ISN -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2021] WASCA 112 (29 June 2021)

1. The appellant was born in September 1983.[4] T was born in early 2003.[5] T's father is A and her mother is P. T has one older and two younger siblings.[6] T's family lived in a house in a country town.
2. A and the appellant were, at all material times, friends, and had been for some years.[7] The appellant has a daughter, C, who is younger than T.[8]
3. Both before and during the period of the alleged offending, the appellant and C were frequent social visitors to T's family home, often staying there for the weekend. On these occasions, the appellant would frequently consume alcohol to the point of intoxication. On the many occasions when C stayed overnight, she slept in the same room as T.

1. The State case relied predominantly upon the evidence of T.
2. It was alleged that counts 1 and 2 occurred on a night when T was about 8 years old and in year 4 at school. She said that there had been a big bonfire outside her house. According to T, the appellant entered the room in which she and C were sleeping and lay next to her. T said that the appellant started to pull at her hair, kiss her on the mouth (count 1) and touch her on her 'arse', 'guts' and her vagina. T said that the appellant inserted his fingers into her vagina (count 2).
3. With respect to counts 3 and 4, T alleged that they occurred when she was in year 5. T said the appellant came into the bedroom where she and C were sleeping. According to T, the appellant was drunk. T said that the appellant forced her to kiss him (count 3). She said that the appellant then put his hand down her pants and, after touching her vagina, inserted his fingers inside her vagina (count 4).
4. T did not immediately complain about the allegations. A complaint was not made to the police until April 2018.

1. The State, as part of its case, adduced evidence of a video record of interview between two detectives and the appellant, which took place on 25 October 2018 (VROI). In essence, the appellant denied the alleged offending. The appellant elected not to testify in his defence, but C was called as a defence witness.
2. The appellant's case at trial was not that T's allegations of what had happened to her were false, but rather that the appellant was not the offender. The defence pointed to evidence that men other than the appellant visited T's house when T was home. It was said by defence counsel that the appellant and T's parents fell out acrimoniously and that the 'bust up between the parents may have coloured and affected [T's] thinking in this matter'.[9] Thus, the defence put in issue T's identification of the appellant as the person who sexually abused her, suggesting that there were men other than the appellant who visited T's house and may have committed the alleged offences.

1. The real issue for the jury to decide in respect of each count was whether the State had proved beyond reasonable doubt that the appellant was the offender. The case proceeded on the basis that the perpetrator in both incidents was the same man who was a visitor to the house where the complainant and her family lived. In other words, it was not suggested that the perpetrator was an intruder or that it was A.

Summary of the evidence adduced at trial Evidence of T

1. T's evidence comprised a video‑recorded interview with the child assessment interview team on 25 May 2018 (VRI) and her pre‑recorded evidence before Vernon DCJ on 26 July 2019 (the pre‑recording). T's VRI and an edited version of the pre‑recording were played to the jury on the first day of the appellant's trial.

1. In the VRI, the interviewer asked T to describe the last time T was touched. T then gave an account of the allegations the subject of counts 3 and 4. T said that:

(a) The events occurred at night, when 'he was drunk'.[10]

(b) At the time, she and 'his daughter, [C]', were asleep in the boys' room.[11]

(c) After 'he' entered the room, he lay next to his daughter and then he lay next to T and told her to be quiet.[12]

(d) '[H]e' then grabbed her jaw and started to kiss her.[13]

(e) '[H]e' then put his hands under the blanket, under her pants and started 'rubbing that part and then he went lower and it started to hurt. And I tried to make him stop but he didn't'.[14]

(f) While he was rubbing her, he was still kissing her and he told her 'to be quiet and, like, not move and stuff'.[15]

(g) After he kissed her and 'tried to put his fingers inside' her, he walked out of the room.[16]

(h) When she woke up the following morning she had a shower. She wanted to tell her father 'but I felt like [the offender] was going to do something to me if I told someone'.[17] T elaborated, saying, 'I felt like [the offender] was going to hurt me'.[18]

1. The child witness interviewer then asked T about 'the first time he did it'.[19] T then gave a description of the acts the subject of counts 1 and 2.
2. T said that at the time she was in year 4. C, too, was also in the room.[20] T recalled that on the night in question there had been a 'big bonfire outside'. She recalled that it had been cold outside.[21]
3. T said that 'he' came into the room in which she and C were sleeping and lay next to her.[22] The man was drunk.[23] 'He' then pulled her hair and kissed her. 'He' rubbed her 'arse', her 'guts' and then touched and rubbed her vagina. T described the man as putting 'his hands down my pants and started touching my vagina'.[24] After touching her 'clit bit', 'he' then proceeded to 'put his fingers more further down inside. He put his fingers inside of me'.[25] T said that she tried to wake up C, but C could not be woken. T said that she went to school the following day.[26]
4. T said that she did not understand what had happened to her until she was in year 8.[27]
5. The interviewer sought clarification from T about some of the things that she had said about the two incidents. T clarified that when she said that he had 'tried to put his fingers inside her' or that when she referred to 'that bit', she was referring to her vagina.[28] T also explained that the person that she identified as C was the appellant's daughter,[29] and that when she had referred to the perpetrator as 'he', she was referring to the appellant, whom she named.[30] T said that she recalled that when the first incident occurred, she was wearing shorts, but no shirt. She could not recall what she was wearing on the last occasion.[31]
6. T said that the first person she told about the incidents was her counsellor in or about March 2018.[32]

1. T's evidence was pre‑recorded on 26 July 2019, 14 months after the video‑recorded interview.
2. In examination‑in‑chief, T confirmed that she had recently viewed the VRI and that she had told the truth 'about what happened with [the appellant]'.[33] T said that there were some things she wished to 'correct'.[34] With respect to counts 1 and 2, T said:

(a) She could no longer recall trying to wake C up after the incident.[35]

(b) While in March 2018 she had told her school counsellor about what had occurred, the first person she told about what had happened was her boyfriend in about November 2017.[36]

(c) When she referred to the appellant grabbing her jaw, she remembered that he did not do so roughly. She recalled him 'grabbing my jaw to kiss him'.[37]

1. T said that before the incidents the subject of the counts on the indictment, the appellant had, on 'three other times', 'softly graze[d] past my back and around my stomach and just play[ed] with my body and stuff'.[38] She said that at the time these things happened, she 'thought [the appellant] was just trying to put me to sleep or just being nice, like, I saw him as a [sic] uncle'.[39]
2. T said that the two incidents the subject of the charges took place in 'the boys' room', 'the boys' being her brothers.[40] T explained that on both occasions C and her slept in separate single beds and that on each occasion C was asleep.[41]
3. T said that on neither of the occasions the subject of the counts on the indictment did she say anything to the appellant, nor did the appellant say anything to her.[42]
4. In connection with the first incident (counts 1 and 2), T said that after the appellant committed the offences, he stayed in the room and lay in C's bed.[43]
5. Towards the conclusion of her examination‑in‑chief, the following exchange took place concerning how she was able to identify the offender as the appellant:[44]

How could you tell that it was the accused?‑‑‑He was the only male in the house and his daughter was there. And I could just tell that it was him.

How well did you know [the appellant] when this was happening?‑‑‑He was a family friend and he would usually come over every day, so I knew it was him.

1. In cross‑examination, T said that the first incident (counts 1 and 2) occurred in 2012 and that the second incident (counts 3 and 4) occurred in early 2013.[45]
2. T said that on the night of the bonfire C and the appellant were present. She could not recall if any of her father's other friends were there.[46] She did not recall that on the night of the bonfire she and the other children watched a scary movie called Bloody Mary.[47] The potential significance of the movie arises from C's evidence as recounted at [58] below.
3. T denied that on the night of the bonfire the appellant did not sleep at her house.[48]
4. T denied that when C stayed over that they would sleep in the girls' room and not the boys' room.[49]
5. T confirmed that the two incidents occurred in the boys' room.[50] She said that on these occasions the door to the room was closed and that the room was pitch 'black'. She agreed with defence counsel that the room was completely dark. T confirmed that the person who came into the room did not speak to her.[51]
6. Defence counsel questioned T about her nomination of the appellant as the offender in each incident. T denied that the offender was somebody other than the appellant[52] and that she might have been honestly mistaken in her identification of the appellant.[53] T agreed that she assumed that the appellant was the offender because C was also in the room at the time.[54]
7. T said that she saw the appellant 'every day ... when my dad would finish work with him' and that she saw C mostly on the weekends.[55]
8. T said that when the appellant stayed overnight at her house, he sometimes slept on the couch in the lounge room.[56]
9. T agreed that the appellant was not the only male friend of her father's who stayed overnight at her house. She agreed with defence counsel that, in 2012, her father used to have quite a few male friends over at their house. She further agreed that her father and his friends would drink beers on the patio.[57] She denied that any of her father's other friends were present at the house on the night of the bonfire.[58]
10. In response to cross‑examination by defence counsel, T agreed that, towards the end of 2012, there was 'a bit of a problem' between her parents, on the one hand, and the appellant's mother, on the other hand. T recalled that the appellant's mother 'fired' her mother from her employment.[59] As a result of this, T's parents and the appellant fell out. T denied the proposition put by defence counsel in cross‑examination that, after this incident, the appellant featured frequently in conversation between her parents and that, as a result of his name being discussed so often in conversations, she (wrongly) thought that the person who had touched her was the appellant.[60] Defence counsel then put to T that she was mistaken about who had touched her and that it was someone other than the appellant. T denied these propositions.[61]
11. T was asked about an answer that she gave in the VRI where she said, 'It happened - well, with him, he did it twice to me, I'm pretty sure'. She explained that she had expressed herself in that way because, at the time of the interview, she was 'really nervous' and 'scared'.[62] T said that she had not intended by the answer to convey that the offender may have been someone other than the appellant.[63]
12. In re‑examination, the prosecutor asked T whether she thought the offender must have been the appellant, or did she know that it was the appellant, to which she replied, 'I know it was [the appellant]'.[64]

1. P recalled being introduced to the appellant in approximately 2008.[65] Over time, the appellant and C were frequent visitors to the family home, coming around 'pretty much every weekend'.[66] When asked how often the appellant and C would both stay over, she said two or three times a month.[67] P also said that, while others also stayed over, it was mostly the appellant and C.[68] C stayed over without the appellant 'probably once, twice a month'.[69] Under cross‑examination, P said people other than the appellant and C slept over only occasionally. She said that a man known as Liber slept over 'maybe ... a couple of times'.[70] The appellant and C stopped coming around regularly in December 2012.[71] P explained that her partner, A, and the appellant's mother had an argument, as a result of which she (P) resigned or was fired from her employment with the appellant's mother on 14 December 2012.[72] P could not recall whether the appellant or C came to her house in 2013.[73]
2. P said that, during the cooler times of the year, after the sun went down, mainly on weekends, a fire would be set in a tyre rim in the backyard. Sometimes the appellant, C and other people were present.[74] P said in cross‑examination that she recalled one particular fire in 2012 at which the appellant and C were present when some of the backyard area was burned.[75] P described it as 'a large fire' that 'was controlled'.[76] P could not recall whether, on the night of the big fire, the children watched a film called Bloody Mary.[77]
3. P testified, in effect, that C slept over frequently at the family home. She did so on occasions when the appellant stayed over, but she also had sleepovers without the appellant. P said that when C slept over, T and C slept in what was usually the boys' room, but sometimes they slept in the girls' room and that they may have slept on a mattress in front of the TV.[78]
4. P said that, on occasions in 2012 and 2013, one of her uncles stayed at the family home.[79] P agreed that, on some occasions, some of A's friends would come to the house after work or on weekends. She agreed that sometimes her husband's mates would drink very late into the night and that one of them, 'Liber', stayed a couple of times, but she denied that anyone else apart from the appellant slept overnight.[80]

1. A testified that he met the appellant in or about 2007 or 2008. From that time onwards, he and the appellant 'became really good friends'.[81] The appellant and C stopped coming over to A's home in approximately mid‑2013.[82] Between about mid‑2007 and 2013, the appellant and C came over to A's house most weekends.[83]
2. Whenever the appellant and C came over to A's house, A and the appellant would always drink alcohol together. Frequently, they would 'drink to [get] drunk'.[84]
3. Apart from a couple of occasions when C went for a sleepover at A's place by herself, C would stay over with her father.[85]
4. A said that when the appellant and C came over on weekends, other people would also come over to have 'a couple of beers and watch the football'.[86] One of them was a man known as 'Liber'. A said that sometimes Liber stayed overnight at the house, but he stopped doing so from around 2010.[87] A agreed that there were times when the appellant, C and Liber all stayed overnight at A's house.[88]
5. A said that T and C would usually sleep in the boys' room.[89] When this occurred, T would sleep in one bed and C would sleep in the other.[90] A said that when the appellant slept over, the lounge room would be set up for a bed, but A would wake up to find the appellant sleeping in the same bed as C.[91]
6. A recalled that there was a big fire in the backyard in 2010.[92] A denied that this fire took place in 2012. A recalled the big fire was lit at about 11.00 pm when the children would have been asleep.[93] A said that on most weekends in the dry season he would light a fire in a fire‑pit he built from the rim of a D9 loader.[94]
7. A said that, in about January 2013, the appellant's mother came around to his house to talk to P. A said that he did not like the way that the appellant's mother spoke to his partner.[95] A recalled that P resigned from her work in January 2013. A agreed that he was very upset as a consequence of the argument between the appellant's mother and P.[96]

1. Detective Senior Constable Kelly Grootveld testified that T first complained to police in April 2018, and another detective conducted the VROI with the appellant on 25 October 2018. An edited version of the VROI was admitted into evidence and played to the jury.[97]
2. In the VROI, the appellant:

(a) Consistently denied indecently dealing or sexually penetrating T.

(b) Said that he met A in 'basically 2002'[98] and they were close friends until a falling out occurred between his (the appellant's) mother and A's wife, which he said happened around 2013 or 2014.[99]

(c) Stated that his daughter, C, was born in 2006.[100]

(d) Said that he and A were 'good mates' and that he would go around to A's house every afternoon after work, where they would 'sit down and have quite a few beers', talk and watch sport on television.[101]

(e) Said that he would 'very rarely' stay the night at A's house, but he did so if he was 'too drunk to walk home'.[102]

(f) Said that when he went to A's house, on average, he would drink anywhere up to a carton of beer.[103]

(g) Said, at a guess, that he stayed over at A's house 'five or ten [times] maybe'.[104] When he did so, he slept on the couch.

(h) Said that when C stayed over at A's house, C would sleep in T's room or 'quite possibly' in the boys' room.[105]

(i) Accepted that he was an alcoholic.[106]

(j) Said that when C stayed at A's house, he would check on her after she fell asleep.[107]

(k) Recalled quite a few nights when there were bonfires in the backyard at A's house.[108]

(l) Denied having any sexual attraction towards children.[109]

(m) Denied the specific allegations the subject of the counts in the indictment. He also denied that it was possible that the offences occurred on occasions when he was drunk.[110] When the precise allegations which constituted counts 1 and 2 were put to the appellant, he said, 'This is not what happened at all. I know and I'm being dead set honest with ya'.[111]

(n) When the specific allegations the subject of counts 3 and 4 were put to the appellant, he said, 'I did not do that'.[112]

(o) Stated that there were other 'drinking mates' who would come over to A's house and who stayed overnight.[113]

1. As we stated earlier, C testified for the defence.
2. C said that, in 2012, she 'sometimes' slept at T's place.[114] She said that she slept in T's room on a mattress on the floor between two beds.[115] She said that she and T were not permitted to sleep in the boys' room.[116] C testified that the appellant slept 'on a chair out the back'.[117] C testified that the appellant never came into the room in which she was sleeping with T and never lay in the same bed as C.[118]
3. C said that she recalled an occasion when a fire broke out in the backyard at T's house and burnt most of the grass and some plants.[119] At the time, C, T and T's brothers were in the pool. After the fire, C said she watched a scary movie called Bloody Mary, which was about spiders, and they slept on the two mattresses on the floor in the lounge room.[120]
4. In cross‑examination, C denied the proposition that she and her father went over to T's place 'quite a lot'. C said that they visited 'sometimes'.[121] C denied the proposition that it was possible that she and T slept in the boys' room while the boys stayed in T's room.[122]

1. Towards the end of the first day of the trial, in the absence of the jury, his Honour sought submissions from counsel as to any specific directions that he should give in his summing up. Neither counsel sought any direction on identification. The prosecutor informed his Honour that the State did not allege that any of the three prior occasions referred to by the complainant in her pre‑recorded evidence were indecent.[123]
2. The State closed its case early on the second day of the trial.[124] Prior to the appellant making his election whether or not to give evidence, and again in the absence of the jury, the trial judge referred to the 'Domican issue'.[125] His Honour told counsel that the jury would be directed 'that they would have to be satisfied that it was this person not someone else', but expressed reservations as to whether a 'special direction on identifications [sic] required other than just the context of direction as to the importance of identification as an element that must be satisfied of beyond reasonable doubt'.[126]
3. The prosecutor responded that she had raised the issue because the evidence as to identity 'is in two parts', being 'recognition evidence, given by [T] that she knew it was [the appellant]', and 'There's also circumstantial evidence in terms of him being the only male in the house'.[127]
4. The prosecutor said that, to the extent that the complainant gave recognition evidence, she thought that it may be appropriate for a Domican warning to be given. She added that she understood defence counsel's position to be that such a direction should be given.[128]
5. After the close of the defence case, the trial judge said, in the absence of the jury, that he had some difficulty with the need for a recognition direction in the circumstances of the case as the complainant had known the appellant virtually all her life.[129]
6. His Honour said that he would remind the jury of the need to be certain that it was the appellant who did the acts complained of, and of the importance of the question of identification and some general warning, but he did not think that a specific warning in a Domican sense was required.[130]
7. Neither counsel took exception to his Honour's foreshadowed direction.[131]

1. The prosecutor identified the critical issue for the jury to decide as whether the appellant was the offender.[132]
2. The prosecutor submitted that it did not appear that T's honesty was in issue, but, rather, the question as to her identification of the appellant depended upon her reliability.[133] In this regard, the prosecutor observed:

(a) T testified about three other incidents prior to the occasions the subject of the indictment in which the appellant had touched her, and that she thought at the time he was just trying to get her to sleep or comfort her.[134]

(b) T testified that she knew the appellant well on the basis that he had visited T's house just about every weekend over a period of years and, in fact, had known him for most of her life.[135]

1. The prosecutor submitted that T's 'identification' of the appellant was reliable, having regard to the 'surrounding circumstances',[136] including that:

(a) The incidents happened when C and the appellant were at her house.[137]

(b) The evidence established that, at the time of the incidents, the appellant was the only male in the house (other than T's father).[138]

(c) While other men had been drinking and socialising at her house, only 'Liber' stayed overnight.[139]

(d) P had testified that if C stayed overnight, the only male present (other than A) was the appellant.[140]

(e) T's evidence that the appellant lay next to C was consistent with A's evidence that he would often find the appellant in the same bed as C.[141]

1. As to the 'big bonfire', the fire described by T on the night of the incident the subject of counts 1 and 2 may not have been the same bonfire as that described by the adult witnesses. T's description did not match the circumstances of the big bonfire as described by the adult witnesses.[142]
2. The prosecutor submitted that the theory that T's recognition of the appellant was connected to the falling out which occurred between T's parents and the appellant's mother was, in substance, farfetched.[143]

1. Defence counsel focused on the issue of identity in his closing address. He submitted that there was no evidence that it was the appellant who came into the room and committed the offences in the indictment.[144]
2. Defence counsel called into question the reliability of T's evidence that the appellant was the offender, drawing the jury's attention to the following:[145]

(b) T's attacker did not speak and therefore T could not say she recognised the appellant because of his voice.

(c) There was no evidence that T felt any facial stubble on her face or that she smelt alcohol on her attacker. (As to this point, the trial judge later told the jury that there was no evidence about whether or not the appellant had facial hair at the time.[146])

1. Defence counsel submitted that T's evidence was, in substance, based on a dubious assumption, namely that the appellant was her attacker because C, the appellant's daughter, was lying next to her.[147]
2. Defence counsel submitted that the offender 'could have been anyone'.[148]
3. It was submitted on behalf of the appellant by defence counsel that T's identification of the appellant as the offender may have been as a result of T associating herself with the argument of her parents against the appellant and his family.[149]

1. His Honour summed up the case shortly after the closing addresses of counsel.
2. His Honour gave orthodox and correct directions as to:

(a) The burden and standard of proof.[150]

(c) The assessment of a witness's credibility involving considerations of both honesty and reliability. In the course of this direction, his Honour pointed out certain inconsistencies in T's evidence.[152]

(d) The State's case against the appellant involved a combination of both direct and circumstantial evidence. His Honour explained the difference between these concepts and directed the jury as to the rules for drawing inferences in a criminal trial.[153]

(e) The appellant's right to silence at trial.[154]

(f) How the jury was to treat the statements made by the appellant in his VROI.[155]

(g) The elements of the offences charged in the indictment, including as to the element of identity. We will return to his Honour's directions on identity shortly.

(h) T's delay in complaining about the offences.[156]

(i) The cross‑admissibility of the charges.[157]

(j) The availability of alternative verdicts of indecent dealing in respect of counts 2 and 4.[158]

(k) A full direction in accordance with Longman v The Queen,[159] including directions that the jury was required to carefully scrutinise T's evidence and that delay had caused forensic disadvantage to the appellant.[160]

(l) The necessity to decide the case only on the evidence and to guard against deciding the case based on sympathy or prejudice.

1. Relevant to grounds 1 and 2 is the direction his Honour gave concerning the element of identity. His Honour gave the direction in the course of his directions as to the element of identity in counts 1 and 3. He instructed the jury that these directions applied equally to the element of identity in counts 2 and 4:[161]

The first [element] is one of identity. Was it [the appellant] who committed the offence that you're then considering? Identification is crucial in this case. It's a critical issue. The State must prove that the accused did the things that it says constituted the offence, not some other person. The accused says it wasn't the accused and that it could have been someone else, or it may have been someone else. You need to be satisfied that it was the accused. The accused was known to [T] effectively for the whole of her life. He was her father's close friend, a friend who regularly visited, ate, drank and slept at [their] house - that his daughter [C] was close friends with [T].

The recognition of the accused by [T] as the person who committed the offences against her is a crucial issue in this case. The State says to you that [T] correctly recognised the accused. The accused says she's mistaken. It's a matter of experience with judges and lawyers, which might not be your experience, that sometimes honest mistakes in recognition may occur, that innocent people have been wrongly convicted on the basis of faulty recognition evidence. This has occurred in cases where witnesses apparently are honest, careful and convincing.

It's perhaps easier to understand the possibility of error where the evidence is given by someone who has not previously known the person, but errors may even occur where the person is known to the person - or reasonably well known to that person. Mistakes have sometimes been made in recognition even in relation to close relatives and friends. You must consider how well [T] knew the accused. How did [T] know that the accused was the person who touched her on each occasion? How often and in what circumstances had [T] previously seen him? Was she familiar with the accused's appearance?

[T] regarded [the appellant] as her uncle. She referred to - [C] referred to [T's] father as [an uncle]. It's a matter of experience that witnesses may honestly believe their identification is correct and then give convincing evidence. In this case, [T] - or the State relies on the evidence of [T] both from her knowledge of the accused over the fact of - effectively, at that time, for essentially the most of her life, if not all of it, and also inferentially, that is to say, from both the occasion and circumstance.

You will recall that when [C] - correction - when [T] was asked as to how she knew it was him, she said because [C] was sleeping on [sic] her room, that the accused, on one occasion, was later on the bed with [C]. [A] gave evidence that he had seen his friend, the accused, in the bedroom on the bed of [C] on occasion. That evidence was seemingly unchallenged and supported, I think, somewhat by the accused's statement to the police. Before you can convict the accused, you must be satisfied beyond reasonable doubt that it was the accused and not some other person.

I remind you of the warning I have just given you about the caution to be observed in drawing inferences in a criminal trial. The evidence that the State points to in relation to the issue of identification is that [T] has identified the accused by association with [T], by being in the bedroom and, more particularly, by the fact that she knew him for such a long time. That he had on prior occasions rubbed her back and touched her and that there was effectively a relationship - a close relationship between them. (emphasis added)

1. The four grounds of appeal relied upon by the appellant are in the following terms:[162]
   1. The trial judge erred in law in directing the jury that the complainant's evidence amounted to recognition evidence in circumstances where the complainant's evidence relied on inferential reasoning and did not rely on any form of sensory perception.
   2. The trial judge erred in law by failing to give an adequate Domican direction.
   3. The trial judge erred in law by failing to provide fair and balanced directions to the jury as to the weaknesses of the complainant's inferential identification of the appellant.

(a) The trial judge referred to the State's arguments supporting the correctness of the complainant's identification.

(b) The trial judge invited the jury to use contextual evidence to support the complainant's identification which was not a permissible use of that evidence.

1. The verdicts were unreasonable and not supported by the evidence

(c) There was no reliable evidence positively identifying the accused as the offender.

(d) The only evidence of identification was inferential.

(e) The inference that the accused was the offender was not the only rational inference open on the evidence.

1. In his written submissions in support of ground 1, the appellant asserts, in essence, that T gave no admissible evidence capable of being characterised as recognition evidence. He contends that the State's case was based entirely on inferential reasoning.[163] Accordingly, the appellant asserts that his Honour erred in giving the direction set out at [79] above, in which his Honour directed the jury, in effect, that a critical part of the State's case on the element of identity was T's evidence that she recognised the appellant as the perpetrator of each offence.
2. The respondent submitted, in substance, that the State's case at trial, on the issue of identity, comprised both T's recognition evidence and inferential reasoning. Accordingly, his Honour did not err as alleged.

1. At [94] below, we set out the difference between recognition and identification evidence. As will become apparent, recognition evidence describes the evidence of a witness who recognises an accused as the offender in circumstances where the accused was previously known to the witness or had previously been seen by the witness, other than at or near the crime scene. There are, however, instances in which recognition evidence may, in substance, resemble identification evidence.
2. The evidence adduced at trial was to this effect. On the preponderance of the evidence the appellant and A met in about 2007 or 2008. Their friendship developed to the point where the appellant and his daughter, C, would stay at T's family home very frequently. T said the appellant usually visited the house every day. The appellant was an uncle figure to her. There can be very little, if any, doubt that by the time of the offending (2012 to mid‑2013) T knew the appellant very well and could easily recognise him.
3. With respect to the first incident (counts 1 and 2), T said in her VRI that the man she later said was the appellant entered the bedroom where she and C were sleeping, lay next to her and kissed her, touched her body, and, eventually, digitally penetrated her vagina. In her pre‑recorded evidence, she confirmed the truth of this account.
4. With respect to the second incident (counts 3 and 4), in her VRI, T said the man she later named as the appellant entered the room, lay next to C, then lay next to T, kissed her, and then digitally penetrated her vagina. Again, T confirmed the truth of this account in her pre‑recorded evidence.
5. Having regard to the combination of T's familiarity with the appellant, her very close physical contact with the person whom she identified as the appellant (being face‑on‑face), and her evidence that she saw the appellant enter the room and, in the case of counts 3 and 4, lay next to C, T's testimony was admissible as recognition evidence and was properly characterised in this way at trial. It stood alongside the State's circumstantial case on the issue of whether the appellant was the offender.
6. It was pointed out on behalf of the appellant that T gave evidence from which it might have been concluded that she did not actually recognise the appellant. Rather, as the room was pitch black, T inferred that the perpetrator was the appellant. These matters were for the jury to consider and weigh, but they did not render T's recognition evidence inadmissible.
7. As the appellant's counsel ultimately acknowledged in his oral submissions, T's recognition evidence was admissible and the real point raised in ground 1 was whether the verdicts of guilty were unreasonable or unsupported by the evidence, which is the subject matter of ground 4.[164]
8. Contrary to the appellant's submissions, the State's case on the issue of identity relied upon both T's recognition evidence and inferential reasoning. His Honour was obliged to give, as he did, some direction concerning T's recognition evidence. He did not err in doing so. Ground 1 has not been made out.

1. Ground 2 is a complaint that his Honour did not give 'a comprehensive Domican warning'.[165]
2. The appellant submitted that, in the circumstances of the present case, the trial judge was obliged to 'give a comprehensive Domican warning', but failed to do so.[166] In particular, the appellant submitted that his Honour failed to refer to 'any of the factors which undermined the reliability or the accuracy of T's ability to recognise [the appellant] in the circumstances of the offending as she described them'.[167] Counsel for the appellant submitted that the direction may have left the jury with the impression that it was 'almost undisputed' that the appellant was the only adult male at the house, and that T's evidence on this point should be accepted beyond reasonable doubt.[168]
3. The respondent submitted that a Domican warning was not required in the circumstances of this case. The respondent accepted that his Honour was obliged to direct the jury on the dangers of mistaken recognition, but submitted that his Honour did so in terms which were fair and appropriate.[169]

1. There is a difference between recognition and identification evidence. The difference was described by Buss JA in Mills v The State of Western Australia:[170]

In general, identification evidence describes the evidence of a witness who identifies an accused as the offender in circumstances where the witness first saw the accused at or near the crime scene. In general, recognition evidence describes the evidence of a witness who recognises an accused as the offender in circumstances where the accused was previously known to the witness or had previously been seen by the witness other than at or near the crime scene. Where the witness's previous knowledge of the accused was tenuous, or the witness's previous sighting of the accused was fleeting, the witness's evidence that he or she recognised the accused at or near the crime scene may, in substance, resemble 'identification evidence'. The nature and character of the witness's previous connection with the accused is the crucial issue, rather than the characterisation of his or her evidence as 'recognition' evidence. (citations omitted)

1. The so‑called Domican warning derives from the following observations made by Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ in Domican v The Queen:[171]

Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case'. A warning in general terms is insufficient. The attention of the jury 'should be drawn to any weaknesses in the identification evidence'. Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence. (citations omitted)

1. A Domican warning is mandated for cases involving identification. It is not mandated for cases involving recognition. This is because, generally speaking, recognition evidence is more reliable than a stranger's evidence of identification. Nevertheless, ordinarily in cases involving recognition, a jury is reminded that mistakes in recognition, even of close relatives or friends, are sometimes made.[172]
2. However, there will be recognition cases which, having regard to the particular circumstances, involve just as much danger of mistaken identification as cases involving the identification of a stranger. In these cases, a Domican warning is required.[173] Observations to this effect were made by Blow J in Carr v The Queen[174] and by Kaye J in R v Cox and Sadler (Ruling No 12).[175]

1. As part of the summing up, his Honour indicated to the prosecutor that a Domican warning was not required because the complainant had known the appellant for her entire life, and they had been in almost constant contact.[176] We infer that his Honour did not regard such a direction as necessary, because T's evidence was recognition evidence, rather than identification evidence. Neither counsel took exception to this course.
2. His Honour's direction to the jury, set out at [79] of these reasons, clearly stated the following:

(a) The element of identity was crucial in this case.

(b) The State were obliged to establish beyond reasonable doubt that the appellant was the offender.

(d) The appellant's case was that T was mistaken in her recognition of the appellant.

(e) It is the experience of judges and lawyers that honest mistakes in recognition may occur, and that innocent people may be convicted by faulty recognition evidence, even in cases where 'witnesses apparently are honest, careful and convincing'.

(f) Mistakes have been made in recognition, even in relation to close relatives and friends.

(g) The jury must consider how well T knew the appellant; how she knew that the appellant was the person who touched her on each occasion; how often and in what circumstances T had previously seen the appellant; and whether she was familiar with his appearance.

(h) T's evidence was to the effect that she knew that the appellant was the offender because she had seen him sleeping in the room on C's bed.

(i) For the jury to convict the appellant, they must be satisfied beyond reasonable doubt that it was the appellant who was the offender and not some other person.

(j) Caution must be observed in drawing inferences in a criminal trial. The identification was, in part, inferential and based on a combination of circumstances, including that T identified the appellant having regard to the fact he was in the bedroom, that she had had a close association with him over such a long period, and that there had been prior occasions when he had rubbed her neck and touched her.

1. The direction did not isolate or identify any specific circumstances that may have affected the reliability of the complainant's evidence identifying the appellant. However, the trial had been of short duration. Shortly before the summing up, the jury heard defence counsel's closing address in which matters affecting the reliability of the complainant's evidence were raised, including inconsistencies, the poor lighting conditions in the room and the evidence that other men visited T's house at night and drank alcohol with father.[177] As the element of identity was the only element in issue in the case, it is inconceivable that the jury would not have had regard to the possibility that T was honestly mistaken in her evidence of recognition. The jury was made aware of the experience of judges and lawyers that mistakes can happen and that innocent people can be convicted as a result of mistaken recognition evidence.
2. The direction must also be seen in light of the other directions given by his Honour. The Longman direction instructed the jury that it had to be satisfied beyond reasonable doubt as to the truthfulness, accuracy and reliability of T's evidence in respect of each charge and that, because of the crucial nature of T's evidence and the seriousness of the allegation, her evidence had to be scrutinised with special care. His Honour instructed the jury that T was young at the time of the offences and that the longer the delay the more opportunity there was for error, particularly in relation to events which occurred in childhood. His Honour instructed the jury that it was a matter of common experience that the longer a person believes something has happened, the more convinced they are that it has happened, and that this can occur even if the witness's recollection is mistaken. His Honour emphasised that human memory is fallible and that honest witnesses can be wrong in their recollection. His Honour directed the jury that it would be dangerous to convict the appellant on the evidence unless, having scrutinised it, they were satisfied beyond reasonable doubt as to its truthfulness, accuracy and reliability.
3. The State's case did not rely exclusively on T's recognition evidence. The real strength in the State's case on the element of identity was the combination of circumstances upon which a jury could, on the facts of this case, conclude beyond reasonable doubt that the appellant was the offender. We will discuss this combination of circumstances in the context of ground 4. For present purposes, it is sufficient to note that his Honour gave an 'unobjectionable'[178] inference direction.
4. The present case was not an identification case. Rather, it was a case in which recognition evidence formed part of the State's case. It was not a recognition case which involved the same kind of dangers as an identification case. While it may have been preferable for his Honour to have specifically drawn the jury's attention to matters that may have adversely affected the reliability of T's recognition evidence, we are not persuaded that, having regard to the directions his Honour actually gave, he fell into error, or that those directions gave rise to a miscarriage of justice. Nor are we persuaded that the jury was left with the impression that it was 'almost undisputed' that the appellant was the only adult male at the house at the relevant times, nor that T's evidence on this point should be accepted beyond reasonable doubt.
5. Ground 2 has not been made out.

1. By ground 3, the appellant contends that his Honour's directions were not balanced as they did not adequately canvass the weaknesses of T's 'inferential identification of the appellant'.[179] The appellant submitted that his Honour was required to set out the arguments for and against the inference sought to be drawn by the State to the effect that the appellant was the offender. The appellant asserts that his Honour's failure 'to set out the strengths and weaknesses for T's inferential identification of the appellant' amounted to a 'substantial miscarriage of justice'.[180]

1. Whether a trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. The conduct of the case necessarily bears on the extent to which a judge is bound to comment on or discuss the evidence. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way.[181]
2. In the present case, his Honour plainly identified the real issue for the jury to decide in each count, namely, whether the State had proved beyond reasonable doubt the appellant was the perpetrator. Both the prosecutor and defence counsel addressed the jury on this issue shortly before his Honour's summing up. The trial was short and there can be little doubt that the evidence, particularly that of T, was fresh in the minds of the jurors. His Honour directed the jury, in effect, that the State case relied upon a combination of recognition evidence and inference. His Honour told the jury that the defence case, in essence, was that the appellant was not the offender, and that T's evidence nominating the appellant as the offender was mistaken. Further, his Honour noted to the jury the defence's argument that there were other adult men in the house who could have been the offender.
3. As the appellant points out in his written submissions, after the summing up, defence counsel drew his Honour's attention to the following portion of the cross‑examination of T in the pre‑recording:[182]

[DEFENCE COUNSEL]: So when you were asked this morning how did you know it was [the appellant], you said, 'Because he was the only man in the house and his daughter was there', is that correct?

[T]: Yes.

[DEFENCE COUNSEL]: That's an assumption on your part isn't it?

VERNON DCJ: Well, that's ...?

[T]: No, it's not, because I - he would never leave his daughter. He would always ...

[DEFENCE COUNSEL]: Sorry, can you repeat that?

[T]: He would never leave his daughter. So when he - when [C] would stay over, he would normally stay over.

[DEFENCE COUNSEL]: Yes. What I'm suggesting is that you thought it must be [the appellant] because his daughter was with you.

[T]: Yes.

1. Defence counsel, perhaps not in the clearest terms, appears to have wanted the trial judge to remind the jury of the submission he made in his closing address, that T's evidence was, in substance, based on the 'dubious assumption' referred to in [74] above. His Honour declined to give any redirection on the point.
2. In our opinion, his Honour was not required to give any redirection, particularly given that the point had been made by defence counsel in his closing address and would have been fresh in the jury's mind.
3. Having regard to the particular circumstances of this case, the summing up was not unbalanced.
4. Ground 3 has not been made out.

1. The appellant submitted that T's recognition evidence was 'very weak and unreliable'.[183] In particular, the evidence was said not to be based on any sensory perception by T, but was no more than assumption. Further, the circumstantial evidence in support of the element of identity was said to be incapable of establishing beyond reasonable doubt that the appellant was the offender. The appellant contends that there was an inference consistent with innocence reasonably open on the evidence, namely, that another adult man who had been a visitor to T's house was the actual offender.

1. The principles governing a ground of appeal that the verdict is unreasonable or cannot be supported by the evidence, were described by this court in Wells v The State of Western Australia.[184] For convenience, we will repeat what was written in that case:

The principles governing a ground of appeal that the verdict is unreasonable or cannot be supported by the evidence are well known. They may be summarised as follows.

(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;

(5) a doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt;

(6) 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 appellate 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 appellate court must set aside the verdict;

(7) 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 a Court of Appeal which has not seen or heard the witnesses called at trial.

The principles relating to criminal cases that turn upon circumstantial evidence were recently restated by French CJ, Kiefel, Bell, Keane and Gordon JJ in R v Baden‑Clay as follows:

(1) When the case against an accused rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances are such to be inconsistent with any reasonable hypothesis other than the guilt of the accused.

(2) The jury can be satisfied of the guilt of the accused only if guilt is not simply a rational inference, but the only rational inference that the circumstances permit.

(3) For an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding an accused person guilty if the inference of guilt is the only inference open to reasonable people on a consideration of all the facts in evidence.

(4) In considering a circumstantial case, all of the circumstances are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion. (citations omitted)

1. It was not disputed at trial or on appeal that the acts the subject of each charge occurred, and that T's evidence as to the occurrence of these acts was reliable. The real issue to be decided in relation to ground 4 was whether, on all the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was the perpetrator. In this regard, it is to be borne in mind that at trial (and on appeal) it was accepted that a single male perpetrator committed all four offences and that perpetrator was not T's father, A.
2. There were two categories of evidence said to support the State's case on identity. The first is T's recognition evidence that the appellant was the perpetrator. The second is the circumstantial evidence from which the jury could infer that the appellant was the perpetrator.
3. T testified that, in each incident, the offender was an adult male and was drunk. T did not give evidence that she recognised the offender's face or any other feature of his appearance. She said, in her VRI, that the offender spoke to her. However, in her pre‑recorded evidence, she said that the offender did not speak to her. T said that the offender touched her, but she did not say expressly that she identified him by reference to touch, bearing in mind, of course, that the appellant had, on T's unchallenged evidence, touched her on three occasions in a non‑sexual way while she was in her bed.
4. When asked during examination‑in‑chief in the pre‑recording why she was able to identify the offender as the appellant, T gave the answers recorded at [30] above.
5. There are four components of the answers she gave:

(1) '[The appellant] was the only male in the house'.

(4) '[The appellant] was a family friend and he would usually come over every day, so I knew it was him'.

1. The first component should be understood to mean that the appellant was the only adult male apart from A in the house at the time of the alleged offences. It appears to be derived from T's own observation. It was open to the jury to accept the accuracy of this statement.
2. The second component is clearly derived from T's own observation. So, too, is the fourth component; at least up to but not including the phrase 'so I knew it was him'. It was open to the jury to accept the accuracy of these observations.
3. The third component appears to be based on intuition. Insofar as T's evidence was based on intuition, contrary to submissions made on behalf of the appellant, this evidence was admissible. The recognition of someone who is very well known to a person may be, as Gleeson CJ and Kiefel J recognised in their joint judgment in AK v The State of Western Australia, a form of perception based upon a combination of sensory experiences and 'perhaps intuition'.[185] While Heydon J in that case did not go so far as to accept that intuition could play a part in the identification or recognition of an offender,[186] he did not expressly reject the notion that a witness may recognise a person well known to them, in part, by intuition. In our opinion, having regard to T's familiarity with the appellant, insofar as her recognition of him involved a process of intuition, this evidence was admissible, although not a matter of significant weight by itself.
4. Based on answers given by T in cross‑examination, it appears that her testimony that the appellant was the perpetrator was derived, in part, from an assumption based on C's presence in T's house, and the frequency with which the appellant visited T's house.
5. T's evidence, insofar as it was derived from assumption, was technically inadmissible, but it was not the subject of objection. No miscarriage of justice arose as a result of it, because defence counsel sought to use this evidence for the appellant's forensic advantage.
6. Of the two categories of evidence we have referred to above, the stronger, and, to our mind, the most compelling, was the circumstantial evidence from which it was well open to the jury to conclude, despite any weaknesses in T's recognition evidence, that the appellant was the perpetrator. There was a compelling body of circumstantial evidence which, when considered as a whole, enabled the jury to conclude that the only reasonable inference was that, on each count, the appellant was the offender. While we will refer below to individual aspects of the evidence, we wish to emphasise that it is the combined strength of it which is important. In our opinion, it was open to the jury to find that:

(a) The appellant was at all material times a frequent social visitor to T's home where he would, along with A and others, drink alcohol, often to excess. The appellant was a self‑described alcoholic.

(b) The appellant was a close friend of A's and was considered by T to be an uncle figure. There can be no doubt that T's parents trusted the appellant.

(c) The appellant frequently slept at T's house, as did T's daughter, C. While C had sleepovers without the appellant being present, the appellant and C would both frequently sleep at T's house.

(d) On the occasions when C slept over, she and T would usually sleep in the same room. The preponderance of the evidence was that they slept in the boys' room.

(e) When the appellant and C stayed the night, the appellant would check on C after she had gone to bed. This, in all likelihood, involved the appellant entering, at least to some degree, the bedroom in which both T and C slept.

(f) Further, A testified that he would, on occasions, wake up and find the appellant in C's bed.

(g) While men would visit and drink alcohol with A at his house until late at night and even occasionally stay over, it was open to the jury to conclude that the appellant was by far the most regular visitor to the house who stayed overnight. Other visitors such as 'Liber' and 'Uncle J' do not appear to have stayed over anywhere nearly as frequently as the appellant. The man known as 'Liber' stopped coming over after 2010, some two years before the commission of counts 1 and 2.

(h) On T's evidence, the appellant had previously physically touched her while she was in bed in order to soothe her to sleep. While this did not prove any sexual attraction towards T, it showed that the appellant would occasionally touch T in her bed at night.

1. In our opinion, the jury was entitled to conclude that the appellant, far more than any other male visitor, had the opportunity to commit the offences. He was a trusted family friend. He had previously entered the bedroom occupied by T and C to check on C. This would have aroused no suspicion. The unchallenged evidence was that the appellant touched T on three prior occasions while she was in bed. A said that he found the appellant sleeping in the same bed as C. T's evidence that the adult male who touched her was drunk, entered the room occupied by her and C, and, on one of the occasions, lay down on C's bed, was consistent with behaviours that had been exhibited by the appellant. None of the other male visitors to the house were observed to have behaved in this way.
2. It may well be accepted that the appellant was not the only other male to have visited the house to drink alcohol with A. It may also be accepted that there were occasions when other men would be in the house at the same time as the appellant and C, including overnight. However, the clear weight of the evidence was to the effect that the appellant was, by far, the most frequent visitor to the house. There was no evidence that any other male visitor had any interaction with T or C, much less that they had entered the bedroom in which T and C slept. A jury would be entitled to reason that it would have been extremely risky for such a person to have entered the bedroom occupied by T and C on two separate occasions, commit offences against T, and, on one of the occasions, get into bed with C. It was open to the jury to conclude that the theory that the offender was one of the other men who visited the house to drink alcohol with A was not reasonably open on the evidence.
3. We have not overlooked that, in his interview with police, the appellant consistently denied that he had committed the offences. For the following four reasons, it was open to the jury to reject these denials. First, the appellant's account was not able to be subjected to cross‑examination and should therefore be accorded less weight. Second, it was open to the jury to reject the statements the appellant made in the interview, including that he 'very rarely stayed at A's house' and stayed over on only 'five or 10 occasions'. Third, it was open to the jury to regard the statements made by the appellant in the interview as unreliable, having regard to his admission that he was an alcoholic at the relevant times. Fourth, the denials were contradicted by the combined force of the circumstantial evidence referred to above.
4. With respect to C's evidence, it was open to the jury to reject her evidence as unreliable. C's evidence as to the frequency in which she slept at T's house, and as to where in the house she slept, was contradicted by the evidence of T and P.
5. As stated at [76] above, it was submitted on behalf of the appellant at trial that T's nomination of the appellant as the offender was a consequence of her siding with her parents in a conflict that arose between them on the one hand, and the appellant and his family on the other. T denied propositions to this effect put to her by defence counsel. It appears far‑fetched that such a conflict would be the motive for T to falsely accuse the appellant of the offences.
6. Finally, we do not consider the question of the bonfire on the night of the first incident (counts 1 and 2) as being of any significance to the question of whether the appellant was the offender. It is clear that, over the years, there were many bonfires at T's house. Although some of the witnesses recalled an occasion on which a fire spread into the backyard, T did not specify this occasion as coinciding with either of the two incidents the subject of the charges.
7. At the appeal hearing, counsel for the appellant, correctly in our view, accepted that the 'bonfire point' did not have any relevance in the context of ground 4. Nor, again correctly, did counsel for the appellant place any store on the suggestion, raised at trial, that T identified the appellant as the offender because of the disagreement that occurred as between T's parents and the appellant's mother.[187]
8. Having assessed the trial record, and having considered the sufficiency and quality of the evidence as a whole, we do not have a doubt as to the appellant's guilt on any of the offences. In our opinion, it was well open to the jury to be satisfied beyond reasonable doubt that the appellant committed each offence. The present is not a case where the jury must have entertained a reasonable doubt about the appellant's guilt. There is no significant possibility that an innocent person has been convicted. Insofar as the State's case was a circumstantial one, the only inference reasonably open to the jury was that the appellant was the perpetrator, and there was no inference consistent with innocence reasonably open on the evidence. In particular, it was not reasonably open to conclude that another adult male was the offender.
9. Ground 4 has not been made out.

1. We would grant leave to appeal on ground 4. We would refuse leave to appeal on grounds 1, 2 and 3. We would dismiss the appeal. The orders that we would make are as follows:

(2) Leave to appeal is refused on grounds 1, 2 and 3.

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

[98] VROI ts 9. The difference between the appellant's recollection of meeting A in 2002, and A's recollection of meeting the appellant in 2007 or 2008, was of no consequence at trial or on the appeal.

[159] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79; ts 183 - 186.

[163] Appellant's written submissions, par 56; WAB 16.

[166] Appellant's written submissions, par 66; WAB 17.

[170] Mills v The State of Western Australia [2008] WASCA 219; [2008] 189 A Crim R 411 [73].

[171] Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, 561 ‑ 562.

[172] R v Turnbull [1977] QB 224, 228 (Lord Widgery CJ); Mills [78].

[173] Kelly v The Queen [2002] WASCA 134; (2002) 129 A Crim R 363.

[174] Carr v The Queen [2000] TASSC 183; (2000) 117 A Crim R 272 [61].

[175] R v Cox and Sadler (Ruling No 12) [2006] VSC 233 [3].

[178] Appellant's submissions, par 70; WAB 19.

[180] Appellant's submissions, par 79; WAB 21.

[184] Wells v The State of Western Australia [2017] WASCA 27 [13] - [14].

[185] AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 [21].