TSP v The State of Western Australia

The appellant was convicted on three counts of sexual offences against a child, his biological daughter, and appealed against the conviction and sentence. The appeal was heard on 17 August 2021 and the court reserved judgment in the conviction appeal. On 24 August 2021, the court made orders in relation to the conviction appeal, relevantly, as follows: leave to appeal on ground 1 was refused, leave to appeal on ground 2 was granted, the appeal was allowed, and the judgments of conviction entered by the trial judge on count 1 and count 2 as amended were set aside. There be a new trial of the appellant on count 1 and count 2 as amended.

Ground 2 of the appeal alleged, in essence, that the trial judge misdirected the jury in relation to the use the jury could make of the evidence of other conduct. The court held that the misdirection involved a miscarriage of justice at the trial, and ground 2 had been made out. However, even though ground 2 had been made out, the court had to consider ground 1 to determine whether the convictions on count 1 and count 2 as amended were unreasonable or could not be supported having regard to the evidence.

In relation to count 1, the court held that a properly directed jury would have been entitled to be satisfied beyond reasonable doubt, upon the basis of the child witness' evidence (apart from her evidence of other conduct), that the appellant had procured the child to engage in sexual behaviour by encouraging her to lick his penis. In relation to count 2 as amended, the court held that a properly directed jury would have been entitled to be satisfied beyond reasonable doubt, upon the basis of the child witness' evidence (apart from her evidence of other conduct), that the appellant had indecently dealt with the child by touching her vagina. The court held that ground 1 had failed.

Accordingly, the court set aside the judgments of conviction entered by the trial judge on count 1 and count 2 as amended, and ordered a new trial of the appellant on count 1 and count 2 as amended.