Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Application for leave to appeal against conviction - Indecent dealing - Cross-examination of complainants - Incompetence of counsel - Whether there was a failure to comply with the rule in Browne v Dunn - Whether the complainants ought to have been recalled for further cross-examination

Criminal Appeals Act 2004 (WA)

Donaldson v The State of Western Australia [2007] WASCA 216

Durani v The State of Western Australia [2012] WASCA 172

Lazarevic v The State of Western Australia [2007] WASCA 156

McMahon v The State of Western Australia [2010] WASCA 143

Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1

Merrey v The State of Western Australia [2010] WASCA 62

MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329

Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614

R v Birks (1990) 19 NSWLR 677

R v Manunta [1989] SASC 1628; (1989) 54 SASR 17

R v Rowton [1865] EngR 53; [1865] Le & Ca 520; 169 ER 1497

Reid v Readdy [1999] WASCA 208

Smith v The State of Western Australia [2014] WASCA 90

Thomas v Van Den Yssel (1976) 14 SASR 205

TKWJ v The Queen [2002] HCA 46; 212 CLR 124

3 CORBOY J: The appellant was tried on an indictment alleging five counts of indecent dealing with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code. The complainants were the appellant's step-grandchildren, BW (count 1); GW (count 2) and AW (counts 3 - 5). The appellant was convicted on counts 1, 3 and 5 and acquitted on counts 2 and 4.

4 The appellant applies for leave to appeal against conviction on three grounds. The proposed grounds allege that:

(a) a miscarriage of justice occurred as a result of the failure of the appellant's counsel to 'fully' cross-examine the complainants;

(b) the trial judge erred in law by refusing to allow the complainants to be recalled for further cross-examination;

(c) the trial judge did not 'adequately' direct the jury on the use that could be made of evidence concerning the appellant's character.

5 I would refuse leave to appeal on each of the proposed grounds for the reasons that follow.

6 The complainants resided with their parents in Beacon. The appellant and his wife moved to Beacon in December 2006. The offences were alleged to have been committed sometime between when the appellant and his wife moved to Beacon and 19 October 2009, when BW first made a complaint to his parents that the appellant had touched his penis.

7 The facts alleged by the State in respect of count 1 were that BW went shooting with his father and brothers (AW and JW) and the appellant. A tent had been set up in the appellant's backyard with the intention that BW and his brothers would spend the night in the tent. However, only BW returned to the appellant's residence to spend the night in the tent. The appellant also slept in the tent. During the night, the appellant pulled BW's underwear down to his knees and touched BW's penis. The appellant shone a torch on BW's penis while touching him. BW pretended to wake up and told the appellant that he had experienced a

bad dream. The appellant took BW inside to see his grandmother and BW asked to be taken home.

8 BW did not tell his parents about what had occurred as he was too scared to say anything and did not know what would happen if he told them. However, on 19 October 2009 he told his parents what had happened. The disclosure occurred after BW had refused to go to his grandparents' house to spend the night. The offence was alleged to have been committed approximately 12 to 18 months prior to BW's complaint to his parents.

9 BW's mother contacted the police approximately a week later. BW was interviewed by the police but was too distressed to provide any details of what he had alleged. However, he was again interviewed by the police on 29 October 2012. This was after he had told his parents that he was ready to speak about the incident (BW was also interviewed again on 11 August 2014).

10 The offence the subject of count 3 occurred when the appellant and his wife took AW, BW and GW camping. The appellant, AW and BW slept on roof racks fitted to the appellant's vehicle. AW woke during the night to find that his pants had been pulled down and the appellant was rubbing his penis. AW reacted by pulling up his pants and rolling onto his stomach.

11 The offence the subject of count 5 occurred while AW was showering at his grandparents' house. The appellant was in the bathroom telling AW how to wash his penis. He told AW to turn around and, when he did so, he saw the appellant with his back against the bathroom sink and his pants around his knees. The appellant was masturbating. The door to the bathroom was open and the appellant's wife yelled out the appellant's name and he stopped and walked out of the bathroom.

12 AW complained to his father on 25 March 2013 that he had been sexually abused by the appellant. He participated in a recorded interview with the police on 15 April 2013. He alleged in the interview that the appellant had indecently dealt with him while he was sleeping on the roof rack of the appellant's vehicle.

13 AW participated in a further recorded interview on 12 August 2014. The interview concerned AW's allegation that the appellant had behaved indecently while AW had been in the shower at the appellant's house.

14 The appellant elected not to give evidence. However, he participated in three electronically recorded interviews with the police: on 1 December 2009, 20 February 2013 and 6 May 2013.

15 The first interview concerned the allegation made by BW that the appellant had indecently dealt with him while they were in the tent at the appellant's house. The appellant denied touching BW's penis but recalled the night when he had slept in a tent with BW after they had gone shooting. He also recalled that BW had woken during the night complaining that he had experienced a bad dream.

16 The appellant was briefly questioned again about BW's allegation in his second interview with the police (which was conducted after GW had made her complaint). His answers were similar to the statements that he had made in the first interview.

17 The appellant admitted in the third interview that he had slept with AW on the roof racks of his vehicle while on a camping trip but denied that he had indecently dealt with AW. He stated that BW had also slept on the roof of the vehicle and implied that they each had a separate swag (AW's evidence was that the three of them had occupied a single swag with the appellant sleeping in the middle between the two boys). The appellant suggested that the police should speak to the complainants' parents about why the allegations had been made and referred to a falling out between his wife and her daughter.

18 The appellant's wife gave evidence as part of the appellant's case. She recalled the night that BW had slept in the tent and that he had experienced a nightmare. She also recalled going camping with the appellant and her grandchildren and the appellant sleeping on the roof of his vehicle with BW and AW. Her evidence was that the appellant had slept in one swag and BW and AW had shared a separate swag.

19 The appellant's wife also stated that the interior of the bathroom of the house that she and the appellant had occupied in Beacon was visible from other parts of the house. She could hear what was happening in the bathroom if she was working at the kitchen bench. She was not aware of any improper conduct by the appellant when BW or AW had used the shower.

20 Five other witnesses were called on behalf of the appellant. Ms S Stuart and Ms Beagley were teachers at the Beacon primary school in 2007. They did not notice any change in the behaviour of the complainants during that year.

21 Mr Monroe resided in Beacon. He recounted an incident in which he considered that AW had been exposed to inappropriate comments by his father about his parents' sexual relationship.

22 Mr Davies was the appellant's brother-in-law. He had children who were a similar age to the complainants. He had been contacted by the Department for Child Protection and Family Support after the complaints had been made about the appellant. He was warned about contact between his children and the appellant. However, he stated that he had no concerns about the appellant's conduct towards his children.

23 Ms K Stuart was a resident of Beacon. She stated that she was told by the complainants' father of the allegation made by BW on the day that the complaint had been made. She said that the complainants' parents had nevertheless attended a social function that evening.

24 The evidence of BW, GW and AW was pre-recorded. The appellant's counsel applied to adjourn the hearing on the day that the pre-recording had been listed. She stated that she had received information from the appellant's wife shortly prior to the hearing regarding a complaint that had been made to the police. The information concerned the possibility that a paedophile sex ring operated in Beacon. The appellant's counsel stated that she wished to further investigate the allegation prior to examining the complainants.

25 The prosecutor advised the court that he had spoken to the police officer who had received the complaint. The officer had determined that no further action would be taken by the police to investigate the allegation about a paedophile sex ring.

26 The judge presiding at the pre-recording hearing refused the application to adjourn on two grounds: first, the information that had been conveyed to the appellant's counsel was vague and it was not apparent what further inquiries could be made given that the police did not propose to investigate the allegation; and second, the identity of the appellant as the alleged offender was not likely to be in issue (ts 24). No complaint is made about that ruling.

27 The appellant's counsel applied on the second day of the trial to have the complainants recalled so that they could be further cross-examined. She stated that additional documents had been disclosed since the pre-recording hearing, including a job report from the police relating to the information previously provided by the appellant's wife about possible paedophile activities in Beacon. The appellant's counsel stated that, as a result of receiving that material, the appellant's case had 'shifted slightly, ever so slightly' so that:

[i]t's gone from the point where we've now decided that - we've made the forensic decision that it's essential for us to put to the witnesses as a matter of fairness, Browne v Dunn, the children, that the evidence is fabricated and that the parents have coached them because that's part of our case.

I haven't put that to them because at that point that wasn't part of our case. Our case was simply it was a dream or it didn't happen. I put that to both [GW] and to [BW] and then [AW] has already pre-empted that. He says, 'no, it did happen'. He said, 'I know it happened', himself in evidence-in-chief. Our application would be to recall them just to ask those limited questions because at the time I didn't have that information before me and the defence case has shifted slightly (ts 247).

28 The prosecutor opposed the application. However, he advised that he would not make any comment to the jury about the failure to put allegations of fabrication or coaching to the complainants if it was suggested in closing submissions that the complainants' evidence should be rejected for either of those reasons (ts 253).

29 The trial judge refused the application. His Honour considered that the basis for the application was vague and speculative, that the application was too late and that it would be unfair to the complainants. His Honour considered that the complainants would require time to prepare to give further evidence so that there was a risk that the trial would be aborted if the application was allowed.

Proposed ground 1 - the cross-examination of the complainants The appellant's submissions

30 The appellant submitted that the complainants' allegations were made 'against a backdrop of a significant rupture of the familial relationship between the appellant and his wife, and the parents of the three complainants' (appellant's submissions, par 14). It was said that it had emerged in cross-examination that AW had been aware of the allegations made by BW and GW about the appellant and accordingly, it ought to have been put to AW that he:

(a) had made up allegations against the appellant as a result of the falling out between his parents and his grandparents;

(b) had made up the allegations after discussions with his siblings and/or parents;

(c) may have been mistaken in his recollection given the passage of time;

(d) was either mistaken in his recollection or was not telling the truth.

31 It was also submitted that a number of matters ought to have been put to AW in light of the evidence that was given by the appellant's wife (who it can be assumed had co-operated in the preparation of the appellant's defence):

[t]he most basic cross-examination should have put matters to [AW] along the lines of:

29.1 That the appellant had never touched [AW] inappropriately during the 'camping incident'.

29.2 That [AW] was mistaken in his recollection.

29.3 All three complainants had discussed their evidence prior to trial.

29.4 That because of proximity of the shower to the kitchen, a person in the kitchen could see what was happening if the door was open.

29.5 That he was not telling the truth in his recollection of [the appellant's wife's] observations of the 'shower incident'.

29.6 That he had 'made up', or was mistaken about, the allegation concerning the 'shower incident' (subject to count 5 on the indictment).

29.7 That he had made up the allegations after hearing his siblings raising similar allegations.

29.8 That there were inconsistencies between the evidence he gave on 15 April 2013 and 12 August 2014

(appellant's submissions, par 29).

[t]he most basic cross-examination of [AW] in respect of count 3 should have canvassed the range of matters that would have touched upon his credibility, or accuracy, such as the delay in disclosing, that the alleged events occurred in close proximity to other people and so forth.

Nowhere in the cross-examination of [AW] is it clearly put to him that he is mistaken in his recollection, has recreated or is not telling the truth about the camping incident

(appellant's submissions, pars 31 and 32).

33 In relation to BW, it was submitted that 'the evidence of the complainant [BW] proceeded in similar manner and shared many of the inadequacies of the cross-examination of [AW]' and that 'by way of example, [BW] in evidence-in-chief, denied discussing "what happened" with any of his siblings or parents ... Under cross-examination, these matters were touched upon, but not pursued by counsel for the appellant' (appellant's submissions, pars 34 and 35). It was said that the appellant's counsel had failed to put to BW that in his interview with the police on 29 October 2012 he had indicated that he was aware of his brothers' allegations, that he had observed his brother 'telling the doctor what happened to him' (appellant's submissions, par 36) and that:

[i]n light of the Appellant's plea of not guilty, the Appellant's EROI and the evidence of ... the Appellant's wife ... that the following questions should have been put to the complainant [BW]:

41.1 That his recollection of events was flawed;

41.2 That he was not telling the truth in respect of what occurred;

41.3 That he had given differing accounts of what had happened;

41.4 That his reluctance to pursue the allegations in 2009 was because the allegations were not true;

41.5 That he was aware of the family 'falling out' between his parents and the Appellant and his wife;

41.6 That he may have been mistaken about what had occurred due to the passage of time;

41.7 That what he was recounting was in fact a 'bad dream', as he had previously told others

(appellant's submissions, par 41).

34 It was submitted that the way in which the complainants had been cross-examined:

led to a miscarriage of justice as the Appellant was deprived of one of the most basic elements of a trial, being the ability to question and test the evidence of his accusers. As a consequence of the failure of counsel for the Appellant to adequately cross-examine all of the complaints, the Appellant lost the opportunity for acquittal on all of the counts on the indictment, and as a consequence a miscarriage of justice occurred (appellant's submissions, par 43).

35 The principles to be applied when it is alleged that a miscarriage of justice has occurred as a result of the conduct of counsel were summarised in McMahon v The State of Western Australia [2010] WASCA 143 and Durani v The State of Western Australia [2012] WASCA 172. The principles were substantially derived from the various judgments delivered in TKWJ v The Queen [2002] HCA 46; 212 CLR 124. The following brief summary is taken from the judgment of McLure P in McMahon:

(a) The appellant carries a heavy burden in demonstrating that the conduct of trial counsel caused a miscarriage of justice [24].

(b) Ordinarily, an accused is bound by the way the trial is conducted by counsel regardless of whether counsel's conduct accorded with his or her wishes. It is not a ground for setting aside a conviction that decisions made by counsel were made without, or were even contrary to, the accused's instructions or involved errors of judgment or negligence [24].

(c) There will be a miscarriage of justice regardless of whether counsel's conduct might have affected the outcome if the accused has been deprived of a fair trial according to law [25].

(d) Two questions arise where the conduct of counsel has not deprived an accused of a fair trial according to law but counsel's conduct was nevertheless irregular in some respect: first, did the conduct result in a material irregularity in the trial and second, was there a significant possibility that the irregularity affected the outcome [26].

(e) The test of whether there was a material irregularity is objective and ordinarily, a material irregularity will not occur where the alleged error of counsel concerned forensic choices about which competent counsel might have differing views. Nevertheless, there will be a miscarriage of justice even though the error involved a forensic choice or judgment if it plainly affected the outcome of the trial [27].

(f) A failure to cross-examine on a particular matter may be a material irregularity. Where the alleged error involves the failure to adduce evidence, there are parallels with the test for the admission of new or fresh evidence [27] (and see Smith v The State of Western Australia [2014] WASCA 90 [2] (McLure P)).

36 In Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614, the High Court emphasised that the ultimate issue is not whether counsel was incompetent but whether what happened or did not happen at the trial was a miscarriage of justice [25] (Gummow and Hayne JJ).

36 Broadly, the appellant alleged that his counsel had failed to put his case to the complainants (that the dealings had not occurred) by not cross-examining them to suggest that their evidence was fabricated or the product of suggestion by their parents or that they were mistaken about what had actually happened. It was submitted that the appellant's counsel had failed to comply with the rule in Browne v Dunn (1893) 6 R 67 HL on fundamental aspects of the appellant's defence. This was described as both a 'process' and 'outcome' error.

37 The rule in Browne v Dunn must be applied with care when considering the conduct of an accused's defence in a criminal trial: MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 [18]. The reasons for caution were explained by Gleeson CJ in R v Birks (1990) 19 NSWLR 677 and King CJ R v Manunta [1989] SASC 1628; (1989) 54 SASR 17.

38 Birks and Manunta were cases in which the trial judge, in directing the jury, referred to the failure of counsel to have put matters to prosecution witnesses. King CJ (with whom Legoe and Bollen JJ agreed) explained in Manunta that:

It is legitimate, of course, to draw appropriate conclusions from counsel's failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply be overlooked (23).

39 Significantly, in this case neither the prosecutor nor the trial judge made any reference to the failure of the appellant's counsel to question AW or BW on the matters that it is now suggested ought to have been pursued in cross-examination. The jury were not invited to draw any adverse inference about the facts or the truthfulness of the appellant's statements to the police from the alleged failure to have cross-examined AW or BW on some particular matter.

40 The purpose of the rule in Browne v Dunn is to ensure fairness in the conduct of adversarial proceedings. Consequently, the rule is to be applied flexibly according to the particular circumstances of the case. In Thomas v Van Den Yssel (1976) 14 SASR 205, Bray CJ (with whom Jacobs and King JJ agreed) commented that the rule in Browne v Dunn could not be applied without qualification to a challenge to a witness's credit generally. His Honour stated:

And in many other cases the witness must know that the other side will contend that he is not telling the truth, and even in some cases that he is deliberately not telling the truth. I cannot assent to the proposition that counsel cannot argue or the court find that a witness is deliberately giving false evidence unless the witness is asked some such question as, 'I put it to you that your evidence is false', or 'I suggest that that is a deliberate lie' or the like. ...

The rule in Browne v Dunn has much more force when applied to evidence relating to a particular fact or topic than when sought to be applied to the general credit of the witness ... (207).

41 Those comments have been cited with approval by McLure P in Lazarevic v The State of Western Australia [2007] WASCA 156 and Merrey v The State of Western Australia [2010] WASCA 62. The President noted that it was unnecessary to put questions that permit only one response - a bare denial (Lazarevic [20]; Merrey [16]).

42 The evidence of BW and AW was comprised of their recorded interviews with the police and their pre-recorded evidence. They each gave the interviewing police officers a detailed account of the incidents that were the subject of the charges. The appellant had no difficulty in identifying the occasions on which the incidents were alleged to have occurred when he was interviewed by the police. The identity of the alleged offender was not in issue.

43 In that context, a number of the matters on which it was submitted the appellant's counsel ought to have cross-examined were, in effect, bald assertions that almost inevitably would have elicited bare denials if they had been put to the complainants. An example can be found in the following exchange that occurred early in the cross-examination of AW:

Now, remember how we were just talking about the shower; you were talking about that to the - to my friend?---Yes.

Okay. I'm just wondering what makes you remember this incident when it occurred?---What - what makes me remember it?

What - I apologise. That was probably a really confusing question. I'll rephrase that question so it's a little easier to understand?---Yeah.

What makes you so certain about maybe when it happened?---Because I lived it and I seen it with my own eyes.

Okay. Just wondering what makes you so sure when it occurred?---I'm not so sure about the actual time or date it occurred but I know it occurred.

You seem to be getting a little bit upset. I don't want to - I certainly don't want to upset you. Do you want to take a minute or have a drink or anything?---No. I just want to get through with it, thank you (29 October 2014, ts 37 - 38).

44 Contrary to the appellant's submissions, his counsel did endeavour to explore the accuracy of the accounts given by BW and AW to the police having regard to matters such as the passage of time. However, the above exchange illustrates the difficulty that she faced in cross-examination.

45 There were further problems with the appellant's submissions. For example, it was contended that evidence ought to have been elicited from the complainants about their knowledge of problems in the relationship between their parents and the appellant and his wife. It was submitted that evidence about that matter would have provided a context for suggesting to the complainants that they had fabricated their allegations because of a falling out between their parents and the appellant - that is, that the complainants were influenced directly or indirectly by their parents to make the allegations in the context of a hostile relationship with the appellant and his wife.

46 However, the evidence indicated that it was the complaint made by BW that (understandably) disrupted the relationship between the complainants' parents and the appellant and his wife. That was consistent with what the appellant told the police. The appellant made a number of disparaging remarks about his son-in-law in his second and third interviews with the police. However, in the third interview he stated, '[u]p until the incident came up with [BW], there was no bad blood as such ... So, yeah, that just sort of, you know, it's all gone pear shaped since then' (6 May 2013, ts 43).

47 The appellant suggested in his interviews with the police that the complainants' parents were behind the allegations made against him. So, for example, in his third interview the appellant said:

The only reason why I say you really need to talk to the parents is because they're obviously - they're turning something obviously that was innocent and, you know, into something sordid. And it was the same with the [GW] allegations (ts 40 - 41).

48 He was asked to explain what he meant by that comment and the following exchange occurred:

THE APPELLANT: Well, you've gotta go back to the first allegation, which was from [BW].

CON DOBSON: Alright.

THE APPELLANT: Alright. And you remember when we first started - oh, you may not have been in the room. When we first started talking I said right back from the first interview, when I was first interviewed, I said to the detectives back then, 'Have you talked to the other kids?', because I knew that if the parents didn't get satisfaction, we would be back here again talkin' about, they've got three other kids, and they would, knowing the parents as I know them, they would come up with some other allegations.

CON DOBSON: Just when you say, 'the parents get satisfaction', why would they - - -

THE APPELLANT: Because I don't think they're happy with the way things have gone.

CON DOBSON: Okay.

THE APPELLANT: And obviously they want to see me guilty or something, and they're doing everything they can, so, um, you know, they're using the kids and things like this (6 May 2013, ts 41).

49 Those comments were speculative and provided no factual material on which to challenge the complainant's evidence apart from questions of the 'I put it to you ...' variety.

50 It is also necessary in assessing the forensic issues that confronted counsel to consider the appellant's contention that the complainants ought to have been cross-examined on whether they were aware of the allegations made by their siblings. AW stated in his evidence-in-chief that he had not told his parents 'the specifics' of the appellant's alleged dealings with him. He also stated that he had not 'specifically' spoken about those matters with BW, GW or his eldest brother, JW.

51 The issue was pursued in cross-examination. Again, AW denied discussing what had happened 'in specifics' with any other person. He stated:

I didn't tell my mum anything. My - I told my - I said to my dad that the same thing that's happened to my brother and my sister has happened to me and that - that was it (ts 39).

52 He then explained that he had heard in relation to BW and GW that, 'my pop had done something in some sort of way to them ... I heard sexually assaulted them' (ts 39). The appellant's counsel asked further questions about what AW had heard. The effect of AW's answers was that he was aware that GW and BW had made allegations against the appellant but he did not know the detail of what had been alleged. He also stated that his mother had asked him whether 'it had happened to me' after BW and GW had made their complaints (ts 40).

53 BW also stated in his evidence-in-chief that he had not discussed 'specifically' what had happened in the tent with AW, GW, JW or his parents (ts 63 - 64). He was asked what he told his parents in cross-examination:

What did you tell your parents when you first told them about what happened?---When I first - when I first told them I said - I cannot remember the exact words but I said something along the lines that he had touched me and I was crying and that is when my mum started to ask me about it and I - yes, told them what happened.

So you did tell your mum and dad what had happened?---Yes.

Okay?---Not in detail, no, but I did.

What do you mean by - by that?---I told them that he had touched - not in this exact words, I told him that they - he'd touched me inappropriately and then that is when they had organised and called up the - I think it was the Merredin police station and that is when the first interview was - like, when it was plan - like, planned to happen, like that's when they first called up, yes (ts 70).

54 Accordingly, the appellant's counsel did pursue in cross-examination the question of whether BW and AW had discussed with their parents and siblings the allegations that they had made against the appellant. The questions did not produce any significant admissions.

55 There was a line of questioning that the appellant suggested ought to have been explored with BW concerning the extent to which he had discussed what had occurred with JW. The second interview between the police and BW was conducted three years after the first interview. BW stated that he agreed to participate in the second interview following an incident involving JW:

Mum and dad's been asking me to do it for the past year, so since I was year, like, 7 to now. So been, like, three years. And then, um, just recently, my brother had his 18th. And he got, um, really drunk and he, um, started going off and saying how - like, how he wanted to kill my -- my granddad. And so - and he was just going off. Not - me and my dad were holding him down. So we took him to the hospital and then he was just, like, going off and telling the doctor what happened to me. So then the doctor was talking to mum, and yes, that's how we came in here and had this interview' (29 October 2012, ts 3).

56 BW was not asked about that incident or about what, if anything, he had discussed with JW concerning the appellant's alleged indecent dealing. JW was cross-examined on the incident. He stated that he could only recall saying something to BW 'to the effect of not being able to protect him' (ts 341). He also stated that AW and GW had not confided in him.

57 Presumably, a decision on whether to cross-examine BW about this incident was made having regard to JW's statement to the police that formed part of the prosecution brief (the statement was dated 17 July 2013). JW stated that he was at home from boarding school in about May/June 2009. He asked 'everybody if they wanted to go and see Nan and [the appellant]'. BW and AW immediately said 'no'. He went to his room and was followed by his father who 'looked upset and practically in tears'. His father said that BW had told him and his mother that he had been sexually abused by the appellant (pars 123 - 131). JW added, 'what was said at that time wasn't spoken about again' (par 132).

58 JW then described the incident on his 18th birthday. He did not indicate that BW had disclosed the detail of what had occurred but rather gave an account of his guilt over not protecting his brother; that he had become so angry and agitated that he had been taken by ambulance to the Peel Health Campus; that a few days later, he found his mother and GW crying and that his father had said, 'he got to her as well' (pars 164 - 179).

59 JW's evidence was consistent with the evidence of BW and his parents that it was BW's complaint that had destroyed the relationship between the appellant and his step-grandchildren and their parents and that the detail of what had occurred was not discussed. His statement to the police was charged with emotion and bound up with the allegation made by GW. Again, the statement presented a forensic quandary for the appellant's counsel. Another counsel might have adopted a different approach to the evidence about how JW came to learn of the allegation made by BW but, in my view, the failure to cross-examine BW and JW on the issue cannot be characterised as a material irregularity.

60 The difficulty in following this line of questioning was compounded by the statements made by BW and AW to the police about the circumstances in which they had made their complaints about the appellant. It was apparent from his first record of interview that BW was too upset to be questioned about what he alleged had occurred. He stated in cross-examination that he had 'emotionally broken down' (ts 70) (the recording of the interview was an exhibit).

61 BW was questioned by the police in the second interview about the period between the alleged indecent dealing and when he had first complained to his parents. He stated that he had spent weekends at his grandparents' house; that he was too scared to say anything; that he would stay up all night so that he would 'know that nothing would happen to me because I was so scared' and that he eventually told his mother what had occurred because 'I just couldn't stand going there anymore and, like, seeing him and staying there' (interview 29 October 2012, ts 27 - 29).

62 The submission that BW ought to have been cross-examined to the effect that his 'reluctance to pursue the allegations in 2009 was because the allegations were not true' (appellant's submissions, par 41.4) ignored the forensic difficulties that confronted the appellant's counsel. There was nothing in BW's first interview with the police to suggest that his distress was not genuinely caused by the subject matter and nature of his complaint. There was no apparent basis for doubting his account, and that of his parents, as to the circumstances in which he first complained about the appellant's conduct (and there was independent evidence on the timing of the complaint). There was also nothing in the circumstances that suggested an explanation for why he would have fabricated the allegation (given that there was no real evidence of hostility between BW's parents and the appellant prior to the complaint and no evidence that BW was aware of any deterioration in the relationship between parents and the appellant even if that had occurred). Accordingly, the appellant's counsel would not have had any reasoned basis for challenging a denial by BW that he had terminated the first interview with the police because he knew that his complaint about the appellant was untrue. The effect on the appellant's defence of pursuing that line of questioning without obtaining an admission by BW is obvious.

63 AW told the police that he had been close to the appellant, but that he had become upset about what had occurred during an argument with his father. He said, 'well, it all started because me and dad had a fight - - just argument and then, um, I don't know. I was just upset about it so I just came out and told them' (interview 7 February 2013, ts 17). He also told the police that he had spoken to his girlfriend about what had occurred shortly prior to telling his parents.

64 AW told the police that he had stopped seeing the appellant when BW 'first said about what had happened in Beacon'. However, he had 'only just told mum and dad, like, a couple of weeks ago so have really held it for, like, years now' (7 February 2013, ts 17).

65 Accordingly, BW and AW each gave an account to the police that was detailed, plausible and not apparently animated by malice. Rather, the distress and hurt caused by the appellant's alleged dealings with them was evident (made more poignant by the fact that they had both been close to the appellant). Those matters provided the forensic context within which they were cross-examined.

66 The appellant did not identify precisely what propositions he alleged ought to have been ultimately put to the complainants. Were they coerced or manipulated or influenced by their parents? Had they colluded between themselves? If so, when and how had that occurred given that their evidence-in-chief substantially comprised the electronically recorded interviews with the police (see s 106HA and s 106HB of the Evidence Act 1906 (WA))? Was their evidence deliberately fabricated or the product of suggestions that they had come to believe were true? Counsel seeking to explore those questions for the first time in cross-examination, and without any proper factual basis, would obviously be embarking on a dangerous forensic exercise.

67 Consistent with this approach, the appellant's counsel in the appeal did not identify the actual questions or matters of fact that ought to have been put to the complainants to establish that they had fabricated their allegations under the influence of their parents or that they had colluded between themselves. Rather, it was simply submitted that a 'skilled cross-examiner' would have elicited evidence that there was a 'background' to the allegations that would have disclosed the 'real' reason why the appellant had been falsely accused. How that would have occurred was not explained.

68 In my view, there was no basis for contending that the appellant did not receive a fair trial according to law. Consequently, the appellant was required to demonstrate that there was a material irregularity and that there was a significant possibility that the irregularity affected the outcome. I do not consider that the appellant has established either of those matters. The fact that a different and more confrontational approach to the cross-examination of AW and BW might have been taken does not mean that there was a material irregularity in the conduct of the appellant's defence. Further, the appellant's submission was that the complainants' evidence ought to have been challenged by putting what were, in effect, bare assertions. It is difficult to see how such an unrefined submission could establish that there was a significant possibility that the outcome of the trial would have been different.

Proposed ground 2 - the application to recall the complainants The appellant's submissions

69 The appellant contended that it ought to have been apparent to the trial judge that the appellant's counsel had not complied with the rule in Browne v Dunn in cross-examining the complainants at the pre-recording hearing. It was submitted that the appellant's counsel had 'most likely' realised by the time of the application to recall the complainants that she had failed to comply with the 'essential elements' of the rule in Browne v Dunn and 'that fundamental aspects surrounding the appellant's case' had not been put to the complainants. The prejudice to the appellant and the risk of a miscarriage of justice outweighed any adverse effect on the emotional welfare of the complainants if the application was allowed.

70 A trial judge has a discretion to permit a witness to be recalled to be further examined. The discretion is to be exercised according to the interests of justice: Reid v Readdy [1999] WASCA 208 [10] - [11] (Scott J). A trial judge should, in general, permit a witness to be recalled if there has been no cross-examination on a matter of substance, unless the recall would occasion some real and incurable prejudice to the trial process or the party who called the witness: Smith v The Queen [2008] WASCA 128 [190] (Buss JA). Whether a trial judge had erred by failing to order the recall of a witness is to be determined by reference to the circumstances that existed at the time that the application was made: Smith [192].

71 In my view, the trial judge did not err in refusing the application to recall the complainants for further cross-examination. As his Honour observed, the basis for the application was vague and speculative. The appellant's counsel did not identify what information was contained in the additional disclosure on which it was necessary to further cross-examine the complainants. Further, as has been explained, the bald assertion that the complainants had fabricated their evidence or had been 'coached' by their parents would, almost inevitably, have been met with a bare denial. In those circumstances, there was not a failure to comply with the rule in Browne v Dunn. That is confirmed by a review of the whole of the trial transcript. There was no doubt from the outset of the trial that the appellant denied that the dealings had occurred and maintained that the allegations against him were fabricated or mistaken.

72 Finally, for the reasons given in relation to proposed ground 1, any failure to comply with the rule as a result of the matters identified by the appellant could not have caused a miscarriage of justice.

Proposed ground 3 - character evidence The trial judge's direction

There has been some evidence before you of what might be called character evidence. This is evidence to the effect that the accused was a good bloke with no evidence of sexual offending in the past, nor any evidence of sexual misbehaviour - for example, in child pornography possession or anything like that - when police searched his house; a man loved and respected by his wife and his - and her grandchildren and others; and a man who loved the children and who wouldn't do what is alleged to have been done.

This sort of - this theme is part of the defence case and that's relevant evidence for you to bear in mind. But I must tell you, of course, that just because a person has never offended before doesn't mean it's impossible for them to have offended when it's alleged that they did, and there is a first time for everybody who offends, prior to which they never did.

And so although he, you might think, is a good bloke and he does have no prior convictions and has good character previously, it does not mean it's impossible. But it's a matter for you to take into account (ts 598).

74 The appellant identified three aspects of the evidence as demonstrating his good character:

(a) evidence from Detective Senior Constable Hackett that no child exploitation material had been located during a search of the appellant's house;

(b) evidence given by the appellant's wife that she had not witnessed the appellant masturbating in front of AW or in front of her;

(c) the evidence of Mr Davies to the effect that he 'did not have any concerns for his children' on being informed of the complainants' allegations by the Department for Child Protection and Family Support.

75 There is a difference between evidence concerning an accused person's general reputation and evidence about his or her character: see Donaldson v The State of Western Australia [2007] WASCA 216 [70] - [72] (Buss JA, with whom McLure & Pullin JJA agreed). In Donaldson, Buss JA concluded from his review of the relevant authorities that the rule in R v Rowton [1865] EngR 53; (1865) Le & Ca 520; 169 ER 1497 (that a witness called to give evidence of an accused's character can speak only of the accused's general reputation) had not been overruled but that 'in practice it is often unobserved, and evidence is frequently given, without objection, as to an accused's character and reputation based upon the witness's personal experience' [73]. His Honour also considered that propositions identified by Kirby J in Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 expressed the law as to the appropriate direction to be given concerning character evidence when a direction is required [80]. Those propositions included that:

Unless in the particular circumstances of the case doing so is unnecessary, or would be unwarranted for reasons which the judge gives, the directions on good character must relate both to (a) the way in which that evidence may be considered by the jury to make it less likely that the accused committed the offence charged (propensity) and (b) the reliance which the jury may place upon any evidence which the accused may have given in the trial and any other statements made by the accused out of court whether to police or others which come to the attention of the jury during the trial (credibility) (Melbourne [120]).

76 In Durani v The State of Western Australia [2012] WASCA 172, Mazza JA (McLure P & Buss JA agreeing) noted that the assumptions that underpinned the relevance of character evidence are that as to guilt, a person of good character is assumed to be less likely to commit an offence and therefore less likely to have committed the offence in question; and as to credibility, a person of good character is assumed to be more likely to be an honest witness and therefore a person whose evidence should be accepted [107]. In Melbourne, McHugh and Kirby JJ observed that each of those assumptions is dubious [47] - [48] (McHugh J), [109] (Kirby J). Nevertheless, the right of an accused person to adduce evidence of good character remains.

77 Each of the matters identified by the appellant as evidence of good character concerned the likelihood that he had committed the offences alleged. They were matters specific to the nature of the offences rather than matters relevant to the appellant's general reputation. They were not matters there were relevant to the appellant's honesty and the likelihood that he would have given a truthful and complete account when questioned by the police because he was a person of 'good character'.

78 Kirby J in Melbourne stated that the directions on good character must relate to both propensity and credibility. However, his Honour recognised that the direction should reflect the particular circumstances of the case. A trial judge is not obliged to direct a jury on both aspects of character evidence if the evidence that has been adduced is only relevant to one aspect. The possibility that character evidence might only relate to the likelihood of guilt arises because of the relaxation of the rule in R v Rowton that has occurred in practice.

79 In my view, the trial judge did not err in only directing the jury on the use that might be made of the evidence of the appellant's character in determining whether he was guilty of the offences for which he had been charged. There was no complaint about his Honour's direction on the use of the evidence of the appellant's character for that purpose.