WS v Gardin - [2015] WASC 97

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: WS -v- GARDIN [2015] WASC 97

CORAM: MITCHELL J

HEARD: 19 FEBRUARY 2015

DELIVERED : 20 MARCH 2015

FILE NO/S: SJA 1068 of 2014

BETWEEN: WS
Appellant
AND
JOHAN ANDRE GARDIN
Respondent

ON APPEAL FROM:
Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE T SCHWASS
File No  :PE 2390 of 2014, PE 2391 of 2014, RO 474 of 2014

Catchwords:

Criminal law - Appeal from court of summary jurisdiction - Whether Children's Court of Western Australia exercising summary jurisdiction - Indictableonly offence tried by magistrate - Adequacy of reasons for conviction - Where case turns on credibility of witnesses - Whether express error of fact material - Whether substantial miscarriage of justice

Evidence - Relationship and propensity evidence - Whether reliability of evidence assessed in determining probative value - Adequacy of reasons for evidentiary ruling

Legislation:

Children's Court of Western Australia Act 1988 (WA), s 19, s 19B, s 41
Criminal Appeals Act 2004 (WA), s 7, s 8, s 14
Criminal Procedure Act 2004 (WA), s 120
Evidence Act 1906 (WA), s 31A

Result:

Appeal allowed on grounds 3, 6 and 7
New trial ordered

Category: A

Representation:

Counsel:

Appellant: Ms J G Fordham
Respondent: Ms A C Longden

Solicitors:

Appellant: Fordham & Roast
Respondent: Director of Public Prosecutions (WA)

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

Abeyakoon v Brown [2011] WASCA 63; (2011) 211 A Crim R 338
AJE v The State of Western Australia [2012] WASCA 185; (2012) 225 A Crim R 242
AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469
Bennett v Carruthers [2010] WASCA 131
Challis v The State of Western Australia [2014] WASCA 8
Crosswell v Ainsworth [2014] WASC 186
Daniels v The State of Western Australia [2012] WASCA 213; (2012) 226 A Crim R 61
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779
Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186
Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292
Keith v Gal [2013] NSWCA 339
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
Manonai v Burns [2011] WASCA 165
Martin v Osborne (1936) 55 CLR 367
McGee v Chitty [2011] WASCA 125
Pass v Gerling Australia Insurance Company Pty Ltd [2011] WASCA 93
Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303
R v Boardman [1975] AC 421; [1974] 3 All ER 887
Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525
RMC v The State of Western Australia [2015] WASCA 33
Rodrigues v Ainsworth [2014] WASC 101
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Scolaro v Shephard [No 2] [2010] WASC 271
Smith v Richardson [2013] WASC 114
Strahan v Brennan [2014] WASC 190
The House Relocators Pty Ltd v Ginbey [2014] WASCA 94
The State of Western Australia v G (a child) [2009] WASC 234
The Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816
Van der Velde v Halloran [2011] WASCA 252
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

TABLE OF CONTENTS

Factual background

Charges
Prosecution and defence cases at trial
Evidence relied on by the prosecution

Direct evidence of CS
Recent complaint evidence
Other evidence of SS
Propensity/relationship evidence
DNA evidence

Admissions

Evidence adduced by the appellant at trial
The magistrate's reasons
Legislative provisions governing this appeal

Grounds of appeal
Right of appeal
The Children's Court as a court of summary jurisdiction

Grounds for appealing
Leave to appeal
Disposition of appeal

Ground 1: admission of propensity/relationship evidence

Legislation
The appellant's submissions
Reliability of the propensity/relationship evidence
Approach to determination of admissibility of propensity/relationship evidence at trial
Significant probative value and reliability
Significant probative value in the present case
Balancing public interest

Ground 2: reasons for admitting propensity/relationship evidence

Proceedings in the Children's Court
Adequacy of reasons for the evidentiary ruling

Ground 3: error of fact
Ground 4: judicial notice
Ground 6: appellant's evidence

The magistrate's reasons
Requirement for reasons: statutory provisions
Requirement for reasons: general principles
Adequacy of the magistrate's reasons in this case

Ground 7: evidence of LS
Ground 8: DNA evidence

Evidence
Magistrate's reasons
Significance of the DNA evidence
Arguments advanced at trial

Fitzgerald

Ground 9: evidence of saliva
Section 14(2) of the CA Act

Construction of s 14(2) of the CA Act
Substantial miscarriage of justice in this case
Application of the Weiss negative proposition
Substantial miscarriage of justice and reasons for decision

Orders

MITCHELL J: The appellant seeks leave to appeal against his conviction in the Children's Court of Western Australia of one count of indecently dealing with a child and two counts of sexually penetrating a child. The appellant was convicted of those offences by a magistrate at the conclusion of a trial which took place on 13 ‑ 19 August 2014.
In essence it was alleged that the appellant approached the complainant on three occasions as she slept, inserting his fingers into her vagina on two occasions and licking her crotch area on the other occasion.
In the present case the critical issue was whether the alleged conduct of the appellant toward the complainant, who was his cousin, occurred at all. She said that it happened; the appellant denied this. The magistrate could only have been satisfied beyond reasonable doubt of the appellant's guilt if he accepted the evidence of the complainant, rejected the evidence of the appellant and found that the appellant's evidence did not give rise to a reasonable doubt about whether the events described by the complainant occurred at all.
In my view the magistrate made two errors of fact which affected his assessment of the credibility of the complainant's evidence and the evidence of the complainant's and appellant's grandmother (which tended to corroborate the appellant's account).
Further, the magistrate's reasons for rejecting the appellant's evidence as unpersuasive do not satisfy the requirements of s 120 of the Criminal Procedure Act 2004 (WA) (CP Act), which were applied to the proceedings by s 19B(4)(c) of the Children's Court of Western Australia Act 1988 (WA) (CCWA Act). The magistrate's reasons do not disclose that he considered whether, even if he did not accept the appellant's account, the appellant's evidence raised a reasonable doubt in the magistrate's mind as to whether the appellant was guilty of the offence with which he was charged. Nor is it apparent from the reasons that the magistrate recognised that rejection of one aspect of the appellant's evidence did not necessarily mean that all of the appellant's evidence needed to be rejected. A miscarriage of justice occurred either because the magistrate did not have regard to these principles or because his reasons do not disclose that he had regard to those principles.
Given the above errors in dealing with the conflicts between the appellant's and complainant's evidence, I do not consider this to be a case where s 14(2) of the Criminal Appeals Act 2004 (WA) (CA Act) can be applied to dismiss the appeal on the ground that no substantial miscarriage of justice has occurred.
My reasons for the above conclusions, and for rejecting the appellant's other grounds of appeal, are set out below.

Factual background

Some of the factual background to this case was not controversial, either at trial or on appeal. I set out the uncontroversial background facts below.
The events which were the subject of the charges were alleged to have occurred in the early hours of the morning of Saturday, 21 December 2012. That was the last night of a family holiday at a resort in Dunsborough in the south‑west of the State.
The members of the family staying at the resort were LS, who was visiting from overseas, her two adult sons CPS and GS, and their wives and children. The appellant (then aged 14 years) is the son and only child of GS. CPS had two daughters, CS (then aged 13 years) and SS (then aged 16 years), staying at the resort.
The family had taken three rooms at the resort. CPS and his wife slept in one room, while GS and his wife shared another room. The third room was occupied by LS, CS and SS (who all shared a bed in the room) and the appellant (who slept on a stretcher bed).
Nothing of great significance occurred during the holiday prior to the alleged incident. There was some evidence of tension between CPS and GS, and an argument while they were out on a boat on 20 December 2012. The details of this argument were never explained and do not appear to be of any significance for present purposes. All members of the family shared a dinner together at the resort on the evening of 20 December 2012. After dinner, CPS, GS, CS and the appellant went to the resort spa, while other family members retired to their rooms. Those attending the spa returned to their rooms when the spa had to be turned off later in the evening.
Eventually LS, CS, SS and the appellant retired to bed. LS slept on the left‑hand side of the main bed, SS slept in the middle and CS slept on the right‑hand side of the main bed. The appellant was lying in his stretcher bed.

Charges

The appellant was charged with the following offences:
1.That on 21 December 2012 at Marybrook he 'indecently dealt with a child, namely [CS], in circumstances of aggravation, namely the victim is of or over the age of 13 years and under the age of 16 years', contrary to s 321(4) of the Criminal Code (WA).
2.That on 21 December 2012 at Dunsborough he sexually penetrated CS, a child aged 13 years, contrary to s 321(2) of the Criminal Code.
3.That on 21 December 2012 at Dunsborough he sexually penetrated CS, a child aged 13 years, contrary to s 321(2) of the Criminal Code.

Prosecution and defence cases at trial

The prosecution alleged that, in the early hours of the morning of 21 December 2012, CS woke up and became aware that the appellant was inserting his fingers into her vagina. CS moved, in what she described as a 'sleep move', to adjust her position as she pretended to sleep. The appellant then tickled CS's feet in an attempt to get her to move again. After a period of time the appellant left the bed, only to later return and again penetrate CS's vagina with his fingers. CS rolled over, which disturbed the appellant who went away. These alleged incidents of digital penetration were the subject of the sexual penetration counts (ts 13).
The prosecution alleged that, subsequently, CS felt the appellant's head between her thighs, and could feel his glasses pressing against the inside of her thigh (ts 11). She felt that her foot had been put onto the base of a seat cushion to elevate her leg as she was lying on the edge of the bed. CS could feel wetness or dampness on the inside of her thigh. CS moved again and disturbed the appellant, who returned to his bed. This alleged incident was the subject of the indecent dealing charge (ts 12).
The defence position at trial was simply that the incidents described above did not occur.

Evidence relied on by the prosecution

It will later prove necessary for me to deal with aspects of the evidence in greater detail. At this stage I will summarise the main elements of the prosecution case.

Direct evidence of CS

The principal evidence against the appellant was the oral testimony of CS, whose evidence‑in‑chief principally comprised two recorded interviews with police officers conducted on 16 January 2013 and 20 June 2014.
At the first interview, CS said that 'on holiday my cousin, he touched me in an inappropriate place' at about 3.00 am. CS said that she woke up to find one of her legs off the bed. She said that the appellant was kneeling on the floor with his head in her crotch area. CS said she did not know what to do 'so I pretended I was sleep moving'. She said that the appellant ran away and jumped on his stretcher that was on the other side of the room.
CS said that she stayed up waiting for her sister to wake up. She did not want to go back to sleep because she thought the appellant was 'gonna do it again'. CS said that the appellant got up and sat on the chair next to her and kept asking CS if she was going to sleep, if she was tired or was going to bed again. CS said she was not really tired. The appellant got back up and walked past the bed and to the kitchen and asked CS if she wanted whipped cream to eat. She said 'no'. CS said that the appellant stayed up on the couch next to her, and kept asking her if she was tired.
CS said that about an hour to an hour and a half later she was still up and was crying, waiting for SS to wake up. CS said:
I started bawling out crying and I woke her up and she asked me what was wrong and then I told her but he was on the other side of the room so he didn't hear me.
CS said the girls went to the bathroom and:
[W]hen that actually happened I moved and I could tell that my whole crotch area was kind of wet. And so I went to the bathroom and I washed my legs because I felt really dirty.
CS said that she and SS then went back to bed with SS sleeping in the spot where CS had slept.
CS said that she knew that it was appellant's head between her crotch because he wore glasses and she felt his glasses touching the inside of her thighs. She said:
So when I sleep moved yeah I could feel that my crotch area was wet and my thighs and everything so that's when I knew that he licked me there in my private area.
CS did not mention digital penetration at the first interview.
In the second interview CS said that she had come to talk about 'what else happened that I was too afraid to say the first time I went for an interview'. CS said:
Well, what really happened on that night I was too scared to kind of tell the interviewers, I was a bit embarrassed that I didn't stop my cousin but he - - - while I was sleeping I kind of woke up from him putting his fingers inside of my vagina and I didn't do anything about it but I moved around in different positions hoping that he would stop but he didn't.
CS then said that the appellant stopped for a while and then he came back. She again described the incident with the appellant's head between her legs. CS said that after she did a 'sleep move':
[H]e ran away and he bumped himself on a counter and then he went to bed on his stretcher that was on the other side of the room and then I had pretended that I just woke up and I went on my phone and talked to one of my friends to make it less obvious.
CS then described her sister waking and them going to the bathroom where CS washed her legs.

Recent complaint evidence

CS's statement that she texted her friend was corroborated by the friend, KL, who gave evidence at trial. However, his evidence did not descend into the detail of what he was told.
SS gave evidence that she woke up at about 4.00 am to find CS crying beside her and using her phone to send text messages. SS said that the crying was not loud enough to wake everybody up - 'just kind of like silent crying'. SS asked CS what was wrong and CS said that the appellant had touched her in her sleep. SS asked CS what she meant. As CS tried to explain, SS told her to be quiet and both girls went to the bathroom.
SS later gave evidence that, when she woke, LS got up and went to the toilet. When she returned to her bed, LS asked what the girls were talking about. SS said that the girls retreated to the bathroom at that point. This was consistent with a statement made by CS to police.
SS said that in the bathroom, CS indicated that she was wet in her groin area and it felt like she had been licked in that area and that she had woken to find her legs spread open across a pillow.
The girls subsequently went back to bed, with CS sleeping in the middle and SS sleeping on the edge of the bed to protect her.
Later that morning SS told her mother that she and her father needed to speak to CS. CPS later attended the room and spoke to CS. He gave evidence that CS told him that the appellant had touched her during the night and that he was in between her legs and that she felt his head there with his glasses. CPS gave evidence that CS told him that when she woke up her legs were spreadeagle on top of a pillow or one of the cushions from the couch, and she was wet in her crotch.

Other evidence of SS

There were some other aspects of SS's evidence which tended to support the account given by CS.
SS said that when they went to bed, the appellant kept asking her when she was going to fall asleep, which SS thought was strange. The appellant had not asked that question of SS on any other occasion when they stayed at the resort.
SS also said that the appellant ordinarily slept with his glasses on a table next to his stretcher. SS said that, when CS told her what had happened in the early hours of the morning, she looked over to the stretcher bed. SS saw the appellant lying on the stretcher bed facing toward their bed and wearing his glasses.
SS also said that she stayed awake and that, at about 6.00 am, the appellant got up from his bed and walked to stand directly in front of their bed, with his hands on his knees, looking at them. SS opened her eyes and looked back at the appellant, who then returned to his bed.

Propensity/relationship evidence

Both CS and SS gave evidence about incidents that had previously occurred involving the appellant. The prosecution sought to have this evidence admitted under s 31A of the Evidence Act 1906 (WA) as relationship and propensity evidence.
In her interview with police on 16 January 2013, CS was asked whether the appellant had ever done 'anything like this to you before?' CS replied:
No, he did it to my sister … I think five years ago he did it for a year … to her repeatedly and - but not in her crotch area he groped her … kind of, yeah and … he made me watch him so I know what he's like.
In her second interview on 20 June 2014 CS said, while explaining why she did not follow her friend's text advice to get up, go outside and call the police:
I don't know what he would do but when he did it to my sister a long time ago he told me that he would do something if I ever told anyone that he did something to my sister and I was scared of what my cousin was capable of doing.
…
I was little. I can't remember how old I was when he was doing it to my sister but when he did he would always sleep over at my house and he would always make me watch him in case he got told off or caught and then he would blame some of it on me but back then I didn't really understand what he was doing. I think I must have been nine or 10.
Later in the interview, CS was asked what she meant by 'he would make me watch', to which she responded:
Every time he wanted to do something to my sister he would have to wake me up or ask me to come with him and … he would make me sit there and watch him in case one of my parents came out or she woke up.
In her evidence‑in‑chief, CS also gave an account of an incident when she was about 8 or 9 when the appellant touched her in her crotch area with a glow stick (ts 29).
SS gave evidence that, on more than one occasion when she was 9 or 10 years old, she would wake to find the appellant groping her breasts under her clothing (ts 62). SS also described two occasions on which she saw the appellant watching her in the shower (ts 63 ‑ 64). She described one occasion on which she woke to find her hand touching the appellant's erect penis (ts 64 ‑ 65). SS said that, after this incident, she told the appellant not to touch her again, and told her mother that the appellant had been touching her 'boobs' while she slept. SS said that, after that, the appellant did not stay the night at her house again (ts 65 ‑ 66). SS said that she thought she was about 10 years old and in primary school when these things happened (ts 73 ‑ 74).

DNA evidence

Prosecuting counsel opened on the basis that expert evidence would show that a DNA mixture was located on the outside crotch of CS's underpants. The prosecution case was that this was very much more likely to be a mixture of CS's and the appellant's DNA than a mixture of CS's and someone else's DNA.
I will not give greater detail of the DNA evidence at this stage. Much effort was directed to establishing that there were innocent means by which the appellant's DNA could have been transferred to this area of the CS's underpants. In the end the magistrate accepted this to be the case, and counsel for the respondent did not contend to the contrary before me.

Admissions

The appellant was interviewed by police on 12 December 2013, a little under a year after the alleged incident. He denied the alleged incidents on the night of 20 ‑ 21 December 2012.
The appellant did say that during the night he got up and touched CS on the upper leg to see if she was all right. He said that CS was lying on her side and he thought CS's foot was off the bed. He asked if CS was all right and she said 'mmhmm', so he left her.
During the interview the appellant said that he had touched SS on the 'boob', but that happened a very long time ago and he apologised about it.
The appellant also told police that CS had been drinking alcohol while they were at the spa (a fact that was denied by CS and her father during their evidence at trial but confirmed by the appellant's father).

Evidence adduced by the appellant at trial

The appellant gave evidence on his own behalf and denied that any of the incidents described by his cousins occurred, describing them as 'false allegations' (ts 228). He said that CS was drinking in the spa on the evening of 20 December 2012. He described the incident when he had touched SS's 'boob' as occurring at Kings Park when they were playing chase and SS turned around and he accidentally touched her on the 'boob'. The appellant said that SS had kicked him between the legs and he called his dad. He said this occurred when he was 8 or 9 years old (ts 230 ‑ 231).
The appellant also described his approach to CS on the night of the alleged incident. He said that CS appeared to be having a nightmare and he stood up, tapped her on the thigh and asked if she was all right. He said that CS did not respond, and he went to the kitchen and offered her something to eat or drink. He said he ate some whipped cream in the kitchen, went to the bathroom and returned to bed (ts 249 ‑ 250).
LS also gave evidence, describing CS having sips of alcoholic drinks at dinner on the evening of 20 December 2012. She described herself as a light sleeper and claimed that if anything had happened on the night in question she would have heard it.
GS also gave evidence and said that CS had been drinking at the spa, and confirmed that his mother was a very light sleeper.

The magistrate's reasons

The magistrate delivered ex tempore reasons, convicting the appellant of all three charges, immediately after the conclusion of counsel's addresses at the end of the fifth day of the trial.
The magistrate began by summarising the evidence of CS. In the course of doing so he observed:
What can be said about her evidence is, as I can take judicial notice of, often in these cases an initial disclosure is not a full disclosure and as time goes on, further information is disclosed.
Later he observed:
Coming back to the evidence of [CS], having heard over 25 years as a magistrate a lot of evidence of this nature, there are some hallmarks of the truth of the matter and the main one of course is the detail that particularly arises in cross‑examination. [CS] was able to give detail in relation to all the matters she gave on appearance in court on the screen, consistent with the two interviews by the police that she was recounting a remembered event.
It didn't appear that she was making things up to satisfy the questions that were being asked. She gave every indication that she was recalling a remembered event. I have great difficulty in accepting the contention that as a result of her attention seeking behaviour she has manufactured these allegations against her cousin, [the appellant].
After summarising aspects of the evidence of SS, GS, KL and other prosecution witnesses, the magistrate referred to the evidence of LS, which he described as 'interesting' (ts 443). The magistrate dealt with the evidence of LS in the following terms:
The accused, through counsel, say that she is a key witness, that nothing happened untoward that night because she was there, she's a light sleeper.
She was aware of the allegations that had been made by [SS] or relating to [SS] that [the appellant] had touched her, and she actually gave evidence that she told her grandchildren that she was there to make sure nothing untoward happened. Those were not her words, but they were the effect of her words. She, in my view, was not a credible witness. I do not accept that for some perverse reason [CPS], her son, has concocted this whole thing and put [CS], and to a lesser degree [SS], up to making these allegations.
She was somewhat irrational, I would have thought, in the fact that [WS], being a nice boy, could not do these things. It may be that she believes that, but I don't want accept it as the truth of the matter and it is clear that she is, as has been submitted by the prosecutor, is not independent. She is certainly partisan. She has sided with [the appellant] and his family and it's unfortunate that this matter has split the [S] family cleanly into two different camps.
After referring to the evidence of GS, which he generally accepted, the magistrate said:
So at the end of it all, the question is simply whether I am satisfied beyond reasonable doubt as to every element of the offence. As the prosecution notices, it's common ground as to the age of [CS] and no issue has been taken with that, and the question is whether I entertain a reasonable doubt. The fact that [CS]'s evidence was so persuasive, it is corroborated by [KL] and his gruff and straightforward manner, it is corroborated by the phone records which are not disputed, although the content is disputed.
After referring to the evidence of recent complaint, the magistrate referred to the appellant's evidence in the following terms:
[GS] spoke to [the appellant]. [The appellant] for the first time mentioned the Kings Park game of chasey, he had accidentally touched [SS] and for his pains got kicked in the groin.
The only person that has ever given evidence of that is [the appellant]. The first time he mentioned it, as I understand the evidence, was sitting in the car on the Saturday morning and he later mentioned it in his police video record of interview. I'm sure that's something that had it occurred, [SS] would have remembered if only for successfully kicking [the appellant] between the legs. She appeared to be surprised that he was saying that and certainly did not corroborate that.
Immediately after this passage, the following sentence appears in the transcript:
I have extreme doubt and don't accept that incident occurred, given that the evidence of [CS] is so persuasive, the evidence of [the appellant] is not and the evidence of [CS] is corroborated, I accept her evidence as the truth of the matter.
As transcribed, this sentence is somewhat confusing, as CS did not give any evidence about an incident in Kings Park. I think what has occurred is that the transcriber has inserted a comma where a full stop should have been placed. On that view the words 'given that' begin a new topic, so that the passage should read:
I have extreme doubt and don't accept that incident occurred.
Given that the evidence of [CS] is so persuasive, the evidence of [the appellant] is not and the evidence of [CS] is corroborated, I accept her evidence as the truth of the matter.
I have listened to the audio recording of the magistrate's reasons and there is a significant pause between the word 'occurred' and the word 'given' in the above passage. On balance, I consider that the transcriber has joined two sentences dealing with separate topics as one, and that the punctuation set out immediately above reflects the magistrate's intended meaning. On that view, the reference to 'the matter' is to the charged conduct rather than the incident at Kings Park.
The magistrate went on to deal with the DNA evidence, in terms to which I will come when dealing with the grounds of appeal relating to the DNA evidence. The magistrate then reached his conclusion in the following terms:
[I]t's not for [the appellant] to prove anything. He has to prove nothing. The onus is entirely on the prosecution to satisfy me as to every element beyond reasonable doubt. There are no defences offered or available. The defence is simply that it did not occur.
It's not a matter of me deciding which of the witnesses I prefer over the other. It's a question, as always, as to whether I'm satisfied to the required standard, that is beyond reasonable doubt. I am satisfied beyond reasonable doubt and have no hesitation in convicting [the appellant] of the three charges.

Legislative provisions governing this appeal

Grounds of appeal

Ground 5 was abandoned by the appellant at the hearing of the appeal. The appellant sought leave to appeal on eight other grounds.

Right of appeal

Section 41 of the CCWA Act provides for an appeal against the decision of the magistrate in this case to be made under pt 2 of the CA Act.
Section 7(1) of the CA Act provides that a person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision. A 'decision' for this purpose includes a decision to convict an accused of a charge.[1]

The Children's Court as a court of summary jurisdiction

[1] Section 6(c) of the CA Act.

I am satisfied that the Children's Court of Western Australia (Children's Court), as constituted by the magistrate in this case, is a court of summary jurisdiction for the purposes of s 7(1) of the CA Act. This result follows from the following provisions of the CCWA Act.
Section 19(1) of the CCWA Act confers exclusive jurisdiction on the Children's Court to hear and determine a charge of an offence alleged to have been committed by a child.
Section 19(3) of the CCWA Act provides:
In exercising the jurisdiction conferred by this section, the Court when constituted so as not to consist of or include a judge is a court of summary jurisdiction, subject to section 19B(4)(d).
Section 19B(4)(d) of the CCWA Act provides:
Subject to Part 5, the child, if convicted, shall, for the purposes of punishment and orders, procedures, and proceedings consequential on conviction, be taken to have been convicted on indictment, notwithstanding that the child may have been convicted by the Court when constituted other than by a judge.
Section 19B(4)(d), when read with s 19(3), in effect provides that the Children's Court in this case was not taken to be a court of summary jurisdiction for the purposes of matters consequent upon conviction. However, s 19B(4)(d) is itself expressed to operate subject to pt 5 of the CCWA Act.
Part 5 of the CCWA Act deals with the review and appeal of decisions made by the Children's Court. It includes s 41, to which I have referred, providing for appeals from a decision of the court constituted other than by a judge to be made under pt 2 of the CA Act.
When s 19(3), s 19B(4)(d) and s 41 of the CCWA Act are read together it appears that a decision of the Children's Court constituted by a magistrate is taken to be a decision of a court of summary jurisdiction for the purposes of dealing with an appeal against that decision. Therefore, the decision of the magistrate to convict the appellant in this case was 'a decision of a court of summary jurisdiction' to which s 7 of the CA Act applies.

Grounds for appealing

Section 8(1) of the CA Act identifies the permissible grounds for appealing in the present case, in the following terms:
An appeal may be made under this Division on one or more of these grounds:
(a)that the court of summary jurisdiction:
(i)made an error of law or fact, or of both law and fact;
(ii)acted without or in excess of jurisdiction;
(iii)imposed a sentence that was inadequate or excessive;
(b)that there has been a miscarriage of justice.

Leave to appeal

The appellant requires leave to appeal for each ground of appeal. Leave must not be granted unless the court is satisfied that the ground has a reasonable prospect of succeeding.[2] Unless leave to appeal is granted on one or more grounds, the appeal must be taken to be dismissed.[3]
[2] See Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.
[3] Section 9 of the CA Act.
In this case, the application for leave was ordered to be heard at the same time as the appeal.

Disposition of appeal

The things which this court may do in deciding this appeal include the following actions provided for by s 14(1) of the CA Act:
In deciding an appeal, the Supreme Court may do one or more of the following -
(a)dismiss the appeal;
(b)allow the appeal;
(c)set aside or vary the decision of the court of summary jurisdiction and sentence imposed, order made or thing done as a result of the decision;
(d)substitute a decision that should have been made by the court of summary jurisdiction;
(e)order the case to be dealt with again by the court of summary jurisdiction, with or without orders to that court -
(i)as to how or by whom it is to be constituted;
(ii)as to how it must deal with the case.
Section 14(2) of the CA Act provides:
Despite subsection (1)(b), even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

Ground 1: admission of propensity/relationship evidence

Ground 1 alleges that:
The learned magistrate erred in law in admitting evidence of alleged past conduct of the Appellant toward the complainant and towards her older sister under s 31A of the Evidence Act 1906.

Legislation

Section 31A of the Evidence Act provides:
(1)In this section:
propensity evidence means:
(a)similar fact evidence or other evidence of the conduct of the accused person; or
(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.
(2)Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -
(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
(3)In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.

The appellant's submissions

The appellant denies that the propensity and relationship evidence adduced at trial had any significant probative value. In making that submission counsel for the appellant did not deny that the evidence would have significant probative value so far as it would establish the following matters:
1.The appellant demonstrated a sexual interest in a female cousin upon which he was prepared to act.
2.The appellant had so acted by engaging in a sexual manner towards his cousin while she slept or he thought she was asleep.
3.The appellant had threatened CS during those past incidents, which provided an explanation for her initial reaction to the appellant's conduct towards her as she was asleep or pretending to be asleep.
The first two matters made it more likely that the appellant had behaved in the manner alleged towards his cousin CS as his behaviour in a similar manner towards SS on previous occasions demonstrated his propensity for engaging in that unusual conduct. The third matter, combined with the first two, was relevant to understanding CS's reaction to the commission of the offence, namely the reason she was fearful of the appellant. For these reasons, in my view, evidence which established those facts would have significant probative value and the magistrate was correct to so conclude.
The main effect of the appellant's argument was not that the evidence, if accepted as true, had no significant probative value. Rather, the main contention was that the evidence was so unreliable that it had no significant probative value.

Reliability of the propensity/relationship evidence

The unreliability of the evidence was said to flow from two principal propositions, both of which arose in cross‑examination of CS and SS by counsel for the appellant:
1.It was unlikely that the appellant had 'dry humped' SS in the manner and on the number of occasions described by CS without ever waking SS up.
2.The evidence of SS and CS was inconsistent as to whether SS wore a bra when she was groped by the appellant.
As to the first proposition, the appellant relies on the following passage of cross-examination of CS in relation to the conduct of the appellant towards SS:
Now, are you telling us that, in summary, he molested your sister for a year - - -?---Yes.
- - - and you watched it?---Yes.
And you didn't tell anybody?---Because I didn't really know what he was doing. I was nine or eight years old. I didn't understand.
And how old was he?---10.
He was seven or eight - - -?---No, he wasn't.
- - - the first time that you say something happened between him and [SS]?---If he was seven or eight, I wouldn't have been in Australia. I got here when I was five.
Right. Well, I will leave that. I will ask someone else about that. Now, are you saying, then, that he molested your sister for a year and neither you nor your sister told anyone?---My sister didn't know.
I see. And your sister didn't know?---Yes. She didn't know.
Didn't know what?---That he was doing those things to her.
Okay. She was how much older than [WS]?---Two years.
...
Okay. And you say this happened with [SS] during the night and he made you come and watch?---He would bring me every single time he did it.
How many times was that?---It's more than I know. It has been - - -
10, 20, 100?---I don't know. More than that, probably.
More than 100?---I don't count every single time he has done it.
Right. And was it always in the same situation when he was staying the night at your place?---Or we were sleeping at his house.
But he never stayed the night at your place, did he?---Yes, he did.
Aside from the time when they first arrived in Australia?---He always slept over my house (ts 71 ‑ 72).
Subsequently the following exchange occurred:
At the time you're saying that [WS] I think molested your sister for a year, were you saying - I may or may not have this right - were you saying that as far as you knew your sister wasn't aware of that?---Yes, she didn't know. She was asleep.
Every single time?---Yes. She woke up sometimes and we would run away.
And when you say molested, what exactly are you saying he did to her for a year?---He sometimes took her bra off and groped her boobs. He would dry hump her.
And she didn't wake up?---Yes.
…
All right. So you're saying he would dry hump her and she didn't wake up?---Yes.
And you went along with all of this?---I didn't know what was happening when I was that young.
How old were you?---Eight, nine. I didn't understand what was going on.
But you remember it so well now that you're telling us he would dry hump her?---Yes, because the night that I figured out what he was doing when I told my sister, he tried to do it again and that's when my sister had woken up and caught him.
So how many times did this sort of thing happen with your sister?---Plenty of times. Whenever he slept over.
Okay?---Or whenever we slept at his house.
How many is plenty? Can you give any idea?---I'm sorry, I don't count how many times my cousin touches my sister.
All right. What exactly did he do when he was doing what you call dry humping?---Thrusting his lower body on my sister.
Where was he?---On top of my sister.
Where was she?---In the bed.
All right. And she didn't wake up?---Yes, she didn't wake up.
How many times did that happen, do you know? Lots or a couple?---I already said it, plenty of times.
That specific action I mean, the dry humping?---I don't count it.
Okay. Lots?---Yes (ts 22 ‑ 23).

CS later said that she had not told anyone about the 'dry humping', even her sister (ts 24). CS thought that she was 8 or 9 years old at the time the conduct occurred and that the appellant was 10 (ts 30).
Counsel for the appellant described these allegations as 'flamboyant', and submitted that it was not believable that the 'dry humping' could have occurred on so many occasions without waking SS.
As to the second proposition, counsel points to the inconsistency between the evidence of CS that the appellant removed SS's bra while she slept (ts 22) and SS's evidence that she did not wear a bra (ts 62).
Counsel for the appellant also submitted that the length of time since the alleged conduct toward SS occurred; and the fact that the appellant would not have reached puberty by that time; diminished the probative value of the evidence.

Approach to determination of admissibility of propensity/relationship evidence at trial

It may be noted that the matters going to the reliability of the evidence arose during the course of cross‑examination of CS and SS by counsel for the appellant. This occurred because of the somewhat unusual course adopted at trial for dealing with objections to the admissibility of the propensity and relationship evidence. At trial counsel for both parties agreed that the evidence should be received as evidence in the trial, subject to the appellant's objection, with the magistrate making a ruling as to its admissibility at the end of the hearing.
I see nothing wrong with that approach in a trial without a jury. More commonly, particularly in jury cases, the prosecution will apply for a ruling on the evidence in advance of the trial and a decision as to admissibility will be made by reference to the witness statements. Cross‑examination does not ordinarily occur on the evidence before a ruling on its admissibility, so that questions of the reliability of the evidence do not arise. While there was nothing wrong with the approach adopted in this case, it did have the practical consequence that the evidence had been subject to cross‑examination and submissions could be made about the reliability of the evidence.

Significant probative value and reliability

Ordinarily, the question of the admissibility of evidence is addressed before a decision is made as to whether the evidence should be accepted as true. That was also the approach by the common law rule concerning similar fact evidence, which also was cast in terms of the 'probative value' of the evidence. As Mason CJ, Wilson and Gaudron JJ noted in Hoch v The Queen:[4]
The basis for the admission of similar fact evidence lies in its possessing a particular probative value or cogency by reason that it reveals a pattern of activity such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused person in the offence charged: see Dixon J's discussion in Martin v Osborne.[5] In that same case Evatt J pointed out that it bears that probative value or cogency not as a matter of deductive logic but by reason that it allows for 'admeasuring the probability or improbability of the fact or event in issue, if we are given the fact or facts sought to be adduced in evidence'.[6] (emphasis added) (footnotes added)
[4] Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292, 294, cited for this proposition in JD Heydon Cross on Evidence (8^th edition) [21035]. To similar effect see R v Boardman [1975] AC 421; [1974] 3 All ER 887, 457.
[5] (1936) 55 CLR 367, 375.
[6] Martin (385).
Similarly, in Phillips v The Queen,[7] the High Court observed that, in applying the common law test for admissibility of similar fact evidence, it must be assumed that the similar fact evidence would be accepted as true and the prosecution case, as disclosed by evidence already given or in depositions of witnesses yet to be called, may be accepted by the jury.
[7] [2006] HCA 4; (2006) 225 CLR 303 [63].
That is, at common law the probative value of the evidence was assessed on the assumption that the evidence is accepted, and not by reference to the reliability of the evidence.
Having regard to the background of the common law rule against which s 31A was enacted, there is no reason to think that the term 'significant probative value' was used in s 31A in a different sense than was given to the term 'probative value' by the common law. There is no reason to think that determining probative value ordinarily requires an assessment of the reliability of the evidence: ie, whether it should be accepted as opposed to whether it should be admitted.
Cases dealing with s 31A of the Evidence Act have adopted an approach which is consistent with the proposition that the probative value of evidence concerns its relevance rather than its reliability. In Donaldson v The State of Western Australia,[8] the appellant complained that the trial judge, when considering whether to admit propensity evidence under s 31A, appeared to assume that the evidence was true. Roberts‑Smith JA, with whom other members of the court agreed, held that such an assumption was mandated by s 31A of the Evidence Act,[9] observing:
For the purpose of determining its admissibility, his Honour was required to take the evidence the prosecution proposed to lead, and to take it at its highest. The task could not be approached on any other basis. It was no part of his Honour's role at that point (nor indeed at all) to determine what weight ought to be given to that evidence.
[8] Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122.
[9] Donaldson [153] ‑ [154].
Similarly, in AJE v The State of Western Australia,[10] Mazza JA and Beech J responded in the following manner to a submission that the significant probative value of the complainant's evidence‑in‑chief had been lost once certain answers were given in cross‑examination:
It is, of course, for the jury to decide whether evidence is to be accepted and, if so, what weight to give it. That being so, in assessing whether the evidence had significant probative value, the evidence is to be taken at its highest from the perspective of the prosecution.
[10] [2012] WASCA 185; (2012) 225 A Crim R 242 [73].
The case law dealing with the concept of 'significant probative value' in s 31A was summarised by Buss JA, with whom Martin CJ agreed, in Daniels v The State of Western Australia in the following terms:[11]
(a) Evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue.
(b) The test in s 31A(2)(a) will be satisfied if the court 'considers' (that is, thinks) that the propensity evidence 'would' (as distinct from could), either by itself or having regard to other evidence adduced or to be adduced, rationally affect, to a significant extent, the assessment of the probability of the existence of a fact in issue.
(c) The adjective 'significant', in the phrase 'significant probative value' in s 31A(2)(a), connotes 'important' or 'of consequence'.
(d) If propensity evidence has 'probative value' then whether the probative value is 'significant' will depend upon the nature of the fact in issue to which it is relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact.
[11] Daniels v The State of Western Australia [2012] WASCA 213; (2012) 226 A Crim R 61 [47] ‑ [49].
The focus of the above passage is on the degree of relevance of the evidence rather than its truth or reliability.
Further, the terms of s 31A count against the conclusion that the reliability of propensity or relationship evidence must be considered at the admissibility stage, in determining whether the evidence has significant probative value.
Section 31A(3) provides that, in considering the probative value of evidence, it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion. Those are matters going to the reliability of the evidence. An assessment of the reliability of evidence may, depending on the circumstances, need to take account of the possibilities referred to in s 31A(3) of the Evidence Act. In my view, a requirement that the court consider the reliability of evidence in determining whether it has significant probative value for the purposes of s 31A(2) would be inconsistent with the terms of s 31A(3) of the Evidence Act.
For the above reasons, in my opinion a court deciding whether propensity or relationship evidence should be admitted under s 31A of the Evidence Act is neither required nor entitled to have regard to the reliability, as opposed to the relevance, of the evidence sought to be admitted. This position was conceded by counsel for the appellant in her final written submission.

Significant probative value in the present case

In the present case the matters raised by the appellant - the 'flamboyance' of the 'dry humping' evidence and the inconsistency between the evidence of CS and SS as to whether SS wore a bra to bed - are not such, in my view, as to deprive the evidence of any significant probative value. Those elements of the evidence, adduced in cross‑examination, might have provided grounds for rejecting the evidence or having a reasonable doubt as to its veracity. However, the significance of the answers given to questions asked in cross‑examination concerned the weight to be given to that evidence rather than its admissibility.
Further, even if account could be taken of matters going to the reliability of the evidence in determining its admissibility under s 31A, the matters referred to in the previous paragraph would not, in my view, deprive the evidence as a whole of the significant probative value which it would otherwise have. While those matters were capable of giving rise to a reasonable doubt about the veracity of the propensity/relationship evidence, they did not mandate rejection of the evidence. Even allowing for points made during the cross‑examination of CS, in my view her evidence and the evidence of SS, taken as a whole, could rationally affect the assessment of whether the appellant committed the charged offences.
I also do not accept the appellant's submission that the significance of that propensity/relationship evidence is diminished, to the point of having no significant probative value, by the time when it occurred and the appellant's age at that time. That a pre‑pubescent child would perform sexual acts on a cousin while she is asleep might be regarded as unusual and disturbing. That sexualised behaviour at such a young age may be regarded as significant in assessing whether the child engaged in similar behaviour in his early teenage years.
In my view the magistrate did not err in concluding that the evidence had significant probative value for the purposes of s 31A(2)(a) of the Act.

Balancing public interest

It is then necessary to consider the issue raised by s 31A(2)(b) of the Act. In relation to that matter, the following observations made in Daniels are relevant:[12]
In Dair, Steytler P made these points about the comparison which s 31A(2)(b) requires. First, s 31A(2)(b) requires the court to assess the degree of risk of unfairness at trial that will be occasioned by the admission of the evidence in question, the court having already found under s 31A(2)(a) that the evidence has significant probative value. Secondly, when assessing the risk of an unfair trial for this purpose, the court must take into account any directions that might be given to the jury in an attempt to overcome the prejudice, and their likely effect on the jury. Thirdly, after identifying the probative value of the evidence in question and the degree of risk of an unfair trial, the court must consider the conclusion that fair-minded people would draw from a comparison of these issues. Although fair-minded people are reasonable members of the general community who are not lawyers, it must be assumed that such people have informed themselves of 'at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances': Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53] (Kirby J).
[12] Daniels [50].
Often the risk of prejudice will consist of the risk that a lay jury will give more weight to propensity evidence than is logically justified by the evidence. The risk was described in the following terms by Roberts‑Smith JA in Donaldson:[13]
The risk of an unfair trial here referred to must be that which comes from the introduction of evidence which has little or no probative value, or at least not such as to outweigh the possible prejudice that it might be misused by the jury.
[13] Donaldson [166].
That risk of misuse does not arise, at least to the same degree, where the trial is conducted by a trained judicial officer sitting alone. It may be assumed that a judicial officer will give the evidence only such weight as it deserves. In the present case, even if a jury were to be involved, it would be necessary to take account of the way in which the risk of the jury reasoning in an inappropriate manner could be ameliorated by an appropriate direction. In my view, it cannot be said that the magistrate erred in concluding that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
In my view, the evidence objected to by the appellant was properly admissible in the appellant's trial, and ground 1 has not been made out.

Ground 2: reasons for admitting propensity/relationship evidence

Ground 2 alleges that:
The learned magistrate erred in that he gave inadequate reasons for the admission of relationship evidence under s 31A of the Evidence Act 1906 such as to give rise to a miscarriage of justice.

Proceedings in the Children's Court

At the conclusion of the prosecutor's closing address, counsel for the appellant indicated that she maintained her objection to the admissibility of propensity and relationship evidence. She sought that the evidence be excluded in relation to propensity but admitted in relation to issues of credibility. Counsel's principal submission was:
Now, it's my submission that, in fact, it doesn't have significant probative value in relation to the facts in issue. Firstly, because the conduct is said to have been largely with respect to [SS] and not [CS]. Secondly, because of the age - if you like - of the allegations. Thirdly, of course, the accused was below the age of criminal responsibility on anyone's account at the time. And, indeed, below the age of puberty on anyone's evidence. That would be a significant distinction which would tend to suggest that it is simply not relevant to his conduct two years ago (ts 416).
The magistrate then, without hearing from the State, made his ruling in relation to the propensity evidence 'as it relates to the evidence of [SS] making previous complaints in relation to' the appellant. He said:
I will make a ruling now in relation to the propensity evidence as it relates to the evidence of [SS] making previous complaints in relation to the accused. And the simple test for the court to apply the test is simple - apply and perhaps we will have it. As Ms Fordham has said, as to whether, on balance, there is a significant probative value balanced against the risk of an unfair trial. Given the nature of the evidence, the allegations or the charges that the accused is facing. My view is that it has significant probative value. The defence - or the accused is not precluded from arguing that it's concocted or suggestion, or collusion, and it, in my view, has priority over the risk of an unfair trial. So the evidence, rightly or wrongly, will be admitted (ts 417).
The magistrate then indicated that this ruling applied equally to the evidence of CS (ts 416 ‑ 417).
It may be noted that the test, as formulated by the magistrate and counsel, did not quite capture the considerations required under s 31A of the Evidence Act. Section 31A(2)(b) of the Act requires the court to ask whether fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. The admissibility of the evidence turns on the court's assessment of what fair‑minded people would think, rather than the court's own view of the priority which should be given to the relevant public interest.
However, the appellant's complaint about the magistrate's reasons for ruling the evidence admissible does not concern his formulation of the statutory test of admissibility. Further, in practical terms there is likely to be a close correlation between the court's view of the appropriate balance of public interest and the view which it would attribute to a 'fair‑minded person'. In the circumstances of this case, I do not consider that the magistrate made any material error in formulating the question by reference to his own view.
At trial, the appellant's argument against admissibility really turned on the proposition that the evidence had no significant probative value.
The magistrate expressly found that propensity and relationship evidence sought to be adduced in this case did have significant probative value. The appellant's real complaint is that the magistrate did not say why he considered the evidence to have significant probative value.

Adequacy of reasons for the evidentiary ruling

I address the general requirements for the delivery of reasons for the verdict in dealing with ground 6. In relation to this ground, however, I am concerned with reasons expressed for an evidentiary ruling rather than reasons for a conviction. It is clear that s 120 of the CP Act, to which I refer in dealing with ground 6, has no application to reasons for an evidentiary ruling. The obligation to give reasons for an evidentiary ruling is that which arises at common law.
In the context of an evidentiary ruling, three additional points should be noted.
First, the observation that it is not appropriate to scrutinise the reasons for decision given by magistrates with a fine‑tooth comb, or with an eye keenly attuned to the identification of error, has even greater force when considering evidentiary rulings. Those rulings are necessarily made on the run during the course of a hearing.
Secondly, it is established that the reasons which are to be assessed include not only express findings, but also findings which may be inferred from express findings.[14] In the present case the magistrate's reasons indicate the test which he applied. It may also be inferred from his reasons, in the context of the submissions and evidence in the case, that the magistrate was satisfied that the evidence had significant probative value because it indicated a propensity for the appellant to engage in the type of behaviour complained of, and gave evidence of the relationship between CS and the appellant in a way that explained CS's reaction to what she says occurred. That is, in this case, it can be inferred why the magistrate thought the evidence had significant probative value.
[14] Bennett v Carruthers [2010] WASCA 131 [27].
Thirdly, not every failure to give reasons will ground an appeal - it is necessary to show that the failure to give reasons gives rise to a miscarriage of justice.[15] In the present case, where I have concluded that the evidence was properly admissible, no miscarriage of justice arises by reason of a failure by the magistrate to expand on why he thought the evidence had significant probative value. Further, there is no miscarriage of justice in the magistrate's failure to explain why he rejected the appellant's submissions based on the reliability of the evidence, when the magistrate was not entitled to have regard to the reliability of the evidence in determining its admissibility.
[15] Manonai v Burns [2011] WASCA 165 [66].

In my view, the magistrate's reasons were adequate, and it has not been shown that any deficiency which does exist in the reasons is such as to give rise to a miscarriage of justice. Ground 2 has not been made out.

Ground 3: error of fact

Ground 3 alleges that:
The learned magistrate erred in fact by finding that the 'relationship' evidence included 'one instance of dry humping' which failed to wake the complainant's sister when the evidence was of hundreds of such incidents, all of which were said to have failed to wake the complainant's sister.
Ground 3 complains of an error of fact involved in the magistrate's reference to 'one incident of dry humping' when the evidence was of 'hundreds of such incidents'.
I do not accept counsel's submission that CS's evidence, in cross‑examination, was of 'hundreds' of incidents of the appellant 'dry humping' SS without waking her up. That submission was based on the following questions:
How many times was that?---It's more than I know. It has been - - -
10, 20, 100?---I don't know. More than that, probably.
More than 100?---I don't count every single time he has done it (ts 72).
The second of these questions and the answer to it are ambiguous. The question is compound and it is not clear whether the word 'that' in the answer refers to the number 10, 20 or 100. In her answer to the third question, CS does not agree that it was more than 100.
However, it is clear that CS's evidence was that she was describing more than a single incident. I take her evidence as being to the effect that the appellant 'dry humped' her sister while she was asleep 'plenty of times, whenever he slept over', and that there were 'lots' of occasions on which such incidents occurred although she could not say how many.
The magistrate's statement that there was 'one incident of dry humping' was unambiguous, and entirely inconsistent with evidence of CS that there were many such incidents. In my view, the magistrate did make an error of fact in concluding that there was only one incident.
The respondent contends that error of fact was in the appellant's favour. However, that submission overlooks the significance which counsel for the appellant sought to attach to the evidence that there were many incidents of 'dry humping'.
The appellant's submission at trial was that the evidence of the appellant 'dry humping' SS on many occasions without ever waking her up was inherently implausible (ts 420 ‑ 421). That implausibility was capable of reflecting negatively on other evidence given by CS, or the reliability of her evidence generally.
The fact that the magistrate appears to have apprehended CS gave evidence of only one incident of 'dry humping' means that he did not have occasion to consider the appellant's submission about the credibility of CS's evidence. The error of fact cannot be said to be immaterial to the magistrate's consideration of the guilt of the appellant, or to have been an error wholly in the appellant's favour.
Before me, counsel for the respondent suggested that it seemed unlikely that the magistrate could have made this error given the emphasis which submissions of the appellant, which he had just heard, placed on the number of 'dry humping' incidents. I agree that it is surprising that the magistrate would have misapprehended the evidence in light of the submissions made to him. However, I cannot see any ambiguity in what the magistrate actually said in his reasons. He does not elsewhere address the appellant's submissions about the implausibility of this evidence.
Therefore, in my view the appellant has established that the magistrate made an error of fact. Section 8(1)(a)(i) provides for an error of fact as an available ground of appeal.
A question was raised during the course of submissions concerning whether any error of fact, however inconsequential, could provide grounds for an appeal subject to the court applying s 14(2) of the CA Act, or whether there was any element of materiality implicit in the reference to an 'error of fact' in s 8(1)(a)(i) of that Act. The respondent pointed to two decisions of Martin CJ where errors of fact of no material significance to the issues for determination were found to have been made.[16] In both cases, the appeal was dismissed by reason that there was no substantial miscarriage of justice rather than on the basis that there was no relevant error of fact.[17]
[16] Scolaro v Shephard [No 2] [2010] WASC 271 and Strahan v Brennan [2014] WASC 190.
[17] Scolaro [113] ‑ [115]; Strahan [46] ‑ [50].
I propose to adopt a similar approach in the present case. In my view there is no warrant for introducing an implied condition of materiality into the terms of s 8(1)(a)(i) of the CA Act in relation to errors of fact. Where a summary court makes an inconsequential error of fact the appeal is more appropriately dismissed on the ground that there is no miscarriage of justice rather than on the ground that the available ground of error of fact has not been made out.
In any event, in the present case the error of fact identified in ground 3 cannot be described as an immaterial or inconsequential error, for the reasons I have given.
In my view, the reasons given by the magistrate do disclose an error of fact and ground 3 is made out.

Ground 4: judicial notice

Ground 4 alleges that:
The learned magistrate erred in law in purporting to take judicial notice of the fact that 'an initial disclosure is [often] not a full disclosure and as time goes on further information is disclosed' to account for the inconsistencies in the complainant's account over time both in detail and nature of allegations.
The sentence in the magistrate's reasons which is the subject of complaint in this ground is as follows:
What can be said about her evidence is, as I can take judicial notice of, often in these cases an initial disclosure is not a full disclosure and as time goes on, further information is disclosed (ts 440).
The appellant submits that the magistrate could only take judicial notice of facts which are so generally known that every ordinary person may reasonably be presumed to be aware of them, and then only after giving the parties the opportunity to comment on or controvert them. The appellant submits that it cannot be said that every ordinary person could be presumed to know about the disclosure process, and no opportunity was given to call evidence to controvert this finding.
In my view the use of the term 'judicial notice' was unfortunate and inapt. I do not think that the magistrate was taking judicial notice of facts in issue in the proceeding. Rather, he was simply reflecting the general experience of the law that a failure by a person to immediately disclose what they say has occurred does not necessarily mean that the evidence cannot be accepted.
That experience of the law is now reflected in s 36BD of the Evidence Act, which provides:
Where on the trial of a person for a sexual offence or an offence under Chapter XXII of The Criminal Code (as enacted at any time) evidence is given or a question is asked of a witness which tends to suggest an absence of complaint in respect of the commission of the alleged offence by the complainant or to suggest delay by the complainant in making any such complaint, the judge shall:
(a)give a warning to the jury to the effect that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false; and
(b)inform the jury that there may be good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence.
The purpose of this provision was described in the following terms by Mazza JA, with whom other members of the court agreed, in RMC v The State of Western Australia:[18]
The purpose of the section was to correct what had been the standard practice of judges based on stereotypical assumptions to instruct juries that complainants of sexual offences were specially suspect, those complained against were specially vulnerable and (of particular relevance to the present case) delay in complaining was invariably critical.
The aim of the section was to restore the balance by, inter alia, requiring trial judges to instruct juries when considering the effect of delay or absence of complaint, that delay does not necessarily indicate that the allegation is false and to inform the jury that there may be good reasons why a victim of a sexual offence may hesitate to complain about it.
[18] [2015] WASCA 33 [27] ‑ [28].
At trial the prosecutor made a submission as to how delay by CS in making a complaint should be assessed, by reference to s 36BD of the Evidence Act (ts 405). The appellant was put on notice by the prosecutor's contention that considerations of the kind identified in s 36BD should be taken into account in assessing the evidence of complaints made by CS. The appellant had the opportunity to respond to that submission.
In my view, in the passage of which this ground complains the magistrate was, in substance, merely giving himself the kind of direction which might be required in a jury trial by s 36BD of the Evidence Act. That is, he was recognising that the fact that CS had not described digital sexual penetration at the first interview with police did not require him to reject her evidence of those matters. He then went on to consider whether her evidence should be accepted, and concluded that it should. I see no error in that approach.
For these reasons, in my view, ground 4 has not been made out.

Ground 6: appellant's evidence

Ground 6 alleges that:
The learned magistrate erred in that he failed to give any reason for finding that the evidence of the Appellant was not persuasive, and by failing to refer to the Appellant's evidence at all, save for one brief remark, such as to give rise to a miscarriage of justice.
This ground challenges the adequacy of the magistrate's reasons for convicting the appellant, and says that a miscarriage of justice occurred by reason of the magistrate having failed to refer to the appellant's evidence, save for one remark.

The magistrate's reasons

The passage in which the magistrate dealt with the appellant's evidence is set out above. For ease of reference, I also reproduce the extract below, correcting what I consider to be a mis‑transcription of the punctuation.
[GS] spoke to [the appellant]. [The appellant] for the first time mentioned the Kings Park game of chasey, he had accidentally touched [SS] and for his pains got kicked in the groin.
The only person that has ever given evidence of that is [the appellant]. The first time he mentioned it, as I understand the evidence, was sitting in the car on the Saturday morning and he later mentioned it in his police video record of interview. I'm sure that's something that had it occurred, [SS] would have remembered if only for successfully kicking [the appellant] between the legs. She appeared to be surprised that he was saying that and certainly did not corroborate that (ts 444).
I have extreme doubt and don't accept that incident occurred.

Requirement for reasons: statutory provisions

The magistrate was sitting as a member of the Children's Court of Western Australia, constituted under s 6(1) of the CCWA Act. The jurisdiction being exercised by that court was its exclusive jurisdiction to hear and determine a charge of an offence alleged to have been committed by a child, conferred by s 19(1) of the CCWA Act. As I have noted, for present purposes s 19(3) of the CCWA Act classified the court constituted by a magistrate as a court of summary jurisdiction.
The appellant was charged with offences which, if brought against an adult, must be tried on indictment. He did not elect to have the charges tried on indictment in the District Court. In those circumstances, s 19B(4)(c) of the CCWA Act makes the following provision in relation to the hearing and determining the charge:
[T]he Court shall, subject to the provisions referred to in section 19(1), hear and determine the charge, and may exercise any power in Part 4 or 5 of the Criminal Procedure Act 2004, as if the prosecution notice were an indictment, and the hearing were a trial on indictment and the Criminal Procedure Act 2004 shall apply with such modifications as circumstances require; but the child is not thereby entitled to have any issue tried by a jury.
The effect of s 19B(4)(c) of the CCWA Act was to apply the provisions of pt 4 of the CP Act (dealing with prosecutions in superior courts) to the proceedings before the magistrate, 'with such modifications as circumstances require', notwithstanding that the Children's Court constituted by a magistrate is classified as a court of summary jurisdiction.
The question which then arises is whether s 120(2) of the CP Act, which is located in pt 4 of that Act, applied to proceedings before the magistrate, either with or without modification. Section 120(2) of the CP Act provides:
The judgment of the judge in a trial by a judge alone must include the principles of law that he or she has applied and the findings of fact on which he or she has relied.
In superior courts, s 120 applies where a trial by judge alone is ordered in the exercise of the power conferred by s 118 of the CP Act. An application under s 118 is unnecessary in indictable cases dealt with in the Children's Court, by virtue of the provision in s 19B(4)(c) of the CCWA Act that a 'child is not entitled to have any issue tried by a jury'. However, I see no reason why s 120(2) is not applied to indictable proceedings conducted in the Children's Court by s 19B(4)(c) of the CCWA Act, with the modification that the reference to a 'judge' should include a magistrate of that court.
Section 120 of the CP Act is not cast in terms which depend on the existence of an application for trial by judge alone, or an order for trial by judge alone. No doubt s 120 was drafted on the assumption that it would apply only when the power to make an order under s 118 of the CP Act was engaged. That assumption may be inferred from the circumstance that there is no other means provided for a superior court to try an indictable charge other than by jury. However, an assumption as to the circumstances in which the provision will apply is not to be equated with a limitation in the operation of the provision. Where the assumption is undercut by the enlargement of the circumstances in which a jury is not involved, by operation of s 19B(4)(c) of the CCWA Act, the existence of such an assumption does not preclude the provision operating according to its terms to all cases where a jury is not involved in the trial.
The CCWA Act provides for children to be convicted of a serious indictable offence. Some of the ordinary consequences of such a conviction may be ameliorated by the special sentencing provisions contained in the Young Offenders Act 1994 (WA). However, other consequences of such a conviction remain. For example, a child convicted of those offences would be a reportable offender for the purposes of the Community Protection (Offender Reporting) Act 2004 (WA), with the ordinary consequence that he or she is subject to reporting obligations for a period of 7½ years after conviction or release from government custody.
The conviction of an offence of sexual penetration of a child is a very serious matter, whether the alleged offender is an adult or a child. The consequences for a child of conviction of such an offence can be significant and long‑lasting. There is no reason to suppose that the protection which the law offers to those adults charged with a serious indictable offence should be implicitly denied to a child. I see no warrant for concluding that the reasons to which an adult would be entitled if tried of those offences by judge alone should be denied to a child in the same position.
Counsel for the respondent sought to avoid the application of s 120 of the CP Act by pointing to the status of the Children's Court constituted by a magistrate as a court of summary jurisdiction. She submitted that this status should modify the operation of s 120 of the CP Act to a magistrate. I do not accept this submission. As Beech J noted in The State of Western Australia v G (a child),[19] in dealing with the question of whether the Children's Court constituted by a magistrate was a 'summary court' for the purposes of the Official Prosecutions (Accused's Costs) Act 1973 (WA):
When the Children's Court is not constituted by or so as to include a Judge, it generally exercises summary jurisdiction. When it hears and determines an indictable offence under s 19B(4)(c) it does so 'as if' the hearing were a trial on indictment. It is nevertheless exercising summary jurisdiction in hearing and determining the charge. To my mind, s 19B(4)(c) controls the manner of hearing and determination of the charge; it does not control the character of the jurisdiction exercised.
This passage contemplates that provisions ordinarily controlling the manner of hearing and determining indictable charges may apply to the Children's Court constituted other than by a judge notwithstanding that the court so constituted is to be characterised as a court exercising summary jurisdiction.
[19] [2009] WASC 234.
The clear purpose of s 19B(4)(c) of the CCWA Act is to apply provisions of pt 4 of the CP Act, which are ordinarily applicable only to prosecutions in superior courts, to the Children's Court constituted other than by a judge. Those provisions of pt 4, including s 120, apply notwithstanding that the Children's Court so constituted is a court of summary jurisdiction. In that context, I do not consider the status of the Children's Court as a summary court, when constituted by a magistrate, to justify not applying provisions of pt 4 of the CP Act to that court.
Therefore, in my view, the obligation to give reasons contained in s 120 of the CP Act did apply to the magistrate when exercising the court's jurisdiction to try the appellant for the indictable offences with which he was charged.
I note that, despite an earlier suggestion to the contrary, counsel for the respondent accepted that s 31 of the Magistrates Court Act 2004 (WA) did not apply to the proceedings below. Section 31 is not one of the provisions of the Magistrates Court Act applied to the Children's Court by s 4 of the CCWA Act.

Requirement for reasons: general principles

Section 120 of the CP Act requires that the judicial officer to which it applies identify the principles of law which he or she has applied; identify the findings of fact the judicial officer has made; and expose the reasoning process linking them and justifying the verdict that is reached. Where there is conflicting evidence on a critical issue, it is necessary for the judicial officer to say how, and why, he or she resolved it.[20]
[20] AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 [16], [45] ‑ [46], [85], referring to Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 [28].
In the present case the critical issue was whether the alleged conduct of the appellant toward CS occurred at all. She said that it happened; the appellant denied this. The magistrate could only have been satisfied beyond reasonable doubt of the appellant's guilt if he accepted the evidence of CS, rejected the evidence of the appellant and found that the appellant's evidence did not give rise to a reasonable doubt about whether the events described by CS occurred at all.
The common law requirement for a judicial officer's reasons for accepting one set of evidence over a conflicting set of evidence was described by Steytler P in Riley v The State of Western Australia,[21] in the following terms
While it is true that overly elaborate reasons are not required from a trial Judge, especially so in criminal trial proceedings in which a prompt outcome is necessary, where one set of evidence is accepted over a conflicting set of significant evidence a trial Judge is required to set out his or her findings as to how it is that the one has been accepted over the other: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443, per Meagher JA, and Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 at 282 ‑ 283. Moreover, it is essential that the reasons adequately disclose the intellectual processes which have resulted in the decision: Garrett v Nicholson (1999) 21 WAR 226 at 248 [73] - [74], per Owen J. It is well accepted that, where there is a right of appeal, the reasons must be sufficient to give effect to that right. If the basis for the decision is not apparent, the losing party cannot know whether there has been a mistake of law or of fact: Carlson v King (1947) 64 WN (NSW) 65 at 66, per Jordan CJ; Pettitt v Dunkley [1971] 1 NSWLR 376 at 387 - 388, per Moffitt JA; Lloyd v Faraone [1989] WAR 154 at 162 ‑ 163, per Malcolm CJ, and Mount Lawley, above, at 282 ‑ 283.
[21] [2005] WASCA 190; (2005) 30 WAR 525 [32]. To similar effect in a civil context see Pass v Gerling Australia Insurance Company Pty Ltd [2011] WASCA 93 [45].

In my view, where the reasons of a summary court indicate that the court has made an error of fact, but that the error was inconsequential or immaterial to the decision to convict, then this court can conclude that no substantial miscarriage of justice has occurred by reason of the error. That will be so whether or not this court is able to be satisfied, beyond reasonable doubt, of the accused's guilt from a review of the trial record. If the only errors established are factual errors of this kind, then this court will appropriately dismiss the appeal under s 14(2) of the CA Act.
However, where the primary court's reasons show the error of fact to be material to the decision to convict then there will ordinarily have been a substantial miscarriage of justice unless this court is satisfied on a review of the trial record than conviction was inevitable on the evidence adduced at trial.
This conclusion gives weight to the requirement that a summary court give reasons for its decision, and the reasons will ordinarily indicate whether an error of fact is inconsequential. If an error of fact may have significantly influenced a finding of guilt, depriving an accused of an opportunity of acquittal, then it may be fairly concluded that the trial process has miscarried. In such a case it will be no answer to say that the appellate court believes the accused to be guilty and it was merely open to the trial court to adopt a different view. In such a case it would also be open to the trial court, which is in the best position to determine questions of fact on evidence it has seen and heard, to take a different view from the appellate court.
There are some decisions of single judges of this court which appear to regard the operations of s 14(2) of the CA Act as involving the same questions as the common form proviso.[41] However, I have not found any decisions of the Court of Appeal on s 14(2) of the CA Act which take an approach to the provision which is inconsistent with the construction which I have adopted. I am satisfied that precedent does not preclude the construction of s 14(2) which I have adopted.

Substantial miscarriage of justice in this case

[41] See, for example, Crosswell v Ainsworth [2014] WASC 186 [39] ‑ [40]; Rodrigues v Ainsworth [2014] WASC 101 [53] ‑ [54] Smith v Richardson [2013] WASC 114 [322] ‑ [323].

In the present case, the errors of fact committed by the magistrate could have affected his conclusion that the appellant was guilty of the offences with which he was charged. The magistrate was faced with a direct conflict between the evidence of CS and the evidence of the appellant as to whether the charged acts occurred. He had to determine whether he was satisfied beyond reasonable doubt that the acts did occur in the face of the appellant's denials. The errors of fact which the magistrate did make were capable of affecting his assessment of the reliability of CS's evidence, as well as the evidence of LS which tended to corroborate the appellant's account.
This was not a case where the evidence adduced at trial made conviction inevitable. It would have been open to the magistrate to accept the appellant's evidence that he did not do the charged acts, or to accept that his evidence gave rise to a reasonable doubt on that issue. It would have been open to the magistrate to regard the evidence of LS as corroborating the appellant's account, and giving rise to a reasonable doubt as to whether the account given by CS should be accepted. Even if the appellant's evidence were rejected, it would have been open to the magistrate to consider that aspects of CS's evidence, in particular the change in the account which she gave to police officers on 16 January 2013 and 20 June 2014, gave rise to a reasonable doubt as to whether the events occurred at all.
I am not satisfied that there has been no substantial miscarriage of justice in the present circumstances. The errors of fact were apt to affect the magistrate's assessment of the reliability of competing evidence in a case where the prosecution depended on the magistrate accepting CS's account of the charged acts despite the appellant's denials. Conviction was not inevitable on the evidence adduced at trial.

Application of the Weiss negative proposition

In case I am wrong in my construction of s 14(2) of the CA Act, I also consider whether the evidence in this case satisfies the criteria of the negative proposition identified in Weiss.
On that approach, the court is required to make its own independent assessment of the evidence and determine whether, making due allowance for the natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. I must undertake that task on the whole of the record of the trial including the fact that the magistrate found the appellant to be guilty.[42]
[42] Weiss [41] ‑ [43]; Challis v The State of Western Australia [2014] WASCA 8 [50] ‑ [51].
The respondent submits that, in the present case, I must have regard to the magistrate's decision and to the fact that this was a case primarily concerning the credibility of witnesses. The respondent emphasises that the magistrate had the distinct and significant advantage of seeing and hearing the evidence which the witnesses presented.
I accept that, in this case, the magistrate had a distinct advantage in assessing the evidence. In any case that turns primarily on credibility, the natural limitations inherent in an appellate court's review of the trial record, referred to in Weiss and explained in Fox, loom large.
However, in considering the application of s 14(2) I do not feel able to place significance reliance on the manner in which the magistrate resolved those questions of credibility. That is because the magistrate's assessment of the evidence of CS and LS was infected by the errors which are identified in grounds 3 and 7.
When I turn to review the evidence for myself I find that the natural limitations in appellate review of a trial record leave me in a position where I am unable to be satisfied beyond reasonable doubt that the appellant is guilty without having seen and heard the evidence myself.
I have had the benefit of seeing the recorded interviews of CS and the appellant by police. However, that video recording formed only part of the evidence, and constitutes the part which may be seen to most favour the prosecution. In my view, it would be dangerous for me to give emphasis to that recorded material over the cross-examination of CS, and the evidence of the appellant at trial.
Further, my review of the trial record identifies a number of obstacles which the prosecution case needs to overcome. There were a number of inconsistencies in CS's account of events, most obviously in her failure to refer to the alleged incidents of digital penetration in her first interview with police. While these inconsistencies do not necessarily demand rejection of her evidence, they do call into question the veracity of her account. CS's account of many incidents of 'dry humping' SS without ever waking SS, which does seem unlikely, might also inform the reliability of her evidence. Further, the evidence of LS is capable of raising a reasonable doubt as to whether the three alleged incidents occurred without waking her as she slept on the same bed as CS.
There is a further matter, arising out of the interview of the appellant by police, which is capable of supporting the appellant's account. During that interview, the interviewing police officer told the appellant that forensic testing showed his saliva located in CS's underpants. When asked how it got there the appellant, who seemed surprised at what he was being told, said that he did not know. The question was objectively unfair, because it was premised on a misreading of the forensic report by the investigating officer.
If CS's account was true then the appellant would have expected a positive result and might be anticipated to have attempted some explanation. The appellant's reaction to this question was more consistent with that of an innocent person faced with what is, on their recollection of events, an inexplicable result from a forensic test. The actual explanation, not known to the appellant, was simply that his saliva was not detected on CS's underpants and the investigating officers had misunderstood the forensic report.
Having regard to the above matters my review of the trial record does not leave me satisfied beyond reasonable doubt that the acts described by CS occurred in the early hours of 21 December 2012. While it remained open to a magistrate who heard and observed all of the evidence to be satisfied beyond reasonable doubt of the appellant's guilt, I am not able to reach that state of satisfaction on review of the material available to me.
In Weiss the High Court observed:
The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. (footnotes omitted)
In my view the present case is a case of the kind described in the above passage, and requirements of the 'negative proposition', of which I must be satisfied before applying the proviso on the approach taken in Weiss, are not met in this case.

Substantial miscarriage of justice and reasons for decision

I have concluded that it cannot be said that no substantial miscarriage of justice occurred despite the errors of fact identified in grounds 3 and 7. It follows that s 14(2) of the CA Act is not applicable, and the appeal cannot be dismissed on the ground that I am satisfied that no miscarriage of justice occurred.
It follows that it is strictly unnecessary for me to consider whether the failure to satisfy the requirements of s 120 of the CP Act precludes me from applying the proviso. I note that, in AK, a majority of the High Court held that s 30(4) of the CA Act was not applicable in the face of a failure to comply with s 120 even when the requirements of the Weiss 'negative proposition' were satisfied. Although decided under the common form proviso, the importance given to s 120 in AK makes it difficult to conclude that there is no substantial miscarriage of justice in the face of a failure to comply with that provision. The importance of reasons is even greater in the context of s 8 and s 14 of the CA Act where, in my view, the requirement to give reasons informs the content of the power to dismiss an appeal on the basis that no substantial miscarriage of justice occurred.
Therefore, in my view the magistrate's failure to comply with s 120 of the CP Act would also preclude a finding that no substantial miscarriage of justice occurred in the present case.

Orders

For the reasons explained above, I would grant leave to appeal on grounds 1 ‑ 4 and 6 ‑ 8, allow the appeal on grounds 3, 6 and 7, set aside the convictions and order that the case be tried again by the Children's Court constituted by a different judicial officer.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: WS -v- GARDIN [2015] WASC 97 (S)

CORAM: MITCHELL J

HEARD: ON THE PAPERS

DELIVERED : 21 MAY 2015

FILE NO/S: SJA 1068 of 2014

BETWEEN: WS
Appellant
AND
JOHAN ANDRE GARDIN
Respondent

Catchwords:

Costs - Successful appeal against conviction - Indictable offence tried summarily in the Children's Court of Western Australia - Where parties ordered to file further material after the hearing - Turns on own facts

Legislation:

Legal Profession (Official Prosecutions) (Accused's Costs) Determination 2014 (WA)
Legal Profession (Supreme Court) (Contentious Business) Determination 2014 (WA), item 23(b), item 33
Official Prosecutions (Accused's Costs) Act 1973 (WA)

Result:

Appellant's costs fixed in the sum of $22,970.70

Category: B

Representation:

Counsel:

Appellant: No appearance
Respondent: No appearance

Solicitors:

Appellant: Fordham & Roast
Respondent: Director of Public Prosecutions (WA)

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

Edmunds v Starling [2013] WASCA 225; (2013) 235 A Crim R 182
Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99 (S)
The State of Western Australia v G (a child) [2009] WASC 234; (2009) 201 A Crim R 1
MITCHELL J:

Background

On 20 March 2015, I allowed an appeal by the appellant in respect of his convictions in the Children's Court of Western Australia of one count of indecently dealing with a child and two counts of sexually penetrating a child.
I allowed the appeal on 3 of the 8 grounds ultimately advanced, set aside the convictions and ordered a retrial. The appellant now seeks an order awarding him costs in the amount of $35,620.70 in respect of the appeal. The respondent accepts that an award of costs to the appellant is appropriate in the circumstances, but contends that the award should be only $6,828.20.
The costs sought by the appellant are payable under the Official Prosecutions (Accused's Costs) Act 1973 (WA) (Act). As the appellant's convictions were set aside, he is 'successful' within the meaning of s 4(2)(a)(iv) of the Act. It is accepted by all parties that an award of costs may be made under the Act in respect of an indictable offence which has been tried summarily in the Children's Court.[43]
[43] See The State of Western Australia v G (a child) [2009] WASC 234; (2009) 201 A Crim R 1.
Section 5(1) of the Act provides that, subject to the Act, a successful accused is entitled to his costs. Section 5(3) of the Act provides that:
Where an accused is successful by reason of a decision of the appeal court, the appeal court shall make an order as to the amount of his costs in the appeal court.
Section 5(5) of the Act provides that:
The amount of costs ordered, other than court fees, shall be in accordance with the scale fixed from time to time by a costs determination (as defined in the Legal Profession Act 2008 section 252).
The relevant scale in respect of an appeal to this court is Table B to the Legal Profession (Supreme Court) (Contentious Business) Determination 2014 (WA) (Scale).[44]
[44] Item 8 of the Schedule to the Legal Profession (Official Prosecutions) (Accused's Costs) Determination 2014 (WA), in respect of costs incurred on or after 1 January 2015, and item 8 of the Schedule to the Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination 2012 (WA), read with s 5 (definition of 'amend') and s 16 of the Interpretation Act 1984 (WA), in respect of costs incurred after the commencement of the appeal and prior to 1 January 2015.

Disputed items

The disputed items claimed by the appellant include $13,530 for preparing the 'Appellant's Case' (item 23(b) of the Scale), $4,510 for preparation of appeal for hearing (item 23(f) of the Scale) and $10,890 for counsel fee on hearing (item 23(g) of the Scale). In respect of those items, the respondent contends that only $5,775 should be allowed in respect of counsel fee on hearing.
The appellant also claims $4,059 in respect of an evidence summary and $1,578.50 in respect of further written submissions prepared after the hearing. This work is claimed under item 33 of the Scale. The respondent contends that no allowance should be made for this work.
The appellant did not press for the costs of the trial in the Children's Court, accepting that those costs were not available under the Act where a conviction is set aside and a retrial ordered.[45] The appellant does not seek to recover any fees which are greater than those set out in the scale.[46]
[45] See Edmunds v Starling [2013] WASCA 225; (2013) 235 A Crim R 182.
[46] Under item 7 of the Schedule to the Legal Profession (Official Prosecutions) (Accused's Costs) Determination 2014 (WA) and item 7 of the Schedule to the Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination 2012 (WA).
I have considered whether the assessment of costs should be referred to a taxing officer.[47] However, given the limited issues in dispute, the nature of those issues and the familiarity I have with the matter, I have concluded that it is appropriate for me to fix the costs of the appeal.
[47] See Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99 (S) [47] ‑ [48].

Item 23(b) of the Scale: appellant's case

The respondent contends that item 23(b) of the Scale relevantly relates only to an appellant's case required to be filed in the Court of Appeal, as provided for in r 32 of the Supreme Court (Court of Appeal) Rules 2005 (WA). As item 23 concerns both appeals to the Court of Appeal and single judge appeals, and item 23(b) refers to 'relevant forms and all annexures', there seems to me to be merit in the respondent's submission. In my view item 23(b) of the Scale is not applicable to the present appeal where no appellant's case was required to be filed. If the item was intended to cover any written submissions filed in an appeal, it could easily have said so. I will not, therefore, make any allowance under this item.

Item 23(f) and item 23(g) of the Scale

The respondent also submits that item 23(f) and item 23(g) overlap, so that no allowance should be made under item 23(f) of the Scale. I do not accept that submission. Separate provision is made for both matters in the Scale and I see no reason why an allowance should not be made in respect of work done by a practitioner under both items merely because the same person acts as both solicitor and counsel in the appeal.
The respondent submits that the maximum amount for counsel fee on hearing should be halved as only three of the original nine grounds of appeal were ultimately successful. The respondent relies on s 6(c) of the Act as providing for that outcome. I do not accept that submission. Section 6(c) only applies where a party has done something 'calculated to prolong the proceedings unnecessarily or cause unnecessary expense'. I do not see any basis for contending that the unsuccessful appeal grounds were included for that purpose. I regarded all but one of the grounds ultimately maintained as fairly arguable, and in my view it was reasonable for the appellant to advance the grounds on which leave to appeal was granted.
In light of the fact that I have made no allowance under item 23(b), and given that the work done in preparing written submissions was claimed under that item, I propose to allow the full scale amount for item 23(f) and item 23(g) respectively.

Post-hearing work

I also consider it appropriate for me to award the costs claimed for work done at the court's direction in relation to the preparation of an evidence summary and further written submissions. In my view, it is appropriate that the appellant recover these costs which were required to be incurred by the court, and in my view, the amounts claimed by the appellant are reasonable given the work involved.[48]
[48] Costs under item 33 are only to be awarded between a law practice and its client unless the court orders otherwise: cl 9(b) of the Schedule to the Legal Profession (Supreme Court) (Contentious Business) Determination 2014 (WA). In this case it is appropriate to order otherwise.

Conclusion

I therefore award the appellant the following amounts in respect of the costs of the appeal:

Scale Item	Description	Amount ($)
23(a)	Appeal notice and service certificate	451.00
23(f)	Preparation of case for hearing	4,730.00
23(g)	Counsel fee on hearing (including preparation)	11,550.00
23(l)	Attendance at reserved decision	319.00
33	Evidence summary	4,059.00
33	Further written submissions	1,578.50
34	Disbursements	283.20
TOTAL		22,970.70

I therefore order that the amount of the appellant's costs in this court be fixed at $22,970.70, and direct that a certificate be issued under s 9(a) of the Act in that amount.