Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Sexual offences - Indecent dealing with and sexual penetration of a 4­year­old child - Whether verdict unreasonable or cannot be supported by the evidence - Whether hearsay evidence relating to identification wrongly admitted

Criminal Appeals Act 2004 (WA), s 30(3)(a)

Evidence Act 1906 (WA), s 106C, s 106HB, s 106I

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

Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559

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

Martinez v The State of Western Australia [2007] WASCA 143

Scriva v The State of Western Australia [2010] WASCA 89

SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571

Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159

1 MARTIN CJ: This appeal should be dismissed for the reasons given by Mazza J, with which I agree.

2 BUSS JA: I agree with Mazza J. In particular, as to ground 1, the appellant's conviction was not, having regard to the evidence, unreasonable. My review of the trial record does not require the conclusion that a reasonable doubt must be entertained as to whether the appellant was guilty. I do not have such a doubt. The jury's verdict is supported by evidence that the jury was entitled to accept.

4 At about lunchtime on 4 October 2009, the complainant, who was then 4 years of age, was playing at a house not far from hers. There, a group of adults were watching the NRL grand final on television. At about the same time, the appellant visited the house. He was seen wearing a black shirt and white cap.

5 The complainant went home and asked her mother if she could go for a swim. Her mother, who was preparing lunch, gave her permission to do so. When the complainant returned, a short time later, her mother noticed that she was wet and upset. The complainant told her that 'Gagga' (an Aboriginal word for uncle) had hurt her 'minnie' (vagina). Her mother saw blood stains on the complainant's underpants.

6 The complainant was unable to name the man who hurt her, but she said he was wearing a black shirt and a white hat or cap.

7 The complainant's mother went to the house where her daughter had been playing. She learnt that the appellant had been at the house and had been wearing a black shirt and a white cap.

8 The police were called. They arranged for the complainant to be medically examined. The examination revealed injuries consistent with a penetration of the vagina. The complainant, shortly after that, took part in a visually recorded interview. She told the interviewers that the man had licked her bum and had poked her minnie with his finger.

9 The appellant was arrested on 4 October 2009. A black shirt and white cap belonging to him were seized. He exercised his right to silence.

10 On 5 October 2009, the complainant identified the appellant as the offender in a digiboard procedure.

11 The appellant was charged with indecently dealing with the complainant by licking her buttock and with sexually penetrating the complainant by penetrating her vagina with his finger. He was tried before Sleight DCJ and a jury. The only issue at trial was identification. The appellant neither gave nor called evidence. On 20 May 2010, he was convicted as charged and later sentenced to a term of immediate imprisonment.

12 The appellant appeals, with leave, to this court against his convictions. He complains that the verdicts were unreasonable and cannot be supported, having regard to the evidence led at his trial (ground 1). The particulars which support ground 1 point to the absence of DNA evidence linking him to the complainant, the absence of DNA or other evidence linking him to the place where the offence occurred, and to discrepancies between the complainant's description of the offender in the visually recorded interview and the photograph of him chosen from the digiboard.

13 The appellant also complains that Sleight DCJ erroneously admitted hearsay evidence from the complainant's mother relevant to the issue of identification (ground 2).

15 The complainant's evidence was given in the form of a visually recorded interview pursuant to s 106HB of the Evidence Act 1906 (WA), which took place between 8.10 and 8.30 pm on the day of the alleged offences, and her pre-recorded testimony under s 106I of the Evidence Act made on the morning of 18 May 2010, prior to the empanelment of the jury.

16 At the time that the offences were allegedly committed, the complainant was 4 years of age. By the time of the pre-recording, she had turned 5. The complainant's testimony in the pre-recording was not on oath. It was given under s 106C of the Evidence Act (ts 156).

17 In the visually recorded interview, the complainant said that someone had been 'rude to me' (VRI ts 3). She described what happened to her in these terms:

He licked my bum ... and then he poked ... my ... [minnie] ... and there was blood and then we went down and I had a shower and then I went home (VRI ts 3).

18 She described the person who had 'been rude' to her as having black skin and long black hair. The complainant said that he was wearing a black shirt and a white hat (VRI ts 3 - 4).

19 When the complainant was asked how he touched her minnie, she indicated that the offender had done so with his finger (VRI ts 5).

20 The complainant said that the offences occurred inside 'Kiara's old house'. She described that house initially as being next door and then a short time later across the road (VRI ts 5). She described the room in which the offences occurred as having a floor that 'looked like black'. She said that there was 'just old stuff' in that room (VRI ts 6).

21 When the complainant was asked where the blood had come from, she said:

It came from the finger and it poked me and I was ... and it hurt (VRI ts 7).

She said that she saw blood on her minnie (VRI ts 7).

22 She said that she washed the blood off by 'going under the hose' (VRI ts 8). While she did this the boy was 'sitting on the trolley' (VRI ts 8).

23 She was asked about her underwear. She said that the boy took off her underpants, but that he put them back on 'when the hose was finished' (VRI ts 9 - 10).

24 The complainant said that after this she walked home by herself and told her mother how the boy had 'done rude stuff' (VRI ts 10).

25 In the visually recorded interview, the complainant said that she did not know the boy's name, but she indicated that she would be able to recognise him again (VRI ts 11).

26 It is obvious from viewing the complainant's pre-recorded evidence, which was taken more than seven months after the alleged offences were committed, that she was distracted and found it very difficult to concentrate.

27 All that could be garnered from her examination-in-chief is that she had watched a DVD of her visually recorded interview (ts 162).

28 In cross-examination, in addition to being distracted and lacking in concentration, she found it difficult to recall relevant events. For example, she could not recall the digiboard identification.

29 She also contradicted some of the things that she said in her visually recorded interview. For example, she said that the floor of the room in which the boy hurt her was white. She also said that there were 'new stuffs' in the house (ts 170).

30 She said that she did not know whether the boy hurt her at Kiara's old house (ts 172).

31 The complainant's mother testified that in October 2009 she was living in a unit at an address in Broome with her three children, one of whom is the complainant. The street in which they were living was a cul-de-sac. Close to her, in another unit, lived Gary Lawfod, his partner Lorrelle Shadforth and Mr Lawfod's mother, Jane Lawfod.

32 On 4 October 2009, at about midday, Mr Lawfod had a social gathering at his house to watch the rugby league grand final.

33 Mr Lawfod and Ms Shadforth's children, the complainant and one of her brothers, were playing together in the front garden area.

34 The complainant's mother testified that she watched some of the rugby but then went home, put on a movie and began to prepare the children's lunch (ts 208).

35 She said that the complainant came into the house and asked her if she could go for a swim at the Lawfod house.

36 Later, the complainant returned home. The complainant's mother noticed that the complainant was wet and looked upset (ts 208). This was about 45 minutes after she put on the movie (ts 244).

37 The complainant told her that she had gone and had a shower with 'Gagga'. The complainant's mother said that the complainant told her that this person had hurt her minnie (ts 209). She said that the complainant showed her the inside of her underpants where she saw what appeared to be bloodstains (ts 209).

38 The complainant's mother said that the complainant gave her a description of the clothing being worn by the person. She said:

[The complainant] said the person was wearing a white cap - white hat and a black shirt (ts 209).

39 The complainant's mother said that she and the complainant went to the Lawfod house to see if there was anyone there wearing the clothing described by her daughter. Although she saw a few people wearing black shirts (ts 241), none of them were wearing a white hat (ts 242).

40 The complainant's mother said that she then spoke to Jane Lawfod and after that she asked Mr Lawfod and the other men who were watching the rugby if anyone wearing a white cap with a black shirt had been there (ts 211). She was told by Mr Lawfod, Mr Carter and Mr Bedford that the appellant had been there (ts 213 - 214). It is this evidence which is the subject of ground 2.

41 The complainant's mother then asked the complainant to show her where the offender had taken her (ts 214). The complainant did this (ts 215). The complainant took her to a house on the same cul-de-sac in which she lived (the third house). The complainant's mother knocked on the door of the house. A man opened the door. That man was not the appellant (ts 235).

42 The complainant's mother said that she and the complainant then returned to the Lawfod house (ts 244). On her way there, she recalled that there was a power cut (ts 242).

43 The complainant's mother said that she then went to the police station to report what she had been told by the complainant (ts 216).

44 Ms Shadforth testified that while the rugby was on the television, she was inside the Lawfod house, making lunch for herself and her children (ts 249 - 250). She said that when the lunch was cooked, she called her daughters in and told the complainant and her brother to go home and have lunch (ts 251).

45 She said she gave her children lunch at approximately 12.30 pm (ts 252).

46 She said that some time after lunch she saw the complainant and the complainant's mother. She noted that the complainant had wet hair. Ms Shadforth was told that something had happened to the complainant. Ms Shadforth said that she and the complainant's mother asked the complainant what sort of clothes the man had on and she replied 'black shirt and white hat' (ts 255). Ms Shadforth said that the appellant, who was her cousin, had been at her house that day in clothing fitting that description. Ms Shadforth said that she had last seen the appellant at the house when she called out to her daughters for lunch (ts 256). She said that no one else at the house that day was wearing a black shirt and white cap but she could not remember whether anyone had been wearing just a black shirt (ts 257).

47 In cross-examination she said that she recalled that, at about the middle of the rugby match, there was a power cut. By that time the appellant had gone (ts 266). She did not say when he had gone.

48 Detective Davies was the principal investigating officer in the case.

49 At approximately 4.30 pm on 4 October 2009, he was recalled to duty at the Broome police station where he met the complainant and the complainant's mother. He arranged for the complainant to attend at the Broome Hospital where she was medically examined and bodily samples were obtained. He arranged for the complainant's underpants to be seized. Her underpants were sent for forensic examination.

50 Detective Davies said among the clothing seized from the appellant by the police was a black shirt and a white cap. Later on 4 October 2009, he arranged for the appellant to be photographed wearing the black shirt, but with no cap (exhibits 6.3 and 6.4). The photographs show that underneath the black shirt is a green basketball-type singlet.

51 On 4 October 2009, the complainant's mother took Detective Davies to the third house. Detective Davies saw and photographed an outside tap, near which was an overturned trolley (exhibit 8.1 - 8.3). On 6 October 2009, Detective Davies returned to this house where he examined a storeroom at the rear of the house which could be accessed from the outside. In the storeroom on the floor was a mattress on which was a black mattress cover. Detective Davies seized the mattress cover and arranged for it to be forensically examined. It is not disputed that the offences occurred in this room.

52 Detective Davies also arranged for the complainant to take part in a digiboard identification process. This took place at approximately 10.38 am on 5 October 2009. The digiboard identification was supervised by a police officer who was independent of the investigation and was recorded on a DVD (exhibit 9). The DVD was played to the jury and the digiboard was tendered into evidence (exhibit 10). Less than 10 seconds after being given the digiboard, the complainant picked out the appellant's photograph and identified him as the offender.

53 Dr Phillips examined the complainant at the Broome Hospital at approximately 6.00 pm on 4 October 2009. The genital examination of the complainant revealed two fresh bruises on the internal surface of the labia and a small 2 mm tear at the very lower part of the vaginal entrance (ts 292 - 293). Dr Phillips said they were consistent with what she had been told had occurred to the complainant (ts 293).

54 Mr Egan is a forensic scientist employed at PathWest. He testified that a forensic examination was made of the mattress cover (which he referred to as a mattress protector) and the complainant's underpants. A bloodstain on the mattress protector revealed a mixed DNA profile, the major component of which was matched to the complainant. The DNA profile of the bloodstains on the underpants also matched the complainant. No DNA matching the appellant was found on either of the items examined by Mr Egan.

55 No complaint was made about the trial judge's directions on identification.

56 He instructed the jury to scrutinise the complainant's evidence with special care, having regard to the importance of her evidence, her young age and the difficulties defence counsel had in cross-examining her: ts 318 - 319.

57 His Honour warned the jury in clear terms as to the dangers of mistaken identification evidence in accordance with Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, 561 - 562. He drew the jury's attention to all the factors which may have affected their consideration of the complainant's identification. In particular, he alerted the jury to the disadvantages of digiboard identification: Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159 [47], [120]. His Honour told the jury that a photograph is two-dimensional, static and does not show how a person moves, his posture, his facial expressions, complexion, body size and shape and other characteristics that seeing a person provides.

58 Section 30(3)(a) of the Criminal Appeals Act 2004 (WA) requires this court to allow an appeal and to set aside a verdict of guilty if, in its opinion, having regard to the evidence, the verdict is unreasonable or cannot be supported. The test which must be applied when s 30(3)(a) is sought to be invoked is not in dispute.

59 The question which this court must ask itself is whether, upon a consideration of all of the evidence, it was open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt: M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493. The word 'open' in this context is important. As Hayne J said in Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559:

[T]he question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard [113]. (emphasis in original)

60 This court must undertake its own independent assessment of all of the evidence. It is not simply a matter of deciding whether, as a matter of law, there was evidence to support a verdict: SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571. Full regard must be given to the considerations that the jury is the body primarily entrusted with the responsibility of determining guilt or innocence, and that it has had the benefit of having seen and heard the witnesses.

61 The test laid down in M v The Queen must be applied in this way:

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (494 - 495).

62 See also Martinez v The State of Western Australia [2007] WASCA 143; and Scriva v The State of Western Australia [2010] WASCA 89.

63 The appellant addressed no oral submissions in support of this ground and was content to rely on the brief submissions set out in his appellant's case (appeal ts 5 and 15).

64 The appellant submitted that, having regard to all of the evidence concerning identity, the verdicts were unreasonable and could not be supported. The appellant submitted that the combined effect of the following matters led to this conclusion:

(a) No DNA matching the appellant's profile was found on the complainant or her clothing.

(b) There was no evidence that the appellant had any link to the premises where the offences were alleged to have taken place, being the premises at which the mattress cover was found.

(c) There was no evidence from a witness who could place the appellant at those premises at the time of the alleged offence.

(d) The description of the offender given by the complainant did not mention the basketball singlet which the appellant was wearing at the time he was arrested and in the photographs taken shortly after his arrest.

(e) The complainant said that the offender had long hair, but the photograph of the offender taken by the police on the night of his arrest showed that he did not have long hair (exhibit 6.3).

(f) The complainant described the offender's skin colour as 'black', but the appellant was of a lighter complexion (digiboard photograph number 10, exhibit 10).

65 The respondent submitted that the crucial evidence establishing the appellant's identity was the digiboard identification procedure undertaken by the complainant on 5 October 2009. The respondent submitted that the complainant's identification of the appellant in this procedure was compelling.

66 The respondent submitted that the jury was appropriately and correctly directed as to the dangers of identification evidence and that it was open to the jury, in light of those directions and all of the evidence, to be satisfied beyond reasonable doubt that the appellant was the offender. As to the particular aspects of the case relied upon by the appellant in his submissions in support of ground 1, the respondent asserted that there was nothing in those submissions which detracted from the reasonableness of the jury's verdicts. The respondent submitted that the absence of DNA evidence and the lack of evidence establishing the appellant's prior association with the scene of the crime were neutral and were not probative of the appellant's innocence.

67 The respondent submitted that the absence of DNA on the complainant could be explained by the fact that the complainant 'showered' underneath a tap before she returned to her mother.

68 As to the green basketball singlet, it was submitted that while the appellant was wearing the basketball singlet when he was photographed at the police station, there was no evidence that he had been wearing it earlier in the day.

69 As to the appellant having 'long hair', it was submitted that the complainant was not asked what she understood by those words. It was suggested by the respondent that the complainant's description as having long hair is not inconsistent with what is shown in the digiboard photograph of the appellant.

70 With respect to the complainant's description of the offender's skin as being 'black', the complainant agreed, in the visually recorded interview, that the offender had dark-coloured skin like hers (VRI ts 4). The respondent submitted that both the complainant and the appellant were Aboriginal and that the description given by the complainant was apt.

71 Was it open to the jury to be satisfied beyond reasonable doubt that the appellant was the person who had indecently dealt with and sexually penetrated the complainant?

72 I have carefully reviewed the entire trial record. In doing so, I have viewed the complainant's visually recorded interview and pre-recorded evidence. I have seen all the exhibits and watched the DVD of the digiboard procedure.

(a) the matters which led his Honour to direct the jury to scrutinise the complainant's evidence with special care;

74 It is not clear when precisely on 4 October 2009 the offences were committed. Ms Shadforth said that at approximately 12.30 pm she gave her children their lunch. Just prior to that, she sent the complainant and her brother home.

75 The complainant's mother said that she put on a movie and began to prepare her children's lunch when the complainant came into her house and asked permission to go for a swim. The complainant's mother said that within about 45 minutes of putting on the movie, the complainant returned home and made her complaint.

76 It may be safely assumed that when the complainant sought permission from her mother to go for a swim, the offences had not yet occurred. However, by the time the complainant returned home, upset, wet and with blood on the inside of her underpants, the offences had been committed. The best that can be said about the time at which the offences were committed is that they occurred at around about lunchtime, that is, closer to the middle of the day than in the later afternoon.

77 It is not disputed that the appellant was at the Lawfod house on the day in question and that he was wearing the clothing described by the complainant, namely a black shirt and a white cap. There was no evidence that anyone else at the house was wearing both a black shirt and a white cap or hat. There is no reasonable prospect that the appellant was mistakenly identified as being at Mr Lawfod's residence. Ms Shadforth, who was his cousin, saw him at the house that day in the clothing I have just described. It is significant that Ms Shadforth said that she last saw the appellant at the house when she called out to her daughters for lunch. This evidence places the appellant at the Lawfod residence at approximately the same time as the complainant. The appellant was not seen by Ms Shadforth after that time. The adults who might usually have noticed an adult man taking away a 4-year-old child were occupied by either watching the NRL grand final or preparing and serving lunch. In these circumstances, it is open to conclude that the appellant was present at about the time the offences were committed and that he had an opportunity to take the complainant, without being noticed, to the nearby house where the offences occurred.

78 I now turn to the complainant's evidence in the visually recorded interview and the pre-recording. The visually recorded interview occurred on the same day as the alleged offences were committed. The complainant's account of what occurred to her was not elicited by leading questions and is clear.

79 The account was supported by the medical evidence and by other aspects of the evidence. She said that the offences occurred at a house which she initially described as next door, but later described as across the road. The child was conveying in those answers that the place where the offences occurred was very close to her house. The house at which the mattress cover with the complainant's blood was found was in the same cul-de-sac and very close to the complainant's house. She said that when she washed the blood off using a hose, the offender was sitting on a trolley. Photographs taken by the police at the house where the mattress protector was found show an outside tap (although no hose) near which is an overturned shopping trolley.

80 The complainant described the room in which the offences occurred as having a black floor. The mattress cover seized by the police from the floor of the room was black in colour.

81 The description that the complainant gave of the offender was not detailed but was, in general terms, consistent with that of the appellant. On the day in question, the appellant was wearing a black shirt and a white cap. The failure of the complainant to mention the basketball singlet is of no significance. There is no evidence that the appellant was wearing the basketball singlet earlier in the day at about the time the offences allegedly took place. Further, even if the appellant was wearing the basketball singlet, it is not of such prominence as might be noticed by the complainant.

82 There is little in the points made on behalf of the appellant about the offender's hair being long and his skin being black. As the respondent pointed out, the complainant was not asked what she meant by long hair. Although I may not have described the appellant's hair as shown in the photograph taken of him and included in the digiboard as 'long', a 4-year-old might. As to the colour of the offender's skin, it is clear from a consideration of the complainant's answers in the visually recorded interview that what she meant by the word 'black' was that the offender had dark-coloured skin like hers. The word 'black' was not used to convey a skin colour materially different to her own.

83 It must be acknowledged that by the time the complainant came to be cross-examined at the pre-recording, her recollection of events had plainly deteriorated and that she gave some answers which contradicted some answers given in her visually recorded interview. However, the contradictions were not such as to undermine the reliability of the complainant's evidence. In the pre-recording the complainant said that the floor was white, not black. Despite this, the unchallenged evidence is that the mattress cover on which the complainant's DNA was discovered was dark-coloured. The other contradiction, where she described in the visually-recorded interview that there was old stuff in the room but in the pre-recording said that there was new stuff, is not a matter of great moment.

84 I now turn to the digiboard identification. The digiboard identification process conducted in this case was compelling. The appellant's photograph was one of 12. The other photographs depicted men who resembled the appellant in terms of age, skin colour and facial features. The procedure was conducted fairly. The DVD of the identification process showed that the complainant was not prompted to make an identification of the appellant's photograph. The complainant, in less than 10 seconds and without hesitation, pointed to the appellant's photograph, identifying it as the photograph of the person who had committed the offences against her. The identification procedure occurred less than 24 hours after the alleged offences were committed and before the effects of time had deteriorated her recollection.

85 Finally, there is the absence of the appellant's DNA on the complainant's underpants and the mattress cover. This was not a case of penile penetration or other sexual contact where ejaculation was said to have occurred. DNA is not always recovered from the surface touched by someone. Further, sometimes the levels of DNA left by a person are too low to be detected. In the present case, any DNA left by the offender in the process of committing the two offences may well have been washed off when the complainant washed herself. It is not clear from the evidence if and how the offender touched the mattress cover. In these circumstances, the absence of the appellant's DNA was not significant.

86 Having assessed all of the evidence, it is my opinion that it was well open to the jury to have been satisfied beyond reasonable doubt that the complainant had accurately identified the appellant as the offender. This is so despite her young age, the dangers of identification evidence and the alleged weaknesses raised by the appellant. The evidence the complainant gave in her visually recorded interview, which was taken within hours of the commission of the alleged offences, is confirmed in a number of relevant and important respects by other evidence. Her digiboard identification is, as I have just noted, compelling. The appellant was unmistakably identified as being at the Lawfod house and had the opportunity to commit the offences. I am not persuaded that the evidence was such that the jury must have entertained a doubt about the appellant's guilt. Ground 1 has not been made out.

Ground 2 - was hearsay evidence erroneously admitted?

87 The evidence the subject of ground 2 was given by the complainant's mother in the course of her examination-in-chief. The evidence was elicited as follows:

What did you do then, when you got into the backyard?---I just stated to all the boys that what had happened with my daughter and if anyone with the description clothing that was around there before or at that time, if anyone was there that they know of that fit - had a white cap and a black shirt. And then they just started to think and then they all realised and said, 'Yeah', they all stated that that [the appellant] was in the premises just shortly before that (ts 211). (emphasis added)

88 It is the italicised part of the answer which is in issue.

89 The appellant's trial counsel objected to the evidence, not on the basis of hearsay, but because the witness did not particularise who amongst the men had identified the appellant as being at the premises wearing a black shirt and white cap. His Honour, however, was alive to the hearsay point and raised it.

90 A discussion then followed in the absence of the jury. The prosecutor accepted that the witness should be asked to specify who identified the appellant and his clothing. The prosecutor informed his Honour that the State intended to call three witnesses that were expected to confirm the appellant's identity and what he was wearing. His Honour then turned to defence counsel and said:

[I]f you have no objection on the basis that it's anticipated that the other witnesses will be giving that evidence, I am content to allow the evidence to proceed along the lines proposed by [the prosecutor].

92 The complainant's mother was recalled and she named three men whom she said had identified the appellant and what he was wearing.

93 In light of this evidence, both trial counsel agreed that it was unnecessary to call the three men named by the complainant's mother (appeal ts 15).

94 Assuming that the purpose for adducing the evidence from the complainant's mother was to establish as a matter of fact that the three men had seen the appellant at Mr Lawfod's house and that he was at the time wearing a black shirt and white cap, the evidence was plainly hearsay and inadmissible. However, in light of the agreement reached by counsel, it is impossible to see how any miscarriage of justice has occurred as a result of the admission of the evidence. This can be plainly seen from the fact that there was no issue at trial that the appellant had been at the premises and was wearing the clothing which had been described. As I have mentioned, Ms Shadforth gave evidence that the appellant, who was her cousin, was at the Lawfod house on the day in question and was wearing a black shirt and a white cap. This evidence was not contested in cross-examination; that is, the appellant's trial counsel did not put to her that the appellant was not at the house or that he was wearing different clothing.

95 It has not been suggested, nor could it reasonably have been suggested, that by agreeing with the prosecutor not to call the three men, the appellant's trial counsel had acted so incompetently as to amount to a miscarriage of justice.

97 However, in the course of his oral submissions with respect to ground 2, Mr Hall sought to impugn the convictions on a basis that was not put at trial, in the appellant's grounds of appeal or in the appellant's written submissions.

98 The argument put by Mr Hall was not entirely clear, but seemed to proceed as follows. While it is conceded that the appellant was at Mr Lawfod's house on the day in question, wearing a black shirt and white cap, there was no evidence of when he was there. Mr Hall submitted that, as Messrs Lawfod, Carter and Bedford were not called to give evidence, the defence was deprived of the opportunity of exploring this issue, and accordingly a miscarriage of justice occurred.

99 This submission has no merit. For the reasons I have already given, the offences must have occurred at around lunchtime. The appellant and the complainant were each at the Lawfod house at that time. Further, Messrs Lawfod, Carter and Bedford were not called to give evidence with the consent of the appellant's trial counsel. The decision made by defence counsel was for apparently sound forensic reasons. There is a reasonable explanation for his decision, namely, if Messrs Lawfod, Carter and Bedford had given evidence they may well have reinforced Ms Shadforth's evidence that the appellant was at the Lawfod house at the material time and that he was wearing the clothing described by the complainant. Also, there was a real risk that one or more of them may have given more precise evidence as to the time when the appellant was at the house and the time when he departed. Mr Hall's new argument demonstrates no miscarriage of justice.

100 There is no merit in the appellant's grounds of appeal or in Mr Hall's additional argument. The appeal must be dismissed.