(2) Says that in the nine months prior to trial he wrote a 350-page 'Instructions and Brief' and compiled 10 drop files for defence counsel.

(3) Says that he discussed the Instructions and Brief and other historical documents with defence counsel at a two-hour meeting at chambers and expected that they would be used at trial.

(4) Asserts that defence counsel failed to articulate the evidence and information contained in those documents.

(5) States that 20 potential defence witnesses were discussed with defence counsel in the context of the evidence and information presented in the Instructions and Brief, but none of them was considered for calling by defence counsel. The failure to call Robert Becker is described as the most flagrant example of incompetence.

(6) Annexes the 350-page 'Instructions and Brief document'.

1. That application is also supported by a further affidavit of 20 April 2017[776] to similar effect.
2. The application should be dismissed because, for the reasons given regarding grounds 1 and 2, the proposed additional evidence does not reveal a miscarriage of justice.

3. Application dated 24 November 2016, filed 5 December 2016

1. This application is supported by an affidavit of the appellant sworn 24 November 2016. The affidavit swears as to the historical documents which he wishes to rely upon and asserts that they were not made available to the primary court. Further the affidavit asserts that the documents were sourced from various records. In support of the same application the appellant swore a further affidavit dated 20 April 2017.[777] The affidavit itself is brief. It does not say significantly more than the affidavits we have already mentioned. There is a further lengthy document entitled notations on historical documents for each of grounds 1, 2 and 5. It includes the attachments and notes regarding the significance of those documents for each of grounds 1, 2 and 5. In substance, the notes are submissions as to why and how the documents should have been used at trial.
2. This application should be dismissed because, for the reasons given regarding grounds 1, 2 and 5, the additional material does not reveal a miscarriage of justice.

4. Application dated 14 December 2016, filed 21 December 2016

1. The purpose of this application is described as to allow the inclusion of documents pertaining to the redress application of RJM. The application is supported by an affidavit dated 15 December 2016. The affidavit states that the appellant wants the Court of Appeal to be aware that RJM made an application for redress in 2009 and was paid a considerable amount of money by the Government of Western Australia nearly four years prior to the appellant being made aware of the complaint. The affidavit asserts that those circumstances were a gross denial of natural justice and a perversion of the course of justice.
2. The application was also supported by a supplementary affidavit, filed with leave, sworn 14 December 2017. This affidavit attached the redress application made by RJM.
3. This application must be dismissed for several reasons.
4. First, the proposed additional evidence does not relate to any ground of appeal.
5. Secondly, and in any event, the proposed additional evidence does not materially add to the evidence that was adduced at trial. In cross-examination, RJM gave evidence that he made a redress application in April 2009 and that it was settled by way of a payout in about July 2011.[778] He was cross-examined about the connection between the redress application and his allegations about the appellant.[779] Counsel for the appellant made reference to it in his closing address to the jury.[780] The issue of compensation or redress was highlighted by the trial judge in her directions to the jury.[781] The proposed additional evidence would not have altered the evidentiary or forensic landscape in any material way.
6. Thirdly, there is no substance in the appellant's complaint that the payment of moneys in relation to the redress application involved a denial of natural justice to the appellant. The payment of moneys to RJM did not affect the rights or interests of the appellant. The payment of moneys to RJM as redress did not prove or tend to prove the guilt on the part of the appellant of any offence, and no suggestion was made at the trial that it did.

5. Further application dated 14 December 2016, filed 21 December 2016 concerning the attendance records

1. This application is supported by an affidavit dated 14 December 2016. In the affidavit the appellant asserts that he wants the day attendance records of the SWTP and the daily attendance records of the residential hostels to be before the Court of Appeal, stating that they were exhibits at the trial. He says the documents prove that DPM did not attend the SWTP in 1990 and 1991 and also that CJW did not live in the hostels as he claimed and that SJL only attended in a very limited way.
2. This application should be refused. The attendance records were, as the appellant says, an exhibit. Consequently, they are part of the record on appeal and there is no need to receive them as 'additional' evidence.

6. Application dated 16 June 2017, filed 28 June 2017 relating to a Freedom of Information request

1. This application is supported by an affidavit of the appellant sworn 20 April 2017. In his affidavit he states that a letter of response received to a request he made under the Freedom of Information Act should be received as evidence in the appeal. The letter of response dated 29 July 2016 takes the request to be a request for a copy of any documents which establish that an investigation occurred in 1990 - 1992 where three police officers attended the SWTP located in Victoria Park to investigate an alleged or potential child abuse complaint and any documents relating to that investigation. The response to the request stated that it was not possible to provide a copy of those documents because the author was satisfied they do not exist. The appellant asserts in his affidavit that this demonstrates that the claim by the witness DRH that three police officers visited the SWTP at Warminda in 1991 and interviewed him was a fabrication or a false memory resulting from a series of mental health problems.
2. We will explain the reasons why this application must be dismissed in the course of dealing with ground 7.

1. At the hearing on 29 November 2017, the appellant handed up an unfiled application to rely on an affidavit he swore on 23 November 2017. The substance of the affidavit was contained in par 3, in which the appellant swore that his 226-page opening address 'is a genuine encapsulation of the appellant's grievances and concerns regarding the evidence presented at ... trial'. It was evident that the appellant's purpose in applying to adduce his affidavit of 23 November 2017 was to ensure that the court gave consideration to the contents of his 226-page written opening address. That was evident both from the content of the affidavit and from the submissions he made in support of its receipt. His affidavit of 23 November 2017 did not in any way seek to prove the truth of factual assertions made in the written opening address.
2. There was and is no purpose to be served in the affidavit of 23 November 2017. As the court observed both at an earlier hearing[782] and on 29 November 2017,[783] the court had received and read, and would consider in detail, the appellant's written opening address, as we have done.
3. The appellant did not press his oral application.[784] In these circumstances, it was appropriate that the application be dismissed and we so ordered.[785]
4. The State filed two applications to adduce additional evidence. The first application filed 3 March 2017 sought leave to adduce the affidavit of Gemma Beggs affirmed 3 March 2017 into evidence at the hearing of the appeal. The second application filed 20 October 2017 sought leave to adduce the affidavit of David John McKenzie sworn 20 October 2017 into evidence at the hearing of the appeal. Mr McKenzie was the appellant's counsel at the trial.
5. The appellant swore an affidavit of 9 November 2017 in respect to Mr McKenzie's affidavit. The court has granted leave to the respondent to rely on the affidavit of Mr McKenzie.[786] The court receives the appellant's affidavit in response to that.
6. At the hearing of the appeal, counsel for the State elected not to cross-examine the appellant on his affidavits. However, the appellant required that Mr McKenzie attend the hearing for cross-examination. Mr McKenzie was cross-examined by the appellant and re-examined by counsel for the State.

The status and role of the written opening address

1. Two points should be made concerning the role and status of the written opening address.
2. First, the contentions within the document are to be assessed within the framework of the grounds of appeal. As was made clear to the appellant,[787] an appeal is conducted by reference to the grounds of appeal. It is not a free-floating wide-ranging inquiry into the conviction or as to points made in submissions.
3. Secondly, the distinction between submission and evidence was pointed out several times to the appellant.[788] The appeal is to be determined on the evidence at trial, together with any additional evidence the subject of a (successful) application to adduce additional evidence. The opening address is received as the appellant's submissions. It is not evidence and has no evidentiary status. Thus, none of the numerous sweeping factual assertions made in the opening address are evidence. Many of them are unsupported by any evidence at trial and are not the subject of any application to adduce additional evidence.
4. That brings us, finally, to the resolution of the grounds of appeal.

Grounds 1 and 2: counsel's conduct of the trial Introduction

1. Grounds 1 and 2 allege that the 'flagrantly incompetent' conduct of the defence by counsel at trial, including in failing to call relevant witnesses and tender or make proper use of documentary material, led to a miscarriage of justice.
2. It is convenient to begin by outlining the legal principles relevant to grounds of appeal of this nature. As will be seen, the submissions made by the appellant in support of these grounds are not put in the framework of the relevant legal principles. That is not meant as any criticism of the appellant. To the contrary, it is perfectly understandable in circumstances where the appellant is self-represented. However, it is a significant part of the explanation why the appellant's submissions in support of grounds 1 and 2 cannot be accepted.

1. It is necessary to commence with the basic but important point that incompetence of counsel is not, of itself, a ground of appeal. Rather, the relevant ground of appeal is that there was a miscarriage of justice.[789]
2. An appellant who seeks to demonstrate that the conduct of his or her counsel caused a miscarriage of justice undertakes a heavy burden which is not easily discharged.[790] This is a consequence of the adversarial nature of a criminal trial and the role played by counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel even if that was not in accordance with the wishes of the client.[791] It is not a ground for setting aside a conviction that decisions made by counsel were made without or contrary to instructions or involved errors of judgment or even negligence.[792] It is not the province of appellate courts to review the wisdom or prudence of the conduct of a trial by trial counsel.[793] For example, an apparently rational decision by trial counsel as to what evidence to call or not to call does not give rise to a miscarriage of justice simply because an appellate court thinks it worked to the probable disadvantage of the appellant.[794]
3. In Nudd v The Queen, the court concluded that notwithstanding that counsel's conduct of the trial was incompetent to a serious degree and that some of that conduct could not be rationally justified, there was no miscarriage of justice.[795] That illustrates the challenging character of a ground of appeal that asserts a miscarriage of justice arising through counsel's conduct of the trial.
4. Because the ground of appeal is that there was a miscarriage of justice, the focus of inquiry must be upon the consequences of the alleged incompetence, and the extent to which it caused or contributed to a miscarriage of justice, rather than upon the cause or nature of the incompetence alleged.[796] So, generally at least, the question will not turn on the adjectival characterisation of competence, such as being 'flagrant' or, with some exceptions, to the reasons for an incompetent act or omission.[797] The focus is on what happened or did not happen, not on why any error occurred.[798]
5. Buss P has recently explained the objective character of the inquiry when an appellant asserts that counsel's conduct of the trial caused a miscarriage of justice:[799]

An appellate court does not examine whether a decision taken by the accused's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage. Rather, the appellate court is concerned only with whether counsel's decision is capable of explanation on that basis. That is, could there be any reasonable explanation for the decision? The test is objective in character. See TKWJ [17] (Gleeson CJ), [27] (Gaudron J, Gummow J agreeing), [107] (Hayne J, Gummow J agreeing).

1. Thus, with rare exceptions, an appeal against conviction is not an investigation into the performance of trial counsel,[800] and does not invite attention to the subjective views or reasoning of the particular trial counsel.[801] Consequently, the evidence of Mr McKenzie and the appellant is of very limited assistance to the resolution of the appeal, and it is not necessary to resolve the conflicts in their evidence. (Had it been necessary to do so, in circumstances where the respondent chose not to cross-examine the appellant, the conflicts could not have been resolved adversely to the appellant.)
2. In McMahon,[802] McLure P (Buss JA and Mazza JA relevantly agreeing) said as follows:

In this context, miscarriage of justice has two aspects, process and outcome. If the conduct of counsel has deprived the accused of a fair trial according to law, that will give rise to a miscarriage of justice without regard to whether counsel's conduct might have affected the outcome: TKWJ [76] (McHugh J); Nudd v The Queen [2006] HCA 9 [3] - [7] (Gleeson CJ). This corresponds with that limb of the proviso where there is a serious breach of the pre-suppositions of a trial: Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [46]; Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 373. A complete failure to cross-examine a complainant or a complete failure to address the jury may result in an unfair trial: TKWJ [76]. So too may wrong advice that an accused is not entitled to give evidence: Nudd [17].

In the majority of cases, irregular conduct of counsel will not deprive the appellant of a fair trial. In such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues. First, did counsel's conduct result in a material irregularity in the trial. Secondly, is there a significant possibility that the irregularity affected the outcome: TKWJ [79] (McHugh J); Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662 [18] (Hayne J).

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

1. Within the framework explained by McLure P in the first two paragraphs cited, the appellant's grounds fit into the second category, in which the appellant must show a material irregularity in the trial arising from counsel's conduct, and that there is a significant possibility that the irregularity affected the outcome.
2. McLure P suggested, in the passage just cited, that where the error of counsel involves the failure to adduce evidence, there are parallels with the test for admission of new or fresh evidence.
3. Part 4 of the Criminal Appeals Act is headed 'Provisions applicable to any appeal' and comprises s 36 to s 45.
4. Section 39(1) provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. By s 39(3), however, s 39(1) does not affect the power of an appeal court to admit evidence pursuant to s 40.
5. Section 40(1) provides, relevantly:

For the purposes of dealing with an appeal, an appeal court may do any or all of the following -

(a) order the production of any record or thing, whether or not an exhibit, that is or may be relevant to the appeal;

(b) order a witness who would have been compellable at the trial in the lower court, whether or not called at the trial, to attend and be examined before the appeal court;

...

(d) subject to the Evidence Act 1906 section 9, admit the evidence of a witness, including a convicted appellant, who is a competent but not compellable witness;

(e) admit any other evidence.

1. The discretionary power conferred on this court by s 40(1)(e) to admit 'any other evidence', for the purposes of dealing with an appeal, is not expressly limited or confined. However, the subject matter, scope and purpose of the relevant provisions in the Criminal Appeals Act, and the issues to be resolved in each appeal, will indicate those considerations which are relevant or irrelevant to the exercise of the power.[803] The power in s 40(1)(e) must be exercised, in the context of an appeal against conviction pursuant to s 30, having regard to, amongst other things, the relevance of the evidence sought to be adduced in evaluating whether, within s 30(3), this court is of the opinion that the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported (s 30(3)(a)); or the conviction should be set aside because of a wrong decision on a question of law by the judge (s 30(3)(b)); or there was a miscarriage of justice (s 30(3)(c)).
2. At common law, there is a well-established distinction between fresh evidence, on the one hand, and new evidence, on the other. Fresh evidence is evidence that either did not exist as at the date of the trial or could not, with reasonable diligence, have been obtained or discovered for use at the trial. New evidence is evidence that could, with reasonable diligence, have been obtained or discovered for use at the trial.[804]
3. The courts have traditionally treated appeals (including appeals against criminal convictions) based on fresh evidence differently from appeals (including appeals against criminal convictions) based on new evidence.
4. Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of new as distinct from fresh evidence, unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted.[805]
5. Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of fresh as distinct from new evidence, unless there is a 'significant possibility' that, on the basis of all of the admissible evidence (that is, the fresh evidence and the evidence given at trial), a jury, acting reasonably, would have acquitted the appellant.[806] The fresh evidence must be relevant. It must also be credible in the sense that a reasonable jury could accept it as true (but it is not necessary that the appellate court should think it likely that a reasonable jury would believe it) or be sufficiently cogent and plausible to lead a reasonable jury to have a reasonable doubt as to the appellant's guilt (although the reasonable jury might not necessarily prefer it to other evidence with which it is inconsistent).[807]
6. Ordinarily, there will be no miscarriage of justice at a criminal trial unless:

(a) in the case of an appeal against conviction based on new evidence, the traditional test for allowing an appeal against conviction, on the basis of new evidence, has been satisfied; and

(b) in the case of an appeal against conviction based on fresh evidence, the traditional test for allowing an appeal against conviction, on the basis of fresh evidence, has been satisfied.

1. Although it is highly unlikely that Parliament intended that s 40(1)(e) should be construed as obliterating the distinction developed in the common law courts between the admission of fresh evidence and the admission of new evidence on appeal, the power in s 40(1)(e) is broader than the principles applicable in common law proceedings.[808]
2. As we have indicated, an appellant's prospects of establishing that a miscarriage of justice, within s 30(3)(c), has occurred will be relevant in determining whether the court should exercise its power to admit additional evidence (whether new or fresh) in the appeal pursuant to s 40(1)(e).
3. In Rinaldi v The State of Western Australia,[809] Steytler P (Wheeler & Pullin JJA agreeing) said, in relation to s 40(1)(a), (b), (d) and (e):

While these provisions afford the Court a discretion, which is not expressed to be limited in any way, to do any of the things provided for, it is most improbable that the legislature intended that they 'should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction': CDJ v VAJ (1998) 197 CLR 172 at [111] per McHugh, Gummow and Callinan JJ (dealing with the provisions of s 93A(2) of the Family Law Act 1975 (Cth)) and see also De La Espriella-Velasco [[2006] WASCA 31; [2006] WASCA 31; (2006) 31 WAR 291] at [150] per Pullin JA. The common law principles have, of course, been developed over many years in order to meet the ends of justice and the considerations giving rise to them will plainly be material to the exercise of the statutory discretion, which must be exercised judicially. While the common law principles touching upon the distinction between new and fresh evidence are not necessarily determinative of the manner of exercise of the statutory discretion, the considerations giving rise to those principles will ordinarily be weighty, so much so that it will be a rare case in which an exercise of the statutory discretion produces a different outcome to that produced by application of the common law principles [84].

1. As Steytler P explained in Rinaldi, although the common law principles concerning new and fresh evidence are not necessarily determinative of the manner in which the discretion conferred by s 40(1)(e) will be exercised, those principles will, ordinarily, be weighty, and it will be a rare case in which an exercise of the statutory discretion produces an outcome different from that produced by the application of the common law principles. Steytler P's observations in Rinaldi have been referred to with approval in numerous decisions of this court.[810]
2. In our opinion, in the case of an appeal against conviction based on new or fresh evidence, the common law principles concerning new and fresh evidence are relevant to the exercise of the discretion under s 40(1)(e) and the determination of whether there was a miscarriage of justice at the trial within s 30(3)(c), but the exercise of the discretion and the determination of whether there was a miscarriage of justice do not involve the rigid application of those principles. As McHugh, Gummow and Callinan JJ noted in CDJ, in the context of civil proceedings, the common law courts have always reserved to themselves 'an exceptional power to set aside a verdict on the ground of further evidence where the interests of justice require it' [105]. The power under s 40(1)(e) is to be exercised, and whether there was a miscarriage of justice within s 30(3)(c) is to be determined, having regard to, amongst other relevant considerations, the overarching principle of the proper functioning and the protection of the integrity of the criminal justice system in the particular case. The interests of justice in that context include not only the interests of an accused who has been convicted, but also the public interest as represented by the State.
3. An alleged error by defence counsel in failing to adduce evidence or in failing to obtain and adduce evidence must necessarily relate to new, not fresh evidence.[811]
4. In order to establish that a failure to call a witness caused or contributed to a miscarriage of justice, an appellant is ordinarily required to call the witness in question to give evidence in a form which would be admissible at trial so that the appeal court can be satisfied of what the witness would actually say under oath and the relevance and cogency of that evidence.[812]
5. An example of a case in which an appellant did this, and succeeded in the appeal, is Re Knowles.[813] In that case, the appellant was convicted of murdering his de facto wife. A witness contacted the appellant's solicitors, well before the trial, providing them with information. The witness was not called by the appellant at trial, because counsel took the view that the evidence was legally inadmissible. Detailed affidavits were provided to the appeal court from the proposed witnesses. The Full Court set aside the conviction, holding that the evidence would have been of fundamental importance to the effective presentation of the defence case at trial. The court observed that, generally speaking, a trial will not be regarded as having miscarried if the accused has been afforded a proper opportunity for choice and a choice has been made by the accused's legal representatives.[814] However, in that case the court considered that no choice had been made because of the fundamental error of counsel in treating the evidence as inadmissible.[815] Also, the court was satisfied that there was no rational forensic reason for not calling the evidence if it was admissible. In the circumstances the court concluded that the fundamental error by counsel leading to evidence of fundamental importance to the defence case not being adduced resulted in a miscarriage of justice.[816]
6. The appellant emphasises the need to consider all of his complaints together, as an aggregation of faults that individually do not cause a miscarriage may, when taken together, give rise to a miscarriage of justice.[817] We accept that is so. An assessment of whether or not there has been a miscarriage of justice will be made in the context of the trial as a whole, having regard to the relative strengths and weaknesses of the cases of each party, and the cumulative effect of any defects, irregularities or omissions that are shown on appeal to have occurred at trial.[818] That is the approach we have taken. However, for ease of exposition it is necessary and convenient to begin by addressing particular complaints individually.

1. Like his submissions on many aspects of the appeal, the appellant's submissions concerning grounds 1 and 2 are put in a framework that asserts, either explicitly or implicitly, the appellant's view of the facts and either overlooks or seeks to explain away any evidence that is not consistent with his view of the facts. That is not the framework in which an appellate court approaches its task. That task is approached by reference to the record, comprising the transcript of the trial and the exhibits, together with any additional evidence adduced on appeal, while bearing in mind the jury's advantage in seeing and hearing the witnesses at trial.

1. One of the appellant's overarching contentions in support of grounds 1 and 2 is that his counsel at trial failed to call 21 witnesses and to adduce and make appropriate use of historical documents as identified and explained in the 350-page document entitled 'Instructions and Brief' which was provided, together with 10 drop files of supporting documents, by the appellant to his counsel in conference two weeks before the trial commenced.
2. The appellant submits that:

(1) by the Instructions and Brief, he instructed his trial counsel to call the 21 witnesses referred to in it or in the accompanying 10 drop files;[819] and

(2) counsel's failure to call those witnesses gave rise to a miscarriage of justice.[820]

1. We do not accept either of these submissions.
2. As to the first submission, the Instructions and Brief did not constitute or include an instruction by the appellant to his counsel that any particular witness was to be called. Rather, on a proper reading, the Instructions and Brief provided the appellant's instructions as to the alleged offences and as to the surrounding circumstances. In the course of it, a number of matters were raised that might, subject to further investigations, invite consideration of the calling of one or more witnesses. But the document did not purport to provide final instructions as to which witnesses were to be called. Given that the appellant provided the document to his counsel at a meeting two weeks before trial, it would have been surprising had it done so.
3. More fundamentally, for the reasons that follow, we do not accept the appellant's second submission.
4. The appellant has not led evidence from any of the 21 witnesses whom he says should have been called at his trial. Nor does the appellant provide any firm foundation for knowing what specifically the witnesses could be expected to say. Much of what the appellant says potential witnesses would or might say is mere assertion, seemingly founded on what, for the appellant, is the axiomatic or self-evident correctness of his view of the complainants and of relevant counts.[821] In substance, the appellant says that he wishes the opportunity to investigate the 21 potential witnesses so as to find out what they might say.[822] That falls a long way short of establishing that the failure to call the witnesses caused or contributed to a miscarriage of justice.
5. Identifying a person who has had some involvement in surrounding events and circumstances does not require or justify the calling of that person as a witness. To the contrary, whether a witness is called by or on behalf of an accused at a criminal trial always involves a careful assessment by counsel of many competing considerations. Some of these include an identification of precisely what evidence the witness can give, its apparent cogency, its significance to the issues in the case, any known or potentially unhelpful evidence the witness may give and the degree of uncertainty as to what precisely the witness will say, including when under cross-examination. Unless these matters can be assessed, it is ordinarily likely to be difficult if not impossible to conclude that the witness should have been called. The appellant must go further than that, and demonstrate that the failure to call the witness caused or contributed to a miscarriage of justice.
6. In order to establish that a failure to call a witness caused or contributed to a miscarriage of justice, an appellant is ordinarily required to call the witness before the appeal court, to give evidence in a form which would be admissible at trial so that the appeal court can be satisfied of what the witness would actually say under oath and the relevance and cogency of that evidence.[823] As we have said, the appellant has not done so in this case. There is no sufficient reason why the ordinary rule, as explained, should not be applied in the present case.
7. The reasons we have given sustain the conclusion that counsel's failure to call the 21 witnesses referred to by the appellant did not cause or contribute to a miscarriage of justice. We will say something more in relation to some particular witnesses.
8. A complaint that is repeatedly emphasised by the appellant is that his counsel failed to call Robert Becker as a witness in his defence, describing it as the 'most flagrant example'.[824]
9. For a number of overlapping reasons, the fact that the defence did not call Robert Becker did not cause or contribute to a miscarriage of justice.
10. Some of the appellant's submissions proceed on an apparent assumption that any person who was connected with some aspect of the facts and circumstances relating to the alleged offending should have been called as a witness. The appellant's submissions directed limited attention to the specific evidence that Mr Becker would be expected to have given. The appellant submitted that the Mr Becker should have been called to verify the documents of which he was an author.[825] The appellant also suggested that Mr Becker 'could have' also given evidence from his own recollection that DPM did not attend the SWTP.[826]
11. Apart from the contents of documents authored by Mr Becker, the appellant has not provided any objective foundation for a conclusion as to what Mr Becker might have been expected to say in evidence.
12. A speculative assertion that a potential witness might have given evidence to a certain effect falls well short of demonstrating that the absence of that witness caused or contributed to a miscarriage of justice.
13. Further, the only evidence before the court as to what Mr Becker might have been expected to say comes in the form of Mr McKenzie's contemporaneous note of his telephone conversation with Mr Becker shortly after the trial. That records a statement by Mr Becker that he has a memory of the appellant sitting at Warminda with DPM and that Mr Becker was 'sure' that DPM was on the Warminda program.[827]
14. Insofar as the appellant asserts that Mr Becker should have been called to verify what was stated in the documents, there is nothing to suggest that any substantial forensic benefit would have been gained from doing so. Furthermore, there were obvious potential forensic disadvantages in calling Mr Becker, including uncertainty as to whether, in the course of cross-examination, he would give evidence that was materially to the disadvantage of the appellant in relation to any aspect of the charges he faced at trial. Necessarily, had Mr Becker been called, even after a careful process of proofing, there would have remained material uncertainty as to what might emerge in the course of cross-examination. The limited evidence before this court as to what Mr Becker might have said suggests that such a risk of giving evidence unhelpful to the defence may well have eventuated had Mr Becker been called.
15. Thus the decision not to call Mr Becker can properly be seen, objectively, as involving a rational decision by counsel that could have resulted in a forensic advantage to the appellant.
16. For corresponding reasons, the appellant's complaint that Mr Orohoe was not called does not assist his appeal. His absence cannot be said to have caused or contributed to a miscarriage of justice.
17. The appellant submits that Mr John Schnell should have been called as a defence witness.[828] In part, the appellant relies on Mr Schnell's memorandum bearing the date 8 January 1990.[829] For the reasons explained in dealing with ground 5, that does not assist the appellant. The appellant's main point about Mr Schnell is his claim that Mr Schnell's evidence could have shown how 'disturbed' and 'dangerous' RJM was at and around the relevant time.[830]
18. For the reasons that follow, there is no substance in this complaint.
19. At trial, there was considerable evidence as to highly problematic behaviour on the part of RJM, and other matters capable of bearing adversely, to a significant degree, on his credibility and reliability. Without attempting to be comprehensive, it included the following:

(1) the making of complaints of sexual assault against several different men;[831]

(2) in 1991 RJM was accused of trying to have sexual intercourse with a child;[832]

(a) RJM spoke and behaved in a quite sexualised way, for example talking about prostituting himself and giving a head job for money and often talking about sexual acts and what he would do for money;[833]

(b) on one occasion he ran naked through the hostel;[834] and

(c) he was unpredictable and volatile; if he did not like something he would leave or act up, smash things, assault group workers or other people;[835]

(4) RJM had adult convictions for offences including assault, assault occasioning bodily harm and assaulting a public officer.[836]

1. The State case accepted that RJM behaved in a sexualised way.[837] The State case contended that this aspect of RJM's character, and his vulnerability arising from his wide-ranging problems, were exploited by the appellant in choosing his victims.[838] This aspect of the State case underlines the potential forensic disadvantages had the defence called Mr Schnell with the aim of further elucidating these elements of RJM's behaviour and character. RJM's tendency of sexualised behaviour and to the making of complaints (whether true or not) of sexual abuse by others could be said to have made him more vulnerable to exploitation by the appellant in engaging in an act of sexual abuse. Moreover, there was also a risk of engendering in the jury a sense of 'overkill' and resultant sympathy for RJM. A decision by counsel not to call Mr Schnell for the purpose asserted by the appellant is readily explicable as a rational forensic decision by counsel.
2. Also, the appellant did not call Mr Schnell as a witness in the appeal, so the precise content of any evidence he could have given at trial, and its cogency, has not been demonstrated. As we have said, that creates a very substantial obstacle for any conclusion that the failure to call him at trial caused or contributed to a miscarriage of justice.
3. For these reasons, the failure to call Mr Schnell did not cause or contribute to a miscarriage of justice.
4. The appellant contends that Dr Hugh Cook, a psychiatrist who treated RJM, should have been called to testify as to RJM's mental state and to speak to a report he wrote on 18 October 1990 in which he described RJM as a 'developing sociopathic personality'.[839] He also complains that a fax he wrote to Dr Cook on 4 September 1990 was not tendered.[840] In the fax the appellant thanked Dr Cook for seeing RJM and expressed his view that he had been the main driver of RJM receiving psychiatric treatment since others were reticent to take that course because they feared it may lead to RJM being unnecessarily medicated. The appellant suggests that he would not have referred RJM to Dr Cook if he had been abusing him.[841] This evidence may not have been received by the jury in a manner favourable to the appellant. It would have been open to the jury to treat this evidence as showing the appellant's awareness of RJM's vulnerability and also that he manifested an outward degree of concern for RJM either in spite of or in an attempt to conceal his abuse. Calling Dr Cook would not have added anything to the evidence available on the face of the documents. There was a rational forensic basis to exclude those documents.

1. A major theme of the appellant's submissions is that his trial counsel did not make proper use of the information and documents in the Instructions and Brief because he 'ignored' or failed to read it.[842]
2. As we have explained, with rare exceptions, the question of whether any failure of counsel gave rise or contributed to a miscarriage of justice is to be determined objectively. An objective comparison of the contents of the Instructions and Brief with the conduct of the defence case does not sustain a conclusion of a miscarriage of justice. We have detailed the defence case, as put in closing submissions to the jury, earlier in these reasons.[843]
3. The major themes of the defence case at trial were consistent with and reflect major themes of the Instructions and Brief. Of course, not all of the themes of and points made in the Instructions and Brief can be seen in the conduct of the defence case at trial. We say 'of course' because the Instructions and Brief was approximately 350 pages in length. In any event, the selection of the central themes of the defence case in a criminal trial involves the exercise of the professional skill and judgment of counsel. It is not for counsel to simply adopt all theories or themes proposed by an accused person. Counsel is not a mouthpiece for the client.
4. We are not persuaded that the failure to advance any line of defence identified in the Instructions and Brief caused or contributed to a miscarriage of justice. In our view, based on a review of the record, the conduct of the defence case at trial was consistent with the rational exercise of forensic judgment by counsel. Given the length of the Instructions and Brief it is neither necessary nor appropriate to deal individually with every point there raised. We make the following general observations.
5. The Instructions and Brief document asserted a number of conspiracies involving various different witnesses in the case, and others. Prudent counsel will carefully assess whether the likely forensic benefits of advancing a conspiracy theory outweigh the obvious risks of that course. A choice by counsel not to advance such a theory, or to advance it in a more limited manner, is readily explicable on the ground of a rational forensic decision aimed at avoiding the risks of that course.
6. Further, it is apparent, on a review of the record, that a jury might have considered that most if not all of the complainants were vulnerable and damaged people with a number of deep-seated problems. Counsel could rationally have taken the view that particular care was needed in approaching the cross-examination of the complainants. Highlighting problems experienced by complainants, such as mental impairment, endemic antisocial behaviour, and substance abuse, has obvious potential benefits in undermining a complainant's credibility. Nevertheless, counsel could, to say the least, rationally take the view that this must be tempered by some sensitivity in order to avoid engendering in the jury sympathy for a complainant and an adverse reaction to the appellant. Thus there is an evident pursuit of forensic advantage in adopting a more sensitive and less confronting selection of subject matter for cross-examination and the tone and manner in which it is conducted. Moreover, the vulnerability and apparent lack of credibility of the complainants was highlighted as part of the State case[844] as something of which the appellant took advantage in committing the offences the subject of the charges.
7. Considerations of these kinds explain why there is no substance in a number of the appellant's complaints about aspects of the Instructions and Brief which the appellant contends were not pursued or not adequately pursued at trial. For example, the appellant complains that counsel's cross-examination of DRH did not fully and adequately expose the extent of DRH's mental impairment.[845] In circumstances where, on review of the record, it is clear that DRH's substantial mental impairment was readily apparent, counsel's choice not to pursue in cross-examination the full nature and extent of DRH's mental impairment had, objectively, an obvious potential forensic benefit. It avoided the risk of alienating the jury and creating sympathy for DRH through the highlighting and emphasis of his problems.
8. Another major strand of the appellant's complaints about his counsel's conduct of the trial relates to what the appellant describes as the demonising social media and parliamentary petition campaign that he says had been waged against him prior to trial. The appellant acknowledges that, at trial, his counsel cross-examined complainants and Detective Horch as to the Facebook group conversations relating to the appellant. However he complains that his counsel did not cross-examine witnesses to expose what he calls the witnesses' relentless campaigns against the appellant through blogs and other social media platforms.[846] As revealed by a review of the record of the trial, counsel's approach is readily explicable on the ground of rational forensic choices. In cross-examining complainants and Detective Horch as to the Facebook conversations, counsel pursued a line of defence of potential substance - that witnesses' versions of events were concocted or contaminated through those conversations. In refraining from cross-examining in relation to the wider social media campaign of which the appellant complains, counsel avoided the obvious potential prejudice in putting that material before the jury.
9. We will make further observations as to counsel's approach to the judge's directions concerning prejudicial publicity and social media in the course of dealing with ground 3.
10. To the extent that the question of whether trial counsel read the Instructions and Brief may be relevant, we accept his evidence that he did so. The appellant contends that counsel's conduct at the trial was so inconsistent with the contents of the Instructions and Brief as to sustain an inference that he did not read it. We reject the premise of that submission. As we have explained,[847] we are not persuaded that counsel's conduct of the trial is inconsistent with the exercise of a rational forensic judgment after having considered the contents of the Instructions and Brief.
11. Throughout the Instructions and Brief, the appellant set out an enormous number of questions to be asked of the witnesses at trial. The appellant's submissions and evidence on appeal complain that these questions were not asked. The appellant's submissions appear to proceed on a fundamentally misconceived view of the division of role between an accused person and their counsel. An accused person does not dictate to counsel what questions are to be asked at trial. An accused person provides instructions as to relevant circumstances and events and in response to the evidence to be led by the State. It is for counsel, exercising their professional skill and judgment, to determine the approach to be taken to the cross-examination of witnesses called by the State, including by formulating appropriate questions for witnesses.
12. By way of illustration, failure numbers 2, 43, 63, 69 and 91[848] complain of counsel's 'failure to ask questions in identified parts of the Instructions and Brief'.[849] There is no substance in these complaints. The vast majority of the proposed questions are impermissible or improper. In a number of respects, the point of substance reflected in the proposed questions involved potential forensic disadvantage of the kinds discussed elsewhere in this section and the next section of our reasons, so that a failure to pursue the point was explicable on the ground of rational forensic decision-making. Further, in some respects the point of substance in the proposed questions was pursued in a different (and permissible) manner through cross-examination or closing address at trial.

Complaints as to counsel's conduct of the trial generally

1. The appellant's submissions make wide-ranging complaints as to the manner in which counsel conducted the trial. Areas of complaint include:

(1) The extent of contact between the appellant and his counsel in the months leading up to and during the trial, giving rise to a failure to take proper instructions.[850]

(2) The failure on the part of counsel to give the appellant advice as to the elements of the offence.[851]

(3) The failure of counsel to discuss with and give advice to the appellant about whether to give evidence.[852]

(4) Various criticisms of the manner and tone of counsel's opening and closing addresses, and general manner in court, including how softly he spoke.[853]

1. The appellant's complaints of this nature are not directed to the critical question of whether what was done or not done at trial led to a miscarriage of justice. As to the first category of complaint listed above, it is not necessary to resolve the conflicts between the evidence of the appellant and Mr McKenzie as to the precise extent of the contact and communication between them leading up to the trial. Any complaint of inadequate communication must be viewed in the framework that, two weeks before trial, the appellant provided his counsel with very detailed instructions in the form of the 350-page Instructions and Brief. On a review of the transcript of the trial, there is no reasonable basis to conclude that counsel was inadequately prepared, much less that he was so inadequately prepared as to contribute to or give rise to a miscarriage of justice.
2. As to the second category of complaints, again it is not necessary to resolve the conflict in evidence concerning the extent to which the elements of the offence were explained to the appellant prior to the trial. There is nothing in the appellant's evidence to suggest, and no reasonable basis to suppose, that any absence of understanding on the part of the appellant as to the elements of the offence had any adverse consequence for the appellant or for the conduct of his trial. The content of the Instructions and Brief indicates that the appellant understood the charges he faced adequately to enable the giving of instructions and the conduct of the trial.
3. As to the third category, there is no evidence and no reason to suppose that any appropriate advice would have caused the appellant to decide not to give evidence. Thus if there were any failure to give advice in this respect (and there is no need to decide whether there was), it did not cause any prejudice to the appellant in the conduct of the trial.
4. As to the fourth category, an appeal against conviction is not a wide ranging inquiry into the performance of the appellant's counsel at the trial.[854] It is not the province of an appeal court to review the wisdom or prudence of counsel's conduct of the trial.[855] Nothing in this category of complaints reveals anything that might have contributed to a miscarriage of justice.

1. A central strand of the appellant's submissions on grounds 1 and 2 relates to the charge concerning RJM. In broad terms, the appellant asserts that historical documents demonstrate that RJM made false sexual allegations against Department staff during 1989 to 1992 but these facts were never introduced by defence counsel at trial.[856]
2. Contrary to the appellant's assertions, at trial defence counsel cross-examined RJM in relation to a number of instances where RJM had made complaints of sexual abuse by others. RJM was cross-examined about having made allegations of sexual abuse by men by the name of Barrow,[857] Madar[858] and Finch.[859] He was also cross-examined in relation to whether he had been assaulted by BH.[860] We will say more regarding the cross-examination concerning BH immediately below. Also, BC was cross-examined as to her concerns or suspicions of sexual abuse of RJM by people including Barrow, Madar and Finch and having expressed those concerns to people in the Department.[861]
3. The appellant asserts that there were many documents that could and should have been used in the cross-examination of RJM and BC.[862] It is neither necessary nor desirable to deal individually with every one of the numerous documents to which the appellant refers. It will be sufficient to refer to several examples which illustrate more broadly the reasons why we are not satisfied that a miscarriage of justice was caused or contributed to on the conviction relating to count 1 by reason of any failure to make further or better use of historical documents.
4. The appellant pointed to a note that he made dated 25 May 1990[863] asserting that RJM had made sexual allegations against BH and that when confronted about making a written statement he backed off, kept on laughing, struck a match and said 'I could burn this place down'.[864] The appellant complains that RJM was not confronted with this document in cross-examination. Counsel cross-examined RJM as to whether he had made a complaint of assault by BH.[865] In effect, counsel asked questions as to the substance of the document, without putting the document specifically to the witness. Assuming, favourably to the appellant, that the document could properly have been put directly to the witness, the approach adopted by counsel is a conventional and unexceptional one. The question is not whether, in hindsight, a different approach might have proved to be more persuasive. Further, the appellant complains that the cross-examiner asked whether RJM had complained of 'assault', without specifying a sexual assault. No miscarriage of justice was caused or contributed to by this formulation of a (single) question. Apart from anything else, in context it is reasonable to suppose that it was taken to refer to a sexual assault. That is how the witness appeared to understand it.[866]
5. Next, the appellant complains at some length[867] about the failure of his counsel at trial to use what the appellant describes as a residential hostel log written by a group worker.[868] The appellant asserts that the document shows another occasion on which BC saw RJM with blood on his underpants, undermining BC's evidence that the time RJM complained of sexual assault by the appellant was the only such time.[869]
6. In our view, when the contents and date range of this document are considered in the framework of the evidence at trial, while the document could have been used to assist the defence case, it might rationally have been viewed otherwise by a lawyer in the position of counsel for the appellant. There might have been room for the view that the document referred to the incident allegedly involving the appellant. Counsel could rationally have taken the view that the risks involved in use of the document meant that the prudent and preferable approach was not to attempt to make use of it.
7. For these reasons, in our view a decision not to make use of this document is explicable on the ground of rational forensic decision-making by counsel.
8. While we have reached our view, as set out above, on an objective analysis of the document and the record, we note that in the course of his cross-examination, Mr McKenzie was asked why he did not use the document at trial. Mr McKenzie said that, for at least two reasons, he was concerned that the document might prove to be a 'double-edged sword'.[870] First, he had a concern as to the authenticity of the document. Although the appellant described the document in the Instructions and Brief as a residential hostel log written by a group worker, the form in which it was presented to Mr McKenzie did not demonstrate that to be so. Secondly, Mr McKenzie considered that the document might be open to an interpretation that made it supportive of BC's evidence.[871]
9. In our view, that approach reflects rational forensic decision-making.
10. The appellant repeatedly asserts that RJM made many complaints of sexual abuse by others. The appellant says that RJM made a complaint about sexual abuse to Ann Solder, a group worker at Hamilton Hill hostel. He says that complaint was against the appellant and was later withdrawn by RJM.[872] Attachment V to ground 2 of the appellant's 'Notations on Historical Documents'[873] comprises references to RJM in the appellant's 1991 diary. An entry under 7 February 1991 reads '[RJM]. Cancelled. (call from Ann Solder re allegation)'. It should first be noted that this document was in fact tendered at trial by the State as exhibit 7, which obviated the need for Mr McKenzie to adduce the document. Secondly, there is little probative value in this single entry; it does not identify the content of the allegation or against whom it was made. Thirdly, we are satisfied that there was a rational forensic basis for the defence not to question the appellant on this entry as it could be interpreted as bolstering RJM's evidence that the appellant sexually abused him. That is demonstrated by the fact the State relied on the entry for that precise purpose, putting to the appellant in cross-examination that the complaint referred to him, which he denied.[874]
11. According to the appellant, RJM made another of his complaints of sexual abuse - this one about Daryl Barrows (also known as Robert Barrow) - to the appellant.[875] The appellant says that counsel failed to produce a fax that he had sent to his supervisor Jim Orohoe reporting the complaint.[876] The fax includes the following sentence: 'According to [RJM] this man has not made any advances to him, however, he has shown him porn magazines and porn material'.[877] Plainly this document does not indicate that RJM had reported a complaint to the appellant. While the document may have some evidentiary value in indicating some concern on the part of the appellant for RJM's welfare, it also carried the risk of highlighting to the jury the appellant's awareness of RJM's vulnerability. As we have said, the vulnerability of the complainants was a basis upon which the State case was put.[878] There was a rational forensic basis for excluding the document. The absence of this document did not contribute to a miscarriage of justice.
12. The appellant also complains[879] that counsel at trial failed to make use of an email dated 13 February 2013.[880] That document is an email from Detective Askew to Detective Horch as to the results of a search regarding the reporting of child abuse during the 1990s. The appellant complains that the email of 13 February 2013 by Detective Askar was not put to BC. Given that the email was not a communication involving BC, and given the hearsay use to which the evidence is apparently sought to be put, it would not have been open for counsel to have directly confronted BC with this document. Even if that were not so, the considerable doubt as to whether it was permissible was a legitimate forensic reason why counsel may have chosen not to use the email in this way.
13. For these reasons, in our opinion none of the appellant's complaints as to the conduct of his counsel or of failure to adduce or make appropriate use of evidence gave rise to or contributed to a miscarriage of justice on the counts concerning RJM.

1. The appellant also complains of counsel's conduct of the defence case concerning count 27, involving ACS.[881] Like much of the written opening address, the appellant's submissions concerning ACS are embedded in and predicated on the appellant's factual commentary which takes the truth of his factual assertions of innocence and as to the facts and circumstances as axiomatically correct. Evidence to the contrary at trial is either ignored or asserted to be patently false. Self-evidently, that is not the framework in which an appeal court evaluates whether a conviction involves a miscarriage of justice.
2. The appellant's submissions repeatedly emphasise that when ACS was first interviewed by the police he did not say that the appellant had rubbed his bottom or touched his anus.[882] That was a central element of the defence case a trial, both in cross-examination[883] and in closing address.[884]
3. Notwithstanding that feature of ACS's evidence, there was a powerful State case on count 27 concerning ACS. The appellant admitted that he had touched ACS as part of teaching him relaxation techniques.[885] The appellant had a substantial amount of personal contact with ACS while he (ACS) was not at the SWTP, and chose to visit ACS at the flat the appellant had helped arrange for ACS to live in.[886] The evidence of ACS as to the circumstances in which the appellant indecently assaulted him in the course of a massage had powerful echoes with the appellant's admitted indecent dealing with ARK and with his use of a 'relaxation technique' as the context for progressing to indecently touching AN. The same was true of the incident concerning RJM if, as they were entitled to be, the jury were independently satisfied of the appellant's guilt in relation to count 1. Moreover, there was no evidentiary foundation at trial for any assertion that ACS had any contact or communication with any other complainants.
4. In this context, we are not persuaded that failure by defence counsel to raise any of the matters referred to by the appellant[887] in any way caused or contributed to a miscarriage of justice.

1. The appellant further complains of his counsel's conduct of the defence case concerning counts 42 - 49 involving SJLS.[888]
2. Our earlier observations concerning the factual assertions of innocence and of the falsity of evidence to the contrary on which the appellant's submissions are predicated[889] apply again here.
3. The appellant's submissions assert that:

(1) in 1990 or 1991, SJLS told his psychologist, Mr Grey Searle, that he had been sexually abused, including by a man named Dino, but did not make any complaint about the appellant;[890]

(2) this is 'compelling' evidence that SJLS was never sexually abused by the appellant;[891]

(3) competent defence counsel would have called Mr Searle to prove that SJLS made no accusations against the appellant.[892]

1. The appellant asserted that SJLS made two complaints to Mr Searle, one of a person who assaulted him in the bush in Armadale, and one by a man named Dino.[893] The evidence at trial and the additional material on which the appellant relies[894] do not sustain this assertion. Mr Searle's statement refers to a complaint by SJLS in relation to only one person. The proper inference is that the Dino referred to in SJLS's police statement and the person referred to by Mr Searle are the same person relating to the same incident.
2. Further, the evidence supports, or is reasonably capable of supporting, a finding that the discussions between SJLS and Mr Searle occurred before the alleged commission of offences by the appellant against SJLS. SJLS's evidence was that he spoke to Mr Searle about the sexual assault by Dino when he was 13 or 14,[895] and that the incidents with the appellant occurred when he was 15, or perhaps 16.[896]
3. The appellant complains that counsel did not specifically put to SJLS that when he complained to Mr Searle about the sexual assault by Dino, he did not complain of any sexual assault by the appellant.[897] There is no substance to this complaint. Immediately after questioning SJLS about his complaint to Mr Searle about Dino, counsel put to SJLS, in effect, that his complaint to police about the appellant was first made in 2013.[898] The obvious implication was that no complaint about the appellant was made to Mr Searle. The failure to spell that out did not cause or contribute to a miscarriage of justice. Nor did the failure to call Mr Searle, who could have said no more than what was implicit and obvious - no complaint about the appellant was made to Mr Searle.
4. The appellant also complains of his counsel's failure to tender at trial the appellant's diary entry for 25 February 1991 that '[SJLS] unexpectedly came in, see file note'.[899] He contends that this undermines SJLS's evidence that, prior to that, the appellant had sexually abused him.
5. The diary entry was before the jury. A summary of the relevant extract was tendered as part of a schedule of diary references concerning SJLS.[900] The extract itself was also tendered by counsel for the appellant.[901]
6. For these reasons, we are not persuaded that any miscarriage of justice arose in relation to the appellant's convictions on the counts concerning SJLS.

1. We will say more about complaints concerning DPM in the context of ground 5, CJW and SJLS in dealing with ground 4, and complaints concerning DRH in the context of ground 7.
2. We have also considered the 95 alleged failures of defence counsel enumerated in the appellant's affidavit of 9 November 2017.[902] Most of them are the subject of matters we have already dealt with above. To the extent that they are not, for reasons corresponding to the reasons already given, we are not persuaded that any of these alleged failures caused or contributed to a miscarriage of justice. In summary:

(1) Some are failures to do things which would not have been legally permissible.

(2) Many relate to matters that were, in fact, raised by way of cross-examination or closing address to the jury, albeit often in a different and less confrontational or dramatic fashion.

(3) Generally, there were evident potential forensic disadvantages in the pursuit of the matters of which the appellant complains. Counsel's choice not to pursue those matters can be seen as a rational exercise of forensic judgment.

1. Upon a review of the whole of the material, we are not persuaded that any material irregularity arose from counsel's conduct of the trial. Still less, are we persuaded that there was any irregularity with a significant possibility of having affected the outcome of the trial.
2. Insofar as grounds 1 and 2 assert that the evidence the subject of the appellant's applications to adduce additional evidence demonstrates that the convictions give rise to a miscarriage of justice, they cannot be accepted. The additional material on which the appellant relies is new, not fresh, evidence, as it is material he provided to his counsel prior to trial.[903] The test for whether new evidence reveals a miscarriage of justice is that the additional evidence, when viewed in combination with the evidence at trial, demonstrates innocence or raises such a doubt that the appellate court concludes that the appellant should not have been convicted. For the above reasons, the additional evidence in the present case falls well short of meeting that requirement. Indeed, the additional evidence in the present case does not even satisfy the test for the admission of fresh evidence on appeal.
3. For these reasons there is no merit in grounds 1 and 2. We would refuse leave to appeal in respect of those grounds.

Ground 3: adverse publicity Appellant's submissions

1. Ground 3 asserts that the damaging social media and parliamentary petition campaign waged against the appellant, of which the trial judge was not made sufficiently aware (and in the case of the parliamentary petition, not made aware at all), and the failure of the appellant's counsel to follow his instructions to seek an adjournment of the trial by reason of the adverse publicity led to an unfair trial and a miscarriage of justice.
2. The appellant's submissions in support of ground 3 include the following:

(1) Vicious and false social media and parliamentary petition campaigns against the appellant were conducted by several complainants, with the assistance of Detective Horch, in the nine months prior to the trial and during the trial.[904]

(2) In the Instructions and Brief document, the appellant made his counsel aware of the publicity and instructed counsel to seek an adjournment of the trial for 12 months because of that publicity. That instruction was ignored.[905]

(3) At trial, counsel for the appellant failed to bring to the judge's attention the detail of the social media campaign and the existence and detail of the parliamentary petition. As a result, the judge did not adequately direct the jury with respect to these matters.[906]

(4) The similarities in aspects of the complainants' stories suggest that they swapped stories on the internet and at personal meetings.[907]

(5) The evidence given by the propensity witness, AN, was tainted by his active involvement in the social media and parliamentary petition campaign.[908]

1. In her opening remarks to the jury at the commencement of the trial, her Honour said, relevantly, as follows:

Now, one last thing I want to discuss with you and that is the issue of media attention. It is critical that you don't do your own research in relation to this trial. It's critical that you don't Google the accused's name or any of the witnesses named or anything of that sort and there's very, very good reason behind that.

The accused is entitled to a fair trial and that means a fair trial based on the evidence that you are going to hear in this courtroom presented by the prosecution. There may or may not be evidence presented by the defence, but there will be evidence presented by the prosecution and that evidence then can be properly put before you on oath or affirmation. It can be tested by cross-examination and there is a public record as to what evidence you took into account in reaching your verdicts.

If, on the other hand, you decide to do your private research into the case, I don't know if anything might emerge in response to those searches or questions you might ask, but any material gathered in that way will not be put before you on oath. It may not be accurate. It might be hopelessly inaccurate. It won't be tested by cross-examination and it also means that we will not know the evidence upon which you reached a verdict and so, in essence, if you ignore what I'm telling you, you pretty much guarantee that this accused doesn't have a fair trial. So it is critical that you obey that rule and don't do your own research.

Now, there may be some media attention to this trial during the course of the trial and it would be unrealistic of me to give you some instruction to close your ears and - block your ears and close your eyes. You may see some media articles on this matter. It is important, however, that you bear in mind this, and nothing I'm about to say is meant to criticise the press, but obviously journalists who report on a trial are working to time limits. They're working to limits in terms of how long an article they can write and they might write an article that's nice and detailed and fully reports what happened during the day and then their editor shrinks it to three paragraphs.

So it is important that you bear in mind what I told you a few minutes ago. No one but you will understand the evidence in this case that comes from watching every witness, hearing all of the evidence and gaining an intimate understanding of the evidence in the case.

The media won't have that luxury. They may not be here every day for all of the evidence. As I said, they work to time limits. They're also wanting to tell a story and that may give them a different perspective when they write a - several paragraphs on the day in court.

So while it would be unrealistic to suggest that you can avoid all exposure to the media, it is important that you bear in mind that anything you read in a newspaper article may or may not be totally accurate. It may or may not present a full and balanced perspective. It may or may not report evidence in context.

You, on the other hand, will see that evidence in its full context. You'll watch all of the evidence. So don't allow yourself to be influenced by what may or may not appear in a newspaper article. You're the people who will have the full and detailed understanding of the case, but as I've said it would be unrealistic to say that you can't expose yourself to any media attention because it may be that there is some. I don't know to what degree it will reach - will achieve media attention.[909]

1. In the course of the evidence, following some cross-examination of State witnesses concerning Facebook pages, her Honour reiterated the instruction that the jury not attempt to search material on Facebook or blogs because the verdict was to be based upon the evidence led in the courtroom. Her Honour said as follows:

Now, I will just reinforce with you, you've heard a lot of reference to Facebooks and blogs and these sorts of things. It really is critical that you resist temptation and don't go looking yourself for those Facebooks or blogs if they're still up.

Because as I explained to you at the outset of the trial, an accused is entitled to be judged on the evidence that is led before him in a courtroom which can be tested by cross-examination and which is a matter of public record, not on the basis of things that might be said behind the scenes in an untested way. And it really is critical that you obey my direction that you simply judge the case on the evidence that is led in this courtroom.

If anything that was said on those Facebook pages or blogs is of relevance according to the rules of evidence then counsel will put it before you. If they don't, it isn't. All right? Thank you. Thank you, members of the jury.[910]

1. In the course of the summing up to the jury, her Honour gave the following instructions to the jury:

(1) Not to speculate about matters not in evidence.[911]

(2) The case was to be decided only on the evidence.[912]

(3) Each charge was to be assessed separately, and in doing so the jury must consider the evidence relevant to that charge.[913]

(4) The jury must determine their verdicts upon the evidence, which was to be assessed dispassionately and without being influenced by prejudice or sympathy.[914]

(5) Reminding the jury that they had sworn or affirmed that they would give a true verdict according to the evidence.[915]

1. We do not accept the appellant's assertion that he instructed his counsel at trial to apply for a stay or an adjournment of the trial. The appellant did not adduce evidence that he made an oral request to Mr McKenzie that an application for a stay be granted. Rather, his evidence and his case on appeal is that what he said in the Instructions and Brief constituted an instruction that an application be made. He relies in this regard on what is said in various parts of the Instructions and Brief, particularly at pages 2, 4 - 6, 27 - 29, 241 and 249 - 256.[916] In our opinion, on any objective reading, what is said in this respect in the Instruction and Brief does not amount to an instruction to make an application. Rather, it is a request that consideration be given to the making of an application.
2. Mr McKenzie's evidence, which was not contradicted or challenged, and which we accept, was that in the course of the meeting on 15 January 2013, and possibly on another occasion, he and the appellant discussed the possibility of making such an application, but that at no time did the appellant instruct him that such an application should be made. Further, his evidence was that had such an instruction been given, he would have acted on it and notified the court accordingly.[917] Logic and experience provide some support for that evidence. Moreover, and in any event, as we have said, Mr McKenzie's evidence was not contradicted by any other evidence. In particular, the appellant did not adduce any evidence that he made an oral request to Mr McKenzie that an application for a stay or an adjournment be made.
3. For these reasons, we do not accept that the appellant instructed his counsel at trial to apply for a stay or an adjournment of the trial based on adverse publicity.
4. In any event, for the reasons explained immediately below, we are not persuaded that any failure to make an application for a stay or an adjournment based on adverse publicity gave rise to or contributed to a miscarriage of justice.
5. Before an appellate court will set aside a conviction on the ground of miscarriage of justice arising from pre-trial publicity, the court must be satisfied that there is a serious risk that the pre-trial publicity deprived the accused of a fair trial. It will determine that question in light of the evidence as it stood at the time of the trial and in light of the way in which the trial was conducted, including the steps taken by the trial judge with a view to ensuring a fair trial.[918]
6. Among the steps taken by the trial judge with a view to ensuring a fair trial are the directions given by the judge emphasising the need to decide the case only upon the evidence and instructing the jury not to conduct any search of the Internet.
7. We have set out the judge's careful and detailed directions to the jury at the outset of the trial. Those directions made clear to the jury that the jury must not conduct any Internet searches and must not be influenced by anything other than the evidence at the trial. Instructions to that effect were reiterated in the course of the trial and in the summing up to the jury.
8. The mere possibility that one or more jurors may have acquired knowledge of prejudicial information, such as a prior conviction, is not a sufficient basis for concluding that an accused did not have a fair trial or that there was a miscarriage of justice. The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial.[919] As the High Court observed in Dupas, what is vital to the criminal justice system is 'the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations'.[920] The law proceeds on the basis that the jury will act in accordance with instructions of the trial judge and give a true verdict according to the evidence.[921]
9. That is consistent with 'the experience and wisdom of the law ... that, almost universally, jurors approach their tasks conscientiously'.[922] In the absence of evidence establishing some departure from established procedures, such as, for example, improper conduct by a juror, it is not legitimate to infer that the jury did not comply with the trial judge's directions.[923]
10. In light of these well-established principles, we proceed on the basis that the jury acted in accordance with the instructions of the trial judge to give a verdict based only upon the evidence. There is nothing in the circumstances of this case to sustain an inference to the contrary. Thus the appellant's assertion that a miscarriage of justice arose from the adverse publicity has not been established.
11. Further, no miscarriage of justice arose from the failure of counsel for the appellant to bring to the judge's attention the detail of the social media campaign and the existence and detail of the parliamentary petitions. As we have explained in dealing with grounds 1 and 2,[924] an accused is ordinarily bound by the way the trial is conducted by counsel. An appellate court is concerned with what did or did not happen, rather than why it occurred and directs attention to whether there is any reasonable explanation for a decision to act in the way that counsel conducted the trial.
12. In the circumstances of this case, it is readily apparent that there is a reasonable explanation for a decision by counsel not to seek a more detailed direction from the judge as to adverse publicity, and not to seek a direction that referred specifically to the detail of any adverse publicity. Counsel could rationally take the view that a more detailed direction would have disadvantaged the appellant by giving the adverse publicity more emphasis in the mind of the jurors.
13. While we have, in accordance with the relevant legal principles, made our assessment objectively, we note that our objective assessment reflects counsel's reasoning at trial.[925]
14. The appellant's fourth and fifth submissions set out at [477] above do not demonstrate a miscarriage of justice. Questions of the extent of contact and communication on Facebook and other social media platforms between the complainants and also involving Detective Horch were explored at trial in cross-examination, and were the subject of address and the judge's summing up.
15. Counsel for the appellant at trial cross-examined a number of witnesses about Facebook or social media communications, including RJM,[926] DPM,[927] CJW,[928] AN,[929] and Detective Horch.[930]
16. In his closing address to the jury, counsel for the appellant devoted considerable attention to the Facebook and social media communication and how this affected the credibility and reliability of the State witnesses. Counsel suggested that the whole case against the appellant may have stemmed from RJM making a complaint and then chatting to other complainants on Facebook.[931] Counsel suggested that if complainants were chatting on Facebook 'everybody contaminates everybody else if they're chatting about things'.[932]
17. In this respect, counsel pointed to a number of aspects of the evidence. DPM had been on the Facebook page devoted to the appellant.[933] CJW said he had contacted DPM on Facebook[934] and that he started the page before he gave his police statement.[935] CJW confirmed that he was administrator of the page and that he had asked Gina Horch to pass the details of the page on to other victims.[936] SJLS was told about the page by Detective Horch.[937] He talked about being disturbed about what was being discussed on the page.[938] AN said that a statement he had made to the Royal Commission or to Detective Horch was posted on the page, as was an interview he had given to the Sydney Morning Herald.[939] He agreed that he may have posted a suggestion along the lines that the complainants should seek a high-profile lawyer to work pro-bono in a civil case against the appellant if something did not happen soon.[940]
18. Counsel pointed to the fact that DPM had been in contact with other complainants on Facebook and invited the jury to consider whether DPM had just got on the bandwagon.[941] Counsel also pointed to the prospect that it was after going on Facebook that ACS changed his evidence from what he had said in his first statement.[942]
19. The judge gave a detailed direction as to the possibility and significance of collusion between witnesses.[943] Also, in her outline of the issues for each complainant in the context of her Honour's Longman direction, she referred to the possibility of collusion and communications on Facebook in relation to RJM,[944] CJW,[945] SJL,[946] DPM[947] and SJLS.[948] She also referred to the defence's reliance on the evidence concerning Facebook in various aspects of her summary of the defence case.[949]
20. As this outline demonstrates, the question of the extent to which social media communications between the complainants, and also including Detective Horch, affected the credibility and reliability of the evidence of the witnesses for the State was squarely litigated at the trial. So too was the question of whether similarities in aspects of the complainants' stories were an indication that they had influenced each other's versions of events. We have already explained, in the course of rejecting grounds 1 and 2, that the appellant's complaints as to the manner in which his counsel cross-examined in relation to these issues do not reveal a miscarriage of justice.[950] The appellant has not demonstrated that the Facebook and other social media communications gave rise to or contributed to a miscarriage of justice.
21. Further, as to the appellant's fifth submission, it should be noted that, in substance, the truthfulness and reliability of AN's evidence as to the appellant's conduct was not challenged.
22. For these reasons, there is no merit in ground 3. We would refuse leave to appeal in respect of it.

Ground 4: alleged unreasonable verdicts - SJL and CJW Introduction

1. As expressed, ground 4 alleges, in essence, that the verdicts of guilty with respect to SJL and CJW should be set aside because, having regard to the evidence, they are unreasonable or cannot be supported having regard to the evidence: s 30(3)(a) Criminal Appeals Act.
2. It will be recalled that the jury returned some verdicts of guilty and some of not guilty in respect of the charges concerning each of SJL and CJW. The written submissions in support of this ground contained in the appellant's case[951] allege that, in respect of each complainant, the verdicts of guilty are factually inconsistent with the verdicts of not guilty. However, in the appellant's written opening address (and in an addendum he provided to the court on 30 November 2017), his arguments on this ground range more widely than the assertion of factual inconsistency. The appellant analyses the ground having regard to a combination of evidence adduced at trial, additional evidence the subject of the various applications before the court as they relate to SJL and CJW, and some matters which are the subject of other grounds of appeal. On this last point, he repeats some of his submissions relating to the alleged incompetence of his trial counsel. The appellant also makes some points which are not the subject of any specific ground of appeal. Most significantly, in relation to SJL, he claims that the Director of Public Prosecutions (WA) (DPP) failed to disclose evidence that established he was mentally impaired, and that those impairments impacted adversely on the reliability of his evidence. The appellant also says that the trial judge should have called, but failed to call, 'for an outside opinion' as to SJL's mental state at trial.[952] The appellant's arguments on this point are analogous to those he seeks to make in ground 7 in respect of DRH.
3. As noted, the appellant seeks to invoke s 30(3)(a). It may be seen at once from the statutory language, set out immediately below, that the focus of this court's inquiry when it is claimed that a verdict of guilty is unreasonable or cannot be supported is upon the nature and quality of the evidence adduced at trial. Accordingly, an analysis by this court of the reasonableness of a verdict of guilty is a factual inquiry based on the evidence adduced at trial and is not a stalking horse for other complaints which are, in truth, allegations of errors of law or miscarriages of justice of the type provided for in s 30(3)(b) and (c) of the Criminal Appeals Act. Thus, insofar as the appellant makes complaints of these types, they are not relevant to the question of whether a verdict of guilty is unreasonable or cannot be supported having regard to the evidence and are not encompassed by the ground of appeal. Nevertheless, later in this section of these reasons we will deal with complaints concerning SJL and CJW made by the appellant that go beyond the ground of appeal.

Inconsistent verdicts and unreasonable verdicts: general principles

1. Section 30(3) of the Criminal Appeals Act provides that the Court of Appeal must allow an appeal against conviction if, in its opinion:

(a) the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported; or

(b) the conviction should be set aside because of a wrong decision on a question of law by the judge; or

(c) there was a miscarriage of justice.

1. The relevant case law with respect to inconsistent or unreasonable verdicts was comprehensively analysed by Buss JA (with whom Wheeler & McLure JJA agreed) in Riley v The State of Western Australia.[953] While the extract that follows is lengthy, it is, at least for the benefit of the appellant, worth repeating:
   1. In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said, at 492, in relation to s 6(1) of the Criminal Appeal Act 1912 (NSW) (which is in substance identical to s 30(3) of the Criminal Appeals Act 2004 (WA)), that although the phrase "unsafe and unsatisfactory" does not appear in the statutory provision, it allows a verdict to be set aside when the verdict is unreasonable or not supportable on the evidence. Also see Jones v The Queen (1997) 191 CLR 439 at 450.
   2. In M, McHugh J said, at 523, that a "miscarriage of justice" arises whenever the accused has not had a fair trial according to law or whenever the nature of the evidence, the directions to the jury or the procedures that were followed, raise a real doubt as to whether the conviction can be regarded as a safe or just conviction. The majority in Jones said**,** at 450, that having regard to the statements in M, there can be no doubt that a "miscarriage of justice" also occurs when the findings or verdicts of the jury raise a real doubt as to whether a conviction is safe or just.
   3. In M, Mason CJ, Deane, Dawson and Toohey JJ said, at 493, that the test for an unsafe or unsatisfactory verdict was whether the court thought that:

upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

Their Honours explained, at 494, the application of the test:

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.

Also see Jones at 450-451. The test formulated by the majority in M is the appropriate test for determining whether a verdict is unsafe or unsatisfactory: Jones at 452; MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at 614 [25].

1. In Mackenzie v The Queen (1996) 190 CLR 348, Gaudron, Gummow and Kirby JJ enunciated, at 366 - 368, a number of general propositions distilled from a review of the cases on inconsistent verdicts. After referring to the distinction between cases of legal or technical inconsistency and cases of suggested factual inconsistency, their Honours said, relevantly, that:

3. Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone (unreported, 13 December 1954) is often cited as expressing the test:

'He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.'

4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, juries. The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation. Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In R v Kirkman ((1987) 44 SASR 591 at 593), in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin JJ) observed:

'[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.'

We agree with these practical and sensible remarks.

5. Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. 'It all depends upon the facts of the case.'

6. The obligation to establish inconsistency of verdicts rests upon the person making the submission. But if, because of inconsistency between verdicts, the appellate court is persuaded that a verdict cannot stand, it must make consequential orders. In the case of a criminal trial, where the verdict has been followed by conviction and sentence, these must be set aside. Where the inconsistency is found between verdicts of acquittal and a verdict of guilty, the appellate court (statute apart) may not disturb the acquittal. It may be appropriate to enter a verdict of acquittal on the subject count(s) on the footing that this merely carries forward the logic of the other acquittal verdict(s). But once again, the relief which is appropriate depends upon the facts of the particular case.

1. The principles in Mackenzie were applied in MFA, where Gleeson CJ, Hayne and Callinan JJ said, at [34] 617:

Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman ((1987) 44 SASR 591 at 593), and referred to in later cases (eg, Mackenzie v The Queen (1996) 190 CLR 348 at 367-368): it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed.

1. Recently, in Phillips v The Queen [2006] HCA 4; (2006) 80 ALJR 537, Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ said, at 551 [71], in relation to inconsistency of verdicts:

Difficulties in understanding jury verdicts which are explicable on the basis that one of them is 'merciful', or that they accord with the jurors' innate sense of fairness and justice, do not lead to the conclusion that the jurors have acted unreasonably (Mackenzie v The Queen (1996) 190 CLR 348 at 367-368). The question in the present case is whether that is the explanation, or whether the jury, faced with a position in which some favoured conviction of rape on both counts and some did not, compromised by convicting only of one act of unlawful carnal knowledge and one rape. It is for the appellant to demonstrate that the latter is the case (Mackenzie v The Queen (1996) 190 CLR 348 at 368). This the appellant has not done. The verdicts do not in themselves represent, on the public record, an affront to logic and commonsense. The fact that, if the jury were minded to be merciful, it would have been more logical to convict on count 6 and acquit on count 7, is an insignificant detail: from the point of view of mercy, it did not matter which count was the subject of the conviction. 'It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside (Mackenzie v The Queen (1996) 190 CLR 348 at 368).

1. In MFA, Gleeson CJ, Hayne and Callinan JJ made the following observations, at 617 - 618 [35], about Jones:

... some Judges have taken Jones as authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. That view is erroneous. It overlooks the attention to factual detail in the reasoning of Jones. It also overlooks the principles stated in MacKenzie, which were not qualified in Jones, and the considerations mentioned in the preceding paragraph [see [34] extracted above] in these reasons. Jones is not to be understood as establishing a set of legal propositions, separate or different from the test formulated in M, which must be applied in deciding whether a conviction on one or more counts of sexual offences, when the accused was acquitted on other counts, is unreasonable, or cannot be supported, having regard to the evidence.

Also see, in MFA, these comments of McHugh, Gummow and Kirby JJ**,** at 632 [89], in relation to Jones:

We would dissent from the proposition that Jones stands for a rule that, in cases of complaints of a number of sexual offences, a jury must either accept or reject the lot. It always remains for a court of criminal appeal whose jurisdiction is invoked to examine any differentiation in the verdicts to see if it can be justified. All that Jones decides is that, on the facts of that case, the necessary justification in logic and reasonableness was missing. Jones was a very fact-specific case. Indeed, all such cases are highly fact-specific.

Were the verdicts concerning SJL inconsistent or unreasonable?

1. The jury was required to return verdicts in respect of counts 13 to 26 concerning SJL. Counts 14, 16, 18 and 20 were alternate charges to counts 13, 15, 17 and 19 respectively. The jury returned guilty verdicts on counts 13, 15, 17 and 19. Counts 22, 24 and 26 were alternate charges to counts 21, 23 and 25. The jury returned not guilty verdicts on each of counts 21 to 26. In relation to SJL, the alleged factual inconsistency is between, on the one hand, the verdicts of guilty on counts 13, 15, 17 and 19, and, on the other, the verdicts of not guilty on counts 21 to 26.
2. The evidence adduced at trial in respect of SJL's allegations is outlined at length earlier in these reasons and does not need to be repeated in detail.
3. Counts 21 to 26 occurred in the one incident when, according to SJL, the appellant required him and RJM to attend at Warminda one Saturday morning to work after they had allegedly vandalised a mini bus. SJL testified that at one point, he, RJM and the appellant were in the swimming pool. He said that while in the pool, the appellant interfered with him. In his testimony, RJM made no reference to this event or to witnessing any of this conduct.
4. The appellant in his testimony denied that there was an occasion when SJL and RJM were required to return to Warminda to do work on a Saturday morning. He denied committing the offences the subject of counts 21 to 26, or indeed any offence against SJL.
5. In his appellant's case, the appellant submitted that having regard to RJM's testimony it should be inferred from the jury's verdicts of acquittal on counts 21 - 26 that the jury found SJL's testimony on these counts to be deliberately false. Accordingly, the submission continued, it was logically impossible for the jury to be satisfied beyond reasonable doubt of the appellant's guilt on counts 13, 15, 17 and 19, given that those counts required the jury to be satisfied beyond reasonable doubt that SJL was an honest and reliable witness.
6. In the appellant's written opening address, the appellant made wide-ranging further submissions about SJL's testimony at trial. He submitted that it was incapable of belief for other reasons, most significantly:

(a) The Warminda records of attendance with respect to SJL tendered in evidence at trial revealed that he only attended there on 12 full days and that it was not possible in that time for him to have engaged in the many events he described in his evidence.[954]

(b) Some of the events he described were implausible. One such event was SJL's claim that he lived under a wharf at Fremantle for two and a half years.[955] The appellant claimed that this statement was contradicted by records which show that at the time he said he was living under the wharf he was living in a hostel.[956] Another event was SJL's claim that he obtained an airline ticket to fly to Melbourne which he said was paid for by the Department.[957] The appellant contended, in effect, that the Department would not have paid for an airline ticket in the circumstances described by SJL.[958]

(c) SJL made allegations in 1993 and 2006 that men other than the appellant had abused him but he did not take the opportunity to implicate the appellant at those times.[959] Instead, he only implicated the appellant in 2013.[960]

(d) SJL was an abuser of alcohol, drugs and various solvents at the time of the alleged offences.[961]

1. More generally, the appellant submits that SJL's evidence 'was an affront to logic and common sense'[962] and 'manifestly highly fabricated',[963] and that 'nothing this complainant ... had to say is the truth'.[964] We repeat our earlier introductory observations concerning grounds 1 and 2.[965] The appellant's submissions concerning SJL are embedded in and predicated on the appellant's factual assertions of his innocence and of the patent falsity of evidence given by SJL.
2. In our opinion the verdicts delivered in respect of SJL were not factually inconsistent. The different verdicts can be properly reconciled and were not illogical. It was open to the jury, on the evidence adduced at trial, to find the appellant guilty of counts 13, 15, 17 and 19. We proceed to explain those conclusions.
3. Contrary to the appellant's submission, the verdicts of not guilty on counts 21 to 26 do not signify that the jury concluded that SJL's testimony on these counts was deliberately false. The verdicts are readily explicable on the basis that the jury, acting carefully and in accordance with the directions given by the trial judge, drew back from a conclusion that it was satisfied beyond reasonable doubt of the appellant's guilt on these counts in light of and because of the absence of any corroborative evidence from RJM, who, according to SJL, was present when the offences in the swimming pool were allegedly committed.
4. In his testimony, RJM was not asked about the swimming pool incident and what he did or did not see. It is not known why RJM did not testify about the incident the subject of counts 21 to 26. It may be that he did not recall the incident or that he saw nothing untoward. In his submissions to this court, the appellant criticised defence counsel for not pursuing the matter in cross-examination. This criticism is not relevant to a consideration of this ground. But it may be observed that it may well have been unwise for defence counsel to have pursued the matter given that RJM made no reference to it in his examination-in-chief. Defence counsel may reasonably have decided that to raise the matter in cross-examination may have elicited an unhelpful response, whereas the absence of evidence on the topic from RJM could be, as it was,[966] used by defence counsel to undermine the reliability of SJL's evidence.
5. The jury's verdicts of not guilty on counts 21 to 26 are not relevantly inconsistent with the verdicts of guilty on the other counts concerning SJL. To the contrary, the verdicts can readily stand together. One feature of the evidence relevant to counts 21 to 26, namely the absence of corroborative evidence from RJM, provides an explanation for the jury's conclusion that they were not satisfied beyond reasonable doubt on those counts. That feature of the evidence did not arise in relation to the other counts. Thus, the verdicts can comfortably be reconciled.
6. The appellant's other submissions do not, either individually or in combination, sustain the conclusion that it was not open to the jury to convict the appellant of counts 13, 15, 17 and 19.
7. We have examined the Warminda attendance records in relation to SJL which were tendered at trial.[967] They do not bear out the appellant's contention that SJL attended Warminda for only 12 days. They record SJL attending the SWTP on all but four of the days on which there were records kept from 31 January 1991 to 23 April 1991 when the appellant's employment was suspended. The appellant's attempt to discount what the records show by reference to SJL's oral evidence does not sit with his approach to the attendance records in relation to ground 3. Based on SJL's attendance as recorded, and on the whole of the evidence, including that of SJL, there would have been ample opportunity for the appellant to have committed these offences while SJL was at Warminda.
8. The appellant has taken SJL's testimony that he lived under the Fremantle wharf for two and a half years[968] too literally. In context, SJL's evidence was that he was homeless over a period of some years and that, at times, he lived rough including under the wharf at Fremantle. His testimony on this point does not require the conclusion that it is inconsistent with the records which showed that he lived in a Department hostel during the time he attended Warminda. Even if it did, that would not establish that SJL's memory of the appellant's offending against him was false. Moreover, insofar as the appellant criticises his trial counsel for failing to attack SJL's credibility on this basis, the criticism is misplaced. In his closing address to the jury, counsel made the submission that there was no way someone living in State care would be living under a wharf and that the records showed he was living at hostels.[969]
9. SJL's testimony that the Department paid for him to fly to Melbourne in the circumstances that he described appears unlikely. Again, this was a point made by counsel in his closing address to the jury.[970] However, assuming that SJL's testimony in this regard could not be accepted, it does not mean that everything he said was incapable of belief. The jury was, as her Honour directed, entitled to believe some aspects of SJL's testimony and not others.
10. It was clear from SJL's testimony that he had a significantly deprived childhood that included alcohol and substance abuse and homelessness.[971] SJL's alcohol and substance abuse were relevant to the jury's assessment of his credibility. However, they do not preclude a finding by the jury that he was a reliable and accurate witness in relation to his evidence concerning the charges the subject of counts 13, 15, 17 and 19.
11. The long delay in making a complaint and the failure to complain when SJL made allegations against other men were, properly and understandably, emphasised by counsel in his closing address to the jury.[972] However, these matters are readily explicable. It may reasonably be concluded that SJL did not regard himself as likely to be believed with respect to accusations made against a person with the appellant's authority and that it was only in 2013 when others spoke up that he felt able to disclose what the appellant had done to him.
12. SJL's testimony with respect to counts 13, 15, 17 and 19 was detailed and clear. Insofar as the trial transcript reveals, he withstood defence counsel's cross-examination to the effect that he was not telling the truth about the counts. The appellant had the opportunity to commit the offences. The propensity evidence led by the State showed that the appellant had a sexual interest in boys SJL's age. The nature and circumstances in which the offending took place was similar to offending alleged in respect of other complainants. In particular, his evidence of being massaged by the appellant and then sexually abused by him had echoes of the evidence of RJM and ACS, in respect of which the jury was entitled to be independently satisfied beyond reasonable doubt. These matters provided strong support for the State case on the counts concerning SJL.
13. It cannot be overlooked that the appellant denied, on oath, the accusations made against him with respect to SJL. However, after carefully weighing all of the evidence, including the appellant's testimony, we are of the opinion that it was open to the jury to reject that testimony and to convict the appellant of counts 13, 15, 17 and 19 despite the jury's acquittal on counts 21 to 26. The different verdicts are consistent with and suggestive of a careful approach to the task her Honour directed them to perform, that is, to consider each count separately and only to convict if satisfied of guilt beyond reasonable doubt. In our opinion, the trial record does not require the conclusion that the jury must necessarily have entertained doubt about the appellant's guilt of the offences concerning SJL. The verdicts of guilty are not unreasonable. They are supported by evidence that the jury was entitled to accept. After paying full regard to the consideration that the jury is the body entrusted for the primary responsibility of the determining guilt or innocence and has had the benefit of having seen and heard the witnesses, we do not have a reasonable doubt as to the appellant's guilt or as to the correctness of his convictions of these offences.
14. We now turn to CJW.

Were the verdicts concerning CJW inconsistent or unreasonable?

1. The jury was required to return verdicts concerning CJW in respect of counts 5, 6, 7, 8 and 9. Count 8 was an alternate charge to count 7. Counts 6 and 7 were alleged to have been committed in the one incident. Counts 5, 6 and 7 were all said to have occurred at Warminda. The appellant was convicted of these counts. Count 9 was said to have occurred on an occasion when the appellant took CJW and three other boys, one of whom was called Wayne, to Albany. The appellant was found not guilty of this count.
2. In relation to CJW, the appellant submits there is a factual inconsistency between the verdicts of guilty on counts 5, 6 and 7, on the one hand, and the verdict of not guilty on count 9, on the other.
3. The evidence adduced at trial in respect of CJW's allegations has already been canvassed in these reasons and does not need to be repeated in detail.
4. In common with his submissions in relation to SJL, the appellant asserts that the jury's verdict on count 9 should be understood as a finding that CJW's testimony on that count was deliberately false and that consequently the jury's verdicts of guilty on counts 5, 6 and 7 were illogical as they relied upon the jury being satisfied beyond reasonable doubt that CJW was an honest and reliable witness.
5. The evidence adduced at trial which the appellant said falsified CJW's testimony on count 9 is exhibit 31 which is a memorandum dated 10 April 1991 by Ms Anita Cook, CJW's social worker. The memorandum states that CJW was scheduled to visit a farm in Albany, accompanied by the appellant, to assess whether a job he was being offered was suitable. The memorandum makes no reference to other boys. The memorandum further states that the night before CJW and the appellant were due to leave, CJW absconded. It appears from the document that the planned trip did not take place. The memorandum makes no reference to anybody else travelling to Albany apart from CJW and the appellant.
6. Through cross-examination of Detective Horch, counsel for the appellant tendered exhibit 31.[973]
7. The appellant denied taking CJW to Albany by himself or with others. He gave an account of events consistent with exhibit 31. He denied committing the offences alleged in count 9, or indeed any offence against CJW.
8. CJW was cross-examined at some length by defence counsel in respect of count 9 and the circumstances surrounding it.[974] CJW was unable to recall any detail about the trip to Albany with the appellant. For example, he was unable to remember the names of two of the boys he said he went with, nor give any detail about where he stayed or what he did in Albany. He denied propositions put to him by defence counsel that the trip to Albany did not eventuate and that the events he described did not occur.
9. The contents of exhibit 31 tended to undermine CJW's testimony that there had been a trip to Albany and to support the appellant's testimony on this point. It did not prove that there had not been some other trip to Albany, but, as no evidence to that effect was adduced, that is mere speculation. The contents of exhibit 31 and CJW's inability to give more detail about the trip make the jury's decision to acquit the appellant of count 9 entirely understandable. However, in our opinion, it cannot be said, as the appellant would have it, that it should be inferred from the verdict of not guilty that the jury regarded CJW's testimony as deliberately false.
10. CJW did not disclose the offences until 2013, but his explanation to the effect that no one would have believed him and that 'we meant nothing to nobody'[975] could reasonably have been regarded as compelling. Allegations made by the appellant to the effect that CJW colluded with others to make the allegations or that he did so to gain compensation have no real basis in the evidence.
11. In contrast to his testimony with respect to count 9, CJW's testimony on counts 5, 6 and 7 was, on our review of the trial transcript, clear and detailed. His testimony did not appear to shift or waver in cross-examination. The propensity evidence showed that the appellant had a sexual interest in boys CJW's age and that he was prepared to act upon it. The mode and context in which the offences were alleged to have occurred were consistent with allegations made by other complainants in respect of which the jury was entitled to be satisfied beyond reasonable doubt. These aspects of the evidence sustained a conclusion of satisfaction beyond reasonable doubt on counts 5, 6 and 7, notwithstanding a reasonable doubt on count 9.
12. We have weighed the appellant's testimony and, in particular, his denials. Having regard to all the evidence, bearing in mind the significant advantage that the jury had in seeing CJW and the appellant give evidence, we are satisfied that it was well open to the jury to find the appellant guilty of counts 5, 6 and 7.
13. The appellant's submissions are littered with sweeping assertions of fabrication by CJW. For example, it is said that 'all of what [CJW has said] in his police statement and evidence given at trial is demonstrably and totally false'.[976] We reiterate our introductory observation on grounds 1 and 2. The appellant has not demonstrated by reference to the evidence adduced at trial, together with the additional evidence he seeks to adduce on appeal, the correctness of his assertions. Nor has he shown, by reference to the new evidence on which he seeks to rely and which he claims his counsel failed to use at trial, that he is innocent or that there is such a doubt that he should not have been convicted.[977]
14. For these reasons, we draw the following conclusions. The differing verdicts in relation to CJW were not factually inconsistent. As with the verdicts concerning SJL, they reflect a proper, careful approach to the task they were called upon to perform. In our opinion, after examining the trial record and weighing the evidence, the trial record does not require the conclusion that the jury must necessarily have entertained doubt about the appellant's guilt on counts 5, 6 and 7. The verdicts of guilty are not unreasonable. They are supported by evidence that the jury was entitled to accept. After paying full regard to the consideration that the jury is the body entrusted with the primary responsibility for determining guilt or innocence and has had the benefit of having seen and heard the witnesses, we do not have a reasonable doubt as to the appellant's guilt on counts 5, 6 and 7 or as to the correctness of his convictions of these offences.
15. Before leaving ground 4, we will deal with some issues raised by the appellant under the rubric of the ground notwithstanding that they are, in truth, different issues altogether.

Other matters raised under the rubric of ground 4

1. As we have already mentioned, the appellant was critical of his trial counsel's cross-examination of SJL. We have already dealt with this point. The appellant also complains that his trial counsel failed to call 'an important defence witness',[978] SJL's social worker, Ms Johnson, to demonstrate that SJL never reported the appellant's alleged conduct to her. This complaint is misconceived. SJL's evidence at trial was that he did not think that he had told Ms Johnson about the incident concerning the appellant, although he said, in his statement to police, that he had done so,[979] an inconsistency emphasised by defence counsel in his closing address.[980] In those circumstances, no purpose would have been served in calling Ms Johnson, whose evidence would, at best, merely have confirmed SJL's evidence that he did not tell her.
2. Further, the appellant complains that his trial counsel did not adduce or use an entry in his diary recorded on 8 March 1991.[981] The entry records that SJL and RJM arrived in an agitated state and were aggressive to staff, and that SJL had to be restrained from jumping out the window. In our view, applying the principles set out in dealing with grounds 1 and 2, there is a readily apparent rational forensic reason for counsel not to have used this document at trial. Counsel could sensibly have taken the view that this entry might be viewed by the jury as supporting the State case, in that RJM and SJL's agitated state and aggressive behaviour might be seen as consistent with what, on their evidence, the appellant had done to them.
3. The appellant was also critical of defence counsel's cross-examination of CJW. The appellant appears to submit that defence counsel's cross-examination of CJW in respect of count 9 should have gone further, with a view to establishing that CJW was a liar.[982]
4. This criticism of defence counsel is without merit. Defence counsel's cross-examination of CJW in respect of count 9 focused on CJW's inability to give any detail with respect to the events which surrounded the commission of the offence. Defence counsel appeared to succeed on this point. Defence counsel could rationally have taken the view that he had done enough to discredit CJW and that nothing further was required. Moreover, as we have said, during cross-examination of Detective Horch, counsel adduced documentary evidence that undermined CJW's evidence that he went on a trip to Albany with the appellant, namely exhibit 31. Counsel referred to this documentary evidence in his closing address to the jury.[983] Counsel also used the doubt created as to the Albany trip as a springboard for challenging CJW's reliability more generally, saying 'if he's making this thing up about Albany, what else is he making up'?[984]
5. The appellant also criticised defence counsel for not calling Ms Cook to testify in his defence.[985] In light of the admission of exhibit 31, a decision by defence counsel that there was no need to call Ms Cook has an obvious rational forensic basis. Indeed, it is difficult to see any sensible reason for counsel to have thought otherwise. Further, there is no evidence before this court as to what Ms Cook would have said at trial. The appellant's submissions on this point are founded on speculation as to what evidence Ms Cook would have given if called.
6. Finally, we will deal with the appellant's contention that SJL suffered from a mental impairment which the DPP failed to disclose and about which her Honour should have called 'for an outside opinion'.[986]
7. The appellant's assertions on this point were lengthy but were summarised in his written opening address as follows:

The prosecutor did not bother to mention that at trial [SJL] suffered from a diagnosed ADHD (Attention Deficit Hyperactivity Disorder) and a Personality Disorder, had a mental age of a 12-year-old child and his parents were currently his power of attorney at the time of his evidence giving. This is a failure of disclosure which is unlawful. Importantly, these conditions are acknowledged, psychologically and psychiatrically, in the literature as being conducive to fabricating, embellishing, misrepresenting and misinterpreting the facts and the truth and exaggerations.[987]

1. The disclosure argument is unsustainable. SJL's alleged mental impairments were disclosed to the defence as the appellant makes clear in the addendum document handed to this court on 30 November 2017, when he states, in relation to SJL and DRH:[988]

This information and evidence mostly contained in those historical Department of Community Services documents (1990 - 91), where [sic] pivotally important to the jury in the primary court. This goes to issues of serious mental ill-health and intellectual impairment of these witnesses and also about their functional and cognitive abilities at the time they attended the SWTP and since. The DPP was originally supplied with all these documents by the Department of Community Services and Families in 2012/13 via the police, as was defence counsel but failed to declare them in the primary court. (emphasis added)

1. Further, information as to SJL's mental health issues was set out in his statement to the police.[989] That statement was part of the prosecution brief, and was disclosed to the defence in the ordinary way.[990]
2. The appellant asserts that the trial judge had the power to call, on her own volition, expert opinion as to SJL's mental state. Assuming, without deciding, such a power exists, it would only be exercised in the rarest and most exceptional circumstances.[991] The circumstances of the present case do not even remotely approach that standard.
3. Further, there is nothing apart from mere assertion to show that the appellant has suffered a miscarriage of justice by reason of the failure to exercise the asserted power.
4. SJL testified in cross-examination that he was in State care as a child because he suffered from what he called 'ADDHD' and personality disorders.[992] He said that he abused substances such as glue, paint, toluene and over-the-counter medications.[993] He also described how he tried to kill himself by overdosing on airsickness tablets.[994] These were matters before the jury for its consideration. The significance of these matters for SJL's credibility and reliability was for the jury to determine.
5. The appellant claims, in effect, that these matters rendered SJL incapable of giving honest and reliable evidence. In his written opening address, he repeatedly asserts this is shown by or acknowledged in (unidentified) psychiatric and psychological literature.[995] But those assertions are not evidence. There is no evidence before this court or the court below that provides any support for, much less that is capable of sustaining, this claim.
6. Finally, out of an abundance of caution, we will deal with an issue which possibly arises out of the addendum document to which we have already referred. It is whether the appellant suffered a miscarriage of justice because there was no determination by this court under s 106B(3) of the Evidence Act. The issue is also raised in the context of ground 7 in relation to DRH.
7. The relevant statutory provisions are set out and construed later in these reasons in dealing with ground 7. In the case of SJL, there was nothing in the disclosure material that triggered or should have triggered an inquiry for the purposes of s 106B and nothing in the proposed additional evidence which shows that the appellant has suffered a miscarriage of justice because of the absence of any inquiry.
8. There is no merit in ground 4. We would refuse to grant leave in respect of it.

1. Ground 5 relates to the offences concerning the complainant DPM. The appellant was convicted of three offences of aggravated sexual assault of DPM. The ground asserts that a miscarriage of justice arose because historical documents categorically established that DPM never attended the SWTP between April 1990 and April 1991 but the appellant's counsel failed to tender or make proper use of those documents.
2. The primary thrust of the appellant's case on ground 5 is that:

(1) from April 1990 to April 1991 the appellant worked within the SWTP; he never worked within the HEART program;

(2) while there was evidence that DPM had attended the HEART program before mid-1990, he was never admitted to the SWTP during the appellant's time with the SWTP. Robert Becker, DPM's social worker, made attempts for DPM to be admitted to the SWTP. The appellant twice assessed DPM for admission to the program but rejected him;

(4) consequently, DPM's evidence as to offences committed by the appellant while DPM was at Warminda was demonstrably false and could not be accepted; and

(5) the appellant's counsel at trial failed to use or adequately use the documents that demonstrated his innocence.[996]

1. Our introductory observations in grounds 1 and 2[997] apply again here.
2. In his written submissions, the appellant submits that documentary evidence not put before the jury at trial demonstrates that while DPM's social worker made attempts to get DPM into the SWTP, those attempts were unsuccessful.[998] In this respect, the appellant refers to minutes of a meeting of 1 March 1991 and a file note written by the social worker, Mr Robert Becker, on 5 March 1991.[999]
3. These submissions were developed in more detail in the appellant's written opening address.[1000] The assertions that the documents dated 1 March 1991 and 5 March 1991 were not put before the jury were repeated.[1001] In his opening address the appellant also claims that a case review report on DPM written in June 1990 by Denise Miles was not before the jury.[1002]
4. In fact two of those documents - the case review report about DPM written by Denise Miles on 18 June 1990[1003] and the minutes of the 1 March 1991 meeting[1004] - on whose absence the appellant places so much reliance, were both before the jury as part of exhibit 30. The file note written by Robert Becker on 5 March 1991 was not before the jury, but other documents to substantially the same effect - that the appellant had said the school component of the SWTP was not suitable for DPM and that he was interested in going to TAFE - were tendered.[1005] Thus, there is no merit in the appellant's submission, as far as it relates to the former two documents, that those documents were not given 'exhibit status'. As for the file note dated 5 March 1991, there was a rational forensic reason for the defence not to adduce it. The document noted that DPM was to meet with the appellant, which the jury may have seen as bolstering the State's case that the appellant had regular contact with and opportunities to abuse DPM.
5. Exhibit 30 was tendered by the State as part of its case.[1006] It comprised a number of records relating to DPM. It included:

(1) A handwritten file note written by the appellant recording an interview with DPM on 18 May 1990. The note records some conclusions and proposes a four-stage plan for consideration at the meeting of 21 May 1990.

(2) A report dated 21 May 1990 by Robert Becker, social worker, relating to an admissions conference of 21 May 1990 about DPM. The report stated that the appellant had suggested setting DPM up in his own flat but said that the Department could not take the risk of allowing DPM to live in unsupported accommodation at this stage. The report also stated that DPM had indicated the desire to recommence the HEART program but that this may have limited value as DPM had completed the program before.

(3) A record by Deputy Superintendent J Orohoe on the community support hostels admission meeting relating to DPM on 21 May 1990 recording five attendees, including Mr Orohoe, Mr Becker and the appellant. The note recorded that DPM attended for part of the meeting and that the plan included providing for HEART to assist DPM with life and social skills.

(4) A case review report for the work transition program apparently authored by Denise Miles, a group worker, and dated 18 June 1990. It stated that the work transition program had been acting in an advisory capacity with DPM since 8 June 1990. It stated that as he had already completed the HEART program, admitting him to the work transition program on a full time basis would serve little purpose. Therefore the role has been attempting to provide him with support in establishing the appropriate community links.

(5) A document dated 8 August 1990 written by Mr Becker described as a CSH review for DPM. Among other things, the document records that 'SWTP to remain involved with [DPM] in order to assist him in the establishment of appropriate vocational interests in employment'. The document also refers to support from the placement support team.

(6) A note of an admission meeting said to have occurred on 1 March 1991 recording that the appellant only offered DPM a place on the work transition program and this was not acceptable to DPM as he still wished to pursue further schooling through TAFE. The note recorded that the field officer, Mr Becker, advised he intended to contact the appellant and would involve the divisional education officer if the appellant's program could not appropriately assist in school related skills training.

(7) A report by Robert Becker dated 1 March 1991 which recorded that it was proposed that DPM enrol in and attend a school or work program, having had an interview on 28 February 1991 with the appellant for the school transition program. The note recorded that DPM's wardship expired in February 1991 and he turned 16 years of age on 11 January so that his participation in the program was entirely voluntary.

1. At trial, the defence case was, in substance, to the same effect as the case now asserted on appeal. Part of the appellant's case at trial was that while DPM was considered and interviewed for admission to the SWTP, he was never admitted to that program in the time that it was conducted at Warminda while the appellant worked there. The appellant gave evidence to that effect.[1007] Counsel for the appellant plainly had regard to and made use of documentary material in advancing the defence case about the counts concerning DPM. For example, counsel cross-examined DPM about a meeting between the appellant and DPM in May 1990. Counsel suggested that at the meeting the appellant had recommended that DPM not be in SWTP.[1008] Counsel also cross-examined about an interview by the appellant on 28 February 1991 assessing DPM for the second time for possible inclusion.[1009] Counsel put to DPM that he had two assessments to be in the program at Warminda but did not actually ever go into the program.[1010] In response, DPM said that he did actually go to the school (meaning Warminda).[1011]
2. DPM was also cross-examined about having a meeting with the appellant on 21 May 1990 to see whether he could be on the SWTP. DPM said he did not remember.[1012] He did not remember the date of such a meeting although he did not deny that the meeting occurred.[1013] He agreed that his social worker Mr Becker was keen to get him into either the school or work program.[1014]
3. All of this cross-examination was based on the information revealed in the documents comprising exhibit 30. As will be seen, counsel relied extensively on the documents in the course of his address to the jury.
4. When he was shown a document, DPM agreed that in February 1991 there was a plan that the appellant would assess him to be on the SWTP.[1015]
5. Counsel for the appellant also made use of the attendance records, to which we will shortly turn, in the course of his cross-examination of DPM and in the examination-in-chief of the appellant.
6. In cross-examination, DPM was asked whether he could think of any reason why his name would not appear in the attendance records, to which he said he could think of no reason.[1016]
7. Many aspects of the appellant's submissions and evidence seek to criticise the manner in which his counsel at trial made use of documentary material, including in cross-examination.[1017] As we have said, a party is bound by his or her counsel's conduct of the trial. A miscarriage of justice is not shown by demonstrating that, with the benefit of hindsight, cross-examination could or should have been done in a different and more effective manner. There is more than one way of using documents in the course of cross-examination. The technique adopted by counsel at trial was to put the substance of the documents to the witness and, in closing, submit that the documents should lead to the jury's rejection or doubt about the witness' evidence. That is consistent with rational forensic decision-making by counsel.
8. In his written submissions, the appellant further asserts that the attendance records kept by the Department showed that DPM never attended the SWTP, and yet this evidence was not produced during the trial.[1018] In fact, as we will describe in more detail, counsel for the appellant tendered the attendance records through the appellant.
9. The fact that the attendance records were put before the jury was acknowledged in the appellant's written opening address, but the appellant asserts that the attendance records clearly demonstrate that DPM never attended SWTP.[1019] In considering whether we accept that latter assertion, we begin by outlining the evidence at trial about the attendance records.
10. In the course of the appellant's evidence, counsel made reference to the appellant's diary entries, and the contents of exhibit 30, in adducing the appellant's evidence to the effect that the appellant assessed DPM twice for admission to the SWTP, but he was never admitted.[1020] Counsel for the appellant tendered the attendance records in the course of the evidence of the appellant. The records became exhibit 32. Counsel for the appellant asked a series of questions allowing the appellant to explain the system of recording attendances and the folder of documents that became exhibit 32.[1021]
11. The appellant's evidence about the system of recording attendances at the SWTP was to the following effect:[1022]

(1) In the morning when young people arrived, they would come into Warminda and one of the group workers would tick off whether they were present. They were required to come into Warminda regardless of whether they were participating on the school program or the work program.

(2) The appellant would check the sheets which would be sent to the Department administrative office at Mackie Street. The same procedure was followed in hostels.

(3) At Mackie Street the attendance sheets were tabulated on a single sheet showing all the hostels, Warminda and the community support program.

(4) The tabulated document would be sent back to the appellant as manager of his program.[1023] Other hostels would send in attendance records as well.

(5) The appellant said each person's name was required to be ticked off as they arrived 'so we knew who was there and who wasn't there. If they weren't there we would ring the hostel ... because we were the receiving service. So they should have been, at that time, in Warminda ... '.[1024] However, he continued, 'normally, the - the hostel would ring us if they had - if the young person had run away and they weren't going to attend that day'.[1025]

(6) When the tabulated documents were received from the Mackie Street office they would be put on a file in the appellant's office.[1026]

1. The appellant identified the folder of documents that became exhibit 32 as the tabulated sheets that had come back to him from Mackie Street for the period of 9 April 1990 to 23 April 1991.[1027]
2. The appellant was shown an example sheet from the attendance records. He was not able to remember what the acronyms S/W, WH, O, and R and RA were.[1028] He thought it was 'some type of code for administrative stuff'.[1029]
3. In our view, the attendance records that were exhibit 32, viewed in the light of the evidence at trial, did not definitively establish that DPM did not attend at Warminda in the relevant period.
4. In the attendance records, the first entry for the SWTP is on 13 August 1990. Prior to that the records contained a category called 'community based support'. From and after 13 August 1990 that category no longer appeared and two new categories were shown: placement support team and SWTP.
5. On the attendance records, DPM is recorded under various hostels from 10 May 1990 to 27 September 1990, with the exception of the period between 17 and 22 August where he does not appear in records, 23 August where he appears under placement support team and 18 - 20 September, where he appears under placement support team.[1030] From 28 September 1990 until 10 January 1991, DPM is shown under placement support team. From 14 February 1991 to 20 February 1991 and from 5 March 1991 until 23 March 1991 he is shown at various hostels.
6. The appellant's evidence at trial, even if accepted, did not unequivocally establish that a person shown on the attendance records under the name of a hostel did not attend at Warminda. While some parts of the appellant's evidence at trial are open to that interpretation, other parts of his evidence are consistent with people whose names were listed under the names of various hostels on the attendance records also attending Warminda during the day. That is consistent with and would explain the appellant's evidence that if a person at a hostel was not going to attend Warminda, Warminda would need to know.[1031]
7. Also, there are objective features of the attendance records that tend, or are reasonably capable of being viewed as tending, to support this latter interpretation of the attendance records. The view is open that the very small number of names under various individual hostel names is unlikely to represent the total population at that hostel, the capacity of which was 10 to 12 children.[1032] Moreover, the attendance records refer to only about six hostels, whereas the evidence was that there were 10 hostels.[1033] A more likely interpretation might be that the names under a hostel name represent those at the hostel who had some connection to the SWTP or to Warminda, where these attendance records were kept. Further, the SWTP was a program mainly for residents of hostels.[1034] The tabulated records were sent to the coordinators of hostels and the SWTP at the end of each week. There is no obvious reason why the coordinator of the SWTP would need to have tabulated records noting the attendance at hostels of young people who had no connection to that program. It is thus a reasonably open interpretation of the attendance records that the names recorded under a hostel had some connection to the SWTP.
8. Further, there was no evidence, from the appellant or otherwise, that demonstrated that people whose names were recorded under the placement support team did not attend Warminda.
9. In any event, in the context of the trial as a whole, it was well open to the jury not to accept the appellant's evidence as to the attendance records. That is because there were a number of features of the appellant's evidence that could reasonably be viewed as significantly damaging his credibility generally.[1035]
10. The attendance records were before the jury and the appellant gave evidence about them. He had ample opportunity to explain the attendance records. He gave lengthy responses to the questions asked of him on this topic. If and to the extent his evidence was, in hindsight, incomplete or equivocal, that was not the fault of his counsel. Even if, to some extent, it were, that falls well short of establishing that it gives rise to or contributes to a miscarriage of justice.
11. Further, the documents in evidence at trial do not support the appellant's assertion that he worked with and was involved in exclusively the SWTP and had no involvement with HEART, which had ceased to exist prior to April 1990. For example, the appellant's initial contract of employment describes his position as 'education officer HEART'.[1036] Mr Becker's note of 21 May 1990, more than a month after the appellant commenced work, part of exhibit 30,[1037] recorded that DPM was to be referred to HEART. The attendance records did not use the designation SWTP until 13 August 1990.[1038]
12. Mr Kelly's evidence was that some time, by August 1990, the HEART program was rebadged and renamed the SWTP.[1039]
13. Moreover, it was open to the jury to find, on the whole of the evidence, that whatever the formal designations of the programs at particular times may have been, some people may have referred to HEART and SWTP interchangeably for a period before or after the formal position changed.
14. The additional documents on which the appellant seeks to rely do not establish the contrary. In particular, they do not establish that the appellant joined the Department after the HEART program had finished and consequently worked exclusively for the SWTP. In this regard, the appellant relies heavily on a memorandum dated 8 January 1990,[1040] written by a welfare officer, Mr Schnell.[1041] In the course of a three-page memorandum, the author incidentally observes that the HEART program is now known as the SWTP. However, it is plain from the content of the document, which refers extensively to events occurring during 1990, that the document was in fact written in January 1991 and mistakenly dated January 1990. In any event, as we have said, the view was open that usage of different names was not always uniform.
15. In his address to the jury, counsel for the appellant pointed several times to aspects of the contents of exhibit 30 as supporting the defence case that while DPM attended HEART, he was assessed for but never accepted into and did not attend the SWTP.[1042] The appellant also pointed repeatedly to the attendance records, which he described as 'all important',[1043] saying 'look at the attendance records [DPM's] name doesn't ever show up ... But people doing the programme were listed'.[1044]
16. In her directions to the jury, the judge reminded the jury that a critical issue for them was whether DPM attended Warminda during the relevant period and that they had exhibits relevant to that issue.[1045]
17. The judge also pointed out to the jury that the defence case as to DPM was that:

(1) 'quite simply this complainant is lying', DPM was not at Warminda when the appellant was there.

(2) The appellant had meetings with and spoke to this complainant but that was about whether the boy would be accepted onto the school program which DPM wanted.

(3) It was notable GW/SJL, a great friend of RJM, did not recall DPM.

(4) If DPM had attended at Warminda he would appear on the attendance records which he does not.

(5) The fact that he could describe the building did not mean he was there while the appellant was there - DPM had done the HEART program previously.[1046]

1. As the above outline demonstrates, the appellant's case at trial encompassed his key propositions on appeal:

(1) as exhibit 30 shows, DPM was assessed for entry into the SWTP in May 1990 and late February 1991, but was not admitted, demonstrating that he was not on the SWTP during the appellant's time at Warminda;

(2) The fact that DPM was not shown on the relevant attendance records under SWTP during the relevant time also demonstrated this; and

(3) consequently, DPM's evidence of offences by the appellant must be rejected.

1. The appellant ran this case at trial, but was unsuccessful. His appeal does not provide an opportunity to run the case again, in a way which, with hindsight, might (or might not) have been more persuasive or effective. In large part, that is, in substance, what the appellant seeks to do by ground 5.
2. In the appellant's 'notations on historical documents' relating to ground 5,[1047] the appellant relies on nine documents the absence of which at trial the appellant claims gave rise to a miscarriage of justice. Most of the documents were tendered at trial and have been summarised already. Those that were not tendered at trial do not materially add to the documents which were before the jury.
3. In our opinion, on the whole of the evidence at trial, it was open to the jury to be satisfied beyond reasonable doubt that the appellant committed the offences against DPM of which he was convicted. In addition to what we have already said, considerations relevant to that opinion include the following.
4. First, even if some of the evidence (for instance the minutes of the admissions meeting dated 1 March 1991; exhibit 30) suggests that DPM was not formally accepted onto the SWTP, for the reasons below, it was open to the jury to conclude that DPM did attend a program at Warminda in some capacity. Further, the case review which the appellant authored on 21 May 1990 in fact recommends that DPM commence the work program.
5. Secondly, there was direct evidence from DPM that the appellant committed the offences of which he was convicted. We refer to, without repeating, the outline of DPM's evidence earlier in these reasons. If the jury were satisfied beyond reasonable doubt of the honesty and reliability of the essential aspects of DPM's evidence, they would convict the appellant.
6. Thirdly, the jury had the significant advantage of seeing and hearing DPM give his evidence. Asked why he did not tell his mother, DPM said that he thought everything that happened was his fault and said, 'I was a prick of a kid and I thought this was, like, punishment'.[1048] When it was put to DPM that the things he alleged simply did not happen with the appellant, DPM said 'they happened, I was at Warminda ... do you think I'd put myself through this if they didn't happen'.[1049] When he was asked whether he could think of a reason why his name might not appear on the attendance records, DPM responded 'I was there I can tell you that'.[1050] Asked whether he had made up these things about the appellant, DPM responded 'would I be here if I'd made them up? I wouldn't put myself through this shit'.[1051] When it was put to him that he did not actually ever go to Warminda, DPM said 'you can believe what you want. I know I was at Warminda'.[1052] The jury had the advantage of seeing and hearing DPM when he gave this and all of his evidence. In a trial of this kind, where a complainant's credibility is of central importance, the jury's advantage in that respect is significant.
7. Fourthly, DPM described one of the offences as occurring in the darkroom while he was developing photographs.[1053] Contrary to the appellant's assertions on appeal that the darkroom was not used in his time,[1054] the appellant's evidence at trial was that, in his time at Warminda, upstairs there was a darkroom where the children did some photography.[1055]
8. Fifthly, there was evidence from other witnesses that DPM attended Warminda with them during the relevant period. RJM gave evidence that one of his friends at Warminda was DPM.[1056] That aspect of his evidence was not challenged in cross-examination. CJW also gave evidence that among his friends at Warminda was DPM.[1057] His evidence was that he attended Warminda from 1990 to 1991.[1058] In the course of cross-examination, he confirmed that DPM was at Warminda with him.[1059]
9. Sixthly, Mr McEvoy gave evidence that his notes of an interview he had with the appellant dated 19 July 1991 included a statement by the appellant in the following terms:

With the young men, didn't feel in control, feels like redressing actions with Peter, Tony and Derik.[1060]

1. There was no challenge to the accuracy of Mr McEvoy's notes. DPM's Christian name was Derik.[1061] Notwithstanding the appellant's evidence as to what he meant by what he said to Mr McEvoy, to which we will shortly come, in light of the evidence as a whole it was open to the jury to take what the appellant told Mr McEvoy as, in effect, an admission that he had engaged in inappropriate touching of a young person called Derik, and that person was DPM.
2. The appellant's evidence in cross-examination was that his references to Peter and to Derik were to adult men with whom he had consensual sexual relationships, and the reference to Tony was to AN or to ARK.[1062] In re-examination, the appellant said that all three of Peter, Tony and Derik that he referred to when he spoke to Mr McEvoy were adults in Armidale, New South Wales.[1063]
3. It was well open the jury to reject this evidence of the appellant. Among other things, the jury would have been entitled to take the view that there was no reason for the appellant to express regret and a need to redress things in relation to adults with whom he had a consensual relationship. Moreover, the context in which the appellant spoke to Mr McEvoy, namely in preparing a report for the purposes of sentence for the appellant's conviction of the admitted offence against ARK, reinforced the probability that the appellant was referring to sexual touching of boys who were not adults. Further, the appellant's evidence in re-examination on this topic was materially inconsistent with his evidence in cross-examination, in that in re-examination he claimed that the Tony he referred to when speaking to Mr McEvoy was an adult in Armidale.
4. Seventhly, the jury was entitled to take into account the propensity evidence. The admitted facts relating to the appellant's conviction concerning ARK, the evidence of AN and the evidence of the psychologists Ms McLaughlan and Mr McEvoy were comfortably sufficient to establish, beyond reasonable doubt, that, as at the relevant time, the appellant had a tendency to be sexually attracted to adolescent boys and to act upon that attraction. The jury was entitled to take the view that the existence of that tendency significantly increased the likelihood that DPM had not fabricated his account and was not mistakenly confusing it with things that had occurred with a different offender. Further, the jury was entitled to be satisfied beyond reasonable doubt of the appellant's guilt of offences relating to other complainants the subject of this trial. Once having reached that conclusion, a jury was also entitled to have regard to those findings in assessing whether it was reasonably possible that DPM had fabricated his account or innocently confused some events.
5. In our opinion, after examining the trial record and weighing the evidence, the trial record does not require the conclusion that the jury must necessarily have entertained doubt about the appellant's guilt of the offences concerning DPM. The verdicts of guilty are not unreasonable. They are supported by evidence that the jury was entitled to accept. After paying full regard to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and has had the benefit of having seen and heard the witnesses, we do not have a reasonable doubt as to the appellant's guilt or as to the correctness of his convictions of these offences.
6. For these reasons, while we would grant leave to appeal, ground 5 is not made out.

1. By ground 6, the appellant contends that the trial judge erred in various respects in her direction to the jury. In broad summary, the appellant's complaints fall into the following categories:

(1) The judge failed to give an adequate Longman warning.

(2) The judge erred in law and in fact in her direction concerning the element that the appellant was a 'teacher' of some complainants.

(3) The judge erred in giving the jury a majority direction.

(4) The judge made a number of factual errors in the summing up and failed adequately to outline the defence case.

1. The principles concerning the need for and necessary content of a Longman direction are well known and have been set out in many cases.[1064] In summary, the relevant principles include the following:

(1) A judge is bound to give an instruction or warning to the jury if, in the circumstances of the case, the instruction or the warning is necessary to avoid a perceptible risk of a miscarriage of justice.

(2) The primary 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.

(3) 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.

(4) 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.

1. We turn to the judge's Longman direction in this case.

1. The judge emphasised the need for the jury to be satisfied as to the reliability of a complainant's evidence before they could convict in relation to a charge relating to that complainant.[1065]
2. In that regard, the judge emphasised that about 22 or 23 years had passed since the events in question before the first charges were laid.[1066] Her Honour added the following general observations about the complainants in this case:[1067]

But in addition in this case the complainants specifically have given evidence of very disrupted childhoods, of traumatic relationships with their parents and others. Some of them suffering abuse of one sort of another unconnected to the accused, of resorting to substance abuse at young ages, of having serious behavioural issues and some of them have described mental health issues as well.

I'll remind you about the individual complainants issue [sic] shortly but generally you've heard from people who were very troubled as children and many, if not all, of them still have troubles. Even if the complainant you are considering is a truthful witness, you need to be satisfied the complainant is speaking from genuine, accurate memory and has not succumbed to suggestibility.

In other words, you'd need to be satisfied the witness has not heard stories from others and, for one reason or another, genuinely but mistakenly become convinced they must have been a victim of sexual abuse at the accused's hands ... to the extent to which they now have a conjured memory of it.

A witness who believes in what they say can be very convincing and yet they might be wrong. The long delay between the alleged incidents and the giving of evidence may increase a witness' vulnerability to having his memory or his perception affected by being exposed to what other people have potentially said.

1. Her Honour then told the jury that the consequence of the long delay was that the appellant had lost various opportunities to test the complainants' accounts. Her Honour commenced with some general observations that provided some examples:

(a) if a particular date, place and time had been known the police could have spoken to relevant staff members and investigated where the appellant was at the time;

(b) the appellant's lawyers would have been able to explore the possibility of evidence tending to show an alibi and that he was somewhere else or had no opportunity; staff members might have been asked about what they observed of the relevant complainant's behaviour or mood on that day, and whether the complainant had got into trouble on that day;

(c) such questions had, with the passage of so much time, become pointless.[1068]

1. The judge also told the jury that the long delay made it harder to cross-examine a complainant effectively because so many of the questions asked of them were met with the response that they could not remember.[1069]
2. Her Honour then turned in considerable detail to identifying features of the evidence of each individual complainant that related to their credibility and reliability, including features of their life around the time of the alleged incidents and contact that they may have had with each other subsequently.[1070]

1. RJM said that he and GW/SJL used to run away and return to the hostel off their faces on glue or toluene. The judge told the jury that an issue with RJM and others was the extent to which substance abuse may have impacted upon his reliability as a witness so many years later.[1071]
2. RJM agreed he had behavioural problems, was expelled several times, that he shoplifted daily and had adult convictions for assaulting police, a burglary and an assault occasioning bodily harm in the mid-2000s.[1072]
3. He agreed he had told police in 2013 he had been sexually abused by a man named Robert Barrow when he was 12 1/2 years old, including anal penetration.[1073] He said it was possible that that abuse which he told the police about included the time when he was at Warminda but could not be sure.[1074] He agreed he also told police about two other men sexually abusing him. He said those complaints he made to police about those men were all true.[1075]
4. It was put to him that he had identified the appellant as the person who abused him as a way of not dobbing in Robert Barrow, but he denied that allegation.
5. The judge told the jury that a key issue in relation to RJM was whether, if the jury accepted the evidence of [BC] that she observed blood on his shorts and blood in his faeces, that might be accounted for by something other than his having been interfered with by the appellant.[1076] The judge told the jury they would need to consider whether, given that RJM said he was a victim of sexual abuse at the hands of others, it was less daunting for him to falsely name the appellant as the perpetrator than to name someone else.[1077]
6. RJM agreed that he made an application for payment of compensation, by April 2009, under the redress system and received a payment in late July 2011.[1078]
7. The judge observed that this was well before the investigation of these offences got underway.[1079]
8. The judge told the jury a key issue was whether RJM's complaint in this case was inspired by a desire for compensation which, logically, must have meant more compensation because he had already been paid some compensation in 2011.[1080]
9. Another issue was whether he may have colluded with others or been influenced by others sharing their memories.[1081] The judge recounted RJM's evidence was that he did not reunite with anyone from Warminda until 2013 after the police had contacted him and after he had made his formal statement to the police.[1082]
10. The judge summarised RJM's evidence about Facebook contact he had had with GW/SJL and with DPM.[1083] Her Honour also summarised RJM's evidence that he did not know AN, SJLS, DRH or ACS.[1084]
11. Her Honour summarised issues in connection with the delay relating to RJM as including the fact that he had made allegations of sexual abuse by other men and whether he may have diverted responsibility from one of them to the appellant; whether this may explain what BC said in her evidence; whether he was inspired to claim compensation; whether he had had contact with other witnesses that had affected his memory; and whether his general behaviour or emotional issues as a child had some impact on his reliability or honesty.[1085]

1. The judge identified that CJW used to run away with RJM; they would get arrested and brought back to the hostel. He agreed that he used to sniff glue and use sleeping tablets, sometimes to the point where he would hallucinate.[1086]
2. The judge identified that a crucial issue was whether CJW did go on any trip to Albany. The judge referred to documentary exhibits that were relevant to that question, telling the jury that CJW insisted that he went to Albany and the appellant insisted that CJW did not.[1087]
3. The judge summarised CJW's evidence about the Facebook page which he had started before he spoke to the police. CJW knew that RJM had received compensation. CJW agreed that he had met with DPM from time to time, as he was also on Facebook.[1088] CJW's evidence was that he was not motivated by compensation and that RJM told him about compensation only after he, CJW, had made his statement. The judge summarised the evidence as to the timing of the process of taking the statement which was ultimately signed on 23 September 2013, by which time CJW had some Facebook contact with others.[1089] The judge told the jury, in effect, that it was for them to assess whether that was inconsistent with what CJW had said.[1090]

1. SJL gave evidence that as a child he had personality disorders and angry outbursts, living in hostels and was a street kid.[1091] He had substance abuse problems sniffing glue, toluene and abusing over the counter drugs.[1092]
2. He agreed that he had made a complaint to the police in 1993 about other people sexually abusing him and agreed that he had subsequently told the police that those allegations were false. However, his evidence was that the complaints were not in fact false.[1093]
3. The judge summarised SJL's evidence about the extent of contact he had had with RJM including that he had not had a face-to-face meeting with RJM and had never discussed what he put in his witness statement.[1094]
4. The judge outlined SJL's evidence as to compensation including that when asked if he was motivated by compensation in making the complaint he said that he did not know.[1095]

1. ACS agreed he was rebellious and aggressive when he was 15; that he did not get on with his parents; was smoking pot, drinking and starting to dabble in methylamphetamine.[1096]
2. The judge told the jury that the key issue relating to ACS in terms of delay and the impact on his memory or honesty was that in ACS's first statement to the police he had not said that the appellant had rubbed his bottom or 'touched his arse' and had said that that was because he was embarrassed at being interviewed by a female detective with his mother present.[1097]

1. The judge identified at the outset that the 'key issue' for DRH was 'patently' his mental health. Her Honour said as follows:[1098]

[DRH], well, the key issue patently for [DRH] is his mental health and whether in the face of that he's been able to give a truthful and reliable account years later. He remembered having difficulty at school and getting into trouble and being made a ward of the State but he was still living on and off with his parents.

Now, his mother said he was first sent to a psychiatrist in 1988 when they were in Sydney because he had been cutting himself and he had nightmares, paranoia and anxiety. Of course, she wasn't a psychiatrist but she was speaking as a mother, that is what she said she observed. She said in 1990, when they were in this state and [DRH] was at St Norbert school, he was anxious and he was sleeping with a knife under his pillow and tension was building at home and ultimately they then sent him off to Hill View.

Now, [DRH] remembered he went to a number of schools before being sent to Hill View. He said that was a home for troubled boys with 24 hour counsellors while he was attending Kent Street High. He agreed it was a hospital for kids with mental health problems and thought he was 12 or 13 at the time. He said he has been diagnosed with schizophrenia, bipolar disorder and also post-traumatic stress disorder. He said he's had different diagnoses in relation to the schizophrenia and the bipolar disorder. He wasn't sure whether Warminda was after Hill View or not, he said that part of his life is a bit of a blur.

1. The judge proceeded to summarise other evidence including from DRH's mother about problems DRH experienced at and around this time.
2. The judge summarised DRH's evidence as to the extent of his contact on Facebook with other relevant people, including any complainant.[1099]
3. The judge summarised DRH's evidence that he has been seeing a psychiatrist since about 1998 when he was diagnosed, that in the past he had cut himself and heard voices through drug-induced psychosis.[1100] He agreed that he had convictions for assaulting and threatening people and stealing.[1101]
4. The judge summarised the position in relation to DRH, saying 'plainly in relation to [DRH] the key issue is his mental health and whether in the face of the delay between what he alleges occurred and the giving of evidence, whether in the face of those issues you are satisfied that he's been able to give a truthful and reliable account'.[1102]

1. The judge outlined some of DPM's problems at and around the relevant time. He was a ward of the State; he kept running away from home; got mixed up with the wrong crowd; sniffed petrol and glue daily to the point where he sometimes passed out.[1103]
2. The judge summarised DPM's evidence that he remembered being friends with RJM, GW/SJL and CJW, that he had lost contact with his friends almost immediately after leaving Warminda and had only met with RJM and CJW as a result of being contacted by police. The judge summarised his evidence that he had contact with both RJM and CJW on Facebook and had seen both of them for a drink. DPM denied people had posted on the Facebook site what had happened to them.[1104]
3. The judge told the jury that a key issue in relation to DPM was whether he actually attended the Warminda program while the appellant was there. The judge told the jury that they had a bundle of documents that had a bearing on the issue. She also told the jury that it was clear that DPM had been at Warminda at one stage but the question was whether he was there when the appellant was there.[1105]
4. So the judge summarised the position in relation to DPM as being that he had issues in common with most of the complainants in terms of behavioural issues and substance abuse issues that may impact on his reliability and honesty, but that there was also the specific issue as to whether he was there at the relevant time.[1106]

1. SJLS agreed he got into trouble as a juvenile and said he was bailed to Warminda and the HEART Program. He said he used to sniff glue at the time and had been seeing a psychologist.[1107]
2. SJLS said that he told his psychologist that another man had sexually interfered with him.[1108]
3. SJLS said that he was friended by people on Facebook for a brief time, but said it was disturbing to hear what the boys were saying and he blocked it out and got out of it.[1109] He said that was after he had made his statement to the police, because it was Detective Horch who had told him about the Facebook site.[1110]
4. The judge summarised the position as being that SJLS was another person who had made a complaint about having been sexually interfered with by someone else, and who had substance abuse issues and behavioural issues that may impact on his reliability and honesty.
5. Her Honour concluded the comprehensive warning on this topic in the following way:[1111]

Now, I've been mentioning all of these things to you in connection with particular issues that might impact on your assessment of not just the honesty of the individual complainants and whether you are prepared to trust their accounts, but also their reliability, including any potential for any particular complainant, through emotional or mental vulnerability, to genuinely but mistakenly have come to believe that he was sexually interfered with by the accused and I was mentioning this all in the context of the long delay between the alleged events and the formal investigation getting underway in 2013 and the disadvantage that that has placed the accused under. He's lost the opportunity to explore and perhaps bring forward matters of defence and to test the evidence of the complainants.

So because of that long delay it is important that you scrutinise each complainant's evidence with special care and this direction which I'm giving you is based on the experience of courts of the difficulty that accused people have in cases such as these.

You are entitled to act upon the evidence of any complainant to find the accused guilty of the matters that complainant alleges if you are satisfied of the truth and accuracy of his evidence.

But it would be unsafe to find the accused guilty on the evidence of an individual complainant alone unless, having looked at that evidence carefully, having considered these factors I've mentioned and taking full account of the warning I'm giving you, you are satisfied beyond a reasonable doubt as to its truth and its accuracy.

1. There is no merit in the appellant's complaint as to the adequacy of the trial judge's Longman warning. The judge directed the jury to the effect that, as a result of the substantial delay, the appellant had lost the chance to adequately test each of the complainant's evidence and the chance adequately to marshal a defence. The jury was instructed to the effect that although they could convict solely on a complainant's evidence if satisfied beyond reasonable doubt as to the truth and accuracy of his evidence, it would be unsafe to do so unless the jury scrutinised each complainant's evidence with great care and took into account any facts and circumstances, including the forensic disadvantage suffered by the appellant as a result of a substantial delay, which bore on the truth and accuracy of that evidence. The warning was given in terms that made it clear that it was given as a direction which the jury was bound to follow.[1112] The judge's warning was appropriately tailored to, and made detailed reference to, the particular features of each complainant's evidence that bore upon the extent to which the delay in making the complaints potentially affected the reliability of each complainant's evidence. In relation to DRH, the judge specifically highlighted the issue of his mental impairment and how that issue affected his credibility and reliability.[1113]
2. If and insofar as the appellant complains that the judge failed to give a corroboration warning,[1114] the complaint fails. The circumstances of the case did not call for any such warning, and so the judge was correct not to give such a warning.[1115]

1. We turn to the appellant's complaint concerning the judge's direction as to the element that he was the teacher of the complainants concerned. The judge's direction may be summarised as follows.
2. The judge began by emphasising that the appellant denied that he was the teacher of any complainant; that he denied Warminda was a school and that any of the staff could be classified as teachers.[1116] The defence case was that while he conducted interviews with young people to assess whether they were suitable for inclusion on the program, he did not have one-on-one discussions with them concerning their behaviour and had no standing in a headmaster-type role.[1117]
3. The judge told the jury that the word teacher should be interpreted by them according to its ordinary meaning, bearing in mind that the purpose behind the relevant law was that a teacher was more likely to be in a relationship with a pupil involving influence and authority.[1118]
4. The judge said that the ordinary meaning of teacher was one who teaches, instructs, shows, demonstrates, imparts knowledge, informs or acts as a teacher. The judge said that, in this context, being a teacher is a broader concept than being employed as a school teacher at a school. A teacher can teach anything that can be taught, not only school subjects.[1119] It was not necessary to find that Warminda was a school in order to conclude that the appellant was a teacher of the complainant.[1120]
5. In order to determine whether the relationship between the appellant and a complainant was a teacher/pupil relationship, the judge told the jury they should take into account how the complainant regarded the appellant and vice versa, whether the appellant sought to instruct the complainant in anything or inform him about anything, whether he sought to exercise any authority that you would associate with a teacher/pupil relationship and whether the complainant regarded the appellant as one of his teachers at the time.[1121] The degree of personal contact the appellant had with a complainant and what form and purpose the contact took was also relevant.[1122]
6. The judge told the jury that if they considered that 'Warminda was a school-like environment where things were taught, and if you consider the [appellant], whatever other roles he had, did stand in the headmaster role in relation to the young people at Warminda, then you would be entitled to find that he did fall within the description of teacher at that time'.[1123] The judge told the jury that it was not sufficient that the appellant was in fact a qualified teacher.[1124]
7. The judge outlined to the jury the evidence relevant to the appellant's role at Warminda, including the evidence of Mr Paul Kelly, Superintendent, whose evidence we have already summarised.[1125]
8. The judge concluded her direction on this topic in the following way:[1126]

Whether he was a teacher is a matter of fact for you to determine, taking into account all of the circumstances the complainant regarded the accused and vice versa; in terms of whether the accused sought to instruct the complainant in anything or inform him about anything such as that he could be said to be teaching him; whether he sought to exercise any authority that you would associate with a teacher/pupil relationship; whether the complainant regarded the accused as one of his teachers at the time; the degree of personal contact the accused had with the complainant and what form and purpose that contact took; and whether as part of that consideration you find the accused, whatever other role he had, did stand in a headmaster or principal role.

1. The appellant contends that the judge's direction was erroneous, asserting that 'the SWTP was not a school and the appellant was not employed as a school teacher or head master'.[1127] Many aspects of the appellant's submissions overlook that, in the relevant statutory context, it is clear that 'teacher' is a broader concept than 'school teacher'. At the time, s 189(1) of the Criminal Code (WA) provided, so far as material, as follows:

Subject to subsection (2), any person who unlawfully and indecently deals with a person:

(a) who is under the age of 16 years; or

(b) ... ; or

(c) who is under the age of 17 years, and of whom the accused person is a guardian, employer, teacher, or school teacher,

...

is guilty of a crime.

1. The reference to both 'teacher' and 'school teacher' demonstrates that teacher has a broader connotation than school teacher.
2. More generally, there is no merit in the appellant's complaint as to the judge's direction as to the meaning of the element that he was 'a teacher' of the complainant. The judge correctly directed the jury that:[1128]

(1) in this context, teacher was to be given its ordinary English meaning of someone who teaches, instructs, informs or shows;

(2) in the context, being a teacher was a broader concept than being a school teacher;

(3) whether the appellant was the teacher of any complainant required attention to the evidence as to the appellant's role, particularly in relation to boys at Warminda, and the nature of the relationship between the appellant and each relevant complainant;

(4) whether the appellant was the teacher of a complainant was a matter of fact for the jury to determine on the evidence.

1. Further, the judge gave a detailed and accurate summary of the evidence relating to this topic, and fairly summarised the defence case in this respect.

1. Next, the appellant complains that the judge gave the jury a majority direction. To put that complaint into context, it is convenient to outline the progress of the jury's deliberations and the context in which the judge gave the majority direction.
2. The jury retired to consider its verdict at 2.27 pm on 12 February 2015.[1129]
3. At about 4.30 pm the matter was adjourned on the basis that the jury would resume deliberations the next morning.[1130] The jury resumed deliberations the following day at about 9.30 am.
4. At 11.35 am, the judge informed counsel that she received a note from the jury which made plain that they needed some information about a majority direction. Her Honour stated that she proposed to do that, saying that by her calculations they had been deliberating for four hours. Counsel for the appellant did not object to that course.[1131]
5. At 11.35 am the jury returned. The judge gave the jury a majority direction and explained that she could accept a verdict from not less than 10 of the jury. The judge told the jury that it was desirable that they reach unanimous verdicts but that a majority verdict could be accepted. The judge explained the way in which the verdicts would be taken.[1132]
6. At 2.20 pm the jury returned with their verdicts.[1133]
7. The appellant's complaints as to the majority direction are not easy to follow.[1134] At times, the appellant's submissions appear to amount to a complaint that majority verdicts by their nature involve or risk injustice and are inconsistent with the initial direction that the verdict must be unanimous.[1135] For example, the appellant submits that '[a] reasonable doubt in the minds of one or two jurors should result in an acquittal.'[1136] Plainly, in that respect the appellant's submissions proceed on a misconception of the legal framework. Section 114 of the Criminal Procedure Act 2004 (WA) provides as follows:

(1) Subject to this section, the verdict of a jury must be the unanimous verdict of its members.

(2) If a jury trying a charge has retired to consider its verdict and, having deliberated for at least 3 hours, has not arrived at a unanimous verdict, the decision of 10 or more of the jurors shall be taken as the verdict on the charge.

(3) If a jury trying a charge has retired to consider its verdict and, having deliberated for at least 3 hours, 10 or more of the jurors have not agreed on a verdict, the judge may discharge the jury from giving its verdict on the charge.

(4) Subsections (2) and (3) do not apply to a charge of murder.

(5) Subsections (2) and (3) do not prevent a judge from requiring a jury to deliberate for more than 3 hours.

1. Thus, once a jury has deliberated for at least three hours it is open to a judge to give a majority direction permitting a decision of 10 or more jurors.
2. Another strand of the appellant's complaint is that the judge gave a majority direction too early, and in circumstances where there was nothing to indicate that the jury could not reach a unanimous verdict.[1137]
3. There is no merit in these complaints. The judge received a note from the jury. As her Honour indicated to counsel, the contents of the note made it plain that the jury needed some information about a majority direction. The note read as follows:

With respect to an individual count, if eleven jurors find guilty and one juror finds not guilty, must we find not guilty to that count or do we say we cannot reach a decision with respect to that count?

1. In circumstances where the jury were still deliberating, the judge quite properly did not reveal the contents of the note.[1138] In all the circumstances, it was well open to the judge to decide that it was appropriate to give the jury a majority direction. Far from revealing error, her Honour's decision to do so was, with respect, plainly correct.
2. Finally, there is no merit in the appellant's assertion that the judge's direction placed undue pressure on the jury to reach agreement.[1139] The judge did no more than explain (correctly) to the jury information that was relevant to and of potential assistance in their deliberations. Nothing the judge said discouraged the jury from deliberating as long as was required to reach verdicts that were unanimous or, if that were not possible, were verdicts of not less than 10 members of the jury.

1. In his written submissions[1140] and in the written opening address[1141] the appellant asserts that the judge made more than 30 errors in the course of her summing up.
2. Apart from the alleged errors with which we have already dealt, all of the errors asserted by the appellant relate to matters of evidence and fact. The judge correctly told the jury that the facts were for the jury and the jury alone to determine and that her Honour's outline of the evidence was not binding on the jury.[1142] No objection was taken at trial by counsel for the appellant and no redirection was sought in relation to any aspect of the summing up. In order to sustain an appeal, the appellant must demonstrate that a misdirection gave rise to a miscarriage of justice.[1143] In order to show that the misdirection amounted to a miscarriage of justice the appellant must show that it was reasonably possible that the misstatement may have affected the verdict.[1144] For the reasons developed below, we are not satisfied that the judge made any error, much less an error that has a reasonable possibility of having affected the verdict.
3. A large proportion of the appellant's complaints relate to the manner in which the judge summarised the parties' respective cases. In particular, the appellant complains in numerous respects about the judge's summary of the State case. In summarising the State case it was not incumbent on the trial judge to offer alternative views of the evidence or to refer to any evidence to the contrary. Still less was it incumbent on the judge to add the kind of factual commentary offered by the appellant in his submissions to this court. The judge was not adopting the State case as fact; rather, her Honour was simply outlining it, for the assistance of the jury. The judge's summary of the State case was a fair summary of that case.
4. In the course of the summing up, the judge is obliged to put the defence case accurately and fairly to the jury.[1145] In our opinion, her Honour's direction in this case amply discharged that obligation. Her Honour provided a careful, detailed and comprehensive outline of the defence case in relation to each individual complainant, as well as its general themes. We have summarised that part of her Honour's direction at [296] - [310] and do not repeat it here.
5. Further, many of the appellant's complaints relate to the trial judge's summary of particular parts of the evidence. In substance, most of these are not a complaint that the summary given by the judge was an inaccurate summary of the evidence being summarised. Rather, the appellant's real complaint is that the evidence in question was flawed, or should not have been accepted, or that there was other evidence which should have been preferred. The appellant's submissions as to the judge's summary of the State case and as to the judge's summary of parts of the evidence are rooted in his perspective that, axiomatically, the State case and the complainants' evidence were patently false. The substance of many of the appellant's submissions is that the judge should have formed the view that substantial aspects of the evidence relied on by the State were not credible, or at least had serious problems, and should have told the jury as much.[1146] The judge was not obliged to do this. The facts were for the jury to determine. While the judge may comment on the facts, he or she is not bound to do so except to the extent the judge's other functions require it.[1147] None of the trial judge's other functions required her Honour to make comments on the merits of the factual issues in this case.
6. In evaluating whether any aspect of a judge's direction reveals error, a judge's summing up must be considered as a whole. Many of the appellant's complaints about aspects of the trial judge's direction involve reading passages of the direction out of context or in isolation. By way of example:

(1) The appellant complains that in summarising CJW's evidence that he went to Albany and the appellant's evidence that he did not, the judge failed to tell the jury various aspects of the evidence that undermined CJW's evidence.[1148] In fact, these matters were outlined to the jury in the judge's summary of CJW's evidence.[1149]

(2) The appellant complains that the judge told the jury that in 1993 GW/SJL reported two other people in connection with sexual abuse, but the judge did not mention that he failed to implicate the appellant.[1150] In fact, the judge made this point as part of her Honour's summary of the defence case.[1151]

(3) Similarly, the appellant complains that the judge failed to mention that various complainants made accusations to authorities about other men sexually abusing them but never implicated the appellant.[1152] At various points in her directions, the judge noted that these complainants had made allegations against other men but had not mentioned the appellant.[1153]

(4) The appellant complains that in explaining the State case about the appellant's tendency to be attracted to adolescent boys, the State said those tendencies 'span a much greater period than the six years prior to 1991 that he told clinical psychologists about, and indicate he understated the extent to which he had these tendencies'.[1154] This was, as the context makes clear, a statement by the judge as to the State case. The judge had already outlined the effect of the defence evidence and the defence case in this respect. The judge explained that the appellant testified that the reference to his becoming sexually attracted to young males about six years ago was a reference to his sexual attraction having intensified and that he had said that those attractions had been with him all his life.[1155]

1. Some of the appellant's complaints are to the effect that the judge failed to ask questions of witnesses or failed to 'pursue the implications' of certain aspects of the evidence.[1156] It is not the function of the judge to do either of these things. The task of the judge was to direct the jury on the law applicable to the case and to make any observations about the evidence that the judge thought necessary in the interests of justice.[1157] In our respectful opinion, the judge ably discharged that duty. Her Honour correctly directed the jury as to the applicable law and provided a helpful outline of the evidence, together with a fair and comprehensive summary of the parties' respective cases.
2. In some parts of the appellant's submissions he asserts that additional new or fresh evidence demonstrates that the judge erred in her summing up.[1158] Any such submission is misconceived. Self-evidently, the correctness of a judge's direction is to be assessed by reference to the evidence adduced at trial.
3. We have examined each of the numerous passages in the judge's summing up of which the appellant makes complaint. For the reasons already given, we are not persuaded that her Honour erred in any of the respects alleged by the appellant. Our reasons accord with the respondent's response to these complaints.[1159]

1. For the reasons set out above, none of the appellant's complaints as to the judge's direction, individually or taken together, demonstrate a miscarriage of justice in any of his convictions.
2. Ground 6 fails. Leave to appeal in respect of it should be refused.

Ground 7: the mental capacity of DRH The appellant's submissions

1. The appellant's submissions include the following:

(1) As a result of DRH's historical and ongoing serious mental health issues, DRH was mentally unfit to give evidence and was an unsafe prosecution witness.[1160]

(2) The prosecution failed to obtain and to adduce before the jury expert psychiatric evidence to demonstrate DRH's fitness to give evidence.[1161]

(3) The prosecution was 'less than candid with the court',[1162] and failed to make adequate disclosure of DRH's mental health issues.[1163]

(4) The judge had concerns about the mental capacity of DRH, but failed to take appropriate steps to ensure justice to the appellant.[1164]

(5) DRH made no complaint about the appellant for 24 years.[1165]

(6) DRH's recollection was, on his own admission, exceptionally poor.[1166] DRH admitted in his evidence that everything was 'a bit of a blur'.[1167]

(7) The judge should have directed the jury that DRH was an unsafe witness, or at least warned the jury that given his serious mental health issues it would be dangerous to act on his uncorroborated evidence.[1168]

(8) In his evidence, DRH said he was interviewed by police in 1991, but a Freedom of Information application has produced no documents concerning any such interview, suggesting that no such interview occurred.[1169]

(9) DRH's social workers and a school counsellor for him should have been called as defence witnesses to show how mentally unwell DRH was at the time.[1170]

(10) In a note she wrote, DRH's mother acknowledged his history of disturbing and irrational behaviour, and drug use.[1171] Defence counsel failed to adduce evidence of the note written by DRH's mother or to cross-examine her effectively by reference to it.[1172]

1. In our view, it is important to put the appellant's complaints the subject of ground 7 into the context of the directions given by the trial judge.
2. In identifying features of the evidence of each complainant relevant to their credibility and reliability, the judge emphasised at the outset that the 'key issue' for DRH was 'patently' his mental health.[1173] Her Honour said as follows:[1174]

[DRH], well, the key issue patently for [DRH] is his mental health and whether in the face of that he's been able to give a truthful and reliable account years later. He remembered having difficulty at school and getting into trouble and being made a ward of the State but he was still living on and off with his parents.

Now, his mother said he was first sent to a psychiatrist in 1988 when they were in Sydney because he had been cutting himself and he had nightmares, paranoia and anxiety. Of course, she wasn't a psychiatrist but she was speaking as a mother, that is what she said she observed. She said in 1990, when they were in this state and [DRH] was at St Norbert school, he was anxious and he was sleeping with a knife under his pillow and tension was building at home and ultimately they then sent him off to Hill View.

Now, [DRH] remembered he went to a number of schools before being sent to Hill View. He said that was a home for troubled boys with 24 hour counsellors while he was attending Kent Street High. He agreed it was a hospital for kids with mental health problems and thought he was 12 or 13 at the time. He said he has been diagnosed with schizophrenia, bipolar disorder and also post-traumatic stress disorder. He said he's had different diagnoses in relation to the schizophrenia and the bipolar disorder. He wasn't sure whether Warminda was after Hill View or not, he said that part of his life is a bit of a blur.

1. The judge proceeded to summarise other evidence including from DRH's mother about problems DRH experienced at and around this time.
2. The judge summarised DRH's evidence that he has been seeing a psychiatrist since about 1998 when he was diagnosed, and that in the past he had cut himself and heard voices through drug-induced psychosis.[1175] He agreed that he had convictions for assaulting and threatening people and stealing.[1176]
3. The judge summarised the position in relation to DRH by saying 'plainly in relation to [DRH] the key issue is his mental health and whether in the face of the delay between what he alleges occurred and the giving of evidence, whether in the face of those issues you are satisfied that he's been able to give a truthful and reliable account'.[1177]
4. Her Honour returned to the question of DRH's mental health issues when she summarised the cases for the State and defence on the offences concerning DRH. Her Honour's summary in relation to the State case concerning DRH included the following:[1178]

(1) While DRH 'clearly has had mental health issues' his evidence that he was invited to Albany was supported by his mother's evidence.

(2) The State said that the jury had seen DRH give evidence and invited the jury to consider whether he presented as delusional or fanciful or as able to give a clear account of an afternoon spent with the appellant. The State suggested that he was a credible witness.

1. The defence case in relation to DRH included the following:[1179]

(1) The jury simply could not trust DRH's account because he was a disturbed child from a young age. The judge referred to her earlier summary of the evidence relating to his psychiatric treatment.

(2) The judge reminded the jury that DRH had suffered psychosis before he ever went to Warminda.

(3) The defence case was that he had been diagnosed with schizophrenia or bipolar disorder and that either one of them should give the jury cause for concern.

(4) The defence accepted it was possible that DRH may genuinely believe that he had been abused but said the jury could not be satisfied that he was speaking from real memory.

(5) The defence posed the question of whether DRH's mental health was actually well managed now or whether he was still suffering issues given that in 2012 DRH was convicted of going armed so as to cause fear.

(6) The defence case was that DRH was simply unreliable as a witness and the jury could not be satisfied of his account beyond reasonable doubt.

1. Our introductory observations under grounds 1 and 2 at [402] apply to the appellant's submissions on this ground. The appellant's submissions on ground 7 contain many factual assertions that are not substantiated by evidence adduced at trial or on appeal. For example, the appellant's assertions as to DRH's mental impairments, the consequences of those impairments and other matters such as fals[1180]mories,1180 go well beyond what is supported by any evidence, expert or otherwise, adduced at trial or on appeal.
2. DRH's mental health issues and how they affected his credibility and reliability as a witness were central issues at the trial. DRH was cross-examined about:

(1) having been diagnosed with mental health conditions including schizophrenia, bipolar disorder and post-traumatic stress disorder;[1181]

(2) having seen psychiatrists at hospital and at consulting rooms;[1182]

(3) having been on medication for many years, since around 1998;[1183]

(4) prior to that, having heard voices through drug induced psychosis.[1184]

(1) DRH's history of psychological and psychiatric problems;[1185] and

(2) DRH being 'out of control' at the beginning of 1991.[1186]

1. The question of the extent to which DRH's mental health issues affected the credibility and reliability of his evidence as to the appellant's alleged offences was a matter for the jury to evaluate. It was the central plank of the defence's answer to the charges involving DRH.[1187] The question was properly highlighted and the relevant evidence outlined in ample detail by the trial judge in the course of her summing up.[1188] In that framework, the appellant's assertion that DRH's mental health issues meant that he was mentally unfit to give evidence cannot be accepted.
2. While it is not entirely clear, in the addendum to his submission handed up in the course of the hearing of the appeal, the appellant may be asserting, in effect, that a miscarriage of justice arose because there was no determination by the court under s 106B(3) of the Evidence Act of whether DRH was competent to give evidence on oath.[1189] For the reasons that follow, any such assertion must be rejected.
3. Sections 97, 106B and 106C of the Evidence Act provide, so far as material, as follows:
   1. Evidence to be on oath except in some cases

(1) Subject to any other Act in which express provision is made to the contrary, in any civil or criminal proceeding, or in any inquiry or examination in any court or before any person acting judicially, every witness other than -

(a) a witness the evidence of whom may be received pursuant to this Act though not given on oath; and

(b) a witness called for the purpose only of producing a document, where there is another witness called or to be called who can identify the document; and

(c) counsel giving evidence of the terms of a compromise reached between the parties to litigation in which he acted for one of those parties; and

(d) a judge, or counsel, giving evidence by way of explanation of a case in which he acted as such,

shall give evidence on oath.

...

106B**. Children under 12 may give sworn evidence**

(1) A child who is under the age of 12 years may in any proceeding, if the child is competent under subsection (3), give evidence on oath or after making an affirmation.

(2) Irrespective of the person's age, a person with a mental impairment may in any proceeding, if the person is competent under subsection (3), give evidence on oath or after making an affirmation.

(3) A person referred to in subsection (1) or (2) is competent to take an oath or make an affirmation if in the opinion of the court or person acting judicially the person understands that -

(a) the giving of evidence is a serious matter; and

(b) he or she in giving evidence has an obligation to tell the truth.

106C**. Child under 12 and mentally impaired witness may give unsworn evidence**

A person referred to in section 106B(1) or (2) who is not competent to give evidence under section 106B(3) may give evidence without taking an oath or making an affirmation if the court or person acting judicially forms the opinion, before the evidence is given, that the person is able to give an intelligible account of events which he or she has observed or experienced.

1. In a case concerning a child under the age of 12 years, engaging s 106B(1), the child may give sworn or affirmed evidence only if the relevant judicial officer forms the opinion that the child understands that the giving of evidence is a serious matter and that in giving evidence he or she has an obligation to tell the truth.[1190] The judicial officer can only arrive at those opinions after making due inquiry.[1191] Section 106B(2) is concerned with the giving of evidence by a person with a mental impairment. When that subsection is engaged, the same requirement - the formation by the relevant judicial officer of the opinions required under s 106B(3)(a) and (b) after making due inquiry - applies.
2. The concern of s 106B and s 106C is the competence of persons to give evidence, either on oath or affirmation (s 106B) or, if not, then without taking an oath or affirmation (s 106C). In determining those questions of competence, these sections direct attention to:

(a) whether the person understands that the giving of evidence is a serious matter and that in giving evidence he or she has an obligation to tell the truth; and

(b) whether the person is able to give an intelligible account of events which he or she has observed or experienced.

Mental impairment can take myriad forms and may be suffered to greatly varying degrees, as the legislature may be taken to know. Many forms of mental impairment, such as depression and anxiety-related disorders, either when medicated or at all, do not, or are very unlikely to, bear on the concerns of s 106B and s 106C or on the matters to which those sections direct attention in determining questions of competence to give evidence.

1. On a proper construction of s 106B, subsection (2) is not engaged in every case where a proposed witness has, or appears to have, a mental impairment of any kind, regardless of the nature and severity of that impairment and regardless of any medication taken to manage it. Reading the section as a whole, and having regard to its evident purpose, s 106B(2) is engaged when it appears that the proposed witness has a mental impairment of a nature and severity that affects or may affect the ability of the witness to give sworn or affirmed evidence.
2. The prosecution disclosed to the defence, and to the court, DRH's signed statement to the police which said that he suffered from schizophrenia, was on medication and had attempted suicide many times.[1192] Nothing in that material triggered, or reasonably should have triggered, any inquiry for the purposes of s 106B as to whether DRH was competent to give evidence on oath or affirmation. There was nothing in the material before the trial judge that should have triggered any such inquiry.
3. In any event, having regard to the evidence given by DRH at trial in the course of examination and cross-examination, together with the material now relied on by the appellant, the appellant has not established, and there is no reason to conclude, that had an inquiry been conducted under s 106B(3), the court should have found that DRH was incapable of understanding that the giving of evidence is a serious matter or that in giving evidence he had an obligation to tell the truth. Thus no miscarriage of justice arose from the absence of any inquiry under s 106B.
4. Beyond its effect on DRH's capacity to understand that the giving of evidence is a serious matter and that in giving evidence he had an obligation to tell the truth, the relevance of DRH's mental impairments was their effect on the credibility and reliability of his evidence. As we have said, those were matters for the jury, and were properly brought to the jury's attention in the judge's summing up.
5. For these reasons, there is no merit in the appellant's first submission concerning ground 7. The remaining submissions can be dealt with more briefly.
6. As to the appellant's second submission, in the circumstances and for the reasons already outlined, it was not incumbent on the prosecution to adduce before the jury expert psychiatric evidence to demonstrate DRH's fitness to give evidence. Thus, the appellant's assertion that this was a 'failure of disclosure'[1193] is misconceived.
7. There is no merit in the appellant's contention that the prosecution did not make adequate disclosure of DRH's mental health issues. Beyond generalised assertion, the appellant has not identified cogent material in the possession of the prosecution relating to DRH's mental health that bore, in a significant way, on the credibility or reliability of DRH's account of the offences allegedly committed by the appellant. Further, in light of the material concerning DRH that was available at trial to counsel for the appellant, much less has the appellant demonstrated any miscarriage of justice arising from a failure on the part of the prosecution to disclose any material concerning DRH's mental health.
8. We turn to the appellant's fourth submission. A centrepiece of the appellant's complaints concerning ground 7 is his assertion that the trial judge posed a question concerning DRH that demonstrated her Honour's concerns as to his fitness to give reliable evidence, when her Honour said as follows:[1194]

Is his mental health actually well managed now, or is he still suffering issues, given that in 2012 he was convicted of going armed so as to cause fear ... he was a disturbed child from a young age and before he ever went to Warminda; you know he suffered psychosis. He has been diagnosed with schizophrenia and bipolar, but either of them, should give you cause for concern given his lengthy background of problems.

1. The appellant repeatedly asserts that this statement by the trial judge reflected and revealed her concerns and yet her Honour failed to pursue those concerns in her summing up to the jury or by other means such as calling witnesses or requiring the prosecution to do so.[1195] The appellant's complaints reflected in his fourth submission proceed on a fundamental misconception. Her Honour did not, herself, pose these questions or express these concerns. Rather, her Honour said these things in the course of summarising the defence case.[1196] Moreover, contrary to the appellant's submissions,[1197] it was not for the judge to call psychiatric witnesses, or to require the prosecution to do so. Thus, the appellant's fourth submission must be rejected.
2. The appellant's fifth and sixth submissions both concern matters relevant to DRH's credibility and reliability. As we have said, these were matters for the jury. They were properly brought to the jury's attention by defence counsel at trial and by the trial judge. Counsel referred to the fact that DRH made no complaint for many years after the events in question.[1198] The judge gave a detailed and conventional direction about the absence of complaint, and pointed out that the defence case was that the failure to complain should give cause for concern about the credibility of complainants.[1199] Further, the judge specifically referred to DRH's evidence that that part of his life was a bit of a blur.[1200]
3. The appellant emphasises that there were many matters apart from the events the subject of the charges on which DRH's recollection was poor. While that is true, it does not assist the appellant. It was well open to the jury to take the view that it was entirely plausible that a complainant may not remember a great many things about events and circumstances 24 years earlier when he was about 13 years of age, while having a clear memory of a man touching and then sucking his penis.
4. For these reasons, the appellant's fifth and sixth submissions do not assist the appellant in demonstrating a miscarriage of justice.
5. There is no merit in the appellant's seventh submission that the judge should have directed the jury that DRH was an unsafe witness or warned the jury that it would be dangerous to act on his uncorroborated evidence given his serious mental health issues. The jury is the judge of the facts. In the course of directing the jury, the judge must give the jury such warnings as may be called for by the particular case, including warnings against following impermissible paths of reasoning, and about the care that is needed in assessing some types of evidence such as evidence of identification.[1201] The judge must give a warning to the jury whenever a warning is necessary in order to avoid a perceptible risk of a miscarriage of justice.[1202] A perceptible risk of that kind arises when there was a feature of the evidence which may adversely affect its reliability and which may not be evident to a lay jury.[1203]
6. In this case, there was no feature of the evidence that may have affected its reliability and that may not have been evident to the jury. The relevance of DRH's mental health issues to the credibility and reliability of his evidence was readily apparent, and was emphasised by counsel for the appellant at trial. The judge accurately and comprehensively outlined evidence relevant to DRH's mental health and explained that that was a key issue for the jury in evaluating DRH's credibility and reliability. Nothing more was required.
7. The appellant's eighth submission relies on additional evidence in the form of the result of a Freedom of Information application. The proposed additional evidence is new, not fresh. As we explained in outlining the legal principles concerning grounds 1 and 2, an appeal will succeed on the grounds of new evidence only if the evidence shows that the appellant is innocent or raises such a doubt that the appeal court concludes that the appellant should not have been convicted. The proposed additional evidence falls a very long way short of meeting that stringent test. Indeed, the proposed additional evidence does not even satisfy the test for the admission of fresh evidence on appeal. At its highest, the proposed additional evidence undermines a particular facet of DRH's evidence, namely whether he was interviewed by police in 1991. It does not bear directly on the events the subject of the charges, but rather on the credibility and reliability of DRH's evidence concerning those matters. Moreover, at the trial there was already reason to doubt this particular facet of DRH's evidence, in that, as counsel pointed out in his closing address,[1204] DRH said police came and interviewed him and other students, one by one, but no one else gave evidence that police came and interviewed them during 1991.
8. The appellant's ninth and tenth submissions make complaints of his counsel's failure at trial to call witnesses, to adduce evidence of the note written by DRH's mother or to cross-examine her effectively by reference to it. The principles relevant to complaints of this kind were set out in dealing with grounds 1 and 2. The appellant has not called, as is ordinarily required, the witnesses whom he says his counsel should have called at trial, to enable this court to be satisfied of what the witness would actually say and the relevance and cogency of that evidence.[1205] In any event, DRH's mental health problems were a central theme of the trial of the charges relating to him. The appellant has not demonstrated that evidence from DRH's social worker or school counsellor would have materially altered the evidentiary or forensic landscape at trial. Further, objectively, counsel at trial might rationally have taken the view that further focus on DRH's mental health issues may have been counterproductive. See our earlier observations at [434].
9. For corresponding reasons, the appellant has not demonstrated that a miscarriage of justice was caused or contributed to by defence counsel's failure to adduce in evidence, or make more effective use in cross-examination, of the note written by DRH's mother.
10. For these reasons, there is no merit in ground 7. We would refuse to grant leave in respect of it.

Ground 8: joinder of charges Appellant's submissions

1. Ground 8 complains that a miscarriage of justice arose from the fact that the appellant was charged and tried on one indictment containing multiple charges and involving seven complainants. As a result he faced a 'crippling burden of "tendency", "disposition" and "propensity"', giving rise to irremediable prejudice to him.[1206]
2. He asserts that the joinder of charges in the indictment was not lawful.[1207] He further asserts that because neither his counsel nor the court gave attention to whether the charges concerning each complainant should be severed, inadmissible evidence was permitted to be adduced and the jury was permitted to engage in impermissible reasoning, including circular reasoning.[1208] The appellant submits that evidence on the charges relating to each complainant should not have been considered cross-admissible in relation to the charges concerning other complainants as the counts and evidence of the complainants was not sufficiently similar to justify it being cross-admissible.[1209]
3. The appellant also submits that the propensity witnesses should not have been permitted to give propensity evidence as their evidence was not sufficiently similar to justify its admission.[1210]
4. Further, the appellant asserts that the jury would not have been capable of acting on the judge's direction to consider the evidence in relation to the charges concerning each complainant separately and to treat the matter as in effect seven separate trials. The jury would have been overwhelmed by the number of complainants.[1211]
5. It is not necessary to outline the appellant's submissions in further detail. In essence, his submissions raise the following questions:

(1) Were multiple offences properly joined in the indictment?

(2) Could and should an application have been made to sever the charges relating to each complainant?

(3) Was any inadmissible evidence admitted at the trial as a result of the joinder of all charges in the one indictment?

(4) Did the judge correctly direct the jury as to the use they might make of any tendency or propensity evidence admitted against the appellant?

(5) Taking into account the conduct of the trial and the judge's directions to the jury, was the appellant unfairly prejudiced by and did a miscarriage of justice arise from the joinder in one indictment and joint trial of all of the charges?

1. By sch 1 div 2 cl 7 of the Criminal Procedure Act an indictment may charge a person with two or more offences if the offences are part of a series of offences of the same or a similar character. The charges on the indictment against the appellant were a series of offences of the same or a similar character, and so were properly joined in one indictment.
2. Where, as here, more than one charge is properly joined in one indictment, all the charges must be tried together unless a court orders otherwise under the Criminal Procedure Act.[1212]

1. Section 133 of the Criminal Procedure Act provides, relevantly, as follows:

(3) If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it contains 2 or more charges, the court may order -

(a) that the accused be tried separately on one or more of the charges; and

(b) the prosecutor to tell the court the order in which the charges will be tried.

...

(5) In deciding whether to make an order under subsection (3) or (4) in respect of an indictment to be tried by a jury, it is open to a superior court -

(a) to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury; and

(b) to so decide irrespective of the nature of the offence or offences charged; and

(c) to so decide even if -

(i) the evidence on one of the charges is inadmissible on another; or

(ii) the evidence against one of the accused is not admissible against another,

1. The discretion to order separate trials under s 133(3) is not enlivened unless and until the court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it contains two or more charges.[1213]
2. Thus, the court must determine whether it is satisfied of two matters: first, that an accused is likely to be prejudiced in the trial; and secondly, that the likely prejudice is caused by the fact that the prosecution notice or indictment contains two or more charges.[1214] The expression 'in the trial' means in the hearing at which the verdict on each charge the subject of a prosecution notice or indictment is determined on the evidence adduced at that hearing. That is, the matter said to give rise to the likely prejudice must impact on or affect what happens in the trial. The likely prejudice must be actual, not assumed, and must be in the trial itself.[1215] Section 133(3) is only concerned with impermissible or improper prejudice, not prejudice following from the strength of admissible evidence.[1216]
3. Section 133(5)(a) provides, in effect, that if a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment containing two or more charges, and the court is considering whether to order separate trials of the charges, it is open to the court to decide that any likelihood of prejudice 'can be guarded against' by direction to the jury and, in consequence, to decline to order separate trials.[1217]
4. The words 'to so decide' in pars (b) and (c) of s 133(5) refer to the decision under par (a) of that subsection that any likelihood of the accused being prejudiced can be guarded against by direction to the jury.[1218]
5. The fact that evidence is admissible on one charge, but not in relation to another, is not of itself a reason to order separate trials. It is common in a trial of more than one charge against an accused that evidence may be admissible in respect of only one of the charges.[1219]
6. As we have said, in deciding whether to make an order under s 133(3) it is open to the court to decide that any likelihood of prejudice can be guarded against by direction to the jury. In making that decision, the starting point is the law's general presumption that the jury will accept and faithfully apply the trial judge's directions.[1220] However, there may be cases in which the prejudice is so great that it cannot confidently be concluded that a direction will overcome the prejudice.[1221]
7. The question of whether a direction can guard against the prejudice to an accused where evidence is inadmissible on one or more counts in a multiple count indictment presented against a single accused will usually involve two issues. First, will an average jury be capable, as an intellectual exercise, of performing the task thus given to them; and second, is the prejudice likely to be so great in the circumstances that it would not be reasonable to expect the jury to leave the prejudicial evidence out of account against the particular accused even though it is inadmissible against him.[1222]
8. The appellant has not demonstrated that an application to sever the indictment would have had reasonable prospects of succeeding. Still less, the appellant has not shown that such an application should have succeeded. The reasons for that may be seen in the remainder of what follows in addressing this ground. In short that is because:

(1) there was no wrongful admission of propensity evidence at the appellant's trial;

(2) the judge gave appropriate and correct directions to the jury as to the use to which they could and could not put the propensity evidence; and

(3) in all the circumstances, the joinder of all the offences in one indictment did not give rise to a miscarriage of justice.

1. Contrary to the appellant's assertions, neither his counsel at trial nor the trial judge overlooked questions of the admissibility of propensity evidence under s 31A of the Evidence Act.
2. Well before the trial, the State applied for leave under s 31A to lead evidence from a number of witnesses on the ground that the evidence of those witnesses demonstrated that the appellant had a propensity to be attracted to adolescent boys and to act on that attraction. The State applied for leave in relation to 14 witnesses.[1223] Leave was granted in relation to ARK and AN. Counsel for the appellant was otherwise successful in opposing the grant of leave.[1224] Stone DCJ ruled that, apart from AN and ARK, the evidence of the other proposed witnesses did not have significant probative value, taking into account its limited similarity with the offending the subject of the indictment and taking into account that the proposed propensity evidence was itself disputed.[1225]
3. In the course of his ruling, Stone DCJ observed that the evidence in relation to each count in the indictment was cross-admissible in relation to every other count.[1226]
4. The judge ruled that the evidence of ARK and the two psychologists, Ms McLaughlan and Mr McEvoy, had significant probative value because it was capable of establishing that the appellant was sexually attracted to adolescent boys and that he acted on that attraction. Moreover, the appellant pleaded guilty in relation to that incident.[1227] The judge ruled that the evidence of ARK, and AN, and the two psychologists satisfied the second limb of the test in s 31A, namely that the probative value of the propensity evidence compared to the degree of risk of an unfair trial was 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.[1228] The judge referred to directions which could reasonably be expected to be given that would ameliorate any risk of prejudice.[1229] It is not necessary to detail the contemplated directions. The trial judge gave directions in accordance with what was contemplated. We will summarise her Honour's directions in the next section of these reasons.
5. In our opinion, no error is shown in the judge's ruling as to the s 31A application. The first requirement for propensity or relationship evidence to be admissible under s 31A is that it would have significant probative value. The legal principles concerning whether propensity evidence or relationship evidence has significant probative value within the meaning of s 31A were recently summarised in RMD v The State of Western Australia,[1230] by reference to the consideration of the authorities by this court in DKA v The State of Western Australia [1231] as follows:

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

(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.

(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.

(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.

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

(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.

(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.

(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.

1. In considering the probative value of evidence for the purposes of s 31A(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.[1232]
2. The second requirement for admission of evidence under s 31A is 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.[1233]
3. In Dair v The State of Western Australia,[1234] Steytler P made the following observations 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'.[1235]
4. We do not accept the appellant's submission that the propensity evidence exhibited insufficient similarity to have significant probative value.
5. There is no necessary requirement that propensity evidence exhibit a 'striking similarity' or 'underlying unity' with the charged act in order to be admissible; those concepts are not to be transplanted from their common law setting and used as glosses on or substitutes for the statutory phrase 'significant probative value'.[1236] But the nature and extent of any similarity is relevant to whether the evidence has significant probative value.[1237]
6. As the High Court has recently observed in Hughes v The Queen:[1238]

In the trial of child sexual offences, it is common for the complainant's account to be challenged on the basis that it has been fabricated or that anodyne conduct has been misinterpreted. Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded. The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon the consideration of the circumstances of the case.

The test is whether the disputed evidence, together with other evidence, makes more likely, to a significant extent, the facts that make up the elements of the offence charged.[1239]

1. In R v PWD,[1240] ten counts charging the accused with sexual offences against four boys were joined in the same indictment. The complainants were boarders at a school of which the accused was the principal. The prosecution sought to adduce the evidence of each complainant and of two further witnesses on the trial of each count to prove the accused's tendency to be sexually interested in young male students and to use his position of authority to engage in sexual activity with them. The sexual conduct and the circumstances in which the conduct occurred varied. The Court of Criminal Appeal held that the evidence was admissible, and had significant probative value. The court found that the evidence was capable of proving the accused's tendency to be sexually attracted to young male students and to act on that attraction by engaging in various sexual acts with boarders who were vulnerable because they were homesick or otherwise unable to adjust to the normal pattern of school life.
2. The decision in PWD was referred to with evident approval by the High Court in Hughes.[1241]
3. In this case, the undisputed evidence of ARK, AN, and the two psychologists strongly suggested that the appellant had a sexual interest in adolescent boys and was prepared to act on that interest. Such a tendency strongly supported and made more likely, to a significant extent, the facts making up the elements of the offences with which the appellant was charged. Consequently, the evidence had significant probative value.[1242]
4. Similar reasoning explains why if the jury were independently satisfied of the appellant's guilt in relation to one count, the evidence on that count was cross-admissible under s 31A in relation to other counts. Guilt on one count, by itself or together with the other propensity evidence to which we have already referred, would strongly support proof of the tendency to be attracted to adolescent males and to act on that attraction. Of course, the jury could only reason in this way if they were, first, satisfied beyond reasonable doubt of the appellant's guilt of a particular count, independently and without regard to the evidence in relation to other counts. As will be seen, the trial judge gave the jury a clear direction to this effect.
5. Further, we are not persuaded that there was any error in the primary judge's discretionary decision under s 31A(2)(b). It was well open to the judge to conclude that any real risk of prejudice could be guarded against by appropriate directions to the jury.
6. For these reasons, no error has been shown in the admission of any propensity evidence.
7. Further, no miscarriage of justice arose from the admission of any evidence under s 31A, for reasons to which we now turn.

1. The judge identified for the jury the evidence relied on by the State as propensity evidence, namely the admitted facts of the appellant's conviction in relation to ARK on 22 April 1991, the evidence of Ms McLaughlan and Mr McEvoy, and the evidence of AN. The judge explained the way in which the State case invited the jury to use that evidence as demonstrating a tendency to be attracted to adolescent boys and to act upon that attraction by touching them sexually.[1243] In relation to this evidence, the judge gave the following directions:
   1. It was entirely for the jury to decide whether they found that the appellant had a tendency to be attracted to adolescent boys and to act upon that attraction.[1244]
   2. In order to use the propensity evidence the jury would first need to be satisfied beyond reasonable doubt that the appellant did have a tendency to become sexually attracted to adolescent boys and a tendency to act on that sexual attraction by making a sexual advances towards them.[1245]
   3. If the jury was so satisfied of that, then they could consider whether and to what extent they thought that tendency made it more likely that the appellant committed a sexual act as alleged by a complainant.[1246]
   4. The judge emphasised that the fact that a certain person has a certain tendency does not prove that they have acted upon the tendency upon any specific occasion.[1247] Thus the State case relied upon acceptance by the jury of the evidence of a particular complainant; the tendency evidence was capable of doing no more than lending broad support to the evidence of a particular complainant.[1248]
   5. The judge reiterated that the jury could not use the tendency evidence as a substitute means of finding the appellant guilty of anything: the State must prove the specific charge alleged.[1249]
2. In our respectful opinion, these directions were comprehensive and clear in explaining and limiting the permissible use to which the propensity evidence could be put. The directions appropriately guarded against any risk of an unfair trial consequent upon the admission of the propensity evidence, including by specifically warning against impermissible chains of reasoning.
3. The judge further explained the manner in which and conditions under which the jury might use the evidence of one complainant in considering whether they were satisfied beyond reasonable doubt of a charge relating to a different complainant. The judge explained, correctly, that they could only do this if they were first satisfied beyond reasonable doubt in relation to the evidence of a particular complainant, and without regard to the evidence of any other complainant. If they were so satisfied, then the evidence of the complainant in relation to which they were satisfied beyond reasonable doubt could be used as evidence of tendency in the same way as what her Honour had already described.[1250] Her Honour emphasised to the jury that they must not engage in circular reasoning by using the evidence of two complainants, as to each of whom the jury was not independently satisfied beyond reasonable doubt of his honesty and reliability, to provide support each to the other.[1251] The judge reiterated that the jury would have to be satisfied beyond reasonable doubt of the evidence of the particular complainant concerned in relation to a charge before finding the appellant guilty of that charge.[1252]
4. There is nothing unconventional, in the context of propensity evidence, about a direction that the jury must be satisfied beyond reasonable doubt that the accused had committed one of the offences on the indictment, before they could use the evidence relating to that charge in considering whether the accused was guilty of another charge.[1253]

Was the appellant unfairly prejudiced by the joint trial of all charges?

1. In our opinion, for the reasons that follow, the appellant was not unfairly prejudiced by, and there was no miscarriage of justice arising from, the joinder in one indictment and the joint trial of all of the charges.
2. First, the charges were correctly and properly joined in one indictment.
3. Secondly, no application for severance was made and, for the reasons already given, any application for severance would not have had a reasonable prospect of succeeding.
4. Thirdly, no error is shown in the judge's rulings, prior to trial, as to the admission of the propensity evidence, including the cross-admissibility of evidence on one count in relation to every other count.
5. Fourthly, for the reasons already explained, the trial judge gave appropriate directions explaining and limiting the use to which the jury could put the propensity evidence.
6. Fifthly, the appellant's submission that the number of complainants and volume of propensity evidence was such that the jury would not have been capable of acting on the judge's directions is mere assertion. In The State of Western Australia v WCM,[1254] the accused submitted that a trial charging 34 counts of sexual offending involving six complainants would cause him prejudice in that there would be a dilution of the Longman warning and other forensic disadvantages from the 'overloaded, complicated and/or unfair indictment'. This court unanimously rejected that submission. In the course of doing so, McLure P made the following observations:[1255]

The respondent contends that by the time the trial judge delivers a Longman warning in relation to each complainant, the effect will be progressively diminished for each complainant with the likely outcome being the distortion of the jurors' capacity for objectivity. This is mere assertion that is counter-intuitive and not borne out by experience. Multiple counts involving multiple complainants are common in this and other jurisdictions without any improper distortion or dilution of the effect or effectiveness of a Longman direction. See for example GBT (78 counts of child sex offences against eight complainants); Osborne v The State of Western Australia [2013] WASCA 106 (25 counts of child sex offences against seven complainants); ERA v The State of Western Australia [2013] WASCA 163 (29 counts of child sex offences against four complainants). Any effect on outcomes attributable to the probative value of other counts is not an improper effect.

As to the claim that the indictment is 'overloaded, complicated and/or unfair', the respondent points to the fact that the counts raise historical allegations that begin when the respondent was a child and end when he is in his early 30s with counts that differ as to date, time, place, nature and complainant. However, none of these matters individually or collectively take this case outside what is commonplace in child sex and other cases in this jurisdiction. The factual compass of each count will be relatively narrow and confined. It is wrong to characterise the proposed trial as highly complex and as presenting a difficult task for jury, experienced counsel and judge [29] - [30].

1. In WCM,[1256] this court referred to the Victorian case of MacFie v The Queen[1257] in which an assertion of a miscarriage of justice occasioned by an indictment containing 52 counts of sexual offending against seven child complainants was rejected.
2. See, also, LFG,[1258] in which this court rejected the proposition that propensity evidence in a case involving 33 counts (on six of which the trial judge directed acquittal) charged on the indictment would overwhelm the jury or that directions from the trial judge could not cure any impermissible prejudice.
3. Further, the jury's verdicts provide no support to the appellant's assertion that the jury must have been overwhelmed by the number of complaints and the prejudice arising from so many complainants. The jury returned verdicts of not guilty in respect of a number of offences which related to more than one complainant.
4. For these reasons, ground 8 is without merit. We would refuse leave to appeal on the ground.

Subsequent documents sent or purportedly filed by the appellant

1. In late December 2017, in January 2018 and in March 2018, the appellant sent to the court and, in some cases, purportedly filed letters and other documents described as submissions.[1259] The appellant did not have leave to file any of this material, and has made no application for leave. Were any application for leave to have been made, we would have refused to grant leave. Subject to the specific matters the subject of orders made on 30 November 2017, the hearing of the appeal was complete at the conclusion of the hearing on that day when the court reserved its decision. In any event, we have read the additional material sought to be put before the court by the appellant. Much of it repeats submissions already made by the appellant. None of it alters or influences our views.

1. For the reasons we have given, we would make orders to the following effect:

(1) The appellant's applications to adduce additional evidence dated 26 September 2016, 10 November 2016, 24 November 2016, 14 December 2016 (x 2) and 16 June 2017 be dismissed.

(3) Leave to appeal on grounds 1 to 4 and 6 to 8 be refused.

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

[124] ts 461. The transcript records RJM's response as 'indistinct' when the question is specifically put to him. From the following questions it appears that his response was a denial.

[614] Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507; ts 1228.

[686] ts 1235 - 1238, see also 1150 and 1226.

[690] Defence closing address 51 - 52.

[693] Defence closing address 12 - 13.

[694] Defence closing address 12 - 13.

[698] Defence closing address 30 and 49.

[708] Defence closing address 5 - 7 and 50.

[715] Defence closing address 11 - 12.

[727] Defence closing address 13 and 50.

[728] Defence closing address 15 - 16 and 50.

[729] Defence closing address 15 - 16.

[734] Defence closing address 21 - 22.

[760] Defence closing address 32 and 51.

[761] Defence closing address 32 - 33.

[762] Defence closing address 32 and 51.

[771] Defence closing address 38 - 39.

[789] Criminal Appeals Act 2004 (WA), s 30(3)(c); Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 [2], KLM v The State of Western Australia [2009] WASCA 73 [49].

[790] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [74]; McMahon v The State of Western Australia [2010] WASCA 143 [24]; CFM v The State of Western Australia [2017] WASCA 15 [118].

[792] TKWJ [74], [79]; R v Birks (1990) 19 NSWLR 677, 685; McMahon [24].

[793] Nudd [8]; KLM [51].

[795] Nudd [54] - [55], [101], [104], [158] - [159].

[796] KLM [50] and cases there cited.

[797] Nudd [8], [24], [27]; KLM [50].

[798] McMahon [28]; Nudd [25].

[799] Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96 [115].

[801] TKWJ [107], Nudd [9], [27].

[802] McMahon [25] - [27]. This passage has been applied by this court many times; see for example, CFM [119].

[803] See, generally, CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 [108].

[804] Beamish v The Queen [2005] WASCA 62 [9].

[805] Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 - 676; DPJB v The State of Western Australia [2010] WASCA 12 [66].

[806] Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 399, 402; Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273, 301 - 302.

[807] Lawless (676 - 677); Gallagher (397), (401 - 403), (410); Mickelberg (302).

[808] See, generally, CDJ [108], [111].

[809] Rinaldi v The State of Western Australia [2007] WASCA 53.

[810] See, for example, DPJB [64]; Cramphorn v Bailey [2014] WASCA 60 [61].

[813] Re Knowles [1984] VicRp 67; [1984] VR 751.

[817] Written opening address (OA) pages 1, 4, 5, 13, 17, 18; appeal ts 166.

[821] See, for example, OA pages 61 - 62.

[824] Affidavit 11 October 2016 [5]; OA pages 61 - 62.

[825] OA page 24; affidavit of the appellant sworn 9 November 2017 [49].

[827] Affidavit of David John McKenzie sworn 20 October 2017 annexure A.

[831] ts 369 - 372 (see further [445] - [455] below).

[842] OA pages 11, 12, 13, 15, 21, 23, 42, 49, 51, 61, 62, 63, 66, 70, 72, 74, 78, 81, 105, 115, 119, 121, 139, 173, 174, 176, 209, 211 - 225.

[843] [314] - [339].

[847] [428] - [434].

[848] Appellant's affidavit, 9 November 2017.

[849] Namely, page 86, pages 89 - 91, 145 - 149, 187 - 191 and 236 - 240, respectively.

[851] OA page 11; appeal ts 103 - 104.

[853] See, for example, the appellant' summary at OA pages 10 - 12.

[855] Nudd [8]; KLM [51].

[856] OA page 43, see generally OA pages 43 - 60; appeal ts 130.

[867] See, for example, OA pages 47 and following.

[876] OA pages 50, 192; appeal ts 133.

[877] Yellow AB 389 (original emphasis).

[881] OA pages 125 - 132; see also yellow AB 424 - 425.

[884] Defence closing address ts 32 - 33; ts 1213.

[886] ts 616 - 622, 979 - 981, 1025 - 1027, 1030.

[889] [402].

[902] Affidavit of the appellant, 9 November 2017, pages 17 - 47.

[904] Appellant's submissions [23], [24], [29]; OA pages 76 - 78, 80 - 83, 141 - 143.

[905] Appellant's submissions [25]; OA pages 77, 78, 80, 81.

[906] Appellant's submissions [29]; OA pages 84, 85.

[907] OA pages 132, 135, 140 - 141, 163, 203.

[916] Yellow AB 27, 29 - 31, 52 - 54, 266, 274 - 281.

[918] R v Glennon [1992] HCA 16; 173 CLR 592, 605 - 606; Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 [18].

[919] Glennon (603); Dupas [29]; LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178 [334].

[920] Dupas [29]; LFG [334].

[921] Glennon (603); Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 [13]; LFG [333].

[922] Dupas [26]; LFG [332].

[924] [376] - [381].

[931] Defence closing address 12 - 13.

[942] Defence closing address 32 - 33.

[950] See [435].

[951] Appellant's submissions [30] - [32].

[953] Riley v The State of Western Australia [2007] WASCA 22 [17] - [24].

[958] See, more generally, OA pages 100 - 109, where the appellant catalogues what he asserts are examples of fabricated evidence given by SJL.

[965] [402].

[966] Defence closing address 19; ts 1210.

[970] Defence closing address 15 - 16.

[971] See, for example, ts 563, 598, 601 - 602.

[976] OA page 65, see also pages 66, 73 and 75, appeal ts 174.

[977] DPJB [66]; CFM [115], [123].

[982] See, for example, OA pages 66 - 67.

[984] Defence closing address 29 - 30.

[989] Statement of SJL [8], yellow AB 524.

[990] Affidavit of Ms Beggs [4], yellow AB 513.

[991] See, by analogy, R v Apostilides [1984] HCA 38; (1984) 154 CLR 563, 575 - 576.

[995] OA page 95, set out at [550] of these reasons, see also OA page 97.

[996] Appellant's submissions [33] - [40]; OA pages 20 - 43; appeal ts 166 - 170.

[997] [402].

[998] Appellant's submissions [33] - [39].

[999] Appellant's submissions [33], [34], [38], [39].

[1002] OA 26, referring to yellow AB 492.

[1017] See, for example, OA pages 34 - 35 and affidavit [48].

[1018] Appellant's submissions [36] - [37].

[1019] OA page 24; see also appeal ts 70.

[1030] We interpret the handwritten entries of 'Maza' on 18 and 19 September 1990 as referring to DPM.

[1035] See, for example, his attempts to explain his conduct towards ARK, ts 985 - 994.

[1041] See, for example, OA pages 20, 28, 41, 112; appeal ts 167.

[1042] Defence closing address ts 24, 25, 26.

[1043] Defence closing address ts 26.

[1044] Defence closing address ts 25; see also 27.

[1064] For a recent example, see the judgment of Buss P in RMD v The State of Western Australia [2017] WASCA 70 [114] - [133].

[1115] Evidence Act 1906 (WA), s 50.

[1127] Appellant's submissions [79]. See also OA pages 198 - 199.

[1136] Appellant's submissions [89]; OA page 155.

[1138] Smith v The Queen [2015] HCA 27; (2015) 255 CLR 161 [32] - [35], [44] - [45]. See also [46] - [55].

[1140] Appellant's submissions [55] - [88].

[1143] Criminal Appeals Act, s 30(3)(c).

[1144] Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319, 331 - 332.

[1145] Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555; RPS v The Queen [2000] HCA 3 (2000) 199 CLR 620 [41]; The State of Western Australia v Pollock [2009] WASCA 96; (2009) 195 A Crim R 527 [5], [6], [147] - [151].

[1146] See OA pages 193 - 195 for some illustrative examples.

[1148] Appellant's submissions [69]; OA page 193.

[1150] Appellant's submissions [72]; OA page 195.

[1152] Appellant's submissions [77]; OA page 197.

[1154] ts 1183; appellant's submissions [82], OA page 202.

[1156] See, for example, OA pages 191 - 192.

[1157] Criminal Procedure Act, s 112; RPS [41].

[1158] See, for example, OA pages 183 - 187, 192 - 193, 203.

[1160] Appellant's submissions [90]; OA page 86; addendum page 4.

[1161] Appellant's submissions [92], [94], [98], [99], [104]; OA page 87; addendum pages 4, 6.

[1162] Appellant's submissions [90].

[1163] OA pages 86, 87; addendum pages 2 and following.

[1164] Appellant's submissions [91] - [92]; OA pages 86, 88, 94; addendum pages 1, 4, 8 - 9.

[1166] Appellant's submissions [93], [95], [101]; OA pages 87, 91; addendum page 5.

[1167] ts 650; appellant's submissions [95]; OA pages 90 - 91; addendum page 5.

[1168] Appellant's submissions [103] - [104]; OA page 94.

[1169] Appellant's submissions [97]; OA pages 87, 89; addendum page 5.

[1171] Appellant's submissions [96]; OA page 90.

[1180] OA pages 88, 90, 92; addendum pages 3, 4, 6.

[1187] Defence closing address pages 38 - 40.

[1190] GWD v The State of Western Australia [2010] WASCA 206 [37].

[1192] Statement of DRH [43], yellow AB 522.

[1193] See, for example, addendum page 4.

[1194] Quoted by the appellant at appellant's submissions [91]; OA pages 88 and 94; addendum pages 1, 8.

[1195] Appellant's submissions [91] - [92]; OA pages 88, 94; addendum pages 1, 4, 6, 8 - 9.

[1198] Defence closing address pages 40, 51 - 52.

[1201] Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 [49].

[1202] Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, 330; Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, 86; The Queen v GW [2016] HCA 6; (2016) 258 CLR 108 [50].

[1203] Longman (86), (91); The Queen v GW [50].

[1204] Defence closing address pages 39 - 40.

[1206] Appellant's submissions [107], [109]; OA pages 167, 170.

[1207] Appellant's submissions [106].

[1208] Appellant's submissions [108], [112]; OA pages 155, 157, 158, 160, 162, 164, 165, 170.

[1209] Appellant's submissions [122]; OA pages 162, 166.

[1210] Appellant's submissions [122]; OA pages 164, 167.

[1212] Clause 9 sch 1 of the Criminal Procedure Act 2004 (WA).

[1213] Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [94]; The State of Western Australia v Micalizzi [2010] WASCA 147 [23]; Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326, referring to s 133(4); [335].

[1216] The State of Western Australia v WCM [2014] WASCA 38 [32], [40].

[1217] Donaldson [95], [98]; Russell [336].

[1218] Donaldson [96] - [97]; Russell [337].

[1219] The State of Western Australia v Karolides [2017] WASCA 111 [32].

[1220] Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20, 22; Salehi v The Queen [1999] WASCA 279 [43]; The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81 [31].

[1221] Re Attorney General's Reference No 1 of 1977 [1979] WAR 45, 47 - 48; Bowen [54]; Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302 [65]; Leaman v The Queen [1987] TASSC 21; (1987) 28 A Crim R 104, 112 - 113; Kalani v The State of Western Australia [2013] WASCA 132 [79].

[1222] Karolides [34], citing Leaman (108 - 109); Bowen [55].

[1223] Application dated 21 August 2014.

[1230] RMD v The State of Western Australia [2017] WASCA 70 [185].

[1231] DKA v The State of Western Australia [2017] WASCA 44.

[1234] Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413; this has been applied in many subsequent decisions of this court.

[1235] Quoting Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53].

[1236] Hughes v The Queen [2017] HCA 20; (2017) 344 ALR 187 [34], [39]; DKA [44].

[1240] R v PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75.

[1253] Karolides [55]. See also Horsman v The State of Western Australia [2008] WASCA 190; (2008) 187 A Crim R 565; Sweeney v The State of Western Australia [2006] WASCA 118.

[1254] The State of Western Australia v WCM [2014] WASCA 38.

[1255] WCM [29] - [30], [36], [58] - [59].

[1256] WCM [31], [36], [59].

[1257] MacFie v The Queen [2012] VSCA 314.

[1259] Document entitled 'Appellant's Response to DPP Response dated 15 December 2017'; letter dated 28 December 2017, received 5 January 2018; letter dated 27 December 2017, received 4 January 2017; letter dated 23 December 2017, received 4 January 2017; letter dated 23 March 2018 received 28 March 2018.