S v The State of Western Australia - [2021] WASCA 154

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   S -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 154
CORAM:   QUINLAN CJ
MAZZA JA
MITCHELL JA

HEARD:   4 FEBRUARY 2021
DELIVERED          :   30 AUGUST 2021
FILE NO/S:   CACR 21 of 2020
BETWEEN:   S
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram:   WAGER P
File Number            :   PE 4726-4727 of 2018

Catchwords:

Criminal law – Trial by judge alone – Adequacy of reasons – Whether adequate reasons given for rejecting accused's evidence – Whether verdict unreasonable – Failure to particularise act constituting offence

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3)(a)
Criminal Code (WA), s 320(4)

Result:

Appeal allowed
Conviction set aside
Acquittal entered

Category: B

Representation:

Counsel:

Appellant	:	S Vandongen SC
Respondent	:	L M Fox SC

Solicitors:

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

Cases referred to in decision:

Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20; (2019) 54 WAR 222
Child and Adolescent Health Service v Mabior by next friend Kelei [2019] WASCA 151; (2019) 55 WAR 208
De Silva v The Queen [2019] HCA 48; (2019) 268 CLR 57
DL v The Queen [2018] HCA 26; (2018) 266 CLR 1
Green v The State of Western Australia [No 2] [2014] WASCA 53; (2014) 240 A Crim R 73
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
MEN v The State of Western Australia [2020] WASCA 118
Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123
S v The Queen [1989] HCA 66; (1989) 168 CLR 266
Wark v The State of Western Australia [2020] WASCA 19; (2020) 284 A Crim R 449

JUDGMENT OF THE COURT:

Introduction and summary

This is an appeal against conviction.
The appellant was charged in the Children's Court of Western Australia with two charges alleging that he indecently dealt with a child under the age of 13 years contrary to s 320(4) of the Criminal Code (WA).
The two charges were alleged to have occurred in the same period, between 14 October 2018 and 4 December 2018 (the relevant period), when the appellant was working as an aide on a school bus. The appellant was 17 years old at the time.
Each charge related to a separate child, who were regular passengers on the bus over the relevant period. The children, R and Z, were 8 and 7 years old, respectively, at the time.
The State case was that the appellant exposed his penis to R and Z while on the bus.
In November 2019, the charges were tried in the Children's Court before President Wager. On 4 December 2019, the learned trial judge acquitted the appellant of the charge relating to R and convicted the appellant of the charge relating to Z. The appellant was sentenced to a 9-month community based order.
The appellant now appeals against his conviction of indecently dealing with Z.
While the charge relating to Z (as with the other charge) alleged only a single incident of indecent dealing, the prosecutor did not in fact identify any particular incident, either in opening the State case or in her closing address, said to constitute the offence. Rather the State led, and relied upon, evidence from Z to the effect that the appellant exposed himself to Z on the bus every day, both in the morning and in the afternoon.
In convicting the appellant of the charge relating to Z, the learned trial judge concluded:[1]
So I have considered the evidence of [the appellant] and I reject the evidence of [the appellant] and accept the evidence of [Z] in relation to the fact of the penis being exposed. So far as the number of times that occurred, I have a reasonable doubt about what [Z] is saying with numbers, so I'm not in a position to make a finding of fact about whether that happened on a regular occasion or not.
[1] BAB 157.
As with the State's presentation of its case, the learned trial judge did not identify a particular occasion upon which the finding of guilt was based.
There are two grounds of appeal:
(a)ground 1 contends that the learned trial judge erred in law in failing to give adequate reasons for finding the appellant guilty of the offence relating to Z; and
(b)ground 2 contends that the verdict of guilty for the offence relating to Z was unreasonable and cannot be supported having regard to the evidence.
The State conceded that ground 1 was established and that the appellant's conviction should be set aside. We accept that concession and would uphold that ground.
In addition, for the reasons set out below, the verdict was unreasonable. In particular, in circumstances where:
(a)the State did not particularise an occasion upon which it alleged the offending had occurred;
(b)Z did not give evidence of the offending occurring on any particular occasion; and
(c)the trial judge was not satisfied as to the reliability of Z's evidence as to the frequency of the offending,
it was not open to the learned trial judge to be satisfied that the appellant had committed an offence on a particular occasion. To that extent ground 2 should also be upheld.
Having upheld ground 2, there should be an order for an acquittal.
Our reasons are as follows.

Proceedings at trial

As noted above, the appellant was charged with the following offences:
(a)that in the relevant period the appellant 'indecently dealt with one [R], a child under the age of 13 years'; and
(b)that in the relevant period the appellant 'indecently dealt with one [Z], a child under the age of 13 years'.
The alleged indecent dealing in each case was that the appellant had deliberately exposed his penis to the complainant. Each charge related to a single incident.
In opening the case for the State, the prosecutor did not identify any particular occasion upon which it was alleged that the appellant committed the offence. The only reference to the nature of the incidents giving rise to the charges was:[2]
So in her interview, [R] speaks about it happening more than once, but, as your Honour will hear, she speaks about one particular incident where [Z] is dropped off the bus and she says that [the appellant] exposes his penis to her on the way to her drop-off point when no one other kids were left on the bus. And [Z] also refers to someone showing him his wee, and your Honour will see that interview. And as I said, they're about 20 minutes each. And both children identified the bus aide, [the appellant], as being the person who they were talking about.
[2] BAB 8.
During the relevant period the appellant was working in a family business that provided bus services (the family business). The date range of the relevant period was identified by reference to the period during which the appellant had worked in the business.
During the relevant period R and Z were attending a school in a Perth suburb. R and Z were transported between their homes and the school by a bus operated by the family business. The appellant's brother (D) drove the bus and the appellant travelled on the bus as an aide. The appellant's job was to open and close the rear sliding door to allow the children to enter and exit the bus, and to make sure the children had their seatbelts on.
Each weekday during the period, the appellant, R, Z and two other children (J and A) sat in the same seats in the journey to and from the school. The appellant sat in a single seat on the left-hand side of the vehicle, just behind the left rear door. J and A sat in the two seats directly behind the driver's seat, and R and Z sat in the two seats directly behind J and A's seats. R always sat on the window seat and Z sat on the aisle seat. The appellant's seat was directly across the aisle from Z's seat.
Both R and Z participated in visually recorded interviews prior to trial, each of which was adduced in evidence at trial. R and Z also gave evidence at trial and were cross-examined.
It is not necessary to address the evidence of R, save to observe that the learned trial judge found that R was an unreliable witness and could not be satisfied that the charge relating to R was proven.
As noted above, the alleged act of indecent dealing relevant to Z was that the appellant exposed his penis to him. In that regard, the prosecution did not specify a date, or any particular occasion during the relevant period, on which the offence was committed. As will be apparent from Z's evidence, described below, he said that it happened 'every day', 'many times', 'both in the morning and afternoon'.
In those circumstances, it may have been open to contend that the conduct of the prosecution in the present case, disclosed a latent duplicity in the prosecution notice. That is because the prosecution notice charged one offence, but the evidence revealed a multiplicity of offences with nothing to distinguish any of them as the offence the subject of the charge.[3]
[3] See S v The Queen [1989] HCA 66; (1989) 168 CLR 266 ; Green v The State of Western Australia [No 2] [2014] WASCA 53; (2014) 240 A Crim R 73.
Defence counsel took no objection to the charge and did not seek particulars of it and the grounds of appeal did not raise any issue of duplicity. Accordingly, it is unnecessary to say anything more about that issue, other than to observe that, having regard to the likely evidence of Z, the preferable charge in the circumstances may well have been for an offence of persistent sexual conduct contrary to s 321A of the Criminal Code.
Nevertheless, as will be seen, the lack of particulars in the present case is, in any event, relevant to the assessment of ground 2.

Z's evidence

Z's account in his visually recorded interview included the following:[4]
[4] BAB 257 - 264.
Q: … Now let's talk about why you're here today. Tell me what you've come to talk to me about today.
A: Mm, do you know [the appellant]? … now I don’t - don’t go to the bus, because him showing wee(?).
Q: Sorry?
A: Cos him showing wee(?).
Q: Say that again. I ---
A: Because him showing wee. Him show it to me.
…
Q: And what do you mean by, "Him showed him wee"?
A: Him, like - I don’t know.
Q: Mm.
A: I don’t know what you are talking - I don’t know what that mean.
Q: Okay. So you said "bus driver".
A: No, he will - he will drive.
Q: Mm.
A: Him - him is kind a person, but him (indistinct) but him is a brother of him, but him don’t know(?).
Q: Okay. So brother of him. Is that what you said?
A: Yeah.
Q: Okay.
A: Yeah, pretty sure.
Q: And then you said, "Him showed him wee." Is that what you said?
A: (No audible answer).
…
Q: When you say, "Him showed him wee", did he show him wee one time or more than one time?
A: More(?) one time.
Q: Tell me everything about the last time him showed him wee ---
A: No.
Q: --- and start at the very beginning.
A: No, him - he didn't show his wee before.
…
Q: Tell me more about the bus driver's brother.
A: [The appellant].
Q: Mm hm.
A: They're - no, who is ever [the appellant](?) (indistinct) [the appellant] showed the wee, but - but, like - but I don’t know the bus driver ….
Q: Mm hm.
A: I don’t really know.
Q: Mm hm.
A: But even him don’t know.
…
Q: Okay. Now, remember, [Z], I wasn’t there, so I don’t know what happened, kay? So when you say "Bus driver's brother showed him wee," tell me everything about that.
A: Him showed him, but when I have a toy him never (indistinct) me.
Q: Sorry?
A: When - where - when I have a toy, when I'm playing there (indistinct) cos I'm allowed to have a toy ---
Q: Mm hm.
A: --- (indistinct) the bus, I - him don't shows him wee(?).
Q: Okay. And when you say "wee", what do you mean by "wee"?
A: I don't know.
Q: Is there another name for wee?
A: Not at all(?).
Q: Kay. What do you use a wee for?
A: I don’t know.
…
Q: Okay. Tell me everything about the bus and the bus driver's brother showing him his wee. Tell me everything about that.
A: Mm, that - I don't know what that means.
Q: Okay. So you said that you were on a bus.
A: Yes, but now I'm not.
Q: Okay. When you were on the bus, tell me everything from the beginning of when you were on the bus.
A: Mm, I was new(?), but now I'm not new.
Q: Mm hm.
A: Uh, I am new - him - him don't show that.
Q: Kay. What do you mean by "don't show that"?
A: Mm, I don’t know.
…
Q: Good. So I have a few more questions I want to ask you. When you say that [the appellant] showed him his wee, who else has a wee?
A: Everybody.
Q: Everybody. Tell me more about a wee.
A: A wee?
Q: Mm.
A: You - you can pee.
Q: Mm hm.
A: And nothing else.
Q: Okay. And what part of his body is his wee?
A: Round(?) (indistinct).
Q: Okay. And you're pointing down to your pants area. The top part of you ---
A: Yeah.
Q: --- pelvic area. Is that right?
A: Yes.
Q: Okay. Do girls have wees?
A: No.
Q: Do boys have wees?
A: Yes.
Q: Okay. When you say [the appellant] showed him his wee, did anything happen to [the appellant]'s pants when he showed him his wee?
A: Nothing. Yeah, nothing.
Q: Yeah.
A: Nothing.
…
Q: Okay. When you say [the appellant] showed him his wee, tell me how [the appellant] showed him his wee.
A: Pull him pants.
Q: Mm hm.
A: Then closed it(?).
Relevantly, Z gave the following evidence-in-chief at trial:[5]
[5] BAB 48, 50 - 51.
Who was [the appellant]?---[The appellant] was a teenager who everyday showed his penis in front of me.
Okay. What did – why was [the appellant] on the bus; do you know?---Because to protect us.
Protect you, did you say?---No, because to look after us.
To look after you?---Yes.
All right. And did he look after you?---No.
Okay. All right. Now, I just want to ask you – I will just go back for a second. Now, when you met me earlier today, do you remember we watched a video?---Yes.
And you were in it?---Huh?
Do you remember watching the video and you were in the video?---Yes.
Okay. And there was a man asking you some questions?---Yes.
And he asked you some questions about [the appellant]?---Yes.
Okay. Now, the things that you said to that man, on the video, did they really happen?---Yes.
…
Now, you said before that – something about every day on the bus someone showed his penis?---Yes.
Yes. Who was that?--- [The appellant].
Okay. So where was [the appellant] when he did this?---He was at the bus.
Okay. Now, I asked you where [the appellant] sat in the bus before - - -?---He sat in the bus before right in one seat.
Yes, okay. And where was he sitting – where was he when you say that he showed you his penis?---Right where the – right at – at the spot where he was.
Okay. And did he have – what was he wearing? Can you tell me that?---I don’t know.
Okay. But was he wearing clothes?---Yes.
Okay. Now, you talked about something happening everyday – no, actually, I will go back. You’re not sure what he was wearing - - -?---Yes.
- - - but he wore clothes?---Yes.
Okay. So how was it that you saw his penis?---Huh?
How was it that you saw him – how was it that he could show you his penis?---How was I old?
No. How did he show you his penis?---He – he – he – he – he – he just got his – like, half of his pants and then he showed me his – all of his penis.
Okay?---The whole part.
What was that last bit, sorry?---He showed me the whole part.
Showed you the whole part?---Yes.
All right. When you say “the whole part” what was it that you saw?---He – he – that – his whole penis.
Okay. And – so what did that look like? What part did you see?---I saw his penis and that’s it.
…
In cross-examination, Z's evidence included the following exchange:[6]
[6] BAB 58.
And did – you said in the video that he did this every day. Is that right?---Huh?
Did you say in the video that [the appellant] did it every day, showed his wee?---Yes. But whenever a toy, no, because I was looking at the toys that I found. But, yes.
All right. But he did it – are you saying that he did it more than once?---Yes.
So he did it many times?---Many times.
And when he did it many times, [J] and [A] and [R] were also on the bus?---Yes.
When you were on the bus too?---Yes.
And was that in the morning on the way to school or the afternoon on the way home or both?---Both.
Both. So he would do it in the morning and in the afternoon?---Yes.

D's evidence

The State called the appellant's brother D to give evidence at trial.
D was the driver of the bus during the relevant period. He was 22 years of age at the time.
D gave evidence as to the seating configuration described at [21] above. He gave evidence that he could see the appellant in the rear vision mirror from where he sat and could also see J and, less clearly, A. He was asked in evidence in chief:[7]
So from your position in the driver's seat, were you able to see [R] or [Z]?---No. The front seats, [A] and [J]'s seats, were too tall to see past to see [R] and [Z].
Okay. All right. Did you ever see anything that - ever see [the appellant] do anything inappropriate on the bus?---No, never.
Okay. Were you able to watch [the appellant] the entire time when you were driving in traffic?---No. But I was looking in the back mirrors regularly when I was at stop signs, traffic lights and whilst talking to the kids.
[7] BAB 65.
In cross-examination D gave the following evidence:[8]
And I think you gave evidence in your evidence-in-chief that you could see [the appellant] when you looked in the rear vision as well. Is that right?---Yes. The way - with the - all the head rests on the bus, the only way to see out of the back window was to have the rear vision looking down the aisle, which had [the appellant] because he's sitting in the aisle, basically. I could see [the appellant].
All right. So just to go through the drop-off, [Z] would be the first drop-off on the way home?---Yes.
Then it would be [R]? ---Yes.
Then [J]?--- And then [A].
…
If [the appellant] had pulled his pants down and exposed his penis for any length of time, do you think you would have seen that?--- I think so. For him to do it, he would have had to stand up. And if I didn't notice that, the kids would have made a - a fuss about it. Whenever [the appellant] moved or anything, they were excited to know what he was doing and asking him why he was doing it.

Other State witnesses

[8] BAB 69 - 70.

J's father gave evidence to the effect that J had not reported anything occurring on the bus that caused him concern and that he had permitted J to be interviewed by police.[9] The investigating officer also gave evidence that he had spoken with A's father, regarding whether A had 'mentioned anything at school, which he hadn't'. A was not interviewed.[10]

The appellant's evidence

[9] BAB 82 - 83.

[10] BAB 87.

The appellant participated in an Electronic Record of Interview on 7 December 2018 (EROI) and also gave evidence at trial. The EROI was adduced as part of the State case.
In his EROI, the appellant denied exposing himself to either R or Z. He was asked:[11]
[11] BAB 220, 231.
[Detective]:Um, the, the allegations have been made regarding certain things. Okay. So during this whole course of the interview, I've, I've offered you the opportunity to tell us why these allegations have been made, but, um you haven’t been able to make a comment regarding it. But an allegation has been made that you've pulled your pants down, ah, explain-, ah, exposing your penis to a child on the bus. What can you tell me about that?
[Appellant]:     I don’t know. I, I haven’t done it at all.
…
[Detective]:     Okay. Have you ever exposed yourself on the bus?
[Appellant]:     No.
…
[Detective]:Okay. Before I ask any more questions, did you wanna make any comment regarding anything we've discussed previously?
[Appellant]:     I just don't understand. I, I mean, I wouldn’t do anything like that to kids.
…
[Detective]:Okay. Can you tell us ho-, why these allegations have come forth?
[Appellant]:     I've no idea.
In his evidence at trial, the appellant again denied exposing his penis to either R or Z.[12] The appellant gave evidence that his family had been struggling with their finances since 2014,[13] and therefore he would not have done anything to jeopardise their family business.[14]

Closing addresses

[12] BAB 102 - 103, 109.

[13] BAB 92.

[14] BAB 103.

In her closing address the prosecutor made submissions in relation to the reliability of both R and Z. Consistent with his evidence the prosecutor submitted that Z said that the appellant had exposed himself 'more than once', 'many times' and that Z had said that it was 'morning and night'.[15] Again, however, the prosecutor did not identify any particular occasion that was alleged to be the commission of the offence.
[15] BAB 127.
Defence counsel submitted in closing that if the appellant had exposed his penis with the frequency alleged by Z and R (i.e. 'every day'), there was a high likelihood that someone else, such as A, J or D, or even someone outside the bus, would have seen it and reacted to it.[16]
[16] BAB 143.

The learned trial judge's reasons

In her Honour's reasons for decision, having dealt with the onus and standard of proof, the learned trial judge observed that the evidence in the case was 'word against word'.[17]
[17] BAB 150.
The learned trial judge summarised R's evidence and identified a number of inconsistencies and improbabilities in her evidence.
Her Honour also noted the importance of the business to the appellant's family and stated:[18]
[Y]et there's no evidence [D] saw [the appellant], stopped [the appellant], or noted any unusual behaviour by [the appellant]. So even if [the appellant] didn’t take this into account, [D] was in a position to do so when in the context of the family business.
[18] BAB 152.
The learned trial judge later turned to summarise Z's evidence.[19] In relation to Z's visually recorded interview, her Honour found that Z's ability to communicate was limited and found that Z was unreliable in terms of plurals and numbers. Her Honour nevertheless found that Z gave 'a continuous and consistent account of the person who showed his wee, being [the appellant] [and] the location of where [the appellant] was when this occurred'.[20]
[19] BAB 153.
[20] BAB 155.
After summarising Z's evidence at trial, the learned trial judge said:[21]
And he was asked whether that was more than once. He said, 'Many times'. And he said it was morning and afternoon. … So that was the evidence of [Z]. Now, [Z] clearly had difficulty when he made the first complaint in relation to numbers and times and occasions. But unlike [R], he is reliable on peripheral matters.
[21] BAB 157.
Her Honour concluded:[22]

So [Z] was consistent in his evidence. I found him to be a truthful witness and I found, having tested the reliability of that evidence, that he is a reliable witness. So for those reasons, I do accept what was said by [Z]. I, of course, then now need to look at what [the appellant] has said. And [the appellant] has denied on evidence on oath that this occurred. But when it comes to opportunity, then clearly, his evidence is consistent with that of [Z]. There is no motive or reason given, but the State is not required to prove a motive.
So I have considered the evidence of [the appellant] and I reject the evidence of [the appellant] and accept the evidence of [Z] in relation to the fact of the penis being exposed. So far as the number of times that occurred, I have a reasonable doubt about what [Z] is saying with numbers, so I'm not in a position to make a finding of fact about whether that happened on a regular occasion or not.
Having reached this conclusion, I then need to have a second look at [R]'s evidence because I'm satisfied beyond reasonable doubt that the penis was shown to [Z] as alleged. But, when I do have that second look, I still have concerns about the reliability of [R]'s evidence, and [R]'s evidence can't be pulled up by its bootstraps. It can't be made any better simply because of my findings in relation to [Z]. So [R] still remains an unreliable witness and I'm not satisfied in relation to that count. So I don't find the charge proven in relation to [R] and that's a verdict of not guilty. But I do find the charge proven in relation to [Z] and that's a verdict of guilty.
[22] BAB 157 - 158.

We turn then to the grounds of appeal.

Ground 1 - adequacy of reasons

Ground 1 is in the following terms:[23]
The learned President made a wrong decision on a question of law by not giving adequate reasons for finding the appellant guilty of indecently dealing with a child under the age of 13 years, or the absence of adequate reasons occasioned a miscarriage of justice.
[23] WAB 6.
The State conceded, in its written submissions, that ground 1 had been established. We accept that the State's concession in that regard was properly made and can briefly state our reasons in that regard.
The general principles in relation to the evaluation of the adequacy of reasons are well established.[24] Necessarily the content and detail of reasons will vary according to the nature of the jurisdiction being exercised and the subject matter of the case.[25] In the context of a criminal trial heard by judge alone, the High Court most recently described the failure to resolve a particular dispute in the following terms:[26]
At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake 'a minute explanation of every step in the reasoning process that leads to the judge's conclusion'. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. In particular:
'Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.'
[24] Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20; (2019) 54 WAR 222 [112] (Quinlan CJ, Murphy & Beech JJA).
[25] DL v The Queen [2018] HCA 26; (2018) 266 CLR 1 (DL v The Queen) [32] (Kiefel CJ, Keane & Edelman JJ).
[26] DL v The Queen [33] (Kiefel CJ, Keane & Edelman JJ) (footnotes omitted).
In the present case, the challenge to the adequacy of the learned trial judge's reasons, which we accept to have been made out, rested principally on the way in which her Honour dealt with the evidence of the appellant.
First, while the learned trial judge stated that she rejected the appellant's evidence (including his denials of offending), her Honour did not provide any reasons for having rejected that evidence. In the context of her Honour's rejection of his evidence the only two matters referred to by the learned trial judge were:
(a)that the appellant's evidence as to the opportunity to have committed the offence was consistent with that of Z; and
(b)that there was no motive or reason for the appellant to have committed the offence.
Neither of these matters was a reason for rejecting the appellant's evidence. The first (opportunity) was, at best, neutral as to the credibility and reliability of his evidence and the second (lack of motive) was in the appellant's favour.
Of course, it may be accepted that, in a case of 'word against word' (as her Honour recognised this case to be), the advantages of the trial judge having seen and heard the witnesses may be such that demeanour and the impression formed by the trial judge as to the credibility and reliability of the witnesses may assume particular importance. In that case, the legitimate use of such impressions and demeanour may be difficult for the trier of fact to articulate. A trial judge is not required, in that regard, to embark on an infinite regression of reasons for reasons.[27]
[27] Child and Adolescent Health Service v Mabior by next friend Kelei [2019] WASCA 151; (2019) 55 WAR 208 (Mabior) [100] (Quinlan CJ, Murphy & Pritchard JJA).
Nevertheless, where a trial judge rejects an accused's evidence in a case such as the present, it is necessary for the trial judge to identify the reasons why they have come to that conclusion, even if only by reference to the apparent strength of the evidence to the contrary and the judge's own impression of the reliability and credibility of the accused. Those reasons need not be elaborate or lengthy but they must reveal the intellectual process that led to the rejection of the accused's evidence.
The learned trial judge's reasons in the present case did not set out that intellectual process, sufficient to enable the appellant to know why he was convicted or to enable the appeal court to determine whether there was appellable error.
Secondly, in relation to the learned trial judge's treatment of the appellant's evidence, her Honour's reasons do not disclose whether, notwithstanding her rejection of his evidence, her Honour considered that it 'might be true' so as to give rise to a reasonable doubt.[28] Of course, in a trial by judge alone it may not be necessary for the trial judge to expressly direct themselves in terms of a Liberato direction.[29] Nevertheless, given that the present case was clearly 'word against word', the absence of reasons for rejecting the appellant's evidence does not enable this Court to ascertain whether her Honour in fact correctly applied the principles deriving from Liberato.
[28] De Silva v The Queen [2019] HCA 48; (2019) 268 CLR 57 [12] (Kiefel CJ, Bell, Gageler & Gordon JJ).
[29] Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 (Liberato), 515 (Brennan J).
Finally, in relation to the adequacy of the learned trial judge's reasons, although of lesser significance, her Honour did not engage with a number of matters raised by the appellant that bore upon the likelihood of the appellant having committed the offence, including the importance of the family business, the fact that D (or the other children) did not observe the offending conduct, and the impracticability of the appellant engaging in that conduct while wearing a seatbelt. While some of those matters were referred to by the learned trial judge (see [43] above), her Honour did not explain whether, or why, she had discounted or rejected their significance.
For these reasons ground 1 has been established.

Ground 2 - unreasonable verdict

Ground 2 provides:[30]
The verdict of guilty, upon which the conviction of indecent dealing was based, was unreasonable or cannot be supported having regard to the evidence.
[30] WAB 6.
The general principles governing this ground are well established. The question for this Court is whether the learned trial judge's finding of guilt was open to her Honour on the whole of the evidence. This Court must review for itself the trial record for the purpose of forming its own assessment of whether or not it was open to her Honour to be satisfied beyond reasonable doubt that the appellant was guilty. Her Honour's finding of guilt is not to be disturbed unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or her Honour has so misdirected herself on a matter of law as to result in a miscarriage of justice.[31]
[31] See generally, Wark v The State of Western Australia [2020] WASCA 19; (2020) 284 A Crim R 449 [302(b)] (Buss P).
The particulars to this ground, and the written submissions in support of it, initially focussed on the fact that the only evidence that the appellant had committed the offence was the evidence of Z, a 7 year old child. The appellant relied upon what he submitted was the unsatisfactory nature of Z's visually recorded interview, in the face of the appellant's denials and the other matters referred to in [58] above.
Based on those matters alone, we would not conclude that the verdict of guilt could be set aside as unreasonable. In particular, the assessment of the credibility of Z's evidence was quintessentially one for the learned trial judge. In the context of the jury's same function in a trial by jury the High Court said in Pell v The Queen:[32]
[G]enerally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box.
[32] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 (Pell v The Queen) [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ).
In that context, the High Court observed that this approach arose by reason of the functional or 'constitutional' demarcation between the province of the jury and the province of the appellate court rather than the practical impediments of the appeal court not being able to see and hear the witnesses at trial.[33] In that context their Honours referred to a number of features of the jury's performance of its functions that contributed to that demarcation, including 'that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses'.[34]
[33] Pell v The Queen [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ).
[34] Pell v The Queen [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ).
Performance of the fact finding function by a trial judge sitting without a jury is, of course, not attended by all of the features of a jury referred to by the High Court in Pell v The Queen. Nevertheless it remains in the nature of the appellate process that, generally, an appellate court will not seek to duplicate the trial judge's function in relation to an assessment of the credibility of witnesses. That process includes the principles of appellate restraint in relation to findings that are likely to have been affected by the trial judge's advantage in having seen and heard the witnesses, in relation to which an appellate court may not interfere unless they are demonstrated to be wrong by 'incontrovertible facts or uncontested testimony', or they are 'glaringly improbable' or 'contrary to compelling inferences'.[35]
[35] Mabior [93] (Qunilan CJ, Murphy & Pritchard JJA).
In the absence of those circumstances, in our view, the Court undertaking its task under s 30(3)(a) of the Criminal Appeals Act 2004 (WA) in a case such as this, proceeds upon the basis that the complainant was assessed by the trial judge to be credible and reliable. The question for the appellate court is whether, upon its examination of the record, by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence, the court is satisfied that the trial judge, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt.[36]
[36] Pell v The Queen [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ); MEN v The State of Western Australia [2020] WASCA 118 (MEN) [403] - [406], [408] (Quinlan CJ & Beech JA).
The matters referred to by the appellant in the present case were not, as the High Court described the evidence in Pell v The Queen, 'a body of evidence that raised lively doubts as to the commission of the offences'.[37] They were matters that could, and should, have been taken into account by the learned trial judge in determining whether she was satisfied beyond reasonable doubt that the appellant was guilty of the offence but (absent any other error) they were not such as to show that the learned trial judge 'must, as distinct from might, have entertained a reasonable doubt about the accused's guilt'.[38]
[37] Pell v The Queen [91] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ).
[38] MEN [403(c)] (Quinlan CJ & Beech JA).
There is, however, an additional matter in the present case. It is a matter adverted to in the appellant's written submissions, but which emerged with greater clarity at the hearing of the appeal. In the present case, as set out above, in convicting the appellant the learned trial judge said that she 'accept[ed] the evidence of [Z] in relation to the fact of the penis being exposed' but '[s]o far as the number of times that occurred, [had] a reasonable doubt about what [Z] [was] saying with numbers'.[39] It is to be recalled, in that regard, that Z's evidence was that the appellant exposed himself every day (or many times), both in the morning and in the afternoon.
[39] See [46] above.
It is, of course, not fatal to a prosecution case if the tribunal of fact does not accept as credible or reliable a complainant's evidence in relation to the frequency of a particular type of event, as long as the tribunal of fact is satisfied beyond reasonable doubt that the particular event relied upon by the prosecution in fact occurred. In addition, it may be that the identification (or particularisation) of the particular event the subject of the charge is more or less certain. It might be, for example, the 'first occasion' in a period, or the 'last occasion' within a period or coincide with some other event identified by the prosecution, as the case may be.
In the present case, however, the State at no point identified the particular incident alleged to be the subject of the charge at all. Nor was the offence alleged to have been an ongoing offence over a period of time (as was the case in MEN). It was a single discrete act. In those circumstances, where, on the learned trial judge's own findings her Honour could not be satisfied as to the reliability of Z's evidence, in its entirety, including as to its frequency, it was not open to conclude beyond reasonable doubt that the appellant had committed the offence on any particular occasion. The State accepted as much at the hearing of the appeal.[40]
[40] Appeal ts 30.
For these reasons, in the particular circumstances of this case, and having regard to the findings that her Honour in fact made, it was not open to her Honour to convict the appellant of the charge in relation to Z.
We would grant leave to appeal on ground 2 and uphold that ground.

Conclusion

The State accepted, at all times, that if ground 2 was upheld the appropriate order is an order for acquittal.
We agree with the State's submission in that regard. In this case, the success of ground 2 arises from a combination of the evidence at trial and, importantly, the absence of particularity as to the act said to constitute the offence. Even if it could be said that, properly particularised, it might have been open to convict the appellant, it would not be appropriate to order a retrial to permit the State to run a different case.
We would allow the appeal, set aside the appellant's conviction and substitute an order for acquittal.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
AK
Principal Associate to the Honourable Chief Justice Quinlan
30 AUGUST 2021