XYZ v The State of Western Australia
[2025] WASCA 135
•10 SEPTEMBER 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: XYZ -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 135
CORAM: MAZZA JA
VAUGHAN JA
HALL JA
HEARD: 6 & 18 AUGUST 2025
DELIVERED : 10 SEPTEMBER 2025
FILE NO/S: CACR 30 of 2025
BETWEEN: XYZ
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: COBBY J
File Number : SJA 1096 of 2023
Catchwords:
Criminal law - Appeal against conviction - Historic child sex offences - Whether appellant was under 14 years of age at the relevant time - Whether capacity proven - s 29 Criminal Code (WA) - Whether primary judge erred by applying the proviso - Whether appellant denied procedural fairness
Legislation:
Criminal Appeals Act 2004 (WA), s 14(2)
Criminal Code (WA), s 29, s 183 (repealed)
Result:
Leave to appeal refused on all grounds
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | T F Percy KC & S Nigam |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | Nigams Legal Pty Ltd |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
BDO v The Queen [2023] HCA 16; (2023) 277 CLR 518
Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651
KNL v The State of Western Australia [2023] WASCA 72
RP v The Queen [2016] HCA 53; (2016) 259 CLR 641
RYE v The State of Western Australia [2021] WASCA 43; (2021) 288 A Crim R 174
XYZ v The State of Western Australia [2025] WASC 36
JUDGMENT OF THE COURT:
The appellant was convicted after trial in the Children's Court of two counts of unlawful and indecent dealing with a child under 14 years contrary to s 183 (repealed) of the Criminal Code (WA) (Code). The offences occurred between 7 May 1974 and 27 February 1975. The complainant is the appellant's younger sister, who was aged 9 at the relevant time.
There was no dispute that the alleged acts occurred. The only issues were whether the acts had occurred prior to the appellant's 14th birthday on 22 October 1974 and, if so, whether it had been proven that he had the capacity to know that he ought not to do those acts. Those issues were relevant having regard to s 29 of the Code which provides that a person under the age of 14 years is not criminally responsible for an act or omission unless it is proven that at the time of doing the act or making the omission, he or she had capacity to know that he or she ought not do the act or make the omission.
The Children's Court magistrate found that the first offence occurred in April 1974 and the second offence occurred in February 1975. The magistrate also found that the evidence established that the appellant had the relevant capacity at the time of the first offence. In this regard, the magistrate relied on evidence from the appellant's mother, the complainant, and a female cousin of the appellant. The cousin gave evidence that she had been sexually abused in a similar manner in January or February of 1974, and that the appellant had told her following that abuse that she should not tell anyone and that it was their secret.
The appellant appealed his conviction to a judge of the General Division of the Supreme Court. The grounds of appeal were that the magistrate erred in finding that the evidence rebutted the presumption of incapacity; and that the magistrate erred in determining that the second charge did not require the prosecution to rebut the presumption of incapacity, on the basis that the offence occurred after the appellant had reached 14 years of age.
On 10 February 2025, Cobby J refused the appellant's application for an extension of time and dismissed the appeal. In doing so, his Honour found that the magistrate erred in his process of reasoning regarding capacity, but that no substantial miscarriage of justice occurred because the evidence nonetheless established the appellant's capacity. The appellant now seeks leave to appeal from the decision of Cobby J.
After some delay, the appellant's case was filed on 10 June 2025. It contained one ground of appeal. The court formed the provisional view that this ground had no reasonable prospects of success, and the matter was listed for a leave hearing. Shortly prior to the hearing, the appellant's solicitors advised the court of an intention to apply to amend the appellant's case by adding several additional grounds.
The practices and procedures of this court, since its inception, have reflected the objective of 'front‑end' preparation of appeals. With this in mind, practitioners who file an appellant's case must certify that the case has been 'fully prepared' and that, other than the preparation of the appeal books, the appellant is 'ready for the hearing of the appeal'. The signing of this certificate is an important professional obligation to be taken seriously and should be done only after careful consideration of all of the relevant material.
Too often, this does not occur and the court is confronted with a late application to amend the grounds of appeal (as occurred in this case) or worse, an application made, without notice to the court, at the commencement of the hearing. Such applications are undesirable and have the capacity to disrupt the orderly management and resolution of appeals.
The amended appellant's case contains four grounds of appeal. The grounds, in essence, raise two issues. First, it is contended that the primary judge erred in applying the proviso because it was not open to dismiss the appeal on the basis that no substantial miscarriage of justice had occurred. Secondly, it is contended that there was a denial of procedural fairness in that the possibility of the application of the proviso was not raised in the proceedings before the primary judge.
The appeal before the primary judge was argued on the basis that the grounds, in substance, alleged that the verdicts were unreasonable or unsupported by the evidence. His Honour accepted that he was required to independently consider the sufficiency of the evidence as to the issue of capacity. That exercise did not require a finding by the primary judge that the magistrate made an error in his reasoning process. The fact that the primary judge conducted his independent assessment of the evidence in the context of the application of the proviso is of no consequence, as he was obliged to make such an assessment in any event. Furthermore, the question of the sufficiency of the evidence was fully argued before the primary judge. In these circumstances, there is no merit in the appellant's grounds of appeal.
For the more detailed reasons that follow, leave to appeal should be refused and the appeal dismissed.
The facts
The facts regarding the sexual conduct can be summarised as follows.
The appellant was born on 22 October 1960. The complainant is the appellant's younger sister and was born on 7 May 1965.[1]
[1] XYZ v The State of Western Australia [2025] WASC 36 [2], [29] ‑ [30].
The family of the appellant and the complainant migrated to Australia from the United Kingdom in September 1973. The family initially lived in Wundowie with a relative. In mid‑January 1974, the family moved to a house on Duke Street, Northam, where they lived in a caravan in the back garden of a house occupied by a relative. In mid‑April 1974, the family moved to a house on Forrest Street, Northam (Forrest Street house). The complainant and her twin sister shared a bedroom at the Forrest Street house. At that time, the appellant was approximately 13 years 6 months old and the complainant was almost 9 years of age.[2]
[2] XYZ [31] - [33].
The complainant's evidence was that the appellant commenced abusing her after they moved to the Forrest Street house. She said that the abuse commenced in the winter of 1974. She recalled that it was winter because, at the time of the first incident, she was wearing her pink and orange flannelette pyjamas.[3]
[3] XYZ [34].
In relation to the first incident, the complainant's evidence was that her mother was out at a meeting and her father was away overnight for work. The appellant would babysit the other children whilst their parents were out. The complainant walked into her bedroom and was surprised to find the appellant lying on her bed. He had a 'really big storybook' with him. He had a sheet over his middle and was bare‑chested. She went to her bed because she thought that the appellant was going to read a story to her. He then removed her pyjamas. He was naked under the sheet.[4]
[4] XYZ [35] - [37].
The complainant said that the appellant put his hand down and started playing with her vagina. His head was under the covers at this point. She was not sure whether the appellant penetrated her with his finger.[5]
[5] XYZ [38].
The appellant then said to the complainant, 'now it's your turn'. He took her hand and placed it on his testicles. After a short time, he took her hands and placed them on his penis and made her move her hands up and down on his penis, which she said was hard. She was unsure for how long that went on. Fluid came out of the appellant's penis. He then ran out of the room. She said nothing more happened to her that night or the next day.[6]
[6] XYZ [39] - [41].
This conduct was the subject of the first charge: that on a date between 7 May 1974 and 27 February 1975 at Northam, the appellant unlawfully and indecently dealt with the complainant, a child under the age of 14 years.
The complainant's evidence was that the appellant returned a week later with the storybook. She understood that he was not going to read her a story. She said that the appellant again removed her clothes, fondled her vagina 'for a long time' and then said to her, 'now it's your turn', whereupon he guided her hand to his testicles and then guided her hands to his penis. Again, the complainant masturbated the appellant until fluid came out and he left, as he had done on the first occasion. The appellant continued this conduct weekly for six months until the summer of 1974. This conduct was not the subject of a charge.[7]
[7] XYZ [42] - [43].
The complainant gave evidence that the conduct the subject of the second charge occurred in the summer of 1974. She recalled that it was summer because she was wearing her baby blue, baby doll summer pyjamas. The complainant said that the appellant entered her bedroom and took off her pyjamas. He fondled her vagina. She said that, by that time, the appellant did not need to say 'it's your turn' because she knew what to do. She touched his testicles first and then masturbated him. This was the last occasion that this occurred. Soon after, the complainant told her mother what had happened and the appellant was disciplined.[8]
[8] XYZ [42] - [44]; trial ts 75.
The last incident was the subject of the second charge: that between 7 May 1974 and 27 February 1975 at Northam, the appellant unlawfully and indecently dealt with the complainant, a child under the age of 14 years.
The magistrate found the complainant to be a truthful and reliable witness. In particular, he accepted the complainant's evidence that the sexual abuse commenced in April 1974 and that it continued until the summer of 1974 or 1975. He accepted that the second incident occurred in that summer based on the complainant's evidence that she was wearing her summer pyjamas. His Honour found that the incident the subject of the second charge occurred in February 1975 and that, soon after, the complainant told her mother.[9]
[9] Trial ts 181, 185.
Evidence of capacity
At the trial, the prosecution called evidence from the appellant's mother regarding his schooling and level of maturity at the relevant time. Evidence was also called from a cousin of the appellant regarding an incident of sexual conduct that had occurred between her and the appellant.
The mother gave evidence that the appellant and the complainant attended a Catholic school in Northam and that the appellant did 'very well' and achieved 'very good' grades. Although, she subsequently agreed with the suggestion from counsel for the appellant that from time to time the appellant's grades could have been a 'mix of very good and then ordinary'. She said that the appellant had attended an all‑male school in England before the family migrated to Australia in September 1973. She described the appellant as 'quite an innocent 13 year old'. The mother also gave evidence that the appellant had a part‑time job working for a local butcher in March 1974 when he was 13 years old and that he 'used to cut up things' in that job.[10]
[10] XYZ [47] - [49].
The cousin's evidence was adduced to prove capacity and not for any propensity purpose.[11] She was born on 15 May 1965 and was just under 9 years of age as at January 1974. Her evidence was that, in January or February 1974, the appellant invited her to go to the caravan. He asked her whether she would like to have a look in the caravan and when she said 'yes', he told her, '[j]ust wait here and come in in a minute'. In cross‑examination, the cousin explained that the appellant had not been wearing pyjamas when he invited her to see the caravan and that it was 'like he had got changed into pyjamas when he was laying in the bed'.[12]
[11] Trial ts 46, 113, 180, 186 - 187.
[12] XYZ [52] - [53], [58].
When the cousin entered the caravan, the appellant was lying on the bed with a sheet up to his waist. He was naked from the waist up. They were alone inside the caravan. The appellant told the cousin to come lay on the bed with him. She did so, lying on top of the sheet. He asked her whether she would like to play a game, which he said was called 'find the worm'. He told her that if she went looking for the worm under the sheet and found the worm, he would give her a lolly. The cousin said that she put her hand under the covers, following which the appellant told her to keep looking. She then found his thumb sticking out of the slit in his pyjama pants, whereupon the appellant said, '[t]hat's good; you found it'.[13]
[13] XYZ [54] - [57]; trial ts 153.
The cousin said that the appellant then asked her whether she would like to play again, to which she agreed. She again put her hand under the sheet and the appellant said, 'keep looking'. On the second occasion, the cousin found his erect penis. The appellant then told his cousin to hold it. She could not recall how long she held the appellant's penis. She could not recall how the incident came to an end but when she left, the appellant told her, 'not to tell anybody; that it would be our secret'. She did not disclose to anyone what occurred between them.[14]
[14] XYZ [59] - [61].
The prosecution case was that the appellant's age, education, and intellectual development - when taken together with the evidence of the cousin - established that he had the capacity at the relevant time to understand that he ought not to do the things he was charged with. In particular, the evidence of the cousin showed that the appellant had an awareness that this type of behaviour was morally wrong and should be kept secret, at a time prior to the commencement of the similar conduct with the complainant.[15]
[15] Trial ts 171 - 172.
The magistrate's reasoning on capacity
The magistrate correctly identified that, if the appellant was under 14 years of age at the time of either of the incidents, the onus was on the prosecution to prove that he had capacity. Given that the magistrate found that the second charge occurred in February 1975, after the appellant's 14th birthday, the issue of capacity only arose in respect of the first charge. The magistrate noted that capacity could only be proven on the evidence as a matter of inference and that he could not draw an inference adverse to the appellant unless it was the only inference available on the evidence.[16]
[16] Trial ts 179 - 180.
After referring to the evidence of the complainant and the appellant's mother, the magistrate mentioned that there was also evidence from the cousin and that he would refer to that evidence later in his reasons.[17] His Honour then said, '[a]nd those are some of the principal pieces of evidence from which the State ask me to draw the inference that before October [1974], he had capacity as defined in the Code'.[18] It is apparent from this that the magistrate included the cousin's evidence amongst the 'principal pieces of evidence'. This was also evident when his Honour returned to the issue of capacity after reviewing the evidence relating to the sexual conduct:[19]
Going back, then, to the evidence of capacity, I've already mentioned some of the things to do with capacity. Well, there was another key witness the State called on capacity, not propensity, and that was [the cousin]. She gave evidence of another incident - or other incidents of touching by [the appellant] on her when she was a child and the State doesn't rely on that by way of propensity and I don't take that into account for that reason, but the State relies upon something that she said - that he said at the end of it to indicate - to prove - from which I can infer capacity to know - ought not to do the act or make the admission.
[17] Trial ts 182 - 183.
[18] Trial ts 183.
[19] Trial ts 186 - 187.
The magistrate then referred to the evidence of the cousin, including the incident that occurred in the caravan and that she thought this occurred in either January or February of 1974. His Honour identified as important the fact that the cousin said that the appellant told her not to tell anyone and that it would be their secret:[20]
I find her evidence to be accurate and honest and reliable. In particular, he told her not to tell anyone - 'It's our secret'. The significance of that is [that] he was doing, in my finding, an act exactly the same, almost, as what [the complainant] said. In the conclusion of it, he said to her, 'Don't tell anyone; it's our secret'. That is evidence from which I can infer that he had capacity at the time before October [1974] to know that he ought not to do the act or make the admission - do the act of indecently dealing with [the complainant] in the manner that she said in her evidence.
The question is whether I'm satisfied beyond a reasonable doubt on all of that evidence whether the State has proved the acts themselves, as I earlier said, particularised in the first charge on the prosecution notice. I am so satisfied those acts are proved beyond a reasonable doubt, the indecent dealing I referred to earlier and the uncharged act. I'm satisfied that those occurred before the accused turned 14.
I'm also satisfied on the evidence that the acts alleged in the second count continued and came to an end in the summer of 1974 going to 1975 ‑ February 1975. I'm satisfied beyond reasonable doubt that the indecent dealing as particularised or referred to in particulars earlier on occurred then as well, so there is no issue of capacity on [the second charge]; I find that charge proved beyond a reasonable doubt.
[20] Trial ts 187 - 188.
As to capacity, his Honour concluded:[21]
The evidence of the capacity comes from primarily the evidence of [the appellant's] moral and intellectual development, as I've heard from the mother and from the sister [ie the complainant] and as well from his action in the words - from the words he spoke in similar circumstances to the witness [the cousin], so I'm satisfied that [the first charge] is proved beyond a reasonable doubt as well.
[21] Trial ts 188.
The appeal to the primary judge
The appellant appealed to the primary judge on two grounds:[22]
1.That the magistrate erred in fact and law in finding that the evidence rebutted the presumption of incapacity pursuant to s 29 of the Code in relation to the first charge.
2.That the magistrate erred in fact and law in determining that the second charge did not require the prosecution to rebut the presumption of incapacity on the basis that offence occurred after the appellant had reached 14 years of age.
[22] XYZ [3].
At the hearing before the primary judge, senior counsel for the appellant submitted that the matters relied on by the magistrate in regard to capacity were insufficient to establish that the appellant had the capacity to understand that his actions were wrong at the relevant time. The primary judge asked whether he could take into account the circumstances of the alleged sexual conduct with the complainant in assessing whether or not the appellant realised that what he was doing was wrong. In response, senior counsel said:[23]
Well of course. Your Honour can do that. But our submission would be, clearly, that even doing that, we don't get to that stage. You might get to that on balance. You might even get to that on the Briginshaw standard. But beyond reasonable doubt, we would say it could not be said that there was no reasonable doubt about whether he had that capacity.
[23] Single judge appeal ts 10.
The primary judge then asked about the evidence of the cousin and whether it showed a degree of planning on the appellant's part. Senior counsel responded:[24]
Well, as the prosecutor said, it showed a level of maturity, planning and cunningness. We would say that itself is not conclusive. We would say taking that at its highest, together with all the other things, doesn't take us to the position where it was beyond something which he thought was naughty, rude, should be concealed from adults.
[24] Single judge appeal ts 10.
As regards the evidence that the appellant had told the cousin not to tell anyone, senior counsel for the appellant said that this was not enough to get to 'that stage', meaning that it did not establish the necessary capacity.[25] When the primary judge referred again to the circumstances of the offending, and in particular the use of the large storybook, senior counsel said that this evidence fell into the same category. That is, the evidence could be taken into account and, on one view, it could provide a pretext if there was any interruption by an adult. However, senior counsel maintained that this evidence did not, even when taken together with the other evidence, establish capacity.[26]
[25] Single judge appeal ts 11.
[26] Single judge appeal ts 13.
Counsel for the respondent submitted that the magistrate's conclusion was correct and that the evidence of the mother regarding the appellant's intellectual and moral development, whilst not conclusive, was relevant. At the conclusion of her submissions, counsel said[27]
if the appellant is successful on ground 1, the respondent's position is that the - no substantial miscarriage of justice would occur because - would have arisen, sorry, because the presumption of incapacity was rebutted. (emphasis added)
[27] Single judge appeal ts 25.
Senior counsel for the appellant was then heard in oral submissions in reply.
Primary judge's reasons
The primary judge characterised the first ground of appeal as raising the question of whether the evidence of capacity was sufficient to prove that matter beyond reasonable doubt. His Honour said:[28]
In alleging that the verdicts of guilty are, in effect, unreasonable or unsupported the appellant only challenges the findings as to capacity. Accordingly, the issue in relation to the first ground is whether the evidence established beyond reasonable doubt that the appellant had the capacity to know that he ought not to do the various acts that constituted the offending as found at the time of committing the offence.
[28] XYZ [15].
His Honour then noted that the second ground could not succeed if the first ground failed, since in those circumstances the appellant would have been found to have the capacity to know that he ought not to have done the act charged at an earlier point in time. If he had such capacity at the time of the first charge, then he must have had it at the time of the second charge, regardless of whether or not he was 14 years old at the time of the second charge. His Honour then said:[29]
Although the grounds of appeal are couched in terms that the learned magistrate erred in fact and law, the gravamen of each ground is that the verdict is unreasonable or cannot be supported by the evidence. The appellant submits, in short, that the learned magistrate could not have been satisfied beyond reasonable doubt that the appellant had capacity, or that the second offence occurred after the appellant's 14th birthday.
[29] XYZ [22].
After referring to the law relating to unreasonable verdicts and how an appeal court is to approach such grounds, doing so in orthodox terms, his Honour said:[30]
The question for determination is therefore whether I am independently satisfied, having assessed the whole of the evidence adduced at trial on the question of the appellant's capacity, that the only rational inference available on that evidence was that the appellant had the requisite capacity.
[30] XYZ [25].
The primary judge referred to the magistrate's reasoning in respect of the capacity issue and then said:[31]
The fact that the appellant was about 13½ years old when the relevant conduct commenced and, at worst, almost 14, when it ceased is therefore insufficient to establish to the requisite standard that he had the capacity to know his conduct was wrong.
Further, the evidence of the appellant's education, which went no further than he had attended a Catholic high school and had achieved good grades, did not greatly assist in the assessment [of] whether the appellant had the capacity to know that his conduct was seriously wrong.
Nor did the evidence that the appellant acted as babysitter for his younger siblings when their parents were absent at night and that he had a part‑time job with the local butcher establish that the appellant was sufficiently mature so that it can be inferred that he possessed the necessary capacity to understand his conduct.
As Vaughan JA pointed out in KNL v The State of Western Australia, it is not uncommon for parents to leave an older child to look after their younger siblings and, without more, is not evidence of any particular mental maturity on the part of an accused.
In my view, the fact that the appellant had a part‑time job with the local butcher similarly did not indicate any particular maturity on the part of the appellant.
I therefore find that the learned magistrate erred in the process of reasoning which led him to find that the appellant had the capacity to know that his conduct was seriously wrong at the time of the first charge. (footnotes omitted)
[31] XYZ [72] ‑ [77].
The implication was that the magistrate had erred by inferring capacity from the evidence of the appellant's age, education, babysitting duties, and employment. Whilst relevant, the primary judge viewed these as matters that were not sufficient to prove capacity, either individually or collectively. The additional reliance by the magistrate on the evidence of the cousin was not expressly referred to in this context.
The primary judge then noted that s 14(2) of the Criminal Appeals Act 2004 (WA) provides that the court may dismiss an appeal if it considers that no substantial miscarriage of justice has occurred, even if a ground of appeal might be decided in favour of an appellant. His Honour then said that he was satisfied that no substantial miscarriage of justice had occurred in relation to the first charge. In this regard, the primary judge said that he found - adopting a different reasoning process from the learned magistrate - that the evidence rebutted the presumption that the appellant did not understand that his conduct was seriously wrong to the requisite standard.[32]
[32] XYZ [78] - [79].
In the context of the proviso, the primary judge conducted an analysis of the evidence from the trial regarding the issue of capacity. His Honour then referred to the evidence of the cousin and noted that the appellant's request that his cousin keep what had happened secret was evidence of an appreciation and awareness of the risk of his conduct being discovered. That evidence was inconsistent with a finding that his conduct was merely naughty or mischievous. His Honour said that the appellant's request for secrecy showed a foresight or awareness characteristic of someone who appreciated the moral wrongness of his conduct and planned for its potential discovery. It was indicative of a scheme to avoid the consequences of his conduct, should it be discovered, rather than the conduct of a naughty or mischievous child. His Honour said that the assessment of the appellant's conduct with the complainant was to be approached in the context of the appellant having engaged with his cousin in a calculated manner, approximately four or five months earlier.[33]
[33] XYZ [86] - [89].
Turning to the circumstances of the offences, the primary judge said that it appeared that the storybook had been intended to support an innocent explanation for the appellant's presence in his sister's bed should one of their parents return home or the complainant's twin sister make any enquiry as to what the appellant and the complainant were doing. As the appellant did not read the complainant a story on any of the occasions he came to her bed, there would seem to have been no other reason for bringing the storybook with him.[34]
[34] XYZ [92] - [93].
The primary judge then said:[35]
The evidence being that the appellant was approximately 13½ years old when he first engaged in the conduct giving rise to the offences, was otherwise of normal maturity and development and achieving good school grades, it was open to find beyond reasonable doubt that the appellant was capable of knowing that his conduct was seriously wrong, in that he did know that was the case, and made plans as to what he would do if his conduct were discovered.
I would accordingly dismiss the first ground of appeal. Although the learned magistrate erred in the process of reasoning which led him to find that the appellant had the requisite capacity, that error did not give rise to a substantial miscarriage of justice, the evidence establishing that was the case in any event.
[35] XYZ [95] ‑ [96].
As to the second ground of appeal, the primary judge found that the learned magistrate erred in finding that the abuse continued until February 1975. He said that that finding was not open on the complainant's evidence, which supported a finding that the appellant's conduct continued for six months and, thus, ceased in November or December of 1974. In those circumstances, there was doubt as to whether the last occasion the appellant dealt indecently with the complainant occurred prior to his 14th birthday. However, his Honour found that no substantial miscarriage of justice occurred in relation to the second charge because he had found that the evidence established beyond reasonable doubt that the appellant had the capacity to know that his conduct was seriously wrong from the time of the first incident at the latest.[36]
[36] XYZ [101] - [104].
Grounds of appeal
The amended grounds of appeal (particulars removed) are as follows:[37]
[37] Minute of amended appellant's case, filed 13 August 2025, 2 ‑ 3.
Ground 1
[The primary judge] erred at law in his application of the proviso, insofar as it was not open to dismiss the appeal on the basis that no substantial miscarriage of justice had occurred.
Ground 2
As to Count 1 the learned Judge at first instance erred;
(i)in determining the question of capacity on facts other than those which had been found by the trial Magistrate; and
(ii)[in] finding that the trial Magistrate had adopted an erroneous process [of] reasoning; and
(iii)[in finding] that the error on the part of the trial Magistrate had not occasioned a substantial miscarriage of justice[.]
Ground 3
In relation to Count 2 the learned Judge at first instance erred in law by invoking the proviso in relation to an issue where he had come to different findings of fact to the trial Magistrate.
Ground 4
The learned Judge at first instance denied the Appellant procedural fairness by applying the proviso, notwithstanding that;
(i)the proviso had not been referred to in either parties' submissions nor argued at the hearing of the Appeal;
(ii)it was not relied on at any stage by the Respondent; and
(iii)having determined that the proviso may be applicable, failing to provide the parties an opportunity to make submissions on the question of the proviso.
The appellant's submissions
Senior counsel for the appellant accepted at the hearing that the grounds resolved to a contention that the primary judge - having found that there was an error in the reasoning process of the magistrate - could not properly apply the proviso because the magistrate's error was fundamental and deprived the appellant of a fair trial. As a subsidiary issue, the appellant claims that he was denied procedural fairness because the question of the application of the proviso was not raised in the hearing before the primary judge.
The appellant submits that the primary judge found that the appellant had made out both of his grounds in that the magistrate had erred in his process of reasoning regarding capacity, and that there was a reasonable doubt that the second offence had occurred before the appellant's 14th birthday. The primary judge's application of the proviso in these circumstances is said to be wrong because:[38]
1.The evidence as a whole only showed that the appellant may have thought his actions were naughty or rude, and wished to conceal them from adults, but did not establish that he had the capacity to know that they were seriously or morally wrong.
2.The primary judge was not entitled to substitute the magistrate's erroneous process of reasoning with one of his own.
3.The primary judge was not in a position to make assessments as to the honesty, accuracy and reliability of the witnesses called at the trial.
4.The appellant was not afforded an opportunity to make submissions on the proviso prior to the delivery of judgment in the matter.
[38] Minute of amended appellant's case, filed 13 August 2025, 8 ‑ 11.
Disposition
The grounds of appeal before the primary judge were treated as being grounds that contended that the evidence before the magistrate was insufficient, rather than that there was any express error. In substance they were grounds that alleged that the verdicts were unreasonable or unsupported having regard to the evidence. As the primary judge correctly stated, this required him to undertake an independent assessment of the evidence as a whole. The reasoning process of the magistrate was not relevant in this regard.[39]
[39] Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651.
The function to be performed by an appeal court when determining an appeal on an unreasonable verdict ground is not to determine whether there was error in the factual findings on which the primary judge or magistrate relied in ultimately finding the accused guilty. The function to be performed by the appeal court is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence.[40]
[40] Dansie [7].
The hearing before the primary judge was conducted on the basis that his Honour would conduct an independent assessment of the whole of the evidence. This is apparent from the fact that there were submissions regarding factors not taken into account by the magistrate, in particular, the circumstances of the offences and the use of the storybook. Senior counsel for the appellant made submissions regarding this evidence and was plainly under no misapprehension that resolution of the appeal required such consideration.
In his reasons, the primary judge became distracted by what he perceived to be an error in the magistrate's reasoning process. However, having found such an error, he then considered the sufficiency of the evidence as a whole in the context of the proviso. In reality, no question of the proviso arose.
As his Honour had correctly identified in the earlier part of his reasons, his task was to independently consider whether the evidence as a whole was sufficient to establish capacity beyond reasonable doubt. The fact that the primary judge did so in the context of the proviso rather than, as he should have done, in dealing with the grounds of appeal, is of no consequence. The fact is that his Honour did undertake such an independent assessment. The primary judge was satisfied that on consideration of that evidence, capacity at the time of the first offence was established beyond reasonable doubt. This rendered any error in regard to whether the second offence had occurred before or after the appellant's 14th birthday immaterial.
To the extent that the appellant maintains that the evidence as a whole was not sufficient to establish capacity, the primary judge was plainly correct to conclude that capacity was proven beyond reasonable doubt. That conclusion was supported by the evidence of the cousin that the appellant had requested she keep secret sexual conduct of a very similar nature, at a time that preceded the offences against the complainant. It was also supported by the manner in which the offences were committed, which displayed elements of planning and foresight, particularly in the use of the storybook to conceal the real nature of what was occurring. This displayed an appreciation of the moral wrongfulness of the conduct. Further, at the relevant time the appellant was of normal intelligence and development, and did not labour under any disability.[41]
[41] RYE v The State of Western Australia [2021] WASCA 43; (2021) 288 A Crim R 174; BDO v The Queen [2023] HCA 16; (2023) 277 CLR 518; RP v The Queen [2016] HCA 53; (2016) 259 CLR 641; KNL v The State of Western Australia [2023] WASCA 72.
There is no merit in the complaint regarding procedural fairness. At the hearing before the primary judge the sufficiency of the evidence as a whole was fully argued. The appellant had the opportunity to make submissions in that regard, and availed himself of that opportunity. The fact that those submissions were made in the context of the grounds of appeal and not the application of the proviso is immaterial. In any event, it is not correct to say that the proviso was not referred to at the hearing before the primary judge. Counsel for the respondent specifically mentioned it in her oral submissions.
There is no merit in any of the grounds of appeal. Leave to appeal should be refused and the appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MO
Associate to the Honourable Justice Hall
10 SEPTEMBER 2025
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