WMT v The State of Western Australia - [2021] WASCA 104

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   WMT -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 104
CORAM:   BUSS P
PRITCHARD JA
VAUGHAN JA

HEARD:   23 NOVEMBER 2020
DELIVERED          :   21 JUNE 2021
FILE NO/S:   CACR 155 of 2019
BETWEEN:   WMT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BOWDEN DCJ
File Number            :   IND 1493 of 2017

Catchwords:

Criminal law - Conviction - Indecent dealing and sexual penetration of lineal relative under 16 years - Conduct of defence counsel - Alleged failure to adequately open the defence case - Alleged failure to lead or adduce evidence of good character - Alleged failure to object to inadmissible material in electronic record of interview - Alleged failure to adequately close defence case - Alleged failure to test the evidence in relation to each separate count during cross examination

Criminal law - Appeal - Whether miscarriage of justice - Principles governing appeals against conviction on the basis of alleged failures by counsel for an accused - Whether material irregularity in the trial - Whether there is a significant possibility that any irregularity affected the outcome of the trial

Criminal law - Appeal - Practice and procedure - Application for leave to appeal - Application for extension of time within which to appeal - Application to adduce additional affidavit evidence

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3)(c), s 40(1)(e)
Criminal Procedure Act 2004 (WA), s 143(2), s 143(3), s 145(2)
Evidence Act 1906 (WA), s 8(1)(e)(ii), s 8(1)(f)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr S B Watters
Respondent	:	Mr R G Wilson

Solicitors:

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

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

BGH v The State of Western Australia [2020] WASCA 124
Colley v The State of Western Australia [2015] WASCA 79
Craig v The Queen [2018] HCA 13; (2018) 264 CLR 202
De Silva v The Queen [2013] VSCA 339; (2013) 236 A Crim R 214
Durani v The State of Western Australia [2012] WASCA 172
Huggins v The State of Western Australia [2018] WASCA 61
Longman v R [1989] HCA 60; (1989) 168 CLR 79
McMahon v The State of Western Australia [2010] WASCA 143
Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1
Morgan v The State of Western Australia [No 2] [2019] WASCA 185
Palmer v R [1998] HCA 2; (1998) 193 CLR 1
R v D (1996) 86 A Crim R 41
R v DBB [2012] QCA 96; [2013] 1 Qd R 188
R v Hamilton (1993) 68 A Crim R 298
R v Stalder [1981] 2 NSWLR 9
Sethi v The State of Western Australia [2020] WASCA 173
Sharma v The Queen [2011] VSCA 356
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Vo v The State of Western Australia [2012] WASCA 6
ZHA v The State of Western Australia [2020] WASCA 101

TABLE OF CONTENTS

BUSS P:

The counts in the indictment, the State's case at trial, the appellant's case at trial, the relevant evidence at trial, the relevant submissions of the prosecutor and defence counsel at trial and the relevant directions of the trial judge

The additional evidence sought to be adduced in the appeal and the submissions of the appellant and the State in the appeal

A ground of appeal which relies upon the alleged incompetence of defence counsel: applicable legal principles

Particular 1.1 of the ground of appeal

Particular 1.2 of the ground of appeal

Particular 1.2 of the ground of appeal: applicable legal principles

Particular 1.2 of the ground of appeal: should the additional evidence be admitted in the appeal?

Particular 1.2 of the ground of appeal: evidence concerning the appellant's instructions to defence counsel at and prior to the trial in relation to good character evidence and Ms H's willingness to give evidence

Particular 1.2 of the ground of appeal: fact finding concerning the appellant's instructions to defence counsel at and prior to the trial in relation to good character evidence and Ms H's willingness to give evidence

Particular 1.2 of the ground of appeal: the good character evidence adduced in the appeal

Particular 1.2 of the ground of appeal: its merits

Particulars 1.3, 1.4 and 1.5 of the ground of appeal

The cumulative effect of the decisions of defence counsel

The relevance and admissibility of the additional evidence

Conclusion

PRITCHARD JA:

Introduction

(a) Overview of the trial

Opening addresses

Counsel for the respondent's opening address

Defence counsel's opening address

The evidence

The complainant's evidence‑in‑chief

Cross-examination of the complainant

Evidence given by Ms T

Cross-examination of Ms T

Evidence of the investigating police officer, and the EROI

The appellant's evidence‑in‑chief

Cross-examination of the appellant

Closing addresses

Respondent's closing address

Defence counsel's closing address

The trial judge's directions to the jury

(b) The application for an extension of time within which to appeal

(d) Respondent's applications to adduce additional evidence

Respondent's application filed 1 April 2020

Respondent's application filed 23 June 2020

Evidence given by defence counsel in relation to her opening address (particular 1.1)

Evidence given by defence counsel in relation to why she did not adduce evidence of the appellant's good character (particular 1.2)

Evidence of defence counsel as to whether Ms H was willing and available to give evidence of the appellant's good character

Defence counsel's evidence as to the appellant's instructions in relation to whether witnesses as to his good character should be called

Defence counsel's reasons for not calling evidence of the appellant's good character

Evidence of defence counsel as to whether she objected to the admission of parts of the EROI about which the appellant now complains (particular 1.3)

Evidence given by defence counsel as to the closing address (particular 1.4)

Other evidence given by defence counsel (particular 1.5)

Conclusion in relation to the admissibility of the evidence of defence counsel

(e) The appellant's application to adduce additional evidence

Evidence of the appellant

Evidence of Ms H

Conclusion in relation to the appellant's application filed 3 November 2020 to adduce the affidavit of the appellant and the affidavit of Ms H

(f) The ground of appeal - disposition

(i) Particular 1.1 - failure to adequately open the defence case

(ii) Particular 1.2 failure to lead or adduce good character evidence on behalf of the appellant

(iii) Particular 1.3 - failure to object to inadmissible material in the EROI

(iv) Particular 1.4 - failure to adequately close the appellant's case

(v) Particular 1.5 - failure to adequately test the evidence in relation to each separate count during cross-examination

(vi) The cumulative effect of the decisions of defence counsel

(g) The orders which should be made

VAUGHAN JA:

ANNEXURE A

BUSS P:

The appellant has applied for an extension of time to appeal and for leave to appeal against conviction.
The appellant was charged on indictment with 26 counts of sexual offending against his biological daughter. He pleaded not guilty.
On 16, 17, 18 and 19 April 2018, the appellant was tried before Bowden DCJ and a jury. At the close of the State's case, the trial judge ruled that no evidence had been adduced in relation to counts 21, 23 and 24. His Honour directed that verdicts of acquittal be entered on those counts. At the conclusion of the trial, the jury returned verdicts of guilty on all of the remaining counts.
The appellant was born in 1968. The complainant was born in 1998.
The alleged offending occurred between 28 July 2004 and 26 February 2014.
The appellant does not assert that any of the verdicts of guilty should be set aside because, having regard to the evidence, any verdict is unreasonable or cannot be supported.
Nothing in the trial judge's summing up is challenged.
The appellant relies upon one ground of appeal. The ground, as amended, alleges that a miscarriage of justice occurred at the trial and was caused by, in essence, the incompetence of defence counsel.
The ground of appeal contains five particulars as follows:
(a)Particular 1.1 alleges that defence counsel failed adequately to open the defence case.
(b)Particular 1.2 alleges that defence counsel failed to adduce good character evidence on behalf of the appellant.
(c)Particular 1.3 alleges that defence counsel failed to object to inadmissible material in the appellant's electronic record of interview with police.
(d)Particular 1.4 alleges that defence counsel failed adequately to close the appellant's case.
(e)Particular 1.5 alleges that defence counsel failed adequately to test by cross-examination the evidence in relation to each separate count in the indictment.
The appellant's case on appeal is that the incompetence of defence counsel resulted in a material irregularity in the trial. The appellant does not contend that defence counsel's incompetence deprived the appellant of a fair trial according to law.
The State has filed two applications in an appeal and the appellant has filed one application in an appeal for leave to adduce additional evidence in the appeal. The State's applications comprise an application dated 31 March 2020 for leave to adduce the affidavit of Robert Graham Wilson sworn 31 March 2020 and an application dated 23 June 2020 for leave to adduce the affidavit of defence counsel at the trial sworn 19 June 2020. The appellant's application is dated 3 November 2020 and is for leave to adduce the affidavit of the appellant sworn 2 November 2020 and the affidavit of the appellant's partner (Ms H) sworn 30 October 2020.
The last date for the appellant to appeal against conviction was 3 July 2018. He did not file his appeal notice until 26 September 2019. The appellant's application for an extension of time is supported by an affidavit of his lawyer, Kathryn Alice Heslop, sworn 25 September 2019 and an affidavit of the appellant sworn 8 January 2020.
The appellant's application for an extension of time to appeal should be dismissed. Leave to appeal should be refused. The appeal must be dismissed.

Details of the counts in the indictment, the State's case at trial, the appellant's case at trial, the relevant evidence at trial, the relevant submissions of the prosecutor and defence counsel at trial and the relevant directions of the trial judge are contained in Pritchard JA's reasons. I will not repeat any of them except to the extent necessary to explain my reasons.

The additional evidence sought to be adduced in the appeal and the submissions of the appellant and the State in the appeal

Details of the additional evidence sought to be adduced in the appeal and the submissions of the appellant and the State in the appeal are contained in Pritchard JA's reasons. I will not repeat any of them except to the extent necessary to explain my reasons.

A ground of appeal which relies upon the alleged incompetence of defence counsel: applicable legal principles

In McMahon v The State of Western Australia,[1] McLure P (with whom I agreed) summarised the law relating to a ground of appeal which alleges a miscarriage of justice by reason of defence counsel's conduct of the defence case, as follows:
The appellant has to demonstrate that the conduct of his counsel caused a miscarriage of justice, a task which constitutes a heavy burden: TKWJ v The Queen (2002) 212 CLR 124 [74] (McHugh J). That is a consequence of the adversarial nature of a criminal trial and the role and function of counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involved errors of judgment or even negligence: TKWJ [74], [79] (McHugh J); R v Birks (1990) 19 NSWLR 677, 685 (Gleeson CJ).
In this context, miscarriage of justice has two aspects, process and outcome. If the conduct of counsel has deprived the accused of a fair trial according to law, that will give rise to a miscarriage of justice without regard to whether counsel's conduct might have affected the outcome: TKWJ [76] (McHugh J); Nudd v The Queen [2006] HCA 9 [3] ‑ [7] (Gleeson CJ). This corresponds with that limb of the proviso where there is a serious breach of the pre‑suppositions of a trial: Weiss v The Queen (2005) 224 CLR 300 [46]; Wilde v The Queen (1988) 164 CLR 365, 373. A complete failure to cross‑examine a complainant or a complete failure to address the jury may result in an unfair trial: TKWJ [76]. So too may wrong advice that an accused is not entitled to give evidence: Nudd [17].
In the majority of cases, irregular conduct of counsel will not deprive the appellant of a fair trial. In such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues. First, did counsel's conduct result in a material irregularity in the trial. Secondly, is there a significant possibility that the irregularity affected the outcome: TKWJ [79] (McHugh J); Ali v The Queen (2005) 79 ALJR 662 [18] (Hayne J).
The test of whether there is a material irregularity is objective: TKWJ [17], [27] ‑ [28], [107]. Ordinarily, it is difficult to establish a material irregularity when the alleged error of counsel concerned forensic choices upon which competent counsel could have differing views: TKWJ [81]. However, if the error of counsel plainly affected the result of the trial, there will be a miscarriage even though the error involved a forensic choice or judgment. Where the error involves the failure to adduce evidence, there are parallels with the test for the admission of new or fresh evidence: TKWJ [32] (Gaudron J).
[1] McMahon v The State of Western Australia [2010] WASCA 143 [24] - [27].
In Colley v The State of Western Australia,[2] McLure P referred to the extract which I have reproduced from her Honour's reasons in McMahon, and then said:
The appellant's claims in this case fall within the 'process' category. That is, the appellant claims he was deprived of a fair trial according to law.
As is clear from the use of the word 'ordinarily' in the first paragraph of the extract, it is a general rule that an accused is bound by the way a trial is conducted by counsel. In particular, not all decisions made by counsel contrary to instructions will bind the accused. The point is made clearly by Gleeson CJ in Nudd v The Queen [2006] HCA 9:
A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions [9]. (emphasis added)
For example if, as the appellant says in this case, he instructed trial counsel not to defend the charge on the basis of self‑defence because he (the appellant) did not at any stage hit the deceased, to do so would be outside the scope of any implied power in the retainer to make decisions on behalf of the appellant.
Moreover, it is outside the scope of any implied retainer for trial counsel to conduct a positive defence that is inconsistent with the accused's instructions as to what had actually occurred. A 'positive defence' includes cross‑examination of witnesses for the prosecution suggesting, expressly or impliedly, that counsel is putting his or her client's instructions as to relevant factual matters.
It is unnecessary to determine whether trial counsel may, with the client's consent, put in cross‑examination a positive defence that is inconsistent with his or her client's instructions as to what actually occurred. Even if permissible, the client would have to be informed by trial counsel that he or she could not lead evidence from the accused that was inconsistent with his or her instructions as to what actually occurred. That is, prior to the cross‑examination the client would have to elect not to give evidence at trial. In that way there would be no breach of the first aspect of the rule in Browne v Dunn (Browne v Dunn (1893) 6 R 67 HL). As to which, see Merrey v The State of Western Australia [2010] WASCA 62 [12].
[2] Colley v The State of Western Australia [2015] WASCA 79 [29] - [33].
In Morgan v The State of Western Australia [No 2],[3] this court stated the relevant general principles which govern the determination of whether the conduct of defence counsel has caused a miscarriage of justice, as follows:
The relevant general principles as to when a miscarriage of justice may arise through incompetent representation were recently summarised by this court in Huggins v The State of Western Australia (Huggins v The State of Western Australia [2018] WASCA 61 [375] ‑ [401]). We adopt that comprehensive analysis without repeating it, noting the following passage of the reasons in that case (Huggins [376]):
An appellant who seeks to demonstrate that the conduct of his or her counsel caused a miscarriage of justice undertakes a heavy burden which is not easily discharged. This is a consequence of the adversarial nature of a criminal trial and the role played by counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel even if that was not in accordance with the wishes of the client. It is not a ground for setting aside a conviction that decisions made by counsel were made without or contrary to instructions or involved errors of judgment or even negligence. It is not the province of appellate courts to review the wisdom or prudence of the conduct of a trial by trial counsel. For example, an apparently rational decision by trial counsel as to what evidence to call or not to call does not give rise to a miscarriage of justice simply because an appellate court thinks it worked to the probable disadvantage of the appellant. (citations omitted)
Further, as was recently reiterated in Jeffery v The State of Western Australia (Jeffery v The State of Western Australia [2018] WASCA 219 [104] (citing Buss P in Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96 [115]), this court does not examine whether a decision taken by the appellant's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage. Rather, the court is concerned only with whether counsel's decision is capable of explanation on that basis. That is, could there be any reasonable explanation for the decision? The test is objective in character.
[3] Morgan v The State of Western Australia [No 2] [2019] WASCA 185 [205] - [206].

Particular 1.1 of the ground of appeal

Particular 1.1 alleges, in essence, that a miscarriage of justice occurred at the trial because defence counsel failed adequately to open the defence case.
I agree with Pritchard JA, generally for the reasons she gives, that particular 1.1 is without merit.

Particular 1.2 of the ground of appeal

Particular 1.2 of the ground of appeal alleges, in essence, that a miscarriage of justice occurred at the trial because defence counsel failed to adduce good character evidence on behalf of the appellant.

Particular 1.2 of the ground of appeal: applicable legal principles

In ZHA v The State of Western Australia,[4] this court set out the applicable principles in relation to adducing evidence of an accused's good character in a criminal trial as follows:
[4] ZHA v The State of Western Australia [2020] WASCA 101 [183] ‑ [197].

In R v Rowton ((1865) Le & Ca 520; 169 ER 1497), it was held that a witness called to give evidence of an accused's character can speak only of the accused's general reputation.
In Attwood v The Queen ([1960] HCA 15; (1960) 102 CLR 353), Dixon CJ, McTiernan, Fullagar, Taylor and Menzies JJ said:
The expression 'good character' has of course a known significance in relation to evidence upon criminal trials; for it denotes a description of evidence in disproof of guilt which an accused person may adduce. He may adduce evidence of the favourable character he bears as a fact or matter making it unlikely that he committed the crime charged. The limitations upon the description of evidence admissible under this head are the subject of the much discussed decision of Reg v Rowton (1865) Le & Ca 520 [169 ER 1497]. Probably the limitations are not observed in practice but that is not the aspect of the case that concerns us here. What does concern us is that the reasons of the judges show clearly enough that evidence of good character is regarded as really bearing on the probability or improbability of guilt (359).

Good character evidence is admissible in relation to the credibility of an accused who denies his or her guilt and, also, the unlikelihood of the accused having committed the offence.
In Durani v The State of Western Australia ([2012] WASCA 172), it was pointed out that the assumptions which underpin these accepted areas of relevance are:
(a)as to guilt, a person of good character is assumed to be less likely to commit an offence and therefore less likely to have committed the offence in question; and
(b)as to credibility, a person of good character is assumed to be more likely to be an honest witness and therefore a person whose evidence should be accepted [107].

Each of these assumptions is dubious. See Melbourne v The Queen ([1999] HCA 32; (1999) 198 CLR 1 [47] ‑ [48] (McHugh J), [109] (Kirby J)); Durani [107].
In Melbourne, McHugh J said that 'character' refers to a person's inherent moral qualities or disposition and is to be contrasted with reputation, which refers to the public estimation or repute of a person irrespective of the person's inherent qualities [33].
In Braysich v The Queen ([2011] HCA 14; (2011) 243 CLR 434 [42]), French CJ, Crennan and Kiefel JJ referred with approval to these observations of Gummow J in Melbourne:
The issues in the particular case and the nature of the evidence of 'good character' which is proffered will guide the process of reasoning of the tribunal of fact on the path to providing an answer to the ultimate question of whether the accused is guilty beyond reasonable doubt [72]. (footnote omitted)

Cross on Evidence (12th Aust ed, 2020) at [19110] comments, in relation to the rule in Rowton, that '[t]here is much to be said for abandoning a rule which is difficult to apply and widely ignored'. Stephen, Digest of the Law of Evidence (12th ed, 1936) at 201, criticised the rule because:
A witness may with perfect truth swear that a man who, to his knowledge, has been a receiver of stolen goods for years, has an excellent character for honesty if he has the good luck to conceal his crimes from his neighbours.

Despite these criticisms, the common law continues to recognise the right of an accused to adduce evidence of his or her good character.
In Donaldson v The State of Western Australia ([2007] WASCA 216; (2007) 176 A Crim R 488), it was noted that the rule in Rowton, which restricts the scope of character evidence to evidence of an accused's general reputation, is often not complied with, and in this State evidence is often adduced beyond the scope of general reputation [73].
There are cases which recognise the potential value of evidence of good character, particularly in cases concerning alleged sexual offending against children. In TKWJ v The Queen ([2002] HCA 46; (2002) 212 CLR 124 [94]), McHugh J said that:
Evidence of good character almost always helps an accused person's defence. Sometimes it is the decisive factor in returning a verdict of not guilty [R v D (1996) 86 A Crim R 41]. It may demonstrate that it is unlikely that the accused committed the act charged, or it may support the credibility of the evidence of the accused in denying his or her guilt.

In R v D ((1996) 86 A Crim R 41), to which McHugh J referred, the appellant was convicted of various sexual offences against his daughter. He gave evidence denying the allegation. For reasons which were not explained, the defence failed to call a number of character witnesses who were available to testify. Hunt CJ at CL, with whom Grove J and Barr AJ agreed, said that the proposed character evidence was impressive and 'could well have had a substantial effect upon the jury's verdict'. Hunt CJ at CL said as follows:
Evidence of good character can be of substantial benefit to an accused person. It may demonstrate that it is unlikely that, as a person of good character, he or she would have done the act charged. It may also support the credibility of the evidence of the accused denying guilt and hence the unlikelihood of his or her guilt. There is a vast difference in the likely effect upon a jury between the basic type of evidence which was in fact elicited at this trial [namely, evidence that the appellant had no criminal record] and the further evidence which was available … ; the jury is entitled to and may well in fact give greater weight to the evidence of witnesses who are able to speak directly to the good character of the accused than to evidence of the bare nature elicited in this case.

See also Durani ([130] ‑ [132]) where other cases were identified.
However, the courts have also recognised that sexual offending by adults of previously unblemished reputations, and who appear to their friends, relatives and business and social acquaintances to be of impeccable character, is all too frequently found to have occurred.
As Hayne J said in Melbourne [152], the use that a jury might make of evidence of good character will vary greatly according to the circumstances of the case. It will vary according to what is said about the previous character of the accused and what relationship, if any, that has to the case that is sought to be made against the accused.
In some cases, there is an evident forensic reason not to adduce character evidence. For example, in TKWJ, if character evidence had been adduced there was a real risk, if not a probability, that the prosecution would have been given leave to adduce evidence in rebuttal that would have been prejudicial to the accused.

Particular 1.2 of the ground of appeal: should the additional evidence be admitted in the appeal?

The appellant, Ms H and defence counsel gave oral evidence at the hearing of the appeal. The appellant and Ms H were cross‑examined by counsel for the State in connection with their affidavits filed pursuant to the appellant's application for leave to adduce additional evidence in the appeal. Defence counsel was cross‑examined by counsel for the appellant in connection with the State's application for leave to adduce evidence in the appeal.
I would grant the appellant's application and the State's applications for leave to adduce additional evidence in the appeal, being the affidavits relied upon by the appellant and the State and the oral evidence heard at the hearing of the appeal to the extent that the affidavits and the oral evidence are relevant and admissible. Later in these reasons, I will deal with the issue of relevance and admissibility.

Particular 1.2 of the ground of appeal: evidence concerning the appellant's instructions to defence counsel at and prior to the trial in relation to good character evidence and Ms H's willingness to give evidence

In her affidavit sworn 19 June 2020, defence counsel said, relevantly and in effect, that:
(a)Ms H told defence counsel prior to the trial that she did not want to give evidence at the trial for personal reasons;
(b)defence counsel met with the appellant in the District Court custody area before the resumption of the trial on 18 April 2018 and the appellant instructed her that he would give evidence at the trial, but he did not wish to call evidence;
(c)the question of giving and calling evidence had been discussed previously between defence counsel and the appellant; and
(d)defence counsel's recollection was that the appellant signed a written document headed 'Authority' dated 18 April 2018 (the Authority) after he was brought from the District Court custody area to the court and before the resumption of the trial on 18 April 2018.
Defence counsel annexed to her affidavit a copy of the Authority.
In the Authority, the appellant stated, relevantly and in effect, that he had 'weighed up all of the factors for and against' and had elected 'to give evidence but not to call witnesses in [his] own defence'. The appellant acknowledged in the Authority that 'once this decision is communicated to the Judge and Jury [he could not] reverse the decision but until then [he could] change [his] mind at any time'.
By an email dated 20 November 2020, counsel for the State disclosed to counsel for the appellant that counsel for the State had asked defence counsel about the substance of any conversation she may have had with the appellant, at or prior to the trial, concerning whether good character evidence should be called. Defence counsel informed counsel for the State that her memory in relation to that issue was vague. Defence counsel said she believed she and the appellant had discussed whether Ms H should be called. It was possible that they had discussed whether Mr KH should be called, but defence counsel could not 'say for certain whether the term character witness was ever used'.
At the hearing of the appeal, defence counsel said in evidence in chief that she believed she had a conversation with Ms H about giving evidence. However, defence counsel could not recall specifically the substance of the conversation. The conversation was by telephone (appeal ts 54).
Defence counsel also said in examination in chief that she could not recall specifically any communications with the appellant prior to the trial in relation to the calling of good character evidence (appeal ts 55).
On 18 April 2018, the appellant gave evidence at the trial. Defence counsel did not call any other witnesses.
In his affidavit sworn 2 November 2020, the appellant said, relevantly and in effect, that:
(a)prior to the trial Ms H and the appellant attended a meeting with defence counsel and at the meeting Ms H was 'emphatic about her wish to give good character evidence [at the] trial';
(b)the appellant signed the Authority annexed to defence counsel's affidavit in the dock, on the day he gave evidence, before proceedings began that day;
(c)'[i]t seemed reasonable to sign [the Authority stating that he] chose not to call witnesses as [defence counsel] had not called any';
(d)the appellant 'always maintained to [defence counsel] that [he] wished to use character witnesses in [his] trial, but [defence counsel] did not seem interested';
(e)the appellant told defence counsel that he had 'a number of people willing to support [him] by giving good character evidence in the trial';
(f)however, '[i]n the end, as [defence counsel] was [his] lawyer, [the appellant] trusted her opinion' and he 'reluctantly deferred to her advice'; and
(g)the people the appellant wanted to call at the trial gave character references at his sentencing hearing.
At the hearing of the appeal the appellant said, in cross‑examination, that before he signed the Authority '[defence counsel] had … recommended not to call [good character evidence]' because defence counsel 'felt that that wouldn’t make any difference' and 'that was the strategy she was taking' (appeal ts 35).
Later in cross‑examination, the appellant agreed that 'after receiving [defence counsel's] advice [the appellant] chose not to call any character witnesses and [the appellant] had made that decision by the start of the trial' (appeal ts 37). The appellant said that defence counsel was 'the expert and, reluctantly, [he] agreed to go with her tactics' (appeal ts 37).
In her affidavit sworn 30 October 2020, Ms H said that she never told defence counsel that she did not want to give evidence at the appellant's trial 'for personal reasons'. According to Ms H, she was 'always happy to be a witness in the appellant's trial'. Ms H said that in defence counsel's office she told defence counsel, in the appellant's presence, that she was happy to be a witness. Ms H maintained her evidence under cross‑examination.
At the hearing of the appeal Ms H said, in cross‑examination, that at the time of the trial one of her daughters was aged 17 and the other was aged 16 (appeal ts 41).
In cross‑examination, Ms H also said that she attended the appellant's trial. The appellant's mother, his brother (Mr KH) and two of the appellant's close friends also attended the trial (appeal ts 42).
In re‑examination, Ms H identified a written statement dated 22 January 2018 that she had given in relation to the appellant's trial. In the statement Ms H said that she and her daughters began living with the appellant in March 2015. Prior to Ms H and her daughters co-habiting with the appellant, the appellant had informed Ms H of the allegations of sexual abuse which the complainant had made against him. The appellant denied that the allegations were true. When the co-habitation commenced Ms H's daughters were aged 14 and 13.

Particular 1.2 of the ground of appeal: fact finding concerning the appellant's instructions to defence counsel at and prior to the trial in relation to good character evidence and Ms H's willingness to give evidence

As I will explain later in these reasons, particular 1.2 is without merit.
I have arrived at that conclusion on the assumption, favourable to the appellant but without deciding, that:
(a)the appellant's evidence concerning the instructions he gave to defence counsel at and prior to the trial in relation to good character evidence is correct; and
(b)at all material times, Ms H was willing to give evidence at the appellant's trial and she informed defence counsel of her willingness.

Particular 1.2 of the ground of appeal: the good character evidence adduced in the appeal

The appellant annexed to his affidavit sworn 2 November 2020 the character references given for the purposes of his sentencing hearing.
The authors of the character references were Ms H, Mr KH, Mr PH, Mr GW, Mr BP and Ms H's daughters. In his affidavit sworn 2 November 2020, the appellant said that Ms H, Mr KH, Mr PH and Mr GW attended 'all or part of the trial'.
In the appeal, the character references from Ms H, Mr KH, Mr PH, Mr GW, Mr BP and Ms H's daughters were edited, by agreement between counsel for the appellant and counsel for the State, to remove irrelevant and inadmissible material.
In her affidavit sworn 30 October 2020, Ms H said, relevantly and in effect, that the evidence that she would have given at the appellant's trial 'would have been similar to the contents of the reference letter that [she] wrote for the appellant's sentencing hearing'.
The character reference from Ms H reads, relevantly:
(a)Ms H first met the appellant when they were teenagers;
(b)they were 'very close for many years' but eventually 'went [their] own ways with [their lives]';
(c)in January 2015 they 'were drawn back together' and since then 'have been involved in a relationship … and are engaged to be married';
(d)the appellant is 'a kind caring empathetic man' and is 'very passionate about his family both immediate and extended';
(e)Ms H has been in 'a live in relationship with [the appellant] for the last 3 years' and they have 'shared a house with [Ms H's] two teenage girls';
(f)Ms H has 'never once felt [her] girls were at any threat from [the appellant]' and Ms H has been 'happy for [her] girls to be left in the complete care of [the appellant]';
(g)Ms H's girls 'have never had any unwarranted advances from [the appellant]' and both of her girls are 'completely at ease in his company'; and
(h)Ms H's girls 'see [the appellant] as their father and [the appellant] has told [her] on many occasions that he views them as his own children'.
The character reference from Mr KH reads, relevantly:
(a)Mr KH is the appellant's brother;
(b)Mr KH was aware that the appellant had been charged with sexual offences involving a child;
(c)Mr KH and the appellant had always been 'very close' and had always been 'in regular contact';
(d)on various occasions Mr KH had stayed at the appellant's home including for a period of two weeks and also including 'overnight stays … during weekdays';
(e)the appellant has always worked hard to provide for his family;
(f)the appellant was 'able to find the time and energy to help out at home' including with the children;
(g)the appellant 'always displayed pride when his children achieved success and provided support when they may have been struggling'; and
(h)the appellant is 'a caring and hard working person and respected by his peers and all community members … he was involved with'.
The character reference from Mr PH reads, relevantly:
(a)since late February 2014, Mr PH has been a friend of the appellant;
(b)Mr PH was aware of the 'charges and verdict against [the appellant] and was in court for the proceedings';
(c)the appellant 'has always shown honesty, compassion and loyalty to his family and friends along with genuine empathy and generosity to those less fortunate'; and
(d)Mr PH believes that the appellant is 'a genuinely good and loving father/human that is absolutely shattered by all that has happened and the damage this has caused to all concerned'.
The character reference from Mr GW reads, relevantly:
(a)in 2011 Mr GW met the appellant when Mr GW joined the appellant's team at work;
(b)Mr GW remained in the appellant's team for about 18 months and during that time they became close friends;
(c)when the appellant left the house he shared with his family, the appellant moved into Mr GW's property where he lived for two years;
(d)the appellant told Mr GW about the charges against the appellant and Mr GW attended the trial as a form of moral support for the appellant;
(e)the appellant's 'strong interpersonal skills and integrity' in the workplace enabled the appellant to develop a personal network quickly; and
(f)the appellant was a strong leader in the workplace.
The character reference of Mr BP reads, relevantly:
(a)Mr BP has known the appellant since 2006;
(b)Mr BP met the appellant in 2006 while they were working for the same employer;
(c)their work relationship developed into a friendship over the next 18 months or so;
(d)Mr BP found the appellant to be a principled, hard‑working, conscientious and talented work colleague;
(e)the appellant told Mr BP about his children and what they meant to him;
(f)after the appellant left their common employer, Mr BP and the appellant occasionally met for lunch and had 'a friendly chat';
(g)on those occasions the appellant would 'regularly update [Mr BP] on his children's progress on the sports field and other activities';
(h)the appellant always 'struck [Mr BP] as a good father who clearly had the best interests of his children as a priority';
(i)in 2010, Mr BP changed his employment and he and the appellant no longer met for lunch;
(j)thereafter, Mr BP's friendship with the appellant was maintained 'more through occasional phone calls, emails and social media';
(k)on two occasions, Mr BP assisted the appellant with supervised visits involving the appellant's youngest son, and witnessed the appellant's distress at being alienated from his other children;
(l)the appellant had told Mr BP about the charges against him; and
(m)Mr BP is of the view that the appellant has always '[doted] on his children, and harming them in any way would be totally out of his character'.

At the time of the trial one of Ms H's daughters was aged 17 and the other was aged 16.
The character reference from one of Ms H's daughters reads, relevantly:
(a)the daughter has known the appellant for about three years as 'a father figure';
(b)the appellant was more of a father than her biological father;
(c)the daughter felt 'very comfortable around' the appellant;
(d)the appellant never 'overstepped any boundaries';
(e)the appellant was 'a good person and a strong male role model';
(f)in 2016, when Ms H was admitted to a health facility, the appellant looked after the house and the daughter and her sister; and
(g)the daughter was aware that the appellant had been charged with sexually interfering with a child.
The character reference from the other of Ms H's daughters read, relevantly:
(a)the daughter has known the appellant for about three years as 'a father figure';
(b)the daughter has 'always felt comfortable around' the appellant;
(c)the appellant has never 'overstepped his boundaries' and the daughter has 'always felt safe with him';
(d)the appellant would take the daughter 'to school and drop [her] to places on weekends' and 'he would help [her] with [her] homework';
(e)the daughter 'always felt comfortable sharing everything with' the appellant;
(f)the appellant is 'a strong male role model' and the daughter 'see[s] him as [her] own dad';
(g)the appellant has always made the daughter feel safe and she trusts him;
(h)the daughter is aware that the appellant has been charged with 'sexually bothering' a child; and
(i)the daughter believes that it is not in the appellant's nature 'to do such an unspeakable thing'.

Particular 1.2 of the ground of appeal: its merits

The prosecutor told the jury in his opening address at the trial that the complainant's mother, Ms T, would give evidence that, upon the complainant informing her about the appellant's alleged sexual abuse, Ms T was significantly distressed. Ms T would also give evidence of a telephone conversation she had with the appellant. During the telephone conversation Ms T became very angry and shouted at the appellant, 'why didn't you just go to a whorehouse?' and the appellant shouted in response that he had been visiting 'whorehouses' and had done so for a few years (ts 57).
The prosecutor then told the jury that Ms T's evidence in relation to the content of that telephone conversation had very limited relevance to the trial. It was only relevant because there were a number of text messages between Ms T and the appellant in which, on the State's case, the appellant had made admissions to the effect that he had committed some of the charged offences. The prosecutor noted that the text messages included references to the appellant's visits to brothels. It was necessary for the jury to know of the appellant's visits to brothels as background in order to understand the text messages. The prosecutor added '[o]ther than that, whether [the appellant] did or did not visit brothels is largely irrelevant to your task in this trial' (ts 57).
At the trial, Ms T gave evidence that in 1990 she married the appellant. They were married for 24 years. In February 2014, the appellant left the family home, at Ms T's instigation, upon the complainant informing Ms T and others about the appellant's alleged sexual abuse.
Ms T said in evidence that after the complainant told her about the appellant's alleged sexual abuse she had a telephone conversation with the appellant in which she screamed, 'why didn't you just go to a whorehouse and leave [the complainant] alone?'. According to Ms T, the appellant said 'well, actually I did for a few years'. Ms T added that the appellant then said 'the family should be grateful to him for going there because it saved [the complainant] and [Ms T] should be grateful to him that he'd gone to prostitutes and not had an affair' (ts 166).
After the appellant left the family home, there were numerous text messages between Ms T and the appellant. The prosecutor tendered some of the text messages as part of the State's case. The prosecutor submitted that the text messages contained admissions by the appellant of sexual impropriety generally in relation to the complainant. Those alleged admissions formed part of the State's circumstantial case. Relevant parts of the text messages included the following:
[23 May 2014]
Witness:She doesn't care what u think. She hates u and she's furious about what u did to her and that u have made her like this. She's exhausted from feeling afraid and panicky all the time.
Appellant:I should have topped myself years ago.
…
[27 May 2014 10.49pm - 10.58pm]
Witness:U must understand how this happened. U made the decision to do it for 5 years then decided to fuck a whore for a couple more. I am in gut wrenching pain every waking minute.
Appellant:I do. I wish I could fix it.
Witness:U have no idea how incredibly hard it is to keep everyone going every day.
U do what?
Appellant:I understand how this happened and how it is all my fault. I am the worst kind of person. I have ruined everything.
Witness:If u understand, can u explain it to me? I don't get it.
Appellant:I understand it is my fault but I can't explain why I could be so selfish. I hate myself for all this. I hate my existence.
I can't live with myself.
…
[27 May 2014, 11.34 - 11.39pm]
Witness:But what were u saying to yourself to justify it? I know u understood the ramifications.
Appellant:I can't justify.
Witness:But what did u tell yourself to make it ok to keep going
Appellant:Lies to myself.
…
[13 Feb 2015, 12.43 - 12.45pm]
Appellant:I was a horrible evil person. I've worked hard to change that.
Witness:I'm glad you've changed. That's really good for u and everyone. But paedophilia doesn't go away. It's not you I want to protect [youngest son] from it's from that horrible monster that has destroyed [the complainant].
Appellant:I've read a lot of literature. I've worked ti (sic) understand and change my perception.
He has gone.
…
[13 February 2015, 12.45 - 12.48pm]
Witness:U have to tell me what you've learned about it some time soon.
Appellant:I've learned what damage I have done. How it affects the mind. How I hurt someone I love so much.
I've learned I should never be forgiven and I have destroyed a life.
And that in turn has destroyed those around me.
Witness:What did u think about it before? U talked like u understood.
Appellant:That I am guilty of a despicable act.
That I have lost my beautiful daughter forever.
…
[13 February 2015, 1.02 - 1.07pm]
Witness:Did you say there is therapy for u?
Appellant:No. But I've read online therapy. I've read research papers on prevention. I've listened to podcasts.
I've also been reading about the impacts.
And I'm so sorry and devastated.
…
[25 February 2015, 8.22 - 8.23pm]
Witness:Why do you keep saying [the complainant] thinks u hate her.
Appellant:She must do after what I did.
…
[18 August 2015, 12.34 - 12.42pm]
Witness:Don't dispute the charges when she finally has the courage to go to police. She doesn't need more trauma by having to go on the witness stand. She needs to deal with it all one day so she can start having a life.
Appellant:I won't.
Sometimes I think I should just hand myself in. But then what…
…
[8 October 2015, 12.39 - 1.06pm]
Appellant:Wish I could go back in time.
Most nights I just sit outside by myself filled with guilt and shame. I try and think of a way to fix it but I can't. I worry so much about her and can't sleep. I wish I was a good dad, but I wasn't. I'd give anything to see her again. The pain I've caused is unforgivable.
My pain is deserved.
At the trial, the appellant gave evidence in his own defence. The appellant said in cross‑examination that during his marriage to Ms T he had seen prostitutes for about eight years (ts 319).
The appellant sought to explain at the trial the content of his text messages set out at [57] above. He claimed that he did not admit to any sexual impropriety with the complainant. For example, the appellant gave these explanations:
(a)His statement that he would not dispute the charges was made because, at that stage, he was devastated. He did not want the complainant to have to give evidence. He knew that the complainant had become very tired when she was first spoken to by the police. He was concerned to protect her.
(b)His statement that he was a horrible, evil person was made because he was endeavouring to show Ms T that he had changed so that she would permit him to have unsupervised access to their youngest son.
(c)His statements that 'paedophilia doesn't go away' and that he had 'read a lot of literature' were not references to him being a paedophile. Rather, he had read literature on the subject in order to understand why people (in particular, the complainant) make false allegations of sexual abuse.
(d)His statement that he was guilty of a despicable act and had lost his beautiful daughter was made because he was endeavouring to say things that Ms T wanted to hear, he was under pressure, he had been drinking and his mental state was not good.
(e)His statement that he hated himself was made because he hated himself for visiting the prostitutes.
During their closing addresses, neither the prosecutor nor defence counsel referred to the appellant having visited prostitutes. The prosecutor merely referred to the appellant having told Ms T that he had been 'unfaithful' which, in the prosecutor's submission, explained 'some of the emotional impact [which the disclosure of the infidelity] would have had on [Ms T]' (ts 27).
After the completion of the closing addresses and before the commencement of his summing up, the trial judge discussed with counsel, in the absence of the jury, various directions which his Honour proposed to give to the jury. Relevantly, his Honour told counsel that he proposed to give a direction specifically relating to the evidence of the appellant's use of prostitutes. The prosecutor responded by reminding his Honour that, in his opening address, the prosecutor had told the jury that the evidence about the appellant's use of prostitutes was admissible 'only for a very limited purpose', namely to 'put into context some of the admissions' in the text messages (ts 327).
His Honour directed the jury in his summing up, in relation to the appellant's evidence that during his marriage to Ms T he had seen prostitutes for about eight years, as follows:
Now, members of the jury, you also heard evidence that over the course of the marriage [the appellant] on his own admission had on occasions visited prostitutes. Now, you'll appreciate that you can't be prejudiced against him as a result of that evidence. You can't, for example, reason, 'Look, because he's the type of person that visited prostitutes during the course of the marriage therefore he's the type of person that would have committed these offences.' That would be impermissible in law (ts 351).
I am satisfied, for the following reasons, that particular 1.2 is without merit.
Where an accused is represented by defence counsel, a decision as to which witnesses (apart from the accused) to call and what evidence should be adduced from witnesses (apart from the accused) involves a forensic judgment that is within defence counsel's authority. As Mazza JA (McLure P and I agreeing) observed in Durani v The State of Western Australia:[5]
A fundamental feature of a criminal trial is that defence counsel has, subject to the rules and ethical considerations that apply, complete freedom to run the trial, as he or she sees fit, in the interests of the accused. It is the responsibility of defence counsel to make the many and varied forensic decisions involved in a criminal trial, such as what evidence to call or not to call. These decisions are often difficult and finely balanced. They are matters on which reasonable minds can and often will differ. Counsel, with their assumed intimate knowledge of the strengths and weaknesses of their case will almost always be in a better position than an appellate court to judge these things.
The general position is that counsel's decisions bind the client, even when those decisions are made without, or are contrary to, instructions and even when those decisions involve errors of judgment or negligence. It is not a trial judge's role to tell counsel how to conduct a trial and it is not an appellate court's function to assess, with the benefit of hindsight, how a case could have been conducted so as to achieve a more favourable outcome from the perspective of the appellant.
See also Sethi v The State of Western Australia.[6]
[5] Durani v The State of Western Australia [2012] WASCA 172 [110] ‑ [111].
[6] Sethi v The State of Western Australia [2020] WASCA 173 [64] ‑ [66].
A necessary consequence of defence counsel exercising a forensic judgment, within defence counsel's authority, as to whether to adduce evidence from witnesses (other than the accused) of the accused's good character is that the accused will generally be bound by defence counsel's decision. Where defence counsel's decision is challenged on appeal, it is only where the appellate court considers that no rational forensic justification is apparent for the challenged decision that the appellate court will examine whether the making of the decision constituted a miscarriage of justice. See TKWJ v The Queen;[7] Craig v The Queen.[8]
[7] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [8].
[8] Craig v The Queen [2018] HCA 13; (2018) 264 CLR 202 [23] ‑ [24].
In the present case:
(a)defence counsel's decision not to elicit evidence from the investigating police officer that the appellant did not have a prior criminal record; and
(b)defence counsel's decision not to call evidence from witnesses who could have claimed that the appellant was of prior good character,
were decisions within defence counsel's authority.
Further and in any event, the appellant accepted in cross‑examination at the hearing of the appeal that, after receiving defence counsel's advice, he chose not to call any character witnesses. The appellant acknowledged that he had made that decision by the start of the trial. The appellant said that he agreed with defence counsel's tactics that no character witnesses should be called. Although the appellant said that he had agreed 'reluctantly', any reluctance did not alter the fact that he had agreed and that defence counsel acted on his express instructions in not calling any character witnesses.
Consistently with that evidence at the hearing of the appeal, the appellant signed the Authority before he gave evidence at the trial. In the Authority the appellant stated, relevantly and in effect, that he had 'weighed all of the factors for and against' and had elected 'to give evidence but not to call any witnesses in [his] own defence'. Although the appellant said in his affidavit sworn 2 November 2020 that it seemed reasonable to sign the Authority because defence counsel had not called any witnesses, it is plain from other evidence given by the appellant that he signed the Authority before he gave evidence and, in those circumstances, it remained open to the appellant, through defence counsel, to call other witnesses.
Accordingly, the decisions of defence counsel, to which I have referred at [66] above, were binding on the appellant.
Further and in any event, I am of the opinion that the decisions of defence counsel, to which I have referred at [66] above, are capable of reasonable explanation on the basis that they were made to avoid a forensic disadvantage at the trial.
It is, of course, well established that, as a matter of law, this court does not examine whether a decision made by defence counsel at trial was, in fact, made for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage. Rather, this court is concerned only with whether defence counsel's decision is capable of reasonable explanation on that basis. The test is objective in character.
In the present case, I am satisfied, for the following reasons, that the decisions of defence counsel, to which I have referred to at [66] above, are capable of reasonable explanation on the basis that they were made for the purpose of avoiding a forensic disadvantage.
First, at common law, evidence of an accused's bad character is only admissible when the accused has put his or her character in issue. At common law, an accused may put his or her character in issue by calling witnesses to give evidence as to the accused's good character or by adducing evidence of his or her good character from other witnesses. If an accused puts his or her character in issue then, at common law, it is open to the prosecution to rebut the evidence of the accused's good character by adducing evidence of his or her bad character; for example, by cross‑examining the accused or the character witnesses or by adducing other evidence of it. The evidence of bad character is not necessarily limited to the particular kind of good character raised by the accused. Subject to the trial judge's discretion to exclude evidence that is unfair or unduly prejudicial, the whole of the accused's character may be explored and revealed, provided that the evidence tends to rebut his or her assertion of good character. See R v Stalder;[9] R v Hamilton;[10] Heydon JD, Cross on Evidence, (12^th Aust ed, 2020), [19140 ‑ 19145].
[9] R v Stalder [1981] 2 NSWLR 9, 18 ‑ 19.
[10] R v Hamilton (1993) 68 A Crim R 298, 299.
Section 8(1)(e)(ii) of the Evidence Act 1906 (WA) provides, relevantly, that a person charged with an offence who is called as a witness shall not be asked and, if asked, shall not be required to answer any question tending to show that he or she is of bad character, unless the accused has personally, or by his advocate, asked questions of the prosecution witnesses with a view to establishing his or her own good character, or has given evidence of his or her good character. By s 8(1)(f), relevantly, when s 8(1)(e)(ii) is or becomes applicable to any person charged who gives evidence for the defence, it shall be open to the prosecution to call evidence that the person is of bad character, notwithstanding that the prosecution's case may already have been closed. Section 5 of the Evidence Act provides that the provisions of the Act shall be in addition to and not in derogation of 'any powers, rights, or rules of evidence existing at common law, or given by any law at any time in force in the State not inconsistent with the provisions of this Act'.
Secondly, as I have mentioned, at the trial the prosecutor adduced evidence from Ms T and the appellant to the effect that the appellant had, during his marriage to Ms T, visited prostitutes. The appellant said in cross‑examination that during his marriage he had seen prostitutes for about eight years. This evidence was not admitted as evidence of the appellant's bad character. Rather, the evidence was admitted solely for the purpose of giving context to some of the alleged admissions by the appellant in the text messages. As I have mentioned, neither the prosecutor nor defence counsel referred in their closing addresses to the appellant having visited prostitutes. See [60] above.
However, if the appellant had put his character in issue by defence counsel eliciting evidence from the investigating police officer that the appellant did not have a prior criminal record and calling witnesses to give evidence as to the appellant's alleged good character, it would have been open to the State to rebut that evidence by adducing evidence of his bad character. Evidence that the appellant did not have any previous criminal convictions would have been evidence of the appellant's good character.

As McHugh J observed in Melbourne v The Queen,[11] the word 'character' refers to a person's inherent moral qualities or disposition. Evidence of an accused's 'good character' is admissible because his or her 'good' inherent moral qualities or disposition make it less likely that the accused would commit an offence (and therefore less likely that the accused committed the offence in question) and make it more likely that the accused would be an honest witness (and therefore more likely that the accused's evidence should be accepted). See Durani [107].
[11] Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 [33].
In the present case, the evidence that the appellant had, during his marriage to Ms T, visited prostitutes for eight years was evidence of 'bad character'. The appellant had hidden from Ms T and, no doubt, others the fact that he had seen prostitutes, on an ongoing basis, for about eight years, while the appellant gave the appearance to Ms T and the outside world that he was a family man who was in a committed relationship. All of those facts, in combination, established that the appellant's inherent moral qualities or disposition were, at least in that respect, inconsistent with the appellant being a person of integrity and 'good character'.
If the appellant had put his character in issue at the trial, then the evidence that during his marriage the appellant had visited prostitutes, on an ongoing basis, for about eight years would have been admissible not merely for contextual purposes, but as evidence that the appellant was not a person of good character. This evidence as to the appellant's sexual predilections and as to his having lived a lie in relation to his marital relationship would have received far greater prominence at the trial. The prosecutor would have put the evidence to the witnesses who gave evidence as to the appellant's alleged good character. There was a real risk that the favourable opinions about the appellant expressed by the witnesses would have been significantly undermined, further or alternatively, that the favourable opinions would have been significantly discounted by the jury. The prosecutor would have referred to the evidence in some detail in his closing address. His Honour would have mentioned the evidence and its relevance as evidence of bad character in the context of his Honour's directions concerning the evidence of alleged good character. The focus towards the end of the trial would have been on the appellant's character and that would have been to the appellant's disadvantage.
There is no reasonable possibility that, in the exercise of his discretion, the trial judge would have refused to permit the State to rely upon the evidence in relation to the prostitutes as evidence of bad character on the basis that reliance upon the evidence for that purpose would be unfair or unduly prejudicial to the appellant.
In the circumstances, it was well open to defence counsel to decide not to put the appellant's character in issue at the trial and to rely principally upon the presumption of innocence in combination with the appellant's exculpatory evidence and defence counsel's cross‑examination of the complainant and Ms T. Also, although the State relied upon the evidence of the appellant having, during his marriage to Ms T, visited prostitutes for eight years merely as contextual evidence in relation to the alleged admissions in the text messages, the appellant in his evidence and through defence counsel's submissions was able to use that evidence as an explanation for some of the appellant's statements in the text messages which, on their face, appeared to be admissions of sexual impropriety generally with the complainant. The appellant and defence counsel were able to use the evidence in that beneficial manner without the prosecution being able to rely upon the evidence as indicative of bad character.
Accordingly, the decisions of defence counsel, to which I have referred at [66] above, are capable of reasonable explanation on the basis that they were taken for the purpose of avoiding a forensic disadvantage. Those decisions did not constitute a material irregularity at the trial.
Further and in any event, even if (contrary to my opinion) the decisions of defence counsel, to which I have referred at [66] above, constituted a material irregularity at the trial, I am satisfied, for the following reasons, that there is no significant possibility that, if the appellant had put his character in issue:
(a)by defence counsel eliciting evidence from the investigating police officer that the appellant did not have a prior criminal record; and
(b)by defence counsel calling witnesses to give evidence of the appellant's alleged good character,
the verdicts of the jury might have been different. See McMahon [26].
First, it is true that there are cases which recognise the potential value of evidence of good character, particularly in cases concerning alleged sexual offending against children. See Melbourne [151]; TKWJ [94].
In R v D,[12] to which McHugh J referred in TKWJ [94], the appellant was convicted of various sexual offences against his daughter. He gave evidence denying the allegations. For reasons which were not explained, defence counsel failed to call a number of character witnesses who were available to testify. Hunt CJ at CL (Grove J and Barr AJ agreeing) said that the proposed character evidence was impressive and 'could well have had a substantial effect upon the jury's verdict' (44).
[12] R v D (1996) 86 A Crim R 41.
However, the courts have also recognised that sexual offending by adults of previously unblemished reputations, and who appear to their friends, relatives and business and social acquaintances to be of impeccable character, is all too frequently found to have occurred. See R v DBB;[13] Sharma v The Queen;[14] Durani [120].
[13] R v DBB [2012] QCA 96; [2013] 1 Qd 188 [51].
[14] Sharma v The Queen [2011] VSCA 356 [46].
As Hayne J said in Melbourne [152], the use that a jury might make of evidence of good character will vary greatly according to the circumstances of the case. It will vary according to what is said about the previous character of the accused and what relationship, if any, that has to the case that is sought to be made against the accused.
In the present case, there was, as I have mentioned, a real forensic reason not to put the appellant's character in issue at the trial. If the appellant's character had been put in issue, the evidence of the appellant's bad character (in particular, his sexual predilections and his having lived a lie in relation to his marital relationship) would have been relied upon by the prosecutor to rebut any evidence of good character. The evidence as to bad character would have received far greater prominence at the trial.
Secondly, as I have mentioned, the prosecutor would have put the evidence of the appellant's bad character to the witnesses who gave evidence of the appellant's alleged good character. The written references do not refer to the evidence of the appellant's bad character. I accept that when they wrote the references that were given for the purpose of the sentencing hearing, Ms H was aware, and Mr KH, Mr PH and Mr GW were likely to have been aware, of that evidence as a result of their having attended all or part of the trial. However, there was a real risk that the favourable opinions about the appellant expressed by the witnesses would have been significantly undermined, further or alternatively, that the favourable opinions would have been significantly discounted by the jury.
Thirdly, the proposed evidence from Mr PH, Mr GW and Mr BP is of very modest weight. The contact between Mr PH, Mr GW and Mr BP, on the one hand, and the appellant, on the other, does not reveal any first‑hand knowledge or experience of the appellant's behaviour towards the complainant during the period (between 28 July 2004 and 26 February 2014) when the alleged offending occurred. Where a person of mature years is charged with sexual offending against a child, a character witness's knowledge of the person gained in a work or an adult social or community setting will ordinarily be of very modest weight if the character witness has not seen and experienced the person's behaviour towards the child in question (or, at least, children of the same sex and about the same age) in a private or domestic setting. It is notorious that sexual offending against children invariably occurs in private and is shrouded in secrecy.
Ms H is the appellant's current partner, Mr KH is the appellant's brother and Ms H's daughters are the appellant's step children. Their favourable opinions of the appellant must be approached with caution having regard to the nature of their relationship with the appellant.
The appellant disclosed to Ms H, before they began cohabiting, that the complainant had made allegations that he had sexually abused her. When they began cohabitating Ms H's daughters were aged 14 and 13. The appellant's alleged sexual abuse against the complainant started when she was aged about 6. In those circumstances, the weight to be given to the absence of any sexual or attempted sexual abuse by the appellant against Ms H's daughters is very limited in the context of the appellant's alleged good character.
Fourthly, any advantage that may have accrued to the appellant from putting his character in issue at trial must be evaluated having regard to the apparent strength of the State's case.
Unlike De Silva v The Queen,[15] the appellant's defence did not involve solely an 'oath against oath' case where evidence of prior good character may well have made a difference to the jury's assessment of the appellant's credibility, and hence his guilt. In the present case, the prosecution did not solely rely upon the complainant's evidence. Ms T gave evidence that the appellant had admitted to her that he had offended sexually against the complainant. Also, the text messages, viewed objectively and considered as a whole, strongly indicate that, despite his explanations at the trial, the appellant admitted sexual impropriety generally in relation to the complainant. The appellant's explanations of the apparently incriminating text messages, viewed objectively and considered as a whole, were dubious (if not fanciful) and unconvicing.
[15] De Silva v The Queen [2013] VSCA 339; (2013) 236 A Crim R 214.
In De Silva [22], the appellant had available to him powerful character evidence, which bore upon the unlikelihood that he had committed the offences and also upon the credibility of his evidence denying his guilt. Unlike De Silva, the evidence available to the appellant in the present case could not reasonably be described as 'powerful' character evidence. Further, in De Silva, there was no indication that the prosecution had any evidence to the effect that the appellant was of bad character.
Accordingly, I am satisfied that the decisions of defence counsel, to which I have referred at [66] above, did not, in the circumstances, materially prejudice the appellant's case. I am of the opinion, upon my review of the trial record and having regard to the additional evidence received in the appeal, that, in the circumstances, there is no significant possibility that the absence of the additional evidence at the trial as to the appellant's character and reputation affected the outcome of the trial. The absence of the additional evidence did not occasion a miscarriage of justice.
Particular 1.2 fails.

Particulars 1.3, 1.4 and 1.5 of the ground of appeal

Particulars 1.3, 1.4 and 1.5 of the ground of appeal allege, in essence, that a miscarriage of justice occurred at the trial because:
(a)defence counsel failed to object to inadmissible material in the appellant's electronic record of interview with police;
(b)defence counsel failed adequately to close the appellant's case; and
(c)defence counsel failed adequately to test by cross‑examination the evidence in relation to each separate count in the indictment.
I agree with Pritchard JA, generally for the reasons she gives, that particulars 1.3, 1.4 and 1.5 are without merit.

The cumulative effect of the decisions of defence counsel

None of the particulars of the ground of appeal has any merit. The cumulative effect of the decisions of defence counsel therefore did not, in combination, cause or result in a miscarriage of justice at the trial.

The relevance and admissibility of the additional evidence

I agree with the rulings of Pritchard JA in her reasons in relation to the relevance and admissibility of the additional evidence which the appellant and the State have sought to adduce in the appeal.

Conclusion

I would dismiss the appellant's application for an extension of time to appeal because the ground of appeal does not have any merit. In the circumstances, it would be pointless to grant an extension of time. Leave to appeal should be refused. The appeal must be dismissed. I agree with the other orders proposed by Pritchard JA in her reasons.

PRITCHARD JA:

Introduction

In April 2018, the appellant was tried before a jury on 26 counts that, on various dates between 28 July 2004 and 26 February 2014, he indecently dealt with, or knowingly sexually penetrated, a lineal relative under the age of 16 years, namely his biological daughter. The appellant was convicted on 23 of those counts and was acquitted on three counts.[16] He was sentenced to a total effective sentence of 9 years and 6 months' imprisonment.
[16] At the conclusion of the State's case, the trial judge ruled that no evidence had been led to prove counts 21, 23 and 24, and the appellant was therefore acquitted of those counts: ts 18 April 2018, page 268.
The appellant now seeks leave to appeal against his convictions, on the sole ground that a miscarriage of justice occurred and was caused by various failures on the part of defence counsel at the trial (defence counsel). Those failures are particularised in the following five ways:
(1)The failure of defence counsel to adequately open the defence case (particular 1.1).
(2)The failure of defence counsel to lead or adduce evidence of the appellant's good character (particular 1.2).
(3)The failure of defence counsel to object to inadmissible material in the electronic record of interview of the appellant (EROI) (particular 1.3).
(4)The failure of defence counsel to adequately close the appellant's case (particular 1.4).
(5)The failure of defence counsel to adequately test the evidence in relation to each separate count during cross-examination (particular 1.5).[17]
[17] Appellant's amended ground of appeal.
The appellant requires leave to appeal. In addition, the appeal was brought out of time and the appellant applied for an extension of time within which to appeal. Both applications were referred to the hearing of the appeal.[18]
[18] Order of Buss P 17 January 2020, White Appeal Book (WAB) 4.
The appellant also sought leave to adduce additional evidence in the appeal, namely the appellant's affidavit sworn on 2 November 2020, together with the affidavit of the appellant's de facto partner (Ms H) sworn on 30 October 2020. That application was referred to the hearing of the appeal.[19] The respondent sought to cross-examine the appellant and Ms H on their affidavits, and they gave oral evidence at the hearing of the appeal.
[19] Order of Buss P 4 November 2020 Yellow Appeal Book (YAB) 1.
The respondent made two applications for leave to adduce additional evidence on the hearing of the appeal, namely the affidavit of Robert Graham Wilson sworn 31 March 2020, and the affidavit of defence counsel sworn 19 June 2020. Each of those applications were referred to the hearing of the appeal.[20] Counsel for the appellant sought to cross‑examine defence counsel and she gave oral evidence at the hearing of the appeal.
[20] Orders of Mazza JA 4 April 2020 and 24 June 2020, WAB 18 and 94.
At the hearing of the appeal, the additional evidence on which the appellant and the respondent sought to rely was admitted on a provisional basis, on the basis that the court would, in its reasons for judgment on the appeal, indicate whether, and the extent to which, the evidence should be received as additional evidence in the appeal.[21]
[21] ts 23 November 2020, page 24.
For the reasons set out below, I would grant the appellant's application filed 3 November 2020 for leave to adduce as additional evidence in the appeal the appellant's affidavit sworn on 2 November 2020, together with the affidavit of Ms H sworn on 30 October 2020.
I would grant the respondent's application filed 1 April 2020 for leave to adduce as additional evidence in the appeal the affidavit of Robert Graham Wilson sworn 31 March 2020. I would grant the respondent's application filed 23 June 2020 for the purpose of admitting into evidence part of the affidavit of defence counsel sworn 19 June 2020. I explain below the limited relevance of that additional evidence to the particulars of the ground of appeal.
The appeal is without merit. I would refuse an extension of time within which to appeal, refuse leave to appeal, and dismiss the appeal.
In these reasons I deal with the following matters:
(a)Overview of the trial.
(b)The application for an extension of time within which to appeal.
(c)Principles governing appeals against conviction on the basis of alleged failures by counsel for an accused.
(d)The respondent's applications to adduce additional evidence.
(e)The appellant's application to adduce additional evidence.
(f)The ground of appeal - disposition:
(i)particular 1.1 (failure to adequately open the defence case);
(ii)particular 1.2 (failure to lead or adduce evidence of the appellant's good character);
(iii)particular 1.3 (failure to object to inadmissible material in the EROI);
(iv)particular 1.4 (failure to adequately close the appellant's case);
(v)particular 1.5 (failure to adequately test the evidence in relation to each separate count during cross-examination);
(vi)cumulative effect of the decisions of defence counsel; and
(g)The orders which should be made.

(a) Overview of the trial

The 26 counts in the indictment, for which the appellant was tried, are set out in Annexure A to these reasons.

Opening addresses

Counsel for the respondent's opening address

Counsel for the respondent gave the jury an overview of the prosecution case. The respondent's case was that as a child, the complainant lived with her father (the appellant), her mother (Ms T), and her two brothers, one older and one younger than the complainant. They lived at a house in Duncraig until the complainant was about 10 years old (first family home). At that point, they moved to a house nearby (second family home). The respondent alleged that the appellant would frequently touch the complainant in a sexual way, that that conduct started when the complainant was quite young and continued over a number of years until she was about 12 or 13 years of age. The abuse often occurred during the day when Ms T and the complainant's elder brother were out of the house, or at night-time in the room where the appellant slept, or in the complainant's bedroom. The appellant's conduct ended when, in February 2014, the complainant told others about the abuse, and in response, Ms T insisted that the appellant leave the family home.[22]
[22] ts 16 April 2018, pages 43 44.
The respondent's case was that the abuse was regular and frequent, but that the complainant was only able to recall the details of the specific incidents that were the subject of the counts on the indictment.[23]
[23] ts 16 April 2018, page 44.
Counsel for the respondent indicated that the prosecution relied on evidence from the complainant, and from Ms T, whose evidence concerned admissions to the conduct which she said the appellant had made in conversations with her, and in text messages sent to her mobile phone. In the course of those text messages, there were references to the appellant's visits to brothels, which were led in order that the jury might understand the text messages themselves.[24] Counsel for the respondent also indicated that the evidence would include the electronic record of interview (EROI) in which the appellant participated with police officers.[25]

Ground 1, as particularised in particular 1.4, is without merit.
An accused has a statutory right to give a closing address. There is no statutory prescription as to what may be covered. Instead, the accused is permitted to give a closing address to the court 'about the whole case'.[334]
[334] Criminal Procedure Act 2004 (WA) s 145(2).
To the extent that counsel for the appellant sought to rely on the fact that defence counsel's address was of a far shorter duration than the address given by counsel for the respondent, no support for the appellant's argument can be drawn from that comparison. The primary reason why the address given by counsel for the respondent was so much longer was that counsel for the respondent referred to each count in the indictment, and reminded the jury, by reference to pages of the transcript, of the evidence given by the complainant. Given the nature of the appellant's case, it would have been unproductive and unwise for defence counsel to have embarked on the same course. To do so would merely have highlighted the disparity between the many allegations made by the complainant, and the appellant's bare denial in response to most of those allegations. That consideration aside, the brevity of defence counsel's closing address reflected the fact that the issues in the case itself were relatively confined.
Some of the submissions by counsel for the appellant, alleging a failure by defence counsel to address certain matters in her closing, cannot be accepted because they did not accurately reflect the content of defence counsel's closing address. Defence counsel reminded the jury about the consequences of delay, and the fact that it was difficult for the appellant to do more than deny the allegations, as he had done in the EROI and in his evidence. Defence counsel reminded the jury about the appellant's evidence that he believed the allegations related to his reduction in financial support for his family, and to his attempts to secure unsupervised access to his youngest son. Defence counsel also addressed the jury on the evidence of the text messages on which the respondent relied. She reminded them of the appellant's evidence that Ms T tried to get him to admit to the conduct alleged by the complainant, and submitted that in none of the text messages did the appellant ever directly admit to any of the specific allegations that were the basis of any particular count on the indictment. The trial judge also referred to these matters in the course of his charge.[335]
[335] ts 19 April 2018, page 363 365 (delay); 363 (forensic or medical evidence); 357, 366 (financial motivation); 353 355 (text messages).
The failure by defence counsel to refer to the other matters now raised by counsel for the appellant did not result in a material irregularity in the trial. The absence of forensic evidence or medical evidence to corroborate the complainant's allegations was obvious. The absence of any reference to such evidence (or explanation as to its absence), without any direction to the contrary, may well be viewed by a jury as adverse to the prosecution case, irrespective of any comment made in the closing address by an accused's counsel.
In so far as counsel for the appellant submitted that defence counsel should have addressed the jury as to the impermissible line of reasoning which involved asking an accused to explain why a complainant would make false allegations, that failure did not give rise to a material irregularity, given that the appellant proffered an explanation for why the complainant would make false allegations against him. Defence counsel specifically reminded the jury of the appellant's evidence in that respect. Further, even if failure to refer to this issue resulted in a material irregularity, there was no significant possibility that this affected the outcome of the trial, given the appellant's evidence about the possible motivation for the complainant to make false allegations, the cross-examination of the complainant as to why she went to the police, the fact that the trial judge gave a Palmer direction in his charge to the jury, and the totality of the evidence adduced by the prosecution, including the text messages (see [357] above).[336]
[336] ts 19 April 2018, page 357.
Finally, I turn to the appellant's contention that defence counsel should have specifically addressed the jury to the effect that the mere fact that the complainant made a complaint did not enhance the likelihood of it being true. The failure by defence counsel to address this matter also did not result in a material irregularity. This was not a case where the appellant merely denied the allegations. The appellant countered with an explanation for why the complainant's allegations were false, namely that the complainant, or the complainant together with Ms T, had concocted the allegations for financial reasons, or to prevent him from securing unsupervised access to his youngest son. In any event, as counsel for the appellant conceded, the trial judge addressed the issue of complaint in his charge.[337]

Particular 1.5 - failure to adequately test the evidence in relation to each separate count during cross-examination
[337] ts 19 April 2018, pages 361 362, 366.

Counsel for the appellant submitted that the complainant made it plain in her evidence‑in‑chief that the offending was frequent, but that many of the individual allegations were not clear in her memory, and that the particularisation of the individual counts may not have been based on a clear and certain recollection, such as to be relied upon beyond reasonable doubt.[338]
[338] Appellant's Supplementary Submissions [4], YAB 3.
He submitted that competent counsel would have realised that even though her instructions were that none of the offending had occurred, testing the recollection of the complainant in relation to each occasion that was charged may well have resulted in acquittals on many of the charges of which the appellant was convicted.[339] Furthermore, he submitted that even if the jury were properly satisfied that the appellant had admitted to sexually interfering with his daughter in some manner, it did not follow that he was guilty of all of the counts on the indictment. He submitted that competent counsel would have tested the certainty of the complainant's recollection in relation to each count, and defence counsel's failure to do so resulted in a miscarriage of justice.[340]
[339] Appellant's Supplementary Submissions [5], YAB 3.
[340] Appellant's Supplementary Submissions [8], YAB 3.
Nothing in defence counsel's cross-examination of the complainant resulted in a material irregularity in the trial. In my view, there is clearly a reasonable explanation for the decision not to cross-examine the complainant about her recollection of each and every one of the counts in the indictment, for the following reasons. First, this was a case in which the appellant denied all of the counts. By virtue of the delay, it was not a case where he was in a position to adduce any evidence to cast doubt on the complainant's evidence in respect of individual counts. The forensic choices open to defence counsel in cross‑examining a complainant in such a case are more limited than they may be when the appellant advances a positive defence pointing to his or her innocence. Counsel for the appellant submitted that testing the complainant in relation to each count may well have resulted in acquittals on many of the charges of which the appellant was convicted. That is purely a matter of speculation.
Secondly, to have cross-examined the complainant about her recollection of each and every one of the counts in the indictment, carried the risk that that would merely have provided the complainant with the opportunity to repeat her evidence in relation to each count, and thereby to solidify the impression that she was clear in her recollection of the offending.
Thirdly, alternative approaches to cross-examination may be equally, or more, effective, in a case of this kind. One such approach (which was taken by defence counsel in this case) is to elicit responses from a complainant, by reference to a sample of the counts, which seek to demonstrate that the accuracy of the complainant's recollection can be doubted, and then to invite the jury to conclude that that casts doubt on the accuracy of the complainant's recollection in relation to all of the counts.
Fourthly, the complainant was a young woman who had become emotionally distressed in the course of giving her evidence‑in‑chief. Had defence counsel cross-examined her by challenging her on her recollection of each of the counts, that may have risked causing the complainant to become more upset, adding to an impression that she was genuinely distressed by her recollection of the experience of sexual abuse.
A judgment about the preferable approach to cross-examination must necessarily be made having regard to the demeanour and personality of a witness as he or she appears in examination in chief. As this court recently observed:[341]
It is not this court's function to merely second-guess defence counsel's forensic choices and decide that the cross-examination may have been more effective if it had been carried out differently. While other defence counsel may have conducted the cross-examination of [a complainant] differently that does not make defence counsel's crossexamination 'inadequate' nor does it constitute a miscarriage of justice.

The cumulative effect of the decisions of defence counsel
[341] BGH v The State of Western Australia [2020] WASCA 124 [57].

Counsel for the appellant submitted that the combination of each of the deficiencies identified in the particulars was such that it might well be concluded that there had been a miscarriage of justice in the present case. He submitted that the deficiencies were so substantial that they constituted material errors that led to a substantial miscarriage of justice.[342]
[342] Appellant's submissions [68].
I am unable to agree. The appellant has not demonstrated that any of the individual decisions of defence counsel now under challenge resulted in a material irregularity in the trial. I am not persuaded that the cumulative effect of the various decisions of defence counsel is any greater than the individual effect of any of those decisions. Having regard to the totality of the prosecution and defence cases, there is no significant possibility that the decisions of defence counsel now under challenge affected the outcome of the trial.
Leave to appeal on ground 1 should be refused.

(g) The orders which should be made

The orders which I would make are as follows:
(1)The application for an extension of time within which to appeal is refused.
(2)The appellant's application filed 3 November 2020, for leave to adduce as additional evidence in the appeal the appellant's affidavit sworn on 2 November 2020, together with the affidavit of Ms H sworn on 30 October 2020, is granted.
(3)The respondent's application filed on 1 April 2020, for leave to adduce as additional evidence in the appeal the affidavit of Robert Graham Wilson sworn 31 March 2020, is granted.
(4)The respondent's application filed 23 June 2020, for leave to adduce as additional evidence in the appeal the affidavit of defence counsel sworn 19 June 2020 is granted, subject to the rulings on the admissibility of parts of that affidavit which are set out in the reasons for judgment.
(5)Leave to appeal is refused.
(6)The appeal is dismissed.

VAUGHAN JA:

I have the benefit of having read the separate reasons of Buss P and Pritchard JA in draft.
Pritchard JA has described the factual and procedural background in detail. I agree with Pritchard JA, for the reasons that her Honour gives, that the applications in an appeal seeking leave to adduce additional evidence in the appeal should be allowed. I also agree with her Honour's rulings as to the admissibility of the additional evidence adduced by the parties.
Both Buss P and Pritchard JA would dismiss the appellant's application for an extension of time to appeal as the sole ground of appeal is without merit. I agree. I agree with Pritchard JA, for the reasons that her Honour gives, that particulars 1.1 and 1.3 ‑ 1.5 are without merit and should be dismissed. I agree with Buss P, for the reasons that his Honour gives, that particular 1.2 fails and should be dismissed. I agree with both their Honours that the cumulative effect of the matters raised by particulars 1.1 ‑ 1.5 did not result in a miscarriage of justice observing, in that respect, that counsel for the appellant conceded that particulars 1.1, 1.4 and 1.5 were not by themselves, individually or collectively, able to sustain a successful appeal.[343]
[343] Appeal ts 90.
I agree with the orders proposed by Pritchard JA.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
GD
Associate to the Honourable Justice Pritchard
21 JUNE 2021

ANNEXURE A

Count	Details	Outcome
1.	On an unknown date between 28 July 2004 and 30 July 2008 at Duncraig WMT indecently dealt with the complainant, a child who he then knew to be his lineal relative, by rubbing her vulva with his penis, and that the complainant was a child under the age of 16 years	Convicted
2.	On an unknown date between 29 July 2004 and 30 July 2008 at Warwick WMT indecently dealt with the complainant, a child who he then knew to be his lineal relative, by rubbing her vulva with his penis, and that the complainant was a child under the age of 16 years	Convicted
3.	On an unknown date between 28 July 2004 and 1 February 2009 at Duncraig WMT sexually penetrated the complainant, a child who he then knew to be his lineal relative, by penetrating her vagina with his finger, and that the complainant was a child under the age of 16 years	Convicted
4.	On an unknown date between 28 July 2004 and 1 February 2009 at Duncraig WMT sexually penetrated the complainant, a child who he then knew to be his lineal relative, by penetrating her vagina with his penis, and that the complainant was a child under the age of 16 years	Convicted
5.	On an unknown date between 28 July 2004 and 1 February 2009 at Duncraig WMT indecently dealt with the complainant, a child who he then knew to be his lineal relative, by rubbing her bottom with his penis, and that the complainant was a child under the age of 16 years	Convicted
6.	On an unknown date between 28 July 2004 and 1 February 2009 at Duncraig WMT indecently dealt with the complainant, a child who he then knew to be his lineal relative, by rubbing her vulva with his penis, and that the complainant was a child under the age of 16 years	Convicted
7.	On an unknown date between 28 July 2004 and 1 February 2009 at Duncraig WMT sexually penetrated the complainant, a child who he then knew to be his lineal relative, by penetrating her vagina with his finger, and that the complainant was a child under the age of 16 years	Convicted
8.	On an unknown date between 29 July 2007 and 30 July 2008 at Mundaring WMT sexually penetrated the complainant, a child who he then knew to be his lineal relative, by penetrating her vagina with his fingers, and that the complainant was a child under the age of 16 years	Convicted
9.	On an unknown date between 31 December 2008 and 26 February 2014 at Duncraig WMT sexually penetrated the complainant, a child who he then knew to be his lineal relative, by penetrating her vagina with his finger, and that the complainant was a child under the age of 16 years	Convicted
10.	On an unknown date between 31 December 2008 and 26 February 2014 at Duncraig WMT sexually penetrated the complainant, a child who he then knew to be his lineal relative, by penetrating her vagina with his finger, and that the complainant was a child under the age of 16 years	Convicted
11.	On an unknown date between 31 December 2008 and 29 July 2010 at Duncraig WMT indecently dealt with the complainant, a child who he then knew to be his lineal relative, by rubbing his penis with her hand, and that the complainant was a child under the age of 16 years	Convicted
12.	On the same date and at the same place as in count 11 WMT sexually penetrated the complainant, a child who he then knew to be his lineal relative, by penetrating her vagina with his fingers, and that the complainant was a child under the age of 16 years	Convicted
13.	On an unknown date between 31 December 2008 and 26 February 2014 at Duncraig WMT sexually penetrated the complainant, a child who he then knew to be his lineal relative, by penetrating her vagina with his finger, and that the complainant was a child under the age of 16 years	Convicted
14.	On an unknown date between 31 December 2008 and 26 February 2014 at Duncraig WMT indecently dealt with the complainant, a child who he then knew to be his lineal relative, by rubbing her nipples with his hand, and that the complainant was a child under the age of 16 years	Convicted
15.	On an unknown date between 31 December 2008 and 29 July 2010 at Duncraig WMT sexually penetrated the complainant, a child who he then knew to be his lineal relative, by penetrating her vagina with his finger, and that the complainant was a child under the age of 16 years	Convicted
16.	On an unknown date between 31 December 2008 and 26 February 2014 at Duncraig WMT sexually penetrated the complainant, a child who he then knew to be his lineal relative, by penetrating her vagina with his finger, and that the complainant was a child under the age of 16 years	Convicted
17.	On an unknown date between 31 December 2008 and 26 February 2014 at Duncraig WMT sexually penetrated the complainant, a child who he then knew to be his lineal relative, by penetrating her vagina with his finger, and that the complainant was a child under the age of 16 years	Convicted
18.	On an unknown date between 31 December 2008 and 26 February 2014 at Duncraig WMT sexually penetrated the complainant, a child who he then knew to be his lineal relative, by penetrating her vagina with his finger, and that the complainant was a child under the age of 16 years	Convicted
19.	On an unknown date between 31 December 2008 and 26 February 2014 at Duncraig WMT indecently dealt with the complainant, a child who he then knew to be his lineal relative, by rubbing her vulva with his finger, and that the complainant was a child under the age of 16 years	Convicted
20.	On an unknown date between 31 December 2008 and 26 February 2014 at Duncraig WMT sexually penetrated the complainant, a child who he then knew to be his lineal relative, by engaging in cunnilingus, and that the complainant was a child under the age of 16 years	Convicted
21.	On an unknown date between 31 December 2008 and 26 February 2014 at Duncraig WMT sexually penetrated the complainant, a child who he then knew to be his lineal relative, by penetrating her vagina with his finger, and that the complainant was a child under the age of 16 years	Acquitted
22.	On an unknown date between 31 December 2008 and 26 February 2014 at Duncraig WMT sexually penetrated the complainant, a child who he then knew to be his lineal relative, by penetrating her vagina with his penis, and that the complainant was a child under the age of 16 years	Convicted
23.	On an unknown date between 31 December 2008 and 26 February 2014 at Duncraig WMT sexually penetrated the complainant, a child who he then knew to be his lineal relative, by penetrating her vagina with his finger, and that the complainant was a child under the age of 16 years	Acquitted
24.	On an unknown date between 31 December 2008 and 26 February 2014 at Duncraig WMT sexually penetrated the complainant, a child who he then knew to be his lineal relative, by penetrating her vagina with his finger, and that the complainant was a child under the age of 16 years	Acquitted
25.	On an unknown date between 31 December 2008 and 26 February 2014 at Duncraig WMT sexually penetrated the complainant, a child who he then knew to be his lineal relative, by penetrating her vagina with his finger, and that the complainant was a child under the age of 16 years	Convicted
26.	On an unknown date between 31 December 2008 and 26 February 2014 at Duncraig WMT sexually penetrated the complainant, a child who he then knew to be his lineal relative, by penetrating her vagina with his finger, and that the complainant was a child under the age of 16 years	Convicted