Criminal law and procedure - Evidence - Complainant's evidence recorded on video tape at first trial - Retrial on one of two charges - Whether complainant's evidence at retrial properly received by video tape recorded at first trial - Editing of tape for purposes of retrial - Whether discretion not to order complainant to give evidence again properly exercised

Criminal law and procedure - Sentence - Indecent dealing - single incident of fondling breasts of 12 year old girl - Sentencing patterns - Sentence of 2 years' imprisonment set aside as excessive - Sentence of 15 months' imprisonment substituted

Evidence Act 1906 (WA), s 106I(1)(b), s 106T(1), s 106N, s 8, s 25(2)

Surveillance Devices Act 1998

Bekker v Police (2001) 120 A Crim R 170

Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54

CA v The Queen [2000] WASCA 176

Horan v Ferguson [1995] 2 Qd R 490

Kadibil v The Queen [2003] WASCA 13

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Matusevich v The Queen [1977] HCA 30; (1977) 137 CLR 633

R v C [2002] QCA 156

R v Elsworthy (1996) 39 NSWLR 450

R v F (1995) 83 A Crim R 502

R v Henstridge (1998) 198 LSJS 147

R v Ireland [1970] HCA 21; (1970) 126 CLR 321

R v Mercer (1993) 67 A Crim R 91

R v Rodgers [2002] QCA 148

R v Stalker [2002] WASCA 364

R v Zheng (1995) 83 A Crim R 572

1 MURRAY J: I agree entirely with the reasons of Anderson J and with the orders proposed by his Honour.

2 ANDERSON J: This is an application for leave to appeal against conviction and sentence.

3 The applicant was first brought to trial in the District Court sitting at Perth on an indictment containing five counts alleging sexual offences against the complainant and her sister. At the commencement of the trial the prosecutor obtained leave to withdraw two of the counts involving the complainant's sister and the trial proceeded on a fresh indictment containing the three remaining counts, two involving the complainant and one involving her sister. The trial was originally to be held at Geraldton. An order had been made for the evidence of both girls to be pre-recorded in accordance with s 106I(1)(b) of the Evidence Act. The complainant and her sister attended at the District Court in Geraldton in order for this procedure to be completed but their evidence could not be pre-recorded due to some difficulties with the equipment. The trial was transferred to Perth and both girls gave their evidence during the course of the trial but by video link from a remote room. Section 106N. This evidence was preserved on video tape. The jury returned verdicts of not guilty with respect to the count involving the complainant's sister and to one of the counts involving the complainant. They were unable to reach a verdict in relation to the remaining count involving the complainant. There was an order for the applicant's retrial in respect to that count which alleged that "on 9 September 2001 at Beachlands [a district of Geraldton] the applicant indecently dealt with the complainant, a child under the age of 13 years, by touching her breasts".

4 A question arose as to whether the video taped record of the complainant's evidence could or should be played at the second trial or whether it would be necessary for the complainant to once again give evidence. The Judge who had presided at the first trial heard argument on that subject. Counsel for the applicant, Mr Potter, submitted to him that the editing which would have to be made to the video tape "...will inevitably lead to a manifest distortion in the manner in which the complainant presented to the jury at the first trial and further the flow of cross-examination would be interrupted to such an extent that any edited version would represent a gross prejudice to the defendant."

5 The Judge rejected these submissions and ordered that the evidence of the complainant be received at the retrial in the form of an edited version of the video taped record of her evidence given at the first trial. The video tape was edited and played to the jury at the retrial in Geraldton on 6 December 2002. The jury returned a verdict of guilty. The applicant was sentenced to 2 years' imprisonment with parole eligibility.

6 The grounds of appeal against conviction are to be taken from a letter prepared by the applicant dated 24 May 2003 addressed to the Court of Criminal Appeal. The applicant appeared in person to argue his appeal and said these were the grounds he wished to rely on and he amplified them with extensive oral submissions. I will address the grounds in the order set out in that letter.

"(a) The learned prosecutor made an error by introducing inadmissible evidence (1) spent New South Wales convictions; (2) reversing the onus of proof; (3) inappropriate, irrelevant and prejudicial line of questioning."

7 The first part of this ground relates to the introduction into evidence of the applicant's record of convictions including a record of convictions in New South Wales which the applicant contended were "spent convictions" and therefore, under the legislation applicable in New South Wales, inadmissible in evidence. The answer to this is that whatever the position maybe in New South Wales there is no legislation in Western Australia having the effect contended for by the applicant. Under the law of this State a record of a conviction is not rendered inadmissible merely by the passage of time. The New South Wales convictions were admissible here once the applicant's criminal record became admissible.

Disproportionate emphasis on previous convictions

8 A theme which ran through the applicant's oral argument was that there was no proper justification for his record of previous convictions to be placed before the jury and that the extent to which he was cross-examined upon his previous convictions, and the form of the cross-examination, was unfairly prejudicial.

9 The circumstances under which previous convictions of an accused may be introduced into evidence are of course limited. The relevant statutory provision is s 8 of the Evidence Act which is in the following terms:

"(1) Except as ... otherwise provided, every person charged with an offence ... shall be a competent but not a compellable witness at every stage of the proceedings ...: provided as follows -

...

(e) A person charged and called as a witness in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless -

...

(ii) ... he has personally, or by his advocate, asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution."

10 In my opinion, the conduct of the defence was such as to involve serious imputations on the character of the complainant, she being a witness for the prosecution. Not to put too fine a point on it, the applicant's evidence was that the complainant was a thief and a liar, sexually precocious and given to excessively flirtatious and sexually forward behaviour with him. The principle is that if the credit of the main prosecution witness has been attacked it is only fair that the jury "should have before them material on which they can form their judgment whether the accused person is any more worthy to be believed than those he has attacked. It is obviously unfair that the jury should be left in the dark about an accused person's character if the conduct of his defence has attacked the character of the prosecutor or the witnesses for the prosecution within the meaning of the section". R v Jenkins (1945) 31 Cr App Rep 1 per Singleton J at 15; Selvey v Director of Public Prosecutions [1970] AC 305; Mathews v The Queen (1973) WAR 110 at 113 - 114.

11 The imputations made by the applicant on the character of the complainant were such as to amply justify the refusal on the part of the trial Judge to exercise his discretion to exclude the evidence of the applicant's previous convictions even although the worst of them were somewhat ancient.

12 As to the applicant's submission that cross-examination on the previous offences went too far, I would agree. Cross-examination as to the fact of a previous conviction is one thing. Cross-examination as to the details of the offence is another. I think prosecuting counsel would do well to bear in mind the principles stated by the English Court of Appeal in R v McLeod [1994] 3 All ER 254 at 267 and set out in Cross on Evidence (6th Aust ed) at [23345] to the effect that it is undesirable that there should be and the trial may be rendered unfair if there is prolonged or extensive cross-examination in relation to previous offences. The danger is that it will divert the jury from the principal issues in the case which is the guilt of the accused on the instant offence and not the details of earlier ones. Unless the earlier offences are admissible as similar fact evidence prosecuting counsel should not seek to probe or emphasise similarities between the underlying facts of previous offences and the instant offence. And some balance should be kept between the gravity of the attack on the prosecution witnesses on the one hand and the degree of prejudice to the accused on the other which will result from extensive cross-examination on previous offending.

13 However, it is also the general rule that if no objection is taken at the time it will be difficult to contend that the Judge wrongly exercised his discretion not to stop the cross-examination: Cross on Evidence (ibid).

14 That is the position in this case. Whilst I do think that too much emphasis was placed upon the details of the previous offences there was no objection to the cross-examination and I am not prepared to conclude that it is grounds for a retrial.

Reversal of onus of proof - prosecutor submitting complainant had no motive to lie

15 The second aspect of this ground of appeal - that the onus of proof had been reversed by the prosecutor - concerns a rhetorical question asked of the jury by the prosecutor in his closing address. The question was asked during that part of his address in which the prosecutor was dealing with the attack which had been made by the applicant on the character and credibility of the complainant. The part of the prosecutor's address is as follows:

"She's a girl who has put together or been given - she says she was given - a folder full of materials that didn't particularly interest her and she gave them to the accused because he was always raising that sort of subject so she thought she might give it to him, family friend, employer; someone she says was always raising conversations and topics of sex. She certainly has a morbid streak in her and is talking about death and all the like. I think many teenagers do. Some sadly go beyond just talk, but that's nothing unusual. It doesn't make her a liar or unreliable about the things that matter and the things that happen to her.

She is someone that is getting counselling. We never got down to the tin tacks of that but we don't need to really. Counselling can be for anything from depression - and she would seem to be an unhappy child, a disturbed child - through to true mental illness like schizophrenia. There's no suggestion of any of that here, but that even doesn't mean that she's a liar or that she would be making up a story like this to get someone into trouble who hasn't done her any harm.

So why would she be doing it? There's a question you might want to ask yourself. Now, people may make up stories for a variety of reasons and his Honour will tell you about that. You don't need to decide whether there is a motive here or not, but it's a legitimate question to ask yourself. What's in it for her? It maybe just some kind of teenage whim that has taken her all the way into the District Court and telling her story, albeit on video this time before you, in order to malign a family friend who was giving her a job or maybe she's telling the truth about it and has everything to lose and nothing to gain, including the trust of her mother. Fortunately her mother does trust her.

The way the defence would tell it, she is a liar; she's flirtatious; she's sexually forward, knows more about sex than a 12 year old ought to, a thief..."

16 I would accept the applicant's submission that the jury should not have been asked "So why would she be doing it? There's a question you might want to ask yourself". It invited the jury to reason that the absence of a proved motive on the part of the complainant for the making of a false accusation against the accused strengthened her evidence. For the Crown to conduct its case on that basis is plainly impermissible and it does not matter whether the invitation to reason in that fashion arises from the nature of the cross-examination of the accused or from the prosecutor's address to the jury: Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1; Rodd v The Queen [2000] WASCA 329; Lathain v The Queen [2000] WASCA 57 at [17]. The danger is that the jury might consider that unless there was shown to be a reason why the complainant should lie, her story should be accepted. The effect is to impermissibly place an onus on the accused to come up with an explanation for why the complainant might be lying; and the effect of this is to diminish the fundamental rule that the Crown bears the onus of proof at every stage of the trial: Palmer v The Queen (supra) at 9.

17 If this had been left uncorrected by the trial Judge it may arguably have led to a miscarriage of justice. However, in my opinion, the error was corrected. The jury were told in effect that they should not speculate about what might be possible motives for the complainant to lie and should treat the question posed by the prosecutor as irrelevant. His Honour said in his address to the jury (TS 427):

"Mr Mischin in his address to you asks the rhetorical question, 'Why should she make all this up?' May I suggest to you that that question is unhelpful? It doesn't matter why somebody might make something up or why they would not. It's really an unnecessary speculation for you to trouble yourselves about that. Your real question is to decide whether or not you are satisfied beyond reasonable doubt as to the truth of the statements she has made."

18 In the circumstances of this case that was sufficient, when it is added to the strong and clear directions by the Judge to the effect that at no stage of the trial was any onus of proof placed on the applicant.

19 The third aspect of this ground of appeal "Inappropriate, irrelevant and prejudicial line of questioning", refers to a part of the prosecutor's cross-examination of the applicant which was calculated to impeach his credit. There was evidence that the applicant was having an illicit affair with the complainant's mother at the material time and the applicant was cross-examined on the basis that the affair involved deceiving his wife. The applicant also submitted that cross-examination in which it was put to him that he was sexually attracted to the complainant was unnecessary and unfair.

20 On the face of it this line of questioning was neither inappropriate nor irrelevant. This was a case of oath against oath and it was permissible for the prosecutor to attempt to impeach the applicant's credit by showing that the applicant was a deceitful and immoral person. It was also permissible for the prosecutor to attempt to obtain admissions from the applicant that he was sexually attracted to the complainant at the material time. It is true that the cross-examination was anything but subtle and, in parts, needlessly offensive and might have been successfully objected to under s 25(2)(b) and (c) and s 26(b) of the Evidence Act, but there was no objection. The applicant relied on the case of R v Middleton [2000] WASCA 200; (2000) 114 A Crim R 141 in support of his submission that the cross-examination went so far as to produce a miscarriage of justice. That was a case in which the prosecutor asked the accused whether the complainant and her friend were lying; and whether they had got their heads together to concoct their story. It is well settled that a witness should not be asked whether another witness is lying or has conspired to concoct his or her story although, regrettably, this form of cross-examination is not uncommon. The witness' opinion as to whether a statement made by another person is a lie is not relevant; and to demand an answer to the question is calculated merely to embarrass and oppress. Such questions should not be permitted: R v Leak (1969) SASR 172 at 173; Palmer v The Queen (supra) per McHugh J at 25 - 26. The cross-examination in Middleton (supra) was described by the Court of Criminal Appeal as "inappropriate" which it was, to say the least. Even so, the Court's decision to quash the conviction did not turn on the form of the cross-examination. The conviction was set aside because of errors and omissions in the Judge's summing up.

"(b) The learned defence made an error by not presenting all the facts (1) the last week complainant worked for me; (2) complainant's tendency to exaggerate and make false statements."

22 The applicant is dissatisfied with the way in which his defence was conducted. He submitted that his counsel did not make enough of the fact that the complainant continued in her employment with the applicant for a week following the incident and did not elicit through cross-examination, the true extent to which the complainant indulged in fantasy, exaggeration and untruthfulness. He submitted in effect that he had not had a fair trial because not enough was done by his counsel to impeach the complainant's general credibility and not enough was done to drive home the point that it would be unlikely that the working relationship between the two would have continued as it did for another week if the complainant's version of events was true.

23 The applicant and the complainant's mother both worked as carers of disabled people and the applicant also had a gardening business. The applicant and the complainant's mother had started a sexual relationship in about April 2001 at a time when the complainant was living with her father in Albany. It appears that the complainant was at that time a difficult child and was in trouble both at home and at school which culminated in her being suspended from her school and being sent by her father to live with her mother and sister in Geraldton in about July 2001. Arrangements were made for her to attend an educational institution in Geraldton and to have treatment for her mental and emotional problems and her mother asked the applicant to provide her with part-time employment in his gardening business on the basis that the mother would give money to the applicant which the applicant would then pass on to the complainant as wages. Under these arrangements the complainant accompanied the applicant on his gardening rounds after school and at weekends. It is this "employment" which is referred to in this part of the ground of appeal.

24 I would assume that counsel's decision not to go any further than he did to impeach the complainant's truthfulness, attack her character and explore the post incident relationship between the applicant and the complainant was deliberate. Counsel was entitled to take the view that there was enough evidence before the jury upon which they could form an unfavourable view of the complainant's credibility and character. He was entitled to judge that to labour the issue in cross-examination of this young girl might have seemed like harassment and might have risked an adverse reaction from the jury. As to the matter of the complainant continuing to work for the applicant it is of course notorious that a child who has been subjected to sexual abuse might decide to maintain the relationship in which the abuse occurred without complaining and without giving any outward appearance of anything being amiss. It is the main reason why, so often, offences of this kind remain undetected for a long time. In this case the evidence was that the complainant made her first complaint about the incident two days after it had occurred and it is understandable that counsel should decide in his client's best interests that lengthy cross-examination focusing upon weaknesses in the complainant's character and her emotional difficulties and focusing upon the reasons why she carried on working with the applicant for another week might have been ineffective if not counter-productive. That the applicant should take the view in hindsight that this was a mistake is no ground to quash his conviction. It is not every tactical decision which, considered in hindsight to have been misjudged, opens the door to a ground of challenge to the jury's verdict. Tactical decisions made concerning whether certain lines of cross-examination should or should not be pursued which in the light of the verdict may seem to have been unwise cannot of themselves be relied on to found a proposition that the defendant has not had a fair trial. Such decisions have to be made in every case and the making of them is an exercise of the right to a fair trial: R v Ratten [1974] VicRp 26; [1974] VR 201 at 214; R v Suresh [1998] HCA 23; (1998) 102 A Crim R 18.

"(c) The learned trial Judge made an error by misdirecting the jury in his summing up (1) misdirected the jury when he said both versions of events were indecent dealings; (2) not bring the jury attention to prosecutor's deliberate attempts of misinformation."

Withdrawal of issue of indecent dealing from jury

25 At his trial the applicant did not deny that there was physical contact between him and the complainant on the date alleged in the indictment that is, 9 September 2001, in a room at the house where she lived with her mother and sister. The room was sometimes called the games room and sometimes called the computer room; and the complainant often used the computer. The complainant had injured her shoulder and had, as the applicant put it, "called in sick". The applicant came to the house after his day's work was completed, as he did quite regularly, although by this time he was no longer in an intimate relationship with the complainant's mother. There was no dispute that the complainant was seated at the computer and the applicant, after some discussion with the complainant's mother and initially in the mother's presence, and, he said, at her (the mother's) request commenced to massage the complainant's neck and shoulder area. In the course of so doing there is no dispute that at least one of the applicant's hands came into contact with at least one of the complainant's breasts under her clothing after the mother had left the room. The point of distinction between the Crown case and the case for the applicant is that whereas it was the Crown case that after massaging the complainant's shoulder or shoulders for a time the applicant placed both his hands beneath her top, moved them to the area of her breasts, pulled her brassier up above her breasts and fondled both her breasts it was the applicant's case that the complainant moved one of her breasts onto his right hand in a deliberately flirtatious manner. He said he reacted by grabbing her and in this way he pinched her breast quite hard but, he says, not indecently. He said all he was doing was letting her know she "had gone just a little bit too far". The precise terms of his explanation are somewhat difficult to summarise and it is best that his evidence be set out in full:

"Where were you positioned when you gave [the complainant] that massage?---I was directly behind [the complainant] at the computer desk. She was sitting on higher sort of stool than one of the standard ones. It was a built-up sort of a stool level with the computer. She was sitting on that. I was directly behind her, standing behind her whilst giving this rub, and leaving over the top.

Now, you heard some evidence from [the complainant] on the videotape that she said you were sitting behind her and you reached around and put your hands under her shirt and lifted her sports bra and fondled her breast with your hands?---Yeah, I heard that.

Okay, and what do you say to that?---Well, that's nowhere near correct.

Did anything like that occur?---Yes, something like that did occur.

Can you explain to the members of the jury exactly what occurred in that computer room?---Right. When we was in the computer room she got a massage and at the moment she's on the computer playing some really good games, and I finished her massage then I pulled up a seat behind her and was watching the computer games and she came across a really good computer game. It was a King Kong sort of one where you had to collect lots of bananas. I hadn't seen this game before so I wanted to have a go at it, so I choofed [the complainant] off this stool, I hopped on and I started playing it because it was a really good looking game. I'm playing there with my left hand with the computer here, [the complainant] was right here beside me. She has moved in - physical girl, which doesn't worry me, doesn't affect me. She come right up on me. My arm was around her. I was giving her a cuddle, it was like on her belly and it was cold. That was cold, she knows, because it was me cold hand on her bare skin on her belly. She was wearing two T-shirts and a sort of a boob-tube tank top. I know she had two T-shirts because that's where I was when I was rubbing her. Halfway through the computer game - I knew what [the complainant] was up to because she has tried things like this before. Halfway through King Kong she dropped down. I felt her go down and my hand was already on her skin. I went for a grab. I got a grab all right and it was a handful of tit, it wasn't a handful of rib or body where I thought I would, and if she had shown her mother that night there would have been a bruise on it. It was a grab. It was a dead-set, right-on grab.

And why did you do that?---Because that's where my hand was at the time and it was a grab. It was a pinch. It was to let her know that she had gone just a little bit too far that time.

What were you thinking at the time that you did that?---At the time I done that I thought this - 'You have blown it this time, kid,' you know. I spat the dummy just after that and it wasn't long after that that the mother was wandering down, but I had already had it by then and I was leaving. I was very pissed off with [the complainant] for actually trying it in her house where everyone was, because her sister was in and out, her mother was in and out. I had no idea what this kid was thinking of, but she did get - I did get a handful of tit, but it wasn't a grope, it was a grab, it was a pinch.

So what was your intention in the grab or the pinch?---I let her know that she had stepped over the boundary. She was - gone well beyond where she should have been. I didn't mind giving her a cuddle, I didn't mind giving her a punch, you know."

26 The portion of the summing up about which the applicant complains is as follows:

"If you were massaging the shoulders of a person and as part of that massage came into contact with part of the breast of the person you are massaging it may well be that that would not be something which is unbecoming or offensive to ordinary standards of propriety. It's not suggested this is such a case, of course. The accused man says that he had sat down on the seat and was playing the video game, that he was doing it with his left hand, that he had his right hand around the complainant's waist, and that she apparently deliberately dropped down suddenly so that his hand, which was around her waist, would come into contact with her breast, and that he pinched her, he grabbed her breast and he pinched her, as a punishment.

It's for you to decide whether or not, if it happened that way, that is an indecent dealing. Is it something that is offensive or unbecoming to ordinary standards of propriety? If you are satisfied beyond reasonable doubt that the events occurred the way the complainant put it then, as Mr Potter rightly conceded, you would have no difficulty with that. That would have been an action - that is to life the sports bra and fondle the breasts of a 12-year-old girl, a girl who had some breast development - obviously if there is no breast development at all, if it's a very young child, then there's probably nothing indecent about it, but he concedes, and rightly concedes I think, that if you are satisfied about the complainant's version of events then you would have no difficulty in deciding that this was an act of indecency."

27 The applicant's complaint essentially is that this direction was in effect a direction to the jury that even if they accepted the applicant's version of events the verdict must be guilty. That is a misunderstanding of the direction. The jury were told, quite correctly, that if they were satisfied beyond reasonable doubt of the complainant's evidence as to what the applicant did they would have little difficulty in finding that there had been an indecent dealing. There could be no argument about that. Even so the issue was not taken away from the jury. The Judge made it clear that it was a matter for them but he gave them strong guidance, as he was entitled to do. RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 at 637 [41] - [42]. It is not correct to say, as the applicant does, that the Judge went on to direct the jury that even if his version of events was true they should find him guilty of indecent dealing. This issue was plainly left to the jury as a matter entirely for them. His Honour said "It's for you to decide whether or not, if it happened that way, that is an indecent dealing." There is no substance in the applicant's complaint.

28 In his oral submissions the applicant contended that the Judge omitted to direct the jury in terms of s 24 of the Criminal Code. In essence his submission was that the evidence left open the defence of "mistake". There was no occasion for the Judge to direct the jury with respect to the defence of mistake. There was no basis in the evidence upon which a reasonable jury might conclude that the applicant may have been under an honest and reasonable but mistaken belief as to what part of the complainant's body he grabbed or "pinched", to use his words.

Disclosure to jury that material edited from record of interview

29 The second aspect of this ground of appeal, which is expressed as "not bringing the jury's attention to prosecutor's deliberate attempts of misinformation" refers to the introduction into evidence of the content of the edited version of the handwritten record of the applicant's interview with police. The applicant had been interviewed by Detective Keals who had made a handwritten record of the interview. It covered the several incidents the subject of the original indictment. Therefore, if the record of interview was to be put into evidence, it had to be edited. The Judge did not want the jury to receive a copy of the edited document itself, with large sections missing or obliterated. He thought that the jury might engage in speculation unfavourable to the applicant about what might seem to them to be excessive editing. The prosecutor arranged to have it retyped in a form which would facilitate a reading of that part of it which concerned the single incident the subject of the retrial. It was proposed that this edited version would be read out by Detective Keals. A document was typed and placed before the Judge as MFI 5 and when Detective Keals was in the witness box the following exchange took place between him and the prosecutor:

"Turning now to the interview that you had with the accused do you have - I think it's MFI5 - I'm sorry, MFI - yes, it is MFI5. Would you now read that out to us please? Actually, I had best have a look at that before you do, I'm sorry, just to check something. The interview contained some irrelevant material. Is that right?---That's correct.

Can you have a look at this photocopy please, which I hope has excluded the irrelevant material? Take a moment to check that it's complete other than the exclusion of the irrelevant material?---The irrelevant material has been excluded from this copy."

30 Detective Keals was then asked to read the document. The applicant's complaint is that the exchange set out above would have revealed to the jury that what was read out to them was not a complete account of the whole interview. This is undoubtedly true but I am not persuaded that the applicant suffered any prejudice as a result. It is quite common for juries to be told that records of interview, whether in written form or on video, have been edited to exclude irrelevant material. There is no sinister implication arising from the exclusion of irrelevant material. No reasonable jury would draw an inference adverse to the accused on being told merely that irrelevant material had been deleted from the record of interview.

Disclosure to jury of uncharged "allegations"

31 The applicant also complained that in the examination-in-chief of the complainant's mother the prosecutor asked a question in a form which would have revealed to the jury that the complainant had made allegations against the applicant which extended beyond the allegation concerning the incident the subject of the retrial. This arises from the following question put by the prosecutor to the complainant's mother:

"Did you subsequently talk to the police about the allegations that - the allegation that [the complainant] had made."

32 The applicant submitted that the use of the word "allegations" was a deliberate ploy by the prosecutor to reveal to the jury that the incident in question was not the only incident about which the complainant had made complaint. I do not accept this submission. The police evidence to the jury at this trial was to the effect that the incident the subject of the retrial was the only incident with which they were concerned. The evidence which was led by the prosecutor from Detective Keals was plainly to the effect that his investigations were into a single incident and that it was in relation to that single incident that the accused was interviewed [Transcript 341 - 342]. Furthermore, the word "allegations" was immediately corrected by the prosecutor as a slip of the tongue. All in all the jury would have attached no significance to the use of the word.

33 The applicant also complains about another exchange between the prosecutor and the complainant's mother during her evidence-in-chief. The prosecutor asked questions of the mother designed to elicit from her an explanation of why her report to the police was not made until sometime after she had been made aware of her daughter's allegation. The following questions and answers are taken from page 320 of the transcript:

"Why did you not go to the police directly?---After speaking to Mental Health and their advice that it had been one isolated incident that probably nothing would come of it.

What changed your mind?---It was more than just that.

Alright. You talked to Mr Vesnaver?---Yes, I did."

34 The complaint which the applicant makes is that the prosecutor asked the question "What changed your mind?" deliberately so as to evoke an answer to the effect that the incident was not an isolated incident.

35 The issue did cause some concern to the Judge. The exchange had occurred during the first day of the trial and at the end of that day the Judge raised the matter with counsel in the absence of the jury. He said [transcript page 333]:

"Speaking of difficulties, incidentally, there was a question and answer given during the course of the afternoon and [the complainant's mother] said that she had spoken to the psychologist or to Family and Children's Services, I have forgotten which - I think the psychologist, who said that perhaps she didn't need to do anything about it because it was an isolated incident and you asked her then why she later did report it and her answer to that was, 'because it was more than just that'. Now, that concerned me somewhat, that that might well be sticking in the minds of the jurors, that it's more than simply an isolated incident, giving an impression that there are other offences which have been committed, which of course is something that the jury can't be - or at least there have been allegations of other offences. What I was going to do with respect to that matter, firstly I would suggest neither of you should refer to it. I was going to mention it because I'm sure they would have noticed it. To merely say that there was more to it than that doesn't mean that there was any suggestion that there were any other offences committed."

36 After discussion with counsel the course suggested by the Judge was agreed to. In his charge to the jury the Judge dealt with it in the following way:

"After having been told of the alleged incident the complainant's mother spoke, I think she said, to the complainant's psychologist at Mental Health. I think that was the person. It may have been from Family and Children's Services, but it was some government agency. She seems to have been advised not to do anything about it because it was an isolated incident. When asked why she reported it to the police she said she later found out that it was not just that, by which I understood her to say that it wasn't just an isolated incident. She was not asked about anything else. We do not know what was in [the complainant's mother's] mind. We don't know whether she was concerned about any broader relationship with the accused man or anything of that sort. We don't know about that.

There's no suggestion at all that the accused man had committed any other offences and it's important that you do not speculate about what it might be that triggered the complainant's mother to go to the police because again that's something in her mind which may or may not have been important, but something caused her to do it. Don't speculate about that. Concentrate, I suggest, on the evidence relative to the events that occurred later afternoon on Sunday 9 September 2001."

37 That direction was adequate to ensure that the jury did not put the mother's answer to an impermissible use.

"(d) There was a miscarriage of justice because my defence was not looking after my best interests (ensuring all and every avenue of defence was brought to bear. Being (1) court layout; (2) spent convictions; (3) the prosecutor's inappropriate questions and extracted answers; (4) the tape recording itself; (5) video evidence; (6) the previous trial"

38 As to "court layout" the applicant complained that the design of the Geraldton courtroom denied him a fair trial. As he put it "that was just the lousy layout of the place so that the jury never got to hear the full argument of the defence". The complaint goes to both design and acoustics problems. A general complaint about the acoustics or design of a courtroom is not a proper ground of appeal. It is a matter for government. A specific allegation that the jury did not hear some part of the evidence or some part of the argument would be different. However, that allegation is not made. The applicant did not demonstrate to my satisfaction that the jury failed to hear a particular piece of evidence or a part of counsel's argument. It is quite common for witnesses to be asked by the Judge or by counsel to speak up. It is not uncommon for the Judge to ask counsel to speak up. Nor is it uncommon for jurors to indicate that they are having difficulty hearing a witness or one counsel or the other. These are ordinary occurrences in the conduct of a trial and do not of themselves provide any foundation for the contention that a trial has miscarried.

Inadequate protection of applicant by his counsel

39 From what I have already said it follows that I am of the view that some parts of the cross-examination of the applicant could have been successfully objected to on the ground that the questions were not in proper form. Unfortunately, as has been observed, a number of questions were asked in a form which was arguably offensive and needlessly aggressive and accusatory. A decision by counsel to let a particular line of cross-examination run may be based on the wish to avoid creating an impression that counsel is being overly protective of his client or that he is trying to prevent the jury from hearing the full story or from getting a true picture. Although the cross-examination of the applicant may well have crossed the line between proper and improper from time to time, it was not so unrestrained and intemperate as to lead to the conclusion that the applicant did not have a fair trial.

Secret tape recording wrongly admitted into evidence

40 The reference to "the tape recording itself" is a reference to a recording which was made surreptitiously by the complainant's mother of a conversation between herself and the applicant during which the mother put to the applicant what she had been told by the complainant. The mother then gave this tape to the police and it became an exhibit at the trial. The tape was of poor quality. A transcript was prepared of it and those who prepared the transcript have used the word "inaudible" at many places. The tape was played to the jury but the written transcript did not go into evidence and the jury did not see it. There is no complaint about that. The applicant's complaint is that in the first place the tape recording was inadmissible, it having been obtained in contravention of the Surveillance Devices Act and secondly it is of such a poor quality that it does not truly represent the conversation that occurred.

41 As to the admissibility of the tape the trial Judge has a discretion to permit the recording of a private conversation to be adduced in evidence even although the recording was obtained unlawfully. Section 31(1) Surveillance Devices Act 1998. There was no debate at the second trial concerning the admissibility of the tape recording. Its admissibility had been challenged at the first trial but the Judge who presided at that trial ruled that the tape should be admitted. When it was produced by the prosecutor in the retrial no further objection was taken to its admissibility. As there was a discretion to admit it and as there were ample grounds on which the discretion could be exercised in favour of the admissibility of the tape and as there was no objection to its admissibility the applicant cannot now complain about it. His complaint that his counsel ought to have objected to the tape is met by the fact that the same objection was unsuccessful in the first trial and counsel no doubt considered that it would be spending idle time renewing the objection at the retrial.

42 As to the quality of the tape the applicant referred to R v Swaffield; Pavic v The Queen [1998] HCA 1; (1997) 192 CLR 159 in support of the contention that secretly obtained tape recordings which are unreliable should be excluded from evidence. A point of distinction between those two cases (heard and reported as a single case in the High Court) and the case before us is that in the former the secret recordings had been instigated by the police or by persons acting on their behalf, after the police had attempted unsuccessfully to obtain confessional statements at formal interviews. The facts of Swaffield's case were that Swaffield had been charged with arson and the declined to be formally interviewed by the police. An undercover police officer involved in another investigation had conversations with him and made certain misrepresentations to him calculated to induce him to make statements admitting his involvement in the arson. The conversations were recorded by the undercover officer without Swaffield's knowledge. Fresh charges were laid against him and at his trial the secretly obtained tape recording was tendered in evidence and Swaffield was convicted.

43 The facts of Pavic's case were that police were investigating the murder of one Astbury and interviewed Pavic about his disappearance. He refused to answer questions put to him and was allowed to go. Police then persuaded a friend of Pavic's to be fitted with a microphone to record a conversation with Pavic. In the conversation which was recorded Pavic made a number of inculpatory statements. At the trial at which this recording was tendered in evidence Pavic was convicted of murder.

44 The High Court held that the recording obtained by the undercover police officer in Swaffield's case should have been excluded. The majority (Toohey, Gaudron and Gummow JJ) held that the admissions were elicited by the police improperly in clear breach of Swaffield's right to silence.

45 In Pavic's case (supra) the Court was influenced by the fact that the admissions had been made not to an undercover police officer acting improperly but to a person whom Pavic knew and trusted as a friend. There was no element of police impropriety and the admissions were likely to be reliable having been made to a trusted associate.

46 However subtle the distinction between these two cases may seem the case for exercising a discretion in favour of admitting the tape recording obtained by the complainant's mother in this case is even stronger than in Pavic. She had not been put up to it by the police. It was entirely her own idea. The relationship between the applicant and the complainant's mother was that they had been "lovers" as the applicant put it and were still friends. There is nothing about the circumstances which is suggestive of any coercion or unfairness and the relationship between the applicant and the complainant's mother indicates that what he admitted to her concerning his conduct towards her daughter was likely to be true.

47 As to the quality of the tape, the applicant's submissions would have force if he was able to say that the inaudible parts of it might be exculpatory. That was not his submission. Once again it is common for tape recorded conversations to be played to a jury notwithstanding that the tape recording is of poor quality and contains inaudible passages. It is a question of balance and discretion and fairness. I am not persuaded that there was anything unfair to the applicant arising from the poor quality of the tape.

Unfairness due to manner of receiving complainant's evidence

48 As to the reference to "video evidence" the applicant submitted that the edited version of the video taped evidence given by the complainant at the first trial ought not to have been received at the second trial and that the complainant ought to have been required to give evidence in person.

49 The relevant statutory provision is s 106T(1) of the Evidence Act which provides:

"Evidence of an affected child recorded on video tape under s 106J, 106K or 106N in relation to a Schedule 7 proceeding is admissible in any hearing in relation to that proceeding to the same extent as if it were given orally in the hearing in accordance with the usual rules and practice of the Court concerned."

50 "Hearing" is defined in ss 5 to include a retrial or rehearing.

51 The video tape in question was made pursuant to s 106N. Hence, it was plainly admissible at this retrial.

52 The applicant submitted that the editing that was made of the tape in order to exclude all evidence relating to the incident of which he had been acquitted resulted in the omission of cross-examination which was favourable to the accused. As best I understood his contention the applicant feels prejudiced by the fact that background questioning of the complainant was omitted and that in consequence the jury did not get a true picture of the manner of living in the household, the context in which the incident took place nor a true insight into matters that may have affected their view of the complainant's general credibility.

53 Whilst such matters can be important in some cases especially where the defence case is that no such incident as alleged by the complainant occurred at all, they really were not very important in this case as I shall try to explain. The applicant did not deny that for a time he was alone in the computer room with the complainant, that the interaction between him and the complainant began with him massaging her shoulders and that after this at least one of his hands came into firm contact with at least one of her breasts and he did not deny that the contact was under her clothing. I am afraid I am not able to see how his defence, which essentially was that although he did squeeze one of the complainant's breasts he did not do so in an indecent manner, could be assisted by the kind of material which he alleges was missing from the video recording of the complainant's evidence. Anyway I am not persuaded that from the point of view of the defence case anything worthwhile was edited out of the tape. With two exceptions the applicant did not identify any particular part of the cross-examination which should have been left in but which was edited out. His submissions were expressed in very general terms. He said:

"Because there was two different complainants [at the first trial] and three different charges and two of the charges were with the same complainant that when bits and pieces got chopped out - my defence, he done a wonderful job at the first trial. He could have done better but it was really good, you know. Everybody understood where he was coming from and what the questions were and what the answers were and he painted a picture of the home, the background, the home environment. It painted a picture of the kids at school and what they were doing and it gives a 300% better interpretation to my original jury than what this second jury got.

This second jury only got half. They didn't even get half. They only got a quarter of the picture that my lawyer was trying to paint to them. My lawyer was bullied into accepting that edited version of the video evidence. He never got to see it. Nobody got to see this edited version."

"Yes, but there are bits and pieces that were chopped out of that video evidence that I reckon should have stayed there; that would have gone more to my credit. One of the examples is on page 413. That's about the only part in that entire transcript that mentioned the edited video where it mentions that [the complainant] had exposed herself to me and that was in relation to a flirting that she was getting up to, but all that was chopped out of that video - the edited video.

I am saying my lawyer didn't even get to see the edited video before it was presented to the Court. The prosecutor rocked in there at 9.00 in the morning, bundled in and that was the very first anybody ever got to see of it. The quality of the editing wasn't very good either because you will notice at the start of that video evidence, the first ten or so pages - first two or so questions were missing. I just reckon my lawyer could have done a much better job if the complainant was there and he could have put the whole case to the jury, considering they were the ones who was trying me."

Omission of evidence that complainant had "exposed" herself to applicant

55 I have referred to two exceptions to the generality of the applicant's submissions concerning the editing of the video tape. One of them is adverted to in those parts of his oral argument which are set out above, namely his reference to evidence at "page 413". As I understood the applicant's submission it was to the effect that the editing of the video tape precluded the jury from seeing and hearing material which would have revealed to the jury that the complainant "had exposed herself to me and that was in relation to a flirting that she was getting up to..."

56 It must here be explained that neither the edited nor the unedited video tape was placed before this Court. What we have is a typed transcript of the unedited tape (which appears to be accepted on both sides as accurate) with parts scored through. Again, it seems to be accepted on both sides that the scoring through accurately reflects the editing that was undertaken to the tape. On the face of this transcript it appears that the only passage missing from the retrial video which could possibly fall into the abovementioned category is an exchange which took place between defence counsel Mr Potter and the complainant when Mr Potter was suggesting to the complainant that she had made up her evidence concerning the "rubbish tip incident" - the allegation giving rise to the charge of which the applicant was eventually acquitted. The Crown case with respect to that incident was that whilst the applicant was driving to or from the municipal rubbish disposal area with the complainant in the passenger seat of his vehicle he unbuttoned her shirt, pulled her brassier above her breasts and fondled them. The applicant's case as to this allegation was that no such incident occurred but that the complainant had on that occasion flirtatiously undone the top buttons of her shirt and that the applicant chastised her for so doing. The exchange between Mr Potter and the complainant was as follows:

"If I put it to you that your breasts were never exposed in that car at all---?---Yes, they were.

I suggest to you that you had unbuttoned your shirt and opened it a bit and Colin told you not to be silly?---No. That's not what happened. He unbuttoned my shirt and he opened it and pulled my bra above my breasts and he started touching them.

When did he stop touching them?---When we had to turn around."

57 Assuming that it is this passage to which the applicant refers and which he claims should not have been "chopped out", all that need be said about it is that if it had been played to the jury it could not have had any but a highly prejudicial effect.

58 The second specific item said to have been unfairly edited relates to the cross-examination of the complainant concerning a dossier or folder which she had kept at one time and which apparently contained sexually explicit material taken from various magazines. The complainant had left the folder (referred to at the trial as "the pink folder") in the applicant's vehicle with the intention that he should have it. The folder was produced to the complainant during her cross-examination. The applicant told us that the complainant's immediate reaction to the production of the folder was not shown on the edited tape. He said it was one of dismay and extreme discomfort and he said it was unfair to him that this should have been "chopped out".

59 It is true that the typed transcript of the video tape shows that the following portion of the cross-examination was edited out:

"So he didn't come back [from the municipal rubbish tip] touching your breasts? Is that correct?---Yes. That is correct.

Okay. I'm going to show or ask Mr Orderly if he could give you something.

Would you take that to her please? I'm sorry about that."

60 What was taken to the complainant in the remote room was the pink folder and there is an indication in what immediately follows in the transcript that the complainant was indeed shocked to see it. The transcript records the following:

"THE COURT OFFICER: Excuse me, your Honour?

WISBEY DCJ: Yes?

THE COURT OFFICER: The young lady is asking me if she may have a break soon.

WISBEY DCJ: How much longer are you going to be?

POTTER MR: Sir, I might be another half an hour, possibly.

WISBEY DCJ: It is appropriate then that we do take a break. Madam Foreman, if you will now retire and we will resume at ten past twelve. Thank you."

61 There was then a 20 minutes break at the conclusion of which the jury returned and Mr Potter commenced to cross-examine the complainant on the folder.

62 As I have observed, the video tape was not placed before us but it may be accepted that the complainant probably did react in the manner described when confronted with her pink folder which she probably never expected to see again. But it is a long step from there to say that the jury would have been influenced by her reaction in a manner favourable to the applicant and unfavourable to her. The whole of the actual cross-examination of the complainant on the contents of the pink folder was played to the jury in full. The applicant obtained every forensic advantage that was to be obtained from the fact that the complainant had kept such a folder and had given it to the applicant, presumably for his enjoyment. I am not persuaded that the applicant's case was diminished or weakened by the editing from the tape of the vision of the complainant's initial reaction when the folder was produced to her. It is most likely that the jury would have seen her reaction as only what was to be expected of any young girl suddenly put in that situation.

Jury getting only "a quarter of the picture" through edited video of complainant's evidence

63 As to the extent of the editing, I think this has been greatly exaggerated by the applicant, if I may say so with due respect. Cross-examination of the complainant at the first trial ran to 30 pages of transcript. The cross-examination that was edited is broken up but runs to no more than four or five pages in the aggregate. It is only the cross-examination which relates specifically to the allegation of which the applicant was acquitted, which has been omitted. None of the omitted cross-examination is of the kind described by the applicant, that is, cross-examination which "painted a picture of the home, the background, the home environment... the kids at school and what they were doing...".

64 It seems to me that the ground of appeal really comes down to a complaint about this manner of adducing evidence. Evidence of a witness given by an edited version of a video recording can be less satisfactory and can create a different atmosphere than evidence given in person. However, the provisions of the Evidence Act which permit this course to be taken are there for a purpose, the purpose being to protect young children from being traumatised by the experience of giving evidence about sexual abuse in the formal atmosphere of a courtroom in the presence of the accused. There is of course a residual discretion in the Judge to require the child to give evidence in person and once again it is a matter of balance and fairness. The Judge who heard the evidence at the first trial considered in the exercise of his discretion that the complainant should not be required to give evidence again at the retrial. That direction was accepted by counsel for the applicant and there was no further challenge to the procedure being adopted. I am not persuaded that the applicant's complaints about the adoption of the procedure and the quality of the evidence which was presented to the jury by the adoption of the procedure can be accepted. What he is complaining about seems to me to be no more than an inevitable consequence of the procedure itself, which is authorised by statute.

Disclosure that there had been a previous trial

65 The reference to "the previous trial" in this ground of appeal represents a complaint that the fact that there had been a previous trial was mentioned to the jury by the prosecutor and the trial Judge. The background to this is that at the commencement of the trial and in the absence of the jury the prosecutor obtained the trial Judge's permission to inform the jury that there had been a previous trial. There was no opposition from the applicant's counsel and the Judge gave his permission. The reason why this was thought to be necessary is clear enough. It would have been quite obvious to the jury that the video recording of the complainant's evidence had been created during a previous trial. Furthermore, the exhibits which were to be tendered to the jury had exhibit markings from the previous trial. It was thought to be best to inform the jury of the fact that there had been an earlier trial which had not resulted in the applicant's conviction and to direct them that they must put that out of their mind and concentrate only on the evidence given at the retrial rather than leave them to simply wonder and to speculate. And so it was that at the end of his opening address to the jury Mr Mischin said:

"There is only one further matter that I need mention. It is likely to become pretty clear to you during the course of this trial that this matter has been before the courts before. Now, I mention it because you will have some exhibits tendered that will have exhibit markings from a previous hearing on them. [The complainant's] evidence has been recorded on a previous occasion and so the Judge will be a different Judge, the prosecutor will be different... You will see also that in the meantime the video of her evidence on that previous occasion has been edited. There will be a bit of jumping around in the course of the video where things have been taken out. That's to remove irrelevant material, things that were - you know, we have the opportunity to do that sort of thing, fortunately, when a matter comes before the Court again, so that you don't have to be troubled and have your time wasted with things that aren't relevant to what is being played out before you and what you have to consider.

Now, I mention that it has been before the Court before simply so that I can allay your worries and speculations about why it's coming up again. You will have noticed it from the exhibit markings and things like that. There are technical reasons why you are hearing this case again and why it's up before the Court again. You needn't trouble yourself about them. What you need to consider, ladies and gentlemen, is the evidence that is before you today and tomorrow and to assess that evidence in relation to the charge and come to your own independent view in accordance with your oath to consider the evidence and to come to a verdict in accordance with that evidence."

"We know that there have been previous proceedings with respect to this matter. Don't think about that. Don't speculate about what that's about, why we are here again. Those are unhelpful things and again you shouldn't be concerned about it."

67 In my opinion, this was an appropriate way of dealing with the difficulty that the jury were bound to discover at some stage that there had been a previous trial. It gave rise to no unfairness and did not cause a miscarriage of justice. I would say, in addition, that it is by no means self-evident that the fact that there has been an earlier trial which did not result in a conviction is of itself prejudicial to an accused.

"(c) The jury erred by (unfairly using the fact that I had lied to the police to assist its verdict)"

69 This in its terms is not a proper ground of appeal. The Court cannot possibly know what the jury had "used" to "assist its verdict". However, argument put forward by the applicant was really based upon the cases which hold that where the Crown relies on lies told by an accused to corroborate the evidence of the complainant and as probative of the accused's guilt the trial Judge should ordinarily direct the jury concerning the issue of lies and how the jury should approach that issue. In short, where the prosecution is presented as one in which the jury would be entitled to convict the accused because his guilt may be inferred from the lies which he told there must usually be a direction in accordance with the decision in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193. In this case there was no direction at all on the issue of lies. This was a considered decision by the Judge after discussion with counsel in the absence of the jury. The applicant says there should have been a "lies" direction and the Judge's failure to give one was unfair to him.

70 It is true that much was made by the prosecutor in his final address to the jury of the fact that the applicant had told lies. On the question of the accused's general credibility Mr Mischin said to the jury "He's capable of lying to the police" (a reference to the record of interview); and later "If you read the record of interview in that context, you can understand his answers to the police where he's prepared to lie and hedge around the issue". There are here and there in the prosecutor's address other references to the applicant's untruthfulness. However, it does not seem to me that the prosecutor was inviting the jury to treat any particular lies or the untruthfulness of the applicant generally as proof of his guilt. The submissions were confined to inviting the jury to disbelieve the applicant's evidence because he was not a truthful person. In short, the Crown was submitting that the lies told by the applicant were "credibility lies" not "probative lies": Mathias, "Lies Directions" [1995] New Zealand Law Journal 307. Zoneff v The Queen (2000) 200 CLR 234 per Kirby J at 258. In the latter case it was held that where the Crown does not rely on the answers of an accused to found a submission that he had lied out of a consciousness of guilt it is both unnecessary and undesirable that a direction of the kind with which Edwards v The Queen was concerned be given. In this respect the law has moved on since the cases to which the applicant referred us were decided.

71 As to whether a trial Judge should give a special direction to the jury where the Crown seeks to use lies told by an accused in order to impeach the accused's general credibility, there is no rule that he must do so but it may sometimes be necessary to do so. The question is whether it became necessary for the trial Judge to do so in this case. That seems to me to depend upon whether there was a risk of a misunderstanding on the part of the jury about the significance of the lies which the Crown alleged had been told by the applicant. In my opinion, there was no real risk of any misunderstanding. It was a case of oath on oath and the whole tenor of the cross-examination of the applicant and of the prosecutor's submissions to the jury was that they should not accept the applicant's evidence where it conflicted with that of the complainant because the applicant was a person who told lies. Whilst it was open to the trial Judge to give a general direction on lies his decision not to do so did not cause this trial to miscarry.

"(f) The learned trial Judge made an error by (not directing the jury to return a not guilty verdict due to inconsistencies in the complainant's testimony)."

73 This is not a proper ground of appeal. A trial Judge is not obliged to take a case away from a jury and indeed is not authorised to do so merely because there are inconsistencies, even serious inconsistencies, in a complainant's evidence. If the purport of this ground of appeal is that the verdict of the jury was unsafe and unsatisfactory on the ground of inconsistencies in the complainant's evidence I would not uphold it. The edited transcript of the complainant's evidence contains clear and credible allegations from which the complainant did not resile under cross-examination. This together with the admissions made by the applicant in the tape recording of the conversation between the applicant and the complainant's mother and the applicant's own evidence as to the events in the computer room provided a sufficient basis to support the guilty verdict.

74 I would grant leave to appeal against the conviction but dismiss the appeal.

Application for leave to appeal against sentence

75 The applicant also seeks leave to appeal against his sentence and he has advanced six grounds of appeal but they come down to a contention that a sentence of 2 years' imprisonment with parole for a single incident of fondling the breasts of a 12 year old female was manifestly excessive and substantially greater than sentences usually imposed for similar offences.

76 It is trite that sentences should not be disproportionate to the criminality involved in the offending conduct. The main matters that are to be weighed in judging the level of criminality involved in this offence would seem to be the following. The applicant was aged 45 years. He was in a position of trust with respect to the complainant arising out of the trust placed in him by the complainant's mother to be a guiding influence and arising from his standing as the complainant's employer. The offence was committed in breach of that trust. The complainant was of the age of 12 and the applicant knew that she was going through a difficult if not dysfunctional period in her growing up. It was this that had prompted the mother to ask for his assistance. On his own evidence he observed that her sexuality was developing and that she lacked the capacity to deal with that. The applicant's own evidence is that the complainant's behaviour was sexually precocious and that she displayed a rather unusual level of interest in sexual matters. To any right thinking person of the age and maturity of the applicant it must have been obvious that the complainant was in need of guidance and support. The complainant was vulnerable in other respects too in her psychological makeup. The applicant knew of these problems also: that the complainant was given to morbid thinking, fantasy and thoughts of self-harm. Instead of providing guidance, support and direction there was evidence that the applicant often engaged in inappropriate conversations with the complainant about sex and sexual matters personal to the complainant. He said these conversations were always started by her. She says they were always started by him. However that may be it is difficult to resist the inference, on the whole of the evidence, that the offence in question was but the culmination of at least some preparatory groundwork on the applicant's part and was not simply a momentary aberration. The applicant has not shown any remorse or contrition. There has never been any acceptance of guilt, which is the first step to rehabilitation.

77 As to the applicant's personal circumstances they do not justify extending to him any special leniency. Although it is true, as he submitted to us, that this is his first offence of this kind and he has not been guilty of any serious offending for more than a decade he cannot be regarded as a first offender.

78 To determine whether a sentence is excessive it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type and the personal circumstances of the offender. R v Morse (1979) 23 SASR 98; Thompson v The Queen (1993) 8 WAR 387 at 391 - 392.

79 As to the question of penalty in this case, the maximum is 10 years' imprisonment. The maximum penalty is of course only to be imposed in a worst case of its kind and this offence is certainly not in that category.

80 The applicant has drawn to our attention a number of cases which he said supported his submission that his sentence is manifestly excessive. Some of these were decided in other jurisdictions where different sentencing laws apply. Others involve a quite different type of sexual offence. Some of the cases (such as, for example, R v Bekker (2001) 120 A Crim R 170) involved immediate pleas of guilty, co-operation, remorse and contrition.

81 One or two of the cases referred to by the applicant are however helpful and they together with other cases which have been decided in this and other courts would indicate that notwithstanding the bad features of the case a sentence of 2 years' imprisonment is too much for this offence. The pattern of sentencing would suggest that for a single incident of indecent dealing involving touching the breasts of a young girl, non-custodial sentences are quite common and that custodial penalties, when imposed, range from as little as 9 months to 18 months at most. Sentences which are at the highest end of this range usually involve fondling of genitalia, which the courts regard more seriously. I shall mention some of the cases.

82 In the case of "CA" v The Queen [2000] WASCA 176 a father had unlawful carnal knowledge of his daughter and had indecently dealt with her on three occasions when she was aged between 6 and 12 years. The facts of each offence are stated only very briefly in the judgments of Kennedy, Pidgeon and Wallwork JJ but one of the offences was of touching the girl's "breast" when she was 11 or 12. No details are given. Another offence was of indecent dealing involving pulling down her underpants and exposing her vagina. A sentence of 12 months' imprisonment was imposed for the touching and 18 months' imprisonment was imposed for pulling her pants down.

83 In the case of Humes v The Queen, unreported; CCA SCt of WA; Library No 940687; 7 December 1994 a sentence of 1 year each was handed down with respect to two incidents of indecent dealing by a 34 year old man of a 17 year old girl firstly on a train and later at a railway terminal. Once of these offences involved the offender rubbing his face against the face and lips and neck of the complainant and the other involved fondling her breasts over her clothes. In the case of R v Lonesbrough, unreported; CCA SCt of WA; Library No 950421; 15 August 1995 there were three offences of indecent dealing of a girl aged 14 years. One of these offences involve rubbing the complainant's inner thigh and another involved feeling her breasts over her clothing "for a couple of minutes". The sentencing Judge imposed fines of $1,500 in relation to each of the offences. A Crown appeal against the inadequacy of the sentences was dismissed. In the case of Goodvinn v The Queen, unreported; CCA SCt of WA; Library No 950358; 2 June 1995 the offender was sentenced to 18 months' imprisonment for indecent dealing involving fondling the penis of a male child aged about 6. In the case of Wright v The Queen, unreported; CCA SCt of WA; Library No 920060; 3 February 1992 two concurrent sentences of 10 months' imprisonment were imposed on a 28 year old man of comparatively good record for indecently dealing with an intellectually handicapped woman of approximately the same age by fondling her breasts. In the case of Marria v The Queen, unreported; CCA SCt of WA; Library No 960582; 1 October 1996 a sentence of 9 months' imprisonment on a 60 year old male for indecent dealing of a 15 year old girl by briefly touching her breasts over her clothing was set aside and a fine of $3,500 was substituted. In the case of Biggs v The Queen, unreported; CCA SCt of WA; Library No 960657; 11 November 1996 a man in his late fifties with a good record was fined $10,000 for a single offence of indecent dealing of his step-daughter aged 13 by placing his hands underneath her clothes and touching her bare breasts. In the case of Hamilton v The Queen, unreported; CCA SCt of WA; Library No 970082, 4 March 1997 concurrent sentences of 12 months' imprisonment were imposed on a school teacher for offences of indecent dealing one of which involved touching the breast of an 8 year old child over her underclothing.

84 I would also refer to the New South Wales case of R v Harkin (1989) 38 A Crim R 296 in which the offender was convicted of indecent assault on two girls aged 11. Each girl had a turn at steering a car while sitting on the appellant's lap, during which the appellant fondled the particular girl's breasts under her clothing. The offender was of good character. He was sentenced to 15 months' imprisonment on each count, the sentences to be served concurrently.

85 I would also refer to two English cases which I have taken from "Current Sentencing Practice" (Sweet and Maxwell) Vol 3 par B4-63A35 and par B4-63C12. In the first of these cases, R v Stapley [2001] 1 Cr App Rep [S] 88, the offender pleaded guilty to indecently assaulting a 13 year old girl with whom he was acquainted. He had persuaded her to enter his house with another girl, showed them indecent photographs, undid the blouse of the 13 year old girl and fondled her breasts. When interviewed he made immediate admissions and gave full co-operation. He was sentenced to 2 years' imprisonment which on appeal was reduced to 1 year's imprisonment. The second case is R v Furlong [1992] 13 Cr App Rep [S] 112. The offender approached a 15 year old school girl who was waiting for a bus and stood behind her: when she was getting onto the bus he grabbed her on the bottom once with one hand, under her blazer but over her skirt. He was sentenced to 9 months' imprisonment, upheld on appeal.

86 We are, of course, mainly concerned with the pattern of sentencing in this State but, all in all, these cases show that a sentence of 2 years for a single incident involving fondling the breasts of a 12 year old girl is much higher than is usually given.

87 I would set aside the sentence of 2 years' imprisonment and substitute a sentence of 15 months' imprisonment which I think sufficiently recognises the bad features of the case but also has regard for the pattern of sentences customarily given.

89 The applicant was reluctant to accept that he was in a position of trust with respect to the complainant, but he plainly was. The mother was content to allow the applicant to be alone with her daughter and even to massage her neck and shoulders while alone with her. Under the circumstances in which the complainant had come to live with her mother, the complainant was entitled to regard the applicant as a senior male presence who was to be trusted. The complainant was still in primary school and she was encouraged to do paid work as the applicant's "offsider" as he described her. She was encouraged to regard him not only as her mother's work colleague and friend but as the complainant's boss. From every point of view the applicant was given and did assume the role of a person in whom the complainant could confide and by whom she was to be guided and it was in that context that the opportunity to commit the offence arose and it was those circumstances that enabled him to take advantage of the opportunity.

90 Secondly, the applicant complained that the Judge approached sentencing in the mistaken view that the applicant's decision to maintain a plea of not guilty caused the complainant the ordeal of giving her evidence twice when, in fact, she gave her evidence once only. The Judge was fully aware that her evidence at the trial over which he presided (the retrial) was received by way of an edited tape of the evidence she had given at the original trial. His reference to the complainant having to give her evidence twice is to be understood as a reference to the earlier abortive attempts to give pre-recorded evidence at Geraldton. Whilst it is true that, contrary to the Judge's belief, the complainant was not called on actually to give evidence at the recording session she would have had to endure the stressful experience of preparing to do so and there is evidence which has been placed before the Court indicating that she was very anxious about it. Be that as it may, the complete answer to the ground of appeal is that the Judge made it very clear to the applicant in his sentencing remarks that he completely disregarded the fact that the complainant had to endure a double ordeal in consequence of the equipment failure. The Judge said:

"You have put the complainant through the trauma of a trial. I hasten to say that the fact that she had to give her evidence twice _(sic)_due to a technical difficulty is clearly nothing to do with you and I don't say anything about that and I don't see any particular significance in the application to have her give her evidence again. I think that's a tactical matter for lawyers to consider and I don't think that's a matter that should be visited on you."

91 I would grant leave to appeal against the sentence, allow the appeal, set aside the sentence of 2 years' imprisonment and substitute therefore a

sentence of 15 months' imprisonment. I would not interfere with the order for parole eligibility.

92 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Anderson J. I agree with them and have nothing to add.