Visser v The State of Western Australia [No 2]
[2025] WASCA 74
•16 MAY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: VISSER -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2025] WASCA 74
CORAM: MAZZA JA
HALL JA
ARCHER JA
HEARD: 17 FEBRUARY 2025
DELIVERED : 16 MAY 2025
FILE NO/S: CACR 16 of 2024
BETWEEN: NICHOLAS VISSER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GILLAN DCJ
File Number : IND 1261 of 2022
Catchwords:
Criminal law - Appeal against conviction - Child sex offences - Where appellant the teacher of the complainant - Where prosecution case critically depended on complainant's evidence - Whether miscarriage of justice occasioned by the prosecutor focusing in closing submissions on unlikelihood that complainant had given a false account - Whether trial judge erred in directions to the jury on the assessment of credibility and reliability - Whether trial judge erred by inviting the jury to take into account an irrelevant matter in the assessment of the complainant's credibility - Whether trial judge misstated the evidence and whether a miscarriage of justice thereby occasioned - Whether verdicts unreasonable or unsupported by the evidence
Legislation:
Criminal Code (WA), s 204B(2)(a)(ii), s 321(2), s 321(4), s 322(2), s 322(4)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | D O'Leary SC & F P Merenda |
| Respondent | : | G N Beggs |
Solicitors:
| Appellant | : | The Defence Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Brawn v The King [2025] HCA 20
DKA v The State of Western Australia [2019] WASCA 123
Harman v The State of Western Australia [2004] WASCA 230; (2004) 29 WAR 380
Loh v The State of Western Australia [No 2] [2024] WASCA 166
Malho v The State of Western Australia [2010] WASCA 41
Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1
R v ZT [2025] HCA 9; (2025) 99 ALJR 676
Sandy v The State of Western Australia [2024] WASCA 109
Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319
JUDGMENT OF THE COURT:
Between 2015 and 2020, the appellant was a teacher at a suburban high school. The complainant was a female student at the school from 2017. The complainant alleged that, between late 2019 and August 2020, the appellant repeatedly sent her indecent communications, touched her sexually and forced her to touch him. The contact offences were alleged to have taken place on school grounds during, and after, school hours.
The appellant was charged as follows:
1.On a date unknown between 1 December 2019 and 31 December 2019, the appellant used electronic communication with intent to expose the complainant, a person under the age of 16 years, to indecent matter, namely photographs of his penis, contrary to s 204B(2)(a)(ii) of the Criminal Code (WA) (Code).
2.On a date unknown between 1 January 2020 and 31 January 2020, the appellant used electronic communication with intent to expose the complainant, a person under the age of 16 years, to indecent matter, namely videos of him masturbating his penis, contrary to s 204B(2)(a)(ii) of the Code.
3.On a date unknown between 9 March 2020 and 10 April 2020, the appellant indecently dealt with the complainant, a child of or over the age of 13 years and under the age of 16 years, by touching her buttocks, and that the complainant was under his care, supervision or authority, contrary to s 321(4) of the Code.
4.On a date unknown between 27 April 2020 and 31 May 2020, the appellant indecently dealt with the complainant, a child of or over the age of 13 years and under the age of 16 years, by touching her breasts, and that the complainant was under his care, supervision or authority, contrary to s 321(4) of the Code.
5.On the same date as count 4, the appellant indecently dealt with the complainant, a child of or over age of 13 years and under the age of 16 years, by touching her buttocks, and that the complainant was under his care, supervision or authority, contrary to s 321(4) of the Code.
6.On the same date as count 4, the appellant sexually penetrated the complainant, a child of or over age of 13 years and under the age of 16 years, by penetrating her vagina with his finger, and that the complainant was under his care, supervision or authority, contrary to s 321(2) of the Code.
7.On the same date as count 4, the appellant indecently dealt with the complainant, a child of or over age of 13 years and under the age of 16 years, by placing her hand on his penis, and that the complainant was under his care, supervision or authority, contrary to s 321(4) of the Code.
8.On a date unknown between 27 April 2020 and 4 July 2020, the appellant indecently dealt with the complainant, a child of or over the age of 16 years, who was then under his care, supervision or authority, by touching her buttocks, contrary to s 322(4) of the Code.
9.On 15 June 2020, the appellant indecently dealt with the complainant, a child of or over the age of 16 years, who was then under his care, supervision or authority, by placing her hand on his penis, contrary to s 322(4) of the Code.
10.On a date unknown between 19 July 2020 and 25 August 2020, the appellant indecently dealt with the complainant, a child of or over the age of 16 years, who was then under his care, supervision or authority, by placing her hand inside his shorts, contrary to s 322(4) of the Code.
11.On a further date unknown between 19 July 2020 and 25 August 2020, the appellant indecently dealt with the complainant, a child of or over the age of 16 years, who was then under his care, supervision or authority, by kissing her on the mouth, contrary to s 322(4) of the Code.
12.On the same date as count 11, the appellant indecently dealt with the complainant, a child of or over the age of 16 years, who was then under his care, supervision or authority, by touching her breasts, contrary to s 322(4) of the Code.
13.On the same date as count 11, the appellant indecently dealt with the complainant, a child of or over the age of 16 years, who was then under his care, supervision or authority, by touching her buttocks, contrary to s 322(4) of the Code.
14.On the same date as count 11, the appellant sexually penetrated the complainant, a child of or over the age of 16 years, who was then under his care, supervision or authority, by penetrating her vagina with his fingers, contrary to s 322(2) of the Code.
The appellant was convicted after a trial of all counts on the indictment. On 5 February 2024, the appellant was sentenced to a total effective sentence of 4 years 6 months' immediate imprisonment. That sentence is the subject of a pending State appeal. The appellant now appeals against his conviction.
There are five grounds of appeal. Ground 1 alleges that a miscarriage of justice was occasioned by reason of an excessive focus by the prosecutor in closing submissions on the unlikelihood that the complainant had given a false account. Ground 2 alleges that the trial judge erred in law, or alternatively, a miscarriage of justice was occasioned, when giving directions to the jury in relation to their assessment of the credibility and reliability of the complainant. Ground 3 alleges that the trial judge erred in law, or alternatively, a miscarriage of justice was occasioned, by inviting, or permitting, the jury to take into account an irrelevant matter when considering why the complainant may have denied any impropriety in an interview conducted by the Department of Education. Ground 4 alleges that a miscarriage of justice was occasioned by the trial judge's misstatement, or inaccurate summary, of the complainant's evidence concerning count 3. Ground 5 alleges that the verdicts of the jury are unreasonable or unsupported by the evidence.
For the reasons that follow, we would refuse leave in respect of all of the grounds and dismiss the appeal.
The prosecution case
The prosecution case relied critically on the evidence of the complainant. That evidence consisted of a child witness interview conducted on 8 September 2021 and pre‑recorded evidence recorded on 1 September 2023. The prosecution case can be summarised as follows.
The appellant was a teacher at a suburban high school from 2015. The complainant was a student at that school from 2017. The relevant events took place between December 2019 and August 2020. At that time, the complainant was aged between 15 and 16 years old.[1]
[1] ts 194 - 195.
The appellant was one of the complainant's teachers in years 7, 9 and 10. The prosecution case was that, towards the end of the complainant's year 9 (2019) and up until August 2020, the appellant repeatedly sent the complainant indecent communications and repeatedly touched her sexually and forced her to touch him. The contact incidents occurred on school grounds, during and after school hours.[2]
[2] ts 195.
In the early hours of the morning of 23 November 2019, the appellant sent a friend request to the complainant on Snapchat. He stated in a message accompanying the friend request that he knew he should not be adding her as a friend. After confirming the identity of the appellant, the complainant communicated with him on Snapchat. At this stage, the communications were confined to how the complainant was doing at school.[3]
[3] ts 195, 197.
The complainant told her best friends, CE and LF, about the Snapchat exchange. CE then told her mother, who then notified the principal of the school. On 6 December 2019, the appellant met with the school principal and told her, in effect, that the friend request sent to the complainant had been a mistake and that he had been attempting to contact another person. He said that he had immediately deleted the complainant after realising his error, apologised to her, and checked to see if she was okay.[4]
[4] ts 197.
In the Christmas holiday period between 2019 and 2020, the appellant again contacted the complainant on Snapchat, both through his own account, and through other accounts in other names. One of those other accounts was later changed to the name of 'Mason'. The appellant communicated with the complainant about what she was doing, and also sent her pictures, including indecent pictures and videos of himself.[5]
[5] ts 197 - 198.
In December 2019, the appellant sent images of himself, whilst he was in his pool, in his backyard, in his lounge room, and also of his penis. The complainant asked why he had sent the pictures, and the appellant responded by asking if she liked them and whether she wanted more. She told him that she did not want more. Despite that, the appellant sent further indecent pictures, to which she did not respond (count 1).[6]
[6] ts 197 - 198; BGAB 46.
In late January 2020, the appellant sent the complainant a video of himself masturbating (count 2). Although the appellant's face was not visible in the video, he repeatedly said the complainant's name as he masturbated, and she recognised his voice. The complainant did not respond to the video. The appellant continued to send her indecent videos of this nature until August 2020. There were also videos that were not indecent, such as a video of the appellant singing whilst driving his car.[7]
[7] ts 198 - 199.
When school resumed in February 2020, the appellant started using a Snapchat account in the name of 'MattHicks21' to contact her, although he would also use another account in the name of 'Aaron Jones'. Over the period spanning from the end of term 1 until sometime in term 3 (August 2020), the appellant repeatedly communicated with the complainant on Snapchat and asked her to meet with him at various places on school grounds. The complainant complied with these requests and when she met with the appellant, he would sexually touch her.[8]
[8] ts 200.
The first occasion of touching was before the end of term 1, just before students were sent home early for holidays because of the COVID‑19 virus outbreak. The appellant came to the complainant's class and asked her teacher if he could borrow some students to help him assemble some new mountain bikes that had been delivered to the school. The complainant and another girl were the chosen helpers. The appellant asked the other girl to test one of the bikes by taking it for a ride. Whilst the other girl was absent, the appellant asked the complainant to go to him, and when she did, he hugged her. When the other girl returned, the appellant told her to go back to class and asked the complainant to stay and help clean up. As the complainant was assisting to pack up rubbish, the appellant touched her bottom by swiping his hand across it and squeezing her buttocks (count 3).[9]
[9] BGAB 58 ‑ 62; pre-recorded witness evidence, 1 September 2023, 87 ‑ 88; ts 199 ‑ 200.
The complainant said that over the course of term 2 and term 3, the appellant touched her on the vagina, bottom and chest on multiple occasions. In term 2 specifically, it was occurring on almost a weekly basis. On one occasion in term 2, the appellant sent the complainant a message on Snapchat asking her to come to the 'small gym' at the school. When she went there, the appellant was in a storeroom inside the building, and he hugged her and told her that he missed her. He unclipped her bra and moved his hand under her shirt and bra, and touched her on the breasts (count 4). He told the complainant to turn around, and then put his hands down her shorts and squeezed her buttocks (count 5). He then moved his hand to her vagina and used a finger to penetrate her vagina and rub her clitoris (count 6). He told her that she turned him on and that he wanted her to touch him. He took her hand and placed it on his penis over his clothing. He then moved her hand under his shorts and placed it on his penis, while he moved her hand up and down (count 7). The complainant said that she needed to catch the bus and that she would miss it if she did not leave. The appellant told her he did not want her to leave and that he wished she could stay with him longer. He hugged her and she left.[10]
[10] BGAB 64 - 74.
Similar conduct occurred throughout term 2, on approximately a weekly basis. On one occasion the complainant refused to meet the appellant. During her next class with him, he embarrassed her in front of the class by directing her to tie his shoelaces, requiring her to fetch him a chair and requiring her to do push‑ups.[11]
[11] ts 202.
On a school day in term 2, the complainant and her class returned from an excursion with the appellant. The appellant asked the complainant to assist with bringing life jackets back to the physical education office. When she was in the storage shed, the appellant used a key code on the door, causing it to close. He then approached the complainant and squeezed her buttocks over her clothing (count 8).[12]
[12] ts 202.
On 14 June 2020, the complainant had her 16th birthday. The appellant contacted her and asked her whether she wanted 'a chocolate or something' as a gift. Although the complainant said she did not want anything, the appellant maintained that he would like to get her something. The following day the appellant asked if he could see her in the morning at the storeroom in the small gym because he could not see her after school that day. The appellant said he wanted to wish her happy birthday and that he had another idea for a birthday gift. When she arrived, the appellant gave the complainant a hug and placed her hand over his penis, both on the outside and inside of his clothing (count 9).[13]
[13] ts 202; BGAB 89.
Two further incidents occurred during term 3 of the 2020 school year. On the first occasion, the complainant was playing handball with CE, when the appellant confiscated the balls. He told the complainant she could collect them from him after school. When she attended to collect the balls, the appellant placed one of the balls inside his shorts and said that she could only have it if she grabbed it. When she refused, he took her hand and forced it inside his shorts. She resisted and said that, whilst doing so, her fingers may have touched his penis (count 10). She then grabbed the ball and left after saying she had to go.[14]
[14] ts 203; BGAB 77 - 82.
The second incident in term 3 occurred when the appellant messaged the complainant on Snapchat and asked her to meet him in the storeroom. She attended because she feared that he might embarrass her in front of the class again if she did not. When she went into the storeroom, the appellant hugged her and asked about her day. He kissed her on the neck and mouth, placing his tongue in her mouth (count 11). He unclipped her bra and touched her breasts underneath her clothing (count 12). He put his hand down her shorts and squeezed her buttocks (count 13). He then moved his hand and inserted his fingers into her vagina and rubbed her clitoris (count 14).[15]
[15] ts 204.
In August 2020, the Department of Education undertook an investigation into the conduct of the appellant. The complainant was interviewed on 31 August 2020 as part of that investigation. In that interview, the complainant said that the first Snapchat message had been received at 3.00 am. When she asked the appellant why he had sent it, he said that it was his birthday the day before, and she assumed that that meant he was 'drunk or something'. She agreed that the appellant had 'unfriended' her in the following week and that he said he was sorry for adding her.[16] The complainant said that nothing inappropriate had occurred between her and the appellant, apart from the first Snapchat message. She gave a 'pinkie promise' that this was the absolute truth.[17]
[16] Pre-recorded witness evidence, 1 September 2023, 106 ‑ 107.
[17] Pre-recorded witness evidence, 1 September 2023, 109.
The complainant received a Snapchat text message from the appellant during the 2020 Christmas holidays, after the appellant had been asked to leave the school. The complainant identified a screenshot of the Snapchat text message, which had been sent from an account in the name of 'Mason' (the Mason text message - Exhibit 9). In the message, the appellant said that he did not regret their time together, but did regret that what had happened had hurt the complainant. He said that he missed seeing the appellant and wished things were different.[18]
[18] Pre-recorded witness evidence, 1 September 2023, 72; BGAB 32.
The complainant said that at the time of the Department of Education interview, she was covering for the appellant and did not know what else to say. She accepted that when asked the question in the interview she had denied that she was covering for the appellant. She said that before attending the Department of Education interview the appellant had told her to 'deny, deny, deny'. She said that she went into the interview scared as to what would happen if she told the truth. She also felt that she could not talk about everything that had happened to her.[19]
[19] Pre-recorded witness evidence, 1 September 2023, 110, 114 ‑ 115.
Grounds of appeal
The grounds of appeal are as follows (without particulars):[20]
1.The emphasis in the prosecutor's closing submissions upon the asserted unlikelihood of the complainant concocting numerous false allegations against the appellant, and the asserted unlikelihood that a person motivated to lie would concoct allegations of the kind made by the complainant, occasioned a miscarriage of justice (which was not cured by the trial judge's directions to the jury).
2.The trial judge erred in law, or alternatively, occasioned a miscarriage of justice, when giving directions to the jury in relation to their assessment of credibility and reliability of witnesses.
3.The trial judge erred in law, or alternatively occasioned a miscarriage of justice, by inviting or permitting the jury to consider Exhibit 9 (the Mason text message) when considering the reasons why the complainant told the Department of Education investigators on 31 August 2020 that the appellant had never behaved inappropriately towards her.
4.A miscarriage of justice was occasioned by the trial judge's misstatement, or otherwise inaccurate summary, of the complainant's evidence concerning count 3.
5.The verdict of the jury was unreasonable or was otherwise unsupported by the evidence.
[20] WAB 7 - 10.
Ground 1 - the prosecutor's closing address
The prosecutor told the jury that the charges were based on the evidence of the complainant, and that the jury would have to assess the truthfulness, accuracy and reliability of that evidence in deciding whether the appellant did what the complainant said that he did. The prosecutor then turned to the Department of Education investigation, and reminded the jury that, in her pre‑recorded evidence, the complainant said that she had covered for the appellant because, prior to going to that interview, he had told her to deny that anything inappropriate had occurred. The complainant also said that she was scared as to what would happen if she told the truth. The prosecutor then contrasted this with what the complainant had told the police when she was interviewed, and that in the police interview she was asked to make a declaration that what she had told the police was the truth. The prosecutor then turned to some of the communications between the appellant and the complainant which had made her feel manipulated and controlled.[21]
[21] Closing addresses ts 3 - 5.
The prosecutor then dealt with claims put to the complainant in her cross‑examination, that her allegations were fabricated. The prosecutor submitted that the complainant was not shaken by that cross‑examination. The prosecutor then said:[22]
[A]ccording to what [defence counsel] put to [the complainant] in cross‑examination, all fabricated, all made up, together with all of the acts that I've described that she said happened that result in the - each of the charges on the indictment. That is a lot of things fabricated, made up, lies. A lot, by a 15, 16‑year‑old girl with - giving also details of surrounding circumstances around those acts.
So let's examine that. Let's examine that and think about that. Fabricated, all made up. Well, you might notice, there was quite a difference in the appearance of [the complainant] between the visually‑recorded interview when she was 17, and when she did the prerecording, she was 19. She'd grown a bit and she'd changed a bit, but all of her evidence that we say supports the charges on the indictment come from the visually recorded interview.
I'm saying to you, consider her body language, her demeanour, tone of voice, how she said things, the detail of circumstances surrounding any acts that she said happened, and before I come specifically to each count on the indictment, talking about that, there were other acts not charged because there wasn't sufficient particulars.
I mean [the complainant] said that those incidents, like the incidents in counts 4 to 7, four incidents in a row of touching her breasts, buttocks and vagina, they occurred on almost a weekly basis during one term and usually on a Monday or Tuesday. She went to the small gym at his request. That this is made up. She didn't need to add that in.
If she's going to make this up, you'd think she would have full particulars of everything she's going to say that he did but she didn't. She just said, 'Well, it happened regularly but I can't recall all the details because it happened so many times.' Why wouldn't she just say the ones where should could [sic] say particulars? She didn't need to add that in.
And you might be thinking, 'Well, why did she need to go the small gym?' She gave a reason for that. She said she was - at one time, she got some punishment done, tying shoelaces, push ups, et cetera. She said she was fearful of that, and again, this is only a 15, 16‑year‑old girl. This man is her teacher and he's 28 years old. I suggest to you that all has a ring of truth that [the complainant] told you. Not made up. A ring of truth. She's describing what he did to her.
[22] Closing addresses ts 7 - 8.
A short time later, the prosecutor continued:[23]
[23] Closing addresses ts 8 - 9.
What about the fact that she didn't tell anybody? Well, this is what she said in the prerecording. First of all at page 112, she said:
Why didn't you push him away?---I didn't know what to do.
Did you feel you could push him away?---No.
And then over at page 113:
Why did you not tell [CE] about what he was doing to you at the time?---I didn't know how to. I felt like I couldn't talk to anyone about it.
This is a 15, 16‑year‑old girl and she's just developing her sexuality and these are sexual matters done to her. They are quite intimate things. And the next question was:
Is that also the reason you didn't tell [LF]?---Yes.
So this is her two friends, [CE and LF]. And then:
Why didn't you tell your mum or dad at the time these things were happening?---I could never bring it up to them. I just wanted to go to school, get through school.
And then a question at page 113:
Why did you keep going to the storeroom to meet with [the appellant]?---Cos if I didn't go, I didn't know what would happen. I was scared to not go but I just didn't know what to do.
So let's examine that and think about that. All fabricated, all made up. Well, that means before she went to that police interview, she would have had to think, 'Well, I'm going to go to the police. I'm going to say he did this to me. I'm going to say a particular thing happened that happened then, when it happened, what he actually did.'
The prosecutor then referred to the evidence relating to each count. In respect of some of the counts, the prosecutor suggested that the details provided were inconsistent with a fabricated account. For example, in respect of count 2, the prosecutor said:[24]
Count 2, videos of him masturbating. There are other videos (indistinct) driving his car, singing along to songs. If she's going to make this up, why wouldn't she just say, 'Well, he sent me photographs of his penis' without going into any other photographs? The same with the photograph of him masturbating. Why wouldn't she say, 'If I'm making this up, I'll just say he sent a photograph of him masturbating'? Why go into detail about these other photographs of him singing along in the car and things like that?
[24] Closing addresses ts 9.
In respect of other counts, the prosecutor noted that the allegations were confined to touching, the implication being that if the allegations were fabricated, more serious conduct would have been alleged. For example, in respect of count 3, the prosecutor said:[25]
Count 3. Now, this is the time when she must have thought, 'Well, I'll say I'm making it up. It happened when the delivery of the mountain bikes'. So she said other student helped send - that helped with - writing as [the other girl] (indistinct) was sent back to class. The [appellant] and her were alone. And what did she say he did? Squeezed her buttocks over her clothing. Nothing more.
She's made this up, associated to a time where the delivery of [mountain bikes], and all she said is, 'Well, he squeezed my buttocks over my clothing, nothing more'? If she's making this up, why wouldn't she just say more things happened? That has the ring of truth that she's saying exactly what happened, that that was the only thing that happened. Squeezed her buttocks over her clothing. And she didn't have to say that it was when delivery of the mountain bike. There was another student around who then went away.
[25] Closing addresses ts 9 - 10.
After referring to the evidence relating to counts 4 ‑ 7, the prosecutor said of count 8:[26]
Count 8. If this is fabricated or made up, just think, 'Well, what - another incident I can say - that I'm going to make up about this. Well, I'll say it was a time when - went back to school from outdoor activities. [The appellant] [p]arked the bus in the bus shed, directed the rest of the class to go to the changerooms'.
[The complainant] remained behind to unpack equipment such as life vests. The [appellant] entered the (indistinct), causing the door to shut. He then squeezed her buttocks over her clothing. That's it. Nothing more. Not under her clothing. Nothing - no more touchings [sic]. Just squeezed her buttocks over her clothing. If it was made up, do you think she might say something more happened? This has the ring of truth. She's describing exactly what he did to her.
[26] Closing addresses ts 10.
As to count 9, the prosecutor said:[27]
And count 9. If she's making this up, she's going to have to come along and think, 'Well, I'll make something up about around my birthday'. So this was a day after her birthday. There was Snapchat message. He wanted to get her a chocolate or something for her birthday. The next day, meet at the small gym. Got another idea for a birthday present. Hugged her front on. Put her hand inside his shorts and boxers. Put her hand on his penis, held it there.
That's it. Nothing more. Not moved his hand up and down, not made her hand masturbate him. Just hand, held it there. Made up? She hasn't described anything more other than that.
[27] Closing addresses ts 10 - 11.
The prosecutor then referred to the evidence given in respect of count 10, and said:[28]
If she's making this up, why wouldn't she just say, 'Yes, he put my hand on his penis'? No. Her evidence is forced his hand towards his penis because he said grab one of the balls, and she managed to pull her hand away, or she was - 'maybe my fingers'. That's not definite to say that he did put her hand on his penis. If she's making this up, you'd think she'd be definite about that.
[28] Closing addresses ts 11.
After referring to the evidence in respect of counts 11 ‑ 14, the prosecutor said:[29]
I'm suggesting to you - and that's all I can do. I can only suggest. I can't tell you what you make of her evidence, what I think about her evidence, what anybody else in this courtroom thinks about her evidence. It is your conclusions that you reach. But what I am suggesting to you with all of the circumstances that she described, the way she said it, the body language, demeanour, all the additional conduct that she told - said to you about the [appellant].
I'm suggesting that you can conclude that she's telling you exactly what happened to her, what the [appellant] did to her. I do suggest you can accept [the complainant] as a witness of truth. That she is being truthful, accurate, reliable. That she's describing exactly what the [appellant] did to her on each of those occasions.
And therefore, I do suggest to you that you can conclude based on the evidence of [the complainant] that the prosecution has proven all of the elements of counts 1 to 14 beyond a reasonable doubt and the circumstances of aggravation on counts 3 to 7 beyond a reasonable doubt and suggest to you that you can return verdicts of guilty on each of the 14 counts on the indictment. Thank you very much for listening to me.
[29] Closing addresses ts 11 - 12.
Ground 1 - defence counsel's closing address
Senior counsel for the appellant at the trial told the jury that the complainant was the critical witness in the trial and that her evidence needed to be scrutinised with special care. He referred to the forensic disadvantages to the appellant arising from the delay in bringing the complaints and the lack of particularity as to when each incident occurred. This was said to have led to an inability to effectively cross‑examine witnesses and expose contradictions in the complainant's testimony.[30]
[30] Closing addresses ts 13 - 14.
Senior counsel submitted that the prosecution had failed to call other witnesses who might have been able to give evidence as to the surrounding circumstances, such as the complainant's friends. This was said to bear upon whether the jury should accept the complainant's evidence. Senior counsel said there was nothing in the prosecution case beyond the complainant's 'say so'. And the complainant was described as a 'completely compromised witness'. Senior counsel pointed, in particular, to the Department of Education interview of the complainant on 31 August 2020.[31]
[31] Closing addresses ts 14 - 17.
Senior counsel then turned to what he described as the 'inherent implausibility' of the complainant's evidence regarding the conduct.[32] He listed a series of matters that he said went to the heart of any assessment of the complainant's credibility and reliability:[33]
[32] Closing addresses ts 17.
[33] Closing addresses ts 18 - 21.
Firstly, the illogicality of [the complainant's] assertion that [the appellant] was in effect forcing himself against her will, and yet she would continue to go back to him or wilfully try and participate in classes, activities that he was teaching or engaged in. Secondly, the risky and brazen manner in which the State says [the appellant] committed these offences.
As far as the offending at school is concerned, you might well think that the very nature of a school campus would be a hive of activity with the real chance that at any time, somebody - a teacher or a student, for example - would see what was going on. Thirdly, this would not just have been risky behaviour, but can I suggest verging on madness. And yet, ladies and gentlemen, it would seem that these events have gone completely unnoticed by anyone.
There is not even the suggestion of the two - sorry - of two of the three stooges, [CE and LF], recognising that [the complainant] was missing regularly from their presence, let alone [the complainant] returning to a student role minutes after sexual contact with a teacher without even the hint that there was something wrong.
You might think, ladies and gentlemen, if this had been going on in the close proximity and interaction with her confidantes that if she'd been in the presence of [the appellant] and engaging in the conduct that she says was against her will and forced upon her, to return and be in the presence with her friends without saying anything at all - and we've heard nothing from those other witnesses to say that there was anything of concern or to do anything that might support or corroborate anything that she has said. Beggar's belief.
Fourthly, considering what we now know about [the complainant's] reaction to [the appellant's] Snapchat message in 2019, the implausibility that she would have actively received by acceptance not just further sex messages but sex videos from [the appellant] and not said anything at all about it to her friends or for that matter to anyone.
Fifthly, the notion that [the complainant] would permit the app to delete every single sex message, or even worse, sex video sent to her without ever taking a screenshot of any of them. After all, she did screenshot one Snapchat communication which is not disputed and which she disseminated amongst her closest of friends.
Why is it, you might ask, that this screenshot was widely disseminated to her friends which had no sexualised overtones but none of the others? Why broadcast the benign and undisputed Snapchat communicated on 23 November 2019 but say nothing about any of the others to anyone? (6) In the prerecord when being re‑examined after cross‑examination was completed, the prosecutor asked these questions. Question:
You said that you never took a screenshot of those images.
Answer:
Yes.
Question:
Why did you not take screenshots of those images?
Answer:
If I had taken screenshots, [the appellant] would have gotten a notification saying that a screenshot had been taken. Then he would have known that I'd taken a screenshot. I also didn't think to take a screenshot at the time.
Think about those explanations. They are completely inconsistent with each other. If she didn't think to take a screenshot ever it would seem, how could she have made an informed decision not to screenshot for fear of disclosing to [the appellant] that that's what she had done? In any event, members of the jury, she had no difficulty disseminating the screenshot of the undisputed Snapchat message on 23 November 2019 to her friends.
(7) [The complainant] claims that apart from the original [appellant's] Snapchat account, VTrain22, he would otherwise communicate by the fake usernames, Aaron Jones, MattHicks21, and Mason.
Why is it that these so-called fake usernames are never connected to the [appellant]? That is, on his phone or otherwise. The only evidence of the existence of these usernames comes from the mouth of a person who admits that she is prone to lying when it suits her. The same can be said about the so‑called confession message using the name Mason. That could have been sent by anyone.
And in any event, other than the tainted tongue of [the complainant], there is no evidence, at all, connecting [the appellant] to that message either. Moreover if, as [the complainant] alleges, [the appellant] would video himself, including his face, and identify himself in the numerous sex messages she claimed he sent to her, why did he need to create fake accounts at all?
…
(8) [T]he fact that [the complainant], in no uncertain terms, unequivocally denied that there had been anything but a healthy student‑teacher relationship between herself and [the appellant] when interviewed about him on 31 August 2020.
Now, in this trial, and in complete contradistinction to what she had said earlier, she asserts that there was a brazen, forceful, and lengthy period over which she was being sexually assaulted by him. And yet, as I've said [ad] nauseum, she says nothing.
(9) [T]he numerous inconsistent statements that have been established in the course of this trial do go to her credibility and reliability. I don't propose to go through all of them. Some, no doubt, you will have identified for yourself. What I do propose to do is just give you some examples.
Senior counsel then referred to a number of alleged inconsistencies in the complainant's evidence. These included what she told the Department of Education investigators: whether in relation to count 3 the door to the shed had a coded lock or an alarm; what time of day the count 3 incident occurred; the sequence of events in relation to count 3; whether in relation to count 10 the appellant put both of the bouncy balls into his pants or only one; and the unlikelihood that the complainant would not block the appellant's messages or remain silent if this was occurring against her will.[34]
[34] Closing addresses ts 21 - 23.
Senior counsel then said:[35]
The narrative given by [the complainant] makes no sense at all, and is, and must be on the evidence, regarded as completely implausible. To be clear, this nonsense can be neatly summarised in this way. According to [the complainant], she would repeatedly receive sex messages and sex videos. He forced her, sometimes on a weekly basis, to participate in sexual conduct at school.
Despite this extraordinary narrative, she would continue to meet with him, continue to want to be in his classes, never blocks him, nor did she say anything to him, or for that matter to anyone else. [The complainant] didn't even tell [the appellant] to stop when [she] alleges that she was touched. It would seem that the only real communications they had were by Snapchat in terms of meetings, or in terms of whatever it was that she says he sent her way.
This narrative is nonsense and does not and cannot withstand the careful scrutiny that you are required to undertake in the unique circumstances of this case. Ladies and gentlemen, common sense is your friend here. Do you really think that this girl would have gone back to this man when there were other people around at school, friends and teachers alike, to protect her?
[35] Closing addresses ts 23 - 24.
Senior counsel continued:[36]
With respect, ladies and gentlemen, the context in which [the complainant] described this narrative of offending just does not make any sense at all. Moreover, why did the touching only occur on school grounds, during school hours, when anyone could be a witness, or the recipient of a contemporaneous complaint by [the complainant]?
If [the complainant] was a compliant recipient of these sexual overtures, why not meet her off campus, away from witnessing eyes? What also makes no sense is the completely inconsistent way in which [the complainant] first reacted to receiving a friend request and messages from [the appellant] in 2019, with the complete absence of a reaction afterwards.
[36] Closing addresses ts 24.
Senior counsel submitted to the jury that there was no contemporaneous complaint by the complainant because 'these things simply did not happen'.[37] He said that it was unlikely that these incidents would have occurred without someone else at the school seeing something. He referred again to the lack of corroborative evidence and then concluded:[38]
So to finish, members of the jury, I complete where I started. This case stands or falls on the reliability and credibility of the complainant, … devoid of any corroboration or supporting evidence. Her evidence is, as I've hopefully demonstrated to you, riddled with inconsistencies, admitted lies, and the State narrative simply does not hang together.
The State's case does not, standing back, withstand careful scrutiny. And contrary to the submission that was put by [the prosecutor] to you, I suggest it does lack the ring of truth. And accordingly, the State have failed to prove any charge beyond reasonable doubt. And the only verdict in those circumstances is one of not guilty to all charges. [The complainant] is neither credible, nor reliable.
[37] Closing addresses ts 24.
[38] Closing addresses ts 28 - 29.
Ground 1 - trial judge's directions
The trial judge gave orthodox directions regarding the onus and standard of proof, including telling the jury that if they had a reasonable doubt regarding the guilt of the appellant on any count, they must find him not guilty of that count. Her Honour told the jury that the State bore the onus in respect of each count and must prove the commission of each count beyond reasonable doubt.[39]
[39] ts 307.
The trial judge also gave standard directions regarding the assessment by the jury of the credibility and reliability of witnesses. This included telling the jury that one of the things that they could take into account was the consistency of the evidence given by a witness:[40]
You can take into account and should take into account not only what the witness said but how they said it and the consistency of the evidence given by the witness. When I refer to consistency I mean whether a witness's evidence is internally consistent. In other words, if taken as a whole it makes sense, if parts of a witness's evidence make sense when compared with other parts of that witness's evidence, and also whether a witness's evidence makes sense compared with any other objective evidence.
[40] ts 309.
The trial judge referred to the alleged inconsistencies raised by senior counsel for the appellant at trial and told the jury that, whether these matters were in fact inconsistencies and what weight to give them was a matter for the jury. Her Honour noted that everything personal to a witness - including their age, powers of expression, how good their memory is, and whether they have said something different on another occasion - is relevant in assessing credibility. Her Honour said that it was also relevant to take into account any explanation given for an inconsistency.[41]
[41] ts 310.
The trial judge gave a Longman direction regarding forensic disadvantages to the appellant arising from the delay in reporting the matter to the police. Her Honour concluded that direction by saying:[42]
Because of that delay, I direct you that you must scrutinise [the complainant's] evidence with special care. And this direction is given to you because there is a real risk of miscarriage of justice which arises from convicting on [the complainant's] evidence alone, where there has been a delay. But you are at liberty to act on [the complainant's] evidence and convict [the appellant] if you are satisfied of the truth, accuracy and reliability of her evidence.
But first you must have scrutinised her evidence with special care, having considered the circumstances relevant to that evidence, which I've already referred to, and taking full account of this direction that I have just given you.
[42] ts 316.
The trial judge then gave a direction regarding the use that could be made by the jury of evidence of uncharged acts. Her Honour told the jury that one of the uses was to assess why the complainant may not remember all of the details of a specific occasion, in particular because of the number of times something may have occurred in the same location. Her Honour also said that this evidence may help to explain why the appellant thought he could act with impunity.[43]
[43] ts 316 - 317.
The trial judge directed the jury that they could not find the appellant guilty of any count unless they were satisfied beyond reasonable doubt on the complainant's evidence that he was guilty of the specific act concerned.[44]
[44] ts 317.
The trial judge directed the jury that they could infer that possible witnesses who were not called, and who it might have been expected the prosecution would call, would not have assisted the prosecution case. However, her Honour directed the jury that they should not speculate as to what those witnesses might have said. Her Honour also noted that no other person was present on any of the occasions that offences were alleged to have occurred.[45]
[45] ts 317 - 318.
After giving the jury directions as to the elements of the charges, the trial judge reminded the jury that in respect of each count they must be satisfied beyond reasonable doubt as to the truthfulness, accuracy and reliability of the complainant's evidence. Her Honour said that if any matter gave rise to a reasonable doubt it was the duty of the jury to find the appellant not guilty of the count concerned.[46]
[46] ts 334.
The trial judge then summarised the prosecution and defence cases. In regard to the prosecution case, her Honour said:[47]
And the State says, 'Well, you can also take into account that it was put to [the complainant] that these were all lies, but she maintained that all of these things had happened and did not concede that there was any lie or that she was telling in her interview or when she gave her evidence in court.'
And I won't go through all of this, but the State took you through in some detail the number of lies that the State says [the complainant] would have had to come up with in order to have fabricated her evidence. So you've heard all of those things from the State, and they're certainly things about which you can take into account.
But the State would say look at [the complainant], you saw her, you saw how she gave her evidence, you saw her demeanour, you saw all of the details that she was able to give. That her evidence had a ring of truth, it wasn't made up, it was given clearly and consistently, and she did not resile from it when she was confronted in cross‑examination.
It's true that she didn't tell anyone, but you have her explanations. And it's true that she didn't push him away or physically rebuff [the appellant's] actions, but you have her explanations about she didn't know what to do. She couldn't tell anyone about it, she could never bring it up with her mum and dad and that she was scared. Why she continued to go, she was scared, and she didn't know what to do.
And so you can take all of those matters into account when you're determining whether [the complainant] has made these things up. The State also took you through the details of each count, I've already done that so I'm not going to repeat what [the prosecutor] had to say in that regard.
But the State ultimately came down to this: that [the complainant] was telling you exactly what had happened to her; that she was a witness of truth, she was truthful, accurate and reliable with respect to each of the counts on the indictment; and that her evidence is sufficient to prove all of the elements and the circumstances of aggravation; and that you should bring in verdicts of guilty.
[47] ts 335 - 336.
As to the defence case, the trial judge reminded the jury of the submissions made by senior counsel regarding the lack of corroborative evidence and the inconsistencies in the complainant's evidence. Her Honour then said:[48]
The defence says, well, yes, you can take into account her appearance when she had her evidence - on each occasion that her evidence was recorded, but it's more important for you to focus on the objective and independent - or other reliable matters, because it's always important whether there is any objective evidence which is available and - because the prosecution just hasn't - doesn't have to [only] establish that [the complainant] as a witness is credible but also reliable, and that might be tested by reason of the surrounding circumstances.
The defence would remind you that there is, in fact, no corroboration of the actual offending, or indeed any of the surrounding circumstances, and denies - or puts to you very firmly that [the complainant's] evidence didn't have a ring of truth. And so on the basis that [the complainant] was neither credible or reliable, the defence says that you should find [the appellant] not guilty of all charges.
[48] ts 339 - 340.
The trial judge then, again, reminded the jury:[49]
So after considering all of the evidence, the submissions of counsel, and my directions as to law, if there remains in your mind a reasonable doubt as to whether [the appellant] is guilty of any of the charges that have been brought against him, then it is your duty to acquit him of that charge. If, on the other hand, having considered all these matters, if you're satisfied beyond a reasonable doubt of his guilt on any charge, then it's your duty to convict him of that charge by bringing in a verdict of guilty.
Now, whether or not you have a reasonable doubt as guilt is a matter for each and every one of you individually as jurors. And it's only if each and every one of you is satisfied beyond a reasonable doubt of [the appellant's] guilt that you can bring in a verdict of guilty. So, in other words, your verdicts, whether they're guilty or not guilty, need to be unanimous, that is, the verdict of all of you.
[49] ts 340.
The trial judge concluded by reminding the jury that their verdicts must be based solely on the evidence.[50]
[50] ts 340.
Senior counsel did not express any concern with the trial judge's directions and did not suggest that there was any need to redirect the jury on any issue. Specifically, no issue was raised regarding the prosecution closing.
Ground 1 - appellant's submissions
The appellant submits that the closing address of the prosecutor amounted to an invitation to the jury to focus on the question of whether the complainant was lying, rather than on whether the appellant's guilt had been proven beyond reasonable doubt. It is suggested that inviting the jury to consider how likely it was that a child would lie or give an account of the kind given here, would have given rise to the risk of distracting the jury from the real issue in the case and tended to undermine the burden of proof. That risk was not ameliorated by any clear direction from the trial judge to the jury not to approach the matter in that way.[51]
[51] WAB 41.
The appellant submits that the prosecutor invited the jury to speculate about the credibility of the evidence by postulating how a person motivated to lie would construct a false narrative. Whilst it is accepted that there will ordinarily be no objection to a prosecutor submitting that an account has the ring of truth, there comes a point where submissions cast in terms of the unlikelihood of fabrication distort the nature of the jury's task.[52]
[52] WAB 41.
The appellant submits that some of the submissions made by the prosecutor were also illogical, or at least unbalanced, in that it was in effect, suggested that the absence of detail in some places was inconsistent with lying, and that the presence of detail in others was inconsistent with lying.[53]
[53] WAB 41.
The appellant submits that because an accused may not know what has led to an allegation, and is practically powerless to meet the submission that a liar would be more likely to concoct different allegations to those made, there is an evident danger that arises when a prosecutor makes submissions that make these questions the central focus of the trial. That danger is said to be manifest here, such that a miscarriage of justice was occasioned.[54]
[54] WAB 42.
Ground 1 - respondent's submissions
The respondent submits that the essential task for the jury in this case was to assess the credibility and reliability of the complainant to determine whether her evidence established the elements of the offences beyond reasonable doubt. The defence case was that the complainant's evidence was a fabrication, and that the complainant was being knowingly and deliberately untruthful about the allegations. In these circumstances, it was essential that the prosecutor engage with the defence claims about the complainant's evidence in his closing address.[55]
[55] WAB 71.
The respondent submits that the appellant has conflated two discrete concepts. First, a prosecutor is prohibited from advancing submissions which bolster the credibility of a complainant on account of the accused failing to advance any facts from which a complainant's motive to lie may be inferred. Secondly, a prosecutor is permitted to advance submissions as to why it is objectively improbable that the complainant's account is dishonest in circumstances where an allegation of lying has been put to the complainant. The respondent submits that the flaw in the appellant's argument is that the prosecutor's submissions to the jury concerned only the second concept. The prosecutor properly invited the jury to assess the evidence given by the complainant by reference to the particular features of her account.[56]
[56] WAB 71 - 72.
The respondent submits that the submissions made by the prosecutor had the effect of suggesting to the jury that: when the complainant's evidence was carefully scrutinised by reference to the features that were referred to, her account had the hallmarks of a retelling of a lived experience rather than a fabricated account. This was a proper submission for the prosecutor to make in the circumstances of this case. The prosecutor did not invite or risk the line of reasoning posited by the appellant.[57]
[57] WAB 74.
The respondent submits that in a case dependent on the credibility and reliability of a complainant, and where it is squarely put by the defence that the complainant's evidence is a fabrication, the crucial issue for the jury's determination will be the assessment of the complainant's evidence and whether that evidence is truthful and reliable. It is proper in these circumstances for a prosecutor to suggest to the jury some objective measures for testing the probability that the complainant's account is truthful. That is what occurred in the present case. Nothing in the prosecutor's closing address may reasonably be understood as conveying the impression that the appellant bore any onus to establish that the complainant had a motive to lie, or that the lack of evidence of any motive to lie justified the acceptance of the complainant's evidence.[58]
[58] WAB 74.
Ground 1 - disposition
In Palmer v The Queen,[59] the High Court held that it is impermissible for a prosecutor to ask an accused person in cross‑examination whether they know of any reason why the complainant would lie. To ask such a question invites a process of reasoning that undermines the onus of proof and deflects the jury from its fundamental task. The issue is not confined to cross‑examination and may also arise in the context of the prosecutor's closing address.[60] The danger of a miscarriage of justice may be avoided if firm and clear directions are given to avoid any inappropriate course of reasoning.
[59] Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1.
[60] Harman v The State of Western Australia [2004] WASCA 230; (2004) 29 WAR 380 [66] (Steytler J).
There is a distinction between inviting a jury to accept the evidence of a complainant because the accused has not advanced any reason for the complainant to lie; and on the other hand, suggesting to a jury that there are objective or inherent features of the complainant's evidence that are indicative of the account being truthful. The former involves an impermissible suggestion that the accused bears an onus to advance some reason why the complainant would lie. The latter directs attention to the credibility and reliability of the complainant's evidence as a witness.
In Malho v The State of Western Australia,[61] the prosecution case included an allegation that, during the course of a robbery, the offender had forced the male victim to take the offender's penis in his mouth. In closing submissions, the prosecutor invited the jury to consider that this was not the kind of allegation that a man would make up because it was hardly something he would brag about. Owen JA said that the difficulty he had with this comment was that it invited speculation.[62] However, McLure P characterised the comment as pointing to objective measures for testing the probabilities of the evidence. Her Honour said:[63]
The prosecutor did not ask the rhetorical question 'Why would the complainant lie?' nor did he suggest its answer or convey an argument to the effect that there was no apparent reason why the complainant would lie therefore the complainant must be telling the truth. The prosecutor told the jury that it was speculative as to why the complainant might have made up his evidence concerning the sexual abuse. He then went on to comment on the reasons why they should accept the complainant's evidence. In substance that was because it was not the sort of thing a man would say to add to the drama of his experience to impress his mates and was such an affront to a man's masculinity as to make the complainant's evidence as to the sexual assaults believable. There is a distinction between the motive of a particular person for lying and objective measures for testing the probabilities. I would categorise the comments as falling within the latter category.
[61] Malho v The State of Western Australia [2010] WASCA 41.
[62] Malho [57].
[63] Malho [15].
In substance, ground 1 asserts that the prosecutor in closing, made submissions that invited the jury to focus on the state of mind of the complainant when she made the allegations of sexual abuse, and that this created a real risk that the jury would be diverted from their essential task. Although the prosecutor did not put the question, 'Why would the complainant lie?'; the appellant submits that the tenor and emphasis of his closing address ran the real risk that the jury would be led to speculate on why the complainant would have made the allegations. This raises an issue that is analogous to that raised in Palmer, that is whether the proposed line of reasoning undermined the onus of proof and deflected the jury from their fundamental task of determining whether the appellant's guilt was proven beyond reasonable doubt.
The complainant's evidence was critical to the prosecution case, and the jury were directed that, unless they were able to accept her evidence regarding the sexual abuse beyond reasonable doubt, they could not convict the appellant. In these circumstances, it was to be expected that the prosecutor in his closing, would focus attention on the complainant's evidence.
The prosecutor's closing submissions need to be understood in the context of the trial and the issues that arose in that trial. The defence case was that the complainant had fabricated her story. It was reasonable for the prosecutor to expect that this position would be maintained in closing. That expectation was borne out as senior counsel for the appellant in his closing address forcefully suggested to the jury that the complainant's account was inherently implausible. The contest between the prosecution and the defence was focussed on whether or not the complainant's evidence bore the hallmarks of a truthful account.
The prosecutor made no suggestion to the jury that they could consider whether the complainant lacked any motive to lie. Far less was there any suggestion that the appellant bore an onus to prove such a motive. Rather, the prosecutor's submissions to the jury were suggestions as to measures for testing whether the complainant's account was true or false. These measures included: that the complainant had not taken the opportunity to make more serious allegations in relation to some incidents; that she was unable to provide particulars of all incidents of touching because they were so numerous; and that she had expressed uncertainty about some details. These were objective features of the complainant's evidence at the trial. To consider such matters did not require, nor invite the jury to engage in speculation about whether there was no reason for the complainant to lie. Furthermore, the prosecutor's submissions that the complainant's ability to recall details in some respects and not in other respects enhanced the credibility of the complainant, whether logical or not, does not advance the appellant's contention on this ground of appeal. It was a matter for the jury to assess whether the presence or absence of detail was significant.
The submissions of the prosecutor did not undermine the onus of proof, nor did they deflect the jury from their fundamental task of determining whether the appellant's guilt was proven beyond reasonable doubt. A miscarriage of justice was not occasioned by the manner of the prosecutor's closing address.
This ground of appeal has no reasonable prospect of succeeding. Leave in respect of it should be refused.
Ground 2 - trial judge's directions
The trial judge gave orthodox directions concerning the standard of proof, the onus of proof, and the right to silence. Her Honour told the jury that the assessment of the evidence was a matter exclusively for them, and that it was for the jury to decide what they should accept or reject.[64]
[64] ts 305.
After giving other conventional directions, the trial judge directed the jury in regard to the assessment of credibility and reliability. Her Honour commenced those directions by saying that credibility means believability, which she said was made up of different things, including truthfulness, reliability and accuracy.[65] Her Honour reiterated that acceptance or rejection of evidence was a matter entirely for the jury. The trial judge then identified the matters that the jury should consider, which included the demeanour of the witness and the consistency of their evidence.[66]
[65] ts 308.
[66] ts 309.
The trial judge then said:[67]
Now, everything personal to a witness will properly be involved when you're evaluating his or her credibility, and that will include their age, their powers of expression, their powers of recollection, in other words, how good their memory of a matter is, and whether the witness has said something in the trial that is different to what they've said on a prior occasion. I'll come back to that in a moment, but if there is an inconsistency, you might consider if there's a satisfactory explanation, but I will come back to that.
I want to just say this to you, though, that you will appreciate that truthfulness, reliability and accuracy are all slightly different things. A witness can be unreliable or inaccurate because they're honestly mistaken about what occurred, and that's because human perception and human memory are not perfect instruments and we all make mistakes quite innocently. Sometimes, of course, people say things that they know to be false, and that is, of course, a lie and it is dishonest.
So there are usually two possible reasons why you might doubt a particular aspect of a witness's evidence. The witness might be innocently mistaken or a witness might be dishonest, and whether or not those matters are in play in this case is a matter entirely for you. (emphasis added)
[67] ts 310 - 311.
Ground 2 - appellant's submissions
The appellant submits that the trial judge's remarks in the last paragraph of the passage at [74], were couched in terms that would have been perceived by the jury as a direction. There was a risk that the jury would consider that they had a binary choice and confine their focus to whether the complainant was innocently mistaken or dishonest. The appellant submits that the risk of the jury interpreting the remarks in this way gives rise to a miscarriage of justice because it effectively constrains the circumstances in which the jury could have had a reasonable doubt.[68]
[68] WAB 45; appeal ts 41.
The remarks are said to have undermined the onus of proof. In the absence of an ability to express a doubt by reference to whether the witness was dishonest or innocently mistaken, the jury might not consider whether they had a doubt about the complainant's evidence more generally. There is a risk that the jury would simply accept the evidence unless they were persuaded that the complainant was either innocently mistaken or dishonest.[69]
[69] WAB 45.
The appellant submits that even if the jury thought that the complainant did not appear to be either dishonest or innocently mistaken in her evidence‑in‑chief, they were entitled to experience a reasonable doubt simply because the complainant had, on an earlier occasion, distinctly denied that any offence had occurred. This possibility was effectively excluded by the directions.[70]
[70] WAB 45.
The appellant submits that the risk of a miscarriage of justice was not assuaged by other directions given by the trial judge. Even though the jury would have understood the need to be satisfied beyond reasonable doubt, and that satisfaction beyond reasonable doubt was entirely a matter for them, and that they were required to be satisfied beyond reasonable doubt of the truthfulness, credibility and reliability of the complainant's evidence, the directions did not cure the risk of the jury tempering their assessment of whether the charges had been proved beyond reasonable doubt by reference to the 'usual' reasons for having doubt that were identified by the trial judge.[71]
[71] WAB 46.
Ground 2 - respondent's submissions
The respondent submits that the impugned passage does not amount to an error of law and does not otherwise occasion a miscarriage of justice. There is no real or perceptible risk that the jury would reason in the manner asserted by the appellant. The appellant's argument in support of ground 2 erroneously focuses on the impugned passage in isolation, without reference to the remainder of the charge.[72]
[72] WAB 75.
The respondent submits that the impugned passage was preceded by a number of directions, including the following:[73]
[73] WAB 76 - 77.
1.That the jury were the sole judges of the credibility or believability in respect of each witness's testimony.
2.Credibility or believability is made up of a 'number of different things', including 'truthfulness, reliability and accuracy'.
3.The jury were free to accept all, some or none of the witnesses' evidence.
4.The weight or importance to be attributed to any part of the evidence was a matter for the jury.
5.Anything said by her Honour about the facts 'is comment and not binding on [the jury] and [the jury] are free to reject it'.
6.If her Honour was giving a direction, she would make that clear; but if she was making a comment on the facts or repeating a comment made by counsel, the jury were free to reject what she said.
7.There were 'some general things' the jury 'might like to take into account' in respect of credibility, including: how the witness presented in either the witness box or on their recorded evidence when answering questions; what the witness said and how they said it; and the consistency of a witness's evidence.
8.Everything personal to a witness would properly be involved in an evaluation of their credibility, including their age, powers of expression, powers of recollection, and whether they had previously said something different.
9.Where there was an inconsistency, the jury might consider whether the inconsistency had been satisfactorily explained.
10.Truthfulness, reliability and accuracy are slightly different things. A witness can be unreliable or inaccurate because they are honestly mistaken about what occurred, because human perception and human memory are not perfect.
11.Sometimes people say things they know to be false, and that is a lie and it is dishonest.
The respondent submits that, when the trial judge's directions are considered as a whole, the jury would have understood that their consideration of a witness, and, in particular, the complainant, was not confined to considering whether she was innocently mistaken or dishonest. Considered as a whole, the directions were not erroneous, nor is there a real or perceptible risk that they gave rise to a miscarriage of justice.[74]
[74] WAB 77 - 78.
Ground 2 - disposition
In DKA v The State of Western Australia,[75] this court said:
It is trite that an impugned passage in a trial judge's summing up cannot be read in isolation, but must be evaluated in the context of the summing up as a whole. See Murray v The Queen. The critical issue is whether the words spoken by the trial judge in his or her summing up are such that the jury would have derived an erroneous perception in relation to a material matter of fact or law. An appellate court must decide that issue by taking the summing up as a whole and as a jury listening to it might understand it. The issue is not to be decided upon a subtle examination of the transcript of the summing up or by giving undue prominence to any part of the summing up. See R v Dookheea. (footnotes omitted)
[75] DKA v The State of Western Australia [2019] WASCA 123 [43] (Buss P & Mazza JA).
It is apparent that the impugned passage was a comment by the trial judge as to possible ways in which a doubt may arise in respect of the evidence of a witness. Her Honour said that innocent error or dishonesty were two possible reasons for doubting a witness. This does not exclude other possibilities, nor does it require the jury to make a 'binary choice'. The use of the words 'possible' and 'usually' serve to confirm this interpretation. It is unrealistic to view this passage as requiring the jury to only have a doubt about the appellant's guilt if they were satisfied that the complainant was dishonest or had made an innocent error.
Furthermore, the appellant has taken the passage out of its context, and has construed it without proper regard for the whole of the summing up. The trial judge repeatedly directed the jury that they could not convict the appellant on any count unless they were satisfied beyond reasonable doubt of his guilt, that the State case depended critically on the evidence of the complainant, and that they could not convict unless satisfied that the complainant's evidence was credible and reliable in respect of each count. None of these directions suggested that the jury were constrained as to how a doubt could arise. There is no perceptible risk that the jury would have been left with the impression that a doubt could only arise in respect of the complainant's evidence if it fell within one of the two categories referred to.
There is no merit in this ground of appeal. Leave in respect of it should be refused.
Ground 3 - exhibit 9
Exhibit 9 was the screenshot of the message allegedly sent by the appellant to the complainant, referred to at the trial as 'the apology text' or 'the Mason text' (being the username of the Snapchat account from which it was sent). The message read:[76]
Um I don't really know what to say. Yes I do understand, but I still wish that you could somehow play a part in my future life. I always want to talk to you cause I care about you so much. I'd also hope that if you ever heard anything that you would let me know as well. I can't say I regret it all, because I enjoyed all the time we had together. What I do regret is that it came to this and that it has hurt you, because that is the last thing I ever want to happen. You mean too much for me to see you hurt. Also, you can always talk to me about anything. I'd always be there for you. Having said that, I do understand why you have said what you have, but just FYI, it doesn't mean that I like it. I miss seeing you and wish things were different[.]
[76] BGAB 32.
The evidence was that this text message was the last communication and was sent in the Christmas school holiday period of 2020 ‑ 2021.[77] The complainant's interview with the Department of Education occurred on 31 August 2020. Thus, this message was sent after that interview.
[77] BGAB 40, 107.
When summarising the prosecution and defence cases, the trial judge said:[78]
Now, I'm very briefly going to go through the State and the defence cases, you've heard about them by very able counsel this morning and I don't intend to repeat them at length. The State accepts that it has to prove its case beyond a reasonable doubt and that it is reliant on [the complainant's] evidence for the purposes of doing so. The State says that you have to, of course, assess [the complainant's] truthfulness, accuracy and reliability.
And when you're doing that, you can take into account what she told the education inquiry in August 2020. But you should also take into account her evidence of why she said what she did and why she was covering for [the appellant]. Her evidence was that she was told to, 'Deny, deny, to deny,' and that she was scared as to what happened if she told the truth.
And you can take into account the differences between that education inquiry and when she had gone forward voluntarily to the police, and she knew at the time that she spoke to the police that there might be consequences for her if she didn't tell the truth.
Now, you can take into account what [the complainant] said about not making any complaint to any of her friends or her family as well. And that she also had the apology text, she referred to the apology text from Mason, who she understood to be [the appellant], and that was one of the things that she took into account when she was deciding what she would or would not do. (emphasis added)
[78] ts 334 - 335.
Ground 3 - appellant's submissions
The appellant submits that the trial judge's direction was wrong because it suggested that the Mason text message could be one of the factors that influenced the complainant to deny the appellant's impropriety at the Department of Education interview in August 2020. Given that the text message was not received until after that interview, the message could not have informed the complainant's decision.[79]
[79] WAB 47.
The appellant submits that the remarks of the trial judge invited the jury to use the evidence of the Mason text message for the purposes of considering why the complainant may have denied any inappropriate behaviour in the Department of Education interview. The complainant drew no link between the Mason text message and her decision to deny the offending, and the receipt of that message could not be used in that way. Thus, it is said, the direction invited the jury to resolve an issue which was material to the assessment of the complainant's credibility, by reference to irrelevant material and that amounts to an error of law.[80]
[80] WAB 47 - 48.
The appellant alternatively submits that the direction contained a serious misstatement of the evidence, such that there has been a miscarriage of justice. It is said that in the context of the issues in contest between the parties at trial, there is a realistic possibility that the misstatement of the evidence made by the trial judge affected the verdicts.[81]
[81] WAB 48 - 49.
Ground 3 - respondent's submissions
The respondent submits that it is important to consider the impugned passage in the context in which it appears. The passage formed part of the trial judge's summary of the State case and was not a direction to the jury as to the assessment of witnesses, or credibility or reliability generally.[82]
[82] WAB 78.
The respondent submits that the appellant's argument relies on an erroneous reading of the direction. The jury would have understood the impugned passage to be a summary of the State case and the submissions made by the prosecutor in closing. Understood in that light, her Honour's comment that the Mason text message was one of the things that the complainant took into account when she was deciding what she would or would not do, was a reference to the prosecutor's submissions regarding why the complainant did not report the matter more generally.[83]
[83] WAB 78 - 79, 83.
The respondent submits that it is arguable that the trial judge's summation did not precisely reflect the submissions of the prosecutor in closing. Her Honour's summation appears to conflate the Mason text message with other manipulative texts in a manner that overlooks the distinction drawn by the prosecutor. However, even if that is the case, no miscarriage of justice of the kind alleged by the appellant was occasioned. When her Honour's directions are considered as a whole, the jury would have understood the impugned passage to be a summary of the State case and would not have engaged in the line of reasoning advanced by the appellant.[84]
[84] WAB 83.
Ground 3 - disposition
A misstatement of fact by the trial judge may constitute an error or irregularity in the trial.[85] A misstatement will amount to a miscarriage of justice if it is fundamental in nature or if it is material in the trial that occurred. An error or irregularity will be material if it could realistically have affected the reasoning of the jury to the verdict of guilty in the trial. In this context, the word 'could' means 'having the capacity to', and 'realistically' means the possibility of a different outcome that is not fanciful or improbable. The burden of establishing that an error or irregularity is material lies on the appellant, but that burden is not onerous and is not to be confused with the inquiry to be undertaken in determining whether the proviso applies.[86]
[85] Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319.
[86] Brawn v The King [2025] HCA 20 [10] ‑ [11].
In the complainant's pre‑recorded evidence, she admitted that she had denied any impropriety when interviewed by a Department of Education investigator. She said that she did so because the appellant had told her before the interview to 'deny, deny, deny'. She said that she was covering for the appellant, though she had denied to the investigator at the time that that was what she was doing. She received the Mason text message some months later. She did not refer to that text as a reason why she had denied impropriety to the investigator.[87]
[87] Pre-recorded witness evidence, 1 September 2023, 114 ‑ 115.
The complainant also confirmed that, whilst she had advised her best friends, CE and LF, about the initial Snapchat message from the appellant received on 23 November 2019, she had not told them about the receipt of indecent communications or about the incidents of sexual touching. She also confirmed that she had not reported those matters to her parents.[88] In re‑examination she said that the reason she did not tell CE and LF was that '[she] didn't know how to. [She] felt like [she] couldn't talk to anyone about it'. She said that the reason she did not tell her parents was that '[she] could never bring it up to them. [She] just wanted to go to school, get through school'. She did not refer to the Mason text message as a reason why she had not reported the matter to her friends or parents.[89]
[88] Pre-recorded witness evidence, 1 September 2023, 98.
[89] Pre-recorded witness evidence, 1 September 2023, 113.
The first question is whether there was a misstatement of the evidence. In the impugned passage, the trial judge first deals with the Department of Education interview and refers to the complainant's explanation that she was told by the appellant to deny that any impropriety had occurred. In the last paragraph, her Honour turns to a different topic, that the complainant had not reported the incidents to her family or friends. It is in this context that her Honour refers to the Mason text message as being a possible reason for what the complainant did or did not do. It is apparent that this is not a suggestion that the Mason text message was an explanation for the denials of impropriety made in the Department of Education interview. The misstatement complained of is not established.
It is also noteworthy that the misstatement advanced on appeal was not raised by senior counsel for the appellant at the trial. There was no complaint regarding the directions and no suggestion that an error had been made. If there was a risk of the type now suggested, it is unlikely that it would have been overlooked by experienced trial counsel.
It might be said that it was inaccurate for the trial judge to suggest that the Mason text message was one of the things that the complainant took into account in deciding what she would or would not do as regards reporting the matter to friends and family, but that is not the error complained of. In any event, it is difficult to see how that error could have had any real potential to mislead the jury. The evidence of the lack of complaint and the reasons for it was simple and recently given as at the time the jury retired.
As to the 'fake' Snapchat accounts, the appellant's mobile telephone was seized, and its data was downloaded by the police. The data associated with the 'Vtrain22' account, from which the first Snapchat message was sent, was discovered. The absence of data associated with any other accounts was at odds with the complainant's evidence. It was, however, consistent with what the complainant had said in the Department of Education interview.[106]
[106] WAB 53.
As to the alleged different accounts of the count 3 incident, that is a matter that has been canvassed in dealing with ground 4.
As to the alleged incongruous nature of the complainant's evidence, the appellant submits that it is inconceivable that the complainant would wilfully comply with the appellant's continued demands to meet, particularly given her evidence that the appellant's advances were unwanted and forced. The appellant also suggests that it was inconsistent for the complainant to tell her friends about the first Snapchat communication but not any of the other more serious communications.[107]
[107] WAB 54.
The appellant submits that this combination of circumstances is such as to create an ineradicable doubt as to whether the allegations were true. This is so even accepting that the complainant may have presented in an apparently truthful fashion. The appellant submits that there is a reasonable possibility that the charged offending did not occur as alleged.[108]
[108] WAB 54 - 55.
Ground 5 - respondent's submissions
The respondent submits that the four factors referred to by the appellant are all directed to the assessment of the complainant's credibility. They do not, either individually or in combination, give rise to a reasonable doubt as to guilt which cannot be assuaged by reference to the advantages enjoyed by the jury of having seen and heard the evidence at trial.[109]
[109] WAB 91.
As to the Department of Education inquiry, the respondent accepts that the fact that a witness has, on a prior occasion, said something inconsistent with their evidence at trial is a matter than can be taken into account by a jury in assessing the witness's credibility. However, the respondent points to the fact that the complainant was extensively cross‑examined about her previous denials. The jury had the benefit of hearing what the complainant said about the interview and gauging her reaction when portions of the audio recording of the Department of Education interview were played to her. The respondent also points to the fact that the complainant provided an explanation for her denials, namely that the appellant had sent her a message telling her to 'deny, deny, deny'. She said she was scared as to what would happen if she told the truth and so she covered for the appellant.[110]
[110] WAB 92 - 93.
The respondent submits that in assessing the Department of Education interview it was open to the jury to consider the complainant's evidence about the offending and why she felt unable to tell anyone. The respondent points to the fact that the complainant was a young teenager at the time who was hoping to pursue a career in physical education, in circumstances where the appellant was one of the physical education teachers at the school. It is also relevant that when she disclosed the first Snapchat message to a friend it led to a report being made to the principal of the school. The complainant said that she continued to receive messages after that, including some that were 'manipulative'. When she failed to respond to the appellant on one occasion he had embarrassed her in front of a class.[111]
[111] WAB 93 - 94.
The respondent submits that it was open to the jury to conclude that there was a significant power imbalance between the complainant and the appellant. Seen in this light, the complainant's denials in the Department of Education interview and her explanation for them were not inherently implausible. It was a matter for the jury whether they accepted the complainant's explanation for the inconsistency.[112]
[112] WAB 94 - 95.
As to the 'fake' Snapchat accounts, the respondent says the argument that the absence of evidence linking the appellant to the accounts loses its force when considered against the chronology of the offending and the investigations. Apart from counts 1 and 2, the offending occurred between March and August 2020. The Department of Education inquiry occurred in August 2020 and the appellant was required to leave the school in the middle of term 3. The appellant's mobile telephone was not seized by police until sometime in 2021. That the appellant had deleted the other Snapchat accounts or had used a different mobile telephone entirely were inferences available to the jury.[113]
[113] WAB 96.
As to the suggested incongruous nature of the complainant's evidence, the respondent submits that it is not uncommon for victims of unwanted and forced sexual assault to act against their inclinations where the perpetrator is a person in a position of power relative to the victim. Furthermore, the complainant gave credible explanations for why she did not report the matter to her friends or family. It was also open to the jury to conclude that the complainant may have been reluctant to tell her friends given that her confidence had been breached on the earlier occasion regarding the first Snapchat message.[114]
[114] WAB 97 - 98.
The respondent submits that the appellant's submissions are premised on an outmoded and patently false stereotype as to how child victims of sexual assault by those in authority 'ought' to behave. The appellant's contentions do not raise a reasonable doubt as to guilt which cannot be assuaged by reference to the advantages enjoyed by the jury of having seen and heard the evidence at trial.[115]
[115] WAB 98 - 99.
Ground 5 - prosecution evidence
For the purposes of this ground it is necessary to undertake an assessment of the evidence at the trial. Some of the evidence of the complainant has already been canvassed in dealing with other grounds. That evidence will not be repeated in the following summary.
The complainant - the child witness interview
The complainant said that she was first contacted by the appellant at the end of her year 9. He sent her a message on Snapchat using an account in the name 'Vtrain22'. After an inquiry by the school principal, he continued to contact her throughout the 2019 ‑ 2020 Christmas break using 'fake' accounts. One account was in the name 'Aaron Jones' and another was in the name 'MattHicks21'. She thought that the one in the name of 'Aaron Jones' was later changed to the name 'Mason'.[116]
[116] BGAB 37.
After giving an overview of the appellant's conduct, the complainant was asked to provide details. She said that she first received a Snapchat friend request accompanied by a text message on a Saturday in November 2019. She thought the text message came up with the appellant's first name and said, 'Hi, I shouldn't be doing this' followed by a laughing face. The message was sent at around 3.00 am. She did not see the message until the following morning and did not respond until the afternoon. She asked who it was, and the appellant responded with his full name. He asked how she was and how she was finding school. She told two of her friends about the Snapchat exchange the following Monday. The mother of one of the friends reported the contact to the school principal. An investigation occurred and the complainant was interviewed. The appellant contacted the complainant via Snapchat and asked her to cover for him.[117]
[117] BGAB 41 - 43.
In the Christmas holiday break in 2019 ‑ 2020, the appellant continued to contact the complainant on Snapchat. He asked what she was doing for New Year. There were constant messages sent by the appellant, including late at night. He sent her photographs and videos of himself. Some were of his face and others without clothes on. In the latter photographs, his lower body and penis were visible. She said she received about 10 photographs. Some photographs appeared to be in a bathroom, some in a pool and others in a lounge room. The photographs showing the appellant's penis were in a lounge room. She no longer had the photographs because they automatically delete on Snapchat unless a screenshot is taken. She said that no one else saw the photographs. She asked why he had sent them. He asked if she liked them and if she wanted more. She said 'no', but he sent more photographs in any event, including more showing his penis. She did not reply again.[118]
[118] BGAB 44 - 50.
The complainant said that the appellant also sent her videos, usually at night after 8.00 pm. They were of the appellant masturbating. These videos were received around the end of January 2020, a week or two before school commenced. The appellant spoke in the first video, said the complainant's name and asked if she liked it, and then sent a message asking the same thing. She did not respond. That video was sent on Snapchat, and she thought it was on the Aaron Jones account. Although she could not see the appellant's face in the video, she recognised his voice. She continued to receive videos and photographs throughout 2020. Some were of the appellant in the car singing, but others were of the appellant's lower body and penis.[119]
[119] BGAB 53 - 55.
From the start of February 2020, the appellant began using the 'MattHicks21' account as well as the 'Aaron Jones' account. She knew they were both being used by the appellant because he told her so and she saw photographs and videos of him sent from those accounts.[120]
[120] BGAB 56.
In the Easter holidays, the appellant contacted the complainant and told her that he was at the school picking up a canoe or a kayak and asked to see her. She said that she was going home, and he said that he was coming to see her. She rushed home because she did not want to see him. She received a message saying that he was at the end of her street and asking whether she could come out to see him. She said no, and made an excuse that she had to help her mother. He sent her a text message containing a sad face emoji and said he wished he could see her.[121]
[121] BGAB 57.
The complainant said that the next incident occurred during the COVID‑19 pandemic, when there were few students at the school. This is the incident that is the subject of count 3, and the evidence in this regard has been referred to earlier in these reasons.
The next incident occurred in term 2. The complainant went to the small gym, at the appellant's request. She walked into a storeroom where the appellant was sitting. He asked her to come closer and he hugged her, with one hand around her waist and the other on her bottom. He then started to touch her breasts under her clothes. He unclipped her bra. He then squeezed her bottom under her shorts. He asked her to turn around and he moved his hand to her vagina and rubbed her clitoris. He said that she turned him on and he wanted her to touch him. He turned her around to face him, grabbed her hand and made her feel his penis, both over and under his clothes. He forced her to masturbate him. She told him that she had to leave to catch a bus. He said he wished he could be with her for longer and then hugged her before she walked off.[122]
[122] BGAB 63 - 74.
The complainant said that there were other incidents, but she could not remember them all because they were so similar. She said that the incidents occurred almost every week in term 2.[123]
[123] BGAB 75.
In term 3, there was an occasion when the complainant was in the big gym at lunch time, playing with a couple of bouncy balls. The appellant was on lunch duty and confiscated the balls and told the complainant that she could get them back until after school. When she went to see him after school, he said that she could only have one of the balls back and that, if she wanted it, she had to get it out of his pants. She said that he could keep it, and he then forced her hand into his pants. She grabbed the ball and said her fingers may have touched his penis. She pulled her hand away and said that she had to leave. He sent her a message asking why she had left, and she said that she had to catch the bus.[124]
[124] BGAB 77 - 82.
The appellant would sometimes give her detention though she had done nothing wrong. He would then try to flirt with her and get close to her, causing her to have to walk away. He also embarrassed her in class by asking her to tie his shoelaces, get his chair and do push‑ups.[125]
[125] BGAB 84 - 85.
The complainant said that there was another occasion when the outdoor education class returned from an activity and the appellant asked the complainant to help him move some life jackets. As the complainant was leaving the shed, the appellant closed the sliding door and touched her bottom over her clothing. He then let her go. This occurred in term 2.[126]
[126] BGAB 86 - 87.
The complainant said that another incident happened on her birthday in June 2020. The appellant sent her a message asking if he could get her a gift and suggested chocolate. She said no and that it was fine. He asked if she was sure, and she said she was and that she did not want anything. He said that he wanted to get her something and asked to see her on the next day, which was a Monday. On Monday morning, the appellant asked the complainant to go to the storeroom near the small gym. When she went there, he said he wanted to wish her happy birthday and that he had another idea for a birthday gift. He gave her a hug, grabbed her hand and put it on his penis, first over his clothing and then under the clothing. On this occasion he just held her hand in place and did not move it.[127]
[127] BGAB 89 - 91.
The last occasion was in term 3. The appellant again messaged the complainant and asked her to come to the storeroom. When she went, he was standing at the door on his mobile telephone. He asked her to come closer and when she did that, he gave her a hug. He then touched her breasts under her clothing. He unclipped her bra. He then touched her vagina, put his fingers inside her and touched her clitoris. He kissed her on the neck and the lips. He forced her head up and put his tongue inside her mouth.[128]
[128] BGAG 94 - 99.
The complainant said that she had told a female teacher about the appellant contacting her and touching her but had not gone into the details. There was then a Department of Education investigation. She said she had told a friend very recently, but again had not gone into details.[129]
[129] BGAB 101 - 104.
The complainant said that some of the messages that the appellant sent her made her feel manipulated. This included the appellant referring to problems with his wife and his relationship with his mother, who had passed away. He said that he was not having any sex with his wife, and she was avoiding him. The complainant had a screenshot of the Mason text message, which she said was at the very end of it all. That message was followed by the appellant asking her how much she hated him on a scale of 1 to 10, and she told him that he needed to stop. He then said that he would send a message apologising for hurting her.[130]
The complainant - pre-recorded evidence
[130] BGAB 105 - 107.
The complainant confirmed that the messages she received from the 'Aaron Jones' and 'MattHicks21' accounts were from the appellant. She said that she could say that because some of the messages included photographs showing the appellant's face. He also told her by message from those accounts that it was him.[131]
[131] Pre-recorded witness evidence, 1 September 2023, 64, 79, 84.
The complainant identified photographs of various locations at the school and a plan of the school. These included photographs showing the bus shed, the sliding door to that shed, the lock on that door, the security keypad, and the bikes in the bus shed. There were also photographs of the small gym, the storeroom, the big gym and the physical education office. The complainant identified these locations in the photographs and explained any differences in their appearance at the time of the incidents.[132]
[132] Pre-recorded witness evidence, 1 September 2023, 65 ‑ 70.
The complainant also identified screenshots of the first Snapchat friend request and the Mason text. She had taken the screenshot of the friend request to show her friends. She knew that the Mason text came from the appellant because she had previously received photographs of his face from that account.[133]
[133] Pre-recorded witness evidence, 1 September 2023, 64 ‑ 65, 72 ‑ 73.
In cross‑examination, the complainant agreed that the appellant was her outdoor education class teacher in 2020. The course was semester based. She had applied to take the class again in the second semester and her application had been granted.[134]
[134] Pre-recorded witness evidence, 1 September 2023, 73, 77 ‑ 78.
The complainant agreed that she had screenshot the Snapchat friend request and sent it to her friends CE and LF. She asked them not to tell anyone. When she went to school the next day the appellant spoke to her. He apologised, said he should not have sent the request and that he was drunk at the time. She accepted that apology.[135]
[135] Pre-recorded witness evidence, 1 September 2023, 79, 81, 83.
The complainant accepted that she had not told her friends about the subsequent indecent images sent by the appellant during the Christmas holiday period. Nor had she screenshot those images or done anything else to preserve them. When it was put to her that the sending of the indecent images did not happen, she maintained that it did. She denied that she had fabricated the allegations.[136]
[136] Pre-recorded witness evidence, 1 September 2023, 84 ‑ 85.
The complainant accepted that she had not told her friends or parents about any of the touching incidents.[137] The incident relating to count 3 was dealt with in detail and that cross‑examination has been referred to earlier in these reasons.
[137] Pre-recorded witness evidence, 1 September 2023, 98.
The complainant agreed that on 31 August 2020, she had participated in an interview with a Department of Education investigator. The interview had continued for two hours and related to the appellant. She agreed that she told the investigator that nothing inappropriate had occurred other than the first Snapchat message. She gave a 'pinkie promise' that she had told the absolute truth. She agreed that in effect, she had given the appellant a good character reference.[138]
[138] Pre-recorded witness evidence, 1 September 2023, 100 ‑ 101, 106, 109.
In re‑examination the complainant said that she had done the outdoor education course a second time because her chosen career pathway was to become a physical education teacher.[139]
[139] Pre-recorded witness evidence, 1 September 2023, 111.
The complainant said that she did not take screenshots of the indecent images because if she had done so, the appellant would have been notified of the fact by Snapchat. She also said she did not think to do it at the time. She did not discuss the images with the appellant as she did not know what to say. She communicated with the appellant on Snapchat because she felt trapped.[140]
[140] Pre-recorded witness evidence, 1 September 2023, 111 ‑ 112.
The complainant said she did not tell her friends about the indecent images or contact incidents because she did not know how to, and felt she could not talk to anyone about it. She did not tell her parents because she could never bring it up with them, and she wanted to get through school. She said that she continued to meet the appellant because she did not know what else to do, and was scared as to what might happen if she did not.[141]
[141] Pre-recorded witness evidence, 1 September 2023, 113.
The complainant said that she lied in the Department of Education interview when she said that nothing inappropriate had occurred. She was covering for the appellant. She was scared as to what might happen if she told the truth. Prior to attending the interview, the appellant had sent her a Snapchat message telling her to 'deny, deny, deny'.[142]
Other evidence
[142] Pre-recorded witness evidence, 1 September 2023, 114 ‑ 115.
The only other witnesses were the school principal and the investigating police officer. The school principal said that on 6 December 2019, she spoke to the appellant about the first Snapchat friend request. The appellant told her that he had gone out one night and met a woman. He said he had too much to drink and when trying to add the woman on social media, he had accidentally added a student as a friend. He said he deleted the student, apologised to her and checked if she was alright. He appeared to be very remorseful.[143]
[143] ts 250.
The investigating officer said that he had seized the appellant's mobile telephone in 2021. The complainant had not been required to produce her mobile telephone. She did, however, provide some screenshots of the Snapchat messages from the appellant. The officer said that the metadata as to the origin and time of a message was not available with Snapchat messages. The only metadata available was related to the date the screenshot was taken.[144]
[144] ts 251 - 255.
The investigating officer said that when the appellant's mobile telephone was interrogated, data associated with the 'Vtrain22' account was located, but no data associated with the 'MattHicks21' or 'Aaron Jones' or 'Mason' accounts was located.[145]
[145] ts 255 - 256.
Ground 5 - defence evidence
The appellant did not give nor adduce any evidence at the trial.
Ground 5 - disposition
The prosecution case critically depended on the evidence of the complainant. In essence, the appellant asserts that the jury could not be satisfied beyond reasonable doubt of the offences based on the complainant's evidence; given the inconsistencies, discrepancies and other inadequacies of her evidence. We will focus on the four issues raised by the appellant in this regard.
The fact that the complainant had previously denied any impropriety in the Department of Education interview was a relevant matter for the jury to take into account. A prior inconsistent statement can adversely impact on the credibility of a witness. However, the weight to be accorded to such a statement will usually depend on the circumstances in which it was made, and any explanation for it given by the witness. In this case, the complainant was a child who, on her own account, was scared at the time of the interview about what could happen if she told the truth. She also said that she lied to cover for the appellant because he told her to 'deny, deny, deny'. That explanation was not inherently implausible.
The other 'fake' accounts could be linked to the appellant because the complainant said that she received messages which she could identify as being from the appellant from those accounts. The fact that there was no independent evidence to establish a link with those accounts was evident, but does not in itself mean that the complainant's evidence must be rejected. The absence of any data relating to those accounts on the appellant's mobile telephone is neutral, having regard to the fact that the mobile telephone was not seized until sometime in 2021. In any event, it is not known what telephone was used to send the messages.
The suggested inconsistency in the complainant's evidence in regard to count 3 has been dealt with in dealing with ground 4. For the reasons already given, the suggested inconsistency has not been made out.
The contention - that the complainant's evidence is incongruous because it is improbable that she would continue to meet with the appellant if the attention was unwanted - neglects to take into account the explanations given by the complainant. She said that she did not know what else to do. It is relevant to consider the power imbalance between a teacher and a student, an imbalance that was evident when the appellant sought to embarrass the complainant by requiring her to tie his shoelaces, fetch his chair and do push‑ups in his class. The complainant also gave explanations for why she did not tell her friends or family. It is now well understood that victims of sexual offending will often be reluctant to report it due to embarrassment or fear of the consequences.
In our own independent assessment of the sufficiency and quality of the evidence, we are not left with a reasonable doubt as to the appellant's guilt. The trial record does not require the conclusion that the jury must necessarily have had a doubt about the appellant's guilt. It was open to the jury, acting reasonably, to be satisfied beyond reasonable doubt as to the appellant's guilt. The suggested discrepancies or inadequacies in the evidence of the complainant that the appellant relies on, do not lead us to conclude that there is a significant possibility that an innocent person has been convicted. In any event, any possible doubt would be resolved by having regard to the advantage that the jury had in seeing and hearing the complainant give evidence. It has not been established that, in all of the circumstances, it would be dangerous to allow the verdicts of guilty to stand.
The verdicts of guilty were not unreasonable. The verdicts were supported by evidence that the jury was entitled to accept, and inferences that jury was entitled to draw. The nature and quality of the evidence at the trial was sufficient to remove any doubt that the appellant was guilty.
Leave to appeal in respect of ground 5 should be refused.
Conclusion
The appeal against conviction should be dismissed.
Orders
We would make the following orders:
1.Leave to appeal on all grounds 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.
MO
Associate to the Honourable Justice Hall
16 MAY 2025
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