Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Appellant convicted after a trial on one count of indecently dealing with a boy under the age of 13 years - Complainant subjected to improper interviewing techniques by police in a video­recorded interview - Whether the complainant's evidence at the trial was unreliable as a result of contamination by improper interviewing techniques - Whether the trial judge should have ordered that the complainant be not permitted to give evidence at the trial - Whether a miscarriage of justice occurred as a result of the child giving evidence

Criminal law - Application to adduce additional evidence on appeal - New evidence from a clinical psychologist as to the potential for the complainant's evidence at the trial to have been contaminated by earlier conversations and interviews - Whether the additional evidence was admissible

Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA), s 60(4) (repealed)

Criminal Appeals Act 2004 (WA), s 30, s 39, s 40

Evidence Act 1906 (WA), s 50, s 106B(3)

Application for leave to adduce additional evidence in the appeal dismissed

Application for an extension of time to appeal dismissed

Birks v The State of Western Australia [2007] WASCA 29; (2007) 33 WAR 291

C v Minister of Community Welfare (1989) 52 SASR 304

Cecez v The State of Western Australia [2007] WASCA 260; (2007) 35 WAR 344

Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432

Darwiche v the Queen [2011] NSWCCA 62

Director of Public Prosecutions v Moore [2003] VSCA 90; (2003) 6 VR 430

Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207

DPJB v The State of Western Australia [2010] WASCA 12

Farrell v The Queen [1998] HCA 50; (1998) 194 CLR 286

Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659

R v Horsfall (1989) 51 SASR 489

R v Jenkyns (1993) 32 NSWLR 712

R v JG [2009] NSWSC 1053; (2009) 199 A Crim R 299

R v Kotzmann (No 2) [2002] VSCA 21; (2002) 128 A Crim R 479

R v Lobban [2000] SASC 48; (2000) 77 SASR 24

R v Lowe [1997] 2 VR 465

R v McLean and Funk; Ex parte Attorney-General [1991] 1 Qd R 231

R v Ralph (1988) 37 A Crim R 202

R v Rayner [1998] 4 VR 818

R v S [2006] EWCA Crim 1404; [2007] 2 All ER 974

R v Soma [2003] HCA 13; (2003) 212 CLR 299

R v WB [2009] VSCA 173; (2009) 23 VR 319

R v Wright [1999] VSCA 145; [1999] 3 VR 355

Rinaldi v The State of Western Australia [2007] WASCA 53

Roughley v The Queen [1995] TASSC 14; (1995) 5 Tas R 8

Rozenes v Beljajev [1995] VicRp 34; [1995] 1 VR 533

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

Von Einem (No 2) v The Queen (1991) 52 A Crim R 402

Warren v The Queen (1994) 72 A Crim R 74

Wimbridge v The State of Western Australia [2009] WASCA 196

3 BUSS JA: On 23 April 2008, the appellant was convicted, after a trial in the District Court before Fenbury DCJ and a jury, on four counts in an indictment.

4 Count 1 alleged that between 1 December 2005 and 2 March 2006, at a country town in Western Australia, the appellant indecently dealt with L, a boy under the age of 13 years, by touching his penis, contrary to s 320(4) of the Criminal Code (WA).

5 Counts 2, 3 and 4 alleged that on 9 March 2006, at the country town, the appellant had in his possession child pornography, contrary to s 60(4) (repealed) of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA). Count 2 related to child pornography in the form of written material, count 3 to child pornography in the form of photographic images, and count 4 to child pornography in the form of images stored on computer hard drives.

6 On 20 June 2008, the appellant was sentenced, relevantly, as follows:

(d) count 4: 4 months' immediate imprisonment, to be served concurrently with the term imposed for count 1.

The sentences of imprisonment were back-dated to commence on 23 April 2008. A parole eligibility order was made.

7 The appellant has applied to this court for an extension of time to appeal, and leave to appeal, against his conviction on count 1 (but not his conviction on counts 2, 3 and 4).

8 On 26 June 2009, Miller JA ordered that the application for an extension of time and the application for leave to appeal be heard together with the appeal.

The application for an extension of time to appeal

9 The last date for the appellant to appeal against conviction was 11 July 2008. He did not file his appeal notice until 30 April 2009.

10 The applicable principles governing the exercise of this court's discretion to extend time are set out in Wimbridge v The State of Western Australia [2009] WASCA 196.

11 It is convenient to consider the merits of the proposed amended ground of appeal before deciding whether an extension of time should be granted.

12 The State's case at trial, as opened by the prosecutor, was that in December 2005 the appellant performed some work on a computer at L's family home. At that time, the appellant carried on a computer business in the country town.

13 L's family comprised, relevantly, his father, F, his mother, M, and his sister, E.

14 L was born on 4 October 1997. At the time of the offending he was aged 8 years, and when his evidence was pre-recorded (on 18 June 2007) he was 9. E was born on 24 August 1994. At the time of the offending she was aged 11 years, and when her evidence was pre-recorded (also on 18 June 2007) she was 12.

15 The prosecutor said that after the appellant performed the computer work for L's family, L and E went to his home from time to time in the following weeks to play computer games. L played computer games named 'Runescape' and 'Age of Empires'. L and E went together on some of the visits, and on other occasions L went alone.

16 The prosecutor described the incident, the subject of count 1, as follows:

The occasion giving rise to that first charge of indecent dealing with [L] occurred on one of those occasions that [L] visited the accused man's home on his own. Whilst [L] was sitting on the accused's lap playing a computer game [L] recalled the accused man 'touching his willie' on the outside of his clothing.

The accused man, according to the state, asked [L], 'Do you like that?' to which [L] not surprisingly replied that he didn't. When [L] returned home he told his sister what had happened, that is, that that man over there touched his willie (ts 126).

17 The appellant was spoken to by police on 9 March 2006 after a complaint had been made. He denied having touched L in the manner alleged, and said in effect that L must have misinterpreted what had occurred.

18 On 9 March 2006, police executed a search warrant at the appellant's home. They seized computers belonging to him.

19 The material on one of the computers included two emails sent by the appellant to another person, CK.

20 The first email, dated 14 January 2006, reads, relevantly:

MY little 8 y-o loves to come here to be cuddled. When he is playing on the computer he always wants to sit on my lap where he stretches right out and melds right back into me just like those two sweethearts in your siggie, except that I am bigger.

He just loves me to cherish his tummy and his chest and nipples, and the other bits. He smells SO nice, except yesterday he had been out running around with his friends before they went home and he came over here, and was a tad sweaty.

I would not call any of that sexual.

Let others think what they want.

21 The second email, dated 15 January 2006, reads, relevantly:

You DO remind me of [R] so much. He and I were VERY close from the time he was about 6-7 through to his puberty.

At that time I was assisting his mother with her PhD thesis because of my work in Aboriginal mythology, and how that affects relationships with other people and with all the different animals and birds and trees and all that.

But then we went back to China. By time we returned to Australia his mother and assorted brothers and sisters (she had all these kids from three different blokes) had moved away.

So I didn't see him again until last year. Now he is 19.

He just used to snuggle up to me so close, like [L] does except [L] is thin and athletic while [R] was a bit tubby.

22 Police also located on the appellant's computers a large number of images of young boys. These included images of young boys involved in sexual behaviour with other young boys including mutual masturbation, oral sex and anal sex. There were also some images of naked boys and naked girls who were not engaged in sexual activity.

23 The State's case, based on the images found on his computers and on other evidence, was that the appellant had a sexual interest in young boys.

The interview between L and Patrick Gaillard

24 On 16 February 2006, Patrick Gaillard, a senior social worker, interviewed L and E separately.

25 Mr Gaillard made a written record of the interviews. The record of his interview with L reads, relevantly:

1. (We want to) talk about [the appellant's] place.
2. What happens there?

[L]. Once every 5 days - sometimes, mostly Wednesdays.

1. Did you go yesterday?
2. What (do you do) on the computer?

[L]. Games with my sister.

...

1. How long (do you normally stay) at [the appellant's]?

1. What other things (happen?) We've been told (things)? It's probably embarrassing.

[L]. He massages my rude part he plays with my leg, massages it.

1. (Does [the appellant] touch outside or under your clothes?)

1. How many times (has [the appellant] touched you there?)

[L]. Twice. I don't like it when he does it. (original emphasis)

The video-recorded interview of L with police

26 On 2 March 2006, L participated in a video-recorded interview with police.

27 On 13 June 2007, the video-recorded interview was replayed to L while solicitors representing the State were taking a proof of his evidence.

28 The pre-recording of the evidence of L and E occurred on 18 June 2007 at the District Court in Bunbury. On that date, counsel representing the State and defence counsel appeared before Mazza DCJ.

29 Counsel representing the State sought to rely on the video-recorded interview between L and police as part of L's evidence-in-chief (ts 11). The interview comprised 70 transcribed pages. It had a duration of one hour 50 minutes. Counsel representing the State estimated that after the video record was edited, it would have a duration of about 50 minutes (ts 11 - 12).

30 Defence counsel submitted to Mazza DCJ that the manner in which police had elicited evidence during the video-recorded interview was 'impermissible' (ts 13). Counsel said that many questions of significance during the interview were leading (ts 13 - 14). According to counsel, the interview was 'tainted' because of the leading nature of the questioning (ts 14).

31 Counsel representing the State accepted that there were 'objectionable leading questions' (ts 19), but submitted that this evidence could be edited from the video record.

You know what's difficult about this, this is really quite unfair because what happens is the child's led to it, and the state might say, 'Edit out the stuff that leads,' and then what the jury is left with is what appears to be a spontaneous disclosure when it's not a spontaneous disclosure, and then the defence might [be] left to be [sic] cross-examine about it, if they want to, if they want to do that. They may not want to do that. So it leaves the defence, I would have thought, in an invidious position (ts 19).

33 His Honour concluded that the State should not be permitted to rely on any part of the video-recorded interview for the purposes of count 1. He explained:

I think [counsel for the appellant's] point is well made. It's tainted. You can cobble together parts of it that are not leading, I accept that, but the thrust of the whole questioning is leading, and I wouldn't be prepared to allow count 1 to be led by way of the visually-recorded interview (ts 21).

34 In the event, counsel representing the State decided not to rely on the video-recorded interview at all (ts 42).

35 Mazza DCJ decided that the pre-recording of L's evidence would proceed on 18 June 2007, with his evidence-in-chief being adduced in the traditional manner. Defence counsel submitted to his Honour that he was prejudiced by the absence of a signed witness statement (ts 42 - 43). However, his Honour thought that this did not occasion any difficulty in that counsel had the video-recorded interview (including a written transcript of the interview), which adequately set out the substance of what the State intended to adduce in examination-in-chief (ts 42 - 43). This exchange then occurred between his Honour and defence counsel:

MAZZA DCJ: Why don't you listen to the evidence-in-chief, and if you think there's some prejudice to you, why don't you then flag it?

DEVLIN, MR: I will.

MAZZA DCJ: Mr Devlin, I understand what you're saying, but you've got two very simple allegations. It's very, very simple stuff.

MR DEVLIN: I agree. I agree (ts 43).

36 The pre-recording of L's evidence, including his cross-examination, was completed without defence counsel raising any issue with Mazza DCJ about alleged prejudice.

37 L said, in his evidence-in-chief, that when he used the computer at the appellant's home to play games, he would sit on the appellant's lap (ts 54). He estimated that he sat on his lap on six occasions (ts 54). The appellant touched him on his stomach and chest while he was sitting on his lap (ts 54). He thought this occurred twice (ts 55).

38 L's evidence-in-chief in relation to count 1 was, relevantly, as follows:

And [L], on this second occasion, did you say anything to [the appellant] whilst he was touching you on your chest and stomach?---No.

[L], did [the appellant] touch you anywhere else?---Yes.

And where else did he touch you?---On my rude part.

On your rude part. [L], what do you mean by those words, 'rude part'? What do you mean?---My willie and my balls.

So, [L], tell us about this occasion when he touched you on your rude parts. Were you around at [the appellant's] place?---Yep.

And what happened? Tell us about it?---I was sitting on his knee, and then, yeah, then for about five minutes, just normally sitting there, and then he, yeah, started doing it.

What was he doing? How was he touching you on your rude parts?---Rubbing it a bit.

Rubbing it, and was that with his hand?---Yep.

And was it with both hands or one hand?---One hand.

Where was his other hand whilst the one hand was touching you on your rude part?---I think it was by his side.

Do you remember what clothes you were wearing on that occasion?---I think a red top and just white shorts.

And, [L], you've told us he was touching you on your rude part. Was it on the outside of your clothing or was it inside your clothing?---Outside.

And can you describe a bit more what the hand was doing that was touching you on your rude part?---He was, like, yeah, using his fingertips and just, yeah, and yeah, kind of rubbing it, yeah.

Can you indicate with your own hand what you think he was doing?---Like that.

If I could just get you to hold it up a little bit higher because we can't see it in here. Yes, so he was just kind of moving the fingertips around?---Yep.

Is that what you're indicating?---Yep.

And did he say anything to you whilst he did that?---'Do you like that?'

And what did you say?---'No.'

How long did he touch you on your rude part for?---About five minutes.

When he stopped touching you on your rude part, what did he do from there?---I think he, like, went up and had an apple, ate an apple.

And what did you do?---I was just still staring at the computer screen.

[L], how did it make you feel when [the appellant] was touching you on your rude part?---Annoyed.

[L], did you tell anyone about what [the appellant] had done?---My sister and my mum (ts 56 - 57).

39 Defence counsel put to L in cross-examination that he could be confused about whether the appellant touched his penis or not (ts 75). L denied any confusion (ts 75). A little later, the following exchange occurred:

[The appellant] didn't touch you on the willie?---Yes, he did.

Are you sure about that?---Sure (ts 76).

40 Defence counsel did not cross-examine L about his complaint to E or M.

41 L's sister, E, gave evidence about her observation of the appellant's behaviour towards L when she and her brother went to the appellant's home to play computer games:

[E], when you were around at [the appellant's] playing on the computer, did anything happen when you were around there?---Sometimes [the appellant] told my brother to put his hand up - he put his hand up his shirt while [L] was sitting on his lap.

Okay, and, [E], so [L] was sitting on [the appellant's] lap?---Yep.

Did you see how [L] came to be sitting on [the appellant's] lap?---[The appellant] told him to sit on it.

So [the appellant] told your brother to sit on his lap?---Mm.

And [L] did, and, [E], whereabouts were they sitting on these occasions?---On the chair in front of the computer.

And you said that he put his hands on his chest. Who put his hands where?---[The appellant] put his hands on my brother's chest, up his shirt.

So [the appellant] put his hands up [L's] shirt on his chest?---Yeah.

And that was whilst [L] was sitting on [the appellant's] lap?---Yep.

...

How many times did you see this happen, that [L] would be on [the appellant's] lap and [the appellant] would put his hand up [L's] T-shirt and touch him on the chest?---He sat on his lap every time he turned the computer on, but he only put his hand up his shirt about two times (ts 28).

42 E then recounted a conversation she had with L. E was standing on the veranda at her home, and L came up to her and said:

Today was the worst. He touched my willie (ts 28).

43 E said she then went into the house and told her mother (ts 28).

44 Defence counsel asked E on two occasions whether she was 'sure' that she had seen the appellant put his hands underneath L's shirt (ts 32, 33). On each occasion, E said she was sure. E rejected defence counsel's suggestion that she could be mistaken (ts 33).

45 Defence counsel cross-examined E in relation to L's complaint. The following exchange occurred:

And you're sure that he said, 'He touched my willie'?---Yes.

No mistake about that, is there?---No.

That's the word that he used, 'He touched my willie'?---Yep.

...

You told [the prosecutor] that L had said, 'He touched my willie'?---Yeah.

In the police statement you said, '[The appellant] was playing with my willie.' Do you accept that there's a difference between those two?---Yes.

And you're not sure which one your brother used, are you?---I think it was 'playing'.

You think it was 'playing' now?---Yeah, because I did the police statement earlier, when I remembered more.

You remembered more when you did the police statement, didn't you?---Yes.

Are you confused about what [L] said to you?---No (ts 36, 38).

46 L's mother, M, gave evidence to the effect that the appellant installed her family's new computer in early 2006 (ts 144 - 145). When the appellant installed the computer, he met L (ts 145). After that meeting, L went to the appellant's home from time to time to play computer games. E also went occasionally (ts 145).

47 M gave this evidence about a conversation she had with E, and a separate conversation with L, in February 2006:

[W]hat was it that [E] said to you?---[E] just said that [L] felt uncomfortable because he felt that [the appellant] was being a bit too friendly and he asked him to sit on his knee and he brushed against his penis.

Right. So you then spoke to [L]?---Yes.

And on your evidence, you asked him whether that was true that had occurred?---Yes.

What was [L's] response to that?---He said yes, but not directly. He said, 'Yes, that's right,' but he was embarrassed.

So he was embarrassed when he was speaking to you about that, was he?---Yes (ts 146).

48 Defence counsel's cross-examination of M was very brief (ts 148 - 149). He did not cross-examine her about E's report of L's complaint or her subsequent conversation with L on that topic.

50 He denied having indecently dealt with L as alleged in count 1. He said that he had 'no recall' of having touched L 'on, as he described it, his rude part, also known as his willie' (ts 234). He denied having deliberately touched L's penis (ts 235).

51 The appellant admitted possession of the material the subject of counts 2, 3 and 4, but claimed that it was part of an archive he maintained for academic purposes. He was an anthropologist, with a university degree in anthropology.

The application for leave to adduce additional evidence

52 On 9 August 2010, the appellant made application for leave to adduce additional evidence in the appeal.

53 The evidence comprises an affidavit of Dr Gregory Dear, a registered forensic and clinical psychologist. Annexed to the affidavit is a report dated 16 June 2010 prepared by Dr Dear.

54 On 22 October 2010, McLure P referred the application for leave to adduce additional evidence to the hearing of the appeal.

55 Dr Dear has 25 years of professional practice experience and more than 10 years experience in academia.

56 Dr Dear was instructed by the appellant's lawyer to prepare a report setting out his opinion on the potential for L's pre-recorded evidence to have been 'contaminated' by conversations (including interviews) in which he participated in the period leading up to the giving of that evidence.

57 In preparing his report, Dr Dear obtained information from the following sources:

(a) the video-recorded interview of L with police on 2 March 2006, and a transcript of that interview;

(b) the pre-recorded evidence of L and E given on 18 June 2007, and the transcript of that evidence;

(c) the transcript of the District Court proceedings before Mazza DCJ on 18 June 2007;

(d) the written record of the interview between Mr Gaillard and L on 16 February 2006; and

(e) a letter dated 10 February 2010 from the office of the Director of Public Prosecutions to the appellant's lawyer which included a table outlining all conversations relevant to count 1 that L was known to have had, other than conversations with members of his family.

58 Dr Dear's conclusions, as expressed in his report, were as follows:

The child complainant, [L], engaged in several conversations about his allegation that [the appellant] sexually offended against him. These conversations span from his first conversations with his sister and his mother, through various interviews up to the proofing session with the prosecutor. These conversations are likely to have had a considerable impact on the reliability of [L's] evidence that he gave on 18-6-2007. The conversations are most likely to have influenced the details and particularisation given by [L] during his evidence. Apart from reducing the reliability of [L's] evidence of details, the previous conversations are also likely to have increased [L's] confidence in his memories and thereby cause him to appear more reliable to the lay observer (jury member or judicial officer). In short, at the time of giving video-recorded evidence in Court, [L] is likely to have been less reliable but more confident in his recollections than he would have been without those previous corrupting conversations.

The gist of [L's] evidence, that there was one incident in which [the appellant] touched [L's] genitals on the outside of his clothes, is less susceptible to the corrupting influences of previous conversations. The gist of the complaint has remained consistent from the first interview which Mr Gaillard (assuming the transcript is accurate) through to [L's] evidence in chief on 18-6-2007 [4] - [5].

59 Dr Dear gave sworn evidence before this court. He was cross-examined by counsel for the State.

60 Dr Dear said that he had not 'sought to form a view' about the accuracy of Mr Gaillard's notes (appeal ts 86).

61 As to his comment at par 25 of his report to the effect that L's interview with Mr Gaillard might have prompted L to have conversations with E about the incident in question, Dr Dear confirmed that this comment was speculative and he did not know whether any such conversations had occurred or not (appeal ts 87).

Dr Dear's report and evidence: s 39(1) and s 40(1) of the Criminal Appeals Act 2004 (WA)

62 Section 39(1) of the Criminal Appeals Act 2004 (WA) provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. By s 39(3), however, s 39(1) does not affect the power of an appeal court to admit evidence pursuant to s 40 of the Act. Section 40(1) provides, relevantly:

For the purposes of dealing with an appeal, an appeal court may do any or all of the following -

(a) order the production of any record or thing, whether or not an exhibit, that is or may be relevant to the appeal;

(b) order a witness who would have been compellable at the trial in the lower court, whether or not called at the trial, to attend and be examined before the appeal court;

...

(d) subject to the Evidence Act 1906 section 9, admit the evidence of a witness, including a convicted appellant, who is a competent but not compellable witness;

(e) admit any other evidence.

63 In Rinaldi v The State of Western Australia [2007] WASCA 53, Steytler P said, in relation to s 40(1)(a), (b), (d) and (e):

While these provisions afford the Court a discretion, which is not expressed to be limited in any way, to do any of the things provided for, it is most improbable that the legislature intended that they 'should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction': CDJ v VAJ (1998) 197 CLR 172 at [111] per McHugh, Gummow and Callinan JJ (dealing with the provisions of s 93A(2) of the Family Law Act 1975 (Cth)) and see also De La Espriella-Velasco at [150] per Pullin JA. The common law principles have, of course, been developed over many years in order to meet the ends of justice and the considerations giving rise to them will plainly be material to the exercise of the statutory discretion, which must be exercised judicially. While the common law principles touching upon the distinction between new and fresh evidence are not necessarily determinative of the manner of exercise of the statutory discretion, the considerations giving rise to those principles will ordinarily be weighty, so much so that it will be a rare case in which an exercise of the statutory discretion produces a different outcome to that produced by application of the common law principles [84].

64 There is no doubt (and counsel for the appellant accepted) that Dr Dear's report and evidence are 'new', as distinct from 'fresh', evidence.

65 Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of new as distinct from fresh evidence, unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted. See Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 - 676 (Mason J); DPJB v The State of Western Australia [2010] WASCA 12 [66] (Owen JA, McLure P relevantly agreeing).

66 The proposed amended ground of appeal alleges that the trial judge erred in permitting evidence from the complainant, L, to be admitted 'when it was inadmissible'. The proposed amended ground then alleges that the admission of this evidence resulted in a conviction that is 'unsafe and unsatisfactory'.

67 The particulars to the proposed amended ground assert that L's memory was 'contaminated by improper interviewing from the time of complaint and continuing during the lead up to the trial to the extent that it made any evidence elicited so unreliable that it was inadmissible'.

68 Counsel for the appellant submitted at the hearing of the appeal that there was a miscarriage of justice at the trial in that the trial judge should not have permitted the State to adduce L's pre-recorded evidence because his evidence was unreliable as a result of contamination by improper interviewing techniques. According to counsel, his Honour should have ordered a permanent stay of the proceedings.

The proposed amended ground of appeal: relevant legal principles

69 Where inadmissible evidence is given at a criminal trial without objection, and the accused is convicted, an appeal based on the receipt of that evidence will not be allowed unless this court is satisfied that the admission of the relevant evidence constituted a 'miscarriage of justice' within s 30(3)(c) of the Criminal Appeals Act. A trial judge does not make a 'wrong decision on a question of law' within s 30(3)(b) of the Criminal Appeals Act by failing to exclude inadmissible evidence to which no objection is made. See R v Soma [2003] HCA 13; (2003) 212 CLR 299 [79] (McHugh J); Birks v The State of Western Australia [2007] WASCA 29; (2007) 33 WAR 291 [45] (Buss JA, Steytler P & Pullin JA agreeing).

70 Although the proposed amended ground of appeal is misconceived in that it alleges the trial judge made an error in permitting L to give evidence, when no objection was taken by defence counsel to the State adducing his evidence, the proposed amended ground was argued on the basis that it was necessary for the appellant to demonstrate a miscarriage of justice.

71 It is the role of the jury to assess the reliability of a witness and the weight (if any) to be given to his or her evidence. See R v Kotzmann (No 2) [2002] VSCA 21; (2002) 128 A Crim R 479 [16] (Winneke P, Ormiston & Vincent JJA agreeing).

72 In Rozenes v Beljajev [1995] VicRp 34; [1995] 1 VR 533, the Court of Appeal of Victoria examined numerous cases which have dealt with the possible exclusion in a criminal trial of the evidence of an accomplice. Brooking, McDonald and Hansen JJ rejected the Crown's submission that there is no general or residual discretion to exclude evidence on the ground that to receive it would be unfair to the accused. Their Honours said:

In the present case the defendants accept that unfairness to the defendant means, not unfairness in some general sense, but that the defendant will not receive a fair trial. It is fundamental to our system of criminal justice that a person should not be convicted of an offence save after a fair trial according to law: Dietrich v R [1992] HCA 57; (1992) 177 CLR 292 at 299-300 per Mason CJ and McHugh J, at 326 per Deane J and at 362 per Gaudron J. The proposition must be accepted that there is a discretion in a criminal case to reject any evidence, whether or not a confession, on the ground that to receive it would be unfair to the accused in the sense that the trial would be unfair. So much must be accepted both on principle and by reason of the authorities (549).

73 Brooking, McDonald and Hansen JJ then expressed this view as to the practical ambit of the residual discretion:

But while the existence of a residual discretion must be accepted, it is not easy to think of circumstances in which grounds might exist for the exercise of that residual discretion in relation to any evidence - we are not speaking of confessions - which would not bring the case within the more specific principle whereby evidence is not to be admitted where its prejudicial effect is out of proportion to its probative value. (It may be that the admissibility of a written statement and the unavailability of its maker for cross-examination could in an appropriate case be treated as an example of such circumstances: we return to this question later.) (549)

74 Later in their reasons, Brooking, McDonald and Hansen JJ said it was difficult to accept that a criminal trial would be unfair by reason of the unreliability of evidence which is probative, where the circumstances which make the evidence unreliable are properly exposed for the jury's consideration (553). Their Honours discussed several authorities of relevance to this issue, including R v McLean and Funk; Ex parte Attorney-General [1991] 1 Qd R 231, and concluded:

We accept the view of Carter J [in McLean and Funk] that there is no discretion to exclude evidence which is based wholly or primarily upon the trial judge's conclusion that the evidence is unreliable. But if this view be too extreme, then at least it would have to be said that the circumstances calling for a favourable exercise of the discretion would have to be most exceptional. For it could only be in a most exceptional case that one could say, as Vincent J put it in Peirce at 277 that the considerations affecting reliability were not 'comprehensible to a jury and capable of assessment by them as the proper tribunal of fact'. The circumstances of the present case could not be regarded as most exceptional for this purpose. There is nothing so very unusual about the present case (559).

See also R v Rayner [1998] 4 VR 818, 849 (Winneke P, Brooking & Callaway JJA relevantly agreeing); R v Lowe [1997] 2 VR 465, 479 (Winneke P, Brooking JA & Southwell AJA); R v Lobban [2000] SASC 48; (2000) 77 SASR 24 [81] - [82] (Martin J, Doyle CJ & Bleby J agreeing); Kotzmann (No 2) [16]; Darwiche v the Queen [2011] NSWCCA 62 [167], [173], [179] (Johnson J, McClellan CJ at CL & James J agreeing).

75 If, contrary to the view expressed in Rozenes, a trial judge has a discretion to exclude evidence based wholly or primarily upon his or her conclusion that the evidence is unreliable, the discretion would be exercised only in the most exceptional case, where the factors affecting reliability were not able to be understood and assessed by the jury or where the risk of a miscarriage of justice could not be removed by proper directions. See Director of Public Prosecutions v Moore [2003] VSCA 90; (2003) 6 VR 430 [86] (Eames JA).

76 A court's inherent power to prevent an abuse of process does not provide any basis for enlarging the powers of a trial judge at the expense of the traditional jury function. See Doney v The Queen [1990] HCA 51; [1990] HCA 51; (1990) 171 CLR 207, 215 (Deane, Dawson, Toohey, Gaudron & McHugh JJ).

77 Numerous authorities have expounded upon the dangers associated with evidence based upon memories recovered as a result of hypnotherapy. See, for example, R v Horsfall (1989) 51 SASR 489; R v Jenkyns (1993) 32 NSWLR 712; Roughley v The Queen [1995] TASSC 14; (1995) 5 Tas R 8; R v WB [2009] VSCA 173; (2009) 23 VR 319; R v JG [2009] NSWSC 1053; (2009) 199 A Crim R 299.

78 In WB, Buchanan JA (Hansen AJA agreeing) said that perhaps the greatest danger in evidence based upon recovered memory achieved by hypnotherapy is that 'in the heightened level of susceptibility to suggestion which is characteristic of a person in an hypnotic state, the witness may subconsciously be influenced by suggestions or cues planted intentionally or otherwise during hypnosis' [36]. His Honour referred to the reasons of Hunt CJ at CL in Jenkyns (715).

79 It is well-established that a person who is investigating possible child sex abuse must be alive to the danger of suggestion when interviewing the child. Questions that are leading in substance are to be avoided. In C v Minister of Community Welfare (1989) 52 SASR 304, O'Loughlin J said in relation to questions that are leading or otherwise strongly suggestive of the answer:

This type of questioning of a young child is not appropriate and efforts should be made to ensure that investigators who are engaged in this type of work, whether they are members of the police force, the medical profession or social welfare profession, quickly come to understand that children's answers to suggestive questions may, in appropriate cases, be found wanting and lacking any probative value. Every effort should be made to avoid obtaining answers from a child by encouragement, offers of reward or threats and under no circumstances should word or thought associations be planted in the child's mind (310 - 311).

80 In Horsfall, the accused was charged with two counts of indecent interference with a girl aged 9. Defence counsel applied for a voir dire in support of an application that the child be not permitted to give evidence against the accused at the trial on the ground that, by reason of the multiple questioning to which she had been subjected over the previous 12 months, her evidence was irretrievably contaminated and, as a result, to allow her to give evidence would be to deny the accused a fair trial. The child had not only been subjected to a large number of interviews but had also undergone hypnotherapy on several occasions. She had been asked, while under hypnosis, to describe what the accused had done to her. The trial judge, Cox J, ordered a voir dire and ruled in favour of the application by defence counsel. At the voir dire, defence counsel called expert witnesses who gave evidence that in their view the hypnotherapy sessions would have had the effect of contaminating the child's memory.

I am satisfied that there could be cases, quite apart from insanity and other forms of permanent or temporary unsoundness of mind, where the actual ability - not inclination - of an intended Crown witness to give a trustworthy account of something is shown to be so fundamentally and pervasively and irremediably flawed as to justify the exclusion of that person's evidence because otherwise the accused could not have a fair trial. Obviously such cases will be rare (490 - 491).

82 However, his Honour was satisfied that, in the case before him, it would not be safe to admit the child's evidence. It would deny the accused a fair trial. His Honour directed that the child be not permitted to give evidence (495).

83 Cox J went on to explain that the hypnotherapy sessions were critical to his decision and that he would not have excluded the child from giving evidence merely because she had been subjected to a large number of interviews:

I want to make it very plain, before I leave this case, that I have found in favour of the defence only because of the hypnotherapy sessions, in which allusion was made specifically to the alleged indecent assaults on Sarah and to her memory abut them and to the way she could cope with them, although in judging the effect of those hypnotherapy sessions I have had regard to all the circumstances, including the numerous discussions and interviews to which Sarah has been subjected. However, the mere multiple questioning and interviewing that took place in this case, extensive though it was, would not have led to the exclusion of Sarah's evidence (495).

84 In Horsfall, Cox J excluded the child's evidence as a matter of discretion. This exercise of discretion was not governed by any statutory provision. Horsfall was decided before Rozenes. The decision in Horsfall has been described as a case within an exceptional category. See Von Einem (No 2) v The Queen (1991) 52 A Crim R 402, 418 (Duggan J).

85 Although it was decided in Rozenes that a trial judge does not have a discretion to exclude a witness's evidence based wholly or primarily upon the judge's conclusion that the evidence is unreliable, a verdict of conviction based on the witness's evidence may be set aside on appeal on the ground that the conviction is 'unsafe and unsatisfactory'. See R v Ralph (1988) 37 A Crim R 202, 210 (Yeldham & Allen JJ, Enderby J agreeing); Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432, 446 (Mason CJ).

86 In Warren v The Queen (1994) 72 A Crim R 74, the Court of Criminal Appeal of New South Wales allowed the appellant's appeal against his conviction, after a trial before a judge and jury, on two counts of common assault and three counts of assault occasioning actual bodily harm. The appeal was allowed on the grounds that evidence had been wrongly admitted, the trial judge had failed to put the defence case adequately in summing up, and the verdicts of conviction were unsafe and unsatisfactory. The convictions were quashed and a judgment of acquittal was entered. As to the conclusion that the verdicts of conviction were unsafe and unsatisfactory, Hunt CJ at CL (Finlay & Allen JJ agreeing) noted that the Crown case depended solely on the evidence of the complainant, a 5-year-old boy. Hunt CJ at CL said the probability that the boy's evidence was contaminated by suggestions put to him by the police officers and his mother and father was so great that little, if any, weight could be placed on his eventual identification of the appellant:

The police officer appears to have learnt nothing at all of the dangers of contaminating the evidence of very young children by suggestions made to them in the course of an interrogation, dangers which had been so widely discussed following the failure of the notorious 'Mr Bubbles' prosecution, referred to briefly in A-G (NSW) v TCN Channel Nine Pty Ltd (1990) 5 BR 10. His main purpose appears to have been to obtain evidence of sexual assaults by the appellant, but there could have been no doubt (even in the mind of a five year old boy) that he was suggesting that it was the appellant who was responsible for his injuries.

But nothing which the police officer said could match the intensity of the sustained attempt by the boy's mother to have him identify the appellant as the person responsible. The interrogation goes on and on in the most forceful manner. The probability of contamination was so great that little if any weight could safely be placed upon the boy's eventual identification of the appellant. This case illustrates yet once more the dramatic need for the procedures for the interrogation of very young children to be re-assessed in order to prevent the contamination and consequential destruction of evidence which could otherwise have been given of criminal activity in this type of case. Some work has been done, but tragically the dangers of contamination remain present (83).

The proposed amended ground of appeal: its merits

87 I will assume (without deciding), for the purposes of this appeal, that a trial judge has a discretion to order that a child complainant in a criminal trial be not permitted to give evidence against the accused, based wholly or primarily upon the judge's conclusion that the evidence is unreliable. In the present case, it is unnecessary to decide the point. Also, it is undesirable to express a preliminary view because the submissions of counsel were not helpful.

88 I am satisfied, for the following reasons, that no miscarriage of justice occurred at the appellant's trial as a result of the State having adduced L's pre-recorded evidence.

89 First, Mazza DCJ was of the opinion that, under s 106B(3) of the Evidence Act 1906 (WA), L was competent to take an oath or make an affirmation (ts 48 - 49). L did not suffer from any mental impairment. It was not suggested at the trial (or on the appeal) that L was not an honest witness.

90 Secondly, it is of some significance that the appellant's experienced defence counsel did not object to the State adducing L's pre-recorded evidence, or seek a direction or redirection from the trial judge in his summing up to the jury about any alleged unreliability of that evidence, or make application to his Honour for a permanent stay. See R v Wright [1999] VSCA 145; [1999] 3 VR 355 [2] (Phillips CJ & Charles JA).

91 Thirdly, defence counsel did not cross-examine L about his video-recorded interview with police (which, as I have mentioned, included suggestive questioning and was excluded by Mazza DCJ). Also, defence counsel did not establish (or even seek to establish), in cross-examination of L, a foundation for alleging that his pre-recorded evidence was unreliable as a result of leading questions or suggestions from, or discussions or interviews with, others (including, for example, M, E or police officers).

92 Fourthly, defence counsel did not cross-examine M or E as to whether they had made any suggestions to or had any discussions with L about the alleged offending, the subject of count 1.

93 Fifthly, count 1 embodied a simple allegation, namely, that on one occasion the appellant had touched L's penis. L complained, at the first reasonable opportunity, to E and then repeated the complaint immediately to M. These complaints occurred before the interview between L and Mr Gaillard. On 16 February 2006, L told Mr Gaillard in effect that the appellant had massaged his 'rude part'. There is no basis, in the material before this court, for impugning the interview between L and Mr Gaillard. In particular, there is no basis for apprehending that Mr Gaillard's interview with L may have involved leading questions, suggestions or other improper techniques. This interview occurred about two weeks before the video-recorded interview with police.

94 Sixthly, the trial judge gave orthodox (and unchallenged) directions in relation to the burden and standard of proof and the applicable law, his Honour accurately summarised the State's case and the appellant's case, and he mentioned an approach which the jury might take in assessing the accuracy and reliability of the evidence of the witnesses. His Honour pointed out, correctly, that defence counsel did not suggest that L was lying. The crucial point was whether his evidence was accurate and reliable (ts 284).

95 If a foundation had been established at trial for alleging that L's pre-recorded evidence was unreliable as a result of leading questions or suggestions from, or discussions or interviews with, others, it may have been appropriate for the trial judge to give an instruction or warning to the jury. See s 50 of the Evidence Act and the authorities reviewed in Cecez v The State of Western Australia [2007] WASCA 260; (2007) 35 WAR 344 [100] - [109] (Buss JA, Miller JA agreeing). It was not suggested by defence counsel at trial (or by counsel for the appellant in the appeal) that any such instruction or warning should have been given.

96 Seventhly, there is some doubt as to the admissibility of Dr Dear's report and evidence. See Farrell v The Queen [1998] HCA 50; (1998) 194 CLR 286 [11] (Gaudron J), [91] (Callinan J); R v S [2006] EWCA Crim 1404; [2007] 2 All ER 974 [14], [26] (Sir Igor Judge, Rafferty & Openshaw JJ). It is unnecessary, however, to decide the point. Also, it is undesirable to express even a preliminary view because the submissions of counsel on the point were of little assistance. On the assumption, favourable to the appellant, that Dr Dear's report and evidence are admissible, his views do not, on analysis, materially advance the appellant's case in the appeal.

97 Dr Dear concluded in his report that the gist of L's evidence, namely, that there was one incident in which the appellant had touched L's penis on the outside of his clothes, was 'less susceptible to the corrupting influences of previous conversations'. Dr Dear said that the gist of this complaint had remained consistent from the first interview with Mr Gaillard (on 16 February 2006) up to and including L's pre-recorded evidence. Dr Dear accepted in cross-examination at the hearing of the appeal that he had not attempted to form any view about the accuracy of Mr Gaillard's notes. I am satisfied that there is no reason, on the available evidence, to doubt their accuracy.

98 Also, as I have noted, there was unchallenged evidence at the trial that L had made complaint to E and M at the first reasonable opportunity. His complaint was consistent with the initial interview with Mr Gaillard and with his pre-recorded evidence to the effect that the appellant had touched his penis on the outside of his clothes.

99 Eighthly, the matters to which I have referred at [90] - [93] and [98] above, in combination with the absence of any hypnotherapy, readily distinguish this case from Horsfall. Further, the matters to which I have referred diminish significantly any risk that L's evidence may have been contaminated by the suggestive questioning during the video-recorded interview with police.

100 Ninthly, the jury, by their verdict, necessarily rejected the appellant's exculpatory evidence. Counsel for the appellant did not submit that this was not reasonably open.

101 Tenthly, even if a trial judge has a discretion to order that a child complainant in a criminal trial be not permitted to give evidence against the accused, based wholly or primarily upon the judge's conclusion that the evidence is unreliable (a point which it is unnecessary to decide), there was no basis, in the present case, for this discretion to be exercised. I refer, in particular, to my reasons at [90] - [93] and [97] - [98] above.

102 In the present case, I am also satisfied, for the following reasons, that the admission of L's pre-recorded evidence at the trial did not result in a conviction that is 'unsafe and unsatisfactory'. In Scriva v The State of Western Australia [2010] WASCA 89, I summarised the applicable legal principles (McLure P & Jenkins J agreeing) where it is sought to set aside a conviction on the ground that it is 'unsafe and unsatisfactory' or, having regard to the evidence, it is unreasonable or cannot be supported [38] - [42]. My review of the trial record, and the report and evidence of Dr Dear, does not require the conclusion that a reasonable doubt must be entertained as to whether the appellant was guilty of the offence alleged in count 1. I do not have such a doubt. For the reasons I have already given, no miscarriage of justice was occasioned as a result of L's pre-recorded evidence having been adduced at the trial. Also, for the reasons I have given, Dr Dear's report and evidence do not materially advance the appellant's case. The verdict on count 1 is supported by evidence that the jury was entitled to accept.

103 The proposed amended ground of appeal has no reasonable prospect of success. The absence of any merit in the proposed amended ground is sufficient, of itself, to require that the application for an extension of time to appeal be dismissed.

104 However, in addition, the appellant did not file his appeal notice until about nine and a half months after the last date for appealing, and a significant part of that delay has not been explained satisfactorily.

105 The appellant, in an affidavit sworn 13 May 2009, deposes:

I understand that in the normal course of events an appeal against my conviction should have been commenced by 11 July 2008. My legal counsel was instructed by me to do so on several occasions while I was in custody in Bunbury Regional Prison, as per a significant number of grievances listed here below on which he had previously been briefed, yet failed to act by arguing that I had been let off lightly, and that in any event should I appeal the Director of Public Prosecutions would only cross-appeal the leniency of my sentence [3].

This is the only material before this court in relation to the delay.

106 The appellant does not condescend to particulars about when he gave instructions to his counsel or when he ascertained that an appeal notice had not been filed.

107 I would refuse to grant an extension of time to appeal.

108 Also, I would dismiss the application for leave to adduce additional evidence in the appeal in that Dr Dear's report and evidence do not materially advance the appellant's case.