the appellant could say nothing useful about IW's evidence.

10. In the face of firm denials of coaching by both GW and IW, the suggestion that it occurred was, at best, a mere assertion.  Whether GW had coached HW (which GW also denied) was a collateral issue as it was a matter going only to the credit of GW.  In those circumstances, GW's answers were final and it was not open to the appellant to adduce evidence on a collateral issue. 

11. The inadmissibility of the pre-recording is sufficient to dispose of the first limb of this ground of appeal.  There could not possibly be a miscarriage of justice arising from the failure of defence counsel to adduce evidence that was not admissible.  However, even if the pre‑recording was admissible this ground would not succeed.

12. The playing of the recording would mean that the jury would hear, in detail, the nature of the allegation made by HW.  The danger of that is that the jury might conclude that that allegation was true notwithstanding the apparent acceptance by HW in cross‑examination that he had been told by his father to say these things.  Any benefit derived from obtaining support for an allegation of coaching would have been very much outweighed by the risk of prejudice from adducing evidence of another allegation of sexual offending by the appellant in respect of a different child.

13. However, as previously explained, in the circumstances of this case, it was not open to the appellant (or the State) to adduce the pre‑recording of HW's evidence at the trial.  If the appellant wished to adduce evidence from HW at the trial this would have required calling HW in person or making a fresh application to pre-record the evidence of HW as a special witness (which would have necessitated adjourning the trial).  Those possibilities place the forensic decision regarding the evidence of HW into its proper context.

14. The calling of HW to give evidence at the trial (either in person or by way of a fresh pre-recording) would entail significant risk for the appellant that HW would not give the desired evidence or may say that the original allegation in respect of him was true and that he had never been coached.  The ambiguity of the answers given at the pre-recording could not inspire any confidence that HW would necessarily give the desired evidence.  The risk was also heightened by the fact that if called by the defence it would not be possible to ask leading questions in examination in chief, but it would be open to the prosecutor to cross‑examine in that manner. 

15. There were obvious dangers in proceeding on an assumption that HW would give the same evidence as he had given previously (even accepting that the appellant's interpretation of that evidence is correct).  The prejudice to the appellant if HW gave evidence that a sexual offence had occurred in respect of him and that he had not in fact been told by his father to make a false allegation would have been overwhelming.  The risk of that occurring was readily apparent.

16. It is hard to imagine that any competent defence counsel would have taken the view that calling HW to give evidence at the trial was in the best interests of the appellant.  The reasons not to do so were abundantly clear and powerful.  The claim that a miscarriage of justice occurred because defence counsel did not adduce evidence from HW can only succeed if, objectively, the decision has no rational explanation.  The appellant has fallen well short of meeting that standard.  Indeed, in the circumstances, for the reasons already given, in our view the decision by defence counsel not to call HW to give evidence was the only rational forensic decision.

17. As to the second limb of this ground, the suggestion appears to be that there was unfairness in the prosecutor referring to possible explanations for why HW may have changed his story.  The context of this is that the prosecutor was responding to an issue raised in the cross‑examination of GW.  The prosecutor's comments about HW were favourable to the defence in that he effectively conceded that HW had changed his story (a matter about which there was no evidence).  All the prosecutor then did was refer to HW's age, a matter that was uncontentious.  The reference by the prosecutor to looking at HW was a mere slip that was immediately corrected.  There is no merit in this limb of the ground.

Ground 2 - appellant's submissions

1. The appellant contends that the letter from the DPP of 24 November 2021 (referred to at [73]) should be interpreted as meaning that IW believed that the appellant had done sexual acts to her because she knew that he did something of the same nature to HW.  That is, that her belief as to what happened to her depended in some way on her awareness of what HW said had happened to him.[138]

   [138] Amended appellant's case [45] - [46].

2. The appellant submits that this should have been put to IW in cross‑examination on the pre-recording.  One line of questioning that is suggested is that, if IW accepted that her belief depended on knowing what happened to HW, then she could be asked whether she knew that HW had agreed that GW had told him to make an untrue complaint (assuming that is what HW's evidence means).[139]     

   [139] Amended appellant's case [48] - [51].

Ground 2 - respondent's submissions

1. The respondent submits that the decision on what matters to pursue and what questions to ask is for counsel alone.[140]  The decision not to cross‑examine IW on this issue is rationally explicable having regard to the following:[141]

   1.Counsel cross‑examined IW generally on her interactions with her father.  She agreed that she had spoken to her father about what the appellant did, but denied that he had told her to say 'these things'.

   2.The defence case theory was that the allegations arose from coaching by GW, not from IW copying HW.  If IW had been coached by her father she would know this and her belief as to the offending against her would not be based on HW having also complained.  Cross‑examination to the effect that IW believed that she had been offended against because she wrongly believed that HW had been offended against would make no sense on the defence case theory.

   3.There was material on the brief that made it clear that IW would have been aware of HW's allegation from the time it was first made.  This was established from the evidence of SW.  A suggestion that IW was copying HW could be made on the basis of this evidence had it been thought useful to do so.

   4.There was nothing in the letter to suggest coaching.  Rather it merely suggested that HW had complained to family members more than once.

   5.It was understandable that IW and HW as young siblings living in the same house would communicate with each other.

   6.At the time of the cross‑examination of IW the cross‑examination of HW had occurred.  Counsel would be conscious of the possibility that the charge relating to HW may be discontinued and that it may be prejudicial to the appellant to raise HW's allegations in the cross‑examination of IW.

   7.If questions regarding the DPP letter had been put the likely outcome would be that IW would repeat her initial complaint or give evidence of HW's complaint. 

   [140] Respondent's answer [41].

   [141] Respondent's answer [41].

2. The respondent submits that if it is suggested that IW's knowledge of the offending against her was literally dependent upon her knowledge of HW's allegation, there is a competing construction of what IW said.  It is suggested that the obvious competing construction is that what IW meant was that she should be believed because she was not the only one the appellant had done it to.[142]

   [142] Respondent's answer [42].

Ground 2 - relevant law

1. This ground, in essence, asserts that there was a miscarriage of justice caused by the failure of defence counsel to cross‑examine IW on the contents of the DPP letter. The principles applicable to a ground of this nature have been set out at [138].

2. Of particular relevance to a claim regarding the conduct of cross‑examination, in BGH v The State of Western Australia[143] this court said:

   It is not this court's function to merely second-guess defence counsel's forensic choices and decide that the cross‑examination may have been more effective if it had been carried out differently.  Defence counsel's cross‑examination was explicable on the basis that it involved the making of reasonable forensic choices.  While other defence counsel may have conducted the cross‑examination of [the complainant] differently, that does not make defence counsel's cross‑examination 'inadequate', not does it constitute a miscarriage of justice.

   [143] BGH v The State of Western Australia [2020] WASCA 124 [57].

Ground 2 - the merits

1. Dr Hampson received the DPP letter before the cross‑examination of IW.  It was, therefore, a matter upon which he was able to exercise forensic judgment as to whether he should ask questions about it.  It is not significant that he may not have discussed the letter with the appellant.  The appellant was bound by the forensic decisions of counsel who acted on his behalf.

2. Dr Hampson's evidence is that the facts known to him at the time of the cross‑examination of IW are those set out at [83]. Those facts provide, objectively, a rational explanation for why IW was not cross‑examined on this issue. In particular, to suggest that IW had made her allegation only because she was aware of HW's allegation would not have been consistent with the defence case that the children had been coached by GW. Furthermore, the sexual allegations made by IW were different in number, nature and detail. A suggestion in cross‑examination that IW had merely copied HW would have had difficulty accounting for these differences.

3. Moreover, the DPP letter was readily capable of an interpretation materially different from the interpretation - outlined in [157] above - on which ground 2 is founded.  The letter could have meant no more than that IW was saying that she should be believed because she was not the only one the appellant had done things to.  On that interpretation, which defence counsel had no means of excluding, cross‑examination of IW on the letter would have provided no benefit to the defence and would have been likely to cause substantial harm.

4. In the circumstances of this case, not cross‑examining IW on the statement made by her to the prosecutor was clearly rationally explicable.  The appellant has not established that any miscarriage of justice arose from defence counsel not having done so.

Ground 3 - appellant's submissions

1. The appellant submits that the prosecution case depended substantially on the evidence of GW and that he had a motive to lie.  It is suggested that the evidence of DW could have added to the proof of such a motive.  In particular, DW could have given evidence of the allegation in 2017 that GW had inappropriately touched IW.  If GW had denied knowing or being upset about that accusation, it is submitted that DW's evidence would have been admissible as an exception to the collateral evidence rule.  Whether the accusation was true, and the police view that it was false, was irrelevant.  All that was relevant to the defence theory of coaching is that the complaint was made and that GW was aware of it.[144]

   [144] Amended appellant's case [52] - [61].

2. DW would also have given evidence that IW was not her normal self in the child witness interviews.  It is submitted that this would have been relevant in assessing IW's credibility.[145]

   [145] Amended appellant's case [62].

3. DW could also have given evidence regarding the assault charge against the appellant, which was subsequently dropped.  DW could have said that she saw no bruising at the relevant time.  It is said that this would have provided the other side of the story, given the impression conveyed by GW in cross‑examination that he had seen a mark consistent with bruising.[146]

   [146] Amended appellant's case [63].

4. The appellant submits that concerns about how DW would present as a witness were slight compared to the benefit of leading evidence regarding the motive to lie and the prejudicial effect of only hearing evidence from GW regarding the assault.  It is submitted that the decision not to call DW was unreasonable and resulted in a material irregularity that affected the outcome of the trial.[147]   

   [147] Amended appellant's case [65] - [66].

Ground 3 - respondent's submissions

1. The respondent submits that there were rational reasons for not calling DW as a witness.  As regards the 2017 accusation, there was a risk that the jury may conclude that DW made a false complaint and that this would be highly prejudicial to the defence case.  In any event, a significant amount of evidence of the poor relationship between GW and DW was adduced from GW in cross‑examination, thus reducing any benefit to be gained by calling DW.[148]

   [148] Respondent's answer [53]; appeal ts 81 - 82.

2. The respondent says that the suggestion that DW could give admissible evidence as to her opinion of IW's presentation in the child witness interview is misconceived.[149] 

   [149] Respondent's answer [53].

3. In regard to the assault allegation, the respondent submits that any forensic advantage that may have been had from having DW state that she did not see a bruise on IW at the relevant time would have been outweighed by the disadvantages of calling her.[150]

   [150] Respondent's answer [53].

4. The respondent notes that the evidence of Mr Kraus is that the appellant instructed him not to call DW as a witness.  It is, therefore, a contradiction to now assert that counsel, in acting consistently with that instruction, caused a miscarriage of justice.  Furthermore, trial counsel and the appellant had agreed that DW would not present well as a witness.  That assessment adds to the forensic considerations referred to above that demonstrated the danger in calling her.[151]

   [151] Appeal ts 81.

Ground 3 - relevant law

1. This ground, in essence, alleges that there was a miscarriage of justice caused by defence counsel's decision not to call DW as a witness. The relevant principles in regard to such a ground are set out at [138].

Ground 3 - the merits

1. The question of whether DW should be called as a witness was considered by counsel and discussed with the appellant prior to the trial.  One reason for calling her was to establish the acrimonious history of custody arrangements involving the children.  However, that history could be and had been established in cross‑examination of GW.  There is no basis for suggesting that a decision that, in the circumstances, it was not necessary to call DW was not a rational forensic decision. 

2. It is suggested that another reason to call DW was to prove that she had previously made an allegation of sexual misconduct by GW.  That evidence could only prove that such an allegation was made, not that it was true.  The only possible relevance of such evidence was to show GW might have a reason for feeling animosity towards DW.  Exactly how that could support a conclusion that GW had a motive to lie about whether IW had made a complaint to him about the appellant several years later is not clear.  Furthermore, the allegation by DW was not believed by the police and never resulted in a charge.  This aspect of the case strategy was discussed with the appellant and, on the evidence of Mr Kraus, which we accept, it was agreed that it should not be pursued.  The test, however, is an objective one, and we will consider that shortly.

3. As regards the evidence that DW could give about the assault allegation, it is difficult to see how that could be anything other than collateral evidence.  The assault allegation was not in issue at the trial.  The evidence that GW gave about it in cross‑examination was relevant only to his credibility.  It was not open to adduce evidence to contradict that evidence.

1. The opinion of DW that IW was not her usual self in the child witness interview was merely vague inadmissible opinion.  Furthermore, DW, who plainly continues to support the appellant, would hardly have been seen as a disinterested witness.  Any evidence she could give in this regard would likely be accorded little weight by the jury. 

2. The decision not to call DW as a witness was made by defence counsel.  He did so with the concurrence of the appellant.  The agreed position was that she would only be called if it had not been possible to obtain evidence of the history of the custody disputes from GW.  The matters raised by the appellant were known to counsel and a considered decision was made not to call DW.  At that time the facts known to counsel included: that the appellant did not want DW called because she might become emotional and perform badly; that that was counsel's own view having met DW; and that there was a risk in calling DW that evidence prejudicial to the appellant might be given. 

3. The claim that a miscarriage of justice occurred because defence counsel did not call DW to give evidence can only succeed if, objectively, the decision has no rational explanation.  The appellant has fallen well-short of meeting that standard.  There were plainly good reasons not to call DW.  This ground cannot succeed.

Conclusion

1. The assessment of the appellant's grounds has required consideration of the evidence adduced on the appeal.  For that reason, we would grant the applications to adduce additional evidence.  However, on consideration of that evidence, it is apparent that none of the grounds has any reasonable prospect of success.  We would refuse leave to appeal and dismiss the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

JS

Associate to the Honourable Justice Hall

29 MARCH 2023