Appeal - Criminal law and procedure - Appellant convicted of five sexual offences against children - Appeal against conviction - Whether prior statements by complainants evidence of facts asserted in them - Particulars - Offences allegedly committed between specified dates - Whether to be strictly proved - Evidence of alibi on particular date - Prosecution address to jury - Whether posing question whether complainants had motive to lie - Rule in Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 - Whether verdicts unsatisfactory and cannot be supported by the evidence - Whether trial Judge failed to adequately or correctly direct jury on matters of fact

Evidence Act 1906 (WA), s 21, s 22

Attorney-General's Reference (No 3 of 1979) (1979) 69 Cr App Rep 411

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

Gillespie v Steer (1973) 6 SASR 200

Harman v The State of Western Australia [2004] WASCA 230; (2004) 29 WAR 380

Hetherington v Brooks [1963] SASR 321

Houston (1982) 8 A Crim R 392

Kostaras (2002) 133 A Crim R 399

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606

Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1

R v Daren & Tange [1971] 2 NSWLR 423

R v Dean [1932] NZLR 753

R v Dossi (1918) 13 Cr App Rep 158

R v E (1996) 39 NSWLR 450

R v Hewitt [1998] 4 VR 862

R v Jovanovic (1997) 42 NSWLR 520

R v MacDonald (1995) 65 SASR 322

R v Pfitzner (1976) 15 SASR 171

R v Smith [2000] NSWCCA 468

R v T [1999] QCA 376

R v Uhrig, unreported; CCA SCt of NSW; No 60200 of 1996; 24 October 1996

Rodd v The Queen [2000] WASCA 329

Sams (1990) 46 A Crim R 468

Stateliner Pty Ltd v Legal and General Assurance Society Ltd (1981) 29 SASR 16

Urbano (1983) 9 A Crim R 170

Wentworth v Rogers (No 10) (1987) 8 NSWLR 398

Wright v Nicholson [1970] 1 WLR 142

Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521

Ferry v The Queen [2003] WASCA 207

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

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

Page v Butcher [1957] SASR 165

R v Jacobs [1993] 2 Qd R 541

R v Kostaras (No 2) [2003] SASC 323; (2003) 86 SASR 541

R v Kringle [1953] Tas SR 52

Swan (1987) 27 A Crim R 289

Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657

Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365

1 MARTIN CJ: I have read the reasons for decision given by Roberts-Smith J. I agree that the appeal must be dismissed for the reasons which he gives.

2 ROBERTS-SMITH JA: This is an appeal against conviction.

3 By an indictment dated 31 January 2003 the appellant was charged with five offences. They were that:

(1) On a date unknown between 30 October 2001 and 21 December 2001 he encouraged JW, a child under the age of 13 years, to do an indecent act, namely to insert his penis into an exhaust pipe, contrary to s 320(5) of the Criminal Code (WA).

(2) On the same date and at the same place he sexually penetrated "JW", a child under the age of 13 years, by introducing his penis into JW's mouth, contrary to s 320(2) of the Code.

(3) On the same date and at the same place he sexually penetrated "RW", a child under the age of 13 years, by introducing his penis into RW's mouth (s 320(2) of the Code).

(4) On the same date and at the same place he sexually penetrated JW, a child under the age of 13 years, by penetrating JW's anus with his penis (s 320(2) of the Code).

(5) On the same date and at the same place he indecently dealt with RW, a child under the age of 13 years, by putting his penis between RW's buttocks (s 320(4) of the Code).

5 He was tried before Macknay DCJ and a jury in the District Court at Geraldton between 16 and 18 August 2005. The jury returned verdicts of guilty on all counts.

6 The evidence of the two child complainants and another child witness was pre-recorded on video, although due to difficulties with the tape the pre-recording of JW's evidence was not played at trial and he had to give his evidence afresh.

7 The appellant filed an appeal notice dated 7 October 2005. That contained five draft grounds of appeal. On 14 December 2005 I gave

leave to appeal on all five grounds. At the hearing of the appeal on 9 June 2006 counsel for the appellant, Mr Giudice, applied for leave to add a further ground. That application was opposed by the respondent. We indicated we would hear argument on that ground and decide whether or not to give leave to add it and to repeal in respect of it, in the course of our deliberations. We told counsel for the respondent, Ms Forrester, that she could submit written submissions in respect of that ground later if she wished. In the event, she presented oral submissions and said they would be sufficient.

"1. The learned trial judge, his Honour Judge Macknay QC, erred in law in directing the jury that an assertion of fact by a witness in an out of court statement is a prior inconsistent statement, and therefore only evidence going to reliability, and not evidence of fact so asserted where the witness has no recollection in court of those facts, but is not asserting facts contrary to the facts asserted in the statement, having regard to the circumstances of the present case.

2. His Honour erred in law in describing the dates in the indictment between which the offences were alleged to have occurred as not being an element which must be proved beyond reasonable doubt and describing them as particulars.

3. His Honour erred in dealing with the invitation by the prosecutor as to whether the complainants had a motive to lie, by making a general direction to the jury on the issue without specifically referring to the impermissible invitation, describing it as such, and rectifying it's effects.

4. The verdicts are unsatisfactory and cannot be supported by the evidence because:

5. Even if Grounds 1-3 above are not made out, the verdicts remain unsatisfactory and not supportable.

6. His Honour erred in fact and law in:

(a) Informing the juries [sic] that J's evidence was that the events occurred possibly after Christmas but about 6 months before the letter surfaced and R's evidence that he was in grade 4 (ABG 295) because:

(i) J's evidence was not to this effect; and

(ii) R's evidence was that he was not sure and that he told the police in July 2002 that it was 'last year before the school holidays after October;'

(b) Failing to adequately answer the jury's request for transcripts and J's description of the couch (ABG 321)."

9 To understand the grounds of appeal it is first necessary to outline the evidence in the case.

10 The first complainant was 13 years old at the time of trial but 11 years old when his evidence was pre-recorded in July 2003. At the date of the events out of which the charges arose he was 9 years old and living with his family in Geraldton. He lived with his mother and father and his two siblings. They were a brother "A", who was three years older than him and a sister "B", who was four years younger than the complainant.

11 JW had a friend, RW, who was the other complainant. He is a year younger than JW and so at the relevant time was 8 years old. At the time, they lived in the same street.

12 Sometime prior to 30 October 2001 the appellant and his family came to live in the same street. He is six years older than JW and seven years older than RW. At the relevant time he was about 14 or 15 years old.

13 The boys met soon after the appellant's family moved into the street. They became friends. They all went skateboarding, swimming, and riding their bikes together. On occasion, they would go to the appellant's house, either to swim in the swimming pool, or to play with his Sony Playstation in the shed.

14 The shed was to the left of and behind the house. It had two roller doors, with two rooms inside, separated by a wall. There was a couple of holes in the wall. The rooms could be accessed by the right roller door. Although the left door did open, it was the right one that was usually used. The left side was more of a storage area. It contained motorbikes, scuba equipment, crates and other stored items.

15 The Playstation was in the right room of the shed. That was described as the games room. This room had a window on the right looking out into a garden area. There was a window next to the entry door. The room contained a television, a couch, the Playstation and some trophies.

16 According to JW, he and RW went to the appellant's house to play the Playstation with the appellant. In opening the State prosecutor said this was "one day in late 2001". The game they played was for two players.

17 While they were playing, the appellant stopped the game and asked "Do you want to do some sick dares?". Initially, neither complainant agreed. The appellant described the game to some extent, but they were not sure what the dares were at that point. They kept saying no. He kept insisting. They did not want to do the dares and told him so. They did not leave because he was "... a lot bigger than us and we just didn't want to get bashed or something" (GAB 114).

18 The appellant turned the Playstation on again. One of the complainants had to play him. Whoever lost would have to do a dare. According to JW, the appellant always won because he owned the game.

19 JW played first and lost the game. The appellant told him he had to do a dare. The complainants kept objecting but the appellant said he had to do it. JW then complied because A was a lot bigger and "... he would have made us do it" (GAB 115). The dare was for JW to stick his penis in a hole in the wall. But that was too high for him, so the appellant made him go into the next room where there was a motorbike and stick his penis in the exhaust pipe, while the other two watched. That was the first count. They then returned to the room with the Play Station. RW played against the appellant. He lost. JW was unable to recall what RW had to do as a dare and RW's evidence was that he had trouble remembering the order in which he had to do the dares. However, JW then had to play another game, which he again lost. The appellant made him lean over the couch with his pants around his knees. The appellant stood behind JW and partly penetrated his anus with his penis. That lasted a few seconds. JW said it hurt. That was count 4. JW then pulled his pants up and sat back on the couch while RW played against the appellant. RW lost again. He had to do the same thing. On that occasion the appellant did not insert his penis into RW's anus, but simply rubbed it between his buttocks. RW wriggled away after a few seconds. That was count 5.

20 JW then had to play another game. The appellant made up a dare "... [f]or us to suck his doodle" (GAB 119). Both complainants said "No way", but the appellant told them they had to do it. He walked behind JW to the left room of the shed while JW was still objecting.

21 The roller doors of the shed were closed and the appellant had put some mattresses over the windows before they started playing, but there was still some light coming through the windows.

22 The appellant sat on a crate and pulled his pants down. He made JW kneel in front of him. He had his hand behind JW's head, although he was not touching him. The appellant's penis was hard. JW sucked it for a couple of seconds and then stopped. He quickly stood up and walked back to the other room with the appellant behind him. That was count 2.

23 RW then played the appellant again. He lost, and had to do the same thing (that was count 3). After that, the two complainants made up an excuse that it was lunchtime, and left "... [b]ecause we were just sick of it" (GAB 123). They each went home.

24 Later that day the appellant came around to JW's house and the three of them went out to play in the bush. The complainants did not discuss what had happened and did not tell anyone. JW said that it was because he "... didn't want to feel stupid and that" (GAB 127). However, about six months later, in July 2002, (according to the prosecution opening) the two complainants together wrote a letter telling the appellant's parents that the appellant was molesting the children from the street. JW's older brother A came in while they were doing this. Being 9 and 10, their writing was messy and their spelling was poor, so A rewrote it for them.

25 The two complainants put the note through a slit in the appellant's fence. It was later found by his parents. The next day, they went to JW's home and talked about it with his parents. JW's parents subsequently contacted the police.

Ground 1 - Prior out of court statement not proof of fact

26 The appellant's argument on this is briefly as follows.

27 JW made a statement to police on 27 July 2002 in which he said the offences occurred "In December, before the school holidays and on a Saturday" when there was a couch in the shed. The statement was in the prosecution brief served on the appellant's lawyers. The uncontested evidence at trial was that the couch had been purchased by the appellant's mother on Sunday, 9 December 2001. The evidence of the appellant's mother, given by reference to her calendar for that year, was that the school holidays started on Thursday, 20 December 2001. Between 9 and 20 December 2001 there was only one Saturday. That was 15 December. None of this evidence was challenged. The appellant's mother testified that on 15 December the appellant was with her and the family in Perth having a Christmas tea with her parents. They had arrived there from Geraldton late in the afternoon. She said the drive took about 41/2 to 5 hours.

28 Notwithstanding the indictment alleged the offences had been committed on a date unknown between 30 October and 21 December 2001, from JW's police statement the appellant's lawyers took the position to be that it could only have occurred on Saturday, 15 December 2001.

29 In his evidence-in-chief on the pre-recording of his evidence on 28 July 2003, JW was not initially asked when the offences occurred. He said simply that it was sometime after the appellant's family moved into the street. Later, after he had recounted the events, albeit saying he was not sure about the order in which they had to do the dares, the State prosecutor returned to the question of time (GAB 18):

"[JW], you're just told us about all these things?---Mm.

Now, when did they happen? When did this happen?---I'm not sure about that one.

All right. Well, let's break it down. Do you know what grade you were in when it happened?---Year 5, yeah, it was year 5.

Year 5. Do you remember if you were going to school?---I think I was going to school.

Okay. As in it was school term time, not holiday time?---Yeah.

Do you know if it was near any major event, you know - I don't know, Christmas, your birthday - - -?---It might've been near Christmas.

Okay. Near Christmas?---I'd probably say so.

Yeah. In school time?---Yeah.

Okay. Do you know if it was before or after Christmas?---Before Christmas.

Before Christmas. Do you remember - I think the grade you said you were in, you said it was grade 5?---Yep.

Well, you told the police about this, didn't you?---Yep.

You did that when?---A fair while ago.

Okay. Was that last year?---It might've been.

All right. So it was last year you told the police?---If I can remember rightly, yep.

So when you told the police it was the Christmas before you told them - near the Christmas before you told them?---I think so. I can't remember."

30 He was then shown photographs of the exterior and interior of the shed. He identified a blue and while floral patterned couch seen there as the couch he had been talking about.

31 Later, he was asked whether some time later, in July 2002, they had written the letter to the appellant's parents. He agreed they had. The State prosecutor then put (GAB 24):

"... just so that I'm really clear, that all happened in July last year?---Yeah.

And I think you said the things that [the appellant] did to you happened you are pretty sure in the Christmas before?---Yes (indistinct)"

32 The point was raised in cross-examination (at GAB 33):

"Now, I think you said it was before Christmas?---Yeah.

Okay. And was it during school - the school year or on holidays?---I think it was probably school time.

Right. And it was before Christmas. Was it in December, before the school holidays, on a Saturday?---Yeah.

Mm?---Yes.

Okay. And it was in the year 2001. Is that right?---I'm not sure. I don't think it was 2001.

Anyway - - -?---It might've been.

It might have been. Okay. So it was in December before the school holidays, on a Saturday. Is that what you told the police?---Probably.

And I think you said that you knew it was a Saturday because you got home from spending the night at your nanna's?---Yeah, yeah (indistinct).

Mm?---Yep.

Yeah. And you know it was a Saturday because you'd just got home from spending the night at your nanna's. Isn't that right?---Yep.

And you told the police it was in December before the school holidays, on a Saturday?---Yep."

33 The evidence of RW was pre-recorded on 29 July 2003. In his evidence-in-chief he also identified the blue and white couch shown in the photos as the one that was there when they used to visit. Again, initially this complainant was asked only whether something happened with the appellant in the games room; he was not asked when, until the conclusion of his evidence-in-chief (GAB 69 - 70):

"All right. Now, after that letter, did you tell any grown ups?---Yes.

Okay. Who did you tell?---[S], my mum and my dad.

Okay. Who's [S]?---[JW's] dad.

All right. And then after you told the grown ups, did - is it some short time after that that you went to the police?---Yes.

And you went to the police around 27 July last year. That's right, isn't it?---Yep.

Okay. So when did these things happen, compared - if you went to the police in July last year, when did these things that you've just told me about happen?---I'm not sure.

All right. Well, how about we approach it this way: do you know if you were going to school? Was it school time or holiday time?---I think it was school time.

All right. So you were still going to school. Do you know what grade you were in?---4.

Grade 4. All right. Do you know if it was near anything, like near any - Christmas or Easter or a birthday or anything like that?---I'm not sure.

You're not sure. All right. Now, you're in grade 5 now?---Yes.

Right. And you were in grade 4 last year?---Yep.

And you went to the police last year?---Yes.

So it happened before you went to the police, while you were in grade 4?---Yes.

And you've told us your birthday is on 5 January, okay. Do you know if it was before or after your birthday last year?---After.

After your birthday?---Yep."

34 Counsel for the appellant took up the point immediately in his cross-examination (GAB 70 - 71):

"So you're 10 and a half years old now, [RW]?---10.

You'll be 11 in January next year?---Yeah.

And you told the prosecutor that you're in grade - year 5 now?---Yes.

Last year you were in year 4?---Yes.

And the year before in year 3, were you?---Yes.

And you say that these incidents took place after your birthday last year?---Yes.

So when you were in grade 4?---Yes.

You're sure about that?---Yes.

Right. You told the police - you made a statement to the police, didn't you?---Yes.

And you signed it?---Yes.

You told the police in paragraph 5 that it was in 2001. Now, in 2001 you would've been in year 3?---It was in 2002.

All right. You made a statement in July last year, 2002?---Yes."

35 The State prosecutor took it up again in re-examination (GAB 92):

"... do you remember you were asked some questions right back at the beginning when the other lawyer was asking you questions about something that was in your statement, he asked you about this paragraph in your statement that says, 'Some time last year, I don't know the exact date but I know that it was before December school holidays and after my brother's birthday in October, I went to [the appellant's] place,' and you were asked whether that was right. Could it be right, that's when these things happened? Could that be right what you said?---I'm not really sure."

36 When JW gave evidence at trial, the State prosecutor prefaced her questions about the events by saying she wanted to take him "... to a particular day at the end of 2001". He described the offences as having occurred in the same order as he had done at the pre-recording. He again identified the couch shown in the photographs (exhibit 1). In cross-examination he was asked whether the incident happened in the daytime or night time. He said the daytime. When asked if it was in the afternoon, he said he could not remember, but then said (GAB 141):

And a little later said it did happen before lunch.

37 Some time later, when asked when it happened, he said he was not sure what the dates were. The cross-examination continued (GAB 145 -146):

"It was before school holidays, was it? Do you say that it was in December before school holidays?---It could have been. I don't know the time - the dates and the times.

Do you know what day of the week it was?---No.

Did the police ask you when it was that this occurred?---Yeah, I think they did.

...

Did you tell the police officer that it was in December before the school holidays on a Saturday?---I must have.

Did you tell the police officer, 'I know it was a Saturday because I just got home from spending the night at my nanna's'?---Well, then it must have been Saturday then."

38 This part of the cross-examination concluded (GAB 148 - 149):

"... by the way, when you wrote this note about six months later and a couple of days before going to the police you - -

MACKNAY DCJ: I'm not sure that the witness agrees with that in terms of the two days.

GIUDICE, MR: Yes.

[JW], you have read paragraph 101 of the statement which you made to the police saying, 'Two days ago I wrote a letter.' What letter are you talking about there?---The letter that we were doing.

If it says that in your statement, do you accept that must be right, that it was two days before you spoke to the police?

FORRESTER, MS: I don't know how the witness can answer that question.

MACKNAY DCJ: I don't think that would - that wouldn't get it in anyway, would it - - -

GIUDICE, MR: All right. I will ask it another way.

MACKNAY DCJ: - - - if you are trying to make it evidence of the fact.

GIUDICE, MR: Do you have any reason to doubt that in paragraph 101, that it was two - - -

MACKNAY DCJ: That doesn't make it a fact either. I think if the witness says he can't remember it, that's the status of it. It's simply something previously said, but you can ask the question. It doesn't turn into evidence of the fact.

FORRESTER, MS: No.

GIUDICE, MR: let me ask you this question: now that you have read paragraph 101 - - -?---Yep.

- - - and you told the police that it was two days before that you wrote this letter - - -?---Mm'hm.

- - - does that jog your memory?---About what?

About whether you wrote the letter just a couple of days before speaking to the police?---Not really but if I wrote it in there, then I'm not quite sure - it probably is right but I can't remember the dates and the days and that."

39 In his directions to the jury, the trial Judge told them (GAB 287 -288):

"Statements made out of court, members of the jury, can take a variety of forms. They can involve things that people say in the course of doing something or when something is being done. They can involve things written down by themselves. They can involve formal statements given to police officers. There are different rules for what a witness says and what an accused person says in relation to what is said outside court.

What an accused person says at any time can be looked at as an assertion of fact made by him or her as an assertion of belief or opinion or statement of mind, whether it's made from the witness box or out of the witness box. What people other than the accused say, people I call witnesses, outside the witness box is not an assertion of fact for the purposes of a trial. In other words, in a trial if a witness goes into the witness box and says, 'I saw Bob kick the dog on that night,' if the witness says that from the witness box, then that's an assertion of fact. That's before you as evidence which if you accept it would be evidence that the dog was kicked on that particular night.

If a witness says in a statement to police, 'I saw Bob kick the dog on that night,' and the witness then goes into the witness box and says, 'I don't remember what happened on that night,' even though the witness is shown the statement and says, 'Yes, I remember saying that to the police but I don't remember,' then you would have before you something the witness said on a prior occasion which was to contrary effect.

That might or might not have some relevance when you came to consider the reliability of what you are being told in court. Obviously it would depend on all of the circumstances of the original event, the circumstances in which the statement was made, the manner of giving evidence now. There would be a whole host of circumstances of course that you would need to look at in a particular case before, at the end of the day, you decided whether or not your view of what you were being told from the witness box was affected by the prior inconsistent statement, but you are permitted to hear what was said on the former occasion because obviously that's something that is potentially relevant in any case.

If somebody says A one day, we want to hear if they said B on a former day. It's something as a matter of commonsense we think we want to take on board and ponder, but it's not evidence of the fact. If the witness adopts it in the witness box, then of course it becomes part of the witness's evidence given in court but otherwise it's before you to that limited extent as material which you can consider, if you think it's relevant."

40 In his submission before us, Mr Giudice said no notice was given to the defence that JW's evidence would vary in any way from his statement and his pre-recorded testimony given 28 July 2003, despite a request by the appellant's solicitors and advice from the State prosecutor that they would be notified of any change upon proofing JW.

41 Neither JW's police statement nor his pre-recorded evidence fell into the category of a contemporaneous note or statement made by a witness which may be used to refresh the witness's memory (Hetherington v Brooks [1963] SASR 321). In this context, "contemporaneous" means made whilst the facts were still fresh in the witness's memory (Attorney-General's Reference (No 3 of 1979) (1979) 69 Cr App Rep 411).

42 The police statement or the pre-recorded evidence could only have been put to the witness in cross-examination on the basis it was, in either instance, a prior statement inconsistent with the evidence the witness was giving at the trial. That situation is regulated by s 21 of the Evidence Act 1906 (WA). That section provides that every witness under cross-examination may be asked whether they have made any former statement relative to the subject matter of the proceeding, and inconsistent with their present testimony, the circumstances of the statement being referred to sufficiently to designate the particular occasion, and if the witness does not distinctly admit that they made such a statement, proof may be given that they did in fact make it.

43 It seems to be a common practice for cross-examining counsel to put to a witness that they have said some particular thing in a previous out-of-court statement and have them confirm they did say it and that it was true. This is commonly done without any attempt to first simply ask the witness about the fact, much less on the basis of some inconsistency between the answers the witness gives in court and what they have said previously. The process is designed to elicit evidence which is consistent with a statement previously given by the witness. To cross-examine in that way is neither appropriate nor permissible. The witness should be asked about the facts and only if there is an apparent inconsistency can a prior statement be put. That is the extent of the procedure permitted under s 21 and s 22 of the Evidence Act; the procedure becomes available only where there is an alleged inconsistency, and only for the purpose of impugning the credibility or reliability of the witness's evidence.

44 Here the appellant accepts that "as a rule" a prior inconsistent statement is only evidence going to the credibility of the witness and is not direct evidence of the fact asserted in the prior inconsistent statement. That is in accordance with authority (R v Daren & Tange [1971] 2 NSWLR 423, 429 - 430; Urbano (1983) 9 A Crim R 170; Sams (1990) 46 A Crim R 468).

45 However, the appellant then submits that where a witness does not recall making a prior statement and does not recall all of the facts asserted in that statement, the prior statement may be put to the witness to assist the witness's recollection and/or pursuant to a proposition that there is no reason to doubt that what was in the statement is true, which if accepted by the witnesses should allow the jury to find that:

(a) The witness asserted the facts in a prior statement.

(b) The witness is now unsure of the facts asserted in the prior statement.

(c) The witness has no reason to believe that the asserted facts in the statement would not be accurate.

(d) The prosecution has called no evidence contrary to the facts asserted in the prior statement.

(e) The facts asserted in the statement are the witness's evidence for the purpose of the trial.

46 No authority is cited. The submission needs to be deconstructed.

47 Section 21 does not require that the witness deny making the prior statement, before recourse can be had to it. All this section requires is that the witness does not admit making the statement. Thus, it would be sufficient for the witness to say he or she could not remember making it. If the witness claims at trial not to recall what had occurred, their previous statement giving details of the events may amount to a prior inconsistent statement (Houston (1982) 8 A Crim R 392; Wentworth v Rogers (No 10) (1987) 8 NSWLR 398).

48 I have already observed that the statement by JW here is not said to fall into that category of a record made whilst the events were still fresh in the mind of the witness and which he could assert was a true and correct record of the facts (as in Gillespie v Steer (1973) 6 SASR 200). The rationale by which the law allows evidence of that kind to be relied upon as evidence of the facts is the testimony of the witness that although he or she has no current recollection of the facts, the record was made at a time when they were fresh in the witness's memory and the record was an accurate record and therefore what was noted was true.

49 Here, in the premises the witness is unsure of the facts set out in his earlier statement and has "no reason to believe" the facts so asserted "would not be accurate". That is a long way from an assertion that the facts were fresh in his mind when he made the statement and that they were true. This is particularly so when regard is had to the evidence actually given by JW. On this issue it consistently revealed uncertainty, hesitation and even confusion.

50 When reminded that he had told the State prosecutor in evidence-in-chief (when she put it to him in those terms) that the incident had happened late in the year, his response was that he was not quite sure what the dates were. He said "It could have been" in December before the school holidays and he did not know what day of the week it was. When asked if he had told the police officers it was in December before the school holidays, on a Saturday, his answer was "I must have" and when asked if he said it was a Saturday because he had just got home from spending the night at his grandmother's, he responded: "Well, then it must have been Saturday then". Thereafter, he was referred to his statement. That had been made probably about six months after the events. It is not suggested that was "contemporaneous" in the relevant sense. When asked whether what was in his statement jogged his memory about whether he wrote the letter just a couple of days before speaking to the police, he said "Not really but if I wrote it in there, then I'm not quite sure - it probably is right, but I can't remember the dates and days and that" (GAB 149). He was then asked what his memory was like when he spoke to the police officer, and he said "A bit better than it is now".

51 At no point was JW asked specifically whether what was in his statement was true (although he did agree he had been told it was important that it had to be).

52 The submission finally put on this is that the jury was entitled to accept that the effect of JW's evidence was that the offences occurred on a Saturday in December 2001 before the school holidays, and that evidence, in combination with other evidence, namely the presence of the couch which was purchased on 9 December 2001, meant that the offences could only have occurred on Saturday, 15 December 2001, a date for which the appellant was said to have an alibi.

53 In a final analysis, it was necessary for the jury to make their own assessment of JW's testimony, and in particular, whether he was asserting or agreeing that the incident did in fact happen on a Saturday in December 2001, before the school holidays, or whether he was saying that he could not recall when it happened and was uncertain about it. Part of that question was whether he was agreeing in the witness box, as a result of what was in his statement to police, that the events did happen then - that is, whether he adopted as true what he had said in his statement about that (Stateliner Pty Ltd v Legal and General Assurance Society Ltd (1981) 29 SASR 16, 51). Those were questions for the jury. The trial Judge expressly left them to the jury. He told them that if a witness adopted the content of their prior statement in court it became part of the witness's evidence upon which they could act, but otherwise a prior inconsistent statement could only be used by them in considering the reliability of the witness's testimony. Those directions were correct and appropriate to the circumstances of the case.

55 The critical evidentiary point which counsel for the appellant was seeking to establish was that the offences could only have happened on Saturday, 15 December 2001, the day for which the defence contended he had an alibi because he was in Perth with his family.

56 To understand this, it is necessary to refer to the course of the proceedings in more detail.

57 It appears that by letter dated 13 August 2004 (that being the Friday before trial which was scheduled to start on Monday, 16 August 2004) and sent by facsimile, Mr Giudice wrote to the DPP forwarding a document headed "Notice of Alibi". The substance of that notice was as follows:

"1. The evidence of the complainant [JW] is that the alleged offences occurred on a Saturday prior to the December school holidays in 2001;

2. The complainant says that the couch depicted in Exhibit B, and, we believe, exhibit C, tendered on 28 July 2003, was in the gamesroom when the alleged offences occurred;

3. The school holidays commenced on Thursday 20 December 2001;

4. The couch was purchased at a garage sale in Geraldton on Sunday 9 December 2001;

5. Therefore, the only Saturday after the couch was purchased and before the commencement of the school holidays was Saturday 15 December 2001;

6. Therefore the alleged offence is that to have occurred on Saturday 15 December 2001;

7. However the accused ... left Geraldton at approximately 7:00am on Saturday 15 December 2001 in the company of his mother [Mrs B] of ... Street, Geraldton, and his father [Mr B] of ... Street, Geraldton, to travel to Perth to attend an early Christmas party at [address given];

8. Evidence of the above will be given by one or more of the people mentioned above;"

58 In an emailed message sent on 15 August 2004, the Office of the DPP asked when the information contained in the notice became available, and in particular, whether that was before 8 August 2004 and if so, why s 611C(2) of the Criminal Code had not been complied with and why no mention of it had been made in various telephone conversations between the Office of the DPP and counsel for the appellant on 12 and 13 August 2004. This correspondence was copied to the Court, but the file does not reveal any response to the Office of the DPP queries.

59 The notice did not comply with the requirements of s 611C(2) of the Code (since replaced by s 96(3) of the Criminal Procedure Act 2004 (WA)) which required notice of alibi to be given at least 10 days before trial. The failure to so comply could have been the subject of adverse comment to the jury by the trial Judge or the prosecution (s 636A(5) of the Code), although no adverse comment was in fact made.

60 Towards the end of the appellant's evidence-in-chief, his counsel asked what dates were alleged when he was originally charged. Objection was taken to that on the ground of relevance. In the absence of the jury, his counsel then submitted (GAB 206 - 208):

"... it is relevant that initially the allegation was that these incidents occurred between 30 October 2001 and 15 December 2001 and that then he was indicted on the basis that the conduct complained of had occurred between 30 October 2001 and 21 December 01 and, finally, that the statement of [JW] to the police indicates a different span of time again.

It's relevant because it's a matter that can be taken into account by the jury when weighing up the evidence in this way. In the same way as a delay in complaint causes unfairness perhaps to an accused person, then to charge a person with allegations without being absolutely specific as to a date make [sic: makes] it very difficult for him to defend it and that's a matter that should be able to be taken into account by the jury - that initially he was confronted with this span of time and then later a different span of time and then - a specific day it seems in the police statement.

The difficulty that he faces because of that in trying to ascertain where he was on each and every day in each of those periods is a matter that the jury, in my submission, can taken into account.

MACKNAY DCJ: Sorry, where do you say the specific day come [sic: comes] from?

GIUDICE, MR: Well, in his statement - - -

MACKNAY DCJ: His?

GIUDICE, MR: [JW's] statement at page 4 of the brief, paragraph 41. He told the police - and he has admitted this in cross-examination; that he told the police this and then that he told the police the truth and that his memory was better when he made the statement than it was when he gave evidence, because in his evidence he said he couldn't recall when this date was.

MACKNAY DCJ: I think you and I have had this discussion before. That doesn't make it an allegation of fact. If somebody says, 'I can't remember what I told the police' or 'What I told the police would have been true', I don't think that makes it evidence of the fact in the trial.

GIUDICE, MR: In my submission, what I was putting to him was not in the - - -

MACKNAY DCJ: That's something different but I'm just mentioning that.

GIUDICE, MR: That's what I'm answering, sir, that matter you just mentioned, if I may.

MACKNAY DCJ: Yes.

GIUDICE, MR: And I will answer it this way and that is that I wasn't putting this paragraph to [JW] as a prior inconsistent statement. I was putting it to him to refresh his memory and say to him, 'Well, your evidence is now you can't recall when this occurred but this is what you told the police. Did you tell the police the truth, and what was your memory like then?' so that the jury, in my respectful submission, could infer from that that what [JW] in fact told the police was what his memory was at that time of when it occurred.

MACKNAY DCJ: But unless he confirms it in court, there's no assertion of the fact?

GIUDICE, MR: No, not in court but it is evidence - if his evidence is, 'Look at this very moment I don't have a recollection but yes, I told the police that, it's in my statement and I signed it and therefore it must be right - - -

MACKNAY DCJ: But if he says, 'Therefore it is true', then that's an assertion of fact but simply saying, 'It would've been true' is not in my view an assertion of fact made from the witness box.

GIUDICE, MR: But if he has no recollection now, he can't say that - - -

MACKNAY DCJ: That's as may be and subject to hearing from Ms Forrester, that would be my view, Mr Giudice. As I say, I have a very vague feeling that you and I have had this discussion before and it might be that's - anyway, that's not to the point. What's the - this is not the complainant's document, is it?

GIUDICE, MR: No.

MACKNAY DCJ: And you're talking about a six-day period.

GIUDICE, MR: Yes.

MACKNAY DCJ: And you say that fairness to your client demands that he be permitted to say originally the allegation was different by six days.

GIUDICE, MR: Yes.

MACKNAY DCJ: It has been extended by six days.

GIUDICE, MR: Yes. And then in the trial it has been extended to right up until July 2002 - no, no, six months before July 2002. That would make it inclusive of January."

61 It must also be observed that the evidence in fact given by the appellant's mother about the events of 15 December 2001 was not the same as foreshadowed in the "Notice".

62 In her evidence-in-chief, the appellant's mother was shown a photograph (exhibit 8) of the family, including the appellant, at her parents' home in Perth on Saturday, 15 December 2001. Later, she explained the appellant and the rest of the family were at her parents' place on that day for a Christmas tea. She said she and her family would have been in Geraldton on each other Saturday in December after the school holidays started, but she was not able to "pinpoint" where they were on those days, nor could she recall into January 2002.

63 In cross-examination she said they did not get to her parents' place in Perth until about 4 pm. The drive from Geraldton was about 41/2 or 5 hours. She agreed they certainly did not get there until late in the afternoon.

64 Asked about this in re-examination, she said they had actually left Geraldton to go to Perth on the Friday night (14 December) and stayed overnight at the home of her husband's parents, who also live in a suburb near Perth. The Christmas tea on 15 December was at her own parents' home. They arrived there about 4.30 pm, having driven from her husband's parents' home.

65 The appellant's maternal grandmother, Mrs H, gave evidence that the whole family was at her home for a Christmas meal on Saturday, 15 December 2001. The photograph (exhibit 8) was taken about 9 pm, or whenever the meal finished.

66 In her closing address to the jury the State prosecutor first said that they might decide the couch was purchased on 9 December 2001 and that if it was "... then the dates upon which the offences could have occurred are between 9 and 21 December 2001". That was clearly a reference to the dates alleged on the indictment, because she immediately went on to say that the trial Judge would tell them dates are particulars and are not elements of the offence which the State had to prove beyond reasonable doubt. They were given, she said, to enable an accused to respond to the charges against him and the State did not have to pick a particular day. She reiterated though, that if the jury were to accept the couch was purchased on 9 December, then the offences must have occurred after that date. She referred to the cross-examination of the complainants in which their prior accounts of when the offences might have occurred had been put to them, and said that unless they accepted and agreed with what they had said earlier, it was not evidence but went only to credibility and that it did not go to dates. She said to the jury that the only evidence they really had of when it happened was JW's evidence that it happened about 6 months before the note in July 2002.

67 Mr Giudice, in his closing address, reminded the jury the State prosecutor had opened by telling them the incident happened in late December 2001. He referred to JW's evidence, which I have already outlined. He referred to the evidence of the purchase of the couch on Sunday, 9 December. He said it was a matter for them, but they should find the events took place on a Saturday after 9 December, in 2001 (the only one before 21 December being the 15th).

68 In his directions, the trial Judge pointed out there was a delay before the matters the subject of the charges surfaced with the police. He said that once police are informed and allegations are known, at least from that point an accused person can start to think about the allegations made:

"... although the particular allegations as to dates and so on of course might not emerge until after that and there might be changes in those particulars up to and including the trial, as perhaps occurred to some extent with [JW's] evidence, as I understand it." (GAB 294).

His Honour then explained that the difficulties confronting an accused person when allegations are made some long time after the incident concerned. Shortly afterwards, his Honour reminded the jury what JW's evidence about dates had been, and in summary (GAB 295), that JW had initially said it was towards the end of December, but later said it was possibly after Christmas but about six months before the letter surfaced. He then read to the jury a portion of RW's evidence about that.

69 Immediately prior to explaining the elements of the offence as charged, his Honour referred to the alleged dates. He said (GAB 297):

"The first part of count 1 of course reads, 'On a date unknown between 30 October 01 and 21 December 2001 at Spalding.'

They are particulars. That's not an element. The dates and place are provided so as to assist in identification of the particular conduct alleged. The state [sic] doesn't have to satisfy you beyond reasonable doubt, if you were satisfied as to the balance of the count, that it occurred between those dates. In other words, if the state [sic] satisfied you that [the appellant] encouraged [JW] to do an indecent act and it was the particular conduct alleged in relation to count 1 but you weren't able to be satisfied beyond reasonable doubt that it occurred between those particular dates, you would still be required to find the accused person guilty."

70 Once the jury had retired, counsel for the appellant raised his point about his Honour's directions about the dates (GAB 307 - 308). He submitted that while the particularised dates are not elements of the offences, they bind the prosecution and may in particular cases be vital, and that:

"... [w]here the accused has established that he could not have committed the alleged offences on the dates, then the jury should not be told that the particularised dates were not vital and [sic: that they] needed to be proved."

71 His Honour's response was that RW's evidence raised a degree of doubt as to the timing of the assertion (sic) and as he recalled it, JW's original evidence was also uncertain. His Honour went on to say:

"Those assertions were made some substantial time ago and prior to the trial proper and in all the circumstances it would not be my view that the particulars had hardened into elements but as I say, I understand the basis on which you make the submission.

GIUDICE, MR: All right.

MACKNAY DCJ: But I think in the event that it became necessary for you to do so I think you would have to put that in another place because I don't agree that on the facts of this case it has occurred.

GIUDICE, MR: Your Honour. I would - - -

MACKNAY DCJ: Because the uncertainty was known prior to the trial. I think the unfairness which is implicit in a ruling of that kind I think does not exist here to the requisite extent.

GIUDICE, MR: I accept your ruling, your Honour - - -

MACKNAY DCJ: Yes, of course.

GIUDICE, MR: - - - but can I simply say that I would understand your disagreement with me totally if there had been an application to amend the indictment and we had come along here facing a different indictment but there never was.

MACKNAY DCJ: No. All right.

GIUDICE, MR: And [JW] was to give evidence again of course.

MACKNAY DCJ: Yes. No, I appreciate that.

GIUDICE, MR: Your Honour, the second - - -

MACKNAY DCJ: All right. Go on. Another matter? Go on.

GIUDICE, MR: Yes. Your Honour, the second - but that was the only matter I was concerned about.

MACKNAY DCJ: Perhaps I will just hear from in relation to the matter - Ms Forrester, Mr Giudice says that a failure to amend the indictment to amend the particulars is fatal to a verdict being returned.

FORRESTER, MS: I entirely, with respect to my friend, disagree with that submission, your Honour. The authorities are clear on that point.

MACKNAY, DCJ: Thank you. Mr Giudice, there was another matter you wished to raise."

72 The general rule is that a date specified in an indictment is not a material matter which has to be specifically proved, unless it is an essential part of the offence charged (R v Dossi (1918) 13 Cr App Rep 158 per Atkin J at 159 - 160). The learned authors of "Australian Criminal Trial Directions" (LexisNexis/Butterworths) express the proposition accurately at [3-1000-15]:

"The general principle is that so long as it is clear that the controversy turns upon certain events, or a certain occasion, it may not matter if the date of that occasion is mis-stated or cannot be clearly identified".

73 The general principle, however, may be overridden by considerations of fairness in a particular case, if it has been conducted on the basis the offence occurred on a particular date (or between specified dates) and the accused has prepared his defence on that basis.

74 Dossi (supra) was considered in Wright v Nicholson [1970] 1 WLR 142, in which the defendant was charged with a sexual offence against a child on 17 August. The child confirmed that date in his statement to police. He gave it again at trial before the Justices of the Peace. On an appeal by way of rehearing to Court of Sessions, the child could only say it was in August. The defendant called witnesses who afforded him a complete alibi for 17 August. The Deputy Recorder again convicted the defendant, finding that the prosecution had failed to prove the offence occurred on 17 August, but that he was satisfied that it happened "in August". Lord Parker CJ (Ashworth and Cantley JJ agreeing) quashed the conviction, pointing out that s 100(1) of the Magistrates Courts Act 1952 (Eng) precluded any objection to any information or complaint, for any defect in it in substance or form, or for any variance between it and the evidence, but where there might be grave injustice to a defendant unless the charge was amended, once an amendment was made, s 100(2) operated to require the Court to adjourn if the defendant so applied. In that case, given the discrepancy, an amendment had been called for. Had that been made, so as to allege a date between 1 and 31 August, the defendant would have been immediately entitled to an adjournment to seek to establish an alibi for the whole month - which the Court had been told he might have done by reference to work records.

75 In Wright v Nicholson, Lord Parker CJ distinguished Dossi on the facts. In Dossi the appellant was convicted of indecently assaulting an 11-year-old girl on 19 March and with indecent assault of another girl, aged 14, between 12 and 13 September. The first girl testified to constant acts of indecency over a considerable period, ending on some date in March. She was unable to give evidence of any specific date. A defence witness swore he was with the appellant on 19 March and no indecency with a child took place. The jury returned a verdict of not guilty in respect of the date 19 March, but added "if the indictment covers other dates, guilty". They found him not guilty of the indecent assault on the other girl.

76 On the application of the prosecution the Deputy Chairman amended the indictment by deleting reference to 19 March and substituting "on some day in March". The jury then found the appellant guilty on the amended indictment.

77 That was upheld on appeal, the Court of Criminal Appeal (Darling, Atkin and Shearman JJ) holding that the jury were entitled, if there was evidence on which they could come to that conclusion, to find the appellant guilty of the offence charged even though they found it had not been committed on the actual date specified in the indictment.

78 About this, Lord Parker CJ said in Wright v Nicholson, at 147:

"It is an interesting case, if only because it is very near the present case, and in argument it is urged that the amendment ought not to be allowed at that stage because the appellant would have been left with no opportunity of adducing alibis in regard to the rest of March. However, as I said earlier, every case depends upon its own facts, and when one looks more closely at Dossi's case, ..., one sees at once that the argument that was raised, that there was prejudice in that he had been deprived of the opportunity of adducing alibis for March, was really very thin, if not false, because the defendant gave evidence and admitted on a number of occasions fondling these girls. The only day that he said he did not fondle any of them was on March 19. Accordingly there is little he can have said, the only question being whether that fondling did amount in the circumstances to indecency."

79 Dossi was also distinguished by a bench of five judges in the New Zealand Court of Appeal in R v Dean [1932] NZLR 753. There the appellant had been charged with five counts of unlawful carnal knowledge of a girl under 16. Each count alleged an offence "on or about" a different specified date. With respect to three of them, the prosecutrix testified the offences happened on the specified dates. She gave reasons for saying so. The last was only three days before she spoke to police. The appellant adduced alibi evidence for those three days. Relying upon what Atkin J had said in Dossi, the trial Judge directed the jury that proof of the exact dates was not material and that proof of the offences within some reasonable distance of the dates mentioned in the indictment was sufficient. In upholding the appellant's appeal, the Court of Appeal held that to be a misdirection in the circumstances of the case.

80 Myers CJ noted that Dossi had invariably been acted upon in New Zealand as it had in England, but said there was a very important distinction between the two cases. In Dossi the complainant gave evidence of no specific date, but of offences over a considerable period. In Dean the prosecutrix swore positively three of the offences were committed on the specific dates charged. She explained why with particularity. She did not allege acts of intercourse on any occasions other than those specified. Myers CJ said (761):

"... where a girl swears positively that an offence was committed on a specific date, and only on that date, if the prisoner is able to establish an alibi as to that date to the satisfaction of the jury, then, unless, at all events, it is shown that the girl has made a mistake in fixing the date, I do not see how a direction that the jury may convict the prisoner of an offence on another date can be justified."

81 Referring to Dossi, the Chief Justice said it was true the date specified in the indictment was not material, but if it is sworn to that the offence took place on a specific date and there is no evidence that other offences took place in the neighbourhood of that date, then the date sworn to becomes essential:

"In other words, it is the date proved that is material, not the date specified in the indictment." (761).

82 In reaching the same conclusion, Reed, Adams, Ostler and Smith JJ said (at 763) that the above passage from the judgment of Atkin J in Dossi stated the law correctly, but their case came within the exception:

"In this case the dates specified in the indictment in the last three counts had become an essential part of the offences charged therein. The times had been made of the essence of the offences by the evidence. Where a female makes a criminal sexual charge against a male, but cannot recall the exact date of the alleged offence, although a date should be specified in the indictment, and although it is the duty of the Crown to ascertain and state that date as exactly as possible, then the rule applies, and ... the exact date is not an essential part of the offence, even though the exact date has been specified in the indictment. But whether the charge in such an indictment is laid on an exact date or 'on or about' a date, where the whole of the evidence is that the offence was committed on that date and on no other, then the date has been made an essential part of the offence. If an alibi on that particular date is set up in defence, it is a misdirection for the presiding Judge to inform the jury that they may accept the alibi and yet convict. The proper direction to the jury is that they cannot convict unless they reject the alibi as being false or mistaken."

83 Their honours recognised it is not necessarily just a matter of the evidence given by a complainant. At 764 they explained:

"Of course, there may be a case where a prosecutrix swears positively that the offence was committed on a particular date, but the corroborative evidence called by the Crown may show that, if the offence was committed, it could not have been on that date, or that it must have been on some other date. In such a case it may well be that the date sworn to by the prosecutrix would not be a material part of the offence. But in such a case the accused would have notice from the depositions, and would be able to prepare his defence accordingly. Similar cases may arise, and we desire to guard ourselves from being quoted as holding that in every case where the prosecutrix swears to the date of the alleged offence she thereby necessarily makes the date of the essence of the charge. But in this case, where the only evidence on the point was that of the girl, in our opinion there can be no doubt that she made the dates an essential part in at least the last three counts, and the jury should have been directed accordingly."

84 The proposition that whether the date alleged in an indictment is vital to the charge must depend on the circumstances, was accepted by Bray CJ in R v Pfitzner (1976) 15 SASR 171. In his Honour's view (185), so long as it is clear that the controversy turns on the events of a certain occasion, it may not matter that the date of that occasion is mis-stated, if the occasion itself is clearly identified and both parties have directed their cases towards it. His Honour went on to say:

"But obviously if a man is charged with committing an offence on Saturday and comes prepared with an alibi for Saturday, he cannot be convicted of committing the offence on Friday or Sunday, unless perhaps the information is amended and the trial adjourned to enable him to meet the new case. If authority is needed for so obvious a proposition, it will be found in Wright v Nicholson ..."

85 The Chief Justice noted that Dossi had been distinguished in Wright v Nicholson because on the Court's view of the accused's own evidence, no real prejudice was caused to him by what had happened. His Honour thought the same could not be said in that case. There the prosecution case was that the appellant had confessed to two police officers to selling marijuana on the previous Saturday night, 10 April, for $1000. That was the date alleged on the information. An amount of just over $2000 had been found on him. At trial, he claimed the confession was induced by violence on the part of the detectives and that it was untrue. One defence witness testified that the appellant had $2000 on him at the races that Saturday afternoon; another testified the accused had been with him all that evening. The trial Judge directed the jury they could convict if satisfied he did sell marijuana in the circumstances he described to police, even if not satisfied he did so on Saturday, 10 April. They did. The primary grounds of appeal related to the admissibility of the confession and to evidence of the appellant's previous convictions. The appeal was dismissed (per Wells and Sangster JJ, Bray CJ dissenting).

86 On this point, Bray CJ considered there would have been very real prejudice to the appellant if the jury had been left with the impression that it did not matter whether the sale took place on the Saturday or some other day. In that event, the evidence of the witness about the $2000 being in the possession of the appellant on the Saturday afternoon would have meant nothing, even if accepted. In his Honour's opinion it would have been wrong if the jury thought they were able to convict even if accepting her evidence, because the appellant would have had no reason to anticipate such a possibility and no opportunity to meet it.

87 Wells J, on the other hand, thought the "true rule" governing the case was flexible and that it was founded generally upon the propositions that a miscarriage of justice occurs if an accused is not made sufficiently aware of the case he has to meet; but there is no miscarriage if he is sufficiently made aware of the case he has to meet, even though there is a technical flaw in the formalities of the charge. In that respect, Wells J said, particulars can never be more than an aid to determining exactly what the defence is called on to answer. In that case, the exact date was immaterial; only its bearing on the truth of the confession was of any real importance - which was how the trial Judge had treated it. Sangster J was of a similar view (at 215).

88 The final authority to which it is necessary to refer with respect to this ground is R v MacDonald (1995) 65 SASR 322.

89 In that case, three convictions for sexual offences against the same girl were quashed on appeal. The appellant had been convicted of two counts of unlawful sexual intercourse of a girl under the age of 12 years and one of indecent assault. The Crown particularised the first count as being between 1 September and 30 October 1991; the second as between 1 and 30 October 1991; and the third as between 1 and 30 December 1991.

90 The girl was born in 1980. The appellant met her mother towards the end of 1982. They commenced living together in 1989 or 1990, although that was not constant. They married in November 1991, when the girl was 11 years old. The Crown case was that each of the three offences occurred in the family home, whilst the appellant was living there. There was considerable evidence of antipathy and animosity by the girl towards the appellant. The girl made no complaint until April or May 1992.

91 The appellant was interviewed by police in May 1992. He told them he was not living in, nor had he stayed at the house at the times relevant to the first two counts. He said he did not move back into the house until the end of October 1991.

92 The information was filed in April 1993. There was considerable delay through no fault on the part of the prosecution. The trial did not commence until July 1995. The appellant came to court to answer the charges as they had been particularised. Prior to his arraignment the Crown applied to amend the particulars in the first and second counts, to allege those incidents occurred between 1 April 1990 and 30 October 1991. That was largely because a movie the complainant said she and the appellant had been watching on the first occasion had been found not to have been showing during the period particularised.

93 Defence counsel told the Judge that in August 1993 the girl's mother had confirmed the appellant's instructions that he was not living in the home during the period embraced by the particulars to the first two counts. Counsel said that at the time she had told the Crown that, and that the mother was prepared to come to court to give evidence to that effect. At that stage the trial had been due to start on 17 August 1993, nearly two years earlier. No attempt had been made by the Crown to amend until July 1995. The trial Judge refused leave to amend, holding it would be prejudicial to allow amendment at that late stage having regard to the long delay and the fact that to that point the accused had always been prepared to answer the charges as particularised. The trial then proceeded.

94 At the conclusion of the prosecution case, the Crown applied for leave to amend the particulars of the third count by enlarging the period alleged, from 1 December 1991 to about 15 May 1992, so as to conform to the evidence given by the girl. The Judge refused, although he thought the dates were important only as to the credibility of the complainant.

95 The complainant's own evidence at trial was vague about when the alleged incidents were said to have occurred, contrary to the degree of precision in her statement to police.

96 A submission of no case to answer was rejected. In addition to his own testimony, the appellant called the girl's mother and other witnesses who generally gave supporting evidence that he was not at the home during the periods specified, as well as about the hostility of the girl towards him.

97 In his directions to the jury the trial Judge said that the Crown did not have to prove the dates beyond reasonable doubt; what they had to prove was that the three events happened - although in determining that the jury was entitled to have regard to all of the circumstances. He reminded them the defence had suggested that once it was realised there was an alibi for the dates particularised, the girl became vague about the dates and they had shifted from dates when the appellant may not have been in the home at all, to vague and general dates when it was impossible to know whether he was there or not. His Honour said that was the significance of the change in dates, from what they were in the information, to what was given in the trial.

98 Mullighan J (with whom Debelle and Nyland JJ agreed) held that was a misdirection.

99 His Honour noted that the trial Judge had refused to allow amendment because it had been made clear to him that the particulars as to when the offences were alleged to have occurred were vital to the defence as it was to be presented and his Honour had accepted that. The proposed amendments would result in the appellant having to meet a new case at such a late stage that the amendment would be unfair and the dates alleged were, in the circumstances, vital. His Honour referred to what Bray CJ had said in Pfitzner (supra), at 185.

100 Mullighan J said that once the amendments were refused the Crown was bound by the particulars and the appellant knew what case he had to meet and conducted his case accordingly. The evidence at trial established that he could not have committed the offences alleged in the first two counts as particularised as he was not living at the family home and the movie described by the complainant had not been broadcast; her evidence as to the incident the subject of the third charge did not conform with the particulars as it would place the incident as having occurred in February or March 1992, not in December 2001.

101 Mullighan J accepted the dates in particulars of a charge are not to be regarded as an element of the offence or usually, even as a material matter, unless an essential part of the offence, but said the circumstances of the case, including the forensic issues raised at the trial, such as alibi or lack of opportunity, may make the date vital. The appellant had established what was tanamount to an alibi with respect to the first two charges. The Crown was bound by its particulars in consequence of the refusal of the applications to amend and the appellant was both entitled and obliged to conduct his case accordingly and did so. As his Honour said (at 330):

"To then instruct the jury that the dates did not matter, except on the issue of credibility, was to deny the existence of a defence with respect to the first two charges. In effect, the case against the appellant was changed during the course of the summing up."

102 His Honour said he thought the same could be said of the third charge.

103 In the present case the State patently never put its case to the jury on the footing that the incidents happened on 15 December 2001.

104 The prosecution case was ultimately put on the footing that the jury had to be satisfied the offences did happen, but the complainants were unsure of the date and that it was probably at the end of 2001, although it could have been early 2002, but about six months before the note was written.

105 Unlike Wright v Nicholson, the offence here was not alleged to have occurred on a specific date and unlike R v Dean, nor was the evidence of the complainants that the offences happened on a certain date. The complainants repeatedly said they did not know about dates. As to time, their evidence was always vague, but they were specific about the events which they both described as happening on the one occasion. Thus, unlike MacDonald, where the appellant would have had to meet a new case at a very late stage, having put the prosecution on notice at least two years prior to the trial that the defence was being conducted on a particular basis as to time, the situation here always was that the complainants themselves were quite uncertain about when the incident occurred.

106 The actual date was not central to the prosecution case. The State did not fight the case on the basis it had to be 15 December and no other date. The "Notice of Alibi" was given on the last working day before the trial, when presumably it would have been difficult, if not impossible, for the State to investigate it. There was, of course, no onus of proof upon the appellant, but the reason for the statutory requirement that notice of alibi be given not less than 10 days before trial is to enable investigation of a claimed alibi. Had it been done earlier here, the State would have been on notice of the importance of the date to the defence and it might have been more readily accepted that there was some relevant unfairness to the appellant in the State leaving the time-frame as general as it was left. Alternatively, the State may have thought it necessary to seek to amend the particulars.

107 Further, it was open to the jury not to accept the mother's evidence in re-examination that the family travelled to Perth on 14 December, but on Saturday, 15 December, arriving late in the afternoon, and that the incidents allegedly occurred on the morning of Saturday, 15 December. Alternatively, the jury may have accepted the incidents occurred on a later Saturday (or, indeed, some day other than a Saturday), perhaps in December, but were nonetheless satisfied they did in fact occur as described by the complainants on the same day around that time.

108 It was clear here that the controversy turned on the events of a certain occasion, albeit one of uncertain date. This was not a case in which the evidence made the date of the essence of the charge. The trial Judge was correct to so rule.

109 It is readily understandable why the defence would seek to cast the evidence in such a way as to lead to the conclusion that the offences could only have occurred on 15 December, but that was not how it was presented by the State and nor were the prosecution witnesses drawn unequivocally to accept that proposition. In those circumstances, there was no breach of the rules of natural justice which might lead to a conclusion that the appellant's trial was unfair in that respect.

111 The submission put here is that the State prosecutor breached the rule in Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1, by saying to the jury in the course of her closing address:

"one of the questions we are not allowed to put to you for very good reason is why would they make it up, because that invites speculation from you and puts an onus on the accused which he does not have to prove that these children made it up for a particular reason, so we don't ask that question ..."

112 It is submitted that Palmer v The Queen establishes that it is impermissible for a jury to be invited, whether by way of cross-examination of the accused, submissions from the prosecutor or directions from the trial judge, to consider the question why a complainant would fabricate an allegation of a sexual offence.

113 The submission contends that the State prosecutor continued in her address to the jury to invite them to consider whether the complainant had a motive to lie by referring, amongst other things, to the complainants having persisted for three years in the allegations and putting themselves through the harrowing experience of talking to adults, talking to police, giving evidence and being cross-examined. It is submitted that any reasonable juror would interpret the statements by the State prosecutor as an invitation to consider the question why would the complainants make the allegations and persist in them if they were not true.

114 The statements of the State prosecutor complained of in relation to this ground had their foundation in the way the defence case had been put.

115 In his cross-examination of JW, counsel for the appellant had elicited that JW knew he would get into trouble from his father if he told lies. JW acceded (answering "I suppose") to suggestions by counsel that were he to tell bad lies, his father would strap him with a belt. The cross-examination relevantly then continued (GAB 164 - 165):

"Do you remember the day when Mr and Mrs [B] came over to your house talking to your mum and dad about the note?---Yeah.

Did your dad say to you, 'This better be true, [JW]. If it's not, you're going to get it'?---I can't remember but he could have said that.

Did your dad say to you, '[JW], if this is a joke, you won't see the light of day?' Did he say that to you?---I don't know, I can't remember.

Are those the sorts of words he uses, 'You won't see the light of day,' and he gets wild?---Can't remember but don't think he'd say I won't see the light of day but can't really remember that far back.

Did you remember a water fight that you had with [DB] and [J] where - - -?---A little bit.

A little bit. Do you remember a particular water fight when you and [RW] and [AW] were against [DB] and [J]?---Yeah.

And you and your friends and - you and [RW] and [AW] had lots of water bombs and you filled some of them with dye, green dye or some coloured dye?---Mm.

Do you remember [DB] and [AW] getting big water guns or pistols and firing at you a mixture of vinegar and salt and all sorts of stuff?---I remember that a little bit.

After that you didn't like it, did you? You got angry at that, at what they did. Isn't that right?---That water fight was a lot before that note.

Well, maybe it was but you got very angry after that water fight?---I don't remember being very angry at all because it was just a little water fight.

You ran home and yelled out, 'You're dickheads'?---No, I can't remember that but I wouldn't have said that.

You wouldn't have said - - -?---Because that wasn't a very bad fight. It was just a water fight, a normal play around water fight.

This water fight, this particular water fight, happened just before you wrote the note, didn't it?---It happened a while before that.

How long before?---Can't remember how long before but I know it wasn't just before the note.

It was just days before, wasn't it?---I think it would have been a bit more because - - -

Bit more. A week?---I wouldn't remember the time but I know it wasn't just before the note.

You went home and you and [RW] were angry and you wrote this note to get back at the [appellant and his brother]?---No.

Was [the appellant] in the water fight?---I can't remember. I don't think he was.

So you wrote a note and do you remember next day after the note was delivered - do you remember the next day?---A little bit. I'm not quite sure."

116 Counsel continued to put to the witness the proposition that the note was written as a joke, but that then the complainants were committed to maintain it was true. JW adhered to his testimony that the allegations were true, that the note was not a joke and that what was in the note was true.

117 The same propositions were put to RW in cross-examination (GAB 82 - 84):

"... So there was a note written on a particular day and you remember the day you wrote the note?---No.

But do you remember - can you remember in your mind sitting there writing it now? Have you got a picture of it?---Yes.

Yeah. Now, I want to take you to the night before you wrote the note and what I'm going to put to you is that the night before you wrote that note there was a water - you had one of those water fights with water bombs; you [AW], [JW], against [DB] and [J]. Now, do you know [J], a boy called [J], as a friend of [DB's]?---I don't remember his name but I remember a friend of his.

Yes, and was he about the same age?---Of me?

Mm?---As me?

No, as [DB]?---A bit younger.

A bit younger. And do you remember having a water fight with - against him when there was some dye involved in a syringe?---No.

All right. Do you remember a water fight where this boy and [DB] filled up their water guns with all sorts of stuff, like vinegar and pepper and salt?---Yes.

Yeah. Now, what I'm going to say to you is that was the night before you wrote the note. What do you say about that? Can you remember?---No.

Would you disagree with me if I said it was the night before you wrote the note?---I'm not sure.

You're not sure. Okay. Anyway, this water fight, you or [AW] or [JW] filled a syringe or some syringes with dye and used that in the fight against [DB] and his mate. Is that right?---I'm not sure if it was syringes. It might've been a water pistol.

A water pistol. All right. Now, what colour dye was it?---It might've been green.

Green. It might've been green. So what they did was, [DB] and his mate, they went and got their water guns and filled them up with all this stuff, dye and vinegar and pepper and salt, water, didn't they?---Yes.

And they bombarded you lot with it. Is that right?---Yep.

And you and [JW] and [AW], you didn't like that, did you?---No.

No. And you ran off and went home. Is that right?---Yep.

And did [JW] yell out, 'Fuck you,' as he ran off?---I'm not sure.

Did anybody call [DB] and his mate dickheads as you ran away?---Not sure.

Anyway, you weren't very happy with them for what they'd done. Is that right?---Mm'hm.

Yeah. Now, what I'm going to put to you is that you went home then and then thought about it and you were thinking of a way to get back at them, [RW], were you?---I don't think so.

And what you did is that you and [JW] wrote the note to get back at them, as a joke?---No. We done it for a reason.

And your brother [AW], he had a look at the note and he laughed, did he?---Not my brother, [JW's] brother.

Sorry, [JW's] brother [AW] looked at the note and laughed?---Yes.

And what did he say, he said, 'That's gay'?---Yes.

And he rewrote it?---Yes.

And you don't remember what was in the note?---No.

You then - who wrote the note in the first place?---The one that we sended to - - -

No, the very first note?---[JW].

[JW]. And then [AW] wrote something else, wrote a note out?---Yes.

And then you copied it?---Yes.

Did you go with [JW] over to the house to drop the note off?---Yes.

And what was in the note wasn't true, was it?---It was true."

"It was a joke, wasn't it, the note?---I'm not sure.

You're not sure. But what was written in the note was just written as a joke, wasn't it?---I'm not sure.

Well, it wasn't true, was it?---I don't know.

What was in the note was not true, was it, [RW]?---It might - it probably was true.

It probably was true?---And I say it would've been.

You say it would've been. [JW] told you to say those things, didn't he?---Which thing?

What was in the note?---No. [AW] wrote it down on a piece of paper and I copied it.

Yeah, but you didn't actually see those things - you didn't actually see these things happen, did you, the sucking of the doodle in the motorbike room and - - -?---Yes, I did. Could I please have a break?"

119 Counsel revisited the issue again shortly afterwards, putting to RW that the note was written as a joke, but he repeated that it was true.

120 J was called as a witness by the defence. At the time of trial he was 16 years old and would have been about 13 in December 2001. The appellant's brother was his best mate. His evidence was brief. It was confined to this issue. His evidence was (GAB 256 - 257):

"Was there a particular water fight you remember?---Yes.

What would happen then?---[JW], [RW] and [AW] started like to get really angry with us. They put dye and stuff in there and they got a syringe and started squirting us and then we went and got like all things from the cupboard and just chucked it in our water guns and then they started to get really, really angry. They swore at us and then ran off.

Do you remember anything about a note?---Yes, I do.

How long after the water fight was that?---The next day.

The next day, and where were you?---We were - - -

Tell us what happened the next day?---Me and [DB] had had breakfast, played the Sony for a bit, went outside and then [the appellant] - not [the appellant], [RW], [AW] and [JW] were sitting on the front. We like walked over and said hello.

The front of where?---The front of [RW's] house.

Yes?---And [RW] asked us, 'Did you get' - or asked [DB], 'Did you get the note,' and [DB] replied, 'No. What note,' and [RW] says, 'We wrote a note. It was just a joke.' [DB], me and [RW] walked inside and asked Mrs B, 'Did you get a note,' and she said, 'Yes, but I'm not too pleased with that note,' and then she sent me and [RW] home.

When you were over at [RW's], did [he] say what was in the note at all?---No, I can't remember that.

You can't remember that, all right. That's the evidence of this witness, your Honour."

121 In cross-examination he said he could not remember if the police came to his house wanting to interview him. He did not know what was in the note. He had not discussed it with his best mate. He said he told the appellant's lawyer what RW had said about the note being a joke, a couple of years ago at least. He could remember when it was suggested to him that he had no idea whether it was the day after the water fight or not; he said he could remember that because it was "a fun time, like the water fight was an exciting time" and he could remember it was the next day the note was written "because it was".

122 The passage of the State prosecutor's address to the jury which is the so-called "invitation" to ask themselves why would the complainants make the allegations and persist in them if they were not true, must be considered as a whole and in context. She said (GAB 264):

"Now, there's a suggestion that these children made it up for a particular reason, and let me tell you this: one of the questions we are not allowed to put to you for very good reason is why would they make it up, because that invites speculation from you and it puts an onus on the accused which he does not have to prove that these children made it up for a particular reason, so we don't ask you that question but my learned friend has suggested to you a reason why they might have made it up, and that's the water fight.

Now, perhaps the best indication as to what the children thought of that was the looks on their faces when they were confronted with that allegation. That was a game. The kids, [JW] and [RW], had dye and all sorts of things themselves. [AW] told you, 'We didn't care. We were doing it to them.' They didn't, on [JW's] evidence, even have that the night before the night. No-one seems to accept that except for [J] who came along and told you.

Well, it's a matter for you, ladies and gentlemen, but I would suggest to you that this water-fight story is a total farce. There is no way that [JW] and [RW] persisted for, let me point this out, three years in this allegation. They talked to adults, they talked to police, they have talked to me via the camera and another prosecutor for [RW] and [AW], and they were persistently cross-examined by my learned friend all about a water fight.

I would suggest to you that that is just completely farcical, ladies and gentlemen, and they denied it very, very clearly, and I don't intend to spend very much time on it because perhaps the most telling point of [RW's] evidence was when he was being confronted with that allegation by my learned friend, and he said, 'You and [JW], you decided after the water fight to go home and make this up, get back at them for a joke,' and [RW] said, 'No, we did it for a reason,' what he was quite plainly saying is a water fight is not a reason to make these sorts of allegations even at his age."

123 In his address to the jury, counsel for the appellant pressed the suggestion that it had all started out as a joke (GAB 276):

"... it just might be the case, ladies and gentlemen, that what started as a joke, what started as a joke ended up on the rails, on the rails and it just keeps going. It can't stop. Once the charge is laid, once the complaint is made to the police, statements taken, charges laid, it just gets a momentum of its own and there is no stopping it. Only you can stop it by your verdict.

What started as a joke has ended up a disaster, and [JW] wrote the note first. [AW] looked at it and laughed, laughed. It didn't make sense, he said. He rewrote. He rewrote out a note himself and then [RW] rewrote it, so we've got a third-hand note here, a third-hand note written as a joke, and once the parents get hold of it, it's not a joke any more and [JW] can't back out of it. He can't back out.

His father said to him, 'If this is a joke, you won't see the light of day.' This is a kid who gets strapped with a belt folded over on his skin, leaves marks on him, on his back if he tells lies, ladies and gentlemen. If this is a lie, he is going to cop it, so you might think that he had to stick with it. He had to run with it and he had to cajole his mate into agreeing, and that's how he got to this position.

When at last [RW] tells his father the things that [JW] says are true, what was the first thing his father said to him, 'You will have to come to the police station?' There is no backing out, you might think. It gets a life of its own and then the process takes over."

124 In his summing-up the trial Judge reminded the jury of the arguments which had been put to them by both counsel about the suggestion the complainants had made false allegations in the note, motivated by anger about the water fight, but then found themselves committed to maintaining those allegations. However, his Honour gave no further specific direction about it at that point. The matter was raised by counsel for the appellant after the jury had retired, as a consequence of which the trial Judge gave the following redirection (GAB 316):

"... There was some discussion about motives that the complainants might have to tell untruths.

Now, it's important that you appreciate that because of what I have said to you as to the onus of proof in a criminal trial, that it's not an accused's person's job to find motives that might prompt a complainant to tell untruths. There's no onus on an accused person to come up with any motive nor can an accused person be criticised for not providing a motive. An accused person is entitled to deny the allegations put and it has not been suggested in this case that - if it be suggested in any case that a complainant doesn't have a motive for telling an untruth, that's in effect to reverse the onus of proof because that really suggests that perhaps an accused person has the job of coming up with some possible motive. An accused person doesn't have the job of coming up with any motive."

125 The submission advanced on behalf of the appellant as to the redirection is that it was general in nature and did not specifically refer to the impermissible submission and was not sufficient to remove the effect of it from the minds of the jurors.

126 In Palmer, the High Court held it is not permissible to cross-examine an accused to show he or she does not know of any fact from which to infer the complainant has a motive to lie. The principle extends to the making of similar remarks by a prosecutor in the course of a closing address (Harman v The State of Western Australia [2004] WASCA 230; (2004) 29 WAR 380 and the authorities there cited by Steytler J (as he then was) at [66]). In their joint judgment in Palmer, Brennan CJ, Gaudron and Gummow JJ pointed out (at [10]) the distinction between cross-examination of a witness about the motive of that witness to lie, and cross-examination of another witness to show that witness does not know of any fact from which to infer that the first witness had a motive to lie. In that regard their Honours quoted with approval the following passage from the judgment of Hunt CJ at CL in R v Uhrig, unreported; CCA SCt of NSW; No 60200 of 1996; 24 October 1996 at 15 - 16:

"What this Court said Regina v F and in Regina v E should not be interpreted as excluding arguments being put to the jury, by either counsel or the judge, relating to the validity of the motive to lie which has been asserted in relation to a witness in the particular case. That is so notwithstanding that there is no requirement for the accused to prove such a motive, although in many such cases where the evidence of that witness is vital to the Crown case it would be appropriate for the judge to direct the jury that, even if they reject the motive to lie put forward by the accused, that does not mean that the witness is necessarily telling the truth, and to emphasize that the Crown must still satisfy them that the witness is telling the truth. I believe that it is necessary for such a distinction to be stated expressly, in order to avoid skilful advocates attempting to persuade trial judges that a necessary consequence of this Court's decisions in those two cases is that arguments relating to a motive to lie are excluded in every case. That is not a necessary consequence at all." (My emphasis)

127 What is not permissible is to invite a jury to bolster a complainant's credibility with an argument there is no apparent reason for the complainant to lie. That is because the suggestion tends to undermine the principle that the onus of proof is on the prosecution (R v Jovanovic (1997) 42 NSWLR 520).

128 The fact that an accused has no knowledge of anything from which a motive of the kind imputed to a complainant in cross-examination might be inferred, is generally irrelevant, although if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts (Palmer, per Brennan CJ, Gaudron and Gummow JJ at [7]).

129 To ask "why would the complainant lie?" is to invite the jury to accept the complainant's evidence unless some positive answer to the question is given by the accused (ibid, at [8]). The effect is to reverse the onus of proof (R v E (1996) 39 NSWLR 450, 464). As the majority explained in Palmer ([9]), a complainant's account gains no legitimate credibility from the absence of evidence of motive. If the jury gives greater credibility to the complainant's evidence because of an accused's inability to demonstrate a motive for the complainant to lie, the standard of proof is to that extent diminished.

130 The principle does not preclude a prosecutor seeking to rebut the existence of a motive or to reduce its influence, so long as the cross-examination or argument does not go beyond that. This exception was recognised in R v Hewitt [1998] 4 VR 862, although there the conviction was quashed because the prosecutor had gone beyond what was permissible (Hewitt, per Buchanan J (Phillips CJ and Charles JA agreeing) at 868). Similarly, in R v T [1999] QCA 376, Thomas JA observed that the question of motive for a false complaint should not be regarded as territory which a prosecutor may not enter. His Honour said ([13] - [14]):

"In most if not all trials of this nature the critical question is whether the complainant is telling the truth. In any such trial, and particularly when the contest is between the complainant's version and a defence version which says nothing improper happened, and both corroboration and disproof are lacking, it is almost inevitable that counsel and for that matter the jury will seriously consider whether any motive exists for bringing a false complaint. When it is shown that such a motive is likely, other things being equal this is likely to be the basis upon which a jury will entertain a reasonable doubt concerning the complainant's veracity and will therefore acquit. It is commonplace for defence counsel to canvass such issues. I consider that defence counsel did so, albeit discreetly, in the present case.

In such a situation there is nothing improper in the Crown prosecutor attempting to counter such suggestions and to demonstrate and ultimately submit that the complainant did not have such a motive, or by any reasonable argument to endeavour to refute defence suggestions to the contrary. What the Crown must not do, and what the court must ensure does not happen, is to permit the impression to be gained that the defence has any onus of showing that there was a particular reason for the complainant not telling the truth; or that at the end of the day the absence of any perceived reason for a false complaint strengthens the suggestion that the complainant must be telling the truth."

131 Again, in that case the conviction was quashed because the prosecutor had gone too far (and see also Rodd v The Queen [2000] WASCA 329; R v Smith [2000] NSWCCA 468 and Kostaras (2002) 133 A Crim R 399 per Doyle CJ at [86] - [87].

132 Finally, for present purposes, I note the fifth proposition which Murray J (Malcolm CJ and Wheeler J agreeing) in Crisafio v The Queen [2003] WASCA 104; (2003) 27 WAR 169 identified from the authorities (and referred to by Steytler J in Harman at [94]):

"Whether or not any comment is made, the trial judge must take care to ensure that the jury is not left with any impression that the accused bears any onus to establish that the complainant has a motive to lie or that the lack of any perceived motive to lie of itself justifies the acceptance of the evidence of the complainant and the rejection of the evidence of the accused."

133 In the instant case, the matter was not raised gratuitously by the State prosecutor. What she said was in direct response to cross-examination of the complainants and evidence led by counsel for the appellant. The questions asked by the appellant's counsel were not a mere inquiry about possible motive, but were the positive putting of a specific alleged motive.

134 Counsel for the appellant elected to make an issue of the proposition that the complainants had been motivated by their anger or disgruntlement towards the appellant to make false allegations in the note and that they subsequently felt themselves to be committed to maintain those false allegations. Counsel could hardly have expected the State not to contest the proposition as it was permitted (and indeed, on its case, obliged) to do.

135 The remarks by the State prosecutor which are complained of were directed specifically to the particular proposition which had been advanced by the defence. Her remarks did not extend to giving the jury the impression the appellant had any onus to show motive for the complainants to make false allegations. In fact, she pointed out herself there was no onus on the appellant to show the complainants made up their allegations for any particular reason. Nor did her remarks leave any impression that the absence of any perceived motive or reason for the making of false allegations strengthen the suggestion that the complainants must have been telling the truth or that the appellant should be disbelieved.

136 In addition, the trial Judge gave a very firm (re)direction emphasising there was no onus on the appellant to establish motive, because to suggest otherwise would be reversing the onus of proof. The direction did not extend to pointing out the lack of a perceived motive to lie could not of itself justify acceptance of the evidence of the complainants and the rejection of the appellant's evidence, in accordance with the direction favoured by Kirby J in Palmer at [97] and identified by Murray J in Crisafio at [59], but having regard to the remarks actually made by the State prosecutor and his Honour's earlier directions about the onus and burden of proof, I do not apprehend there to have been a danger here that the jury may have thought it permissible to reason in that way.

Grounds 4 and 5 - Verdicts unsatisfactory and cannot be supported

138 Notwithstanding the way these grounds are expressed, they are to be taken as contending that, having regard to the evidence, the verdicts are unreasonable or cannot be supported (s 30(3)(a) Criminal Appeals Act 2004 (WA) and Gipp v The Queen (1998) 194 CLR 106).

139 The principles to be applied in dealing with this ground (I refer to both here as a single ground) are contained in the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493. They were reaffirmed by the High Court in Jones v The Queen (1997) 191 CLR 439 and MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606.

140 In M v The Queen their Honours said (493 - 494):

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question 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.

... 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."

141 Their Honours added that this is not to substitute trial by a Court of Appeal for trial by jury as (at 494 - 495):

"... the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."

142 As advanced in the written and oral submissions put on behalf of the appellant, this ground relied principally upon the issue of the day upon which the offences allegedly occurred and the evidence of alibi. It is convenient to set out the matters put as particularised in the appellant's written submissions. That was as follows:

"21. Had the jury been properly directed ... the jury would have been unable to convict the accused because:

i. The state [sic] prosecutor led the evidence from [JW] of the alleged offences as having occurred on 'a particular day at the end of 2001'.

ii. [JW] said the disclosure note was written 'about six months or a bit - a fair bit after' the alleged offences;

iii. The note was found by [Mrs B] on 17 July 2002;

iv. [JW's] evidence was that the date on which the alleged offences occurred 'must have been a Saturday';

v. [JW's] statement said that the offences occurred 'In December, before the school holidays and on a Saturday';

vi. [RW], when asked about the date of the alleged offence, said 'I think it was school time.'

vii. The couch, identified by both [JW] and [RW] as being present when the offences were committed was purchased on 9 December 2001;

viii. The only Saturday after 9 December 2001 and before the school holidays, which commenced on 20 December 2001, was 15 December 2001;

ix. There was uncontradicted alibi evidence, notice of which was given on 13 August 2004, that the Appellant was in Perth on 15 December 2001

19 Uncontradicted alibi evidence can of itself support a finding by an appellate court that a conviction is unsafe and unsatisfactory: Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1

20 There is a direct inconsistency between the evidence of [JW] and [RW] in relation to the presence or absence of the Appellant's bother [DB] and [JW's] half brother [AD] at the time of the offences and other inconsistencies including inconsistency as to the dates on which the offences were said to have occurred:

20. [JW] and [RW] admitted in cross-examination that they continued to return to the Appellant's home and to the particular room in which the offences are alleged to have occurred after the offences are alleged to have occurred;

21. There was no evidence of recent complaint;

22. There was no evidence of any change in the behaviour of either complainant towards the Appellant after the alleged offence. Although in a particular case such an absence of change may be explained by relationship evidence, this was not a case of an ongoing relationship of perpetrator/victim but an allegation of a single episode of offending.

23. [JW's] account of anal penetration by the Appellant's penis is not consistent with the lack of any evidence of significant pain and/or injury." (Transcript and paragraph references omitted).

143 The first point is as to the day upon which the offences were alleged to have happened. I have already dealt with that evidence to a considerable extent. On the evidence, I think the jury would have to have concluded that the incidents occurred after 9 December 2001. Both complainants identified the couch which was in the garage at the time and the evidence that it was purchased on 9 December 2001 was confirmed by its previous owner and was unchallenged. The effect of the complainants' evidence overall was that it was a Saturday, and that it was in the morning. Beyond that, as I have already explained, neither complainant could say with any certainty or confidence when the incidents occurred.

144 It is true the alibi evidence was uncontradicted, but that is hardly surprising since notice of it was given on the last working day before the trial. It must be acknowledged that the prosecution did not seek an adjournment - although again, given the time the matter had been outstanding and the fact the trial was being held in Geraldton the following Monday, that too is probably not surprising. But to say the alibi evidence was not contradicted does not mean it was unchallenged. It was challenged. The State prosecutor pointed out to the jury that it was only in re-examination that the appellant's mother said for the first time that they had driven down to Perth on 14 December. She said that despite the mother's evidence that she recorded everything on her calendar, that was not on it. The only note on the calendar pertaining to this was "Mum and dad's Christmas tea" for the 15th - and according to the mother's evidence, they only arrived at her parents home on that day, around 4.30 pm.

145 On the evidence, it would have been open to the jury to be satisfied the incident happened in the morning of that day, or alternatively, on some later Saturday on some other occasion when there was no adult present.

146 JW was not asked in evidence-in-chief whether there was anyone other than him and RW present with the appellant in the garage when the incidents occurred, although it can fairly be assumed from his evidence that no-one else was present. In cross-examination he said he did not know where DB was that day. He answered in the negative when asked whether AW was with them at the time.

147 In his evidence-in-chief, when asked who was in the games room at the time, RW responded that "It might have been [AW], [JW], me and [the appellant]". He was then asked "Might have been [AW]?" and he said "Yep". He was then asked whether or not he was confident AW had been there and he replied (GAB 62):

and he added "... and [DB] came after, a little bit after", repeating that "[DB] came a little bit after when we started playing".

148 A few questions later he said those present when they started doing the dares were the appellant, himself, JW and AW. He said DB "... might have arrived a little bit after".

149 However, as he went on to describe what had occurred, and asked who had to do the dares, he said it was him and JW and he made no further mention of either AW or DB being present.

150 When he recounted how JW had to stick his "doodle" in the exhaust pipe of the motor bike, and was asked who dared him to do that, RW said he was not sure if it was the appellant or DB. The questioning then continued (GAB 68):

"All right. So you think [DB] was there by that stage?---No, not really.

No?---Nup. I think it was [the appellant] who dared him.

You think it was [the appellant]?---Yep.

All right. And did you see whether [JW] put his doodle in a motor cycle exhaust?---Yes."

151 The point was taken up in cross-examination (GAB 78):

"Okay. And was [DB] there during any of these dares?---I'm not sure.

Was [AW] there?---I think so.

In fact you told the prosecutor that you were confident that he was there?---Yes."

"... Now, you know how you just said there are some words you can't really say, are there some words you don't understand?---Mm'hm.

Well, you remember when you were being asked questions by the other lawyer here - - -?---Yeah.

- - - he used the word 'confident'?---Yeah.

'Confident that [AW] was there.' Do you know what the word 'confident' means?---Yes.

What does it mean?---Like I'm sure.

Okay. Well, are you sure that [AW] was there in the games room when these things were happening, or not?---I'm sure."

153 AW gave evidence but said nothing about being present when the offences were committed and it was not suggested to him that he was. DB was not called.

154 It is apparent from a reading of the evidence as a whole, that RW was uncertain about a number of matters. He was not sure about the order in which the particular dares were done, but he did describe them with a degree of particularity in a way which was, in the detail, consistent with the description given by JW. He was testifying about events which had occurred some two and a half years earlier. He had been quite young at the time. I do not think the jury would have been obliged to regard the inconsistency about whether AW had been in the games room at the time or whether DB had been there at some point, as fatal to an acceptance of his evidence that the offences took place as described.

155 The appellant's contentions at par 20 and par 22 may be dealt with together. RW agreed in cross-examination that "sometimes" he and JW went back to the appellant's home after the offences occurred to play games on the Playstation. He agreed that they continued to play "Spotlight" at night sometimes and have water fights with water bombs.

156 In cross-examination, it was put to JW that over the six month period between when the incidents occurred and the writing of the note, he and RW were still often visitors to the appellant's house. His response was (GAB 139):

"Well, not as often really because we was [sic] probably afraid of it happening again."

157 It was put to him that he went to DB's 14th birthday party on 11 January 2002, but he said he did not, because "they" went out on a boat. AW was invited so JW went to see what was happening about the birthday cake and then he and RW left. He said he could not remember whether he continued to visit the appellant's house after the party, although when it was put to him that he had been a visitor to the house right up until the day they wrote the letter, he said "Occasionally", but after writing the letter they never went back again. When it was put to him that he had been an occasional visitor after the birthday party, and that included on occasion going to the games room and playing on the Playstation, he said he did not think they played that after. It was then put to him that he went to the games room and watched movies or television, but he said he was not sure and could not remember that far back.

158 In her evidence, the appellant's mother described the visits of JW and RW to her home up until 1 December 2001 as "very regular". She said she noticed no change whatsoever in the frequency of their visits between December 2001 and June 2002, nor anything different about their behaviour, conduct or mood. She identified a photograph taken at her house on DB's 14th birthday in January 2002. That showed DB blowing out the candles on his birthday cake. The others in the photograph included JW and RW. She explained they did not actually have a party - they were all playing together and she called them in and they stood around the table while DB blew out the candles on his birthday cake.

159 These matters were all raised before the jury. Counsel for the appellant addressed on them strongly. In the assessment of the extent to which they affected the credibility or reliability of the complainants, it is important to bear in mind that the jury is the primary body with the responsibility of determining guilt or innocence and that the jury has had the benefit of having seen and heard the witnesses (M v The Queen (supra), at 493). The protagonists here were young boys at the time. These are not matters which reveal inadequacies or deficiencies or demonstrate some lack of probative force which should necessarily have led the jury to entertain a reasonable doubt about the appellant's guilt, if otherwise satisfied of it.

160 The same must be said about the fact there was no recent complaint. That issue was fully before the jury. The trial Judge gave an appropriate direction about the lack of recent complaint (GAB 290). No complaint is made about that direction.

161 As to the submission that JW's account of anal penetration by the appellant's penis is not consistent with the lack of any evidence of significant pain and/or injury, there was no medical evidence at trial regarding the presence or absence of injury. The submission invites speculation about what it might have been.

162 JW's evidence about this was that "he put his willie in my bum, but I had to lean over the couch". He described how he had to lean over the couch, with his stomach resting on the couch and his pants down around his knees. His evidence-in-chief continued (GAB 117 - 118):

"Okay. Can you tell us again what [the appellant] did while you were leaning over the couch?---Stuck his willie in my bum.

I know this isn't a very nice question but which part of your bum?---My hole.

And what - and I'm sorry [JW]; what comes from that hole?---Like, your poo.

How far did his willie go into your bum?---I wouldn't remember that.

How did it feel?---It didn't feel that good. It was like - it was just a little bit of pain but it wasn't that good.

Did you say anything to him when he did that?---I wouldn't remember at the time.

Okay. How long did it go on for?---A couple of seconds.

Did you tell him whether or not you wanted to do that?---Yeah, I would've said, 'No, no, I don't want to do that.'"

163 He was asked no questions about this particular incident in cross-examination.

164 The description of anal penetration given by JW did not suggest particular force nor deep penetration. He did not describe significant pain. On his account the penetration was minimal. Any penetration would nonetheless have been sufficient to constitute the offence, as the trial Judge explained to the jury at GAB 299 - 300:

"In relation to count 4, members of the jury, the allegation is of course sexual penetration of [JW] by penetrating his anus with [the appellant's] penis. Again there are two elements there, sexual penetration and that [JW] was under the age of 13 years. The term 'anus' is not defined. It would include the part of the alimentary canal beyond the sphincter muscle and it would include, and I think Pidgeon J once held that it included the part of the bottom, if I can use that expression, on the outside of the sphincter muscle as well, but in this particular case, members of the jury, I don't think we have to get involved in anatomy because [JW] said in evidence of course that there was penetration of the part that his poo came out of, I think, which - it's a matter for you but it would I think necessarily mean the sphincter muscle and the bottom of the alimentary canal immediately behind it and he wasn't - plainly the accused person has denied that there was any activity of that kind and he wasn't cross-examined on that.

So it's a matter for you but if you were satisfied that things occurred as [JW] alleged, then I think you probably wouldn't have much difficulty in being satisfied there was penetration of the anus, but it wouldn't in any event be necessary for you to be satisfied that there was penetration through the sphincter muscle if you were satisfied that there was penetration in the area of it."

165 In my opinion it is simply not correct to say that JW's account of anal penetration by the appellant's penis is "not consistent" with the lack of any evidence of significant pain and/or injury.

166 Having considered the foregoing matters in particular, and the evidence as a whole, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences charged. I would accordingly not uphold this ground.

167 With respect to the first particular given of this ground, it is again necessary to examine what his Honour said in context. The direction complained of was (GAB 295 - 296):

"So far as the evidence ultimately was in terms of when the events are said to have occurred [JW's] evidence, as I understood it, and again I'm open to correction or assistance from counsel at the appropriate time in relation to this, was that he initially said it was towards the end of December then later said it was possibly after Christmas but, as I understood his evidence, about six months before the letter surfaced. Counsel for the accused person has already mentioned I think something of what [RW] said but [RW] on page 86 of the transcript, and this was in cross-examination, said:

You went to the police last year so it happened before you went to the police while you were in grade 4?---Yes.

And you've told us your birthday is on 5 January. Okay. Do you know -

I'm sorry, this is in fact the letter in fact, isn't it:

Do you know if it was before or after your birthday?

That was the letter I think rather than when the event occurred.

FORRESTER, MS: Page 85 assists.

MACKNAY DCJ: I'm sorry?

FORRESTER, MS: Page 85 at the bottom assists.

MACKNAY DCJ: 85. Thank you. Yes, all right, at the bottom of page 85:

So when did these things happen compared - if you went to the police in July last year, when did these things that you've just told me about happen?---I'm not sure.

All right. Well, how about we approach it this way: do you know if you were going to school? Was it school time or holiday time?---I think it was school time.

All right. So you were still going to school. Do you know what grade you were in?---Four.

Grade 4. All right. Do you know if it was near anything, like near any Christmas or Easter or a birthday or anything like that?---I'm not sure.

You're not sure. All right. Now, you are in grade 5 now and you were in grade 4 last year?---Yep.

And the passage that I have read to you then goes on. So that is some of the evidence in relation to the time at which the events are alleged to have occurred."

168 As is apparent, his Honour expressly indicated he was open to correction by counsel about this. Notwithstanding that invitation, counsel for the appellant made no submission about that comment after the trial Judge had concluded his summing-up, although he did raise other matters. That is not conclusive, but it does indicate that counsel did not perceive a problem with it at the time.

169 His Honour made it clear he was giving a brief summary of the substance of the evidence of JW and RW and was not purporting to be rehearsing it either in full or in detail. What he did say was a reasonably accurate summary of what the complainant's evidence had been on the point. There is no substance in this particular.

170 The request of the jury referred to in particular (b) of this ground, was a request to have the transcripts, including the appellant's testimony, his mother's testimony and JW's description of the couch.

171 The trial Judge informed the jury that because the trial was being conducted on circuit in Geraldton, there was no running transcript. There were no facilities for that. He also explained that in any event it is not usual in Western Australia to provide transcript to juries. The usual practice would be for relevant parts of the transcript to be read out. He told them that if they had a query about some particular matter, the relevant part of the tape could be identified and played for them.

172 As to the second part, his Honour went on to say (GAB 321 - 322):

"The third, [JW's] description of the couch, I have discussed the matter with counsel. We are agreed that in the course of [JW's] examination-in-chief, that is, when Ms Forrester was asking him a set of questions, shortly after lunch he was shown the photographs A, B and C which form part of exhibit 1, exhibit 1(1) to (3). When he was shown photograph C, which is exhibit 1(3), which you have of course, the description given which included a reference to the sofa touched upon in his evidence and he in effect I think it could be said identified what was depicted in that particular photograph, photograph 1(3).

It might that that answers your query. However, if you do have any further concern about that particular matter, if it's a matter of concern to you, again once you retire if you let met [sic] know that through a written communication that you want us to further pursue that, we will see what other materials we can dig up in relation to that. So that's the limit of positive response, members of the jury, but I trust that's of some assistance to you. Would you like to retire again."

173 That too, was a fair reflection of the evidence. The critical point was that JW had identified the couch in the photograph as the one which had been in the games room at the time. His Honour made that point.

174 The jury sought nothing further on either aspect.

175 There is no substance in this ground. I would refuse leave to appeal in respect of it.

177 PULLIN JA: I have read the draft reasons prepared by Roberts-Smith JA. I agree with those reasons and have nothing to add.

• Ground 1 - Prior out of court statement not proof of fact
• Ground 2 - Dates alleged particulars only
• Breach of rule in Palmer v The Queen
• Grounds 4 and 5 - Verdicts unsatisfactory and cannot be supported
• Ground 6 - Other errors by trial Judge
• Conclusion