DKA v The State of Western Australia [2026] WADC 34 | Case summary

DKA v The State of Western Australia [2026] WADC 34 | Case summary | Zoe

[19]

As a matter of law, the following general principles apply.
I am required as far as practicable to apply the same principles of law and procedure as would be applied in a trial before a jury.
If the law requires or prohibits a direction of law that would be given to a jury, I must take that requirement or prohibition into account in this trial.
Mr Cable is presumed to be innocent of each count on the indictment. This presumption of innocence remains throughout the duration of the trial and remains unless or until the State has proven Mr Cable's guilt on the count I am then considering.
The burden of proving guilt on each count rests on the State and never shifts to Mr Cable. Mr Cable is not required to prove his innocence or to give or to call evidence in his defence.
The State must prove guilt beyond reasonable doubt. The State discharges this burden by proving each and every element of the count being considered beyond reasonable doubt. Proving some elements but not others does not suffice.
Proof beyond reasonable doubt is the heaviest burden of proof known to the law. It is not an impossible standard. Establishing that it is more likely than not that Mr Cable is guilty or is possibly or probably guilty does not suffice. A suspicion or strong suspicion of guilt does not suffice. Guilt must be proven beyond reasonable doubt.
The State do not need to prove beyond reasonable doubt each and every statement that their witnesses say but they must prove beyond reasonable doubt each and every element of the charge being considered.
The verdicts must be reached without prejudice, sympathy, speculation or conjecture and be based solely on the evidence presented at the trial.
The evidence consists of the witness's answers to questions under oath or affirmation, the exhibits, the formal admissions, and my observations of the witnesses.
Counsel's questions, submissions, chronologies, comments, and observations are not evidence.
Any publicity relating to Mr Cable or any of the witnesses involved in the case or anything connected to this case must be ignored.
Each count must be considered separately and a separate verdict is required in respect of each count.
A verdict of guilty or not guilty on one count does not necessarily mean the same verdict is reached in respect of any of the remaining counts.
The court must not speculate or guess about matters or look for theories not supported by the evidence.
Inferences may be drawn from proven fact or facts. An inference is a logical reduction from the fact or facts that have been proven. I am only entitled to draw a reasonable inference based on the facts that I find to be proven. There must be a logical and rational connection between the facts I have found established and any deductions or conclusion I reach. An inference cannot be based on conjecture or speculation.
In drawing inferences, I do not consider the facts in isolation but consider the combined weight of the facts that I find proven.
Individual facts from which inferences are sought to be proven by the State do not have to be proven beyond reasonable doubt unless an individual fact is an element of the event or an indispensable link in the chain of reasoning towards an inference of guilt. It was not suggested in this case by either counsel that any circumstantial fact is an indispensable link in the chain of reasoning towards an inference of guilt.
The standard of proof of the individual facts which are not elements of the offences or indispensable links in the chain of reasoning towards the inference of guilt have been described as a different standard, that is, the court must find those facts proven to the court's satisfaction before they can be considered in combination with other facts: The Director of Public Prosecutions v Roder (a pseudonym) [2024] HCA 15; (2024) 281 CLR 18 (Roder); R v Bauer (a pseudonym) [2018] HCA 40; (2018) 266 CLR 56; R v AR [2026] HCA 10 (AR).
If the inference I am being asked to draw is an inference of guilt then I must consider the combined weight of all the facts and circumstances as a whole to determine whether that particular inference can be drawn, and the inference of guilt can only be drawn if it is the only rational or reasonable inference that the facts permit me to draw and only if there is no inference consistent with innocence reasonably open on the evidence.
Facts in issue and facts relevant to facts in issue can be proven by direct evidence alone or by a combination of direct evidence and circumstantial evidence or by circumstantial evidence alone.
Circumstantial evidence does not prove a fact directly, but it increases a probability or likelihood of the fact in issue or a fact relevant to a fact in issue existing.
The court may accept or reject the whole or part of the evidence of any witness.
It is a witness's evidence given on oath or affirmation at this trial which must be considered. If a witness has made a statement out of court, such evidence is not evidence of the truth of what was said on that prior occasion unless the witness adopts that evidence or statements in his evidence at this trial.
Any inconsistency shown by a prior statement or prior evidence is relevant to the assessment of the witness's credibility, whether the inconsistency affects the witness's credit, and if so, how it affects the witness's credit is a matter entirely for the court to determine.
In determining whether I am satisfied beyond reasonable doubt of Mr Cable's guilt in respect of the count I am then considering, I must not be concerned with the consequences of my verdict one way or another.
Mr Cable was under no obligation to give or call evidence in his defence. He is under no obligation to retain defence counsel to cross-examine witnesses or make opening or closing submissions. If he wishes to, he can simply sit in the dock and by his plea of not guilty say to the State 'prove your case'.
The fact Mr Cable did not give evidence in the courtroom cannot be used as evidence of guilt, it is not evidence against him, it does not constitute any admission of guilt and cannot be used in any shape or form to fill in any gaps in the State's case or strengthen the State's case or draw any inference or conclusion adverse to or against him. Mr Cable's election not to give evidence in the courtroom cannot be considered when deciding whether the State has proven its case beyond reasonable doubt.
We do in fact have evidence from Mr Cable, that is, the answers that he made to the questions put to him by the police officers during his electronic record of interview. That is evidence from Mr Cable that is able to be used both for and against him at the trial. I am entitled to accept every word that he said, reject every word he said or accept part of what he said. If anything said by Mr Cable in his electronic record of interview raises a reasonable doubt in respect of an element of a count on the indictment, Mr Cable must be acquitted of that count. Mr Cable's evidence (his electronic record of interview) is to be assessed in the same manner as any other witness, however, I am entitled to take into account that he was not under oath or affirmation and not subject to cross-examination.
If I do not accept what Mr Cable said in his electronic record of interview it does not mean I convict. I put his testimony to one side and then ask, based on the evidence that I do accept, have the State proven Mr Cable guilty beyond reasonable doubt on the count I am then considering?
If after considering the evidence in its entirety I am left with a reasonable doubt in respect of Mr Cable's guilt on a particular count, he must be found not guilty of that count.
If I do not believe all or parts of Mrs Cable's evidence, it does not mean by that fact alone that I find Mr Cable guilty, I put her testimony to one side and ask whether based on the evidence that I do accept whether the State has proven Mr Cable's guilt on the count being considered beyond reasonable doubt. Mr Cable's evidence is to be assessed in the same manner as any other witness
Even if I have difficulty in accepting Mrs Cable's evidence, if her evidence or any evidence presented at the trial raises a reasonable doubt in my mind about an element of the count then being considered, Mr Cable must be acquitted of that count.
If I find that a witness has lied, then that can be a factor in the assessment of that witness's credibility or believability. Whether and how it affects credibility is a matter for my assessment.
If I find that Mr Cable told lies to the police during his electronic record of interview that can be a factor in my assessment of Mr Cable's credibility. As a matter of law, the fact a lie has been told to the police is not evidence of guilt of the count then being considered. It is a matter I am entitled to take into account in assessing the credibility or believability of what he said to the police. Whether and how it affects credibility is a matter for my assessment.
An honest witness doing their very best to assist the court can be mistaken and inaccurate. A dishonest witness setting out to deliberately mislead the court can be a convincing witness. I must consider and assess the credibility and reliability of each witness and the weight to be given to their evidence. A truthful witness is a witness that is credible and reliable.
The credibility and reliability of the evidence of each witness must be assessed.
Credibility involves assessing the honesty of the witness.
Reliability is whether a witness's account of the event they are describing is accurate.
I must consider the evidence in its entirety.
Matters that may assist in determining the credibility and reliability of a witness's evidence include, but are not limited to:
- what the witness has said in their evidence
- the manner in which the witness gave their evidence
- the genuineness of their evidence
- whether there has been any embellishment, exaggeration or fabrication of the witness's evidence
- the general impression made whilst giving their evidence
- the consistency, clarity and cogency of the witness's evidence
- the opportunity that the witness had to see or hear or know the things that the witness has testified about
- their role in the events
- inconsistencies, if any, in their evidence or previous statements
- the plausibility or implausibility of their evidence
- how their evidence compares to other evidence which I do accept, including evidence from other witnesses and/or exhibits
- inconsistencies, if any, between a witness's evidence and what they have said or done on prior occasions
- inadequacies in their evidence
- the lapse of time between the events and the witness giving evidence, and the effect that may have on the witness's ability to honestly and reliably recall the events
- the personal characteristics of the witness at the time of the event under consideration including their age, education, and background and their personal circumstances at the time of the events in question and at the time they give their evidence.
If there are any inconsistencies it is for me to determine whether the inconsistencies are significant, whether there is any reasonable explanation for the inconsistency, if it affects their credibility and reliability, and how it affects their credibility and reliability.
In assessing the credibility and reliability of a witness I rely on my own observation of the witness, what they have said, and the way they have acted, however, I am mindful that consideration must also be given to the fact that a witness because of the subject matter or indeed their own personality, may be apprehensive or nervous when giving evidence in a courtroom and therefore demeanour can be a poor guide to credibility and reliability.
The transcript of the trial is an aid to my memory; it is only used by me where I am satisfied that the transcript accords with my recollection of the witness's evidence. The evidence is what the witness said in their evidence not the transcript.
I must not speculate about what witnesses who were not called may or may not have said and only act upon evidence which was adduced in the court, bearing in mind that it is for the State to prove any count against the accused beyond reasonable doubt.
There is no rule of law that requires DS's evidence to be corroborated for the court to be satisfied beyond reasonable doubt of Mr Cable's guilt on a particular count. DS's testimony alone is sufficient. Mr Cable can be convicted on the uncorroborated evidence of DS if the court is satisfied beyond reasonable doubt that her evidence is honest, accurate, reliable and truthful in respect of all elements of the count then being considered. However, the court is not bound to accept uncontradicted evidence.
As a matter of fact when I have assessed the evidence of a witness who has knowledge of, or places some reliance on another witness's allegations of abuse by Mr Cable, then the former's evidence is scrutinised with care bearing in mind the danger that evidence is not truly the witness's own evidence but an unconscious reconstruction influenced by the knowledge that others had made allegations against Mr Cable.
A number of witnesses gave evidence from the remote rooms. Their evidence was transmitted into the courtroom by way of TV screens and the giving of evidence in that manner in trials of this nature is an entirely standard or routine procedure of the court. No inference adverse or against Mr Cable can be drawn as a result of the court adopting this standard procedure.

[24]

In respect of counts 6 and 7, being offences of inciting unlawful and indecent dealing, the State must prove beyond reasonable doubt each of the following elements.
Firstly, that Mr Cable dealt with DS in the manner alleged in the indictment.
A dealing can be constituted by an intentional touching, but a dealing also includes behaviour or acting towards a person in a particular manner. You can deal with a person by behaving towards or acting towards that person in a particular manner, provided that manner has a sexual connotation.
The State must prove that in respect of count 6 Mr Cable by conduct or words or a combination of both intentionally directed DS to suck his penis, and in respect of count 7, that he by conduct or words or a combination of both intentionally directed her to masturbate his penis.
The second element is that the dealing was indecent, that is, offensive and unbecoming to common standards of propriety and has a sexual connotation.
The third element is that the dealing was unlawful, that is, not authorised, justified or excused by law. If the dealings did occur, it is not suggested that it was authorised, justified or excused by law.
The fourth element is that Mr Cable incited DS to unlawfully and indecently deal with him.
In law you incite somebody if you stir up, encourage, stimulate, urge, or spur them on to do a particular act.
Inciting is when you encourage or spur others on to a particular act.
Therefore, in respect of count 6 the court must be satisfied beyond reasonable doubt that Mr Cable's acts or words or a combination of them were in fact directing DS to suck his penis and that by directing her to suck his penis that amounted to encouraging or spurring her on to suck his penis.
In respect of count 7, the court must be satisfied beyond reasonable doubt that Mr Cable's words and conduct or a combination of them were in fact directing DS to masturbate his penis and that by directing her to masturbate him he was urging her or spurring her on or encouraging her to masturbate him.
The fifth element is that at the time of the count then under consideration, DS was a girl under the age of 13 years.

[26]

DS was born in October 1958.
Shortly after her birth she was abandoned by her natural mother and later adopted by Mrs S and Mr S in April 1960, although she was in their care since January 1960.
Mrs S was Mr Cable's sister.
DS would see Mr Cable usually on Saturdays when she and other family members would go to her grandmother's house in Thornlie to watch Mr Cable play football on TV and after the football match she said he would come over to his mother's house and she also sometimes saw him at family picnics.
Mrs S and Mr S separated when DS was about 7 or 8 and she lived with her mother for about six months or so afterwards.
After living with her mother, she was placed into a girls' orphanage when she was about 8 ½. Her mother took her out of the orphanage for day visits a couple of times.
She said Mr Cable and his wife Helen took her from the orphanage to their house after she had been at the orphanage for about six or seven months.
She did not know the suburb where the house was located but thought it was in Thornlie.
She said it was a normal house with three bedrooms and a pool out the back. She slept in a single room in the back of the house, and she did not recall anyone other than Mr and Mrs Cable being at the home.
She said she stayed at the Cables house for three to four weeks. During this time, she did not go to school.
Originally Mr Cable was nice and she described him as loving towards her like an uncle would love a child but then things changed.
Her evidence relating to the sexual abuse with Mr Cable is detailed later when discussing tendency evidence.
She said that he told her he loved her, and this is how people show their love for each other.
The sexual abuse normally occurred at night-time but also on occasions during the day and when she was being abused, Mrs Cable was in bed or not at home.
DS said eventually Mr Cable told her he had to go away, she thought to another State, and she could not live with them anymore and was taken back to the orphanage.
She said when she was a about 13, Mr and Mrs Cable picked her up from the orphanage and she stayed with them, but nothing untoward happened.
She made no complaint to anyone at the time of the incident.
She said she told her adoptive mother years later but was not believed and Mr Cable had told her that if she told anybody that he was abusing her, she would not be believed because he was Barry Cable.
She said she told police about Mr Cable's conduct in 2023. She had heard about someone taking Mr Cable to court but she did not 'get into that'. She said she had seen news about Mr Cable having a judgment entered against him, but denied that she was 'cashing in'.
She agreed she had lived in a variety of suburbs in Perth including Subiaco, West Leederville, Redcliffe, Crawley, Claremont and Bentley and had lived in Scarborough near the beach with her adoptive parents because she remembered looking over that balcony and seeing the beach.
In her evidence-in-chief she said that she thought the house she was taken to by Mr and Mrs Cable was in Thornlie. She agreed that in her statement to the police she said that it was in Scarborough. In cross-examination she said originally that she thought it was in Scarborough, then said that she thought it was in Thornlie.
In relation to the house, she was taken to, she said she did not have a good memory of it, but she recalled having her own room and although originally she said that she could be wrong she said that it had a pool. In both cross-examination and re-examination she said the house 'definitely' had a pool, and she was 'sure' it had a pool although she did not go into the pool.
She said the house was quite big with three bedrooms and an indoor toilet, describing it as a nice-looking house and being fancy in that it had nice furniture. When shown a photograph of Mr Cable's house in Gosnells she agreed she would not describe it as flash or big.
She said the house was close or near to the beach and single storey.
She did not recall any pets and said there were 'definitely' absolutely no horses at the premises where she was abused. She said the house had air conditioning and it was on because it was warmer.
She could not recall any children being at the house and could not recall Mrs Cable being pregnant or there being any preparation for an expected baby.
While they are matters that must be found as a fact and proven beyond reasonable doubt in the context of the way this case was run, it is clear that if I am satisfied beyond reasonable doubt that the events occurred as described by DS in relation to the elements of each offence, each count would be established. DS would have been under 13, the dealings deliberate with a sexual connotation, indecent and unlawful (counts 1, 3 and 5), Mr Cable's actions would constitute inciting in respect of those counts alleging he incited (counts 6 and 7), and penetration of the vagina by the penis would have been proven (counts 2 and 4), as would be the fact that they were not married to each other.
I found DS's evidence was given in a straightforward manner and her evidence combined with the tendency that I have found the State have proven against Mr Cable makes it more likely that she was telling the truth, but it does not persuade me beyond reasonable doubt of Mr Cable's guilt for reasons explained later in this judgment.

[27]

ZYX's evidence was led as tendency evidence. Mr Cable is not facing any criminal charges as a result of his conduct towards ZYX. ZYX was the plaintiff in the successful civil action against Mr Cable.
ZYX's evidence does not relate directly to the counts on the indictment. It is not suggested that she witnessed any interaction between DS and Mr Cable.
ZYX was born in August 1955.
She first met Mr Cable when she was 12 years old in around about July 1968 when Mr and Mrs Cable moved into the house in Gooseberry Hill across the road from her family. At that time Mr and Mrs Cable had a son Barry Jnr who she would play with take for walks and babysit mostly during the football season.
Exhibit 14 shows Mr and Mrs Cable became the registered proprietors of the Gooseberry Hill Property on 30 July 1968.
She said that Mrs Cable did not work, was often unwell, would read most of the day or watch TV and lie on the sofa a lot.
She got to know Mr Cable as he was often outside gardening or doing maintenance jobs and her and her sister would have a general chat as they walked past his house on their way to the main road.
She could not recall any child (other than Barry Jnr) living at the Gooseberry Hill house.
She said over time Mr Cable would invite her and her sister inside to watch TV. At that stage ZYX's household did not have a TV.
Her evidence relating to the sexual abuse with Mr Cable before she turned 16 is detailed later when discussing tendency evidence.
She said Mr Cable's conduct made her frightened and nervous.
She gave evidence of one occasion when she challenged Mr Cable about his behaviour as he was driving her home by saying words to the effect of 'why don't you stick with real grown-up women', and he reacted angrily and smacked her with a backhand to the face resulting in her mouth bleeding. After he struck her, he went white and when they got to her house, he told her to get out and sped off. Once inside the house she cleaned her mouth and recalled arguing with her mother and telling her that she had hit a door.
ZYX said she did not tell her mother about any of the abuse because she felt ugly and was ashamed and embarrassed and believed it to be her fault and did not want to cause any problems; she had been told that she was no good for anything else and did not think anyone would believe her.
She agreed that she had kept diaries which had subsequently been destroyed. These diaries contained no mention of the sexual assaults by Mr Cable. She had not put anything in the diaries about the sexual abuse because she did not want any reference in the diaries in case they were read by others.
The diaries had what she referred to as tear drop marks similar to an exclamation mark which was for her to know which contacts with Mr Cable were horrendous.
She gave the diaries to the police but burnt them in 2005 in circumstances where she had moved to the country, the police had already seen them and told her that they did not want them, and there had already been a Royal Commission. In 2005 she moved to the country and put them onto the bonfire during a clean-up because she did not want to see them again.
ZYX said although she did not want to babysit for the Cables she believed if she was asked, she had to and therefore did so.
Her evidence was that the contact and sexual abuse continued to occur with Mr Cable after she was 16, describing the sexual abuse as relentless.
She turned 16 in August 1971, finished school in 1972 and from the end of 1972 was overseas until 1975.
In 1975 when she returned home, she said, there was sexual contact with Mr Cable. He turned up uninvited at her parents' house, and other houses where she was staying saying things to her such as 'you don't look happy to see me'. She recalled an occasion when he pushed her back into a wall or onto a bed, he talked about his penis and her 'luber lips'? She said she did not want any contact with him and she did not initiate any contact.
In 1976 he turned up unannounced at the nurses' quarters where she lived.
She went to the original State of Origin football match in 1977 with Helen Cable's mother and then went to the Parmelia Hotel for dinner with Mr Cable (she initially could not recall this incident but ultimately accepted that this occurred).
ZYX said she went to his room; he was naked and wanted her to take her clothes off. She said she did not do so and he said 'look what you doing to him' (being a reference to his penis), he got on top of her and had intercourse with her, saying it 'won't hurt', 'it will be good for you', and she told him she did not like it and it was hurting.
In 1979 after Mr Cable was discharged from hospital following his tractor accident, she was attending his home to provide a nursing service. She said she was told by members of the Cable family that Mr Cable could not go home for Christmas unless he had somebody who could attend to his nursing needs and change his bandages. She felt she was unable to say no and essentially felt she had been coerced. She believed that if she did not do so, the Cable family would be really upset with her and they were relying on her to do them a favour. So although she did not want to, she did provide nursing services to Mr Cable at his home including showering him and changing his dressings. Sometimes she stayed at his house at night but mostly it was just during the day.
In 1980 when she was at university doing social work, he turned up at the university and apparently knew some footballer who was a gardener there and made reference to the fact that he had his spies.
In 1981 to 1983 Mr Cable was in Victoria. In 1983 she went to dinner with him at the Sheraton Perth. She said he rang her and would not take no for an answer, and she arranged for her sister to attend the dinner so as to protect her.
In 1983 just before she was married he came to where she was living and pushed her into the spare room, got her onto the bed and had sex with her, and laughed at her, telling her that nobody was as good as him and her marriage would not last as her husband could not be as good as he was.
In regard to ZYX inviting Mr Cable to her wedding in 1983, she said she did not want to but her parents did not know about the abuse, and her mother thought it was the kind thing to do as he had helped the family when her father was sick. On my understanding of the evidence Mr Cable did not attend the wedding.
After her marriage in 1983 she did not remember any subsequent sexual contact. She had an answering machine installed so she did not have to answer the phone and if she heard a car she would hide in the house.
She said he made phone calls saying she was trying to avoid him and that she could not get away and did not know what was good for her, but eventually these calls stopped, and the contact just faded out.
ZYX said she continued babysitting after Mr Cable abused her. ZYX said that although she said no it did not make any difference because if she made an excuse like she could not get there, she was told to catch a bus or they would come and collect her. She also said that she continued babysitting as she was fond of Barry Jnr. However, the basic tenor of her evidence was that she was powerless and had no voice, and that if she said no to something she was told 'you will'.
She agreed that she had seen medical specialists several years previously for an eating disorder, depression, and post-traumatic stress disorder. She denied that she ever had amnesia and could not remember things or had a patchy memory.
She agreed that she told Dr Jones that Mr Cable started abusing her in 1966 when she was 11, told Dr Kirkman the abuse started when she was 9 and her evidence was that the abuse started when she was 12 in 1968 when he moved into the Gooseberry Hill house.
I found ZYX's evidence of Mr Cable's sexual abuse to be persuasive and detailed and given in a clear and cogent manner. Her evidence that she felt ashamed and embarrassed and believed it was her fault and was taken advantage of over a number of years and felt that she could not say no is consistent with the dynamics of the relationship. She was a young female, and Mr Cable was an older well-known sports person.
The circumstances in which her diaries were destroyed and her explanation for doing so are plausible and readily understandable and cause me to have no doubts about her credibility.
The defence say that events occurring after she turned 16 by way of her continued contact with Mr Cable, including going to watch him play football, going to his hotel room, meeting him for an evening meal and inviting him to her wedding are inconsistent with being sexually abused by Mr Cable as a child. I do not find that conduct occurring after she turned 16 is inconsistent with the behaviour of someone who has been sexually abused as a child. The law recognises that people react to sexual abuse in different ways. There is no normal or proper way for a person to react. The reaction can be as variable as a person's personality. The law recognises that often a victim continues to have contact with the perpetrator, particularly where there is a difference in power dynamics. I accept her evidence that she felt powerless and worthless and unable to say no.
The events occurring after she turned 16 which the defence rely upon as being inconsistent with being sexually abused by Mr Cable do not cause me to doubt that ZYX did sustain the acts of sexual abuse the subject of the tendency application, that is, before she was the age of 16.
I am satisfied to the lesser standard than beyond reasonable doubt that those acts occurred. The finding that I have made of Mr Cable's sexual abuse of ZYX are not findings to the criminal standard of beyond reasonable doubt, but to the lesser standard of the court's satisfaction.
As a matter of law, it is the tendency that has relevance in this case against Mr Cable not the specific conduct of Mr Cable towards ZYX. I have referred to the conduct of Mr Cable towards ZYX only because in a judge alone trial I must outline the primary facts I find proven that lead to the finding that Mr Cable had the tendency alleged. Roder and AR emphasise as a matter of law that the only significance of ZYX's evidence is in establishing the tendency not the specific conduct relied upon as establishing the tendency.

[28]

Mr Cable is not facing any criminal charges as a result of his conduct towards TH. Her evidence was led as tendency evidence. TH's evidence does not relate directly to the counts on the indictment. It is not suggested that she witnessed any abuse between DS and Mr Cable.
TH was born in March 1972. In 1981 she was 9 years of age and living in Victoria. She was a friend of RS who then lived next door to the Cables. The Cables and RS's family were very friendly, and the Cables were often at RS's residence.
The Cables had moved to Victoria in furtherance of Mr Cable's football career with the North Melbourne Football Club.
TH used to frequently visit the household of RS and knew from her father that Mr Cable was a famous footballer.
Her evidence relating to the sexual abuse with Mr Cable is detailed later when discussing tendency evidence. She said it was hard to remember all the details and hard to remember things after 40 years, particularly overwhelmingly traumatic matters that occurred during her childhood.
TH was adamant that the incident occurred at the spa at the residence of RS which was connected to a big pool and not the spa at the Cables' residence, but she did not remember anything else about the spa. She had no recollection of ever being in the spa at the Cables' residence.
She could not recall if RS's sister or her sister's friend or Barry Jnr were in the spa nor whether there were any adults around, nor was she sure how long Mr Cable held her breasts or how long the incident went on for or how long she stayed in the spa.
She thought the incident occurred when she was 11 or 12 but also gave a date range of three years being when she was in Grade 5, 6 or 7. She thought this incident occurred when she was 12 because she had just developed breasts and she had not developed breasts at the age of 10.
TH could not recall what bathers she or Mr Cable were wearing nor whether Mr Cable had an erection when she felt his penis against her backside, although she agreed that in her police statement she referred to Mr Cable forcing his erection on her backside. When asked about this inconsistency she said that could be just her error with the terminology; however, said she did recall feeling his penis on her backside. Her evidence was that she would not have known what an erection was at that age. She could not recall or 'was not sure' if Mr Cable's bathers were pulled over when he was pushing his penis against her backside although she said it felt like it was skin on skin.
She agreed that she told the police in her statement that Mr Cable had lifted his leg out of the water when she saw the scar, though earlier in her evidence she said that she was not sure whether he lifted his leg out of the water or if she saw the scar through the water. She clearly remembered the scar.
She did not tell anyone but had a vague recollection she may have told RS that day about what happened. She said nothing to anybody in authority for some 30 - 40 years.
Whilst she was pretty sure that RS's sister and Barry Jnr were in the spa at the time she accepted that she could be wrong and be referring to another occasion.
She did not recall if Mr Cable's knee was above or under the water. She thought Mr Cable's penis was under the water when she saw it.
She did not recall if her breasts were above or below the water when Mr Cable held them.
She felt very uncomfortable when Mr Cable touched her breasts.
TH said she felt uncomfortable and embarrassed and never went into the spa with Mr Cable again and when he attended the residence of RS on other occasions she would stay upstairs.
She agreed that she did not tell anyone other than RS about the matter until she spoke to the police in June 2023. She did not say anything to anybody because her father was excited by Mr Cable's football career and Mr Cable was a close friend of RS's family.
TH said she was embarrassed and uncomfortable and a bit scared to say anything.
TH said that after she read the media reports of ZYX's evidence in the civil trials and read parts of ZYX's story and some of her evidence, she felt compelled to come forward and she contacted ZYX's lawyers but not the police. She said that she felt overwhelming trauma and that she wanted to add support to ZYX's civil trial in circumstances where she had been abused.
TH said she was not interested in damages or any material reward for herself and had not contacted the police, they had contacted her after she gave evidence in the civil trial. She said was not interested in pursuing criminal charges saying she was just not interested in going down that path.
TH felt traumatised by Mr Cable's conduct towards her.
I accept the genuineness of TH's evidence in that she was not interested in pursuing any criminal charges herself against Mr Cable or seeking any personal reward.
I find that TH's evidence had some elements of uncertainty and I take a cautious approach to relying on her evidence for two significant reasons. Firstly, as outlined above, she knew that ZYX had made allegations against Mr Cable of sexual impropriety and had read media reports of her evidence, and felt compelled to come forward. I accept that she came forward for altruistic motives; however, the danger that her evidence has been affected unconsciously by her knowledge of another person making allegations against Mr Cable must be considered.
Secondly TH said it was hard to remember all the details after 40 years, she was not sure for example who else was in the spa, whether there were any adults around, how long Mr Cable held her breasts, or how long they were in the spa she said that she could be wrong in describing other people in the spa and could be referring to another occasion. I do not attach any significance to whether Mr Cable had an erection or not, I accept her evidence that she felt his penis on her backside and whether she describes it as an erection or something else is of little consequence.
Evidence as to whether she saw his leg out of the water or in the water does not detract from her evidence to any degree.
Even considering those reservations, I am satisfied to the court's satisfaction, a lesser standard than beyond reasonable doubt, that her account of Mr Cable's sexual contact with her occurred. Her evidence as to Mr Cable's contact with her is accepted. It had some elements of uncertainty in detail, but on the central issue of sexual contact her evidence was consistent and clear. The finding that I have made of Mr Cable's sexual abuse of TH are not findings to the criminal standard of beyond reasonable doubt, but to the lesser standard of the court's satisfaction.
As Roder and AR emphasise as a matter of law, the only significance of TH's evidence is in establishing the tendency not the specific conduct relied upon as establishing the tendency. I repeat and refer to [158].

[29]

Mr Cable is not facing any criminal charges as a result of his conduct towards RS. Her evidence is adduced as tendency evidence. RS's evidence does not relate directly to the counts on the indictment. It is not suggested that she witnessed any abuse between DS and Mr Cable.
RS was born in May 1982 and by the end of 1981 was 9 ½ years of age. The Cable family were living next door to her family.
She knew the Cables well. They became family friends. She was friendly with the Cable children, describing the Cable boys as like her brothers.
The two families would visit each other's residences.
Mr Cable had a spa at his house which was used regularly by her and her sister because it was some time before RS's residence had a spa and pool installed.
Her evidence relating to the sexual abuse with Mr Cable is detailed later when discussing tendency evidence.
She said that when Mr Cable was touching her breasts the spa water was generally over her breast area.
She said that although there were different people in the spa at different times there were never any adults other than Mr Cable in the spa.
She said that when he was molesting her, she would say 'Stop it' and he would just laugh.
She said she had not spoken to TH for around about 24 years and had not discussed the matter with her other than when as children they discussed what occurred.
She said she did not say anything to anybody at the time other than TH because she was very young and felt embarrassed and mortified. She did not say anything to her parents because they had a great relationship with the Cables and her father just would not have believed it.
She said she came forward to give evidence because enough is enough and he had 'just gotten away with it' and she had heard there were other people coming forward and 'we thought. We have to do it, it's the right thing to do'. She agreed that she wanted to see Mr Cable get his just desserts.
She was adamant the incident occurred at the Cables' spa and not at the spa at the residence of RS.
She became aware that TH made similar allegations and was aware that TH had come forward to give evidence in the civil trial. She was aware TH was making similar allegations because she recalled the conversations she had had with TH when they were children at the time of the events.
She said she had seen TH sitting on Mr Cable's knee. She never saw Mr Cable pull TH's bathers to one side or put his penis against TH's backside, although she did see him cuddle her. She never saw Mr Cable expose himself to TH, but he exposed himself to her.
I find that at the time of the events to which her evidence related TH was young and embarrassed and mortified by Mr Cable's behaviour, but also aware of Mr Cable's status as a footballer not only in the community but also with her father.
I accept the genuineness of her evidence that she came forward because she felt that 'enough was enough' and Mr Cable had just gotten away with it.
I examine her evidence with caution because of the time gap between the events and her evidence and because she was also aware that other people were coming forward in relation to Mr Cable and the dangers inherent where a person is aware of others making allegations.
I find RS came forward for altruistic motives I am satisfied to the court's satisfaction, a lesser standard than beyond reasonable doubt, that her account of Mr Cable's sexual contact with her occurred. RS's evidence as to Mr Cable's contact with her is accepted. Her evidence was clear and cogent in that regard. The finding that I have made of Mr Cable's sexual abuse of RS is not a finding to the criminal standard of beyond reasonable doubt, but to the lesser standard of the court's satisfaction. As Roder and AR emphasise as a matter of law, the only significance of RS's evidence is in establishing the tendency not the specific conduct relied upon as establishing the tendency. I repeat and refer to [158].

[38]

The defence says the letter refers to DS spending a period with the Cables but we do not know when, for how long, or where, and it does not show that DS stayed at the Cables' residence. I agree with that submission.
The State says Exhibit 8 supports the proposition that at some time DS had been living with the Cables which contradicts Mrs Cable's evidence. I agree with that submission. The State say that the remaining letters establish that the Cables had more contact with DS albeit perhaps in 1971 than Mrs Cable was prepared to concede in her evidence and show Mrs Cable was downplaying any contact with DS. I agree with that submission.
Detective Bembridge also produced various exhibits being the orphanage records. Exhibit 5 is described as maintenance returns for the orphanage for the months of March, April, May, June, July and August 1968. In each case the month that I have referred to is handwritten and the previous month which was typewritten has been crossed through.
It is not known who made these crossings through or indeed when that was done. On each of the six pages there are some typewritten names and there are other names which are handwritten in biro. It is not known when the typing or the handwritten entries were made. In five of the six months, DS's name is typed, for the other month it is handwritten. Each page has a designated column to insert the date of admission, date of leaving, and the number of days maintained. In some cases, dates are handwritten, in others they are typed but the typing is crossed through.
An entry appearing for DS is in the August maintenance return which shows the date of leaving is 3 August 1968 (handwritten) and the number of days maintained being three. It is unknown whether the 3 August 1968 refers to leaving for one day or more than one day. In one of the months DS's name has an 'x' next to it and we do not know what the 'x' relates to or indeed when the 'x' was entered.
In relation to Exhibit 6, being the periodical claim for payment for child endowment for the orphanage there are three pages 19 September 1967 to 11 December 1967; 12 December 1967 to 4 March 1968 (which dates have been crossed through); then 28 May 1968 to 19 August 1968 with the dates 5 March 1968 and 27 May 1968 which have been crossed through.
In relation to the first page of the record (19 September 1967 to 11 December 1967) there are typewritten and handwritten entries, ticks and part of the document is marked with an 'X'. DS's entries are handwritten and show a date of admission being 4 February 1968. It is not known whether that is the date of the first admission or whether there had been any previous admissions. The page was certified correct on 4 January 1968, yet it has entries handwritten on it which refer to dates in February 1968.
In relation to the second page (12 December 1967 to 4 March 1968) (which dates have been crossed through) DS's name appears in handwriting, other entries are typed, there is a tick against some names but not against hers for periods of absence, there is no date of admission, and no date of departure. Some entries are ruled through.
In relation to the third page (28 May 1968 to 19 August 1968 replacing the crossed through dates 5 March 1968 and 27 May 1968), DS's name appears in type, there is a biro cross next to it, a departure date of 3 August 1968, and no period of absence noted.
Exhibit 7 is the periodical payments for the orphanage (which by that time had been renamed). The first page relates to 2 March 1971 to 24 May 1971 and is certified on 31 March 1971. It has some handwritten entries, some typewritten entries, it has numerous 'x' marks and some entries are lined through. DS's date of admission is shown as 22 June 1971.
The second page is for the period from 25 May 1971 to 16 August 1971 and was certified on 23 August 1971. It has handwritten and typed entries, crossings out, and notations when DS left the institution on 8 October 1971.
The third page is for the period 17 August 1971 to 8 November 1971 and is certified 18 November 1971. It has some entries typed, some handwritten and some crossings out and other markings.
These are the only records, limited though they are that were able to be obtained.
There is no admission of DS to the orphanage during the 1960s shown other than 4 February 1968 and the only record of her leaving the orphanage in the 1960s was 3 August 1968.
The State says the records produced do not prove that DS was not at the orphanage in 1966 or 1967 when they say the offending occurred. I agree with that submission.
The defence say the records can be accepted and result in the period of offending being further refined to between 4 February 1968 and 28 April 1968 as outlined in the summary of defence case.
I reject the submissions that the records can be relied upon to establish that DS was not at the orphanage at an earlier date but accept the validity of the defence submission that the State has not excluded the proposition that any offending occurred during the period outlined.
The records are incomplete. The records do not establish that DS was not at the orphanage before 4 February 1968. The incomplete records and the lack of explanation as to the meaning of the entries on the produced records do not enable the inferences the defence seek to draw from the records to be drawn; however, of more significance is that there is no confirmation from the records that DS was taken from the orphanage for three to four weeks by Mr Cable or his wife at any time.
Detective Bembridge also participated in and produced an electronic record of interview (Exhibit 15) with Mr Cable. The interview has been edited. I remind myself as a matter of law that edits can only be made by an agreement between the parties or an order of the court and edits are made to take out irrelevant materials and no inference adverse or against Mr Cable can be drawn as a result of the electronic record of interview having been edited.
Mr Cable gave details of his football career and details of the approximately 10 residences that he had resided at over the relevant period of time.
He told the police that no one other than family members lived with them at the relevant time and named the three residences he lived in that had swimming pools. He made no admissions as to any criminal conduct.
I accept what Mr Cable told the police about his football record, the various residences that he resided at, and which premises had a pool. In the context of the case and the direct issues raised in this case, there is nothing in Mr Cable's evidence that directly relates to any element of any count on the indictment.
The officer agreed that there had been no investigations in relation to the specific contents of the statements of ZYX, TH or RS, and nothing turned up in the investigation to indicate that Mr Cable had lived in or near a property in Scarborough or had a property with a swimming pool in the 1960s.
Detective Bembridge confirmed that DS alleged she had been abused by Mr Cable's brother who was deceased at the time she spoke to the police.
Whilst DS referred to abuse from a priest and her mother's boyfriends, the detective's evidence was that the only complaint she wished to make was against Mr Cable.
The detective agreed that the land title records (Exhibit 18) showed that Mr Cable was the registered proprietor with his wife of a property at Gosnells Road, Gosnells from 22 June 1967. The detective did not know whether the Cresswell Street, Gosnells property that Mr Cable lived in before moving to the Gosnells Road property had a pool.
The detective agreed that DS never suggested there was a baby at the premises when she was abused by Mr Cable nor that there were any horses at the property or it was in a semi-rural area.
I accept Detective Bembridge was a witness of the truth. Her evidence was clear, and it seemed to me that she made the appropriate concessions about matters that she was not sure of bearing in mind her role in the investigation. There was nothing that caused me to have any doubts in relation to her credibility or truthfulness, however, at the end of the day the central issues of the trial do not turn on her evidence.

[42]

Mrs Cable is 81 years of age having been born on 4 December 1944.
She first met Mr Cable when she was 15 years of age in 1959, and they were married on 6 March 1965.
She said that during her association with Mr Cable they had never lived near the beach.
Mrs Cable said she was a homebody, not an away from home person and liked to be at home, she did not have a car and read a lot and rarely if ever went to the movies.
When she married Mr Cable, they lived with his brother Joe and his mother at a residence in Cranwell Street in Thornlie. There was no pool or air conditioning at that residence.
They moved from that residence to Gosnells Road, Gosnells. Although the certificate of title (Exhibit 18) shows the title transfer was registered on 22 June 1967 her evidence was that they moved into that property shortly before that date. There was no pool or air conditioning at that residence.
Ms Cable said the Gosnells Road property, had two bedrooms, a loungeroom, a bathroom, a joint kitchen/dining room, the toilet was outside, and it had laundry troughs outside. She said at the property they had a dog and two horses; the two horses arrived at the property shortly after they moved in and stayed until about one month before they moved out. She said that it was a large property with a small house. Her sister Phyllis stayed regularly on the weekends and school holidays. Exhibit 19 is various images from Landgate of that property in 1965, 1970 and 2009.
She said DS never spent a night at the Gosnells Road property and never stayed at any house where they lived.
She said she had very little contact with Mrs S after she split with her husband Mr S and she was vaguely aware that Mrs S had some problems with alcohol and aware that after the split DS stayed with Mrs S and the son went with Mr S.
Barry Jnr was born in April 1968 and in about August 1968 they left Gosnells Road and moved to a property in Gooseberry Hill, which property did not have any air conditioning or a pool.
She never saw anything inappropriate occur between ZYX and Mr Cable.
In 1968 Mr Cable was a pool manager, but she did not recall him going to the pools after hours.
Towards the end of 1969 they moved from the Gooseberry Hill property to a property in Kelton Road, Thornlie and in 1970 they moved to Melbourne.
She said ZYX came to the house on occasions. On occasions Mr Cable would pick her up and bring her to the residence but said that she was not babysitting Barry Jnr at that address; however, she agreed that ZYX did sleep over on some occasions.
In 1970 the family moved to Melbourne for football commitments returning in 1971 to the Kelton Way, Thornlie house. Mrs Cable said ZYX did not babysit in 1971 but may have slept over on a few occasions.
In 1973 to 1977 the family were in Melbourne for football commitments.
In 1979, Mr Cable suffered a tractor accident and was hospitalised for four months and ZYX cared for him for about a week.
From 1981 to 1984 the family were in Melbourne for football commitments and were friendly with and spent a lot of time with RS's family.
Mrs Cable said that Mr Cable could have gone to RS's home alone, but she had no recollection of him going to their residence without her and she did not recall RS and her sister bringing any friends over to the spa at the Cable residence.
She said she only ever referred to Mr Cable as Barry not 'Cables'.
Mrs Cable said she never ever visited DS at an orphanage and had not heard of the orphanage before this case.
In relation to Exhibit 8 she said the letter's reference to DS living with them is incorrect. In relation to Exhibit 10 she said the reference to DS spending time with Mr & Mrs Barry Cable, was also incorrect. The reference in Exhibit 11 to Mr Cable taking DS from Mr S's residence, was something that she had no recollection of.
In relation to Exhibit 9, she agreed that Mrs P, to her knowledge, was the godmother of DS but said the reference to The Cables having advised that DS was welcome to spend weekends and holidays with them was incorrect. She said DS never spent weekends and holidays with Mr and Mrs Cable.
She agreed that Mr Cable often wore racing bathers.
Mrs Cable said Mr Cable did like to sunbake out the back but would not agree that she had seen him nude, saying he normally had underpants on, adding that he rarely sunbaked because he would be doing running or weights.
When asked if Mr Cable was naked around the home Mrs Cable's reply was to the effect that only when he was going from the bedroom to the bathroom, saying he normally had a towel on. She agreed that on some hot days he would be dressed only in his jocks.
She could not remember any day when Mr Cable was home without her also being present at the premises explaining that the way that she was brought up, a wife was home when her husband was home.
She agreed that strangers would stop Mr Cable and say hello and he appeared to her to be both well-known and well liked.
Ms Cable said that ZYX was trusted with Barry Jnr, but only when Mrs Cable was around and said that ZYX came to some but not many football games.
Ms Cable said there were occasions when she did order fish and chips after football games, and ZYX would go on occasions with Mr Cable to get the fish and chips.
She denied that she was in effect telling lies to assist her husband's case.
Mrs Cable's evidence relating to the circumstances in which she met Mr Cable and the various suburbs that they had lived in, the Cable family circumstances and configurations of the various houses they resided in is generally accepted by me because it is generally corroborated by other evidence such as agreed admissions and Exhibits 12,13,14, 18,19. I accept her evidence in relation to the presence of the horse and the dog at the Gosnells Road address as it is supported by independent photographs: Exhibits 20 - 22 inclusive.
However, significantly, Mrs Cables evidence lacks credibility in other areas. I reject as inherently implausible her evidence that she was always home when Mr Cable was home. Her evidence that DS did not stay at the residence at any stage is contradicted by independent evidence which I do accept. Exhibit 8 refers to 'they' which can only be a reference to Mr and Mrs Cable as having 'had Deborah live with them before'. I accept that that may relate to a period in 1972 as opposed to an earlier period. At this stage that is not the significance. The significance is that the letter directly contradicts the evidence of Mrs Cable that DS never stayed at any of their houses. The remaining letter exhibits (Exhibits 9 - 11 inclusive) are not treated by me as evidence that DS stayed with Mr and Mrs Cable but are letters which provide support for the proposition that Mrs Cable and Mr Cable had more to do with DS than her evidence indicated.
I find that Mrs Cable was trying to downplay or minimize any contact she had with DS and I reject her evidence that DS had not stayed at any residence where the Cables were located.
I find I only rely on Mrs Cable's evidence if it is supported by independent evidence that I accept.

[43]

I remind myself as a matter of law, of the following matters.
DS was a family member of Mr Cable pursuant to s 4 of the Restraining Orders Act 1997 (WA), and s 37 - s 39 of the Evidence Act. It is not in dispute that they were related to each other. On the State's case she resided with Mr Cable at the time, they had a personal relationship of a domestic nature in which their lives were interrelated and the actions of one affected the actions of the other person.
Family violence specifically includes sexual assault or sexually abusive behaviour or causing someone to be exposed to sexual assault or sexually abusive behaviour.
Family violence as a matter of law can include a single act or several acts that form a pattern of behaviour.
As a matter of law, experience shows that people may react differently to acts of family violence including sexual abuse being committed against them and there is no typical, proper or normal response to such acts.
It is not uncommon for a person who is subjected to such sexual abuse to not report such abuse to anyone or seek assistance to stop the abuse or to continue to see the perpetrator even after the abuse has commenced.
How a person responds to the abuse can be influenced by a variety of factors including: the nature of the abuse; the age of the victim; the relationship of the alleged offender with the alleged victim; the fear of further abuse used by the perpetrator; the desire of an alleged victim not to discuss the matter or embarrassment at discussing the matter; and the victim's fear that disclosure of the abuse could damage family relationships.
The normalisation of the abuse may also be a factor in a person's reaction.
Social, cultural, or personal factors, or inequities experienced by the person associated with their age can also be a factor.
The desire of an alleged victim to get on with their life and get over it can also be a factor in their reaction to such abuse.
In this regard as a matter of law I must consider the history of the relationship between the parties including the cumulative effect of any sexual abuse, the psychological effect of such abuse, the general nature and dynamics of the relationships of the parties and be mindful of these matters.
Matters including but not limited to DS's very young age, her family circumstances in that she had been placed in an orphanage by her adoptive mother, her relationship with Mr Cable and other members of the Cable family, Mr Cable's age, status and power in relation to her circumstance must all be taken into account in relation to any consideration of issues associated with her reaction to Mr Cable's alleged sexual abuse.

[44]

The nature of this case involves allegations of child sexual abuse occurring about 57 - 60 years ago. Child sexual abuse generally occurs in secret; it is usually not supported by any documentary or corroborating evidence.
There are no eyewitnesses saying they saw what happened, there is no admission by Mr Cable that the offences occurred nor any forensic evidence supporting DS's evidence.
The only direct evidence as to the events occurring is the evidence of DS who says Mr Cable sexually assaulted her in the manner she describes in her evidence. No complaint was made to the police until January 2023 and DS's statement to the police was made on 10 March 2023. Her evidence was given on the 10 March 2026. The delay from the time of the alleged offence to DS reporting the matter to police is about 54 - 57 years.
Mr Cable was not spoken to by the police until 24 May 2024. By his plea of not guilty he says that he did not sexually assault DS. Mr Cable's first opportunity to question DS about the allegations was when she gave evidence some 57 - 60 years after the date of the alleged offending.
As a matter of law this means the fairness of the trial has necessarily been impaired by the long delay in bringing the matter to court.
As a matter of law I am required to take into account the forensic disadvantage suffered by Mr Cable arising from a delay of almost 60 years before being confronted with these allegations, accordingly the accuracy and reliability of DS's evidence must be scrutinised having regard to the length of time since the events occurred and considering all the circumstances of the case.
In particular the delay reduces the prospects of a fair trial as the passage of time can result in lost forensic opportunities for an accused to make enquiries and explore the alleged circumstances closer to the time of the alleged events which may have uncovered additional evidence throwing doubts on the allegations. The lengthy delay can limit the possibilities of significant evidence being available to contradict or cast doubt upon the allegations or support a plea of not guilty.
The lengthy delay also effects the complainant, witnesses and the accused's memory of events. Human memory is fallible, obvious witnesses can be wrong in their recollection for a variety of reasons, ordinarily that degree of fallibility increases with the passage of time. Where there is a lengthy delay the fallibility of human memory and the capacity for post event rationalisation of events long since or distortion in human recollection or reconstruction of memory must be considered. The delays increase the possibility of the unreliability or inaccuracy in DS's evidence. The longer the delay and the matter being brought to court more opportunity there is for error.
As a matter of common experience, the longer you believe something happened the more convinced you are that it occurred, and this could be so even if you are mistaken recollection.
If a trial is held closer to the date of the allegation's witnesses may have had more specific recall on certain matter. The lengthy time gap means some witnesses are unable to recall specific evidence on what may be considered to be very much minor or peripheral issues but are still issues that require consideration. The passage of time diminishes the capacity of Mr Cable to fully test DS's evidence.
The usual way of testing the evidence of a complaint is by reference to surrounding circumstances and the details which while not of significance in themselves might help to indicate that a witness is either untruthful or unreliable. The surrounding circumstances and details are precisely what is lost or potentially lost when there is a very long delay and that creates forensic disadvantage to Mr Cable.
As a matter of law, a Longman direction (Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79) is required if the delay is substantial and has been productive of a forensic disadvantage compared with the position if DS has made a reasonably contemporaneous complaint. The potential disadvantage is to be assessed having regard to the course of the trial including the defence's case at trial. There must be a link between the delay and the real danger of a miscarriage of justice. If there is such a link, I must give myself a Longman warning.
It is for Mr Cable to identify the forensic disadvantage said to arise from the delay. It is not necessary that he give evidence as to the forensic disadvantage.
I am satisfied that a Longman direction is appropriate in this case as the delay was substantial and productive of forensic disadvantages.
The 'Longman factors' articulated by Mr Cable are as follows.
- The general fading of memories after 50 - 60 years.
- The inability to call any of the nuns from the orphanage to prove that the records are accurate and complete, as they are probably deceased.
- The inability to call Mrs S who is deceased or Mr S or Len McCracken or Mrs Cable Snr or Mr J Cable.
- The inability to establish any potential alibi - including in relation to the tendency evidence from ZYX.
- The inability to establish the veracity (or otherwise) of the 'fish and chip shop runs'.
- The inability to have any forensic test done particularly on those counts (for example) where there is an allegation of ejaculation.
The fading of memories can be inferred from the length of the delay and the facts and circumstances of the alleged offences and does not require evidence from Mr Cable or any other witness.
I find there is a forensic disadvantage suffered by Mr Cable in relation to the incomplete records from the orphanage and the meaning of the records that were produced. Is DS's date of admission referred to the first date of her admission to the orphanage? Is the date of departure and date of leaving referring to a departure for an hour or a day or for a longer period of time? Why are some entries typed and others handwritten and why do entries appear on some records that postdate the date of certification? Significantly the absence of accurate records for the whole of the period alleged in the indictment restricts Mr Cable's ability to be able to test DS's 60-year-old recollection and in particular to challenge by independent records her assertion that she was absent from the orphanage for a continuous three to four-week period.
In relation to the death of the witnesses (Mrs S, Mr S, Mr McCracken, Mrs Cable Snr and Mr J Cable) the defence submitted that their evidence could have put 'aspects of what is suggested by the prosecution to bed'.
I find the inability to obtain evidence from Mr J Cable and Mrs Cable Snr creates a forensic disadvantage to Mr Cable in that it restricts his ability to challenge the evidence of DS on several issues (ie the frequency of DS's attendance at Mrs Cable Snr's house to watch Mr Cable's televised football matches and the general frequency of contact with Mr and Mrs Cable). In the context of the evidence given in the case that Mr S took little interest in DS's welfare other than to pay the maintenance and Mr McCracken appears to have had issues with alcohol it is hard to see any specific forensic disadvantage therein resulting.
In relation to the 'fish and chip shop runs', I find Mr Cable has potentially lost the forensic ability to be able to challenge, by evidence from a person other than his wife, the evidence that it was a regular Saturday night occurrence whereby he drove DS to the fish and chip shop and he stayed in the car while she went inside and collected the meal. While it is a peripheral point (as the sexual abuse occurring after the fish and chips were collected), it is still an issue the defence are entitled to challenge.
In relation to potential alibi, because of the general nature of the very broad timeframes alleged by DS and the lack of precision and details given in respect of timing and other events occurring at the time, I find it is not possible for Mr Cable to undertake precise enquiries about possible alibis. The large date range in circumstances where Mr Cable clearly had other commitments such as football training, meant Mr Cable could not realistically be expected to recall where he was on each of the days over the pleaded timeframe. Nor reasonably could he be expected to be able to say where he was and what he did on the day or evening or where other members of his immediate family where. If a complaint had been made reasonably contemporaneously, he would not have suffered such a forensic disadvantage. I find the disadvantage is a combination of both the passage of time and the uncertainty of the dates of the alleged offending. In my view whilst I accept that a Longman direction is not required to address disadvantages that are obvious, the combination in this case of both the substantial delay and uncertainty of the dates creates forensic disadvantage.
In relation to the inability to have forensic tests done, clearly some tests must be done within hours, days or at most weeks, to be of any value. There is no evidence as to, for example, how long semen stains are able to be recovered from items of clothing and or from the body of another person. Nor is there any evidence that the use of a lotion (as referred to in DS's evidence in relation to counts 1, 2, 3, 4, 5 and 6) would have been able to be forensically discoverable if there had have been a contemporaneous report. This point would not be sufficient to justify a Longman direction. However, if the matter was reported contemporaneously, investigations could have been made as to whether any lotion as referred to by DS was located at the Cables' residence.
I find Mr Cable did suffer forensic disadvantage as a result of the substantial delays and as a matter of law that forensic disadvantage must be considered at all stages when I consider DS's evidence.
Accordingly, as a matter of law I must scrutinise DS's evidence with special care. Before I can convict Mr Cable on a count I must be satisfied beyond reasonable doubt of the truthfulness, accuracy, honesty and reliability of DS's evidence in respect of that count.
I must bear those matters in mind and how it impacts on the reliability of DS's evidence.
Because of the complaint being made so long after the alleged offending Mr Cable has been forensically disadvantaged in that his ability to rebut and properly test and challenge the allegation and call evidence to support or marshal his defence has been lost or substantially reduced by the delay.
This may give the misleading appearance of plausibility to DS's evidence simply because he cannot so many years after the alleged offence have evidence to reinforce his plea of not guilty or the means to test DS's evidence.
I must bear in mind that the delays effect both DS, and Mr Cable's memory and Mr Cable's ability to test the evidence and to be able to recall matters and call witnesses to support his defence and effectively challenge the evidence of DS.
The passage of time between the alleged event and the matter coming to court means I must consider the truthfulness, reliability and accuracy of DS's recollection and whether I can safely rely and act upon it and be satisfied beyond reasonable doubt of Mr Cable's guilt on the count then being considered.
The long experience of the court shows that an accused can suffer miscarriages of justices as a result of long delays and for the reasons I have referred to as a matter law I must be alert to those dangers and scrutinise DS's evidence with special care.
I am at liberty to act upon DS's evidence alone and convict Mr Cable if I am satisfied beyond reasonable doubt that her evidence on the elements of the count I am considering is honest, truthful and accurate and reliable but I must first of all scrutinise her evidence with great care and consider the facts and circumstances relevant to the warning that I have just given myself including the forensic disadvantage suffered by Mr Cable as a result of the substantial delay which logically bears on the honesty, truthfulness, or accuracy or reliability of DS's evidence. I must carry out that careful scrutiny and be conscious of the Longman warning at every step along the way.
The same Longman principles apply to my assessment of the tendency evidence. ZYX was recounting events she says occurred between, in essence, 1968 and 1983; TH was recounting events in a time range between approximately 1981 and 1984; and RS was recounting events occurring between 1981 and 1983. In assessing the evidence the State rely upon to establish that tendency, the same Longman principles apply.

[47]

Evidence was given of what may be considered to be disreputable conduct by Mr Cable. That is conduct not the subject of any criminal charges and was either not adduced by the State as tendency evidence or not permitted by me to be led as propensity evidence.
Such evidence includes: DS's evidence that Mr Cable said they do did not wear underpants at his residence; ZYX's evidence that before she turned 16 Mr Cable indulged in sexualised talk not accompanied by physical sexual interaction with her; ZYX's evidence that when Mr Cable was at his house he would come down the passageway with a towel around him and then drop the towel exposing himself to her; ZYX's evidence that Mr Cable struck her on one occasion; and ZYX's evidence that after she turned 16 Mr Cable continued to relentlessly sexually abuse her.
This conduct is not the subject of any criminal charges and was either not adduced or permitted by me to be led as tendency evidence and is admissible only as contextual evidence. That is evidence of the surrounding circumstances relevant to explain the nature of the relationship and interactions of the parties at the time of the events in question and to enable the witness to give a complete account of the events in their entirety, and explains and enables the allegations to be put in their true context and to establish that the charged acts or acts relied upon as tendency evidence did not occur out of the blue or in isolation.
Even finding as I do to the court's satisfaction, a lesser standard than beyond reasonable doubt, that Mr Cable behaved in the way alleged, as a matter of law, I cannot and do not reason by that account that means that Mr Cable is the type of person who is likely to have committed the count on the indictment or is more likely to have committed the count on the indictment that I am then considering, and such evidence cannot be considered by me in deciding whether the State has proven beyond reasonable doubt Mr Cable committed the count on the indictment that I am then considering.
The contextual evidence can of course be used for other evidentiary purposes, thus ZYX's evidence that after she turned 16 Mr Cable continued to relentlessly sexually abuse her remained relevant to the defence submissions, which I rejected, that her behaviour was inconsistent with being abused by Mr Cable as a child.

[63]

ZYX's evidence was to the general effect that before she turned 16 Mr Cable would talk to her about sexual matters including telling her that she needed to be coached about life as her father was sick, she needed to learn about the birds and the bees, asking her whether she had seen her father naked, asking whether she had pubic hair, commenting on her breasts and legs, and telling her he would coach her in life and that she should be grateful and was lucky to have somebody to teach her how to be a hit with men.
By the time she was 13 ZYX said Mr Cable was getting into her personal space and touching and shaking her breasts, rubbing himself against her and getting her to touch his penis.
ZYX gave evidence of specific occasions of sexual activity including:
1. Mr Cable pushing her head into his groin while he was naked in a car. She resisted and said he never put his penis into her mouth, but she would have it literally in her face.
2. On numerous occasions on the way home from the fish and chip shop on Saturday nights Mr Cable would stop the car, take his pants off and put his hands down her bra, touch her, put his hand down her pants, get her to touch his penis, sometimes forcing her head into his groin, get her to touch him and touch himself in her presence, and tell her to get her 'luber lips around this' (being a reference to his penis).
3. On one occasion, at night, on the zigzag track Mr Cable put his hands down her bra on her breasts, took his pants and jocks off, rubbed, touched and fingered her vagina and breasts and wanted her to take her pants off.
4. On another occasion in the daytime on the zigzag track he touched her, took his jocks and shorts off, tried to take her pants off, and made her play with his penis.
5. In the exercise shed of his Thornlie home he pushed himself up against her and rubbed his penis against her and would sometimes rub her breasts up and down or poke her breasts and talk about his penis as his 'totem pole'.
6. In 1969 or 1970 he poked, rubbed and, shook her breasts and rubbed her vagina whilst they were both on the floor of the Cable residence after he had been given permission by the nuns of the boarding school to take her and her sister home for the weekend.
7. At the Thornlie pool laying a towel on the concrete and taking his shirt off, getting on top of her, encouraging her to take her pants of, putting her dress up getting her pants to her knees and putting his penis into her vagina.
8. On occasions at the pool rubbing her breasts and rubbing himself against her whilst behind her, tickling her vagina with his feet, and taking his bathers off and encouraging her to take her bathers off.
9. When she was 15 taking her to the Perth Football Club changerooms and laying her down on a slatted bench, taking her pants off, taking his pants off and getting her on top of him and inserting his penis into her vagina and when she said it hurt and it was wrong told her she would 'like it'.
10. Making remarks to her such as 'you're good at this' when he would get her to touch his penis, telling her that they 'weren't hurting anybody', 'no one would know' and she would be grateful one day and be 'begging' for it.
11. Making remarks saying how good she was and saying things like 'see what you've done' and 'he likes you' being a reference to his penis.
ZYX also gave evidence of sexual conduct by Mr Cable towards her after she turned the age of 16. For the avoidance of any doubt this evidence was not relied upon as tendency evidence by the State in the application before his Honour Judge Staude and it was not led as tendency evidence before me and is not treated by me as tendency evidence but as contextual evidence.

[68]

His Honour Judge Staude ruled in July 2025 that the tendency evidence then proposed to be led by the State was admissible as part of the State case pursuant to s 31A of the Evidence Act. His Honour could of course only rule on the evidence the State proposed to lead.
Where trial by judge alone occurs it is incumbent upon the trial judge having heard the evidence given at trial to determine as a matter of law whether the tendency evidence is admissible under s 31A of the Evidence Act, ie is it tendency evidence, would it have significant probative value and does it pass the fair-minded person test?
It is not necessary for me to restate the principles applicable to s 31A which with respect are correctly and succinctly set out by his Honour Judge Staude and I adopt as my own his Honour's reasoning.
I agree with and independently reach the same conclusion as his Honour Judge Staude, with one small exception which I now deal with, that the evidence is tendency evidence. It is evidence of a tendency and either by itself or having regard to other evidence adduced has significant probative value in that it is capable of rationally affecting the probability of the existence of a fact in issue namely whether Mr Cable committed the offences as alleged against him and a fair-minded person would think the public interest in adducing all relevant evidence of guilt must have priority over the unfair trial risk.
His Honour Judge Staude correctly indicated authorities such as R v Dennis Bauer (a pseudonym) and KHA v The State of Western Australia [2022] WASCA 173 establish that there is a need to identify some feature of the proposed tendency evidence which links with the charged offence.
There is no necessity for there to be 'striking similarity' or 'underlying unity', however, the nature and extent of similarities is relevant but not determinative of significant probative value: TL v The King [2022] HCA 35. Considerations such as the nature, quality, extent and duration of the conduct and the extent of any rational connection between the tendency evidence and the charged acts all bear on whether the propensity evidence has significant probative value. DKA v The State of Western Australia [2017] WASCA 44.
Walsh v The State of Western Australia [2024] WASCA 78 recognises that if one particular sex act committed against a complainant is different to other sexual acts committed against the alleged victims of the proposed evidence it does not necessarily deprive the evidence of significant probative value.
I find that any sexualised talk towards ZYX before she turned 16 not accompanied by physical sexual interaction has probative value but does not have significant probative value in respect of any charged acts and I would not permit that evidence to be adduced as tendency evidence and instead treating it as contextual evidence. Other than that small matter I agree with and gratefully adopt his Honour's reasons.

[69]

As both Roder and AR make clear, the issue for determination is whether the tendency alleged by the State has been proven. It is the tendency which becomes part of the circumstantial case not the conduct relied upon to prove the tendency.
The crucial distinction between considering the alleged tendency conduct in determining whether the tendency is established, where neither the conduct nor the tendency need to be proven beyond reasonable doubt, and the need to be satisfied of guilt beyond reasonable doubt on the count then being considered must be borne firmly in mind.
I must always bear in mind that proof of a count on the indictment requires that the State prove beyond reasonable doubt each and every element of that particular count. Proof of the conduct establishing the tendency and the tendency itself do not need to be proven beyond reasonable doubt but to the lesser standard of the court's satisfaction.
When considering whether the tendency is established, the combined weight of the whole of the evidence which the State rely upon to draw the inference of the tendency and not each individual occurrence of conduct separately must be considered.
The tendency must exist at the time of the count then being considered.
When considering the tendency evidence, it is necessary to bear in mind that as a matter of commonsense it is possible that the tendency alleged developed after the count then being considered and if that has occurred then as a matter of law that tendency could not be used when considering that count or a count earlier in time.
If I am not satisfied that the tendency existed, then obviously the existence of the tendency cannot be used in any way to support the State's case.
Where, as in this case, the State relies on both uncharged and charged acts to establish the alleged tendency, a direction to a jury should not direct or invite the jury to make findings in respect of charged conduct but instead should indicate the evidence relied on to support the alleged tendency and direct the jury to consider whether they are satisfied of the alleged tendency and then advise the jury that if they are so satisfied they can use that tendency in considering whether it is more likely the accused committed the specific offence for which he is charged.
As both Roder and AR make clear it is dangerous to emphasise to a jury to make findings in respect of the conduct alleged to support the tendency rather than making their determination as to whether they are satisfied that the tendency has been proven (to a lesser standard than proof beyond reasonable doubt) because it may lead to the risk of confusion over the standard of proof required to prove the offence.
The difficulty in trial by judge alone (at least for the trial judge) is that the obligation to give reasons as to why a finding has been made (ie that the tendency is established) means the judge must necessarily indicate the facts (ie conduct) relied upon in making that finding, however, the focus and issue must be whether the tendency is established not in determining whether the conduct alleged to support the tendency occurred, although of course the two are interrelated.
The High Court have rejected the argument that circular reasoning is involved in determining whether a tendency has been proven to a lesser standard than beyond reasonable doubt then relying on the tendency in combination with other evidence in determining whether the charged act under consideration has been proven beyond reasonable doubt, holding that involves considering the same evidence at different stages of deliberation with different onuses of proof and for different purposes: Roder and AR.
The first issue is whether the court is satisfied that the acts (conduct) relied upon by the State as establishing the tendency occurred. Those acts (conduct) do not need to be proven beyond reasonable doubt but to the lesser standard of the court's satisfaction.
I have considered the tendency evidence. I am satisfied that the conduct relied upon by the State occurred, that is, I find the evidence of each of DS, ZYX, TH and RS as to Mr Cable's acts credible and reliable and the evidence of each witness considered independently satisfies me to the lesser standard of the court's satisfaction that those acts occurred. That is not a finding that I am satisfied beyond reasonable doubt that those acts occurred.
The next issue is whether from the totality of those proven acts or conduct the tendency is established, I find that it is. The tendency does not need to be proven beyond reasonable doubt but to the lesser standard of the court's satisfaction.
Conduct occurring both prior to and subsequently to the charged offences can form the basis of tendency evidence.
I am satisfied that at the time of each of the counts on the indictment that Mr Cable had the tendency referred to.
The continuity of the conduct involving DS (a period of three to four weeks between 1967 - 1968, when she was about 8 - 9 years of age), ZYX (a period of about four years between 1968/1969 and 1971 when she was 12 - 16 years of age), TH (an incident when she was between 9 - 12 years of age occurring in approximately 1981 - 1984) and RS (more than six incidents when she was between 9 ½ - 12 years of age occurring in approximately 1981 - 1983) enables the inference to be drawn that at the time of each of the counts on the indictment Mr Cable had the tendency referred to and I do draw that inference.
The acts of Mr Cable show an entrenched sexual interest to be sexually attracted to young underage girls and to act upon that sexual interest when he had regular access to young underage girls through family relationships or close friendships when such opportunities arose. That tendency existed over decades.
I am satisfied that the conduct relied upon establishes the tendency alleged by the State, that is, Mr Cable had a tendency to be sexually attracted to young underage girls and to act upon that sexual interest when he had regular access to young underage girls through family relationships or close friendships when such opportunities arose.

[70]

It is the tendency only, not the conduct relied upon to establish the tendency that can be added to other direct and/or circumstantial evidence relied upon by the State in proof of the charge.
The finding that Mr Cable had the tendency alleged cannot as a matter of law prove Mr Cable committed the offence then being considered and is not a finding beyond reasonable doubt that the conduct establishing the tendency occurred.
The existence of that tendency cannot prove the guilt of Mr Cable on the count being considered, because at its very core tendency evidence can only go to likelihood that he committed the offence. By itself proof that Mr Cable had the tendency is incapable in law and can never be sufficient proof that Mr Cable committed the offence then under consideration.
The existence of that tendency may be a step in the process of reasoning that leads to a conclusion of guilt beyond reasonable doubt, but it can only be used in combination with other evidence in determining whether he did commit the offence beyond reasonable doubt. The tendency can only be a circumstance which is added with other evidence relevant to that count (in each count DS's evidence is the only evidence of Mr Cable committing the elements of the count) in determining whether the totality of the evidence (including the tendency) establishes proof beyond reasonable doubt of each element of that count.
The finding that Mr Cable had the tendency cannot distract from the need to be satisfied beyond reasonable doubt of his guilt on the charge being considered which requires each and every element of that charge to be established beyond reasonable doubt.
It cannot be reasoned that as the tendency exists Mr Cable automatically acted on that tendency or is guilty of the count.
Proving that Mr Cable had a tendency to behave in a particular way does not by itself establish that on another occasion he committed the alleged offence then under consideration. A person does not always act in conformity with an established tendency, and a determination must be made as to whether Mr Cable acted in accordance with the tendency on the count then being considered.
Whilst the existence of that tendency can make it more likely that Mr Cable committed the offence then being considered that is not the issue, the ultimate question is not whether Mr Cable is more likely to have committed the offence under consideration but whether the State have proven beyond reasonable doubt that Mr Cable did commit that offence after considering all the evidence relevant to that charge which of course includes the tendency.
Having found the tendency exists, that tendency cannot be used to fill in any gaps in the prosecution case and cannot be used in substitution for evidence of the incidents charged on the count then being considered.
It is possible to be satisfied of Mr Cable's guilt on a particular count on the indictment if I am satisfied beyond reasonable doubt of the honesty, truthfulness, reliability and accuracy of DS's evidence in respect of the elements of that count without the need to consider the tendency referred to.
Even having found that Mr Cable had the tendency referred to it is still possible to have a reasonable doubt in respect of the count then being considered.
I can only convict if I am satisfied that every element of the count then being considered has been proven beyond reasonable doubt.
That tendency evidence can only be used in the manner indicated herein.

[71]

The State say that DS's adoptive parents split when she was 7 or 8 years of age which was in 1965 or 1966.
For a short period of time DS resided with her mother and was then placed into the orphanage when she was around about 8 ½ - 9 (she was 8 in October 1966), and approximately six months later left the orphanage and resided with Mr Cable and his wife for a three and a half to four-week period when the seven offences allegedly occurred.
On the State case this means the offending occurred about 1966 to 1967: State's closing at ts 359. The relevant issue is not the year any offending occurred but whether the State have proven beyond reasonable doubt the offending occurred.
The State acknowledge that no complaint was made for approximately 60 years, however, say that must be considered in the light of DS's age at the time of the commission of the alleged offences, that Mr Cable had told her not to say anything, that when she told her mother she was not believed and that she was being abused by a priest whilst at the orphanage and she simply got on with her life until seeing Mr Cable in media reports and deciding to report it.
The State accept there is a need for a Longman direction because of the lengthy delay but say that having scrutinised DS's evidence with great care and being aware of the dangers of a miscarriage of justice in the context of the Longman direction, the court can be satisfied beyond reasonable doubt of the honesty, truthfulness, reliability and accuracy of DS's evidence in respect of each count.
The State say that they have established that Mr Cable had a tendency to be sexually attracted to young underage girls and to act upon that sexual interest when he had regular access to young underage girls through family relationships or close friendships when such opportunities arose, and that tendency existed at the date of each alleged offence.
The State say you can reject the suggestion that DS's complaint was motivated by the desire to obtain money as she reported the matter to the police some three months before the delivery of the judgment in the civil case involving ZYX.
The State say you can also reject the suggestion that DS made up the allegations in 2023 as the evidence shows she had made a complaint of sorts to VR some 25 - 40 years previously.
The State say that DS may have made mistakes about the suburb where she says the offence occurred, however, bearing in mind that the alleged offence occurred some 60 years ago, she had not been in Perth for 47 years, and the alleged offence occurred when she was a small child it is more likely she could remember the actual sexual offending than the suburb it occurred in.
The State say that any issues that surround DS's evidence, in that she said that the residence where the offending occurred had a pool and could not remember the large acreage of the premises or the presence of horses or dogs, or a child, or preparations being made for the birth of a child, do not affect her credibility.
The State say that DS was a witness of the truth who did not demonise Mr Cable saying he originally treated her nicely, and if she could not remember something during the course of her evidence told the courts so. The State say DS told it as it was without exaggeration or embellishment and gave a consistent account.
The State say that the records produced in the trial do not exclude that DS could have been residing in the orphanage earlier in around 1967 to 1968.
The State say the combined force of Exhibits 8 - 11 supports DS's evidence that she stayed at the Cables' residence at least at some stage and Mrs Cable's evidence to the contrary ought to be rejected.
The State say that Mr Cable had the opportunity to offend.
The State say there is some general support for DS's credibility by other evidence such as VR's evidence which rebuts the allegation of recent fabrication and that DS's evidence that she stayed with another person when she was around about 13 is also supported by Exhibit 11.
The State's position is that DS's evidence standing alone notwithstanding the need for a Longman warning can be accepted as honest, accurate, truthful and reliable, and even without consideration of the tendency evidence, the State have proven Mr Cable's guilt beyond reasonable doubt on all charges.
In addition to that above pathway to conviction the State say DS's evidence has to be considered in the context of the tendency evidence, and the combined weight of DS's evidence and the tendency evidence is such that Mr Cable's guilt beyond reasonable doubt on all charges has been proven.
The State acknowledge that tendency evidence by itself is incapable of proving Mr Cable's guilt beyond reasonable doubt on any charge.

[72]

The defence say that the only witness who gave evidence as to the offence occurring in this case is DS. The defence say it is a false allegation perhaps motivated by the prospects of financial gain.
The defence say there is no forensic support, no early complaint, no proper police investigation, no admissions made by Mr Cable and the timing of the complaint was suspicious.
The defence say that only Mr Cable was targeted in the investigation and the police officer's evidence was evasive.
The defence case is that DS never stayed at the Cables' residence at any time and therefore the offences did not occur.
The defence say that DS's evidence is flawed. They say her evidence was not convincing as to where the offences happened, and the description of the location was seriously flawed and casts enormous doubts on whether the events happened at all.
The defence say aspects of DS's evidence are inherently implausible and say the tendency evidence has little probative value because the acts referred to by the witnesses called to support the tendency evidence occurred not only some time ago but were not similar to the charged acts.
The defence says the orphanage records that have been produced are compelling and can be accepted and show that there was only a small window of opportunity for the offending to occur.
The defence say the State's case is that DS was taken from the orphanage by the Cables for a three and a half or four-week period when the offending occurred. The orphanage records establish that DS's first admission to the orphanage was 4 February 1968 and the date of her discharge was 3 August 1968, so the offending must have occurred between that period. The period of offending can be further refined as DS made no mention of Barry Jnr or any preparations for the birth of a baby in the period of time when she was being abused, so the offending must have occurred prior to Barry Jnr being born, that is, sometime between 4 February 1968 and 28 April 1968.
The defence say that between July 1967 and July 1968, the Cables were living at a property in Gosnells and during that period there is independent evidence by way of photographs which show that horses and dogs were located on the property and the property had significant acreage. Mrs Cable's evidence was that her sister often stayed at the residence, and a bedroom was being prepared for the birth of Barry Jnr. The defence say that in the ordinary experience of life, all or at least some of those features would have been noticed by DS if she was in fact abused at the property and her failure to mention any of those features is fatal to her credibility and therefore the alleged offending could not have occurred at the Gosnells premises.
The defence say the Cables left the Gosnells premises in July or August 1968 and moved to Gooseberry Hill for 12 months where they remained until the end of 1969. The defence say the offending could not have occurred at Gooseberry Hill because ZYX who was a regular visitor to that property said there was no young child at that residence during the time that the Cables were there.
The defence say that Mrs Cable's evidence is crystal clear that she never took DS to or from the orphanage and DS never stayed at their house. The defence say this evidence ought to be accepted, and even if it is not accepted, it should create a reasonable doubt about DS's evidence and the charges.
The defence say that Mr Cable has suffered significant forensic disadvantage such that when the evidence of DS is scrutinised and the Longman warning heeded, verdicts of not guilty ought to be returned.
There is no burden or onus on the defence to prove anything and the burden of proof remains on the prosecution to prove their case beyond reasonable doubt, I make the following comments on some the defence submissions.
In relation to Mrs Cable's evidence, I reject her evidence that DS never stayed at the house. It is contradicted by the independent evidence and I have found that Mrs Cable's evidence deliberately minimises any contact between the Cables and DS.
I do not find it inherently implausible that Mr Cable would be naked in his lounge room in his own home.
I do not find the police officer's evidence evasive and it is not surprising that Mr Cable was the person who was investigated in circumstances where DS named him as the perpetrator. When a matter is reported to police some 54 - 57 years after the events, the police are limited as to what records they can recover. It is not any fault of the police; it is just an inevitable consequence of a matter being reported so late.
I reject the suggestion that DS is motivated by financial gain, it is just not possible in my view to reach such a conclusion.
VR's evidence shows DS's consistency of complaint, as a complaint of some sort was made between 25 - 40 years ago.
I find the orphanage records are incomplete records. The records have entries on them which are not explained and in some cases the records are certified with a date before the date of certain entries. The records are unsatisfactory and cannot be given the certainty which the defence seek to attach to them and they do not establish that the first time DS was admitted to the orphanage was 4 February 1968, because we do not have records pre-dating that period.

[73]

In respect of each count Mr Cable is presumed by law to be innocent and the burden of proving his guilt rests on the prosecution. It is not sufficient for the State to establish a suspicion of guilt or that it is more likely than not that Mr Cable is guilty, the State must prove Mr Cable's guilt on the count then being considered beyond reasonable doubt.
Mr Cable can be convicted solely on the uncorroborated evidence of DS.
There are two pathways that enable the State to establish their case. The first pathway is if I am satisfied beyond reasonable doubt of the honesty, accuracy, truthfulness and reliability of DS's direct evidence alone in relation to each element of the count on the indictment then being considered. The second pathway is if I am satisfied of the honesty, accuracy, reliability, and truthfulness of DS because of the combined weight of the State's case. That is, the combined weight of DS's direct evidence that Mr Cable committed the elements of the offence, together with the circumstantial evidence being the tendency evidence and other evidence relevant to a particular count.
However, tendency evidence alone can never prove guilt of an offence.
The evidence of ZYX, RS and TH is not evidence that Mr Cable committed the offences the subject of the indictment. Their evidence relates to matters occurring on different dates, places and occasions. The State has led that evidence as part of their case that Mr Cable had a tendency to be sexually attracted to young underage girls and to act upon that sexual interest when he had regular access to young underage girls through family relationships or close friendships when such opportunities arose.
The tendency does not need to be proven beyond reasonable doubt but to the lesser standard of the court's satisfaction. A finding that the tendency exists is not a finding beyond reasonable doubt that the conduct relied upon to establish the tendency occurred.
I am satisfied by the tendency evidence (DS, ZYX, TH and RS) that the State have established that Mr Cable had the tendency the State allege.
I am satisfied that that tendency was entrenched and existed over decades and existed at the time of each alleged offence.
Proof of the existence of that tendency as a matter of law makes it more likely that Mr Cable committed the offence. The issue is not whether Mr Cable more likely committed any of the offences that he is charged with, but whether the State have proven beyond reasonable doubt that he committed the offence that I am then considering.
The existence of the tendency goes to assist other evidence in proving the offences alleged.
The only witness who gave evidence that Mr Cable committed the offence is DS. She did not report the matter to police until January 2023 and a statement was made to the police on 10 March 2023, being a delay of some 60 years.
DS was giving evidence of events occurring when she was 9 ½ years of age which occurred some 60 years previously. The law clearly recognises that it is not unusual for victims of sexual offending not to report sexual abuse immediately or for there to be long delays in reporting sexual abuse, and indeed some people may never report sexual abuse at all. There may be many reasons for a delayed complaint and as a matter of law delayed complaint does not necessarily mean that the allegation is false. The way a person reacts to abuse is as varied as individual personalities.
However, the matter was reported to the police after a delay of some 60 years in circumstances where DS was aware that ZYX was taking Mr Cable to court and she was aware before giving evidence that a civil judgment had been given against Mr Cable.
As a result of the delay of over 60 years between the alleged offence occurring and the matter being reported to police Mr Cable has suffered significant forensic disadvantage.
The delay has affected Mr Cable's ability to properly defend himself and reduces his capacity to fully test DS's evidence.
As we have seen, records produced in relation to DS's stay at the orphanage are incomplete and unexplained.
Some witnesses who might have provided assistance to Mr Cable are now deceased. The opportunity of calling witnesses who have assisted his defence (his mother and brother are deceased) has now been lost to Mr Cable.
The delay means he has lost the opportunity of making inquiries and exploring the circumstances close to the time of the alleged offence which may have recovered additional evidence and thrown doubt on DS's evidence or supported his plea of not guilty.
The lengthy delay also effects the complainant's, witnesses' and the accused's memory of events. Human memory is fallible, obviously witnesses can be wrong in their recollection for a variety of reasons, and ordinarily that degree of fallibility increases with the passage of time. Where there is a lengthy delay the fallibility of human memory and the capacity for post event rationalisation of events long since gone or distortion in human recollection or reconstruction of memory must be considered. The delays increase the possibility of the unreliability or inaccuracy in DS's evidence. The longer the delay and the matter being brought to court the more opportunity there is for error.
The fact that long delays can be productive of a serious injustice cannot be overlooked. The risk is more pronounced when dealing with the uncorroborated evidence of a complainant.
There is no statute of limitation for prosecution of offences of this nature. A prosecution can be brought at any time. I recognise that in a different context the Victorian Court of Appeal considered that the passage of about 55 years between an alleged offence and the trial 'must surely be at the outer end of what could credibly be regarded as acceptable': McGee (a pseudonym) v The Queen [2020] VSCA 146 [149]. Mr Cable has suffered significant forensic disadvantage as a result of the long delay as outlined throughout this judgment and it is those forensic disadvantages which are significant, not the length of the delay.
The delay of some 60 years means that naturally witnesses' evidence has been given from the prospect of a person recalling an event many years ago as opposed to a memory relatively contemporaneous with the event.
DS's evidence was subject to criticism on the basis that she was unable to describe with certainty the location of the suburb of the Cables' residence. In her evidence she originally said it was Thornlie, then agreed that in her statement to the police she said it was Scarborough, then in cross-examination said that she thought it was Scarborough and then said it was Thornlie. I attach no significance to whether DS can accurately describe the suburb bearing in mind her age at the time of the alleged offences and I find it is an inconsequential detail.
I attach no significance to the criticism that DS said the Cables' house was a nice-looking house and had fancy furniture when in fact it appears that the residence was somewhat austere. This is meritless criticism. To a 9-year-old child living in an orphanage an austere residence may have appeared fancy or nice looking. DS clarified that fancy was a reference to the furniture in any event. I find it is an inconsequential detail.
However, some aspects of her evidence were contrary to the preponderance of evidence.
DS's evidence was that the house where the offending occurred was close or near to the beach and the preponderance of the evidence establishes that Mr Cable never lived near the beach (Mrs Cable, Mr Cable's interview, Detective Bembridge).
DS's evidence that the house had air conditioning is contrary to the preponderance of evidence which established that there was no air conditioning.
DS's evidence that the house she stayed at 'definitely' had a pool and she was 'sure' it had a pool, whereas the preponderance of evidence (Mr Cable's interview with the police, Mrs Cable's evidence, Detective Bembridge's evidence) establishes that none of the houses the Cables resided in at the time had a pool.
DS's evidence was that she did not recall any pets such as a dog or a horse at the premises where she was abused. Mrs Cable's evidence, supported by independent photographs, being Exhibits 21, 22 and 23, was that pets were present at the premises at the time that DS and the State say it is reasonably possible that the offences were committed.
DS's evidence was that when she was at the premises where she was abused she did not recall either animals or a young child being there or preparations being made for the birth of a child; however, independent evidence establishes Barry Jnr's birth date.
I accept that a young child subject to sexual assault is more likely to recall details of the sexual assault rather than such details as the house or suburb, whether the house had air conditioning or had a pool or was near the beach or whether pets or a young child were present. There is no basis upon which I could reach any conclusion that a 9-year-old child would necessarily be interested in any of those matters but as a matter of commonsense, common experience, the failure to mention at least the presence of another child causes some disquiet.
It is Mr Cable's defence that DS never stayed at the residence where he and his wife were living at any time and therefore he had no opportunity to commit the offences alleged.
If the matter had been reported to the police contemporaneously investigations could have been made with the orphanage to ascertain whether DS had left the orphanage, where she was recorded going, how long she had stayed there, who had taken her and the like. A contemporaneous police investigation could have resolved issues such as whether there was a lotion at the Cables' premises.
There are no records produced from the orphanage to show that DS had been staying at the orphanage in the period which the State in their closing now alleges Mr Cable committed the offences against her, that is, 1966 - 1967.
The defence contention that the records are only amenable to one reading, that is, that the only time she was absent from the orphanage was between February 1968 and August 1968, is untenable because of the missing records.
There are some shortcomings in DS's evidence referred to above. There is no supporting evidence, and I accept that none is required by law.
However, a court is not bound to accept uncontradicted evidence; the totality of the evidence presented at trial must be such that it can be said beyond reasonable doubt the accused is guilty of the count then being considered.
Mr Cable has suffered significant forensic disadvantages as a result of the delay that I have referred to.
The existence of those significant forensic disadvantages requires the evidence of DS to be scrutinised with care bearing in mind the reasons for the Longman warning and bearing in mind that miscarriages of justice can occur because of the difficulties associated with lengthy delays.
It has been stated that the very matters that make it difficult for the State to prove historical child sexual abuse are also the same problems that confront an accused person facing such an allegation. However, notwithstanding that there is no lowering of the standard of proof which remains for the State to prove Mr Cable's guilt beyond reasonable doubt on the count then being considered.
It is a heavy burden undertaken by the prosecution in a criminal trial.
I have scrutinised DS's evidence with great care bearing in mind the lengthy delay and the significant forensic disadvantages that the delay causes to Mr Cable as outlined and the lack of independent, objective supporting evidence and that leads me to conclude that while I generally accept DS's evidence and have found that Mr Cable has the tendency alleged and I consider it more probable than not that she is telling the truth, I am not persuaded of guilt beyond reasonable doubt in respect of any count on the indictment and acquit Mr Cable in respect of each count.

DKA v The State of Western Australia

At a glance

Court

Decision date

Source

Judgment (75 paragraphs)

THE STATE OF WESTERN AUSTRALIA -v- CABLE [2026] WADC 34 (20 April 2026)

Parties

Legislation Cited (2)

Cases Cited (3)