Criminal law - Appeal against conviction - Appellant convicted after trial on two counts of sexual offending against a girl - Two offences separated by an interval of about seven years - Propensity evidence - Significant probative value - Longman warning - Alleged admissions by the appellant - Liberato direction

Evidence Act 1906 (WA), s 31A

Application for an extension of time to appeal dismissed

AM v The State of Western Australia [2008] WASCA 196; (2008) 188 A Crim R 457

Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19

Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314

Christophers v The Queen [2000] WASCA 308; (2000) 23 WAR 106

Cooper v The State of Western Australia [2010] WASCA 190

Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161

Crisafio v The Queen [2003] WASCA 104; (2003) 27 WAR 169

Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413

DKA v The State of Western Australia [2017] WASCA 44

Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343

Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122

Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285

El-Haddad v The Queen [2015] NSWCCA 10; (2015) 88 NSWLR 93

Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47

FJL v The State of Western Australia [2010] WASCA 8

House v The King [1936] HCA 40; (1936) 55 CLR 499

IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

Johnson v The State of Western Australia [2008] WASCA 164; (2008) 186 A Crim R 531

Koushappis v The State of Western Australia [2007] WASCA 26; (2007) 168 A Crim R 51

Liberato v The Queen [1985] HCA 66; (1985) 195 CLR 507

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79

MAS v The State of Western Australia [2012] WASCA 36

R v Anderson [2001] NSWCCA 488; (2001) 127 A Crim R 116

RJH v The State of Western Australia [2012] WASCA 137

RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620

Salmon v The Queen [2001] WASCA 270

SPB v The State of Western Australia [2012] WASCA 136

Stubley v The State of Western Australia [2011] HCA 7; (2011) 242 CLR 374

Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234

Turner v The State of Western Australia [2014] WASCA 214

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

Wimbridge v The State of Western Australia [2009] WASCA 196

1 BUSS P: The appellant has applied for an extension of time to appeal against conviction.

2 On 8 October 2014, the appellant was convicted, after a trial in the District Court before Stevenson DCJ and a jury, on two counts of sexual offending against a girl, T.

3 Count 1 alleged that on a date unknown between 15 October 2005 and 24 October 2005, at a Perth suburb, the appellant indecently dealt with T, a child under the age of 13 years, by placing her hands on his penis, contrary to s 320(4) of the Criminal Code (WA) (the Code).

4 Count 2 alleged that on 21 July 2013, at a Perth suburb, the appellant indecently dealt with T, a child of or over the age of 13 years and under the age of 16 years, by getting into bed with her when he was naked, and that T was under the appellant's care, supervision or authority, contrary to s 321(4) of the Code.

5 On 21 November 2014, the trial judge imposed a total effective sentence of 2 years 6 months' immediate imprisonment. The sentence was backdated to 8 October 2014. A parole eligibility order was made.

6 I would refuse to grant an extension of time. The appeal should be dismissed.

7 The last date for appealing against conviction was 12 December 2014. The appellant did not file his appeal notice until 19 February 2016. He has filed an affidavit sworn by his lawyer, Alixandra McGregor, in support of the application to extend time.

8 On 22 April 2016, Mazza JA referred the application for an extension of time to the hearing of the appeal.

9 The applicable principles governing the exercise of this court's discretion to extend time are set out in Wimbridge v The State of Western Australia [2009] WASCA 196.

Overview of the relationship between the appellant and T and their respective families

10 T is the daughter of J. J and the appellant were close friends. The appellant was married to K. J's family and the appellant's family often socialised. They went on holidays together. The appellant has a daughter, A, who is about the same age as T, and a stepdaughter, C, who is about 8 or 9 years older than T and A.

11 As to count 1, at the material time T was aged 6. She was staying with the appellant and his family, at their house in a Perth suburb, while her mother, J, was in Queensland. T slept in C's bedroom. One night T awoke to find the appellant kneeling beside the mattress or camp bed on which she was sleeping. He was facing her and his penis was exposed. The appellant took T's hands and put them on his penis. He used her hands to masturbate him. After a couple of minutes, T removed her hands from his penis. The appellant told her not to tell anyone. He also told her to go back to sleep, which she did.

12 As to count 2, at the material time T was aged 13. T was staying overnight at the appellant's house while her mother, J, and the appellant's wife, K, went out for the evening. The appellant was caring for T and his daughter, A. T and A went to sleep in the appellant's and his wife's bed. The appellant was to sleep on a couch in the lounge room. He had recently had surgery. T was woken by the appellant. He shook her wrist and asked whether he could 'hop in for a little bit'. T moved towards A, and the appellant got into bed next to T. T attempted to rouse A. A awoke and saw her father in the bed. After feeling something on her hip, T moved to the end of the bed. As she did so, she saw that the appellant was naked. T left the bedroom. The appellant crawled after her. By that time he was wearing a robe. After leaving the bedroom, T went to the toilet. She then found the appellant in the hallway. They moved to the lounge room. The appellant apologised to T. He said, 'I'm sorry about what just happened'. T replied, 'I thought it was [A]'. The appellant then said, 'I thought you wanted to do what we did last time'.

13 The State alleged that after each offence T made a complaint.

14 As to count 1, the State alleged that T told both her mother, J, and the appellant's wife, K, that something had occurred. Although there was a discrepancy between J and K as to whether K repeated to J what T had told K, T informed both of them shortly after the offence occurred.

15 T told K that she had touched '[the appellant's] willy', it had happened 'last night' and she was not sure whether it was a dream or not. K told the appellant, within about 20 minutes, what T had said to her. He responded, 'Well, why would she say that?' and insisted that his wife tell J.

16 T told her mother, J, upon J returning from Queensland, that 'I think that when I was asleep [the appellant] came into my room' and 'he got my hand and he put it on his willy and he was shaking it'. T said to J, 'I thought he was going to wee on me'. T added that the appellant told her to go back to sleep and not tell anyone. J asked T, 'Are you sure that this happened?'. J said T was 'a little confused because she'd been asleep'. T asked J, 'Is it possible to have bad dreams that seem like they're real?'. Although J did not speak to the appellant about her conversation with T, she did speak to K about it.

17 As to count 2, the State alleged that, after she had returned to the bedroom, T told A what had happened. T then sent a text message to her mother, J, as follows:

I went to sleep and then even [A] saw and [the appellant] was in here pantless. I'm not going back to sleep. He was laying next to me.

18 When J returned to the appellant's house she saw that T was crying. The next morning, the incident was reported to the police.

19 The appellant did not give evidence or adduce any evidence at the trial.

20 However, on 14 October 2013, the appellant participated in a video-recorded interview with police. The video recording was played to the jury and tendered as part of the State's case.

21 As to count 1, the defence case was that the alleged offending did not occur. However, when T was staying at the appellant's home, an incident did happen. T and A came into the appellant's and K's bedroom when he was in bed. They lifted the covers and said they wanted to see what his 'private parts' looked like (ts 41).

(a) At the material time, the appellant was recovering from a thyroid operation. He was taking pain medication and had consumed some alcohol.

(b) When he was lying on the couch in the lounge room, he soiled his underpants. He went to his and K's bedroom to find clean underpants.

(c) As he approached a set of drawers beside the bed in which T and A were sleeping, his robe caught on the side of the bed. He fell onto the bed and then onto the floor.

(d) Although he was wearing a robe, it may have appeared that he was naked because the robe was pulled back as he fell.

(e) The appellant took a fresh pair of underpants or socks from the drawers and left the bedroom. By that time, T was in the toilet.

(f) The appellant denied that there was a conversation in the hallway or the lounge room as alleged by T, except that he told T to go back to bed.

24 Ground 1 alleges, in substance, that the trial judge erred in admitting evidence of count 2 as 'propensity evidence', within s 31A of the Evidence Act 1906 (WA), in respect of count 1; in particular, his Honour erred in finding that evidence of count 2 had 'significant probative value' in relation to the facts in issue on count 1.

25 Ground 2 asserts that his Honour erred in failing to give 'a proper Longman warning' in relation to count 1.

26 Ground 3 asserts that his Honour erred in failing to give adequate directions to the jury on the appellant's apparent admissions in relation to counts 1 and 2 which, on T's evidence, were made on 21 July 2013 in the lounge room.

27 Ground 4 asserts that his Honour erred in failing to give 'a complete Liberato direction'.

28 Ground 5 asserts that if any of grounds 1, 2 or 4 is successful, or if ground 3 is successful in relation to count 1, a miscarriage of justice occurred at the trial in respect of count 2.

29 On 22 April 2016, Mazza JA granted leave to appeal on grounds 1 and 2 and referred the application for leave to appeal on grounds 3, 4 and 5 to the hearing of the appeal.

Ground 1: the trial judge's ruling in relation to 'propensity evidence' within s 31A of the Evidence Act

30 Shortly after the commencement of the trial and before the prosecutor made his opening address, the prosecutor informed the trial judge and defence counsel, in the absence of the jury, that he proposed to mention in his opening address the manner in which the jury may use evidence relating to count 2 in their consideration of count 1 (ts 21).

(a) In his submission, the evidence relating to count 2 was admissible 'for propensity purposes' under s 31A of the Evidence Act (ts 21).

(b) The evidence relating to count 2 would be 'significantly probative of the issue in count 1 which is likely to be whether or not that incident occurred at all or whether [it is] possible that the complainant [T] dreamt that incident' (ts 21).

(c) Evidence of the appellant's alleged conduct, the subject of count 2, was capable of demonstrating that he had 'a sexual interest in the complainant [T] and was prepared to act on that sexual interest in a sexual manner when she was sleeping' (ts 21).

32 Defence counsel informed his Honour that the appellant 'formally [opposed]' the admissibility of the evidence relating to count 2 as propensity evidence in respect of count 1 (ts 22).

33 The trial judge ruled that 'having regard to the provisions of s 31A and the basis upon which the State proposes to rely upon that evidence ... the evidence can be used in the way contended for by the State' (ts 22).

Ground 1: the trial judge's directions as to the critical nature of T's evidence

34 The trial judge directed the jury, in his summing up, that it must be satisfied beyond reasonable doubt 'about the truthfulness of [T's] evidence, about the alleged events, before [the jury] could convict [the appellant] of the count that [it was] considering' (ts 182).

Ground 1: the trial judge's directions on propensity evidence in his summing up

35 The trial judge gave directions on propensity evidence in his summing up as follows:

In this trial, members of the jury, the State says that if you are satisfied beyond reasonable doubt of the guilt of [the appellant] in relation to count 2, on 21 July 2013, then you might wish to take that finding into account when you consider count 1. In two ways, you might conclude firstly, that [the appellant] was not only sexually attracted to [T], but that he had a tendency to act on that attraction when she was sleeping. And secondly, that it tends to suggest that [T] was not simply dreaming in 2005.

The State submits that by reason of these matters you could conclude that it is likely he did commit the alleged offence in count 1. The State says, in any event, that you can rely upon the evidence of [T] herself and the supporting [complaint] evidence of [T] in the way that I have directed you, to be satisfied in any event beyond reasonable doubt about count 1. But if you wish, you may have regard to a finding, if that is your finding in relation to count 2 of the guilt of [the appellant], in this way, subject to what I'm about to say.

If you are able to reach a verdict in relation to count 1 without reference to your finding in relation to count 2 then, as I've said, you don't need to listen to what I'm about to say. But if you do wish to consider any findings in relation to count 2 then you must do so, and can only do so in this way.

You can't use any findings in relation to count 2 to make up for any deficiencies in the evidence with respect to count 1. You can't make up a gap in the evidence in relation to count 1. You can't move automatically to a finding of guilty in relation to count 1 simply because you have found [the appellant] guilty of count 2.

With respect to the tendency of [the appellant] towards [T] in the manner alleged by the State, you must be satisfied beyond reasonable doubt on the evidence you accept that [the appellant] had that tendency before you could use tendency in your deliberations in considering the guilt of [the appellant] in relation to count 1.

You can't draw an inference in a criminal trial unless it is the only reasonable inference available on the evidence. And plainly, to contend that [the appellant] had the tendency referred to by the State towards [T] while she was sleeping would require you to draw an inference.

So if you are satisfied that there is no other reasonable explanation on the evidence before you, except to infer the tendency, which the State contends for, then you can draw that inference, provided you are satisfied beyond reasonable doubt, and if you reach that position, you can take it into account when you consider all of the evidence in relation to count 1 in reaching your verdict.

The ultimate question for you to decide in relation to count 1, as it is for count 2, is whether, having regard to the whole of the evidence, you are satisfied beyond reasonable doubt that the alleged offence occurred (ts 200 - 201).

36 Defence counsel did not request his Honour to give the jury any additional direction or redirection in relation to the propensity evidence (ts 205 - 206).

37 Before this court, counsel for the appellant did not complain about the propensity evidence directions.

(a) Count 1 involved alleged sexual offending by the appellant against a 6-year-old girl, by having her masturbate him.

(b) Count 2 involved alleged sexual offending by the appellant against a 13-year-old girl, by climbing into bed, naked, next to her.

39 It was argued that the only common feature between count 1 and count 2 was that both incidents concerned T and both incidents occurred in the appellant's home.

(a) there was a significant length of time between the two alleged incidents;

(b) according to T, nothing else occurred during the intervening period even though the appellant had contact with T during that period;

(c) there was a significant difference in T's age when the first incident allegedly occurred and her age when the second incident allegedly occurred; and

(d) although the offence charged in count 1 was identical to the offence charged in count 2, the facts of each alleged offence were materially different.

41 Counsel for the appellant argued that the material differences must be evaluated in the context of other evidence in relation to count 1. The other evidence comprised:

(a) T's recollection that she thought the incident may have been a dream;

(b) the evidence of T's complaint, which was made in the context of T having thought that the incident may have been a dream; and

(c) the appellant's denial in his video-recorded interview with police that the incident had occurred, although he said there was an occasion when T and A had come into his bedroom, while he was in bed, and they had lifted the covers and said they wanted to see his genitals.

42 According to counsel, the evidence relating to count 2 was insufficient to show a tendency towards T. The evidence relating to count 2 was 'so different that it [did] not have a significant probative value as to [the appellant's] tendency towards a particular class of child, or [as] to his offending in a particular way against that class of children, or that child'. It was submitted, on that basis, that the jury should not have been directed that if they were satisfied beyond reasonable doubt, on the evidence they accepted in respect of count 2, that the appellant had the tendency alleged by the State, then the jury could use the evidence of that tendency in their deliberations as to whether, on the whole of the relevant evidence, they were satisfied beyond reasonable doubt that the offence alleged in count 1 had occurred.

43 Section 31A of the Evidence Act provides:

(a) similar fact evidence or other evidence of the conduct of the accused person; or

(b) evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;

relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.

(2) Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -

(a) that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and

(b) that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

(3) In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.

44 In s 31A(1), 'propensity evidence' is defined by reference to the conduct, character or reputation of the accused or a tendency that the accused has or had. It includes similar fact evidence. Section 31A(1) defines 'relationship evidence' in more specific terms, by reference to the accused's attitude or conduct towards another person, or a class of persons, over a period of time. The categories of 'propensity evidence' and 'relationship evidence', as defined in s 31A(1), are not mutually exclusive. There will, no doubt, often be cases where evidence which answers the description of 'relationship evidence' will also fall within the definition of 'propensity evidence'.

45 The tests for admissibility in s 31A(2)(a) and (b) apply to both 'propensity evidence' and 'relationship evidence', as defined. Neither 'propensity evidence' nor 'relationship evidence' will be admissible under s 31A unless the court considers that:

(a) the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and

(b) the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

46 The court may decide, in a particular case, that the tests in s 31A(2)(a) and (b) are satisfied in relation to the proposed evidence generally; that is, the evidence should be admitted generally at the trial, and not merely for a particular or limited purpose. Alternatively, the court may decide, in a particular case, that the test in s 31A(2)(a) is satisfied, but the test in s 31A(2)(b) is not satisfied unless the evidence in question is admitted:

(b) subject to the trial judge giving the jury a specific direction or directions in relation to the evidence.

47 Those examples are not an exhaustive statement of the issues which may arise in considering the application of s 31A to the facts and circumstances of a particular case or how those issues should be resolved.

48 Where 'propensity evidence' or 'relationship evidence' is disputed by the accused, it is, nevertheless, admissible as part of the State's case if the conditions in s 31A(2)(a) and (b) are satisfied.

49 In Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [60] - [61], Steytler P said in relation to the concept of 'significant probative value' within s 31A(2)(a):

The evidence in question must obviously be relevant before it can be admitted into evidence. That is to say, it must be such as could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding: Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [2] (Gleeson CJ); Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 [50]. It could otherwise have no probative value, let alone 'significant' probative value.

Before evidence can have significant probative value it must be such as 'could rationally affect the assessment of the probability of the relevant fact in issue to a significant extent: ie, more is required than mere ... relevance': Zaknic Pty Ltd v Svelte Corporation Pty Ltd [1995] FCA 1739; (1995) 61 FCR 171, 175 - 176. Heydon [21245] suggests that significant probative value is something more than mere relevance but something less than a 'substantial' degree of relevance and that it is a probative value which is 'important' or 'of consequence'. He makes the point that the significance of the probative value of tendency evidence must depend on the nature of the facts in issue to which it is relevant and the significance or importance which that evidence may have in establishing the fact: Lockyer (1996) 89 A Crim R 457, 459; Lock (1997) 91 A Crim R 356, 360 - 361; Fordham (1997) 98 A Crim R 359, 370; Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51 [77] - [82]; The State of Western Australia v Osborne [2007] WASCA 183 [13].

(a) Evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue.

(b) The test in s 31A(2)(a) will be satisfied if the court 'considers' (that is, thinks) that the propensity evidence 'would' (as distinct from could), either by itself or having regard to other evidence adduced or to be adduced, rationally affect, to a significant extent, the assessment of the probability of the existence of a fact in issue.

(c) The adjective 'significant', in the phrase 'significant probative value' in s 31A(2)(a), connotes 'important' or 'of consequence'.

(d) If propensity evidence has 'probative value' then whether the probative value is 'significant' will depend upon the nature of the fact in issue to which it is relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact.

51 In Dair, Steytler P made these points about the comparison which s 31A(2)(b) requires. First, s 31A(2)(b) requires the court to assess the degree of risk of unfairness at trial that will be occasioned by the admission of the evidence in question, the court having already found under s 31A(2)(a) that the evidence has significant probative value. Secondly, when assessing the risk of an unfair trial for this purpose, the court must take into account any directions that might be given to the jury in an attempt to overcome the prejudice, and their likely effect on the jury. Thirdly, after identifying the probative value of the evidence in question and the degree of risk of an unfair trial, the court must consider the conclusion that fair-minded people would draw from a comparison of these issues. Although fair-minded people are reasonable members of the general community who are not lawyers, it must be assumed that such people have informed themselves of 'at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances': Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53] (Kirby J).

52 A number of other observations may be made about s 31A including, in particular, the phrase 'significant probative value':

(a) If an appellant who has been convicted after trial appeals to this court against his or her conviction on the ground that evidence was wrongly admitted under s 31A and the admission of the evidence occasioned a miscarriage of justice, the task of this court is to decide for itself whether the evidence in question had significant probative value. That approach has consistently been taken by this court in dealing with appeals against conviction. It was also the approach taken by the High Court in Stubley v The State of Western Australia [2011] HCA 7; (2011) 242 CLR 374 and IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300. In other words, on an appeal against conviction after trial, this court determines whether the evidence in question was admissible by reference to the principles enunciated in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 and not by reference to those enunciated in House v The King [1936] HCA 40; (1936) 55 CLR 499. See DKA v The State of Western Australia [2017] WASCA 44 [33] - [34] (Buss P, Mazza JA & Beech J).

(b) For the purpose of determining its admissibility, the court must take the proposed propensity evidence or relationship evidence at its highest from the perspective of the prosecution. See Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [153] (Roberts-Smith JA, Wheeler JA agreeing); DKA [35].

(c) The significance of the probative value of proposed propensity evidence or relationship evidence depends on the nature of the facts in issue to which the proposed propensity evidence or relationship evidence is relevant, and the significance or importance which that evidence may have in establishing those facts. In other words, the proposed propensity evidence or relationship evidence must be influential in the context of fact-finding. See IMM [46] (French CJ, Kiefel, Bell & Keane JJ).

(d) Proposed propensity evidence or relationship evidence will have probative force if it increases the probability that the accused committed the charged acts, including by the capacity of that evidence to support the credibility of the complainant's account of the charged acts.

(e) The question whether, in a particular case, proposed propensity evidence has significant probative value may depend on the degree of generality or specificity with which the propensity is identified. On the one hand, a propensity which is identified at a high level of generality will, ordinarily, be an obstacle to its having significant probative value. On the other, in general, the closer and more particular the similarity between the alleged propensity and the alleged charged acts, the greater the likelihood that the proposed propensity evidence will have significant probative value. See El-Haddad v The Queen [2015] NSWCCA 10; (2015) 88 NSWLR 93 [70] - [72] (Leeming JA, McCallum & R A Hulme JJ agreeing) and the cases there cited; DKA [42].

(f) However, even where a propensity is identified at a high level of generality, it is necessary to examine the proposed propensity evidence in detail in the course of determining whether, of itself or having regard to other evidence adduced or to be adduced, the evidence in question is properly characterised as having significant probative value. The matters which must be examined include the nature, quality, extent and duration of the conduct the subject of the proposed propensity evidence, on the one hand, and the nature, quality, extent and duration of the charged acts, on the other, and the nature and extent of any rational connection between the conduct the subject of the proposed propensity evidence and the charged acts. See DKA [43].

(g) In IMM, the appellant was convicted after a trial of two counts of indecent dealing with a child and one count of sexual intercourse with a child under the age of 16 years. The complainant was the appellant's step-granddaughter. She alleged a history of sexual abuse which commenced when she was aged about 4 and continued until she was 12. The complainant's evidence was the only direct evidence of the commission of the offences. The prosecution was permitted, over objection by defence counsel, to adduce certain 'tendency evidence'. The tendency evidence was given by the complainant and was that, while the complainant and another girl were giving the appellant a back massage, he ran his hand up the complainant's leg. The trial judge was of the view that the evidence was capable of showing that the appellant had a sexual interest in the complainant, and that there was a strong temporal nexus between this incident and the charged acts. The High Court allowed the appellant's appeal against conviction and ordered a new trial. French CJ, Kiefel, Bell and Keane JJ held that the tendency evidence given by the complainant did not qualify as having 'significant probative value' and was therefore not admissible under s 97(1)(b) of the Evidence (National Uniform Legislation) Act 2011 (NT). The trial therefore miscarried. Their Honours said:

It may be accepted for present purposes that the evidence was relevant as it was capable of showing that the appellant had a sexual interest in the complainant, as the trial judge ruled. This is not put in issue by the appellant. But s 97(1)(b) requires more. It requires that the evidence have significant probative value.

In a case of this kind, the probative value of this evidence lies in its capacity to support the credibility of a complainant's account. In cases where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met. That is not to say that a complainant's unsupported evidence can never meet that test. It is possible that there may be some special features of a complainant's account of an uncharged incident which give it significant probative value. But without more, it is difficult to see how a complainant's evidence of conduct of a sexual kind from an occasion other than the charged acts can be regarded as having the requisite degree of probative value.

Evidence from a complainant adduced to show an accused's sexual interest can generally have limited, if any, capacity to rationally affect the probability that the complainant's account of the charged offences is true. It is difficult to see that one might reason rationally to conclude that X's account of charged acts of sexual misconduct is truthful because X gives an account that on another occasion the accused exhibited sexual interest in him or her [61] - [63].

(h) So, in the case of an uncharged incident, where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met. However, it is not correct to say that a complainant's unsupported evidence of an uncharged incident can never have significant probative value. There may be some 'special features of a complainant's account' of an uncharged incident which give it significant probative value but, without more, a complainant's account of an uncharged incident will not, at least ordinarily, have the requisite degree of probative value.

53 In the present case, T's evidence in respect of count 2 was, in summary, as follows:

(a) T had gone to sleep at about 2.10 am in the same bed as A (VROI 4).

(b) Shortly afterwards, the appellant came to T's side of the bed, put his hand on her wrist and shook her wrist to get her to move over (VROI 4).

(c) The appellant said 'just move over for a little bit' (ts 64 - 65).

(d) T moved across the bed, close to A. The appellant got into the bed next to T. T looked over her shoulder and saw that the appellant was shirtless (VROI 5).

(e) T attempted to wake A by tapping her on the shoulder and pulling her hair, but A did not wake (VROI 5).

(f) T felt something on her hip. She sat up and crawled to the end of the bed. As she did so, she saw that the appellant was naked (VROI 5).

(g) T left the bedroom and went to the toilet. As she did so, she heard the appellant '[drop] to the floor' and then heard him crawling after her (VROI 5).

(h) Shortly afterwards, the appellant said to T in the lounge room, 'I thought you wanted to do what happened before' (VROI 19) or 'I thought you ... wanted to do what [we] did last time' (ts 70).

54 The evidence of A in respect of count 2 was, in summary, as follows:

(a) T attempted to wake A, but A pushed her arm away. T sat up and, as a result, A awoke. The appellant was in the bed (VROI 3 - 4).

(b) T crawled towards the end of the bed. The appellant 'sort of fell' out of the bed. He began crawling after T. T left the bedroom. A 'leaned up' and could see the appellant naked on the floor, curled into a ball. A asked the appellant what he was doing. He replied, 'Oh I'm looking for my socks'. A lay down and pulled the covers over her head. She was shocked. When A removed the covers from her head, the appellant was wearing a robe (VROI 3 - 4).

55 The appellant admitted, in his video-recorded interview with police, that there was an occasion when he entered the bedroom and approached the bed where T and A were sleeping. However, he denied being naked and he denied getting into bed with the girls. The appellant said he fell onto the bed because he stumbled when his robe caught on the edge of the bed (VROI 6 - 7, 48 - 49).

56 In my opinion, if the jury was satisfied beyond reasonable doubt as to the truthfulness of T's evidence relating to count 2 (in particular, her evidence that the appellant got into bed with her when he was naked), that evidence, having regard to other evidence adduced at the trial, had significant probative value in the context of fact-finding in relation to count 1; in particular, in relation to the assessment of the probability that:

(a) the appellant in fact placed T's hands on his penis as alleged in count 1; and

(b) T's recollection of the charged act the subject of count 1 was not a dream, but an actual recollection of objective fact.

58 First, T's evidence of the appellant's conduct relating to count 2, if accepted by the jury beyond reasonable doubt, demonstrated that the appellant had a sexual interest in T, and that he was prepared to act on the interest when T was sleeping at his home.

59 Secondly, on T's evidence, if accepted by the jury beyond reasonable doubt, the appellant acted on his sexual interest in her by committing count 2, notwithstanding that his daughter, A, was sleeping in close proximity to T.

60 Thirdly, T's evidence of the appellant's conduct relating to count 2 was corroborated in numerous respects by A's evidence including, notably, A's evidence that at the material time:

(d) the appellant 'sort of fell' out of the bed and began crawling after T;

(f) A saw the appellant naked on the floor, curled into a ball.

61 Fourthly, T gave evidence that, shortly after the commission of count 2:

(b) the appellant said, 'I thought you wanted to do what happened before' (VROI 19) or 'I thought you ... wanted to do what [we] did last time' (ts 70).

62 It was open to the jury to find that the appellant had in fact made a statement to that effect and to find that it was an admission against interest in that he was referring to the charged act the subject of count 1.

63 Fifthly, if the jury accepted beyond reasonable doubt T's evidence of the appellant's conduct relating to count 2, it would objectively be unlikely that her recollection of his conduct the subject of count 1 was a dream.

64 Sixthly, the appellant's propensity was identified with reasonable specificity; namely, he had a sexual interest in T, and he was prepared to act on the interest when T was sleeping at his home.

65 Seventhly, the trial judge directed the jury that the use to which the jury might put T's evidence relating to count 2, in its consideration of count 1, was confined to whether the evidence indicated that:

(b) the appellant had a tendency to act on the attraction when T was sleeping at his home; and

(c) T was not dreaming in relation to the charged act the subject of count 1.

66 Eighthly, it is true that there was a difference between the charged act the subject of count 2 and the charged act the subject of count 1, but the difference does not detract materially from the significant probative value of T's evidence relating to count 2. Both charged acts involved indecent dealing. The State's case on count 1 was in effect that the appellant completed the episode of indecent dealing by placing T's hands on his penis and then using her hands to masturbate him. The State's case on count 2 was in effect that, although he got into bed with T when he was naked, and T felt 'something' on her hip, the appellant did not complete the episode of indecent dealing because T left the room and A awoke. There was, in context, a substantial degree of similarity between the nature of the charged act the subject of count 2 and the nature of the charged act the subject of count 1.

67 Ninthly, the interval between the alleged occurrence of count 2 and the alleged occurrence of count 1 (namely, about seven years and nine months) is a relevant factor to be taken into account in evaluating whether T's evidence relating to count 2 had significant probative value in relation to the assessment of the probability that:

(a) the appellant in fact placed T's hands on his penis as alleged in count 1; and

(b) T's recollection of the charged act the subject of count 1 was not a dream, but an actual recollection of objective fact.

68 That factor, at least in isolation, weighs against T's evidence relating to count 2 having significant probative value.

69 Tenthly, however, the difference between the charged act the subject of count 2 and the charged act the subject of count 1, and the interval between the alleged offences, are in context substantially outweighed by the following:

(a) T was a young girl when both charged acts allegedly occurred (count 1: 6 years and count 2: 13 years);

(b) T's evidence of the appellant's conduct relating to count 2 was corroborated by A in numerous respects;

(c) T's evidence as to the appellant's admission against interest;

(d) if count 2 occurred, as alleged by T, it would objectively be unlikely that her recollection of the appellant's conduct the subject of count 1 was a dream;

(e) the appellant's propensity was identified with reasonable specificity;

(f) the use to which the jury might put T's evidence relating to count 2, in its consideration of count 1, was confined and identified with precision;

(g) there was a substantial degree of similarity between the nature of the charged act the subject of count 2 and the nature of the charged act the subject of count 1;

(h) T gave evidence that there was no opportunity for the appellant to offend against her in the intervening period because, on the occasions when she stayed at his home, either her mother or the appellant's wife were in the home (VROI 32 - 33); and

(i) it was objectively unlikely that the appellant would have attempted to offend against T in the intervening period, when his wife or T's mother was in the home, because T had complained to them about count 1 shortly after it allegedly occurred and K had informed the appellant promptly of the complaint made to her, even though T's complaints were not acted upon at the time.

70 Eleventhly, the present case is distinguishable from IMM in that the appellant's conduct the subject of count 2 was not an uncharged incident. However, in any event, T's account of the appellant's conduct the subject of count 2 was, as I have mentioned, corroborated by A in numerous respects. Also, the trial judge directed the jury, in effect, that it could not use the appellant's conduct the subject of count 2 as propensity evidence in relation to count 1 unless the jury was satisfied beyond reasonable doubt that T's account of the appellant's conduct the subject of count 2 was truthful and accurate and the jury concluded that that conduct revealed the relevant propensity.

Ground 2: defence counsel's opening statement

72 Defence counsel said in his opening statement that the offending alleged in count 1 'simply didn't happen at all' (ts 41). He elaborated:

There was certainly no dispute that [T] was staying at [the appellant's] home when her mother was getting married in Queensland.

But [the appellant] says that nothing of that sort and what she described happened at all. The only thing that seemed to have happened as far as he was concerned [was] that he was lying in bed one day and [T] and his daughter, [A], came in, lifted up the covers and ... [T] indicated that she wanted to see what his private parts looked like and that was it.

He told them to leave and that was the end of it. There wasn't any occasion that he came into the room where [T] was sleeping (ts 41).

73 On 29 July 2013, T participated in a video-recorded interview with police. The video recording was played to the jury and tendered as part of her evidence-in-chief. T said at the trial that her statements in the interview were the truth (ts 46).

74 At the time of the interview T was aged 13. When the trial occurred in October 2014 she was aged 15.

75 T gave the following account, in her video-recorded interview, of the offending alleged in count 1:

Q. [Y]ou said that [A] was on the bed and you were on the mattress?

A. On the floor, yep.

Q. Yep. Okay. Um, and that you had been asleep.

A. Yep.

Q. Yep, so when you woke up, what was the first thing you remember?

A. Um, [the appellant] was grabbing my hands to put on his private parts.

Q. Mm hm.

A. And he was shaking it and I woke - when I woke up he said, 'Don't tell anyone and go back to sleep'.

Q. Mm hm. Okay. So if you were on the mattress, where was he?

A. On - at the side of the mattress, on the floor.

Q. Mm hm.

A. Kneeling down.

Q. Mm hm. And which way was he facing?

A. Facing me.

Q. Mm hm. Okay. Um, and you said that he had your hands on his privates?

A. Yep.

Q. Yep. How did he put his hands on [his privates]?

...

A. He - um, he had my wrist or my - on the back of my hands and put them yeah, around the sides.

Q. Mm hm. How many of your hands did he do that with?

A. Both.

Q. Mm hm. And what could you feel?

A. I don't really remember feeling anything, and I was not - I was aware of what's going on but I wasn't fully awake.

Q. Mm hm.

A. And I was little at the time.

Q. Okay. Um, and when you say 'on his privates' what do - what do you mean?

A. On his um, on his willy.

Q. Mm hm. Okay. Um, and you said that you don't remember feeling anything. How do you know that ... your hands were on his privates?

A. I was awake but - and like I could see his whole like figure and um, but cause I was little and nothing was really done about it only because I - um, I was confused if you could have a dream that was - felt like it was true - -

Q. Mm.

A. - - and all the questions, I kind of got overwhelmed and thought - and yeah, but - what was the question you just asked me ... (indistinct) ...

Q. Um, how did you know that your hands were on - no, it's okay, you did answer that.

A. Did I?

Q. You said that you were awake.

A. Okay.

Q. Yep. Um, and you said that he was shaking it. What do you mean by shaking?

A. Um, he had his hands on there as well and he was shaking it but - -

Q. Mm hm.

A. - - because I have an older brother and I knew that when they have a wee they shake it, I thought he was going to wee on me (VROI 27 - 29).

76 T said she slept on the floor, on a mattress or camp bed, in C's bedroom (ts 58 -59). A also slept in that bedroom (ts 58). T did not know where C was (ts 58).

77 T denied in cross-examination at the trial that during the one week period in October 2005, when she stayed at the appellant's house, she talked about 'willies':

Now, do you recall ... whilst you were staying over at the [appellant's] house, that you were talking about willies - - - ?---No.

- - - to someone?---No, not at all.

You didn't talk about willies?---No.

I'm not talking about the incident where you say [the appellant] came into the room but I'm talking about while you were there that you said something to [the appellant's wife] that your grandad had a big willy and your stepfather had a big willy?---No, nothing like that.

You sure about that---Yes. Positive.

And that you - that maybe you and [A] were sort of giggling about references to willies?---No.

Did you mention anything about willies?---No, nothing.

... [D]o you have a good recollection of what happened back then, back in 2005?---I'm not sure what you're asking.

All right. What I'm asking is, I mean, could you have spoken about willies but you just don't remember it now?---No.

...

[Y]ou're sure that you didn't?---Yes (ts 59).

78 Defence counsel cross-examined T in relation to the offending alleged in count 1 as follows:

And before you'd gone to bed, do you know ... where everybody else was who was in the house?---No, I don't remember.

You remember what time you went to bed?---No.

Do you remember what time [the appellant] ... came into the room?---No.

All right. And when you were sleeping in that room, did you normally have the door closed or was it open?---I'm not sure.

All right. So you say you were asleep?---Yes.

And you noticed - well, you were aware - that [the appellant] came into the room and grabbed hold of your hands and placed ... your hands on his willy - - - ?---Yes.

...

But are you sure that you actually remember that or it's something that you might have been dreaming about?---No, it wasn't a dream.

Well, when you were talking to your mother about it ... didn't you say that, 'I might have dreamt it'?---Yes. It was because I was - they were trying to ask what happened and I got overwhelmed and wanted to ask if it was possible to have a dream.

All right. But ... you were confused about what happened?---A little bit.

All right. But ... you asked your mother, I think, whether - you know, whether you can have a dream that's, like, real?---Yes.

Do you - could you have simply had a dream that something was happening then you woke up and nothing was there?---No, because I remember [the appellant] said, 'Go back to sleep and don't tell anyone.'

All right. But ... you know what a bad dream is. Perhaps you can have that experience, you'd think something's happening and you suddenly wake up and all's well?---I wasn't completely asleep. I was aware of what was going on and I remember him saying, 'Go back to sleep.'

Because when you - when you woke - when you fully woke up he wasn't there, was he? No one was there?---He was there and that - when I fully woke up he had said, 'Go back to sleep. Don't tell anyone' (ts 59 - 60).

79 T said in cross-examination that, when the offending alleged in count 1 occurred, A was also in the bedroom but she was unsure where C was at the time (ts 58 - 59).

80 The appellant's wife, K, was a State witness at the trial.

81 K gave evidence that she married the appellant on 19 October 1996 (ts 91). They separated in about December 2013 for reasons unrelated to the trial (ts 91). K said she was 'really good friends' with T's mother, J (ts 91). They met when K was aged about 15 or 16 (ts 92). K said her family and J's family were 'really close' and were 'probably like one family' (ts 92). They celebrated special occasions and went on holidays together (ts 92).

82 K said that on 19 October 2005 (exactly nine years after her wedding day), J married T's stepfather in Queensland (ts 92). J was away for about a week and during that time T stayed with K and her family (ts 92 - 93).

83 K gave evidence that T slept on a camp bed in C's bedroom (ts 93). C also slept in that room (ts 93). A slept in her own room (ts 94).

84 According to K, during the one week period in October 2005 there were two unusual incidents (ts 94).

85 K gave the following evidence-in-chief about the first incident:

I want to ask you about the first occasion. Where were you when something unusual was said by [T] on this first occasion?--- ... I think it was in the kitchen area, kitchen dining area.

And who was in the kitchen or dining area with you at the time?---Myself, [A] and [T].

Do you recall where [the appellant] was at this time?---No. He could have been at work, he could have been outside. I don't recall.

... What did [T] say?---She started talking about willies with [A] and they were laughing.

What about willies did [T] say?---She told [A] that her grandad and [her stepfather] had a big willy and then they were just laughing over willies.

And what did [A] say during this conversation?---She said willies back and they were just laughing.

What did you do when the girls were talking about willies?---I actually told them not to talk about it cos it wasn't nice to talk about willies.

And did you tell anyone else about that conversation?---Yes, I did.

Who did you tell?---I told [T's mother] that night when she rang to talk to [T] (ts 95).

86 K gave the following evidence-in-chief about the second incident:

You mentioned there was a second occasion. How long after the first occasion was there another time that [T] said something unusual while she was staying at your house in October 2005?---It was the next day.

The next day. Where were you?---We were in my bedroom.

When you say we, who was in the bedroom with you at the time?---There was [C], [A], [T] and myself. They were on my bed. They were all colouring in.

Now, I want to ask you in detail about what was said by [T] and yourself?---Okay.

...

Can you tell the jury, to the best of your recollection, firstly, just what was said by [T] when you were in that bedroom colouring in?---They were colouring in and then [T] said that she touched [the appellant's] willy.

What did you say?---At first, I was like, 'What?' I was probably in shock. I was like, 'What?' ...

When you said, 'What?', what did [T] say back to you?---She said that she had touched the willy, [the appellant's] willy. And then I said to her, I said, 'When?' And then she said, 'Last night.' And then ... I said, 'What do you mean last night?' And then she said she wasn't sure if she had dreamt it or if it had really happened.

Okay. Did you tell [the appellant] at the time ... about this?---Yes, I did.

How long after [T] had told you this in the bedroom did you tell him about it?---Maybe 20 minutes.

Do you recall exactly what it was that you told [the appellant] about the allegation?--- ... I actually repeated what [T] ... had said to me, to him.

Did you tell anyone else other than [the appellant] about what [T] had said in the room?---Yes, I did. I told [T's mother] that night.

How did you tell her?---Over the telephone when she rang that night.

...

Did ... you and [the appellant] speak to [T] about it again?---No.

Were there any other unusual incidents or behaviour that you can recall happening that week?---Nothing that week (ts 95 - 96).

87 K reiterated in cross-examination the substance of her evidence-in-chief about the first and second incidents.

88 The following exchange occurred between defence counsel and K about the second incident (that is, the alleged offending the subject of count 1):

And that's when [T] said something about [the appellant] coming into her bedroom?---Yes.

And do you remember what was said then?---She ... said that she had touched [the appellant's] willy.

All right. Did you ask her any more details about it?---Yes, I did. I asked her when and that and she said that night and then I was like, 'Oh', and then she said, 'I can't remember if it really happened or if it was a dream'.

All right. And ... you reported that to [T's] mother ... ?---Yes, I did, that night.

All right. And you also spoke to [the appellant] about it?---Yes, I did.

What ... was his reaction?---He was ... shocked. He was like, 'Well, why would she say that?' and I was like, 'I don't know ... I've just come out [of] the bedroom, I've just spoken to her and that's what she said'. He was like, 'Well, you know' then he said to make sure that when [T's mother] ... rang that night to let her know what was said.

So [the appellant] wanted [T's mother] to know about it?---Yes (ts 101).

89 K said that after J returned from Queensland in October 2005 the close friendship between the families continued up to July 2013 (ts 101 - 102).

90 The appellant's stepdaughter, C, was a State witness at the trial.

91 C gave evidence-in-chief, relevantly, as follows:

(a) C said that in October 2005 T slept in C's bedroom when T's mother, J, and T's stepfather went to Queensland (ts 114).

(b) T slept in C's bedroom for about a week (ts 114). C also slept in that room (ts 115). A slept in her own room (ts 115).

(c) C recalled an occasion during the week in question when T and A were 'on the bed [in her parents' bedroom] colouring and ... were talking about willies' (ts 114). K (that is, the appellant's wife and C's mother) was also present (ts 115). C could not recall precisely what the girls said about 'willies' at the time. She said they were 'joking about the word itself' and were being '[h]yperactive and ... silly' (ts 115).

(d) C 'can be a heavy sleeper' and she could not recall being woken during the night while T was sleeping in C's room in October 2005 (ts 114, 116).

92 C said in cross-examination that when T and A spoke about 'willies' it was T who mentioned the word 'willy' (ts 119). C recalled that the word was mentioned in the context of 'something about touching them' (ts 119).

93 T's mother, J, was a State witness at the trial.

94 J described in her evidence-in-chief a conversation she had with T in October 2005 upon J's return from Queensland. The sequence of questions and answers was as follows:

Where were you when this conversation happened?---In the car. I'd just collected her from my dad's place in Midland and we were driving back up the hill.

...

Was there anyone else in the car with you and [T] at the time this conversation occurred?---No.

... Can you recall the first thing that [T] said in that car?---She said to me, 'I think something happened while you were away'.

Did you say anything back to her when she told you that?---I said, 'What - what do you mean?'.

And what did she say?---She said to me, 'Well, I think that when I was asleep, [the appellant] came into the room' and she said to me, 'He got my hand and he put it on his willy and he was shaking it' and she said to me, 'I thought he was going to wee on me' and then she said ... he told her to go back to sleep and not tell anyone.

Had you heard this before?---Not before that moment, no.

What did you say when she told you this?---I said to her, 'Okay. Are you sure that this happened?'. I wanted to make sure. She was a little confused because she'd been asleep and she said to me, 'Is it possible to have bad dreams that seem like they're real?'

And when she asked you that question what did you say?---I said, 'Well, yes, sometimes you can have a bad dream that does feel like they're real.'

...

Well, just about what she said?---She ... thought it had happened but she couldn't be 100 per cent sure because she was asleep at the time (ts 77 - 78).

95 Shortly after that conversation, J telephoned the appellant's wife, K, to discuss the matter. J told K what T had said. K told J that she would speak to the appellant about it (ts 78).

96 J said in cross-examination that in October 2005, while she was in Queensland, she spoke by telephone to K. K told her that the appellant had said 'the girls were being silly and talking about willies and that ... they were coming into where he was and trying to lift up something to have ... a look at his willy' (ts 84). That was different from what T had told her in the car (ts 84).

Ground 2: the appellant's video-recorded interview with police

97 As I have mentioned, on 14 October 2013, the appellant participated in a video-recorded interview with police.

98 The appellant told one of the interviewing police officers that 'of course' he could remember that in October 2005 T's mother, J, got married in Queensland and had a holiday (VROI 51). The appellant added that he and his wife, K, looked after T for a week while J was in Queensland (VROI 51 - 52). The appellant said the sleeping arrangements were that he and his wife were in their bed, T and A were in A's room, and C was 'there' (VROI 52). At the time T was aged 6 (VROI 52). The appellant could recall J returning from Queensland and there being a barbecue in his backyard upon her return (VROI 52 - 53).

99 The appellant told the interviewing police officers about:

(a) an incident which, according to the appellant, occurred between him, T and A while J was in Queensland; and

(b) a discussion between him and his wife in relation to the incident.

100 The relevant exchange between the appellant and the police officers was as follows:

UNIDENTIFIED MALE OFFICER 2: ... I know it's a long time ago, but can you remember any discussions you may have had when they got back from Queensland?

APPELLANT: Um, yes, I do remember. Yeah, we had a discussion about um, this was, and it was brought forward by myself and [my wife], to do with [T] and some thing she'd said, and [T's mother] ... was of the understanding that, that [T] thought that I had touched her. Right.

UNIDENTIFIED MALE OFFICER 2: Right.

APPELLANT: On some occasion. And that is an absolute outright, a non-truth. Um, what had actually happened was I was asleep, my side of the bed.

UNIDENTIFIED MALE OFFICER 2: Yep.

APPELLANT: Yeah. [T], from what I can gather, [T] and my daughter have come in ... they're standing here. Now, I have been woken ...

UNIDENTIFIED MALE OFFICER 2: Who woke you up?

APPELLANT: [T].

UNIDENTIFIED MALE OFFICER 2: Yep.

APPELLANT: She lifted the sheet and she was looking at my business.

UNIDENTIFIED MALE OFFICER 2: Right.

APPELLANT: Okay. I woke up to that.

UNIDENTIFIED MALE OFFICER 2: At night time or day time?

APPELLANT: Morning

UNIDENTIFIED MALE OFFICER 2: Morning. Okay.

APPELLANT: And I asked [T] what the hell are you doing? And she said I just wanted to have a look.

UNIDENTIFIED MALE OFFICER 2 : Okay.

APPELLANT: Okay? I've then, I've covered myself, of course. [T] has then left the room. My daughter's left the room. I've gone to get up, right, so I was only wearing jocks.

UNIDENTIFIED MALE OFFICER 2: Right.

APPELLANT: And [T] has come back in the room, so I've quickly covered myself again, and I said [T], you are to knock, first of all, and you don't, it's not normal for you to want to look at this, alright? That conversation was had. I then got ready, went out ... I took [my wife] aside, they were out there having a ciggie and a drink. I've took [my wife] aside and I've told her, and she recommended we have a conversation with [T's mother]. That then happened. And that's where it's been since (VROI 53 - 54).

101 A little later, one of the interviewing police officers put to the appellant the alleged offending the subject of count 1:

UNIDENTIFIED MALE OFFICER 1: The allegation that I wanted to discuss with you happened in October 2005 when ... [T's mother] was ... getting married ... in Cairns.

APPELLANT: Mmm.

UNIDENTIFIED MALE OFFICER 1: You've ... obviously given us ... an account where you've woken to find they're in the bedroom looking at your penis.

APPELLANT: Mmm.

UNIDENTIFIED MALE OFFICER 1: ... that allegation, well, that hasn't come up at all? Okay.

APPELLANT: Mmhmm.

UNIDENTIFIED MALE OFFICER 1: What [T's] told us is that ... she woke up at some stage to find you holding both of her hands on, onto [your] penis and shaking it back and forth.

APPELLANT: No.

UNIDENTIFIED MALE OFFICER 1: She ... says that she was asleep on a ... mattress on the floor and that she woke to you kneeling next to her with ... both of your hands and both her hands, [on] your penis.

APPELLANT: No. ... No, no, no, no, no. No.

UNIDENTIFIED MALE OFFICER 1: No.

APPELLANT: None of, that never, ever. Never ever. No (VROI 62 - 63).

Ground 2: defence counsel's closing address

102 Defence counsel submitted in his closing address that 'the reason why [T's evidence relating to count 1] sounds so credible now is that [T] is now ... older, but she was 6 then' (ts 35). Counsel elaborated that, when the alleged offending the subject of count 1 occurred 'everybody thought that there was confusion, that [it] was a dream possibly' (ts 36). The appellant said in his video-recorded interview that 'it didn't happen at all' (ts 36).

103 Defence counsel made this submission about 'disadvantage to [the appellant]' caused by delay:

[N]o one can say for certain now ... what happened in October 2005.

And this is a disadvantage to [the appellant] because if you're now talking about what happens in 2014, and you tried to remember back, 'Well, where was I sleeping that night? I can't remember. I was 14 years of age'. Even could anybody remember whether somebody got up to go to the toilet, whether somebody had walked out of the house or whatever happened.

The problem is you just can't remember. And the reason why you can't remember is because it occurred so long ago and nobody's really asked you any detailed questions about it. So that's a problem that the - [the appellant] has told the police, 'Well, I'm certain about one thing. I didn't do it' (ts 37).

104 Defence counsel said T 'may have been a reliable witness', she 'may have been telling what she thought was true', but she 'may have misconstrued what happened, she may have imagined what happened' (ts 37 - 38).

105 Defence counsel disavowed any suggestion that T had fabricated her evidence or told lies:

[W]e're not suggesting that [T] was trying to fabricate her evidence or tell lies or anything like that. But given the circumstances at night, sleep, you know, late at night, tired, gone to sleep, just woken up, startled, all these things are important (ts 38).

Ground 2: the discussion between the trial judge, the prosecutor and defence counsel before his Honour commenced his summing up

106 There was a discussion between the trial judge, the prosecutor and defence counsel, in the absence of the jury, before his Honour commenced his summing up. The discussion concerned the directions his Honour would give to the jury. His Honour said to defence counsel 'I assume ... you would like a Longman direction in relation to the first count' (ts 161). Defence counsel responded 'Yes. Certainly' (ts 161).

Ground 2: the trial judge's so-called Longman warning

107 The trial judge's so-called Longman warning (Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79) in his summing up was as follows:

Members of the jury, there [is another direction] I'm going to give you of law. [It] concerns the delay between October 2005 and now in relation to the allegations the subject of count 1. You will appreciate that it is nearly nine years now and it was eight years last year, a gap between 2005 and 2013, in relation to that alleged offending.

As I have said, in order to convict [the appellant] you must be satisfied beyond reasonable doubt about the truthfulness of [T] in relation to that alleged offence. She is, of course, the only witness against [the appellant] as to the happening of those events. Because of the crucial nature of her evidence in this regard and because of the seriousness of the allegations that she makes you should scrutinise her evidence with special care.

You should carefully take into account what she said and bear in mind that when she made the complaint to her mother in 2005 it was nearly nine years ago. At the time she was aged 6. You will appreciate that the human memory is fallible and the longer the delay, the more opportunity there is for error, particularly so for events which occur in childhood. It is a matter of common experience that the longer you believe something to have happened, the more convinced that you are it happened.

You must bear in mind all the matters that might have an impact on the reliability of the evidence of [T], including the fact that at all times the two families have been very close and even after 2005, notwithstanding that she told her mother what had happened, the families continued to socialise and it would appear that [A] is still a friend of hers.

You must, of course, consider all the evidence but you should, in relation to count 1, bear in mind that the delay with respect to that count has deprived [the appellant] of the forensic advantage of bringing forward some matters in defence and perhaps testing the evidence of [T] differently than he could in 2014.

The usual way of testing the evidence of a witness is by reference to the surrounding circumstances and the details which, while ... not necessarily significant in themselves ... might help to indicate whether the evidence of the witness, in this case [T], is truthful, reliable and accurate.

So members of the jury, the passage of time is a factor in people's recollection of events and memory and recollection often dims the passage of time. This direction is based on the experience of the courts of the difficulty of accused people in cases where there has been substantial delay or a long delay in responding to the evidence. Because of the delay it is important that you do scrutinise the evidence of [T] with special care.

Having done that, if you are satisfied that [T] was truthful and accurate in relation to count 1 then you are free to act upon her evidence (ts 201 - 202).

108 Defence counsel did not request his Honour to give the jury any additional direction or redirection (ts 205 - 206).

109 Counsel for the appellant submitted that although the appellant was informed of the conduct charged in count 1, soon after the alleged conduct happened, the matter was not taken any further. Counsel elaborated:

[Τhe appellant] was not put in the mind-set that he needed to marshal a defence by gathering specific evidence to rebut allegations put to him in a formal way by police or the State. In fact, the evidence adduced at trial suggests that, given [T's] view that it may all have been a dream, no one pressed the appellant about it, and the families continued their relationship as it had been.

(a) any notification to the accused is not sufficient, for the purposes of Longman, to ameliorate delay;

(b) it must be notification of the allegation where it is clear to the accused that he must prepare for a formal investigation of the matter; and

(c) otherwise, as in the present case, the accused will continue with his life and will not be prepared 'in a legal sense' for the allegations that come later.

111 Counsel submitted that 'the pre-condition of delay [having] been met', in the present case, the trial judge was required to give a Longman warning 'in a firm and emphatic way'. Counsel made these criticisms of his Honour's warning:

While the judge mentioned the disadvantage, in a general sense, to the appellant, and told the jury that it was 'important' to scrutinise the evidence of the complainant [T] with special care, the appellant submits that that is not a sufficient ... warning; it is not firm and emphatic to suggest that it is important to scrutinise the evidence of the complainant [T], as it is important do so in every case. The addition of the words 'with special care' do not make the warning any more firm; where a case is an 'oath on oath' case, that is also something the jury must do with care. The absence of the words 'should' or 'must', in this case, mean that the comment made in relation to the delay did not amount to a warning. Although his Honour told the jury that [T's] evidence was a crucial part of the State case and that [it was important that] the jury carefully consider her evidence, this statement does not add any emphasis to his direction on delay.

(a) the appellant lost the opportunity of advancing details of the other incident he alleged had occurred in relation to T and A, namely the lifting of the bedcovers;

(b) the appellant lost the opportunity of putting that alleged other incident to T and A because they were aged only 6 and 5 respectively when count 1 allegedly occurred and were unlikely to recall such an incident;

(c) those circumstances may, in turn, have resulted in '[a] lost opportunity in relation to his explanation that the girls instituted behaviour in relation to seeing his penis, and [his assertion that] the complaint made related to that incident rather than the alleged indecent dealing'; and

(d) further, there may have been 'other details about the night in question, including what else the girls did on that night; clothing and bedding descriptions; where others were in the house at the time (particularly [C], the appellant's other [stepdaughter]), that have been lost'.

113 Accordingly, so it was submitted, as a result of his Honour's 'incomplete warning', 'the jury may not have given the attention to [T's] evidence, and the effects of time, that they should have'.

114 A judge is bound to give an instruction or a warning to the jury if, in the circumstances of the particular case, the instruction or the warning is necessary to avoid a perceptible risk of a miscarriage of justice. See Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, 324 - 325 (Brennan J); Longman (86) (Brennan, Dawson & Toohey JJ); Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234 [123] (Callinan J), [158] (Crennan J). This is an incident of the judge's duty to ensure a fair trial for the accused. See RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41] (Gaudron ACJ, Gummow, Kirby & Hayne JJ).

115 In Longman, the accused was convicted on two counts of indecent dealing with his stepdaughter. The complainant was aged 6 years when the first alleged offence occurred, and was 10 at the time of the second. The complainant's allegations were not corroborated and the trial occurred more than 20 years after the second alleged offence. The accused denied that the incidents occurred. The accused's counsel requested the trial judge to give the jury a warning about acting on the uncorroborated evidence of the complainant. The trial judge declined to give a warning. The accused was convicted. The High Court allowed the accused's appeal, quashed the convictions and ordered a new trial. The court held that s 36BE(1)(a) of the Western Australian Evidence Act (which has been superseded by s 50 of the Evidence Act) dispensed with the requirement to warn of the danger of acting on the uncorroborated evidence of alleged victims of sexual offences as a class, but did not affect the requirement to give a warning whenever necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case.

[T]here is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them ... That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's [sic] recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay ... and it was imperative that a warning be given to the jury (91).

117 Their Honours then set out the required warning:

The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy (91). (emphasis added)

To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient (91).

119 Deane and McHugh JJ agreed, in separate reasons, that the appeal in Longman should be allowed. McHugh J made these observations:

To the potential for error inherent in the complainant's evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant's testimony (108).

120 The appellant in Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161 was a primary school teacher between 1978 and 1988. He taught children with learning disabilities. In 1997, two of his former pupils made complaints about alleged sexual misconduct by him in their presence. On the basis of those complaints, the appellant was charged with and tried on five counts. The jury was unable to reach agreement on four of them. It convicted the appellant on the other count. The count on which a verdict of guilty was returned was alleged to have occurred between 31 July 1978 and 1 October 1978. The appellant gave sworn evidence at the trial. He denied that any sexual activity of the kind alleged in the count in question had occurred. The High Court allowed the appellant's appeal against his conviction. The court applied Longman and held that the trial judge should have given the jury a specific warning of the danger, given the delay between the alleged offence and the complaint, of convicting on the uncorroborated evidence of the complainant.

The trial judge should have instructed the jury that the appellant was, by reason of the very great delay, unable adequately to test and meet the evidence of the complainant ... An accused's defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions. Almost all of the passage of the majority in Longman to which we have referred (with appropriate adaptations to the circumstances of this case, including that because of the passage of so many years, it would be dangerous to convict on the complainant's evidence alone without the closest scrutiny of the complainant's evidence), should have been put to the jury. Additionally, this was, in our opinion, a case in which the trial judge should, again with appropriate adaptation, when summing up, have drawn attention to the additional considerations mentioned by Deane and McHugh JJ in Longman: the abstention, by the prosecutor, from questioning each co-complainant about the respective charges, the fragility of youthful recollection, the absence of a timely complaint (subject to any reasonable explanation therefor) and the possibility of distortion [45]. (emphasis added)

122 In Crampton, Hayne J noted the critical feature of the facts and circumstances of that case, namely, 'many years had elapsed between the time of the alleged conduct and the accused being put on notice of the allegation' [140]. His Honour added:

That lapse of time inevitably meant that the accused was put at a significant disadvantage, of a kind and to an extent which a jury might not appreciate without proper direction [140].

123 In Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343, the appellant was charged with having committed seven sexual offences against the complainant between 1979 and 1986. Complaint was first made in 1998. The appellant was convicted after a trial on all of the counts. The complainant's evidence was the only direct evidence against the appellant. There was, however, some corroborative evidence. The trial judge did not give the jury a Longman warning. A majority of the High Court (Gaudron, Kirby & Callinan JJ) allowed the appellant's appeal, quashed the verdicts on all counts and ordered a retrial. The majority were of the opinion that, notwithstanding the corroborative evidence, the trial judge should have given the jury a specific warning of the danger of convicting on the complainant's evidence in view of the delay between the alleged offences and the complaint.

[T]he problems with which Longman is intended to deal are not confined to difficulties of recollection that the passage of time might cause for an accused. Of equal, and in some cases of which this might be one, or more importance is the denial by the effluxion of time, to an accused of the forensic weapons that a timely complaint might allow an accused to assemble, such as evidence as to where he was or what he was doing, or what other potential witnesses were doing when the offences were alleged to have occurred [51].

125 Kirby J commented that 'in Longman and the cases since, this Court has required firm judicial instructions to juries about the particular dangers that can be occasioned by lengthy delays in the making of a complaint and the commencement of criminal proceedings' [140].

126 In Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285, Callinan J quoted the passage from the reasons of Gaudron, Gummow and Callinan JJ in Crampton, which I have reproduced at [121] above, and observed:

Not all, however, of what was said in the paragraph that I have just quoted may be applied without qualification in the current case. The facts in this case were: that the occasion of the alleged assault was clearly identified; that the appellant claimed to have a clear recollection of the occasion; and that he was not deprived of the forensic weapons to which reference was made in the passage quoted. That is not to say that there was no disadvantage by reason of the lateness of the complaint. The inevitable fading of memory with the passage of time would have been bound to be of some disadvantage at least [129].

127 In Tully, the High Court considered whether a Longman warning was required in the context of a delay 'between the offences and report, and trial' [186]. The appellant had been convicted of seven counts of indecent dealing between January and May 2000. The offending alleged in those counts was not reported until April 2002 or tried until July 2004 [169].

128 More recently, in Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47, French CJ, Bell, Keane and Nettle JJ said:

Subject to statute (cf Jury Directions Act 2013 (Vic)), judges are required to give juries particular warnings such as a Longman (Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 at 90 - 91 per Brennan, Dawson and Toohey JJ) warning ... for the purpose of alerting juries to particular difficulties with particular classes of evidence with which they are unlikely to be familiar [52].

129 The rationale for giving a Longman warning is that a jury might fail to appreciate that, as a result of a substantial delay between the occurrence of the alleged offence and the accused being informed of the complaint, the accused will have suffered forensic disadvantage by losing the chance adequately to test the complainant's evidence and the chance adequately to marshal a defence. See SPB v The State of Western Australia [2012] WASCA 136 [51] (Buss JA, McLure P & Mazza JA agreeing). See also RJH v The State of Western Australia [2012] WASCA 137 [42] (Buss JA, McLure P & Mazza JA agreeing). For example, after a substantial delay, the complainant may be unable to recall or ascertain the precise date of the alleged offence or the detailed facts of the alleged offending; the accused may be unable to investigate whether the complainant's evidence is contradicted by or inconsistent with the surrounding circumstances at the time; and the complainant, the accused and potential witnesses are likely to have a diminished recollection of relevant events at the time. As McLure P noted in FJL v The State of Western Australia [2010] WASCA 8, the forensic disadvantage is actual even if it is confined to the loss of a chance [2]. The warning is given because a jury is unlikely to be familiar with the particular difficulty experienced by the accused as a result of a substantial delay. See Filippou [52].

130 In my opinion, the accused will not be 'informed of the complaint', for the purposes of Longman, unless:

(a) the information given to the accused is reasonably consistent with, and includes reasonable particulars of, the offences subsequently alleged against the accused in criminal proceedings; and

(b) the nature and content of the information is reasonably adequate to enable the accused to make inquiries about the complainant's allegations and to marshal a defence.

131 Also, in my opinion, even if the accused is 'informed of the complaint', for the purposes of Longman, it may be necessary, depending on the facts and circumstances of the particular case, for the jury to be given a warning as to forensic disadvantage suffered by the accused if there is a substantial delay between the receipt by the accused of the information and the commencement of criminal proceedings. The trial judge will be bound to give the warning if, on the facts and in the circumstances of the particular case, the warning is required to avoid a perceptible risk of a miscarriage of justice.

132 When a Longman warning is necessary, the trial judge must direct the jury to the effect that, as a result of the substantial delay, the accused has lost the chance adequately to test the complainant's evidence and the chance adequately to marshal a defence. The jury must be instructed to the effect that, although it can convict solely on the complainant's evidence if satisfied beyond reasonable doubt as to the truth and accuracy of his or her evidence, it must scrutinise the complainant's evidence with great care and take into account any facts and circumstances (including the forensic disadvantage suffered by the accused as a result of the substantial delay) which have a logical bearing on the truth and accuracy of that evidence. It is essential that the warning be given as a direction which the jury is bound to follow. A mere comment will not suffice. See Crampton [142] (Hayne J); AM v The State of Western Australia [2008] WASCA 196; (2008) 188 A Crim R 457 [17] (Steytler P); FJL [20] - [28] (Wheeler JA, Pullin JA agreeing); MAS v The State of Western Australia [2012] WASCA 36 [18] - [20] (Martin CJ, Pullin & Mazza JJA agreeing).

133 However, a Longman warning has not been reduced to an immutable formula or a ritual incantation, divorced from the facts and circumstances of the particular case. When the warning is necessary it must be crafted, by reference to the facts and circumstances of the particular case, with the object of ensuring a fair trial and avoiding the perceptible risk of a miscarriage of justice. See Christophers v The Queen [2000] WASCA 308; (2000) 23 WAR 106 [37] (Owen J, Pidgeon & Ipp JJ agreeing); Crisafio v The Queen [2003] WASCA 104; (2003) 27 WAR 169 [17]- [18] (Murray J, Malcolm CJ agreeing), [63] - [66] (Parker J); FJL [24] (Wheeler JA, Pullin JA agreeing); MAS [28] (Martin CJ, Pullin & Mazza JJA agreeing).

134 The fundamental facts in Longman, Crampton, Doggett, Dyers and Tully, were these:

(a) In Longman, the complainant was aged 6 and 10 when the alleged offences occurred. Her evidence was that on both occasions she had been asleep and had been awakened by the appellant touching her genitals. The relevant delay was more than 24 years, in the case of the first offence, and more than 20 years, in the case of the second.

(b) In Crampton, the complainant was a primary school pupil when the alleged offence occurred. The relevant delay was about 19 years.

(c) In Doggett, the complainant was aged between 8 and 15 when the alleged offences occurred. The relevant delay ranged from 12 to 19 years.

(d) In Dyers, the complainant was aged 13 when the alleged offence occurred. The offending happened only on one occasion. The relevant delay was about five years.

(e) In Tully, the complainant was aged between 9 and 10 when the alleged offences occurred. The relevant delay ranged from about two to three and a half years.

(a) The alleged offending on count 1 occurred some time during a one week period in October 2005.

(b) The one week period was identified as the week in which T stayed with the appellant's family because her mother went to Queensland to get married (ts 76, 83, 92 - 93).

(c) At the time of the alleged offending, the only people living in the appellant's house were the appellant, his wife and their daughters, C (aged 14) and A (aged 5) (ts 93).

(d) During the one week period, T slept on a mattress or camp bed on the floor in C's bedroom (ts 58 - 59, 93, 114, 115).

(e) On the State's case, the indecent dealing the subject of count 1 continued until T withdrew her hands from the appellant's penis. Upon her doing so, the appellant told T (on T's evidence) not to tell anyone and to go back to sleep (ts 60).

(f) C did not recall any occasion during the one week period when she awoke at night (ts 116).

(g) During the one week period, T told the appellant's wife, K, that she (that is, T) had 'touched [the appellant's] willy' and this had happened 'last night', but T was not sure if it was a dream or not. K told the appellant, about 20 minutes later, what T had said to her (ts 95 - 96).

(h) T's mother, J, gave evidence that, a few days after she returned from Queensland, T told her about the offending the subject of count 1. J asked T, 'Are you sure that this happened?' (ts 77). J said T was 'a little confused because she'd been asleep' (ts 77). T asked J whether it was possible 'to have bad dreams that seem like they're real?' (ts 77). Shortly after T made the complaint, J told K (but not the appellant) what T had said to her. According to J, K informed J that she would speak to the appellant about the matter (ts 78). However, K did not give evidence about a conversation with J to that effect.

136 In my opinion, the trial judge's so-called Longman warning was adequate, in the circumstances, to ensure a fair trial for the appellant and to avoid any perceptible risk of a miscarriage of justice.

137 As I have mentioned, the rationale for giving a Longman warning is that a jury might fail to appreciate that, as a result of a substantial delay between the occurrence of the alleged offence and the accused being informed of the complaint, the accused will have suffered forensic disadvantage by losing the chance adequately to test the complainant's evidence and the chance adequately to marshal a defence.

138 In the present case, during the one week period in October 2005, when T was staying at the appellant's house, T told K that she (that is, T) had 'touched [the appellant's] willy' and this had happened 'last night', but T was not sure if it was a dream or not. K told the appellant, about 20 minutes later, what T had said to her.

139 So, the appellant was informed of T's complaint without any material delay. The information given to the appellant was reasonably consistent with, and included reasonable particulars of, the offence subsequently pleaded in count 1. The nature and content of that information was reasonably adequate to enable the appellant to make inquiries about T's allegations and, to the extent to which he knew it was necessary, to marshal a defence. The description of the alleged offending put by the police to the appellant in his video-recorded interview on 14 October 2013 was not materially different from T's complaint to K which was made in October 2005 and repeated by K to the appellant about 20 minutes later. In October 2005, the appellant denied immediately that he had indecently dealt with T as alleged in her complaint. He had a reasonable opportunity, upon being informed of the complaint, to reflect upon facts and circumstances within his household when the alleged offending occurred. That is especially the case having regard to the appellant's assertion, in his video-recorded interview, that during the week in question there was an incident where T and A came into his bedroom while he was in bed, lifted the covers and said they wanted to see what his 'private parts' looked like.

140 However, in the present case, there was a substantial delay between the appellant being informed of T's complaint in October 2005, on the one hand, and his video-recorded interview with police on 14 October 2013 and the commencement of criminal proceedings, on the other.

141 The appellant's defence was that the alleged offending did not occur. Defence counsel disavowed any suggestion that T had fabricated her evidence or told lies, and he did not cross-examine her on that basis. It was argued that T may have misconstrued or imagined what happened. The nature and extent of any disadvantage suffered by the appellant must be evaluated in the context of the appellant's video-recorded interview with police and the manner in which his case was run at trial. The real issue at the trial was whether the jury was satisfied beyond reasonable doubt that T's account of the charged offence the subject of count 1 had actually occurred as distinct from being the subject matter of a dream.

142 The appellant did not give evidence at the trial. Defence counsel relied on the appellant's exculpatory statements in his video-recorded interview with police. In the interview the appellant did not mention any particular forensic disadvantage he had suffered as result of the delay between October 2005, on the one hand, and the date of the interview (14 October 2013), on the other. Further, the appellant told the police that he remembered the discussion he had with his wife after T had complained.

143 Defence counsel asserted, in his closing address, that the appellant had suffered a 'disadvantage' because the trial was being conducted in 2014 and no-one could remember events that occurred in October 2005. For example, where was everyone sleeping in the appellant's house on the night in question, did anyone get up to use the toilet or did anyone leave the house? The nature and extent of any forensic disadvantage suffered by the appellant must be considered having regard to the disadvantage identified by defence counsel.

144 His Honour directed the jury, in essence, that:

(a) His Honour's so-called Longman warning concerned 'the delay between October 2005 and now [that is, October 2014]' (ts 201).

(b) The jury 'should scrutinise [T's] evidence with special care' because of the crucial nature of her evidence relating to count 1 and because of the seriousness of the allegations she makes (ts 201).

(c) The jury 'should carefully take into account what [T] said and bear in mind that when she made the complaint to her mother in 2005 it was nearly nine years ago' and, at that time, she was aged 6 (ts 201).

(d) Human memory is fallible and, the longer the delay, the more opportunity there is for error, especially in relation to events which occur in childhood (ts 201).

(e) The jury 'must bear in mind all the matters that might have an impact on the reliability of [T's] evidence' (ts 201).

(f) The jury 'must ... consider all the evidence but [the jury] should, in relation to count 1, bear in mind that the delay with respect to that count has deprived [the appellant] of the forensic advantage of bringing forward some matters of defence and perhaps testing [T's evidence] differently than he could in 2014' (ts 202).

(g) The usual way of testing the evidence of a witness is by reference to 'the surrounding circumstances and details which, while ... not necessarily significant in themselves ... might help to indicate whether the evidence of the witness, in this case [T], is truthful, reliable and accurate' (ts 202).

(h) The passage of time is a factor in a person's memory and recollection of events, and the person's memory and recollection often diminishes with time (ts 202).

(i) It is the experience of the courts that an accused person will experience difficulty in defending a prosecution where there has been 'substantial delay ... in responding to the evidence' (ts 202).

(j) The delay in the present case made it 'important' that '[the jury] scrutinise the evidence of [T] with special care' (ts 202).

(k) However, if the jury complied with his Honour's warning and directions, and the jury was 'satisfied that [T] was truthful and accurate in relation to count 1', the jury was 'free to act upon her evidence' (ts 202).

145 The appellant's very experienced criminal defence lawyer did not request the trial judge to give the jury a redirection or an additional direction. Defence counsel was conscious of the decision in Longman because, as I have mentioned, his Honour specifically raised Longman with the prosecutor and defence counsel before he commenced his summing up.

146 His Honour's directions as to the loss of a chance adequately to test T's evidence and the loss of a chance adequately to marshal a defence were related or tailored adequately to the facts and circumstances of the case. The appellant did not give evidence of any particular forensic difficulty he had encountered. Accordingly, the only prejudice reasonably to be presumed or inferred from any relevant delay was the prejudice identified by his Honour, namely the diminished recollection of the witnesses in relation to relevant events at the time and the loss of the chance more effectively to test T's evidence by reference to the surrounding circumstances and details.

147 In my opinion, the appellant did not lose the opportunity of advancing details of the incident which allegedly occurred in October 2005 when, according to the appellant, T and A came into his bedroom, while he was in bed, and lifted the covers and said they wanted to see what his 'private parts' looked like. The appellant gave a reasonably precise account of that incident in his video-recorded interview with police. Defence counsel referred to the alleged incident in his opening statement to the jury (ts 41) and he was in a position to cross-examine T and A (who was a State witness at the trial) about it. However, defence counsel did not ask either T or A about the alleged 'bed covers incident'.

(a) the jury 'should scrutinise [T's] evidence with special care';

(b) the jury 'should carefully take into account what [T] said';

(c) the jury 'must bear in mind all the matters that might have an impact on the reliability of [T's] evidence';

(d) the jury 'must ... consider all the evidence but ... should, in relation to count 1, bear in mind that the delay with respect to that count has deprived [the appellant] of the forensic advantage of bringing forward some matters of defence and perhaps testing [T's] evidence differently than he could in 2014';

(e) the delay in the present case made it 'important' that '[the jury] scrutinise the evidence of [T] with special care'; and

(f) if the jury complied with his Honour's warning and directions, and the jury was 'satisfied that [T] was truthful and accurate in relation to count 1', the jury was 'free to act upon her evidence',

would have been understood by the jury, in context, as an imperative instruction to undertake those tasks. The warning was, in context, emphatic.

149 I am satisfied that his Honour's so-called Longman warning properly instructed the jury as to the particular difficulty experienced by the appellant as a result of the substantial delay between the appellant being informed of T's complaint, on the one hand, and his video-recorded interview with police and the commencement of criminal proceedings, on the other.

Ground 3: the trial judge's directions to the jury on the appellant's apparent admissions in relation to counts 1 and 2

151 The trial judge referred, in recounting the State's case in the course of his summing up, to the appellant's apparent admissions in relation to counts 1 and 2:

The State also relies upon what it says is the admission made by [the appellant] to [T] in relation to count 2 when they were talking outside the bedroom in the hallway kitchen area when [A] heard them whispering. [T] said that [the appellant] said words to the effect, 'I'm sorry, I thought you wanted to do what we did previously', words to the effect. And I'll come to the words later in my directions to you.

It's a matter of fact, members of the jury, whether you are satisfied beyond reasonable doubt that [the appellant] said those words to [T] at that time (ts 191 - 192).

152 Later in his summing up, his Honour directed the jury:

Members of the jury, the final direction concerns the evidence of [T] on 21 July 2013 that [the appellant] said to her by way of excuse outside the bedroom words to the effect, 'I thought it was [A]'[sic]. And then [the appellant] said, 'I thought you wanted to do what happened before.' [The appellant], of course, denies that he said that and he says that all he said was, 'Back to bed now'.

[A], as you know, said that she heard whispering but could not make out what her father was saying at the time. The State says that this is or was an admission by [the appellant] and a reference by him to the offending the subject of count 1 on the indictment. Because of the nature of this evidence and because it is relied upon by the State in the way it has indicated to you that it supports count 1, it is important that you do again scrutinise this part of the evidence carefully in order to ascertain for yourselves, members of the jury, what you think and what weight you wish to give to the evidence.

It is, of course, entirely a matter for you when you assess the whole of the evidence whether you accept what [T] says [the appellant] said. And if you do accept what she said then it's entirely a matter for you whether or not it was a reference back to the events the subject of count 1 on the indictment.

So the evidence is just like any other evidence. You must consider it and determine for yourselves what weight to give to it in the course of your deliberations. But you can't use the admission, if you find it was made, unless you are satisfied that it was a truthful and accurate statement by [the appellant] of the situation concerning count 1 (ts 202 - 203).

(a) whether the appellant's alleged statements in relation to counts 1 and 2 were 'truthful and accurate' was not the test for an admission;

(b) if the appellant made the alleged statements, they were 'an equivocal admission at best', given the 'apparent incongruity between the appellant [allegedly] saying he thought it was [A], his daughter, and then saying he thought [T] had wanted to do what they did last time'; and

(c) the alleged statements 'cannot be said to be a positive confession to either count - [they were] an implied admission that something, unspecified, happened at a previous unspecified time'.

154 Counsel contended that the trial judge should have instructed the jury to approach the alleged statements in several steps:

(a) first, they had to be satisfied that the appellant said the words in question;

(b) secondly, the jury had to be satisfied that those words were in explanation of what had just occurred in the bedroom; and

(c) thirdly, the jury had to be satisfied that the appellant, when he said 'last time', was referring to the allegation in count 1.

155 It was argued that his Honour's directions 'missed the nexus between counts 1 and 2', and therefore '[were] confusing in relation to which count [could] be determined on the admission'.

156 T's evidence was to the effect that, immediately after the alleged offending the subject of count 2:

(a) the appellant said to T, 'I'm sorry about what just happened' (VROI 19);

(b) T replied, 'I thought it was [A]' (VROI 19); and

(c) the appellant then said, 'I thought you wanted to do what happened before' (VROI 19) or 'I thought you ... wanted to do what [we] did last time' (ts 70).

157 The State relied upon the words 'I thought you wanted to do what happened before' or 'I thought you ... wanted to do what [we] did last time' as an admission against interest by the appellant in respect of the alleged offending the subject of count 1. The State did not rely upon those words (or any other words) as an admission against interest by the appellant in respect of the alleged offending the subject of count 2 (ts 39, 191, 202).

158 The trial judge, in directing the jury as to the use it could make of the words in question, incorrectly attributed to the appellant the statement by T that 'I thought it was [A]' (ts 202). However, his Honour's error was immaterial. First, the State did not rely on the words 'I thought it was [A]'. Secondly, his Honour instructed the jury on numerous occasions that it was the jury's responsibility to determine the facts (ts 15, 174, 177, 179). Thirdly, the jury could have been in no doubt that the alleged admission against interest relied upon by the State was embodied in the words 'I thought you wanted to do what happened before' or 'I thought you ... wanted to do what [we] did last time'. Fourthly, defence counsel did not request his Honour to correct the error.

159 In my opinion, his Honour's directions in relation to the alleged admission against interest adequately instructed the jury as to the approach to be adopted in assessing whether the relevant words constituted an admission. His Honour adequately conveyed to the jury that, in evaluating the words, the jury must be satisfied that the appellant said the words; the words were said in explanation of what had just occurred in the bedroom; and the appellant was referring to the allegation in count 1 when he said 'what happened before' or 'what [we] did last time'. The appellant's alleged statement was not, in context, inherently equivocal and it was open to the jury to find that, in context, the appellant was referring to the allegation in count 1.

Ground 4: the trial judge's Liberato direction

161 The trial judge gave the jury a Liberato direction (Liberato v The Queen [1985] HCA 66; (1985) 195 CLR 507) as follows:

Members of the jury, in this trial [the appellant] did not give evidence in the courtroom. That is his right. No adverse inference can, or should be, drawn against him for exercising that right. It is a right we all have and if we ever exercised it, and adverse inference were drawn against us, it would mean that the right would have no value.

The fact that [the appellant] did not give evidence does not prove anything, one way or the other. Your duty is to consider the evidence you have seen or heard in this trial and to decide whether, on the evidence before you, the State has proved the guilt of [the appellant] to your satisfaction, beyond reasonable doubt.

With respect to the evidence of [the appellant] in his video record of interview on 14 October 2013 this is, as I have told you, part of the evidence that you should carefully consider. You know from that evidence that [the appellant] denies that the events the subject of both charges on the indictment happened. Remembering that in a criminal trial the accused person does not have to prove anything, you must consider his evidence to the police officers in that interview.

If anything that he said in the course of that interview creates in your mind a reasonable doubt about his guilt, having regard to all the evidence you have seen and heard in this trial, then you must acquit him of the charge you are considering. If you find difficulty in accepting that what he told the police was true but you think it might be true, then you would have a doubt and again your duty would be to acquit him because you have a doubt and would not be satisfied beyond reasonable doubt of his guilt.

If you reject the evidence he gave to the police officers then you should put that evidence to one side and the position will remain as I have told you. You must be satisfied based on the evidence that you do accept that he is guilty beyond reasonable doubt of the charge you are considering before you could convict him (ts 184 - 185).

162 Counsel for the appellant challenged the correctness of the trial judge's Liberato direction. It was submitted:

(a) the appellant accepted that his Honour directed the jury that, if the jury believed the appellant's assertions in his video-recorded interview, they must acquit;

(b) the appellant also accepted that his Honour directed the jury that, if the jury had difficulty in accepting the appellant's assertions but thought they might be true, they must acquit;

(c) however, by adding the words 'that you do accept', and not referring to the State having the burden of proving the facts, the jury may have been led to believe that there was some factual matter which the appellant had to prove.

163 According to counsel, by the addition of the words 'that you do accept', without referring to the State's burden of proof, his Honour 'took ... away from the jury' the requirement that 'they [were] satisfied that the prosecution was the one proving' the facts. That was so notwithstanding that his Honour had, elsewhere in his summing up, given 'a standard direction that it was for the prosecution to prove the case' (ts 184).

164 In Liberato, Brennan J (dissenting) said:

When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue (515).

165 It is well-established that a Liberato direction is not required as a matter of law. See, for example, Salmon v The Queen [2001] WASCA 270 [3] (Malcolm CJ), [11] (Kennedy J), [101] (McKechnie J). Such a direction should be given, however, if, in the circumstances of the particular case, there is a real (as distinct from a fanciful) risk that the jury may otherwise have the impression that disbelief of an accused's evidence, or preference for a complainant's evidence, means that the State has proved its case beyond reasonable doubt. See Cooper v The State of Western Australia [2010] WASCA 190 [38] (Buss JA); Turner v The State of Western Australia [2014] WASCA 214 [11] (Mazza JA, Hall J agreeing).

166 In Koushappis v The State of Western Australia [2007] WASCA 26; (2007) 168 A Crim R 51 [100], [104], Roberts-Smith JA (McLure & Buss JJA agreeing) approved this form of direction suggested by Kirby J (Sheller JA & Dowd J agreeing) in R v Anderson [2001] NSWCCA 488; (2001) 127 A Crim R 116:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you find difficulty in accepting the evidence of the accused, but think that it might be true, then you must acquit.

Third, if you do not believe the accused, then you should put his testimony to one side. The question will remain; has the Crown, upon the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt [26]?

See also Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19 [114] (Miller JA); Johnson v The State of Western Australia [2008] WASCA 164; (2008) 186 A Crim R 531 [27] - [31] (Buss JA).

167 In the present case, the appellant's complaint about the trial judge's Liberato direction focused on the following passage in the direction:

If you reject the evidence [the appellant] gave to the police officers then you should put that evidence to one side and the position will remain as I have told you. You must be satisfied based on the evidence that you do accept that he is guilty beyond reasonable doubt of the charge you are considering before you could convict him (ts 185).

168 In my opinion, when his Honour's Liberato direction is considered as a whole and in the context of his summing up as a whole, it is apparent that the direction was not erroneous as alleged.

169 The trial judge directed the jury in conventional terms about the burden of proof and reminded the jury, on at least four occasions, that the appellant did not have to prove anything (ts 175, 180, 184, 192).

170 His Honour instructed the jury, immediately before giving the Liberato direction, that:

(a) the State had the burden of proving each count on the indictment;

(b) the standard to which the State must prove each count was beyond reasonable doubt;

(c) the phrase 'beyond reasonable doubt' expresses the highest standard of proof known to the law;

(d) the appellant was presumed to be innocent of the charges;

(e) no adverse inference could be drawn against the appellant for exercising his right to silence at the trial; and

(f) the fact that the appellant did not give evidence at the trial did not prove anything (ts 184 - 185).

171 Defence counsel did not request the trial judge to give the jury a redirection or an additional direction.

172 I am satisfied that, in context, his Honour's statement, 'and the position will remain as I have told you', was a reference to the position he had outlined at the commencement of the Liberato direction, namely that the jury must 'decide whether, on the evidence before you, the State has proved the guilt of [the appellant] to your satisfaction, beyond reasonable doubt' (ts 185). Also, I am satisfied that, in context, his Honour's use of the words, 'evidence that you do accept', would have been understood by the jury as a reference to the whole of the evidence given or tendered at the trial, except the appellant's exculpatory statements in his video-recorded interview with police.

173 In my opinion, having regard to the Liberato direction as a whole and in the context of the summing up as a whole, there was no real (as distinct from a fanciful) risk that the jury would have been left with the impression that:

(a) the appellant bore any burden or onus of proof; or

(b) a disbelief of the appellant's version of events in his video-recorded interview or a preference for T's evidence meant that the State had proved its case beyond reasonable doubt.

175 Counsel for the appellant submitted that, although the appellant's case focused on errors allegedly made in relation to count 1, there was 'a

connection between [counts 1 and 2] such that it would be impossible to say that if error is found in relation to count 1, it did not affect the reasoning process in relation to the jury's deliberation on count 2'.

176 Accordingly, it was argued that if this court found that any errors were made in relation to count 1, it would be a miscarriage of justice to allow the conviction on count 2 to stand.

177 None of grounds 1, 2, 3 or 4 has been made out. It follows that ground 5 must fail.

178 None of grounds 3, 4 or 5 has a reasonable prospect of success. I would therefore refuse leave to appeal on each of those grounds.

179 None of the grounds of appeal has been made out. I would therefore refuse to grant an extension of time to appeal.

181 MAZZA JA: I agree with Buss P and Beech J that the application for an extension of time should be refused and the appeal should be dismissed. I agree with Beech J's reasons in relation to grounds 1 and 2. I agree with Buss P's reasons in relation to grounds 3 - 5.

182 I agree with Buss P that the application for an extension of time should be refused and the appeal should be dismissed. I agree with his Honour's reasons in relation to grounds 3 - 5. I propose to state my own reasons in relation to ground 1 and to make some observations in relation to ground 2.

183 The background, the parties' cases at trial, the grounds of appeal and the trial judge's ruling and direction as to the propensity evidence are outlined in Buss P's reasons.[1]

184 The appellant accepts that evidence that he committed the offence the subject of count 2, is, for the purposes of count 1, both propensity evidence and relationship evidence within the meaning of s 31A. The appellant challenges the conclusion that the evidence satisfied the requirements of s 31A(2)(a).

185 The principles relevant to s 31A were recently outlined in DKA v The State of Western Australia by reference to a number of appellate decisions.[2] In summary:

(1) In assessing whether evidence has significant probative value, the evidence is to be taken at its highest from the perspective of the prosecution.[3]

(2) In determining whether propensity evidence would have significant probative value, the propensity evidence is not to be viewed in isolation. Section 31A(2)(a) expressly requires that attention be directed to whether, having regard to other evidence adduced or to be adduced, the propensity evidence would have significant probative value.[4]

(3) Evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of a probability of the existence of a fact in issue.[5]

(4) The test in s 31A(2)(a) will be satisfied if the court considers (that is, thinks) that the propensity evidence 'would' (as distinct from could), either by itself or having regard to other evidence adduced or to be adduced, rationally affect, to a significant extent, the assessment of the probability of the existence of a fact in issue.[6]

(5) The adjective 'significant' in the phrase 'significant probative value' in s 31A(2)(a) connotes important or of consequence.[7]

(6) If propensity evidence has probative value, then whether the probative value is 'significant' will depend upon the nature of the fact in issue to which it is relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact.[8]

(7) The high level of generality of an alleged propensity can affect the extent of the probative force of the propensity evidence. The more specific the alleged similarity the more likely it is that the propensity evidence will have significant probative value.[9]

(8) The nature and extent of any similarity between the conduct the subject of the propensity evidence and the conduct the subject of the charged act(s) is relevant to whether the evidence has significant probative value.[10]

186 The appellant points to the following matters in support of his contention that a finding of guilt on count 2 did not have significant probative value in relation to count 1:

(1) There was seven years between the two alleged offences.

(2) While they concerned the same complainant, the facts of the alleged offending in the two cases were substantially different.

(3) Count 2 involved an offence against a 13-year-old, while count 1 involved an offence against a 6-year-old.

(4) On the complainant's evidence, the appellant had not exhibited any sexual behaviour towards her in the intervening period of seven years.[11]

187 Notwithstanding these features of the evidence, for the reasons that follow I am satisfied that a finding of guilt on count 2 has significant probative value in relation to whether the appellant was guilty of count 1.

188 I accept that the substantial difference in the complainant's age at the time of the two alleged offences detracts from the extent of the probative value of guilt on count 2 in relation to count 1. Nevertheless, a finding of guilt on count 2 demonstrated that the appellant had a sexual interest in the complainant and that he was willing to act on that sexual interest when an opportunity to do so arose while the complainant was sleeping at his home without her mother being present in the house.

189 The weight to be given to the fact that there was no other incident in the seven years between counts 1 and 2 was diminished by the complainant's evidence that no other opportunity arose during that time, in that there was no other occasion when she had slept at the appellant's home without her mother or the appellant's partner also being present.[12]

190 The appellant points to the fact that the complainant's evidence about count 1 itself raised doubt as to whether it happened, in that the complainant observed it may have been a dream, and that the complainant's complaint immediately after was couched in similar terms.[13] In my view, those features of the evidence relating to count 1 are a central part of what gives a finding of guilt on count 2 significant probative value in relation to whether the appellant was guilty of count 1. Whether evidence sought to be admitted under s 31A has significant probative value is to be assessed by reference to the other evidence in the case. In circumstances where the complainant made a complaint about count 1 almost immediately afterwards, a jury could take the view that it would be an unlikely coincidence that the complainant had a dream in 2006 involving an indecent dealing with her by a man who subsequently in 2013 indecently dealt with her. In this way, a finding of guilt on count 2 was capable of resolving and removing doubt in relation to count 1 arising from the complainant's evidence that she was uncertain whether the events the subject count 1 occurred or whether it was a dream. Consequently, in my opinion, a finding of guilt on count 2 would rationally affect, to a significant degree, the jury's assessment of the probability of whether the appellant did the act the subject of count 1.

191 In IMM v The Queen,[14] the plurality observed, in passages set out in Buss P's reasons,[15] that, absent some special feature, it is difficult to see how a complainant's evidence of conduct of a sexual kind from an occasion other than the charged acts can have significant probative value in relation to the charged acts. The same might generally be said of a complainant's evidence of one charged act in assessing the complainant's evidence of another charged act. Nevertheless, in this case I am satisfied that a finding of guilt on count 2 meant that the conduct the subject of count 2, if proved beyond reasonable doubt, had significant probative value in relation to count 1. First, the State's case on count 2 did not rest solely on T's evidence; it was also supported by A's evidence. Secondly, and in any event, T's evidence had a special feature in the sense referred to in IMM. Her evidence itself raised a question as to whether the act the subject of ground 1 occurred or was a dream. As I have explained, a finding of guilt on count 2 was capable of resolving doubt in relation to count 1 arising from that question.

192 The trial judge's direction to the jury, set out in Buss P's reasons [35], properly identified and limited the use to which the jury might put a finding of guilt on count 2 in its consideration of count 1.

193 For these reasons, I would not uphold ground 1.

194 I gratefully adopt Buss P's outline of the evidence, the opening and closing addresses the trial judge's summing up and the appellant's submissions.[16]

195 Generally, cases concerning a Longman warning have involved a long delay between when the alleged event(s) occurred and when the accused was first notified of any allegation of misconduct. In this case, the appellant was notified, almost immediately, that T had made an allegation against him, but there was a very long delay before the appellant was notified that the matter was the subject of police investigations.

196 Counsel for the appellant submits that this appeal raises the question of the need for a Longman warning in circumstances when an accused is told of an allegation in a timely way, but is also told that the allegation is not going to be investigated through any formal channels, and then, after significant delay, the matter is investigated by police and the accused charged.[17]

197 In my view, it is neither necessary nor desirable to attempt a general statement of principle as to that question. Whether a Longman warning, or warning analogous to a Longman warning, is required, and if so, the necessary content of such warning will be influenced by all the circumstances of the case.

198 The rationale for a Longman warning is the need to avoid the risk of a miscarriage of justice arising from the prospect that the jury might not appreciate that substantial delay can mean that an accused is forensically disadvantaged by losing a chance to adequately test the complainant's evidence, or to adequately marshal a defence.[18]

199 The potential forensic disadvantages to the appellant, possibly not apparent to the jury, are to be assessed having regard to, among other things:

(a) the circumstances in which the alleged offence occurred;

(b) the fact that the appellant was told, at the time, that T had made an allegation, albeit that the matter was left on the basis that the allegation was taken no further;

(c) the contents of the appellant's interview with the police in 2013; and

(d) the course of the trial, including the defence case at trial.

200 For the reasons given by Buss P in [135] and [138] - [149], I am satisfied that the warning given by the trial judge was adequate to ensure a fair trial for the appellant and to avoid any perceptible risk of a miscarriage of justice arising from the delay between the alleged offence on count 1, on the one hand and, on the other, his police interview and the commencement of the criminal prosecution. Consequently, ground 2 fails.

[2] DKA v The State of Western Australia [2017] WASCA 44.

[11] Appellant's submissions [31]; appeal ts 4.

[13] Appellant's submissions [32]; appeal ts 5.

[14] IMM v The Queen [62] - [63].

[18] Longman (91); Crampton [45], [140]; Tully [177]; SPB v The State of Western Australia [51].