GUPTA -v- DIRECTOR OF PUBLIC PROSECUTIONS [2026] WASC 75 (16 March 2026)

The complainant and the introduction to the appellant and his firm

1. At the time of the trial, the complainant was a 26-year-old woman, working as a disability support worker and in aged care. She was born in Nepal. She came to Australia in March 2017 to study. She went back to Nepal in 2018 and married. She left her husband and came back to Australia and eventually divorced in 2021.
2. When the complainant arrived in Australia, she studied accounting and was living in Australia on a student visa (subclass 500). After completing her studies in 2021, she was on a temporary resident visa (subclass 485). This visa was set to expire in August 2024.[1]

1. In advance of her visa expiration in August 2024, the complainant wished to consult with a migration agent. Mr Z was a friend of the complainant. Mr Z referred the complainant to a migration firm, Red Earth Migration (Red Earth). The appellant was the founder and managing director of Red Earth.
2. On the evidence, the complainant's first contact with Red Earth was by phone directly to the appellant's mobile phone on 5 March 2024.[2] Presumably, she received that number from Mr Z, although the issue was not explored. The complainant called the appellant's mobile phone. He was not able to answer. The appellant sent a text message, 'an I call you later?'. The complainant answered, 'Yes sure'.
3. The appellant called back the complainant that evening. In that conversation, the complainant explained her situation. The appellant in his evidence said that he explained that he did not personally deal with such matters, but he would get someone from his team to arrange an appointment. The complainant did not give any detail of that initial conversation.
4. The appellant then sent a further text at 6.40 pm asking for the complainant's 'email id and full name'.[3] An appointment was then arranged for 8 March 2024. On 7 March 2024, the complainant texted the appellant directly asking for the address and time for the appointment. The appellant provided that information.

1. On 8 March 2024, the complainant attended Red Earth at 4.30 pm. She attended with a friend. The complainant met the appellant at the reception. The appellant himself was preoccupied with a promotional photoshoot. He introduced the complainant to another migration agent, who was his wife, Ms Deepa Gupta. The appellant's evidence was that Ms Gupta was the appropriate person because, like the complainant, she had a Nepalese background.[4]
2. In the meeting with Ms Gupta on 8 March 2024, the complainant explained her situation. The complainant accepted in her evidence that Ms Gupta told her that her best option was a further student visa. The complainant accepted that she also asked Ms Gupta whether Red Earth was looking for a graduate accountant, and that she asked Ms Gupta if Red Earth could provide a sponsorship. Ms Gupta advised the complainant that the student visa was her best option. The complainant accepted that she then pressed Ms Gupta asking, 'seriously, there's no other option?'[5]
3. The complainant also accepted that she asked Ms Gupta if she would be better off as a dependent of a student visa holder. On the complainant's own evidence, the meeting concluded on the basis that the only realistic option was a student visa and that she would let Red Earth know when she wanted to begin that process.[6]
4. After that meeting, the complainant had a further brief exchange with the appellant at the reception. During that exchange, she heard Ms Gupta tell the appellant to pick up their children. The complainant denied in her evidence that she must have known at that point that Ms Gupta was the appellant's wife.[7]
5. Ms Gupta herself gave evidence of her meeting with the complainant on 8 March 2024. Her evidence was that she formed an unfavourable view of the complainant. That was because she felt that the complainant had displayed an inappropriately flirtatious attitude towards the appellant, and also because the complainant intimated in the meeting that she might be in a position to claim an entitlement to a visa as a dependent when she was not in a genuine relationship.[8]
6. There appears to have been no further contact between the complainant and Red Earth until 18 March 2024.

1. The subsequent meeting at which the alleged indecent assault took place was on 19 March 2024.
2. In her examination-in-chief, the complainant was asked, 'How was that meeting arranged?'. In answer to that question, the complainant gave the following evidence:[9]

So that meeting was arranged through text messages. So when I was about to make a booking, he said that he was not working that day from the office. He said that he was working from home. So he sent me the location - location of one of the place. I was - that time I was working, so I couldn't see the location, but I told him that I will be there on time, like, whatever time he asked me to come there. But later on, I had to stay back like half an hour, so I asked him to meet, like, around 4 o'clock for the appointment, but he said that he was heading to the - his office, like, Osborne Park to get his file documents, so he said that if I would be there by 6 o'clock. I said, 'Okay', because my house is just like 12, 13-minute drive from Osborne Park. So I said, 'Okay, I can meet that time'.

1. In cross-examination, by reference to the contemporaneous text messages, a more fulsome picture emerged.
2. On Monday 18 March 2024, the complainant initiated contact directly with the appellant by text message, stating (not corrected for spelling errors):[10]

COMPLAINANT:

Hello anand bhai,

How are you?

I want to start my process regarding my student visa ASAP to be on safe side now, what should I do now.

And also regarding accounting job, when are u free to meet, Please let me know.

Thank you.

APPELLANT:

Sure [Complainant] R u free this evening tanks

COMPLAINANT:

I am free now, not this eveneing working from 2:30

APPELLANT:

What time do you finish?

COMPLAINANT:

10:15

APPELLANT:

Oh.

Let's meet tomorrows sometimes id you are free

COMPLAINANT:

How about Wednesday?

Morning

I am running out of time

Too worried

APPELLANT:

Sure Wed Is fine, I understand.

R u free tomorrow eve

Evenings are better for me

COMPLAINANT:

I am working morning till 10:15

Wed Thursday working afternoon

APPELLANT:

Ok, see if tomorrow evening 5 or 6 any better for you

COMPLAINANT:

I will meet you on Friday I have day off

APPELLANT:

I will be travelling unfortunately

COMPLAINANT:

So regarding student visa who should I contact? In the office or

APPELLANT:

I will arrange.

Give me 2 min

COMPLAINANT:

Ok

APPELLANT:

Pardeep will call you re student visa thanks

COMPLAINANT:

Ok

Thank u

1. What emerged from that exchange is that it was the complainant that initiated contact with the appellant and wanted to meet with him directly, and somewhat urgently. When this was not practical, it was the appellant who organised for someone else at Red Earth, Pardeep, to contact the complainant.
2. It was put to the complainant in cross-examination that Pardeep did in fact call her. Her initial response was to say that she did not remember that.[11] When the complainant was reminded that Pardeep had provided her with a document checklist, she then remembered the contact from Pardeep, both a phone call and an email. The evidence suggested that the complainant did not revert to Pardeep with the information requested.
3. On the next day, 19 March 2024, the contemporaneous text messages show that notwithstanding the communications and request from Pardeep, the complainant again initiated contact to arrange a meeting with the appellant. The following text exchange took place:[12]

COMPLAINANT:

Hi Anand,

Are you free to meet this afternoon?

Please let me know, I will call in sick on my work.

Thank u

APPELLANT:

Ok can meet thanks

COMPLAINANT:

What time?

APPELLANT:

I am working from home in Doubleview so meet nearby

COMPLAINANT:

Ok sure

APPELLANT:

Is 10 am any good for you?

COMPLAINANT:

I am free after 2pm

APPELLANT:

then 2 pm ok?

COMPLAINANT:

I finish at 2, may be will reach there at 2:30pm

APPELLANT:

Sure thanks

(Location of general Public Food Co - 5/19 Doric St, Scarborough WA 6019 on google maps)

COMPLAINANT:

Thank u (happy emoji)

COMPLAINANT:

Hello anand

Is it ok if I meet u at 4pm I had to stay back little longer.

Please let me know.

Thank u

APPELLANT:

Sure thanks

COMPLAINANT:

thank u so much

APPELLANT:

R u ok to meet around 6 then

COMPLAINANT:

Yes

APPELLANT:

Great see you at 6

COMPLAINANT:

See u

APPELLANT:

Hi [Complainant] I will be heading towards office to pick up a file, let's meet in the Osborne park office at 6 thanks

COMPLAINANT:

Ok Sure

COMPLAINANT:

I am here

In the parking

1. The messages establish that at 7.28 am, the complainant initiated and sought a meeting that afternoon for which she would 'call in sick'. The appellant agreed to meet. He was working from home and proposed a meeting in a nearby café. The appellant initially agreed to a time of 2.30 pm. That was then deferred to 4pm at the complainant's request. At the appellant's request, it was deferred again to 6.00 pm. The appellant said he needed to go to his office to pick up a file and he proposed that the 6.00 pm meeting be at the Red Earth offices. The complainant agreed. The complainant arrived at 5.50 pm.
2. On the unchallenged evidence, it was established that the appellant was working from home because his wife had gone overseas due to the death of her father and the appellant had the care of their two children. The appellant was going into the office that evening to pick up things to assist his son in an exam he was doing the following day. The evidence established that, prior to 19 March 2024, the appellant and his children had booked flights to join Ms Gupta overseas to leave at 6.40 am on Thursday 21 March 2024.[13]
3. The critical aspects of what occurred at the meeting of 19 March 2024 evening were the subject of diametrically opposing versions of the complainant and the appellant.
4. It was not in dispute that the complainant met the appellant outside the building and that they walked inside together. The Red Earth offices are on the first floor. The entry into the Red Earth offices is to a reception area which comprises a reception desk and a seating/waiting area. Immediately adjacent to the reception area is a boardroom. The wall between the boardroom and the reception area is glass with Venetian blinds.
5. CCTV footage was tendered through Ms Gupta of the reception area, both with the lights on and then turned off. The footage was not on a date that was relevant to the alleged incident, but was tendered to demonstrate the usual capacity of the CCTV cameras with the lights both on and off.[14]
6. The CCTV footage tendered (which as noted, was not taken on the day in question) shows the Venetian blinds tilted in the open position so that the inside of the boardroom is fully visible from the reception area. There was at least one CCTV camera which produced an image from behind the reception desk straight into the boardroom. Through the Venetian blinds in the open position, that vision into the boardroom was clear, both with the lights turned on and the lights turned off.
7. The main feature of the boardroom is a rectangular-shaped board table. The long sides of the rectangular table were not completely straight; they were lightly curved, giving what might be regarded as a slightly oval appearance. In the ordinary course, it is designed comfortably for three board chairs on each side and one at each end. The photograph of the boardroom and the board table and chairs presented to the complainant in evidence also shows three chairs on each side and one chair at each end.
8. The meeting commenced with the appellant taking the complainant into the boardroom and sitting at the boardroom table.
9. There was no one else in the boardroom during the meeting. The complainant's evidence was she saw another person leaving at the time that she and the appellant arrived.[15]
10. In her evidence, the complainant described the seating arrangement as follows: 'So when we entered to the room, he asked me to be seated, so I sat down on the chair, and then he sat down. It was like a round table, and then he sat next to me from the table, like around, like, two metre away.'[16]
11. A short time later in her evidence, the complainant said: 'So he was - during the conversation, he was sitting next to me'.[17] The learned magistrate then sought to clarify that answer. The complainant then agreed with the magistrate's suggestion that the appellant was sitting 'opposite' her.
12. In cross-examination, the complainant agreed that the appellant sat opposite her. The cross examiner then put to her that she had described the table as a 'round' table in evidence-in-chief, whereas it really was a long table. The complainant agreed that it was a long table. The learned magistrate intervened to say that her Honour did not remember that the complainant had said that the table was round. As noted above, the transcript discloses that the complainant did say 'It was like a round table'.[18] The cross examiner went on to clarify that the appellant and the complainant were on opposite sides of the table.
13. In cross-examination, a photo of the boardroom and board table was put to the complainant, together with notations indicating where each of them was sitting. The notations on the photograph show that they were sitting on opposite sides of the board table. When asked whether the picture indicated the position of the seating, the complainant did not agree.[19] In re-examination, the same picture was put to the complainant, and she was asked to point out 'which seat you're saying you were in'.[20] The complainant gave the following evidence:[21]

COMPLAINANT: Yes. I was just right here. At the edge of the chair here, sorry, at the edge of the table. My chair was here, and then he was not inside the table. He was sitting here like this, like, far from the - not in the table, though, which has shown in the picture. Not like that, but he was sitting here in this position.

O'CONNOR, MR: Okay. But the actual chairs that are marked there, are they the correct chairs? Chair like this one this, this chair? Yes?

COMPLAINANT: I don't remember if it's the same chair, but I can remember that's the wheel because he was, like, rolling around like while talking to me. He was just going round and round, so.

1. The complainant then marked the picture with her recollection of how the chairs were placed. The photo with the complainant's notation was tendered.[22]
2. I note that the position marked by the complainant places her chair in its unnatural position up against the footing of the table which extends virtually to the edge of the table. That would be neither a natural nor a comfortable position to be seated at the table.
3. The complainant said she did not remember whether the Venetian blinds were open or closed. However, the complainant agreed that from the reception, it was possible to see through the glass windows into the boardroom.[23] It is difficult to see how she could have had that recollection unless the blinds were open. She recalled that the door was closed.
4. The complainant gave evidence that the appellant did not remain in the boardroom the entire time because he was in and out taking phone calls. The complainant's evidence was that in response to the appellant's questions, she told him about her history in Australia. Her evidence was that the appellant spoke of the prospect of a sponsorship that would cost $70,000 and that the appellant referred to another client who was required to pay $50,000, but he managed to have her only pay $25,000 through an arrangement with her employer.
5. The complainant then gave the following evidence about what occurred:[24]

COMPLAINANT: So after that conversation, like, he he just - he was sitting, like, this side, and then he just rolled his chair towards me, and he said to me, 'Why are you sitting so far, like, come near to me.' And I was like the chair was similar like that with wheel so, yes, he just rolled his chair towards me, and then he pulled my chest toward him and then our lap was, like, touching each other, and he suddenly grabbed my shoulder and forcefully kiss on my lip.

O'CONNOR, MR: How did you feel about that happening?

COMPLAINANT: I was blank, and I was shocked, like, I was not ready for that kind of action, I was not prepared. I didn't expect this kind of action would happen in the office.

O'CONNOR, MR: What did you do in response to that?

COMPLAINANT: I told him that I was not comfortable, I pushed him back. So luckily, same time, his phone rang or something, he got a message. He just went out of the room, took the call, and he came back. He came back, turning the light off of the whole office. I was, like, very scared that moment, like, 'What's going to happen?' But I was, like, quiet. I was just sitting quiet like that, and then he just came quickly, turning the light off. And then I was sitting and I was sitting, and he just came and, like, touched my - both of the breasts with his both hands and -

O'CONNOR, MR: He touched both of your breasts with his hands?

COMPLAINANT: Yes. And then I said, 'What are you doing?' And then he just went out and turned the back - turned that light back on. He came quickly, and then he sat down in the chair, and he was, like, you like, I was feeling uncomfortable, and then he was, like, 'Why are you feeling uncomfortable? Come and sit on my lap,' like, this patting, like he was literally patting his lap, like, 'Just come and sit. You will feel comfortable here.'

O'CONNOR, MR: Unfortunately, I'm going to have to ask you a few more questions about the touching. So you said he touched both your breasts with both his hands. Was it a light touch or a forceful touch?

COMPLAINANT: It was a forceful touch.

O'CONNOR, MR: And how long was he touching you for?

COMPLAINANT: A few seconds, like, I just pushed him away. I said, 'No,' like, my - the word I put all these things, like, 'No, what are you doing? No.'

1. The complainant gave evidence that she then said she was hungry as she had not eaten that day. Despite the appellant offering her food and drink, she rejected the offer and said that she wished to go home. The complainant left the boardroom and went into the adjacent front reception area.
2. During evidence-in-chief, the complainant explained that she observed a camera in the reception area near the boardroom.[25] In cross‑examination, when asked about the location of the camera more precisely, the complainant confirmed that it was above the reception desk and 'facing the conference room.'[26] The complainant said she asked the appellant if the camera was working. In response, the appellant asked her if that was why she was feeling uncomfortable about what happened. The appellant then confirmed that the camera did work and can be viewed on his phone as well. The complainant said she responded that the reaction was not due to the camera but because 'I was not ready for this moment. I was not ready for that action. I was not prepared'.[27]
3. In the complainant's evidence, she stated that she then asked where the toilet was, and left for approximately 'one minute, two minutes'.[28] Upon her return, the complainant said she was waiting in the reception area for the appellant as she saw him turning off the lights and coming out of the rooms.
4. After the appellant returned to the reception area, the complainant and the appellant both went down the stairs on their way to exit the building. The complainant gave the following evidence regarding a conversation they had as they were going downstairs:[29]

O'CONNOR, MR: Was there any further conversation as you were going downstairs?

COMPLAINANT: Yes, he asked me to meet, like, next day. He was asking, 'Are you available to meet next day for lunch?' I told him that, 'I'm busy with work. I will let you know.'

1. At the bottom of the stairs, the complainant stated during evidence-in-chief that the bottom exit door was locked, and that the appellant had to put in a code on the pad to the left of the door for her to exit the building. It was later clarified in her cross-examination that once the door had opened, the appellant told the complainant to wait a few seconds as he put the alarm on with the code. The complainant waited outside for him to input the code.
2. Once outside, the complainant gave evidence that both the complainant and the appellant remained for a few more minutes and conversed about their next meeting. The appellant relayed to the complainant that he would be flying to Nepal on 22 March for 2 - 3 weeks and would be able to update her regarding her visa process once he was back.
3. The appellant's unchallenged evidence was that there was no contact between the appellant and the complainant after the meeting on 19 March 2024.[30] The complainant applied for a violence restraining order against the appellant on 3 May 2024.[31]
4. Before turning to the evidence of what followed after the meeting on 19 March 2024, I turn to the appellant's version of the meeting.
5. The appellant's evidence of entering the building of the Red Earth office with the complainant was broadly consistent with the complainant's evidence.
6. On entering the Red Earth offices, the appellant gave evidence that one of his senior accountants was still present in the office at this time, and witnessed him getting water from the dispenser and then walking back to his desk. There was no further evidence about that individual or any other person who may have been or remained in the office.
7. The appellant and the complainant entered the boardroom and sat down on the chairs around the table. The appellant gave the following evidence during examination-in-chief:[32]

WILSON, MR: And once inside, where did you and [the complainant] sit?

APPELLANT: So she sat closer to the entrance door of the boardroom, and I sat opposite to her on the other side.

WILSON, MR: Is she sitting on the long side of the boardroom table or the short side?

APPELLANT: On the long side. And I was also sitting on the long side, but directly opposite to her.

1. The appellant said during examination in chief that he was sitting directly opposite the complainant for the entire duration of the meeting, not near the corner legs of the table as suggested by the complainant during her evidence.
2. The appellant gave evidence as to what was discussed with the complainant throughout the meeting. These included:[33]

(1) The complainant asked the appellant if any graduate jobs at the firm were available. The appellant responded that although there were no open graduate positions, he was happy for the complainant to share her resume, and he could circulate the resume to colleagues and his network. The appellant also clarified that he could not help the complainant with providing her or guaranteeing a sponsorship;

(2) When discussing the option of the student visa, the complainant explained to the appellant that the tuition fee was expensive and that she could not afford to pay such fees, especially if she were to give up full-time work to pursue extra study;

(3) The complainant asked the appellant for help with a training visa as an avenue to secure her position in Australia, while she was waiting for her expression of interest outcome. The appellant responded to the complainant that it would be unlawful to do so;

(4) The complainant mentioned to the appellant that although she was dating someone, she did not want to pursue the pathway of a partner visa;

(5) The complainant also mentioned details of her family, dating life and life back in Nepal. The appellant described this interaction as the complainant acting 'a bit friendly'.

1. The appellant's evidence was that throughout these discussions, the appellant heard the complainant's stomach growling and offered food and drink to her. Despite the complainant declining the offer, the appellant said that he left to get something from the pantry after hearing the persistent growling of the complainant's stomach. The appellant returned with cheese and crackers, after which the complainant placed them in her bag.
2. The appellant then gave the following evidence:[34]

APPELLANT: I was still sitting in my chair, so I gave her the cracker, as I said, and within a couple of minutes she started walking towards me.

WILSON, MR: When you gave her the cheese and cracker, where was she?

APPELLANT: She was in her chair.

WILSON, MR: And where in relation to the table and where you were, was she?

APPELLANT: So where we originally sat, exactly at the same locations.

WILSON, MR: So is that on opposite sides of the table?

APPELLANT: Yes.

...

WILSON, MR: What happened then?

APPELLANT: So I was just checking something on my phone, so I did not notice her walking. But, you know, when she came really up to me, you know, she leaned on to me and then tried to kiss me.

WILSON, MR: Did she say anything to you?

APPELLANT: She said, you know, 'You're such a lovely man. Why don't you please help me?'

WILSON, MR: And she tried to kiss you?

APPELLANT: Yes.

WILSON, MR: Did she actually get to kiss you?

APPELLANT: No. I just used my hand to just, you know, push her. So on the - you know, like this side of the shoulder, I just pushed her. I said, 'Stop.'

1. On further questioning, the appellant explained that at the time the complainant tried to kiss him, she said, 'I don't have that sort of money to really go for the student visa but I can help you in many ways'. The appellant's evidence then continued:[35]

WILSON, MR: So when you pushed her away after she tried to kiss you, what happened then?

APPELLANT: It was just, you know - momentarily I got very angry, and I just shouted at her, that, like, 'You've gone made. What are you doing?' She completely froze. She was trying to walk towards me again, and I said, 'Just stop right there.' I just told her, 'Just get lost. This kind of behaviour, if I report, your visa will be cancelled. You will be thrown out of the country.'

1. The appellant then gave evidence in the following terms:[36]

APPELLANT: Suddenly she became very apologetic, and she just said you know - like, she just misunderstood. She just thought maybe, you know, like, you know, 'Just like other people who are after these kind of benefits, you know, you want these things as well.' And I said, 'Look, I don't want any benefits from you.' I'm just kind of shaking. I'm just, you know, like, 'I'm feeling disgusted because of your behaviour.

WILSON, MR: What happened then?

APPELLANT: She kept apologising. I just wanted to get out of that place.

WILSON, MR: You wanted to get out?

APPELLANT: Yes. I said, 'Just leave. Leave the office.' And then she said, 'Look, I worked very hard to come here. Please forgive me. I did not do it. I'm not that kind of person. I just accidentally did it. I just misunderstood.

1. The appellant then gave evidence that based on his own personal experience he did have sympathy for the desperation of the complainant's predicament. He resolved that he should forgive her. At that point, the appellant's evidence was:[37]

APPELLANT: I told her, 'Go home. Do whatever you like. I'm not interested in dealing with you.' And then she said, 'Are you going to report me?' And I said, 'Look, I'm not reporting you anywhere. I'm done with you.'

WILSON, MR: Then what happened? Did you leave the room?

APPELLANT: Yes. So I said, 'Look, I really need to leave.' And we walked together.

1. On the appellant's evidence, they both left the boardroom and walked into the reception where the complainant again asked for forgiveness and the appellant repeated that he was not going to complain about her. The complainant was very apologetic, claiming that it was a misunderstanding and that she would behave now and not pursue any of the 'shortcuts' to get her visa or help from the appellant.
2. The appellant's evidence was that after they exited the boardroom to the reception area, the appellant left to retrieve the laptop and piece of paper required for his son's exam the following day from the corner office (laptop) and behind the reception (paper). Once the appellant returned, his evidence was that the complainant asked him where the toilet was, and he directed her towards it. The complainant left and the appellant went back to his office to try and find the charger for the laptop. Failing to find it there, the appellant said that he returned to the reception area, and the complainant returned at the same time.
3. The appellant did not give evidence regarding any conversation with the complainant about the CCTV cameras in the office. However, during examination-in-chief, the appellant gave evidence of the location of the cameras - one above the reception overlooking the boardroom and reception area, and one on the back wall of the reception area. The appellant gave evidence that he could access the footage through his phone; however, the record of such footage only lasts a couple of weeks. It was gone by the time the police approached the appellant.
4. The appellant gave evidence that he and the complainant then both went down the stairs together, while the complainant continued to talk to the appellant about 'her life and things back home, and how she is planning to do this nursing course.'[38]
5. The appellant described his activities the following day, which was in response to the evidence given by the complainant that he had tried to organise to meet up for lunch the day after the incident. The appellant said: 'That's rubbish. I was not available at all. I had my son with me, and after that I took him for lunch. He wanted to have some outside food, so I took him to McDonald's. And then after that, you know, my daughter was to come about three o'clock.'[39]
6. The appellant also confirmed in examination-in-chief that he was flying out with his children the morning of 21 March 2024 to India, not Nepal as the complainant had said in her evidence.
7. The appellant then gave the following evidence:[40]

APPELLANT: So I pressed the exit button. I let her out, and then I said, 'Look, you know, just wait outside. I will just alarm the building and then leave.'

WILSON, MR: And when you came - so she stepped out?

APPELLANT: Yes

WILSON, MR: Did you then go out the door yourself?

APPELLANT: Yes.

WILSON, MR: Where is she?

APPELLANT: She was just right in front of the door just waiting there.

...

WILSON, MR: Did she say anything?

APPELLANT: I said, 'I must leave.' And - you know, but she wanted to talk.

WILSON, MR: You said you must leave. She wanted to talk. What did she talk about?

APPELLANT: So we spoke about for, say, about five minutes. And she was asking that, you know, after the student visa pathway, can she, you know, can I still help her, you know, maybe find her employment or any internship.

WILSON, MR: All right. Did you respond?

APPELLANT: So I said, 'Look, I think I will try to just assist you with that. Just share your resume with me.' Then again she started talking about she really needs to just know she doesn't have the funds for the student visa, if I could really help her with any other pathways. And by that time, I was really not in the mood to talk. I said 'Look, just go away.' And I left.

1. The appellant was then cross-examined about the allegation that he had made up the travel to discredit the complainant:[41]

O'CONNOR, MR: Mr Gupta, you mentioned that you went to India on 21 March?

APPELLANT: Yes.

O'CONNOR, MR: I assume when you booked that trip, you were emailed an itinerary?

APPELLANT: Yes.

O'CONNOR, MR: Which would confirm that you left on 21 March?

APPELLANT: Yes.

O'CONNOR, MR: But if you haven't brought that itinerary to court with you, have you?

APPELLANT: I can provide it to you.

O'CONNOR, MR: It's not for me to do. I am asking the question you haven't provided it, have you?

APPELLANT: I provided it to my lawyer. I'm not sure if that is considered as providing to the court here.

O'CONNOR, MR: Mr Gupta, I suggest to you that that's something you have made up to discredit the complainant?

APPELLANT: What did I made up?

WILSON, MR: That question needs to be very specific, please, your Honour. What is it that he has made up.

O'CONNOR, MR: You going to India on 21 March. I suggest that's something you have made up so you can discredit what the complainant says about you wanting to meet her for lunch in the following days?

APPELLANT: So you - I understood your question in two parts, and maybe I will answer that. Just - just help me understand if I understand your question. You are asking that I made up my travel - - -

O'CONNOR, MR: Yes? ---

APPELLANT: to discredit her accusation?

O'CONNOR, MR: Yes? ---

APPELLANT: And the second part of your question is that I made up again for my son's exam, whereas I made - - -

O'CONNOR, MR: I didn't say anything about your son's exam?

APPELLANT: I think you mentioned about, you know, that lunch meeting. So is that your second question, that did I ask for the lunch?

O'CONNOR, MR: I haven't asked you anything about your son's exam?---

APPELLANT: You asked me for some lunch?

HER HONOUR: Are you suggesting that he made up the travel?

O'CONNOR, MR: Yes?

APPELLANT: So only one question?

HER HONOUR: That wasn't a very day after, was it? It was two days after?

O'CONNOR, MR: That was the 21st.

HER HONOUR: Yes?

APPELLANT: So what part do you think I made up? That travel?

HER HONOUR: Yes. He is saying the travel. You can answer that?

APPELLANT: So I did not travel? Is that what you're saying?

O'CONNOR, MR: Yes?

APPELLANT: Okay. So, yes, you have the records. You can check and verify. I did travel with my children. I suggest in your police record as well, if you go through ---

HER HONOUR: You just wait for the questions. Your lawyer can ask questions after.

1. The prosecutor left the matter at that point. In re-examination, the appellant's counsel produced the itinerary which showed that the appellant's flight was at 6.40 am on Thursday, 21 March 2024 and that ticket was issued on 18 March 2024. The itinerary was tendered as an exhibit.[42]

1. That evening, following the alleged indecent assault, the complainant initiated communication with her friend Mr Z who had referred her to Red Earth.
2. An exchange of messages occurred between Mr Z and the complainant. The following is a reproduction of the text messages between the complainant and Mr Z (with anonymisation). The messages were extracted the day after the alleged offending on 20 March 2024 by Detective Senior Constable Aidan Tucker. The text in red is the translation of messages as provided by the complainant (not all of the messages were translated).

15-20 mins mein i will be home. Or should i pick you up first?

1. The messages provide contemporaneous evidence that the complainant was anxious to meet up with Mr Z, that her immediate focus was on satisfying her hunger, and that she mentioned the meeting she had with Mr Gupta stating about that meeting that she did 'not know what to say'. The messages of themselves do not establish conclusively that the complainant was anxious to discuss some difficulty arising from the meeting with Mr Gupta, but they are consistent with that sentiment.
2. The complainant gave evidence that she wanted to talk to her friend urgently about what had happened. She was very hungry and wanted to eat first because she was concerned she would not be able to eat after the conversation as she would be nervous and emotional.[43] They ate together, and then the complainant said she began crying when she started the conversation about what had happened in the meeting with the appellant. She said she could not sleep that night and was restless and crying. In the morning, she turned on her phone and received a message from Mr Z. Her evidence was that she then spoke with Mr Z by phone who said, 'Let's go to the police station. That is the solution'.[44] The complainant went to the police in the afternoon of 20 March 2024 together with Mr Z and another friend and reported the matter to the police.
3. Mr Z gave evidence. He said that after receiving the messages he went to the complainant's place to eat, then they went to Mr Z's place where the complainant told Mr Z about the indecent assault. Mr Z said the complainant was in tears when she started telling him what happened.[45]

1. The learned magistrate delivered her decision on 27 March 2025. Her Honour explained her reasons for finding the appellant guilty of the offence.
2. The learned magistrate began with a summary of the prosecution case. Her Honour summarised the relevant evidence of the complainant regarding the meeting of 19 March 2024 as follows:[46]

... a further meeting was arranged for 19 March, again, organised by text messages. Those messages (Exhibit 1) revealed that an initial arrangement was made for the complainant to meet the accused at a café, but ultimately an arrangement was made to meet at the Osborne Park office.

As she arrived, she saw the accused, she said, in front of the building. They went upstairs together and as they did so, one guy was just leaving the office. They entered the meeting room and sat down on the oval table across from one another rather than next to each other.

They discussed her visa situation and also the possibility of an accounting job. Throughout the conversation, the accused was taking calls and going in and out of the room. She said that he raised the possibility of a sponsorship visa that would cost around $70,000. He mentioned another person he'd helped who only had to pay $25,000 because of some kind of deal.

The accused, she said, then rolled her chair towards the complainant and said, 'Why are you sitting so far, come near to me.' He pulled her towards him and suddenly grabbed her shoulder and forcefully kissed her. She was shocked and blank, said she wasn't comfortable. He then, luckily she said, got a message or call and left the office. When he came back he turned the lights off. She was sitting when the accused walked towards her and touched both of her breasts forcefully with both of his hands. She said, 'What are you doing,' and then he just left and turned the light back on, came back and sat down and asked why she was feeling uncomfortable and told to sit on his lap, patting his lap as he did so.

1. The learned magistrate then summarised the complainant's evidence of what occurred following the alleged indecent assault:[47]

The complainant wanted to leave so told the accused she was hungry, and she would talk to him another time. She went to the toilet. The accused was asking her to come back in, saying they could have something to eat, but she just wanted to leave. He asked about lunch the next day. She was busy, she told him. The accused needed to put a code in to leave. He told her he was going away overseas and would get back to her after two or three weeks.

She had a text exchange with her friend Mr Z about the meeting and told him she wanted to speak to him as soon as possible. She then met up with him and told him.

She was cross-examined at length and in detail about her account. She was cross-examined extensively regarding her visa history plans and applications. It was suggested that she had attempted to kiss the accused, but she denied that suggestion.

1. The learned magistrate then summarised the appellant's evidence:[48]

He gave evidence that he was a married father of two. He's clearly well qualified with qualifications in accounting, financial planning, and as a migration agent. He's the founder of a business which has a number of employees, but he's also part of a much broader business which is 80 percent female. He holds volunteer positions in well-respected organisations, has conducted probably I think the estimate was 10,000 consultations personally without issue. He has no convictions and no disciplinary actions taken against him.

He confirmed he'd called the complainant after he received the text inquiry. He told her he wasn't taking migration cases personally, but someone would be in touch.

She contacted him again and a time was arranged. He was busy when she arrived for the 8 March meeting, so he took her to his wife and was present only briefly. She was then insistent she wanted to see him, and he said yes later but worked with the team.

As of 19 March, his wife was overseas. He had sole care of the children. He wasn't working much, just bits and pieces from home.

There was then the exchanges making the meeting time. He said he expected her to sign an engagement letter and make a payment perhaps, and also knew she wanted to speak about job prospects. He said he'd hoped she'd become a client. He was hoping the meeting would be brief because the children were home alone unsupervised.

He told her in the meeting that she hadn't submitted the document and reiterated he was only managing the strategy part, not operational.

There was a discussion about visas. She, he said, suggested something which she said knowledgeable (sic) and suggested something which would be unlawful. She said then that she'd do anything to stay here in Australia. She was acting a bit friendly, talking about her relationships. Then, as he was sitting on his phone not looking, didn't notice her, but she walked up and leaned in and tried to kiss him saying, 'You're such a lovely man, why don't you please help me. I'm looking for any avenues. I know I can help you in any ways,' but he didn't understand what that meant.

I'm not going to go through everything, but essentially he got angry, she tried again to walk towards him, he told her to get lost, he told her the risk if he reported the matter, she was apologising. At the reception she said, 'Please forgive me,' he told her, 'Don't worry.' 'I went off to grab the laptop and paper.' She went to the toilet but didn't leave. Then eventually he turned the light off, he locked the door, and they walked together out to the front. He led her through the front door, she was still talking, he was still anxious to go. She spoke for another five minutes asking still about employment, and eventually he said, 'Just go away,' and left.

And there's obviously some other crucial discussions I'll return to in a moment but that's a very brief overview, but essentially, he denied having kissed or touched her, denied having pulled her towards him, denied having asked her to sit on his lap, denied deleting messages.

In cross-examination he denied he was lonely and denied he found her attractive. When it was put to him that she was desperate in tone, he thought she sounded excited. It was not such an unusual situation. He was trained to deal with this kind of thing. The meeting was longer than he wanted, and he emphasised he would be stupid to take advantage of this person. He knew that camera was there, and it was too much of a risk.

1. In her analysis, the learned magistrate began by directing herself correctly and in orthodox terms:[49]

Turning then to the accused evidence. If I believe the accused evidence or that what he said could reasonably be true or has given rise to a reasonable doubt, I would not be satisfied of his guilt.

Even if I totally disbelieved everything he said, it does not automatically follow that I then would find him guilty. I would still have to be satisfied based on all the prosecution evidence of his guilt.

Magistrate's assessment of the appellant's evidence

1. The learned magistrate then made the following observations regarding the appellant's evidence: 'Having observed him give his evidence, and having listened carefully to what he said, I do not find that he has given a full and truthful account of what happened. I consider that aspects of the story he gave were implausible and, overall, as I say, I do not find his account credible.'[50]
2. Having said that aspects of the appellant's version were 'implausible' and that his account generally lacked credibility, the learned magistrate then explained those observations by giving detailed reasons for rejecting the appellant's evidence. Specifically, her Honour was critical of particular aspects of the appellant's version of events.
3. The first aspect was the appellant's evidence of his reaction to the sexual advance he claims was initiated by the complainant. Her Honour disbelieved that account for the following reasons:[51]

As a starting point, I found his account of his conduct during that encounter simply does not ring true. In all the circumstances of this case, given the defence approach to the complainant's evidence, I am particularly conscious that there is no single appropriate way for a person to behave when subject to unwanted advances. I consider it a matter of human experience to understand that a person who is physically confronted in such a way, they would be angry, shout, flee, demand the other person leave, or they may keep calm and compliant to not further escalate or aggravate the situation. On the accused's account, however, after being approached romantically or sexually by the complainant, he vacillated back and forth between being angry and telling her to leave immediately, and being understanding, forgiving and talking further with her.

His evidence was that he initially was angry and shouted, 'You've gone mad, what are you doing.' He told her to get lost when she tried to approach him again. He was shaken and disgusted but then thought he should forgive her and told her he understood her position and he'd lived that life, student life.

When she kept talking and begging him, he told her to go home, 'Do whatever you like, I'm not interested in helping you.' He said he was not reporting her, but was done with her. When he said goodbye to her at reception, he told her, 'Don't worry,' when she said, 'Please forgive me.'

When he let her out through the front door, she was talking about her life and things back home and how she was planning to do a nursing course.

Despite having told her earlier to leave and having expressed surprise, she hadn't left when he returned from getting a laptop. When he pressed the button to let her out, he told her to wait outside whilst he set the alarm. She then continued to talk, and he tolerated that, even on his version, and despite telling her earlier he was done with her, he said he would try to assist her and said, 'Send your resume.'

When she asked if he could help with other pathways, he said, 'Just go away.'

1. The learned magistrate then summarised her reason for rejecting that aspect of the appellant's evidence:[52]

So all up, I consider it a fairly complicated account that, as it was being given, did not strike me at all convincing. I consider it against common sense that, even though he was shaken and disgusted by her, he would allow her to continue to linger in the office and speak about her situation, and then even offer to help her. It cannot bе concluded that he did so because he was frightened of her or her reaction because, on his version, he'd already shouted at her and told her to leave.

1. In short, the learned magistrate found the appellant's version lacking in credibility because it was implausibly complicated and involved conflicting emotions and reactions such that it was contrary to common sense and did not ring true.
2. The next aspect of the appellant's evidence that was found to be unsatisfactory by the learned magistrate related to the appellant's claimed reason for meeting with the complainant. The learned magistrate reasoned:[53]

Further, as pointed out by the prosecution, the accused['s] stated motivation for agreeing to meet with the complainant is difficult to accept. Both he and his wife said they did not have a position for her as a graduate within their company. He said he was prepared to meet to discuss jobs but also because he was a businessman, and she was a potential client, he hoped or expected her to sign engagement letter and perhaps pay.

I do not accept that he arranged to meet her to secure her as a client.

In her text message on Monday at 12.57 pm, the complainant indicated her preparedness to engage with the visa application process and wanted to know how to do that. The text went on to say, 'And also, when are you free to meet in regards to the accounting job,' or words to that effect. After some back and forth arranging a time, the complainant signalled her concern about the timeframe and asked who she could contact in the office about the student visa. This tells against the claim that she was targeting the accused and also suggests she was willing to engage the company to assist her without any need for her to meet one-on-one with the accused.

In making those comments, I am mindful of the fact it's not for the accused to prove or disprove anything, but those aspects of his evidence were problematic as far as accepting his evidence as truthful.

The accused's evidence was that he was not generally involved operationally and had few personal clients. His business was going well, and in any event, the complainant, as I say, had already indicated her preparedness to proceed with the visa process through his company. He did not have a job he could offer her. He said there was no mention of paying money in the order of $70,000. So, as it was said in the final submission, it seems the only way to make money from her was through the visa process, in circumstances where he had a team of people who were able to assist her and she was prepared to engage with them.

The meeting occurred in his place of business where he was experienced, and experienced with meetings and how to bring them to an end, as the prosecutor asked him. He agreed to meet with her at a time when he was doing the bare minimum of work due to a traumatic personal situation and he met with her outside standard office hours, and I know there are times where people work later, I accept that, but this was at a time when his fairly young children were at home alone unsupervised. When there was first a discussion about the time, he asked if she was free in the evenings and said later, 'Evenings are better for me.' I accept, as I say, the evidence that others worked after standard office hours at times, but there did not appear to be a particular reason to suggest an evening meeting on this occasion.

I consider all of that amounts to a fairly unusual set of circumstances within which the accused met this young woman. Again, as I say, there's no onus on the accused to establish anything, but all of that goes to the point that his account, again, was problematic and difficult to accept.

1. In essence, the learned magistrate did not consider this aspect of the appellant's version because:

(1) There was no good reason for the meeting.

(2) That was so because the complainant wanted the meeting for two reasons: to progress her student visa and to explore an accounting job. The appellant did not handle the student visa matters himself and he did not have a job available.

(3) The appellant did not need to meet with the complainant to secure her as a client. His business was going well, he had a team of people to handle those matters, and the complainant had indicated her preparedness to follow up with someone else in his office.

(4) The arrangements for and circumstances of the meeting lacked plausibility. That is because the appellant was at the time doing the bare minimum of work due to a traumatic personal situation. The appellant suggested a meeting in the evening outside office hours but there did not appear to be a particular reason to suggest an evening meeting on this occasion and his fairly young children were at home, alone and unsupervised.

1. The learned magistrate also referred to the fact that the complainant had indicated her preparedness to follow up with someone else from Red Earth to reject the position advanced by the appellant that the complainant was somehow targeting or directing her attention to the appellant. The learned magistrate made further remarks on that issue, observing that the defence appeared to have contended that the complainant 'was told repeatedly that she would be looked after by others, but she was determined to deal with the accused.'
2. The magistrate rejected that contention, saying: 'This is simply not borne out by the evidence. It's clear she was anxious about time running out on her visa, but she then specifically asked the accused who in the office she needed to speak to in order to progress her application.'[54]
3. Next, the learned magistrate also expressed reservation about the appellant's evidence that he saw someone else in the office:[55]

I also view with some scepticism the claim that there was a person present in the office when he entered with the complainant. He said that when they entered, a senior accountant was at the water cooler and went into his own office. There was no further mention of that person after that time. If he was seen or heard leaving, or if he remained and saw something, that evidence was not heard about in this trial. Again, no obligation. The accused evidence on his point was not challenged, but it was at odds with the complainant's also unchallenged evidence that there was one guy, but he was in the corridor outside the office leaving the office. Again, the accused evidence on this point struck me as convenient and unconvincing.

1. There were other aspects of the appellant's position which the learned magistrate rejected.
2. The learned magistrate made reference to the camera that 'would have captured the incident if the blinds were open'.[56] Her Honour also made reference to evidence of the camera being able to capture the image even if the lights were off and that the image was accessible to the appellant and his wife on their telephones. That evidence was exculpatory because the appellant was less likely to have committed the offence if he was being filmed.[57]
3. The learned magistrate disregarded that evidence and that aspect of the defence because 'there was no convincing evidence that [the CCTV camera] was in that same position at the time of this alleged incident'.[58] The learned magistrate was similarly dismissive of the evidence that the CCTV camera could capture the image even if the lights were off. After referring to the evidence of the footage (which showed the inside of the boardroom clearly after the lights had been turned off), the learned magistrate said: 'At least that was the point sought to be made when the wife witness staged a recreation of someone turning off the lights.'[59]
4. The learned magistrate also dismissed the significance of Ms Gupta, the appellant's wife, having access to the footage on her phone, saying: 'His wife may well have also had access but she was away in another country in a different time zone.'[60]
5. Referring to the question as to why the appellant would take the risk of behaving like that even if there was a CCTV camera, the learned magistrate said: 'It's not for the prosecution to explain or prove that. The fact is, people do take that risk especially when they think a person may not raise the alarm. In his own words, he knew that people in her position... were vulnerable.'[61]
6. The learned magistrate also rejected the appellant's denial that he sought to go to lunch with the complainant the next day on 20 March 2024. The appellant's evidence was that he had to supervise his son's exam which extended to 12.45 pm. He would then have the care of his son at home because he was not then going to school, and then his daughter was coming home at 3.00 pm. Later in his evidence he said that he had planned to get his son lunch from McDonald's after the exam. It would therefore not have been feasible for him to arrange to have lunch with the complainant.
7. The learned magistrate rejected the denial saying: '...but in fact his evidence was that his son's exam finished at 12.45, his duty finished at 12.45, and he then took his son out to lunch. So it was not such a far‑fetched suggestion to accept that he suggested lunch with her.'[62]
8. The appellant had, in effect, dismissed the suggestion that he tried to arrange lunch with the complainant as far-fetched given his circumstances. The learned magistrate rejected the appellant's denial. The learned magistrate pointed to circumstances which she considered showed that such a possibility was not far-fetched.
9. A further basis for rejecting the appellant's version of events was the lack of clarity as to the utility of the sexual advance that the appellant alleged the complainant had initiated or the advantage to the complainant of advancing a complaint about the appellant.
10. The learned magistrate expressed her dissatisfaction with that aspect of the appellant's case as follows: 'In any event, it's not clear what favour the accused could do for her if she gave him sexual favours. Likewise, no evidence [was] produced that making a criminal complaint against the accused would impact or improve her prospects of remaining here.'[63]
11. It emerges fairly clearly in my view that the learned magistrate's assessment and rejection of the appellant's evidence was based overwhelmingly, if not entirely, on her Honour's analysis of the objective plausibility of the appellant's version of events. The learned magistrate did not adopt language which indicated that her conclusions were based on the manner in which the appellant had presented in court. Her Honour did not suggest that the appellant had been evasive, combative, uncooperative, uncertain or any other of the common indicia of unreliability.

The magistrate's assessment of the complainant's evidence

1. The learned magistrate made the following remarks concerning the complainant's evidence:[64]

I consider that she presented as an entirely convincing and believable witness, telling an account to the best of her ability. There was nothing inherently implausible in her account, which in general terms is supported by the text message exhibit[s]. Whilst being conscious not to place too much significance on demeanour, I must say that she came across as an honest person who was prepared to tell the truth and prepared to make confessions about matters.

For example, about having inquired after the dependent visa. If she was fabricating an account, it would have been easy for her to have denied asking about that option. As the prosecutor pointed out, her story held up despite lengthy and at times intense cross-examination. She appeared in the manner in which she gave her evidence, as I say, to be recalling an event, not merely retelling a made-up story that she wasn't sure about. I consider she didn't embellish or seek to tailor her evidence.

1. In assessing the complainant's 'credibility and truthfulness' the magistrate observed that she was 'entitled to consider how [the complainant] acted after the alleged offence to see whether she acted in a way in which one might expect a person in her position to act after the events of which she gave evidence'.[65]
2. Her Honour then went on to consider the evidence of the communications between the complainant and her friend Mr Z.
3. The learned magistrate considered that the evidence of those communications and what occurred was broadly consistent with the contemporaneous text messages. Her Honour accepted that Mr Z was a witness of the truth and she accepted his evidence.
4. The magistrate then turned to criticisms of the complainant's version and in particular, assertions that her evidence of what occurred at and immediately after the incident, and in her subsequent communications with Mr Z, were not consistent with what would objectively be expected of someone who had endured an indecent assault. That included the contention that the complainant could or would have fled the room and building through the fire exit or the main door if she was really the subject of the unwanted physical sexual contact.
5. The learned magistrate referred to the complainant's evidence of her reactions and explained them as plausible in light of the fact that there is no one 'right way' for a victim to act. The complainant's conduct at and after the incident did not therefore undermine the plausibility of her version or her credibility.
6. The learned magistrate then rejected a number of other challenges to the complainant's evidence. Her Honour concluded her assessment of the complainant's evidence with the following remarks:[66]

I accept that there may well be some inconsistencies or inaccuracies. I've already emphasised it's not for me to mention all of those matters, but I have assessed them and taken them into account reviewing this matter and determining whether I accept the complainant's account. I consider that the matters pointed out do not individually or collectively have such a significant impact on the reliability of the complainant that I should reject her evidence that the accused kissed and touched her. In my view, any discrepancies or inaccuracies over time say nothing about her honesty, which was the principal issue at trial.

Having had the opportunity to carefully observe the complainant give her evidence over a reasonably extended period of time, I'm satisfied beyond reasonable doubt she was an honest and reliable witness in the account she gave. I do not consider this as a case where the complainant could be mistaken about whether the act occurred or not, and that was not something that was really suggested.

1. In contrast to the magistrate's assessment and analysis of the appellant's evidence, her Honour's remarks indicate that in respect of the complainant's evidence, greater emphasis was placed on the witness's demeanour and the magistrate's intuitive evaluation of the witness's honesty and credibility. The manner in which the complainant presented her evidence featured prominently in the magistrate's assessment of the evidence.

1. At the hearing, the appellant sought, and was granted (without objection) leave to amend its grounds of appeal. Ultimately, the appellant advanced four grounds of appeal:

(1) The learned magistrate erred in law by rejecting defence evidence that was unchallenged; and by making findings adverse to the appellant which were not put to defence witnesses in cross-examination;

(2) The learned magistrate erred in law by reversing the burden of proof in the course of assessing the evidence;

(3) The learned magistrate erred in fact in rejecting the account of the accused as a possible version of events for the reasons she gave (emphasis in the original);

(4) The verdict of the learned magistrate is unreasonable and cannot be supported by the totality of the evidence.

1. Section 7(1) of the Criminal Appeals Act 2004 (WA) (CA Act) provides that a person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against that decision. A 'decision' of a court of summary jurisdiction includes a decision to convict an accused of a charge.[67]
2. The grounds of an appeal pursuant to s 7(1) of the CA Act may be that the court of summary jurisdiction made an error of law or fact, or of both law and fact, or that there has been a miscarriage of justice.
3. The appellant must obtain leave to appeal on each ground of appeal.[68] If leave to appeal is not granted on at least one ground, the appeal is taken to have been dismissed.[69] The court must not grant leave to appeal on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding. A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[70]
4. Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[71]

1. At the hearing, senior counsel for the appellant in effect began with grounds 3 and 4. I shall adopt the same course. The nub of those grounds is that the guilty verdict was unreasonable because it was not open to the learned magistrate to be satisfied of the appellant's guilt beyond reasonable doubt. That is because on a proper consideration of the evidence, notwithstanding and accepting the magistrate's clear preference for the evidence of the complainant, the appellant's version of the events remained a reasonable possibility.
2. The starting point of that analysis is the approach adopted by the magistrate. That is, as the learned magistrate said, if the appellant's evidence could reasonably be true or give rise to a reasonable doubt then a guilty verdict could not be returned.[72]
3. That approach was laid out by Brennan J in Liberato v The Queen. Although Brennan J was in dissent in the outcome of that case, the relevant passage of his reasons are widely and often cited as the authoritative approach 'when a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness'.[73] That approach includes the principle that even if the trier of fact (in that case, a jury) does not believe the evidence for the defence, an issue cannot be found against an accused if the evidence (although not believed) gives rise to a reasonable doubt as to that issue. A common way of expressing the principle is that if the trier of fact thinks that there is at least a reasonable possibility the evidence for the accused is true, then they are required to find the accused not guilty.[74]
4. The critical question in addressing the issues raised by grounds 3 and 4 is whether, notwithstanding the learned magistrate's preference for the complainant's version of events, there was at least a reasonable possibility that the critical aspects of the appellant's version were true. Grounds 3 and 4 invite a review of the evidence for that purpose. In so doing, it is necessary to have regard to the principles that govern such a review and in particular, the need to respect and preserve the advantages of the trial judge and observe the appropriate degree of appellate restraint.
5. The principles of appellate restraint were reviewed and summarised by the Court of Appeal in Smart v Power from [102] to [105].[75] I reproduce those paragraphs below:

In conducting its review of the case, the appellate court must observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record. The law recognises that, compared to the trial judge, an appellate court has disadvantages that include, but are not limited to, not having seen and heard the witnesses. In Fox v Percy, Gleeson CJ, Gummow and Kirby JJ observed that the limitations of the appellate court, in proceeding on the record, include:

[T]he disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole. (footnotes omitted)

Because of this, the discernment of appellable error requires attention, at the outset, to the nature of the findings said by an appellant to be erroneous. The nature of the finding, and the reasoning by which it was made, affects what is required in order to demonstrate appellable error. The nature and extent of the trial judge's advantage(s) informs what is required in order to reach, and the extent of any appellate restraint in reaching, a conclusion of error. In this respect, as the appellants acknowledge, it is necessary to distinguish between the reasoning of a trial judge which is based on a credibility determination, and the reasoning of a trial judge based on inferences drawn from facts that were undisputed or found. This distinction, and its significance, has long been recognised.

In the case of a finding that is based, at least to any substantial degree, on an assessment of the credibility of one or more witnesses, an appellate court will not interfere with the finding unless it is demonstrated to be wrong by reference to incontrovertible facts or uncontested testimony, or because the finding is glaringly improbable or contrary to compelling inferences, or because the trial judge failed to use, or has palpably misused, their advantage as trial judge.

By contrast, an appellate court is, in general, in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding the proper inference to be drawn, the appellate court gives respect and weight to the conclusion of the trial judge. However, if it reaches a different conclusion, in other words, it concludes that error is shown because the trial judge was wrong as to the inference drawn, it must give effect to that conclusion. (footnotes omitted)

1. Senior counsel referred also to decisions of the High Court with regard to the limitations on the doctrine of appellant restraint.
2. In M v The Queen, the plurality (Mason CJ, Deane, Dawson and Toohey JJ) said:[76]

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations

1. Their Honours went on to qualify that principle in the following terms:[77]

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

1. In Filippou v The Queen, the plurality (French CJ, Bell, Keane and Nettle JJ) set out and expressly adopted that passage in full. Gageler J summarised the position as follows:[78]

Under the first limb, which refers to the ground that a verdict 'is unreasonable, or cannot be supported, having regard to the evidence', a trial judge's ultimate finding of guilt must be set aside on the same principle as a jury's verdict of guilt must be set aside. That is to occur if the Court of Criminal Appeal concludes on the whole of the evidence that it was not open to the relevant tribunal of fact, whether it be a jury or a trial judge, to be satisfied beyond reasonable doubt that the accused was guilty. The Court of Criminal Appeal will conclude that it was not open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty if its own review of the evidence leads it to have a reasonable doubt that the accused was guilty, unless that tribunal's advantage in seeing and hearing the evidence is capable of resolving that doubt.

1. The passage in M v The Queen was more recently described by the High Court in Dansie v The Queen, as a 'carefully crafted passage' which continues to provide authoritative guidance to courts of criminal appeal.[79]
2. Where it is contended that a verdict is unreasonable, the relevant principles have been set out by the Court of Appeal: see, for example, Wells v The State of Western Australia; Sandy v The State of Western Australia.[80] More recently, the principles were repeated by the Court of Appeal in Loh v State of Western Australia as follows:[81]

(1) It is a question of fact whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported.

(2) An appellate court must decide that 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 all the circumstances to permit the verdict to stand.

(3) 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 whole of the evidence (in particular, the competing evidence).

(4) The appellate court's task is not to consider, as a question of law, merely whether there was sufficient evidence to sustain a conviction.

(5) The appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

(6) The appellate court's function is to determine for itself whether the evidence at trial was sufficient in nature and quality to remove any reasonable doubt that the accused was guilty of the offence charged. The critical issue is whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the jury can be taken to have had by reason of having seen and heard the evidence at trial.

(7) The appellate court examines the trial record to ascertain whether, despite the jury's advantage in having seen and heard the witnesses in the context of the trial, the jury, acting rationally, should have entertained a reasonable doubt as to proof of guilt.

(8) The ultimate question for the appellate court must always be whether the appellate court thinks that upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

(9) The setting aside of a jury's verdict of guilty because, having regard to the evidence, it is unreasonable or cannot be supported, is a serious step. Trial by the appellate court is not to be substituted for trial by jury.

(10) The appellate court's reasons must disclose its assessment of the capacity of the evidence to support the verdict.

(11) The nature and extent of the appellate court's task, in a particular case, will be informed by the elements of the offence, the accused's defence, the issues in contest at the trial, the manner in which the trial was conducted, the way in which the case was ultimately left to the jury, and the particulars of the ground of appeal.

1. The authorities referred to above draw a distinction between different types of findings that may be the subject of appeal. Where the finding is based on the trier of fact's evaluation of a witness's demeanour or manner of giving evidence, those findings are made with an advantage that the appellate court cannot enjoy. The advantage of having seen and heard the witness in person confers on the first instance judge or the jury a superior capacity for assessment that must be respected and preserved. To do otherwise would be to deny the very advantage that a trial provides.
2. A finding based on an assessment of objective plausibility is different. An appellate court may take a different view of the objective plausibility of an inference or conclusion than that drawn by the trier of fact. That, in turn, may lead to a different view as to the reasonable possibility of the truth of exculpatory evidence. In those circumstances, that different view of the reasonable possibility of the truth of the exculpatory evidence, may not be explicable by reference to the advantage held by the trier of fact in seeing and hearing the witness in person. If an appellate review reaches that point, it may well regard the verdict as unsound notwithstanding the undoubted advantages enjoyed by the first instance trier of fact. That is the effect of the principle articulated by the High Court in M v The Queen. An appellate court will conclude that it was not open to the trier of fact to be satisfied beyond reasonable doubt that the accused was guilty if its own review of the evidence leads it to have a reasonable doubt that the accused was guilty, unless that trier's advantage in seeing and hearing the evidence is capable of resolving that doubt.
3. The learned magistrate rejected the version of the appellant and accepted the competing version of the complainant. As noted above, the rejection of the appellant's version was, as is evident from the learned magistrate's remarks, largely, if not entirely based on her Honour's assessment of the objective plausibility of the appellant's version of events. It follows that if I were to form a different view of the objective plausibility of the appellant's evidence, that difference may not be attributable to the advantages enjoyed by the learned magistrate.
4. It is necessary therefore to turn to the reasons explained by the learned magistrate for rejection of the appellant's evidence and review that evidence for myself in order to form a view as to whether I consider it reasonably possible that the appellant's version might be true.
5. It is important in that regard to reiterate that, in undertaking that task, it is not necessary for me to reach a view that the complainant's version of events ought to be or ought to have been rejected. It may indeed be that a review of the evidence points to a conclusion that the complainant's version of events was more probable than that of the appellant. Put simply, the magistrate's preference for the complainant's version of events may be left undisturbed, at least as more probable or likely. But if notwithstanding that, I form the view that the appellant's version was at least reasonably possible, and I cannot attribute the difference in my conclusion to the usual advantages enjoyed by the learned magistrate, then I would be bound to set aside the guilty verdict.
6. I have set out above each of the bases upon which the learned magistrate found the appellant's version of events to be implausible. I shall address each of those in turn.
7. The first reason was the objective implausibility of the manner in which the appellant claimed to have reacted to the complainant's alleged sexual advance. As noted above, the learned magistrate found the appellant's asserted reaction to be unduly complicated and laden with inconsistency. The learned magistrate was moved to that conclusion largely, it appears, because she found it contrary to common sense that the appellant was disgusted and shaken by the complainant's behaviour yet then continued to converse and even offered to help her.
8. With respect, the learned magistrate's appeal to objective common sense overlooks the very complexity and nuance of human reaction that her Honour expressly adopted in rejecting the criticism of the complainant's version of events. As noted above, the learned magistrate accepted that there is no 'right way' to respond to an unwelcome sexual advance or assault. A victim's version of events is not to be disbelieved because they did not flee, did not immediately report or did not respond in a manner that might be considered 'natural' with the benefit of clinical and dispassionate hindsight.
9. The appellant's version was indeed complicated and in some respects, might appear curious and inconsistent. But that is unremarkable in the context of the complex mix of human reactions to a confronting and unexpected challenge of a deeply personal and private nature. Reactions that might appear with clinical hindsight to be conflicting and contradictory, are unsurprising in people who are seeking to navigate an immediate response to an unexpected, unwelcome and even hostile and aggressive sexual advance. In my assessment, having read the transcript and listened to the audio recording of the evidence, there was nothing particularly implausible or contrary to common sense in either of the conflicting versions of the events. Even if I were to prefer the version of the complainant, I could not conclude that the complexity and inconsistencies of the appellant's version rendered it so implausible or contrary to common sense that it could be excluded as not reasonably possible. Particularly in stressful interpersonal relations, human responses are often confused and contradictory. I do not find it wholly implausible that the appellant was both appalled and disgusted by the complainant's alleged conduct, yet felt some call to be sympathetic and helpful.
10. I also consider that the learned magistrate's summary of aspects of the appellant's reaction did not do justice to the complexity of his evidence. I accept that the learned magistrate was not purporting to rehearse the whole of the appellant's evidence. Nevertheless, her Honour's reference to the appellant's reaction where he said 'Just go away' does not in my respectful view accurately reflect the nuance of the appellant's version of that conversation that emerged from the evidence of both the appellant and the complainant. The learned magistrate's description tends to over-simplify the appellant's reaction, thereby rendering it less plausible.
11. For those reasons I would not reject the appellant's version of his reaction as so implausible as to not be reasonably possible.
12. Nor do I find the appellant's reason for meeting the complainant implausible. The appellant owned and operated a small, but apparently successful business. Businesses of that nature depend in large measure on the continuous flow of new clients. Before he knew anything about the complainant, the appellant responded to her unsolicited enquiry after hours and plainly saw her as a prospective client. Although the appellant did little of the visa work himself, he was the proprietor of the business. There was nothing implausible about him diligently pursuing any lead for clientele.
13. The learned magistrate referred to the text messages in which the complainant expressed her wish to advance her application with someone else from Red Earth if the appellant himself was not available. The learned magistrate said of that exchange that it 'tells against the claim that she was targeting the accused and also suggests she was willing to engage the company to assist her without any need for her to meet one-on-one with the accused'.[82] In rejecting the appellant's explanation for the meeting, the learned magistrate also pointed to the fact that 'His business was going well, and in any event, the complainant... had already indicated her preparedness to proceed with the visa process through his company'.[83]
14. In my view, a number of matters established by the objective evidence militate against the learned magistrate's conclusion that the appellant's version was not plausible.
15. First, as I have noted, there is nothing implausible about a business proprietor diligently pursuing the lead of a potential client. The fact that the business was successful and that the appellant was not the one who would do the work, does not alter the position.
16. Secondly, although the complainant may have indicated some willingness to proceed with Red Earth, the fact remained that she had not signed an engagement letter, nor had she followed up after the meeting with Ms Gupta on 8 March 2024, nor had she responded to the email from Pardeep. It is not remarkable that the appellant was concerned to formalise the commitment that the complainant had not yet made, notwithstanding her engagement with Red Earth.
17. Thirdly, the learned magistrate's reference to the complainant's willingness to deal with someone else from Red Earth overlooks the evidence that it was the appellant himself who organised for someone else from his business, Pardeep, to contact the complainant on 18 March 2024. Notwithstanding that at the appellant's initiative, Pardeep did in fact contact the complainant (which the complainant initially in her evidence did not recall), she did not respond with the information requested by Pardeep. Indeed, on the evidence it appears she did not respond to Pardeep at all, and instead initiated contact again with the appellant and requested to meet him.
18. Fourthly, I do not find the timing or the circumstances of the meeting itself 'fairly unusual' as the learned magistrate characterised them. The learned magistrate remarked that there did not appear to be a particular reason to suggest an evening meeting on this occasion. It is to be recalled that it was the complainant who initiated the meeting. The appellant was content to meet during the day and suggested a public venue. The time was shifted more than once at the request of each of them. They finally agreed on a time of 6.00 pm. From the first exchange between the complainant and the appellant, it was clear that it was not at all unusual for the appellant to be pursuing a client opportunity at that time.[84] The venue was not extraordinary. It was Red Earth's offices. The unchallenged evidence was that the appellant had reason to go there to retrieve things and that it was not uncommon for people to still be there at that time. The appellant may have had the care of his children, but they were not small children. On the evidence, he appears in any event to have been in touch with them by phone. The learned magistrate added to her assessment of implausibility that the appellant's personal situation at the time was 'traumatic'. That is not a description that the appellant used or accepted in his evidence. On my review of the evidence I do not consider 'traumatic' to be an accurate characterisation of how the appellant perceived or described his situation.
19. For those reasons, I do not find the circumstances of the meeting so unusual or implausible that it provides a basis to conclude that the appellant's version was not reasonably possible.
20. I turn then to the learned magistrate's remarks that she viewed with some scepticism the appellant's evidence of seeing someone else in the office. It was open to her Honour to find that evidence 'convenient and unconvincing'. That is all the more so as the objective evidence strongly suggested that by the time the appellant and the complainant completed their meeting, there was no one else in the office because the appellant turned the lights off and the alarm on. Nevertheless, a review of the transcript makes plain that this issue was not explored in any depth. Each of the appellant and the complainant gave evidence of seeing one other person at Red Earth's offices. The complainant's evidence was that the person was leaving. However, the evidence each of them gave in that regard was not challenged, probed or explored. Of itself, this aspect of the appellant's evidence was not a sufficient foundation to reject his version of the events as not reasonably possible. Nor, in fairness, did the learned magistrate appear to suggest that the evidence had that level of significance. It appears to have been an additional matter that added to her Honour's lack of satisfaction with the credibility of the appellant's version of events.
21. As noted above, the learned magistrate also rejected the appellant's position in relation to the CCTV camera. The learned magistrate said there was no convincing evidence that the camera was in the same position at the time of the incident as was shown in the CCTV footage (referred to in paragraph [30] above), and dismissed the significance of the appellant's wife's capacity to see the footage on her phone by reference to the fact that she was at the time in another country in a different time zone.[85]
22. On review of the evidence, I am respectfully unable to accept the force of her Honour's remarks. The complainant's own evidence strongly suggested that the camera was directed to the boardroom. Indeed, the existence and position of the camera was the basis for her challenging the appellant's conduct in light of the camera.[86] The evidence in that regard all pointed in one direction. There was evidence from both the appellant and the complainant that the camera was directed to the boardroom and no evidence at all that the camera was in any different position at the time of the incident.
23. It is also difficult to see how the fact that the appellant's wife was in a different country and time zone could make any difference ‑ particularly as the time zone she was in was some hours earlier than 6.00 pm in Perth. There was no challenge to the evidence that she had access to the footage on her phone. It would have been readily available to her at 6.00 pm Perth time.
24. Accordingly, I am unable to share the learned magistrate's view that the evidence of the CCTV cameras can be disregarded in the assessment of whether the appellant's version of events was reasonably possible.
25. It will be recalled that a further basis for the learned magistrate's rejection of the appellant's evidence was that her Honour rejected the appellant's dismissal as 'rubbish' the suggestion that he tried to arrange lunch with the complainant. The learned magistrate pointed to circumstances which she considered showed that such a possibility was not far-fetched.
26. It may be that the circumstances pointed to conditions whereby a lunch arrangement was not 'far-fetched'. But the unchallenged evidence of the appellant was that he was supervising his son's exam until 12.45 pm and thereafter was caring for him (including his lunch) and then his daughter as well from 3.00 pm. It may be that the appellant's rejection of the lunch suggestion as 'rubbish' was somewhat extravagant, but that does not seem to me to be a sufficiently forceful foundation to reject the appellant's denial and to dismiss his version of events as not reasonably possible.
27. As noted above, a further basis for rejecting the appellant's version of events was the learned magistrate's view that there did not appear to be any clarity about the utility in the sexual advance that the appellant alleged the complainant had initiated or in lodging a criminal complaint.
28. The appellant's version was that it was the complainant who had initiated an unwelcome sexual advance and the complainant was then very concerned that the appellant would lodge a complaint about her. The defence case was that the complainant had made that advance in order to persuade the appellant to provide a pathway to a visa that would otherwise not be available or available at a greater cost. On the appellant's version the advance was immediately and forcefully rebuffed. On that version of events, it is hardly surprising that the evidence did not extend to the details of precisely what the appellant could have provided in exchange for any sexual favours. With respect, the lack of clarity about what the appellant could do in return for sexual favours is unremarkable on the appellant's version of the events.
29. The reference to a criminal complaint (which does not necessarily appear to be what the appellant had threatened) was not suggested to be something that could improve the complainant's prospects. Rather, the defence postulated that a complaint by the appellant would jeopardise the complainant's ability to remain in Australia and it was precisely that fear that led her to neutralise that prospect by making a complaint about the appellant.
30. In light of that understanding, it does not appear to me that the learned magistrate's comments set out at [98] - [99] above constitute a forceful basis to reject, entirely, the appellant's evidence.
31. In the circumstances, I would reach a different conclusion in respect of each of the matters discussed above regarding the plausibility of the appellant's version of events. I would not conclude that any of those matters would render the appellant's version implausible or contrary to common sense so as to preclude the appellant's version from being reasonably possible.
32. I should add that it seems to me unlikely that her Honour based her conclusion on any one of the matters that she found implausible. Rather, it is more likely to have been the aggregate of implausible aspects of the appellant's evidence that moved the learned magistrate to reject the appellant's version entirely.
33. On my own review of the evidence, I accept that the complainant's version was plausible and that it was entirely open to the learned magistrate to prefer the complainant's version of the events. I have reached a different conclusion however, as to whether the appellant's version was reasonably possible. In my view, it cannot be dismissed as not reasonably possible.
34. I must then ask myself whether the different conclusion I have reached is explicable by reference to the advantage enjoyed by the learned magistrate in seeing and observing the witnesses.
35. As I have observed, the learned magistrate's conclusions were drawn from an assessment of objective plausibility and common sense rather than reliance upon demeanour or the usual indicia of truthfulness presented by a witness. In the circumstances, I am unable to conclude that the difference in conclusion can reasonably be attributed to the advantage enjoyed by the learned magistrate.
36. On my review, the appellant's version of the events was, on an objective review and assessment of the evidence, reasonably possible even if not probable. It was therefore not open in my view to be satisfied of the appellant's guilt beyond reasonable doubt. The appellant submitted that, if upon this court's review of the evidence, the appellant's version of the events was not so implausible that it could be rejected as not reasonably possible, then it was not open to conclude that the appellant was guilty beyond reasonable doubt and the verdict is unsafe and unsatisfactory. In that event, the conviction should be set aside, and the appellant acquitted. Counsel for the respondent similarly accepted the proposition that, if on a review of the evidence I reached the view that the appellant's case could not be rejected as so implausible as to not be reasonably possible, then the appellant is entitled to an acquittal.[87] For the reasons explained that is the position I have reached.

1. For those reasons I would grant leave to appeal in respect of ground 3 and ground 4 and I would allow the appeal in respect of those grounds.
2. In the circumstances it is not necessary for me to determine the merits of ground 1 and ground 2.

1. It is nevertheless appropriate that I include a number of additional remarks.
2. The fact that I have reached a different conclusion as to the possibility of the truth of the appellant's version of the events is in no way to be understood as a criticism of the learned magistrate. As I have remarked on other occasions, this court enjoys the benefit of the perch of appellate luxury. A highly skilled, experienced and learned magistrate was required to make and explain her decision in a matter of days, no doubt while attending to a range of other demands in a very busy court. I have had the opportunity of studying and analysing the evidence, including the audio of the trial and transcript for some months. That I have come to a different conclusion regarding the reasonably possible truth of the appellant's evidence is not a reflection of any deficiency on the part of the learned magistrate. Rather, it is a manifestation of the appellate system operating as it should, by providing the opportunity for lengthier and more extensive consideration of all the evidence. In that regard, notwithstanding my view on the outcome of the appeal, I would reject the submission advanced by senior counsel for the appellant that the learned magistrate was:

[C]ontorting herself into ways of finding that anything the complainant said would be okay and could be okay, consistent with what I say was the error of elevating her evidence to a status where she was inoculated from scrutiny, elevating her status that there was nothing inherently implausible. Everything was implausible apparently inherently in the accused's case. Nothing was inherently implausible in the complainant's case.

1. In my respectful view, while I have ultimately taken a different view of the evidence, I do not regard that submission as an accurate or indeed a fair characterisation of the learned magistrate's analysis.
2. There is one further matter. Senior counsel for the appellant was critical of the prosecutor for the question posed to the appellant in cross-examination about his planned travel to India on 21 March 2024. I have set out that exchange at [68] above.
3. I consider that criticism was well placed.
4. As the evidence unfolded, it appears to me to have been quite possible, if not indeed probable, that the prosecutor had no basis at all to put to the appellant that he was lying about his travel. At the very least, it appears possible, if not probable, that the prosecutor made no real effort to establish a basis for the accusation that the appellant was lying.
5. It need hardly be said that wrongly accusing a person of lying without any basis for the accusation amounts to a serious unfairness in the conduct of the prosecution. Although it is impossible to be certain, the unfairness does not appear to have resulted in any material prejudice, and it was not the basis for any ground of appeal. Nevertheless, it is appropriate that the conduct be identified as improper and inconsistent with the duty of a prosecutor to conduct the prosecution case fairly.
6. As the High Court has made clear, a prosecutor bears responsibility for ensuring that the prosecution case is presented with fairness to the accused.[88]
7. In Whitehorn v The Queen, Deane J made the following observations about the responsibility of the prosecutor:[89]

The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one. The consequence of a failure to observe the standards of fairness to be expected of the Crown may be insignificant in the context of an overall trial. Where that is so, departure from those standards, however regrettable, will not warrant the interference of an appellate court with a conviction. On occasion, however, the consequences of such a failure may so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial. As a general proposition, that will, of itself, mean that there has been a serious miscarriage of justice with the consequence that any conviction of the accused should be quashed and, where appropriate, a new trial ordered.

1. While in this case, there has been no suggestion that the possible unfairness warranted appellate interference, it must be said that what appears to have happened bears all the hallmarks of the 'regrettable'.
2. I would grant leave to appeal and allow the appeal. I would set aside the conviction and enter an acquittal.

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

[1] ts, Western Australia Police v Gupta, Magistrates Court of Western Australia, 6 March 2024, 4 (ts 6 March 2025)

[2] Exhibit 1; ts 6 March 2025, 5, 20; ts Western Australia Police v Gupta, Magistrates Court of Western Australia, 25 March 2025, 4 (ts 25 March 2025)

[42] Exhibit 7; ts 25 March 2025, 42 - 43.

[46] ts, Western Australia Police v Gupta, Magistrates Court of Western Australia, 27 March 2025, 3 - 4 (ts 27 March 2025).

[57] See ts 25 March 2025, 39 (evidence of the appellant in cross-examination).

[70] CA Act s 9(2); Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts‑Smith JJA).

[73] Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507, 515.

[74] See, eg, the recent case of Hayward v The State of Western Australia [2025] WASCA 35 [400].

[75] Smart v Power [2019] WASCA 106 [102] - [105].

[76] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493.

[78] Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [82].

[79] Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651, 658, (Gageler, Keane, Gordon, Steward and Gleeson JJ.

[80] Wells v The State of Western Australia [2017] WASCA 27 [13]; Sandy v The State of Western Australia [2024] WASCA 109 [63] - [67], [72] - [74], [76].

[81] Loh v State of Western Australia [No 2] [2024] WASCA 166 [76].

[86] ts 6 March 2025, 10 - 11, 41 - 42.

[87] ts, Gupta v Director of Public Prosecutions, Supreme Court of Western Australia, 5 December 2025, 38.

[88] Richardson v R [1974] HCA 19; (1974) 131 CLR 116.

[89] Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 [663] - [664].