HAYWARD -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 35 (11 March 2025)

1. The appellant and his wife were close friends with S's family. At one stage, they all lived in the same country town in Western Australia. When the appellant and his wife moved away from that town, they remained friends.
2. On occasions after he had moved away, the appellant would stay with S's family at their home. Sometimes, the appellant would stay with S's family on his own, and sometimes he would stay there with his wife. On other occasions, the children in S's family would stay with the appellant and his wife at their home, so that they could attend sporting activities.
3. S formed a close bond with the appellant from a young age, and he would regularly put her to bed at night, both when S and her family stayed at the appellant's house and also while he stayed at their home. When the appellant was interviewed by police, he told them that he had fallen asleep on S's bed on at least one occasion when he was putting her to bed.
4. The appellant would also communicate with S via an application called Messenger Kids, and he would play online video games with her, including a game called Roblox.
5. On 22 November 2021, S's sister, B, found her watching animated pornography on an iPad. S was only 8 years old at the time. S then told B that the appellant had showed her the pornography, and had been sexually offending against her.
6. After B informed her parents of what S had told her, S took part in a visually recorded interview on 25 November 2021. Approximately two years later, S gave evidence at trial that was pre‑recorded in accordance with orders made under s 106K of the Evidence Act.
7. The State's case at trial was that, on three occasions, the appellant indecently dealt with S by taking one of her hands and putting it under his pants and onto his penis. The State alleged that on two of those occasions, the appellant was with S at her home (counts 1 and 3 on the indictment), and that the third occasion happened at the appellant's home (count 2 on the indictment).
8. The State also alleged, in count 4 on the indictment, that the appellant indecently dealt with S by showing her pornographic material. Initially, the State's case was that this occurred on a different occasion from any of the occasions on which the appellant had forced S to touch his penis. However, based on a late re‑assessment of S's pre‑recorded evidence, by the end of the State's case, it was alleged that this incident occurred on the same occasion that the appellant forced S to touch his penis while they were at the appellant's home.
9. In the evening of 24 November 2021, the appellant wrote and sent to himself an email addressed to his wife. The State alleged that this was, in effect, a draft suicide note. In that email, the appellant said that he 'expect[ed] in the coming days to be accused of child sex assault in relation to [S]'.
10. Approximately one week later, just after 3.00 am on 1 December 2021, the appellant sent that email to his wife. However, immediately after writing that he expected to be accused of 'child sex assault in relation to [S]', this version of the email included the words, 'Which I have done' followed by ☹ (sad face emoji).
11. The appellant was arrested later on 1 December 2021. He then took part in an electronically recorded interview with police. During that interview, the appellant denied the allegations that had, by then, been made by S. The appellant also explained that he had, in effect, made a false admission in the email he sent to his wife earlier that day so that she would not blame S for his death, and so that she could maintain a relationship with S and her family after he was gone.

1. The defence case was that the allegations made by S were untrue.
2. As senior counsel who appeared for the appellant at his trial explained to the jury in his opening address, the defence case was that when S was caught by her sister looking at pornography on her iPad, she realised she was in trouble and that she would lose her iPad. It was argued that because S's iPad was very important to her and she did not want to lose it, S needed a 'scapegoat'. The defence contended that the scapegoat S chose was the appellant.
3. The defence accepted that the appellant had been a close friend of S's family, and that he and S had a very close relationship. It was suggested that the appellant was 'like an uncle' or 'a godfather' to S.
4. The defence also accepted that the appellant would, on occasions, tuck S into bed at night, and read to her. The defence agreed that the appellant was also familiar with the video games S enjoyed playing, and that the appellant and his wife gave S vouchers and credits for these video games for her birthday. The defence asserted that S was not singled out in this regard, as the appellant and his wife would give birthday presents to all of S's siblings.
5. The defence case was that the appellant did not commit any sexual offence against S and that he never showed her how to access pornography on the internet. In that regard, senior counsel argued that S's allegations were uncorroborated; that S did not spontaneously complain about the appellant; and that S's account was dishonest or 'at best vague, patchy, uncertain, inconclusive, and inconsistent'.[1]
6. In relation to the email the appellant sent to himself, and the modified version of that email he later sent to his wife, the defence case was that the appellant was under enormous financial and personal pressure at the time because his business had just gone into liquidation and a large amount of money was owing to various creditors. As senior counsel for the appellant explained to the jury in his opening address, the defence case was that the appellant was in complete shock after hearing of S's allegations and that he had decided to end his own life. However, the appellant argued that those emails were not an admission of guilt but that they had been written in a misguided and foolish attempt to shield both his family, and S's family, from recriminations.

1. The appellant was charged with four counts of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Code. The first three counts on the indictment each alleged that the appellant indecently dealt with S by putting her hand on his penis. The final count alleged that the appellant indecently dealt with S by showing her pornographic material. It was ultimately alleged that the offence the subject of the final count was committed at or about the same time as the offence the subject of count 2.
2. After deliberating for some time, the jury returned unanimous verdicts of guilty in relation to counts 1 and 2, and unanimous verdicts of not guilty in relation to counts 3 and 4.

1. The appellant represented himself in his appeal.
2. The appellant relies on four grounds of appeal, which are in the following terms:
   1. There was a miscarriage of justice occasioned by His Honour Ritter QC DCJ, erred in Law and fact in allowing the Child Witness Interview (CWI) of the Complainant to be played during the course of the trial.

1. There was a miscarriage of justice occasioned by the attitude and approach of the Prosecutor in that he continually denigrated the Accused and let his own personal beliefs affect the evidence adduced and presented.

1. The verdict of the Jury was unreasonable and could not be supported, where a Jury acting reasonably should have had sufficient doubt to acquit the Accused.

1. There was a miscarriage of justice occasioned by an Aggregate of Errors.

1. Having regard to ground 3, it is necessary to summarise the evidence that was adduced at the appellant's trial.

1. The evidence adduced from S took the form of a visually recorded interview that was conducted on 25 November 2021, when S was 8 years old. It also took the form of an electronic pre‑recording of her evidence that took place on 31 July 2023, when S was almost 10 years old.

1. The way that the visually recorded interview was conducted with S is the subject of ground 1. Accordingly, we will say more about that topic later in these reasons when disposing of that ground.
2. The order in which the counts appear on the indictment does not correspond with the order in which S spoke about the events the subject of those counts in her interview.
3. S began by telling the interviewer the following:[2]

A. Mm, sure. Um, [the appellant] unbuttoned his pant - uh, unbuttoned his pants and put my hand under it and - yeah, yeah.

Q. So [the appellant] unbuttoned his pants and put his hand under your knickers - under his knickers?

A. No, my hand.

Q. Your hand? Sorry. That's a good job you're telling me about things I get wrong. So he unbuttoned his pants and put your hand under his knickers.

A. Yeah.

Q. And when did this happen?

A. A year ago or something.

1. S said that this happened more than once, and that it had happened 'like five or something' times. She said that it happened downstairs at her house, in her games room, and that she talked with the appellant about it being a secret.
2. Although S could not remember the time of day when it happened, she said she was wearing daytime clothes and that her whole family was at home, upstairs, when it happened.
3. S was reluctant to tell the interviewer what part of the appellant's body she touched with her hand while it was under the appellant's 'knickers'. When she was asked what that part of the appellant's body was used for, S eventually agreed that it does 'pee'. She also spelled out the letters of the word 'dick' on a piece of paper.
4. The evidence given by S may be summarised by referring to the following excerpt from the interview:[3]

Q. Fair enough. Okay. So [the appellant] unbuttoned his pants and took your hand and put it under his knickers - - -

A. Yeah.

Q. - - - onto his dick.

A. Yeah.

1. S said that while this was happening, the appellant talked to her, but she could not remember what he said.
2. This incident formed the basis of count 3 on the indictment, which alleged that on an unknown date between 1 January 2019 and 22 November 2021, the appellant had indecently dealt with S, a child under the age of 13 years, contrary to s 320(4) of the Code.
3. Next, S was asked about 'the first time this happened'. S said that she did not 'even know when [she] was touching it first'. However, she said that it happened at the home where the appellant and his wife lived, in a spare bedroom 'with all the weights and stuff'.
4. When she was asked to tell the interviewer everything that happened on this occasion, S said that it was over two years ago. She then said that she remembered being at the appellant's house, in the spare bedroom, and that the appellant was 'like chit chat'. Later in the interview, S said it happened two times at the appellant's house in the spare bedroom with the weights. When she was asked to tell the interviewer everything that happened on the other occasion at the appellant's house, S said all she knew was that it was in the country town in which the appellant lived. She also said that '[h]e did the exact same thing every time'.
5. This event was the subject of count 2 on the indictment. It was alleged that on an unknown date between 1 January 2019 and 22 November 2021, the appellant committed a further offence contrary to s 320(4) of the Code.
6. S then talked about an event that occurred one night when both she and the appellant were lying on her bed together in her bedroom. She said that this happened although she was too old to have people lying next to her.
7. She said that one of her sisters was having a shower at the time and that everyone else was out in the kitchen. S said that while they were lying on her bed together, the appellant unbuttoned his pants and once again put her hand inside his 'knickers'.
8. This incident formed the basis of count 1 on the indictment. As was the case in relation to counts 2 and 3, the State alleged that on another unknown date between 1 January 2019 and 22 November 2021, the appellant committed a further offence contrary to s 320(4) of the Code.
9. When the interviewer then informed S that one of her sisters, 'B', had told the interviewer that S had been watching something 30 days ago, S expressed surprise at what her sister had done. S said that her sister said that she would not tell anyone. The interview was then suspended because the memory card for the camera ran out of space.
10. When the interview resumed, S was asked about what she had watched on her iPad. She said that she had watched scary videos about zombies on YouTube. However, when the interviewer pressed S for more details about what she had watched, S said that she did not want to say what it was. Eventually, S told the interviewer that she had been watching a video of 'random people'. The interviewer questioned S on what those random people were doing and S spelled out the letters of the word 'sex'.
11. S also told the interviewer that it was the appellant who showed her how to find that video. When asked what the appellant showed her to do, S said, 'Type it up'. She said that she typed up videos of people having sex into a search engine on her iPad, and that the appellant told her to do this 'like three years ago'.
12. This incident was the subject of count 4 on the indictment.
13. Count 4 alleged that the appellant committed an offence contrary to s 320(4) of the Code 'by showing [S] pornographic material'. At the trial, the State prosecutor accepted that the State was required to prove that the appellant showed pornographic material to S, and that it was not enough to prove that he had merely shown her how to search for that material.[4]
14. We will shortly summarise S's pre‑recorded evidence. However, it is convenient to note at this point that, at the close of the State's case, the State amended the indictment to allege that the incident the subject of count 4 occurred at the same time and at the same place as the incident alleged in count 2.
15. S said in her interview that she talked to the appellant by text messages, in person, and via Messenger Kids. However, she also said that she did not speak to the appellant very often anymore. S said that the last time she spoke to the appellant was 'last term'. S said that they talked about 'random stuff', and she made specific mention of the video game, Roblox.
16. When S was asked how she felt about the appellant, she said that she did not really know yet. She appeared to accept that she had previously told her sister that she loved the appellant, but she also said that she had recently taken that back because the appellant always asked her what game she was playing and this made her angry.
17. S told the interviewer that she had previously asked the appellant for things, like the video game, Roblox. She said that the appellant had given her $50 for Roblox for her birthday, but nothing else.
18. Towards the end of the interview, S denied ever sending videos or photographs of herself to the appellant.[5] She also denied that the appellant had ever touched her.
19. S said that the first person she told about the fact the appellant made her touch him was her sister, B. S said that she told B 'on Monday'. The interview took place on a Thursday.

1. S's evidence was pre‑recorded at a special hearing conducted in accordance with orders made under s 106K of the Evidence Act. That hearing took place on 31 July 2023.
2. The judge who presided over the special hearing was satisfied that S was competent to give evidence after making an affirmation, for the purposes of s 106B(1) of the Evidence Act. After S was affirmed, she gave further evidence‑in‑chief, and she was then cross‑examined.
3. In her further evidence‑in‑chief, S confirmed that she had taken part in an interview. She also confirmed that she spent some of the interview under the table in the interview room because she was 'a bit nervous', although when she was asked what she was nervous about, she said she did not know. When further prompted by the prosecutor, S agreed that her nervousness related to the questions she was asked during the interview.
4. S confirmed that the things she had said in the interview were the truth.
5. S was then shown various photographs of her home and its surrounds. S gave evidence that one of the photographs that was taken in her bedroom showed the bed that the appellant had come and laid down on with her. She also gave evidence about a spare room and agreed that the appellant and his wife sometimes slept there.
6. The prosecutor asked S to clarify what she meant when she said in the interview that she was 'touching it'. She replied, 'His dick'. She said the appellant put her hand into 'his knickers', and agreed that this happened in the spare bedroom 'with all the weights'.
7. The prosecutor also asked S to clarify what she had said in her interview about video games. He also asked her to clarify some other things that she had spoken about in that interview, with variable degrees of success.
8. Senior counsel for the appellant then cross‑examined S.
9. In that cross‑examination, S confirmed that she remembered being interviewed when she was 8 years old, and she recalled the name of the interviewer. When asked whether she told the interviewer the truth, S said that she had.
10. S agreed that she had spoken to her sister, B, some days before the interview. She also agreed that she spoke to her mother in the time between speaking to B and the interview. She gave evidence that she told her mother what had happened, but she could not recall whether she spoke to her sister again. She also could not remember speaking to her father about what had happened to her.
11. When she was asked how many times the appellant put her hand on his penis, S said that she did not remember, but that she was about 7 years old when it happened. However, she also agreed that this was a guess and said that she did not really know how old she was at the time. She said that she was pretty sure that it happened more than once.
12. S confirmed that she could not remember the first time it happened, although she was sure that it happened. She said that it was in the spare room at the appellant's home. She then said that this was the first time that it happened. She agreed that this room was what was sometimes called 'the weights room'.
13. Senior counsel for the appellant showed S a photograph of the weights room and S confirmed that she would sleep in that room with her siblings when they stayed overnight there. She also identified the beds in which she and her sisters would sleep. There was a bunk bed as well as a 'pull-out' bed underneath the bunk bed.
14. S agreed that the appellant and his wife were close friends of her family. She accepted that they were like her uncle and aunty, and that they were very nice to her. She agreed that this never changed right up until the time she was interviewed.
15. S also agreed that her family had been on holidays with the appellant and his wife. She said that nothing bad happened to her during those holidays.
16. Senior counsel then returned to the topic of the first time 'anything happened' and asked S a series of questions. S again confirmed that it occurred in the weights room at the appellant's house. She said that she was pretty sure she was 6 years old, and that she was sure that it happened.
17. S said that when it happened, her other sister, T, was having a shower and 'the rest' were out in the kitchen. It was night, although she was not sure what time it was. She did, however, remember that she was in her pyjamas and that the appellant was wearing jeans, which had one button and a zipper.
18. When S was asked how this event started, and what she was doing, she said that she did not remember. She could not say whether the appellant was reading to her or whether he was playing a game with her. She did remember that the appellant was not lying down with her on any of the beds in the weights room.
19. S was then asked about the second time this happened, but she said that she could not remember. She did say that she was 'pretty sure there was a second time' and that it might have been at her house when she was about 6 years old, halfway through the year. S also said that she was pretty sure that this occasion occurred in her own room, which she shared with her sister, T. She said that she was pretty sure that T was having a shower or that she was in the kitchen at the relevant time.
20. When S was asked what she was wearing she said that she was in her pyjamas, although she could not remember what time of day it was. She agreed that she remembered what the appellant did to her and that it was the '[s]ame as last time'.[6] S agreed with propositions that were put to her by senior counsel, that the appellant unbuttoned his pants and put her hand into his 'knickers'. S said that the appellant was wearing jeans again, with one button at the top of the jeans and a zip.
21. S then gave the following evidence:[7]

Do you know what an erection is?---No.

When a man's penis gets hard. You don't know what that is?---No.

You haven't seen anything like that on - on of the websites you've been to?---No.

You've never heard that word before, 'erection'?---No.

Not before today?---Yep.

Nothing - nothing changed about his - if I use the word, 'dick', you'll know what I'm talking about, won't you - - -?---Yes.

- - - when you were touching it?---No.

It didn't change from soft to hard or anything like that?---No.

You're sure about that?---Yes.

On neither of these times that you told us about in the weights room or in your bedroom?---I don't understand.

All right. Now, both - they were both very much the same, you told us?---Yes.

What happened?---Yes.

On the first time, did anything about his dick change?---No.

It didn't go from being soft to hard?---No, it did not do that.

No. And what about the time in your bedroom after that? It didn't change on that occasion?---Yeah, didn't change.

Okay. Now, how long - on the first time, that's in the weights room at his place, how long did he leave your hand there?---I don't know.

Well, was it one second?---I don't know.

An hour?---I don't know - not really.

You - you can't say?---I don't know.

And you can't tell us about - about the time in your bedroom either, can you?---No, I don't know.

1. When S was then asked whether there was any other occasion that the appellant touched her, she said, 'No'. However, when senior counsel went to confirm the answer S had given, she said that she did not really know how many times, but that she was pretty sure it happened on more than two occasions. Although she said that she thought it had happened more than twice, she could not remember any other time that it had happened.
2. S then said that she was pretty sure that 'it' happened at the appellant's house about five times, although she immediately changed her evidence to being pretty sure that it had happened two or three times at the appellant's house. She also said that it happened at her house two or three times, and agreed that it was always the same. Later in her evidence, S agreed that, although it might have happened five or six times, she could only remember two of them for sure. One of the incidents she could remember happened at the appellant's home, and one happened at her own home.
3. When she was asked about the last time it happened, S said that she was pretty sure she was about 7 years old, and that nothing else has happened to her since she was that age.
4. Later in her evidence, when she was asked to confirm how old she said she was the first time something happened, S again said that she thought she was about 6 years old, and repeated that she was pretty sure she was 7 years old the last time it happened.
5. S gave evidence that the appellant told her that what had happened should be kept a secret, and that he said this on the first occasion something happened.
6. S agreed that she had a games room at her home, and that nobody sleeps in that room. She said that it was downstairs and that she goes to that room to play pool or ping pong, and to do exercise. When she was asked whether it had ever happened in the games room, S said that she did not remember and agreed that she could not really say for sure. S agreed with senior counsel that the only times she could remember were one occasion in the weights room at the appellant's house and another occasion in her bedroom at her house.
7. S also agreed that the appellant had never touched her on her private parts, and that nothing had ever happened outside either of those two locations, including when they were on holidays.
8. Senior counsel then asked S a series of questions about her iPad.
9. When it was initially put to S that she had an iPad at the time she participated in the interview, she gave evidence that she was pretty sure that it had been sent to Perth right before the interview because the screen had cracked.
10. S agreed that her sister, B, found her looking at images of people having sex on her iPad. She agreed that this occurred on 22 November 2021. When she was asked how she had located those things, S gave evidence that the appellant told her. When senior counsel challenged S by suggesting that her evidence was untruthful, and that this was something she had made up so that she would not lose her iPad, she disagreed and said that it was true. S also rejected a suggestion that she loved her iPad, and gave evidence that she loved her pets more than her iPad.
11. S accepted that she had spent a lot of time on her iPad when she was not at school. However, when she was asked whether she knew that it was wrong to look at websites of people having sex, S said, 'Not back then, no, I didn't know'.[8]
12. S said that she had never heard the word 'pornography' or 'porn', even at the time she was giving evidence, and that she did not have a word to describe what she had seen on websites showing people having sex.
13. When she was asked about whether anyone else used her iPad, S said that she was the only person who used it. S agreed that the iPad had access to the internet and that she knew how to search for things herself using the search engine, Safari. Significantly, S agreed with senior counsel when he suggested to her that the appellant had never shown her how to search on Safari and that he did not need to do that because she already knew how to do that herself.
14. Senior counsel then asked S several questions about her usage of the iPad, and about her access to the internet. S said that she could not remember what website she was looking at when her sister found her looking at images of people having sex. Counsel put several websites which appeared on a search history report taken from the iPad to S and asked her if she had ever heard of them. S denied knowledge of any of them. She also said that she could not remember accessing any websites with images of people having sex with each other and said that she could not remember what she was watching when her sister found her.
15. Senior counsel then asked S several questions about some information that had been obtained from the history of the iPad, which indicated that it had been used to search the internet for pornographic material. S either denied making the searches, when they were specifically put to her, or she said that she could not remember. However, she did say that the appellant showed her how to 'do this'.[9]
16. S said that she did not know where the appellant had shown her how to 'do this', and that it may have been in the weights room at his house. S displayed a general lack of memory about what she said the appellant showed her, or when he showed her.
17. S gave the following evidence:[10]

So he showed you how to do it, to find people having sex. Is that what you say he typed in?---Yeah.

People having sex?---Yeah.

And then it came up?---Yeah.

And did you watch it with him?---I don't remember.

Well, you didn't, did you? He never - he never ever watched any of that sort of stuff with you?---(No audible answer).

Did he?---I don't really know.

Well, if he did, you'd know, wouldn't you?---It was a while ago so I still don't really know.

1. S then agreed that she had said in her interview that the appellant had showed her how to search for this sort of material about three years before the interview. However, she gave evidence under cross‑examination that it might have been two years before the interview. When challenged about whether she was telling the truth, S said that it was true, and that the appellant did tell her how to type things up and access what senior counsel referred to as 'sexy websites' on the internet.
2. Senior counsel asked S whether she remembered going to 140 websites. S said that she did not know. She said that probably 40 of them were 'like YouTube'.
3. S agreed that it was 'most likely' that she communicated with the appellant on the mobile telephone. Curiously, she also said that she did not own a mobile telephone in those days but said that she could text him on the iPad or use Messenger Kids.
4. S also agreed that the appellant and his wife had given her a Roblox voucher, and that her mother and father were aware of that.
5. S then confirmed again that the time the appellant showed her how to access people having sex on the iPad was the first time he put her hand into his pants and made her touch his penis. However, she then said:[11]

So you don't - you're unable to say whether after the time he showed you how to do it you ever did it again on your own?---No, not that I know of.

But you did, didn't you? You did do it again sometimes?---Yeah, I'm pretty - well - - -

That is, went to - on your own went to search sites of people having sex?---No, he always did it.

He always did it?---Yeah, I'm pretty sure.

Well, I thought you said - tell me if I'm wrong - that you could only remember him doing it once?---I don't know how many times, though.

1. Senior counsel again asked S what was on the website when she went there, and S said she would need to think about that. She said she did not know whether the people on the website had their clothes on or off. She also said that although she knew what a penis was, she could not remember whether she had seen one on a website. She also appeared to say that she could not remember seeing a woman on the website who was not wearing clothes.
2. When S was asked whether she could remember what she was watching when B found her, she said that she could not because it was quite a while ago.
3. Senior counsel then asked S a series of questions about getting into trouble at school because she had kissed a boy and because she had lifted her dress up in front of a friend when she was not wearing any underwear. S said, in effect, that she had no memories of those events and denied ever being in trouble for that type of behaviour.
4. It was also suggested to S that she had made up a story about the appellant showing her how to use her iPad to look things up on the internet so that she did not lose her iPad. However, S denied that suggestion and said that she had lost her iPad many times, but for different reasons. She said that she had never been upset because her iPad had been removed from her.
5. S then gave the following evidence:[12]

Do you know that [B] recorded your conversation with her that day when she found you looking at those things on your iPad?---No.

You didn't know that she was recording you?---I didn't know.

You didn't say to her, 'I don't want you to record this'?---Yes, I did say, 'Don't you - I don't want you to record this'.

Why would you have said that?---Because - I don't know.

You wouldn't say that unless you knew she - - -?---It's because I thought I would get in trouble by mum.

For looking at sexy things on your iPad?---Yeah.

Because that's what you were looking at, weren't you?---I don't remember.

And if anyone had looked at your search history, they'd have found out that you'd done that?---Yes.

Cos you had done that, hadn't you?---No, I hadn't done that.

And you were really scared that mum would take your iPad off you?---No, I wouldn't be scared.

You needed an excuse, didn't you?---No, I didn't need an excuse.

You knew that you were doing something that was very wrong?---I didn't know that it was wrong at the time. I know that's wrong now.

And you'd been looking at those sorts of sites right through October and November?---Yes.

I'm talking about sites where people had - were having sex?---[The appellant] showed me that, as I have said many times.

You said that he showed you years ago?---Yeah. He had showed me years ago. I just hadn't gone on it very often.

And you kept doing it, didn't you?---Yeah. Cos I didn't know it was bad at the time, as I said.

So you did keep doing it?---Mm hmm.

On your own?---Not on my own.

Well, it wasn't with [the appellant]?---Some - - -

Sorry?---Well, it was only sometimes I did it on my own.

You did it on your own sometimes?---Yeah. Maybe like two times, I'm pretty sure.

On your own?---Yeah.

Why did you do that?---Cos as I said, I didn't know it was wrong at the time.

You knew it was wrong, didn't you?---No, not at the time.

And your - if your iPad history shows us that you did it through October and November 2021, that was you doing it yourself, wasn't it?‑--No, that was [the appellant] showing me.

[The appellant] showed you every time?---Not every time because I used my - cos I didn't do it on my own most of the time. I don't really know and you're - - -

...

See, I want to ask you this, [S]. [The appellant] never showed you how to access those sorts of sites on your iPad, did he?---He did. And I've said that multiple times.

But it's not true, is it?---He only showed me about 40 (?) times.

1. After S then had a short break in giving evidence, her cross‑examination concluded in the following way:[13]

When you spoke to [the interviewer] you told her that when [the appellant] showed you how to access people having sex on Safari it was three years ago, that is, three years before you spoke to [the interviewer]. Was that true?---I don't really remember, I'm pretty sure. It might have been two or three.

But you told [B], didn't you, that you started watching it about 30 days ago?---He showed me about two to three years ago but I only started watching it about 30.

30 days before?---Yeah.

That's on your own without him?---Yes.

He never actually sat down and watched any of this with you, did he?---I don't think so. He only showed me the website.

But he never watched it with you?---Never.

Never. And [the interviewer] asked you what other things he'd showed you or told you to do and you said:

Nothing else.

?---Yes, nothing else.

And that was true, wasn't it?---Yes, that's true.

So you say he only once showed you how to access these sites?---Yes.

Never ever did anything after that?---Nope, never.

And never ever watched them with you?---Yes.

And that's all true?---Yes, that is now true but that is all true but I (indistinct) now, now there's four(?).

[S], he never ever showed you anything, did he? He never showed you how to - - -?---He did.

- - - watch pornography - - -?---He showed me.

- - - at all?---He did. He showed me the website but since I didn't know it was wrong at the time I watched it on myself - by myself cos I didn't know it was wrong.

And that was through October/November that year too?---Yeah.

Did it all yourself?---Yes.

Accessed those sites yourself?---Yes.

Which were people having sex?---Yes.

He didn't - if you'll accept one more, you tell me if it's wrong or right, he never ever took your hand and put it on his private parts, did he?---You are wrong.

1. In re-examination, S was asked questions about whether the appellant was present when she looked at a video on the iPad. S said that they were in the weights room at the appellant's house when the appellant showed her 'how it was spelt in the website'.[14] She said she did not remember what the appellant told her to search but remembered that it included the word 'sex'.
2. She also said that the appellant went onto Safari on her iPad and 'searched it up'.[15] She said that she saw a video and that she was 'pretty sure he pressed on the video', and then he left. She said that she watched it while sitting on her bed while the appellant was out in the kitchen.
3. S said that the video showed people having sex. She gave evidence that she did see the people in the video but she did not really know whether they had clothes on. She also said that the video was only about one minute in duration, although she also appeared to say that it could have been 30 minutes long, and that she had a very bad concept of time.
4. Later in her re-examination, S said that the appellant showed her the video 'right after' he put her hand on his penis. She said that it was at night-time and that the appellant had gone out to the kitchen to sit and talk to her parents, before he returned to her bedroom and showed her the video.
5. S was also asked questions about how many times the appellant put her hand onto his penis under his underwear. S said that she was trying to remember but that she was pretty sure that she had said in the interview that it was about five times. She said it was all the same, and that she cannot really remember.
6. The prosecutor who appeared at the pre‑recording asked S about whether anything happened in the games room at her house. S said:[16]

So did anything happen in the games room?---I'm trying to remember but I'm pretty sure in the interview I said about once, yeah, I think.

Is that - is that right? Was it - did something happen once in the games room?---I'm pretty sure I said at the interview and I - I'm pretty sure it did happen in the games room.

1. Finally, S confirmed that the appellant had told her not to tell anybody else about what he was doing to her when he unbuttoned his pants and put her hand into his 'knickers'. S said that the appellant said this to her the first time he did that to her.

1. The complainant's older sister, B, gave evidence at the appellant's trial.
2. B explained that S was the youngest of four children. She also gave evidence that the appellant and his wife were long-standing friends of her family.
3. B gave evidence that she had a conversation with S on the afternoon of 23 November 2021[17] after she walked into the loungeroom at their home and found S sitting behind a couch, using an iPad. B explained that when she approached, S hid the screen of her iPad, which made B worried about what she was doing. B then told S to unlock her iPad and show her what she was doing.
4. After initially refusing to show her sister what she had been doing on the iPad, S handed the iPad to B and went and hid in a bathroom. When B looked at what was on the iPad she saw some images of animated pornography.
5. B then went to speak to S and asked her who had shown this to her. B asked whether it was a particular boy from school. S said no, and that it was the appellant who had shown her. B said that when she asked S if she was sure that it was not the boy from school, S confirmed that it was the appellant.
6. B asked S to come out of the bathroom and talk with her in the loungeroom. B gave evidence that their parents were out at a birthday party at the time. B also gave evidence that when she spoke to S in the loungeroom, S told her that she did not want to get anyone into trouble, and that the appellant had told her not to tell anyone. B also gave evidence that S told her that when she was alone with the appellant, he would unzip his pants and put her hand in his jocks.[18]
7. B said that she told her parents what S had told her the next day.
8. B gave evidence that she did not know the PIN code to access S's iPad.
9. When B was asked about her relationship with the appellant and his family, B gave evidence that they would sometimes stay at her family's home, and she would sometimes stay at the appellant's home when playing basketball away from home. She also confirmed that she would stay in the 'weights room' in the appellant's house, which she identified in some photographs. B explained that she and her sisters, including S, would stay overnight in that room.
10. In cross‑examination, B agreed she had previously participated in an interview. She also agreed that in that interview she said, in effect, that she was able to access S's iPad using a four digit PIN code which her entire family knew of. She also agreed that the iPad that S would use was not exclusively hers, and that other people sometimes used it. However, B denied ever using S's iPad as she had her own.
11. B agreed that S was very attached to her iPad, and that when B found S looking at the animated pornography on the iPad, B told S that she would tell their mother if S did not tell her herself. S said that she was very scared that she would get into trouble and have it taken off her.
12. B was asked about what she saw on the iPad. B said that she saw animated characters having sex with each other. She said that the characters were male and female, they were naked, and she could see their genitals. She also said that she could see that the male character had an erect penis.
13. B was then asked about the search history on the iPad. She confirmed that she looked at the history, and saw a lot of searches about pornography. She showed S how to erase her search history.
14. B said that she then decided to record her conversation with S. Senior counsel for the appellant put to B that she had asked S to tell her whose house she was in when the appellant told her how to access pornography. B ultimately accepted that S told her that it happened 'sort of' at the appellant's house. B also agreed that when she asked S whether the appellant told her that he wanted it kept a secret, S said, 'Yes'. B confirmed that the fact that the appellant had said it was a secret was not something that S volunteered, but rather that it was something S said in response to a question from B.
15. Senior counsel then put a series of questions to B that were plainly based on a transcript of the recording B had made of her conversation with S. In one of the passages that was put to B, it was suggested that S told her that the appellant 'unbuttons his pants and puts his hands under - [her] hand under his knickers'.[19] The point counsel appeared to be attempting to make in his cross‑examination of B was that S told her that the appellant 'unbuttoned' his pants, as opposed to 'unzipping' them.
16. B also agreed that when she asked S when this occurred (putting her hand under the appellant's 'knickers'), S told her that it was 'about one year ago'. In relation to the pornography, B agreed that S told her that she only started watching it about 30 days before.
17. B then agreed that on several occasions during this conversation with S that she recorded, S expressed concern that her iPad would be taken away from her. B also said that S did not want the appellant to get into trouble.
18. B agreed that she had known the appellant since she was a young child, and that he was like an uncle to her and her siblings. She accepted that the appellant had always been good to her, and she gave evidence that described the close relationship he had with her family.
19. B was asked about occasions on which the appellant was at her home and he would tuck S into bed at night. B agreed that she was aware that the appellant did this but had not seen it occur herself. She also agreed that she had seen the appellant in S's room at night, but that he would never be in there very long. She said that she was not able to say whether there was ever a time when the appellant was alone with S in her bedroom.
20. Senior counsel then asked B about the weights room at the appellant's home.
21. B agreed that the weights room changed from time-to-time, and that when she first started to go to the appellant's home it was not a weights room. She said when she first started to stay at the appellant's home, she and her siblings would stay in a different room.
22. When senior counsel suggested that there was never an occasion that B saw the appellant and S on their own together, B said that they used to 'go upstairs by themselves'.[20] B said that the upstairs area of the house included the appellant's bedroom, a bathroom, another room, and a lounge area.
23. In relation to her own home, B agreed that no one slept in the games room and that, other than playing pool or table tennis, there was no real reason for anyone to be in that room. B confirmed that she was not aware of any time the appellant and S were alone in the games room.
24. B was asked about S's use of the iPad. She accepted that S would spend a lot of time on the iPad, and that she did not have a lot of supervision from her parents. B could not recall whether S's iPad was subject to any parental lock. B agreed that she thought that S was 'almost obsessed with the iPad'.[21]
25. B also agreed that S had previously been in trouble for kissing a boy at school.
26. At the end of her cross‑examination, B agreed that the appellant had never done, said or sent anything inappropriate to her, and that she had never noticed the appellant acting inappropriately towards S.
27. In re-examination, B said that although S had previously had her iPad taken away from her, she had always got it back, and that she would only ever lose it for an hour or two at most.
28. B also said that the appellant never put her (B) to bed, never laid down on her bed and read her a story, never got under the covers with her and she never went anywhere on her own with the appellant in either his house or her own.
29. Finally, B said that S had been alone with the appellant in her house.
30. The State also adduced evidence from S's parents.

1. D gave evidence that she had known the appellant's wife for many years. She met the appellant later, after he and his wife began a relationship.
2. D explained that after the appellant and his wife moved away from the country town in which they all lived, her children would stay with the appellant at his home when they played sport nearby. The appellant would also stay overnight with her family when he was travelling in the South West of Western Australia.
3. D gave evidence about the layout of the appellant's home. She explained that there was a weights room, but that it moved around. She said that it had been located in an upstairs lounge area and an upstairs bedroom at some stage, before ending up in a downstairs games room. D was shown some photographs of that room, which she identified. The photographs showed that there was a bunk bed, with a trundle bed, and confirmed that her daughters would sleep there when staying with the appellant.
4. Evidence was adduced from D that S was born in 2013, and that she was 7 years old at the end of 2020.
5. When asked about S's bedtime routine, D explained that she liked to be put to bed, and to have someone lay next to her and read her a story. When they were staying with the appellant, S would ask the appellant to put her to bed, which he would do. D said that neither she nor her husband, P, would go with them but they would walk into the bedroom every now and then. D said that the appellant put S to bed '[a] lot of times'.[22] She also said that when the appellant would put S to bed, S's sisters would usually have been in the same room at the time, although she could not say that they were there every time.
6. D said that S would still want the appellant to put her to bed when the appellant was staying at their home. She explained that S was close to the appellant and that S thought a lot of him.
7. D gave evidence that S had an iPad that had been bought for her. She explained that no parental controls had been applied to that device and that she 'just let the kids go with them'.[23] She said that while she knew that S's iPad required a PIN code in order to access it, she did not know that code.
8. D explained that if S was in trouble, the iPad would be taken from her as punishment. When asked how long S would be without her iPad when it had been taken from her, D said that it would usually be 'until we turned around and [S would] notice we weren't looking'. She said that they would usually ignore the fact that she had retrieved the iPad because '[i]t keeps her quiet'.[24] D said that S would not typically lose the iPad for long periods of time. She said that she might threaten taking it away for three days but, at most, it would be one day.
9. The State prosecutor then asked D about 23 November 2021. D said that she was home that night and that she had a conversation with B when they got home from school. She said that B told her about something S had told her (B). As a result of that conversation, D telephoned her husband and told him to come home. The following day, they attended the police station with S.
10. Senior counsel for the appellant commenced his cross‑examination of D by eliciting evidence that her family had been close to the appellant's family for a long period of time. D agreed that she, herself, was quite close to the appellant, and that right up until the time S made her complaint she would exchange messages with him, including via Snapchat.
11. D agreed that both her family and the appellant's family had gone away on holidays to various places together. She confirmed that she had never seen anything untoward that gave her any concern about the appellant's behaviour towards her children. She agreed with senior counsel's propositions that the appellant would openly give birthday and Christmas presents to all of her children.
12. D agreed that when the appellant and his wife moved away from the country town in which they had all lived, her family would visit the appellant and stay at his house. D accepted that she trusted the appellant with all of her children.
13. D said that the appellant would sometimes tuck S into bed at night, that this was done openly, and that S would ask the appellant to do this for her. D agreed that S would not go to sleep without someone lying next to her.
14. D said that she would sometimes go up to the bedroom when the appellant was with S and that she never saw anything untoward. She said that, on occasions, the appellant would fall asleep on S's bed.
15. Senior counsel then asked D about the games room in her home. She confirmed that no one slept in that room on a regular basis, and that it constituted a passageway from the carport to the staircase. D also said that it provided access to a drinks fridge. D said that while she could not recall any occasion on which the appellant and S had been alone together in the games room, she could not exclude it as a possibility.
16. D was then asked questions about S's iPad. She confirmed that S had an iPad from a young age and that she had an interest in electronic devices. S was given a new iPad in March 2020, but D did not know the PIN code for that device and there were no parental controls on it. She affirmed that when S was not at school or playing sport, S was generally using the iPad.
17. D agreed that she would remove the iPad from S as a form of discipline if she did something wrong. D said that if the iPad was taken from her, S would get 'grumpy' about it, although she would get over it. D said that she had never checked the browsing history on S's iPad.
18. D gave evidence that S got into trouble at school for kissing a boy in October 2021, and that D told her off. D agreed that this emerged around the time the appellant was coming and going, and staying with her family while travelling in the South West. D also agreed that she had once found S in her cubbyhouse with a friend, and that S was standing up with her dress up.
19. Senior counsel for the appellant then cross‑examined D about specific occasions on which the appellant visited her family while travelling in the South West during 2021.
20. D was shown copies of text messages she had exchanged with the appellant's wife on 14 October 2021 in which the appellant's wife asked if they could stay at their house for the weekend. D accepted that the appellant and his wife did in fact stay at her home on that weekend, although she said that she could not remember whether they went out to a local restaurant together that night or not.
21. D was shown other text messages she had exchanged with the appellant's wife in early November 2021. After being shown those messages, D accepted that the appellant and his wife stayed at her home over the weekend of 13 November 2021. She also accepted that this was the last occasion on which they stayed at her home before she became aware of her daughter's allegations.
22. D was shown one final message, which indicated that she had accidentally telephoned the appellant's wife in a 'pocket dial' on 24 November 2021, which was after she had taken S to the police.
23. D said that she could not recall seeing the appellant or his wife again before the allegations regarding S surfaced.
24. D confirmed that the first time she heard of S's allegations was from B during the mid‑afternoon on 23 November 2021. When asked if she remembered calling the appellant that afternoon to tell him that an allegation had been made about him, D said she did not. She also denied a suggestion that she contacted the appellant on social media. D denied that she told the appellant about the allegation before she took S to the police, and she specifically denied that there had been a series of communications between herself and the appellant during the evening of 23 and 24 November 2021 about what had emerged.
25. When D was asked whether she had any communications with the appellant about the matter, D said, 'I did not tell him'.[25] She specifically said that she did not tell the appellant that S had made a complaint that he had sexually offended against her, that the police were involved, or 'anything about something that was about to happen or emerge'.[26]
26. D did accept that the appellant sent her a message about a week later and that she replied by saying that she was in a meeting. She said that she sent this message because she did not want to communicate with the appellant. D once again denied that she had previously been in communication with the appellant.
27. D's cross‑examination concluded in the following manner:[27]

We know that [the appellant] read to [S] and tucked her in, et cetera. That was never a secret within your household, was it?---No.

And you'd see him do that?---Yeah.

Including laying on the bed?---Yeah.

And that caused you no concern?---No.

And [S] made no complaint about that, did she?---No.

In fact, she would regularly ask if [the appellant] could do that, come and put her to bed?---Yes.

And, indeed, during the whole of the time that you knew that family, right up to the time this allegation was made, you never noticed anything untoward in her behaviour towards [the appellant] at all?---No.

1. In re-examination, D said that S did not lose her iPad as punishment for kissing the boy at school, or for the incident in the cubbyhouse, but she did tell her off. She also explained that she did not tell the appellant about S's allegations because she did not want him to get rid of any evidence. D said that the police told her to keep life as normal and that if the appellant or his wife sent her any texts then she should just text back.
2. After D completed her evidence, a lunch break was taken. When the trial resumed the trial judge granted leave to the prosecutor to re-call D. It appears that D provided a further witness statement over the lunch break that touched on the communications she had with the appellant after she became aware of S's allegations.
3. Contrary to what she appeared to have said to the jury before the lunch break, D gave evidence that she did in fact communicate with the appellant before she took S to the police station on the morning of 24 November 2021.
4. D said that the appellant sent her a message on Snapchat asking her what was going on over the weekend. D explained that she replied saying, 'Leave me and my family alone'. She said that the appellant then replied by asking what was going on, and she responded to him, saying, 'You know what you've done'.[28] D then said that she deleted the Snapchat application because she did not want it open when she went to the police station. She confirmed that other than that exchange, there had been no communication between herself and the appellant between 23 November and 1 December 2021.
5. Senior counsel for the appellant then further cross‑examined D. He suggested to D that she had contacted the appellant on the afternoon of 23 November 2021 and told him that S had made an allegation of sexual assault, and she was going to the police. However, D denied that suggestion.
6. D confirmed that messages sent and received via Snapchat are deleted 'straight away' after being read, and so she agreed that there would not have been any messages on Snapchat when she went to the police. D explained that she deleted the Snapchat application because she did not want to keep in contact with the appellant. She also said that she did not want to get into trouble with the police for having communicated with the appellant.
7. D agreed that she told the police that she had not been in communication with the appellant when she took S to see them on 24 November 2021. Further, she agreed that when she met with the prosecutor prior to the commencement of the trial he asked her whether she had communicated with the appellant about her daughter's allegations, and that she told him that she had not. D explained that she did that because she was worried that her husband would find out that she had alerted the appellant.
8. Senior counsel suggested to D that she had said more to the appellant than for him to leave her family alone. However, D denied that suggestion. She gave evidence that she definitely did not tell the appellant that there was an allegation of sexual assault concerning S. She also denied that her communication with the appellant on Snapchat went through until the evening. D said that she barely knew about the allegations herself, although she accepted that she did know that S alleged that the appellant had shown her how to use the internet to access pornography and that the appellant had put S's hand down his pants.
9. D also denied that she deleted the Snapchat application in case the police might be able to recover the messages.
10. D said that she had not been untruthful in her evidence. She explained that she had come back to give further evidence because she had missed out the conversation she had with the appellant on Snapchat. She also denied that she had hidden anything from the jury, but she agreed that she had not told the prosecutor or the police about the communications.

1. P gave evidence that he had known the appellant for a long time. He said that he first met the appellant through a church and that he got to know the appellant more following the birth of P's first daughter. P also said that he had known the appellant's wife from an early age.
2. P said that when the appellant moved away from the country town in which they had all lived, P's family would visit the appellant and stay at his house, including when his children were playing sport away from home. P also explained that the appellant would travel to the South West and that, when he did so, he would stay with P's family.
3. P explained that the appellant had a weights room at his house. Initially, the weights room was upstairs. However, the weights were later moved into a games room downstairs. P said that there was also a bunk bed and a trundle bed in that room, which his children used when they stayed overnight.
4. P gave evidence about S's night‑time routine when she was younger. He said that either he or his wife would take her to bed and that they would then have to stay with her for a while. He would lay next to her and read stories, and he sometimes laid next to her until she fell asleep.
5. P said that the appellant would sometimes put S to bed when he was staying over at P's house with his wife. P explained that the appellant would sometimes take S into the bedroom or lay next to her on her bed. P said that S would ask the appellant to take her to the bedroom. According to P, from a very young age S loved the appellant, and he was like a grandfather to her.
6. P said that on occasions the appellant would also put S to bed when P's family were staying at the appellant's house. P said that it would have been S's idea for that to occur.
7. P was asked questions about S's iPad. He confirmed that she was given an iPad in 2020, although she previously had a 'hand-me-down' iPad from her brother. The new iPad did not have any parental controls on it, and S had her own PIN code. P said that he could not recall whether he knew what the PIN code was at the time.
8. P said that one of their punishments for S was to take her iPad off her. He said that it was never taken off her for more than a week, and that she would most often find the iPad and take it back for herself.
9. P was asked questions about what happened on 23 November 2021. He said that he spoke to his wife, D, during the afternoon. As a result of that conversation, P then spoke to a police officer that he knew personally and asked to speak to him later in the day. P made a telephone call to that police officer that evening. P explained that they then took S to the police station the following morning and made a report.
10. P confirmed that he knew that the appellant had exchanged messages with S, including via 'Facetime messages'. He also knew that they played Roblox together.
11. In cross‑examination, P confirmed that he became aware that S had been looking at pornography on the internet. He said that he looked at S's iPad but could not recall looking at the search history. P explained that he went through the photographs on the iPad, and saw a video of S exposing herself in a 'provocative manner'. He explained that the video was about two minutes in duration, and that it had a date stamp of 20 October 2021.
12. P said that he also found messages on the iPad that had been exchanged between S and the appellant. He confirmed that there was nothing untoward about those messages. He also confirmed that there was nothing to suggest that the video of S had any connection with the appellant.
13. P said that after he learned of the allegations against the appellant on the afternoon of 23 November 2021, he never contacted the appellant again.
14. P gave evidence that S mostly had unsupervised access to her iPad. He said that S could send messages on a platform called 'Child Messenger',[29] but that if she sent a message using that application it would come up on D's mobile telephone as well. P confirmed that there was nothing untoward in any of those messages that S exchanged with the appellant.
15. P said that he recalled an occasion when the appellant and his wife came to stay at his home in mid-October 2021, and also on the night of 13 November 2021. He agreed that they went to a local restaurant together but he could not recall which occasion that was on.
16. He agreed that the appellant and his wife arrived very late on the second occasion and that he did not think that the appellant would have had anything to do with putting S to bed that night.
17. P agreed that he was aware that the appellant would go into S's bedroom to read to her. He said that there was nothing secret about this, there was nothing untoward, and that they did not think anything of it. P also agreed that during the whole time he knew the appellant he had never given him any cause for concern.

1. Detective Senior Constable Morrison was the investigating officer.
2. Detective Morrison gave evidence that in the early hours of 1 December 2021, concerns were raised with the police about the appellant's safety. After the appellant was found, police executed a search warrant at his home. There, police found the appellant's will together with a handwritten note in which the appellant asked two named people to witness the will. The appellant had signed the will, and it was dated 30 November 2021.
3. The police were also forwarded an email from the appellant's wife. The email had been sent by the appellant to his wife at 3.17 am on 1 December 2021.
4. It is unnecessary to reproduce the email in full. It is apparent that the email constituted a suicide note. For the purposes of the appeal, it is only necessary to record that the email included the following:

In context I expect in the coming days to be accused of child sex assault in relation to [S].

Which I have done [sad face emoji]

I know you repeatedly warned me and it's so disappointing this has happened.

Given my position [redacted] and public scrutiny that would come with a trial and the pending relationship breakdown with people who have been our best friends, it seems tidier for me to take another way out.

At least that way you and [our son] will be spared the embarrassment as well as our extended family.

I am so sorry I have let you down.

I hope at some point you can both forgive me.

1. Police also seized one of the appellant's electronic devices. A further email was found on that device. The appellant had sent this email to himself at 5.00 pm on 24 November 2021. The email was in almost identical terms as the email the appellant later sent to his wife. However, most relevantly, this email did not include the phrase, 'Which I have done [sad face emoji]'.
2. Police were also able to locate the copy of the email the appellant sent to his wife during the early hours of the morning of 1 December 2021.
3. Detective Morrison also gave evidence about what the police found on S's iPad when it was examined, by reference to a report prepared by Technology Crime Services. Relevantly, that report showed that:

(a) The iPad had been used to make 44 searches using the Safari search engine on various dates between at least 21 October 2021 and 22 November 2021. A number of those searches were repeated over multiple entries. The 'value' of each search was concerned with various sexual behaviours. None of the searches matched S's evidence that the appellant typed the phrase 'people having sex' into the iPad.

(b) The iPad had one 'web bookmark' for a website that appeared to relate to sexual content.

(c) The iPad had a 'web history' which demonstrated 140 instances of searches on Safari and accessing websites between at least 21 October 2021 and 22 November 2021. Based on the descriptions of the 'URLs' in the report, almost all of those websites and searches included sexual content.

(d) The searches, the web bookmark and the web history had all been deleted.

1. Detective Morrison said that S first went to the police station on 24 November 2021 at 9.15 am. Further, the appellant was found on 1 December 2021 at about 10.55 am.
2. The appellant was interviewed by police later that day. That interview is summarised later in these reasons.
3. In cross‑examination, Detective Morrison agreed that a large number of electronic devices were seized from the appellant from a number of locations, although they were not all examined. The detective confirmed that no material that would have been of any interest to the investigation of S's allegations was found on any of those devices. Specifically, the police found no child pornography, nor any photographs taken of S.
4. The detective also confirmed that there were no messages exchanged between the appellant and S that were indecent or obscene, or that contained any overtures to participate in sexual activity.
5. Detective Morrison noted that a video of S in a 'compromising position' was found on a device seized from S's family, but there was no evidence to suggest that it may have been sent or transmitted to anyone, nor that it had any connection with the appellant.
6. The detective said that when they first found the appellant, he had just attempted suicide and they had concerns for his mental health. He was then medically assessed before he voluntarily participated in a video record of interview.
7. When Detective Morrison was asked whether S's mother, D, had ever said that she had indicated to the appellant that there may be some sort of investigation pending, the detective said no. Detective Morrison said that she made it clear to D that if she got any indication the appellant might know that something was about to happen, then she was to let the police know. However, D never informed the police. The first time the detective learned that D had communicated with the appellant after S had made her allegations was during the trial.

1. The appellant participated in a video record of interview on 1 December 2021.
2. During that interview, the appellant confirmed that he was very close friends with S's family, and that he had known S for her entire life. He also agreed that he would regularly see S's family, at least once a fortnight.
3. The appellant admitted that S would communicate with him via 'Messenger Friends',[30] which was connected to her mother's Facebook page. He also said they would occasionally communicate on a game called Roblox, but that those communications were public for all players of the game to see.
4. The appellant said that he had stayed overnight on many occasions at S's house, and the last time he stayed there was about two weeks before the interview. The appellant said that he would stay in their guest room, which was two doors down from S's bedroom.
5. The appellant also said that he had tucked S into bed at night-time on many occasions. He said that he was 'pretty close' to S and that she would insist that he tuck her in and read her a story. He also accepted that he may have fallen asleep on her bed before, but he appeared to be unclear about whether S was in the bed at the time.
6. The appellant said that he would always check with S's sister, T, before going into the room to make sure that she was comfortable with him being in there. He would then sit on S's bed and read her a story, and her mother and father would come in and kiss her goodnight. The appellant accepted that he would sometimes get under the covers of S's bed with her during winter.
7. The appellant agreed that S's family were regular visitors to his home after he moved away from the country town they previously lived in. S's family would stay at his home because it was near the beach, and they would often come up for sporting events nearby.
8. The appellant said that S would sleep in a room with her sisters or end up in bed with her parents. S's sisters would stay in a room downstairs. One of those rooms was the 'weights room'.
9. The appellant agreed that he would also read stories to S as he would do at her house, but he said it would not happen as often.
10. When the appellant was asked questions about the messages he sent to S via Messenger Kids, he said that none of them had been deleted and he offered to show them to police. The appellant also explained to police that he would play online video games with S and with her sister, B, and that he gave S some gift cards for Roblox on her birthday.
11. The appellant denied that he had any interest in child pornography and told the police that he had nothing to fear from the fact they had taken his electronic devices. He did, however, admit to watching pornography when he was away from home and going to bed, but said that it was not an addiction. He said that he usually visits a website called 'Pornhub'.
12. The appellant denied ever watching pornography with S. He also denied ever teaching her how to view pornography.
13. The appellant told the police that he sent an email to his wife at about 3.30 am that morning. He said that it was 'private and personal' and that he did not want to go into it any further at that stage.
14. The appellant admitted that he had just written a will in which he left the assets of the family to his wife.
15. When the allegations S had made in her interview were put to the appellant, he said that he was 'very surprised'.
16. The appellant was then again asked about the email he sent to his wife, and a copy of that email was shown to him. The appellant admitted that it was a copy of the email he sent. After one of the interviewing officers read out the email, the appellant explained what he had written in that email in the following way:[31]

THE APPELLANT: Well, I think it's self-evident that, uh - that, um, this is gonna [sic] be a difficult road.

DET S/CON MORRISON: Mmm.

THE APPELLANT: Uh, uh, whether I'm found guilty or not guilty, it will almost be irrelevant because the things that are put in place now, uh, have ended my [redacted] career or will end my [redacted] career. And - and, um, you know, [P] and [D] are our closest friends. So, there's, uh, there's a - there's a price to pay there, too.

DET S/CON MORRISON: Mmm. Have you got anything [to say] in relation to this email?

DET SGT CALZADA: [W]ould you agree that that, in a way, is some sort of a confession in relation to some of the events that's happened.

THE APPELLANT: So - so, I wouldn't necessarily. Um, it's the second draft of the email. The other draft of the email was on my phone, uh, which doesn't include all the elements that that one has. Um, so, again, I need to take some legal advice about it. Um, and obviously, there's a journey ahead in terms of understanding exactly what the charges that you will be bringing will be. Um, and - yeah. I think we take it from there.

THE APPELLANT: I mean one of the things, as well, is that, um, you will write about the - about a dark event, uh, and one of the - I guess, one of the things I probably didn't want to happen was to have, um, given the close friendships between the family was to have my wife blame [S] for what had occurred. So, one of the ways of mitigating that was to add a line to that version that's not in the original version. Um, so, anyway.

DET S/CON MORRISON: What - what - - -

DET SGT CALZADA: Can I just look at that email, please?

DET S/CON MORRISON: Yeah.

THE APPELLANT: Yeah.

DET S/CON MORRISON: In regards to [the] sad face, it's right there. It's, uh, in - - -

THE APPELLANT: Yeah. Okay. Look, it may be.

DET S/CON MORRISON: Yeah.

THE APPELLANT: It was 3.15 in the morning. It was a fairly stressful time.

DET S/CON MORRISON: Yeah.

THE APPELLANT: Um, yeah.

DET S/CON MORRISON: Yeah. Just before you said that you didn't want [your wife] to blame [S]. What do you mean by that?

THE APPELLANT: Well, I - I didn't want, uh, if - if I had - if my (indistinct) had happened, I didn't - I didn't want there to be ongoing animosity between those - the families. So, it's got nothing to do with [my wife]. And - and [my wife] was actually friends with [P] and [D] before I was. So, she - she - she's known [P] since, oh, probably 35 years, something. Long, long time. So, I didn't want a situation where she felt that - that I'd said that she'd made these allegations and she'd determined that it was - that was the reason why I wasn't around.

THE APPELLANT: So, you know, these two families are really close.

DET S/CON MORRISON: Yeah.

THE APPELLANT: If I'm out of the equation, then it would have been nice to have thought that they may have been able to continue a relationship of some sort.

DET S/CON MORRISON: Yeah. That, uh (indistinct) that didn't really answer my question when you said that you hoped she didn't blame [S]. Why would she blame [S] for this?

THE APPELLANT: Because - becau - which is the reason the second email has the added line that you're ref - you're saying is a confession, uh, is, the first version didn't ha - didn't have that in and after reflection I thought I don't want her thinking that it's [S's] fault.

DET S/CON MORRISON: Okay.

THE APPELLANT: If that makes any sense.

DET SGT CALZADA: So, what you're saying is that you put that last bit in where he says, 'Which I have done' to put the blame on your - like, to put the blame on yourself?

THE APPELLANT: Yes.

DET S/CON MORRISON: Okay.

THE APPELLANT: In [my wife's] mind.

1. When the appellant was asked how he came to find out about the police investigation, or that police were involved, he said that he did not know that there was an investigation or that the police were involved. The appellant said:[32]

THE APPELLANT: Um, I put two and two together. I don't wanna [sic] say anything more than that. Nobody in [S's] family told me but [redacted] is a small town.

DET S/CON MORRISON: Mmm.

THE APPELLANT: And - yeah. There were just these couple of things that - that led me to believe that that had occurred.

1. Towards the end of the interview, the appellant said that his wife had previously told him that the nature of his interactions with S left him exposed to the risk of allegations being made, and that she had asked him not to get into bed with S. The appellant also agreed that his relationship with S, and the amount of time he spent with her, provided the opportunity for the acts the subject of the allegations to occur, but he said that this did not necessarily mean that those things occurred.

1. The appellant gave evidence at his trial, and he was the only witness called as part of the defence case.
2. After eliciting evidence about the appellant's personal background, including the fact that his business had been liquidated in October 2021, senior counsel who appeared for the appellant at the trial then turned to deal with his relationship with S and her family.
3. The appellant gave detailed evidence about how he came to meet S's parents.
4. He confirmed that S's family would stay at his house from time to time over the years. He said that the children would stay in a room that was called the 'weights room', which was depicted in photographs shown to the witnesses in the State's case. However, he said that the children only stayed in that room up until about mid-2021, when the bunk beds were removed and put in a different room.
5. The appellant agreed that he also stayed with S's family from time to time, and that he and his wife would stay in their guest room.
6. The appellant said that he had an excellent relationship with S and her siblings, and denied that he had special interest in S or that he had any sexual interest in her. He also denied having any sexual interest in children generally.
7. The appellant agreed that he bought presents for the children from time to time, for their birthdays or for Christmas. He also agreed that he would read to S and put her to bed. He said that he did that because S was insistent and that she had a bedtime routine. He also agreed that he never put her to bed in secret.
8. When senior counsel put S's allegations to him, the appellant said that he rejected any contention that he had a special sexual interest in S and said that the allegation that he put her hand down his pants was an 'absolute lie' and that S had never touched his penis.[33]
9. The appellant also said that he does not wear pants with buttons in the fly, and he said that he would wear a belt as well.
10. The appellant agreed that he would play Roblox with S online and said that this was something she loved to do. However, he said that he did not really enjoy it because it took over his mobile telephone. The appellant also said that he would communicate with S on occasions through a program called Messenger Kids, which has some video call connectivity authorised by her parents.
11. The appellant said that all of the messages he exchanged with S remained on his mobile telephone, as he told the police. In relation to the electronic devices seized by police the appellant said that he had not deleted anything from them.
12. The appellant told the jury that his wife made it clear to him that she did not think that it was a 'smart idea' for him to be putting S to bed and reading to her, because it left him open to an allegation being made. However, the appellant said that while he thought they were all like family and that there was nothing to complain about, he did it less and less.
13. The appellant gave evidence that in the months leading up to the time he was arrested, he exchanged text messages with S on six different days. None of those messages were provocative or sexual. The appellant did say, however, that he once received a message from the mobile telephone of S's mother, which said, 'I love you, from [S]'. The appellant said that S's mother was aware of this message and found it funny.
14. The appellant said that he would regularly travel in the South West of the State for work. Sometimes, while travelling, the appellant would stay with S's family. He said that this occurred on maybe five occasions while he had been working, and that on each occasion he arrived late in the evening and left early in the morning. According to the appellant, the children were not up when he arrived.
15. The appellant gave evidence that he and his wife stayed with S's family on 15 October 2021, when they were on their way to the South West of the State. The appellant said that the adults went to a restaurant for dinner, and that they only saw the children when they got back to S's family home after dinner had finished at around 9.30 pm. He said that S's father put her to bed when they arrived home. The appellant said he and his wife left early the following morning.
16. The appellant said that he and his wife returned to S's home for S's birthday. He said that they stayed for the party and then drove home later that same day.
17. The appellant also gave evidence about staying at S's home around 12 and 13 November 2021, when there was a show on in a nearby town. The appellant and his wife stayed with S's family on the way down, but he had no memory of having seen S. The appellant and his wife also stayed with S's family when they drove back a few days later. On this occasion, they arrived very late at night and left early the following morning. He said that he did not see S on this occasion.
18. The appellant said that he had checked his records and that he did not believe that he stayed at S's house again after that time.
19. The appellant gave evidence that he was in regular contact with D via Snapchat, however he said that he had no contact with S using that application.
20. The appellant denied that he ever gave S instructions as to how she might be able to access pornography websites on the internet and denied that he had ever typed anything into S's iPad. He said that S's evidence that he gave her instructions as to how to access pornography websites was 'a complete and utter lie'.[34] He also expressed shock at the fact that S's iPad demonstrated that it had been used to access pornography on the internet.
21. The prosecutor objected to some questions that were put to the appellant with a view to establishing that he was not present when the iPad had been used to search for, or connect to websites containing pornographic material. After the objection was dealt with in the absence of the jury, the prosecutor informed the jury that the State did not allege that the appellant was present when S conducted those searches, or that he was specifically directing her in relation to those searches.
22. The appellant confirmed that he was never present when any of those searches were carried out and that he never procured S to do those searches from another location.
23. The appellant gave evidence that the room that was described as the 'weights room' was set up in around March 2020, but that it changed in May 2021. The appellant said that this room was not configured in that way in November 2019. The appellant was asked questions about November 2019 because S gave evidence in November 2021 that she was indecently assaulted in that room two years beforehand.
24. The appellant denied that he ever indecently dealt with S while they were in the games room of her home together. In fact, the appellant said that he had no memory of having been in that room alone with S, although he agreed that he had been at S's home alone with S before.
25. Senior counsel then asked the appellant questions about whether he had communicated with D on 23 November 2021.
26. The appellant said that he had exchanged messages on Snapchat with D on 23 November 2021. He said that shortly after 4.00 pm, he received a message from D that read something like, 'I know what you've done'. The appellant said that he responded by writing a message that said, 'I don't know what you're talking about. What - what are you talking about'.
27. The appellant gave evidence that there were then a series of text messages exchanged between them, and that he understood from those messages that he was being accused of doing something sexual with S, and that the authorities had been informed and an investigation was underway.
28. The appellant specifically said that he did not agree with D's evidence about the conversation they had. He said that the conversation took place on the afternoon and evening before they went to the police.
29. The appellant said that he did not have specific memory of receiving a message that told him to leave the family alone. However, the appellant reiterated that throughout the night and into the following morning he understood that he was being accused of doing something of a serious sexual nature to S, that the authorities had been informed, and that an investigation was underway.
30. The appellant then gave evidence that after D stopped responding to his messages, he was overwhelmed and anxious. Essentially, the appellant said that he was under significant pressure because of the allegations.
31. The trial then adjourned for the day.
32. Upon resumption of the appellant's evidence the following day, the appellant was shown some photographs of the property he had been living in when S and her family used to visit. The photographs had been taken for a rental inspection.
33. The photographs showed what had been described as the weights room at the appellant's home. The photographs also showed that as at July 2021 there were no bunk beds or trundle beds in the room. The appellant gave evidence that those items had in fact been moved earlier than when the photographs were taken. This evidence was adduced because the State's case was that the incident the subject of count 2 took place in the weights room, which S said in her interview, occurred 'over two years ago'.
34. The appellant was also shown some photographs that appeared to have been taken of the appellant's home in January 2020. Those photographs showed that there was a king sized bed in the weights room, together with the bunk bed and the trundle bed. The appellant said that S's parents would sleep on the king bed.
35. Evidence was adduced of a text message sent to the appellant by S using her mother's mobile telephone, which said, 'I love you, from [S]'. Evidence was also given of the appellant's response to this text message, which was innocuous.
36. The appellant's senior counsel then asked questions about the appellant's mental state after he found out that S had made allegations against him.
37. The appellant explained that he already had financial concerns at the time, and the prospect of bankruptcy loomed. This could have had a very serious effect on the appellant's employment at the time. The appellant said that when he heard about the allegations he felt overwhelmed and decided to take his own life. He said that he believed his family would be better off without him. He thought that his wife would benefit from his life insurance and superannuation.
38. The appellant denied that he decided to end his life because he knew that S's allegations were true. He said that he felt there was no way out for him and was dreading the impact on his family.
39. The appellant said that he initially made one attempt to end his life but he 'bailed out'. He said that he tried again the following night and went to buy some things to facilitate his intentions, including a pipe and some gaffer tape, to tape the windows of his car.
40. The appellant also said that he prepared a will. He said that S's father was the executor named in his previous will and so he rewrote the will.
41. When the appellant was asked what he did that evening, the appellant said that he drove to some bushland, where he began trying to commit suicide. The appellant explained that it did not work, and he could not bring himself to continue, so he stopped and went home. However, he had not abandoned the plan to commit suicide.
42. A day later, during the early hours of the morning, the appellant again tried to commit suicide at the same bushland location. However, before finishing his evidence about that attempt, the appellant was asked about the emails he had sent, which had been tendered in evidence.
43. The appellant explained that he had already written the 'original version' of the email, and that as he was contemplating taking his life the appellant decided to add the line, 'Which I have done [sad face emoji]' to the email. He said that he inserted this line because he hoped that his wife would be supported by S's family after he had gone, as she had been in the past. He said that he wanted to leave his family with the best chance of moving forward without getting into a fight with the people who had been their best friends. The appellant said that he sent the email to his wife using his mobile telephone.
44. The appellant said when his attempt to take his life was again unsuccessful, he then tried to use other means, before giving up and going home. When he was on his way home, he learnt that the police wanted to see him, so he waited out the front of his apartment for them to arrive.
45. The appellant gave evidence about the interview he participated in with the police on 1 December 2021. In his evidence, the appellant admitted that he falsely denied that S's family had told him about the investigation into S's allegations. He explained that he told an untruth because he did not want there to be any more trouble.
46. Finally, the appellant said that there was no truth in any of S's allegations.
47. The appellant was then cross‑examined by the State prosecutor.
48. In cross‑examination, the appellant did not accept that his relationship with S was different to his relationship with the other children in her family, but he accepted that in 2021 she was the child he spent the most time with and that in that year they were pretty close. He said that S called him 'Poppy' only because her siblings had encouraged her to do that to tease him for being old. He said that the name 'Poppy' was used as a bit of a joke.
49. The appellant agreed that S would ask him to take her to bed and to read her a night-time story. The appellant said that he would engage in several different activities with all of the children and that he would not describe his relationship with S as a 'special' relationship. However, the appellant also agreed that he had a stronger and closer bond with S than he had with the other children when they were of a similar age.
50. The appellant accepted that he would regularly put S to bed and read her a story, although he asserted that this would not happen every time he stayed with her family.
51. When the appellant was asked about the 'last couple of times that he stayed' at S's home, he confirmed that on the first of those occasions he and his wife went out for dinner with S's parents and that S's father put her to bed when they arrived home. In relation to the other occasion, the appellant said that he was there on the Friday night, that there was 'an opportunity that night', but that he believed that he did not put S to bed that night. The appellant went on to explain that he and his wife left very early the next morning.
52. The appellant confirmed that his wife had said to him that it was not a 'good look' for him to be putting S to bed, and that he was leaving himself open to an allegation being made. The appellant confirmed that he then put S to bed less and less. The appellant agreed that this may have also occurred because S was getting older and was not asking for him to put her to bed as often. However, the appellant also said that he did not remember beginning to refuse to put S to bed.
53. The prosecutor then asked the appellant about his evidence that he would only go into S's room to say goodnight after first getting permission from S's sister, T, who slept in the same bedroom. The appellant confirmed that this is what he would do, if T was present. The appellant also accepted that there would be occasions on which he would put S to bed when there was no one else in the bedroom.
54. The appellant agreed that he would sometimes lie under the blankets with S when putting her to sleep and reading her a story. He said that this only occurred in the winter, when it was cold.
55. The prosecutor then asked the appellant about the manner in which S was disciplined by her parents. The appellant said that he knew that S's parents would take her iPad from her as a means of discipline. However, he said that he was not aware that it would only ever be taken from her for a short period of time. The appellant said that he never saw S without her iPad.
56. The appellant accepted that he saw S in 2020, and that her family stayed at his house at various times later during that year and in early 2021. He also accepted that he would have stayed at S's house, including by stopping there for the night while travelling in the area.
57. The appellant also agreed that S's family would stay with him at his home when the children were engaged in sporting activities in that area and on summer holidays. S's family would also use the appellant's unit in Perth on occasions.
58. The prosecutor asked the appellant several questions about his understanding of the financial status of his business and the company that had been operating that business. The purpose of that cross‑examination is somewhat unclear, however the prosecutor appeared to be suggesting that the company's financial difficulties were not his own personal difficulties.
59. The appellant was then cross‑examined about his interactions with S in connection with the video game, Roblox. The appellant agreed that he would play Roblox with S, both when he was at his own home and when he was at S's home. He said that S would ask him to join her while she was playing, perhaps on an evening or on the weekend. The appellant said that S would contact him to play Roblox on occasions when he was staying at a hotel while travelling in the south of the State.
60. The appellant agreed that he could communicate with S while they were playing Roblox, but only by using very short messages. However, he agreed that messages could be sent via S's iPad using iMessage and Messenger Kids, which is connected to a parent's Facebook account. The appellant also accepted that S would occasionally call him on an audio‑visual link using Facetime. However, the appellant also said that he had exchanged text messages with S on about six days during the previous five months, and that the audio-visual calls were not very regular.
61. In a lengthy part of the cross‑examination, the appellant was asked several questions about the way in which he communicated with the other members of S's family. It is unnecessary to summarise that evidence.
62. The appellant admitted that when the police asked him in his video record of interview about how he had found out about S's allegations, he did not give them a truthful answer. The appellant accepted that he had lied and said that he had done so because he 'didn't want more trouble'.
63. The appellant was also cross‑examined about the email he had sent to his wife, and about the differences between that email and the earlier draft of that email he had sent to himself. The appellant gave evidence that the explanation he gave to the police for why he had made additions to the draft email was the truth.
64. After the State prosecutor asked the appellant a series of questions about what appeared to be largely irrelevant matters, he then began asking about the night he first received notice of S's allegations. In that context, the appellant said that the first communication he received about those allegations was at night and that it was on a Tuesday.
65. The prosecutor then asked the appellant about when he had made a decision to take his own life. The appellant said that he began thinking about it on the Tuesday night. The appellant agreed that on the following day, he created the first draft of the email he eventually sent to his wife.
66. The appellant also explained that he and his wife were moving house during the same week. He said he tried to raise the fact that allegations had been made with his wife, but they were too busy. The prosecutor then went back over the appellant's evidence of what he did to prepare for, and then make, various attempts on his own life. It is unnecessary to summarise that evidence.
67. Towards the end of the cross‑examination, the prosecutor returned to a topic he had already covered, namely, whether the appellant had lied to the police about how he had found out about S's allegations. In that cross‑examination, there was the following exchange:[35]

So you're in the police station. Yes? You're being interviewed?---Yeah.

About, on your version, a false allegation made by [S]?---Yes.

And you're telling a lie to the police to protect the mother of the person that made the false allegation?---Yes.

Because there's no other reason not to tell them, is there?---For me?

Mm?---Well, I didn't want any more trouble.

What trouble are you going to get?---Well, I don't know. I was in a lot of trouble already.

Well, the police have got the email. Yes?---Yeah.

It's self-evident from the email that you're aware of the existence of an allegation being made by [S] of a sexual nature?---That's correct.

Right?---Yeah.

Well aware that that has been communicated to you by somebody at some point. You're nodding your head?---Yes.

Yes?---Sorry, yeah.

You're saying, and I think it seems clear from the evidence that we've heard in - in this trial, that the person that communicated that to you was [S's mother]?---Yes.

You're a [redacted]?---I am.

You're a smart man. Yes?---I wouldn't describe myself as a smart man but I will take the compliment.

All right. Why do you think that you're going to get into trouble for telling the police something that has happened?---Yeah, look, I'm - I don't - I don't - I don't really have an answer. That's just how I felt.

Because it's not like you - I mean, you had three choices, didn't you? Tell the truth, say nothing, tell a lie?---Yes, that's correct.

Right. Which one did you pick?---The poor choice.

Which was?---To tell a lie.

Right. To protect the mother of the child that made a false allegation?---That's correct.

It's just nonsense, isn't it, [appellant]?---Which part is nonsense?

Pretty much most of what you told the police, but it's nonsense that you would - why would you - it's nonsense that you said that to protect [S's mother], isn't it?---No, it isn't, and I totally reject - reject - reject that - that statement.

1. The prosecutor also returned to ask the appellant questions about the email he sent to his wife, and the statement in that email, 'Which I have done'. In that cross‑examination the appellant again explained why, in effect, he had made a false admission. He made the following statement:[36]

I wanted [my wife and son] to have support if I was going to be gone, and [S's parents] and the family had been close friends for a lot of years and I wanted that support for them. I'm not defending the decision to write it. It was plainly a stupid thing to do. I accept that. But that was my state of mind at that time.

1. Having summarised the evidence adduced at the appellant's trial, it is now necessary to deal with the grounds of appeal, in turn.

1. By this ground the appellant complains that S's visually recorded interview was wrongly admitted at his trial as part of S's evidence‑in‑chief. In support of this ground, the appellant relies on two arguments. First, the appellant contends that the interview should not have been admitted because S's answers in that interview were the product of leading questions, and that they amounted to a mere 'duplication' of things she had previously said to her sister, B, in a conversation recorded without S's knowledge.[37] Secondly, the appellant contends that the interview was inadmissible because S was unable to be seen for almost all of the interview.
2. As will be seen, it will only be necessary to deal with the second of the appellant's arguments.

1. Both parties submitted that it was appropriate for this court to view the edited version of the visually recorded interview that was admitted as part of S's evidence‑in‑chief at the appellant's trial. Having regard to the appellant's second argument, it was plainly necessary for this court to view the recording of that interview to see for itself the extent to which S was unable to be seen by the jury.
2. The interview with S was highly unusual.
3. After the interviewer first asked S some introductory questions about matters unrelated to the appellant, the interviewer then unsuccessfully attempted to have S talk about the appellant. However, approximately six minutes after the start of the interview, and before S had said anything substantive about her allegations against the appellant, S said that she 'really did not want this on here', in an apparent reference to the microphone that was recording what was being said. When the interviewer persisted with her questions, S disappeared from view, ducking underneath and behind the table that she and the interviewer had been sitting at when the interview first commenced.
4. The interviewer told S that if she wanted to hide her face then she could do so, provided S could still be heard. S then said, 'I really do not want this on video'. It was only when S was hidden from view that S began to speak about what she alleged the appellant had done to her.
5. From that point onwards, S cannot be seen on the recording of the interview, except for on rare occasions when the top of her head is visible. Very occasionally, and for very short periods of time, S can be seen emerging from underneath the table such that the whole of her face is briefly visible.
6. At a directions hearing conducted in advance of the trial before Ritter DCJ,[38] the State was permitted to adduce an edited version of the recording of S's interview as a part of her evidence‑in‑chief pursuant to s 106HA and s 106HB of the Evidence Act,[39] over the appellant's objections.
7. As we will explain, we are of the view that his Honour erred in deciding to admit the edited recording of the interview with S as a part of her evidence‑in‑chief at the appellant's trial.

Was the edited recording of the interview with S admissible?

1. After the hearing of the appeal, and in accordance with orders made during that hearing, both the State and the appellant filed further written submissions that addressed whether there had been an 'interview' of S of the kind contemplated by the Evidence Act. The submissions also dealt with the existence of a discretion to exclude that interview, and whether any such discretion was correctly exercised in the circumstances of this case.
2. It is unnecessary to refer to those submissions in any detail. In short, the State submitted that there was an 'interview' of the kind contemplated by the Evidence Act and that any discretion to exclude the interview was correctly exercised. In his submissions, the appellant took issue with the State's contentions.
3. The legislative provisions that are particularly relevant to determining ground 1 are s 106HA, s 106HB, and s 106HC of the Evidence Act.
4. The central provision is s 106HB. However, before considering the terms of s 106HB, it is necessary to first deal with s 106HA, which is in the following terms:

106HA. Visual recording of interviews with children and persons with mental impairment

(1) Section 106HB applies to a visual recording of an interview with a child conducted before or after the coming into operation of section 20 of the Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004 if -

(a) the interview was conducted by a person of a prescribed class; and

(b) the manner in which the interview was conducted and recorded meets the prescribed requirements to the prescribed extent.

(1a) Section 106HB applies to a visual recording of an interview with a person with a mental impairment conducted before or after the coming into operation of section 48 of the Criminal Law and Evidence Amendment Act 2008 if -

(a) the interview was conducted by a person of a prescribed class; and

(b) the manner in which the interview was conducted and recorded meets the prescribed requirements to the prescribed extent.

(2) Section 106HB applies to a visual recording of an interview with a person with a mental impairment, or a child, whether or not the interview was conducted with the consent of a parent or guardian of the person or child.

(3) A visual recording of an interview with a child, or a person with a mental impairment, to which section 106HB applies is referred to as a visually recorded interview.

1. It can be seen from the text of s 106HA(1) that s 106HB relevantly 'applies to a visual recording of an interview with a child' if such an interview was conducted in accordance with both s 106HA(1)(a) and s 106HA(1)(b).[40] Further, pursuant to s 106HA(3), a 'visual recording of an interview with a child' to which s 106HB 'applies' is referred to as a 'visually recorded interview'.
2. At the directions hearing before Ritter DCJ, the appellant argued, in effect, that the interview with S was not a 'visual recording of an interview with a child', for the purposes of s 106HA(1) because S could not be seen during the interview at the time she made allegations about the appellant. It is unnecessary to refer to the arguments made on the appellant's behalf in any detail. It is sufficient to record his Honour's reasons for rejecting those arguments:[41]

I do not accept the submission that the interview was not 'a visually recorded interview'.[42] The relevant definitions, set out earlier, do not support this submission. In my opinion, 'visually' as a qualification within the relevant section and regulations is a quality of the recording, not what can be seen or not seen within the recording. Accordingly, a recording of an interview where the interviewee is seen to be hiding under a table remains a [visually recorded interview]. Relevantly, visual in this context means, in my opinion: 'Of, pertaining to, or connected with the faculty of sight or the process of vision' or 'That is by nature perceivable to the eye; able to be seen'. The interview in question was in my opinion a [visually recorded interview] because throughout the interview one can see what occurs, even though that involves seeing [S] hiding from the camera and [S] not being visible when she answers the questions. In my opinion it is not necessary, to be a [visually recorded interview] for the purposes of the Evidence Act 1906 (WA) and the [Evidence (Visual Recording of Interviews with Children and Persons with Mental Impairment) Regulations 2004 (WA)] for the person interviewed to be able to be seen when they are answering questions when they are clearly in the room where the interview takes place and can be heard. The trial judge could, if necessary, direct the jury upon the issue of whether not being able to see [S] being interviewed affects the capacity of the jury to assess her credibility. (footnotes omitted)

1. The meaning of the phrase 'visual recording of an interview with a child' used in s 106HA(1) is to be determined by applying well‑established principles of statutory construction. As this court has recently observed, that process involves the attribution of objective meaning to statutory text having regard to the text itself, the context in which the text appears, and the purpose of the legislation to be construed.[43] In Mohammadi v Bethune,[44] it was said that statutory construction, like any process of construction of an instrument, has regard to context. In support of that proposition, the court made reference to what was said by Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection:[45]

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. (footnotes omitted)

1. The phrase 'visual recording' is defined in s 106A as 'any recording on any medium from which a moving image may be produced by any means, and includes the accompanying sound track'. By inserting that definition into the statutory text,[46] it may be seen that s 106HB applies, by operation of s 106HA(1), to any recording on any medium from which a moving image may be produced by any means, including the accompanying sound track, of an interview with a child.
2. There is no question that, in this case, there was a recording on a medium from which a moving image was able to be produced, including an accompanying sound track.
3. The word 'interview' used in s 106HA(1) is not defined in the Evidence Act. Various dictionary meanings of that word indicate that when it is used as a noun, the word refers to meetings or conversations between persons during which questions are asked by one or more participants of another person in order to obtain information. According to the Oxford English Dictionary, the ordinary meaning also includes a formal session of questioning or interrogation of a person by the police.[47]
4. Based on the ordinary meaning of the word 'interview', and having regard to the medium on which the interview with S was recorded, we are of the view that the recording that was played to the jury at the appellant's trial was a 'visual recording of an interview with a child', for the purposes of s 106HA(1). In that regard, there was a 'visual recording' of S being asked a series of questions by the interviewer. Those questions were asked in a formal and structured manner, albeit in an environment that was fashioned to meet the needs of a young child. During the interview, information was elicited from S that was relevant to whether the appellant had behaved in a sexual manner towards S at any time. The fact that S was hidden from view for almost all of the interview does not, in our view, detract from this conclusion. The interview that was had with S, including the way in which the interview was conducted, was visually recorded.
5. As s 106HA(1) makes clear, s 106HB applies to a 'visual recording of an interview with a child' if both s 106HA(1)(a) and s 106HA(1)(b) have been complied with.
6. Before considering s 106HA(1)(a) and s 106HA(1)(b) further, it is necessary to note that s 106HC provides that the Governor may make regulations about a range of matters, including prescribing the classes of persons for the purposes of s 106HA(1)(a), prescribing the requirements to be met for the purposes of s 106HA(1)(b), as well as prescribing the extent to which those requirements must be met.
7. The relevant regulation for the purposes of s 106HA(1)(b) is reg 5 of the Evidence (Visual Recording of Interviews with Children and Persons with Mental Impairment) Regulations 2004 (WA). Relevantly, reg 5 provides that an interview meets the 'prescribed requirements' if it was:

(a) conducted in such a manner that, as far as is practicable, statements made by the child in the interview were not elicited by the use of leading questions; and

(b) where the child is under the age of 12 years, conducted in such a manner -

(i) that the child appears to understand that participating in the interview is a serious matter and that in giving the interview the child has an obligation to tell the truth; or

(ii) that it is apparent that the child has reached a level of cognitive development that enables the child to understand and respond rationally to questions and to give an intelligible account of his or her experiences[.]

1. There was no issue at the appellant's trial that the interview with S was conducted by a person of a 'prescribed class', as required by s 106HA(1)(a). However, at the directions hearing, the appellant also objected to the interview being admitted as part of S's evidence‑in‑chief on the basis that s 106HA(1)(b) had not been complied with. In particular, the appellant argued that the manner in which the interview had been conducted and recorded did not meet certain 'prescribed requirements' to the 'prescribed extent' as provided for in reg 5(a) and reg 5(b).
2. Before Ritter DCJ, the appellant contended that the interview did not meet the requirements of reg 5(a) because it was not conducted in a manner that, as far as is practicable, statements made by S were not elicited by the use of leading questions. However, that contention was rejected. His Honour held that although there were some 'problematic aspects of the interview', an objective assessment of the interview as a whole led him to conclude that S's answers were not obtained by the use of leading questions.[48]
3. The appellant challenges this conclusion in the context of ground 1. As will be seen, we are of the view that ground 1 should be allowed for different reasons, and that there should be an order for a retrial. We are also of the view that the interview with S must not be admitted as the whole, or as a part, of S's evidence‑in‑chief at any such retrial. Accordingly, it is unnecessary to deal with this aspect of ground 1.
4. The appellant also argued before Ritter DCJ that the prescribed requirement in reg 5(b) had not been met. However, his Honour found that S appeared to understand that participating in the interview was a serious matter and that, in giving the interview, she had an obligation to tell the truth. His Honour also found that S had reached a level of cognitive development that enabled her to understand and respond rationally to questions and to give an intelligible account of her experiences.[49] The appellant does not now challenge those findings.
5. In light of the above conclusions, the following reasons proceed on the basis that s 106HB applied to the interview with S, by operation of s 106HA(1). In those circumstances, and as will be seen, the issue that must be determined is whether the interview was properly admitted at the appellant's trial in accordance with s 106HB(1).
6. Little attention appears to have been given to the proper construction of s 106HB(1) in the court below. Apart from the argument that, in effect, the recording of the interview with S did not comply with s 106HA(1), the appellant appears to only have contended that the recording of the interview should have been excluded in the exercise of a discretion to refuse to admit evidence in order to ensure a fair trial or, in the alternative, that it should have been excluded because its prejudicial effect outweighed its probative value.
7. His Honour rejected the first of those arguments, for the following reasons:[50]

It was also submitted on behalf of [the appellant] that even if the recording satisfied the requirements of being 'visual' and thus a [video record of interview], it should be excluded in the exercise of the court's discretion to ensure a fair trial. This was on the basis that the 'sole issue' at the trial was likely to be the credit of [S] and there are, it was submitted, disadvantages encountered in evaluating matters of credit based on the transcription of audio recordings, because of the inability to observe the demeano[u]r of a witness. Reliance was placed on Elzahed v State of New South Wales [[2018] NSWCA 103; [2018] NSWCA 103; (2018) 97 NSWLR 898 [46]]. However, in my opinion the reasoning referred to in the [appellant's] submissions does not assist [the appellant]. This is because the court referred to scientific research that cast doubt upon the ability of judges or anyone else to tell truth from falsehood accurately on the basis of demeano[u]r. It was therefore said that these considerations have encouraged judges at trial and on appeal to limit their reliance on appearances of witnesses and reach conclusions as far as possible on the basis of contemporary materials, objectively established facts and the apparent logic of events. It was said that this does not eliminate the established principles about witness credibility but tends to reduce the occasions where those principles are seen as critical.

Furthermore, the trial judge could direct the jury as to the specific difficulties that there may be in assessing whether or the extent to which the [video record of interview] could prove the charges beyond reasonable doubt.

1. In relation to the second of the appellant's arguments, his Honour declined to exercise the discretion[51] to exclude the recording of the interview on the basis that its prejudicial effect outweighed its probative value. His Honour explained why he declined to exclude the recording on that basis in the following way:[52]

The [appellant] submitted that the use of child witness interviews (CWIs), as the evidence-in-chief of a complainant is a significant statutory departure from the 'standard position', which involves an accuser attending court and giving live evidence before a jury. By standard position I assume the submission refers to the common law position. It was submitted that this form of 'departure from the way criminal trials are ordinarily conducted' is more important when the subject matter of the trial involves serious allegations of sexual offending against a child. It was also submitted that the court ought to view any significant departure from the statutorily mandated requirements as rendering the CWIs inadmissible as part of the complainant's evidence-in-chief. The assertions made in this submission are questionable on a number of bases. One is the assertion of the way in which criminal trials are 'ordinarily conducted'. I have earlier referred to the 1991 Law Reform Commission Report which led to the enactment of s 106H of the Evidence Act 1906 (WA). Further, under s 106P, and generally, juries are told that a child witness' evidence being given by pre‑recorded means is an ordinary practice of the court and no adverse inference is to be drawn as to the accused's guilt from the use of the procedure. Given this I do not think the submission about a 'significant statutory departure from the standard position' can be sustained. Further, the legislation should be construed in its terms, not as against some notion of the law under the common law. The intention of the legislation was to supplant the common law. Accordingly, I do not think the common law is a very relevant touchstone as to how the legislation ought to be construed or operate.

As stated by Kirby J in Neindorf v Junkovic [[2005] HCA 75; [2005] HCA 75; (2005) 80 ALJR 341, 351 [42]] and quoted in Modern Statutory Interpretation:

'Where Parliament has spoken, it is a mistake to start with common law authority.'

This reflects the ordinary principle for statutory construction that the starting point in trying to ascertain the meaning and operation of a statutory provision is the text of the statute.

I do not think the evidence should be excluded on the basis of the probative value/prejudicial effect analysis. The alleged prejudicial effect was not clearly articulated by [the appellant]. It would seem to relate to the way in which the interview was conducted, the fact that [S] cannot be seen while she is providing important answers and the lack of detail to some of her answers. Although there may be some prejudicial effect in this, in my opinion it does not outweigh the probative value of the evidence. [S] states clearly enough what happened to her and that it was [the appellant] who did the things to her. It is not, in my opinion outweighed by any unfair prejudicial effect. Further, the prejudicial effects can be mitigated by appropriate directions to the jury. Accordingly, I do not exercise my discretion to exclude the [visually recorded interview with S]. (footnotes omitted)

1. We note that in Police v Dunstall,[53] French CJ, Kiefel, Bell, Gageler and Keane JJ expressly declined to determine the scope, if any, of a residual discretion to exclude 'lawfully obtained, probative, non‑confessional evidence that is unaffected by impropriety or risk of prejudice on the ground that admission of the evidence would render the trial of the defendant an unfair trial'. Indeed, their Honours said that where such a discretion is enlivened, and the impugned evidence is critical to the prosecution case, it would be more appropriate to consider ordering a permanent stay of the proceedings rather than excluding the evidence.[54]
2. However, it is unnecessary to determine the existence or scope of any general 'unfairness discretion', or to decide whether it was correctly exercised in the circumstances of this case. It is also unnecessary to determine whether his Honour was correct to conclude that the prejudicial effect of the recording of the interview with S was outweighed by its probative value. This is because the question of whether the visually recorded interview was admissible at the appellant's trial in fact depended upon the exercise of a discretion that was conferred by s 106HB(1).
3. In our view, where one or more visually recorded interviews with a witness to whom s 106HA applies are sought to be admitted as the whole or a part of the evidence‑in‑chief of that witness, s 106HB(1) confers a discretionary power on the judge[55] in the proceeding to determine whether those recordings may be admitted for that purpose.
4. Section 106HB is in the following terms:

106HB. Admissibility in criminal proceedings of visual recording of interview with child or person with mental impairment

(1) In any proceeding for an offence (the proceeding) one or more visually recorded interviews may be admitted as the whole or a part of the evidence in chief of a witness -

(a) irrespective of the age or maturity of the witness at the time of the proceeding; and

(b) even if the witness is capable of giving evidence at the proceeding.

(1a) A visually recorded interview with a person with a mental impairment is not to be admitted in the proceeding under subsection (1) unless the person is a special witness.

(2) A visually recorded interview is not to be admitted in the proceeding under subsection (1) unless -

(a) a transcript of it has been given to the accused; and

(b) the accused and his or her counsel have, in accordance with the regulations, been given a reasonable opportunity to view the visually recorded interview.

(3) Neither the accused nor his or her counsel is entitled to have possession of, or of a copy of -

(a) a visually recorded interview; or

(b) a visual recording of evidence on which a visually recorded interview is recorded or which incorporates a visually recorded interview.

(4) A visually recorded interview is admissible under subsection (1) to the same extent as if statements made in it by the witness were given orally in the proceeding in accordance with the usual rules and practice of the court concerned.

(5) If a visually recorded interview is admissible under subsection (1), the judge in the proceeding may give any directions the judge thinks fit as to -

(a) the presentation of it and the excision of matters from it; and

(b) the manner in which further evidence in chief of the witness may be given and in which any cross‑examination and any re-examination of the witness is to be conducted in the proceeding.

(6) A visually recorded interview is not to be admitted under subsection (1) if it has been edited or altered otherwise than in accordance with a direction under subsection (5)(a).

(6a) If a visually recorded interview of a witness is admitted under subsection (1), then, while the recording is played to the court, the witness must not be present in court, or be visible or audible by closed-circuit television or by means of any similar technology to anyone in the court other than, in the case of a trial by jury, the judge.

(7) The following provisions apply if the proceeding is on indictment -

(a) if a visually recorded interview is admitted under subsection (1), the judge is to instruct the jury that the procedure is a routine practice of the court and that they should not draw any inference as to the accused's guilt from the use of the procedure;

(b) if the judge is deciding whether or not to warn the jury that it may be dangerous to convict on the evidence of the complainant alone because of the length of the period between the offence and the proceeding, the admission under subsection (1) of a visually recorded interview with the complainant is not a relevant factor except to the extent that the length of the period between the offence and the admission of the official visually recorded interview may have affected the ability to test the evidence so admitted;

(c) the fact that there was a visually recorded interview that the prosecutor did not adduce under subsection (1) is not to be the subject of comment to the jury by the judge, the accused or the accused's counsel.

(8) Subsection (7)(c) does not prevent a judge from directing a jury about a breach of subsection (7)(c) by the accused or the accused's counsel, if it is in the interests of justice to do so.

1. In construing s 106HB, it may immediately be noted that s 106HB(1) provides that in any proceeding for an offence, one or more visually recorded interviews may be admitted as the whole or a part of the evidence‑in‑chief of a witness.
2. The use of the word 'may' in s 106HB(1) is of some significance. This is because s 56 of the Interpretation Act 1984 (WA) provides that:

(1) Where in a written law the word may is used in conferring a power, such word shall be interpreted to imply that the power so conferred may be exercised or not, at discretion.

(2) Where in a written law the word shall is used in conferring a function, such word shall be interpreted to mean that the function so conferred must be performed. (emphasis in original)

1. Section 106HB(1) does confer a power on a court conducting any proceeding for an offence to 'admit' a visually recorded interview as the whole or part of the evidence‑in‑chief of a witness. It follows that, by operation of s 56(1), the word 'may' is to be interpreted to imply that the power so conferred is a discretionary power.
2. Of course, the application of s 56(1) of the Interpretation Act must be read subject to s 3(1) of that Act, which relevantly provides:

(1) The provisions of this Act apply to every written law, whether the law was enacted, passed, made, or issued before or after the commencement of this Act, unless in relation to a particular written law -

(a) express provision is made to the contrary; or

(b) in the case of an Act, the intent and object of the Act or something in the subject or context of the Act is inconsistent with such application[.]

1. However, no express provision is made in the Evidence Act generally, nor in s 106HB specifically, that is to the contrary of s 56(1) of the Interpretation Act. Further, we are of the view that there is nothing in the intent and object of the Evidence Act, nor anything in the subject or context of that Act (nor specifically in s 106HA and s 106HB) that is inconsistent with a conclusion that s 106HB(1) is a provision that confers a discretionary power to admit a visual recording of an interview with a child as the whole or a part of the child's evidence‑in‑chief in any proceeding for an offence.
2. We note that s 106H(1) provides, in contrast to s 106HB(1), that in certain proceedings (called 'Schedule 7 proceedings'),[56] a 'relevant statement may, at the discretion of the judge, be admitted into evidence' if certain preconditions are met. A 'relevant statement' is a statement that relates to any matter in issue in the proceeding that was made by a child to another person before the proceeding was commenced, but which does not include a visually recorded interview (s 106H(3)).
3. Because s 106HB(1) does not expressly provide that the power to admit a visually recorded interview is 'at the discretion of the judge', it is possible to construe the word 'may' in s 106HB(1) as merely indicating that an otherwise inadmissible visually recorded interview is rendered admissible as the whole or a part of the evidence‑in‑chief of a witness, notwithstanding the ordinary rules of evidence. However, this construction does not take into account the important context provided by s 106HB(1)(a) and s 106HB(1)(b).
4. In that regard, if s 106HB(1) did not confer a discretion to admit a visually recorded interview as the whole or a part of the evidence‑in‑chief of a witness, despite the use of the word 'may', then s 106HB(1)(a) and s 106HB(1)(b) would be otiose. If the effect of s 106HB(1) was merely to render admissible evidence that would otherwise have been inadmissible, there would have been no need to specify two considerations that were not to be taken into account in exercising the power conferred by that provision.
5. In our view, the context provided by s 106HB(1)(a) and s 106HB(1)(b) clearly establishes that there is nothing in the intent and object of the Evidence Act, nor in the subject or context of that Act, that is inconsistent with the application of s 56(1) of the Interpretation Act. Properly understood, s 106HB(1)(a) and s 106HB(1)(b) specify two mandatory irrelevant considerations to the exercise of a discretion to admit a visually recorded interview.
6. Further, we note that this construction of s 106HB(1) as a provision that confers a discretion on a judge in a proceeding for an offence is consistent with the primary responsibility of a trial judge to regulate the conduct of a proceeding for an offence, and to ensure a fair trial according to law.
7. Although Ritter DCJ decided to admit the recording of the interview with S, he did not do so on the basis that its admissibility depended upon the exercise of the discretion conferred by s 106HB(1). In that sense, his Honour failed to carry out the statutory task that was actually entrusted to him. Accordingly, the question that arises is whether that failure caused a miscarriage of justice. That requires an assessment of whether there was an error or irregularity that was 'prejudicial' in the sense that there was a 'real chance' that it affected the jury's verdict or 'realistically [could] have affected the verdict of guilt' or 'had the capacity for practical injustice' or was 'capable of affecting the result of the trial'.[57]
8. In our view, there was a miscarriage of justice. The only reasonable exercise of the discretion conferred by s 106HB(1) in the particular circumstances of this case would have been to refuse to admit the recording of the interview with S as part of her evidence‑in‑chief at the appellant's trial. It follows that the failure to exercise the discretion conferred by s 106HB(1) in this case was 'prejudicial' in the relevant sense.
9. In order to explain why we have reached that conclusion, it is necessary to identify the factors that must be taken into account when exercising the discretion conferred by s 106HB(1).
10. It is well established that the factors that a decision‑maker will be bound to take into account (mandatory relevant considerations) and the factors that must not be taken into account (mandatory irrelevant considerations) in exercising a discretionary power are to be determined by construction of the statute conferring the discretion.
11. Section 106HB(1) does not expressly refer to the factors a court is bound to take into account when exercising the discretion conferred by that provision. However, it is at least clear that the discretion in s 106HB(1) must be exercised judicially, and by having regard to the subject matter, scope and purpose of the legislative scheme of which s 106HA and s 106HB form part.
12. Any mandatory relevant considerations that are not expressly stated in s 106HB(1) must be determined by implication from the subject matter, scope and purpose of the statute.[58] In circumstances where the court has not had the benefit of considered submissions on this issue, it would be inappropriate to attempt to exhaustively identify those factors. Nevertheless, and for reasons we will now explain, when exercising the discretion conferred by s 106HB(1), the judge in the proceeding must at least consider whether the relevant tribunal of fact will be able to adequately assess the reliability and credibility of the evidence given by a witness who is the subject of a visually recorded interview.
13. It is well established that the primary responsibility of a trial judge is to regulate the conduct of a proceeding for an offence, and to ensure a fair trial according to law. In the context of the criminal justice system that has operated in this State for a significant period of time, this responsibility extends to and includes a duty to ensure that the relevant tribunal of fact is able to adequately assess the evidence given by witnesses called by either party to criminal proceedings. In that respect, legal practitioners in this State would be very familiar with the great care taken by judicial officers to ensure that juries are able to properly see and hear evidence adduced in trials that take place in the District Court and the Supreme Court.
14. Criminal trials have long been conducted in this State on the basis that witnesses are required to give direct oral evidence to a court. This was underlined by McLure JA (as her Honour then was) in Cavill v The State of Western Australia,[59] albeit in a different statutory context, when her Honour said that '[t]he preservation of the primacy of direct oral evidence on central issues in criminal cases should be preserved save in exceptional circumstances'.
15. The importance of this practice more generally is also recognised in texts about the laws of evidence. For example, in Australian Evidence: A Principled Approach to the Common Law and Uniform Acts, it is said that:[60]

At common law, as a general rule, material facts and events are inferred from the oral testimony of witnesses to those facts and events (or to other facts and events from which the material facts can ultimately be inferred). This testimony is presented to the court by one party calling and examining the witness in-chief, and the other party being given the opportunity to test the information given through cross‑examination.

1. The learned authors of that text also observe that triers of fact almost always act upon a combination of a witness' testimonial evidence and on the witness' physical appearance and reactions (or demeanour) while giving evidence.[61]
2. Further, it is noted in Cross on Evidence that:[62]

The essential feature of the adversary or accusatorial system of justice is the questioning of witnesses by the parties or their representatives, summoned for the most part by them, and called mainly in the order of their choice before a judge acting as an umpire rather than as an inquisitor.

1. The requirement that witnesses give direct oral evidence to a court is, of course, subject to statutory provisions to the contrary. It has also been recognised that courts have inherent,[63] or implied,[64] powers directed to preserving the ability of the court to perform its functions in the administration of justice. These powers may be exercised to adjust the usual way in which witnesses give evidence in court, particularly in criminal trials.[65]
2. Section 106HA and s 106HB of the Evidence Act form part of a legislative scheme that alters, in several respects, the procedures that have traditionally been employed in the criminal justice system in this State to enable judges and juries to assess the reliability and credibility of witnesses who give evidence at criminal trials. In fact, it has been said that those provisions represent a 'significant departure from the traditional common law procedure for the giving of evidence by witnesses at a criminal trial'.[66]
3. Broadly speaking, the purpose of the legislative scheme,[67] which includes s 106HA and s 106HB, is to facilitate the giving of evidence in criminal proceedings by children and other vulnerable witnesses. This purpose is sought to be achieved by making several adjustments to established procedures for the giving of evidence. For example, evidence may be given in a supportive environment from outside a courtroom, by ensuring that certain vulnerable witnesses do not have to give evidence in the physical presence of, or under questioning by, an accused person, and by allowing evidence to be recorded in advance of trial.
4. However, it is also clear that while the legislative scheme has effected changes to traditional common law procedures, it also seeks to strike a balance between protecting vulnerable witnesses, on the one hand, and the right of an accused person to a fair trial, on the other. In striking that balance, a further purpose of the legislative scheme, and of s 106HA and s 106HB in particular, is that the established means by which tribunals of fact assess evidence given by witnesses in criminal trials are substantially preserved. That is, a purpose of the legislative scheme is to ensure that the evidence of witnesses in criminal trials will continue to be assessed by tribunals of fact, entrusted to determine whether a person's guilt has been proved beyond reasonable doubt, based on the Tribunal's consideration of both what the witness says in their evidence and their demeanour while testifying.
5. In that regard, it is important to recall that the discretion conferred by s 106HB(1) falls to be exercised in relation to a 'visual recording of an interview with a child'. As we have already observed, a 'visual recording' is a recording on any medium by which moving images may be produced, and it includes the accompanying sound track. The purpose of requiring a recording of an interview to be on a medium by which moving images and a sound track may be produced is obvious. Visual recordings of interviews clearly enable the early capture of evidence and minimise the occasions on which vulnerable witnesses may be required to recount their allegations. However, visual recordings also ensure that a tribunal of fact in proceedings for an offence will continue to be able to make an assessment of a witness' evidence in the traditional way, including by having regard to the way the witness appeared while they were being interviewed.
6. Similarly, it may also be noted that the legislative scheme substantially retains the means by which a witness' evidence has conventionally been elicited and tested in criminal trials in this State, with a view to it being assessed by a tribunal of fact by reference to a witness' testimony and demeanour. In that respect:

(a) Section 106HB(1) expressly contemplates that a visually recorded interview may be admitted as the whole, or a part, of the evidence‑in‑chief of a witness. Therefore, where s 106HB applies, it contemplates that a visually recorded interview may be used as, in effect, a substitute for the whole or a part of the evidence that would otherwise have been adduced during an examination in chief conducted in the usual manner.

(b) Section 106HB relevantly applies to visual recordings of interviews. Based on the ordinary meaning of that word, an essential characteristic of an interview is that information is obtained from the witness by asking them questions, as is the case when a witness is examined in the traditional way.

(c) Section 106HB(5)(b) expressly contemplates that further evidence‑in‑chief may be given by a witness who has participated in a visually recorded interview, and that the witness may be cross‑examined and re-examined.

1. Accordingly, we are of the view that in exercising the discretion conferred by s 106HB(1), the judge in the proceeding is required to consider whether the relevant tribunal of fact will be able to adequately assess the reliability and credibility of the evidence given by a witness who is the subject of a visually recorded interview, consistent with the established role of a trial judge to regulate the conduct of criminal proceedings and to ensure a fair trial according to law.
2. Whether a tribunal of fact will be able to adequately assess the reliability and credibility of the evidence given by such a witness will, of course, depend on the particular circumstances of each case. A factor that is likely to be of critical importance is the degree to which the credibility and reliability of a witness' evidence will be of significance to the resolution of the issues in dispute at the trial. Further, the question of whether a tribunal of fact will be able to adequately assess the reliability and credibility of evidence will need to be considered after having regard to whether further evidence‑in‑chief may be adduced from the witness, and whether the witness will also be subject to cross‑examination and re-examination.
3. Against that background it is now necessary to explain why we are of the view that the only reasonable exercise of the discretion conferred by s 106HB(1) in the particular circumstances of this case would have been to refuse to admit the recording of the interview with S as part of her evidence‑in‑chief at the appellant's trial.
4. S was the central witness in the State's case against the appellant. She was the only witness who gave direct evidence about the events the subject of the counts on the indictment. As the trial judge told the jury, S was 'the only witness against [the appellant] as to the happening of these alleged events', and the State was asking the jury 'to accept beyond reasonable doubt that [S's] evidence as to the happening of the alleged events the subject of each charge is honest, accurate and reliable'.[68]
5. Because S hid underneath and behind the table for almost all of the interview on 25 November 2021, and her physical appearance was therefore not recorded during that time, it was not possible for anyone watching the recording to make an assessment of the way S appeared when she described what she said the appellant did to her. In other words, the way in which the interview was conducted and recorded virtually eliminated any opportunity for a jury to make an informed judgment about S's demeanour, especially when she was giving her account of the offences on the indictment.
6. In our view, this was a very significant matter. Had S given the whole of her evidence‑in‑chief at a pre‑recording or at trial, in the usual way in which a child of her age would have given evidence in those circumstances, it is difficult to imagine any trial judge allowing her to give almost all of her evidence‑in‑chief from a position in which she would not have been able to be observed by the jury.
7. It can be seen from the quote extracted earlier in these reasons at [324] that when deciding to reject the appellant's argument that the recording of the interview with S should not be admitted, Ritter DCJ referred to a passage about demeanour assessments in the New South Wales Court of Appeal decision of Elzahed v The State of New S[69]th Wales.69
8. The source of the passage to which his Honour referred was the well-known judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy,[70] in which their Honours said:[71]

It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The 'Palitana'):

'... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.'

Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical. (footnotes omitted)

1. His Honour appears to have reached the view, based on these observations, that the appellant's complaints about the way the interview with S was conducted and recorded, and the fact that it would adversely affect the jury's ability to adequately evaluate the credibility and reliability of S's evidence‑in‑chief, carried little or no weight at all.
2. It must be accepted that the sorts of considerations that were referred to by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy mean that the occasions on which the appearance of a witness while giving evidence will be critical to the making of findings of fact are reduced. However, as their Honours also noted, the established principles about witness credibility (including the relevance of demeanour) are not eliminated. Indeed, the High Court later said in Pell v The Queen[72] that '[t]he assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury' (emphasis added).
3. It is notorious that there is usually very little, if anything, by way of 'contemporary materials, objectively established facts and the apparent logic of events' that is available to the State in prosecuting sexual offences alleged to have been committed against children. More often than not, the State must establish that an accused person committed a particular sexual offence against a child based only on the child's own evidence. In those circumstances a jury may well give significant weight to its assessment of the child's physical appearance while giving evidence.
4. In this case, while there was other evidence that was capable of supporting S's evidence generally, a verdict of guilty depended upon the jury's acceptance of the reliability and credibility of S's evidence that the specific offences had been committed, beyond reasonable doubt.
5. Although the jury had the capacity to make findings about S's evidence based on her demeanour during her pre‑recorded evidence, it must be remembered that it was what S said in her visually recorded interview that formed the basis of the two charges on the indictment in respect of which the appellant was found guilty. Further, the pre‑recording took place almost two years after S participated in the visually recorded interview, when, it may be inferred, her physical appearance and maturity had changed in comparison to the way in which she must have appeared when she gave her first formal account of her allegations.
6. In our view, having regard to all of the relevant circumstances, it was not possible for the jury to make an adequate assessment of the credibility and reliability of S's evidence. The only reasonable exercise of the discretion conferred by s 106HB(1) would have been to refuse to admit the recording as the whole or a part of S's evidence‑in‑chief.
7. It is unfortunate that the visually recorded interview with S was conducted and recorded in the manner in which it was. However, of course, no blame can be attributed to S. She was only 8 years old at the time, and she was clearly embarrassed to talk with a stranger about what she alleged had happened to her, particularly when it was being recorded.
8. The interviewer should not have told S that she could hide her face, and S should not have been allowed to disappear from view during the interview. However, we have no doubt that the interviewer was trying to do her best in a difficult situation, and that she made her decisions in good faith. Based on the experience of this court, the circumstances of this case appear unlikely to be repeated.
9. The trial judge also cannot be criticised for what occurred. The ruling about the admissibility of the visually recorded interview was made in advance of the trial and no one suggested that it should be revisited.
10. However, the decision to admit the visually recorded interview did have some unhappy consequences. For example, the trial judge was required by s 106HB(7)(a) to instruct the jury that the procedure that had been adopted in visually recording S's evidence was a routine practice of the court and that they should not draw any inferences as to the appellant's guilt from the use of the procedure, and his Honour did so.[73] However, in the circumstances of this case, the direction was misleading. The way in which S gave part of her evidence‑in‑chief in the form of the visually recorded interview that was played to the jury was far from routine.
11. Further, the trial judge also explained to the jury, in a conventional way, how they should go about assessing the evidence that had been adduced during the appellant's trial. In so doing, the trial judge suggested that there were some factors the jury may wish to take into account in assessing the evidence. Among those factors his Honour referred to were the impression the witness made on the jury when they gave their evidence, their tone, their body language, whether there were any hesitations in giving answers or any emphasis on particular answers, whether the witness was emotional and, if they were, whether that display of emotion affected the jury's impression of the evidence. However, when it came to making an assessment of the evidence S gave in her visually recorded interview, the jury's ability to take many of those factors into account was severely inhibited because they were not actually able to see S for most of the interview.
12. Finally, the trial judge gave the jury a Longman direction, in which his Honour warned the jury about the forensic disadvantages suffered by the appellant because of the delay in S's complaint, and he instructed the jury to 'scrutinise [S's] evidence with great care, taking account of all the circumstances that logically bear on [the jury's] assessment of its credibility'.[74] In those circumstances it is surprising that there was no suggestion from counsel that the jury should also be specifically warned about any forensic disadvantages attendant upon the way in which S had been interviewed. Instead, the jury were only told that they 'may take [into] account in [their] assessment of what [S] said that [they] were not able to observe her when she described what she alleges [the appellant] did to her'.[75]
13. As the appellant has not complained about the trial judge's directions, it is unnecessary to say anything further about that topic.
14. We would grant leave to appeal in respect of ground 1, allow the appellant's appeal against conviction on this basis, and order a retrial. For the avoidance of doubt, it must be understood that it is not open to the State to adduce the visually recorded interview with S that was conducted on 25 November 2021 at any such retrial.

1. The appellant argues that the State prosecutor's conduct of the trial occasioned a miscarriage of justice. In support of his argument the appellant draws specific attention to the way he was cross‑examined by the prosecutor, and he makes numerous complaints about the prosecutor's closing address.
2. The duties of a prosecutor were recently discussed by this court in Farnworth v The State of Western Australia.[76] They are well established and need not be repeated.
3. In Walsh v The State of Western Australia,[77] this court referred with approval to the following non‑exhaustive admonitions of Vaughan JA in Dayananda v The State of Western Australia[78] about what a prosecutor should not do in a closing address:[79]

(i) make a submission based on material that is not in evidence;

(ii) make or use intemperate or inflammatory comments tending to arouse prejudice or emotion in the jury;

(iii) make comments which belittle or ridicule any part of the accused's case;

(iv) introduce false lines of reasoning;

(v) invite a jury to speculate about the evidence; or

(vi) convey the prosecutor's personal opinion.

1. In a similar context, as Quinlan CJ and Vandongen JA noted in Smith v The State of Western Australia:[80]

In HCF v The Queen [[2023] HCA 35; [2023] HCA 35; (2023) 97 ALJR 978 [2]], a majority of the High Court (Gageler CJ, Gleeson and Jagot JJ) referred to the decision of Beech‑Jones CJ at CL (as his Honour then was) in Zhou v The Queen [[2021] NSWCCA 278 [22]], in which his Honour provided a 'summary concerning those errors or irregularities that will amount to a miscarriage of justice'. In that regard, the majority noted, with apparent approval, the following observations that were made by his Honour in Zhou [HCF [2]]:

'[If] the error or irregularity "is properly characterised as a 'failure to observe the requirements of the criminal process in a fundamental respect' then it would follow that the conviction would not stand regardless of any assessment of its potential effect on the trial", but otherwise there is no miscarriage unless the error or irregularity is "prejudicial in the sense that there was a 'real chance' that it affected the jury's verdict ... or 'realistically [could] have affected the verdict of guilt' ... or 'had the capacity for practical injustice' or was 'capable of affecting the result of the trial'".'

1. As was the situation in Walsh, the appellant in this case does not suggest that the prosecutor's cross‑examination or his closing address undermined the requirements of the criminal process in a fundamental respect. This means that, for the appellant to succeed on this ground, he must establish that the cross‑examination and/or the closing address amounted to an error or irregularity, and that it was 'prejudicial' in the sense endorsed by Gageler CJ, Gleeson and Jagot JJ in HCF.
2. Whether the prosecutor's closing address occasioned a miscarriage of justice must be determined having regard to the whole of the trial, including by reference to whether any objections were raised by defence counsel, and to any directions given by the trial judge.[81] Further, and as has been said on many occasions, the system of criminal justice requires the assumption, generally, that juries understand and follow instructions that are given to them by trial judges.[82]
3. Even if this court were to decide that there was a miscarriage of justice, it may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[83]
4. Having regard to our conclusion in relation to ground 1 and (as will be seen) our conclusion that ground 3 should be dismissed, the appellant could not achieve a better result on the appeal even if this ground of appeal were to be resolved in his favour. Even if the appellant's contentions about the prosecutor's conduct were to be accepted, we would only set aside the convictions and order a retrial.
5. In those circumstances, we propose to only briefly state our reasons for refusing leave to appeal in respect of ground 2.
6. In relation to the prosecutor's cross‑examination, the only contention made in the appellant's written submissions is that the prosecutor 'sought to attack and bully the [appellant]'. We do not accept that submission.
7. We have summarised the prosecutor's cross‑examination of the appellant earlier in these reasons. Based on our review of the transcript of that cross‑examination, there is nothing that leaves us with the impression that it was conducted unfairly to the appellant. We are far from persuaded that the cross‑examination, or any aspect of it, amounted to an error or irregularity that was 'prejudicial' to the appellant in the sense endorsed in HCF.
8. It is unnecessary to traverse all the appellant's many complaints about the prosecutor's closing address. We have read the transcript of the prosecutor's closing address several times.
9. On occasions, the prosecutor injected his own life experiences into his closing address. For example, on one occasion in the course of discussing S's credibility, the prosecutor told the jury that he was not aware of any subjects he studied at school that explained to him how to speak to a stranger about sexual assault. On another occasion, the prosecutor spoke about the way in which adults would be addressed in his family home when he was growing up. Plainly, the prosecutor's own experiences were irrelevant to the jury's task.
10. Later in his closing address, when attempting to explain S's evidence about the number of pornography related websites she had accessed, the prosecutor suggested that the evidence could be explained by reference to what might occur if a person were to visit a website of a domestic energy supplier to check a bill for services provided. The prosecutor appeared to suggest, in particular, that it is possible for one to visit several webpages while believing (and therefore saying) that only one website had been visited. However, there was no evidence to support the prosecutor's speculative submissions.
11. Although there are aspects of the closing address that run counter to the guidance offered to prosecutors by Vaughan JA in Dayananda, we are not persuaded that the closing address, when viewed in the context of the trial as a whole, occasioned a miscarriage of justice.
12. We have not had the benefit of seeing and hearing the prosecutor conduct his cross‑examination of the appellant or deliver his closing address. Accordingly, it is not possible to assess the tone in which it was delivered. However, we are of the view that it is very significant that neither the appellant's senior counsel nor his junior counsel, both of whom are very experienced criminal law practitioners and who were clearly immersed in the atmosphere of the trial, raised any material objections to the prosecutor's cross‑examination of the appellant,[84] nor to his closing address.
13. It is also necessary to observe that the trial judge, who is also very well versed in the running of a criminal trial and who had the benefit of observing the cross‑examination and the prosecutor's closing address first hand, gave no indication that he had any concerns that any aspect of the prosecutor's conduct of the trial had given rise to any risk of a miscarriage of justice. Further, and in any event, the trial judge specifically directed the jury in the usual manner that, while it was open to the jury to give careful consideration to anything said by counsel in their closing addresses, it was not evidence, and it was for the jury to judge the facts based on the evidence.
14. In our view, there is nothing about the prosecutor's cross‑examination or closing address that occasioned a miscarriage of justice. Ground 2 does not have a reasonable prospect of succeeding. Accordingly, leave to appeal on that ground must be refused.

1. Ground 3 asserts that the jury's verdicts of guilty were, having regard to the evidence, unreasonable or cannot be supported.
2. The principles to be applied in the context of such a ground of appeal are settled. They were relevantly summarised in Sturniolo v The State of Western Australia in the following manner:[85]

(1) The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether, as a matter of law, there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.

(2) The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

(3) That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.

(4) In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses. The appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent on the evaluation of the witnesses in the witness box. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness is, and remains, the province of the jury, and not of the appellate court.

(5) The question for the appeal court is whether, upon its examination of the record - by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt.

(6) A doubt experienced by an appeal court would be a doubt that a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.

(7) If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appeal court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appeal court must set aside the verdict.

(8) The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over an appeal court that has not seen or heard the witnesses called at trial.

1. Further, as this court recently said in Hughes v The State of Western Australia:[86]

The principles described in (4) to (6) of [the summary taken from Sturniolo] reflect the functional demarcation between the province of the jury and the province of an appellate court. As the High Court emphasised in Pell v The Queen [[2020] HCA 12; [2020] HCA 12; (2020) 268 CLR 123 [37]], the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard in the context of the trial is within the province of the jury as representative of the community. For that reason [Pell [39]]:

'The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence ... proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.' (footnotes omitted)

1. It is common practice in cases such as this for a trial judge to give the jury a Liberato direction.[87] By that direction, juries are told that if they believe an accused's evidence in denying that he or she committed an offence charged, or if they at least think that there is a reasonable possibility that such evidence is true, then they are required to find the accused not guilty of that charge. Such a direction was given to the jury in this case.[88] Having regard to what was said by the High Court in Pell, it follows that this court must also proceed on the assumption that the jury rejected the appellant's evidence that he did not commit the offences the subject of counts 1 and 2, and that the jury put at least that aspect of his evidence to one side.
2. As the respondent correctly observed, the appellant's written submissions appeared to suggest that ground 3 raises a further issue, namely, whether the verdicts of not guilty returned by the jury on counts 3 and 4 were inconsistent with the verdicts of guilty on counts 1 and 2. However, at the hearing of the appeal the appellant advised that, insofar as ground 3 should be understood as raising a contention that there were inconsistent verdicts, that contention focused only on the verdicts for counts 2 and 4.
3. The principles to be applied in circumstances in which it is asserted on appeal that verdicts of guilt returned by a jury should be set aside because they are inconsistent with verdicts of acquittal entered by the same jury are well established. Those principles were again recently re-stated by this court in MHS v The State of Western Australia.[89]
4. It is convenient to deal with the contention that the verdicts relating to counts 2 and 4 were inconsistent, before moving on to determine more generally whether the verdicts of guilty were unreasonable or cannot be supported having regard to the evidence.

1. In AKG v The State of Western Australia, this court noted that there are, in general, two circumstances in which the presence of an inconsistency in verdicts may result in the setting aside of a conviction.[90] First, circumstances of 'legal inconsistency', where verdicts cannot sit together as a matter of law. Secondly, circumstances of 'factual inconsistency' where, as a matter of logic and reasonableness, the verdicts cannot sit together.
2. In the case of 'factual inconsistency', an appellant must establish that a verdict or verdicts of guilty cannot stand with a verdict or verdicts of acquittal. The relevant issue is whether no reasonable jury whose members properly applied their minds to the facts of the case could have arrived at the different verdicts. If there is a proper way to reconcile the verdicts, such that it can be concluded that the jury performed their functions as required, that conclusion will generally be accepted.
3. Although the appellant fleetingly suggested in his oral submissions that there was a legal inconsistency between the verdicts relating to counts 2 and 4, the gravamen of the appellant's contention is that the verdicts relating to counts 2 and 4 were factually inconsistent. In particular, the appellant relies on the fact that the incidents the subject of counts 2 and 4 were ultimately left to the jury as having occurred during the same incident, or during incidents that were closely connected in time and place. On that basis, the appellant submits, in effect, that any doubts the jury must have had about S's credibility in respect of count 4, they must also have had in respect of count 2.
4. The appellant also argues that the jury's verdict of not guilty in respect of count 4 meant that there was an insufficient degree of particularity about the time and place at which the offence in count 2 was alleged to have been committed, such that the jury must have had a reasonable doubt about the appellant's guilt on that count as well.
5. The appellant's contentions cannot be accepted. This is because there is a proper way to reconcile the jury's verdicts. As we will explain, it can readily be concluded that the jury performed their functions as required.
6. Count 4 was ultimately expressed in the following terms:

On the same date and at the same place as count 2 [the appellant] indecently dealt with [S], a child under the age of 13 years, by showing her pornographic material. (emphasis added)

1. The emphasised words in count 4 are of significance. As the trial judge confirmed with the prosecutor at the end of the State case, the jury had to be satisfied beyond reasonable doubt that the appellant actually showed pornographic material to S before convicting the appellant of the offence charged in count 4:[91]

LEMONIS J: Yes. But that's one thing I was going to raise, is that, in respect of count 4, it's not sufficient that [the appellant] showed [S] how to search this material.

PROSECUTOR: Yes.

LEMONIS J: It's necessary on the State case to establish that as a result of that search a video depicting sexual activity responded.

PROSECUTOR: Yes.

LEMONIS J: And then he played that.

PROSECUTOR: And I'll come onto that.

LEMONIS J: Yes.

PROSECUTOR: But what we start with at page 18 - - -

LEMONIS J: But do you accept that?

PROSECUTOR: Yes. Yes.

LEMONIS J: So the search terms is not sufficient.

PROSECUTOR: No.

1. Consistently with this exchange, the trial judge later directed the jury about count 4 in the following way:[92]

So the critical issue in relation to count 4 is whether you're satisfied beyond reasonable doubt that [the appellant] showed [S] material that depicted adults engaging in sexual activity on the occasion that the State says occurred. And as I've said, it's not sufficient that he just showed her how to search for such material.

1. In her visually recorded interview, S spoke about watching videos of people having sex on her iPad. She said that the appellant showed her how to type up videos of people having sex, which she did on Safari. S said that the appellant told her how to do that '[l]ike three years ago'.
2. However, at no stage did S say in that interview that the appellant had actually showed her the pornographic material itself. She also made no mention of where this incident took place and made no suggestion that any other sexual conduct had occurred at or about the same time.
3. At the pre‑recording of her evidence, S was also asked questions about this topic in cross‑examination. In that cross‑examination, S maintained that the appellant told her how to find videos of people having sex on the internet. When she was asked where that occurred, she said that she thought that it might have been in the weights room at the appellant's home. Up to this point, the State's case had been that this event had happened at S's home.
4. S was then asked whether she watched a video with the appellant, after typing in 'people having sex'. S said that she did not remember and that she did not really know. When it was put to S that she had searched for websites of people having sex on her own, she disagreed; stating that it was the appellant who always searched for websites of people having sex, although she could not recall how many times this occurred. S also gave evidence that, to the extent that the history of her internet use on her iPad showed that it had been used to access pornography in October and November 2021, it was the appellant who showed her how to do that.
5. Later in her cross‑examination, S gave the following evidence:[93]

All right. When you spoke to [the interviewer] you told her that when [the appellant] showed you how to access people having sex on Safari it was three years ago, that is, three years before you spoke to [the interviewer]. Was that true?---I don't really remember, I'm pretty sure. It might have been two or three.

But you told [B], didn't you, that you started watching it about 30 days ago?---He showed me about two to three years ago but I only started watching it about 30.

30 days before?---Yeah.

That's on your own without him?---Yes.

He never actually sat down and watched any of this with you, did he?---I don't think so. He only showed me the website.

But he never watched it with you?---Never.

Never. And [the interviewer] asked you what other things he'd showed you or told you to do and you said:

Nothing else.

?---Yes, nothing else.

And that was true, wasn't it?---Yes, that's true.

So you say he only once showed you how to access these sites?---Yes.

Never ever did anything after that?---Nope, never.

And never ever watched them with you?---Yes.

And that's all true?---Yes, that is now true but that is all true but I (indistinct) now, now there's four(?).

[S], he never ever showed you anything, did he? He never showed you how to - - -?---He did.

- - - watch pornography - - -?---He showed me.

- - - at all?---He did. He showed me the website but since I didn't know it was wrong at the time I watched it on myself - by myself cos I didn't know it was wrong.

And that was through October/November that year too?---Yeah.

Did it all yourself?---Yes.

Accessed those sites yourself?---Yes.

Which were people having sex?---Yes.

(emphasis added)

1. In re-examination, the prosecutor attempted to clarify S's evidence:[94]

Okay. All right. So you - you were asked questions about - about [the appellant] and the sites that he showed you?---Yeah.

Okay. Where did he show you these - - -?---He showed me in the weight room.

And what did he show you?---He showed me how it was spelt in the website.

Okay. So how was it spelt in the website?---So are you saying how is the website spell or how is the thing spell?

Well, what did he show you?---He told me - he showed me - pretty sure it - don't remember what he's told me to search up. I - I know it had that word in it, though.

Okay. Which word is that?---Sex.

Okay. And what about sex? What - what was it about sex that he showed you?---I don't really know.

And when he was showing you did you see anything - so what - what was he showing you on? What was the device?---It was on my iPad.

Okay. And when you say he was showing you, where was your iPad?---In the - I'm pretty sure it was on my lap.

...

Okay. So where was your iPad? Did you have it with you?---He had it and it was unlocked.

All right. And did he say - was it - where was it that he was showing you? Was it that iPad?---It was in - it was in the weight room and I - it might have been on mine or his lap.

And so you're talking about your iPad?---Yes.

Okay. And what was - how did he show you?---He - he went on to Safari and searched it up.

And what did he search up?---He searched up - it was sex and I don't really know the rest.

Okay. And what did you see on the iPad when he searched it up?---I saw a video. I'm pretty sure he pressed on the video.

Yes. And - and what - - -?---And then he left.

And what was happening in the video?---People having sex.

Okay. And how long were you - how long was he showing you this?---Okay. I'm pretty sure the video was about only one minute long.

About a minute long?---Yeah.

All right?---Or two. I don't really know. It probably - it could have been one or 30. I don't really know cos I had a very bad concept of - in time.

I'm sorry, you had?---I had a really bad - I don't even know what concept means. I - I was really bad at telling time.

Okay. All right. So you said - did you see what [the appellant] typed?---Yes.

What did he type?---I don't know, like, the last bits but all I know is sex cos I can't remember the last bits.

All right. And you said that you saw people having sex?---Yeah.

And are you able to say anything about clothes? Did they have clothes on, the people you saw having sex?---I don't really know.

You don't really know. Did you see them?---Yes.

And where were you sitting and where was - so where were you sitting in relation to [the appellant]?---[The appellant] was out in the kitchen and I was just - and I was sitting in my bed.

Okay. Now, you said that [the appellant] showed you. Where was [the appellant] when he was showing you?---So he searched it up and then he pressed on the video and then he went out to the kitchen.

Where was he in relation to you when he searched it up?---He was sitting by the side of my bed and I was watching YouTube on my iPad and then he searched it up.

And when he was doing that were you next to him?---Well, technically because I was laying on the bed here and he was, like, sitting on the side.

All right. And where was that?---In the weights room at his house.

All right. Now, you've mentioned about that time when you were in the weights room and [the appellant] put your hand on his dick?---Yes, but he showed me the video right after.

Right after that?---Yeah.

And what did he do after - so after he put your hand on his dick, after he unbuttoned his pants, put his - put your hand on his dick, what did he do then?---I don't really understand the question. I heard it but I don't really understand what it means.

So how long after that did [the appellant] show you the video?---Pretty - it might have been like 30 minutes cos he went out to sit in the kitchen with my parents and chat and then he came back.

Okay. And this was at night-time?---Yes.

(emphasis added)

1. Accordingly, it can be seen that S did not make any allegation in her visually recorded interview that the appellant had actually shown her any pornographic video. Then, when she was cross‑examined at the pre‑recording of her evidence, S said, in effect, that the appellant only ever showed her how to find pornographic websites, and that he never actually watched any such videos with her. In re-examination, however, S gave evidence about an occasion when she was at the appellant's home and, after he had indecently dealt with her by forcing her to touch his penis under his clothes, the appellant brought a video up onto S's iPad, 'pressed' on the video, and then walked away.
2. The trial judge directed the jury that it was important for them to consider the evidence in relation to each particular charge and to bring in separate verdicts for each of the four counts on the indictment. The trial judge also directed the jury that their verdicts on each count did not need to be the same and explained that it was, for example, open to find the appellant guilty of some charges and not guilty of other charges. The trial judge also told the jury that they did not have to accept all of a witness' evidence, and that they were free to accept parts of a witness' evidence and reject other parts, or to reject all of it.
3. In those circumstances, the jury's verdict of not guilty in relation to count 4 is readily understandable. The different verdicts for counts 2 and 4 can properly be reconciled on the basis that the jury, following the trial judge's instructions to give separate consideration to each charge, were not satisfied to the criminal standard that the appellant had actually shown S pornographic material, as alleged. However, they were satisfied to the same standard that he had committed the offence charged in count 2.
4. The jury's verdicts for counts 2 and 4 are not relevantly inconsistent.

1. In assessing the evidence adduced at the appellant's trial to determine whether the verdicts of guilty were unreasonable or cannot be supported, we have assumed that the visually recorded interview was properly admitted at the appellant's trial, contrary to our conclusion in ground 1. Our assessment is also not based on our viewing of the visually recorded interview with S. Our evaluation of the evidence proceeds on the assumption that after having seen and heard the evidence admitted at the appellant's trial, the jury assessed S's evidence in relation to counts 1 and 2 as credible and reliable. Our appraisal of the evidence proceeds on the further assumption that the jury rejected the appellant's denials that he had committed the offences the subject of counts 1 and 2 and, in accordance with the trial judge's directions, that the jury put those denials to one side when deciding whether they were satisfied beyond reasonable doubt that the appellant was guilty of those offences.
2. We have summarised S's evidence earlier in these reasons.
3. It would be fair to say that, in general, the account that S gave in her visually recorded interview was very vague. That account was particularly imprecise when she was asked to recall details of the occasions on which she said the appellant had sexually interfered with her. For example, S said that it happened '[a] year or so ago or something' and that it happened '[l]ike five [times] or something'.[95] When S was asked, in an admittedly confusing manner, to tell the interviewer 'about the first - the last time that this happened', S said that she could not remember because 'it was last year'.[96]
4. However, S was only 8 years old when she participated in the visually recorded interview. The interview was also conducted by someone S did not appear to know, and she was being asked to remember events that she said occurred a year or more before the interview took place. That S's account would suffer from a degree of imprecision accords with ordinary human experience, particularly of young children. As S herself said during the interview, 'Most of my answers are I don't know cos it was over a year ago so I can't remember most of it'.
5. It is also obvious from the transcript of the visually recorded interview that S was being asked to speak about a topic that made her feel self-conscious and embarrassed, and to do so in circumstances in which she did not want to be recorded and where she feared getting into trouble. That her account would suffer from a degree, even a significant degree, of inexactitude is completely unsurprising.
6. Notwithstanding the lack of precision in the answers S gave in the visually recorded interview, on our assessment of the record of the trial, S clearly articulated that she recalled one occasion on which she was lying down in her bed with the appellant when he forced her hand under his pants and onto his penis (count 1), and a further occasion on which a similar incident occurred in a spare room at the appellant's home (count 2).
7. When S's evidence was pre‑recorded on 31 July 2023, she gave some further evidence about those two core events.
8. S confirmed in her further evidence‑in‑chief that when she told the interviewer about the 'first time' the appellant made her touch him in a sexual manner, she was talking about her being made to touch '[h]is dick'.[97] She explained that the appellant 'put [her] hand into his knickers',[98] and that this occurred in the appellant's spare bedroom.
9. S was then closely cross‑examined by the appellant's senior counsel. In the course of being tested in this way, S confirmed that she had told the truth in her visually recorded interview. She also gave evidence that she was sure that the appellant took her hand and put it in his pants, and that she was definite that the first time this occurred was when she was with the appellant in the spare bedroom at his home.[99]
10. When S was asked in cross‑examination about the 'second time', she said that she could not remember, but that she was 'pretty sure there was a second time',[100] which might have been at her home. Although S was unclear about some of the surrounding details of this event, when she was asked whether she remembered what the appellant did, she confirmed that it was the same as the 'last time'. In that regard, she confirmed that the appellant unbuttoned his pants and put her hand into his 'knickers'.[101]
11. After S gave evidence that this sort of interaction with the appellant 'might have happened five or six times all up', she agreed with senior counsel's specific proposition that she could only remember two occasions 'for sure'.[102] In that regard, S gave the following evidence in cross‑examination:[103]

So you say it might have happened five or six times all up?---Yes.

But you can only remember two of them for sure; is that right?---Yeah.

And one was at [the appellant's home town], one's at [S's home town] that you can recall?---Yeah.

Do you have a room there called the games room?---Yes.

Where's that?---Downstairs.

Right. No one sleeps there, do they?---No one.

Okay. And what do you go to that room for?---To play pool, ping pong and do exercise.

Right. Did it ever happen in that room anything like this?---I don't remember.

You don't remember. So you couldn't say that - that it ever happened there really for sure, could you?---Yeah.

You agree with me?---Yeah.

The only times you can remember for sure were once in the weight room and once - the weight room at his place that's in the picture?---Yeah.

And another time in your bedroom that's in the picture?---Yeah.

Apart from that you can't remember anything else - - -?---Yeah.

- - - for sure; correct?---Yeah.

You can't remember anything he said to you during either of those occasions?---Can't remember.

Now, he's never ever touched you, has he, on your private parts?---Nope.

Never, has he?---Never.

Right. And these things have never happened anywhere else other than his place or your place?---Yeah.

Not any time when you went on holidays?---Never when I went on holidays.

(emphasis added)

1. At the conclusion of his cross‑examination, senior counsel put to S that the appellant never took her hand and put it on his 'private parts'. S responded by saying, 'You are wrong'.
2. In re-examination, the State prosecutor asked S a series of questions about the occasion on which she alleged the appellant had shown her how to search on the internet for videos of people having sex. S said that this occurred 'right after' the time the appellant had forced her hand onto his penis while they were in the spare room at the appellant's home. This was the first time S had said that this was when the appellant had shown her how to carry out those searches. In his written submissions, the appellant suggests that this amounted to a change in S's evidence.[104] However, this was in fact the first time that S had been asked where this event had occurred. In the visually recorded interview, S was only ever asked when that incident took place.
3. In our view, S's pre‑recorded evidence reinforces our earlier conclusion that, notwithstanding the vague and imprecise aspects of her evidence, S's core allegations that the appellant had sexually interfered with her on several occasions were consistent and clear. Further, of those several occasions, S was able to specifically remember two separate times when the appellant placed her hand onto his penis under his clothing. S clearly maintained that one of those occasions occurred at the appellant's home, in his spare room (count 2), and that the second of those occasions occurred at S's own home, when the appellant was lying with her on her bed (count 1).
4. In his written submissions, the appellant raised several arguments in support of his contention that the verdicts of guilty for counts 1 and 2 are, having regard to the evidence, unreasonable or cannot be supported.
5. One of those arguments concerns S's evidence in cross‑examination that she did not on any occasion notice any change in the appellant's penis. Specifically, S said in her evidence that the appellant's penis did not change from being soft to hard when she touched it.[105] However, the cross‑examination proceeded on the unproven assumption that the appellant's penis was not already hard when he forced S to touch it, or that S knew the difference between a 'soft' penis and a 'hard' penis.
6. The appellant also places particular reliance on evidence adduced at his trial that demonstrated that S's iPad had been used to search the internet for, and to gain access to, pornographic material including during October and November 2021. The appellant submits that S's denials in cross‑examination that she was not the person who had carried out those searches demonstrates that S repeatedly lied in her evidence. The appellant suggests that this 'infect[ed]' the rest of S's evidence.
7. In a similar vein, the appellant points to evidence S gave under cross‑examination that he suggests was to the effect that when S looked at pornography on her iPad, she did not appreciate that it was wrong. The appellant submits that S's evidence in this respect was inherently implausible. In particular, the appellant notes that, contrary to S's evidence, S had in fact demonstrated that she knew it was wrong because she had voiced concerns to her sister, B, about getting into trouble with their parents and losing her iPad.
8. The appellant also argues that S had been improperly influenced 'by those in authority'.[106] It is not easy to understand this aspect of the appellant's contentions. However, the appellant appears to suggest that S came to believe that she was a victim because that is what her sister, B, told her and that it was then something that was reinforced during S's visually recorded interview.
9. The appellant refers to several other matters, which he submits adversely affected S's credibility. Those matters include:

(a) the fact that, while S's evidence was being pre‑recorded, she could not remember the number of times she had previously been in the room in which she was then giving evidence;

(b) that S denied kissing a boy at school and also denied, on a different occasion at her home, pulling up her dress in front of a friend when she had no underwear on, shortly before she first made her disclosures about the appellant;

(c) that there were changes in S's evidence that 'seem specific to the needs of the Prosecution case';[107]

(d) that S changed her description of the appellant's clothing, describing it at the pre‑recording as pants with one button and a zip, compared to what she said in her visually recorded interview, namely that 'he unbuttoned his pants';

(e) that S changed the time and location of when she said the appellant showed her how to access pornography on the internet;

(f) that S was inconsistent when giving evidence about how many occasions the appellant had shown her how to access pornography on the internet;

(g) that S alleged that it was the appellant who showed her pornography on her iPad in October and November 2021, in circumstances in which even the State prosecutor conceded at the trial that it was not part of the State case that the appellant was present with S when she conducted internet searches using her iPad within the 30‑day period before she was interviewed; and

(h) that S's evidence lacked any 'meaningful detail', and that her allegations amounted to a single statement that the appellant unbuttoned his pants and put S's hand into his 'knickers'.

1. Most, if not all of, those matters were addressed by the appellant's senior counsel in his closing address to the jury.
2. We have carefully considered all of the appellant's submissions. It is true that S's account was vague and imprecise in many respects, and that her evidence contained some inconsistencies, discrepancies and other inadequacies, including those identified by the appellant. However, those shortcomings in S's evidence must be considered in the context of the evidence as a whole.
3. On our review of all the evidence adduced at the appellant's trial, none of the matters referred to by the appellant give rise to a reasonable doubt in our minds about his guilt of the two offences the subject of counts 1 and 2. They certainly do not raise a doubt that the jury's advantage in seeing and hearing the evidence is not capable of resolving.
4. In considering the evidence as a whole, the email the appellant sent to his wife during the early hours of the morning on 1 December 2021, that we have referred to earlier in these reasons, is of critical importance.
5. As our earlier summary of the evidence adduced at the appellant's trial demonstrates, the appellant drafted an email to his wife, which he then sent to himself on 24 November 2021 (Exhibit 6). The email was a draft suicide note. Relevantly, the appellant wrote in that email that he expected to be accused of 'child sex assault in relation to [S]'.
6. On 1 December 2021, the appellant sent a version of that email to his wife (Exhibit 5). Importantly, in that version of the email the appellant had added the line, 'Which I have done [sad face emoji]', immediately after indicating that he expected to be accused of 'child sex assault in relation to [S]'.
7. The trial judge gave the jury directions about how the appellant's email to his wife on 1 December 2021 was relevant in the State's case. His Honour explained that, as a matter of law, the email was incapable of amounting to any admission of guilt by the appellant in relation to any specific count on the indictment. He told the jury that the State relied on the email, in the circumstances in which it was sent, as amounting to an admission by the appellant that he had sexually assaulted S.
8. The trial judge also told the jury that for it to constitute an admission in that way, the jury needed to be satisfied that the only reasonable inference in all of the circumstances was that the appellant was truthfully and accurately admitting in that email that he had sexually assaulted S.
9. No issue was taken with this aspect of the directions by either party. Accordingly, it is unnecessary to decide whether these directions were required in the circumstances of this case. However, it should not be assumed from these reasons that we are of the view that these directions were required. There is, in fact, much to be said for the proposition that the directions were unduly favourable to the appellant.[108]
10. The trial judge then directed the jury that if they were satisfied that the appellant had truthfully and accurately admitted that he had sexually assaulted S, it was open to them to also be satisfied that this demonstrated that at the time of the charged offences, the appellant had a sexual interest in S and that he was willing to act on it. The jury were directed that if they were satisfied that the appellant had such a sexual interest in S, it was open to them to conclude that it was more likely that the appellant engaged in the conduct the subject of the charges.
11. The jury were also directed that if they were satisfied that the appellant had made an admission in the email that he had sexually assaulted S then it could not be used as a substitute for evidence of the alleged conduct the subject of the charges. The jury were told that they could not reason that because of the admission the appellant must therefore be guilty of any specific charge.
12. We have already set out earlier in these reasons what the appellant told the police about these emails, when he was interviewed about S's allegations on 1 December 2021. What the appellant said to the police was reflected in his evidence at the trial. In summary, the appellant's explanation was that he believed that if he sent the draft email to his wife then she would blame S and her family for his death. The appellant said, in effect, that he wanted to avoid this happening. According to the appellant, the solution he came up with was to amend the draft email to include a false confession that he had sexually assaulted S. The appellant's explanation was, in effect, that this would reduce the risk that there would be any animosity between the families after he was gone, so that his wife would then continue to have the support of S's family.
13. In our view, and based only on the record of the trial, the appellant's explanation for confessing to sexually assaulting S in the email he sent to his wife was contrived and implausible. The idea that the appellant would attempt to take his own life in the face of what were, on his version, false accusations of sexual assault, and then, before making that attempt, make an untruthful confession to his wife that he had sexually interfered with the very young daughter of their close friends in order to ensure the survival of her friendship with them, is risible.
14. We note that there is no suggestion in the email itself that the appellant anticipated or hoped that his wife's friendship with S's family might be preserved. On the contrary, the appellant himself contemplated the inevitable, whether the appellant had confessed to his wife or not:

Given my position ... and public scrutiny that would come with a trial and the pending relationship breakdown with people who have been our best friends, it seems tidier for me to take another way out. (emphasis added)

1. The appellant's explanation is also inconsistent with his evidence that while he was making preparations to take his own life, he prepared a new will, in which he replaced S's father as the executor of his estate because he did not think that it would be good for his wife to have to deal with S's family in finalising his estate.
2. In our view, the only sensible explanation for the email the appellant sent to his wife is that the appellant was wracked with guilt and shame because he had indeed sexually interfered with S. In circumstances in which he was then intending to take his own life, and believed that the email would remain private, the appellant admitted that he had sexually assaulted S to explain to his wife and family why he decided to commit suicide. The only reasonable inference in all of the circumstances was that the appellant had truthfully and accurately admitted that he had sexually assaulted S. The jury were plainly entitled to reach the same conclusion.
3. Of course, as the trial judge told the jury, the fact that the appellant had sexually assaulted S was not, of itself, proof that the appellant had committed either one or both of the offences the subject of counts 1 and 2. However, it did prove that the appellant had a sexual interest in S, which he was prepared to act on, including at the time the offences were alleged to have been committed.
4. There was, of course, no evidence found on any of the 28 electronic devices that were seized from the appellant when he was arrested that suggested that he had any sexual interest in S or in children more generally. There was also no evidence that the appellant had communicated with S, using social media or by any other electronic means, in an inappropriate way. However, this does not in any way detract from the fact that the appellant admitted that he had sexually assaulted S, or from the irresistible inference that he had an unnatural sexual interest in her that he had acted on.
5. The appellant's sexual interest in S, and his willingness to act on that interest, provided considerable objective support for S's evidence that the appellant forced her to touch his penis under his clothing on the two particular occasions that she confirmed in cross‑examination she recalled, and that were the subject of counts 1 and 2 on the indictment. Having regard to the whole of S's evidence, the appellant's confession that he had sexually assaulted S, and the irresistible inference that he therefore had a sexual interest in S that he was prepared to act on, dispels any reasonable doubt in our minds that the appellant committed the offences in respect of which the jury returned verdicts of guilty.
6. Apart from the email, there was further support for S's allegations that the appellant had sexually interfered with her in the manner alleged. In that regard, the appellant gave evidence in which he agreed that he had, on occasions, put S to bed and read her stories. It was uncontroversial that this was encouraged by S and that it occurred with her parents' consent.
7. As the appellant's wife apparently warned him, this sort of behaviour might be considered unusual and even raise suspicions. However, of itself, it would not necessarily suggest that the appellant had a sexual interest in S. The appellant was a long-term and well-liked friend of S's family. Nevertheless, the fact that the appellant would regularly lie down in bed with S and read her stories demonstrated that he had opportunities to sexually offend against S, particularly in the manner alleged in count 1.
8. As we have already observed, it must be assumed that the jury, having had the benefit of seeing and hearing the appellant give evidence and having seen his record of interview with the police, rejected his denials that he had committed the offences the subject of counts 1 and 2. Based on the record of the trial, this was well open to the jury.
9. We have already referred to the appellant's explanations about the email he sent to his wife in the early hours of the morning of 1 December 2021. For the reasons we have already given, it was open to the jury to conclude that those explanations were patently false.
10. The appellant also admitted at the trial that he had lied to the police in his record of interview when he told them that he had not heard about S's allegations from her parents. The jury were told that they could take this lie into account as a matter relevant to the appellant's credibility.
11. In circumstances in which it was plainly open to the jury to conclude that the appellant had been untruthful in these respects, it was also open to the jury to reject the appellant's denials that he had behaved in a sexual manner towards S, on the basis that his evidence was not credible or reliable generally.
12. The appellant's evidence does not give rise to a reasonable doubt in our minds that he committed the offences charged in counts 1 and 2. It was open to the jury, who had the benefit of seeing and hearing the appellant give evidence, to reject his evidence.
13. Based on our examination of the record of the appellant's trial, we are not persuaded that the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of the appellant's guilt in relation to counts 1 and 2. On the contrary, it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant of both of those offences. Although there were some unsatisfactory aspects of the evidence given by S, after independently reviewing all of the evidence adduced at the appellant's trial as a whole, we do not think that S was a witness whose evidence could not be accepted on matters that were critical for proof of the offences charged in counts 1 and 2.
14. Ground 3 has no reasonable prospect of success and leave in respect of it should be refused.

1. By ground 4 the appellant argues that there was a miscarriage of justice occasioned by an 'aggregate of errors'. In that regard, the appellant submits that if the court is not persuaded that an individual ground of appeal has merit, the combined weight of all three of the other grounds of appeal establishes that there was a miscarriage of justice.
2. As we have concluded that grounds 2 and 3 should be dismissed, there are no errors to be 'aggregated'. Accordingly, ground 4 does not have a reasonable prospect of succeeding, and leave to appeal on that ground must be refused.

1. By an application in an appeal dated 26 August 2024, which was supported by affidavit sworn by the appellant on 30 August 2024, the appellant applied for an order that he be permitted to rely on several documents annexed to that affidavit in support of his appeal against conviction.
2. At the hearing of the appeal, an order was made that annexures 'B' and 'C', which comprised an updated Practice Direction 7.4 schedule and an updated list of authorities, stand as the appellant's Practice Direction 7.4 schedule and as his list of authorities.
3. In relation to the other annexures, 'A', 'D' to 'I', and 'K' to 'M',[109] the court indicated that it would rule on the admissibility of those documents in these reasons.
4. Annexures 'A', and 'D' to 'I' comprise various extracts from reports, including by the Western Australian Law Reform Commission, and various academic articles the appellant wished to rely on in support of ground 1. As we would allow ground 1 without reference to any of that material, it is unnecessary to decide this part of the appellant's application in the appeal.
5. Annexure 'K' is a timeline prepared by the appellant that relates to digital recordings that S's sister, B, made of a conversation she had with S on 22 November 2021, after B had discovered S looking at pornography on her iPad. The appellant submitted at the hearing of the appeal that the timeline demonstrated that, contrary to the prosecution case, S did not make a spontaneous complaint to her sister and that she must have been placed under pressure to make that complaint.
6. However, the appellant successfully objected to the recordings that were made by S's sister being adduced in evidence at his trial. Accordingly, it is now not open to him to attempt to rely on the recordings on appeal. We would refuse the appellant leave to adduce annexure 'K' on the appeal.
7. The appellant did not make any submissions about annexures 'L' or 'M', and so the relevance of those two annexures is unclear. It follows that we would also refuse the appellant leave to adduce annexures 'L' and 'M' on the appeal.

1. For the foregoing reasons, we would make the following orders:
   1. Leave to appeal is granted on ground 1.
   2. Leave to appeal is refused on grounds 2, 3 and 4.
   3. The appeal is allowed.
   4. The convictions on counts 1 and 2 are set aside.
   5. The appellant is to be retried.

1. I have had the benefit of reading in draft the reasons of Mazza and Vandongen JJA. I differ from them in only one, albeit critical, respect. The issue on which I have reached a different view is whether it was reasonably open to exercise the discretion to admit the child witness interview. In my view, in the particular circumstances of this case and having regard to the informal nature of child witness interviews, it was open to exercise the discretion to admit the interview of S.
2. It has long been recognised that children face many obstacles to their fair participation in the criminal justice system.[110] That is particularly the case where children are complainants in cases of alleged sexual abuse. These disadvantages arise not only in respect of court proceedings but at the investigation stage. Children may be intimidated by adult authority figures who are unknown to them. Understandably, they may be reluctant to speak to adult strangers, particularly about allegations of sexual misconduct. They may be too embarrassed or lack the vocabulary to give a concise account of what occurred. They may mistakenly think they are to blame for what occurred and will suffer adverse consequences if they reveal sexual acts committed against them. They may believe that information is private or cannot be revealed, particularly if the alleged perpetrator has sought to bind them to silence by promises of secrecy. They may be intimidated by the formality of court proceedings and traumatised by the prospect of having to confront their alleged abuser. All of these factors, and more, have historically acted as a significant impediment to

the reception of evidence from child complainants in sexual abuse cases.

1. In this State, as in many other jurisdictions, the legislature has recognised the need to make changes to laws relating to procedure and evidence to allow for the vulnerabilities of child witnesses.[111] These changes have made it possible for evidence of child witnesses to be more readily received, whilst still ensuring that accused persons receive a fair trial.
2. These changes to the law include the provision that is central to the determination of this case, namely s 106HB of the Evidence Act 1906 (WA). The effect of that section is to make a visual recording of a child witness interview admissible as the evidence‑in‑chief of the child. There are several advantages to this course. It avoids the child having to give repeated accounts of their experience, with the obvious risk of re‑traumatisation. It also preserves the first account given by the child to a person in authority, when their memory of the events is likely to be clearer. The delays inherent in the criminal justice system are often disadvantageous to child witnesses whose memory of the events may fade, particularly if they are very young or do not fully appreciate the significance of those events. The provision does not, however, entirely obviate the need for a child to give evidence. A child witness interview recording is admissible only as the evidence‑in‑chief of a child witness. Thus, it is only admissible where the child is available at the trial (or in pre‑recorded evidence) to be cross‑examined.
3. Section 106HB of the Evidence Act was introduced by the Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004 (WA). In the relevant part of the second reading speech, the Attorney General said:[112]

The third major area of reform relates to the visual recording of interviews of children suspected of having been sexually or physically abused, or child witnesses. In the Australian Institute of Criminology study I previously referred to, 70 per cent of children gave their evidence at trial and just 30 per cent fully pre‑recorded their evidence months before the trial.

The process of visually recording a child's evidence was a recommendation of the Joint Response to Child Abuse Taskforce and the Gordon inquiry, and has significant benefits for the child. The interviews are completed by skilled and professional people who are aware of the child's needs, and they are taken in a more conversational style in 'child friendly' surroundings. This allows the child to feel more secure, less distressed by the experience, and hopefully facilitates their delivering a more free‑flowing account of what took place. As a result of these reforms, children will be required to describe what happened to them less often, as their accounts can be viewed by professionals who may be treating them, and ultimately used in court proceedings. At the same time, interviews will be more transparent, accurately recording the environment and setting in which the interview took place, thereby reducing the incidence of allegations against the investigating officers about how the evidence was obtained. Interviews will also take much less time to record than they presently take.

The Bill further provides that multiple interviews can be visually recorded and that access to the recordings be restricted. The visual recording may stand as the evidence‑in‑chief in a trial and the grounds on which courts may exclude visually recorded evidence are limited to when the prejudicial effect of the evidence exceeds its probative force. When a visually recorded interview is used in a trial, a number of judicial directions must be given to the jury. Counsel will also maintain the right to elicit further evidence from the child in some circumstances. It is also the experience in Victoria and New Zealand that the visual recording of interviews has increased the rate of guilty pleas in these matters.

1. As is apparent from the second reading speech, there were seen to be real advantages to child witness interviews taking place in 'child‑friendly' surroundings and being conducted in a more conversational style. One such advantage is that a child who feels more secure and less distressed by the experience is more likely to be willing to give an unimpeded account of what occurred. The relative lack of formality was not merely an accepted feature of child witness interviews but a necessary means by which some of the disadvantages arising from the vulnerability of children could be overcome.
2. Typically, and consistently with what was said in the second reading speech, child witness interviews are less formal than interviews with adults. The interview is usually conducted in a room that is similar to a sitting room and is furnished in a way that is warm and welcoming. The child is often allowed to move around or play with toys. Recording equipment is usually discrete so as not to be distracting to the child. Questioning is by a trained child witness interviewer and is more conversational in style and adapted to the age and education of the child. The intention is to put the child at ease so that they feel safe making revelations about adults who are often in a position of power over them. The objective is to remove impediments that may cause a child to be reluctant to talk.
3. Whilst there are some prescribed rules for the conduct of interviews with children, those rules do not extend to any requirements regarding the positioning of the child with respect to the video camera. This is unsurprising as requirements of that type would be likely to undermine the intended informality of child witness interviews. The relevant rules are contained in the Evidence (Visual Recording of Interviews with Children and Persons with Mental Impairment) Regulations 2004 (WA) (Evidence Regulations). Those rules are confined to a requirement that, as far as practicable, statements by the child not be elicited by the use of leading questions,[113] and requirements to ensure that the child understands that participation is serious, that there is an obligation to tell the truth, and that the child is able to understand and respond rationally to questions.[114] There is also a requirement in s 106HA(1)(a) that the interview be conducted by a person of a 'prescribed class'.[115]
4. In making child witness interviews admissible it is apparent that Parliament appreciated the relative informality of such interviews as compared to giving evidence in a court. In my view, when determining whether the discretion in s 106HB(1) should be exercised to admit a visual recording of a child witness interview, comparisons with how court testimony would be conducted are not useful. There are many things that may occur in the course of a child witness interview that would not be permitted when giving evidence in a court. For example, in an interview the child may be permitted to move around, sit on the floor, play with toys and tell their story in a way that may involve digressions. It would be wrong to view the adequacy of a child witness interview based on what would happen in a court.
5. It is true that when making an assessment of the credibility of a witness a jury is entitled to consider the demeanour of the witness. Credibility is, of course, critically important in cases involving sexual offences where the complainant is the only witness for the prosecution as to the alleged events. Demeanour means conduct, the way of acting or behaviour, especially towards others.[116] Demeanour is not confined to facial expression. It can include other elements, such as tone of voice, the speed or manner of delivery, and the physical behaviour of the witness. Ideally the face of a witness should be visible when they are giving their evidence. However, I would hesitate to conclude that an accurate assessment of the credibility of a witness is impossible unless their face can always be seen. As I have pointed out, there are other matters relevant to the question of demeanour. Further, credibility is not simply a function of demeanour but of the combination of a range of factors that also include clarity and consistency.
6. In the present case, it is relevant to consider why S chose to hide under the table and, later, behind a chair during the course of the child witness interview. It is apparent from the interview that it was conducted at a regional police station in a room that was not specifically furnished for the conduct of child interviews. The formality of the room, in that S was initially seated on an upright chair at a table opposite the interviewer, was not ideal. The video camera was very prominently situated close to the table at which S and the interviewer were seated. It is apparent that the camera made S self‑conscious and reluctant to speak about the allegations. An observer may well conclude that it was for this reason, and not because S was not telling the truth, that she sought to hide. That aspect of her behaviour was relevant to her demeanour.
7. S's face is fully visible at the start of the interview and briefly at other times as she raises her head from behind the table or an adjacent chair. The jury therefore had some opportunity to assess her appearance and her sense of unease. S was clearly audible throughout the interview. However, her reluctance to talk about the allegations also manifested at times in her answers when she preferred to spell out a word rather than saying it.[117] The jury might well have concluded that S's conduct was consistent with a child who felt embarrassed and awkward about speaking to a stranger about such matters and having the conversation recorded.
8. It is also relevant to recall that the recording was only ever to be admitted as the evidence‑in‑chief of S. S was required to, and did, appear as a witness at a pre‑recording and was cross‑examined. In that pre‑recorded evidence she was visible and confirmed her evidence as to what had occurred with the appellant. Thus, in making any assessment of the credibility of S, the jury was able to take into account not merely the child witness interview but also the pre‑recorded evidence. The fact that the pre‑recording occurred two years after the child witness interview does not, to my mind, reduce the significance of the jury being able to observe the appearance of S during that evidence.
9. Whilst the ability to see a witness is usually a necessary component of testimonial evidence, it is not invariably so. Depositions of dead, sick or unavailable witnesses are sometimes admitted. On occasions, evidence is admitted of witnesses who are present only by telephone link. Sometimes the disadvantages that flow from this can justify the exercise of a discretion not to admit the evidence, but that is not invariably so. Often, as here, any disadvantage arising from an inability to see the face of the witness can be addressed by giving an appropriate direction to the jury.[118] Further, it remained necessary for the jury to be satisfied as to the accuracy and honesty of S's evidence. That requirement was not diminished or undermined by the admission of the child witness interview recording. The jury had to be satisfied beyond reasonable doubt that S was an honest and reliable witness before they could conclude that the appellant was guilty.
10. In all of the circumstances, I am unable to accept that the only reasonable exercise of the discretion in this case was to decline to admit the child witness interview. Plainly, the fact that S was not visible for much of the interview was a relevant consideration, but it did not compel the conclusion that the evidence must not be admitted. The significance of facial expressions in assessing whether a witness is telling the truth can be overstated, particularly where the witness is a child. An adequate assessment of the credibility and reliability of S could be made by the jury notwithstanding the fact that she could not be seen during most of the interview. In coming to that conclusion, I have taken into account the following factors:
    1. The age and immaturity of S.
    2. The circumstances in which S was interviewed, including the furnishing of the interview room and the prominence of the video camera.
    3. The reason why S hid under the table.
    4. The fact that S was visible at the beginning of the interview and, briefly, at other times.
    5. That S's voice, including her tone and manner of speaking, was clearly audible throughout the recording.
    6. That the interview recording formed only part of the evidence of S. S also gave evidence at a pre‑recording at which she was visible and at which she confirmed the truthfulness of the allegations made in the child witness interview.
11. Clearly it was undesirable for S to remain under the table and not be visible throughout most of the child witness interview. It would have been preferable had the interviewer not told S that she could remain where she was and, rather, had encouraged her to sit up where she was visible. However, the interviewer may well have been concerned that there was a risk that the evidence of S may have been lost if not gathered early and in a way that S was comfortable with. In any event, the fact that the recording does not show the facial expressions of S does not necessarily lead to a conclusion that the evidence should not have been admitted. That deficiency in the recording must be seen in context.
12. I also note that, in dealing with ground 3 and the question of whether the verdicts were unreasonable or unsupported by the evidence, it has been necessary to consider whether it was open for the jury to be satisfied beyond reasonable doubt that the appellant committed the alleged offences. In the circumstances of this case that means that it must have been open to the jury to conclude that the evidence of S was credible and reliable in the critical respects. I agree with Mazza and Vandongen JJA that ground 3 has no reasonable prospect of success. That conclusion has not been impeded by the nature of the child witness interview.
13. Whilst I would grant leave to appeal on ground 1, I would not uphold that ground for the reasons I have given. I agree that leave to appeal should be refused on grounds 2, 3 and 4. In my view the appeal should have been dismissed.

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

[5] S appeared to describe an occasion on which she may have sent the appellant a photo of herself; however, based on the transcript, this is unclear.

[17] B agreed with the prosecutor that the date of the conversation was 23 November 2021, however, that conversation appears to have actually occurred on 22 November 2021.

[29] This is presumably a reference to the application 'Messenger Kids', which has been referred to earlier in these reasons.

[30] Again, this is presumably a reference to the application 'Messenger Kids', which has been referred to earlier in these reasons.

[31] Video record of interview, ts 41 - 44.

[37] S's sister, B, made two recordings on her mobile telephone of conversations with S. In those conversations, S made complaints about the appellant, including that he put her hand 'under his knickers'. Ritter DCJ refused to admit those recordings under s 106H of the Evidence Act: The State of Western Australia v JDH [2023] WADC 37 [69] ‑ [70].

[38] The appellant made an application at the directions hearing before Ritter DCJ to rescind an earlier order made by a District Court judge that the recording of the interview with S be admitted at the appellant's trial as the whole or a part of S's evidence‑in‑chief. Ritter DCJ rejected the appellant's application: JDH [119]. No issue is taken on appeal that it was not open to his Honour to rescind that order.

[40] See also SJX v The State of Western Australia [2010] WASCA 243 [73] - [74].

[42] Although his Honour used the phrase 'visually recorded interview', when read in context it is plain that he was considering an argument that the recording of the interview with S was not a 'visual recording of an interview with a child' for the purposes of s 106HA(1).

[43] Pearson v Connor [2024] WASCA 49 [50], citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14]; Mohammadi v Bethune [2018] WASCA 98 [31] ‑ [36].

[46] Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 [103] (McHugh J).

[47] Oxford Dictionary of English (Online Version) (3 February 2025) 'interview' (definition 4.a).

[51] As to the question of whether the power to exclude evidence where its prejudicial effect outweighs its probative value is properly to be regarded as a discretionary power, or whether it requires an evaluative decision to be made, in respect of which there is only one correct answer, see Coomer v The State of Western Australia [2024] WASCA 133 [203] - [210] (Vandongen JA; Mazza JA & Hall JA agreeing).

[53] Police v Dunstall [2015] HCA 26; (2015) 256 CLR 403 [47]. Note that Nettle J reached the view that there should be no doubt that there is a discretion to exclude evidence on the ground that its reception would be unfair: [59].

[55] The word 'judge' is defined in expansive terms in s 3 of the Evidence Act.

[56] A 'Schedule 7 proceeding' is a proceeding that comes within sch 7 of the Evidence Act: s 106A.

[57] HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978 [2].

[58] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39 - 40 (Mason J; Gibbs CJ & Dawson J separately agreeing).

[59] Cavill v The State of Western Australia [2008] WASCA 108 [41].

[60] Ligertwood A and Edmond G, Australian Evidence: A Principled Approach to the Common Law and Uniform Acts (6th ed, 2017), par 7.1.

[61] Australian Evidence: A Principled Approach to the Common Law and Uniform Acts, par 7.2.

[62] Heydon JD, Cross on Evidence (14th ed, 2023) [17070].

[63] In the case of superior courts: Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 [21] (French CJ).

[64] In the case of inferior courts: Hogan [21] (French CJ).

[65] BUSB v The Queen [2011] NSWCCA 39; (2011) 80 NSWLR 170. See also, R v Lodhi [2006] NSWCCA 101; (2006) 65 NSWLR 573 [35] (McClellan CJ at CL; Spigelman CJ & Sully J agreeing).

[67] The relevant legislative scheme incorporates s 106A to s 106T of the Evidence Act.

[69] Elzahed v The State of New South Wales [2018] NSWCA 103; (2018) 97 NSWLR 898 [46].

[70] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.

[72] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 [38].

[76] Farnworth v The State of Western Australia [2024] WASCA 154 [33] - [35].

[77] Walsh v The State of Western Australia [2024] WASCA 78 [92].

[78] Dayananda v The State of Western Australia [2021] WASCA 11.

[79] Dayananda [126] (Vaughan JA). See also [76] (Buss P & Mazza JA).

[80] Smith v The State of Western Australia [2024] WASCA 52 [222].

[81] Goedecke v The State of Western Australia [2013] WASCA 25 [35] (Mazza JA). See also Farnworth [35].

[82] Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 [13] (Gleeson CJ & Gummow J), [31] (McHugh J); Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 [28] ‑ [29].

[83] Criminal Appeals Act 2004 (WA), s 30(4).

[84] The appellant's senior counsel did raise one issue about the cross‑examination, in the absence of the jury. However, that issue was not concerned with the fairness of the cross‑examination and, in any event, the appellant does not now complain about that aspect of the cross‑examination.

[85] Sturniolo v The State of Western Australia [2023] WASCA 147 [70].

[86] Hughes v The State of Western Australia [2024] WASCA 160 [109].

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

[89] MHS v The State of Western Australia [2024] WASCA 85 [89] - [92]. See also AKG v The State of Western Australia [2024] WASCA 139 [15] - [16].

[95] Visually recorded interview, ts 8 - 9.

[96] Visually recorded interview, ts 9.

[104] Appellant's written submissions, par 3.10.

[106] Appellant's written submissions, par 3.7.

[107] Appellant's written submissions, par 3.8.

[108] [2023] WASCA 179 (decision suppressed) [107] - [124].

[109] Annexure 'J' was not attached to the appellant's affidavit.

[110] See Law Reform Commission of Western Australia, The Evidence of Children and Other Vulnerable Witnesses, Discussion Paper, Project 87 (April 1990).

[111] See Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004 (WA); Criminal Law and Evidence Amendment Act 2008 (WA); Evidence Amendment Act 2016 (WA).

[112] Western Australia, Parliamentary Debates, Legislative Assembly, 30 June 2004, 4608 ‑ 4609 (Mr JA McGinty, Attorney General).

[115] For the requirements as to who is a prescribed class of persons, see Evidence Regulations, reg 4.

[116] Shorter Oxford English Dictionary (5th ed, 2002).

[117] Child witness interview, 25 November 2021, 11, 17 ‑ 18.

[118] The trial judge directed the jury that 'in relation to [S's] child witness interview, [the jury] may take account in [their] assessment of what [S] said that [the jury] were not able to observe her when she described what she alleges [the appellant] did to her' (ts 672).