DLS -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 197 (26 November 2021)

4 For the following reasons leave to appeal should be granted on ground 1, leave to appeal should be refused on ground 2 and the appeal should be dismissed.

5 The prosecution case was that the offending occurred on a Thursday during the Christmas school holidays between 2006 and 2007. The complainant and the appellant were watching a movie in the loungeroom at home. The appellant placed his hand down the complainant's shorts, rubbed the complainant's vagina and tried to insert his finger into her vagina (count 1). He also took the complainant's hand and put it down his pants onto his erect penis (count 2).[1]

6 The appellant's case at trial was that the prosecution case depended solely on the complainant's evidence, and the complainant had provided so many different versions of the events to different people that she should not be believed. The appellant contended that the jury could not be satisfied, beyond reasonable doubt, that the offending occurred based on the complainant's evidence.[2]

7 The following is a summary of the evidence led at trial.

8 The complainant was 23 years old when she gave evidence on 16 November 2020.[3]

9 At the time of the alleged offending, the complainant was living with her mother, her brother J (who had the same mother but a different father) and the appellant. The appellant was the complainant's step‑father who married her mother when the complainant was in year 3 at school (when she was about 9 years old). The appellant was a father figure to the complainant, who did not see much of her own father at the time.[4]

10 The offending occurred on a Thursday afternoon of the Christmas school holidays when the complainant was moving from year 3 to year 4 at school. The complainant's mother was at work and J was staying with his father. The appellant and the complainant were on the couch in their loungeroom watching a movie, Resident Evil. The appellant was drinking.[5]

11 Towards the end of the movie, the complainant asked the appellant if she could light some incense. The appellant told the complainant that she could in exchange for a hug. The complainant stood and hugged the appellant while he remained sitting on the couch. The appellant then placed his hand on the complainant's bottom and kissed her on the lips. She noticed that he had 'funny teeth', as if a tooth was missing or he did not have proper dental care.[6]

12 The complainant was then on the couch, and the appellant began to unbutton her denim shorts. He was complimenting her as he did so. The appellant then put his hand down the complainant's underwear and was 'rubbing around [her] vagina', 'around the clitoris'. The appellant then tried to insert his finger into the complainant's vagina, which 'really hurt' and she flinched. They were both on the couch when this occurred, with the appellant on the right and the complainant on the left.[7]

13 After the conduct the subject of count 1, and while they were still on the couch, the appellant grabbed the complainant's hand and put it down his pants. She felt his penis, which was hard, and his pubic hair and pulled away.[8]

14 The complainant went outside and was crying with her dogs. When she went back inside, the appellant told the complainant not to tell her mother 'or it will break her heart'. The appellant had not done anything like this before, and did not do it again.[9]

15 When she was in year 8, the complainant told her mother what the appellant had done to her. She did not see or speak to the appellant again after telling her mother what had happened. The complainant spoke to police at the end of November 2017.[10]

16 The complainant said that she was born in 1997.[11]

17 The complainant agreed she first spoke to police on around 21 October 2017, and that she signed a typewritten statement on 18 November 2017.[12] The complainant accepted that, on the day she spoke to police in October 2017, she had a nervous breakdown and was hospitalised later that night. She was advised that she might have been suffering from a drug‑induced psychosis. She remembered having taken illicit drugs after speaking to police on that day, but was not sure whether she had also done so beforehand. She could not remember giving the statement to police on 21 October 2017.[13]

18 The complainant accepted that police came to her house about a month later and she signed the written statement after being given an opportunity to carefully read it before signing it. She stated that, as she read the statement, she was thinking that she had 'missed some bits out' but did not think that she could add anything to the statement that night.[14]

19 The complainant also prepared 3 pages of handwritten notes in the middle of 2020,[15] in which she noted things that she had missed in her November 2017 statement.[16] She signed a second statement on 22 June 2020.[17]

20 The complainant accepted that, in her November 2017 statement, she had said that the incident occurred before she started year 5 at school. The complainant said that she had gotten confused about the timing, and corrected this in her 2020 handwritten notes.[18]

21 The complainant also accepted that she had not said anything about the appellant making her touch his penis in her November 2017 statement, and the first time she had mentioned this was in her 2020 handwritten notes.[19] The complainant also agreed that the first time she mentioned specifically the appellant touching her 'clitoris' was a few days prior to trial when she spoke to the prosecutor.[20]

22 The complainant accepted that she had told her mother that she wanted to kill herself after her mother came home on the day of the offending.[21] The complainant also accepted that, when she was in year 8 and spoke with her mother about the appellant's conduct, the only information which she had given her mother was that the appellant had touched her.[22]

23 The complainant said that, a week or a few days before she told her mother that the appellant had touched her, there had been a discussion about sending the complainant to live in Perth. She denied that this was the motivation for making the complaint to her mother, and said that she did not mind going to Perth in the end.[23]

24 The following exchange occurred between the complainant and the appellant's trial counsel, which is the focus of ground 1:[24]

Now, when I ask you these questions I'm not asking for information that's of a private or confidential nature but simply to ask this, did you or have you seen a psychiatrist or psychologist?---I was seeing a counsellor from Head Space, the doctor recommended me that.

That's fine. As I said, I don't want to touch on things but can I ask you were you ever the subject of hypnosis therapy to assist you to remember things?---Yes.

Okay, so - - -?---I believe so.

So the - was it a psychologist or psychiatrist that - that - - -?---I just know she was a counsellor.

And did that person place you under hypnosis? Do you understand what I mean when I talk about hypnosis?---Yeah, I'm just trying to remember, sorry.

Was that the person that placed you under hypnosis to try to recover your memories or not?---Who? The counsellor?

The counsellor or was it someone else?---No, she - she was just doing therapy. How do I say it? Like I know we did certain things to help me to overcome this.

All right. Can you recall whether you ever had to give your consent to a psychologist or even the counsellor for them to hypnotise you to assist you with memory issues?---I think so.

Did you ever give your consent?---I believe I did.

Okay. So did that follow through? You've given your consent to be hypnotised, were you hypnotised. And if so, who did it?---I believe it was Nicola(?).

All right. And when was this in relation to the 2017 statement? Had that happened? Had the hypnosis happened by then or was it after?---It was before.

Before. Was it the case that as a result of that hypnosis you remembered information or details that you hadn't told your mum or anyone else when you made your statement in 2017?---I'm not sure.

25 The complainant accepted that, in her November 2017 statement, she said that the appellant did not have his front teeth in when he kissed her. She said that she meant that the appellant was missing a tooth or had a chipped tooth, and she remembered that he had funny‑looking teeth.[25]

26 In re-examination, the complainant said that she told her mother about the appellant when she was in year 8 after he started accusing her of sleeping with his brother.[26]

27 The complainant said that the decision had been made that she would not go to live in Perth before she complained to her mother about the appellant.[27]

28 The complainant said that, when she referred to the appellant touching 'around' her vagina, she meant the 'front bit' and that the appellant had tried to insert his finger or fingers 'inside the hole'.[28]

29 The complainant's mother gave evidence that the complainant was born in August 1997. The complainant's mother married the appellant in August 2006. At that time his teeth were 'damaged and rotten on the right-hand side', but he did not wear dentures.[29]

30 The complainant's mother said that, at about the time of the alleged offending, she worked as an administrator and would come home at around 4 pm most days. The appellant worked at a hardware store and had a rostered day off on either Thursdays or Fridays. The complainant's brother would stay with his father on weekends and alternate school holidays.[30]

31 When the complainant was around 9 or 10 years old, she said that she wanted to kill herself and that she did not like the appellant.[31]

32 In 2011, the complainant told her mother that the appellant had touched her when she was about 8 years old. The complainant's mother and the complainant went to stay at the house of a friend of the complainant's mother. The complainant's mother rang the appellant and said that she knew what he had done, and that he needed to get out of the house. The appellant told the complainant's mother that he had not touched the complainant.[32]

33 The appellant left the car owned by the complainant's mother at the airport for her to collect. She was not sure when he had done this, but thought it could have been two days after their telephone conversation.[33]

34 The complainant's mother understood the appellant moved to Queensland to live with his sister. A few months later, the complainant's mother went to Queensland to live with the appellant at his sister's house, but denied being in a relationship with him at that time.[34] At this time, the complainant stayed with an aunt in the country town. The complainant's mother came back from Queensland on 1 January 2012. She went back to Queensland a few times to study and stayed with the appellant when she did so. She denied being in a relationship with the appellant after he left for Queensland, but later accepted that they separated on 1 January 2012. She did not apply for a divorce until early 2020.[35]

35 The appellant, who was always arguing with the complainant, had wanted the complainant to live in Perth but they had decided that she would not do so prior to the complainant's disclosure to her mother in 2011.[36]

36 Robert Sharland was a former employee of the Shire of the country town who, in 2017, provided documents to the police relating to the appellant's previous employment with the Shire. Those documents indicated that the appellant commenced work as a 'community clean-up crew' member on 20 April 2011, that the last day he worked was 23 June 2011 and that his employment with the Shire concluded on 12 July 2011. Under the appellant's employment contract, his employment was terminable by either party giving two weeks' notice to the other. No resignation letter was received from the appellant.[37]

37 Detective Senior Constable Christopher Bell was a police officer who took a statement from the complainant when she visited the police station with her mother on 21 October 2017. He was present when the complainant signed the statement on 18 November 2017. He conducted a video record of interview (VROI) with the appellant on 2 April 2019. He produced the disc of that recording, as well as the complainant's birth certificate, during his evidence.

38 In the VROI, the appellant denied the offending but admitted the family relationship and living arrangements with the complainant's mother, the complainant's brother and the complainant. He also admitted that his relationship with the complainant's mother ended when she informed him that the complainant had alleged he touched her inappropriately. After staying with his brother for a short period and being told by the complainant's mother that he should go, the appellant went to live with his sister in Brisbane. He did not give formal notice terminating his employment with the Shire, but told his brother (who was his supervisor at work) that he would not be coming in.[38]

39 The appellant also admitted that he had worked for the hardware store and had a rostered day off once a fortnight, usually on a Thursday. The appellant described spending his time off drinking and taking drugs from the Wednesday evening until the early hours of the Friday morning. The appellant admitted that 'I get drunk that bad I don't remember half of the stuff that [sic] when I'm in the house' and it was possible that something had happened which he did not remember as 'I've been plastered in that house'.[39]

40 The appellant admitted watching movies with the complainant, being familiar with the movie Resident Evil, giving the complainant hugs from time to time and that incense was often burning in the house.[40] However, he denied ever trying to put his hands down the complainant's pants or 'anything like that'.[41]

41 Detective Senior Constable Bell gave evidence that he did not interview the appellant about count 2, because police were not aware of the allegation at the time of the VROI. He also agreed that the complainant had not mentioned anything about being touched on the clitoris when she spoke with police in 2017.[42]

42 Detective Senior Constable Bell said that the complainant appeared to be 'somewhat in crisis' and needed a break on the night she attended to give a statement on 21 October 2017. He gave the complainant time before taking the statement to her to sign on 18 November 2017.[43] Detective Senior Constable Bell also gave evidence that the complainant did not appear to him to be affected by alcohol or drugs when he spoke with her on 21 October 2017 or when she signed her statement on 18 November 2017.[44]

43 The appellant did not give evidence at his trial, but adduced the evidence of Navin Sequeira, a dentist at a practice attended by the appellant on three occasions in June - August 2016.[45] He gave evidence, from practice records, that at this time the appellant attended the dental practice complaining of pain in his upper right teeth. There was significant decay and rotting of the top part, or crown, of the central incisor, the lateral incisor and the canine of the upper right quadrant of the appellant's mouth. The central incisor seemed to have lost part of its top so that part of the tooth had broken or chipped off. Those teeth were extracted and arrangements made for the appellant to attend for cleaning to enable the fitting of dentures. However, the appellant did not attend the appointments to complete the cleaning. There was no record of the appellant having dentures prior to that time.[46]

44 The prosecutor and the appellant's trial counsel each addressed the jury in relation to their respective cases.

45 The prosecutor's only reference to the issue of hypnosis was in noting that Detective Senior Constable Bell's evidence that the complainant was in crisis on 21 October 2017 was consistent with the complainant's account. The prosecutor submitted:[47]

She told you that she saw doctors, a counsellor, was referred to Headspace, had underwent some type of hypnosis.

Firstly, ladies and gentlemen, you have no evidence to suggest that hypnosis does or doesn't work, or that it creates false memories or helps recalling memories. But secondly, ask yourself this.

Knowing what you all know, as a collective group, from the news and other sources, is it unusual for someone who's been sexually offended against [as] a child, by someone that they trust, to seek psychological help or turn to drugs when they are an adult, having lived with this secret for their childhood up until adulthood? Of course it isn't.

(emphasis added)

46 In his closing submissions, the appellant's trial counsel observed:[48]

We don't know, ladies and gentlemen, what it was that may have happened in her life that led her to go to counselling. And this is another - or a psychologist, because I know that she said both.

All we know is - and this is this bracket creep that I talk about - all we know is about this matter. But actually, you don't know why. I was very specifically not mentioning why.

But what we do know, ladies and gentlemen, is that she did not report any of these matters, at all, to the police until after she had gone. And more importantly, until after she had been [the] subject of hypnosis.

(emphasis added)

47 The appellant's trial counsel then quoted from the passage of cross‑examination set out at [24[49]] above,[50] and said:50

Ladies and gentlemen, it would be an extraordinary thing for you not to have some doubt, just on that basis alone, that what the witness has told you is a proper recollected memory.

48 The appellant's trial counsel later observed that the complainant's credibility:[51]

also must be affected by the fact that she made very plain to you that she had remembered things under hypnosis that she hadn't before. That that had been the purpose, or at least one of the purposes.

49 The appellant's trial counsel also submitted to the jury that it was possible that the complainant honestly believed that the offences happened 'because of the hypnotism'.[52]

50 After closing addresses, the prosecutor complained to the trial judge about the above submissions.[53] The appellant's trial counsel accepted that he 'may have taken poetic licence in saying certain things'.[54] The trial judge essentially resolved the complaint by indicating that she would direct the jury not to speculate about matters not in evidence.[55]

51 The trial judge had lengthy discussions with counsel as to the content of her directions,[56] which included the trial judge reading to counsel her Honour's proposed direction in relation to delay in making a complaint and her proposed Longman direction.[57] The appellant's trial counsel said that he thought the Longman direction was appropriate.[58]

52 The trial judge gave the jury standard directions in relation to general principles, the assessment of evidence and the drawing of inferences.[59] Her Honour directed the jury as to the elements of the charges, as well as to indecent dealing as an alternative to count 1 on the indictment.[60] The trial judge emphasised that the complainant was the only witness to the offending, and that the jury could not convict the appellant unless satisfied beyond reasonable doubt as to the truthfulness, accuracy and reliability of the complainant's evidence.[61] The judge also gave the jury directions about the fact that the appellant faced two separate charges.[62] No complaint is made about those directions.

53 The trial judge then turned to summarise the prosecution and defence cases in some detail.[63] In doing so, her Honour referred to what counsel had said in their closing addresses about the issue of hypnosis.[64]

54 The trial judge then gave the jury specific directions about the use of prior inconsistent statements,[65] the significance of evidence of motive for the complainant to lie,[66] the use of the evidence of the complainant telling her mother in 2011 that the appellant had touched her,[67] the significance of the delay in making a complaint,[68] and the appellant's alleged flight to Queensland as evidence of consciousness of guilt.[69]

55 The trial judge also gave the jury a Longman direction.[70] The trial judge directed the jury that they should scrutinise the complainant's evidence with special care, and take carefully into account that the charged acts were alleged to have occurred nearly 14 years ago and were clearly allegations of a serious sexual nature.[71] The trial judge said that, given the delay, the jury was required to do three things.

56 First, the jury was required to closely and carefully scrutinise the complainant's evidence. In this regard, the judge directed:[72]

Human memory is fallible and honest witnesses can be wrong in their recollection. The longer the delay the more opportunity there is for error. And that's particularly so for events that occurred in childhood. And it's a matter of common experience that the longer you believe something to have happened, the more convinced you are that it has happened. So this can be so even if you are mistaken in your recollection.

57 Secondly, the jury was required to carefully consider matters that might have an impact on the reliability of the complainant's recollection as to what she says occurred. The judge specifically referred to the fact that the complainant was 9 years old at the time of the alleged offending, and the delay of 14 years between the date of the alleged conduct and the time when the complainant came to give her evidence.[73]

58 Thirdly, the jury was required to take account of the fact that, because of the delay, the complainant's evidence could not be tested in some respects. The judge noted the forensic disadvantage which the appellant suffered, giving specific examples.[74]

And because of the long delay and the impact of that delay, which I've described, there's a risk or a danger of a miscarriage of justice arising from convicting [the appellant] of a particular offence, based on the evidence of [the complainant] alone. And as I've said to you and I direct you, that because of the long delay and the impact of that delay, it's particularly important that you scrutinise the evidence of [the complainant] with special care.

Having taken into account all of the matters I have drawn to your attention in this direction, if you accept the evidence of [the complainant] as being honest, accurate and reliable, then subject to consideration of the whole of the evidence, it [is] open for you to convict [the appellant] of the offences that [the complainant] has given evidence about. So that is, counts 1 and 2 on the indictment.

60 The trial judge then reiterated the Longman direction.[76]

61 The trial judge concluded the substantive part of her Honour's direction by again emphasising that the State's case on each count stood or fell on whether the jury was satisfied beyond reasonable doubt that the complainant's evidence in relation to the particular incident was honest, accurate and reliable.[77]

62 At the conclusion of the trial judge's direction, her Honour asked counsel if there was any direction on law that they wished to address. The appellant's trial counsel indicated that there was not, that he 'was keeping notes and ticking off boxes' and 'didn't see anything was missed'.[78]

A person who sexually penetrates a child who the offender knows is his or her lineal relative or a de facto child is guilty of a crime[.]

64 The phrase 'de facto child' is defined in s 329(1) of the Code to include a step-child of the offender.

65 Section 319(1) of the Code defines 'to sexually penetrate' to include to penetrate the vagina (which term includes the labia majora) of any person with any part of the body of another person.

Ground 1: directions about reliability of complainant's evidence

66 By ground 1 of the appeal, the appellant contends:

There was [a] miscarriage of justice when the trial judge failed to specifically identify a relevant risk in the complainant's evidence and appropriately warn the jury about the reduced inherent reliability of memory or recollection testimony where content of relevant recollections is not recorded, reported or otherwise disclosed by the complainant until after hypnosis therapy is undertaken to assist in the recovery of those memories, and in particular erred:

(a) in failing to direct that in view of the complainant's evidence that she did not remember making her first statement to police and that she had hypnosis some time prior to the making of that statement, that even if the jury found the complainant to be an honest witness, the reliability and accuracy of her recollection might be compromised or influenced by the hypnosis;

(b) in failing to adequately warn the jury about the risk of relying on the complainant's evidence.

67 The appellant submits that a miscarriage of justice occurred in this case because the only evidence capable of supporting the conviction was subject to a perceptible risk of unreliability from hypnosis that the jury was not warned about.[79] The appellant submits that the masked risk that the complainant had an honest belief founded upon something other than normal recollection could only be cured by a direction to the jury addressing:[80]

1. the difference between honest belief and accurate recollection;
2. the need to appreciate how and why hypnosis to recover memory can diminish objective forensic reliability; [and]
3. the fact that where there is no pre-hypnosis record of recollection the trier of fact is precluded from comparing potentially influenced evidence to uninfluenced evidence.

68 The appellant submits that, in summarising the defence case, the trial judge did not remind the jury 'of the most significant statement made by the complainant in relation to the hypnosis, that she was unsure whether she remembered anything from the hypnosis that she had not told anyone before she made her first statement'.[81] The appellant also submits that the trial judge's direction left it open to the jury to consider that the complainant's reliability was increased because she had sought help for her problems.[82] The appellant contends that the trial judge should have given a specific direction 'about the law regarding the relationship between hypnosis and inherent reliability and the reasons why caution was objectively required in this case'.[83]

69 In oral submissions, counsel contended that the jury should have been given a warning that, if they found hypnosis occurred before the complainant's 2017 statement to police, they should approach the complainant's evidence with caution in light of the knowledge that hypnosis can affect the reliability of a person's evidence. Counsel contended that, once the defence raises a question about hypnosis which is capable of affecting the complainant's reliability, the State must prove, beyond reasonable doubt, that the reliability of the complainant's evidence was not affected by hypnosis.[84] Counsel submitted that if there was a perceptible risk that the complainant could not be sure whether or not her memory was affected by hypnosis prior to making the November 2017 statement, then the jury should have been warned that this should affect their assessment of the reliability of her evidence.[85]

70 The respondent submits that, at its highest, the complainant's evidence as to counselling was capable of establishing:[86]

1. The complainant engaged in counselling with a counsellor at Head Space named Nicola.

2. During the counselling, the complainant engaged in some form of therapeutic hypnosis administered by Nicola.

3. The counselling with Nicola, including the therapeutic hypnosis, may have taken place before the 2017 statement; it may have taken place afterwards.

4. Regardless of when the therapeutic hypnosis took place, the complainant was not sure whether she recalled any additional information or details as a result.

(emphasis in original)

71 The respondent submits that there is no basis for the appellant's assertion that the hypnosis was related to the alleged offending or the complainant's memories of that offending.[87] The respondent says that this is not a case involving a forensic exercise of recovering memory or hypnotically-induced or altered recollection. Any 'hypnosis' was of a therapeutic nature and not for the purpose of recovering memories.[88]

72 The respondent emphasises the uncontroversial fact that the complainant complained to her mother in 2011, well before she engaged in any counselling.[89] The respondent also emphasises the failure by the appellant's trial counsel to seek any further direction despite hearing the proposed delay and Longman direction before the charge.[90]

73 The respondent submits that, although the trial judge did not in terms tell the jury that it was open to them to consider that the possibility of the complainant's recollection being influenced by counselling and hypnosis affected her credibility, that possibility must have been obvious from the direction. The respondent submits that the trial judge repeatedly emphasised the defence case concerning the complainant's reliability and credibility by explicit reference to the defence case that the hypnosis issue meant the jury could not rely upon the reliability of the complainant's recollection.[91]

74 In Christophers v The Queen,[92] the accused was convicted of sexual offending against a child, who was 10 years old at the time of the alleged offending, which had allegedly occurred during a trip from Adelaide to Perth in 1976. The complainant in that case made a statement to police in July 1997. There were various inconsistencies between her account to police and her evidence.

75 When cross-examined about the inconsistencies, the complainant in that case had referred to therapy she had undertaken with a psychologist since making the police statement to help her remember what she had blocked out of her memory. She said that she had hypnosis or was 'going into a relaxed state and remembering exactly what happened'. She said that she had undergone hypnosis to bring out things she had blocked out of her memory, which were only 'certain little details'. She had said that her recollections were not a repressed memory, but was 'definite memory' of 'something that definitely happened'.[93]

76 Christophers appealed against his convictions, complaining of an inadequate Longman direction. Owen J (Pidgeon and Ipp JJ agreeing) held that the direction was inadequate. His Honour noted guidelines pronounced in R v McFelin,[94] and applied in R v Jenkyns,[95] that:[96]

[I]f hypnotically-induced evidence is admitted into evidence the trial judge should warn the jury of the special need for caution before placing reliance on it. The warning need not be in any particular terms, but it should adequately alert the jury to the dangers inherent in the use of hypnotism[.]

77 Owen J noted that, due to the way the evidence came out, it was somewhat vague and lacking in precision. However, whether or not the case was one of recovered memories was a live issue for the jury to consider.[97] Owen J then observed:[98]

In accordance with Jenkyns there may well have been a requirement, independent of Longman considerations, to give a warning to the jury about the use to which they could put the testimony that was, or may have been, affected by the counselling process. In the circumstances of this case it probably does not matter a great deal. In relation to at least some of the counts, the detail of the incidents given by the complainant differed from that which she had given in her deposition and which, I assume, formed the basis on which the Crown opened the case. These are differences which the defence categorised as inconsistencies in her account of events. The complainant explained the differences, at least in part, by reference to the counselling process that assisted her to bring forward memories that had previously been 'blocked out' of her consciousness. In the way that the trial was conducted, these differences were material to the reliability of the complainant's testimony. In my view, it was incumbent on the trial judge to make specific reference to them in his address to the jury. It was not sufficient to make the general comment that the defence case relied on the inconsistencies in the complainant's evidence. As I have previously stated, there is no reference in his Honour's remarks to the question whether or not some of her evidence was affected by the counselling process and, if so, what the jury should consider in relation to it. (emphasis added)

78 After noting that the issue could not be quarantined to the counts to which the inconsistencies related,[99] Owen J concluded:[100]

In my view ... the direction cannot be criticised for what it says. However, I think that there is a problem with the failure to make express reference to what were acknowledged inconsistencies in the Crown case and to the repressed memory issue in a way that related them to the reliability of the complainant's testimony. Individually, the defects may not have had overwhelming significance. However, when they are taken together I think they amount to appealable error.

79 In R v WB,[101] the evidence of an adult witness as to sexual abuse when she was a child was expressly comprised of memories which had emerged since she had undertaken a series of hypnotherapy sessions. The trial judge in that case had directed the jury to scrutinise her evidence very carefully taking into account, among other things, the potential for distortion due to hypnotherapy. Buchanan JA (Neave JA and Hansen AJA agreeing) held that the direction was inadequate, in that:[102]

In my opinion the trial judge was required to warn the jury of the dangers inherent in testimony based upon memory recovered by means of hypnosis. To refer only to 'the potential for distortion due to recovery of memory, due to dreams, due to nightmares under hypnotherapy' was not sufficient. His Honour was required to convey to the jury the reasons why testimony based on recovered memory was capable of being distorted and unreliable. He should have told the jury that it was necessary to scrutinise the complainant's evidence with great care before acting upon it.

Counsel for the respondent submitted that the directions as to possible deficiencies and dangers in the evidence based upon dreams and memory recovered by hypnotherapy depended upon whether there was expert evidence to found the directions.

In my opinion, the requirement to give the directions did not depend upon evidence. The decided cases exemplify judicial knowledge of the technique of hypnotherapy and the dangers inherent in testimony based upon memory said to have been recovered by the technique.

80 In Hardwick v The State of Western Australia,[103] Buss JA, in the course of dealing with a ground alleging evidence of a child complainant to be inadmissible due to leading questions asked in an interview, observed:

Numerous authorities have expounded upon the dangers associated with evidence based upon memories recovered as a result of hypnotherapy. See, for example, R v Horsfall [1989] SASC 1851; (1989) 51 SASR 489; R v Jenkyns (1993) 32 NSWLR 712; Roughley v The Queen [1995] TASSC 14; (1995) 5 Tas R 8; R v WB [2009] VSCA 173; (2009) 23 VR 319; R v JG [2009] NSWSC 1053; (2009) 199 A Crim R 299.

In WB, Buchanan JA (Hansen AJA agreeing) said that perhaps the greatest danger in evidence based upon recovered memory achieved by hypnotherapy is that 'in the heightened level of susceptibility to suggestion which is characteristic of a person in an hypnotic state, the witness may subconsciously be influenced by suggestions or cues planted intentionally or otherwise during hypnosis' (at [36]). His Honour referred to the reasons of Hunt CJ at CL in Jenkyns at 715.

81 For the following reasons, in our view ground 1 is not established.

82 The present case is, as counsel for the appellant accepted,[104] distinguishable from Christophers. As the italicised passage quoted at [77] above shows, the critical circumstance giving rise to a need for a warning in that case was that the complainant in Christophers explained differences between her pre-trial statement and her evidence, at least in part, by reference to the counselling process that assisted her to bring forward memories that had previously been 'blocked out' of her consciousness. In the present case the complainant did not give evidence that memories of the sexual penetration offence had ever been 'blocked', or seek to explain any inconsistency by reference to recovered memories. The present case is also distinguishable from WB where the prosecution case expressly depended on evidence based on memories which had been recovered in a series of hypnotherapy sessions.

83 The general principle is that a trial judge should give the jury a warning whenever a warning is necessary 'to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case'.[105] The 'possibility of a miscarriage of justice' is both the occasion for giving a warning to the jury and the determinant of its content.[106]

84 The risk of miscarriage giving rise to a need for a warning may arise in a number of different ways, which include the following examples (which are not intended to be exhaustive):

(1) A warning may be required to avoid a perceptible risk that a jury will make a finding of guilt by impermissible reasoning. The warnings referred to in Edwards v The Queen and Zoneff v The Queen,[107] as to the misuse of evidence of lies by an accused, provide an example of a warning to prevent this kind of miscarriage, as does the Liberato direction.[108]

(2) Where evidence is admitted for a limited purpose, then a warning may be required to avoid a perceptible risk of the jury using the evidence for an impermissible purpose. An 'anti‑tendency' direction of the kind recently discussed in Hamilton (A Pseudonym) v The Queen,[109] and by this court in LNN v The State of Western Australia,[110] provides an example of a warning to prevent this kind of miscarriage.

(3) A warning may also be required where there is a danger in acting on certain types of evidence, which dangers may not be properly appreciated by a jury in the absence of a direction. Examples of warnings to prevent this kind of miscarriage are the Longman warning,[111] and the warning described in Dominican v The Queen where the prosecution relies on identification evidence.[112]

85 The appellant seeks to bring this case into the third category referred to above, by reference to the recognised danger of relying on evidence based on memories recovered with the assistance of hypnosis. To demonstrate that a warning was required to avoid that kind of miscarriage, the appellant must show:

(1) an evidentiary basis for the jury to have found that the complainant's memory of the sexual penetration offence charged in count 1 had been, or was likely to have been, improved by hypnosis; and

(2) a perceptible risk that, in the absence of a direction, the jury may have failed to have appreciated the danger in relying on evidence based on memory which had been improved by hypnosis.

86 We do not accept the appellant's submission, summarised at [69] above, to the effect that it is sufficient for an accused to merely raise the speculative possibility that a complainant's memory may have been affected by hypnosis in order to place the onus on the prosecution to negate that possibility beyond reasonable doubt.

87 The State must prove each element of the offence beyond reasonable doubt. Where a witness' evidence is the only evidence of one or more element(s) of the offence, the jury must be satisfied beyond reasonable doubt that the witness' evidence as to the relevant element(s) is credible and reliable. The jury must make the assessment of the reliability of that evidence on the whole of the evidence led at trial.

88 The existence of a fact or circumstance which is capable of adversely affecting the reliability of a witness' evidence will bear upon the jury's assessment of that question. The prosecution must prove that, notwithstanding that fact or circumstance, the critical aspects of the witness' evidence are credible and reliable. However, this does not necessarily require the prosecution to prove, beyond reasonable doubt, that the fact or circumstance had no impact on the witness' memory. For example, in a case where there is a significant delay between the events described and the witness' account of events, the prosecution will need to prove that the evidence as to the elements of the offence is reliable despite that delay. In such a case, the prosecution does not need to prove beyond reasonable doubt that the passage of time could have had no impact on the witness' recollection.

89 The jury's task is to have regard to the whole of the evidence and to determine whether they are satisfied beyond reasonable doubt as to each element of the charge. The significance of a particular factor to which an accused points in order to undermine the reliability (or credibility) of a witness does not require evaluation in isolation from the jury's performance of that task. There is no distinct or anterior question, on which the prosecution has an onus of proof, as to the complainant's reliability. Consideration of the complainant's reliability is part of the jury's performance of its task. In a case such as the present, a conclusion that guilt is proved beyond reasonable doubt will necessarily entail a conclusion that the jury was satisfied beyond reasonable doubt of the reliability of the complainant's evidence as to the event the subject of the charge. But that is not to say there is any distinct or anterior question as to the complainant's reliability on which the prosecution has an onus of proof beyond reasonable doubt.[113]

90 There is no basis in principle or authority for holding that the State must negate, beyond reasonable doubt, every speculative possibility to which an accused might point that is capable of affecting the reliability of the witness' evidence in some way. There is no reason for finding some different rule in the case of a speculative possibility that a witness' memory might have been affected in some way by hypnotherapy. Nor is there any proper basis for requiring a trial judge to give a warning about speculative possibilities for which there is no evidentiary basis.

No evidentiary basis for finding complainant's memory affected by hypnosis

91 In our view, the appellant's case fails at the first of the steps referred to at [85] above. The complainant did not give evidence that her account of the offending charged in count 1 was based on recovered memory. Nor was there any other evidence to that effect, or from which an inference could properly be drawn that the complainant's recollection of the offence charged in count 1 was, or was likely to have been, affected by hypnotherapy. A finding by the jury that the complainant's memory of the offending charged in count 1 had been improved by hypnosis would have involved impermissible speculation on the part of the jury. As such a finding would not have been properly open to the jury to make, there was no occasion for a warning about the unreliability of evidence based on memories recovered or improved by hypnosis.

92 When the complainant gave her evidence-in-chief, she said nothing to suggest that her account of the sexual penetration by the appellant, which was the subject of count 1, was not something she remembered from the time of the events. In cross-examination, the complainant denied that she told her mother minimal details when she was 13 years old because she had not yet made them up. She gave evidence that she was planning to tell her mother eventually, but she was not ready to get into detail at the time she first complained to her mother.[114] This evidence, which immediately preceded the cross‑examination about hypnosis, is inconsistent with the proposition that the complainant's first memory of the sexual penetration offence occurred after she received hypnosis therapy.

93 The complainant also denied being unable to remember the appellant rubbing his fingers on her clitoris. The effect of the complainant's evidence was that, when she referred to the appellant touching her clitoris, she was simply providing a better description of what was described in her November 2017 statement.[115]

94 The appellant relies on the answers to the questions set out at [24] above as the evidentiary foundation for the jury to conclude that the complainant's memory of the sexual penetration offence had been, or was likely to have been, improved by hypnosis therapy. In our view, it does not do so.

95 In evaluating the evidentiary effect of the complainant's answers, it is necessary to take account of the manner in which the questions were posed by the appellant's trial counsel. One difficulty was the contradiction in the prelude to the questioning that counsel was not 'asking for information that's of a private or confidential nature' and questions which invited answers disclosing information of that kind. Another difficulty is that multiple questions or compound questions were posed to the complainant and it is often difficult to know which question, or which aspect of the compound question, was being answered.

96 An example of such a compound question is: 'were you ever the subject of hypnosis therapy to assist you to remember things?'.[116] This asks, first, whether the complainant was ever the subject of hypnosis and, secondly, whether the purpose of the hypnosis was to assist her to remember things. The complainant's affirmative response might be taken as applying to both questions if the passage were considered in isolation. However, the complainant's later answers indicated that the purpose of the hypnosis was not to try to recover memories but was rather part of the therapy offered by a counsellor. This illustrates the unfairness of posing compound questions of this nature, particularly to a young woman with the complainant's background. The manner in which counsel chose to pose the questions significantly reduced the evidentiary value of the answers.

97 The manner in which the complainant was questioned about the timing of the hypnosis in relation to her November 2017 statement also gives rise to ambiguity in her answer. The questions posed were:[117]

And when was this in relation to the 2017 statement? Had that happened? Had the hypnosis happened by then or was it after?---It was before.

98 The appellant's trial counsel had posed three questions, and invited a single answer to those questions. The reference to 'this' in the first question appears to be to the hypnosis, which had been a subject of the previous questions and answer. The first question therefore asked when the hypnosis occurred in relation to the 2017 statement. The reference to 'that' in the second question appears to be to the 2017 statement. The effect of the second question was therefore to ask whether the 2017 statement was given before or after the hypnosis. The reference to 'it' in the third question appears to be to the hypnosis, so that the third question asks whether the hypnosis happened after the 2017 statement. If the complainant was answering the second question, her answer indicated that the 2017 statement was made before the hypnosis occurred. If the complainant was answering the first or third questions, her answer indicated that the hypnosis occurred before she made the 2017 statement.

99 The exchange that the appellant principally relies upon immediately followed:[118]

Before. Was it the case that as a result of that hypnosis you remembered information or details that you hadn't told your mum or anyone else when you made your statement in 2017?---I'm not sure.

100 The question is confusing, and required the complainant to take a number of mental steps to properly answer. She would firstly need to consider the point in time at which she made the statement in 2017. She would then need to consider, at that point in time, what 'information or details' she had told her mother 'or anyone else'. She would then need to consider whether she had since remembered other information or details. The complainant would then need to undertake some self-analysis to form an opinion as to whether her recollection of other information or details was a result of the hypnosis. The complex and confusing nature of the question means that the answer, 'I'm not sure', signifies nothing specific.

101 Further, the question is entirely non-specific as to the topic of the 'information or details' which are its subject. It is not directed to the complainant's memory of the sexual penetration which is the subject of count 1. In a context where the complainant had given evidence that she remembered the sexual penetration prior to undergoing hypnosis, her answer cannot be taken to indicate that she is unsure whether her memory of that event was affected by hypnosis.

102 The evidence of the complainant set out at [24] above indicates that, on the recommendation of a doctor, the complainant saw a counsellor called Nicola from a service called Head Space. She was placed under hypnosis as part of her therapy. This was not for the purpose of recovering memories but to help the complainant overcome the effects of the appellant's offending. It is unclear whether the hypnosis occurred before or after the complainant gave her November 2017 statement to police. However, her other evidence is to the effect that she recalled the sexual penetration occurring at the time she complained to her mother in year 8, which was clearly well prior to any therapy.

103 The jury could not infer from this evidence that the complainant's recollection of the sexual penetration offence was, or was likely to have been, improved by hypnosis. The submission by the appellant's trial counsel in his closing address that the jury should reject the complainant's evidence on that basis was an invitation to speculate. There was no evidentiary basis for the jury to have found that the complainant's memory of the sexual penetration offence charged in count 1 had been, or was likely to have been, improved by hypnosis. As such, there was no occasion for the trial judge to have given a warning about the danger of relying on evidence based on memory which had been improved by hypnosis, even assuming that the jury might not have appreciated that danger without a direction.

Perceptible risk that jury may not have appreciated danger without warning

104 Given this conclusion, it is unnecessary to determine in the present case whether a warning was required on the basis of a perceptible risk that, without a direction, the jury would not appreciate the danger of relying on memories recovered as a result of hypnotherapy. The warning which the appellant contends should have been given, as noted at [69] above, is that, if the jury found hypnosis occurred before the complainant's 2017 statement to police, they should approach the complainant's evidence with caution in light of the knowledge that hypnotic suggestion can affect a person's evidence.

105 We note, however, the absence from any request from either counsel at trial for a direction about the impact of hypnotherapy. This indicates that, absorbed in the atmosphere of the trial as it occurred, neither counsel perceived a risk that the jury might fail to appreciate the dangers of relying on recovered or improved memories in the absence of a direction. There was no forensic advantage for the appellant in not seeking such a direction and counsel had been informed of the substance of the trial judge's direction before it was given. This strongly tends against a finding that there was a perceptible risk that the jury would fail to appreciate the dangers of relying on memories recovered or improved as a result of hypnotherapy in the absence of a direction.[119]

106 For the above reasons, there is no proper evidentiary basis for the contention advanced by ground 1, which is not established.

107 Ground 2 contends that the verdict of guilty was unreasonable or cannot be supported having regard to the evidence.

108 The general principles governing an appeal on this ground, derived from the decision of the High Court in M v The Queen,[120] are well established. In summary: [121]

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

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

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

(4) In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses.

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

(6) If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict.

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

Sufficiency of evidence led at trial to establish guilt

109 In the present case, the complainant's evidence, if found to be credible and reliable, established the commission of the sexual penetration offence charged in count 1 of the indictment. Although the complainant's evidence was the only evidence of the commission of the offence charged in count 1, there was other evidence supporting her account generally. Examples include evidence of the appellant having rostered days off on Thursdays, when the complainant's mother was at work, and that the complainant's brother had periodically stayed with his father during school holiday periods. The suggestion of recent invention was rebutted by the fact that the complainant made a complaint to her mother when she was in year 8. While the complaint was of non‑specific sexual touching, it was consistent with the evidence given by the complainant as to the commission of count 1 as it would have been perceived by a child.

110 The jury could reasonably have placed little weight on the appellant's denial of the offending given his admissions that he was often so intoxicated at the house he shared with the complainant and her mother that he could not recall events.

111 The appellant relies on the following four factors in support of his contention that the jury must have had a reasonable doubt about the commission of the sexual penetration offence charged in count 1:[122]

(1) the complainant did not remember making her 2017 statement, which is the first time she described sexual penetration;

(2) there was no evidence of the complainant having a memory of sexual penetration prior to giving the 2017 statement;

(3) the complainant was not sure whether the therapy she received affected what she remembered when she made the 2017 statement; and

(4) in her 2017 statement, the complainant said that the appellant 'didn't have his front teeth in' when he kissed her just prior to the sexual penetration offence, when the evidence of Mr Sequeira showed that to be incorrect.

112 In our view, none of these factors, either considered alone or in combination, required the jury to have a reasonable doubt as to the credibility or reliability of the complainant's evidence about the sexual penetration offence.

113 The complainant accepted that she had no memory of speaking to police on 21 October 2017, and had suffered a breakdown and was hospitalised after taking drugs after that interview. However, while the complainant was not sure if she had taken drugs before the interview,[123] she did not appear to Detective Senior Constable Bell to be affected by drugs at that time.[124] More importantly, the appellant signed her written statement after reading it on 18 November 2017, about a month later when there was no evidence suggesting that she was impaired. The complainant's evidence of her lack of recollection of 21 October 2017 did not require the jury to have a reasonable doubt as to the reliability of her evidence about the sexual penetration offence.

114 As noted at [93] above, the complainant's evidence was inconsistent with her having no memory of the sexual penetration offence prior to giving the 2017 statement.

115 As explained in dealing with ground 1, there was no evidentiary foundation for the jury to infer that the complainant's recollection of the sexual penetration offence was, or was likely to have been, improved by hypnosis.

116 In her evidence, the complainant explained that what she had meant by saying in her 2017 statement that the appellant did not have his teeth in was that 'it seemed like he was missing a tooth or had a tooth chipped'. That evidence was consistent with the evidence of Mr Sequeira as to the state of the appellant's teeth in 2016. If the jury accepted the complainant's explanation of what she meant in the 2017 statement, there was no inconsistency between the account given in that statement and the evidence of Mr Sequeira.

117 In our view it was open to the jury, considering the evidence as a whole, to:

(1) positively reject the appellant's denial of the sexual penetration offence in his recorded interview with police;

(2) accept the account given by the complainant as to the sexual penetration offence charged in count 1 to be truthful and reliable;

(3) be satisfied, beyond reasonable doubt, that the complainant was sexually penetrated by the appellant in the manner described by the complainant's evidence; and

(4) having reached that conclusion, be satisfied beyond reasonable doubt that each of the elements of the sexual penetration offence charged in count 1 were established.

118 Having reviewed the transcript of the trial and the exhibits, we are not left with any reasonable doubt as to the appellant's guilt of the offence of which he has been convicted. In our view, it was well open for the jury to be satisfied, beyond reasonable doubt, that the appellant committed that offence.

119 We see no merit in ground 2 and would refuse leave to appeal on that ground. While we would grant leave to appeal on ground 1, that ground is not established so the appeal must be dismissed. The orders should be:

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

[46] Trial ts 181, 182 - 183, 186, 187 - 189, 193 - 194.

[56] Trial ts 164 - 172, 202 - 203, 215 - 227.

[57] Trial ts 228 - 234, being a direction of the kind referred to in Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79.

[80] Appellant's submissions, par 50 - 52.

[82] Appellant's submissions, par 61 - 63.

[83] Appellant's submissions, par 64, 68 - 69.

[89] Respondent's submissions, par 35, 39.

[90] Respondent's submissions, par 46 - 47.

[92] Christophers v The Queen [2000] WASCA 308; (2000) 23 WAR 106.

[94] R v McFelin [1985] NZCA 63; [1985] 2 NZLR 750.

[95] R v Jenkyns (1993) 32 NSWLR 712, 715 - 716.

[101] R v WB [2009] VSCA 173; (2009) 197 A Crim R 18.

[103] Hardwick v The State of Western Australia [2011] WASCA 164; (2011) 211 A Crim R 349 [77] - [78].

[106] Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315, 325.

[107] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, 211; Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234, [16] - [24].

[108] Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507, 515; De Silva v The Queen [2019] HCA 48; (2019) 268 CLR 57 [10].

[109] Hamilton (A Pseudonym) v The Queen [2021] HCA 33 [43], [66] - [67].

[110] LNN v The State of Western Australia [2021] WASCA 39 [172] - [177].

[112] Dominican v The Queen (1992) 173 CLR 555, 561 - 562.

[113] See, by analogy, DKA v The State of Western Australia [2019] WASCA 123 [173].

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

[121] See Wells v The State of Western Australia [2017] WASCA 27 [13] and cases there cited; Gibbs v The State of Western Australia [2018] WASCA 68 [28] - [34].