Criminal law - Appeals against conviction - Sexual offences committed against children - Whether the learned trial judge erred in determining that a complainant could give evidence pursuant to s 106C of the Evidence Act 1906 (WA) - Whether a miscarriage of justice occasioned by a complainant's failure to complete cross-examination - Whether convictions unreasonable or unsupported by the evidence

Criminal law - Applications for leave to appeal against sentence - Sexual offences committed against children - Total effective sentences of 7 years' imprisonment and 10 years 6 months' imprisonment - Express error - Manifest excess - Totality

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

Evidence Act 1906 (WA), s 97(1), s 106B

1. Leave to appeal on all proposed grounds refused

1. Leave to appeal on proposed grounds 2 and 3 granted

ARK v The State of Western Australia [2014] WASCA 45

B v The Queen [2002] WASCA 236

EPD v The State of Western Australia [2011] WASCA 264

Giglia v The State of Western Australia [2010] WASCA 9

GWD v The State of Western Australia [2010] WASCA 206

JS v The State of Western Australia [2012] WASCA 198

Lee v The Queen [1998] HCA 60; (1998) 195 CLR 594

M v The State of Western Australia [2006] WASCA 256

M v The State of Western Australia [2007] WASCA 238

M v The State of Western Australia [2010] WASCA 77

Mack v The State of Western Australia [2014] WASCA 207

MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348

MAS v The State of Western Australia [2012] WASCA 36

MPD v The State of Western Australia [2008] WASCA 57

Parker v The Queen (Unreported, WASC, Library No 950259, 26 May 1995)

R v 'G' [2001] WASCA 160

R v Hart (1999) 135 CCC (3d) 377

R v Lawless; R v Basford (1994) 98 Cr App R 342

R v Pipe [2014] EWCA Crim 2570; [2015] Crim LR 304

R v Stretton; R v McCallion (1988) 86 Cr App R 7

R v Wyatt [1990] Crim LR 343

R v Yu (2002) 171 CCC (3d) 90

RDC v The State of Western Australia [2012] WASCA 16

Roffey v The State of Western Australia [2007] WASCA 246

Stack v The State of Western Australia [2004] WASCA 300; (2004) 29 WAR 526

The State of Western Australia v FJG [2012] WASCA 206

The State of Western Australia v JPR [2004] WASCA 183

The State of Western Australia v Prince [2011] WASCA 22

TJD v The State of Western Australia [2004] WASCA 310

Truscott v The State of Western Australia [2007] WASCA 62

Wakeley v The Queen [1990] HCA 23; (1990) 64 ALJR 321

Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365

1 REASONS OF THE COURT: Each of Ms O and Mr B have appealed against their convictions and sentences.

2 The appellants were charged on an indictment in the District Court with 13 offences of a sexual nature which were alleged to have been committed on unknown dates between 27 October 2011 and 27 April 2012. The alleged victims of the offences were two of Ms O's children: a boy, W, born in June 2004, and a girl, M, born in February 2008.

3 On 24 April 2015, after a six-day trial before O'Neal DCJ and a jury, the appellants were found guilty of a number of offences. On 26 June 2015, they were sentenced to terms of immediate imprisonment.

4 The details of the charges, the verdicts and the individual sentences that were imposed are as follows:

Indecent dealing of a child under 13 years (W), by procuring W to touch Ms O's vagina

Indecent dealing of a child under 13 years (W), by Mr B penetrating Ms O's anus with a fork in W's presence

Sexual penetration of a child under 13 years (W), by penetrating W's anus with a knife

Sexual penetration of a child under 13 years (W), by penetrating W's anus with a spoon

Not guilty; guilty of the alternative charge of indecent dealing (s 320(4) CC)

Sexual penetration of a child under 13 years (W), by penetrating W's anus with a fork

Not guilty; guilty of the alternative charge of indecent dealing (s 320(4) CC)[3]

Indecent dealing of a child under 13 years (W), by procuring W to touch Ms O's vagina

Sexual penetration of a child under 13 years (W), by engaging in fellatio

Sexual penetration of a child under 13 years (W), by introducing his penis into W's mouth

Sexual penetration of a child under 13 years (W), by penetrating W's anus with a spanner

Not guilty; guilty of the alternative charge of indecent dealing (s 320(4) CC)

Indecent dealing of a child under 13 years (W), by rubbing his body against W

Indecent dealing of a child under 13 years (W), by procuring W to rub his penis

Indecent dealing of a child under 13 years (M), by placing objects on her vagina

Indecent dealing with a child under 13 years (M), by asking M to kiss his penis

5 To summarise, Ms O was convicted of one count of sexual penetration of a child under the age of 13 years (count 3) and four counts of indecent dealing of a child under the age of 13 years (counts 4, 5, 6 and 12). His Honour ordered that the sentences imposed on each of counts 6 and 12 be served cumulatively. Thus the total effective sentence imposed on her was 7 years' imprisonment. Ms O was made eligible for parole and the sentences were ordered to commence on 5 April 2015 (ts 753 - 755).

6 Mr B was convicted of two counts of sexual penetration of a child under the age of 13 years (counts 7 and 8) and six counts of indecent dealing of a child under the age of 13 years (counts 6, 9, 10, 11, 12 and 13). His Honour ordered that the sentences on counts 8, 9 and 13 be served cumulatively. Thus the total effective sentence imposed on him was 10 years 6 months' imprisonment. Mr B was made eligible for parole and the sentences were ordered to commence on 13 August 2014[5] (ts 754, 756).

7 Later, we will set out in detail the evidence adduced at trial. For present purposes, it is enough to set out in very broad terms the State and defence cases.

8 Ms O was in a relationship with a man named Mr M for almost 10 years. They had four children, two of whom were W and S. By the end of 2011, Ms O and Mr M were no longer intimate partners, although they remained on friendly terms (ts 740). Towards the end of 2011, Ms O and Mr B began a sexual relationship. It was during the course of this relationship that the offences were allegedly committed.

9 In view of the verdicts of not guilty, it is unnecessary to describe the facts with respect to counts 1 and 2.

10 Counts 2 to 11 concern W and may be summarised as follows:

(a) Count 3 was an allegation that Ms O inserted the handle of a metal knife in W's bottom.

(b) Count 4 was an allegation that Ms O inserted a spoon 'in the middle of [W's] bottom'.

(c) Count 5 was an allegation that Ms O inserted a fork 'in the middle of [W's] bottom' causing it to bleed.

(d) Count 6 was an allegation that Mr B procured W to touch Ms O's vagina. According to W, as he did so, Mr B told him that he was 'doing a really good job'.

(e) Count 7 was an allegation that Mr B told W to 'put [W's] doodle [penis] in [Mr B's] mouth'. W said that Ms O saw what was happening and pulled Mr B away.

(f) Count 8 was an allegation that Mr B 'put his willy in [W's] mouth' and moved it backwards and forwards 'heaps and heaps of times' in the hallway of the house. W said that the incident only stopped when Ms O pulled Mr B away.

(g) Count 9 was an allegation that Mr B rubbed a spanner up and down the outside of W's clothing, causing 'the middle of W's bottom' to bleed when they were in the shed at Ms O's house.

(h) Count 10 was an allegation that W and Mr B were naked and Mr B rubbed W's 'willy' and then rubbed his body against W's body.

(i) Count 11 was an allegation that Mr B 'yanked' W onto a bed, pulled down his pants and made W 'rub his willy'. W said that Ms O saw what was happening and pulled him away from Mr B.

(a) Count 12 was an allegation that Mr B put various objects on M's 'flossie' (vagina). M said that Mr B placed a broom, a 'scary doll' and a fork on her 'flossie'. M also said that Ms O put a knife and spoon on her 'flossie'.

(b) Count 13 was an allegation that Mr B asked M to kiss his penis while they were in the backyard of Ms O's house.

12 The effect of W's evidence was that the alleged offences were not isolated acts, and that both Ms O and Mr B committed numerous acts of sexual abuse upon him.

13 Ms O and Mr B each gave evidence in their defence. Each testified that they had not engaged in any sexual activity, either alone or together, with M and W.

The appellants' grounds of appeals against conviction Ms O's grounds of appeal against conviction

14 Ms O has two grounds of appeal against conviction. They are as follows:

Ground 1

There was a miscarriage of justice when, over objection, the presiding Judge determined that there was a factual foundation for his opinion that [M] could give an intelligible account of events which she observed or experienced pursuant to Section 106C of The Evidence Act;

Particulars

1.1 [M] answered a number of His Honour's questions incorrectly;

1.2 [M's] explanation as to why she was at Court to testify lacked any insight or detail;

1.3 [M] did not know the difference between a truth and a lie;

1.4 His Honour's questions, taken either individually or as a whole, did not reveal [M] could give an intelligible account of the relevant events.

Ground 2

There was a miscarriage of justice when the learned trial Judge failed to uphold an application by [Ms O] to exclude that portion of the evidence from [M's] pre-recording that related to Count 12 on the Indictment as [Ms O's counsel] had been unable to cross-examine her on it.

15 Leave to appeal has been granted on ground 1. The question of leave to appeal on proposed ground 2 was referred to the hearing of the appeal.

16 As amended at the hearing of the appeal, Mr B's grounds of appeal against conviction are as follows:

1. The learned trial Judge erred in determining that [M] could give an intelligible account of events which she observed or experienced pursuant to s 106 of the Evidence Act 1906 (WA).

(i) [M] answered a number of questions incorrectly.

(ii) Her explanation as to why she was there to testify lacked any detail.

(iii) [M] did not know the difference between the truth and a lie.

1. The learned trial judge erred in failing to uphold an application made by [Ms O's counsel] for a permanent stay in relation to count[s] 12 and 13.
2. The verdicts of the jury was [sic] unreasonable and cannot be supported having regard to the evidence.

Particulars

(i) [M's] evidence in relation to the convictions on count[s] 12 and 13 was inconsistent and unreliable given:

1. She denied ever having anything naughty being done to her with [a] knife, fork or scary doll;
2. She denied [Mr B] ever did anything to her with a broom; and

1. She denied ever having seen, talked about or kissed the [Mr B's] penis.

(ii) There was no other evidence lead [sic] by the prosecution that could corroborate her evidence and leave it open for the jury to reach a verdict of guilty beyond reasonable doubt.

(iii) The evidence of [W] was inconsistent and unreliable and unsupported by any other evidence and insufficient for the jury to find the [Mr B] guilty beyond reasonable doubt in the counts relating to [W].

17 Leave to appeal has been granted on ground 1. The question of leave to appeal on proposed grounds 2 and 3 was referred to the hearing of the appeal.

18 Ground 1 in each of Ms O's and Mr B's appeals against conviction, in substance, raise the same issue: was it open to permit M to give evidence pursuant to s 106C of the Evidence Act 1906 (WA)?

19 Proposed ground 2 in each of Ms O's and Mr B's appeals against conviction, although expressed differently, in substance, raise the issue of whether the incomplete cross-examination of M gave rise to a miscarriage of justice.

20 Although proposed ground 3 in Mr B's amended grounds of appeal against conviction focuses on counts 12 and 13 (being the offences committed against M), the court was informed at the hearing of the appeal that he alleges that all of the convictions against him were unreasonable and cannot be supported by the evidence; that is, the proposed ground extends also to the offences committed against W (appeal ts 3 - 4).

Ground 1 of the appellants' appeals against conviction - was it open to permit M to give evidence pursuant to s 106C of the Evidence Act? M's pre-recorded evidence: the relevant background

21 M participated in a visually-recorded interview with officers of the Western Australian Police's Child Assessment and Interview Team in Perth on 26 September 2013.[6] The interview was brief, but in it M made the allegations the subject of counts 12 and 13.

22 M's evidence was pre-recorded in proceedings conducted by Derrick DCJ, commencing on 7 April 2015.

23 The pre-recording was listed for three days for the purpose of pre-recording the evidence of M and W, as well as their brother, S. As the proceedings regarding S were ultimately discontinued (ts 289), nothing more need be said about him.

24 The first witness whose evidence was pre-recorded was M. Unfortunately, the commencement of her evidence was delayed by last-minute objections proposed by counsel for Ms O. When M commenced her evidence, it was 11.50 am (ts 49 - 50). By then, she had been kept waiting for almost two hours, and probably longer, as child witnesses are usually requested to arrive at court at 9.00 am in anticipation of the usual 10.00 am start of proceedings.

25 As M was a child under the age of 12 years, his Honour had to decide whether M was competent to give evidence on oath or make an affirmation and, if she was not, whether she was able to give evidence without taking an oath or affirmation: s 106B and s 106C of the Evidence Act.

26 Derrick DCJ questioned M. The relevant exchange may be set out in full:

DERRICK DCJ: All right. Thank you. Please take a seat.

All right. Now, [M], can I ask you a - I'm going to ask you a few questions, you don't mind me calling you [M], do you?

[M]: Yeah, I don't mind.

DERRICK DCJ: That's okay? It's okay if I call you [M]? All right. So how old are you at the moment, [M]?

[M]: Seven.

DERRICK DCJ: You're seven, and do you know when - when is your birthday?

[M]: I don't know.

DERRICK DCJ: You don't know. All right. Do you have any brothers or sisters, [M]?

[M]: Yes.

DERRICK DCJ: How many brothers do you have?

[M]: Five.

DERRICK DCJ: Five, so you have quite a few brothers, all right. And how many sisters do you have?

[M]: Three.

DERRICK DCJ: Three sisters, all right. Can you tell me what your sisters' names are?

[M]: [T], [C] and Aunty [J].

DERRICK DCJ: [T], [C] and Aunty [J]. So you - Aunty [J] is one of your sisters, is she?

[M]: Yeah.

DERRICK DCJ: Okay. Now, do you go to school at the moment, [M]?

[M]: Yes.

DERRICK DCJ: What year are you in at school?

[M]: Year 2.

DERRICK DCJ: You're in year 2; all right. What is the name of your teacher?

[M]: Ms O'Brien (?).

DERRICK DCJ: Ms O'Brien, okay, and do you have any favourite subjects at school that you like doing?

[M]: Yes.

DERRICK DCJ: What are they? What's your favourite subject at school?

[M]: Music.

DERRICK DCJ: Music, all right, and do you have any other subjects you like doing?

[M]: Art.

DERRICK DCJ: Art, okay.

[M]: Free time.

DERRICK DCJ: And free time, all right. So you like doing music, you like doing art and you like having free time at school, that's good. Can I ask you also do you like watching television?

[M]: Yes.

DERRICK DCJ: Do you have any favourite television programs?

[M]: Yes.

DERRICK DCJ: What's your favourite television program?

[M]: Ninja Turtles and Frozen.

DERRICK DCJ: So Ninja Turtles and Frozen. Is Frozen - is that a TV program or is that a film, a movie?

[M]: A movie.

DERRICK DCJ: It's a movie? Okay. [M], do you know the difference between telling the truth and telling a lie?

[M]: What did he say?

DERRICK DCJ: Look, I'll ask you a question again. You can - do you know the - do you know the difference between telling the truth and telling a lie?

[M]: No.

DERRICK DCJ: No? Okay. If I said to you that one of your favourite subjects at school is maths, would that be the truth, or would that be a lie?

[M]: I think a truth.

DERRICK DCJ: You think the truth? What about if I said to you that one of your favourite TV shows is Ninja Turtles. Would that be the truth, or would that be a lie?

[M]: Truth.

DERRICK DCJ: Okay. Now, [M], have you come to court to speak about something today?

[M]: Yes.

DERRICK DCJ: What have you come to court to speak about?

[M]: To speak about [Ms O] and [Mr B].

DERRICK DCJ: Right. And is it important for you to tell the truth today?

[M]: Yes.

DERRICK DCJ: Why is that? Why is it important for you to tell the truth today?

[M]: Because I might get in trouble.

DERRICK DCJ: Yes. All right. Right. [M], that's all the questions I have for you. If you can just sit there for one moment (ts 51 - 53).

27 After Derrick DCJ had completed the inquiry, he asked counsel whether any of them wished to be heard on M's ability to give unsworn evidence. The prosecutor and counsel for Mr B each said they did not wish to be heard on the issue (ts 53, 55). Counsel for Ms O submitted that M should not be permitted to give unsworn evidence because she was unable to give any intelligible account of events (ts 54 - 55). He referred to 'a number of errors' M allegedly made in the inquiry (ts 54). He submitted that the errors were:

(a) M referred to 'Aunty [J]' as being her sister when, in fact, 'Aunty [J]' is M's foster mother, Ms MD (ts 54 - 55).

(b) M stated she has five brothers when she only has three (ts 55).

(c) When asked about her favourite school subjects, M referred to 'music', 'art' and 'free time'; however later, when asked if it would be the truth or a lie if it was said that one of her favourite subjects at school was 'maths', M replied 'I think a truth'. In other words, M had erred in replying this way in circumstances where she had not earlier identified 'maths' as a favourite subject at school (ts 52 - 53, 55).

(d) When his Honour asked M what her favourite television programs were, she answered 'Ninja Turtles and Frozen', but then acknowledged that Frozen was a movie rather than a television program (ts 55).

28 Derrick DCJ rejected counsel's submission and ruled that M was able to give an intelligible account of events which she observed or experienced and could give unsworn evidence. He gave brief reasons in these terms (ts 55 and 56):

DERRICK DCJ: I'm satisfied, having questioned the witness, and having listened to her answers, that she is able to give an intelligible account of events which she observed or experienced. Accepting on face value what [counsel for Ms O] says about the errors made, those types of errors are matters that have led me to conclude that the child should not give sworn or affirmed evidence.

But despite what is said to be these errors, having watched and listened to her, and having listened to all the answers that she gave to my questions I am, as I've said, satisfied that she can give an intelligible account of events. So I rule that she can give evidence, but the evidence will not be given under oath or affirmation.

So when I ask for the camera to be switched back on I will tell her, [the prosecutor], that you have some questions for her, and the camera will be moved onto you.

29 Section 97(1) of the Evidence Act relevantly provides that every witness, other than a witness the evidence of whom may be received pursuant to that Act though not given on oath, is required to give evidence on oath. Section 106B and s 106C of the Evidence Act set out the circumstances in which a child under the age of 12 years may give evidence. Relevantly, those sections state:

106B. Children under 12 may give sworn evidence

(1) A child who is under the age of 12 years may in any proceeding, if the child is competent under subsection (3), give evidence on oath or after making an affirmation.

(3) A person referred to in subsection (1) ... is competent to take an oath or make an affirmation if in the opinion of the court or person acting judicially the person understands that -

(a) the giving of evidence is a serious matter; and

(b) he or she in giving evidence has an obligation to tell the truth.

106C. Child under 12 ... witness may give unsworn evidence

A person referred to in section 106B(1) ... who is not competent to give evidence under section 106B(3) may give evidence without taking an oath or making an affirmation if the court or person acting judicially forms the opinion, before the evidence is given, that the person is able to give an intelligible account of events which he or she has observed or experienced.

30 The legislative history with respect to these sections was set out in GWD v The State of Western Australia [2010] WASCA 206 [35] - [37] (Mazza J). It is unnecessary to repeat what was written in that case.

31 The submissions of Ms O and Mr B in support of ground 1 were not materially different. It was said that Derrick DCJ could not reasonably have formed the view that M could give an intelligible account of events which she observed or experienced because:

(a) M answered a number of his Honour's questions incorrectly. The incorrect answers were those identified in the primary proceedings plus M's inability to give her date of birth;

(b) M's explanation as to why she was at court to testify lacked detail; and

(c) M did not know the difference between the truth and a lie.

32 Ms O relied on a further point, being that Derrick DCJ's inquiry as a whole did not reveal that M could give an intelligible account of the relevant events.

33 In our opinion, none of the so-called errors support the contention that M was unable to give an intelligible account of events.

34 The critical question concerns the intelligibility, rather than the accuracy or reliability, of the account which the child is able to give. The circumstance that the child gives answers which may be regarded as incorrect does not preclude a judge from being satisfied that the child is able to give an intelligible account of events. The reliability of the account of events which the child gives is a matter for assessment by the jury after the evidence is received. The trial judge was not required to satisfy himself of the reliability of M's account before her evidence could be admitted. It was sufficient that the judge was satisfied that M was able to give an intelligible account of events.

35 In any event, as to M's inability to give her date of birth, it will be recalled that when M was asked by Derrick DCJ '... when is your birthday?' she replied 'I don't know'. The fact that M did not know the date of her birthday does not mean that she could not give an intelligible account of what she had observed or experienced. In any event, M correctly informed Derrick DCJ that she was 7 years old.

36 Although 'Aunty [J]' (Ms MD) was not her sister, she had been, by the time of the pre-recording, M's foster mother for about 3 years. Thus, from M's perspective, and bearing in mind her age, she may have regarded 'Aunty [J]' (Ms MD) as a putative sister. It cannot be overlooked that M was being cared for by 'Aunty [J]' (Ms MD) against a background of having been raised in a dysfunctional family unit. In these circumstances, M's reference to 'Aunty [J]' (Ms MD) as her sister does not undermine her ability to give an intelligible account of events.

37 While it is true that M has three biological brothers and not five, it is understandable that she would give such an answer given that, at the time of the pre-recording, she was residing with a number of other boys, including Ms MD's twin sons, J and J (ts 447). M's answer is understandable.

38 As to the alleged error concerning M's favourite subject at school, there is no relevant inconsistency between M saying that music was her favourite subject and her confirming, in effect, that maths was one of her favourite subjects. M could have a number of favourite subjects, with music being the favourite subject.

39 There is no merit in the allegation that his Honour should have sought more detail from M as to what it was 'about [Ms O] and [Mr B]' that M had come to court to speak about. The question asked by Derrick DCJ was open-ended and did not seek to suggest any answer. His Honour was inquiring in a general way if M knew why she had come to the court. M's answer was correct and required no more elaboration. An inquiry such as that undertaken by Derrick DCJ is not a preview of the evidence the witness might give. The fact that M was aware that she had come to court to speak about Ms O and Mr B suggested that she was able to give an intelligible account of events.

40 There is also no merit in the allegation that M did not know the difference between telling the truth and telling a lie. It might be thought that the question involves abstract concepts difficult for some 7-year-old children to articulate. In any event, the subsequent exchange between Derrick DCJ and M - during which his Honour asked her questions designed to test whether she had some appreciation of what was the truth and what was a lie - indicated that M did in fact have some appreciation of the difference, and that it was important to tell the truth in court. In any event, the ability of a witness to give an intelligible account of events is not conditioned as a matter of logic upon that witness knowing or being able to articulate the difference between telling the truth and telling a lie.

41 Derrick DCJ considered as a whole the matters raised by Ms O's counsel. They, in part, informed his Honour's conclusion that M's evidence should not be given on oath or affirmation. Based on M's answers, it was open to him to conclude that M was able to give an intelligible account of events she experienced or observed as required by s 106C of the Evidence Act. His Honour did not err in so deciding.

42 It is clear from what we have said that there is no merit in ground 1 in each appeal.

Proposed ground 2 of the appellants' appeals against conviction - did the incomplete cross-examination of M give rise to a miscarriage of justice? M's examination-in-chief

44 M's evidence began at approximately 12.05 pm on 7 April 2015 (ts 56). Her examination-in-chief comprised, in substance, her visually-recorded interview which she said she viewed with the prosecutor 'last Monday' (ts 57).

Counsel for Mr B's cross-examination of M

45 By arrangement between defence counsel, and with the permission of Derrick DCJ, Mr Sutherland, counsel for Mr B, cross-examined first (ts 57).

46 He cross-examined M between 12.10 pm and approximately 12.30 pm, at which time his Honour asked M if she wanted a short break. M said she did and the proceedings were adjourned to 12.50 pm (ts 59 - 66). Proceedings resumed at approximately 12.53 pm. Derrick DCJ advised counsel that the court officer was having difficulty getting M back into the remote witness room. His Honour adjourned the proceedings for lunch (ts 66 - 69). Mr Sutherland's cross-examination of M resumed at 2.15 pm and concluded a short time later (ts 70 - 71).

47 Mr Sutherland's cross-examination was concise - the questions asked were generally expressed in an age-appropriate way and were not repetitive. Bearing in mind that both Mr B and Ms O were jointly charged with count 12 and each mounted a defence that the alleged incident did not occur, the questions asked by Mr Sutherland were to the benefit of Ms O. For example, Mr Sutherland:

(a) suggested to M that it was difficult for her to remember the alleged offences, a proposition with which M agreed (ts 61);

(b) elicited from M that she had no recollection of making the visually-recorded interview (ts 61 - 62); and

(c) also elicited from M that she was unable to remember whether anything wrong was done to her with a knife and a fork (ts 61 - 62).

M denied that she had a 'scary sort of a doll' (ts 63). M said she was unable to remember anything 'naughty' being done with a knife and a fork and a scary doll (ts 63). M said that she remembered Mr B having a broom, 'like a broom that you sweep with', but was unable to recall anything being done with the broom (ts 64). Later in the cross-examination, M denied making up a story about a scary doll. She said that Mr B had a scary doll in his hand. She said that he put it on her body, but she was unable to give any further details. She said she did not recall Mr B putting anything on her vagina (ts 65).

48 When the cross-examination resumed after the lunch break, Mr Sutherland asked her 'Has [Mr B] ever asked you to kiss his penis?' to which M replied 'No' (ts 71).

49 The impression which viewing the video gives is of a traumatised young girl who does recall many of the events but who, faced with questions from strangers in the formal setting of a court, is not able to bring herself to describe the events of sexual abuse which were the subject of the questions.

50 On our viewing of M's pre-recorded evidence, it is clear that the longer the questioning proceeded the more fatigued, distracted and uncomfortable she became.

Counsel for Ms O's cross-examination of M

51 Mr Monisse, counsel for Ms O, began his cross-examination at 2.20 pm (ts 72). Acknowledging at once that the cross-examination of young children is often a difficult task, it must be said that his cross-examination of M was unsatisfactory in a number of respects. While not aggressive nor hectoring, he chose to go over ground already covered (to his client's advantage) by Mr Sutherland, as well as over some of the answers given by M in the course of Derrick DCJ's inquiry as to whether she could give evidence on oath. M began to give non-responsive answers to Mr Monisse's questions. It was clear that she was coming to the end of her tether. Mr Monisse's questions were often far from clear and caused understandable confusion.

52 At approximately 2.37 pm, Derrick DCJ asked the witness to withdraw temporarily and expressed his concern about M's visible distress (ts 77). Mr Monisse said that he hoped to finish his cross-examination 'within the next 20 minutes' (ts 77). Derrick DCJ made clear that he wanted M to finish her evidence 'today' (ts 78 - 79). His Honour remarked that counsel was proceeding 'very, very slowly' and noted that there were 'big pauses' between his questions, which was making it hard for M to keep focused (ts 77).

53 When Derrick DCJ sought to re-establish contact with M, the court officer informed his Honour that M 'wouldn't stay in the [remote witness] room' (ts 77). M's support person told his Honour that M was 'quite upset', and that she was 'saying that she doesn't want to come back in' (ts 78).

54 Derrick DCJ took a short adjournment, but that did not alleviate the situation. When the court reconvened, the court officer told his Honour that M would not go back into the remote witness room. At this point, the prosecutor applied to adjourn the pre-recording of M's evidence to the following day (ts 79). At approximately 2.57 pm, Derrick DCJ adjourned the pre-recording to 10.00 am on 8 April 2015, at which time M was allowed to leave the court precincts (ts 80).

M's refusal to return to the remote witness room

55 When the pre-recording of M's evidence resumed at 10.05 am on 8 April 2015, the court officer informed Derrick DCJ that M refused to return to the remote witness room. The court officer described M as '... basically ... shutting down, not talking, yes, and just sort of quite distressed as she was sort of late yesterday afternoon' (ts 122). The court officer confirmed that 'short of actually physically manhandling' M into the remote witness room, she would not enter it (ts 122).

56 Derrick DCJ expressed the view that it was inappropriate to force M back into the remote witness room, having regard to the damage that it could do to her. Mr Sutherland agreed that it would be appropriate to excuse M from further attendance (ts 122 - 123). Mr Monisse concurred (ts 123).

57 After hearing further from M's support person that the child's behaviour had continued to deteriorate, M was excused from further attendance at the trial (ts 125 - 126). In doing so, his Honour said:

Counsel, my view is that [M] should now be discharged from further attendance at the court. I observed her yesterday, she gave evidence for what was overall a relatively short period of time. It didn't take her very long to show signs of discomfort, lack of concentration and distress. At several stages she repeated that it was all very boring. She wasn't sitting still.

I became concerned that she was in fact - got to the point where she was hardly concentrating on the questions which is why I interrupted in Mr Monisse's cross-examination. After that point in time [M] refused to come back into the [remote witness] room, so the matter was adjourned.

The position this morning is the same. [M] is not coming back into the [remote witness] room. From what I'm told by the court officer and [M's support person] [M] is distressed at the moment. As we've just heard she's literally sitting down, she's not talking, she's becoming aggressive and she's even been hiding in a cupboard.

It seems that short of asking somebody to physically manhandle her, which is obviously inappropriate, she's just not going to come back into the [remote witness] room. I think to require her to come back into the [remote witness] room would just be causing her significant trauma and damage and I'm not willing to do that.

So the point has now been reached where I am going to excuse [M] from further attendance (ts 126).

Application for a permanent stay of counts 12 and 13

58 The appellants' trial was due to commence before O'Neal DCJ and a jury on 16 April 2015. That morning, without prior notice, counsel for Ms O handed to the court an application seeking a permanent stay in relation to the counts against Ms O on the basis that to proceed would be an abuse of process (ts 284, 339). The basis for the application was the incomplete cross-examination of M. Later, the scope of the application was narrowed to only counts 12 and 13 (ts 314, 318 - 319, 331). It is to be noted that count 13 concerned Mr B only.

59 Counsel for Mr B did not join in the application and his Honour excused him and Mr B from the hearing of it (ts 303, 314).

60 O'Neal DCJ ultimately dismissed the application. In his oral reasons for decision, his Honour said that:

(a) Mr Sutherland's cross-examination of M extended to both counts 12 and 13 and was to the advantage of both appellants (ts 339).

(b) Despite Mr Sutherland's cross-examination being conducted appropriately, it was obvious that by the time it was complete, M was becoming tired (ts 339).

(c) Mr Monisse's cross-examination was 'painfully repetitive' and questions were posed in a manner that 'did not encourage [a] simple or easy answer even from an adult' (ts 339).

(d) Moreover, the cross-examination was 'discursive' in that 'it jumped from point to point with no obvious order or fixed purpose' (ts 340).

(e) The reaction of M was 'predictable and understandable' (ts 340).

(f) The application with respect to count 13 was 'misconceived' because Ms O was not charged with that offence (ts 340).

(g) With respect to count 12, he was not satisfied that Ms O suffered any forensic disadvantage by reason of the cross-examination having been abridged (ts 340). His Honour found that M was 'cross-examined at length' by Mr Sutherland with respect to the issues of credibility and reliability' regarding counts 12 and 13, and the cross-examination that followed 'added nothing but distress to the position of [M]' (ts 340).

61 In this court, Ms O's counsel expressly took no issue with O'Neal DCJ's observations about the cross-examinations (appeal ts 15). A viewing of the pre-recorded evidence confirms that this concession was appropriate.

O'Neal DCJ's directions to the jury on M's unresponsiveness

62 M's pre-recorded evidence was edited so that the jury did not see what had occurred after M left the remote witness room in the midst of Mr Monisse's cross-examination. In the summing up, the jury was told, with the agreement of counsel, that M refused to come back to the remote witness room; M was not willing to give further evidence; and Mr Monisse was not able to complete the cross-examination of her as he wished (ts 671). This explanation was consistent with what O'Neal DCJ had said to the jury at the time they viewed the pre-recording of M's evidence (ts 434). His Honour told the jury in the summing up that they might conclude that Ms O could be at some disadvantage because of the incomplete cross-examination and that this was a matter they could take into account in the assessment of M's evidence (ts 671).

63 No exception was taken at trial to this (or any other) direction given to the jury. It has not been alleged in this court that O'Neal DCJ's directions were erroneous.

64 The written submissions of each appellant relied upon well-known statements of principle establishing the importance of cross-examination, such as in Wakeley v The Queen [1990] HCA 23; (1990) 64 ALJR 321, 325; Lee v The Queen [1998] HCA 60; (1998) 195 CLR 594, 602 and Stack v The State of Western Australia [2004] WASCA 300; (2004) 29 WAR 526 [75] - [105] (Steytler J).

65 It was said on behalf of Ms O that, 'by [M's] refusal to continue, Mr Monisse was unable to conduct any pertinent cross-examination of [her] with regard to count 12'.[7]

66 Mr B asserted in written submissions signed by him personally (but which were clearly prepared with some legal assistance) that 'the jury directly convicted [him] on counts 12 and 13 based entirely on statements that were admitted into evidence without being given the opportunity of challenge'.[8] This submission is somewhat surprising, given that his trial counsel completed his cross-examination of M.

67 Ms Farley SC, in oral submissions made on behalf of Mr B, submitted in effect, that, if Ms O established a miscarriage of justice, that finding should flow on to Mr B because of the possibility that further cross-examination of M by Ms O's counsel may have elicited material to Mr B's advantage (appeal ts 22).

68 The importance of cross-examination in the trial process is not in question. However, as the respondent pointed out in its written submissions,[9] the right is not without limits. There may be circumstances where cross-examination is curtailed or limited, yet an accused is not deprived of a fair trial.

69 There are a number of English and Canadian cases illustrative of this point. See, for example, R v Stretton; R v McCallion (1988) 86 Cr App R 7 (where a witness, who was a chronic epileptic and mentally impaired, became ill in cross-examination and was unable to continue to give evidence); R v Wyatt [1990] Crim LR 343 (where the complainant, a seven-year-old girl, became visibly distressed after some 15 to 20 minutes of cross-examination to the point where it was decided that the cross-examination should proceed no further even though the accused's counsel said that he still had one important question to ask of the child) and R v Pipe [2014] EWCA Crim 2570; [2015] Crim LR 304 (where the complainant became increasingly distressed during cross-examination to the point that the judge ruled that her evidence should not continue). However, compare these cases with R v Lawless; R v Basford (1994) 98 Cr App R 342 (where the convictions of the appellants were quashed on the basis that they were unsafe and unsatisfactory by reason of a witness having suffered a heart attack at the conclusion of examination-in-chief and, thus, was unable to continue giving evidence).

70 The respondent drew the court's attention to two Canadian decisions: R v Yu (2002) 171 CCC (3d) 90, a decision of the Alberta Court of Appeal, and R v Hart (1999) 135 CCC (3d) 377, a decision of the Nova Scotia Court of Appeal. It is necessary only to refer to R v Hart.

71 In R v Hart, the appellant was convicted of a number of sexual offences in relation to two boys. Partway through the cross-examination of one of the boys, A, he became unresponsive. On appeal, the appellant argued that A's unresponsiveness was a breach of his right under the Canadian Charter of Rights and Freedoms to a fair trial and to make full answer and defence. Although the case was decided against the backdrop of the alleged breaches of the Charter, there was an analysis of the Canadian common law rule relating to the admission of the evidence of a witness who becomes unable or unwilling to respond to questions during cross-examination (387 - 388). The judgment of the court was delivered by Cromwell JA. His Honour analysed the English decisions to which we have referred, save for R v Pipe. He concluded that in England, at least, where cross-examination has been limited due to no fault of the witness or the party calling the witness, then whether the trial should continue is a matter for the trial judge's discretion to be exercised in the interests of assuring a fair trial and the pursuit of truth in light of all of the circumstances of the case (393). With respect to the evidence of children, his Honour said that 'common sense' should be applied when considering the consequences of a child witness becoming unresponsive during cross-examination. He expressed the opinion that it would be wrong to solely base the analysis on whether the responsiveness is the 'fault' of the witness (400). His Honour went on to say:

While it may be appropriate to consider whether the party calling the witness and the party cross-examining have done what is reasonably possible to mitigate the difficulties of testifying, the primary focus of the analysis should be the impact of the limitation on cross-examination on the ability of the jury to assess the evidence. This analysis should have due regard to the particular circumstances of the case, viewed realistically and with common sense by standards appropriate to the age and sophistication of the child in question. In short, the assessment must be made with flexibility and common sense appropriate to child evidence generally, not according to stereotypes or rigid rules (400).

72 We respectfully agree with these statements. In our opinion, they articulate the guiding principles that should be applied in cases such as the present one.

73 In our opinion, having regard to the particular circumstances of this case, neither appellant has suffered a miscarriage of justice as a result of the incomplete cross-examination of M.

74 We acknowledge that M's testimony was crucial to the proof of counts 12 and 13. In order for the jury to convict, they needed to be satisfied beyond reasonable doubt of M's credibility and reliability. However, the incomplete cross-examination did not, in our view, materially affect the jury's ability to evaluate M's evidence.

75 Count 12 was alleged to have been committed by Ms O and Mr B jointly. The State's case was that they were acting together. Mr Sutherland's cross-examination in respect of count 12 was referable to both appellants. The questions he asked about M's memory applied across the board to Mr B and Ms O. The questions Mr Sutherland asked about Mr B's conduct were directly relevant to Ms O. Mr Sutherland cross-examined M about whether '[Ms O] and [Mr B] did anything naughty' to M 'with a knife and a fork and a doll and a broom to you', to which M responded by shaking her head (ts 63). Given that M indicated that she was having difficulties recalling what she had said in the visually-recorded interview - and, indeed, what had occurred on the relevant occasion - it is difficult to see how further cross-examination of her by counsel for Ms O would have further benefited her.

76 At no point after M's cross-examination had ceased did Mr Monisse point to any specific areas in her evidence which were left unexplored by reason of her unresponsiveness, or any matters that he intended to raise. No further line of cross-examination was suggested to this court.

77 His Honour gave directions to the jury on this issue which, as we have already observed at [62] - [63] of these reasons, have not been challenged. Those directions were sufficient to deal with M's unresponsiveness in a manner which was fair to Ms O.

78 To summarise, M's evidence was thoroughly tested by the time she became unresponsive. The appellants are unable to identify the parts of her evidence which were untested. His Honour's directions to the jury on M's unresponsiveness were appropriate to alleviate any potential injustice to the appellants. No miscarriage of justice has been established by reason of M's incomplete cross-examination.

79 Before leaving this proposed ground, we wish to make some further observations in relation to child witnesses:

80 As we have noted, the commencement of M's evidence was delayed by last-minute objections by counsel. It was highly unsatisfactory for a witness of M's age to be kept waiting by reason of objections which counsel should have made earlier.

81 The receipt of evidence from very young children presents many challenges for counsel and the court. In considering how that evidence is to be received, account must be taken of the shorter attention span of a young child, and the swiftness with which they may become fatigued. Further, children who are allegedly the victims of sexual offences will frequently have experienced other forms of abuse and neglect which affect their development, reducing attention span and increasing their propensity to become fatigued. The challenges which a child faces when giving evidence will be unnecessarily exacerbated if the child is required to wait for hours in the court precincts before giving evidence. Delays of that kind have a real potential to affect the quality of the evidence which the child is able to give. It is both in the interests of the child and the interests of justice that delays of this kind do not occur. In this context, the following points should be kept in mind by all concerned:

(a) Parties should do all that they can to ensure that child witnesses are not unduly kept waiting to give evidence.

(b) The usual procedure, as we have said, is that a child witness attends to give evidence, where court is due to start at 10.00 am, at approximately 9.00 am.

(c) Facilities for witnesses vary in courthouses in Western Australia, but it should not be assumed, even in courts with suitable waiting facilities, that no harm will be done should a child witness be kept waiting unnecessarily before they are called to testify.

(d) It follows that, when child witnesses are involved in trials, it is particularly important that pre-trial issues are dealt with as far in advance as possible before the trial starts, or at least at a time which minimises the period before the child is called to testify.

(e) Defence counsel questioning child witnesses is expected to conduct his or her cross-examination in a manner appropriate to the age and capacity of the child. Where a child exhibits difficulties during the course of the cross-examination, counsel must do what they can, consistently with their duties to the court and their client to minimise any trauma to the child.

82 It was put on behalf of Ms O that, if proposed ground 2 was made out, it had a 'wash-over' effect upon the other counts on which Ms O was convicted such that those other convictions should be set aside (appeal ts 17 - 18). In her counsel's written submissions, Parker v The Queen (Unreported, WASC, Library No 950259, 26 May 1995) was cited as authority for the concept of the 'wash-over' effect.[10] There is no reference to that term in Parker.

83 There is, as Ms O's counsel pointed out in his written submissions, a reference in Parker (84) to 'the cumulative effect of the[se] errors'; however, Ipp J and Steytler J both held this to be relevant to the question of the exercise of the proviso having regard to the High Court authority of Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 371 - 372: Parker (84 - 86).

84 There is no accumulation of errors in this case, nor does the question of the proviso arise.

85 We would grant leave to appeal on proposed ground 2 in each appeal, but dismiss the ground.

Proposed ground 3 in Mr B's amended grounds of appeal against conviction - were Mr B's convictions unsatisfactory?

86 This ground is only relevant to Mr B's appeal. As amended, the proposed ground alleges that all of the verdicts of guilty, both in respect of W and M, are unreasonable and cannot be supported having regard to the evidence.

87 Mr B's written submissions focus mostly on counts 12 and 13. Sparse and general written submissions were filed on Mr B's behalf with respect to the offences involving W. We note that particular (iii) of ground 3 refers to W's evidence as being 'inconsistent' and 'unreliable'. This court has been left to its own devices to work out how W's evidence was 'inconsistent' and 'unreliable'. At the hearing of the appeal, the court ordered that a schedule in accordance with practice direction 7.4 be filed. A schedule purporting to comply with the practice direction was filed on 22 April 2016, and the respondent's reply to that schedule was filed on 4 May 2016.

88 Ms O was in a relationship with Mr M for a period of approximately 10 years. Ms O had two children prior to the commencement of that relationship, D and T. She and Mr M had four children: W; another son, S; M; and another daughter, T (ts 494 - 495).

89 From approximately 2004 or 2005 onwards, the Department of Child Protection (DCP) had been involved with the family (ts 513). On 27 April 2012, the four children Ms O had with Mr M were taken into State care. At this time, there had been no allegations of sexual abuse made by W and M.

90 In or about 2011, the intimate relationship between Ms O and Mr M ceased, although he remained living at the family home which, at that time, was at an address in Marangaroo (the Marangaroo address).

91 Towards the end of 2011, Ms O formed a sexual relationship with Mr B. Shortly after, Ms O, Mr M and the children moved from the Marangaroo address to an address in the suburb of Madeley (the Madeley address) at which all of the offences were alleged to have occurred. Mr B visited Ms O at both the Marangaroo and Madeley addresses, sometimes when the children were present (ts 621). However, apart from a period of approximately one week in January 2012 and three weeks in April 2012, Mr B did not live at the Madeley address.

92 When Mr B stayed at the Madeley address, he slept in the main bedroom with Ms O. Mr M stayed at the Madeley address throughout the period leading up to 27 April 2012, apart from a period of approximately a week and a half (ts 496).

93 Ms O was diagnosed with breast cancer and, on 27 April 2012, she had a mastectomy (ts 497). Up until that time W, S, M and T were living with her. On 27 April 2012, the DCP removed them from her care (ts 497). The children have not been in her care since then.

94 In April 2012, M and T were placed by the DCP with a registered carer named Ms MD (ts 447). About three months later, in July 2012, W and S were also placed in Ms MD's care (ts 448). Up to August 2013, Ms O had supervised contact with her children (ts 449).

95 On or about 31 August 2013, W and M made disclosures to Ms MD which resulted in her contacting police and then her case manager (ts 449). No allegations of sexual misconduct against Ms O and Mr B were made before then.

W's and M's visually-recorded interviews and pre-recorded evidence

96 In due course, W and M participated in visually-recorded interviews with officers attached to the Western Australian Police's Child Assessment and Interview Team.

97 W participated in five visually-recorded interviews: on 11 September 2013 (W's first interview),[11] 19 September 2013 (W's second interview),[12] 26 September 2013 (W's third interview),[13] 4 October 2013 (W's fourth interview)[14] and 26 October 2013 (W's fifth interview).[15] M participated in one visually-recorded interview on 26 September 2013 (M's interview). Each of W's and M's visually-recorded interviews was played to the jury, effectively, as their examinations-in-chief.

98 At the time of these interviews, W was 9 years old and M was 5 and a half years old.

99 W gave sworn evidence which was pre-recorded on 8 and 9 April 2015.[16] At the time, W was a few months shy of his 11th birthday.

100 M gave unsworn pre-recorded evidence on 7 and 8 April 2015.[17] At the time, M was 7 years old.

101 The counts in the indictment do not follow the same sequence as they emerged in the visually-recorded interviews. The allegations made by W are representative of sexual conduct engaged in by Ms O and Mr B towards him while they lived at the Madeley address.

102 These counts were the subject of acquittals. They were described by W in his first interview in this way:

A. And then - - well, um, and then in the afternoon when all the kids were playing outside, [D] - - well, [Mr B] and [Ms O] were in here - - inside, they asked me to come in to [sic] their room and well ...(indistinct)... well [Ms O] and Dad - - well, [Ms O] and [Mr B] were having sex and then they asked me to help and like - - well then I had to cos if - - if I didn't, [Mr B], um, would hurt me and - - and then, um, I had to and then I had to touch my mum's private parts and ...(indistinct)... his and then, um, [Mr B] got ...(indistinct)... piece of bread and kept rubbing it but rubbing it against my mum and then, um, he got a plastic fork and shove[d] it up my mum's butt and then, um - - and then also, um, then a plastic knife, a plastic fork and then - - (Mr B's combined blue and green AB 286).

103 As to count 3, W described in his fourth interview how Ms O 'did heaps of things' (Mr B's combined blue and green AB 382). When asked to be more specific, W said that she put a metal knife in his bottom whilst they were in the lounge room. W described her putting 'the handle bit ... in the middle of my bottom' (Mr B's combined blue and green AB 382 - 383). W said that Ms O put a metal knife in his bottom 'more than once' (Mr B's combined blue and green AB 205). In W's pre-recorded evidence, he described the knife as 'a butter knife' (Mr B's combined blue and green AB 205).

104 As to count 4, W said in his fourth interview that Ms O put a spoon 'in the middle of my bottom' (Mr B's combined blue and green AB 385). He said that he asked her to stop, but she said 'No' (Mr B's combined blue and green AB 385). When asked to describe what part of the spoon went in the middle of his bottom, W replied 'the end bit where you scoop stuff up with' (Mr B's combined blue and green AB 385). He described what he meant by the middle of his bottom as 'Where you pooh [sic] from' (Mr B's combined blue and green AB 386). W said that Ms O did this to him 'more than once' (Mr B's combined blue and green AB 385).

105 As to count 5, W said in the fourth interview that Ms O had also used a fork on him. When he was asked to tell the interviewer about one time that she used a fork, he replied:

Q. So tell me about that one time that she used a fork?

A. One time she used a fork and she was, um, eating her dinner and then after a while when she finished, then when ...(indistinct)... went to bed cos I asked [Ms O] if I could stay up a bit later - -

Q. Mm hm.

A. - - and I was watching Spiderman and then after a while, [Ms O] got a fork out of the drawer and she put it in the middle of my bottom and then end bit of it where all the spikes are and then she wouldn't stop it (Mr B's combined blue and green AB 387).

106 In the fifth interview, W was reminded that he had said that he had touched Ms O's 'flossie' (vagina) more than one time. After apparently agreeing that he had said this, W was asked to tell the interviewer about the last time he touched Ms O's 'flossie'. W said that the last time he had touched her 'flossie' was on an occasion when he was 6 years old (Mr B's combined blue and green AB 423). He described how Ms O called him into her room and told W to touch her 'flossie'. He said that on this occasion, Mr B came into the room and told him to 'keep on doing it' (Mr B's combined blue and green AB 424). When W refused to do so, Mr B struck him across the face. W said that he then went to his room and lay down.

107 W said the following morning, Ms O pulled him into her bedroom and said 'Touch my flossie, rub it' (Mr B's combined blue and green AB 425). He complied with this demand. W said that Mr B 'came along' and said to him 'You're doing [a] really, really, really good job' (Mr B's combined blue and green AB 425).

A. So I did and then, um - - and then, um - - and then [Mr B] came along and said, 'Keep on doing it, you're doing a really good job'. And then I said, 'No, because it's disgusting' and, um, cos normal mums don't do it and then he said, 'Normal mums do do it', and I said, 'No, they don't'. And then - - then we went in to [sic] state [sic] care and I - - I thought normal mums did do it but when I went first in to [sic] state [sic] care, um, I knew mums - normal mums - didn't do it, cos where I went no-one did it (Mr B's combined blue and green AB 426).

109 W's account of count 7 is in the first interview. W told the interviewer that Mr B 'put his mouth on it' (Mr B's combined blue and green AB 288). Later, when the interviewer asked W to tell him 'all about the bit about with his mouth', W said that Mr B 'put my doodle [penis] in his mouth and he kept rubbing it, um, kept on going forward and backwards' (Mr B's combined blue and green AB 292). W described that when Mr B was moving backwards and forwards, he (Mr B) had W's 'doodle in his mouth' (Mr B's combined blue and green AB 292). W said that the incident stopped when Ms O pulled Mr B away (Mr B's combined blue and green AB 292).

110 W's account of this offence occurs in the third interview. W said that Mr B 'put his willy in his -- well, my mouth and it was big' (Mr B's combined blue and green AB 359). W went on to describe Mr B's 'willy' as 'fat and hairy' (Mr B's combined blue and green AB 360). W said that he asked Mr B to stop, but 'he kept on doing it' (Mr B's combined blue and green AB 360). W described Mr B's action as 'going backwards and forwards ... heaps and heaps of times' (Mr B's combined blue and green AB 360). W said that the incident stopped 'cos [Ms O] saw him' (AB 361).

111 It will be remembered that Mr B was originally charged with sexually penetrating W by penetrating his anus with a spanner. He was acquitted of this charge, but found guilty of the alternative offence of indecent dealing (see the table in [4] of these reasons).

112 In his third interview, W described an incident which occurred in the shed. W said that Mr B 'got this metal spanner and he kept rubbing it against my bottom. And, um, he wouldn't stop it' (Mr B's combined blue and green AB 351). W described how Mr B kept rubbing the spanner up and down 'in the middle of my bottom' until 'it was bleeding' (Mr B's combined blue and green AB 352 - 353). W said that he told Ms O about the bleeding. According to W, Ms O told him to get a piece of toilet paper. W did as he was told. The next morning, W said he took the toilet paper off and 'it was all better' (Mr B's combined blue and green AB 352). W described the rubbing of the spanner as occurring on the outside of his clothing (Mr B's combined blue and green AB 352).

113 W went on to say that what occurred happened 'more than one time' (Mr B's combined blue and green AB 354). He was asked about this in his fourth interview. W described an incident where he said that Mr B came into his bedroom and put a hammer into the middle of his bottom (Mr B's combined blue and green AB 376 - 380). W said that there was more than one incident where Mr B used a hammer (Mr B's combined blue and green AB 381).

114 In his pre-recorded evidence, W explained, in examination-in-chief, that when he used the word 'hammer' in the visually-recorded interview, the implement that was actually used was a spanner (Mr B's combined blue and green AB 137).

115 There was some confusion at trial about this offence, which was disclosed in W's first interview.

116 W described an incident which occurred in his bedroom (Mr B's combined blue and green AB 303 - 305). He said that Mr B entered his room, took his and W's clothing off and lay on top of W (Mr B's combined blue and green AB 306). W said that Mr B rubbed '[his] willy' (Mr B's combined blue and green AB 307), and that Mr B 'kept going up and down on me' (Mr B's combined blue and green AB 308). W described Mr B's body as having 'too much hair' and being 'really itchy' (Mr B's combined blue and green AB 307).

117 W explained that this incident stopped because Mr M came into the bedroom and told Mr B to 'get out' (Mr B's combined blue and green AB 309). W said that Mr M 'chucked all [of Mr B's] stuff out' and then he said (to Mr B) 'Never come back here' (Mr B's combined blue and green AB 308 - 309).

118 W described how, on the same night, Mr B returned to the Madeley address with Ms O's assistance (Mr B's combined blue and green AB 310). W said that he kept away from Mr B for 'two or three weeks' (Mr B's combined blue and green AB 312).

119 In his first interview, W spoke of another occasion when Mr B dragged W out of his bed and took him into Ms O's bedroom and 'had sex' with him (Mr B's combined blue and green AB 313). He described how Mr B was 'humping me, like going up and down', and that he felt Mr B's 'willy' 'on mine' (Mr B's combined blue and green AB 314 - 318). W said that his back was on the floor and that Mr B's back was in the air, so that they were 'stomach to stomach' (Mr B's combined blue and green AB 314). W went on to say that Mr B's 'willy' felt 'really weird ... like goo ... like really slimy ...' (Mr B's combined blue and green AB 317).

120 Although W described two distinct episodes, the prosecutor, in his closing address, referred to them as one incident (ts 607 - 609). However, any confusion was dispelled by his Honour's summing up, which made it clear that the allegation the subject of count 10 was that in which W said Mr M intervened (ts 677).

121 In his first interview, W described an incident where Mr B pulled his pants down and made W 'rub his willy' (Mr B's combined blue and green AB 297). W said he kept rubbing it because Mr B 'made me to [sic]' (Mr B's combined blue and green AB 298).

122 W said that the incident stopped when Ms O 'pulled me away from him and told him to get out' (Mr B's combined blue and green AB 298).

Other evidence given by W in the visually-recorded interviews

(a) In his first interview, he recalled an occasion when he was sleeping in Ms O's bed with her. He said that, while Ms O was sleeping, Mr B pulled him out of bed, took him into the ensuite bathroom and touched his 'doodle' (Mr B's combined blue and green AB 299 - 300). Mr B then told W to go to his bedroom, which he did. After a while, he got up to get a drink and heard screaming from Ms O's bedroom. He opened the door to the bedroom and saw '[Mr B] was rubbing [Ms O's] boobs [breasts]' (Mr B's combined blue and green AB 300). The next morning, W said he heard screaming and crying. W said that he called police to come to the Madeley address, which they did. W said that police told Mr B, in substance, that if he did not stop rubbing Ms O's breasts in front of her children, he would 'have to go to gaol' (Mr B's combined blue and green AB 300).

(b) In his fifth interview, he spoke about an occasion on which his oldest brother, D, 'bashed [him] up' by putting him in a headlock and punching him to the head and stomach (Mr B's combined blue and green AB 412 - 413).

(c) W testified that there were occasions where he saw Ms O and Mr B engaging in sexual activity. W mentioned one such occasion in his fourth interview (Mr B's combined blue and green AB 398).

(d) In his fifth interview, W recalled an occasion when he removed his older sister R's cat from the swimming pool. W said that the cat was buried in the sandpit. He described how R was later digging holes in the sandpit and found the cat's eyeballs (Mr B's combined blue and green AB 430). W said that this occurred on a day on which he rubbed Ms O's 'flossie' (Mr B's combined blue and green AB 431).

124 As we have said at [99] of these reasons, W's evidence was pre-recorded on 8 and 9 April 2015.

125 His examination-in-chief was brief. Apart from correcting what he said in the fourth interview about his reference to the use of a hammer (see [114] of these reasons), W said that, on the occasion police were called to the Madeley address, it was R who called police. W said that, as R was about to call police, Mr B came out and smashed her mobile telephone. R called police using a spare telephone (Mr B's combined blue and green AB 138).

126 After W's evidence, with the parties' consent, the prosecutor informed the jury that, in a proofing meeting he had with W on 1 April 2015, W, whilst watching his first interview, said that police did not actually come to the house on the occasion Mr B smashed R's telephone (ts 434 - 435).

127 Mr Sutherland cross-examined W on 8 April 2015. The broad thrust of that cross-examination was that the allegations W made against Mr B in the visually-recorded interviews were completely false. W did not accept the many propositions that were put to him to that effect.

128 W denied that in proofing, he had told the prosecutor that police did not come to the Madeley address. He said that he told the prosecutor that police had in fact attended the Madeley address (Mr B's combined blue and green AB 142).

129 Mr Sutherland cross-examined W about his allegation that Mr B had penetrated his bottom with a hammer. Mr Sutherland highlighted the inconsistency between what W had said in his visually-recorded interview and what he told the prosecutor about the hammer being, in fact, a spanner.

130 W denied Mr Sutherland's suggestion that he had made up stories about Ms O and Mr B as a result of Ms MD speaking to him about a CD he had stolen (Mr B's combined blue and green AB 148).

131 W denied that he had made up the story about police coming in response to R's telephone call (Mr B's combined blue and green AB 153).

132 It is apparent that, as the cross-examination proceeded, W's behaviour deteriorated markedly. He displayed animosity, anger and disrespect towards Mr Sutherland who conducted the cross-examination in an entirely reasonable and proper manner. As Mr Sutherland put each allegation involving Mr B to W and suggested that what he had said was untrue, W's treatment of Mr Sutherland became not merely disrespectful, but aggressive, to the point where W accused Mr Sutherland of being 'deaf' (Mr B's combined blue and green AB 152 - 153). On several occasions, W responded to questions with the statement 'I don't care' (Mr B's combined blue and green AB 153). When Mr Sutherland questioned W about the time of the day on which count 6 occurred, he answered in a sarcastic way 'I don't know', or, 'Don't know' (Mr B's combined blue and green AB 154). The cross-examination deteriorated to the point where Derrick DCJ adjourned the proceedings earlier than usual before lunch, to which W replied 'Woo hoo' (Mr B's combined blue and green AB 155).

133 Unfortunately, W's behaviour after the lunch break was no better. W kept touching the microphone in the remote witness room despite being told by his Honour not to do so. W confirmed that the incidents the subject of counts 6 and 7 happened, but his responses in doing so were insolent to say the least (Mr B's combined blue and green AB 156 - 158). At one point, W referred to Mr Sutherland as a 'retard' (Mr B's combined blue and green AB 158).

134 Derrick DCJ adjourned the proceedings for 10 minutes to allow W 'to compose himself' (Mr B's combined blue and green AB 159). Upon their resumption, Mr Sutherland sought to ask questions concerning count 8. W confirmed that the act of fellatio had occurred. He responded to Mr Sutherland's questions by again referring to him as a 'retard' and characterising the questions he was asked as 'retard questions' (Mr B's combined blue and green AB 160).

135 When Mr Sutherland sought to ask W about what he remembered about the use of a spanner, W refused to engage the topic. At this point, Mr Sutherland said, 'This is unproductive, your Honour' (Mr B's combined blue and green AB 161).

136 Derrick DCJ then muted the sound to the remote witness room and spoke to Mr Sutherland. Mr Sutherland accepted that he had covered 'the spanner issue' and that he proposed to quickly touch upon a couple of other issues (Mr B's combined blue and green AB 162). When the sound link to the remote witness room was re-established, Mr Sutherland attempted to ask W about the allegation the subject of count 10. W refused to answer Mr Sutherland's question. When his Honour asked W whether he was going to say anything about the matter, W replied 'No, I'm not' (Mr B's combined blue and green AB 163). Mr Sutherland then ceased his cross-examination of W.

137 Derrick DCJ adjourned the proceedings to 9.30 am the following day, 9 April 2015, in order for Mr Monisse to cross-examine W and, if necessary, for the prosecutor to re-examine.

138 In broad terms, Mr Monisse put to W a case theory to the effect that:

(b) the lies were motivated by the fear that he would have to go and live with Ms O and be bashed up by D (Mr B's combined blue and green AB 181 - 183); and

(c) the allegations that Ms O sexually penetrated W with a knife, a spoon and a fork (counts 3 to 5) were derived from the nursery rhyme 'Hey Diddle Diddle' (Mr B's combined blue and green AB 187 - 192).

139 W did not accept these propositions, although as to (b), W accepted that when he left the family home on 27 April 2012, he was happy to get away from D (Mr B's combined blue and green AB 183).

140 During the course of Mr Monisse cross-examining W about count 2, W said, for the first time, that Mr B had put a fork in his (W's) bottom (Mr B's combined blue and green AB 187). When W was asked an open-ended question to the effect of whether anybody else apart from Mr B had put a fork in his bottom, W replied 'Mum' (Mr B's combined blue and green AB 190).

141 W agreed with Mr Monisse's suggestions that he did not like Mr B, and that he wanted him to go to gaol. W added '... all the stuff he'd done ... because all the stuff he did to us' (Mr B's combined blue and green AB 193).

142 Mr Monisse cross-examined W on the spanner/hammer issue. At one point, W said that he had not used the word 'hammer' in his visually-recorded interview (Mr B's combined blue and green AB 195 - 196).

143 Mr Monisse took W to the events of 31 August 2013. W denied talking to Ms MD about stealing something on that day. He also denied that he stole things generally, such as money and mobile telephones, or that he tells lies (Mr B's combined blue and green AB 199 - 201). However, later in the cross-examination, W said that he had stopped stealing 'a lot' (Mr B's combined blue and green AB 201 - 202).

144 W consistently denied the many accusations put to him by Mr Monisse that he made up the allegations against Ms O and Mr B.

(a) he saw Ms O naked when he was called into her room 'to do rude stuff to her' (Mr B's combined blue and green AB 204); and

(b) while one of the reasons he did not wish to live with Ms O was because of D, there was another reason, namely, the 'rude stuff' that Ms O and Mr B did (Mr B's combined blue and green AB 205).

146 We have already canvassed M's evidence in detail earlier in [44] - [63] of these reasons. It is unnecessary to repeat what we have written.

147 Dr Shah is a developmental paediatrician employed by the Child Protection Unit at Princess Margaret Hospital.

148 On 1 November 2013, he medically examined W and M. At that time, W was 9 years 4 months old and M was 5 years 8 months old (ts 441 - 442).

149 Dr Shah said that it was quite possible for objects such as a fork handle, spoon handle or hammer handle to be inserted into a child's anus. Bearing in mind when the allegations were said to have occurred, Dr Shah said that even if blunt objects of this kind were inserted 'acutely', it would be 'very rare' to see any evidence of injury in the form of scars 'or anything else' (ts 442). He explained that healing of the anal area is 'very, very rapid' (ts 442).

150 Dr Shah described W's examination as 'normal' with no evidence of any anal injury. He also described his examination of M's genital and anal areas as 'normal' (ts 442 - 443). Dr Shah said that his findings with respect to W and M neither supported nor refuted the allegations of sexual abuse (ts 443).

151 In cross-examination by Mr Monisse, Dr Shah said that if the tines of a fork were inserted into a child's anus with 'any sort of force', he would expect that to cause a 'significant bleed' which would require urgent medical attention. He said that if the fork was inserted deep enough, it could cause a perforation of the bowel (ts 445).

152 Ms MD testified that she has been a registered carer with the DCP for approximately 14 years (ts 447). Over that time, she has looked after 80 children on both a long-term and short-term basis. At the time she gave evidence, she had six foster children and four children of her own. Living with Ms MD at the time were her two biological (twin) sons, and one foster boy who had been with her for 12 years (ts 447).

153 Ms MD said that M and T were placed in her care in April 2012, and W and S were placed in her care around July 2012 (ts 448).

154 She recalled a conversation on a weekend with W and M in 2013. As a result of what she was told, she contacted police and later, her case manager (ts 449).

155 In cross-examination by Mr Monisse, Ms MD agreed that on or about 31 August 2013, she had a conversation with W about a CD that he had stolen. Ms MD confirmed that W admitted to her that he had stolen the CD. She said that, at the time, he had been 'doing a lot of stealing', including small sums of money and mobile telephones (ts 453 - 454). Mr Monisse then suggested that W had 'issues about telling the truth' to which Ms MD responded 'No, [W's] pretty up front about stuff ... shockingly upfront about stuff' (ts 454). Ms MD said that although she had spoken to W about stealing, he still did it, but told her about it. She described him as 'almost like a kleptomaniac with stealing' (ts 454 - 455).

Detective Senior Constable Ian Landreth Berry's evidence

156 Detective Senior Constable Berry was the police officer with the carriage of the investigation (ts 488). He testified that Ms O lived at the Marangaroo address from 4 January 2002 until 7 November 2011, and at the Madeley address from 27 December 2011 until 4 February 2014 (ts 489 - 490). Detective Senior Constable Berry testified as to his efforts to locate Mr M for the purpose of obtaining a witness statement. Detective Senior Constable Berry said that Mr M initially contacted him, but efforts to locate him thereafter were unsuccessful (ts 490 - 491).

157 Detective Senior Constable Berry said that police records showed that there were four attendances by police officers at the Madeley address in early 2012. On the first occasion, 30 January 2012, police were called to investigate someone shouting at children (ts 492). The other attendances, on 11 February 2012, 25 February 2012 and 12 April 2012, were as a result of neighbours seeing young children playing outside without any supervision (ts 492).

158 Mr Monisse cross-examined Detective Senior Constable Berry briefly. Detective Senior Constable Berry confirmed that police records did not reveal any complaint consistent with W's statement in his first interview that police came and told Mr B not to rub Ms O's 'boobs' in front of her children (ts 493).

159 Ms O's examination-in-chief was quite brief. She explained that in October and November 2011, she was living at the Marangaroo address with all six of her children and Mr M. When she and her children moved to the Madeley address, Mr M moved in shortly afterwards, perhaps in January 2012 (ts 495).

160 Ms O said that Mr B moved into the Madeley address on '6 or 7 April 2012' (ts 495). Up until then, she and Mr B had been in a sexual relationship, but he had not lived with her at that address apart from a period of one week, earlier in 2012 (ts 496).

161 Ms O said that in the approximately three-week period in which Mr B was at the Madeley address in April 2012, he had 'very little contact' with the children and that most of the time, he stayed in her bedroom (ts 497).

162 Ms O said that the only time her children saw her naked was if she was 'getting out of the shower', or if they walked in on her while she was in the toilet (ts 498). She said that she and Mr B always had sex in her bedroom, and that no one else could see what was happening because the bedroom door would be locked and there would also be a 'plastic box full of books behind the door' as the lock did not always work properly (ts 498).

163 Ms O was shown the indictment. When asked what she wanted to tell the jury about the allegations, she responded:

I'm totally innocent of all these charges. They're my children. I'd never, ever touch them. I was bonded with these children before I even met them. And to be accused of this has just horrified me and totally and utterly killed me and destroyed everything. It's destroyed me, it's destroyed my entire family life (ts 499).

164 Ms O testified that in January 2012 she was diagnosed with breast cancer and, on 27 April 2012, she had a mastectomy (ts 497).

Ms O's cross-examination by Mr Sutherland

165 Ms O said that no one ever touched her 'boobs' because of 'the lump that was in [her] breast' (ts 502). She said that the statements made by W about police attending the house after R had called for assistance were not true (ts 502). Ms O agreed that there were occasions in 2012 on which she was telephoned by police about her children playing in the middle of the street (ts 502).

166 Ms O said that there was no occasion on which Mr M pulled Mr B off W and ejected Mr B from the house (ts 502).

Ms O's cross-examination by the prosecutor

(a) said that Mr M left the Madeley address 'a week and a half before 27 April 2012' (ts 509);

(b) said that Mr B and Mr M were 'civil' towards each other (ts 509);

(c) said that she and Mr B shared meals together in her bedroom (ts 510);

(d) said that there was no cutlery kept in the bedroom (ts 511);

(e) agreed that she ate her meals with a fork, but denied using a knife (ts 510 - 511);

(f) denied using a spoon to eat anything in her bedroom (ts 511);

(g) said that it was very hard to find cutlery in the house 'considering there were six children there' (ts 511);

(h) denied engaging in any sexual activity with Mr B that involved him inserting any object in her bottom (ts 514);

(i) said that there was no pornography allowed in her house 'whatsoever' and that there was no DVD player with which to watch any such material (ts 514); and

(j) was 'absolutely 110% sure' that her children never witnessed anything that went on between her and Mr B behind closed doors (ts 514).

168 It was put to Ms O by the prosecutor that the allegations made by W and M in the visually-recorded interviews were true (ts 514). Ms O responded that '... they absolutely did not happen whatsoever' (ts 515).

169 Mr B testified that as far as he was aware, there was no occasion on which any of Ms O's children might have seen sexual activity between him and her (ts 517).

170 Prior to April 2012, Mr B recalled staying at the Madeley address for about a week at the time that Ms O was diagnosed with breast cancer (ts 517 - 518).

171 He said that he had no recollection of either W or M in Ms O's bedroom (ts 519).

172 Mr B testified that nearly all of his meals were eaten in Ms O's bedroom because he was 'shy' about being around her children and ex-partner (ts 519).

173 Mr B recalled an incident where he broke R's mobile telephone in the presence of Ms O and two of her children. He said that he broke the telephone in reaction to a person who was ringing R up (ts 520 - 521).

174 Mr B denied that police were called to the Madeley address, and that a complaint was made about him rubbing Ms O's breasts (ts 521).

175 Mr B's attention was drawn to the various allegations against him in the indictment. He denied them (ts 522 - 523). He also denied the allegation made by W that, on one occasion, he was behaving in an inappropriate manner towards W causing Mr M to intervene (ts 523).

Mr B's cross-examination by the prosecutor

176 Mr Monisse did not cross-examine Mr B (ts 523).

177 In cross-examination by the prosecutor, Mr B agreed that he had a 'very strong' sexual relationship with Ms O, but that their relationship did not involve either the use of sex toys, anal penetration or watching pornography (ts 524 - 526). Mr B confirmed that no sexual activity engaged in with Ms O occurred in the presence of the children (ts 531 - 532).

178 As to his relationship with W and M, he said that he 'didn't really get to interact with them' (ts 527).

179 Mr B agreed that there was a shed at the Madeley address and that he took his toolbox which contained, amongst other things, spanners and sockets, to the house (ts 528).

180 He said that when he ate his meals in Ms O's bedroom, he used a fork, knife and spoon (ts 529).

181 Mr B described his relationship with Mr M as 'good', adding 'I'll call him a bro' (ts 529).

182 When the prosecutor asked Mr B why he smashed R's telephone, he said that he did so because R 'was receiving messages from a paedophile' and that he was 'more or less protecting her' (ts 530).

183 When it was put to him that the allegations made by W and M were in fact true, Mr B denied them (ts 533 - 534).

184 Mr M was called to give evidence on behalf of Mr B.

185 Mr M confirmed that he was the father of W, M, S and T (ts 537).

186 Mr M said that he became 'friends' with Mr B while he was living at the Marangaroo address (ts 537). He said that he saw Mr B at the Madeley address 'occasionally' (ts 538).

187 Mr M testified that he observed nothing untoward about Mr B's interactions with any of the children at the Madeley address (ts 539).

188 In cross-examination by Mr Monisse, Mr M said that he never walked in on nor observed Mr B doing anything inappropriate with W or M (ts 540). He denied that there was an occasion on which he:

(c) removed Mr B's belongings from the Madeley address (ts 540).

189 In cross-examination by the prosecutor, Mr M said that he moved out of the Madeley address because he and Ms O were arguing and that he felt 'uncomfortable' and 'out of place' there (ts 545).

190 Mr M said that during the time he lived at the Madeley address, he did shift work in a truck yard. He said that when he worked a night shift, he would arrive home by 10.30 pm or 'sometimes sooner' (ts 547).

191 Mr M accepted that on 28 April 2014, he spoke to Detective Senior Constable Berry by telephone. After some hesitation, Mr M agreed that he telephoned Detective Senior Constable Berry (ts 549, 561). He said that he was informed that Ms O had been charged with sexual offences in respect of the W and M (ts 549). Mr M agreed that Detective Senior Constable Berry wanted to speak to him with a view to taking a statement; however, Mr M claimed that Detective Senior Constable Berry made an appointment for that purpose, but he did not keep it (ts 549 - 550). Mr M elaborated later in his cross-examination that Detective Senior Constable Berry organised 'to come around and pick me up, and [he] didn't show up' (ts 551).

192 Mr M agreed, in effect, that he did not return subsequent calls made to him by Detective Senior Constable Berry. Mr M explained:

Because if he [Detective Senior Constable Berry] can't stick to his agreement, well, that's it (ts 552).

193 Mr M denied the proposition put to him by the prosecutor that he had come to court merely to assist Ms O and Mr B (ts 555).

Detective Senior Constable Berry's further evidence

194 O'Neal DCJ allowed an application by the prosecutor to recall Detective Senior Constable Berry to give further evidence about the efforts made by him to contact Mr M. His Honour allowed the application (ts 559 - 561). His Honour's decision is not challenged in this appeal and it is unnecessary to say anything more about it.

195 Detective Senior Constable Berry testified that a 'detailed statement' of his attempts to contact Mr M had been prepared and disclosed to the defence (ts 561).

196 He said that on 28 April 2014, he received a telephone call from Mr M during which Detective Senior Constable Berry told him that some allegations had been made by his children. Detective Senior Constable Berry said that Mr M indicated he was willing to meet with him to provide a statement and assistance in the investigation (ts 563). He said that he made an appointment with Mr M to meet at Child Abuse Squad offices, however Mr M failed to attend the meeting (ts 564).

197 In cross-examination by Mr Monisse, Detective Senior Constable Berry denied making any arrangement to collect Mr M and bring him to the police station to make a statement (ts 566).

198 Among the written submissions in support of proposed ground 3 are arguments to the effect that O'Neal DCJ failed to adequately direct the jury as to 'significant inconsistencies in M's evidence' (see Mr B's white AB 15 - 16, pars 44 - 52). At the hearing of the appeal, senior counsel for Mr B told the court that this argument, which was not (and never had been) a ground of appeal, was not being pursued (appeal ts 4 - 6).

199 With respect to W, Mr B submitted that his evidence that objects were inserted into his anus was unsupported by any medical evidence. Mr B refers to the evidence of Dr Shah, to the effect that he was unable to confirm the allegations (Mr B's white AB 15, par 41). Mr B points to an absence of evidence from W to the effect that he had suffered any lasting physical effects of the alleged anal penetrations (Mr B's white AB 15, par 42). Mr B also alleges that, having regard to Mr M's evidence, no jury could be satisfied beyond reasonable doubt that the offences occurred (Mr B's white AB 15, par 40).

200 With respect to M, Mr B once again relies upon the evidence of Dr Shah, and points to those parts of Mr Sutherland's cross-examination to which we referred in [45] - [48] of these reasons in which M:

(a) was unable to remember anything 'naughty' being done to her with a knife, a fork, a broom and a scary doll (Mr B's combined blue and green AB 48);

(b) could not recall Mr B putting anything on her vagina (Mr B's combined blue and green AB 50); and

(c) denied that Mr B had ever asked her to kiss his penis (Mr B's combined blue and green AB 56; Mr B's white AB 15, par 43).

201 Mr B says that, because M did not explicitly state in her pre-recorded evidence that the acts said to constitute counts 12 and 13 had occurred, he should not have been convicted (Mr B's white AB 15, par 38).

202 Section 30(3)(a) of the Criminal Appeals Act 2004 (WA) provides that this court must allow an appeal if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported. There is no material difference between the expression frequently used by courts that a verdict is 'unsafe or unsatisfactory', and that which is 'unreasonable or cannot be supported' having regard to the evidence.

203 The relevant legal principles were explained by Buss JA in Mack v The State of Western Australia [2014] WASCA 207 [141] - [147] as follows:

By s 30(3)(a) of the Criminal Appeals Act 2004 (WA), in the case of an appeal against conviction, the Court of Appeal must allow the appeal if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.

In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said, in relation to s 6(1) of the Criminal Appeal Act 1912 (NSW) (which is in substance identical to s 30(3) of the Western Australian Criminal Appeals Act):

Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory (492).

See also Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439, 450 (Gaudron, McHugh & Gummow JJ).

In Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, Hayne J (Gleeson CJ & Heydon J relevantly agreeing) said that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is:

[W]hether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt (M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492 - 493). It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt [113]. (original emphasis)

See also Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).

It is a question of fact whether a conviction is unsafe or unsatisfactory. This court must decide the question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand. See M (492 - 493); SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).

The appellate court's task is not to consider, as a question of law, whether there was sufficient evidence to sustain a conviction. See Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, 473 (Deane, Toohey & Gaudron JJ); M (492 - 493); SKA [20].

Rather, the appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the evidence (in particular, the competing evidence). See SKA [22], [24].

However, an appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty, 'must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations': M (493); R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ); SKA [13].

204 There was no issue at trial that the evidence of W and M was cross-admissible. There was no allegation of collusion or that someone had improperly influenced them to make false allegations against Ms O and Mr B. Nor was there evidence of any motive that would lead either of them to make false allegations, particularly against their mother.

205 Both W and M were very young at the time the offences were alleged to have occurred and, indeed, when they participated in the visually-recorded interviews and their pre-recorded evidence. Given their ages, neither was likely to have been aware of sexual activity of the type they described if they had not experienced it. There was no evidence as to how they would have been able to describe the alleged sexual activity if they had not been subjected to it by the appellants. There was no evidence capable of innocently explaining the allegations they made. The possibility that the allegations were flights of imagination, acknowledging their highly unusual nature, is remote. The evidence of W and M was consistent in the sense that each said that they were sexually abused by Ms O and Mr B in highly unusual ways. Each said that cutlery was used by Ms O and Mr B in at least some of the alleged offending behaviour.

206 The effect of Ms O's and Mr B's evidence was that, on occasions, they ate meals in Ms O's bedroom. Mr B testified that when he did, he used a fork, knife and spoon. Ms O said she used a fork. Mr B said he brought his toolbox to the house, which contained, amongst other things, spanners.

207 Mr B pointed to the evidence of Dr Shah and noted that his evidence did not confirm the testimony of W and M. While that is true, Dr Shah's evidence was to the effect that blunt objects of the type described by W could be inserted into a child's anus without leaving any lasting signs of injury. His findings with respect to W (and, for that matter, M) neither supported nor refuted their allegations.

208 Mr B submitted, in substance, that the evidence of Mr M, the children's father, who lived at the Madeley address for much of the relevant time, contradicted any notion that Ms O and Mr B were behaving improperly towards W and M. Further, Mr M's evidence directly contradicted W's evidence in respect of count 10 that Mr M saw Mr B indecently deal with W, stopped Mr B and then ejected him from the house.

209 Mr M's credibility was very much in issue at trial, particularly in light of the evidence that Detective Senior Constable Berry gave when he was recalled. The jury had the advantage of seeing Mr M give evidence. In our view, it was open to the jury to regard Mr M as an unreliable witness.

210 We now turn to specific aspects of the evidence of W and M. Before doing so, it is appropriate to say something about their demeanour. We have described the way W and M behaved in the pre-recording of their evidence. It was open on the evidence for the jury to conclude that W and M were raised in a highly dysfunctional family environment, putting to one side any allegation of sexual abuse. This is evident from the long-standing involvement of the DCP with the family, and from the fact that they were taken into State care. The reason for the family dysfunction was not an issue canvassed at trial. However, it was well capable of explaining, at least in part, the manner in which each child gave their evidence, and does not compel the conclusion that their evidence was unreliable or untruthful.

211 W's account of the alleged offences unfolded over five visually-recorded interviews. His account of events is sometimes difficult to follow. It is sometimes confusing and not given in any particular chronological order. These aspects of W's testimony must be considered against his age and background and the general thrust of his evidence, which was that he had been sexually abused by Ms O and Mr B on many occasions. It is clear from his pre-recorded interview that he was, at times, confused by the questions that were being put to him.

212 In our opinion, it was well open for the jury to reject the arguments put on behalf of Ms O that W told lies about her and Mr B for fear that he would be made to live with Ms O and D, his brother who had bashed him. While W did not wish to be assaulted by D, or live in an environment where that could take place, it is implausible to suggest that W would, in order to avoid that possibility, make up allegations of sexual abuse. The notion that W derived the allegations the subject of counts 3 to 5 from the nursery rhyme 'Hey Diddle Diddle' was completely speculative.

213 Much was made at trial about whether Mr B sexually penetrated W with an implement he described, at different times, as a 'spanner' and a 'hammer'. The difference could be a result of a child misnaming a commonly-used household tool, rather than seeking to describe different implements. W's confusion about the kind of implement does not demand a rejection of his evidence that a tool was used in the manner he described.

214 There were aspects of W's evidence which were contradictory. Based on the evidence of Detective Senior Constable Berry, it must be concluded that police did not attend at the Madeley address for the purpose of telling Mr B that he should not rub Ms O's breasts in the presence of the children. That said, police did, on occasion, attend at the Madeley address. W also testified that he saw Mr B rub Ms O's breasts.

215 It must also be accepted that Ms MD's evidence concerning W's stealing contradicted his testimony about whether and, if so, to which extent he continued to steal things. However, it was clear from Ms MD's cross-examination that she regarded W, to put it neutrally, as generally truthful. Finally, there is an inconsistency between W's evidence to the effect that police came to the Madeley address on the occasion Mr B smashed R's telephone, and his denial of that fact in the proofing meeting he had with the prosecutor on 1 April 2015.

216 We have carefully considered the contradictions that we have identified. Whether individually or collectively, having regard to what we have already written, we do not regard them as leading to the conclusion that it would be dangerous to permit the guilty verdicts to stand.

217 M was very young when the alleged offences occurred. The account she gave of them in her visually-recorded interview in 2013 occurred some 18 months after the alleged event. By the time of the pre-recording of her evidence in 2015, her recollection had clearly faded. She indicated that she did not recall if anything had been done to her with a knife, fork, scary doll or broom. As we have noted, a viewing of the pre-recorded evidence suggests that she could not bring herself to describe what had occurred. To the extent that she was unable to recall events, given her age and the period of time that had elapsed between 2012 and 2015, it is understandable that her ability to recall events may have diminished. It was open to the jury to reason that M's account of events in her visually-recorded interview in 2013 was a more reliable account of events than her pre-recorded evidence given in 2015. Nevertheless, under questioning by Mr Sutherland, M denied making up a story about a scary doll and said that Mr B had a scary doll in his hand. She also testified that Mr B put the scary doll on her body.

218 Mr B is correct to say that, in cross-examination, M denied having been asked by Mr B to kiss his penis. However, that denial was made at a point in M's pre-recorded evidence where she was clearly distracted. It was open to the jury to give no weight to the denial. It was also open to the jury to give more weight to what M said during the course of her visually-recorded interview.

219 In our opinion, the answers M gave in cross-examination do not render the guilty verdicts unreasonable.

220 Although proposed ground 3 only concerns Mr B, the evidence of Ms O and Mr B must be considered. It is clear from reading the trial transcript that they strongly denied the allegations made against them on their oaths. Those denials were not shifted in cross-examination. But it is also clear that the jury, by their verdicts in respect of counts 3 to 13, rejected those denials. The jury had the considerable advantage - one that we do not have - of seeing the appellants testify.

221 We are mindful that the jury returned verdicts of not guilty in respect of counts 1 and 2. Although no argument was addressed to this court, in our opinion these verdicts do not render the verdicts of guilty on counts 3 to 13 an affront to logic and common sense: see MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, 367. The verdicts are not inconsistent.

222 On our assessment of the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt as to Mr B's guilt. It would not be dangerous in the circumstances to permit the verdicts to stand. The convictions are not unreasonable and were supported on the evidence.

223 We would grant leave to appeal on proposed ground 3, but the ground fails.

Conclusion on the appeals against conviction

224 In our opinion, both Ms O's and Mr B's appeals against conviction should be dismissed.

The appellants' applications for leave to appeal against sentence Ms O's application for leave to appeal against sentence

225 Ms O seeks leave to appeal against sentence on three proposed grounds. Proposed ground 1 alleges that the sentence imposed in relation to count 6 (indecent dealing with W by procuring him to touch her vagina) was manifestly excessive. Proposed ground 2 alleges, in substance, that O'Neal DCJ erroneously characterised the seriousness of Ms O's offending in count 6. Proposed ground 3 alleges that the total effective sentence imposed upon her infringed the first limb of the totality principle.

Mr B's application for leave to appeal against sentence

226 Mr B applies for leave to appeal on one proposed ground, namely that the total effective sentence imposed upon him infringed the first limb of the totality principle.

The appellants' antecedents Ms O's antecedents

227 Ms O was 35 years of age at the date of sentence. She described her upbringing as 'normal and good' (ts 746). As we have already pointed out, she has six children, all of whom have been placed in the care of the DCP (pre-sentence report dated 19 June 2015, page 2). Ms O's breast cancer is currently in remission. She has no prior criminal record. Ms O has a long-standing addiction to methylamphetamine (ts 747).

228 Ms O maintains her innocence and exhibited no victim empathy (ts 751 - 752). She described W to the author of the pre-sentence report as 'a chronic liar' (pre-sentence report dated 19 June 2015, page 1). Ms O also said that she was still in a relationship with Mr B, despite that relationship being marred by episodes of domestic violence and substance abuse (pre-sentence report dated 19 June 2015, page 2).

229 The sentencing judge was provided with a report written by a clinical psychologist who has treated Ms O since August 2014. It is unnecessary to refer to that report as his Honour placed little weight on it due to the author's role as advocate for Ms O (ts 747).

230 Mr B was 38 years of age at the date of sentence. Mr B described his early years as 'rough' (ts 748). That said, he was not subject to violence or neglect, and he described his upbringing as 'good' (pre-sentence report dated 15 June 2015, page 2).

231 Mr B did not complete year 9 and has had limited employment. Mr B has a long-term and significant history of alcohol and illicit drug abuse (ts 748). With respect to the latter, he told the author of the pre-sentence report that he was a 'full on' user of intravenous methylamphetamine following his release from prison in 2011 (pre-sentence report dated 15 June 2015, page 3).

232 Mr B has a lengthy and serious criminal history, including for offences of assaulting a public officer (2002); burglary and aggravated burglary (2002, 2005, 2012, 2013); armed robbery in company (2005); stealing a motor vehicle (2005); common assault and assault occasioning bodily harm (2008); aggravated assault occasioning bodily harm (2008); as well as a substantial number of traffic offences. He was sentenced to 4 years' imprisonment in 2005 for the armed robbery offence and a total of 4 years' imprisonment for the serious assault offences committed in 2008 (ts 748).

233 Like Ms O, Mr B does not acknowledge his guilt (ts 752). He maintains that W was 'telling stories' and that 'nothing happened' to W and M (pre-sentence report dated 15 June 2015, page 1).

234 In accordance with the jury's verdict on count 3, his Honour found that Ms O had sexually penetrated W by penetrating his anus with the handle of a knife (ts 743). In relation to counts 4 and 5, he acknowledged that the jury had acquitted Ms O of sexually penetrating W's anus and had convicted her of the lesser offence of indecent dealing with a child under the age of 13 years (ts 743).

235 With respect to count 6, he noted that Ms O and Mr B had each procured W to touch Ms O's vagina. He accepted W's testimony that, at the time of the offence, he expressed his disgust at what he had been told to do (ts 742). As to count 7, his Honour may be taken to have accepted that Ms O interrupted Mr B in an act of fellatio on W. Similarly, in respect of count 8, he may be taken to have accepted that Ms O stopped Mr B while he was in the process of committing the offence, an instance where Mr B forced W to take Mr B's penis in his mouth (ts 743). With respect to count 9, his Honour acknowledged that the jury acquitted Mr B of the allegation of sexually penetrating W, but convicted him of the lesser offence of indecent dealing of a child under the age of 13. His Honour found that Mr B 'bailed [W] up in the shed and rubbed a spanner between his buttocks' on the outside of his clothes with sufficient force to cause bleeding in that area (ts 743 - 744).

236 With respect to count 10, his Honour found beyond reasonable doubt that Mr B ejaculated in the course of rubbing his penis against the area of W's groin while they were lying 'stomach to stomach' (ts 744). It will be recalled that in relation to this count there was some confusion at trial about which incident was the charged act. His Honour's finding of fact that Mr B ejaculated on W is not consistent with the version of facts ultimately left to the jury. There is no ground of appeal with respect to this. The jury's verdict with respect to count 10 involved Mr B rubbing his penis against W while they were lying stomach to stomach. In all of the circumstances, little, if anything, would have turned on the finding that Mr B ejaculated.

237 As to count 11, his Honour noted W's evidence that he rubbed Mr B's penis because '[Mr B] made me to [sic]' (ts 744).

238 His Honour made no particular findings with respect to count 12. In respect of count 13, his Honour merely found consistently with M's evidence that Mr B exposed his penis and asked her to kiss it (ts 744).

239 The learned sentencing judge said that there were 'limited matters' that he could take into account in mitigation with respect to Ms O (ts 747). Those matters were the absence of prior offending on her part and her history of work. No issue is taken with this finding. Similarly, his Honour said that there was little in the way of mitigation with respect to Mr B, apart from the fact that he has 'no record of offending of this kind' (ts 749).

240 His Honour found, based on the evidence of W, that, as bad as their joint offending was, Mr B's offending was 'more frequent and more flagrant' (ts 749). The learned sentencing judge found that Mr B used a degree of force and coercion against W. That said, his Honour described Ms O's breach of trust as being 'of a greater scale' (ts 749). The learned sentencing judge characterised both appellants' offending as being 'objectively very serious' (ts 749). His Honour noted the very young age of W and M and said that, given the 'considerable depravity', the indecent dealing offences (counts 4, 5, 6, 10, 11, 12 and 13) 'rank amongst some of the most serious that I have seen or am aware of' (ts 749 - 750).

241 His Honour had regard to matters of parity (ts 749) and totality (ts 750).

Legal principles applicable to both applications

242 This court is not entitled to intervene unless it is demonstrated that the sentencing judge made a material express or implied error. Proposed ground 2 in Ms O's appeal appears to be an allegation of express error. The other proposed grounds in Ms O's appeal, and the proposed ground of appeal relied upon by Mr B, are examples of alleged implied error; that is, although it is not possible to discover the exact nature of the error, the result is so unreasonable or unjust that this court must conclude that a substantial wrong has occurred.

Disposition of the appellants' applications for leave to appeal against sentence Disposition of Ms O's application for leave to appeal against sentence

243 It is convenient to deal with proposed ground 2 first.

244 As we have already noted, the learned sentencing judge expressed the view that the indecent dealing offences 'rank amongst some of the most serious that I have seen or am aware of'. Ms O submitted that the circumstances of count 6 did not warrant that categorisation. We do not accept this submission.

245 In substance, O'Neal DCJ's statement was no more than a statement that the indecent dealing offences were very serious. Count 6 involved the procurement of W to touch Ms O's vagina. It was an offence in which both Ms O and Mr B acted together. It was a complete dereliction of Ms O's duties and, as the learned sentencing judge observed, W felt disgusted by what had occurred (ts 742). His Honour, an experienced sentencing judge, was entitled, as he did, to call upon his experience in order to rank the seriousness of the offences committed by Ms O.

246 Leave to appeal on proposed ground 2 should be refused.

247 The question of whether the individual sentence on count 6 is manifestly excessive (proposed ground 1) is really subsumed into the larger question of whether the total effective sentence was excessive (proposed ground 3): Giglia v The State of Western Australia [2010] WASCA 9 [39] - [40].

248 The first limb of the totality principle is well understood: the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to an offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24].

249 The appellants' submissions on the question of totality rely principally upon a comparison of the circumstances of the present case with a limited number of cases said to be comparable, namely R v 'G' [2001] WASCA 160; MPD v The State of Western Australia [2008] WASCA 57; M v The State of Western Australia [2010] WASCA 77 and ARK v The State of Western Australia [2014] WASCA 45.

250 In our opinion, Ms O's claim that the total effective sentence imposed upon her infringed the first limb of the totality principle is without merit. Ms O committed multiple serious sexual offences against two of her children, both of whom were particularly young and completely vulnerable. They were of an unusually depraved nature and were committed, in some instances, together with Mr B. They were an abject breach of trust.

251 Apart from the absence of a prior criminal record and some work history, there are no mitigating factors. Given the serious nature of the offending, the mitigating factors that were identified could not be accorded much weight.

252 We have considered the cases cited on Ms O's behalf. It is unnecessary to describe them in detail. It is enough to say that they do not, to our mind, support the contention that the total effective sentence imposed upon Ms O infringed the first limb of the totality principle.

253 In our view, the total effective sentence imposed upon Ms O was an appropriate and just measure of the overall criminality in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to her personally.

255 Insofar as proposed ground 1 remains live, we do not regard the sentence imposed on count 6 as being manifestly excessive. While it is a high individual sentence, for the reasons which we have already described, it involved very substantial criminality beyond that usually encountered in such cases and was, in our opinion, substantially more serious than in other cases. We would not grant leave to appeal on proposed ground 1.

256 As leave to appeal on all grounds should be refused, Ms O's appeal against sentence should be taken to have been dismissed.

Disposition of Mr B's application for leave to appeal against sentence

257 Mr B was convicted of more offences than Ms O. Much of what we have already said about the seriousness of Ms O's offending applies to Mr B, although Ms O's offending involved a greater breach of trust. Not only was Mr B's offending more numerous, it was, as his Honour found, more frequent and more flagrant and involved, in the case of W, a degree of force and coercion.

258 Mr B's antecedents afforded no mitigation. Overall, there was very little that could be said in mitigation for Mr B.

259 Mr B's submissions in support of his application for leave to appeal against sentence are largely a summary, without any meaningful analysis, of a large number of cases involving intrafamilial sexual abuse of children by offenders in a position of trust being, in the order they were cited, MAS v The State of Western Australia [2012] WASCA 36; ARK; JS v The State of Western Australia [2012] WASCA 198; The State of Western Australia v Prince [2011] WASCA 22; EPD v The State of Western Australia [2011] WASCA 264; The State of Western Australia v FJG [2012] WASCA 206; RDC v The State of Western Australia [2012] WASCA 16; M v The State of Western Australia [2007] WASCA 238; Truscott v The State of Western Australia [2007] WASCA 62; M v The State of Western Australia [2006] WASCA 256; TJD v The State of Western Australia [2004] WASCA 310; The State of Western Australia v JPR [2004] WASCA 183 and B v The Queen [2002] WASCA 236. These cases, which do not require detailed discussion, reveal the great variation that is possible in cases of this kind and of the circumstances of an offender. We do not regard them as supporting the proposition that the total effective sentence imposed upon Mr B offended the totality principle.

260 In our opinion, the total effective sentence imposed upon Mr B bore a proper relationship to his overall criminality, viewed in its entirety, having regard to his antecedents. We would refuse leave to appeal on the sole proposed ground relied upon by Mr B, with the consequence that his appeal against sentence should be taken to have been dismissed.

Conclusion on the applications for leave to appeal against sentence

261 In our opinion, both Ms O's and Mr B's applications for leave to appeal against sentence should be refused, with the consequence that their appeals against sentence should be taken to have been dismissed.

262 The orders that we would make in Ms O's appeal against conviction (CACR 127 of 2015) are as follows:

1. Leave to appeal on proposed ground 2 is granted.
2. The appeal is dismissed.

263 The orders that we would make in Ms O's application for leave to appeal against sentence (CACR 128 of 2015) are as follows:

1. Leave to appeal on all proposed grounds is refused.
2. The appeal is dismissed.

264 The orders that we would make in Mr B's appeal against conviction (CACR 132 of 2015) are as follows:

1. Leave to appeal on proposed grounds 2 and 3 is granted.
2. The appeal is dismissed.

265 The orders that we would make in Mr B's application for leave to appeal against sentence (CACR 133 of 2015) are as follows:

1. Leave to appeal on proposed ground 1 is refused.
2. The appeal is dismissed.

[3] The alternative charge for count 5 was mistranscribed as being in relation to 'count 4' (ts 709).

[4] The verdict as to Mr B on count 12 was mistranscribed at ts 711 - 712 as 'not guilty': see appeal ts 20 - 21.

[5] The commencement date of Mr B's sentences was mistranscribed at ts 755 as '13 April 2014' and then 'August 2014'.

[6] Mr B's combined blue and green AB 273 - 280; Ms O's combined blue and green AB 95 - 102.

[11] Mr B's combined blue and green AB 281 - 323.

[12] Mr B's combined blue and green AB 324 - 336.

[13] Mr B's combined blue and green AB 337 - 364.

[14] Mr B's combined blue and green AB 365 - 408.

[15] Mr B's combined blue and green AB 409 - 433.

[16] Mr B's combined blue and green AB 95 - 272.

[17] Mr B's combined blue and green AB 8 - 94; Ms O's combined blue and green AB 8 - 94.