EDZ -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 84 (12 June 2025)

1. The appellant is the biological father of the two complainants.[11] The appellant was in a relationship with the mother of the children from 2001 and they married in 2003.[12] The marriage continued until mid‑2015, when the parties separated. They divorced in 2016.[13] There were four children of the relationship, three girls and one boy. The female complainant, C, is the oldest child and was born on 17 May 2004. The male complainant, F, is the second oldest child and was born on 1 December 2005. The two younger daughters, J and D, were born in 2007 and 2010, respectively.[14]
2. From April 2006 until February 2012, the family lived in a four‑bedroom, three‑bathroom house in Baldivis (Baldivis house).[15] The appellant and his wife occupied the master bedroom, which had an ensuite bathroom.[16] C and F both had their own bedrooms. At the time the family moved into the Baldivis house, C was nearly 2 years old, and F was about 1 year old. By the time they moved out of the house, C was 8 years old and F was about 6 years old.[17]
3. Counts 1 - 5, relating to C, and 6 - 8, relating to F, were alleged to have occurred at the Baldivis house.[18] The appellant was ultimately convicted only of counts 1 and 3 in relation to C. It is unnecessary to refer to the facts in respect of those offences as the focus of the appeal is on the counts relating to F.
4. On a date unknown between 31 November 2010 and 1 February 2012, the appellant and F were at home together at the Baldivis house. F was aged between 5 and 6 years of age at the time. He and the appellant were in the ensuite shower. The appellant told F to wash the appellant's penis. F touched the appellant's penis with his hands. That conduct is the subject of count 6, a charge of indecently dealing with a child who the appellant knew to be his lineal relative, contrary to s 329(4) of the Criminal Code (WA) (the Code).[19]
5. On another date unknown between 31 November 2010 and 1 February 2012, the appellant and F were again at home together at the Baldivis house. F was aged between 5 and 6 years of age. The appellant told F to come in and have a shower with him in the ensuite bathroom. Whilst in the shower, the appellant told F to wash the appellant's penis. F did as he was told and touched the appellant's penis with his hands. That conduct was the subject of count 7, a charge of indecently dealing with a child who the appellant knew to be his lineal relative, contrary to s 329(4) of the Code.[20]
6. On the same occasion as either count 6 or count 7, the appellant told F that he wanted to teach F how to clean himself properly. F was unable to recall whether this occurred after the incident the subject of count 6 or the incident the subject of count 7. The appellant touched F's penis with his hands using soap whilst in the ensuite bathroom shower. F was capable of washing himself and it was not necessary for the appellant to wash or touch F's penis. This conduct was the subject of count 8, a charge of indecently dealing with a child who the appellant knew to be his lineal relative, contrary to s 329(4) of the Code.[21]
7. In 2012, the appellant commenced a new job in Kalgoorlie and the family moved to that town. They lived in a house in Matthews Way, Somerville, a suburb of Kalgoorlie (Matthews Way house), between February 2012 and November 2013.[22]
8. On a date unknown between 31 January 2012 and 30 November 2013, F was in the ensuite bathroom shower of the appellant's bedroom at the Matthews Way house. F was aged between 6 and 7 years old at the time. The appellant got into the shower with F. The appellant asked F to touch the appellant's penis. F did as he was told and touched the appellant's penis with his hands. This conduct was the subject of count 9, a charge of indecently dealing with a child who the appellant knew to be his lineal relative, contrary to s 329(4) of the Code.[23]
9. On a date unknown between 31 January 2012 and 30 November 2013, F was again in the ensuite bathroom shower at the Matthews Way house. The appellant got into the shower with F. The appellant asked F to touch the appellant's penis. F did as he was told and touched the appellant's penis with his hand. This conduct was the subject of count 12, a charge of indecently dealing with a child who the appellant knew to be his lineal relative, contrary to s 329(4) of the Code. This charge was out of chronological order on the indictment.[24]
10. In November 2013, the family moved to a different house in Kalgoorlie, in McKay Street, Somerville (McKay Street house). On a date unknown between 1 November 2013 and 31 October 2015, the appellant was in the ensuite bathroom of the McKay Street house. The appellant asked F to get into the shower with him. F got into the shower with the appellant. The appellant told F to touch the appellant's penis. F did as he was told and touched the appellant's penis. That conduct is the subject of count 10, a charge of indecently dealing with a child who the appellant knew to be his lineal relative, contrary to s 329(4) of the Code.[25]
11. During the same incident as count 10, whilst in the shower at the McKay Street house, the appellant introduced his penis into F's mouth. That conduct is the subject of count 11, a charge of sexually penetrating a child who the appellant knew to be his lineal relative, contrary to s 329(2) of the Code.[26]
12. The remaining three counts all took place at the house of a relative in Beaconsfield (Beaconsfield house).[27] At the time, the appellant had taken a job in Canberra and was living there. When he returned to Perth to visit his children he would stay at the Beaconsfield house. On at least one occasion that he stayed there the owners were away overseas. F and his sisters visited the appellant at the Beaconsfield house when he stayed there.
13. On a date unknown between 31 May 2016 and 1 July 2016, F was in the shower in the bathroom at the Beaconsfield house. His sisters were playing elsewhere in the house. The appellant entered the bathroom, took his clothes off and joined F in the shower. The appellant told F to wash his, the appellant's, penis. F did as he was told and touched the appellant's penis and washed it with his hands using soap. This was the subject of count 13, a charge of indecently dealing with a child who the appellant knew to be his lineal relative, contrary to s 329(4) of the Code.[28]
14. During the same incident, whilst in the shower at the Beaconsfield house, the appellant introduced his penis into F's mouth. That conduct is the subject of count 14, a charge of sexually penetrating a child who the appellant knew to be his lineal relative, contrary to s 329(2) of the Code.[29]
15. On a different occasion, on date unknown between 1 July 2016 and 1 March 2018, F was again at the Beaconsfield house with the appellant. F was aged somewhere between 10 and 12 years old at the time. The appellant asked F to touch the appellant's penis. F did as he was told and touched the appellant's penis with his hands. That conduct is the subject of count 15, a charge of indecently dealing with a child who the appellant knew to be his lineal relative, contrary to s 329(4) of the Code.[30]
16. The State also relied on other sexual conduct relating to F.[31] In addition to the specific incidents that were the subject of the charges, the State case was that the appellant regularly had showers with F and procured F to touch the appellant's penis and also touched F's penis.
17. The appellant was arrested and charged with the offences relating to C on 15 September 2021.[32] He was arrested and charged with the offences relating to F on 23 November 2022.[33]

1. The grounds of appeal are as follows:[34]
   1. There was a miscarriage of justice because the conviction on Count 8 was uncertain as the prosecution did not nominate if the act occurred after Count 6 or Count 7.
   2. There was a miscarriage of justice on Counts 6 ‑ 12 and 15 because these Counts were not particularised to designate the occasion that these offences occurred.
   3. There was a miscarriage of justice due to incomplete advice given to the appellant about his election to give evidence.
2. Grounds 1 and 2 raise related issues and it is convenient to deal with those grounds together, before turning to ground 3.

1. In opening the State prosecutor said, in respect of the counts relating to F, that counts 6, 7 and 8 took place at the Baldivis house, counts 9 and 12 took place at the Matthews Way house in Kalgoorlie, counts 10 and 11 took place at the McKay Street house in Kalgoorlie,[35] and counts 13, 14 and 15 took place at the Beaconsfield house.[36] The prosecutor then took the jury to the indictment and identified the alleged act relating to each count.
2. In respect of counts 6 and 7, the prosecutor said that these acts occurred on different occasions at the Baldivis house. As to count 8, the prosecutor said:[37]

And count 8, members of the jury, is the last count on the indictment which takes place at the venue of the family home in Baldivis. And during one of the occasions in either count 6 or in count 7 the [appellant] told [F] he wanted to teach [F] how to clean himself properly. And [F] cannot say whether this count, that is, count 8, took place during count 6 or in count 7, but the [appellant] touched [F's] penis. So the [appellant] touched [F's] penis. That is count 8. And the [appellant] used his hands and soap to touch [F's] penis when they were in the ensuite shower together. And at this stage of [F's] life he was capable of washing himself and it was not necessary for the [appellant] to be washing or touching [F's] own penis.

1. Later in his opening address the prosecutor noted that the offences occurred on dates unknown in specified periods. The prosecutor told the jury that the date and the place of each offence were particulars and not things that the State had to prove beyond reasonable doubt.[38] He said that the particulars served the purpose of identifying the act to which a charge relates.
2. The prosecutor noted that F would refer in his evidence to other occasions when the appellant asked F to touch the appellant's penis and the appellant touched F's penis. He said that those other incidents were not the subject of charges because charges 'should reflect the specific incident that a person can remember rather than a more general recollection'.[39] The prosecutor said that evidence of other incidents could be used to show that the offending became normalised, to explain F's compliance with the offending, to explain F's delay or failure to complain immediately, and to explain why the appellant may have felt able to act with impunity and in a brazen manner. The prosecutor said that this evidence may also explain the inability of F to recall precise details of the specific incidents that were the subject of counts on the indictment, because sexual abuse of this kind was something that F was regularly subjected to.

1. F's evidence consisted of three child witness interviews, conducted on 19 July 2021, 20 August 2021 and 24 October 2022, and pre‑recorded evidence.

1. In the first interview F said that the appellant had hurt him when he was little.[40] When asked to explain, he said that the appellant got him to touch the appellant inappropriately. He said that this happened more than once.
2. F said that the last time it happened was when he was staying with the appellant at F's aunty and uncle's house.[41] F's aunty and uncle were away on a trip to India at the time. He said that he could recall another time when the same thing had happened when he was 5 or 6 years old. He said on this occasion he was in the shower with the appellant and the appellant told him to touch the appellant's penis, which he did.[42] He said that this happened multiple times. He said that it was the same story for all of them 'just different places'.[43]
3. F said that there were about two times this happened when he was aged 5 or 6 and it occurred in the 'exact same place'.[44] The incident at his aunty and uncle's house was later, when he was aged eight or nine.[45]
4. F said that he also remembered an occasion when he had the appellant's penis in his mouth.[46] He said that this happened when the family were living in Kalgoorlie. F said he and the appellant were in the shower when this happened. He said he felt sick and that was when he realized that this was not ok.[47]
5. F said that when the incident at his aunty and uncle's house happened his two younger sisters were also at the house. He thought that they were watching TV or playing.[48] He said that this incident occurred when the appellant was working in Canberra and had come back to Perth for a visit.[49] The appellant was staying at his aunty and uncle's house whilst they were away in India. He said that this was during school holidays but could not recall what time of the year it was.[50] He remembered being scared. He said that he could not urinate after the shower.[51]
6. Returning to the incidents that occurred when F was 5 or 6 years old, F said that he thought everyone was in the house at the time, other than his youngest sister who may not have been born at that time.[52]
7. F then spoke about an incident that occurred in Kalgoorlie. He said the same thing happened. He could recall that there were three ways to lock the bathroom.[53] This was because the bathroom could be accessed through the toilet and a bedroom. There was a bath with jacuzzi jets in the bathroom. He said that the appellant told him to touch the appellant's penis, which he did.[54]
8. Returning to the Baldivis house, F gave the address of that house and said that his parents had had it built. He said that there were two showers in that house. The shower in his parents' bathroom was a double shower with a ledge.[55] He knew he was 5 or 6 years old when the incidents happened at Baldivis because they occurred before the move to Kalgoorlie. He had his seventh birthday in Kalgoorlie.
9. F was asked whether he was closer to 5 or 6 years old when something happened at Baldivis. He said he was midway between 5 and 6 years old, but that it happened 'a couple of times'.[56] When asked to clarify F said it happened twice at the Baldivis house.
10. F was then asked about the incident in which the appellant placed his penis in F's mouth. F said he thought that this happened on the last occasion at the Beaconsfield house. This is the same time as the appellant had F touch him. He thought that he was 9 or 10 years old at that time.[57]
11. F said that the Kalgoorlie incident he had described earlier had occurred at a house in McKay Street, Somerville. There were two bathrooms in that house and the incident had occurred in his parents' bathroom. He believed that he was aged 8 or 9 when this incident happened. He then said it must have been earlier because he started year 5 of school when they returned to Perth.[58]
12. F said that he could recall that at the time of the last incident in Beaconsfield the appellant was wearing blue 'trackies' and an 'old [Western Force rugby] shirt'.[59] He said that the shirt was very old and tattered. The appellant took those clothes off before the sexual acts occurred. He could not recall what either he or the appellant were wearing on other occasions.

F's second child witness interview - 20 August 2021

1. In the second interview F said that the family had also lived at another house in Kalgoorlie, in Matthews Way, Somerville. He said that things also happened at that house on more than one occasion. He said that on one occasion he was in the shower in his parents' bathroom and the appellant came in and got into the shower with him. The appellant asked F to touch the appellant's penis and he did as he was told. He touched the appellant's penis with his hand. He said that was all he could recall and that 'then it kind of just goes blank'.[60] He could not remember what he did next.
2. F said that the family lived in a converted church when they first arrived in Kalgoorlie, but nothing had happened there.[61] They then lived in the Matthews Way house and then the McKay Street house.
3. F said that he was 8 or 9 years old at the time of the first incident at Matthews Way and he believed it was around 10.00 am on a weekend morning.[62] He said that he could remember the sun being in the window and that he had a lazy morning.
4. F said that there was another incident at the Matthews Way house. He said that he was again in the shower in the ensuite bathroom. The appellant came into the bathroom and got into the shower. F said that on this occasion the appellant put his penis into F's mouth. F said that he was not very happy.[63] He could not remember anything being said. F said that this incident happened before the other incident at Matthews Way, but he could not recall how long before. He said that he was still 8 or 9 years old at the time. He could not recall anything else about the incident. He could not remember any other incidents at the Matthews Way house.
5. F was then asked about the incident at the Beaconsfield house that he had spoken about in the first interview. He confirmed that on that occasion the appellant had told F to touch the appellant's penis. He confirmed that he had said in the first interview that something happened with his mouth. When asked if the appellant had put his penis in F's mouth on any occasion other than the one in Matthews Way, F said 'not that I remember'.[64] He said that was the only time that he remembered that happening.

F's third child witness interview - 24 October 2022

1. In the third interview F said that he had remembered further details regarding the last incident that occurred at the Beaconsfield house. He said that he was having a shower and his sisters were upstairs.[65] The appellant came into the bathroom and took his clothes off. He got into the shower with F. He wanted F to wash him and F did as he was told. This involved washing the appellant's penis with soap and F's hands.
2. F said that he believed it was at that time that the appellant put his penis into F's mouth. He was asked whether this happened 'there' one or more times and F said that he believed this happened only one time.[66] However, F said that there was another incident at that house.
3. F said that the other incident at the Beaconsfield house occurred in the same bathroom and involved the appellant asking F to wash the appellant's penis and F complying. F then went to bed. F said that this was the time when the appellant was wearing a Western Force top.[67] He said that this was the first incident at that house.
4. F said that he also remembered further details regarding the incidents at the Baldivis house. He said that on one occasion just before they moved to Kalgoorlie the appellant requested that F wash the appellant's penis and had then wanted to teach F how to properly clean himself.[68] The appellant touched F's penis with his hands and used soap. This happened only once. It was after one of the occasions when the appellant had asked F to wash his penis, but F was unsure whether it was the first time or the second time.
5. F said that he had also remembered further details about the incident at the McKay Street house. F said that he was in the shower already when the appellant came in and requested that F wash his penis with his hands. F said that this had happened on multiple occasions but that this was the most vivid.[69] There were other occasions when the appellant would request that F come into the shower with him.
6. F said that he did not think the appellant had put his penis into F's mouth at McKay Street, only at Matthews Way.[70] The two houses were very similar. He confirmed that there were two incidents at Matthews Way.
7. F said that the second incident at Matthews Way involved the appellant requesting that F come into the shower with him. The appellant got him to wash the appellant's penis with his hands and 'it ended up with him putting his penis into my mouth'.[71] He believed the rest of the family was at home at the time but did not know for sure. He thought that he may have been 7 or 8 years old when the incidents at Matthews Way occurred.
8. F said that there were multiple incidents of the appellant getting him to touch the appellant's penis at the Baldivis, Matthews Way and McKay Street houses and that he was not necessarily able to explain details. There were also multiple occasions of the appellant touching F's penis.

1. F said that the reason that he spoke of some incidents in the third interview that he had not referred to in the first two interviews was because he was not feeling confident enough to do so earlier.[72]
2. F confirmed that he had lived at the Baldivis house, the Matthews Way house and the McKay Street house in that order. After returning to Perth the family had moved back to the Baldivis house.[73]
3. F said that there were two showers in the Baldivis house, one in his parents' ensuite and another in a bathroom down the corridor near the children's rooms. The sexual incidents had only occurred in the ensuite shower. F identified a plan of the Baldivis house. He pointed out his bedroom and the ensuite bathroom on the plan.[74] He also identified a photograph of the ensuite bathroom.[75]
4. F said he was probably around 6 years old when the incidents at the Baldivis house occurred.[76] He said that the appellant had told him to wash the appellant's penis with his hands. He could not recall the words that were used. He washed the appellant's penis by moving his hands up and down.[77] He did not know how long this lasted or how it came to end.
5. F said that in the interviews he had confused what conduct had occurred at each of the two Kalgoorlie houses. He said that this was because those houses looked the same.[78] He said that at Matthews Way the incidents had been the same as at Baldivis, in that the appellant had procured F to wash him. At McKay Street the appellant had put his penis into F's mouth on 'a couple of occasions'. The bathrooms at the two houses were very similar, but when he thought about it further he remembered that they were arranged slightly differently.[79] For this reason, he was able to say that this type of act had occurred at McKay Street. There had also been washing incidents at McKay Street. F identified photographs of the Matthews Way ensuite and the McKay Street ensuite.
6. F said that the incidents at the Beaconsfield house had occurred in the guest bathroom. He identified that bathroom on a plan of the Beaconsfield house. He also identified a photograph of that bathroom.[80] He said that his two younger sisters were at the house when the incidents at Beaconsfield occurred. He said that he was about 12 years old at that time.
7. In cross‑examination F accepted that in the first interview he had said that it was 'all a bit of a blur' and that he had no real memory of what happened.[81] F did not accept that in the first interview the interviewer had put into his head the idea of the appellant's penis being in his mouth. F said that this type of act had occurred at McKay Street and Beaconsfield. He could not remember it occurring at Baldivis.
8. In cross‑examination F said that in the second interview he had mixed up the bathrooms at Matthews Way and McKay Street because those bathrooms were very similar.[82] He was not shown any photographs at the time of that interview. F also accepted that he had said in the interview that the appellant had placed his penis into F's mouth only once. He said that was not the truth but that he said it because he was scared. He also said that when he said in the first interview that things were a blur that was because he was distressed and did not want to talk about these things.[83]
9. In cross‑examination F accepted that in the interviews, when asked what his hands had done when washing the appellant's penis, he had said that he could not recall. He accepted that he had not previously said that he had moved his hand up and down.[84]
10. F did not accept that he had no memory of sexual abuse at the hands of the appellant.[85] He denied that there had been a delay in complaining to his mother because the abuse did not happen. He said that he did not report the abuse earlier because he did not feel safe.[86] He accepted that he had wanted to continue a relationship with the appellant after the abuse happened.
11. In re‑examination F said that he had not come forward earlier because this was a very uncomfortable topic to be questioned about and he was not prepared to talk about it at the time. Since then he had a lot of psychological intervention and had learnt coping mechanisms. He said that he had wanted to maintain a relationship with the appellant because he wanted a father figure and thought he could put aside the things that had happened, but it was just too much.[87]

1. SW is the ex‑wife of the appellant and the mother of C and F. She said that the family had lived at the Baldivis house from April 2006 until February 2012.[88] They then moved to Kalgoorlie and lived at the Matthews Way house from February 2012 until November 2013. They lived at the McKay Street house from November 2013 until November 2015.
2. SW and the appellant separated in July 2015, but remained living together at the McKay Street house until the very end of October 2015.[89] SW then moved back to the Baldivis house with the children and the appellant moved to Canberra. The appellant returned from Canberra in September or October 2016 and lived at his sister's house in Beaconsfield.[90] He also stayed there on other occasions when he visited from Canberra. The children would visit him there.
3. SW said that there was a regular routine for bathing the children.[91] From around the age of 4 the children were put in the shower or the bath on their own whilst the appellant or SW bathed the younger children. This could occur in the ensuite bathroom. F was around 7 years old when he stopped wanting anyone to check on him.[92]
4. SW was shown some photographs, including photographs in which the appellant was wearing a Western Force rugby shirt.[93]
5. In cross‑examination SW confirmed that the appellant had worked with the Department of Child Protection and had occupied a senior position in that Department in Kalgoorlie.[94] She said that she and the appellant had told the children that if anything made them uncomfortable to speak to one of them.[95] None of the children did so at the relevant time.

1. In his closing address the prosecutor provided the jury with a guide as to what evidence related to each count. As the jury were to be provided with transcripts of the child witness interviews, this was done by reference to the relevant page numbers of those transcripts:[96]

So count 6 is [F's] first charge on the indictment and that was referred to in his first visually recorded interview at transcript pages 6 and 7 and 9 and so you'll get the transcript, I expect tomorrow and there's a page number at the top right. It's not that one, it's down the bottom.

So in respect of count 7, another charge of indecent dealings alleged to have occurred at Poa Way, it's referred to at pages 11 and 12 of the first interview. In respect of count 8, that's where [F] in the third interview said that on both occasions [the appellant] asked him to wash his penis and he said that at transcript 7 and 8 that on one of the occasions in either count 6 or 7, he was unsure if it was one of those that [the appellant] asked him to wash him. So that's count 8.

Count 9 is referred to, members of the jury, the count at Matthews Way of indecent dealings in the first visually recorded interview at transcript 23 and 24 and the second visually recorded interview, count 9 is referred to at transcript 3 and 6 and then, of course, members of the jury, in [F's] prerecorded evidence that you saw yesterday he spoke about a confusion between the two addresses, Matthews and McKay and he said at transcript page 68 of his recorded evidence that:

At Matthews Way, the same kind of incidents at Poa Way where he would get me to wash him -

- and he clarified in his recorded evidence that the penis in his mouth was, in fact, at McKay Street. Count 10, members of the jury, and 11 is one incident and that's referred to at the first visually recorded interview at transcript page 15 and the second visually recorded interview pages 7 and 11 and the third visually recorded interview page 11 and obviously in his recorded evidence where he spoke about McKay Street being the time that [the appellant] put his penis in his mouth.

And count 12, members of the jury, is in the third visually recorded interview at transcript page 9 and counts 13 through to 15, counts 13 and 14 occur at the Beaconsfield address in the first visually recorded interview at transcript page 5, 10 and 21 and in the second visually recorded interview at transcript 9 and in the third visually recorded interview at transcripts 3, 4 and 5.

And then finally, count 15, members of the jury, it was referred to in the third visually recorded interview at transcript 4 and 5. So those references are with a view to helping you when you get the transcript.

1. Defence counsel in closing submitted that there was an absence of detail in the allegations.[97] He suggested that other lines of inquiry could have been pursued that may have assisted in narrowing down the dates when the incidents were alleged to have occurred. He said that each count was alleged to have occurred within a date range that was very broad and that this, together with the delay in reporting the matter, made it difficult for the appellant to marshal a defence. He said that the appellant had no option other than to make a general denial.

1. The trial judge prepared a document listing the transcript references relevant to each count in the indictment. This included references to both the child witness interviews and the pre‑recorded evidence. The proposal was that this document be provided to the jury. Defence counsel objected on the ground that 'it places too much importance on the transcript' and would distract the jury from assessing the oral evidence given by the complainants.[98] Defence counsel did not, however, object to the trial judge telling the jury what the State case was in respect of each count. The trial judge decided to adopt that course.[99]
2. The trial judge directed the jury that the date range and the place specified in each count are particulars that the State was not required to prove beyond reasonable doubt.[100] Her Honour explained that particulars were provided in order to enable the appellant to meet each charge. Her Honour said that what the State had to prove beyond reasonable doubt was each of the elements of each offence. Her Honour then referred to the counts on the indictment and identified the relevant elements.
3. The trial judge then summarised the State case in respect of each count. In respect of the counts relating to F, her Honour said:[101]

Now, the State's case on count 6 is that it is the evidence of [F] that on an occasion at the family home in Baldivis when he was aged about five or six, [F] and [the appellant] were in the ensuite shower at the home. The allegation is that whilst in the shower, [the appellant] asked [F] to wash his penis, and [F] touched [the appellant's] penis.

The State's case on count 7 is that it is the evidence of [F] on a different occasion to count 6 when at the family home in Baldivis when [F] was aged about five or six, it [is] alleged [the appellant] told [F] to go have a shower with him. It is alleged that whilst in the ensuite bathroom shower, [the appellant] asked [F] to touch his penis, and [F] touched [the appellant's] penis.

The State's case on count 8 is that it is the evidence of [F] that when at the family home in Baldivis, and during one of the occasions the subject of either count 6 or count 7, it is alleged [the appellant] used his hands and soap to touch [F's] penis when they were in the ensuite shower together.

The State's case on count 9 is that it is the evidence of [F] that when he was about seven or eight, [F] and [the appellant] were in the ensuite shower in the bedroom of [the appellant] at the home in Matthews Way in Somerville in Kalgoorlie. It is alleged that [the appellant] asked [F] to touch his penis, and [F] did as he was told and touched [the appellant's] penis.

The State's case on counts 10 and 11 - the allegation is that when at the [sic] McKay Street in Somerville, [the appellant] was in the ensuite bathroom. It is alleged [the appellant] asked [F] to get into the shower with him, and [F] did so. It is alleged [the appellant] told [F] to wash his penis, and [F] did so. It is also alleged that whilst in the shower, [the appellant] introduced his penis into [F's] mouth.

The State's case on count 12 is that it is the evidence of [F] that at the address in Somerville, he was in the ensuite shower in [the appellant's] bedroom. It is alleged [the appellant] asked [F] to touch his penis; [F] did as asked and touched the penis of [the appellant].

The State's case on counts 13 and 14 is that it is [F's] evidence that he and [the appellant] were at an address in Beaconsfield, and [F] thought the owners of the house were in India. And also at the house were the two younger sisters of [F]. And the allegation is that whilst at the house in Beaconsfield, [F] was in the shower at the house, and it is alleged that [the appellant] took his clothes off and joined [F] in the shower. It is alleged [the appellant] told [F] to wash his penis, and [F] did so and touched the penis of [the appellant]. It is further alleged that sometime during this, [the appellant] introduced his penis into [F's] mouth.

The State's case on count 15 is that on another occasion, on an unknown date between 1 July 2016 and 1 March 2017 whilst at the house in Beaconsfield, [F] was in the shower with [the appellant]. It is alleged [the appellant] asked [F] to touch his penis and that [F] did touch [the appellant's] penis.

1. The trial judge gave the jury a comprehensive Longman direction.[102] Her Honour referred to the delay and the fact that the evidence of each complainant was not corroborated by any other direct evidence.[103] Her Honour referred to the lack of precision regarding the dates and the surrounding circumstances of each incident. Her Honour referred to the forensic disadvantages to the appellant arising from the delay, including the loss of opportunity to test the evidence of the complainants and the loss of opportunity to marshal evidence to support the defence case. Her Honour said that it would be dangerous to convict the appellant on the uncorroborated evidence of the complainants unless, having scrutinised that evidence with great care,[104] and having considered the circumstances referred to, the jury were satisfied beyond reasonable doubt of the truth, accuracy and reliability of that evidence.
2. Defence counsel raised no issues with the summing up and did not seek a re‑direction on any matter.

1. Particulars serve the purpose of ensuring that an accused person is aware of the act and occasion which the prosecution relies upon as being the commission of the offence alleged. It is one of the components of a fair trial that an accused person be informed of precisely what it is that the prosecution alleges he or she has done that constitutes a crime.[105] This requirement is also reflected in sch 1 div 2 cl 5 of the Criminal Procedure Act 2004 (WA).
2. Section 85 of the Criminal Procedure Act provides that an indictment must be in writing and comply with sch 1 div 2. Schedule 1 div 2 cl 5 reads:
   1. Alleged offence to be described

(1) A charge in a prosecution notice or indictment must inform the accused of the alleged offence in enough detail to enable the accused to understand and defend the charge, and in particular must -

(a) describe the offence with reasonable clarity;

(b) identify the written law and the provision of it that creates the offence;

(c) identify with reasonable clarity -

(i) the date when the offence was committed or, if the date is not known, the period in which the offence was committed; and

(ii) where the offence was committed;

(d) if the offence is one against a person, identify the person concerned in accordance with clause 6(2); and

(e) if the offence relates to property, comply with clause 6(4) and (5).

(2) For the purposes of subclause (1) -

(a) it is sufficient to describe an offence in the words of the written law that creates it;

(b) if that written law states that alternative acts, omissions, capacities, or intentions, constitute the offence, the alternatives may be set out;

(c) a charge is not defective only because an element of the offence is not stated; and

(d) it is not necessary to allege -

(i) any matter, or any particulars as to a person or thing, that need not be proved; or

(ii) the means or thing used to do an act constituting an offence unless the means or thing is an element of the offence.

1. As sch 1 div 2 cl 5(1)(c)(i) makes clear, a charge must specify with reasonable clarity the date when the alleged offence was committed, or, if the date is not known, the period in which the offence was committed. This recognises that in some cases it will not be possible to state the date of the offence with precision. A charge will not be defective if it states that the offence occurred on a date unknown in a specified period. Nor is the date or period specified in the indictment a material matter unless it is actually an essential part of the alleged offence.[106]
2. In assessing whether particulars have been adequate, the relevant question is whether the accused person has been able to identify the act or omission, and circumstances, which the prosecution alleged amounted to the offence charged. It is always a question of substance, not technicality.[107] If the particulars are said to be inadequate, the question is whether the alleged inadequacy caused the appellant to be prejudiced in his defence.
3. A failure to provide adequate particulars may, in some circumstances, result in the trial being unfair. In Jago v The District Court of New South Wales,[108] Deane J said:

Thus, it can be said, as a general proposition, that default or impropriety on the part of the prosecution in pre‑trial procedures can, depending on the circumstances, be so prejudicial to an accused that the trial itself is made an unfair one. One example is where particulars supplied to an accused have been so inadequate and misleading that an accused has been denied a proper opportunity of preparing his defence.

1. Uncertainty, latent duplicity or latent ambiguity may arise where, although the charge refers to only one offence, the evidence discloses a number of acts, any one of which could constitute the offence.[109] Such ambiguity may require that particulars are provided by the prosecution to identify with precision the act which is alleged to constitute the offence charged. In Johnson, Dixon J said:[110]

In my opinion [the prosecutor] clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence.

1. Grounds 1 and 2 contend that some of the verdicts were affected by latent duplicity. The relevant legal principles are well established and were recently restated by this court in Snook v The State of Western Australia [No 2]:[111]

Where the evidence refers to multiple acts which could amount to an offence, it is necessary to make clear what act (or acts) are said to constitute the offence and which are said to be similar acts relied on for some other evidential purpose. Those other similar acts should not be left to the jury on the basis that satisfaction of any one of them could prove the charge.

Whether a charge has been adequately particularised is a matter of judgment to be determined having regard to the circumstances of the particular case. As a minimum requirement, there should be sufficient particularity in the allegations to demonstrate that one identifiable act meets the description of the offence charged and is distinguishable from other similar acts referred to in the evidence.

Where there has been no complaint about the formulation of the charge and no allegation of a wrong decision on a question of law by the trial judge, a ground of appeal that relies on latent ambiguity must establish that there was a miscarriage of justice. Whether there has been a flaw in the trial such as to amount to a miscarriage of justice is a matter of substance, not technicality. The appellant in a case like the present needs to show that the trial was unfair, either because he was prejudiced by not knowing what the case against him was or because the verdict is ambiguous. Those issues must be determined having regard to the whole of the trial record, including the charges in the indictment, the addresses of counsel, the evidence and the directions of the trial judge. (citations omitted)

1. As regards ground 1, the appellant submits that the prosecution was required to nominate whether count 8 occurred after count 6 or count 7.[112] The failure to do so is said to mean that the verdict on count 8 is uncertain. The appellant contends that it is not possible to determine whether the jury members were all considering the same occasion when determining whether count 8 occurred.
2. As regards ground 2, the appellant submits that counts 6 ‑ 12, and 15 were not sufficiently particularised by the State.[113] The appellant submits that the incidents were very similar and there was no reasonably clarity as to when each incident occurred or the circumstances in which it occurred. The appellant contends that the lack of adequate particulars meant that the appellant was reduced to running a general denial and denied the opportunity to answer the charges by raising more specific defences, such as alibi. The appellant contrasts this with counts 13 and 14, because F was able to give evidence of a more confined period, and the circumstances, in which those offences occurred.
3. The appellant submits that there was nothing in the evidence that enabled the appellant or the jury to distinguish one incident from another. The appellant asserts that this resulted in unfairness to him and uncertainty in the verdicts. In oral submissions the appellant's counsel accepted that he was submitting, in essence, that the trial was an abuse of process because the necessary particulars were not, and could not, be given.[114]

1. As regards ground 1, the respondent submits that F stated that the act of the appellant touching his penis occurred on only one of the two occasions on which counts 6 and 7 occurred.[115] The only uncertainty was on which of these occasions it was. As there was only one alleged act, there was no relevant duplicity. The respondent also points to the fact that the appellant's experienced trial counsel did not seek further particulars or complain that count 8 suffered from any issue in regard to duplicity.
2. As regards ground 2, the respondent submits that the complaint that the appellant was prejudiced in his defence of the charges is merely theoretical.[116] The appellant did not seek to advance a positive defence to any of the charges. In any event, the inability to advance more than a bare denial is a feature of most cases involving allegations of historical sexual offending. This is a consequence of delay rather than a deficiency in particularisation. The respondent refers to the fact that the trial judge gave a comprehensive Longman direction, which emphasised the forensic disadvantages caused to the appellant by the delay.
3. The respondent submits that F gave evidence about particular incidents occurring at different houses. Whilst F did not give detailed descriptions of each incident, that is explained by the fact that F said this type of conduct occurred frequently.[117] The respondent suggests that this is a situation that may occur when an offender repeatedly commits the same kind of offence against a young child over a period of time.

1. Counts 6 and 7 involved incidents that occurred on separate days in which the appellant procured F to touch the appellant's penis. Count 8 involved an act in which the appellant washed F's penis. Count 8 was alleged to have occurred in the ensuite shower immediately following either count 6 or count 7. In his opening address, the prosecutor said that F could not recall whether this act occurred after count 6 or count 7. All three counts were particularised as having occurred at Baldivis on a date unknown between 31 November 2010 and 1 February 2012.
2. In his evidence, F could not say whether the act constituted by count 8 was part of the count 6 incident or the count 7 incident. He was, however, certain that it had occurred.[118] He said that the act in question had occurred on only one of those occasions. His lack of certainty as to the timing of this incident is explicable having regard to the similarity of the incidents that occurred in the shower. Given that evidence, it was not practically possible for the prosecution to nominate on which day count 8 had occurred.
3. The appellant complains that the lack of specification as to whether the act referred to in count 8 followed count 6 or count 7 produced a miscarriage of justice. He claims that the failure of the prosecution to nominate on which occasion count 8 occurred resulted in unfairness to him and a lack of clarity in the verdict. These claims rest upon an assumption that the precise date of count 8 was a material fact that had to be proved beyond reasonable doubt.
4. The date on which count 8 occurred was not an element of the offence that had to be proved beyond reasonable doubt. The fact that there was uncertainty as to the precise timing of the count 8 act does not mean that the verdict was uncertain. There was only one charged act at the Baldivis house involving the appellant washing F's penis. The only uncertainty was as to when it occurred. The jury were required to be satisfied beyond reasonable doubt that the act had occurred. It was not necessary for the jury to determine when it occurred. Because there was only one such charged act of this type, there is no ambiguity in the verdict.
5. Further, the inability of the prosecution to specify whether count 8 followed count 6 or count 7 did not result in material unfairness to the appellant. The particulars of count 8 enabled the appellant to know the type of act alleged, the period of time in which it occurred and the place it was alleged to have occurred. There was no complaint at trial that these particulars were inadequate. The fact that the act could have occurred on one of two days did not have any relevant impact on the defence, which was one of general denial. It is not apparent that this defence would have been any different had there been certainty as to whether count 8 occurred at the time of count 6 or count 7. The appellant has failed to show that the appellant was prejudiced in his defence such as to render the trial unfair. A miscarriage of justice has not been established.
6. There is no merit in ground 1 and leave in respect of it should be refused.

1. The appellant submits that counts 6 ‑ 12, and 15, involved incidents that were effectively indistinguishable.[119] Though the ground refers to a lack of particulars, the appellant's argument is that the similarity of the incidents meant that he was unable to mount an effective defence. He also asserts that the verdicts were uncertain because it was not possible to clearly identify which evidence related to which count on the indictment.
2. It is plainly correct that the incidents described by F were similar in that they all involved acts that occurred in a shower. It is not, however, correct to say that they were indistinguishable. Each count alleged a specific act that occurred at a specified location in a specified time period. Those acts included the appellant procuring F to touch the appellant's penis, the appellant touching F's penis, and the appellant placing his penis into F's mouth. Counts 6, 7 and 8 took place at the Baldivis house. Counts 9 and 12 took place at the Matthews Way house. Counts 10 and 11 took place at the McKay Street house. Counts 13, 14 and 15 took place at the Beaconsfield house.
3. In his evidence, F referred to each incident by reference to the house in which it occurred and his age at the relevant time. The prosecutor identified in his closing address which evidence of F related to each count on the indictment.[120] The trial judge in summing up also identified which alleged acts related to which counts on the indictment. Having regard to the similarity of the incidents, considerable care was taken to ensure that the jury understood what evidence was relevant to each count. There was sufficient particularity in the allegations to demonstrate that one identifiable act met the description of each offence charged and was distinguishable from other similar acts referred to in the evidence.
4. The inability to advance by way of defence a positive case rather than a bare denial is a feature of many cases involving allegations of historic sexual offending. It is delay rather than a lack of particularisation which produces this outcome. The prejudice caused by delay is addressed by the giving of a Longman direction. Such a direction was given in this case.
5. The issue raised by this ground was not perceived by the appellant's experienced trial counsel to be worthy of complaint. Trial counsel did not seek further particulars or suggest that in the absence of such particulars the trial was unfair. It was not suggested that it was impossible to distinguish the evidence relevant to each count or that the verdicts suffered from any ambiguity. To the contrary, trial counsel sought to take forensic advantage of the fact that the allegations had few contextual details by suggesting that this was a reason why the jury should doubt the evidence of F.[121] Counsel also relied on the broadness of the dates to support a submission that the appellant could only defend himself by making a general denial.
6. This ground has no reasonable prospect of success. Leave in respect of it should be refused.

1. The trial took place over four days. The State closed its case on the morning of the third day. There was then a short adjournment to allow defence counsel to confirm his instructions. On resumption, counsel informed the court that the appellant did not wish to either give or adduce any evidence.[122]
2. The appellant now claims that he made his election not to give evidence because of incomplete advice. In essence, he asserts that if he had received adequate advice he would have given evidence at the trial.

1. In support of this ground the appellant applied to adduce additional evidence on the appeal, being affidavits affirmed by him on 19 August 2024 and 26 March 2025.[123] The respondent also applied to adduce additional evidence, being affidavits affirmed by the appellant's trial lawyers, Mr Bernard Standish and Ms Melissa Sandars, both on 4 November 2024.[124] The deponents were called at the hearing of the appeal and cross‑examined. The evidence was received provisionally. That evidence can be summarised as follows.

1. In his first affidavit affirmed 19 August 2024, the appellant states that he was originally represented by Ms Felicity Cain.[125] Ms Cain briefed Mr Standish to represent the appellant at the pre‑recordings of the complainants' evidence. The appellant met Mr Standish at the time of the pre‑recordings but does not recall any mention at that time of the election to give evidence.[126]
2. Ms Sandars took over his case in 2023, at a time when the matter was already listed for trial in December 2023. A proof of the appellant's evidence was taken, which he signed on 3 August 2023. A copy of that proof is annexed to the appellant's affidavit.[127]
3. The appellant accepts that he met with his lawyers on 31 July 2023 and 10 August 2023. He accepts that the notes of those meetings made by Ms Sandars are generally accurate. He believes that there may have been a few other meetings.
4. As to the 31 July 2023 meeting, the appellant states that he was told about the election to give or not to give evidence, but it was not discussed in any detail.[128] He states that he told Ms Sandars at this meeting that he had issues with his short‑term memory. He also told Ms Sandars that there were no alibi witnesses.
5. The appellant states that the meeting of 10 August 2023 was the first time that he met with Mr Standish 'properly to discuss' his case.[129] He states that at this meeting Mr Standish asked if he had committed the offences and he said no. He then 'went over' his medical history. He advised Mr Standish and Ms Sandars that he had recently completed a course of therapy at Perth Clinic. This course included 30 daily sessions of brain stimulation to address Post Traumatic Stress Disorder (PTSD) that had been diagnosed in August 2016. He advised that one of the side‑effects of his treatment was speech difficulties and difficulties at times with his short‑term memory.[130] The appellant accepts that he said he was concerned about giving evidence because of his short‑term memory issues. He was concerned that he might get muddled up and that it would 'look bad'.[131]
6. The appellant states that there was a subsequent meeting with Ms Sandars at her office. Ms Sandars advised that she and Mr Standish had been talking about the appellant's mental health and speech. She advised that they thought the appellant should not give evidence as they were concerned that the prosecution would use his mental health against him. The appellant states that he clearly recalls telling Ms Sandars that it was only his short‑term memory that might be a problem.[132]
7. The appellant states that there was a further meeting at Ms Sandars' office, this time with both Ms Sandars and Mr Standish. Mr Standish asked if it was possible that he might not remember abusing his children due to his mental health. The appellant said that he had never done what was alleged and that his 'normal memory' was unaffected.[133] Ms Sandars and Mr Standish both made it clear that in their view the appellant should not give evidence because of his speech and memory problems. The appellant understood that this was not a decision that he needed to make until after the close of the prosecution case. He also understood that this was his decision to make.
8. At court, prior to the commencement of the trial, the appellant had a discussion with Ms Sandars and Mr Standish in the custody unit.[134] Mr Standish asked how the appellant felt about giving evidence. The appellant said he would follow the advice he had been given and not do it. Mr Standish nodded and said something to the effect 'at the end of the day it's your choice'.
9. On 13 December 2023 (the third day of the trial), the appellant was visited in the custody unit by Mr Standish and Ms Sandars. He was asked if he had changed his mind about giving evidence. He said no. He then signed a document headed 'Election to give or not give evidence'. In both the heading and the body of the document the words referring to the giving of evidence have been scored out. The document reads:[135]

ELECTION TO GIVE OR NOT GIVE EVIDENCE

I [the appellant] have elected to NOT GIVE EVIDENCE/GIVE EVIDENCE in my trial (IND number 1460/2022) running in the Perth District Court from 11 to 14 December 2023.

It is my decision to give or not give evidence. It is not the decision of my lawyer or my barrister. I made this decision on my own accord.

The appellant states that he read and signed the document. He states that he trusted his solicitor and barrister and had no hesitation in doing what they recommended.[136]

1. The appellant states that during the short adjournment after the close of the prosecution case Mr Standish asked him if he still did not want to give evidence. Nothing had changed from the morning, so he said no.[137] Mr Standish then advised the court that the appellant had elected not to give evidence.[138]
2. The appellant states that he never received advice about the benefits of giving evidence.[139] He states that only the downsides of giving evidence were discussed. He says that he did not appreciate that the most important part of his evidence was denying any sexual offending against his children. He says that if he had understood the importance of direct denials contradicting the evidence of C and F, he would have elected to give evidence.
3. The appellant's second affidavit affirmed 26 March 2025, is responsive to the affidavits of Ms Sandars and Mr Standish.
4. In the second affidavit the appellant admits that he had experience in child welfare matters and a general understanding of how the criminal justice system works.[140] However, he states that he had never been an accused in a criminal trial and his role at the Department of Child Protection was at an earlier stage in proceedings.
5. The appellant states that at the 31 July 2023 meeting, in the context of a discussion about possible alibi evidence, the appellant explained that it was difficult for him to recollect where he was living without a reference point.[141] Ms Sandars expressed worry about the appellant's speech during this meeting, which he states related to his treatment at Perth Clinic.[142] The appellant explained his short‑term memory problem and gave her an example. He asked her to send him things in writing as he might not remember what she said.
6. The appellant agrees that at the 10 August 2023 meeting, there were discussions about s 9AA of the Sentencing Act 1995 (WA) and motive to lie.[143] Mr Standish asked whether the appellant might have forgotten committing the offences and the appellant told him no. The appellant accepts that there may also have been discussion to the effect that if he gave evidence and the jury thought what he said might be true then they would have to find him not guilty. However, he says that he was not told about the benefits of his denials being on oath in a case like this. He says that he 'did express concern that it would look bad if [he] got muddled up about factual matters and [he] was naturally scared about giving evidence and looking bad'.[144]
7. The appellant states that either at the 10 August 2023 meeting, or a later meeting, Ms Sandars and Mr Standish advised him that they had been talking and did not think he should give evidence.[145] He understood that this was due to his memory issues and because they believed that the case against him was not strong. The appellant said that he would accept that advice 'despite being aware that it was [his] decision and it could be changed'.[146]
8. The appellant states that on the day he signed the election document Mr Standish asked him whether he wanted to give evidence. Mr Standish said 'it was [the appellant's] chance to give evidence and it was [the appellant's] choice'.[147] The appellant says that he responded to the effect that Mr Standish had advised him all along not to give evidence and that the appellant's position had not changed. Mr Standish said something to the effect that the case had gone well. There was no discussion about the risks and benefits of giving evidence.
9. In cross‑examination the appellant agreed that he had extensive professional experience with the forensic interviewing of children.[148] He had been involved in that area for four years in the United Kingdom before being recruited to help set up the Forensic Interviewing Unit of the WA Police. He understood that the prosecution bore the onus of proof and that the charges had to be proved beyond reasonable doubt.[149]
10. The appellant accepted that at the meeting on 10 August 2023, Mr Standish also said that if he gave evidence and the jury did not necessarily believe him but his account nonetheless gave rise to a reasonable doubt, the jury would also acquit him.[150] The appellant accepted that he expressed fear about giving evidence and that he was concerned about his speech difficulties and short‑term memory loss.[151] He did not want it to look like he was trying to deceive the jury.
11. In re‑examination the appellant said that his speech difficulties at the time of the trial were due to the effects of prescribed drugs.[152] He felt that this made him come across poorly. He said there was no discussion about how these concerns could be allayed.[153] There was also no discussion as to what might happen in cross‑examination.

1. Mr Standish was the appellant's trial counsel. He first met the appellant when introduced to him by a solicitor, Felicity Cain. He agreed to act for the appellant. Ms Cain advised that she would be handing over conduct of the matter to Melissa Sandars.
2. Mr Standish states in his affidavit affirmed 4 November 2024, that at the meeting on 10 August 2023, he discussed s 9AA and the potential benefits of pleading guilty.[154] The appellant instructed that he would be maintaining not guilty pleas to all counts. The appellant advised that he had substantial difficulties with his memory, but did not convey that this was only short‑term memory loss.
3. Mr Standish states that at the 10 August 2023 meeting, he gave advice in accordance with the Liberato case.[155] He made it clear to the appellant that, if he chose to testify at his trial and the jury believed his evidence, they would be obliged to acquit him. Further, he advised that if the appellant chose to testify and the jury reasoned that his evidence might possibly be true, they would be left with a reasonable doubt and would be obliged to acquit him.[156] Further, he told the appellant that if he chose to testify and the jury disbelieved his evidence, they could not automatically convict him, but would have to put his evidence to one side. The appellant remained very concerned that if the jury did not believe him, the consequences for him would be dire. The appellant's concern was principally focused on his memory problems. The appellant was of the view that if he could not recall fundamental matters, such as when the family lived at various homes, the jury would likely conclude that he was being dishonest.[157] Mr Standish advised the appellant that he could reflect on his decision and that a final decision did not have to be made until after the prosecution closed its case.
4. Mr Standish states that the appellant spoke to him at length about the appellant's expertise and experience in child welfare matters.[158] He did this in the context of critiquing the child witness interviews of both complainants. The appellant presented as a reasonably intelligent, experienced, confident public servant employed in the Department of Child Protection. The appellant mentioned his role in the establishment of techniques used in child witness interviews.
5. At the conclusion of the pre‑recordings of the complainants' evidence, Mr Standish told the appellant that he should continue to reflect on the election he would make at the end of the prosecution case.[159] This was two and a half months prior to the trial. He had that time to consider whether to give evidence and refute on oath the allegations made against him by his children. Mr Standish denies that he ever told the appellant that he should not testify at his trial. Further, Mr Standish did not ever hear Ms Sandars say that the appellant should not give evidence.[160]
6. Mr Standish states that at the commencement of the trial the appellant maintained his position that he would not give evidence.[161] On the third day of the trial, in the break following the close of the prosecution case, Mr Standish and Ms Sandars met with the appellant in the custody unit. Mr Standish explained that this was the appellant's final opportunity to say whether he wanted to testify 'to refute, on oath or affirmation, the allegations made against him by his children'.[162] The appellant expressed confidence that the prosecution case had been sufficiently tested so as to result in a reasonable doubt on all counts. He was adamant that the risks of testifying outweighed any benefits.
7. In oral evidence Mr Standish clarified that he did not use the word 'Liberato' at the 10 August 2023 meeting, rather he explained the principles derived from that case.[163]
8. In cross‑examination Mr Standish said that he raised the issue of the appellant giving evidence on numerous occasions and that the appellant was insistent that he was not going to give evidence.[164] The appellant insisted that his memory problems were such that he would not give evidence. The appellant did not use the terminology 'short‑term' when speaking of his memory issues.[165] Furthermore, the appellant referred to not being able to remember things which went well beyond recent events, such as where he lived at various relevant times.
9. When asked whether he provided advice about the importance of denials on oath in a case where the appellant had not participated in a recorded interview with the police, Mr Standish said that he provided the appellant with fulsome advice about the benefits available if he gave evidence.[166] Mr Standish then referred to the advice that he had given regarding the Liberato principles. The appellant was 'absolutely concerned that a jury would find him to be dishonest if they thought that he was not telling the truth, rather than having a memory problem about details.'[167]
10. Mr Standish said that he continued to remind the appellant that he had until the close of the prosecution case to finalise his position. He said that he referred to the Liberato principles on occasions other than the 10 August 2023 meeting but accepted that no other occasions were referred to in his affidavit.[168] He did not take any notes of the meetings he had with the appellant.

1. Ms Sandars held the grant of legal aid and was the solicitor for the appellant.
2. Ms Sandars states in her affidavit affirmed 4 November 2024, that she met with the appellant on 31 July 2023 from 10.00 am ‑ 12.00 pm for the purpose of taking his statement of evidence.[169] This was her first meeting with the appellant. They discussed possible alibi evidence and the appellant was unable to give his exact whereabouts in respect of most of the dates and times in the indictment.
3. Ms Sandars annexed to her affidavit her typewritten notes of the 31 July 2023 meeting. Those notes include the following:[170]

A week in 2022 - Perth clinic. Had Electronic Magentic [sic] therapy (like ECT). Messed up memory recall. Its [sic] getting worse. Cannot remember where he lived this week when got an uber to IGA.

...

Election to give or not give evidence - decision does not need to be made now - can be made after the closing of the State's case. Is there any evidence that he can adduce? - alibi? - no. Not going to make a decision now.

1. Ms Sandars states that on 10 August 2023, a meeting with the appellant and Mr Standish took place at her office from 1.58 pm ‑ 3.30 pm.[171] At that meeting the appellant instructed that he had significant issues with his memory, especially in recent times, and that this was the result of a number of factors, including the amount of pain medication that he was using and PTSD. The appellant did not say whether his memory problems were in regard to his short‑term or long‑term memory. His prescription medications included opiates and medicinal cannabis. His medication regime was required to manage his Complex Regional Pain Disorder.[172]
2. Ms Sandars states that the appellant had a prior conviction for breach of a protective bail condition. Mr Standish was advised of this.
3. Ms Sandars states that the appellant was aware that his 'no comment' police interview would not be played at the trial.[173] She states that 'it was advised during the course of our meetings that the jury would not hear direct evidence from the appellant should he choose not to give evidence.'[174]
4. Ms Sandars made typewritten notes of the 10 August 2023 meeting. Those notes include the following:[175]

Significant issues with [the appellant's] memory. Especially in recent times due to the amount of meds etc he needs to take due to pain management and PTSD. Although he knows he didn't do it.

Section 9AA advice given - absolutely didn't do it so why would he plead guilty[.]

Raised giving evidence or not - Memory concerned [the appellant] and what might happen in XXN.

1. Ms Sandars states that at the trial she and Mr Standish raised the question of the appellant giving evidence.[176] The appellant was concerned about giving evidence due to his memory, as well as the medications he was on. He raised concerns about cross‑examination. They advised that a decision did not need to be made immediately.
2. Ms Sandars states that on 8 December 2023, she sent a detailed email to the appellant explaining the trial process. That email includes the following:[177]

The State will go first with their case. After the closing of the State's case. We have the chance to adduce evidence. We can have a break for you to make a decision as to whether or not you wish to give evidence.

We don't have any other Defence witnesses. It will be a matter for you whether you wish to give evidence.

...

If you decide to give evidence, after this, the closing addresses will occur. The State will go first and then us. This is basically a review of the evidence from the perspective of each side. No new evidence can be in [sic] adduced.

1. Ms Sandars states that on the morning of 13 December 2023, she and Mr Standish saw the appellant in the custody cells.[178] The appellant signed the election not to give evidence at this time.[179] Ms Sandars made typewritten file notes of the trial, which include the following:[180]

Saw cl in custody in morning prior to trial starting. Signed Election to NOT GIVE evidence. Discussion about this at the custody cells. Client does not wish to give evidence. Discussion with Bernard and myself about this. Very vague memory about anything which will be difficult in XXN. Is in [sic] medication which does not assist with recall of much. Although denies allegations happened at all.

1. In cross‑examination Ms Sandars said that at the 31 July 2023 meeting, when she took the appellant's statement, he had a limited memory of anything that happened and just made denials. She denied that he referred to 'short‑term' memory problems, rather he said that he had memory problems in general.[181] At no time did he distinguish between short‑term and long‑term memory.[182]
2. Ms Sandars said that benefits and disadvantages of giving evidence were discussed with the appellant at the 10 August 2023 meeting.[183] She said that it was more Mr Standish that discussed this. The discussion included reference to a Liberato direction. They also discussed the fact that because the appellant had not given an interview that would be played to the jury and that therefore, if he did not give evidence, his denials would not be heard by the jury. She said she had a clear recollection of this albeit that it was not included in her notes,[184] but it was referred to in her affidavit. She said that it was mostly Mr Standish who explained the importance of denials on oath in a case like this. However, she also gave this advice on multiple occasions. She said that the appellant was adamant about not giving evidence.[185]
3. Ms Sandars said that there were discussions about the scope of cross‑examination and the type of questions he might be asked. She said that the biggest issue in this regard was the amount of medication that the appellant was taking and that he would need to continue to take it during the trial.[186] He was well aware of how that may impact and how it would look in cross‑examination.
4. When asked about the benefits of giving evidence, Ms Sandars said that there was a discussion with the appellant to the effect that if he did not give evidence the jury would not hear from him and his denials would not be heard. There was reference to concern that the jury may insinuate guilt from the appellant's silence. She said that this was not noted but was certainly discussed.[187] She accepted that she should have made a note that the appellant was adamant about not giving evidence. She also accepted that it would have been better to outline the benefits and disadvantages of giving evidence on the election document.[188]
5. Ms Sandars accepted that there was no reference in her affidavit to her having given the appellant advice about the benefits of the appellant giving evidence. She could not account for that absence but maintained that such advice had been given. The advice was to the effect that because he had not given an interview that would be played at the trial his denials would not be heard by the jury.[189]
6. Ms Sandars accepted that she and Mr Standish had exchanged copies of their affidavits after they had been sworn.[190] They had not, however, discussed their evidence.

1. The legal principles applicable to a ground of appeal that alleges that a miscarriage of justice has occurred due to the conduct of defence counsel are well established.[191] An appellant must demonstrate that the conduct of his or her counsel caused a miscarriage of justice, a task which constitutes a heavy burden.[192]
2. Ordinarily, an accused is bound by the way the trial is conducted by counsel in relation to matters within counsel's remit, regardless of whether that was in accordance with the wishes of the client. However, the election whether to give or not give evidence is different, as this is essentially a decision that is personal to the accused. A challenge on appeal may turn on the question of whether the trial was unfair because the exercise of an accused's right to give evidence in his or her defence was effectively foreclosed by the receipt of incorrect advice.[193] Unfairness may also arise if the accused's will is overborne by threats or pressure. An appellate court's assessment of whether the decision not to give evidence deprived an accused of a fair trial looks to the nature and effect of the incorrect advice, or to threats or pressure on the accused's decision. It is not an assessment of whether an objectively rational justification could be assigned to the decision.[194]
3. In Craig v The Queen, the High Court observed that the appellate court's determination of whether incorrect legal advice bearing on the accused's decision not to give evidence has occasioned a miscarriage of justice is not without difficulty:[195]

Necessarily it is a determination that will only arise following a trial at which the accused has been convicted. It would be unrealistic not to recognise that the reliability of an accused's honest evidence on appeal, that he or she would have given evidence had the incorrect legal advice not been given, may be affected by an element of hindsight reasoning. And, as here, the decision not to give evidence may be the product of a combination of factors, not all of which are tainted by the incorrect legal advice. The conclusion that the trial of an accused was not a fair trial requires the appellate court to be satisfied that it was the accused's wish to give evidence and that the incorrect legal advice effectively deprived the accused of the opportunity to do so. (citations omitted)

1. In Jeffery v The State of Western Australia,[196] this court said that a failure of counsel to adequately advise an accused person with respect to the exercise of the choice to give or not give evidence will, in some circumstances, give rise to a miscarriage of justice. As to what will constitute adequate advice, this court said:[197]

The question as to whether adequate advice was given requires an objective assessment of all the relevant circumstances of the particular case. As Thomas JA put it, in R v Szabo:

'It is impossible to lay down in advance the extent of detail that needs to be discussed or what will amount to reasonable discussion for the purpose of assisting the client to make the necessary election. It should be recognised, however, that too much forensic discussion may be bamboozling, and that it is not a lawyer's duty to educate the client to the equivalent of a trained lawyer. Generally speaking it should be sufficient to mention the main points that should guide the particular decision. It is then for the client to accept or reject the advice.'

An example of a case in which it was held that an appellant had been given inadequate advice is R v ND, a case which has some similar features to the present case.

In R v ND, the appellant was convicted after trial of two counts of rape and two counts of incest. The appellant's written instructions to his legal advisers were that he denied the alleged offences. He was advised not to give or call evidence and chose not to do either. The appellant alleged that, as a result of this advice and his acceptance of it, he suffered a miscarriage of justice. He argued that it was reasonable for him to be guided by his legal advisers, but a sworn denial would have been a powerful means of rebutting the complainant's evidence or, at least, causing the jury to have a reasonable doubt about his guilt. The appellant was not advised of the importance of making a sworn denial before the jury.

The ground of appeal was upheld. Holmes J, with whom McPherson JA agreed, concluded that the appellant had been given fundamentally flawed advice in two respects. The first was that the appellant had been given wrongly to understand that if he testified he was at risk of harming his case through being portrayed as an abusive and neglectful parent and, second, that he was not advised of the advantages of putting his version on oath. As to this latter point, her Honour said:

'As a result the jury was presented with only one sworn version. Although there were particular matters in the complainant's evidence which might have caused doubts, taken as a whole and uncontradicted, it justified the jury in reaching a conclusion of guilt beyond reasonable doubt. The situation might have been very different had they had the appellant's denial on oath; and the evidence of his father might also have assisted. In the circumstances of this case there is every reason to fear that a miscarriage of justice has occurred.'

1. In the recent case of Li v The State of Western Australia,[198] there was an issue as to whether defence counsel had raised with the appellant that a disadvantage of not giving evidence was that the jury would not hear his version of events and his denial of the allegations. Buss P and Mitchell JA found that such advice had been given and said that it was advice which counsel for an accused would naturally provide when advising of the advantages and disadvantages of giving evidence. Their Honours said that this was not advice which counsel would reasonably perceive the need to belabour as it is an obvious advantage of giving evidence that is likely to be intuitively understood by an accused in any event.[199]

1. The appellant submits that his evidence on the appeal should be accepted and that he was not given adequate advice regarding the decision to give or not give evidence at the trial.[200] The advice given only referred to the negative aspects of giving evidence. The appellant says that he was not advised that it was important to provide a direct contradiction to the sworn evidence of the complainants and that could only be provided by the appellant giving evidence.
2. The appellant submits that whilst he was concerned about his memory and what impression he might make on the jury if he gave evidence, that was not an insurmountable problem.[201] The appellant says that his memory problems were confined to his short‑term memory. Even if he got some details wrong, he would have been able to deny the alleged sexual offending. The appellant's concerns about giving evidence did not absolve his legal advisors from giving him 'full advice' about the benefits of giving evidence.

1. The respondent submits that the appellant has accepted that he knew that he had the right to give evidence in his defence and that the choice to do so was his.[202] The appellant discussed the election with his lawyers on a number of occasions. The appellant has also accepted that he was concerned about giving evidence because of issues with his mental health and memory.
2. The respondent submits that, based on the evidence of Mr Standish and Ms Sandars, it should be accepted that the appellant was very concerned that he would make a poor witness and that if he could not recall matters the jury may conclude that he was being dishonest. The appellant was advised of the advantages and disadvantages of giving evidence and made a considered decision not to give evidence because the disadvantages outweighed any possible benefits.[203] The respondent submits that the appellant exercised a free choice not to give evidence with a full appreciation of the consequences of his choice.

1. An election not to give evidence should be a voluntary and informed decision. A decision will not be voluntary if it is induced by pressure, threats or coercion. A decision will not be informed if it is made without an appreciation of the relative benefits and disadvantages of giving evidence.
2. In the present case, the appellant accepts that he always understood that the decision whether to give or not give evidence was one for him to make. He understood that it was a decision that he did not have to finalise until the close of the prosecution case. At that point he signed the document electing not to give evidence and acknowledged that he understood that the decision was his and not that of his lawyers. He does not suggest that his will was overborne by threats or pressure. Thus, there can be no doubt that the election was a voluntary decision.
3. The real question is whether the election was a properly informed one. The resolution of that issue depends upon an assessment of the evidence given by the appellant and that given by Mr Standish and Ms Sandars. It is also relevant to take into account that the appellant was not an unsophisticated participant in the criminal justice system. He had assisted in the development of protocols for child witness interviews and had worked in the Department of Child Protection for many years. He understood that the prosecution bore the onus of proving the charges, that the standard of proof was beyond reasonable doubt and that the critical evidence against him was that of the complainants.[204]
4. The appellant accepted that he was concerned about how he would present as a witness and that the jury may conclude that he was dishonest if he said that he could not recall relevant details. On appeal he sought to confine the impact of this factor by claiming that he had always made it clear to his lawyers that his memory problems were limited to short‑term memory.[205] There are at least three problems with this claim. First, it is contradicted by the evidence of both Mr Standish and Ms Sandars. Second, it is not apparent why the appellant would be so concerned about appearing to be dishonest regarding his account if his memory of the relevant period in which the offences were alleged to have occurred was unaffected. Third, the contemporaneous notes of Ms Sandars refer to 'significant issues with [the appellant's] memory' and 'memory concerned [the appellant] and what might happen in XXN'.[206] Furthermore, there is no independent expert evidence to support the appellant's suggestion that only his short‑term memory was impaired by his treatment and medications.
5. The appellant's claim that he told his lawyers that only his short‑term memory was impaired is not credible. It bears the hallmarks of hindsight reasoning with a view to improving the appellant's position on this appeal. The evidence of Mr Standish and Ms Sandars in this regard was clear, credible and inherently more likely. We would accept that the true position is that from the outset the appellant was opposed to giving evidence. He was concerned about the impact of medications and treatment on both his ability to recall relevant events and his ability to speak clearly at the time. He was concerned that denials would sit uncomfortably with memory loss and give the impression to the jury that he was a dishonest witness. These concerns were repeated and not irrational. It was not the role of the appellant's lawyers to persuade him to a different view. The appellant's concerns had every appearance of being soundly based.
6. As to whether the appellant was advised of the benefits and disadvantages of giving evidence, he accepts that there was a discussion in which the Liberato principles were referred to.[207] Whilst he does not understand the case reference, he accepted that Mr Standish may well have advised him that: if he gave evidence and the jury accepted his evidence they would be obliged to acquit him; if they did not believe him but his evidence raised a reasonable doubt they would be obliged to acquit him; and, if they rejected his evidence entirely they would still have to consider whether the remaining evidence was sufficient to prove the offences beyond reasonable doubt.
7. Mr Standish also gave evidence that advice in these terms was given by him.[208] Whilst Mr Standish was somewhat defensive in his evidence, we accept that his account of the advice given to the appellant was truthful and accurate. This advice goes some way in explaining the possible benefits of giving evidence. What it does not do, however, is explain that if the appellant did not give evidence there would be no evidence directly contradicting that of the complainants. That is a matter of significance in a case where only the complainant and the appellant were present on each occasion and there was no police interview with the appellant in evidence in which denials were made.
8. Ms Sandars' evidence is important in this respect. Ms Sandars presented as an honest and credible witness. She took reasonably comprehensive notes of the meetings she attended. In her affidavit, Ms Sandars stated that the appellant was aware his 'no comment' interview with the police would not be played at the trial and that he was advised that 'the jury would not hear direct evidence from the appellant should he choose not to give evidence'.[209] In oral evidence, Ms Sandars said that there were also other discussions about the benefits of giving evidence, but we would be hesitant to accept that in the absence of such discussions being referred to in either the notes or Ms Sandars' affidavit. Nonetheless, the advice referred to in the affidavit was, on its face, in simple, clear and easily understandable terms.
9. The appellant claims that he was not advised, and did not understand, that if he chose not to give evidence there would be no direct evidence contradicting that of the complainants regarding the alleged sexual acts. That claim lacks any credibility and is redolent of hindsight reasoning. The appellant presented as an intelligent man with an understanding of the criminal trial process. He understood that the critical evidence against him was that of the complainants. It is highly improbable that he would have failed to appreciate that if he did not give evidence the evidence of the complainants would be uncontradicted by any other evidence. In any event, we accept Ms Sandars' evidence that this was explained to him.
10. This is not a case where the appellant's right to give evidence was effectively foreclosed by incorrect advice. The issue to be determined here is whether the appellant's voluntary decision not to give evidence was made with an understanding of the benefits of him giving evidence. We are satisfied that the appellant was told, and did understand, that if he did not give evidence, the complainants' evidence would be uncontradicted. In coming to that conclusion, we have taken into account the whole of the trial record and the personal circumstances of the appellant.
11. This is a case where the appellant's decision not to give evidence was based on apparently genuine concerns about how he would present as a witness. The advice given to the appellant was adequate to inform him of the relevant advantages and disadvantages of giving evidence. There is no reason to think that the appellant did not understand the advice he was given. We are not satisfied that it was the appellant's wish to give evidence and that inadequate legal advice effectively deprived him of the opportunity to do so. A miscarriage of justice has not been established.
12. Finally, we would note that it is plainly inappropriate for witnesses to exchange copies of their affidavits in circumstances where it is likely that they will be called to give evidence. There is a risk that a witness will, consciously or sub‑consciously, vary their evidence to conform with what they know another witness has said. In the present case Mr Standish and Ms Sandars exchanged their affidavits after those affidavits had been filed. Whilst we have taken that into account, it was not suggested that, in the circumstances of this case, it was a significant factor.

1. None of the grounds of appeal has a reasonable prospect of succeeding. An extension of time should be refused, leave to appeal refused and the appeal dismissed.

1. Extension of time to appeal refused.
2. The appellant's applications to adduce additional evidence are refused.
3. The respondent's application to adduce additional evidence is refused.
4. Leave to appeal refused.
5. Appeal dismissed.

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

[35] ts 199. The prosecutor mistakenly said count 12 took place at McKay Street but he later corrected this, ts 202 ‑ 203.

[59] BGAB 102. F clarifies later in another Child Witness Interview held on 24 October 2022 that the appellant was wearing a 'Western Force top', BGAB 126.

[102] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79.

[105] Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 489 (Dixon J).

[106] Galbraith v The Queen (1989) 6 WAR 12, 22 (Brinsden J).

[107] Cotter v The State of Western Australia [2011] WASCA 202 [31] (Hall J, Martin CJ & Newnes JA agreeing).

[108] Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, 57.

[109] S v The Queen [1989] HCA 66; (1989) 168 CLR 266.

[111] Snook v The State of Western Australia [No 2] [2024] WASCA 135 [45] ‑ [47] (Mazza, Hall & Vandongen JJA).

[140] Affidavit of EDZ, affirmed 26 March 2025, par 3.

[141] Affidavit of EDZ, affirmed 26 March 2025, pars 6 ‑ 7.

[142] Affidavit of EDZ, affirmed 26 March 2025, par 10.

[143] Affidavit of EDZ, affirmed 26 March 2025, par 14.

[144] Affidavit of EDZ, affirmed 26 March 2025, par 17.

[145] Affidavit of EDZ, affirmed 26 March 2025, par 18.

[146] Affidavit of EDZ, affirmed 26 March 2025, par 19.

[147] Affidavit of EDZ, affirmed 26 March 2025, par 23.

[178] In her affidavit, Ms Sandars mistakenly states this interaction occurred on 13 December 2024.

[191] Huggins v The State of Western Australia [2018] WASCA 61 [375] ‑ [401] (Buss P, Mazza & Beech JJA).

[192] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [74] (McHugh J).

[193] Craig v The Queen [2018] HCA 13; (2018) 264 CLR 202 [32] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ).

[194] Craig [33] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ).

[195] Craig [34] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ).

[196] Jeffery v The State of Western Australia [2018] WASCA 219.

[198] Li v The State of Western Australia [2025] WASCA 75.

[199] Li [6] (Buss P & Mitchell JA).