ZHA v The State of Western Australia

[2020] WASCA 101

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   ZHA -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 101

CORAM:   BUSS P

MAZZA JA

BEECH JA

HEARD:   3 DECEMBER 2019

DELIVERED          :   23 JUNE 2020

FILE NO/S:   CACR 102 of 2019

BETWEEN:   ZHA

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   LONSDALE DCJ

File Number            :   IND 804 of 2018

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of three counts of child sex offending against his son - Whether defence counsel's conduct of the appellant's case at the trial occasioned a miscarriage of justice - Whether the trial judge misdirected the jury in relation to evidence given by the complainant's mother

Legislation:

Criminal Code (WA), s 329(2), s 329(9)(a)

Result:

Appellant's applications in the appeal dated 16 September 2019 and 23 October 2019 granted
State's application in the appeal dated 2 October 2019 granted
State's application in the appeal dated 1 November 2019 dismissed
Leave to appeal in relation to particular (i) of ground 1 granted
Leave to appeal on ground 1 otherwise refused
Leave to appeal on ground 2 refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	Mr A O Karstaedt
Respondent	:	Mr B M Murray & Ms K C Cook

Solicitors:

Appellant	:	NR Barber Legal
Respondent	:	Director of Public Prosecutions (WA)

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

Attwood v The Queen [1960] HCA 15; (1960) 102 CLR 353

Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434

Colley v The State of Western Australia [2015] WASCA 79

Donaldson v The State of Western Australia [2007] WASCA 216; (2007) 176 A Crim R 488

Durani v The State of Western Australia [2012] WASCA 172

Jeffery v The State of Western Australia [2018] WASCA 219

McMahon v The State of Western Australia [2010] WASCA 143

Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1

Morgan v The State of Western Australia [No 2] [2019] WASCA 185

R v Barton [2004] NSWCCA 229

R v D (1996) 86 A Crim R 41

R v DVB [2012] QCA 96

R v Rowton (1865) Le & Ca 520; 169 ER 1497

Sharma v The Queen [2011] VSCA 356

TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124

JUDGMENT OF THE COURT:

1. This is an appeal against conviction.

2. The appellant was charged on indictment with three counts of child sex offending against his son, H.

3. Count 1 alleged that on a date unknown between 2 April 2015 and 4 July 2015, the appellant sexually penetrated H, a child whom he then knew to be his lineal relative, by introducing his penis into H's mouth and that H was a child under the age of 16 years, contrary to s 329(2) read with s 329(9)(a) of the Criminal Code (WA) (the Code).

4. Count 2 alleged that on a further date unknown between 5 July 2015 and 5 November 2015, the appellant sexually penetrated H, a child whom he then knew to be his lineal relative, by introducing his penis into H's mouth and that H was a child under the age of 16 years, contrary to s 329(2) read with s 329(9)(a) of the Code.

5. Count 3 alleged that on a further date unknown between 30 April 2017 and 31 May 2017, the appellant sexually penetrated H, a child whom he then knew to be his lineal relative, by introducing his penis into H's mouth and that H was child under the age of 16 years, contrary to s 329(2) read with s 329(9)(a) of the Code.

6. The appellant pleaded not guilty to each count.

7. On 9 April 2019, after a trial before Lonsdale DCJ and a jury, the appellant was convicted as charged on all of the counts.

8. The appellant appeals on two grounds.  Ground 1 alleges that defence counsel's conduct of the appellant's case at the trial occasioned a miscarriage of justice.  This ground is supported by numerous particulars.  Ground 2 alleges that her Honour misdirected the jury in relation to evidence given by H's mother, and that the misdirection occasioned a miscarriage of justice.

9. We would grant leave to appeal in relation to particular (i) of ground 1, but otherwise refuse leave to appeal.  Neither ground 1 nor ground 2 has been made out.  The appeal must be dismissed.

Overview of the State's case at the trial

1. The prosecutor opened the State's case at trial as follows.

2. The appellant had three sons to H's mother, H being the eldest.[1]  Initially, they all lived in the family home.[2]  During this period the children would often sleep in the bed with their parents.[3]

   [1] Trial ts 52.

   [2] Trial ts 52.

   [3] Trial ts 53.

3. The marriage was unhappy.[4]  The appellant had a temper and would regularly lash out and hit the children, particularly H, who was fearful of doing anything to enrage his father.[5]

   [4] Trial ts 52.

   [5] Trial ts 52 - 53.

4. The appellant and H's mother separated in October 2013, but remained living under the same roof in different bedrooms.[6]  After their separation, the children would sleep with one or other of their parents in their respective bedrooms.[7]

   [6] Trial ts 53.

   [7] Trial ts 53.

5. In December 2014, the appellant moved out of the family home but  returned in April 2015.[8]  H's mother then moved into other accommodation.[9]  She and the appellant shared equal custody of the children who would spend alternate weeks with each.[10]

   [8] Trial ts 53.

   [9] Trial ts 53.

   [10] Trial ts 53.

6. The State alleged that the incidents the subject of the first two counts occurred while H and his brothers were living with the appellant in the family home.[11]

   [11] Trial ts 60.

7. Count 1 was alleged to have occurred between 2 April 2015 and 4 July 2015.  In an electronically recorded interview on 10 July 2017, H said that:

   (a)he and his two younger brothers were with their father in bed in the master bedroom; they had been watching 'The Simpsons' on the television in that room;

   (b)he and the two younger boys fell asleep;

   (c)he was woken some time later, in the middle of the night, by his father pushing him down the bed until he was at the bottom of the bed;

   (d)his father forcefully shoved his penis into his (H's) mouth, pushing it in and out; and

   (e)he pretended to be asleep and slowly climbed back up the bed.[12]

   [12] Trial ts 53 - 54, 60.

8. Count 2 was alleged to have taken place on another occasion about three or four months later.  When H and his brothers were asleep in their father's bed at the family home, the appellant once again pushed his penis into H's mouth.[13]  H realised what was going on and 'he pulled out straight away'.[14]  Again, H slowly climbed back up the bed and, this time, he held onto one of his brothers, hugging him.[15]

   [13] Trial ts 54.

   [14] Trial ts 54.

   [15] Trial ts 54.

9. On neither of these occasions did H confront the appellant, nor did he complain immediately to anyone about what had happened.[16]  The prosecutor outlined that H would give evidence that, at least until July 2017, H believed that his father was unconscious and did not realise what he was doing and that H did not say anything to his father because he was afraid that his father would become enraged and be physically violent towards him.[17]

   [16] Trial ts 53, 54.

   [17] Trial ts 54.

10. Eventually, the family home was sold and the appellant moved to his own house.[18]

    [18] Trial ts 55.

11. Count 3 was alleged to have occurred in that house, sometime in May 2017, when H and the appellant were alone.[19]  H was there without his brothers because he had gone to stay with the appellant before his scheduled week, due to fights H had been having with his mother.[20]  According to H:

    (a)after he had gone to sleep, he had woken because he was scared of the dark;

    (b)he then got into the appellant's bed and hugged him;

    (c)while he was asleep, the appellant pushed him underneath the quilt and put his penis in his (H's) mouth; and

    (d)he was awoken to the sensation of something in the back of his lungs and a feeling that his throat was hurting; he had a revolting sour taste in his mouth.[21]

    [19] Trial ts 54, 60.

    [20] Trial ts 55.

    [21] Trial ts 55.

12. H did not make an immediate complaint about this incident, but kept more of a distance from the appellant for the rest of his three week stay.[22]

    [22] Trial ts 55.

13. The State case was that, on 9 July 2017, when the children were due to go to the appellant's house for the week, H told his mother that he did not want to go and she agreed to take him separately later that day after his brothers had gone in the morning.[23]  The prosecutor said that H would give evidence that he was trying to buy time to tell his mother what his father had done to him.[24]  That afternoon, when driving to the appellant's house, H told his mother that the appellant 'sexually abuses me'.[25]  She turned the car around and they returned home.  Once there, while still in the car, in the garage, she asked H what he meant.[26]  H said, 'He puts his penis into my mouth when I am sleeping'.[27]  She contacted the police and the appellant was arrested on 13 July 2017.[28]

    [23] Trial ts 55.

    [24] Trial ts 55.

    [25] Trial ts 56.

    [26] Trial ts 56.

    [27] Trial ts 56.

    [28] Trial ts 56.

14. The prosecutor told the jury that, although his mother would corroborate H's evidence as to the appellant's violence, the State case would rely largely upon H's evidence.[29]  The prosecutor said that the real issue for each count would be whether the sexual penetration happened.[30]

    [29] Trial ts 57, 60.

    [30] Trial ts 57, 60.

15. H's evidence comprised:

    (a)his electronically recorded interview of 10 July 2017; and

    (b)his pre-recorded evidence of 25 October 2018.

16. H's evidence in his electronically recorded interview, which he confirmed in his examination in chief in the pre-recorded evidence, was consistent with the prosecutor's outline in opening.

17. H's mother gave evidence that:

    (a)when living in the family home, H would end up sleeping in his parents' bed six out of seven nights and that this continued even after they had separated and were sleeping in separate rooms;[31]

    [31] Trial ts 70 - 71.

    (b)when she moved out of the family home, she and the appellant came to an amicable shared custody arrangement whereby the children lived with her one week and the appellant the next;[32]

    [32] Trial ts 72.

    (c)when she and the appellant were still in a relationship, she thought he was a good father to his children which is why she was very happy for him to have split custody; however, he could be quite volatile and, if things did not go his way, he could be quite violent.[33]

    [33] Trial ts 73.

    (d)the appellant would smack the children, including H, on their faces or behinds for disciplinary reasons about a couple of times a week;[34]

    [34] Trial ts 74.

    (e)on one occasion, when the family was coming home and H, aged about 5 to 6, was throwing a tantrum because he did not want to get out of the car, the appellant grabbed him by his hair and dragged him across the garage into the house;[35]

    [35] Trial ts 74 - 75.

    (f)in the second part of May 2017, H stayed with his father for three weeks.[36]  The following exchange took place in evidence in chief:[37]

    [36] Trial ts 75.

    [37] Trial ts 75.

    Were there any times at which [H] spent a longer period either with yourself or with [the appellant]?---Yes. In May 2017, he turned against me. He just said to me that I was controlling, manipulative. And he didn't want to live with me, and it was more fun living with dad cos I had rules in my house. So he stayed with his father for three weeks.

    …

    What contact did you have with [H] in the three weeks that he was at his father's house?---I tried seeking him out, I tried messaging him, I tried to go in and look for him at school - in school to have a chat with him, but he was resisting all contact with  me. He was very angry with me.

    And how did it end up that he came back to stay with you at the end of the three weeks?---I coaxed him. 

    (g)H disclosed to her that the appellant was sexually abusing him.[38]  She gave the following evidence regarding this disclosure:[39]

    [38] Trial ts 72.

    [39] Trial ts 75 - 77.

    Moving then to Sunday, 9 July 2017, which parent were the boys scheduled to be with that day?---Their father.

    So where were the three boys that day?---They were at home with me and they went - the younger two went to their father's work as per the usual exchange on a Sunday. But [H] refused to go. He wanted to stay back till evening.

    So what time did the two younger boys go to their father's house?---Midday.

    So why was it that [H] stayed with you then until later in the day?---He said he wanted to go shopping for his brother's birthday, which was coming up the following week.

    What was his demeanour like that day?---Fidgety.

    So did you go shopping?---We did.

    What did you do after that?---Came back home and I asked him to pack his stuff, because it was almost 5 o'clock and I said he needed to go back to his dad's house. And he became quite aggressive and angry. And he packed, got in the car, but he was slamming doors and - and he said, "I don't know why you're forcing me to go back there".

    So you said he got in the car. Did you start driving him over to his father's house?---Absolutely.

    Was anything said between the two of you in the car on the way over?---While we were driving, I said to [H], "You can't do this. You can't play these games where you say you want to stay with dad for three weeks, you turn against me, and the [sic] now you tell me you don't want to go back to dad's house. We're your parents. You know, you need to be with us half and half. It's fair. It's how healthy children actually develop, by having both their parents". And he turned round and looked at me, and he said, "Mum, you don't understand. He sexually abuses me".

    What did you do at that point?---Can I have a moment, please? I was heartbroken but I turned the car round and I drove back to my house without saying anything else to him.

    What happened when you got home?---Pulled into the garage, I shut the garage door, and I said to him, "Define what you meant when you say he sexually abuses you".

    What did [H] say in response?---He said, "He puts his penis into my mouth while I'm sleeping".

    As a result of what [H] told you, you then went on to contact police, is that right?---I contacted my friend [J], who also works for the Department of Education, and asked her to come over because I needed a second set of ears that's unbiased to hear it and determine whether it was the truth.

    All right. (Indistinct), all right?---Yeah. And then I called the police.  (emphasis added)

18. The italicised evidence is the subject of particular (g) of ground 1 and ground 2.

Overview of the appellant's case at the trial

1. The appellant was represented at the trial by a very experienced criminal defence lawyer.

2. The appellant gave evidence at the trial.  Defence counsel did not call any other witnesses.

3. The appellant's case at the trial was that none of the offending had occurred.

4. The defence case theory was that H was unhappy with the custody and access arrangements made by the appellant and his former wife in relation to him.  H made fabricated allegations against the appellant, alternatively H had confused his imagination or dreams with reality, because he did not like living in two homes (that is, the appellant's home and his former wife's home).  H wanted to live in one home.  After H had made the unfounded allegations against the appellant, his unhappiness was resolved.  Since H made the allegations he had resided solely with his mother.

H's child witness interview and H's pre‑recorded evidence

1. On 10 July 2017, H participated in an electronically recorded interview with a child witness interviewer (the child witness interview).

2. On 25 October 2018, H's evidence was pre‑recorded.

The appellant's electronically recorded interview with the police

1. On 13 July 2017, the appellant participated in an electronically recorded interview with the police.

2. A directions hearing in the District Court was listed for 8 February 2019 to determine the admissibility of the record of interview.

3. However, on 7 November 2018, the office of the Director of Public Prosecutions (WA) informed the District Court and defence counsel that the State had decided not to tender the record of interview at the trial.

The additional evidence sought to be adduced in the appeal

1. Each of the appellant and the State applied for leave to adduce additional evidence in the appeal.

2. The appellant made two applications in the appeal.  The first application was dated 16 September 2019, the relevant evidence being the appellant's affidavit sworn 10 September 2019.  The second application was dated 23 October 2019, the relevant evidence being a number of affidavits from people who deposed as to the appellant's good character and reputation.

3. The State made two applications in the appeal.  The first application was dated 2 October 2019, the relevant evidence being the affidavit of William Berkley Harris sworn 2 October 2019, who was the appellant's defence counsel at the trial.  The second application was dated 1 November 2019, the relevant evidence being Mr Harris' affidavit sworn 15 October 2019.

4. The applications for leave were referred to the hearing of the appeal.  At the hearing, counsel for the State abandoned the State's second application in respect of Mr Harris' affidavit sworn 15 October 2019.  The State's second application dated 1 November 2019 should be dismissed.  The appellant's first and second applications and the State's first application dated 2 October 2019 should be granted.

5. The appellant and Mr Harris were cross‑examined on their affidavits at the hearing.

The appellant's affidavit sworn 10 September 2019

1. In his affidavit, the appellant asserted, relevantly, as follows:

   (a)Mr Harris was assigned by Legal Aid (WA) to represent the appellant [6].

   (b)In August 2018, the appellant met Mr Harris.  Mr Harris asked the appellant what the case was about.  The appellant explained the context in which the charges arose, namely custody, parenting and manipulation issues between his former wife (H's mother) and himself concerning their three sons, including H [7] ‑ [8].

   (c)The appellant told Mr Harris that he had text messages and WhatsApp messages from H's mother relating to H and custody issues. The messages included screenshots of messages between H and his mother which she had sent to the appellant. The appellant told Mr Harris that these messages were important and relevant to the charges. The appellant told Mr Harris about H's mother's ill feeling and anger towards him. H's mother had said that she would hurt the appellant 'in two places by taking [his] children away and ruining [his] reputation'. The appellant told Mr Harris that he believed H's mother had influenced H to make the allegations. Mr Harris advised the appellant that he must not 'point fingers' at H's mother. Mr Harris said he did not want to know about the 'matrimonial stuff'. Mr Harris also said that he had done 'a lot of cases of this sort and did not want to know about the matrimonial issues' [9].

   (d)Mr Harris told the appellant that he did not need to see the text messages or the WhatsApp messages between H's mother and the appellant. Mr Harris added that those matters were for the Family Court and he did not need to see 'all that stuff'. Mr Harris also said there was no point giving him the messages because he would not look at them [10].

   (e)The appellant told Mr Harris that, prior to making the allegations, H had wanted to live fulltime with him, despite there being at the time a shared custody arrangement between H's mother and the appellant. The appellant told Mr Harris that H had come to stay with him. After H had been with the appellant for three weeks, H had said that he did not want to return to live with his mother. Nevertheless, the appellant took H to his mother's home to endeavour to resolve the issues between H and his mother. The appellant 'mediated in a [four or five] hour meeting' between H and his mother. The appellant assisted in getting H to 'make up with' H's mother and, after a lot of resistance, H agreed to stay with her for a week. The appellant told Mr Harris that after the meeting H's mother contacted him and told him that H had left her home and was walking away. The appellant endeavoured to find H but, after a while, H returned to his mother's home [11].

   (f)The appellant told Mr Harris that, after the meeting at which the appellant had mediated, the shared custody arrangement of one week with each parent continued. H stayed with the appellant each alternate week. H's mother then went on a two week holiday to Malaysia with the children. The appellant told Mr Harris that when they returned from Malaysia the appellant collected them from the airport. H came 'running to [the appellant]'. H said 'daddy' and gave the appellant a 'big hug'. The appellant told Mr Harris that he had a video of that interaction. The appellant told Mr Harris that the children continued to stay with the appellant each alternate week after they had returned from Malaysia and before H made the allegations [12].

   (g)During the meeting in August 2018 Mr Harris did not make any notes.  The appellant gave Mr Harris 'the prosecution documentation'.  Mr Harris told the appellant that he would 'read through the documentation' and call the appellant if he needed to [13] ‑ [14].

   (h)In about September 2018, the appellant met with Mr Harris again. A friend of the appellant's, PS, accompanied him. At the meeting PS told Mr Harris that she would be willing to give character evidence for the appellant. PS said that she knew a number of other people who would be willing and suitable character witnesses. The appellant confirmed that to be the case. Mr Harris rejected the suggestion that character evidence be called. He said that it was unnecessary and that he would not do so [15].

   (i)At the time the appellant had, and he continues to have, a number of associates who would be willing to give evidence as to his good character. These people have knowledge of his good reputation in the business community and generally. They also have knowledge of his 'positive interactions with [his] children and the positive relationship between [H] and [himself]' [16].

   (j)At the meeting in about September 2018, some other matters were discussed briefly. Mr Harris said that H had been dreaming and that H was not even sure that anything had happened [17].

   (k)On 25 October 2018, the pre‑recording of H's evidence occurred. In October 2018, prior to the pre‑recording, the appellant, accompanied by his partner MB, had another meeting with Mr Harris [18].

   (l)At the meeting in October 2018, the appellant endeavoured to tell Mr Harris about the matrimonial and custody issues and the background to the charged offences.  Mr Harris said it was common to have marital breakdowns and custody issues and he did not need to know about these matters.  The appellant endeavoured to tell Mr Harris again about the text messages and the WhatsApp messages and that they referred to H's mother seeking full custody and getting legal advice.  The appellant also told Mr Harris about H having stayed with him for three weeks and that H had wanted to remain with him and not return to his mother.  The appellant pointed out to Mr Harris that the allegations H had made against him therefore did not make sense [19] ‑ [20].

   (m)At the meeting in October 2018 the appellant endeavoured to suggest to Mr Harris questions that Mr Harris should ask of H in cross‑examination.  Mr Harris agreed to the appellant sending him some questions for the cross‑examination of H.  Mr Harris said that he would look at the questions and consider whether he should ask them.  At the meeting MB spoke about character evidence.  She told Mr Harris that she and other people who knew the appellant could provide this evidence.  Mr Harris rejected MB's suggestion and told her that character evidence was not needed.  At the meeting the appellant told Mr Harris that H's mother had informed him, before the allegations were made, that she had found H watching pornography [21] ‑ [23].

   (n)On 9 October 2018, the appellant sent an email to Mr Harris attaching some questions relating to the cross‑examination of H. Mr Harris did not discuss the email or the questions with the appellant [24].

   (o)On 22 October 2018, the appellant sent another email to Mr Harris in relation to the pre‑recording of H's evidence. This email set out some suggested topics relating to the cross‑examination of H [25].

   (p)At the pre‑recording of H's evidence on 25 October 2018, the appellant was 'very concerned by [Mr Harris'] questioning of [H]'. The appellant endeavoured to speak to Mr Harris during adjournments, but Mr Harris 'looked away and ignored [him]' [26].

   (q)After the pre‑recording, the appellant queried with Mr Harris his questioning of H. Mr Harris responded with words to the effect 'it's too late now'. Mr Harris told the appellant that the pre‑recording had gone well. Mr Harris said that the appellant 'did not have anything to worry about' and that the appellant would 'win the case'. Mr Harris told the appellant that he would be on holiday in December and January and the appellant was not to contact him [27].

   (r)The appellant's trial was listed to take place on 8, 9 and 10 April 2019.  The appellant was very concerned about Mr Harris' conduct of his case, including the manner in which Mr Harris had cross‑examined H.  The appellant approached another lawyer, Dr Barber of N R Barber Legal.  After discussions with Dr Barber, the appellant sent an email to Legal Aid (WA) on 18 January 2019 stating that his relationship with Mr Harris had broken down.  The appellant requested that his file be transferred to Dr Barber.  On 31 January 2019, the appellant sent another email to Legal Aid (WA) requesting that his file be transferred to Dr Barber as soon as possible.  Legal Aid (WA) informed the appellant that it was not possible for his file to be transferred [28] ‑ [32].

   (s)In February 2019, the appellant met with Mr Harris again. The appellant endeavoured again to inform Mr Harris about the background to the allegations including the text messages. The appellant offered to provide Mr Harris with a chronology of relevant events. Mr Harris said that he did not want a chronology [33].

   (t)On or about 4 April 2019, the appellant found an item on H's YouTube playlist. The item was a TED Talk video titled 'Can you really tell if a kid is lying?'. The video was concerned with whether adults can detect children's lies. The appellant took screenshots of the video and the playlist [34].

   (u)On 4 April 2019, the appellant sent an email to Mr Harris. The appellant attached to the email a Word document comprising a letter to Mr Harris, text messages and WhatsApp messages between H's mother and himself and the screenshots of the video and the YouTube playlist which the appellant had found on or about that date [35].

   (v)On 5 April 2019, the appellant met with Mr Harris again.  The appellant told Mr Harris about the YouTube video on H's playlist.  The appellant gave Mr Harris a hardcopy of the attachment he had sent by email on 4 April 2019 together with some annotations.  The appellant endeavoured to discuss with Mr Harris the questions he could ask H's mother in cross‑examination.  Mr Harris responded, 'don’t tell me, that's my job'.  Mr Harris was not interested in the appellant's suggested questions.  The appellant had decided to give evidence at the trial.  He gave Mr Harris suggestions as to questions Mr Harris should ask him concerning H and the custody issues.  The appellant wanted to give evidence about all relevant matters.  Mr Harris insisted that all he would ask the appellant in evidence was whether he had committed the offences or not.  Mr Harris said that this would be his only question and that the appellant's 'job' was to say 'no' [36] ‑ [39].

   (w)At the pre‑recording of H's evidence on 25 October 2018, Mr Harris had said to H, 'you wanted to stay with mum and you didn’t want to stay with dad, isn’t that right?'. According to the appellant, that statement was not correct and did not reflect what the appellant had previously told Mr Harris. The appellant had previously told Mr Harris that before the allegations were made, and during and at the end of the three week period that H stayed with the appellant, H had wanted to live with the appellant and not with his mother [41].

   (x)At the trial, Mr Harris put to H's mother in cross‑examination that H was angry with her because he liked living with her and wanted her to have full custody of him. Mr Harris also put to H's mother that H did not want shared custody and wanted to be with her on a fulltime basis. According to the appellant, those propositions were not correct. The appellant had never made statements to that effect to Mr Harris. What the appellant had told Mr Harris was that H had wanted to live with the appellant fulltime and did not want his mother to have shared custody. That was why H was living with the appellant for the three week period and why H did not want to return to his mother [42].

   (y)Mr Harris did not at any time take a statement or proof of evidence from the appellant [43].

   (z)Mr Harris did not ask the appellant the month during which H stayed with the appellant for the three week period. Although the evidence at the trial was that the three week period occurred in May 2017, the period in fact occurred in March 2017 [44].

   (aa)While Mr Harris was acting for the appellant, Mr Harris was 'resistant to being provided with information relevant to the charges and discussing details of the case and dismissive of [the appellant's] attempts to provide suggestions regarding the case' [45].

The appellant's evidence at the hearing of the appeal

1. The appellant gave evidence at the hearing of the appeal, relevantly, as follows.

2. In evidence in chief, in addition to repeating the substance of various aspects of his affidavit, the appellant said, relevantly:

   (a)As stated in [44] of his affidavit, the three week period when H stayed with the appellant, without the other children, occurred in March 2017, not May 2017, as could be seen from text messages between the appellant and H's mother (appeal ts 63 ‑ 67).

   (b)Apart from the three week period, H had never stayed with the appellant without the other two children (appeal ts 64).

   (c)When the appellant first met with Mr Harris in 2018 the appellant believed that Mr Harris had not watched H's child witness interview.  The appellant added 'whether [Mr Harris had or had not] … he indicated by flicking through … the [transcript] that it was all made up' (appeal ts 72).

   (d)When the appellant met with Mr Harris in October 2018, before the pre‑recording of H's evidence, Mr Harris told him that at the trial he was not going to play the appellant's electronically recorded interview with the police (appeal ts 73).

3. The appellant gave this evidence, relevantly, in cross‑examination:

   (a)The appellant rejected counsel for the State's proposition that Mr Harris did not say, while flicking through the transcript of H's child witness interview, that 'it was all made up' (appeal ts 74).

   (b)The appellant also rejected counsel for the State's proposition that Mr Harris had told the appellant that 'he had got [the appellant's] record of interview excluded' (appeal ts 74).

   (c)The appellant denied that Mr Harris had told the appellant that in H's child witness interview H was 'credible' and 'believable' (appeal ts 74).

   (d)The appellant denied that when he gave evidence at the trial in April 2019 he understood that the three week period when H stayed with him occurred in May 2017 and not in March 2017 (appeal ts 75).

   (e)However, the appellant then admitted that during his evidence at the trial he agreed with the prosecutor on two separate occasions that the three week period occurred in May 2017.  The appellant explained that 'at that point' he did not 'pay attention to the month'.  The appellant said that when he gave that evidence at the trial he believed he was telling the truth.  However, the appellant did not accept that it followed that when he was giving his evidence at the trial he thought that the three week period occurred in May 2017.  He said that he did not 'pay particular attention … when [he] was asked [about it at the trial]' and he 'answered with a "yes'''.  Next, the appellant said that he did care whether what he said in evidence at the trial was true, but he '[did not] hear the question properly and [he] … disregarded the month at that point'.  According to the appellant, his response at the trial was based on a combination of not hearing the question and disregarding the month.  The appellant claimed that when he gave his evidence at the trial he knew that the relevant month was March 2017 and not May 2017 (appeal ts 75 ‑ 78).

   (f)The appellant accepted that a significant number of the text messages and WhatsApp messages that he had annexed to his affidavit sworn 10 September 2019 involved H's mother telling the appellant about matters concerned with H and his behaviour.  In some of those messages, H's mother asked the appellant 'to be involved'.  In one of the messages she put a proposal to the appellant about shared custody (appeal ts 78 ‑ 79).

   (g)Counsel for the State put to the appellant two text messages from H's mother to the appellant. 

   (h)The first text message read, relevantly:

   You live in a bubble of self‑inflation.  You think people adore you.  Strangers tell me you are much‑hated.  I had no idea what you had been up to but have been hearing from various business people that you are going to be dragged to court very soon for cheating people.

   (i)The second text message read, relevantly:

   I feel sorry that the boys will soon see you for what you truly are - a womaniser who uses and abuses women under a supreme cloak of helping everyone and building people up.

   …

   I hope the boys don’t turn out like you.  May they be honest and live a life filled with integrity with utmost respect for women.

   There's a special place in hell for you as I have told you before, however, as it appears, your hell will soon be Perth.

   (j)Counsel for the State put to the appellant that there was no mention in either the first or the second text message about the custody of the children and that H's mother's comment about there being 'a special place in hell' for the appellant was made in the context of other problems that the appellant was having at the time.  The appellant accepted that those text messages were dealing with something 'quite different [from] and unconnected [to]' his children (appeal ts 80).

   (k)The appellant accepted that there was nothing in the text messages or the WhatsApp messages from H's mother about the mother having discovered that H was watching pornography.  However, the appellant reiterated that H's mother had told the appellant that she had discovered that H was watching pornography on YouTube.  However, the appellant did not check H's playlist prior to 4 April 2019.  The appellant said he did care about his son watching pornography, but he did not look at all of the items on H's playlist (appeal ts 80 ‑ 82).

   (l)The appellant said that when he accessed H's playlist and found the YouTube video about lying, the appellant watched the video.  The appellant accepted that H could merely have saved the video on his playlist but not watched it.  However, he doubted that was the situation (appeal ts 82).

   (m)H's mother and the children travelled to Malaysia for two weeks.  They departed on 30 May 2017 and returned on 13 June 2017 (appeal ts 83).

   (n)The appellant accepted that he had not included in his affidavit sworn 10 September 2019 the evidence he gave in evidence in chief that at the appellant's first meeting with Mr Harris in 2018 Mr Harris indicated by flicking through the transcript of H's child witness interview that 'it was all made up'.  The appellant denied, however, that his evidence on that issue had been fabricated (appeal ts 83 ‑ 84).

   (o)The appellant said that Mr Harris told him that Mr Harris had to be very careful because he did not want to make H cry and that making H cry would 'lead to losing the jury' (appeal ts 84).

   (p)The appellant denied that Mr Harris had told him that there would be 'problems attacking [H's mother]'.  According to the appellant, Mr Harris merely said 'no pointing fingers at your ex‑wife because that's matrimonial issues' (appeal ts 84).

   (q)Mr Harris advised the appellant that it would be 'a good idea for [him] to give evidence'.  However, the appellant denied that Mr Harris had told him that the appellant was 'a trained salesman' and that he should not have 'any trouble persuading at least some of the jurors'.  Mr Harris never told him that the appellant 'might appear to be a truthful or a persuasive witness' (appeal ts 85).

   (r)The appellant denied that Mr Harris had explained to him why there was no point in adducing the evidence as to the appellant's character.  In particular, the appellant denied that Mr Harris had said 'it was counter‑productive in these sorts of cases, that time and again people with good character … commit these sorts of offences'.  He also denied that Mr Harris had told him that 'judges can tell the jury things like that people commit crimes for the first time, even if they've got good character'.  He also denied that Mr Harris had suggested to him that 'the better idea would be to have people in the gallery who could be seen to be supporting [him]' (appeal ts 85 ‑ 86).

4. In re‑examination, the appellant said, relevantly, that Mr Harris did not discuss with him the date on which H came to stay with the appellant for the three week period.  At the time of the trial the appellant did not believe that anything turned on the date that H came to stay.  In his mind, at the time of the trial, it was not important whether it was March 2017 or May 2017 (appeal ts 87).

Mr Harris' affidavits sworn 2 October 2019 and 15 October 2019

1. In his affidavit sworn 2 October 2019, Mr Harris asserted, relevantly, as follows:

   (a)Mr Harris is a barrister and a solicitor of the Supreme Court of Western Australia. He has been admitted to practice for more than 50 years. He has successfully defended numerous clients in jury trials, including clients charged with sex offences against children [1].

   (b)Mr Harris received an assignment from Legal Aid (WA) to act for the appellant. The papers he received from Legal Aid (WA) included the appellant's electronically recorded interview with police, a witness statement of H, a witness statement of H's mother, and a letter from the appellant's former solicitors to the appellant pointing out the strength of the case against him [2].

   (c)Mr Harris read the papers sent to him by Legal Aid (WA). It was apparent to Mr Harris that the appellant was unable to advance any rational reason why H would make the allegations against him [3].

   (d)Mr Harris formed the view that H's assertions, especially when viewed on video, were compelling. According to Mr Harris, 'anyone viewing [the video] would appreciate the problem the appellant faced' [4].

   (e)Mr Harris pointed out to the appellant that 'in the present political climate it was a bad time to be fighting these types of offences before a jury' [5].

   (f)Mr Harris told the appellant that if Mr Harris 'attacked [H's] mother' at the trial then 'he would lose any mothers on the jury' and if Mr Harris attacked H 'we would lose them all' [6].

   (g)Mr Harris pointed out to the appellant that the only evidence that the offences occurred was the oral evidence of H [7].

   (h)Mr Harris informed the appellant that 'in a case of this nature his best chance of acquittal was to stick solely to the only issue that the jury had to decide' namely '[did] the sexual assaults take place or was it reasonably possible that they did not?' [8].

   (i)Mr Harris advised the appellant that it was the appellant's decision, but Mr Harris recommended that the appellant give evidence at the trial so that he could deny the offences on oath. Mr Harris explained to the appellant that 'he would be cross‑examined but that the witness box should hold no fear for someone telling the truth, and that as he was trained as a salesman he should have no trouble in persuading three people on the jury that there was a reasonable possibility that he did not do the acts alleged' [9].

   (j)Mr Harris also pointed out to the appellant that if the appellant gave evidence on oath at the trial 'the case became an oath on oath case and would attract directions favourable to the defence from the trial judge' [10].

   (k)Mr Harris explained to the appellant the procedure for the pre‑recording of H's evidence. He told the appellant that although Mr Harris could cross-examine H, 'the law placed very stringent restrictions on defence counsel, as a child was classed as a vulnerable witness and that even the tone of counsel's voice must be subdued'. Mr Harris told the appellant that 'in any event the quickest way to lose a jury is to make a complainant cry'. Mr Harris said that he could 'do little more than put our case to [H] that the sexual assaults had not taken place' [11].

   (l)Mr Harris acknowledged that he had discussed the issue of character evidence with the appellant. During the discussions Mr Harris expressed the view that character evidence is counterproductive in the case of child sex offences 'where good character has been used time and again by offenders to escape apprehension'. Mr Harris told the appellant that judges 'finish their directions on character by pointing out that people do commit crimes for the first time and good character [cannot] prevail against guilt' [12].

   (m)Mr Harris suggested that it would be 'far better for [the appellant] to have supporters in the court gallery, so that the jury could observe that he was not trying to hide anything, and also, to demonstrate the support that he had within the community' [13].

   (n)The appellant agreed with Mr Harris' recommendations concerning good character evidence and supporters in the court gallery. The appellant arranged for supporters to be present throughout the trial [14].

   (o)Mr Harris explained to the appellant that he would examine the State's evidence and endeavour to have excluded everything that was not strictly relevant. Mr Harris told the appellant that he would make an application to the court for a ruling that the appellant's electronically recorded interview with the police was inadmissible. Mr Harris made that application and it was successful [15].

   (p)Mr Harris was unaware that the appellant had contacted Dr Barber on 18 January 2019 until Mr Harris read the appellant's affidavit sworn 10 September 2019 [16].

   (q)Mr Harris said that the appellant had not raised any issues with him about the state of their relationship.  In particular, the appellant did not tell Mr Harris that he considered that their relationship had broken down.  Dr Barber did not contact Mr  Harris.  Mr Harris said that, in his experience, Legal Aid (WA) 'has always been helpful in transferring matters' [16] - [17].

   (r)The trial went 'according to plan' and the trial judge gave 'a very favourable charge to the jury' [19].

   (s)According to Mr Harris, throughout the case he carefully scrutinised all the material supplied to him. There was nothing in the material that he could have used to strengthen the defence case [20].

Mr Harris' evidence at the hearing of the appeal

1. Mr Harris gave evidence at the hearing of the appeal, relevantly, as follows.

2. In cross-examination, Mr Harris said, relevantly:

   (a)Mr Harris accepted that he did not watch with the appellant the appellant's electronically recorded interview with the police.  Mr Harris said that he would have watched the interview alone (appeal ts 90 - 91).

   (b)Counsel for the appellant referred Mr Harris to various passages in the transcript of the appellant's electronically recorded interview with the police.  Mr Harris then accepted that the appellant said in the interview that H's mother had told him that she was going to make him suffer and that she was going to take the children away (appeal ts 91 - 93).

   (c)Mr Harris reiterated that the appellant was unable to advance any rational reason why H, who loved him, would make such dreadful allegations (appeal ts 94).

   (d)However, Mr Harris agreed with counsel for the appellant that it was apparent from the appellant's electronically recorded interview with the police that the appellant contended in the interview that H's mother had told the appellant that she was going to make the appellant suffer and that she was going to take the children away and that those statements provided an explanation as to why H had made the allegations (appeal ts 94).

   (e)Mr Harris did not accept that the appellant told him orally that H's mother had said that she was going to hurt the appellant in two places, namely by ruining his reputation and by taking away the children.  Mr Harris said that was 'news to [him]'.  Mr Harris said he had no recollection of the appellant giving him that information in 2018.  Mr Harris stated that the appellant did not tell him those matters.  Mr Harris then said that he did not accept that the appellant had told him, but it could have happened and Mr Harris simply did not recall (appeal ts 96).

   (f)Mr Harris 'probably [did] not' take notes of anything the appellant told him (appeal ts 96).

   (g)Mr Harris agreed that he met with the appellant on at least five occasions.  They had long discussions.  Mr Harris did not have any notes of what the appellant told him (appeal ts 96 - 97).

   (h)Mr Harris did not take a proof of evidence from the appellant.  According to Mr Harris, he and the appellant 'prepared for court on the basis that [the appellant] would be giving verbal evidence'.  The appellant was 'going to be talking to the jury'.  Mr Harris had found that approach to be 'very, very successful' (appeal ts 97).

   (i)Mr Harris could not remember the substance of what the appellant had said to him at the meetings.  It is not Mr Harris' practice to make a note of what he is told by his client in the course of a meeting or to make a note immediately after the meeting.  He does not take notes (appeal ts 97).

   (j)Mr Harris did not consider that any of the text messages or the WhatsApp messages between the appellant and H's mother gave any reason why H might have made the allegations (appeal ts 98).

   (k)Mr Harris denied that the appellant had told him about the ill feeling that H's mother had against the appellant.  He said that was 'all later' and not 'at the beginning'.  The appellant and H's mother 'got on well' (appeal ts 98).

   (l)Mr Harris said that he viewed H's child witness interview before the pre-recording of H's evidence.  He viewed the interview at the State Solicitor's Office.  Mr Harris denied having told the appellant that Mr Harris believed, with reference to H's child witness interview, that H was lying (appeal ts 99).

   (m)Mr Harris said he would have told the appellant after the pre‑recording of H's evidence that the appellant 'had nothing to worry about and he was going to win'.  Mr Harris thought that 'by running a Liberato defence' a jury would not be satisfied beyond reasonable doubt as to the appellant's guilt (appeal ts 99).

   (n)Mr Harris advised the appellant to give evidence.  Mr Harris insisted that he told the appellant that 'as [the appellant] was trained as a salesman, he should have no trouble persuading three people on the jury that there was a reasonable possibility that he did not do the acts alleged' (appeal ts 102 - 103).

   (o)Mr Harris accepted that the issue of character evidence was raised with him.  Mr Harris said that he did not like character evidence in child sex cases.  Mr Harris told the appellant that in his view good character evidence does not influence the jury (appeal ts 103).

   (p)According to Mr Harris, the appellant agreed with Mr Harris' advice in relation to good character evidence and with his recommendation that the appellant arrange for supporters to attend the trial (appeal ts 104 - 105).

   (q)Mr Harris had 'a long talk with [the appellant]'.  Mr Harris formed the view that the appellant would be 'a persuasive witness'.  Mr Harris thought that the appellant was 'a very intelligent man' and that there was no reason 'to lead him in chief more extensively' (appeal ts 106).

The affidavits as to the appellant's good character and reputation the subject of the appellant's second application in the appeal

1. The affidavits as to the appellant's good character and reputation the subject of the appellant's second application in the appeal are as follows:

   (a)affidavit of AB sworn 16 October 2019;

   (b)affidavit of MLC sworn 16 October 2019;

   (c)affidavit of MS sworn 17 October 2019;

   (d)affidavit of URP sworn 17 October 2019; and

   (e)affidavits of FAA sworn 24 September 2019 and 18 October 2019.

2. The affidavits include evidence to the effect that the deponents were of the view that, at material times, the appellant had a good reputation in the business community and generally; the appellant was honest; and, based on the deponents' observations, the appellant interacted positively with his children including H and that for the appellant to have acted in the manner alleged would have been contrary to what they knew of him.  The deponents said that they would have been available and willing to give character evidence at the trial.

1. Counsel for the State objected to a number of statements made in the affidavits, but it is unnecessary to resolve them.

Ground 1:  findings of fact in relation to the additional evidence adduced in the appeal

1. It is well established that, as a matter of law, this court does not examine whether a decision taken by defence counsel at trial was, in fact, taken for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage.  Rather, this court is concerned only with whether defence counsel's decision is capable of reasonable explanation on that basis.  The test is objective in character.  See, for example, Jeffery v The State of Western Australia.[40]

   [40] Jeffery v The State of Western Australia [2018] WASCA 219 [104] ‑ [105].

2. The nature and extent of any findings of fact which it is necessary and appropriate for this court to make in relation to the additional evidence adduced in the appeal must be determined having regard to that overriding principle of law in the context of ground 1 and its particulars.

3. We are satisfied, on the basis of the appellant's evidence in the appeal, that the appellant informed Mr Harris prior to the pre‑recording of H's evidence, in effect, that:

   (a)the allegations against the appellant were made in the context of custody, parenting and manipulation issues between his former wife and himself concerning their sons, including H;

   (b)the appellant's former wife had animosity towards and was angry with him;

   (c)the appellant believed that his former wife had influenced H to make the allegations;

   (d)the appellant had a number of associates, who had knowledge of the appellant's good reputation in the business community and generally, and who would be willing to give evidence as to the appellant's good character and his positive interactions with his children, including the positive relationship that existed between H and him; and

   (e)the appellant sent to Mr Harris the emails of 9 October 2018, 22 October 2018 and 4 April 2019.

4. We are also satisfied, on the basis of the appellant's evidence in the appeal, that:

   (a)prior to the trial, the appellant reiterated to Mr Harris that he could produce a number of people who would be willing to give evidence as to the appellant's good character and reputation;

   (b)prior to the trial, the appellant offered to provide Mr Harris with a chronology of relevant events; and

   (c)in January 2019, the appellant discussed his case with another lawyer, Dr Barber, and on 18 January 2019 the appellant sent an email to Legal Aid (WA) stating that his relationship with Mr Harris had broken down and requesting that his file be transferred to Dr Barber.

5. Further, we are satisfied, on the basis of the appellant's evidence in the appeal, that Mr Harris informed the appellant prior to the trial that Mr Harris did not want to know about the matrimonial issues between the appellant and his former wife.

6. We are satisfied, on the basis of Mr Harris' evidence in the appeal, that prior to the pre‑recording of H's evidence:

   (a)Mr Harris read the papers sent to him by Legal Aid (WA);

   (b)Mr Harris told the appellant that character evidence was counter productive in the case of child sex offences and that it would be far better for the appellant to have supporters in the court gallery; and

   (c)Mr Harris told the appellant that he would make an application to the court for a ruling that the appellant's electronically recorded interview with the police was inadmissible.

7. We are also satisfied, on the basis of Mr Harris' evidence in the appeal, that prior to the trial:

   (a)the appellant agreed with Mr Harris' recommendations concerning good character evidence and supporters in the court gallery;

   (b)the appellant did not tell Mr Harris that H's mother had said that she was going to hurt the appellant in two places, namely by ruining his reputation and by taking away the children; and

   (c)the appellant did not raise with Mr Harris any issues about the state of their lawyer/client relationship.

8. Further, we are satisfied, on the basis of Mr Harris' evidence in the appeal, that Mr Harris advised the appellant prior to the trial that:

   (a)the oral evidence of H was the only evidence that the alleged offences had occurred;

   (b)although it was the appellant's decision, Mr Harris' recommendation was that the appellant give evidence at the trial so that he could deny the alleged offences on oath; and

   (c)if the appellant gave evidence on oath at the trial, the case would become 'an oath on oath case'.

9. We do not accept the appellant's evidence that Mr Harris told him, while flicking through the transcript of H's child witness interview, that 'it was all made up'.

10. We do not accept the appellant's evidence that his former wife had told him that she would hurt him 'in two places by taking [his] children away and ruining [his] reputation'.  We are satisfied that H's mother's comment about there being 'a special place in hell' for the appellant was made in the context of other problems that the appellant was having at the time.  In particular, that comment was unconnected with the children, including H.

11. We do not accept the appellant's evidence that H's mother had told him that she had discovered that H was watching pornography on YouTube or that the appellant had told Mr Harris that H had been watching pornography.

12. We reject the appellant's evidence that he told Mr Harris that before H made the allegations H had wanted to live fulltime with the appellant and that H did not want his mother to have shared custody of him.

13. We reject the appellant's evidence that when he gave evidence at the trial in April 2019 he understood that the three week period when H stayed with him occurred in May 2017 and not in March 2017.  We find that at all material times (including during the trial) H understood that the three week period when H stayed with him occurred in March 2017.

14. We have made the findings that we have recounted in relation to disputed issues of fact between the appellant and Mr Harris on the basis of our assessment of their credibility and reliability as witnesses and on the basis of the objective probabilities as to the existence of particular facts.

15. In general, we consider Mr Harris to be a more credible witness than the appellant.  The appellant's account of his evidence at the trial and his state of mind as to whether the three week period when H stayed with him occurred in May 2017 and not in March 2017 was unsatisfactory.  We disbelieved his evidence in relation to those matters.  We are satisfied that when, during his evidence at the trial,[41] the appellant agreed with the prosecutor that the three week period was in May 2017, the appellant understood the question and that his answer reflected his state of mind at that time.  Further, we considered the appellant's assertions that he told Mr Harris that H wanted to live with the appellant fulltime and did not want to stay with the appellant's former wife were, in the circumstances, implausible.  The relevant circumstances include the fact that H made the allegations and the unlikelihood that a legal practitioner of Mr Harris' seniority and experience would present the appellant's case in a manner that was radically inconsistent with his instructions.  We disbelieved the appellant's assertions.  Also, the appellant's unwillingness to answer questions directly, exhibited on a number of occasions in his evidence,[42] bore adversely on his credibility generally.

    [41] Trial ts 86, 97.

    [42] See, for example, appeal ts 75 ‑ 78.

Ground 1:  the applicable legal principles

1. In McMahon v The State of Western Australia,[43] McLure P summarised the law relating to a ground of appeal which alleges a miscarriage of justice by reason of defence counsel's conduct of the defence case, as follows:

   The appellant has to demonstrate that the conduct of his counsel caused a miscarriage of justice, a task which constitutes a heavy burden:  TKWJ v The Queen (2002) 212 CLR 124 [74] (McHugh J). That is a consequence of the adversarial nature of a criminal trial and the role and function of counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involved errors of judgment or even negligence: TKWJ [74], [79] (McHugh J); R v Birks (1990) 19 NSWLR 677, 685 (Gleeson CJ).

   In this context, miscarriage of justice has two aspects, process and outcome.  If the conduct of counsel has deprived the accused of a fair trial according to law, that will give rise to a miscarriage of justice without regard to whether counsel's conduct might have affected the outcome:  TKWJ [76] (McHugh J); Nudd v The Queen [2006] HCA 9 [3] ‑ [7] (Gleeson CJ). This corresponds with that limb of the proviso where there is a serious breach of the pre‑suppositions of a trial: Weiss v The Queen (2005) 224 CLR 300 [46]; Wilde v The Queen (1988) 164 CLR 365, 373. A complete failure to cross‑examine a complainant or a complete failure to address the jury may result in an unfair trial: TKWJ [76]. So too may wrong advice that an accused is not entitled to give evidence: Nudd [17].

   In the majority of cases, irregular conduct of counsel will not deprive the appellant of a fair trial.  In such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues.  First, did counsel's conduct result in a material irregularity in the trial.  Secondly, is there a significant possibility that the irregularity affected the outcome:  TKWJ [79] (McHugh J); Ali v The Queen (2005) 79 ALJR 662 [18] (Hayne J).

   The test of whether there is a material irregularity is objective:  TKWJ [17], [27] ‑ [28], [107]. Ordinarily, it is difficult to establish a material irregularity when the alleged error of counsel concerned forensic choices upon which competent counsel could have differing views: TKWJ [81]. However, if the error of counsel plainly affected the result of the trial, there will be a miscarriage even though the error involved a forensic choice or judgment. Where the error involves the failure to adduce evidence, there are parallels with the test for the admission of new or fresh evidence: TKWJ [32] (Gaudron J).

   [43] McMahon v The State of Western Australia [2010] WASCA 143 [24] ‑ [27].

2. In Colley v The State of Western Australia,[44] McLure P referred to the extract which we have reproduced from her Honour's reasons in McMahon and then said:

   The appellant's claims in this case fall within the 'process' category.  That is, the appellant claims he was deprived of a fair trial according to law.  

   As is clear from the use of the word 'ordinarily' in the first paragraph of the extract, it is a general rule that an accused is bound by the way a trial is conducted by counsel.  In particular, not all decisions made by counsel contrary to instructions will bind the accused.  The point is made clearly by Gleeson CJ in Nudd v The Queen:

   A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions [9]. (emphasis added)

   For example if, as the appellant says in this case, he instructed trial counsel not to defend the charge on the basis of self‑defence because he (the appellant) did not at any stage hit the deceased, to do so would be outside the scope of any implied power in the retainer to make decisions on behalf of the appellant.

   Moreover, it is outside the scope of any implied retainer for trial counsel to conduct a positive defence that is inconsistent with the accused's instructions as to what had actually occurred.  A 'positive defence' includes cross‑examination of witnesses for the prosecution suggesting, expressly or impliedly, that counsel is putting his or her client's instructions as to relevant factual matters. 

   It is unnecessary to determine whether trial counsel may, with the client's consent, put in cross‑examination a positive defence that is inconsistent with his or her client's instructions as to what actually occurred.  Even if permissible, the client would have to be informed by trial counsel that he or she could not lead evidence from the accused that was inconsistent with his or her instructions as to what actually occurred.  That is, prior to the cross‑examination the client would have to elect not to give evidence at trial.  In that way there would be no breach of the first aspect of the rule in Browne v Dunn (Browne v Dunn).  As to which, see Merrey v The State of Western Australia. (citations omitted)

   [44] Colley v The State of Western Australia [2015] WASCA 79 [29] ‑ [33].

3. More recently, in Morgan v The State of Western Australia [No 2],[45] this court stated the relevant general principles which govern the determination of whether the conduct of defence counsel has caused a miscarriage of justice, as follows:

   [45] Morgan v The State of Western Australia [No 2] [2019] WASCA 185 [205] ‑ [208].

   The relevant general principles as to when a miscarriage of justice may arise through incompetent representation were recently summarised by this court in Huggins v The State of Western Australia (Huggins v The State of Western Australia [2018] WASCA 61 [375] ‑ [401]).  We adopt that comprehensive analysis without repeating it, noting the following passage of the reasons in that case (Huggins [376]):

   An appellant who seeks to demonstrate that the conduct of his or her counsel caused a miscarriage of justice undertakes a heavy burden which is not easily discharged.  This is a consequence of the adversarial nature of a criminal trial and the role played by counsel.  Ordinarily, an accused is bound by the way the trial is conducted by counsel even if that was not in accordance with the wishes of the client.   It is not a ground for setting aside a conviction that decisions made by counsel were made without or contrary to instructions or involved errors of judgment or even negligence.  It is not the province of appellate courts to review the wisdom or prudence of the conduct of a trial by trial counsel.  For example, an apparently rational decision by trial counsel as to what evidence to call or not to call does not give rise to a miscarriage of justice simply because an appellate court thinks it worked to the probable disadvantage of the appellant. (citations omitted)

   Further, as was recently reiterated in Jeffery v The State of Western Australia (Jeffery v The State of Western Australia [2018] WASCA 219 [104] (citing Buss P in Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96 [115]), this court does not examine whether a decision taken by the appellant's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage. Rather, the court is concerned only with whether counsel's decision is capable of explanation on that basis. That is, could there be any reasonable explanation for the decision? The test is objective in character.

   In Craig v The Queen (Craig v The Queen [2018] HCA 13; (2018) 92 ALJR 390), the High Court considered how inadequate legal advice on an accused's choice to give evidence may give rise to a miscarriage of justice. The court recognised that a trial may be unfair because the exercise of an accused's right to give evidence in his or her defence was effectively foreclosed by the receipt of incorrect advice, Craig [32].

   However, the High Court rejected the proposition that, where an accused is aware of the right to give evidence, any material error in legal advice bearing on the exercise of the right denies an essential condition of a fair trial, Craig [26] ‑ [27]. In the context of a decision not to give evidence, the court considered that, Craig [27]:

   At the least, demonstration that incorrect advice has occasioned a miscarriage of justice will require consideration of the relation between the advice and the decision not to give evidence.

   The High Court held that an appellate court's assessment of whether the decision not to give evidence deprived an accused of a fair trial looks to the nature and effect of the incorrect advice on the accused's decision.  It is not an assessment of whether an objectively rational justification could be assigned to the decision, Craig [33].

Ground 1:  the defence case theory propounded by counsel for the appellant on appeal

1. On appeal to this court, counsel for the appellant propounded a defence case theory as follows.  The case theory had three limbs.

2. The first limb was that H gave an honest account in his evidence of what he genuinely believed the appellant had done to him, but H was dreaming and imagined the alleged assaults.  The second limb was that if H was not dreaming and did not imagine the alleged assaults, H's mother procured H to fabricate the sexual abuse allegations against the appellant.  The third limb was that if H was not dreaming and did not imagine the alleged assaults, negative statements about the appellant made by H's mother in H's presence unintentionally influenced H to fabricate the sexual assault allegations against the appellant.[46]

   [46] Appeal ts 133 ‑ 137.

3. It is apparent that the three limbs advance alternate scenarios. 

4. Counsel for the appellant contended that all of the three limbs 'should have been mentioned' by Mr Harris at the trial 'as possibilities'.[47]  Counsel also contended that, having regard to the facts of the case and the instructions given by the appellant, a competent defence counsel could not decide to run the defence case at trial other than by reference to all of the three limbs.[48]  As will become apparent when we examine the merits of the particulars of ground 1, we do not accept counsel's contentions.

   [47] Appeal ts 137.

   [48] Appeal ts 137.

Ground 1:  particular (a):  the appellant's submissions

1. Particular (a) of ground 1 asserts that at the pre-recording of H's evidence, defence counsel cross‑examined H in respects that were prejudicial to the defence case and which were contrary to the information the appellant had provided to him.

2. Counsel for the appellant noted that, in cross‑examination, Mr Harris put to H that, in relation to the three week period when H lived with the appellant:

   You wanted to stay with mum and you didn't want to stay with dad, isn’t that right? [49]

   [49] Trial ts 29.

3. Mr Harris also put to H that H was fighting with his mother because he wanted to stay with his mother and not with the appellant and that, because he was fighting with his mother, H stayed with his father.

4. According to counsel, apart from 'being somewhat illogical', the matters put by Mr Harris to H were contrary to the information the appellant had provided to Mr Harris, namely that H wanted to live with the appellant and not with his mother.  According to counsel, Mr Harris' cross‑examination was 'unfortunate … and a material error' in that the proposition that H did not want to live with the appellant could have been seen by the jury as being consistent with the State's case.

5. Counsel for the appellant acknowledged that H responded by denying Mr Harris' propositions and asserting that H had wanted to stay at one house and he did not care whose house it was.

6. Counsel noted that, despite H's response, Mr Harris repeated the alleged error in cross‑examining H's mother.

7. Counsel for the appellant submitted that H's evidence to the effect that, prior to the allegations against the appellant being made, H did not mind living with the appellant; he wanted to stay at one house and he did not care whose house it was; and he did not want a shared custody arrangement, 'could very well be seen as being at odds with the allegations the subject of counts 1 and 2, and also as impacting on [H's] credibility as a whole'.  However, Mr Harris did not pursue this issue in H's cross‑examination or in Mr Harris' closing submissions.  According to counsel, there was no objectively rational forensic justification for Mr Harris' failures in relation to this issue.

Ground 1:  particular (a):  its merits

1. In our opinion, Mr Harris' decision to put to H in cross‑examination that H wanted to stay with his mother and did not want to stay with the appellant is reasonably explicable on the basis that Mr Harris was pursuing a defence case theory, namely that H had fabricated the allegations, alternatively H had confused his imagination or dreams with reality, because he wanted to live fulltime with his mother.  The case theory was a rational forensic strategy.  The cross‑examination of H and H's mother sought to create a foundation for a potential submission to the jury that explained the making by H of the allegations that were, on the appellant's case, false.  The case theory was inconsistent with the State's case in that the theory asserted that H's allegations were untrue and arose from H's wish, in the context of a very stressful marriage breakdown, that he did not like living in two homes.

2. It would have been implausible to have suggested to the jury, as a defence case theory, that H had wanted to live fulltime with the appellant but, nevertheless, made the allegations against him and did so in order to bring about that result.  Similarly, it would have been implausible to have suggested to the jury that H's mother had successfully induced H to make the allegations, despite H wanting to live fulltime with the appellant.  In any event, there was no foundation in the evidence for making that very serious imputation against H's mother. Further, it would have been implausible to have suggested to the jury that H had made the allegations as a result of his mother's negative comments about the appellant, despite H wanting to live fulltime with the appellant.

3. Further and in any event, as we have mentioned, we reject the appellant's evidence that he told Mr Harris that before H made the allegations H had wanted to live fulltime with the appellant and that H did not want his mother to have shared custody of him.

4. Particular (a) of ground 1 is without merit.

Ground 1:  particular (b):  the appellant's submissions

1. Particular (b) of ground 1 asserts that at the pre‑recording of H's evidence, defence counsel, without reasonable justification, failed to cross‑examine H on relevant matters in accordance with information the appellant had provided to him, and also in respect of relevant matters contained in or arising from H's child witness interview.

2. Counsel for the appellant submitted that there was no justification for Mr Harris' failure to put to H in cross‑examination that H had wanted to live with the appellant and did not want to have shared custody, in accordance with information the appellant had provided to him.

3. It was also submitted that the fact that H wanted to and indeed went to stay with the appellant for a period of three weeks (including without H's younger brothers in the first and third weeks) 'would appear to be at odds with what [H] said the appellant had previously done to him, both with regard to the alleged offending the subject of counts 1 and 2 as well as with the appellant's alleged violent behaviour to him'.  According to counsel, if H had been cross‑examined on these issues the cross‑examination could have impacted on H's credibility as a whole.  It was submitted that there was no apparent explanation for Mr Harris' failure to pursue these issues in cross‑examination of H and in closing submissions.

4. It was further submitted that the appellant had instructed Mr Harris that, after the period of three weeks, H had said that he wanted to remain living with the appellant and did not want to return to his mother.  According to counsel, those instructions should have been addressed in cross‑examination and closing.  They were not.

5. Counsel argued that it was of importance in relation to that issue that H's mother said in evidence that during the period of three weeks she had 'tried messaging' H, but he had resisted contact with her.  According to counsel, it was apparent that H had a mobile telephone and therefore had the means of communicating with his mother.  This issue should have been addressed in closing.  It was not.

6. Counsel also argued that, after the period of three weeks, H continued to live with the appellant every alternate week, despite what H alleged had happened on the first night of the three week period, that allegation being the subject of count 3.  This issue should have been addressed in cross‑examination of H and in closing.  It was not.

7. Counsel asserted that the appellant had informed Mr Harris that H's mother had told him that H had been watching pornography.  According to counsel, those instructions to Mr Harris were relevant to H's knowledge of sexual matters, and should have been addressed in the cross‑examination of H and his mother and also in closing.  They were not.

8. Counsel contended that a number of other matters should have been dealt with in cross‑examination and in closing submissions, but were not.  Those matters included the following:

   (a)According to H's evidence,[50] when the offending the subject of count 3 occurred, H was in his own bedroom at the appellant's house.  H then went into the appellant's bedroom.  H hugged the appellant and went to sleep with him.  Counsel asserted that this evidence was 'at odds with [H's] allegations as to the previous offending the subject of counts 1 and 2'.  It was a matter that impacted on H's credibility generally.

   (b)According to H's evidence,[51] the former family home where counts 1 and 2 were allegedly committed was 'haunted', there was 'a spirit' in the former family home that was 'trying to chase' him and that the grass at the former family home had died and would not grow, which, H said, proved that the former family home was haunted.  The appellant not only allegedly committed counts 1 and 2 at the former family home, but the appellant also, on H's evidence, was violent.  Nevertheless, H said in regard to the former family home, 'it's my favourite place ever'.[52]

   (c)There was evidence, including what H had said about the 'haunted house', which suggested that H had a vivid imagination and a creative mind.

   (d)There were occasions in his child witness interview when H spoke in language which did not appear to be 'his natural way of speaking' and which may have been language his mother might well use.

   [50] VRI ts 7.

   [51] VRI ts 10.

   [52] VRI ts 26.

Ground 1:  particular (b):  its merits

1. During his child witness interview, H said that he was not very 'close' to the appellant and that there had been 'a bridge broken ever since' the alleged offending.[53]  H also said that he had kept his distance from the appellant since the alleged offending and that H now slept in his own room.[54]

   [53] VRI 32.

   [54] VRI 26, 32.

2. During his pre‑recorded evidence, H gave evidence about the appellant's regular violence towards him and said that the violence made him reluctant to confront the appellant about the alleged offending for fear of further violence.[55]

   [55] Trial ts 31 ‑ 32.

3. If Mr Harris had cross‑examined H about H having continued to stay at the appellant's home after the alleged offending and about H not having made an earlier complaint, the cross‑examination would have been likely to have elicited evidence that was unhelpful and, potentially, adverse to the appellant.  There is a real prospect that H's response to cross‑examination on those issues would have been to assert that, since the alleged offending, he had not been 'close' to the appellant, their relationship had been fractured and he was fearful of provoking violence from the appellant towards him.

4. If Mr Harris had put to H in cross‑examination that H had wanted to live fulltime with the appellant, H would undoubtedly have rejected the proposition.  There was an inherent and obvious incongruity between the appellant's assertion that H wanted to live fulltime with him and yet H had made the allegations that were, on the appellant's case, false and did so in order to achieve that outcome.

5. Mr Harris did cross‑examine H about H's failure to make a complaint to the appellant or H's mother, brother or school teacher at the time of the alleged offences.[56]

   [56] Trial ts 33.

6. During his child witness interview, H described, both in verbal and in physical terms, including facial expressions and hand and body movements, the sensation of the appellant's penis in his mouth.  According to H, the appellant's penetration of his mouth in the context of count 3 was so deep that it hurt the back of his throat.  H's account of the offending was not sexualised, but descriptive.

7. In our opinion, it is not apparent from his child witness interview that H's description of the offending was based upon H having viewed pornography.

8. If Mr Harris had cross‑examined H to the effect that H's description of the alleged offending was based upon H having viewed pornography, the cross‑examination would have been likely to have elicited evidence that was unhelpful and, potentially, adverse to the appellant.  H would undoubtedly have rejected the proposition that his description of the alleged offending was based upon his having viewed pornography and not upon the appellant's alleged acts of sexual penetration.  There was a real risk that any cross‑examination on this issue may have reinforced H's evidence that the alleged offences had occurred.

9. Further and in any event, as we have mentioned:

   (a)We reject the appellant's evidence that he told Mr Harris that, before H made the allegations, H had wanted to live fulltime with the appellant and that H did not want his mother to have shared custody of him; and

   (b)We do not accept the appellant's evidence that H's mother had told him that she had discovered that H was watching pornography on YouTube or that the appellant had told Mr Harris that H had been watching pornography.

10. In our opinion, the differences between H's account of the offending the subject of counts 1 and 2, on the one hand, and his account of the offending the subject of count 3, on the other, did not impact on H's credibility.  Counts 1 and 2 allegedly occurred in 2015 and count 3 allegedly occurred in 2017.  No issue of credibility arises from the differences in H's accounts.  We consider that H's evidence to the effect that the former family home where counts 1 and 2 were allegedly committed was 'haunted' or occupied by 'a spirit' that was 'trying to chase him' is not necessarily inconsistent with his evidence that he regarded the former family home as his 'favourite place ever'.  It is not inherently incredible that a young boy should entertain feelings towards a former family home which, at least on one view, are materially different.  For example, the differences may be explained by H's feelings towards the former family home at different times.  We are not persuaded that the child witness interview indicates that H spoke on occasions in a manner that was not 'his natural way of speaking', but reproduced language his mother might well use.

11. In the circumstances, Mr Harris' decision not to pursue the issues about which complaint is made in particular (b) of ground 1 is capable of reasonable explanation as a rational forensic decision.

12. Particular (b) of ground 1 is without merit.

Ground 1:  particular (c):  the appellant's submissions

1. Particular (c) of ground 1 asserts that defence counsel agreed with the State that H's child witness interview should be edited to delete certain passages without obtaining the appellant's instructions to do this or informing him of this, and that the deletion of these passages or certain of them prejudiced the defence case.

2. The passages that were deleted referred to H being aware that his younger brother, R, had been viewing material with a sexual content on YouTube and elsewhere.  H referred to YouTube being 'a not very good place' and that YouTube was 'not a very good place, as you understand'.  He referred to animations involving '[characters] taking off their clothes.  All that stuff'.

3. Counsel for the appellant submitted that Mr Harris' agreement to the deletion of those passages, combined with Mr Harris' failure to use at the trial the information provided by the appellant that H had been watching pornography, facilitated the prosecutor's submission in closing that:

   You might also think that it's unlikely that a child of that age [that is, H] would have sufficient knowledge of sexual matters to even be able to dream up such things.[57]

   The prosecutor made a submission to similar effect later in closing.[58]

   [57] Trial ts 17.

   [58] Trial ts 22.

4. Counsel argued that if the passages in H's child witness interview had not been deleted those passages would have foreclosed or at least weakened any such submissions, and would also have enabled the making of an appropriate submission by Mr Harris in closing as to H's knowledge of sexual matters.

Ground 1:  particular (c):  its merits

1. In our opinion, it was not essential that Mr Harris obtain instructions from the appellant before agreeing with the State that H's child witness interview should be edited to delete certain passages.  It was within the scope of Mr Harris' authority, as the appellant's counsel and legal advisor, to enter into the agreement with the State.  His authority to make the agreement was not subject to or conditional upon obtaining the appellant's instructions.  Also, in our opinion, although it would have been good practice, it was not essential that Mr Harris inform the appellant of the passages that had been deleted.

2. Further, in the circumstances, Mr Harris' agreement to the deletions is readily capable of being seen as a rational forensic decision.  The editing removed the references to H's brother.  Those references were, at least potentially, prejudicial to the appellant in that they implied that one of H's brothers had been sexualised by the appellant and had become, as H put it, 'a bit of a pervert'.  The deletion of the passages avoided the possibility of prejudice to the appellant arising from any suggestion that the appellant might have been sexually abusing one of his other sons.

3. Further and in any event, as we have mentioned, we do not accept the appellant's evidence that H's mother had told him that she had discovered that H was watching pornography on YouTube or that the appellant had told Mr Harris that H had been watching pornography.

4. Particular (c) of ground 1 is without merit.

Ground 1:  particular (d):  the appellant's submissions

1. Particular (d) of ground 1 asserts that defence counsel, without reasonable justification, failed to properly advance as a defence case theory that H had knowingly invented the allegations, and that this may have occurred under the influence of his mother, on the basis of information provided by the appellant and other information which supported the theory.  Defence counsel failed to cross‑examine State witnesses as to the theory, to adduce evidence relevant to it, and to make appropriate submissions in respect of it.

2. Defence counsel told the jury in his brief opening statement:[59]

   So we've got a matrimonial breakdown, we've got stress on the kids and we've got the young bloke not happy with the arrangements of custody.  He makes the claims, his problem is solved.

   [59] Trial ts 61.

3. Counsel for the appellant submitted that this passage in the opening statement suggested, in effect, that H had made up the allegations against the appellant because H did not like the custody arrangements.  However, that proposition had not been put to H in cross‑examination at the pre‑recording of H's evidence.  Although Mr Harris put questions to H at the pre‑recording concerning the custody arrangements (although, so it was submitted, in an erroneous manner by suggesting that H did not want to stay with the appellant), Mr Harris did not cross‑examine H as to whether he had fabricated the allegations to defeat the shared custody arrangements.  This issue did not feature in Mr Harris' closing.

4. Counsel for the appellant argued that another important matter that should have been addressed by Mr Harris at the trial was the video that was saved to H's YouTube playlist.  The name of the video was 'Can you really tell if a kid is lying?'.  According to counsel, the existence and content of this video were relevant to H's credibility.  Although the existence of the video was brought to Mr Harris' attention after the pre‑recording of H's evidence, Mr Harris should nevertheless have used the evidence at the trial.

Ground 1:  particular (d):  its merits

1. As we have mentioned, in our opinion a defence case theory adopted by Mr Harris, namely that H had fabricated the allegations because he wanted to live fulltime with his mother, was a rational forensic decision.  The formulation of that scenario, as a defence case theory, was within the scope of Mr Harris' authority, as the appellant's counsel and legal advisor.  It was reasonable, in the circumstances, to have advanced the theory as an aspect of the appellant's defence in the context of the appellant's denial that any of the charged acts had occurred.

2. Mr Harris cross‑examined H to the effect that H 'wanted to stay with mum and [he] didn't want to stay with dad'; that '[s]taying at two houses was very upsetting for [him]'; that he would 'rather be at one house'; and that he did not want to be 'coming from one house to the other house all the time'.[60]

   [60] Trial ts 29.

3. Mr Harris also put to H that none of the charged acts had actually occurred.[61]

   [61] Trial ts 33 ‑ 34.

4. Mr Harris' cross‑examination, considered as a whole, was adequate to lay a foundation for the defence case theory in the context that the appellant had decided, in accordance with Mr Harris' recommendation, to give sworn evidence at the trial denying H's allegations.

5. As to the complaint about Mr Harris' failure to cross‑examine H concerning the video titled 'Can you really tell if a kid is lying?', the information available to Mr Harris did not indicate that H had in fact watched the video or that the statements H had made in his electronically recorded interview with the police or in his pre‑recorded evidence were consistent with or reflected the content of the video.

6. Also and in any event, the existence of the video was not brought to Mr Harris' attention until after the pre‑recording of H's evidence.  It is not apparent how Mr Harris could have used the evidence at the trial.

7. Further and in any event, the material before this court as to the content of the video comprises two screenshots[62] and a brief description of the subject matter of the video.[63]  The brief description indicates that someone on the video is expressing his or her views about whether adults can detect when children are telling lies.  Otherwise, the material before this court does not reveal the nature of the video; for example, whether there is a serious, scientifically based, discussion of the issue or whether the issue is treated irreverently and with humour.

   [62] WAB 38 ‑ 39.

   [63] WAB 40.

8. Particular (d) of ground 1 is without merit.

Ground 1:  particular (e):  the appellant's submissions

1. Particular (e) of ground 1 asserts that defence counsel, without reasonable justification, cross‑examined H's mother in respects that were prejudicial to the appellant's case and which were contrary to the information the appellant had provided to him.

2. H's mother gave evidence as a State witness at the trial.

3. Mr Harris' cross‑examination was brief. 

4. Mr Harris began by asking H's mother to confirm that H had stayed for two weeks with his father.  H's mother corrected defence counsel and said that H had stayed for three weeks.

5. Mr Harris put to H's mother that H was angry with her and that was why H went and stayed with the appellant.  Next, Mr Harris put to H's mother the following:[64]

   And the reason [H] was angry with you is [H] liked living with you and [H] … wanted you to have full custody of him.

   [64] Trial ts 77.

6. Counsel for the appellant submitted that the proposition put to H's mother was contrary to what the appellant had informed Mr Harris.  In particular, the appellant had informed Mr Harris that H did not want to live with H's mother but wanted to live fulltime with the appellant and that was why H went to stay with the appellant.

1. However, the courts have also recognised that sexual offending by adults of previously unblemished reputations, and who appear to their friends, relatives and business and social acquaintances to be of impeccable character, is all too frequently found to have occurred.[80]

   [80] DVB [51]; Sharma [46]; Durani [120].

2. As Hayne J said in Melbourne [152], the use that a jury might make of evidence of good character will vary greatly according to the circumstances of the case. It will vary according to what is said about the previous character of the accused and what relationship, if any, that has to the case that is sought to be made against the accused.

3. In some cases, there is an evident forensic reason not to adduce character evidence.  For example, in TKWJ, if character evidence had been adduced there was a real risk, if not a probability, that the prosecution would have been given leave to adduce evidence in rebuttal that would have been prejudicial to the accused.  No such consideration arose in the present case. 

4. In our opinion, a concern to avoid the balancing effect of the trial judge's direction as to character evidence - namely that people of prior good character have been known to commit crimes - is not a legitimate forensic reason not to adduce available character evidence.  In the circumstances of the present case, there does not appear to have been any potential disadvantage, of any substance, in the calling of available character witnesses.

5. If it is assumed, favourably to the appellant, that the failure to call available good character evidence was a material irregularity, the critical issue is whether there is a significant possibility that, had the good character evidence from other witnesses been adduced, the verdict might have been different.[81]

   [81] McMahon [26].

6. In some cases involving allegations of sexual offending against children, where the State case relies on the uncorroborated evidence of the complainant and the accused gives sworn evidence denying the offence(s), evidence of good character may, by a significant possibility, affect the verdict.  However, in the circumstances of the present case, as explained below, we are satisfied that there is no significant possibility that good character evidence from other witnesses might have affected the verdicts.

7. In the present case, H's mother gave evidence to the effect that the appellant was a good father to his children when they resided together in the family home and that, after their marriage broke down and they separated, she approved of the appellant having joint and equal custody of their children.[82]

   [82] Trial ts 73.

8. The trial judge directed the jury in her summing up that the appellant was a person of prior good character.  Her Honour said:[83]

   I want to deal firstly with the issue of character.  You heard evidence from Detective Burns that [the appellant] has no criminal record.  That evidence is relevant in two ways.

   The first is the evidence of good character is relevant to whether or not [the appellant] would commit such an offence.  The evidence of his good character shows that it is less likely that he would commit such an offence.

   The second is that his evidence of good character is relevant to his credibility.  It tends to show that he is a person … whose evidence can be accepted and relied upon.

   You should consider the evidence of [the appellant's] good character in both of these ways in considering whether the State has satisfied you beyond reasonable doubt that he is guilty of the offences with which he has been charged.

   [83] Trial ts 139.

9. Her Honour did not give the jury a balancing direction of the kind referred to at [198] above.

10. In our opinion, the evidence of H's mother to the effect that the appellant was a good father to his children when they resided together in the family home and consequently that she had agreed to the appellant having joint and equal custody of their children was strong evidence as to the appellant's good character in relation to his children.  It was implicit in the evidence of H's mother that in October 2013, when her marriage to the appellant broke down and they separated, H's mother was of the opinion that there was no risk that the appellant might sexually abuse any of their children.

11. By contrast, the evidence sought to be adduced by the appellant in the appeal in relation to his good character and reputation relies upon affidavits from people who had limited knowledge and experience of the appellant's behaviour towards his children in a private or domestic setting.  Their evidence is therefore of very modest weight (viewed in the context of the evidence of H's mother to which we have referred) in relation to whether the appellant was likely to have committed the charged offences or whether the appellant was likely to have admitted the allegations if they were true.

12. The evidence adduced at the trial from Detective Burns to the effect that the appellant did not have a criminal record supported the defence case that the appellant was an honest man whose denial on oath that he had committed any of the charged offences should be accepted or, alternatively, should at least give rise to a reasonable doubt as to his guilt.

13. We are satisfied, upon our review of the trial record, that, in the circumstances, there is no significant possibility that the absence of further evidence at the trial as to the appellant's character and reputation affected the outcome of the trial.  The absence of further evidence did not occasion a miscarriage of justice.

14. Particular (i) of ground 1 is without merit.

Ground 1:  particular (j):  the appellant's submissions

1. Particular (j) of ground 1 asserts that Mr Harris unreasonably advanced inconsistent case theories; the case theory in the opening address differing from that in the closing address, this being forensically damaging to the defence case.

2. Counsel for the appellant asserted that Mr Harris suggested in opening that H had fabricated the allegations because he did not like the custody arrangements.

3. However, Mr Harris said in closing, 'I'm not saying [H is] lying'.  Defence counsel went on to suggest that '[H] put together in his head something that he had dreams about and then, honestly but mistakenly, believes it is true'.  Mr Harris referred, in support of that argument, to passages in H's evidence which suggested that H had been asleep when the alleged offending occurred.[84]

   [84] Closing addresses ts 28 ‑ 31.

4. Counsel for the appellant submitted that Mr Harris' decision to '[change] course after the opening address was forensically unsound'.  This 'changing of course contributed to a lack of cohesiveness in the presentation of the defence case'.

Ground 1:  particular (j):  its merits

1. Mr Harris' opening statement to the jury was brief and general.  It was reasonable and appropriate, in the circumstances, for Mr Harris to make a conservative opening statement.  It was desirable, from the appellant's perspective, to provide limited details about the appellant's case until an assessment had been made of the strength of the State's case, when the prosecutor closed its case, and an assessment had been made of the appellant's performance (in particular, his apparent honesty and reliability) in the witness box.  Mr Harris' approach avoided an early restriction upon any possible tactical options that might become available to the appellant later in the trial.

2. Mr Harris submitted to the jury in his opening statement that H was 'not happy with the arrangements of custody'; H made the allegations; and H's 'problem is solved'.[85]  Mr Harris said that the appellant '[denied] anything happened'.[86]

   [85] Trial ts 61.

   [86] Trial ts 61.

3. Mr Harris also submitted to the jury in his opening statement that the jury should examine H's evidence closely and, in effect, should conclude '[t]hat can't be real, can it?'.[87]

   [87] Trial ts 61.

4. Mr Harris' opening statement was consistent with the appellant's case that H had fabricated the allegations; alternatively, that H was a truthful but unreliable witness who had confused his imagination or dreams with reality.

5. Mr Harris' opening statement put before the jury, in effect, a dual (alternative) case theory, namely that H had either fabricated the allegations or that H's recollection was confused and unreliable, having regard to the 'terrible stress on the children and parental alienation' that is 'not uncommon' when a 'matrimonial breakup' occurs.[88]

   [88] Trial ts 61.

6. Mr Harris' closing address sought to rely upon the alternative case theory put in opening, namely that H was confused and unreliable.  That is, H had honestly but mistakenly made the allegations as a result of a state of mind that was not based upon reality.

7. Mr Harris' approach to the defence case in closing was reasonable and appropriate in the circumstances and is readily capable of being seen to be based upon Mr Harris' assessment of the likely impression that the State's case and the defence case had made on the jury.

8. Particular (j) of ground 1 is without merit.

Ground 1:  particular (k):  the appellant's submissions

1. Particular (k) of ground 1 asserts that defence counsel unreasonably failed in his closing address to appropriately make submissions on matters that were the subject of evidence at the trial.

2. Counsel for the appellant submitted that Mr Harris unreasonably failed in his closing address to appropriately make submissions on various matters referred to in particulars (a) and (b) of ground 1.

Ground 1:  particular (k):  its merits

1. We repeat our reasons in relation to particulars (a) and (b) of ground 1.

2. Further, Mr Harris' decision not to suggest to the jury in his closing address that H's mother had influenced H to fabricate the allegations was reasonable and appropriate having regard to her evidence that she was content with the custody arrangements and the appellant's parenting.

3. If Mr Harris had put that proposition to H's mother in cross‑examination, his questions were likely to have elicited a denial from H's mother.  A denial would have had the potential to bolster her evidence that she was content with the custody arrangements and the appellant's parenting.  If the evidence of H's mother had been bolstered in that manner then there was the potential for an increased risk that the jury may have accepted that H had complained of his own accord.  That would, in turn, have increased the risk that the jury would decide that the allegations were true.

4. Mr Harris' failure to cross‑examine H's mother on this issue and then, on the basis of the cross‑examination, make the submission contended for in particular (k), did not occasion a miscarriage of justice.

5. Particular (k) of ground 1 is without merit.

Ground 1:  particular (l):  the appellant's submissions

1. Particular (l) of ground 1 asserts that by reason of not having adduced relevant evidence or cross‑examined on relevant matters which were the subject of the appellant's instructions or information provided by him, defence counsel was unable to and did not make closing submissions on such matters.

2. Counsel for the appellant submitted that Mr Harris' closing address was 'inevitably limited by the fact that important matters [as set out in the earlier particulars of ground 1] were not the subject of evidence adduced for the defence or the subject of cross‑examination of the State's witnesses'.

Ground 1:  particular (l):  its merits

1. Particular (l) does not, in essence, add to the other particulars of ground 1 with which we have already dealt.

2. Particular (l) of ground 1 is without merit.

Ground 1:  particular (m):  the appellant's submissions

1. Particular (m) of ground 1 asserts that defence counsel, without reasonable justification, failed to obtain any proof of evidence or statement from the appellant, and rejected the appellant's offer to provide a chronology of relevant matters, resulting in defence counsel failing to properly apprise himself of relevant matters.

2. Counsel for the appellant submitted:

   (a)Although the evidence at the trial was that H stayed with the appellant for a period of three weeks in May 2017, the appellant's affidavit in the appeal sworn 10 September 2019 states that the three week period in fact occurred in March 2017.

   (b)This discrepancy is significant because it means that 'after the first night [with] the appellant when count 3 was alleged to have occurred, that in addition to the further [three] weeks that [H] chose to remain [with] the appellant, [H] continued going to stay with the appellant in alternate weeks for a period of some [four] months (except while [H] was in Malaysia for about [two] weeks), the allegations have allegedly been made on 9 July 2019 according to [H's mother's] evidence'.

   (c)If Mr Harris had taken a proof of evidence from the appellant, looked at the relevant text messages and accepted the appellant's offer to provide a chronology 'it is very likely that [Mr Harris] would have ascertained the correct month in which [H] stayed for [three] weeks [with] the appellant and when count 3 was said to have occurred'.

Ground 1:  particular (m):  its merits

1. Mr Harris should have obtained a proof of evidence or statement from the appellant before the pre‑recording of H's evidence.  Mr Harris' failure to obtain a proof of evidence or statement, at any time, was bad practice.  The obtaining of a proof of evidence or statement from the accused in a criminal trial facilitates defence counsel's formulation of an appropriate strategy to be followed at the trial and guides defence counsel's approach to the cross‑examination of the State's witnesses and, if the accused gives evidence, facilitates the orderly unfolding of his or her evidence in chief.

2. However, in the present case, we are not persuaded that Mr Harris' failure to obtain a proof of evidence or statement from the appellant occasioned a miscarriage of justice.

3. As we have mentioned, we accept Mr Harris' evidence that he scrutinised the materials in the State brief, including the appellant's electronically recorded interview with the police.

4. Counsel for the appellant's principal complaint in support of particular (m) concerns the appellant's alleged mistake in the evidence he gave at the trial as to the three week period in which H stayed with him having occurred in March 2017.  The appellant asserted in his affidavit sworn 10 September 2019 and in his evidence in the appeal that the relevant month was May 2017 and not March 2017.  As we have mentioned, we disbelieved the appellant's evidence in that respect.

5. The new evidence which the appellant has sought to adduce in the appeal does not establish that the three week period in question occurred in May 2017 and not in March 2017.  In any event, whether the three week period occurred in March 2017 or May 2017 is not significant, for present purposes, having regard to other evidence at the trial that H continued living on a week on/week off basis during the two month period before H made the allegations on 9 July 2017.

6. The trial judge directed the jury, in her summing up, as was appropriate, that the date of each alleged offence was merely a particular and the jury did not have to be satisfied beyond reasonable doubt as to the correctness of the alleged date.[89]

   [89] Trial ts 128.

7. Particular (m) of ground 1 is without merit.

Ground 1:  particular (n):  the appellant's submissions

1. Particular (n) of ground 1 asserts that the defence case, including closing submissions, was presented in a manner that was unclear and confusing.

2. Counsel for the appellant submitted that, during Mr Harris' cross‑examination of H, the prosecutor made a number of successful objections as to the manner in which Mr Harris asked questions of H.  In several instances, after the objection was dealt with, Mr Harris did not return to the subject of the disallowed question.  Counsel for the appellant argued that as a result of the deletion of the prosecutor's objections and the deletion of their resolution from the pre‑recording played to the jury, the jury would have found the cross‑examination of H to be confusing and disjointed.

Ground 1:  particular (n):  its merits

1. It is true that Mr Harris asked questions in the cross‑examination of H that were the subject of successful objections and, consequently, those questions and the objections were edited from the electronic record that was played to the jury.

2. However, the trial judge gave the jury a conventional direction that pre‑recorded evidence is edited routinely and that the jury must not draw any inference adverse to the appellant as a result of the editing.[90]

   [90] Trial ts 65.

3. We are satisfied that, in the circumstances, and with the benefit of her Honour's direction, the jury would have been able to understand H's edited evidence without the evidence appearing unclear, confusing or disjointed.

4. We are also satisfied that Mr Harris' closing submissions were reasonably clear and not confusing, in advancing the case theory referred to in our analysis of particular (j).

5. Particular (n) of ground 1 is without merit.

Ground 1:  particulars (o) and (p):  the appellant's submissions

1. Particular (o) of ground 1 asserts that there is a significant possibility that the matters referred to in particulars (a) to (n) 'considered individually and/or cumulatively' affected the outcome of the appellant's trial.  Particular (p) asserts, further or alternatively to particular (o), that by reason of the matters referred to in particulars (a) to (n), the appellant was deprived of a fair trial.

Ground 1:  particulars (o) and (p):  their merits

1. Particulars (o) and (p) merely assert, in essence, that the matters complained about in the preceding particulars, whether considered individually or in combination, affected the outcome of the appellant's trial and deprived him of a fair trial.

2. It is apparent that particulars (o) and (p) are conclusionary in nature and, given the absence of merit in the earlier particulars, do not advance the appellant's case beyond the earlier particulars.

3. Apart from particular (i), the appellant does not have a reasonably arguable case that the matters complained of in the various particulars constituted a material irregularity.  Consequently, when the cumulative force of those matters is considered, the position is not improved from the appellant's perspective.

4. Particulars (o) and (p) of ground 1 are without merit.

Ground 2:  the appellant's submissions

1. As we have mentioned, ground 2 alleges that the trial judge misdirected the jury in relation to the evidence given by H's mother and that the misdirection occasioned a miscarriage of justice.

2. Counsel for the appellant submitted that Mr Harris' failure to ask her Honour to direct the jury to disregard the evidence of H's mother concerning her contact with her friend, J, who worked for the Department of Education, occasioned 'significant prejudice' to the appellant.

3. According to counsel for the appellant, the impugned evidence was 'plainly inadmissible' and the trial judge was obliged to direct the jury to disregard that evidence.

4. Counsel for the appellant argued that the jury was likely to have given weight to the evidence in question and that there was a real possibility the evidence 'affected the jury's deliberations, and thereby occasioned a miscarriage of justice'.

Ground 2:  its merits

1. We repeat our reasons in relation to particular (g) of ground 1.

2. As we have mentioned, in the context of considering particular (g):

   (a)H's mother volunteered the impugned evidence in response to a question from the prosecutor about contacting the police;

   (b)H's mother did not state, in effect, that her friend, J, had come over and spoken to H; and

   (c)it was not implicit in the impugned evidence that J had in fact determined that H's allegations about the appellant were truthful.

3. Also, as we have mentioned, in the context of considering particular (g), the trial judge gave the jury orthodox directions in her summing up on the burden of proof and the standard of proof.  Her Honour also directed the jury that H's evidence as to the alleged offences had not been confirmed or corroborated by any other witness.[91]

   [91] Trial ts 132.

1. There is no reasonable possibility that the jury would have given weight to the evidence of H's mother in relation to her friend, J, in the manner asserted on behalf of the appellant.  H's mother did not state, in effect, that J had come over and spoken to H and it was not implicit in H's mother's evidence that J had in fact determined that H's allegations were true.  Further, her Honour instructed the jury that H's evidence in relation to the alleged offences had not been confirmed or corroborated by anyone else.  It would have been apparent to the jury, from her Honour's instruction, that neither J nor anyone else had confirmed after speaking with H that his allegations against the appellant were credible and reliable.  There is no basis in the trial record for any suspicion that the jury would have misunderstood the evidence of H's mother concerning J or her Honour's instruction as to the absence of any confirmation or corroboration of H's evidence in relation to the alleged offences.

2. Ground 2 is without merit.

Conclusion

1. The appellant's applications in the appeal dated 16 September 2019 and 23 October 2019, and the State's application in the appeal dated 2 October 2019, should be granted.

2. The State's application in the appeal dated 1 November 2019 should be dismissed.

3. Leave to appeal in relation to particular (i) of ground 1 should be granted.  Leave to appeal should be refused in respect of the other particulars of ground 1 and in respect of ground 2.  Neither ground 1 nor ground 2 has been made out.  The appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

KS
Associate to the Honourable Justice Buss

23 JUNE 2020