SNM v The State of Western Australia - [2021] WASCA 164

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SNM -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 164
CORAM:   MAZZA JA
MITCHELL JA
BEECH JA

HEARD:   24 AUGUST 2021
DELIVERED          :   10 SEPTEMBER 2021
FILE NO/S:   CACR 127 of 2020
BETWEEN:   SNM
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   SCOTT DCJ
File Number            :   IND 1625 of 2017

Catchwords:

Criminal law - Offender convicted of one count of sexual penetration of his daughter - Where inadmissible evidence of bad character given by the complainant and her mother - Where judge refused application to discharge the jury - Where judge directed the jury to disregard bad character evidence - Whether judge's refusal to discharge the jury gave rise to a miscarriage of justice - Whether judge erred in failing to specifically identify to the jury the evidence that was to be disregarded

Where additional evidence sought to be adduced on appeal - Whether additional evidence gives rise to a significant possibility that the jury would have acquitted the offender or raises such a doubt as to the conviction that it should be set aside
Whether judge erred in summarising to the jury the complainant's reasons for delay in complaint - Whether judge erred in not directing jury as to a prior inconsistent statement made by complainant

Legislation:

Nil

Result:

Application for extension of time refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	T R Stephenson
Respondent	:	B M Murray & S D Packham

Solicitors:

Appellant	:	T R Stephenson
Respondent	:	Director of Public Prosecutions (WA)

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

Clarke v The State of Western Australia [2018] WASCA 14
DPJB v The State of Western Australia [2010] WASCA 12
Huggins v The State of Western Australia [2018] WASCA 61
Kitto v The State of Western Australia [2019] WASCA 161
RLB v The State of Western Australia [2021] WASCA 73
Taylor v The State of Western Australia [2020] WASCA 113

JUDGMENT OF THE COURT:

Introduction

The appellant appeals against his conviction, after a trial before a judge and jury, of one count of sexual penetration of his daughter.
The appellant advances five grounds of appeal.
Grounds 1 and 2 contend that the complainant and her mother gave inadmissible and prejudicial evidence against the appellant and that the judge's directions to the jury concerning that evidence were insufficient to prevent that evidence giving rise to a miscarriage of justice. Ground 1 also challenges the judge's refusal of the application to discharge the jury.
Grounds 3 and 4 contend that additional evidence sought to be adduced by the appellant in the appeal gives rise to a significant possibility that the jury would have acquitted the appellant or raises such a doubt as to the conviction that the conviction should be set aside. The complainant's evidence at trial was that she was on a bed watching television in the lead‑up to the commission by the appellant of the offence. The television was in the adjoining room, the lounge room. The appellant contends that the additional evidence demonstrates that, contrary to the evidence given by the complainant and her mother, at the time of the offence there were internal walls, referred to as a nib walls, between the room in which the complainant says she was sexually penetrated and the room in which the television was located, and that one of these nib walls obscured the view of the television of a person on the bed.
Ground 5 contends that the judge erred in his charge to the jury in various respects.
For the reasons that follow, none of the grounds of appeal have been established.
It is convenient to begin with a broad overview of the parties' cases at trial.

The State case

At trial, the appellant was charged with two offences. He was acquitted of count 1, which alleged that, on a date unknown between 1 September 1998 and 30 June 2001, he indecently dealt with the complainant by procuring her to touch his penis. It is not necessary to detail the parties' cases on count 1.
The State case concerning count 2, in respect of which the appellant was convicted, may be summarised as follows.
The complainant was the second of three daughters of the appellant and the complainant's mother, referred to as DS.
The offence took place in a house in a Perth suburb that the appellant and complainant's mother were renting (the house).
Late one night around 2003 to 2004, the appellant entered the complainant's bedroom, woke her up and directed her to watch TV with him. The appellant directed the complainant to lay on his bed, which was located in the dining room, and she did so. The complainant had an unobstructed view of the TV, which was in the adjoining room, from her position on the bed.
The complainant was wearing a shirt and long pyjama bottoms. The complainant was lying on the side of the bed near the edge that was closest to the TV and the appellant was laying behind her.
The TV was on and it was playing a program which showed adults engaged in a form of sexual activity. The appellant changed the channel to a cartoon program which showed an animated image of a naked woman.
The appellant moved very close behind the complainant and made an unusual noise in her ear, which she had heard him make on previous occasions.
The appellant began to touch the front of the complainant's pyjamas and she pretended to be asleep. The appellant put his hand under the complainant's shirt, inside her pyjama pants and then inside her underwear. The appellant put one of his fingers inside the complainant's vagina for approximately five seconds.
The complainant did not tell anyone about this incident. In 2014, the complainant had a difficult conversation with the son of a family friend, JS, during which she became upset. In 2016, the complainant spoke to JS's father, RS, during the course of which she made a disclosure that caused RS to suggest that they report the matter to the police.
The complainant's evidence as to count 2 was as follows:
(1)On the night of the incident the subject of count 2, when the appellant woke the complainant up in her bedroom and told her to watch TV, the complainant went with him because 'when I've seen him in states like that he's - that's when he's been most violent and I just - I just did it'.[1]
(2)The complainant followed the appellant to the bed in what was used by the complainant's parents as a bedroom, but what she referred to as the dining room.
(3)When asked what she did when she got into the room, the complainant said she sat on the appellant's bed where he had laid down 'because you can see the TV from their bed'.[2] The television was on at that time.
(4)The appellant moved closer to her on the bed, as a result of which she moved closer to the edge of the bed, to get away from him.[3] The appellant was changing the channels on the television. The complainant saw naked people having sex.[4] They watched that program for 10 or 20 minutes.[5]
(5)The complainant felt very uncomfortable, not wanting to watch what she was watching and not wanting to be there. Then the appellant changed the channel to a 'weird cartoon' where no‑one was speaking and everyone was just grunting.[6]
(6)The complainant felt the appellant start to touch her. She closed her eyes and pretended to be asleep. The complainant was wearing flannelette pyjama bottoms and a T‑shirt.
(7)The appellant put his hand down the complainant's pants, touching her vagina.[7] The appellant was making a 'weird noise', 'like a hissing, salivary, blowing kind of noise' in the complainant's ear during the incident the subject of count 2. She had heard the noise previously when the appellant and her were fighting and he would pin her down on the floor. He would make the noise in her ear.[8]
(8)The complainant continued to pretend to be asleep.[9]
[1] ts 65.
[2] ts 65.
[3] ts 67.
[4] ts 67.
[5] ts 68.
[6] ts 69.
[7] ts 70.
[8] ts 70 - 71.
[9] ts 72.

The defence case

The defence case at trial was that neither of the alleged offences occurred. The appellant gave evidence, denying both allegations.
The defence pointed to the delay in any complaint by the complainant, submitting that, had the alleged offence occurred, it would be expected that the complainant would have told her mother or sisters. Further, if she had not told them in the short term after the incident, it would certainly have been expected she would tell them after the appellant and her mother had separated.
The defence suggested that the complainant had exaggerated how bad her relationship was with the appellant in order to bolster her explanation for the delay in making a complaint.
As to count 2, the defence case was that there were internal walls, referred to as nib walls, between the lounge and dining rooms which meant that, from her position on the bed, the complainant would have been unable to have watched the television. The appellant gave evidence to that effect and tendered photographs which, although taken after the appellant was charged, were said to reflect the position at the time of the offence.

Grounds of appeal

Grounds 1 and 2 assert that a substantial miscarriage of justice arose from the reception of inadmissible evidence of bad character, including sexual misconduct and violence, given by the complainant and her mother, resulting in prejudice to the appellant.
Ground 1 concerns only the complainant's evidence and challenges the judge's refusal, on the appellant's application, to discharge the jury. The ground contends that the evidence gave rise to prejudice that could not be cured by a direction to the jury. In the alternative, the appellant challenges the judge's direction given after the complainant's evidence on the basis that the judge did not adequately identify the evidence that was to be disregarded.
Ground 2, which concern the inadmissible evidence given by the complainant and also her mother, challenges the judge's direction in summing up on a similar basis. It contends that the jury should have been told the specific evidence that they were required to disregard and that the failure to do so gave rise to a miscarriage of justice.
Grounds 3 and 4 contend that there was fresh evidence, alternatively new evidence, as to the existence of internal walls which would have, at least partially, obstructed the view of the television from the bed in the dining room so that, in light of all the admissible evidence, there is a significant possibility that the jury would have acquitted the appellant.
Ground 5 contends that the judge erred in his direction to the jury in three respects:
(a)as already noted, in directing the jury that certain evidence of the complainant was to be disregarded, the judge failed to identify the evidence that was to be disregarded;
(b)in his direction as to the delay in complaint, the judge failed to accurately summarise the complainant's evidence as to the reasons for her delay;
(c)the judge failed to give a direction to the jury about a prior inconsistent statement made by the complainant and failed to direct the jury as to the legal principles relevant to the use to which the jury could put an inconsistent statement in the course of their deliberations.

Extension of time

The appellant was convicted on 31 May 2018. He did not file an appeal notice until well over two years later, on 8 September 2020. Thus, the appellant requires an extension of the time to appeal.
The application for an extension of time and the application for leave to appeal were referred to the hearing of the appeal.[10]
[10] Order of Mazza JA, 8 November 2020.
As the appellant relies primarily on the merit of his proposed appeal to sustain the grant of an extension of time, it is convenient to begin by evaluating the merits of the grounds of appeal.
We begin with grounds 1 and 2. We will outline the relevant evidence, and the course of the trial, so far as those matters relate to grounds 1 and 2, before coming to the appellant's submissions in support of them.

Grounds 1 and 2: miscarriage of justice from inadmissible evidence?

The complainant's evidence

Relevantly to grounds 1 and 2, the complainant's evidence included the following.

Examination‑in‑chief

The complainant was 23 years old at the time she gave evidence.[11]
[11] ts 49.
After describing the event the subject of count 1, the complainant was asked whether she told her mother what had occurred. She said that she had not done so, and that this was because she was fearful of what might happen to her.[12]
[12] ts 56.
When asked how well she felt she got along with her dad growing up, the complainant answered '[n]ot at all'.[13]
[13] ts 57.
The complainant 'never' felt like she had a good relationship with her dad.[14]
[14] ts 57.
The complainant was disciplined by the appellant growing up. When asked which houses she remembered that occurring in, she answered '[a]ll - all houses all the time'.[15] The appellant gave her directions and she 'mostly always' did what he told her but sometimes she resisted, and she resisted more as she got older.[16]
[15] ts 57.
[16] ts 57 - 58.
When asked why some directions gave her concern, she stated 'I felt like he was punishing me for doing the right thing'.[17] An example was an occasion when he screamed at her for no reason while she was doing homework on the computer.[18] When asked how this made her feel, she replied '[i]t just made me feel like he was confusing me. Like, he was punishing me for doing the right thing and he was changing my perception of what right and wrong was'.[19]
[17] ts 58.
[18] ts 58.
[19] ts 58.
The prosecutor asked the complainant whether there was anything that the appellant said which made her scared, leading to the following exchange:[20]
You - you've already given evidence of an incident that made you feel scared. Were - were there any things that your father ever said to you that made you feel scared?---Yeah, all the time. He always said he was going to kill me, he always - - -
Well, could - then can you give an - can you remember an - an - an example of - of - of that?---Yeah. Yeah, I can remember - - -
If you can - I'm - I'm asking you to provide a bit of context?---Okay. So if he was arguing with my mum or being violent with anyone else in the house and then he could hear me walking up the hallway or maybe watch me stand in front of my mum or something, he would say, like 'Piss off or I'll kill you', or like, 'Go to your room or I'll kill you', or - - -
And how did those kind of comments make you feel?---I felt like he was going to kill me. (emphasis added)
[20] ts 58.
The complainant had arguments with the appellant. She described the nature of their arguments as follows:[21]
And - and those arguments, did they - were - were they always at the same frequency or did they become more frequent? Do you understand my question?---Yeah. So we would have a verbal argument and if I didn't do what he said or if I didn't shut up and agree with him it would - it would turn into a violent argument and a physical argument
…
… do you remember?---Just an example?
Yes?---I remember having an argument with him in the kitchen. I remember him sort of like tackling me to the ground. I remember him holding me on the ground.
How?---He would - when I was younger he would get my hands with one of his hands and my ankles with one of his hands and he could hold both my - my wrists with his one hand because it was bigger that both my wrists and both my ankles with one hand and he would just pin me down to the - to the ground and just hold me while he was screaming at me.
[21] ts 63.
When asked how this made her feel, she responded 'I - I didn't know what he was going to do. I - I sometimes he would strangle me and I'd be scared how he was going to strangle me to death'.[22]
[22] ts 63.
When asked whether there was a usual time that she went to bed, she replied that there was a usual time but that 'if we had a fight or something or if he just felt like it, he would tell me to go to bed at whatever'.[23]
[23] ts 64.
When asked how often she would be awake in the middle of the night not in her room, she said that this occurred only when the appellant would tell her to be awake, or when he would argue with her mother.[24]
[24] ts 64.
The prosecutor asked the complainant why she did not tell her mother about the incident the subject of count 2 the following day. She responded as follows:[25]
Because he - I was - because I was - I was scared of him. Because - because if I did something he didn't want he just told me he was going to kill me. He - - -
[25] ts 81.
When asked why she did not tell her mother about the incident the subject of count 2 after her mother and father separated, when she was 15 years old, the complainant responded as follows:[26]
I didn't feel like they were emotionally separated. And even after they split up I was still living in fear of him. I was still scared. And I was worried that if I told my mum she wouldn't believe me or even if she did believe I felt like it was too soon to tell her because I was scared of being - like - emotionally rejected.

Cross-examination

[26] ts 83.

The complainant confirmed her evidence that she did not have a good relationship with the appellant.[27] She denied the suggestion that the appellant held her down only once, saying that he held her down more than once.[28] Sometimes he would just hold her down, other times he would make noises in her ear.
[27] ts 88.
[28] ts 89.
When asked about her evidence that the appellant's discipline of her was harsh, she stated 'I felt he was disciplining me for things he shouldn't be and it was harsh'.[29]
[29] ts 91.
Defence counsel asked the complainant about a passage in her statement which said '[t]his caused me to act out and I was always angry'. The following exchange occurred:[30]
Acted out in the sense of acted out in bad behaviour sometimes?---Bad - what do you mean by bad behaviour?
Well - well, when you say act - well:
This caused me to act out and I was always angry.
?---Yep.
When you mean - when you say act out do you mean like act out in bad behaviour?---When I say - mean act out, I mean if I saw him strangling my mother I would run out there and help. (emphasis added)
[30] ts 92 - 93
When the appellant said to the complainant that he was going to 'kill her' he did so because '[she] was doing something he didn't like'.[31]
[31] ts 93.
Defence counsel took the complainant to a part of her statement where she described the appellant making threats to 'kill her'. The following exchange occurred:[32]
Okay. So you agree that you said that. So in the context of saying going to bed - - -?---Yep.
- - - he would say, 'Go to bed or I'll kill you'?---Yes.
And was that sometimes it would like late at night and he'd want you in bed?---No.
All right?---That - do you want me to explain it?
If you - if you want to clarify?---Yeah. That would be a time when I could hear my mum screaming or him raping my mum and I would get up.
[32] ts 94.
Immediately thereafter, the exchange continued:
Well, what I'll suggest to you is when he said things like 'I'll kill you', it was in the context of words being said in a frustrated manner but not the literal meaning of he will kill you?---He will - - -
Do you understand what I'm saying?---I understand what you're saying. It was in the context of a frustrating manner but he had told me that it's easy to kill someone.
All right?‑‑‑And planted in my head that he'd already done it.
Okay. So - so he - he'd planted in your head that he'd already killed someone?‑‑‑Yes.
And how old were you when he planted this idea in your head?‑‑‑That was when I was about 12.
All right. So I suggest that's not true?‑‑‑That - I can recall - recall that time, the conversation we had. (emphasis added)

As a child, the complainant did not want to spend any time with her father.[33]
[33] ts 113.
Defence counsel asked the complainant about her reluctance to tell RS, a family friend, about the appellant's sexual acts towards her.[34] The following exchange occurred:[35]
All right. So what I'm suggesting to you is that [RS] was - [RS] was - you were reluctant to speak to him about it?---I was reluctant to speak to anyone about it. I was reluctant to - I'd never said it out loud before.
And did he put any kind of pressure on you to speak---Yeah.
Do you feel?---Yeah.
Okay. And what I'm suggesting to you is your reluctance to speak about is because it didn't happen---No. My reluctance to speak about it is because I had never said the words out loud. I didn't know if that was something someone could go to gaol for. I didn't know if that was classed as rape. I was watching worse things happening to my mum and he got away with it. (emphasis added)
[34] ts 120 - 122.
[35] ts 121 - 122.
In 2013, the complainant's sister asked her to move into her house where the appellant was also living.[36] The complainant was asked whether she borrowed the appellant's car for her friend(s) to use, while she was living at the house. She said that her friend borrowed the appellant's car and the appellant asked the friend to go get him some weed.[37] That was not the only time the friend borrowed the appellant's car.[38]
[36] ts 124, 132 - 133.
[37] ts 124.
[38] ts 125.
While the complainant was staying at her sister's house with the appellant, her sister was barely there as she was working up north.[39] The complainant always had a friend stay over because she was concerned about being with her father on her own at night time.[40]
[39] ts 125.
[40] ts 125 - 127.
Defence counsel asked the complainant about her concerns about staying in her sister's house with her father, leading to the following exchange:[41]
All right. Because I'd suggest to you that if you did have concerns with your father you would have gone to stay elsewhere?---Incorrect. I lived with my father because I was concerned about my sister. And she stressed that to me before I moved in, and that's why she asked me to move in.
But your evidence is that your sister was hardly there?---That's correct. But on the weeks she was back, he was doing - abusing her for money - - -
[41] ts 127.
The complainant did not want to go back to living at her mother's house because she had a disagreement about the issues to do with her father.[42]
[42] ts 128.
On the night the complainant left her sister's house, she had an argument with her father.[43] Her father kicked her out of the house and he tried to throw a punch at the complainant but her sister grabbed his arm.[44] The complainant stated 'I didn't leave on my own accord. He was being violent with me. I was scared'.[45]

The appellant's application for the discharge of the jury

[43] ts 133.

[44] ts 134.

[45] ts 134.

At the start of the second day, after the conclusion of the complainant's evidence the previous day, defence counsel raised concerns over parts of the complainant's evidence where she described the appellant's actions towards her mother or someone else in the house.[46] Defence counsel referred to the following parts of her evidence:
(1)The complainant's reference to the circumstances where the appellant was arguing with her mum or 'being violent with anyone else in the house'.[47]
(2)The complainant's statement that 'if I saw him strangling my mother I would run out there and help'.[48]
(3)The complainant's reference to the appellant raping her mother.[49]
(4)The complainant's statement that 'I was watching worse things happening to my mum and he got away with it'.[50]
[46] ts 139.
[47] ts 58, see [39] above.
[48] ts 93, see [48] above.
[49] ts 94, see [50] above.
[50] ts 122, see [53] above.
Counsel submitted that the evidence - that the appellant had been violent with the mother and with others and had sexually assaulted the mother - was so prejudicial that a direction to the jury would be insufficient to avoid prejudice, and that the jury should be discharged and the trial aborted.[51]
[51] ts 143.
In the course of an exchange with the trial judge, defence counsel acknowledged that the complainant's state of mind that she was scared of her father was relevant to the prosecution's case regarding delay, but submitted that allegations of violence towards other family members and any specific allegations of violence towards her were not part of the prosecution case.[52]
[52] ts 141.
The application to discharge the jury was opposed by the prosecutor, who observed that the State would not oppose a direction that the jury disregard the evidence in question.
After a short adjournment, the judge refused the application to discharge the jury. The judge said that he proposed to give the jury directions as to how they were able to use and, most especially, how they were not able to use the evidence in question, so as to avoid any impermissible reasoning on the part of the jury.[53] The judge foreshadowed a direction that the jury could not use the evidence to reason that the appellant was a person of bad character who was likely to have committed either of the offences and that to do so would be impermissible.
[53] ts 151.
In response, defence counsel indicated a preference for a simpler direction - that the jury disregard the complainant's evidence as to what the appellant had done to other people on other occasions as it was not relevant.[54] Counsel expressed a concern that the more detailed direction proposed by the judge might lead the jury to give that evidence a degree of scrutiny or consideration, when the preferable course was to simply instruct the jury to ignore the evidence.[55]
[54] ts 151 - 152.
[55] ts 152.
The judge invited defence counsel's response to a proposed direction to the effect that the complainant gave evidence as to acts committed by the appellant towards the complainant's mother and that such evidence was entirely irrelevant. Counsel indicated that such a direction was appropriate, together with a direction to the jury to disregard that evidence in their deliberations.[56]
[56] ts 153.
The judge indicated that he would so direct. The judge then inquired of defence counsel whether she sought a direction to the jury in relation to impermissible reasoning. Before the judge had completed the inquiry, defence counsel suggested that such further direction might overcomplicate matters and that, once the jury had been told to disregard the evidence, they would do so.[57] Counsel confirmed that she did not want the judge to give an impermissible reasoning direction because to do so might give the evidence more prominence than might otherwise be the case.[58]
[57] ts 153.
[58] ts 154.
The judge then read his proposed direction to the jury for counsel's response. Counsel indicated that they were content with the direction.[59] The judge sought confirmation from defence counsel that she did not want the judge to refer to the specific evidence in question. Defence counsel confirmed that the judge was correct in that regard.[60]
[59] ts 155 - 156.
[60] ts 156.
The judge gave the following direction to the jury:[61]
You will recall that [the complainant] gave evidence, both in examination-in-chief by [the prosecutor] and cross-examination by [defence counsel], with respect to certain conduct by - that she said occurred on the part of [the appellant] towards her mother. You'll remember that. They were matters that were referred by her during the course of her evidence.
My direction to you is as follows. That evidence is entirely irrelevant in your consideration as to whether you are satisfied beyond reasonable doubt that either offence against [the complainant] was committed by [the appellant] and you are to entirely disregard that evidence, it not being relevant to your consideration. So make a note of it. I'll repeat it in my final directions. Thank you.

The complainant's mother's evidence

[61] ts 158 - 159.

The complainant's mother, DS, gave the following evidence relevant to grounds 1 and 2.

Examination-in-chief

DS described the appellant's consumption of alcohol as excessive.[62] When the appellant consumed a lot of alcohol, he was happy until someone upset him or if something upset him 'then it changed very quickly and then there was a point of no return once it changed'.[63]
[62] ts 178 - 179.
[63] ts 179.
The complainant was more outspoken to the appellant than her other daughters.[64]
[64] ts 185.
When the complainant was growing up, it did not appear that she had a close relationship with the appellant. The mother never saw affectionate or loving behaviour between them.[65] The appellant was not loving towards the complainant and he antagonised her.[66] The appellant would use an 'aggressive, fearing voice'. The mother stated that 'in the female aspect he would refer to you as not a very worthy thing'.[67]
[65] ts 185.
[66] ts 186.
[67] ts 186.
When asked whether the complainant and the appellant would have arguments, DS responded as follows:[68]
I did witness them both starting like - I thought his discipline wasn't like my discipline. If you've been drinking and you're abusive that's not the time you discipline a child.
Just focussing for a moment on [the house], did you ever observe the two of them involved in physical altercations inside that house?---More kind of pushing and shoving and if she didn't move straightaway he would physically move her.
[68] ts 187.
The prosecutor asked whether she slept in any bed other than the bed in the dining room, to which she answered yes. The following exchanged occurred:[69]
All right? Why---Fear and - - -
Well - - -?--- - - - sometimes I just felt like we all had to - the girls and I had to be in the same bed or sometimes I - - -
[69] ts 191.
Defence counsel objected to this evidence on the basis of relevance. The prosecutor said, in response, that he did not press the evidence.[70]
[70] ts 191.
In discussion in the absence of the jury, the judge and counsel both agreed that the evidence was not relevant because the complainant's explanation for delay was to do solely with the appellant's attitude towards her, and not to do with how the appellant acted towards her mother.[71] The judge observed that care needed to be taken because if the jury considered any of the conduct of the appellant towards DS, then he would need to give a direction that the evidence cannot be taken into account, absent it being something that affected delay in the complainant making a complaint.[72]

Cross-examination

[71] ts 196 - 198.

[72] ts 198.

In cross-examination, DS said that, when the complainant was 3 years of age, she got very angry at the appellant over something and the appellant threw a glass at a door.[73] The relationship between the complainant and the appellant was poor and was not loving.[74] They both 'fired up' at each other in different circumstances. Their relationship got much worse as the complainant got older.[75]

The judge's further discussions with counsel

[73] ts 209 - 210.

[74] ts 210.

[75] ts 212.

On the third day of the trial, after the conclusion of the defence case, the judge again raised concerns with defence counsel over the possibility of the jury undertaking impermissible reasoning with respect to the appellant's conduct towards DS.[76] The judge said that he was seeking to ascertain defence counsel's forensic position with respect to the four pieces of evidence of the complainant, referred to above at [59], and DS's evidence as to her fear of the appellant,[77] referred to above at [74].
[76] ts 314.
[77] ts 191.
The judge raised with defence counsel the following alternatives: (i) not to draw undue attention to the impugned evidence or (ii) a direction that there ought be no propensity reasoning and that the jury cannot use the evidence if it does not relate to the issue of delay in complaint.[78]
[78] ts 316.
Defence counsel confirmed that she was content with the direction given the previous day and she expressed concern that the second option proposed by the judge might 'highlight the evidence, obviously to [the appellant's] detriment' and that it might be a 'complex mental process' for the jury to go through.[79] Defence counsel said that she was content for his Honour to repeat the direction above at [68] and to tell the jury to also disregard DS's evidence as to her fear of the appellant.
[79] ts 316.
The judge and defence counsel agreed that in the direction regarding DS's impugned evidence, his Honour would read what was said by DS.[80]

Direction as to complainant's and DS's evidence

[80] ts 319 - 320.

In his summing up to the jury, the judge gave the following direction in relation to the complainant's and DS's evidence:[81]
[Y]ou recall yesterday I gave you a direction that evidence given by [the complainant], with respect to certain conduct said by her to have occurred on the part of [the appellant], towards her mother, was both irrelevant to the matters which fall for your determination in respect of each of these counts and was to be entirely disregarded by you.
That is of course, a direction you must abide by. Yesterday afternoon [DS] gave evidence, during the course of which she was asked whether she slept in any other bed than the matrimonial bed at [the house].
And she replied that she did. She was then asked why she did and she said words to the effect of the following, 'Fear and sometimes I just felt like the girls and I had to be in the same bed.'
Now, [DS]'s evidence - expressing a feeling that she may have felt, is likewise irrelevant to the matters which are to be determined by you in this case. And is to be entirely disregarded by you.
Your task is, of course, to determine whether you are satisfied beyond reasonable doubt that a charge in indictment which you are - which you're considering has been proved.
And that charge of course, is a charge relating to [the complainant]. And so that too is a direction I give you which you must follow.

Appellant's submissions

[81] ts 324 - 325.

In support of ground 1, and his challenge to the judge's refusal to discharge the jury, the appellant submits that the cumulative effect of the bad character evidence given by the complainant concerning the appellant was such that no direction by the trial judge could cure the prejudice to the appellant.[82] Alternatively, and raising issues that are also relevant to ground 2, the appellant submits that the judge's direction after the complainant's evidence was inadequate in that it failed to identify with specificity the evidence that was to be disregarded.
[82] Appellant's submissions [77].
In support of ground 1, the appellant relies on the evidence on which trial counsel had relied, summarised at [59] above. The appellant also points to an aspect of the complainant's evidence set out at [51] above.[83] In this regard, the appellant emphasises the complainant's evidence, at p 94 of the transcript, that the appellant had given the complainant the impression that it was easy to kill someone and he had done it before.
[83] Although the appellant's written submissions cast a wider net as to the evidence encompassed by ground 1, in oral submissions the appellant appropriately confined the evidence relevant to ground 1: appeal ts 22 ‑ 23, 26 ‑ 27.
The appellant contends that the heart of his submissions on grounds 1 and 2 is the judge's failure, in his direction after the completion of the complainant's evidence and in his direction in his summing up, to refer specifically to the passages of the complainant's evidence that the jury were required to disregard.[84] The appellant submits that it was necessary that the judge's directions to the jury clearly articulated the evidence which the jury were required to disregard.[85] Neither direction did so.
[84] Appellant's submissions [85].
[85] Appellant's submissions [71] - [73].
The result, the appellant submits, is that the jury would have been largely left to assume which pieces of evidence the judge was referring to when directing the jury to disregard certain evidence of the complainant and DS. Moreover, the judge's direction was confined to evidence of acts done by the appellant to the mother, and so did not encompass the evidence of killing someone referred to in [84] above. Such evidence, of an admission of murder, is 'incendiary'.[86] The appellant submits that there is therefore a substantial risk that the jury may have had regard to inadmissible evidence in reaching their verdicts.[87]

Disposition

[86] Appeal ts 20, 22.

[87] Appellant's submissions [79].

We begin by identifying the evidence properly the subject of the judge's directions about disregarding irrelevant evidence.
We do not accept that any such direction should have encompassed the evidence set out at [51] above - namely the evidence that the appellant gave the complainant the impression that he had already killed someone. That is so for several reasons.
First, the evidence was relevant as it bore on the reasons for the delay in the making of the complaint by the complainant. The evidence was part of the context in which the jury were to evaluate the complainant's evidence that the appellant had told her to go to bed or he would kill her.
Secondly, contrary to the appellant's assertion,[88] this part of the complainant's evidence was not non‑responsive. Rather, this aspect of the complainant's evidence was her response to counsel's suggestion that when the appellant said things such as 'I'll kill you', it was said in a context of being spoken in a frustrated manner and did not have or convey a literal meaning.
[88] Appeal ts 21 - 22.
Thirdly, in our view, there is no realistic prospect that the jury would have taken this evidence as an admission by the appellant of murder, incendiary or otherwise. The complainant's evidence was that when she was about 12 years old, the appellant told her it was easy to kill someone and 'planted in [her] head' that he had already done so. If the jury accepted that evidence, they would have taken it as a statement made by a father to a 12‑year‑old daughter as a means of exerting power and control, and of instilling fear. It is fanciful to suppose that the jury would have taken the appellant to have been admitting to have committed a murder.
Fourthly, trial counsel's submissions to the judge did not encompass this evidence. In this regard, the appellant pointed to trial counsel's submission about allegations of violence towards other family members. That was evidently a reference to the evidence outlined at [59(1)] above. It could not fairly have been understood as a reference to the evidence of the appellant having (implied that he had) killed somebody, which was general in its terms and which did not refer to members of the appellant's family.
For these reasons, the judge's directions to the jury to ignore irrelevant evidence were properly confined to the four pieces of evidence outlined at [59] above. There was no occasion for it to encompass the evidence in [51] above.
In a case where inadmissible evidence is adduced at trial, the position is as explained by this court in Kitto v The State of Western Australia.[89]
[89] Kitto v The State of Western Australia [2019] WASCA 161, [66] ‑ [69], applied in Taylor v The State of Western Australia [2020] WASCA 113 [71] - [72] and in RLB v The State of Western Australia [2021] WASCA 73 [149].
While there is room for the view that some of the evidence referred to in [59] above was relevant to the complainant's delay in making a complaint, the appeal can be resolved on the assumed basis, favourable to the appellant, that these pieces of evidence were irrelevant and so inadmissible. Thus, the question is whether, taking into account the directions given by the trial judge, there was a miscarriage of justice arising from receipt of the evidence. That turns upon whether, in this court's assessment, there was a real and perceptible risk that the impugned evidence might lead the jury to reason impermissibly or might otherwise result in an unfair trial.

There is no sound basis in this case to depart from the fundamental tenet of criminal trials - that jurors understand and obey the trial judge's directions.[90] Counsel for the appellant did not suggest otherwise.[91]
[90] See Taylor v The State of Western Australia [78] and cases there referred to.
[91] Appeal ts 30.
The essence of the appellant's complaint, reflected in grounds 1 and 2 and their particulars, is that the judge was required, but failed, to identify the particular pieces of evidence that the jury were bound to disregard. That contention is contrary to the manner in which counsel for the appellant conducted the defence case at the trial. At the judge's request, defence counsel twice confirmed that she was content with the terms of the direction proposed by the judge.[92] Thereafter, counsel specifically confirmed that she did not want the judge to refer to the specific evidence the subject of the direction.[93] Trial counsel's position is readily capable of being seen as reflecting a rational forensic judgment. As trial counsel indicated to the judge, specific identification of each piece of irrelevant evidence would have served to remind the jury, and potentially thereby to reinforce in their minds, the prejudicial evidence which they were required to disregard.
[92] ts 153, 155 - 156.
[93] ts 156.
For these reasons, no miscarriage of justice arose from the judge's refusal to discharge the jury or from the failure of the judge, in his initial direction to the jury, to identify the specific evidence that the jury was required to disregard. Nor, for those reasons and the reasons below, did any miscarriage of justice arise from the judge's failure to identify the specific pieces of evidence that were to be disregarded by the jury.
Ground 2 contends that the judge's direction to the jury, in the course of the summing up, concerning the same evidence, and some additional evidence, was inadequate.
Insofar as ground 2 concerns the evidence the subject of ground 1, for reasons corresponding to those already given, there is no merit in the ground. In addition to what we have already said, prior to closing addresses, the judge again raised with counsel the question of the terms of the direction to be given concerning this evidence. Counsel again informed the judge that she did not want the judge to refer to the specific evidence.[94]
[94] ts 316.
The appellant's written submissions concerning ground 2 also rely on the evidence given by the complainant's mother set out at [74]. However, in oral submissions, the appellant ultimately accepted[95] that the judge dealt appropriately and adequately with that evidence in his summing up, identifying the specific evidence and informing the jury that the evidence was irrelevant and was to be entirely disregarded by them.[96]
[95] Appeal ts 29.
[96] ts 324 - 325, set out at [82] above.
Finally, in relation to ground 2, the appellant also relies on the complainant's evidence summarised at [54] ‑ [56] above.
Whether that evidence gave rise to prejudice requiring a specific direction from the judge is to be evaluated in the context of the evidence at trial as a whole. The evidence at trial included evidence from the appellant that he had smoked pot, had given it up, and smoked it again after he was charged with the offence.[97] In our view, in the overall scheme of the trial, evidence that the appellant had used cannabis and had taken financial advantage of one of his daughters was of no real importance. As was submitted by the respondent, such evidence fades into insignificance in the context of the subject matter of the charges against the appellant. That conclusion is supported and reinforced by the fact that, at trial, counsel for the appellant made no request for any direction concerning this evidence.
[97] ts 299.
For these reasons, there is no merit in grounds 1 and 2.
That brings us to grounds 3 and 4, which relate to additional evidence sought to be adduced on appeal, and which are conveniently dealt with together. The significance of the additional evidence is to be evaluated in light of the evidence and cases at trial. We begin by outlining relevant aspects of the evidence at trial.

Grounds 3 and 4: is a miscarriage of justice established by the additional evidence?

The complainant's evidence

As set out at [18] above, in her description of the circumstances of the offence, the complainant said that she could see the television, which she referred to as an 'unobstructed' view in cross-examination.[98]
[98] ts 97.
The following sketch by the complainant was tendered:[99]
[99] Exhibit 2, AB 4.
In the complainant's sketch of the property, she marked the area between the lounge and dining room in her sketch as 'opening'. She said that the lines next to 'opening' did not represent walls.[100] In this regard, her evidence was as follows:[101]
Now, can you see that between that bed and the lounge room there's - - - ?---Yes.
- - - you've written the word, 'Opening' - - -?---Yes.
- - - and that there is a - on each side of the word, 'Opening', there is - - -?---Yeah.
- - - a line?‑‑‑Yes.
Can - can you just explain how wide was the opening and what those - that line on either side of the word is to represent?‑‑‑So the - there was no wall there. I've just written - I should have written 'Opening' across the whole thing but I just wrote the lines to continue, that is the opening. There is - - -
So there - there was - there was no wall on that side?‑‑‑No. Not that I remember.
[100] ts 111.
[101] ts 74.
In the course of cross‑examination, she was asked about the precise location of the television in the corner. She said she was saying the television was in the corner, but she did not remember exactly how the television was.[102] Her evidence was that the television was in plain view of the bed and that she could see the whole television, but she did not know exactly where the television was and she was not asked to draw a precise plan on the day.[103]
[102] ts 95.
[103] ts 96.
She said there was no wall between the lounge and the dining room.[104] Defence counsel suggested to her that there was a short wall at each end of the opening between the lounge room and the dining room. The complainant replied:[105]
I don't remember that. I just remember seeing an unobstructed view of the TV.
[104] ts 96.
[105] ts 97.
When questioned further about there being a wall, and the precise position of her head when lying on the bed, the complainant reiterated that she 'had full view of the TV' when she was lying down.[106]
[106] ts 98.
When defence counsel put to the complainant that she could not have seen the television from the bed unobstructed because of the presence of the wall, the complainant replied as follows:[107]
I know I saw the TV. If you're saying my head was 40 cm from the wall and the wall came out 60 cm obviously that leaves me 20 cm, but I don't know if that wall was there. I don't think a wall was there. I could see the TV from the bed. … So if the wall came out 60 cm I must have been 70 cm or 80 from the bed or I must have been lying down in the middle of the bed. I can't remember my exact position.
[107] ts 98.
When counsel put to the complainant that she had confirmed in her evidence that her position was with her head where the pillows were, the complainant responded:[108]
Sorry, I can't confirm my exact positioning on the bed, how many centimetres or metres I was from the wall.
[108] ts 98.
The cross‑examination continued by reference to some photographs which subsequently became exhibits 4.1 ‑ 4.5.[109]
[109] ts 102 - 111.
In the course of that, defence counsel again put to the complainant that she could not see the whole of the television unobstructed from the position as shown in the photograph which subsequently became exhibit 4.2. The complainant responded in the following terms:[110]
Well, no, I remember seeing the whole TV. And we don't exactly know how far it was from the side wall. So I remember seeing the whole TV. … So regardless of this - these pictures, I saw the whole TV.
[110] ts 104.
At the conclusion of this part of the cross‑examination, the complainant said as follows:[111]
[W]hat I'm suggesting is that there was two walls at either end of that room between the dining room and the lounge and that they were short walls of around 60 cm at either end?‑‑‑If they were there, I can't argue it. If we'd know they - they were there. But we don't know they were there and they might have been there if - if you have evidence they were there, but I could see the TV.
… what I'm suggesting to you is if your head was say, 40 cm from that wall, you couldn't have seen the television from that location?‑‑‑But I could see the television so my head must not have been 40 cm then.

The complainant's mother's evidence

[111] ts 111.

DS gave evidence that she could lie on the bed in the dining room and watch television from the bed. She said it was 'all open'.[112] The following sketch by DS was tendered:[113]
[112] ts 190.
[113] Exhibit 9, AB 10.
DS said that the line next to 'open' in the sketch did not represent a wall between the lounge room and dining room.[114] She said the television was in the corner of the lounge room in a corner unit.[115] She said, every now and then, the television would be moved a little within the unit to improve the view.[116]
[114] ts 193 - 194.
[115] ts 203, 216.
[116] ts 217 - 218.
In cross‑examination, DS denied that there was a small wall at either end of the space between the dining room and the lounge room. She said that the area between the rooms was completely open and that there was no nib wall.[117]
[117] ts 219.
When the photographs which subsequently became exhibits 4.1 ‑ 4.5 were shown to her, DS adamantly denied that there was a small 600 mm wall that was part of an archway between the dining room and the lounge room.[118] It was put to her that if she was lying with her head on the pillow of the queen‑sized bed in the dining room, it would not have been possible to have an unobstructed view through to the television. DS denied that this was so, saying that you had a good view because there was no nib wall and that there never was an archway between the dining and the lounge - it was open. She said she used to 'scroll down' the bed, perhaps 40 cm, for a better view, but you could see the television 'because it's straight down one wall'.[119]

The appellant's evidence

[118] ts 228.

[119] ts 228 - 229.

The appellant gave extensive evidence concerning what he called the nib walls between the lounge and the room in which he and the complainant's mother slept, which he referred to as their bedroom. His evidence may be summarised as follows.
He attended at the property about a week before the trial. He knocked on the door and asked the occupier if he could take photographs. He was given permission and went inside and took the photographs which became exhibits 4.1 ‑ 4.4. He also produced a photograph which he printed from the internet, showing the kitchen of the property with a date stamp of November 2006. That photograph became exhibit 4.5.
The nib walls shown in the photographs were there when he lived in the house. He said that there had been some changes, including that the floors had been changed. There were new tabletops and cupboards in the kitchen and the walls had been changed from being wallpapered to plastered.[120]
[120] ts 252.
The appellant said that the nib walls held the roof up.[121]
[121] ts 253 - 254.
When he took the photograph that is exhibit 4.2, he was about 400 to 500 mm from the wall. He measured the nib wall. It was 600 mm in length.[122]
[122] ts 263.
The appellant was cross‑examined about the photograph of the kitchen and what changes had been made to the kitchen.[123] The prosecutor put to the appellant that the nib wall shown in exhibit 4.1 was not there when he lived there, which the appellant denied.[124] The prosecutor asked questions of the appellant as to the viability of building a stud wall to delineate between the two rooms.[125] The appellant said that he remembered, from when he lived at the house, that the nib walls were made of brick.[126]
[123] ts 301 - 304.
[124] ts 304.
[125] ts 305 - 306.
[126] ts 306.
In re‑examination, the appellant said there were two reasons why the nib wall was there when he lived there. First, it was a load‑bearing wall. Secondly, it was there to break the two rooms up.[127]

The parties' submissions at trial

[127] ts 312.

Contrary to the appellant's submissions,[128] the nib wall did not receive substantial attention in the prosecutor's closing address. The prosecutor simply told the jury that it was entirely a matter for them how they deliberate about whether there was a nib wall at the relevant time and, if they had doubt about the existence of the nib wall, whether it had any bearing on their deliberations as to the complainant's evidence that, from where she was on the bed, she could see the television.[129]
[128] Appeal ts 48.
[129] Closing addresses, page 5.
The nib wall was one of three main themes of defence counsel's closing address, the other two being the question of delay and the relationships between the people living in the appellant's house. Defence counsel submitted that there was evidence of the presence of a nib wall which meant that it was not possible for the complainant to have seen the television from the position she described on the bed.[130] Counsel referred to the appellant's evidence, and to the photographs taken by him of the walls. Defence counsel emphasised that the appellant's evidence was firm that the walls were there when he lived there.[131] Defence counsel concluded this aspect of her address by suggesting to the jury that this evidence cast doubt on the complainant's evidence that she could see the television at the time of the event which, in turn, cast doubt on whether the incident occurred at all.[132]

The appellant's proposed additional evidence

[130] Closing addresses, page 10.

[131] Closing addresses, pages 10 - 11.

[132] Closing addresses, page 11.

The additional evidence relied on by the appellant includes the following.
The current co‑owner of the relevant property, Ms Van Der Loo, purchased the property in January 2007. She says that the walls shown in the photographs taken by the appellant were in position when she and the other co-owner purchased the property in January 2007. She said no alterations have been made to the internal walls of the house in the period from the time they purchased it until May 2018. She also attaches photographs of the demolition of the walls, showing that they were brick.
The affidavit of Ms Melinda Schaper is to the following effect. She is an architect and is a friend of the owners of the property. She prepared the plans for renovation that included a demolition plan in 2018, which was completed and available to submit to council in about May 2018. She also prepared an earlier plan showing only the existing walls at the time she measured the house. She did the measurements some time between 2014 and 2017. Both plans show the nib walls.
The affidavit of Mr John Beaton, an employee of the City of Stirling, is to the following effect. The City of Stirling received plans on 25 May 2018. He said that, according to the City's records, no person applied to the City to make changes to the property between 1973 and 2018. For reasons not known to him, copies of the original 1973 floor plans do not appear in the City's records for the property.
The appellant also proposes to adduce additional evidence as to steps taken in preparation for the trial in support of his contention that the above evidence is fresh, rather than new, evidence. We will refer to this evidence later in these reasons.

The appellant's submissions

The appellant submits that, given that both the complainant and her mother were 'adamant' in their evidence that the nib wall did not exist, the additional evidence as to the existence of the nib wall is significant. The issues for the jury turned substantially on the credibility of the prosecution witnesses. The appellant characterises the complainant's evidence and the mother's evidence as 'clear, unequivocal evidence that the walls were never there'.[133] The additional evidence shows that, in this respect, the prosecution witnesses were 'simply wrong'. That, the appellant submitted, is a powerful tool for the defence. This evidence could have provided a basis for the jury to doubt the reliability or credibility of both the complainant and her mother.[134]
[133] Appeal ts 41.
[134] Appellant's submissions [100] - [101]; appeal ts 43.
Further, the appellant submits that the complainant changed her evidence as to her position on the bed when she was confronted with the existence of the internal nib walls. The appellant submits that this can be explained by the need for the complainant to account for her claim to have been able to see the television that was in the adjoining room. Had the existence of the nib wall been demonstrated at trial, the jury would then have needed to consider whether the complainant's change in evidence was occurring in order to accommodate the new information, namely the existence of the nib wall.[135]
[135] Appellant's submissions [103].
Consequently, the appellant submits, there is a significant possibility that a jury acting reasonably may have acquitted the appellant of count 2 if this fresh evidence had been adduced.[136] Alternatively, if the additional evidence is properly characterised as new, the appellant submits that if the evidence had been before the jury it was sufficient to raise a doubt such that he should have been acquitted.[137]

Disposition

[136] Appellant's submissions [105].

[137] Appellant's submissions [106].

We are content to proceed on the basis, favourable to the appellant, that the additional evidence on which he relies is fresh and not merely new evidence. We do so on the basis that it was reasonable for the appellant's trial counsel to proceed, as she evidently did, on the understanding that there would be no issue at trial that the nib walls shown in the 2018 photographs were present at the time count 2 was alleged to have occurred. That is because the sketch drawn by the complainant, reproduced at [107] above, showed two lines in the place where the two nib walls are shown in the 2018 photographs, with the word 'opening' written in the space in between. In light of defence counsel's instructions from the appellant, it was reasonable for her to have understood the lines as depicting the nib walls. In the circumstances, reasonable diligence on the part of the appellant and his legal representatives did not require them to obtain evidence to establish that the nib walls were present at a time earlier than when the 2018 photographs were taken. The approach of Mitchell JA in Clarke v The State of Western Australia[138] might be thought to provide some analogy.
[138] Clarke v The State of Western Australia [2018] WASCA 14 [722] ‑ [736].
Accordingly, the central question is whether there is a significant possibility that, on the basis of all the admissible evidence, in other words the fresh evidence and the evidence given at trial, a jury acting reasonably would have acquitted the appellant.[139]
[139] DPJB v The State of Western Australia [2010] WASCA 12 [60] - [66]; Huggins v The State of Western Australia [2018] WASCA 61 [388] ‑ [397].
For the reasons that follow, we are not persuaded that, on the whole of the evidence, there was a significant possibility that a jury, acting reasonably, would have acquitted the appellant.
First, what is established by the additional evidence must be properly understood. Contrary to many of the appellant's submissions, the additional evidence does not establish that the nib walls shown in the 2018 photographs were present at the time of the alleged commission of count 2, namely in 2003 or 2004. As explained below, properly understood and in the context of the evidence at trial, the additional evidence does not radically alter the evidentiary landscape that was established at trial.

At trial, the 2018 photographs showed the presence of nib walls at the time those photographs were taken, namely in May 2018. The appellant gave evidence that the nib walls shown in those photographs were there while he lived at the property, thus encompassing the time of the alleged commission of count 2. The complainant gave evidence that she did not think that the nib walls were there while she lived there. The complainant's mother gave evidence in unequivocal terms that the walls were not part of the premises when she lived there.
The additional evidence establishes that the nib walls had been in the property since 2007, when the current owners purchased it. However, that is as far as the additional evidence goes - it says nothing about the position before 2007. Moreover, it appears to be common ground that some alterations to the property were made between the time when the appellant and his family lived there and the time when the photographs were taken. At the least, there were changes to the flooring, the walls had been changed from being wallpaper to plastered, and there were some changes made to the kitchen. The current landowner's evidence does not suggest that the current owners undertook those alterations.
The appellant points to the statement from Mr Beaton, that, according to the City's records, no application was made to it for changes to the property between 1973 and 2018. In our view, that evidence does not advance the appellant's position very far. The City does not have copies of the 1973 floor plans. In any event, while the construction of the nib walls would appear to require development approval, it cannot safely be inferred from the absence of a record of approval that no such construction occurred. The construction of a small internal wall of that kind without the obtaining of approval cannot be seen to be an unlikely prospect.
Thus, in summary, the effect of the additional evidence was to move the established existence of the nib walls shown in the 2018 photographs to a point in time closer to the time of the commission of the offence. However, the commission of the offence remained at least three years earlier than the time at which it was shown, by the additional evidence and the photographs, that the nib walls existed.
We note that the additional evidence also establishes that the nib walls were brick, a matter implicitly disputed by the prosecutor in cross‑examination of the appellant.
Nothing in the additional evidence supports the appellant's assertion, in his evidence at trial, that the nib walls were load‑bearing and 'hold the roof up'.[140] Indeed, some of the evidence as to demolition of the nib walls in 2018 or 2019 might be thought to undermine the appellant's evidence in this regard.
[140] ts 253 - 254.
Secondly, and in any event, taking into account the complainant's evidence as a whole, even if it is assumed that the additional evidence establishes that the nib walls were present at the time of the offence, the complainant's evidence at trial as to the commission of the offence is not thereby undermined or substantially adversely affected. Contrary to the appellant's submissions, the complainant did not give clear and unequivocal evidence that the walls were not there. Even the passage on which the appellant relies demonstrates that this is so in that, when it was put to her that she was saying there was no wall in the area marked 'opening' on her sketch she said, '[n]o. Not that I remember'.[141] Similarly, when defence counsel again suggested to her that there was a short wall at each end of the opening between the lounge room and the dining room, the complainant replied,[142] 'I don't remember that. I just remember seeing an unobstructed view of the TV'.
[141] ts 74.
[142] ts 97.
The material parts of the complainant's evidence are set out at [106] ‑ [116] above. In our view, the complainant's evidence can be summarised as follows. She was clear and definite in saying that she could see the television with an unobstructed view. She was not sure of the precise location of the television in relation to the corner of the lounge room and where precisely her head was positioned on the bed. She also did not remember the nib wall being there. However, she accepted the possibility that it was there, but said that that did not change the fact that, when she was lying on the bed, in whatever position she was, she could see the television.
The view was open to the jury, and remains open, that, understood in this manner, the complainant's evidence sits comfortably with what might be expected of a person recounting an experience of being sexually abused as a child many years ago. In essence, the complainant remembered the physical event and what she was doing at the time it occurred - watching the television - but did not have a clear memory of more peripheral details such as the precise location of the bed and where on the bed she was lying.
Understood in this manner, the complainant's evidence is consistent with, and is thus not undermined by, the proposition that the nib walls as shown in the 2018 photographs were present at the time of the offence. Consistently with this, contrary to the appellant's submissions,[143] the nib wall did not receive substantial attention in the prosecutor's closing address - see [128] above.
[143] Appeal ts 48.
The credibility and reliability of the complainant's evidence that the appellant engaged in the conduct constituting the offence was the central and critical question for the jury. For the reasons we have given, neither the credibility nor the reliability of the complainant's evidence would be adversely affected, to any significant degree, if it were established that the nib walls existed at the time of the offence.
We accept that the complainant's mother gave evidence, expressed in definite terms, that there were no nib walls between the two rooms. If it were established, as a fact, that the nib walls were there when she was living there with the appellant and the complainant, she would thereby have been demonstrated to be wrong in respect of something which she had expressed with a high degree of confidence. However, the significance of that is to be evaluated having regard to the limited significance of the mother's evidence for the prosecution case as a whole.
Bearing in mind what was and was not in issue at trial, in the end the mother's evidence had very little significance for the State case on count 2. Her evidence as to the sleeping arrangements at the property - who slept where - was not controversial. Nor was her evidence that the appellant and the complainant had a poor relationship: counsel for the appellant put to the mother that he and the complainant had a poor relationship[144] and that their relationship got worse as the complainant got older.[145]
[144] ts 210.
[145] ts 212.
The very limited significant of the mother's evidence for the State case is indicated by the very limited reference to it in the prosecutor's closing address to the jury. The prosecutor emphasised, at the outset of his address, that the State case rested on the complainant's evidence.[146] He then took the jury through the complainant's evidence as to each count in considerable detail, making submissions as to the believability of that evidence.[147] The prosecutor then made only very brief mention of the mother's evidence.[148]
[146] Closing addresses, page 2.
[147] Closing addresses, pages 4 - 8.
[148] Closing addresses, pages 8 - 9.
For these reasons, the adverse effect, on the credibility and reliability of the mother's evidence, of a conclusion that the nib walls were there while she lived on the property has very limited significance. Any such adverse effect does not support a conclusion that, on the whole of the evidence, there was a significant possibility that a jury, acting reasonably, would have acquitted the appellant.
For the above reasons, we are not persuaded that the additional evidence establishes that there is a significant possibility that, on the basis of all the admissible evidence, a jury acting reasonably would have acquitted the appellant. Nor are we satisfied that the additional evidence otherwise establishes a miscarriage of justice.
For these reasons, grounds 3 and 4 are not established.

Ground 5: errors in the judge's summing up?

Ground 5 asserts three errors in the judge's summing up.
The first, by particular (A), simply mirrors the complaints made under the rubric of grounds 1 and 2, so nothing more needs to be said about it.
Particular (B) asserts that the judge's summary of the complainant's evidence as to why she did not complain earlier was inaccurate and went beyond what had been said by the complainant and beyond what had been asserted by the State.
The judge addressed the question of delay in the making of a complaint in the following terms:[149]
Now, you know that there was a significant delay in the complaint that was made by [the complainant]. She did not make any complaint about these specific matters until she spoke with [RS] in March 2016. The inference sought to be drawn by … defence counsel as to any delay in complaint is that the events about which [the complainant] made allegations against [the appellant] did not in truth happen because if they had happened, she would have complained immediately or sooner than she did. It is for you to weigh the issue of delay for its significance.
In judging … [the complainant's] credibility, and the truthfulness of her evidence, you are entitled to know how she acted at the relevant time and also whether or not she acted in a way which you might expect a child in her position to act after the events of which she has given evidence. Delay in making complaint to a person who you might think a complaint would be made is a relevant matter. It is something for you to consider.
A person such as [the complainant] might have good reasons for not complaining earlier than she did. Bearing that in mind, it's for you to determine what degree of significance you give to the delay in complaining. You need to take into account the surrounding circumstances at the relevant time as you may find them.
Her evidence was that she did not make an earlier complaint with respect to the matters about which these two counts refer because she was scared of her father because she said that when she did something he didn't want, he often said that he would kill her and he was angry.
Even after they separated when she was about 15, she understood that her parents still had contact with each other and some emotional attachment. She didn't consider that her mother would believe her and she was scared of being emotionally rejected by her.
It was not until [RS] pressed her to tell him what had happened with [the appellant] that she gave him details resulting in her being taken by him to the police station on that day and even then she was reluctant as he pressed her to make a complaint. She said that she had never spoken a word about it and didn't know whether in - the most recent incident was classed as rape.
The State says that these are reasons why she made no immediate complaint and, ladies and gentlemen, that is a matter for you to judge. Delay in complaining does not necessarily mean that the allegation that the offences were committed is false. There may be good reasons why a victim of offences such as those alleged in these counts may hesitate in making a complaint. (emphasis added)
[149] ts 333 - 334.
The appellant submits that the italicised portion of this direction was not a proper summary of the complainant's evidence.[150] The appellant submits that the complainant's evidence was much more specific, being the explanation given in the passage set out at [53] above. The appellant further submits that it is that explanation to which the prosecutor referred in the closing address to the jury.[151]
[150] Appellant's submissions [117].
[151] Appellant's submissions [117] - [118].
There is no substance in these submissions. The judge's summary of the complainant's explanation for not complaining earlier in relation to count 2 was an accurate reflection of the complainant's evidence‑in‑chief. It reflected the evidence she gave at ts 81 and ts 83, as set out in [44] and [45] above. The fact that the prosecutor referred to some other aspects of the complainant's evidence in the course of closing did not preclude the judge from referring to this evidence. The complaint in particular (B) of ground 5 is not established.
Particular (C) complains that the judge failed to give the jury a direction about the prior inconsistent statement made by the complainant and failed to direct the jury, as a matter of law, as to the use to which juries can put inconsistent statements in the process of fact finding.
In support of particular (C), the appellant alleges that the evidence of a witness, JS, established that the complainant had made a prior inconsistent statement as to what the appellant was said by the complainant to have done to her.[152] The appellant contends that the judge should have directed the jury that, if they considered that the complainant had made an inconsistent statement to JS, they should take that into account in the course of evaluating the credibility of the complainant.[153]
[152] Appellant's submissions [122].
[153] Appellant's submissions [123].
No miscarriage of justice arises from the judge's failure to give a specific direction to the effect set out in [166] above. There is no perceptible risk that the jury would not have understood that the complainant's credibility was the central issue in the case and that the making of any inconsistent statement was a matter they could take into account in their assessment of the complainant's credibility. In her closing address to the jury, defence counsel suggested that the complainant's inconsistent statement to JS as to what the appellant was said to have done bore adversely on her credibility. The judge specifically reminded the jury of that submission in the course of his Honour's outline of the defence submissions concerning ground 2.
Nothing in the judge's direction suggested that the jury were not entitled to take into account any inconsistent statement they found the complainant had made in their evaluation of the complainant's credibility. In our view, there was no perceptible risk that the jury might have thought that they could not do so, so that no more specific direction was required.
For these reasons, particular (C) of ground 5 is not established.
For the above reasons, ground 5 fails.

Conclusion

For the reasons set out above, in our view, none of the grounds of appeal has merit. Consequently, it is not appropriate to extend the time to appeal.
We would make orders in the following terms:
(1)the application for an extension of time within which to appeal is refused;
(2)the appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JR
Research Associate to the Honourable Justice Beech
10 SEPTEMBER 2021