BGH -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 124 (11 August 2020)

1. The real issue for the jury to decide, in respect of each count on the indictment, was whether it was satisfied beyond reasonable doubt that the appellant had engaged in the alleged conduct. That is, whether he had penetrated C's vagina with his finger (count 1); whether he had touched C's vaginal area (count 2); and whether he had touched C's buttocks (count 3). The State's case on each charge depended upon the jury being satisfied beyond reasonable doubt of the honesty and reliability of C's evidence, and upon the jury being satisfied that the appellant's denials that he had engaged in any such conduct could not reasonably be true.
2. The salient features of the trial are set out below.

1. C, who was born in August 2002,[8] is the child of her mother, A, and her father, R. She has a younger sister, L. In about 2005,[9] A and R separated. R maintained regular contact with C and L. From about 2012 or 2013, the children resided with R for a three‑day period every fortnight, and A and R shared school holidays.[10] Otherwise, C and L lived with their mother.
2. A met the appellant online in about 2009, and in person in about 2011.[11] In 2012 they married and the appellant became part of a household which comprised him, A, C and L.[12]
3. In 2016, the household moved into rental accommodation at an address in a Perth suburb (the first address).[13] Later, in about mid‑2017, the household moved to another address in the same suburb (the second address).[14]
4. In examination‑in‑chief, C confirmed that, on 15 January 2018, she took part in a visually‑recorded interview (VRI). The interview was played to the jury.[15] In her sworn testimony before the jury, C confirmed that everything that she had said in the interview was true.[16]
5. In the VRI, C said that, when her mother worked nightshift, the appellant would come into her bedroom and was 'touching me and stuff'.[17] C said that the appellant started to touch her 'boobs and bum' when she was 12 or 13.[18] C said that on two occasions the appellant 'tried fingering me' and that he also touched her.[19] C used the word 'finger' to denote a digital penetration of her vagina. The interviewer asked C about the two occasions when the appellant tried to 'finger' her.
6. The interviewer asked C to tell him about the last time this happened, rather than the first occasion. C described an event, which she said 'probably' took place in 2017, during which the appellant walked into her bedroom while she was asleep, kissed her on the cheek, touched her breasts and bottom and then tried to 'finger' her, but she resisted.[20] This occasion was the subject of count 2. C told the interviewers that this incident occurred at the first address[21] on an occasion when her mother was home.[22] In her examination‑in‑chief, C said that this incident occurred around 6.00 or 7.00 am before she went to school[23] and that the appellant touched her vagina over her clothing.[24]
7. The interviewer who conducted the VRI then asked C to tell him about the first occasion during which the appellant tried to 'finger' her. This occasion was the subject of count 1. C told the interviewer that the appellant walked into her bedroom, touched her 'bum' over her clothes, pulled her pants off and tried to put his fingers into her vagina. She described the appellant 'moving his fingers around and then, like, tried just putting it in and then I just like, woke up when he tried doing that then I was like, nup'.[25] C described the appellant on this occasion moving his fingers around her vagina and then she felt that he was 'just about to like, put them in there'.[26] In examination‑in‑chief, C said that this alleged offence occurred at the first address, at night in her bedroom.[27] She explained that she 'would have been wearing trackies and a long‑sleeved top'.[28] C said that the appellant took her pants off and tried 'to put his fingers in me'.[29] She described him moving her underwear to the side 'so he could be able to put his fingers in me'.[30]
8. As to count 3, in the VRI, C was asked to tell the interviewer about 'the last time [the appellant] touched your boobs and bum'.[31] C described an occasion when the appellant walked into her bedroom while she was lying on her bed on her stomach. C said the appellant 'squeezed my bum'.[32] C said that she told him 'no, go away ... I don't want to do this anymore'.[33] C told the interviewer that the appellant squeezed her 'bum' over her clothes.[34]
9. In examination‑in‑chief, C said that this incident occurred at the second address at night, and that when the appellant first entered her bedroom she was woken up by the flashlight on his mobile telephone.[35] C said that initially she was lying on her back, but the appellant rolled her onto her 'belly' and squeezed her 'bum' over her clothes.[36]
10. In addition to the three incidents the subject of the charges in the indictment, the State also relied on more generalised allegations that C made in the VRI, to the effect that the appellant touched her bottom and breasts on other occasions.
11. In C's VRI, she said, in substance, that she did not tell anybody about what the appellant was doing to her at the relevant time.[37] C said that the first person she told was her father, R.[38] R then told his wife (not A but rather his then wife) about what had occurred.[39]
12. The State alleged, and defence counsel accepted, that the counts on the indictment were cross‑admissible. In this appeal, no issue has been taken to the cross‑admissibility of the evidence or her Honour's direction on this point.
13. C was cross‑examined by defence counsel. The adequacy of the cross‑examination is a matter that the appellant complains of as part of ground 1. We will say more about the cross‑examination later in these reasons. For the moment, we observe that the cross‑examination was brief. At one point, defence counsel elicited from C that, on the occasion she spoke to R about what had occurred, she told R that the appellant had touched her breasts. C said she did not think that she told her father that the appellant had only touched her on one occasion. C was cross‑examined about her failure to complain promptly to her mother or sister. She responded to the effect that she thought no one would believe her or that people might think she was just attention‑seeking or making it up to get back at the appellant.[40]
14. A testified to the following effect:[41]

(d) She met the appellant online in 2009 and married him in 2012.

(e) She, the appellant, C and L resided together at the first address and later at the second address. A gave evidence as to when each of those properties was leased.

(f) The first she heard about the allegations C made against the appellant was in January 2018. A said she was informed by 'Child Protection Services'.

(g) On occasions, she worked nightshift. On such occasions, her daughters were either at home being supervised by the appellant or on a contact visit with R.

(h) After she was informed of the allegations against the appellant, the appellant moved out of the second address, following which A also moved elsewhere.

1. Under cross‑examination, A accepted that she and the appellant were together for about six years. A agreed that the children got along quite well with the appellant and sometimes referred to him as 'Superdad'. However, while the relationship between the appellant and C was 'okay' at the beginning when they were living at the first address, they did not 'get along'.[42]
2. It appears from A's evidence that C formed a relationship with a young boy named I. A confirmed that the appellant had a confrontation with I at a shopping centre, which led to a later confrontation between C and the appellant.[43] A also confirmed in cross‑examination that she had a problem with the appellant sending money overseas to his relatives.[44] A also said that, prior to 'Child Protection' contacting her, C had not complained to her about being sexually abused by the appellant.[45]
3. R testified:

(a) As to the custody and contact arrangements he had with A concerning C and L.

(b) That, on 2 January 2018, C told him that the appellant had touched her inappropriately.[46]

(c) That, on 15 January 2018, he drove C to the police station.

1. In cross‑examination, defence counsel elicited from R that, in relation to the conversation on 2 January 2018, he had said in his witness statement that C told him that the appellant had interfered with her 'just the one time'.[47] R was not asked to confirm whether what he had said in the witness statement was true.
2. The final witness called by the State was the investigating police officer, Detective Chloe Dawes. Her evidence was brief and uncontroversial. She confirmed that C participated in the VRI on 15 January 2018[48] and that, on 29 March 2018, the appellant was arrested and charged.[49] In cross‑examination, Detective Dawes confirmed that she interviewed the appellant about the alleged offences and that he was cooperative. Detective Dawes was not asked about anything the appellant said in the course of the interview.

1. The appellant elected to testify in his defence. In examination‑in‑chief, the appellant said:

(a) He was born in Pakistan and came to Australia in July 2009.[50]

(b) When he arrived in Australia he completed a two‑year diploma in accounting, which, in fact, took two and a half years to complete.

(e) He explained how he married A and that they, along with C and L, lived together at the first and second addresses.

(f) Initially, he was like a dad to the children. They referred to him as 'Superdad'.[52]

(g) He said that over the years, as C got older, his relationship with her, in effect, deteriorated. The appellant said that C had 'a lot of problem[s] at school'.[53] He also testified about the confrontation he had with I at a suburban shopping centre,[54] after which A accused C of lying about the relationship she had with I.[55] Following this incident, the appellant testified that he frequently told C off because of her 'lieness'.[56]

(h) He and A got into arguments concerning money that he remitted to his parents in Pakistan.[57]

(i) That all of the allegations made by C are false and that he would never think about doing such things.

1. Under cross‑examination, the appellant maintained his denials of any wrongdoing in respect of C. The appellant said that, apart from sometimes kissing C and L on the forehead and giving them a hug, he never touched the girls. He denied ever going into C's room to wake her up for school.[58] The appellant said that A never left her children at home in his care.[59] He denied that there was ever an occasion when he tucked C and L into bed without A being present.[60] Nor did he ever go into C's room while C was there by herself.[61]
2. Defence counsel adduced evidence of good character from a friend of the appellant who had known him for over 22 years. This witness described the appellant as an 'honest, reliable, trustworthy [and] law‑abiding person'.[62]

1. The defence case closed at about 10.49 am on the second day of the trial. After the mid‑morning adjournment, counsel delivered their closing addresses. Unsurprisingly, given the brevity of the evidence, each closing address was short. The prosecutor addressed the jury for approximately 20 minutes, and defence counsel addressed the jury for approximately 10 minutes.
2. In her closing address, the prosecutor acknowledged that the State's case depended upon the jury being satisfied beyond reasonable doubt of both the honesty and reliability of C's evidence.[63] The prosecutor submitted that C was a truthful witness.[64] It was submitted that C was open and frank in her testimony; she did not embellish or exaggerate what had occurred. Further, it was submitted that C did not come across as being vindictive.[65]
3. The prosecutor submitted that the appellant had the opportunity to commit each of the offences. She also submitted that the appellant was not an honest witness.[66] She submitted that the appellant did not tell the truth to the jury when he said he had never been in C's bedroom when C was in that bedroom, or that he had never been home alone with C and L.[67] The prosecutor also submitted that C's delay in making a complaint was understandable, having regard to her age and the explanation she gave for her failure to make an immediate complaint.
4. Defence counsel emphasised the high standard of proof that was necessary before the jury could convict the appellant. He pointed to the stark conflict in the evidence between C and the appellant. As he put it, the evidence concerning C's allegations of sexual misconduct was 'diametrically opposed'.[68] In substance, defence counsel submitted, in these circumstances the jury should not be satisfied beyond reasonable doubt of the appellant's guilt.
5. Defence counsel submitted to the jury that when assessing C's credibility there was a 'serious discrepancy'[69] between her testimony, in which she alleged there were three incidents, one of which involved an allegation of penetration, and what she told R had occurred. Defence counsel submitted that C did not tell R about any act of penetration and that she complained to him of one incident, not three.[70]
6. Defence counsel also submitted, in effect, that C's credibility was adversely affected by her failure to complain to either her sister or her mother about the appellant's conduct towards her.[71]
7. Defence counsel suggested that, although he did not want to make 'a big deal' of the issue, the appellant was, by reason of his background and faith, 'pretty strict' with C. Moreover, there was tension between the appellant and A over the appellant remitting money to his parents in Pakistan. Defence counsel suggested that C did not want the appellant 'hanging around' and, as a result, there was 'a possibility that she's making up stories'.[72]
8. Defence counsel emphasised that the appellant did not have to give evidence, but nevertheless he took the oath and exposed himself to cross‑examination by the prosecutor. Further, the appellant was a man of prior good character.
9. Defence counsel ended his closing address by putting to the jury that there was a 'head to head conflict of evidence' and that, in the circumstances, the jury could not be satisfied beyond reasonable doubt of the appellant's guilt.[73]

1. As no complaint is made of the trial judge's summing up, it is unnecessary to discuss it in detail. Her Honour correctly identified the real factual issue for the jury to decide in respect of each count. She gave comprehensive directions as to the burden and standard of proof. She gave the jury a Liberato direction.[74] Her Honour accurately and comprehensively summarised the cases that the parties put to the jury. Further, she gave correct directions as to how the jury could approach the question of C's failure to make a prompt complaint.

Ground 1 - did defence counsel's conduct give rise to a miscarriage of justice?

1. Ground 1, as argued at the hearing of the appeal, is in these terms:
   1. The appellant suffered a serious miscarriage of justice at his trial by virtue of the way his defence was conducted by his trial counsel.

(a) The appellant's trial counsel failed to do a number of things in the conduct of the defence case at trial. They are [that he]:

1. [Abandoned]
2. [Abandoned]
3. omitted to cross‑examine the complainant on a number of critical issues;
4. omitted to put fully the defence case to the complainant;
5. omitted to cross‑examine adequately the prosecution witnesses on issues relating to context and credit of the complainant; and
6. omitted to present an adequate closing address that outlined the defence case, but importantly comment to the jury about how to assess the complainant's evidence.

1. In support of this ground, the appellant, by application dated 23 September 2019, sought the leave of this court to adduce additional evidence. The additional evidence sought to be adduced is contained in an affidavit sworn by the appellant on 23 September 2019 and, in particular, a proof of evidence containing the appellant's instructions to his counsel, dated 26 June 2019.[75] The question of whether leave to adduce additional evidence should be granted was referred to the hearing of the appeal.[76]
2. At the hearing of the appeal, the respondent informed the court that it did not oppose the appellant's application to adduce additional evidence. Accordingly, this court unanimously agreed to give leave to the appellant to adduce the additional evidence contained in his affidavit.

1. The appellant complained of a number of omissions allegedly made by his trial counsel in the conduct of the appellant's defence which, when viewed cumulatively in the context of the trial, were said to amount to material irregularities, and submitted that there was a significant possibility that these irregularities affected the outcome. The alleged irregularities are set out in the particulars to ground 1.

1. There is no contest between the parties in this appeal as to the relevant legal principles to be applied in relation to ground 1. They were conveniently and comprehensively set out in Huggins v The State of Western Australia as follows:[77]

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 [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]].

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 [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]]. 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 [Nudd [9]]. It is not a ground for setting aside a conviction that decisions made by counsel were made without or contrary to instructions or involved errors of judgment or even negligence [TKWJ [74], [79]; R v Birks (1990) 19 NSWLR 677, 685; McMahon [24]]. It is not the province of appellate courts to review the wisdom or prudence of the conduct of a trial by trial counsel [Nudd [8]; KLM [51]]. 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 [TKWJ [16]].

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 [Nudd [54] - [55], [101], [104], [158] - [159]]. That illustrates the challenging character of a ground of appeal that asserts a miscarriage of justice arising through counsel's conduct of the trial.

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 [KLM [50] and cases there cited]. 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 [Nudd [8], [24], [27]; KLM [50]]. The focus is on what happened or did not happen, not on why any error occurred [McMahon [28]; Nudd [25]].

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

'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).'

Thus, with rare exceptions, an appeal against conviction is not an investigation into the performance of trial counsel [Nudd [10]], and does not invite attention to the subjective views or reasoning of the particular trial counsel [TKWJ [107], Nudd [9], [27]]. Consequently, the evidence of [the appellant's counsel at trial] 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.)

In McMahon [McMahon [25] ‑ [27]. This passage has been applied by this court many times; see for example, CFM [119]], 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).'

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.

1. This statement of principles has recently been approved by this court in RMM v The State of Western Australia[78] and Jeffery v The State of Western Australia.[79]

1. It was not suggested by counsel for the appellant that defence counsel's conduct deprived the appellant of a fair trial according to law, such that it is unnecessary to have regard to whether the conduct might have affected the outcome.
2. The omissions relied upon by the appellant's counsel were alleged to be material irregularities which gave rise to a significant possibility that they affected the outcome.
3. We will deal separately with each of the particulars to ground 1. We do so acknowledging that the appellant submits that the cumulative effect of each particular reinforces the ground.
4. In support of particular (iii), counsel for the appellant alleged, in substance, that defence counsel failed or failed to adequately cross‑examine C about:[80]

(a) C's failure to promptly complain to her mother, A, and her father, R, about the appellant's sexual conduct; and

(b) the difficult 'up and down' relationship that C had with the appellant.

1. In addition to the matters set out in [22] above, defence counsel cross‑examined C about her relationship with the appellant. C conceded that 'at the start' of the relationship she got on reasonably well with the appellant but that the relationship deteriorated because the appellant would restrict her social[81]ctivities,81 which led to arguments that involved C, the appe[82]ant and A.82 Defence counsel also cross-examined C about her relationship with I and how the appellant reacted to it. C said that she and the appellant screamed and yelled at each other in an incident 'a[83]the shops'83 after which she agreed she was upset with the appellant 'because he just overreacted ov[84] nothing'.84 C also agreed that the appellant would overreact 'on other thi[85]s as well'85 and that he told her off 'for things that he didn't [86]prove of'.86 C agreed that the appellant was 'being a little bit over-c[87]trolling'.87
2. In our opinion there is no merit to the assertion in particular (iii) that there was a failure to cross‑examine on critical issues. Defence counsel did, in fact, cross-examine C on the matters referred to above. The real criticism of defence counsel was that he failed to 'adequately' cross-examine on these matters.[88]
3. As counsel for the appellant accepted in oral argument, the cross‑examination of a young person who alleges that they were sexually abused by a member of their household is often difficult[89] and requires careful consideration.
4. The approach to be taken to such a witness requires an assessment of many factors including counsel's impression of the witness and how he or she might react to a line of cross-examination. Often, a less confrontational approach is called for. As the appellant's counsel himself volunteered in oral submissions 'the last thing one wants to do as trial counsel is ... unnecessarily upset a complainant'.[90] Moreover, an attempt to press home a point might produce an unhelpful response that may undo the gains which have been achieved. For example, and relevantly to the present case, to continue to make the point that the complainant disliked an accused runs the risk of a response to the effect that the complainant disliked the accused because of his or her sexual behaviour towards the complainant.
5. In our opinion, it was well open to defence counsel in this case to take, as he did, a non-confrontational approach to C's cross-examination. He elicited answers from C, in respect of her relationship with the appellant and her failure to promptly complain to her parents, which were sufficiently favourable to the appellant for defence counsel to decide that no more was necessary.
6. It is not this court's function to merely second-guess defence counsel's forensic choices and decide that the cross-examination may have been more effective if it had been carried out differently. Defence counsel's cross-examination was explicable on the basis that it involved the making of reasonable forensic choices. While other defence counsel may have conducted the cross-examination of C differently, that does not make defence counsel's cross-examination 'inadequate', nor does it constitute a miscarriage of justice.
7. The alleged omissions the subject of particular (iii) do not constitute a material irregularity. No miscarriage of justice has been demonstrated. Even if the matters raised by the appellant's counsel had constituted a material irregularity, we do not think that they either individually or collectively gave rise to a significant possibility that they affected the outcome. This is because the cross-examination showed that C harboured some hostility towards the appellant for his over-controlling behaviour towards her and it was abundantly clear that C had not made a contemporaneous complaint to either her mother or her father. These were matters referred to in defence counsel's closing submissions and her Honour's summing up.
8. Particular (iv) alleged that defence counsel omitted 'to put adequately propositions to [C] in accordance with Browne v Dunn'.[91]
9. In support of particular (iv), it was submitted that defence counsel should have put to C that:[92]

(a) she lied to her father about the appellant touching her;

(b) she felt under pressure to keep the lie going when the matter was reported to the police;

(c) she had lied about all the allegations of inappropriate behaviour by the appellant towards her;

(d) the appellant never touched her inappropriately, let alone tried to 'finger' her; and

(e) the appellant never touched her 'bum or boobs' all the time.

1. This particular has no merit.
2. The legal principles applicable to the rule in Browne v Dunn were explained by Buss JA in NCH v The State of Western Australia.[93] We adopt without repetition that statement of principles. It is enough to say that the policy rationale underpinning the rule in Browne v Dunn is the securing of fairness in the conduct of adversarial proceedings. In criminal proceedings, the rule must be applied with considerable care and circumspection.
3. We do not think that the rule in Browne v Dunn required defence counsel to put to C the propositions set out in [60] above, and its application is a red herring in this appeal. The real question is whether defence counsel's failure to cross-examine C in the terms referred to above has given rise to any unfairness to the appellant. As the written submissions in support of this particular concede, had the propositions been put to C, they would no doubt have been met with her b[94]e denials.94 It would have been a fruitless exercise. As such, the failure to put the propositions to C was a reasonable forensic choice for defence counsel to make. No material irregularity has been demonstrated. Moreover, we cannot see how the alleged failure gave rise to a significant possibility that it affected the outcome.
4. In respect of particular (v), it was submitted that defence counsel's cross‑examination of A and R 'on key contextual matters' was inadequate. In the case of A, it was submitted that A should have been cross-examined about arguments she had with the appellant about his work hours, remitting money to relatives in Pakistan and not spending enough time with her or her children in 2017, and that these arguments occurred in front of the children. It was said that this was necessary to 'firmly cement evidence before the jury' that C saw the appellant as 'a problematic person'.[95]
5. With respect to R, it was submitted that defence counsel should have cross-examined R about the custodial arrangements that he had with respect to C and her sister and the close relationship that he had with both of his daughters. It is submitted that, had this evidence been before the jury, it 'might infer that [C] was vulnerable to suggestion and potentially lying out of her own anger towards the [a]ppellant as well as feeling that her father would already be on her side because of his own views about the [a]ppellant'.[96]
6. Particular (v) has no merit. Competent counsel may reasonably have taken the view that there was little or nothing to be gained by the lines of cross-examination now suggested on behalf of the appellant with respect to both A and R. Defence counsel may well have made a reasonable forensic choice not to cross-examine A about the arguments she had with the appellant because to do so was of limited relevance and had the potential to cast the appellant in a poor light before the jury. As to the cross-examination of R, we are unable to see how it would have assisted the appellant in the manner contended for on his behalf. In particular, we cannot see a logical link between R's custodial arrangements with respect to C and her sister, and the notion that C was vulnerable to suggestion and potentially lying out of anger towards the appellant. No material irregularity has been demonstrated. Nor could the alleged failures give rise to a significant possibility that this affected the outcome.
7. As to particular (vi), the appellant submitted that defence counsel's short closing address was limited to only two points, being:[97]

(a) that [C] was inconsistent in her account to her father when compared to her account in the VRI, as to the number of offences and the details of it; and

(b) that [C] had reason to lie.

1. It was submitted that it was open to defence counsel to comment on:[98]

(a) the brazenness of the conduct alleged in light of an already conflicted relationship between the appellant and [C];

(b) that count 1 occurred with the bedroom door open meaning anyone could have walked in at any time;

(c) the brazenness of the conduct alleged in count 2 when [C]'s sister was at home and in the morning when she might have been awake;

(d) that [C]'s room was next to her sister's bedroom making the conduct even more brazen;

(e) that the appellant did not say anything to [C] before, during or after the conduct which might be considered strange; and

(f) that [C] had regular uninterrupted weekends alone with her father where she could have told him about what was happening, but did not.

1. The appellant's characterisation of defence counsel's closing address being solely limited to two points is incorrect. We have already summarised the closing address delivered by defence counsel at [35] ‑ [40] above. It is plain from that summary that defence counsel did not limit himself to only two points.
2. The submissions with respect to this particular boil down to the appellant claiming that it would have been open to defence counsel to submit to the jury that the appellant's conduct in respect of C was brazen, that the appellant did not say anything to C 'which might be considered strange', and that C had not complained to her father about the appellant's conduct when she was alone with him during access weekends. Assuming it was open to make these arguments, this does not mean that any or all of them had to be made, nor that the failure to make them amounted to a material irregularity. It is unlikely to have been lost on the jury that the appellant's alleged conduct was brazen. Defence counsel addressed the jury on the issue of C's delay in complaining to anyone about the alleged offences. The appellant's apparent failure to say anything to C before, during or after the alleged conduct is a matter of no real consequence in the context of the issues to be decided by the jury. It is hardly surprising that competent defence counsel would make no mention of it in the closing address. Although short, the content of defence counsel's closing address properly put the defence case.
3. None of the alleged failures give rise to a material irregularity. Even if they did, it has not been demonstrated that these omissions gave rise to a significant possibility that they affected the outcome.

1. In our opinion, all of the alleged omissions were capable of being explained as reasonable forensic choices made by defence counsel. Whether viewed individually or collectively, the appellant has failed to demonstrate that the alleged omissions resulted in a material irregularity in the trial. Further, there is no significant possibility that they affected the outcome.
2. In the end, ground 1 and its particulars reflect no more than that the appellant's defence might have been run differently by another defence counsel. This falls a long way short of establishing a miscarriage of justice.
3. Accordingly, leave to appeal on ground 1 is refused.

Ground 3 - did the appellant suffer a miscarriage of justice because defence counsel was wrongly prevented from pursuing a line of cross‑examination?

1. Ground 3, as particularised, is as follows:[99]
   1. The trial judge prevented defence counsel from pursuing a line of questioning that was permissible at law. This amounted to a serious miscarriage of justice.

1. During cross‑examination of [C] in the trial, counsel for the [a]ppellant asked [C] whether there was an occasion where she had made a complaint about someone at her school who had touched her on [her] breasts.
2. [C's] answer was that [she] could not remember.

1. At that point the trial judge intervened and questioned counsel about his line of questioning and the forensic purpose for it.

1. In exploring that, both counsel and the trial judge operated under the misapprehension that the complainant had answered the question with an equivocal 'No'.
2. That was a mischaracterisation of the answer. On this basis, the trial judge ruled that the line of questioning could not continue as in any event, it would contravene the collateral evidence rule.
3. [C's] answer was that she could not remember such an occasion and counsel should have been permitted to further refresh her memory about the incident and ultimately [put to C] that she had lied about the complaint.
4. Such a lie if accepted by her through further questioning, would have materially affected the jury's assessment of her credibility.

1. By an application in an appeal dated 23 September 2019, the appellant sought leave to adduce, as additional evidence in the appeal, his affidavit sworn 23 September 2019, which annexed the proof of evidence he gave to his lawyer dated 26 June 2019.[100]
2. The appellant stated in the proof of evidence that the appellant and A had been called to C's school by the principal to discuss an incident involving C. The appellant said:[101]
   1. There was another incident where [C] was lying about an incident at school. [The principal] called [A] and arranged a meeting with myself, [A], [the principal] and [C].
   2. [C] had told her mother [A] that a schoolboy had touched her on the breasts. We arranged a meeting at school. Me, A and [the principal]. [The principal] called [C]. [The principal] asked [C] - [C] said, touching boobs - pushed him away. [The principal] said that this was not appropriate and he would investigate. The meeting lasted 15 to 20 minutes.
   3. About a week later, [the principal] called [A] and myself to the school to chat with him. [The principal] said he had spoken to the boy who denied any inappropriate action. The boy said that [C] had hit him in the private parts and he had pushed her away.
   4. When [C] came home from school that day, [A] and I spoke with [C] about what [the principal] had said.
   5. [A] then said we were going to organise to meet with the boy's parents at the school. It was then that [C] said she was sorry and that she had lied about the incident. The meeting was then cancelled.
   6. [A] then told [C] off about lying. She said she was made a fool of - embarrassed. Asked her what was the reason - she said 'I don't know'. [A] made a comment as to why she kept lying to us and embarrassing us in front of [the principal].
3. For convenience, we will refer to what is stated in pars 42 and 45 of the proof of evidence as the 'alleged lie'.
4. By a further application in an appeal filed 10 July 2020, the appellant sought leave to adduce, as additional evidence in the appeal, another affidavit of the appellant, this time sworn 9 July 2020, in which he stated that the contents of the proof of evidence were true and correct.[102]
5. The respondent did not oppose the appellant's application to adduce additional evidence. The court granted leave to adduce the additional evidence at a further appeal hearing on 30 July 2020.
6. In the course of C's cross‑examination, and apparently pursuant to the instructions contained in the proof of evidence, defence counsel sought to cross‑examine C on the alleged lie. Defence counsel asked:[103]

And was there an occasion also where you had made a complaint that someone at your school had touched you on your breasts? Do you remember that?

You can't remember an incident, someone at your school allegedly had touched you on the breast ...

1. Before defence counsel finished his question, the trial judge intervened. Her Honour told the jury to take a break because she needed to speak to the lawyers.[106] After the jury retired and C withdrew from the courtroom, her Honour, in substance, sought to ascertain the nature of the cross‑examination and whether defence counsel was required to obtain leave pursuant to s 36BC of the Evidence Act 1906 (WA) before proceeding further.[107] Section 36BC of the Evidence Act, in substance, requires that the leave of the trial judge be obtained to question a complainant in an alleged sexual offence about her prior sexual experiences. Defence counsel then detailed to her Honour the instructions he had been given in accordance with the paragraphs of the proof of evidence set out above.
2. In response, her Honour said:[108]

Well, you need leave [pursuant to s 36BC of the Evidence Act] to go there.

1. The prosecutor expressed some concern about the proposed line of cross‑examination, including that it sought to adduce hearsay evidence about statements made by the school principal.[109] Her Honour intervened and expressed the view that the proposed evidence was only relevant to the witness's credit and was a collateral issue.[110]
2. The prosecutor took up the point, and said:[111]

Essentially the question's [sic] being asked, is - 'Did you make a complaint that someone touched you on the breast at school?' She said, 'No'. In my respectful submission my learned friend is stuck with that answer.

1. The trial judge accepted the prosecutor's statement. Her Honour said:[112]

All right. Well, in that case I don't propose to continue that.

1. When the jury returned, defence counsel resumed his cross‑examination of C. He did not ask C any questions concerning the alleged lie.

1. The appellant's submissions in support of ground 3 are effectively encapsulated in the particulars to the ground. In essence, the appellant's complaint is that her Honour erroneously prevented defence counsel from pursuing a line of cross‑examination relevant to the issue of C's credibility. The appellant submitted that, while the question of whether C had told the alleged lie went only to C's credibility, such that if C had unequivocally denied that she lied defence counsel would have been bound by C's answer by reason of the collateral evidence rule, C did not in fact unequivocally deny that she had lied. C's answer 'No' was equivocal. It may have been a denial that she had made the complaint that she had been touched on the breast while at school, or, in effect, a statement that she could not recall making the complaint. As C's answer was equivocal, defence counsel was entitled to continue with his cross‑examination of C on the matter. In the end, he was prevented from doing so by her Honour's ruling. The appellant submitted that he suffered a miscarriage of justice by reason of her Honour's ruling, as if C had accepted the proposition that she had lied about the allegation that she had been touched on the breast, that would have materially affected the jury's assessment of her credibility.

1. The respondent accepted that the effect of defence counsel's question was to produce ambiguity as to whether C positively denied that she had complained, or whether she simply did not remember it. The respondent further accepted that the prosecutor's characterisation of the question in her submission to the trial judge set out at [87] above overlooked this ambiguity by omitting the element of defence counsel's question, 'Do you remember that?'.
2. The respondent submitted that the trial judge did not prevent defence counsel from pursuing the line of questioning. Rather, defence counsel's statement, 'All right. Well, in that case I don't propose to continue that' should be understood as an indication that he did not intend to continue the line of questioning. Such an approach, the respondent argued, was a reasonable forensic choice for defence counsel to make. Accordingly, the appellant has not suffered a miscarriage of justice. Specifically, defence counsel might reasonably have thought that the possibility that he would be bound by C's answer tipped the scales of any forensic advantage to the line of questioning against the appellant.[114]
3. The respondent accepted that if, contrary to its submission, the appellant demonstrated that defence counsel had been prevented from cross‑examining C about the alleged lie, he would have suffered a miscarriage of justice even though there was no evidence before the court of whether C would have admitted that she lied or had no recollection of the relevant incident.[115]
4. The respondent submitted that, if the trial judge had erroneously prevented defence counsel from pursuing the line of questioning, this court should apply the proviso pursuant to s 30(4) of the Criminal Appeals Act 2004 (WA), because her Honour's error did not give rise to any substantial miscarriage of justice. The respondent submitted that the question sought to be asked by defence counsel could not have affected the jury's assessment of C's credibility.
5. The respondent did not seek to adduce to this court additional evidence from C in respect of the alleged lie. Counsel for the respondent advised the court that this was a deliberate choice on its part.[116]

1. It is common ground that the question of whether C had told the alleged lie, although not directly related to the question of whether the appellant touched C in the manner she alleged, was relevant to C's credibility.[117] Moreover, in all the circumstances, we cannot accept the respondent's submission that the alleged lie, if admitted, could not have affected the jury's assessment of C's credibility. If C had admitted that she had falsely accused a fellow student of touching her breast at school, that would potentially have adversely and significantly affected C's credibility generally.
2. It is also common ground that if C had unequivocally denied telling the alleged lie, by reason of the collateral evidence rule, defence counsel would have been bound by her answer. That is, he would not have been permitted to adduce evidence from A, or anyone else, to contradict C's answer.
3. The collateral evidence rule states that an answer given by a witness to a question in cross‑examination relating to a collateral issue is final, and may not be contradicted or rebutted by other evidence.[118] The rule is subject to a number of exceptions, none of which are presently relevant.[119]
4. We do not accept the respondent's submission that defence counsel was not prevented from cross‑examining C about the alleged lie. Defence counsel had made submissions explaining the evidence he hoped to adduce and why he should be allowed to do so. The trial judge heard from the prosecutor as to whether the questioning should be allowed. Her Honour stated 'Yes. That's the end of it. I agree', in response to the prosecutor's submission that defence counsel was 'stuck' with C's answer. In our view, this was an unequivocal ruling that defence counsel's proposed line of cross‑examination would not be permitted. In our opinion, defence counsel's response to her Honour's ruling was no more than an acknowledgement of the ruling that he was unable to pursue the matter of the alleged lie in his cross‑examination of C.
5. It appears that her Honour formed the view that C had unequivocally denied that the incident occurred, and that the collateral evidence rule precluded defence counsel from further cross‑examination of C on the incident and the alleged lie. In our view, that conclusion was erroneous.
6. Unfortunately, the prosecutor misquoted defence counsel's question of C in relation to the alleged incident. The prosecutor understood C to have denied that the incident took place. Her Honour accepted the accuracy of the prosecutor's statement of C's evidence. Consequently, her Honour did not appreciate that C's answer 'No' was ambiguous, as the State now accepts. The answer 'No' was not an unequivocal denial of the incident or the alleged lie.
7. Without further cross‑examination by defence counsel, it was unclear whether C had denied that the incident occurred, and that if it had occurred, that she had lied about it, or that she had no recollection of it. If C's statement meant that she had no recollection of the incident or of telling the lie, defence counsel would have been entitled to question her in order to remind her of the relevant circumstances. In other words, it was premature for her Honour to have invoked the collateral evidence rule.
8. The respondent did not argue that, in order for the appellant to demonstrate a miscarriage of justice, it was necessary that C had in fact made the alleged false accusation, or had no recollection of doing so. Indeed, in supplementary written submissions the respondent accepted that one of the possible outcomes of this line of questioning was that the complainant would admit to having previously falsely accused a fellow student of touching her on the breasts at school.[120] In all the circumstances (including those mentioned at [109] below) the respondent was correct to accept, as recorded at [94] above, that the appellant would have suffered a miscarriage of justice if it was demonstrated that defence counsel had been prevented from cross‑examining C about the alleged lie.
9. In our opinion, the appellant has suffered a miscarriage of justice. The miscarriage of justice arises because the appellant was erroneously prevented from pursuing a line of cross‑examination of C, which had the potential to significantly undermine C's credibility in circumstances where C's credibility was crucial to the prosecution's case against the appellant.
10. The trial judge did not ultimately rule on the issue of whether the anticipated line of cross‑examination contravened s 36BC of the Evidence Act. In our view, s 36BC of the Evidence Act did not prevent defence counsel from cross‑examining C as to whether she had made a false accusation that she had been touched on the breast. This is because a false allegation of sexual experience is not a sexual experience for the purpose of the section.[121]
11. For these reasons, the allegation in ground 3 has been made out.
12. We now turn to a consideration of the proviso, pursuant to s 30(4) of the Criminal Appeals Act, which reads:

Despite subsection (3), even if a ground of appeal might be decided in favour of the offender, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

1. The State bears the onus of demonstrating that no substantial miscarriage of justice has occurred. While it may have been open to the respondent to adduce additional evidence from C as to the alleged lie, it decided not to do so. Nor did the respondent seek to cross‑examine the appellant on his evidence verifying his statement that C admitted telling the alleged lie. In the circumstances, this court ought to proceed on the basis that there is unchallenged evidence of C admitting telling the alleged lie and thus at least a plausible contention worthy of investigation as to whether C told, or said that she told, the alleged lie.
2. The respondent submitted that the trial judge's refusal to allow defence counsel to cross‑examine C in respect of the alleged lie could not have affected the jury's assessment of C's credibility. In essence, the respondent submitted that if C had told the alleged lie, it was a lie told in respect of a trivial matter, quite unlike the allegations she made against the appellant.
3. As a result of the miscarriage of justice, the appellant was deprived of the opportunity of putting to C that she had admitted telling a lie in relation to a false accusation of sexual offending. How a jury may have reacted to this, if admitted, is unknown, but it cannot be said that a lie about such a matter was of no potential consequence to the jury's assessment of C's credibility. It would have been open to a jury to have concluded that the alleged lie adversely and significantly affected their assessment of C's credibility generally. As we have said, her Honour's decision deprived the appellant of potentially important evidence relating to C's credibility, in circumstances where C's credibility was the crucial question for the jury to decide. In these circumstances, the possibility that the appellant has been denied a chance of acquittal which was fairly open to him cannot be excluded beyond reasonable doubt: Filippou v The Queen.[122] We are not satisfied that no substantial miscarriage of justice has occurred. We would not apply the proviso in s 30(4) of the Criminal Appeals Act.

1. We would allow the appeal on ground 3, but not on ground 1. We would order a new trial in respect of the three counts in the indictment. The orders that we would make are as follows:
   1. Leave to appeal is refused on ground 1.
   2. Leave to appeal is granted on ground 3.
   3. The appeal is allowed.
   4. The convictions entered on 2 July 2019 are set aside.
   5. There should be a retrial in respect of all counts in indictment 2076 of 2018.

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

Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza

[7] Appellant's supplementary ground of appeal, filed 2 June 2020.

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

[75] Appellant's affidavit 23 September 2019, attachment SSS1, WAB 8 - 16.

[76] Order 1 November 2019, Mazza JA, WAB 4.

[77] Huggins v The State of Western Australia [2018] WASCA 61 [375] ‑ [382].

[78] RMM v The State of Western Australia [2018] WASCA 183 [161].

[79] Jeffery v The State of Western Australia [2018] WASCA 219 [172].

[91] Appellant's submissions, par 39, citing Browne v Dunn (1893) 6 R 67 HL; WAB 31.

[92] Appellant's submissions, par 40; WAB 31.

[93] NCH v The State of Western Australia [2013] WASCA 29 [99] - [105].

[94] Appellant's submissions, par 40; WAB 31.

[95] Appellant's submissions, pars 42, 45; WAB 32.

[96] Appellant's submissions, pars 48, 50; WAB 33 - 34.

[97] Appellant's submissions, par 54; WAB 34.

[98] Appellant's submissions, par 55; WAB 34 - 35.

[99] Appellant's supplementary ground of appeal, filed 2 June 2020.

[102] Appellant's affidavit dated 9 July 2020, par 3.

[114] Respondent's supplementary written submissions, par 18.

[117] Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196 [38].

[118] HCP v The State of Western Australia [2019] WASCA 38 [47].

[119] See HCP [47]; Liu v The State of Western Australia [2012] WASCA 218 [50] - [53].

[120] Respondent's supplementary submissions dated 16 June 2020 par 11(c).

[121] See HAR v The State of Western Australia [2015] WASCA 249; (2015) 49 WAR 266 [150]; Bolton v The State of Western Australia [2007] WASCA 277; (2007) 180 A Crim R 191 [36].

[122] Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [15].