CHUGUNA -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 43 (2 April 2026)

1. The State's case at trial that the appellant touched CG on the buttock was a circumstantial one - the State accepted that no person saw the appellant touch CG on the buttock.
2. The State's case was that, on the afternoon of 15 April 2023, CG was at Paspaley Plaza with her friend, LH. CG and LH were at a table near the Kitchen Cabana café inside the Paspaley Plaza. CG's brother and his friends were sitting at another table close to CG and LH.
3. CG noticed a man walk by a couple of times. The first time, the man was looking at her and walked past her. The second time, CG noticed the man staring at her. The State alleged that this man was the appellant. The man approached CG from behind, as CG was standing outside the Kitchen Cabana café, and touched her buttock, on the lower right side, before walking away.
4. CG told LH and then her brother that she had just been touched on the buttock and pointed out the man to them. When CG pointed the man out to her brother and his friends, the man was walking out of the sliding door exit of Paspaley Plaza. CG's brother and his friends, one of whom was JA, went out after the man and confronted him about touching CG.
5. Later that day, JA identified to police the man he had spoken to outside of Paspaley Plaza. The man he identified was the appellant. JA identified the appellant when the appellant was in a group of other dark‑skinned men at Male Oval in Broome.
6. The prosecution case was that the only reasonable inference open on the evidence was that the appellant touched CG on the buttock because:

(1) the only man who could have touched CG on the buttock was the man CG pointed out first to LH, and then to her brother and his friends;

(2) the man CG pointed out was the same man that her brother and his friends spoke to outside of Paspaley Plaza;

(3) the man JA spoke to outside of Paspaley Plaza was the same man who JA later identified at Male Oval; and

(4) the man JA identified at Male Oval was the appellant.

1. As the ground of appeal asserts that the verdict of the jury was unreasonable or unsupported by the evidence, it is necessary for this court to consider the evidence adduced at the trial.
2. At the trial, the State called CG, LH, JA, and two police officers, Constable Philippe Pedley and Detective Senior Constable Ian Yendle, to give evidence in relation to count 3. The State also tendered a bundle of photographs of Paspaley Plaza, which was exhibit 18.

1. The same day as the alleged offence, 15 April 2023, CG participated in a child witness interview. CG was 13 years old at the time. The interview commenced at 4.48 pm. The transcript of the child witness interview became MFI 16.[1]
2. During the interview, CG described the incident that took place at Paspaley Plaza at approximately 2.30 pm that day (i.e., 15 April 2023). CG said she was standing outside a café and her friend LH was sitting down when a man walked behind her and 'grabbed my bum' on the lower right side.[2]
3. CG said before the man 'grabbed my bum', he looked at her and walked past her twice. The first time the man walked past her she did not notice him much. The second time, she noticed him staring at her out of the corner of her eye but did not think much of it.[3]
4. CG said that the man used his right hand to touch her on her lower butt.[4] CG said that the man then 'just walked straight past and out of the store and just walked down'.[5] CG described the man touching her bum 'like a hook'.[6]
5. CG said after the man had grabbed her bum she was shocked and did not know what to do. CG said LH noticed and asked her 'what happened?' CG said she was looking at 'the guy walking away all innocent goes'.[7] CG said she told LH first because she was there; she said to LH '[t]hat guy just grabbed my bum'.[8] CG said she then told her brother and his friends 'that guy there grabbed my bum'.[9] CG said she pointed out a man outside of the Paspaley Plaza to her brother and his friends and they caught up with the man.[10] CG said the man her brother and his friends caught up to was the same man who had touched her on the bum.
6. CG described the man as 'like dark skinned and - he was wearing like a dark shirt and pants - some kind of pants'. CG said 'I couldn't really see his face cos I'm actually pretty blind. And I didn't really worry about it cos I didn't know what to do'[11] and 'I don't really worry about someone's face ... And I'm pretty like - I'm half blind. I've got blurry vision ... I can't really see well without my glasses'.[12] CG said the man 'was pretty fat' with a '[b]loated belly' and '[d]idn't have much hair'.[13]
7. CG did not have her glasses on at the time of the incident.[14]
8. CG said the last time she saw the man was when her brother left to approach him.[15]
9. CG said her mother and sister then came to pick her up. CG said her mum was really angry and wanted to look for the man. CG said her mum was telling her to point him out. CG said to her mum 'they look kinda the same and I don't remember'. CG said she was trying to point him out, and then her mum and her sister saw a group fighting and her sister asked '[i]s that him?' and CG said 'I don't know. I don't know'.[16]

1. CG's evidence was pre‑recorded on 15 May 2024 and played at the trial. The transcript of the pre‑recording was marked as MFI 17.[17]
2. In examination‑in‑chief, CG said the answers she had given in her child witness interview were true.[18] CG gave evidence she could not recall whether the shopping centre was crowded at the time and she was not sure whether there were any other dark‑skinned people around at the time of the incident.[19]
3. In cross‑examination, CG gave evidence she did not see the man touch her buttock, because the man was behind her and she was facing the front, but she felt something touch her buttock.[20] CG agreed that she was not paying attention to the man.[21]
4. CG said that she did not remember how long it was between feeling the touch on her buttock and going over to her brother. CG agreed that by the time she pointed at the man he was outside the shopping centre.[22]
5. In response to questions about driving in the car with her mother and seeing a group of men fighting, CG accepted that the men looked a little bit similar and that she was feeling stressed at that time.[23]
6. In re‑examination, CG said what she felt touch her felt like 'fingers'.[24]

1. On 14 July 2023, approximately three months after the incident, LH participated in a child witness interview. The transcript of LH's child witness interview is MFI 10.[25]
2. During the interview, LH described the incident at Paspaley Plaza. LH said she was with her friend CG out the front of Kitchen Cabana café, waiting to go inside and order hot chips, and CG turned and asked her '[d]id you touch me?'[26] LH replied, '[n]o, maybe you, like, touched the table or something'. LH said '[a]nd then we turned around and we saw this guy, like, walking away'.[27] LH said CG described feeling something like 'squeezing her bum'.[28]
3. LH describes CG as 'panicking'[29] and 'almost, like, kind of crying' or 'about to cry'.[30] LH's evidence was at the time CG asked her if LH had touched her LH saw a man walking away from them, maybe 'five steps away'.[31] LH said there was no one else near them, other than CG's brother and his friends who were sitting at a table next to them.
4. LH said that CG said to CG's brother '[t]hat man over there just touched me' and that the man 'squeezed my bum'.[32] LH said that CG's brother and his friends 'got up and ... went after the guy'.[33]
5. When asked by the interviewer to describe the man she saw walking away, LH said he was a 'dark skinned' man wearing 'jean pants' and a 'button down shirt ... a pattern one'.[34] LH said he was 40 to 45 years old.[35] LH could not recall if the man had any hair on his head or not.[36] The interviewer asked if she had seen the man before. LH said the man had been 'circling around us' before the incident but he did not say anything to LH and CG, 'so we just ignored him'.[37]

1. LH gave evidence before the judge and jury at trial in May 2025, just over two years after the incident. In examination‑in‑chief, LH said she could not recall doing the police interview, but she had watched the interview recently and everything she said in the interview was truthful.[38]
2. In cross‑examination, LH said the incident occurred on a weekend afternoon in the school holidays.[39] She said the shopping centre was quiet at the time, there were some workers in the restaurant and 'the boys' (CG's brother and friends) were sitting 'a few tables away from us' at the Kitchen Cabana café.[40]
3. LH said she was standing in front of CG when CG asked her '[d]id you touch me?'[41] LH had to turn her head to look over her shoulder at CG.[42] LH told CG she had not touched her and said to CG maybe she had touched the table.[43] LH said that CG then started panicking, getting overwhelmed and stressing.[44] LH said that CG said that she felt 'like a ... handprint go past her'.[45]
4. LH agreed she had not seen anyone touch CG, but she believed CG when she said she had felt someone touch her, and that CG was upset and panicking.[46] LH recalled seeing a man 'a few steps away from us'.[47] LH said the man was the closest person to them both and closer than 'the boys' who were sitting three tables away.[48] LH did not know the man but said she had noticed him earlier looking at a phone that had been left on a table by someone else.[49] LH said the man was the only dark‑skinned man she recalled being in the shopping centre that day.[50] LH agreed it was possible she and CG discussed that it might have been the man who was a few steps away from them and then pointed him out together.[51]
5. Trial counsel for the appellant and LH engaged in the following exchange during the trial:[52]

[Trial counsel for the appellant:] After you had that initial exchange with your friend about someone touching her, how long did it take before turning around and seeing this man and saying maybe it was him? Was it seconds, or minutes, or you just can't recall?

[LH:] Probably around, like, 30 seconds.

1. The prosecution led evidence from three other witnesses at the trial.

1. JA's evidence was he was at Paspaley Plaza around 2.00 pm on 15 April 2023 with his three friends, I (CG's brother), Z and A, and CG and her friend LH.[53]
2. JA gave evidence he and his friends were sitting at one table, with his back towards the Kitchen Cabana café, and CG and LH were sitting at another table to the left of them.[54]
3. JA said he noticed another male in the shopping centre who passed the group 'twice to three times' that afternoon.[55] JA described this person as 'about 175 centimetres, darker skin, mostly bald, and at the time he was wearing jeans and a navy blue shirt - collared shirt'.[56]
4. JA said he saw the man exit through the front doors of Paspaley Plaza when CG came up to his group and told her brother 'that man just grabbed my arse' and pointed to the man he had just seen walk out the front door.[57] JA said he and his friends followed the man outside and talked to him at a couple of different places - 'across the road from the ANZ Bank, in the middle and at the ANZ Bank'.[58] JA said he and his friends ended up following the man to Male Oval and pointed him out to police.[59]
5. In cross‑examination, JA said he could not recall if there were other dark‑skinned males walking around the shopping centre that afternoon.[60] JA said he had not seen the man he described or any other man physically touch CG, but he had seen the man he described walk past CG.[61] JA's evidence was he was not looking really closely at the man but recognised him walking past about three times.[62] JA said it was not particularly busy in the shopping centre that afternoon; there were a couple of people around.[63] JA agreed that the man was stumbling and mumbling and said he believed he may have been under the influence of alcohol.[64]
6. JA agreed he had not followed the man from the Plaza all the way to Male Oval without losing sight of him; the man left, he and his friends got in a car and drove about and then spotted the man at Male Oval where he was sitting around with other dark‑skinned men.[65] JA's evidence was he recognised the man at Male Oval as the dark‑skinned man wearing jeans from the shopping centre.[66]
7. In cross‑examination, JA confirmed he was confident the man he pointed out at Male Oval was the same dark‑skinned man he had seen earlier.[67]

1. Officer Pedley was one of the officers who arrested the appellant at Male Oval on the afternoon of 15 April 2023. Officer Pedley was on duty that afternoon when he was flagged down by CG and her mother.[68]
2. Officer Pedley's evidence was he spoke primarily with CG's mother as 'the responsible person'.[69] The description of the man given to Officer Pedley by CG's mother was 'dark‑skinned ... medium build or fat, balding, and that he had a moustache, wearing blue jeans and a navy blue shirt'.[70]
3. Officer Pedley's evidence was he returned to Paspaley Plaza with the intention of reviewing the centre's CCTV footage to try and identify the man described by CG and her mother.[71] Before obtaining any CCTV footage however, Officer Pedley's fellow officer was informed that a group of boys had located a man they thought was the suspect at Male Oval.[72]
4. Officer Pedley's evidence was when he arrived at Male Oval the group of boys identified the appellant as the man they had seen earlier at Paspaley Plaza.[73]
5. In cross‑examination, Officer Pedley confirmed that the man the boys identified was with a group of dark‑skinned men, but that the group of boys had confirmed the man they identified was the same man they had seen earlier at Paspaley Plaza. Officer Pedley's evidence was he placed the man under arrest because he believed he matched the description of the man that had been identified to him.[74]

1. Officer Yendle gave evidence he was not involved in the original investigation but took on the management of the police file after the investigating officer retired.[75]
2. During cross‑examination, Officer Yendle gave evidence that the shorts worn by CG were taken by police on the evening of the incident and swabbed for DNA.[76] Testing of this swab identified mixed DNA samples of two other males, but the profiles were insufficient to identify those individuals.[77] Officer Yendle gave evidence the appellant was excluded as a contributor to the DNA samples.[78] Officer Yendle confirmed the appellant did not have on his record any criminal history of offences of a sexual nature against any persons.[79]
3. On re‑examination, Officer Yendle gave evidence that in his experience as a police detective it is not always the case that a positive DNA result is returned when samples are taken.[80]

1. In his opening address to the jury the appellant's trial counsel did not dispute that the appellant was at Paspaley Plaza on the day in question, but denied the appellant committed the offence alleged.[81] The defence case was no one saw the appellant touch CG on the buttock and it was not the appellant who did so.
2. No evidence was led by the defence at the trial.
3. In closing submissions to the jury, the appellant's trial counsel put to the jury there was insufficient evidence to establish the identity of the person who grabbed or touched CG on the buttock.[82]
4. In summary, the defence case was that there was insufficient evidence to prove beyond reasonable doubt the element of identity of the person who touched CG on the buttock.

1. The appellant's case sets out the following ground of appeal:[83]
   1. The verdict of guilty in relation to Count 3 of Broome Indictment 44 of 2023, alleging that the appellant indecently dealt with CG, a child of or over the age of 13 years and under the age of 16 years, by touching her buttock, contrary to s 321(4), (8)(a) of the Criminal Code ..., was unreasonable and cannot be supported by the evidence.

1. That the evidence led by the [State] was insufficient to identify the appellant as the person who is said to have touched CG on her buttock beyond reasonable doubt and that the jury must therefore have entertained a doubt about the appellant's guilt.

1. In support of this ground, the appellant submitted that the jury must have entertained a reasonable doubt about his guilt for six reasons.
2. First, the appellant was not the only person who could have touched CG on the buttock. No one saw the appellant touch CG on the buttock. The only evidence adduced at trial capable of supporting the fact that the dark‑skinned man CG pointed to was the man who touched her on the buttock, was CG pointing out to her brother and his friends a man walking away with his back to her. At the time she pointed him out, the man was outside of the shopping centre. LH estimated that 30 seconds elapsed between CG reacting after being touched on the buttock and CG and LH identifying the man who they thought had touched CG.[84] The appellant says this evidence does not support the only reasonable inference being that it was the appellant who touched CG on the buttock.
3. Second, the State did not adduce evidence that may have been significantly probative on the issue of identification of the offender. The appellant refers to the evidence of Officer Pedley that CCTV of the incident may have been available, and to the two other boys who spoke to the man outside of Paspaley Plaza, being CG's brother and another boy, who were not called to give evidence. The appellant says the jury was left with a lacuna of evidence as to what the CCTV would have shown and what those boys would have said.[85]
4. Third, CG's evidence identifying the appellant as the man at Paspaley Plaza who touched her buttock was unreliable. The appellant refers to CG's visibility issues and her inability to identify the appellant at Male Oval as the man who touched her on the buttock.[86]
5. Fourth, there is a break in the chain of identification between the time the group of boys spoke to the man outside of Paspaley Plaza and later identified the appellant to the police at Male Oval.[87]
6. Fifth, there is no evidence that CG positively identified the appellant as the man she pointed to at Paspaley Plaza. The appellant submits the prosecution did not carry out any identification parade or photo board identification for the purposes of CG confirming the appellant was the man she pointed to at Paspaley Plaza.[88]
7. Sixth, the DNA evidence did not support an inference that the appellant touched CG on the buttock, rather it supported an inference that some other man touched CG on the buttock.[89]
8. At the hearing of the appeal, counsel for the appellant submitted the prosecution's circumstantial case at trial was predicated on the following three circumstances:[90]

(1) the dark‑skinned man was the only person nearby who could have touched CG on the buttock;

(2) the person CG pointed to was the same person the boys, including JA, approached outside Paspaley Plaza; and

(3) the person JA spoke to outside Paspaley Plaza was the same person JA identified at Male Oval, that being the appellant.

1. Counsel for the appellant submitted each of these circumstances is not supported by the evidence when the six reasons he identified are considered in combination.
2. Before we consider these matters, we outline the relevant legal principles applicable to this ground of appeal.

Unreasonable or unsupported verdict - legal principles

1. Section 30(3)(a) of the Criminal Appeals Act 2004 (WA) provides that this court must allow an appeal against conviction if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.
2. This court recently outlined the principles of appealing a verdict as unreasonable or unsupported by the evidence in Sturniolo v The State of Western Australia:[91]

(1) The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether, as a matter of law, there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.

(2) The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

(3) That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.

(4) In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses. The appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent on the evaluation of the witnesses in the witness box. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness is, and remains, the province of the jury, and not of the appellate court.

(5) The question for the appeal court is whether, upon its examination of the record - by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt.

(6) A doubt experienced by an appeal court would be a doubt that a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.

(7) If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appeal court 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 appeal court must set aside the verdict.

(8) The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over an appeal court that has not seen or heard the witnesses called at trial.

1. In ONQ v The State of Western Australia,[92] this court described the two‑step process to be undertaken by the court in determining whether a conviction is unreasonable or cannot be supported by the evidence:[93]

The first step requires the court to ask whether, on an examination of the record, it has a reasonable doubt as to the appellant's guilt, by reason of inconsistencies, discrepancies or other inadequacies, or in light of other evidence. If so, the second step requires the court to ask whether, after paying full regard to the advantages enjoyed by the jury, the jury should have shared that doubt. (citation omitted)

1. The assessment of the credibility of a witness on the basis of what the jury saw and heard of the witness in the context of the trial is within the province of the jury. Therefore, an appeal court's role is not to substitute its own assessment of the credibility of a witness, where that assessment relies upon observations of the witness giving evidence at trial.[94] As the High Court said in Pell:[95]

The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence ... proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to the proof of guilt.

1. Therefore, in determining this appeal we proceed on the assumption that the jury assessed CG's evidence to be credible and reliable. However, we must then examine the record to determine whether inconsistencies, discrepancies, other inadequacies and/or other evidence causes us to be satisfied that the jury, acting rationally, ought to have entertained a reasonable doubt as to the guilt of the appellant.
2. We turn to consider the inconsistencies, discrepancies, inadequacies and other evidence adduced at trial that the appellant submits, when considered in combination, should cause the members of this court to be satisfied that the jury, acting rationally, ought to have entertained a reasonable doubt as to his guilt.

1. The central issue at trial was the identity of the offender. The appellant did not submit at trial, or at the hearing of the appeal, that CG was lying when she said that someone had touched her on the buttock or that she did not sincerely believe it was the appellant who had touched her on the buttock.
2. We accept the appellant's submission that the State's circumstantial case depended upon the evidence supporting a finding, beyond reasonable doubt, of the following three circumstances:

(1) the dark‑skinned man CG pointed to was the only person who could have touched CG on the buttock;

(2) the person CG pointed to was the same person her brother and his friends, including JA, approached and spoke to outside Paspaley Plaza; and

(3) the person the boys spoke to outside Paspaley Plaza was the same person JA identified to police at Male Oval.

1. Accordingly, we will address the merits of the ground of appeal by reference to whether each of these circumstances was supported by the evidence. In doing so, we must undertake our own independent assessment of the evidence and weigh all of the circumstances in deciding whether it was open to the jury to draw the ultimate inference that it was the appellant who touched CG on the buttock.
2. In that context, there is one preliminary observation that we would make in relation to the nature of the evidence at trial. That is, while it is clear that the ultimate issue at trial was the 'identity' of the offender, the State's case in relation to each of the three circumstances referred to above was not confined to, or even principally based upon, 'identification evidence' as that expression is used in authorities such as Domican v The Queen.[96] 'Identification evidence', in that sense, is evidence whereby a witness, on one occasion, identifies as person (often an alleged offender) as the same person that they observed on a previous occasion. The dangers associated with 'identification evidence', properly so‑called, are well known.
3. In the present case, the third circumstance identified above (whether the person JA identified at Male Oval was the person that he had spoken to at Paspaley Plaza) was certainly such evidence (that is, identification evidence). As will become apparent, however, the other two circumstances identified above, in relation to the events at Paspaley Plaza, did not, as counsel for the appellant accepted,[97] involve 'identification evidence' in this sense. In particular, it is clear that CG did not purport to identify, at some later time, the man who had touched her. Rather, the first two circumstances above were more concerned with whether the only reasonable inference from all of the evidence was that the person CG pointed to was the person who had touched her and, as a matter of continuity, whether the person spoken to by the boys outside Paspaley Plaza was the person that she had pointed to.

Was the dark-skinned man CG pointed to the only person who could have touched CG on the buttock?

1. The appellant says the jury ought to have entertained a reasonable doubt about whether it was the appellant who touched CG on the buttock because there were other people in the shopping centre at the time.
2. CG gave evidence at trial she did not remember whether Paspaley Plaza was crowded or whether there were fewer people there on the day of the incident,[98] and she was not sure whether there were any other dark‑skinned people there at the time.[99] In cross‑examination, LH gave evidence the man walking past was the only man with dark skin at Paspaley Plaza she saw and the shopping centre was pretty quiet.[100] In cross‑examination, JA gave evidence he could not recall whether the man was the only dark‑skinned man that he saw, but it was not particularly busy at the shopping centre.[101] JA also gave evidence it was not him or any other boy in his group who touched CG on the buttock.[102]
3. It is hardly surprising CG did not see who touched her on the buttock as she was facing to the front and was touched from behind.[103] Neither is it surprising that CG did not turn around to look at the person who had touched her buttock, in circumstances where her evidence was the person continued to walk past her after touching her buttock.[104]
4. CG's evidence in her child witness interview, conducted on the same day as the incident, was:

... so when I was standing up, he went past me and grabbed my bum like that - like touch.

...

Like touch under my butt. And I was like shocked and I didn't know what to do. I was just standing still. And like my - my - my friend noticed - like she was like, 'What happened?' I was like looking at the guy walking away. He didn't even look back. He was just walking away all innocent goes. And like I told my friend and then I went to go tell my brother cos he was right behind me - like they didn't see at all. So I went to do [sic] tell my brother, and when I was telling, I was actually like crying cos I didn't like - yeah. I told him that like, um, 'The guy over there just grabbed my bum', and I was crying. And his friends are like, 'Really?' And then they went to go up and look - go to him. And he was like already like down - like down the something - down the pathway. And like they told me to point at him, and I pointed at him, and they went to go talk to him or something.[105]

...

And then he sneakily walked past and then touched my bum like - like a hook, you know.[106]

...

And then I like looked back and I - and then I saw him walking past ...[107]

...

I was shocked and scared. I didn't know what to do, so I just like told my brother about it. I was like - I told my friend first cos she was there, and then I told my brother. I was just like - when he was walking - when he walked off, I was like looking on like, 'What the hell'. Like I wasn't thinking (indistinct) how it just happened.[108]

...

I said first when he - at first when I first told [my brother], he - I said, 'A man - a guy there - that guy there grabbed my bum'. And I was like - cos I said it like twice but I was crying. And they're like, 'What?' And then like his friend, [JA], he's like, 'Are you for real?' And then - and then [Z] was like, 'Let's go get him' and like 'C'mon boys' and like they went up - they got up and like followed him. And then they pointed - they told me - told me to come and point at him.[109]

...

Q. ...so you told [LH] straight away, didn't you?

Yeah. I looked at the guy for a bit and I was like thinking, 'What just happened?' And then [LH] was wondering what happened. I told her.

Q. And what did you - what were the exact words that you told [LH]?

Uh, 'That guy just grabbed my bum'. And I was actually tearing up a bit, and I was scared and - and then I told my brother.[110]

(emphasis added)

1. CG accepted she could not identify the face of the man who touched her. CG said when her mother asked her, at Male Oval, to point out the man who had touched her, CG said she did not know; 'they look kinda the same and I don't remember'.[111]
2. To the extent that CG 'identified' the appellant by pointing him out to LH, her brother and his friends, it was not by reference to the appellant's face. It was by reference to the continuous sequence of events that took place - that is, her feeling the touch, her seeing the man walk past her from behind and away from her, and watching him walk outside of Paspaley Plaza. Therefore, any identification parade or photo board identification would have had no probative value. As noted at [88] above, this trial did not turn on whether CG could identify the appellant's face after the incident. The appellant's submission that the verdict was unreasonable or not supported by the evidence by reference to the unreliability of CG's identification of the appellant as the man who touched her is without merit.
3. Further, the submission that the presence of DNA evidence of two male contributors on CG's shorts, neither of which is the appellant, supports an inference someone other than the appellant touched CG on the buttock misunderstands the significance of DNA evidence. The absence of the appellant's DNA evidence on CG's shorts does not establish the appellant did not touch her on the buttock. Just as the presence of other male DNA on her shorts does not establish it must have been someone else who did. This DNA evidence only establishes that the appellant's DNA was not present on the sample of CG's shorts at the time it was tested.
4. During oral submissions at the appeal hearing, counsel for the appellant submitted that the dark‑skinned man who CG, LH and JA saw walk past them several times that afternoon could not have touched CG on the buttock because JA saw him walk past CG and then walk out of the shopping centre, but said he did not see him touch CG on the buttock. In examination‑in‑chief, JA gave the following evidence in relation to this issue:

All right. Now, did you notice a male - another male in the plaza at that time?‑‑‑Yes.

And did he pass you at that time?‑‑‑Yes. He - I believe he passed us twice to three times.

...

... So he is about 175 centimetres, darker skin, mostly bald, and at the time he was wearing jeans and a navy blue shirt - collared shirt.

All right. Thank you. Now, I will ask you, did you see him go out the front doors of the Paspaley Centre at one stage?‑‑‑Yes, I did.

Now, immediately after he went out the doors, did [I's] sister come up to you?‑‑‑Yes, she did.

Did she say anything - sorry, did she come up to you and [I]?‑‑‑Yes, so she came up to all four of us.

And did she say anything to you?‑‑‑Her exact words were, '[I], that man just grabbed my arse'.[112]

1. In cross‑examination, JA gave the following evidence:[113]

You never saw anyone touch her, did you?‑‑‑Not physically touch her, no, but I've seen the person I described walk past her.

You had seen him walk past her but never saw him touch her?‑‑‑Yes.

1. In our view, there is no merit in the appellant's submission that JA's evidence establishes that he watched the dark‑skinned man walk past CG, did not see him touch her, and then saw the man immediately walk out of Paspaley Plaza. JA's evidence is that he saw the dark‑skinned man walk past them two to three times, and that at one stage he saw the man walk out of the shopping centre. JA's evidence was not that he saw JA walk past CG and then immediately saw him walk out of Paspaley Plaza.
2. Counsel for the appellant also referred to the evidence of LH in cross‑examination, given just over two years after the incident, that she estimated 30 seconds had passed between CG reacting and asking whether LH had touched her and identifying the man who CG thought had touched her.[114] The appellant says that this time gap of 30 seconds leaves ample opportunity for CG to have pointed out the wrong person who had touched her on the buttock. There are three observations we make about this evidence.
3. First, LH also said in cross‑examination that when she saw CG panic and getting upset the man was 'a few steps away from us'.[115] This evidence suggests that the time between CG being touched on the buttock and identifying the man to LH was not actually 30 seconds. In our view, there is no inconsistency between CG's and LH's evidence of the sequence of events: CG felt the touch, became upset, spoke to LH and told her 'that guy (referring to the dark‑skinned man who had walked past CG from behind) just grabbed my bum'.
4. Second, as a matter of the court's general experience, estimates of time given by witnesses, particularly in relation to short or fleeting events, are notoriously unreliable. It is common for a witness to estimate seconds or minutes as a measure of time. It does not follow that the time he or she has estimated is the actual time. That is particularly so when the witness is 13 years old and being asked about events that happened over a year ago.
5. Third, LH's evidence cannot be relied upon to discredit CG's evidence as to the sequence of events where LH's account given during her child witness interview was not put to CG at the trial. CG's evidence is not that she only saw the dark‑skinned man walking away from her after she had a conversation with LH. CG's evidence was not that she asked LH whether LH had touched her. None of those matters were put to CG in cross‑examination. In fact, only CG's version was put to her in cross‑examination. Counsel for the appellant put to CG 'you told [LH] that something touched your bottom. Do you remember that?' to which CG answered 'yes'.[116]
6. In her pre‑recorded evidence, 13 months after the incident occurred, CG gave the following evidence in cross‑examination in relation to the time between feeling the touch and telling her brother:[117]

Okay. Do you remember how long that was between feeling the contact with your - feeling the touch on your bottom and going over to your brother?‑‑‑I'm not sure.

Was it seconds, or was it minutes?‑‑‑I don't know.

You don't remember?‑‑‑I don't remember.

Did your brother ask you to point at someone?‑‑‑I don't remember.

Do you remember a short time later pointing at someone?‑‑‑Yes.

And you told your brother that that was the person you thought had touched you?‑‑‑Yes, I pointed.

Do you still have a copy of photograph number 4, [CG], with you? That's the photograph looking towards the street. That's right. Could you - I just can't quite see where you've marked that. Would you mind pointing that out to me? Okay. Thank you for that. So when you - and is that where the man was when you pointed at him?‑‑‑Yes. He was walking there.

So was he - and this might sound, you know, a lot of detail, but do you remember if he was walking there, or was he standing there when you pointed?‑‑‑He was walking there.

Okay. So where was he at the moment that you pointed at him?‑‑‑He was - I'm not sure, but he was walking in the middle, and then when my brother caught up, he was standing in the middle.

...

So by the time that you pointed, [CG], you were pointing at a man who was outside the shopping centre; is that right?‑‑‑Yes.

1. The photograph CG was referred to is:[118]

1. The 'x' (which this court has identified by superimposing a yellow circle) marked by CG is in the middle of the photo below the 'Paspaley Plaza - Coles' sign near two people in the photograph. It is not known when this photograph was taken.
2. We are to presume that the jury accepted CG's evidence as credible and reliable. This is not a situation, contrary to the case in Pell, where the appellant points to evidence that casts doubt on whether the act itself could have occurred such that there was a reasonable possibility that an innocent person has been convicted. There was no dispute at trial that the appellant was at Paspaley Plaza that afternoon. There is no evidence that JA or LH watched the dark‑skinned man the entire time he was at Paspaley Plaza and did not see him touch CG and, therefore, he simply could not have done what is alleged. The jury were entitled to draw the inference JA saw the man walk past CG on two or three occasions, but not on the occasion he touched her on the buttock.
3. In our view, the evidence, viewed as a whole, supports a finding by the jury that this sequence of events occurred:

(1) CG saw a dark‑skinned man walk past her two or three times while she was inside Paspaley Plaza, near the Kitchen Cabana café;

(2) CG felt a touch on her buttock, like a 'hook', from behind;

(3) CG saw the dark‑skinned man who had been right behind her, walking past her and away from her;

(4) CG told LH 'that guy just grabbed my bum' referring to the dark-skinned man;

(5) CG told her brother and his friends 'a guy there, that guy just grabbed my bum' again referring to the same dark-skinned man; and

(6) CG pointed out the same dark‑skinned man to her brother and his friends as the 'guy who just grabbed her bum' when the man was outside of the shopping centre.

1. In our view, it was well open for the jury to be satisfied that CG did not at any time lose sight of the dark‑skinned man from the time that she saw him walking past her, coming from nearby and behind her just after she felt the touch like a 'hook' on her buttock, to the time that she pointed him out to her brother and his friends, including JA, when the man was outside Paspaley Plaza. The evidence supports a finding by the jury that the dark‑skinned man CG pointed to was the only person who could have touched CG on the buttock.
2. In our view, the first of the three circumstances relied upon by the State to prove its circumstantial case was supported by the evidence.

Was the person CG pointed to the same person the boys, including JA, approached and spoke to outside of Paspaley Plaza?

1. The second circumstance the State relies on to prove its circumstantial case is that the man CG pointed out to her brother and his friends, including JA, as the man who touched her on the buttock was the same man that the boys approached and spoke to outside Paspaley Plaza.
2. CG's pre‑recorded evidence was:[119]

You said in your interview after the man grabbed your butt, 'He just walked straight past and out of the store and just walked down'?‑‑‑Yes.

Did that happen?‑‑‑Yes.

And you also said when he walked out, you told your brother and his friend and pointed out that man to them?‑‑‑Yes.

So did you see that man when you showed your brother and your brother's friend, was the man still walking?‑‑‑Yes.

And then you said your brother and your brother's friend went and caught up with that man ...?‑‑‑Yes.

... the man you saw walking, you pointed to your brother and friend and your brother and friend went and caught up to a man; ... was it the same person?‑‑‑Yes.

And did he pass you at that time?‑‑‑Yes. He - I believe he passed us twice to three times.

Okay. Now, are you able to describe what he looked like? ...

... So he is about 175 centimetres, darker skin, mostly bald, and at the time he was wearing jeans and a navy blue shirt - collared shirt.

All right. Thank you. Now, I will ask you, did you see him go out the front doors of the Paspaley Centre at one stage?‑‑‑Yes, I did.

Now, immediately after he went out the doors, did [I's] sister come up to you?‑‑‑Yes, she did.

... Yes, so she came up to all four of us.

And did she say anything to you?‑‑‑Her exact words were, '[I], that man just grabbed my arse'.

And when she said that, did she point to who she was talking about?‑‑‑Yes, she pointed out the man I just described.

All right. Was that the man just going out the front of Paspaley?‑‑‑Yes. Yes, it was.

1. In our view, it was well open for the jury to be satisfied the man CG pointed out to her brother and his friends, including JA, was the same man they approached and spoke to outside of Paspaley Plaza.
2. In our view, the second of the three circumstances relied upon by the State to prove its circumstantial case was supported by the evidence.

Was the person CG's brother and his friends spoke to outside Paspaley Plaza the same person JA identified to police at Male Oval?

1. JA's evidence was that CG had pointed to and said 'that man just grabbed my arse', and the group of boys talked to the man at 'a couple of different places: across the road from the ANZ bank, in the middle and at the ANZ bank'.[121]
2. JA gave the following evidence in cross‑examination:[122]

When you say you followed him, what actually happened is the man left and then you and your mates got in a car and drove about and then spotted him at Male Oval. Is that correct?‑‑‑Yes. Yes.

And when I say - so you didn't actually follow him, you know, in the car or on foot to Male Oval; you drove around until you spotted the man you thought you had seen earlier; is that correct?‑‑‑Yes.

Now, when you spotted him, was he sitting around with other dark‑skinned men?‑‑‑Yes.

But you thought, nonetheless, you recognised him from the shops, the dark-skinned man wearing jeans - - -?‑‑‑Yes.

- - - and you were confident that you could point him out, that this was the dark-skinned man you had seen earlier?‑‑‑Yes.

(emphasis added)

1. It is not in dispute the man that JA identified to police at Male Oval was the appellant. That evidence was 'identification evidence' in the sense discussed at [87] to [88] above, and the learned trial judge gave the jury an appropriate warning in relation to it.
2. The reality was, however, that JA's identification of the appellant as the person he saw and followed was not the subject of serious contest at trial. JA had the opportunity to speak to and observe the man outside of Paspaley Plaza on three occasions. He then identified the same man to police a short time later. As is apparent from the brief cross‑examination in relation to that issue, it was not put to JA that he was wrong or mistaken in his identification of the appellant as the man he had spoken to earlier, just a question as to whether he was 'confident'. If the appellant was going to conduct a case that the person who JA spoke to was not the person he later identified at Male Oval, then counsel would, or should, have cross‑examined JA in relation to that issue. Counsel did not.
3. At the appeal hearing, counsel for the appellant submitted that it was a problem for the State's case that part of the description Officer Pedley was given of the offender was that he had a moustache. There was no evidence before the jury as to whether or not the appellant had a moustache when he was identified by JA and his friends at Male Oval. The appellant says this fact contributes to the unreliability of the identification of the appellant as the man who CG identified as the person who touched her on the buttock.
4. Officer Pedley gave the following evidence in relation to the description he was given of the offender:[123]

So then the description that they gave you was, dark‑skinned man, medium build or fat, balding, and that he had a moustache, wearing blue jeans and a navy blue shirt; is that correct?‑‑‑I believe so.

Now, who described it to you? Was it the mum or the daughter?‑‑‑I can't recall exactly. I believe the mother, as she was the main one I was speaking to.

1. The flaw with the appellant's submissions is that Officer Pedley did not act solely on the description of a man given to him by CG's mother. Officer Pedley spoke to JA and the other boys at Male Oval. The boys identified the appellant, from among a group of men at Male Oval, as being the man they had seen at Paspaley Plaza. After Officer Pedley arrested the appellant, he confirmed with the boys that the man he had arrested was the man they had seen at Paspaley Plaza. The man arrested, the appellant, was the man whom JA confidently identified as the man CG had pointed out to her brother as being the man who touched her on the buttock and being the same man he had spoken to outside of Paspaley Plaza.
2. In our view, it was well open for the jury to find on the basis of JA's evidence that the man he spoke to on three occasions outside of Paspaley Plaza was the same man that he identified to police at Male Oval, that man being the appellant.
3. In our view, the third and final of the three circumstances relied upon by the State to prove its circumstantial case was supported by the evidence.

1. While CCTV evidence and evidence from other witnesses, that is, CG's brother and his friends, may have strengthened the prosecution case, the absence of that evidence does not lead to the conclusion the jury's verdict is unsupported by the evidence.

1. In our view the evidence, viewed as a whole, was sufficient to support a finding by the jury that the only reasonable inference available was that the appellant touched CG on the buttock because:

(1) CG was outside the Kitchen Cabana café inside the Paspaley Plaza with her friend, LH;

(2) CG's brother and his friends were sitting at a table nearby CG and LH;

(3) CG saw a dark‑skinned man walk past her twice;

(4) CG felt a touch like a 'hook' on her buttock from behind;

(5) the same dark‑skinned man was nearby and walking past CG from behind and then away from her;

(6) CG told LH 'that guy there grabbed my bum' referring to the same man;

(7) the man continued walking and exited Paspaley Plaza through the sliding doors;

(8) CG told her brother and his friends 'that guy just grabbed my bum' pointing to the same man when he was outside Paspaley Plaza;

(8) CG's brother and his friends, including JA, approached the same man and spoke to him on three occasions outside Paspaley Plaza;

(9) JA later identified the man he had spoken to outside of Paspaley Plaza to police at Male Oval; and

(10) the man JA identified at Male Oval was the appellant.

1. The alleged inconsistencies, discrepancies or other inadequacies identified by the appellant do not alone, or in combination, give rise to a reasonable doubt in our minds that it was the appellant who touched CG on the buttock.
2. For these reasons, we are not satisfied there is a significant possibility an innocent man has been convicted of count 3 on the indictment.
3. We would refuse leave to appeal and dismiss the appeal.
4. We make the following orders:

(1) The application for leave to appeal is refused.

(2) The appeal is dismissed.

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

[91] Sturniolo v The State of Western Australia [2023] WASCA 147 [70] (Quinlan CJ, Beech & Hall JJA).

[92] ONQ v The State of Western Australia [2026] WASCA 5 (ONQ) (Hall, Archer JJA & David AJA).

[94] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 [37] ‑ [38] (Pell).

[96] Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555.