XYZ v The State of Western Australia
[2025] WASC 36
•10 FEBRUARY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: XYZ -v- THE STATE OF WESTERN AUSTRALIA [2025] WASC 36
CORAM: COBBY J
HEARD: 15 AUGUST 2024
DELIVERED : 10 FEBRUARY 2025
FILE NO/S: SJA 1096 of 2023
BETWEEN: XYZ
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE P J HOGAN
File Number : CC NO 65 & 66 of 2020
Catchwords:
Criminal law - Application for an extension of time to appeal - Historical sexual offences - Appellant less than 14 years of age at time of offences - Whether appellant lacked criminal responsibility - Error of reasoning - No substantial miscarriage of justice
Legislation:
Criminal Code (WA) s 29, s 183
Criminal Appeals Act 2004 (WA), s 10(3), s 14(2)
Result:
Application for extension of time refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | T F Percy KC & S Nigam |
| Respondent | : | M L Wong |
Solicitors:
| Appellant | : | Nigams Legal Pty Ltd |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
BDO v R [2023] HCA 16; (2023) 277 CLR 518
Filippou v R [2015] HCA 29; (2015) 256 CLR 47
KG v Firth [2019] NTCA 5
KNL v The State of Western Australia [2023] WASCA 72
Lancaster v R [1989] WAR 83
R v F (1998) QCA 97
RP v R [2016] HCA 53; (2016) 259 CLR 641
Rye v The State of Western Australia [2021] WASCA 43
Wells v The State of Western Australia [2013] WASCA 124
Wimbridge v The State of Western Australia [2009] WASCA 196
COBBY J:
The appellant was convicted following a trial in the Children's Court of Western Australia on 20 and 21 December 2021 on two counts of unlawful and indecent dealing with a child under 14 years during the period 7 May 1974 to 27 February 1975.
The complainant is the appellant's sister.
The appellant filed this appeal on 23 November 2023, seeking to set aside the decision of the learned magistrate on two grounds:
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 Criminal Code (WA) in relation to charge CC No 65 of 2020 (the first charge); and
2.that the Magistrate erred in fact and law in determining that the second charge, CC No 66 of 2020 (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.
The first charge involved the appellant rubbing the complainant's genitalia, there being an uncharged act that he had the complainant masturbate him.
The second charge was that the appellant had the complainant put her hand on his erect penis and had her masturbate him, with an uncharged act that the appellant touched her vagina.
There is no suggestion that the appellant did not engage in the conduct alleged. The appellant only challenges the learned magistrate's findings as to whether the appellant had the capacity to know that he ought not to have acted as he did.
For the reasons which follow, I will refuse the appellant an extension of time in which to appeal, there having been no substantial miscarriage of justice.
An appeal against a decision of a court of summary jurisdiction cannot be commenced later than 28 days after the decision unless the court orders otherwise,[1] although an extension of time to appeal will be granted if it is in the interests of justice to do so.[2]
[1] Criminal Appeals Act 2004 (WA), s 10(3).
[2] Wimbridge v The State of Western Australia [2009] WASCA 196 [43] (Wimbridge).
In Lancaster v R Malcolm CJ said that it is well‑settled that where there has been lengthy delay the court requires exceptional circumstances to be shown before granting an extension of time, unless it can be shown that there will be a miscarriage of justice if an extension is not granted.[3]
[3] Lancaster v R [1989] WAR 83, 85.
In Wimbridge v The State of Western Australia,[4] Buss JA (as his Honour then was) identified the five principal factors generally considered in deciding whether to exercise the discretion to extend time as follows:
First, the nature and extent of the delay. Secondly, the reasons for delay. Thirdly, the proposed grounds of appeal and their merits. Fourthly, the prejudice to the applicant if an extension of time is not granted. Fifthly, the prejudice (if any) to the State or the Crown if an extension of time is granted. These factors are not intended to be an exhaustive statement of the relevant considerations. No doubt, in a particular case, there may be additional factors.
[4] Wimbridge [45].
The appellant filed an affidavit in support of the application for an extension of time. Although the appellant refers to his mother and father both suffering from dementia in 2021, it appears that his mother was living with his brother and sister‑in‑law and his father, who was hospitalised at the time of the appellant's trial, was placed in a nursing home a few weeks later.
It would appear, therefore, that the appellant was not directly involved in caring for his parents.
The appellant's evidence is that he did not begin to 'properly consider' an appeal until around September 2022, about nine months after his convictions. His evidence as to when he instructed his present solicitors is less than clear, which is somewhat surprising when those solicitors still act for him, but he says that he provided the court documents and the transcript to his solicitors 'towards the end of 2022'.
Although the appellant made some reference to having sought treatment since May 2020 and having had to 'carefully consider pursuing [his appeal] against the further adverse effects doing so [would] have upon [his] family', including his sister, the appellant has not disclosed precisely why, having instructed solicitors in late 2022, he did not file his appeal notice until 23 November 2023, nearly a year later and almost two years after his conviction.
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.
The second ground cannot succeed if the first ground fails, since in those circumstances the appellant will have been found to have capacity to know that he ought not to have done the act charged at an earlier point in time. If the first ground succeeds, the question is whether the evidence established beyond reasonable doubt that the second offence occurred after the appellant's 14th birthday.
As to the fourth factor requiring consideration, the appellant was required to pay a fine totalling $1,000 in respect of both offences. Although I consider that penalty does not give rise to substantial prejudice, the appellant refers to having been registered as a sex offender. I accept that would constitute prejudice to him if he was not criminally responsible for his conduct.
Finally, the State did not suggest that it would suffer prejudice if an extension of time were to be granted.
The appeal having been filed nearly 22 months after the time limited to do so in circumstances where the explanation for the delay is less than compelling, I consider that the appellant has not demonstrated exceptional circumstances justifying the necessary extension of time. I accordingly turn to consider whether there would be a miscarriage of justice if the application for an extension of time were to be refused.
At the time of the offences,[5] s 183 of the Criminal Code provided:
Any person who unlawfully and indecently deals with a child under the age of 14 years or who incites such a child to deal with him or another is guilty of a crime and is liable to imprisonment with hard labour of seven years with or without whipping. And the term 'deal with' includes any act which, if done without consent, would constitute an assault as hereinafter defined.
[5] See s 7, Criminal Code Amendment Act 1972 (WA).
Section 29 of the Criminal Code provides:
A person under the age of 14 years is not criminally responsible for an act or omission unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.
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.
The principles governing a ground of appeal that a verdict is unreasonable or cannot be supported by the evidence are well known and have been summarised by the Court of Appeal in Wells v The State of Western Australia[6] as follows:
(1)the appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand;
(2)the question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty;
(3)that question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;
(4)in answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses;
(5)a doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt;
(6)if the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict;
(7)the setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial.
[6] Wells v The State of Western Australia [2013] WASCA 124 [13].
Although Wells v The State of Western Australia concerned a guilty verdict after a jury trial, the same principles apply where the appeal is from a trial before a magistrate or judge alone.[7]
[7] Filippou v R [2015] HCA 29; (2015) 256 CLR 47 [12], [82].
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.
The evidence before the magistrate at first instance comprised the evidence of the appellant's sister (the complainant), their mother, a female cousin of the complainant and appellant, and the appellant's ex‑wife.
The evidence of the appellant's ex‑wife was of peripheral relevance, and I do not recount it here.
The appellant did not give evidence.
The appellant was born on 22 October 1960.
The complainant was born on 7 May 1965. She was 9 or nearly 9 years of age at the time the events the subject of the first charge occurred. The magistrate found that the complainant was an 'accurate and credible witness'.[8]
[8] ts 184; ts 186.
She gave evidence that her family, including the appellant, emigrated to Australia in September 1973, initially staying in Wundowie with her father's cousin. In mid‑January 1974 the family moved to Duke Street, Northam, where they lived in a caravan in the back garden of a house occupied by her father's cousin and his family.
The complainant's evidence was that she and her family moved to a house in Forrest Street, Northam in mid‑April 1974. She and her twin sister shared a bedroom at the Forrest Street house.[9]
[9] ts 69.
At that time the appellant was approximately 13½ years old, and the complainant almost 9 years of age.
The complainant's evidence was that the appellant commenced abusing her after they had moved to the Forrest Street house. She said that abuse commenced in winter 1974, which she recalled because she was wearing her pink and orange flannelette pyjamas.[10]
[10] ts 68 ‑ 69.
In relation to the first charge, the complainant's evidence was that her mother was out at a meeting and her father away overnight for work. The appellant would babysit the other children while their parents were out.
On the first occasion, the complainant walked into her bedroom, and was surprised to find her brother lying on her bed. He had a 'really big storybook' with him. Her brother had the sheet over his middle, and was bare chested.
She went to her bed because she thought that her brother was going to read a story to her. The appellant then removed her pyjamas. He was naked under the sheet.
The complainant's evidence was that the appellant then 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.
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 then masturbated him. She was unsure for how long that went on.
Fluid then came out of his penis. The appellant then ran out of the room.
The appellant said nothing more to her that night or the next day.
The complainant's evidence was that the appellant returned a week later. He had the storybook again. She understood that he was not going to read her a story. Her evidence was that the appellant again removed her clothes, fondled her vagina 'for a long time', and then said to her that 'now it's your turn', whereupon he guided her hand to his testicles and then guided her hands to his penis. 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. The complainant recalled that it was summer when the events the subject of the second charge took place because she was wearing her baby blue baby doll summer pyjamas.
The abuse ceased when the complainant told her mother, who then disciplined the appellant.
The complainant was repeatedly cross‑examined as to when the abuse commenced. It was repeatedly put to the complainant by the appellant's then counsel that the abuse had started in early 1974 and had ceased by March 1974,[11] but the complainant was unshaken in her evidence that it had commenced in May or June 1974, and had continued for six months.
[11] ts 86, 95, 100, 104, 108, 105, 109.
In cross‑examination the complainant said that she had no recollection of the appellant having read her a story on either the first or second occasion, but was firm in her recollection that the appellant had the storybook with him on each occasion. Her evidence was that she could not say that the appellant had read her a story.[12]
[12] ts 87, 92, 98.
The appellant's mother was an unwilling witness, an arrest warrant having been issued to compel her attendance. Her evidence was that the appellant and the complainant attended a Catholic school in Northam, at which the appellant did 'very well'[13] and achieved 'very good' grades,[14] although she subsequently agreed with a 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'.
[13] ts 141.
[14] ts 141.
She said that the appellant had attended an all‑male school in England before the family emigrated to Australia in September 1973, and characterised the appellant as 'quite an innocent 13 year old' as a consequence.
The mother's evidence was that the appellant had a part‑time job working for the local butcher in March 1974, when he was 13, and that he 'used to cut up things' in that job.[15]
[15] ts 145.
The cousin gave evidence that she first met the appellant when his family first came to Australia in 1973, and that the appellant's family stayed with her family in Wundowie for a few months before the appellant's family moved to Northam.
Her evidence was that the appellant's family lived in a caravan at the back of the Wundowie property, during which time she saw the appellant pretty much every day.
The appellant's cousin was born on 15 May 1965, making her 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. The appellant asked her whether she would like to have a look in the caravan and, when she said 'yes', he told her to 'just wait here and come in in a minute'.[16]
[16] ts 152.
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.[17]
[17] ts 152.
The appellant said to come lay on the bed with him. She did so, lying on top of the covers. He asked her whether she would like to play a game, which he said was called 'find the worm'.
The appellant told her that if she went looking for the worm under the sheet and found the worm, he would give her a lolly.
The evidence of the cousin was 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 'That's good. You found it'.
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 that he had got changed into pyjamas when he was laying in the bed'.
Her evidence was that the appellant then asked her whether she would like to play again, to which she agreed. She again put her hand under the covers, 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.
The cousin could not recall how long she held the appellant's penis. Her evidence was that she could not recall how the incident came to an end, but when she left the appellant 'just told [her] not to tell anybody; that it would be our secret'.
She did not disclose what occurred between them.
The learned magistrate found the cousin's evidence to be truthful, accurate and reliable.[18]
[18] ts 187.
There was no suggestion by any witness that the appellant suffered from any disability.
The learned magistrate bore in mind that the allegations were historical, having occurred nearly 48 years prior to the trial. The magistrate found that the events giving rise to the first charge occurred in April 1974 and those giving rise to the second charge in February 1975.
His Honour found that the appellant having told the cousin 'don't tell anyone; its our secret' was evidence from which he could infer that the appellant had capacity before October 1974 to know that he ought not to do the act, finding further that the 'the evidence of capacity comes from primarily the evidence of his moral and intellectual development' of his mother and the complainant.
The learned magistrate found the events the subject of the second charge 'came to an end in the summer of 1974 going to 1975 - February 1975', finding that he was satisfied beyond reasonable doubt that those events had occurred after the appellant had turned 14 years of age.
The starting point is that an accused under the age of 14 years is presumed to be incapable of bearing criminal responsibility for his or her acts. The prosecution is obliged to adduce evidence to rebut that presumption to the criminal standard.
In Rye v The State of Western Australia,[19] the plurality stated:
… It is plain, from the text of s 29 of the Code, that a child who is aged at least 10 years but less than 14 years will not be criminally responsible for an act or omission unless the prosecution proves beyond reasonable doubt that at the time the child did the act or made the omission the child had 'capacity to know' that he or she ought not to do the act or make the omission. In particular, that part of s 29 is concerned with the child's capacity to know as distinct from the child's actual knowledge. Our opinion on this issue is supported by the preponderance of the appellate decisions in Queensland to which we have referred (original emphasis).
[19] Rye v The State of Western Australia [2021] WASCA 43.
The High Court considered the Queensland equivalent of s 29 in BDO v R.[20] In that case, the court said, as to a child's capacity to know and knowledge:
The requirement of the common law that it be shown that the child had knowledge of the moral wrongness of an act or omission, before the presumption can be rebutted, is not new. Drawing on what Bray CJ discussed in R v M, the plurality in RP v R held that the nature of the knowledge on the part of the child necessary to rebut the presumption is that an act is wrong according to the standards or principles of reasonable people. The standard, obviously enough, is that of an adult person. The knowledge is of the wrongness of the act as a matter of morality, not as contrary to the law. Because it is knowledge of a child it is necessary to prove knowledge of a serious wrongness, as distinct from mere naughtiness. It may be observed that aspects of what was said in RP v R were reflected in the trial judge's directions and to a lesser extent the judgment of the Court of Appeal. But both Courts distinguished a child's capacity to know, as provided by s 29(2), from their actual knowledge.
The plurality in RP v R went on to say that what suffices to rebut the presumption that a child defendant is doli incapax will vary according to the nature of the allegation and the particular child. No matter how obviously wrong the act or acts constituting the offence may be, the presumption cannot be rebutted merely as an inference from the doing of that act or those acts. There needs to be evidence from which an inference can be drawn, beyond reasonable doubt, that the child's development is such that they knew it was morally wrong, in a serious respect, to engage in the conduct. The development in question is the intellectual and moral development of the child.
Section 29(2) does not use the term 'knowledge' in its requirement as to what the prosecution must prove. It states that it must be proved that 'at the time of doing the act or making the omission' the child 'had capacity to know that [they] ought not to do the act or make the omission'. There is clearly a difference between what is meant by a person's capacity to know and their knowledge. The former has regard to their ability to understand moral wrongness, the latter to what in fact they know or understand. Whether the difference is great when applied to the circumstances of a particular case is another matter. (citations omitted)
[20] BDO v R [2023] HCA 16; (2023) 277 CLR 518 [13] ‑ [15].
As to what evidence is required to rebut the presumption, the High Court said in BDO:[21]
What will be sufficient to rebut the presumption in s 29(2) beyond reasonable doubt will vary from case to case. It will depend on the nature of the allegations and the child. It may, however, be that much of what was said in RP v R about matters of proof is relevant to the question of a child's capacity to know or understand that the act in question is morally wrong. In the first place, wrongness is expressed by reference to the standard of reasonable adults, from which it takes its moral dimension. It is not what is adjudged to be wrong by the law or by a child's standard of naughtiness. The capacity of a child to know that conduct is morally wrong will usually depend on an inference to be drawn from evidence as to the child's intellectual and moral development. It may be added that there may be a disability from which the child suffers which affects their capacity to know or understand. Such a disability may be a factor which is relevant, but the lack of disability - or proof that a child is of 'normal' mental capacity for their age - will clearly not be sufficient to prove the capacity to know or understand. (citations omitted)
[21] BDO v R [23].
In RP v R[22] the High Court considered how the presumption at common law that a child accused lacked criminal responsibility might be rebutted. In that case, the plurality stated:[23]
What suffices to rebut the presumption that a child defendant is doli incapax will vary according to the nature of the allegation and the child. A child will more readily understand the seriousness of an act if it concerns values of which he or she has direct personal experience. For example, a child is likely better able to understand control of his or her own possessions and the theft of others' property compared to offences such as damaging public property, fare evading, receiving stolen goods, fraud or forgery. Answers given in the course of a police interview may serve to prove the child possessed the requisite knowledge. In other cases, evidence of the child's progress at school and of the child's home life will be required. It has been said that the closer the child defendant is to the age of 10 the stronger must be the evidence to rebut the presumption. Conversely, the nearer the child is to the age of 14, the less strong need the evidence be to rebut the presumption. The difficulty with these statements is that they are apt to suggest that children mature at a uniform rate. The only presumption which the law makes in the case of child defendants is that those aged under 14 are doli incapax. Rebutting that presumption directs attention to the intellectual and moral development of the particular child. Some 10‑year-old children will possess the capacity to understand the serious wrongness of their acts while other children aged very nearly 14 years old will not.
[22] RP v R [2016] HCA 53; (2016) 259 CLR 641.
[23] RP v R [12].
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 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,[24] 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.[25]
[24] KNL v The State of Western Australia [2023] WASCA 72.
[25] At [121].
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.
However, 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.
I am satisfied that no substantial miscarriage of justice occurred in relation to the first charge. I find, 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.
In R v F,[26] Davies JA said that 'evidence of surrounding circumstances including conduct closely associated with the act constituting the offence may be considered for the purpose of proving the relevant capacity in relation to that offence'. In KG v Firth,[27] the Court of Appeal of the Supreme Court of the Northern Territory said that the categories of evidence which might be relevant to whether the appellant knew his conduct was 'wrong' in the relevant sense include any admissions made by the appellant, the nature of the alleged conduct (subject to the qualification that the presumption cannot be rebutted merely as an inference from the doing of the act), the circumstances surrounding the conduct, including any attempts of concealment or escape, and the appellant's background, including his education, upbringing, mental capacity and any previous criminal convictions.[28]
[26] R v F [1998] QCA 97.
[27] KG v Firth [2019] NTCA 5.
[28] See also KNL v The State of Western Australia [2023] WASCA 72 [84].
In my view, the conduct of the appellant surrounding the commission of the offences evidences that he both knew that his conduct was seriously wrong and that he made plans to have an explanation ready if his dealings with his sister and his cousin were discovered.
In dealing with his younger cousin, the appellant invited her into the caravan in which his family was living. Having obtained her agreement, he asked her to delay entering the caravan. During that time, he changed his clothes and got under the bed covers.
When his cousin entered the caravan, he suggested that they play a 'game', enticing her to do so with the offer of a lolly. He then had his cousin play the 'game' in a non‑sexual manner, before enticing her to play again with, it can be inferred, the intention of having her engage with him in a sexual manner.
The appellant then asked his cousin to keep what they had done secret.
His conduct on that occasion was for sexual gratification. It was not conduct which involved any degree of impulsivity on the appellant's part. Rather, what occurred indicates a fair degree of relatively sophisticated planning on the appellant's part, which included changing his clothes, offering his cousin a reward to play his 'game', and testing whether his cousin could be manipulated into playing that game by first engaging in a non‑sexual version of it.
That initial test, and his request that his cousin keep what had happened secret, is evidence of an appreciation and awareness of risk inconsistent with a finding that his conduct was merely naughty or mischievous. If his cousin had shown any disinclination to play the first time, the appellant could abandon the game. Once she had done so, it was open to the appellant, had his cousin told anyone what he had asked of her despite his request that she keep it secret, to claim that his cousin had only touched his thumb.
The appellant's conduct 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.
The appellant's dealing with his cousin therefore involved elements of planning and sexual predation, such that it was of a different character from the sexual play which can undoubtedly occur between children. His conduct was neither 'mischievous' nor 'naughty', but involved a deliberation which is inconsistent with any lack of understanding on the appellant's part that his conduct was seriously wrong.
The assessment of the appellant's conduct with his sister is therefore to be approached in the context of the appellant having engaged with his cousin in that calculated manner approximately four or five months earlier.
On each occasion the appellant dealt indecently with his sister, he waited for their parents to be out of the house, although I accept that of itself would not establish the requisite capacity. Nor would the similarity between his lying under the bedcovers in the caravan and having the sheet over him in the Forrest Street house when he dealt indecently with his sister.
The fact that the appellant had the large storybook with him on each occasion he was in his sister's bed takes on greater significance than it might otherwise have, when seen in the context of his earlier conduct with his cousin. The complainant's evidence in chief was that the appellant did not read her a story on either of the first two occasions, and in cross‑examination, that she did not recall him reading her a story.
In those circumstances, and viewed in the context of the appellant's dealings with his cousin a few months earlier, the storybook appears to have been intended to be available 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 inquiry of 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.
The fact that the complainant did not give evidence that the appellant had asked her to keep what they had done secret is of lesser significance than might have otherwise been the case, since the appellant's knowledge of the wrongness of his conduct with his sister can be inferred from his having asked his cousin to keep their secret, his dealings with them both being very similar.
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.
I turn to consider the merits of the second ground. The second ground of appeal is, essentially, that the learned magistrate erred in finding that it had been proved beyond reasonable doubt that the second offence occurred after the appellant had reached 14 years of age.
As already noted, the complainant's family moved to the Forrest Street house in mid‑April 2023. Her evidence was that the appellant commenced indecently dealing with her in May or June 1974, which she fixed by reference to what she was wearing on the first occasion, and that the abuse continued for six months, which she recalled, in part at least, because of what she was wearing on the last occasion.
The complainant was not asked how long after the family had moved to Forrest Street had the appellant commenced the relevant conduct. There was no evidence as to the weather in Northam in April, May and June 1974, nor as to the later months of that year.
As the appellant's family were already living in Northam prior to moving to Forrest Street, there is no reason to think that the appellant's conduct could not have commenced upon the family moving to the Forrest Street house. There is nothing to indicate that the appellant's mother had not already formed the social relationships which took her out of the house at night each week by the time the family had moved to Forrest Street.
The learned magistrate erred in finding that the abuse continued until February 1975.[29] That finding was not open on the complainant's evidence, which supported a finding that the appellant's conduct ceased in November or December 1974.
[29] The learned magistrate found that the offending continued to February 1975: ts 185, which appears to have been due to an arithmetical error on his part.
Given the lack of precision, through no fault of the complainant, as to when the family moved to Forrest Street, when the appellant's conduct commenced and when it ceased, I consider that there is a doubt as to whether the last occasion the appellant dealt indecently with the complainant occurred prior to the appellant's 14th birthday on 22 October 1974, accepting her evidence that the abuse continued for six months, which cannot be resolved by taking into account the advantage the learned magistrate had in seeing the witnesses give evidence.
I therefore find that the magistrate could not, on the evidence, have been satisfied beyond reasonable doubt that the appellant possessed capacity to know that his conduct was seriously wrong at the time of the second charge because it occurred after the appellant's 14th birthday.
However, I find that no substantial miscarriage of justice has occurred in relation to the second charge, because I find 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 charge, at the latest.
There being no miscarriage of justice, I refuse the appellant's application for an extension of time in which to appeal, and dismiss the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VR
Associate to the Hon Justice Cobby
10 FEBRUARY 2025
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