Xha v The State of Western Australia - [2022] WASCA 8

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   XHA -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 8
CORAM:   BUSS P
BEECH JA
HALL J

HEARD:   5 NOVEMBER 2021
DELIVERED          :   8 FEBRUARY 2022
PUBLISHED           :   8 FEBRUARY 2022
FILE NO/S:   CACR 82 of 2020
BETWEEN:   XHA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   GILLAN DCJ
File Number            :   IND 1186 of 2019

Catchwords:

Criminal law - Appeal against conviction - Trial by judge alone - Child sexual offences - Whether the trial judge erred by permitting the prosecutor to cross‑examine the appellant as to whether he had an interest in being acquitted - Whether the trial judge erred by rejecting the evidence of the appellant on the basis that he had an interest in the outcome - Whether the verdicts were unreasonable or unsupported by the evidence - Whether there was a miscarriage of justice caused by the prosecution changing its case as to the time period in which the offences occurred

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Leave to appeal on ground 2 granted
Leave to appeal on grounds 1, 3 and 4 refused
Appeal allowed
Convictions set aside
Matter remitted to the District Court for a retrial

Representation:

Counsel:

Appellant	:	Mr A G Elliott
Respondent	:	Mr B M Murray

Solicitors:

Appellant	:	Patti Chong Lawyer
Respondent	:	Director of Public Prosecutions (WA)

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

CB v The State of Western Australia [2006] WASCA 227
Dayananda v The State of Western Australia [2021] WASCA 11
Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48
Etherton v The State of Western Australia [2005] WASCA 83; (2005) 30 WAR 65
Fitzgerald v The Queen [2014] HCA 28
GAX v The Queen [2017] HCA 25
Hargraves v The Queen [2011] HCA 44; (2011) 245 CLR 257
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MEN v The State of Western Australia [2020] WASCA 118
Morris v The Queen [2006] WASCA 142
Nguyen v The Queen [1999] WASCA 192
North Ganalanja Aboriginal Corporation v The State of Queensland [1996] HCA 2; (1996) 185 CLR 595
Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1
Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123
R v Ellem (No 2) [1995] 2 Qd R 549
R v Haggad (1998) 101 A Crim R 593
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v MDH [2020] QCA 175
R v Parsons & Anor [2015] SASFC 183
Ramey v The Queen (1994) 68 ALJR 917
Robinson v The Queen [1991] 180 CLR 531
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Stafford v The Queen (1993) ALJR 510
The Queen v Baden-Clay [2016] HCA 35
The Queen v Dossi [1918] 13 Cr App R 158
TSP v The State of Western Australia [2021] WASCA 224
Wark v The State of Western Australia [2020] WASCA 19
Wells v The State of Western Australia [2017] WASCA 27
Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482

JUDGMENT OF THE COURT:

The appellant was charged on an indictment with three sexual offences.[1] Following a trial by judge alone, he was convicted of all three offences. He seeks leave to appeal against his conviction.
[1] A fourth count on the indictment was discontinued prior to the trial.
The charges were that:
1.On a date unknown between 31 October 1984 and 1 January 1985, at Palmyra, the appellant incited JAR, a child under the age of 14 years, to unlawfully and indecently deal with TMM, contrary to s 183 of the Criminal Code (WA).
2.On the same date and at the same place as count 1, the appellant wilfully did an indecent act in public, namely masturbated his penis, contrary to s 203 of the Criminal Code.
3.On a date unknown between 31 January 1985 and 1 May 1985, at Palmyra, the appellant incited JAR, a child under the age of 14 years, to unlawfully and indecently deal with TMM, contrary to s 183 of the Criminal Code.
There are four grounds of appeal. The first ground alleges that the trial judge erred by permitting the prosecutor to cross‑examine the appellant to the effect that the real reason he had not pleaded guilty was that it would jeopardise his hopes of marriage. The second ground alleges that the trial judge erred by directing herself that she could consider the interest of the appellant in the outcome of the proceedings when assessing his credibility. The third ground alleges that the verdicts were unreasonable. The fourth ground alleges that there was a miscarriage of justice caused by the prosecution changing its case as to the time period in which the offences occurred.
For the reasons that follow, the error alleged in ground 2 has been made out. The learned trial judge concluded that the appellant had an interest in the outcome of the trial and relied on that interest as the principal, if not sole, reason for rejecting his evidence. This course of reasoning was in error for the reasons explained by the High Court in Robinson v The Queen (No 2),[2] and Hargraves v The Queen,[3] namely it had the effect of treating the appellant as a suspect witness and undermined the benefit of the presumption of innocence. Ground 2 must succeed. The result is that the appeal should be allowed, the convictions set aside, and a retrial ordered.
[2] Robinson v The Queen (No 2) [1991] HCA 38; (1991) 180 CLR 531, 535.
[3] Hargraves v The Queen [2011] HCA 44; (2011) 245 CLR 257.
Also for reasons that follow, grounds 1, 3 and 4 have no reasonable prospects of success and leave in respect of those grounds should be refused.

The prosecution case

JAR and TMM are cousins and, respectively, the nephew and niece of the appellant. JAR is a year older than TMM. At the time of the offences they were both children under the age of 14 years.
The first two counts occurred on a date unknown when TMM was between the ages of 6 and 8 years of age (first incident). She and JAR were at a park with the appellant. After some time, the appellant told TMM that JAR was looking for her. He directed her towards some nearby bushes where he said JAR was waiting.
The appellant accompanied TMM to where JAR was waiting. He then told the children to kiss with their tongues and to keep kissing. They complied and, as this was occurring, the appellant exposed his penis and began masturbating in their presence. After a few minutes the appellant told them to stop kissing and said that it was time to go.
The incident that is the subject of count 3 occurred about a year later (second incident). TMM was at her grandmother's house for a family gathering. JAR was also present. At some point TMM went to a shed which was at the back of the house where the appellant and JAR were playing with some welding equipment. The appellant told TMM and JAR to get on a bed in the shed and to touch each other. He directed JAR to touch TMM on various parts of her body, including her vagina. This continued for a few minutes until TMM left and returned to the house.

Prosecution evidence

TMM

TMM said that she was born on 10 April 1978 and has two younger sisters; KB who is four years younger, and EH who is 10 years younger. The appellant is their uncle.
TMM said that the first incident occurred when she was 'probably around five or six'. Her belief that she was that age is based on a photograph of her that was taken at one of her father's Christmas work functions. She said that this photograph had sparked a memory of something that happened when she was that age (that is, the first incident), though she did not suggest that the incident occurred at that work function.[4]
[4] ts 74 - 75.
TMM said that when she was of the age that she appeared to be in the photograph she recalled an occasion when she was at a park with the appellant and JAR. She could not recall which park they were at or whether anyone else was present. She was playing on pine logs at the park whilst the appellant was pushing JAR on a swing. Sometime later the appellant came over to TMM and said that he had noticed that she was enjoying scooting on the pine logs and that he would not tell anyone. He then said that JAR was waiting for her and took her to some nearby bushland where JAR was waiting under a tree.
The appellant then told TMM that she should kiss JAR. The appellant was standing two to three metres away. He said that he was going to 'do a wee'. TMM said that she could see that the appellant had his penis out but he didn't seem to be doing 'a wee'. He was 'just moving his hand up and down'.[5] Later in her evidence she said that she thought his penis was erect, though it was partly concealed by his hand and as a child she only remembered it being large.[6] As this was occurring the appellant gave instructions to the children to continue kissing and to use their tongues.
[5] ts 76 - 77.
[6] ts 92.
TMM recalled that the kissing made her feel extremely uncomfortable. She said that it continued for what felt like about 10 minutes. As this was occurring, she could see the appellant moving his hand on his penis. She could see this because she was facing towards him. The kissing stopped suddenly, and the appellant said that they had to go. There was no further conversation about what had happened.
TMM said that about nine to 10 months later a second incident occurred. She again referred to photographs to assist with her memory of how old she was at the time of this incident. Two photographs were relied on for this purpose. In one of the photographs TMM is wearing a white dress and is with her mother who is breastfeeding a baby. She said that the baby must be her sister, EH, which would make TMM 9 or 10 at the time the photograph was taken. The second photograph shows TMM wearing the same dress, and with her parents and two sisters. She thought that the second photograph was taken at the same time because she was wearing the same dress. When asked whether the second incident had occurred at the time that the photographs were taken, she said that the photographs had 'jolted a memory' because they were taken at a family event. The implication was that the second incident also occurred at a family event and at a time when she was of the age shown in the photographs.[7]
[7] ts 81.
There was an obvious inconsistency in TMM saying that the first incident happened when she was aged around 5 or 6 years old and that the second incident happened about nine to 10 months later but that she was aged 9 or 10 years old at that time. When she was asked to explain this she said that she must have been older in the first photograph. She also said that the period between the incidents may possibly have been longer than nine or 10 months.
TMM could remember that the second incident happened at the time of a family gathering at her grandmother's house. She said that JAR and the appellant were in the shed at her grandmother's house playing with welding sticks. She said that the appellant was doing the welding and JAR was doing something to make the sticks spark. She was quite scared because she had always been told to wear a helmet near a welding spark. She went back to where the other adults were gathered and was told that she had to go and play with the children. She returned to the shed. There may have been younger children in the area but she can only recall JAR being in the shed. She thinks that JAR told the other children that they couldn't come into the shed because there was going to be welding and they might get sparks in their eyes.
TMM said that the appellant stopped welding and then told JAR and TMM to lay on his bed. She said that the appellant lived in the shed and he had 'like a little house set up' there. The appellant told the children that they could fool around on the bed and that he wouldn't tell anyone and that he would just be 'over there' welding.[8] TMM and JAR laid on the bed and the appellant stood to the side and directed them as to what to do. The appellant said, 'You can touch her, like, down below. As long as you don't take her pants off then it's - then it's fine' or words to that effect.[9] As a result of this being said, JAR did touch TMM's vagina over her underwear. The appellant told JAR to keep on touching TMM and this continued for about 10 minutes. JAR also touched TMM's chest area. The appellant then returned to his welding and TMM went back to where the rest of the family was gathered.
[8] ts 82.
[9] ts 83.
In cross‑examination TMM was asked about the first photograph. It was put to her that in her witness statement she had said that the first incident happened at the Christmas party at which the photograph was taken. She said that that is how the statement reads but it was not what she had said to the police. She said that her evidence was that the incident happened 'roughly around the same time' as the Christmas party.[10] She said it felt like her memory was linked to that Christmas party but could not say whether the incident had occurred at the party, or after the party, or around the same time.
[10] ts 85.
It was also put in cross‑examination that TMM had told the police that the appellant was circumcised. She agreed that she had told police that he was possibly circumcised but that was based on her memory, using her adult perspective and in circumstances where his hand was on his penis and she couldn't clearly see it.
When cross-examined about the time between the two incidents, TMM said that it was nine to 12 months, but it could have been longer. She said she did not recall her exact age at the time of the incidents but said she could have been any age under 10. She said that she could not say with certainty that the second and third photographs were taken at the same time because she wore the same dress at a number of family events. Nor could she say that those photographs were taken at the time of the second incident, but she felt like it was around that time, though it could possibly have been years earlier. She thought that the second incident occurred around Easter time.
It was put to TMM that she had made up what she said about each of the incidents and that nothing of the sort had occurred. She consistently denied those suggestions. It was put to her that she did not want the appellant to get out of prison and that that is why she had made up the allegations. She agreed that she did not want the appellant to get out of prison but said that she did not make up the allegations and said that she 'would have been much more clear if [she] made it up'.[11]

KLB

[11] ts 109.

KLB is the sister of the appellant and the mother of TMM. She gave evidence that TMM was born on 10 April 1978. KLB has two younger daughters, KB and EH, who were born in 1982 and 1987 respectively.
KLB said that in the 1980s she would see the appellant at family gatherings, mainly at her parents' house. These gatherings occurred on birthdays and other similar occasions.
KLB was shown the first photograph, which she confirmed was a photograph of TMM. Whilst not positive, she believed that this photograph was taken at a Christmas party and that TMM was about seven or eight years old at the time.
As to the second photograph, KLB said that it was taken in her mother's back yard. The second photograph depicted KLB breastfeeding her youngest child, EH, who was only a few months old at the time. TMM is also in that photograph. KLB thought that this photograph could have been taken at the time of her mother's birthday in October. TMM would have been about nine at the time. KLB said that the third photograph was not taken on the same day but at EH's Christening, which was around the same time but not on the same day.
In cross‑examination KLB agreed that the first photograph had been taken at her husband's work Christmas party. These parties were organised by her husband and herself and were open to the immediate family of employees. The appellant was not present at any of these parties, nor was KLB's nephew, JAR.[12]

Kaillen Trahern Clarke

[12] ts 117.

Detective Senior Constable Clarke was the investigating officer in relation to this matter. He produced a birth certificate for JAR showing that JAR was born on 20 June 1977.
Detective Senior Constable Clarke was cross‑examined as to the circumstances in which TMM made her witness statement. He confirmed that the witness statement was prepared on information provided by TMM. She later provided the photographs which he copied. She was provided with a partly completed draft statement and asked to fill in the blanks. He agreed that TMM had told him that the first incident was 'in relation to' her father's work Christmas party.[13]

Propensity evidence

[13] ts 128.

The prosecution also relied on four other incidents of sexual offending by the appellant as propensity evidence pursuant to s 31A of the Evidence Act1906 (WA). The appellant admitted the facts of that other conduct pursuant to s 32 of the Evidence Act without the need to call evidence. The admitted facts were as follows:[14]
1.On 1 September 1985, [the appellant] was driving his vehicle when he observed two girls, one of whom was 15 years old. He stopped his vehicle and started playing with his penis until an erection occurred. He did not ejaculate. He then drove off. On 21 September 1985 he was convicted of one count of wilful exposure in relation to this conduct.
2.At about 6.45 am on 7 September 1985 [the appellant] confronted the victim, a 13‑year‑old female, near the foreshore at Fremantle Harbour. He exposed his penis to the victim and started masturbating. The victim ran home to her parents and this offence was reported to police. [The appellant] admitted the offending to police. On 14 October 1985 he was convicted of one count of wilful exposure in relation to this conduct.
3.Between 1 January 1990 and 20 August 1990 [the appellant] was living with his de facto partner and her children, a 10‑year‑old girl and an 8‑year‑old girl. On 16 occasions in this period, when alone with the 10‑year‑old girl, he pulled her pants down and rubbed her on the genital area. At the same time, he placed the child's hand on his penis and masturbated himself until he ejaculated. On several of these occasions he showed the child adult magazines depicting naked women. On five occasions during the same period, when alone with the 8‑year‑old child, he seated her next to him whilst he fondled her bottom underneath her pants. At the same time, he placed the child's hand on his penis and masturbated himself until he ejaculated. He admitted the offending to police. On 19 April 1991 he was convicted of:
(a) 16 counts of indecently assaulting a person under 16 years of age in relation to a 10‑year‑old child; and
(b)five counts of indecently assaulting a person under 16 years of age in relation to an 8‑year‑old child.
4.Between 15 May 1990 and 26 June 1990 [the appellant] exposed his erect penis and masturbated to ejaculation outside a window and within sight of two girls aged 12 and 14 years old. On 19 April 1991 he was convicted of two counts of wilful exposure in relation to this conduct.
[14] Blue Appeal Book 16 - 18.

Defence evidence

The appellant

The appellant denied that either of the incidents had occurred. He said there had been no occasion when he had incited JAR to kiss TMM. He denied masturbating in their presence. He said he had never incited JAR to touch TMM in a sexual manner.[15]
[15] ts 135.
The appellant said that his parents had lived in a house in Palmyra. They built the house in the 1950s and lived in it until 1997. At the side rear of the house was a garage or shed with a sliding door on the front. He agreed that there was a period in which he lived in the shed. He said that this was from approximately June 1983 to August 1983. He nominated those dates by reference to the birth of his daughter in April 1984 who, he said, was conceived while he was living in that shed. After he moved out of the shed he lived in Spearwood and then in a different house in Palmyra. He knew he was living at the other house in Palmyra in 1985 as he was arrested there for other unrelated offences. He agreed that he was in prison between October 1985 and March 1986.[16]
[16] ts 137.

The appellant said that he could not recall where he was as at Easter 1985 but generally it was a family tradition to go away during the Easter break. He said he would usually go to his parents’ house first and then continue on to Lancelin.
The appellant agreed that there was a fold up bed in the shed. He said it was his father's old camping bed and it had been there for 40 years to his knowledge. He agreed that there had been occasions when he had welded in the shed. At these times no children would be present. He denied that he would have showed JAR how to weld. He accepted it was possible that TMM had seen him welding with JAR being present. He said that in 1987 he was not living with his parents.
The appellant was then asked the following questions in evidence‑in‑chief:[17]
We've heard evidence about the previous charges that you have been charged with, all right, and we now have your criminal history of all the convictions entered against you?‑‑‑Yes.
What has happened in the past when you were charged with offences?‑‑‑I've already owned up to whatever I done.
Sorry?‑‑‑At the first opportunity, I always said I was guilty, if I had done it.
Right. And of all the convictions in relation to sexual offences, has a third party been involved with you?‑‑‑Never.
[17] ts 135.
In cross‑examination the propensity evidence was put to the appellant and he accepted that in 1985 he was sexually aroused by young girls.[18]
[18] ts 136.
At the end of the cross‑examination of the appellant the prosecutor asked:[19]
[19] ts 139.
Now, you're due for release next year?‑‑‑Potentially.
Potentially. And you formed a relationship outside the prison. Isn't that correct?‑‑‑Yes.
You're hoping to get married?‑‑‑Yes.
And you don't want anything to jeopardise that, do you?‑‑‑Well, it's been jeopardised the last four years so ‑ ‑ ‑
And that's the real reason why you're not owning up to this one, isn't it, [name]?‑‑‑No.[20]
It's because you want to get released next year?‑‑‑I want to get released every year I go up.
And you want to marry this person that you've found love [sic]?‑‑‑It's been six years now, so, it's not going to really matter.

JAR

[20] The prosecutor here incorrectly used another name, but it was clear she meant to refer to the appellant.

JAR was called as a defence witness. He said he did not recall the first incident and that no incident like that had happened to the best of his memory. He said that he was not aware of the second incident and that nothing like that had happened.
JAR did agree that there was a strong possibility that at some time he had gone into the shed and played with welding sticks because he had spent a lot of time in the shed with his grandfather.
In cross‑examination it was put to JAR that he had been charged with offences relating to TMM's sister. It was suggested that his evidence was influenced by a desire not to jeopardise those other matters. JAR agreed that he had been charged but denied that his evidence was affected by those charges.[21]
[21] ts 147.

Prosecution closing

The prosecutor submitted that TMM was a credible and reliable witness. As to the possible inconsistency between TMM's age at the time of each of the two incidents, and the length of time between them, the prosecutor submitted that TMM might have been older at the time of the first incident and that this was confirmed by her mother, KLB, who, when shown the first photograph, said that TMM was about 7 or 8 years old at that time.
On this basis, the State said that it was likely that the first incident happened in 1985 or 1986. It could not have happened around Christmas 1985 as the appellant was in prison at that time. The State said that it was more likely to have been around December 1986 when TMM was 7 years old, although it could have been the following Christmas period when she was 8. The family occasion meant that there were opportunities for the appellant to have taken TMM and JAR to a park and committed counts 1 and 2.
The State accepted that counts 1 and 2 were brazen offences given that they were done in a public place but said that this was consistent with the indecent exposure offences that the appellant committed in 1985. The propensity evidence served to show that it was not unlikely that the appellant would behave in such a manner.
In relation to count 3 the State said that whilst TMM's initial position was that this occurred nine to 10 months after the first incident, she had later said that it could be as much as 12 months, and then later that it could have been when she was any age under the age of 10 but that she did not recall the exact age. Based on the second incident occurring close in time to when photographs 2 and 3 were taken, and that TMM was aged 9 at the time, this incident is likely to have occurred in 1987.
The appellant said he was not living in the shed in 1987, but he admitted that there was a fold up bed in there for many years. The State said that whether the appellant was actually sleeping in the shed at the time of the second incident did not really matter. What was significant was that TMM said that she and JAR were directed to a bed in that shed.
The State accepted that in order to convict the appellant the trial judge needed to be satisfied of TMM's credibility and reliability. The State submitted that TMM gave her evidence in a serious and forthright manner, was not evasive, and took time to consider her answers. She did not exaggerate or try to add anything. She stood her ground in cross‑examination.
In relation to inconsistencies between TMM's police statement and her evidence, the State said that TMM had candidly accepted that her statement was different to her evidence. It was submitted that the circumstances in which the statement was made were unclear and unusual, and that it was not made apparent to TMM that she could make changes to the statement. In these circumstances, the fact that she said something different in her statement doesn't materially affect her credibility or reliability.
The State submitted that the fact that JAR said he could not recall anything happening does not make TMM an untruthful or unreliable witness. The State also relied on the propensity evidence to show that at the time the incidents were alleged to have happened the appellant had a sexual interest in pre‑pubescent girls.
At the conclusion of the address, the State said:[22]
[The appellant] tried to say that, well, when he's guilty he pleads guilty.
The State says that he's got plenty of motivation today to deny the offending. He's potentially up for release next year and he's hoping to get married. Of course, your Honour knows that if you don't believe him put his evidence to one side.
You still need to consider the evidence presented by the State and the State still needs to prove the case beyond reasonable doubt. The State says that you can be satisfied of [TMM's] credibility and reliability of what occurred, and the State says that you can be satisfied beyond reasonable doubt that what she says happened did in fact happen.
[22] ts 164 - 165.

The trial judge's reasons

The trial judge gave oral reasons for decision in two tranches. On 8 April 2020, after counsel's closing addresses, the judge stated the legal principles relevant to the case. Then, on 14 April 2020, the judge orally gave the remainder of her reasons.
It is not clear why the judge chose to proceed in this manner. By s 120 of the Criminal Procedure Act 2004 (WA), the judgment of the judge in a trial by a judge alone must include the principles of law that they have applied and the findings of fact on which they have relied. Breaking up the judgment into two tranches, delivered on separate occasions, is liable to create the impression, and a risk of the reality, of a disconnect between the stated principles and the resolution of the case by application of those principles.
Further, while the appropriate way in which to deliver reasons for decision depends on all the circumstances of the case - so few universal rules can be stated - we would make the following observations which, we emphasise, are confined to trials on indictment in superior courts.
In some cases, at the conclusion of the trial, the trial judge may consider himself or herself in a position to deliver oral reasons immediately or soon thereafter, say, by the following morning. In circumstances where that is not possible or appropriate, we think there is, ordinarily at least, much to be said for publishing written reasons for decision after a criminal trial by judge alone of an indictable offence. The additional time and effort involved in putting reasons into a form suitable for publication is amply justified by the benefits of doing so. The discipline of expressing reasons for decision in a form suitable for publication is conducive to ensuring that the reasoning underpinning the conclusion has been scrutinised to an extent appropriate for the trial of an indictable offence in a superior court.
On 8 April 2020, in stating the relevant legal principles applicable to the case, the trial judge referred to the presumption of innocence. Her Honour then said that the State bears the burden of proof on each charge and that each and every element of each offence must be proven beyond reasonable doubt. She said that the accused did not need to prove anything.
In reference to the appellant's evidence her Honour said:^[23]
Now, [the appellant] did give evidence at this trial and as a result submitted himself to cross‑examination by counsel for the State. The fact that he chose to give evidence does not in any way detract from the important principles of our system of law that the onus is on the State to prove the charges that it presents against [the appellant] and he is presumed to be innocent until any charge against him has been proven beyond a reasonable doubt.
Secondly, I can't deliver a verdict of guilty unless I am satisfied beyond a reasonable doubt of the truth of the evidence against him and thirdly, if I do not accept [the appellant's] evidence and reject that evidence, then I should put his evidence to one side because he doesn't have to prove anything. The question will remain has the State, on the basis of the evidence that I do accept, proven the accused's guilt beyond a reasonable doubt.
Now, I have heard that there were motives to lie and I am entitled to consider whether the evidence has thrown up anything which might indicate that TMM or JAR had some motive for making a false complaint or giving false evidence. Because the possible presence of something of that kind has, as a matter of common sense, the potential to cast doubt on the reliability of their evidence.
Now, but in considering evidence of motive, I must keep in mind at all times that firstly, there is no onus on the accused person to point to any such motive or establish any motive and the existence or possible existence of a motive is something that is potentially relevant to the credibility of a witness but the apparent absence of a motive is irrelevant and its absence, particularly in the case of TMM, does not make her evidence likely to be truthful.
[23] ts 171 - 172.
After considering the elements of the offences her Honour gave herself a Longman direction, referring to the forensic disadvantages to the appellant arising from the passage of time. In that context, her Honour said:^[24]
JAR [and the appellant] have both given evidence that the alleged offences did not occur. In order to be convicted, Mr - in order to convict [the appellant] I will need to be satisfied beyond a reasonable doubt of the truthfulness, accuracy and reliability of TMM's evidence. And - are not of the evidence of JAR and [the appellant] (sic).
[24] ts 176.
When the matter resumed on 14 April 2020 the trial judge commenced by finding the appellant guilty on each of the counts and then proceeded to give further reasons for those verdicts. Her Honour summarised the evidence and said that, having scrutinised TMM's evidence carefully, she accepted that evidence. She said that TMM did not change her account during her evidence and that her evidence was not inconsistent with evidence given by other witnesses, for example KLB. She said that it was unsurprising TMM could not recall details such as where the park in relation to the first incident was or where she had been before or after that incident. She said that TMM's description of the playground and the bush location had a ring of truth about it. She said that there was an opportunity for the first incident to have occurred on or about Christmas of 1986 when the appellant was not in prison and that this was consistent with her age at the time of the first photograph.
The trial judge noted the inconsistency between TMM's evidence and her witness statement as to whether the first incident had occurred at her father's Christmas party. Her Honour said that she was inclined to accept that TMM did try to tell the police that she recalled the event being around the same time as the Christmas party and that she was describing to them what she was wearing in the photograph rather than what she was wearing at the time of the incident. Her Honour accepted that TMM did not appreciate that the statement had to be read with such particularity as the questions in cross‑examination had suggested.
The trial judge then turned to the appellant's evidence and said as follows:^[25]
Turning now to [the appellant's] evidence that the events in counts 1 and 2 did not occur, in some respects the appellant was a very frank witness. He admitted his prior - his prior convictions for prior offences of a sexual nature against young girls and, as I already mentioned, volunteered that his sexual interest in children predated his earlier offending, and that his offending also entailed being an exhibitionist. I have already outlined that evidence.
Further, [the appellant] admitted that he would act when the opportunity to do so arose.
[25] ts 194.
Her Honour then quoted from the appellant's evidence regarding the propensity evidence. She then said:[26]
[The appellant's] evidence about these matters confirmed inferences that I could have drawn solely from the facts admitted by him arising out of his prior convictions and those inferences were that he was sexually attracted to young girls including young girls with whom he had a family relationship, and that he was prepared to act on that attraction in an opportunistic way, including where in circumstances that might otherwise have been considered unlikely, such as [b]y masturbating in their presence in public, or acting when there was a real possibility of being caught.
[26] ts 195.
Her Honour then said:[27]
Now, other parts of [the appellant's] evidence were self‑serving, such as his evidence that he had previously always admitted to the offences he was alleged to have occurred [sic]. And (indistinct) hearsay evidence about when JAR lived next door to the grandparents' house in Palmyra which were - was clearly to try and justify that he was unlikely to be in the house because he was working up north.
When [the appellant] denied being sexually attracted to TMM and denied that the events the subject of counts 1 and 2 occurred, I did not believe him. He had a clear motivation to deny these allegations, he wants to be released from prison to pursue his relationship with a woman that he intends to marry. Accordingly, I have put [the appellant's] evidence containing those specific denials to one side and have assessed the evidence against him to see if I can be satisfied beyond a reasonable doubt as to its truth and accuracy. (emphasis added)
[27] ts 196.
Later in her reasons, her Honour returned to the appellant's denials when dealing with the second incident (count 3). In this regard her Honour said:^[28]
For much of the same reasons I have already recounted, I do not believe [the appellant] when he denies this offending. He has a very clear reason to deny his actions. (emphasis added)
[28] ts 202.

Grounds of appeal

The grounds of appeal are as follows:[29]
1.The learned trial judge erred on a question of law in permitting the State prosecutor to cross‑examine the appellant to the effect that the real reason he was not owning up to the offences is that to do so would jeopardise his hopes to marry a person he met whilst in prison (see ts 139) when such cross‑examination is objectionable.
2.The learned trial judge erred on a question of law in directing herself that she could consider the interest of the appellant in the proceedings when assessing his credibility, in circumstances where the trial judge relied on his 'clear motivation to deny [the] allegations' as one basis for rejecting his testimony which was otherwise exculpatory.
3.The learned trial judge erred in convicting the appellant in circumstances where the evidence raised a reasonable doubt as to whether the acts pleaded in the indictment occurred, resulting in a verdict that was unreasonable.[30]
4.There was a miscarriage of justice insofar as the prosecution changed their case from an allegation that the events happened when TMM was 5 or 6 and at her father's Christmas party to a substantially later time, without giving the appellant's counsel an opportunity to meet the change.

Grounds 1 and 2 - the appellant's submissions

[29] White Appeal Book 6 -7 (Appeal Book).

[30] The particulars of this ground have been omitted.

Grounds 1 and 2 were argued together. As to ground 1, the appellant submitted that it was not permissible for the prosecutor to cross‑examine the appellant to the effect that his real reason for denying the allegations was a desire to be released from prison and to marry a woman he had met.
In oral argument counsel accepted that this line of cross‑examination was a response to the appellant's evidence that, in the past, he had pleaded guilty when he believed himself to be guilty. Counsel accepted that these statements by the appellant were mere self‑serving assertions and inadmissible as evidence.[31] They could not make it more likely that on this occasion he was not guilty merely because he had so pleaded.
[31] Appeal ts 4, 11 - 12.
Counsel also accepted that no objection to the prosecutor's cross‑examination had been made at the trial. Nonetheless, the position that the cross‑examination should not have been permitted was maintained. The appellant relied in this regard on passages from R v Ellem (No 2) [1995] 2 Qd R 549 at 558 and 557.
As to ground 2, the appellant submitted that the trial judge discounted the evidence of the appellant principally, if not solely, on the basis that he had a motivation to deny the allegations; namely that he wanted to be released from prison to pursue a relationship with a woman that he intends to marry. The appellant submitted that the motivation ascribed to him was in effect the same as stating that as an accused person he has an interest in the outcome of the proceedings.
This was said to be a fundamental error akin to a jury direction to scrutinise the evidence of an accused with more care due to his interest in the outcome of the proceedings. Such a direction has been held to be a serious misdirection going to the fairness of the trial and undermining the presumption of innocence: see Robinson.[32]
[32] Robinson (536).
Although the relevant passage appeared in the reasons of the trial judge rather than in directions to a jury, the appellant submitted that it suffers from the same vice that was referred to in Robinson. The effect of her Honour's reasoning was to treat the appellant as a suspect witness because he had an interest in avoiding conviction.

Grounds 1 and 2 - the respondent's submissions

As regards ground 1, the respondent submits that the cross‑examination of the appellant regarding his motivation for denying the allegations must be seen in context. The context here was unusual because the appellant had sought to rely on his past criminal record to prove that he had pleaded guilty to charges in the past as a way of bolstering the credibility of his present denials.

The respondent submits that evidence that merely bolsters the credibility of a party is inadmissible unless it falls within a recognised exception. The only possible exception that could be relied on is good character evidence. However, a criminal record such as that of the appellant could not be relied upon as evidence of good character. In these circumstances, the relevance and admissibility of the appellant's evidence as to his prior pleas was highly dubious.
The cross‑examination by the prosecutor was a response to the appellant's prior pleas evidence. No objection was raised to this cross‑examination and it only served to nullify any significance that might have been accorded to the appellant's evidence in this respect. The trial judge dealt with the cross‑examination in this context in her reasons.
As regards ground 2, the respondent submits that the appellant's submissions do not take into account more recent cases, in particular Hargraves. In that case the High Court held that the decision in Robinson did not establish or apply any new and distinct rule or principle. Rather, it was a particular application of the broader principle that a criminal trial is an accusatorial process in which the prosecution bears the onus of proving the offence beyond reasonable doubt. In Hargraves, the court held that in every case the ultimate question must be whether, taken as a whole, the judge's instructions to the jury deflected the jury from its proper task.
The respondent accepts that had the relevant passage in the judge's reasons been given as a direction to a jury, in a case where the prior pleas evidence had not been given, such a direction would have been contrary to Robinson and Hargraves and would have given rise to a miscarriage of justice. However, the respondent submits that no miscarriage arises in this case due to two factors; namely the context of the appellant's prior pleas evidence and that the trial was by judge alone and the passage was part of the reasons and not directions to a jury.
As to the first factor, the respondent says that in this case the appellant gave evidence that he was a person peculiarly unmotivated by the interest that an accused person would usually have in the outcome of a trial, in that he would always admit guilt when he was guilty. Having raised that issue, the prosecution was entitled to seek to rebut that suggestion by pointing to specific factors as to his interest, namely his desire to marry, that were operating now but not on earlier occasions. That is, that the appellant had a particular interest on this occasion in the outcome of his trial.
With respect to the second factor, the respondent submits it was recognised in Robinson that whilst the jury is entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings, the vice in directions to that effect from a trial judge was that it would lead to undue emphasis on that consideration. The respondent says that this shows that it is not impermissible for the tribunal of fact to reason from an accused's interest in the outcome, but rather the prohibition is on a direction to do so. The danger in a jury trial is not that the jury will impermissibly use the interest of the accused in the outcome but that by being directed as to how to use it they will be deflected from their principal task. This danger is said not to be present in a trial by judge alone.
The respondent says that the trial judge did not state in her reasons that the appellant was an inherently suspect witness who must be subjected to particular scrutiny. Nor did her Honour use interest in the outcome in a comparative sense in deciding between the competing evidence of the witnesses. The trial judge's reference to the appellant's interest is a single observation at the end of a long passage dealing with the credibility of the appellant. The trial judge otherwise gave unimpeachable directions as to the burden of proof.
The respondent says that the ultimate question is whether the trial judge's reasons demonstrate that her Honour was deflected from her proper task.

Grounds 1 and 2 - relevant legal principles

In Robinson the appellant was charged with rape and the issue was whether the complainant had consented to intercourse. The complainant gave evidence that she only consented because of threats made to her by the appellant. For his part, the appellant maintained that consent was freely given.
The trial judge gave directions to the jury in which he referred to the appellant as having a greater interest than all other witnesses in the outcome of the case. He said that this might cause the jury to look more closely at his evidence. Of these directions the High Court said:[33]
The jury could hardly escape the conclusion that the appellant had 'the greatest interest of all the witnesses' in the outcome of the case. Indeed, his Honour had suggested to the jury that they might think that the appellant had a greater interest than any other witness in the outcome of the case. If the jury accepted that suggestion, as they almost certainly would have, his Honour's directions had the effect that the evidence of the appellant had to be scrutinized more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused. The unfairness of such a direction is manifest, particularly when the outcome of the trial inevitably turned upon the jury's preference for the evidence of the complainant against that of the accused. Moreover, the directions virtually had the effect that the appellant was to be treated as a 'suspect witness' in the same way as an accomplice, a complainant in a sexual case and a young child have been treated as 'suspect witnesses', that is, as witnesses whose evidence is to be accepted only after the most careful scrutiny. An express direction which had the effect of his Honour's directions would have been a clear misdirection, as Mr Butler, counsel for the Crown, readily accepted.
Furthermore, his Honour's directions on the point do not sit well with the presumption of innocence which is the consequence of a plea of not guilty. If that presumption is to have any real effect in a criminal trial, the jury must act on the basis that the accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts. To hold that, despite the plea of not guilty, any evidence of the accused denying those acts is to be the subject of close scrutiny because of his or her interest in the outcome of the case is to undermine the benefit which that presumption gives to an accused person. (footnotes omitted and emphasis added)
[33] Robinson (535 - 536).
The court went on to say in Robinson that:[34]
Nothing in the above is intended to suggest that the evidence of an accused person is not subject to the tests which are generally applicable to witnesses in a criminal trial. Thus, in examining the evidence of a witness in a criminal trial - including the evidence of the accused - the jury is entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings. But to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person. Except in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence for the Crown.
[34] Robinson (536).
As will be seen, what is said in Robinson is now to be understood in the framework explained by the High Court in Hargraves.
The statements made in Robinson were reiterated in reasons for refusing special leave to appeal in two other cases, Stafford v The Queen[35] and Ramey v The Queen.[36] In Stafford, Deane, Dawson and Toohey JJ said [510]-[511]:
It follows from the decision of this Court in Robinson … that a trial judge should not direct the jury that the 'interest' of an accused in the outcome of his or her trial is a 'factor' to be taken into account in assessing his or her evidence. Nor should a trial judge direct the jury to the effect that, in assessing the evidence of all the witnesses, they should take account of their relative interests in the outcome. Any direction which directly or indirectly requires or invites an assessment of the reliability of the evidence of the accused or the relative reliability of the evidence of the accused and other witnesses by reference to interest or lack of interest in the outcome of the trial is likely to be understood by the jury as a direction or invitation to discount the evidence of the accused who will inevitably be seen as having a greater interest in the outcome of the trial than any other witness. That is what the decision in Robinson was directed against.
Ordinarily, and notwithstanding what is said by the Court of Appeal of Queensland in this case about 'an admission of impotence', it is preferable that a trial judge refrains from directing attention to the interest of the accused in the outcome of the trial as a relevant factor in assessing the reliability of his or her evidence. If the circumstances of a particular case are exceptional and require some reference to the accused's interest in the outcome as a matter of fairness to the accused, it should suffice to inform the jury that they must approach the case on the basis that the accused is presumed innocent of the acts which are the subject of the indictment and that it would be wrong and unfair for the jury to discount the evidence of the accused simply for the reason that, as the accused, he or she has a particular interest in the outcome of the trial. (emphasis added)
[35] Stafford v The Queen (1993) 67 ALJR 510.
[36] Ramey v The Queen (1994) 68 ALJR 917.

In Ramey, Brennan, Dawson and McHugh JJ said [917]:
There can, and should, be no mistake as to the application of the principle laid down by this Court in Robinson v The Queen . . . . It is not to be eroded by Courts of Criminal Appeal nor, a fortiori, by trial judges by failing faithfully to apply the prohibition against the giving of a direction to evaluate the evidence of an accused on the basis of the accused's interest in the outcome of the case.
In Etherton v The State of Western Australia,[37] Steytler P (McLure JA relevantly agreeing) noted that, while his Honour was conscious of the fact that Stafford and Ramey involved applications for special leave, it seemed plain to his Honour that in those cases 'the Court chose deliberately to underline what it had previously said' in Robinson. On the status of Stafford and Ramey as cases involving applications for special leave, Steytler P referred to North Ganalanja Aboriginal Corporation v The State of Queensland[38] and R v Haggad.[39]
[37] Etherton v The State of Western Australia [2005] WASCA 83; (2005) 30 WAR 65 [32].
[38] North Ganalanja Aboriginal Corporation v The State of Queensland [1996] HCA 2; (1996) 185 CLR 595, 643.
[39] R v Haggad (1998) 101 A Crim R 593, 597.
In Hargraves, the appellants were charged with conspiracy to defraud the Commonwealth and conspiracy to dishonestly cause a loss to the Commonwealth. The issue at trial was whether the appellants knew that a scheme in which they participated was not a legitimate tax minimisation scheme. One of the principal prosecution witnesses was an accountant who had proposed the scheme to the appellants. At the trial it was put to this witness that he knew more about the scheme than he had suggested in evidence and that he had tailored his evidence to avoid being charged with an offence.
The trial judge in Hargraves directed the jury that one of the things that the jury could take into account in assessing the credibility of witnesses was whether a witness has 'an interest in the subject matter of the evidence'. The judge gave, as examples, friendship, self‑protection and 'protection of the witness's own ego'. The direction did not refer specifically to the accused or any interest they had in the outcome of the case.[40]
[40] Hargraves [24].
In Hargraves the High Court held that Robinson did not establish a new rule or principle, but rather applied a pre‑existing principle to the facts and circumstances of that particular case. The plurality said that the decision in Robinson directed attention to whether the directions that were given to the jury constituted a miscarriage of justice because they affected the fairness of the trial and, in particular, did so by undermining the benefit which the presumption of innocence gives to an accused person.[41] Their Honours went on to note that Robinson and other similar cases demonstrate that a jury's attention can be deflected from its fundamental task in different ways. Another example referred to was RPS v The Queen[42] in which the jury had been distracted from its task by the trial judge commenting on the failure of an accused to give evidence. Another example was Palmer v The Queen[43] in which an accused was asked in cross‑examination whether he could offer any reason or motive for the complainant to lie. This introduced an irrelevant consideration by inviting the jury to accept the complainant's evidence unless there was some demonstrated motive to lie. That would be to effectively deny that the trial is an accusatorial process in which the prosecution bears the onus of proving the offence beyond reasonable doubt.
[41] Hargraves [40].
[42] RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620.
[43] Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1.
The plurality in Hargraves then said:[44]
Robinson, too, is to be seen as a particular application of this more general principle. Inviting a jury to test the evidence given by an accused according to the interest that the accused has in the outcome of the trial or suggesting that the accused's evidence should be scrutinised more carefully than the evidence of other witnesses, deflects the jury from recognising and applying the requisite onus and standard of proof. It is for the prosecution to prove its case, not for the accused to establish any contrary proposition. The instructions which a trial judge gives to a jury must not, whether by way of legal direction or judicial comment on the facts, deflect the jury from its fundamental task of deciding whether the prosecution has proved the elements of the charged offence beyond reasonable doubt.
The principle that is identified is expressed at a high level of abstraction: did the judge's instructions deflect the jury from its fundamental task of deciding whether the prosecution proved the elements of the charged offence beyond reasonable doubt? Directions given by a trial judge can often be assessed against that principle by observing no more than that the judge has so instructed the jury that it would be open to the jury to evaluate an accused's evidence on the basis of the accused's interest in the outcome of the trial.
It is to be emphasised that trial judges must not instruct juries in that way: whether as a direction of law or as a judicial comment on the facts of the case. And it should also be emphasised that nothing that is said in these reasons should be understood as diminishing the need for intermediate courts of appeal to insist upon the observance of this requirement. Whether there has been on any other ground whatsoever a miscarriage of justice must always require consideration of the whole of the judge's charge to the jury. In every case, the ultimate question must be whether, taken as a whole, the judge's instructions to the jury deflected the jury from its proper task. (emphasis added)
[44] Hargraves [45].
The conclusion in Hargraves was that in the context of the trial the impugned directions would have been understood by the jury as referring to the prosecution witness, the accountant who promoted the scheme, whose credibility was 'a real and lively issue'. Whilst it was also possible that the directions could have been capable of applying to the appellants, that possibility needed to be viewed in the light of the fact that the interests referred to by the trial judge were friendship and self‑protection and no reference was made to the outcome of the case as a matter in which a witness could have an interest. The direction was unlikely to have been given much prominence by the jury and would not have been understood as meaning that the evidence of the appellants had to be scrutinised more carefully than other witnesses. The direction differed in form and effect from that considered in Robinson. In these circumstances the plurality concluded that the directions were not such as would deflect the jury from the task of deciding whether the prosecution had proved its case beyond reasonable doubt. There was not, therefore, a miscarriage of justice.[45]
[45] Hargraves [48] - [49].
It was implicitly accepted in Robinson that the interest that an accused person has in the outcome of a trial is an obvious one. There is no requirement for a judge to positively direct a jury to put such matters out of their minds. Rather there is a prohibition on directing a jury to evaluate evidence of an accused on the basis of his or her interest in the outcome of the case.[46]
[46] R v Parsons [2015] SASFC 183 [29] - [30] (Peek J).
The critical question, as identified in Hargraves, is whether the directions of the judge to a jury are liable to have deflected the jury from their essential task. The essential task is to determine whether, on the whole of the evidence, the jury are satisfied beyond reasonable doubt that the charges have been proved. The risk is that if the jury are told that an accused person has a particular interest in the outcome of the trial, or if they are invited to scrutinise the evidence of the accused or to evaluate the weight to be given to it by reference to the accused's interest in the outcome of the trial, they will rely on that factor to discount the accused's evidence. To discount the evidence of the accused simply for the reason that, as the accused, he or she has a particular interest in the outcome is, as said in Stafford, wrong and unfair. Whether or not that risk sufficiently arises to be real or perceptible in a particular case will depend upon the wording of the particular direction, the context in which it appears and the issues at the trial.

Ground 1 - the merits

As to ground 1, there is support for the proposition that the principle referred to in Robinsonand Hargraves also prohibits a prosecutor commenting on, or asking questions about, the interest of an accused in the outcome.[47] It is unnecessary to decide that question in this case. The issue may have relevance in trials involving juries where it is at least arguable that comments or questions, like judicial directions, may have the effect of deflecting the jury from their task. However, it will, generally at least, have no practical significance in a trial by judge alone.
[47] R v MDH [2020] QCA 175 [174] - [175] (Davis J); Fraser JA relevantly agreeing at [8]; Morrison JA not deciding at [21]; R v Ellem (No 2), 551 (Fitzgerald P), contra 557 (McPherson JA), 558 (Davies JA).
In a trial by judge alone the real issue is not what effect comments or questions might have had but what effect they had in fact. That is because the trial judge is obliged to provide reasons for decision, which should reveal the basis for any findings regarding the credibility of the accused. If an adverse finding has an improper basis that should be apparent from the judge's reasons. In this case, whether or not the questions put in cross‑examination regarding the appellant's interest in the outcome were proper, the real issue is whether the trial judge discounted the evidence of the appellant because of that interest. That issue is the subject of ground 2.

Furthermore, in this case no objection was taken to the cross‑examination and the trial judge was not asked to rule on whether the questions were proper. In these circumstances, though the ground refers to an error of law, the appellant would need to establish that the questioning caused a miscarriage of justice. Whether a miscarriage of justice has occurred depends entirely on the use to which the trial judge put the evidence.
Ground 1 does not raise any issue that is not addressed by ground 2. Leave in respect of ground 1 should be refused.

Ground 2 - the merits

All of the High Court cases referred to have involved directions given in jury trials. A question that must arise is whether the principle referred to in Robinson and Hargraves is applicable in a trial by judge alone and, if so, to what extent.
In a trial by judge alone the judge must apply, so far as practicable, the same principles of law and procedure as would be applied in a trial before a jury. If any law requires or prohibits a warning or instruction to be given to a jury, the judge in a trial by judge alone must take the requirement or prohibition into account if the circumstances arise in the course of the trial.[48] The trial judge may make any findings that could have been made by a jury, and such findings have, for all purposes, the same effect as a finding by a jury. The judgment of the trial judge must include the principles of law that he or she has applied and the findings of fact on which he or she has relied.[49]
[48] Criminal Procedure Act, s 119.
[49] Criminal Procedure Act, s 120.
In this case no issue is taken with the trial judge's statement of the relevant general legal principles. Her Honour referred in orthodox terms to, amongst other things, the presumption of innocence and the onus and standard of proof. She did not give a direction or make any general statement as to the law that was in direct conflict with the principles that have been referred to. The impugned passages appear in her Honour's reasoning regarding the evidence. Self‑evidently, this is not reasoning that would be exposed for scrutiny in the context of a jury trial. However, that does not mean that judges are immune from the risk that is referred to in Robinson and Hargraves.
In the context of a jury trial where the accused's interest in the outcome has been raised, the question on appeal will be whether there is a real or perceptible risk that the directions had the effect of deflecting the jury from recognising and applying the requisite burden and standard of proof. See Hargraves [45]. In the context of a trial by judge alone, where detailed reasons must be given, the question can be answered not by considering what effect a direction might have had, but by examining how the trial judge in fact dealt with the evidence. Adapting the last sentence of the quote from Stafford at [78], one question, perhaps the question, is, did the trial judge discount the evidence of the accused simply for the reason that, as the accused, he or she had a particular interest in the outcome of the trial? For the reasons in [92] above, if the judge so reasoned, there was a miscarriage of justice.
In this case the trial judge assessed the appellant's credibility favourably only in respect of those matters where he made admissions against his interest. However, in respect of his denials of the two relevant incidents her conclusion was that she would not accept his evidence because he had 'a clear motivation to deny' those incidents.[50] In context this must mean a motivation to falsely deny the incidents. The motivation referred to is that the appellant wanted to be released from prison so he could pursue a relationship with a woman he intends to marry. No other factor for rejecting the appellant's evidence was mentioned.
[50] ts 196.
That the appellant had an interest in being acquitted and released from prison was not essentially different from the interest that any accused has in the outcome of proceedings involving a trial on indictment. That one of the hoped-for benefits of release was or may have been the appellant's ability to pursue a relationship did not constitute a different interest, rather it was an anticipated consequence of achieving his liberty. The effect of what the judge said was that she did not accept the appellant's evidence as being truthful, and she rejected his denials and put them to one side because, and only because, he had an interest in being acquitted of the charges.
To discount the evidence of the appellant on the basis that he had an interest in the outcome was to treat him as a suspect witness simply because he was the accused. Whilst the appellant's evidence was liable to be assessed in the same manner as that of any other witness, to reject it only on the basis that he had an interest in the outcome also undermined the presumption of innocence and the requisite burden and standard of proof. It had particular significance in the circumstances of this case where the appellant's evidence was in direct conflict to that of the complainant. If the appellant's evidence was believed, or if there was a reasonable possibility that his denials might be true, he was entitled to be acquitted.
In this case the trial judge was required to analyse how issues of credit in relation to the appellant's account of relevant interactions he had with TMM and JAR and his denials of the alleged offending were to be resolved. The appellant's interest in securing an acquittal should not have been the basis for discounting and then rejecting the honesty and reliability of his evidence including his denials that he had committed any of the charged offences.
The risk that a jury could be deflected from its essential task by directions inviting them to take into account the interest that an accused has in the outcome of a trial is a risk that the jury will discount the evidence of the accused simply for that reason. In this case, that risk has been realised. The trial judge discounted the evidence of the appellant simply for the reason that, as the accused, he had a particular interest in the outcome of the trial. The consequence was that there was no proper evaluation of the appellant's denials. A miscarriage of justice thereby occurred.
Contrary to the respondent's submissions in [75] above, these conclusions are not altered or diminished by the context in which the appellant came to be cross examined as to his interest in being acquitted of the charge.
For those reasons ground 2 has merit. The appeal should be allowed on that ground and the convictions set aside.

Grounds 3 and 4 - appellant's submissions

In written submissions the appellant argued grounds 3 and 4 together. The appellant contends that the trial judge erred in convicting the appellant in circumstances where the evidence raised a reasonable doubt as to whether the acts pleaded in the indictment occurred, resulting in verdicts that were unreasonable.
It is submitted that the evidence as to the dates was so 'plastic' as to be unpersuasive and this in itself gives rise to a doubt, particularly when coupled with the evidence of TMM and KLB regarding TMM's ages in the photographs and the consequential impact that that had on when the alleged incidents could have occurred.[51] The appellant says that the inconsistencies concerning the timing of the events, the impossibility of the first incident having occurred in December 1985 (because the appellant was in prison) together with the evidence of JAR ought to have left the trial judge with a reasonable doubt as to the guilt of the appellant.
[51] Appeal Book 26.
The appellant contends, as an allied point, that there was a miscarriage of justice because the prosecution changed its case in respect of count 1 from an allegation that the events happened when TMM was aged 5 or 6 and at her father's Christmas party to an allegation that they happened substantially later. The appellant submits that this change occurred without giving the appellant's counsel an opportunity to meet that change. In particular, the defence may have sought to adduce other alibi evidence.

Grounds 3 and 4 - respondent's submissions

The respondent submits that other than as a minor issue in respect of credibility, the chronological correlation between the offending and the photographs was not of great significance. Any controversy over the dates did not substantially affect the question of opportunity. The appellant admitted that he was present at family occasions. He had an alibi only in respect of the period from October 1985 to March 1986. The respondent says that this left an ample number of family events within the period alleged at which the offending could have occurred.
The respondent submits that the complainant's uncertainty as to dates was understandable given her age at the time and the subsequent passage of time. That uncertainty did not necessarily give rise to a reasonable doubt as to the reliability of her evidence as to the incidents themselves. The respondent also points to the fact that the incidents described by the complainant bore strong similarities to the appellant's admitted criminal conduct at or around the same period.
The respondent submits that the evidence of JAR was far from a solid obstacle to conviction. The clear implication flowing from the prosecutor's questioning of JAR was that he was not being forthright in his evidence due to potential implications for other matters. It was open to the trial judge to reject the evidence of JAR in the circumstances.
As regards ground 4, the respondent submits that although the counts in the indictment refer to the periods when the offences are alleged to have occurred, the prosecutor, in her opening address, referred to TMM being around 6 years of age, or possibly up to 8 at the time of the first incident, and that the second incident occurred 'a year or so' later.[52] The effect of this was that the date range for the offending was alleged to be a broader period than that referred to in the indictment. While it may have been prudent to amend the indictment, the dates in the charges were not an essential part of the offences. There was no change in the State case during the trial.
[52] Appeal Book 54; ts 67.
Further, the broadening of the offending period was the result of supplementary statements of TMM and KLB that were prepared and disclosed shortly before the trial. There was no complaint about late disclosure, nor any application for an adjournment. The alibi evidence adduced by the appellant, that is that he was in prison from October 1985 to March 1986, did not relate to the confined dates in the indictment but to the expanded case as opened. This shows that the appellant was fully aware of the case that he had to meet.

Ground 3 - relevant legal principles

The principles governing whether a verdict is unreasonable or cannot be supported by the evidence are well established. This court has applied those principles on many occasions.[53]
[53] See, for example, Wells v The State of Western Australia [2017] WASCA 27 [13]; MEN v The State of Western Australia [2020] WASCA 118 [403] - [410]; Dayananda v The State of Western Australia [2021] WASCA 11 [43] - [53].
Various legal principles applicable in an appeal to this court from a judgment of conviction entered after a trial before a judge alone are set out in Wark v The State of Western Australia.[54] The principles which are relevant in the present case in considering whether the trial judge's verdicts of guilty were unreasonable or cannot be supported by the evidence are as follows:
[54] Wark v The State of Western Australia [2020] WASCA 19; (2020) 56 WAR 365 [277] - [303].
1.It is a question of fact whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported.[55]
2.The appeal court must decide that question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand.[56]
3.The appeal court, in making an independent assessment of the whole of the evidence to determine whether it was open to the trial judge to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the whole of the evidence (in particular, the competing evidence).[57]
4.The task of the appeal court is not to consider as a question of law, merely whether there was sufficient evidence to sustain a conviction.[58]
5.The appeal court must not disregard or discount either the consideration that the trial judge is entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the trial judge has had the benefit of seeing and hearing the witnesses.[59]
6.The appeal court performs its function, in a case such as the present case, on the basis that the evidence of the complainant was assessed by the trial judge to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the trial judge ought nonetheless to have entertained a reasonable doubt as to proof of guilt.[60]
7.The ultimate question for the appellate court must always be whether the appellate court thinks that upon the whole of the evidence it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty.[61]
8.The setting aside of a trial judge's verdict of guilty because, having regard to the evidence, it is unreasonable or cannot be supported is a serious step. Trial by appellate court is not to be substituted for trial by the tribunal of fact.[62]

Ground 3 - the merits

[55] M v The Queen [1994] HCA 63; (1994) 181 CLR 487; Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482; GAX v The Queen [2017] HCA 25.

[56] M (492 ‑ 493); SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 .

[57] SKA [22], [24].

[58] Morris v The Queen[2006] WASCA 142.

[59] M (493); Nguyen v The Queen [1999] WASCA 192; SKA [13].

[60] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123.

[61] M (494 ‑ 495). See also R v Hillier[2007] HCA 13; (2007) 228 CLR 618; Fitzgerald v The Queen [2014] HCA 28; The Queen v Baden-Clay [2016] HCA 35.

[62] Baden‑Clay [65] ‑ [66].

It is necessary to consider ground 3 even though ground 2 has been made out. If ground 3 is made out then ordinarily this court would set aside the judgments of conviction and enter judgments of acquittal. By contrast, the appellant's success on ground 2 will result in the judgments of conviction being set aside but, as we will explain, a new trial being ordered. Ground 3 must be considered by reference to a properly directed fact finding tribunal in view of her Honour's misdirection in relation to the appellant's evidence. See TSP v The State of Western Australia.[63]
[63] TSP v The State of Western Australia [2021] WASCA 224 [70].
The appellant's submissions on this ground essentially rely on the proposition that it was not open for the trial judge to be satisfied beyond reasonable doubt that TMM's evidence as to the occurrence of the offences was truthful, accurate and reliable. This is said to be because the evidence was unclear as to when the offences occurred and because JAR denied that the events had occurred.
There is no doubt that TMM was a critical witness and a finding of guilt depended on the trial judge being satisfied that her evidence was truthful, accurate and reliable. TMM was consistent in her evidence that each of the incidents had occurred as she had described. She frankly conceded that she could not be sure of the date of each incident but maintained that this did not affect her certainty that they had happened.
TMM was cross-examined about discrepancies between her evidence and her witness statement. The first discrepancy was as to whether the first incident had occurred at her father's Christmas work function. TMM accepted that her statement could be read as saying that. However, she did not concede that that had ever been her position. Rather, her evidence was that the photograph from the Christmas function merely showed her at the age she believed she was when the first incident occurred. Nor did TMM say that this incident occurred in December 1985 (when the appellant was in prison). The second discrepancy was as to whether the appellant was circumcised. She said in evidence that she 'would say possibly not', but that she 'couldn't see his penis in its full form'. She conceded that in her statement she had said that 'it looked like he was circumcised'.[64] Neither of these statements was categorical, rather they were the impressions of a child aged 6 to 8 years old at the time and who was observing the appellant from a distance whilst he was allegedly masturbating.
[64] ts 92.
There was an inconsistency in TMM initially saying in evidence that the first incident happened when she was aged around 5 or 6 years old and that the second incident happened about nine to 10 months later but that she was aged 9 or 10 years old at that time. However, she explained this in evidence by saying that she may have been older in the first photograph than she believed or that the time between the incidents may have been greater.
The credibility of TMM did not depend on her accurately identifying the date when the incidents had occurred. Her uncertainty was understandable given her age and the passage of time. The discrepancies or inconsistencies referred to were readily explicable on this basis and did not necessarily indicate that TMM's evidence as to the events was unreliable or lacking in credibility. It is also important to acknowledge that the trial judge had the advantage of seeing and hearing TMM and found her to be a 'clear, careful and compelling witness'.[65] The allegations were also supported by the propensity evidence.
[65] ts 191.
JAR's evidence was remarkably brief. He initially expressed himself by saying that he was 'not aware' that the things alleged had happened. When asked in cross-examination whether he could have blocked the events out of his memory he said that he was 'pretty sure something like that would stick out in my mind'.[66] He then reverted to saying that he was 'not aware' of the incidents. The trial judge, who had the advantage of hearing JAR,[67] described him as a diffident witness.
[66] ts 146.
[67] JAR gave his evidence via audio link.
This is not a case where by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence, it has been established that a properly directed fact finding tribunal must have entertained a reasonable doubt as to proof of guilt, notwithstanding the trial judge's finding that TMM was a credible and reliable witness.
A properly directed fact finding tribunal, acting reasonably, would have been entitled to be satisfied beyond reasonable doubt, upon the basis of TMM's evidence, that the appellant committed the acts the subject of each of the charged offences.
The trial record does not require the conclusion that a properly directed fact finding tribunal must necessarily have entertained a doubt about the appellant's guilt of the charged offences. The State's case on each of the counts was capable of being supported to the criminal standard by admissible evidence that a properly directed fact finding tribunal would be entitled to accept and by inferences that a properly directed fact finding tribunal would be entitled to draw.
Ground 3 has no reasonable prospect of succeeding. Leave in respect of it should be refused.

Ground 4 - the merits

The general rule is that a date specified in an indictment is not a material matter that has to be specifically proved unless it is an essential part of the offence charged. That general principle may be overridden by considerations of fairness in a particular case, if it has been conducted on the basis that the offence occurred on a particular date and the accused has prepared his defence on that basis.[68]
[68] The Queen v Dossi (1918) 13 Cr App R 158, 159 - 160 (Aitkin J); CB v The State of Western Australia [2006] WASCA 227.
In the present case, each count alleged that the offence occurred on a date unknown within a specified date range. However, prior to the trial, the State disclosed supplementary statements, including a supplementary statement of TMM dated 30 March 2020. In that statement TMM said that she could not be certain about specific dates. To the extent that her first statement had referred to dates, TMM said that she had simply been answering questions from the police as to possible dates. She said that the first incident happened when she was around the age shown in the photograph, but she could not say that it was on the day the photograph was taken. As to the second incident she stated that it was 'a while' after the first incident, 'but less than a year'. This statement and the relevant emails by which it was disclosed were annexed to an affidavit that was admitted at the hearing of the appeal without objection.[69]
[69] Affidavit of Thomas Benjamin Laird Scutt, sworn 19 October 2021.
On receiving the supplementary statement of TMM, defence counsel indicated that she would be objecting to late disclosure and her 'inability to take further instructions' from the appellant. However, no objection was raised at the commencement of the trial and no adjournment was sought. The trial was opened and run consistently with the supplementary statement.
Whilst it may have been preferable to amend the dates in the indictment, it cannot be suggested that the evidence of TMM came as any surprise to the appellant. He knew, prior to the commencement of the trial, that the case he had to meet was that an incident had occurred at some time between 1985 and 1987. He adduced some alibi evidence that related to the broader period. There is no merit in the claim that the State changed its case without giving the appellant's counsel an opportunity to meet that change.
The dates in the indictment were not an essential part of the offence charged in this case. Ground 4 has no reasonable prospect of succeeding and leave in respect of it should be refused.

Conclusion and retrial

Since ground 2 should succeed the usual order would be for the convictions to be set aside and for a retrial to be ordered. However, the power to order a new trial is discretionary in character.
Where an appeal court allows an appeal against conviction it must decide whether it is in the interests of justice to order a new trial. The court must consider whether the admissible evidence at the original trial was sufficiently cogent to support a conviction. That is the case here, as demonstrated by the reasons relating to ground 3. The court must also take into account any circumstances that might render it unjust to make an appellant stand trial again.[70]
[70] Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627, 630.
The only factor that can be raised against ordering a retrial is that the appellant has now served the complete sentence that was imposed on conviction. On the other hand, offences involving the sexual abuse of young children are inherently serious and it is often important for the victims and for the community generally for such allegations to be finally resolved. Furthermore, counsel for the appellant accepted that in this case there is another relevant factor. That is, that the appellant is the subject of a continuing detention order under the High Risk Serious Offenders Act 2020 (WA). That order is subject to statutory reviews by a judge from time to time. Reviews require an assessment of the risk of committing further serious offences. Any such assessment takes into account past offending conduct. If the appellant is convicted of the current charges that would be a relevant matter to be taken into account in assessing that risk.
In these circumstances, the appropriate order is for a retrial.
We would make the following orders:
1.Leave to appeal on ground 2 granted.
2.Leave to appeal on grounds 1, 3 and 4 refused.
3.Appeal allowed.
4.Convictions set aside.
5.The matter be remitted to the District Court for a retrial.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Associate to the Honourable Justice Hall
8 FEBRUARY 2022