Criminal law - Appeal against conviction - Sexual penetration of a child lineal relative under 16 years of age - Indecent dealing with a child lineal relative under 16 years of age - Whether verdicts of guilty supported by evidence - Whether failure by prosecution to adduce video record of interview of accused occasioned miscarriage of justice - Alleged common interest of jury foreperson and witness - Whether judge gave impression that jury required to reach a verdict quickly - Conduct of defence counsel - Advice to accused not to give evidence - Failure to call witness - Failure to advise concerning judge alone trial - Whether appellant deprived of opportunity to challenge jurors - Adequacy of judge's directions as to conflicts in evidence - Applications to adduce new evidence

Criminal law - Appeal against sentence - Whether sentence manifestly excessive - Failure to obtain pre-sentence report - Failure of counsel to challenge assertions made in victim impact statement - Failure to produce character references

Leave to appeal refused on all grounds in appeal against conviction

Leave to appeal refused on all grounds in appeal against sentence

Craig v The Queen [2018] HCA 13

DKA v The State of Western Australia [2015] WASCA 112

Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555

Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414

Kochnieff v The Queen (1987) 33 A Crim R 1

LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178

McMahon v The State of Western Australia [2010] WASCA 143

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

Mule v The Queen [2005] HCA 49; (2005) 221 ALR 85

Peck v The State of Western Australia [2005] WASCA 20

R v Glennon [1992] HCA 16; (1992) 173 CLR 592

RFS v The State of Western Australia [2012] WASCA 58

Ritchie v The State of Western Australia [2016] WASCA 134

Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96

RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620

Salkilld v The State of Western Australia [2017] WASCA 168

Smith v The State of Western Australia [2014] WASCA 90

The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373

The State of Western Australia v PJW [2015] WASCA 113

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

VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1

WRN v The State of Western Australia [2017] WASCA 145

1. On 25 November 2016, the appellant was convicted after trial before a jury of two counts of indecent dealing with a child lineal relative under 16 years of age and three counts of sexual penetration of a child lineal relative under 16 years. On 22 December 2016, Goetze DCJ imposed a total effective sentence of 6 years and 8 months' immediate imprisonment with eligibility for parole. The appellant seeks leave to appeal against conviction (CACR 8 of 2017) and to appeal against sentence (CACR 2 of 2017). On 1 April 2017, Mazza JA ordered that the question of leave to appeal on each of the grounds of appeal in both the conviction appeal and the sentence appeal be referred to the hearing of those appeals.
2. The application for leave to appeal against conviction was commenced several weeks out of time. On 1 April 2017, Mazza JA also granted the application for an extension of time within which to appeal in relation to CACR 8 of 2017.
3. For the reasons that follow, leave to appeal on all grounds in both appeals should be refused and the appeals should be dismissed.

1. The five counts on the indictment with which the appellant was convicted related to events that occurred on three separate occasions. All were said to have occurred at the same location, being the home in which the appellant and his wife, L, lived with their son B and their two daughters, one being the complainant, S, and the other, D. S was born in November 2000.
2. The first count was that on a date unknown between 31 December 2008 and 1 January 2010, the appellant indecently dealt with S whom he knew to be a lineal relative by touching the outside of her vagina.
3. The second and third counts were that on another date between 31 December 2008 and 1 January 2010, the appellant indecently dealt with S by touching the outside of her vagina (count 2) and sexually penetrated S by penetrating her vagina with his finger (count 3).
4. The fourth and fifth counts were that on another unknown date between 31 December 2008 and 1 January 2010, the appellant sexually penetrated S by penetrating her vagina with his fingers (count 4) and sexually penetrated S by penetrating her vagina with his penis (count 5).
5. It is convenient to deal first with the conviction appeal.

1. On 17 November 2015, the complainant, S, participated in a visually recorded interview (VRI). At the trial, the VRI was admitted as part of S's evidence-in-chief, pursuant to s 106HB of the Evidence Act 1906 (WA).
2. S first described the events which comprised counts 4 and 5 on the indictment. She said that those events occurred in her bedroom at night after the appellant tucked his younger daughter, D, into bed, and then came into S's room. She then described the events which comprised counts 2 and 3 which she said occurred during the day time, again in her bedroom. She said her mother and the other children were in the lounge-room 'which was quite a way away from my room where we were living'. She said that this occurred 'maybe two weeks' before the events comprising counts 4 and 5.
3. She then described the events the subject of count 1. She said that was the first time that her father behaved inappropriately towards her. She said that those events also occurred at night time just after the appellant had tucked her sister into bed and then came to tuck her into bed.
4. S said that the events occurred sometime around when her mother delivered a stillborn baby girl, which would have been in 2009. She identified the primary school that she was attending at that time. In her evidence in chief at the trial, S corrected what she had said in the pre-recorded evidence as to the date on which the events took place, saying that it was in 2009 not 2008.[1] She recalled the date that her sister was stillborn as 16 July 2009 and said that the events happened after that and before Christmas of 2009.[2]
5. S provided some more detail in her evidence in chief at the trial as to the events of which she had spoken in her VRI. S explained that the reason she did not make any formal complaint of these events for six years was because she was terrified about what might happen to her or her siblings or her mother, and that on occasions her father had told her that he would kill her if she told her mother that he had bought some alcohol and she was terrified that he would do the same if she told her mother about these events.[3]
6. The prosecution tendered a diagram, drawn by S, of the layout of the house at which the offences were said to have taken place.[4] In cross-examination, S agreed that her diagram was not entirely accurate as to the position of S's bedroom and an adjoining bathroom.[5]
7. In cross-examination, S was asked about the events which constituted counts 4 and 5. She agreed that she had told the interviewer in her VRI:

He tucked my sister - he dumped me, then he tucked my sister in and came back to my room.[6]

1. She said that she thought that her father talked to her sister, D, for about five minutes. She said that her protestations as to what was happening were made in 'a reasonably quiet voice'.
2. S was asked about her statement in the interview that at the time of counts 4 and 5:

He wasn't being playful or fatherly anymore. It was serious and he had a different look in his eye.

1. She was asked how she could see a different look in his eye given that it was night time, to which she responded that there was light on in the playroom and the door was open.[7]
2. In relation to count 1, S had said that it was a hot night and that the appellant had told her to take her pants off because it was too hot. S was asked why she was using a blanket as she had described. She responded that even now she still sleeps with a blanket.
3. In relation to counts 2 and 3, S was asked about her statement in the interview that her father was wearing a particular T-shirt which was of importance to her father. She explained that was because her mother had bought it for him in Venice when she was pregnant with S, and that she had seen photos of her father wearing that T-shirt on the day that she was born.
4. S was asked about the circumstances of her making her complaint at the local police station on 16 November 2015, the day before she participated in the recorded interview. She agreed that she was in the company of her mother. She agreed with a description of her as very bright and academically well advanced, and a very responsible child who often looked after her three younger siblings, sometimes overnight.[8]
5. S agreed that she had always been very supportive of her mother and was fiercely protective of her younger sister. She agreed that it would be true to describe her as a child who always wanted to please adults and do the right thing, and at primary school would be the one to tell a teacher if she saw or heard something wrong.[9]
6. S was asked further questions about the circumstances of her disclosure to her mother of the events the subject of these charges. She agreed that at the time her mother had a new partner to whom she had become engaged and who had a job in a town in a different regional area. The plan was for her mother, her mother's new partner, S and her siblings to go to live together in that town. She agreed that on the day she told her mother about the occasions of sexual abuse, she and her mother were engaged in one of their occasional discussions about the plans for what was going to be a new life. She agreed that she was aware that the appellant did not want her to go away and that her mother had told her that he was going to court to stop them all from going away. S was asked whether her mother also told her that if there had been any domestic violence or abuse, it would be harder for him to get a court order and more likely they could move. Her response was 'she asked me if there was any abuse'. When pressed with the question, she denied that her mother had expressed herself in the way suggested.[10]
7. S agreed that a statement that she provided to police on 8 November 2016 contained more detail of the occasions of abuse than had been disclosed initially to a school friend and subsequently to her mother.[11]
8. S was asked about her initial disclosure in early 2015 to her high school friend. She agreed that it occurred shortly after they had an argument and that making up with the friend was important.[12] She said that after making that disclosure, the incidents were no longer pushed away at the back of her mind, and that they had a negative impact on her. She said she was diagnosed by the school psychologist with post-traumatic stress disorder.[13] In re-examination, S said that that diagnosis occurred in the second half of 2015, but some months before her complaint to police on 17 November 2015.[14]
9. S confirmed that in late 2014 and 2015, her siblings stayed regularly with their father and his new partner. She said that she was concerned for her younger sister's safety but did not report her father's actions because she was 'terrified, embarrassed and scared no-one was going to believe me'.[15]
10. A bundle of photographs of the interior and exterior of the house were tendered by the appellant's counsel in the course of cross-examination of S.[16] They included photographs of aspects of the bedrooms occupied by S and D and the stud wall that separated those two rooms. The photographs show that the wall was clad on only one side of the timber frame, and that small panel at floor level in the corner of the wall adjoining the exterior wall had no cladding. The unclad panel is clearly large enough for a child to crawl through. S agreed that she and D could use that opening to climb through to get to each other's bedroom.[17]
11. In the course of cross-examination of S, two YouTube videos featuring S were played. One of those related to bullying, and the other comprised a school English assignment written and directed by S, and in which she played the central character. It was suggested that the reason the proceedings were happening that day in court was 'because we're witnessing a drama written and directed by you with you as the central character'.[18] S denied that was the case, and also denied that her allegations developed from an attempt to back up her friendship with her school friend, to support her mother's Family Court proceedings, and enable her to move with her family to the other regional town.[19]
12. S's mother, L, gave evidence that during a conversation with S in L's car on 16 November 2015, they were discussing the Family Court proceedings that had been threatened by the appellant in relation to L's proposed move to another regional town. L said that she had previously discussed with her lawyer issues of violence and abuse in her relationship with the appellant. The lawyer had suggested the possibility of bringing up issues of family violence. L said that she was discussing that with S because she wanted to check with her that 'there wasn't any family violence related stuff that I had forgotten' before the decision as to the course of action to be taken was made. After that conversation ended, there was a pause before S said to her 'mum ... do you one hundred percent trust me?'. L said that she did trust S and S then, in general terms, described that the appellant would come into her room, close the door, 'muck around with' S to begin with and tickle her, 'then he would touch me'.[20]
13. L said that she asked S why she had not told her these things before, to which she replied that at the time the appellant was telling her that it was normal and it was what dads did, and that she did not really understand what it was that was happening at that time. L said 'I mean, we hadn't even had that sex talk yet'. She said that S told her that later on she worked out that it was not okay.[21]
14. L said that she went to the local police station that day and lodged a complaint.
15. The prosecution tendered a diagram drawn by L of the house where the offences were said to have taken place.[22]
16. In cross-examination, L agreed that as S had become older she (S) had become more like a friend to her, although disagreed that she had become a confidant.[23] She agreed that S was very responsible in respect to her younger siblings, and that it would be fair to describe her as a 'second mum to them'. She agreed that S was a very bright child who was eager to please adults and to be seen to be doing the right thing, with a keen sense of right and wrong.[24] She agreed that at times S would be the first to tell on her younger siblings if they were doing something wrong.
17. L agreed that the house at which the offences were said to have taken place was quite run down, and that the way it was configured was such that 'the children could literally run circles inside the house if they wanted to'.[25] There was no challenge by the appellant's counsel to the accuracy of L's diagram showing the layout of the house.
18. L confirmed that each of S and D had a separate bedroom, and confirmed the sleeping positions of each of S and D by reference to L's diagram of the layout of the house.[26]
19. On a couple of occasions during the cross-examination, reference was made to the fact that L took up running in 2013.[27] L was cross-examined as to the extent of bullying which S was subjected to during her schooling in 2015, and as to S's relationship with the appellant during the time that the appellant and L separated, and when the appellant formed a new relationship.[28]
20. L agreed that during 2015, and prior to the disclosure by S of the allegations against the appellant, she formed a new relationship, and was wishing to move to a different regional location with her new partner, but the appellant was not agreeable.[29] She agreed that she was bitterly disappointed with the thought that she might not be able to relocate, and that she told S of that disappointment. She agreed that at the time S first made disclosure to her, she had been discussing that issue with S whilst they were driving in L's car.[30] As to what S said about her not disclosing those matters earlier, L said:

... she has told me that when she was little she would - when it was happening, she didn't tell anyone because she didn't really understand what it was that was happening, and later when she did become aware that it wasn't right, that it had stopped and that she didn't think anyone would believe her then, because it had already stopped by that point.[31]

1. The third witness called by the prosecution was Detective Senior Constable Daniel Heller (DSC Heller). His evidence-in-chief consisted of a brief account of the steps taken by him in the investigation of the allegations by S. He said that during the investigation, a T-shirt with the word 'Venice' written on it was seized from the appellant's residence. The significance of that was that, in her VRI when describing the events that constituted count 1, S had said that the appellant was wearing 'his old green T-shirt' which had 'Venice' written on it.[32] DSC Heller said that the T-shirt was not subjected to any forensic testing because of the likelihood that it had been laundered a significant number of times since the time of the alleged incident and 'that it didn't play any particular role in the offending and the likelihood that there would be an explainable reason for the presence of the victim's DNA to be on that T-shirt'.[33]
2. Counsel for the appellant commenced cross-examination by asking whether DSC Heller had interviewed the appellant and whether it was a relatively lengthy interview, to both of which questions DSC Heller answered yes. Objection was then taken by the prosecutor. The following exchange took place:

HAMILTON, MS: Your Honour, Detective Heller has interviewed the accused. Just because the State are not going to play the record does not prevent me from asking questions about that interview.

GOETZE, DCJ: You can ask him questions about it, but you can't lead hearsay evidence.

HAMILTON, MS: No. In that interview [KMT] made no admissions in relation to the matters that we are here for today.

GOETZE, DCJ: Well - - -

DAVIDSON, MR: I (indistinct) object. We have just gone to the heart of it - self-serving.[34]

1. The appellant's counsel did not then pursue that line of questioning.
2. The State then closed its case. The trial judge inquired as to whether the appellant intended to give evidence or call any evidence. The appellant's counsel sought and was granted a brief adjournment to 'take some final instructions in that regard'.[35] After approximately 15 minutes, the jury was recalled and counsel for the appellant announced that the appellant elected not to give evidence and not to call any other evidence.

Applications to adduce additional evidence on the appeal

1. After commencement of the appeal, the appellant filed five applications for leave to adduce additional evidence at the hearing of the appeal. All of those were referred to the hearing of the appeal. The applications were as follows:

(i) an application dated 1 June 2017 and filed 8 June 2017 to adduce additional evidence, being the video record of interview conducted by police with the appellant on 20 November 2015 and transcript of that interview. Those documents were said to support ground 1 of the appeal;

(ii) an application also dated 1 June 2017 and filed 8 June 2017 to adduce additional evidence in the form of two recollections posted by L on the internet and two articles said to demonstrate similar interests between L and the foreperson of the jury. Those documents were said to support ground of appeal 16;

(iii) an application undated but also filed on 8 June 2017 to adduce additional evidence in the form of a book referred to by S in her evidence in re-examination entitled 'Where Did I Come From'. That document is said to support grounds 1 and 5 of the appeal;

(iv) an application dated 16 July 2017 and filed on 2 August 2017 to adduce additional evidence in the form of a statement by L dated 8 November 2016 which is said to support grounds of appeal 1, 3, 4, 6 and 7; and

(v) an application dated 26 July 2017 and filed on 2 August 2017 to adduce additional evidence in the form of a police interview plan relating to the interview of the appellant by police on 20 November 2015. That document was said to support appeal grounds 19 and 20.

1. It is convenient to deal with each of those applications in the context of the grounds to which they are said to relate.
2. On 29 August 2017, the appellant filed a further application to adduce additional evidence in the form of a number of different documents. On 20 September 2017, Mazza JA refused that application and directed that any further application to adduce additional evidence not be accepted for filing without leave of a justice of appeal first being obtained. On 5 October 2017, the appellant filed yet a further application to adduce additional evidence in the form of a further seven documents. In accordance with Mazza JA's order of 20 September 2017, that application was referred to a justice of appeal and it was determined that the application should not be accepted for filing. There followed some extensive correspondence between the appellant and the court, in which the appellant sought to re-agitate his application to have the court consider the documents the subject of his applications of 29 August 2017 and 5 October 2017. Some of that correspondence occurred after the matter had been heard and culminated in a letter dated 29 January 2018. Those documents were the subject of rulings made when the applications were first lodged. There is no occasion to revisit those rulings.
3. The principles relating to the appellant's applications to adduce additional evidence were recently explained by Buss P (Newnes JA agreeing) in Rodi v The State of Western Australia.[36] For present purposes it is sufficient to say the following.
4. Section 39(1) of the Criminal Appeals Act 2004 (WA) provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. By s 39(3), however, s 39(1) does not affect the power of an appeal court to admit evidence pursuant to s 40. Section 40(1)(e) confers on this court the discretionary power to admit 'any other evidence' for the purposes of dealing with an appeal. That power is not expressly limited or confined. However, it is most improbable that the legislature intended that it (or for that matter, the powers conferred on the court in s 40(1)(a), (b) or (d)) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. While the common law principles touching upon the distinction between new and fresh evidence are not necessarily determinative of the manner of the exercise of the statutory discretion, the considerations giving rise to those principles will ordinarily be weighty, so much that it will be a rare case in which an exercise of the statutory discretion produces a different outcome to that produced by application of the common law principles.
5. At common law, there is a distinction between new and fresh evidence. New evidence is evidence which was available at the time of trial or could, with reasonably diligence, have been discovered. Fresh evidence is evidence that did not exist at the time of trial or which could not, with reasonable diligence, have been then discovered.
6. The effect of this distinction was explained by Mazza JA in Smith v The State of Western Australia,[37] in these terms:

The unavailability of fresh evidence gives rise to a miscarriage of justice if the appellate court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the evidence had been before it at trial: Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273, 275 and 302, and Amiss v The State of Western Australia [2006] WASCA 171 [12].

In the case of new evidence, a trial is not unfair and there is no miscarriage of justice simply because evidence which was available to an accused or which may have been discovered with reasonable diligence is not adduced. This is because a criminal trial is an adversarial proceeding in which the parties are free to determine how their respective cases will be run, including what evidence will be adduced and how witnesses will be cross-examined. New evidence will only give rise to a miscarriage of justice if the appellate court is either satisfied that the accused is innocent or concludes that the appellant should not have been convicted: Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510, 517 - 518 (Barwick CJ) and DPJB v The State of Western Australia [2010] WASCA 12 [66] (Owen JA).

1. In the present case, all of the documents the subject of the five applications are in the nature of new evidence.

1. In the appellant's case, he identified 16 grounds of appeal. At the hearing of the appeal, the court granted an application by the appellant for leave to add four additional grounds. In oral submissions, the appellant helpfully explained that the various grounds fell into four broad categories. The first was that the verdicts of guilty are not supported by the evidence. The second related to matters concerning the conduct of the prosecutor and of the trial. The third related to alleged incompetence of defence counsel, and the fourth concerned alleged errors in the trial judge's directions.[38]

Grounds 1, 2, 3, 8, 10, 11 and 12 - verdict not supported by the evidence

1. Ground 1 simply alleges that 'the verdict [sic] of guilty is not supported by the evidence'. Grounds 2, 3, 8, 10, 11 and 12 are related to ground 1.
2. The principles governing a ground of appeal that a verdict is not supported by the evidence or is unreasonable were recently summarised by this court in Wells v The State of Western Australia as follows:[39]

(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 (footnotes omitted).

1. Much of the focus of submissions on ground 1 concerned the matters the subject of grounds 8, 10, 11 and 12. Those grounds were:

(8) in the trial, the judge prevented questioning about whether the appellant had denied the allegation.

(10) the police interview of the appellant was not shown to the jury. In the police interview all allegations were affectively [sic] denied. The jury questioned the non-playing of the appellant's interview.

(11) by not showing the jury the police interview of the appellant, the prosecutor breached the Office of Director Of Public Prosecutions mission statement and their service charter.

(12) by not showing the jury the police interview of the appellant and now allowing the jury information on how he pleaded, two sections of article 14 of the Australian Human Rights Commission Act of 1986 have not been followed.

1. Ground 10 is premised on a misunderstanding of the basis upon which a video record of interview of an accused person may be played to the jury at the accused person's trial. Self-serving statements of parties to litigation are inadmissible as to the truth of those statements. That is because of the rule that assertions by persons other than the witness who is testifying are inadmissible as evidence of the fact asserted, because they offend the rule against hearsay evidence and the rule against self-corroboration. On the other hand, admissions against interest constitute a recognised category of exception to the hearsay rule.[40] If an out of court statement made by an accused consists of admissions accompanied by exculpatory material, the whole of the statement containing both inculpatory and exculpatory material must be adduced in evidence.[41] It is a matter for the prosecution to determine whether or not it wishes to adduce an admissible out of court statement made by an accused.[42]
2. It is clear from an exchange between counsel and the trial judge following the closing addresses of counsel that the reason the video record of interview was not played to the jury was because the interview was 'strictly a denial' and contained no admission against interest.[43] If that is correct, and the appellant does not contend otherwise, the video record of interview was inadmissible. Ground 10 appears to accept that all allegations were effectively denied in the interview. Even if the video record of interview was admissible as containing some admissions against interest, it was a decision for the prosecution as to whether or not it wished to adduce the video record of interview in evidence.
3. Grounds 11 and 12 rest on the propositions that the brochures published by the Office of the Director of Public Prosecutions for Western Australia make reference to the provision by the ODPP of a criminal justice system which is fair and just, and Article 14 of the International Covenant on Civil and Political Rights, which comprises Schedule 2 of the Australian Human Rights Commission Act 1986 (Cth), refers to the entitlement to a fair hearing. Those provisions are said to have been breached by the prosecution's failure to show the video record of interview to the jury. For the reasons explained in relation to ground 10, there was no unfairness in the prosecution's decision. Grounds 10, 11 and 12 are without merit, and leave to appeal on those grounds should be refused.
4. Ground 8 complains about the objection to questioning of DSC Heller by the appellant's counsel, the transcript of which is set out above at [39]. Evidence by DSC Heller as to what was said to him by another person, including the appellant, is inadmissible as to the truth of what was said because it offends the rule against hearsay. Counsel for the prosecution was correct to object to the questions of DSC Heller which sought to adduce that evidence, and counsel for the appellant was correct not to pursue that line of questioning. Ground 8 lacks merit, and leave to appeal on that ground should be refused.
5. In view of the fact it is common ground that the video record of interview contains no admissions and was thus inadmissible, we would refuse the application dated 1 June 2017 to adduce the video record of interview and transcript of that interview as evidence in the appeal. It can be observed that it was plain to the jury from the way in which his defence was run at trial, that the appellant denied the allegations against him. The jury did not need to see the video record of interview to appreciate that fact.
6. The appellant's submissions in relation to ground 1 were not limited to the complaints found in grounds 8, 10, 11 and 12. The more general proposition was put that the sufficiency and quality of the prosecution evidence was incapable of supporting a conviction. In particular, the appellant submitted that:
   • there were no witnesses;
   • there was no forensic evidence;
   • there were no medical examinations performed;
   • there was no documentation provided by mental health professionals;
   • there were no recordings of the alleged offences; and
   • the complainant refused the police request to be involved in a phone call to the appellant.
7. Sexual offences of the kind that were alleged against the appellant are commonly perpetrated in circumstances where no one else is present. The complainant gave clear evidence as to the events which comprise the five counts on the indictment. It was open to the jury to accept that evidence. It was not necessary that the events be witnessed by a third party. Given that these were allegations of historic sexual offending, the absence of forensic evidence or medical examinations was virtually inevitable. While that absence was a matter for the jury to take into account, its absence did not preclude acceptance by the jury of S's evidence.
8. The appellant's submissions in relation to the question of S's mental health are not clear. Reference is made by the appellant in his submissions to the evidence of S as to her diagnosis by a school psychologist of post-traumatic stress disorder, and to the evidence that S had been subjected to bullying at school, including one of the YouTube videos played to the jury by the appellant's counsel. Evidence of those matters was adduced by the appellant's counsel at trial. It was not necessary for that evidence to be 'documented by health professionals'. The appellant's submissions do not address what is said to be the consequences of that evidence. Presumably, those matters are said to be capable of affecting S's credibility. That was a matter for the jury. The evidence was not such as to lead to the conclusion that it was not open to the jury to accept S's evidence or not open for the jury to be satisfied beyond reasonable doubt of the appellant's guilt. The absence of any 'recordings' of the alleged offences is hardly surprising.
9. A further aspect of the appellant's submissions in relation to ground 1 relates to the proposition that D should have been a witness given that, by reason of the layout of the house and their adjoining bedrooms, D was likely to have heard or observed the activities the subject of the charges if they had occurred. DSC Heller gave evidence that no statement was taken from D because of her age at the time of the events the subject of the charges, and the fact that she was subjected to an assessment interview with the Children Protective Family Services and there was no disclosure of any incident or indication that she was a direct witness.[44] The prosecution was under no obligation to call D. The layout of the house was the subject of considerable attention at trial, as was the hole in the wall between the bedrooms occupied by S and D respectively. In her closing submissions to the jury, the appellant's counsel emphasised that aspect of the evidence as undermining S's credibility and pointing to an unlikelihood that the events could have occurred without D being aware.[45] It was open to the jury to reject that submission.
10. Having regard to the totality of the evidence, we are satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. We would refuse leave to appeal in relation to ground 1.
11. Ground 2 is as follows:

There was inadequate information given to the jury into the circumstances of allegations against [the appellant] including the current childcare and child access disputes happening between the parents at the time of the allegations.

1. In support of this ground, the appellant sought to rely on certain correspondence from Relationships Australia and a letter from Latro Lawyers dated 21 October 2015 which apparently related to the things which had occurred in relation to the appellant's matrimonial dispute with L. Applications to rely on those documents were, as the appellant was well aware, rejected for filing by the court. The fact that L and the appellant were involved in Family Court proceedings in the latter half of 2015, when S made her complaints to L and to the police, was not in issue at the trial. S's motivation in making the complaints, and whether it related to supporting her mother's position in Family Court proceedings, was squarely put to S in cross-examination. L acknowledged that she was discussing the Family Court proceedings with S at the time that S made her disclosure to L. Those matters were the subject of comment by the appellant's counsel in her closing address to the jury.[46] That aspect of the defence case was specifically mentioned by the trial judge in his directions to the jury.[47]
2. New evidence which may have related to precisely what was occurring in relation to the matrimonial dispute between the appellant and L could only have served to further confirm a matter which was not in dispute at trial. The decision, whether it be by the appellant's counsel or by the appellant, not to adduce additional information as to the detail of that dispute, did not give rise to a miscarriage of justice. There is no merit in ground 2.
3. Ground 3 is as follows:

The only direct evidence against [the appellant] on each count came from [S] herself but evidence of complaint and background came from her mother, with whom [the appellant] was in a legal battle over access and care of the children and the mother's desire to move their children to [another regional] area to live, on 15th October 2015 (one month before the allegations were made).

1. Again, it was not in issue at the trial that there were Family Court proceedings on foot between L and the appellant, nor was it in issue that L wished to move the children to a different regional area. We have already noted it is commonplace that the only direct evidence in relation to sexual offences comes from a complainant. As already noted, it was open to the jury to accept S's evidence notwithstanding the background of matrimonial proceedings between L and the appellant. There is no merit in ground 3, and leave to appeal on that ground should be refused.

Grounds 9, 16 and 20 - conduct of the trial

The judge may have given the jury the impression that they needed to make a decision quickly or encourage the jury to speed up their decision-making process by his statement to them as the jury retired to make a decision on 25 November 2016.

1. Closing addresses by the prosecution and the defence were made between 2.09 pm and 3.14 pm on Thursday, 24 November 2016. An exchange between the judge and counsel then followed in relation to matters arising in relation to counsels' addresses. During that exchange, the judge received a note from the jury requesting that his charge be delayed until the following day 'when the jury are rested'. The jury returned at 3.35 pm and after the judge briefly dealt with some matters that had arisen from his discussion with counsel, the jury retired at 3.41 pm. The trial judge addressed the jury from 9.37 am on Friday, 25 November 2016, and the jury retired after conduct of the ballot to select the final 12 jurors at 10.59 am. The trial judge received a question from the jury which he dealt with commencing at 2.46 pm. Just before the jury were brought back to deal with their question, the trial judge said:

Well, we will get the jury in and see what it is they want to find out about. They've been gone for nearly four hours. I don't propose to give them a majority direction just yet. But the court officers were wanting to know by, say, 4 o'clock about dinner so I will get them back in at 4 and see how they're going.[48]

The jury then returned and after dealing with the jury's question, the trial judge said:

All right. Now, look, it's ten to 3. I'm not hurrying you but the staff here are leaving at 4.30, or some of them are. We need to know about 4 o'clock if you'll be requiring dinner so that the person with the credit card can go to the place to place an order for your dinner. I'll get you back about 4 o'clock if I've not heard from you to see how things are going. Okay.

And you can tell me if you want to continue working into the night. These will be your choices. Work into the night or come back on Monday. That's no problem coming back on Monday if you want to and no problem if you want to work into the night. But I will leave that choice to you. Alright. Okay. If you would like to retire, then, please.[49]

1. The appellant submits that the reference to either working into the night or coming back on Monday, and possibly inconveniencing court staff as well as themselves, may have had a negative effect on the jury or caused them to speed up their decision-making process.
2. The jury returned a verdict at 3.26 pm. It had deliberated for four and a half hours. In the passages set out above, the trial judge did no more than address the practical issue of arranging dinner for the jury if that was to be necessary. He otherwise made it clear that it was entirely up to the jury as to whether they continued their deliberations that day or came back on the following Monday if that were necessary. The trial judge's remarks were entirely appropriate. There is no merit in ground 9 and leave to appeal should be refused.
3. Ground 16 is:

Foreperson of the jury may have had an unconscious bias towards the ex-partner of the accused because of her interest in marathon running.

1. In accordance with usual practice, the names of potential witnesses at the trial were read aloud to the jury panel prior to the jury being empanelled. The trial judge, in accordance with usual practice, directed the jury that if they knew any of the potential witnesses, or anything about the case, and felt that that knowledge would prevent them from being true to their oath or affirmation to bring in a verdict based solely on the evidence, they were to make that known to the judge if their number was called. Nothing was drawn to the trial judge's attention by any juror.
2. The appellant, in submissions in relation to ground 16, does not assert actual bias. Rather, he asserts unconscious bias by reason of an alleged common interest in running of both L and the foreperson of the jury. It is in relation to this ground that the appellant seeks to adduce additional evidence of internet articles said to demonstrate similar interests of L and the jury foreperson.
3. We would allow the application to adduce that additional evidence. It does not, however, in our view, provide any basis to conclude that there has been a miscarriage of justice. It demonstrates that L had an interest in marathon running. Even if it is accepted that a juror had a similar interest, as the appellant asserts, the suggestion of 'unconscious bias' is entirely speculative. That speculation provides no basis to conclude that there has been a miscarriage of justice as to set aside the jury's verdict. The law proceeds on the basis that the jury will act in accordance with the instructions of the trial judge and give a true verdict according to the evidence.[50] There is no basis to conclude that the foreperson or any other juror acted otherwise in this case.
4. In case it is being alleged by the appellant that there was apprehended bias against him as a result of the alleged common interest in running, there is no merit in that argument. Even assuming that there was such a common interest, it is, by itself, incapable of causing a fair-minded lay observer to reasonably apprehend that the foreperson might not bring an impartial and unprejudiced mind to the proceedings. Leave to appeal on ground 16 should be refused.
5. Ground 20 reads as follows:

The appellant was not treated fairly by the police during the recording of the interview or during the trial.

The police did not carefully scrutinise the circumstances giving rise to the allegations.

The responses to questions made by the appellant in his police interviews were not investigated.

The actions of the mother after the allegations were made were not investigated.

1. The trial proceeded on the evidence adduced by the prosecution and by the defence through cross-examination and the tender of various documents. The jury was directed to reach its verdict based solely on the evidence adduced at trial. Criticisms by the appellant of the manner in which the police carried out its investigations can have no effect on the verdict reached by the jury. The implicit speculation as to what investigations might have revealed had the police carried out particular enquiries is not capable of demonstrating a miscarriage of justice. There is no merit in ground 20 and leave to appeal on that ground should be refused.
2. The application dated 26 July 2017 to adduce the police interview plan should be dismissed. It is irrelevant to the issues determined at trial.

Grounds 13, 14, 15, 17 and 18 - conduct of defence counsel

1. The grounds which complain about the conduct of the appellant's trial counsel are as follows:

(13) (the appellant) was advised by his defence lawyer not to give evidence.

(14) the defence lawyer did not use significant relevant information that had been given in the defence of (the appellant) and did not have an opening address.

(15) the defence lawyer chose not to call a witness who had provided her with significant evidence of verbally and in written format.

(17) the defence lawyer did not advise (the appellant) or inform (the appellant) at all that (the appellant) could have applied to have a judge only trial.

(18) the defence lawyer made an error in not giving (the appellant) access to the list of names and occupations of the potential jurors. The appellant was not given the opportunity to decide which jurors ought to be challenged.

1. The legal principles in relation to grounds of appeal concerning the conduct of counsel were described by McLure P in McMahon v The State of Western Australia[51] as follows:

The appellant has to demonstrate that the conduct of his counsel caused a miscarriage of justice, a task which constitutes a heavy burden: TKWJ v R [2002] HCA 46; (2002) 212 CLR 124 [74] (McHugh J). That is a consequence of the adversarial nature of a criminal trial and the role and function of counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involved errors of judgment or even negligence: TKWJ [74], [79] (McHugh J); R v Birks (1990) 19 NSWLR 677 at 685 (Gleeson CJ).

In this context, miscarriage of justice has two aspects, process and outcome. If the conduct of counsel has deprived the accused of a fair trial according to law, that will give rise to a miscarriage of justice without regard to whether counsel's conduct might have affected the outcome: TKWJ [76] (McHugh J); Nudd v R [2006] HCA 9 [3]-[7] (Gleeson CJ). This corresponds with that limb of the proviso where there is a serious breach of the pre-suppositions of a trial: Weiss v R [2005] HCA 81; (2005) 224 CLR 300 [46]; Wilde v R [1988] HCA 6; (1988) 164 CLR 365 at 373. A complete failure to cross-examine a complainant or a complete failure to address the jury may result in an unfair trial: TKWJ [76]. So too may wrong advice that an accused is not entitled to give evidence: Nudd [17].

In the majority of cases, irregular conduct of counsel will not deprive the appellant of a fair trial. In such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues. First, did counsel's conduct result in a material irregularity in the trial. Secondly, is there a significant possibility that the irregularity affected the outcome: TKWJ [79] (McHugh J); Ali v R [2005] HCA 8; (2005) 79 ALJR 662 [18] (Hayne J).

The test of whether there is a material irregularity is objective: TKWJ [17], [27] - [28], [107]. Ordinarily, it is difficult to establish a material irregularity when the alleged error of counsel concerned forensic choices upon which competent counsel could have differing views: TKWJ [81]. However, if the error of counsel plainly affected the result of the trial, there will be a miscarriage even though the error involved a forensic choice or judgment. Where the error involves the failure to adduce evidence, there are parallels with the test for the admission of new or fresh evidence: TKWJ [32] (Gaudron J).

1. The alleged failings by counsel in grounds 13, 14, 15, 17 and 18 are not of the 'process' kind referred to by McLure P in McMahon. Thus, the questions to be asked in relation to each ground are whether counsel's conduct resulted in a material irregularity in the trial, and secondly, whether there is a significant possibility that the irregularity affected the outcome.
2. The questions of the role of defence counsel in the criminal justice system and the discretion of counsel in relation to forensic decisions were recently explained by Buss P (with whom Newnes JA agreed) in Rodi v The State of Western Australia[52] where his Honour said:

The Australian criminal justice system involves a contest between the State or the Crown and the accused. In general, the accused is bound by the conduct of his or her counsel. The accused's counsel has a broad discretion in the conduct of the defence. As Gleeson CJ (McInerney J agreeing) noted in R v Birks (1990) 19 NSWLR 677:

'Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case (683).'

See also TKWJ v R [2002] HCA 46; (2002) 212 CLR 124 [8] (Gleeson CJ); R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [168] (Kirby J).

An apparently rational decision made by the accused's counsel in the course of the trial will not result in an unfair trial or a miscarriage of justice merely because it may appear then or later on appeal that the decision was not carefully considered, was unwise, or produced consequences which operated to the disadvantage of the accused. See Stanoevski v R [2001] HCA 4; (2001) 202 CLR 115 [21] (Gaudron, Kirby & Callinan JJ); TKWJ [16] - [17] (Gleeson CJ), [95] (McHugh J), [107] (Hayne J, Gummow J agreeing).

An appellate court does not examine whether a decision taken by the accused's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage. Rather, the appellate court is concerned only with whether counsel's decision is capable of explanation on that basis. That is, could there be any reasonable explanation for the decision? The test is objective in character. See TKWJ [17] (Gleeson CJ), [27] (Gaudron J, Gummow J agreeing), [107] (Hayne J, Gummow J agreeing).

1. Ground 13 does not assert that the appellant was advised that he was not entitled to give evidence. Rather, the ground asserts that the appellant was advised not to give evidence. It is apparent that, at the close of the prosecution case, the appellant's counsel sought and obtained an adjournment in which to take instructions as to whether or not the appellant wished to give evidence. When the court reconvened, counsel advised that the appellant would not give evidence. Thus, after discussion with counsel, the appellant decided not to give evidence. The appellant's assertions on this ground go no further than asserting that, had he received different advice, he may have given evidence against which S's evidence would then have been assessed. In this case it cannot be said that any advice given by counsel was incorrect; still less can it be concluded that incorrect legal advice effectively deprived the appellant of the opportunity to give evidence.[53] There is no basis to conclude that the appellant's decision not to give evidence resulted in an unfair trial or a miscarriage of justice. There is no merit in ground 13 and leave to appeal on that ground should be refused.
2. Grounds 14 and 15 fail for corresponding reasons. The decision not to make an opening statement, and not to call a particular witness or to use information which the appellant considered was significant were all forensic decisions which fell within the broad discretion of counsel in the conduct of the defence. In his written submissions, the appellant outlines various matters which counsel should have adduced in evidence. Some of those matters were in fact the subject of evidence, and other matters simply comprised greater detail of matters that were already in evidence and were the subject of submissions. In relation to the witness who was not called, being the appellant's mother, much of the evidence which it is said she would have given is either hearsay or comment, and would have been inadmissible.
3. The complaints made in grounds 14 and 15 fall well short of establishing that any aspect of counsel's conduct of the trial caused or contributed to a miscarriage of justice.
4. There is no merit in grounds 14 or 15, and leave to appeal on those grounds should be refused.
5. Ground 17 asserts a failure on the part of the appellant's counsel to advise the appellant of the possibility of him applying for a judge only trial. There is no merit in that ground. The ordinary mode of trial in this State where an accused is committed on a charge to a superior court, or indicted in a superior court on a charge, is trial by jury. However, pursuant to s 118 of the Criminal Procedure Act 2004 (WA), a superior court may order trial by a judge alone. Such an order may only be made if it is in the interests of justice to do so. It is not possible to state exhaustively the factors relevant to the determination of what is in the 'interests of justice' in a particular case, or generally.[54] Whatever factor or factors that are relied upon must be supported by evidence. In his application to add ground 17, the appellant asserts that he could have applied for a judge only trial on the grounds of social media surrounding his arrest, internet articles posted by L and a well-publicised case in the region where the appellant was living that was referred to in his police interview. None of those assertions are supported by any evidence. In any event, none of the matters are likely to have led to the appellant succeeding in an application for a judge only trial. More importantly and in any event, there is no basis to conclude that the fact that the appellant was tried before a jury led to a miscarriage of justice. There is nothing to indicate that a trial by judge alone was necessary or desirable to ensure that the appellant received a fair trial according to law. Leave to appeal in relation to ground 17 should be refused.
6. Similarly, ground 18 is without merit. At the commencement of trial, and prior to the empanelment of the jury, the appellant's counsel advised the court that she had explained the right of challenge to the appellant and that she had been instructed to exercise that right on his behalf and that the appellant 'understands that he has an overriding right of challenge'. The appellant's complaint is that he was not given a list of names and occupations of potential jurors and thus, 'was not given the opportunity to challenge any of the jurors'. There is no basis to suggest that the fact that the appellant did not have the jury list resulted in an unfair trial or a miscarriage of justice. It cannot be said to be a breach of the presuppositions of a trial such as to give rise to a miscarriage of justice regardless of its effect on the outcome. Nor can it be said to be a material irregularity in the trial, or even if it were, that there is a significant possibility that the irregularity affected the outcome. Leave to appeal on ground 18 should be refused.

Grounds 4, 5, 6, 7 and 19 - errors by the trial judge

1. Ground 4 asserts that the trial judge erred in his direction to the jury on the inconsistency of the State's evidence. Ground 5 asserts that, during his charge to the jury, the trial judge did not adequately explain that there were discrepancies between L's evidence and S's evidence.
2. The obligation of a trial judge to fairly present to the jury the case put by an accused person is well established. The requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. A trial judge is not, however, bound to discuss all the evidence or to analyse all of the conflicts in the evidence and the failure to do so does not mean that there has been any miscarriage of justice. Whether the trial judge is bound to refer to an evidentiary matter depends on whether it is necessary to ensure that jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case on the basis of the evidence they have heard.[55]
3. That position is reflected in s 112 of the Criminal Procedure Act 2004 (WA) which requires a trial judge to instruct the jury on the law applicable to the case and provides that the judge 'may make any observations about the evidence that the judge thinks necessary in the interests of justice'. The High Court in RPS v The Queen[56] observed that, although a trial judge may comment on the facts when instructing a jury, the judge is not bound to do so, except to the extent that the judge's other functions demand it, and that, perhaps more often than not, the safer course will be to make no comment on the facts beyond reminding the jury of the arguments of counsel.
4. Although ground 4 refers to an error in the trial judge's direction to the jury, the appellant does not identify any part of the trial judge's direction which is said to contain the alleged error. Rather, the submissions simply contain extracts from various passages in the transcript of the cross-examination of S and L in relation to the contact between S and the appellant in June and July 2015. The passages of transcript are said to demonstrate an inconsistency between evidence given by L that in November 2015 S was not seeing the appellant,[57] and evidence by S as to various contact in June and July 2015 between herself and the appellant. Given the difference in the times referred to in the respective pieces of evidence, the inconsistency is not readily apparent. In any event, the fact that, in summarising the appellant's case, the trial judge did not refer to those passages of evidence is of no significance. The evidence in the trial was completed in less than a day and a half. It would have been fresh in the juror's minds. The trial judge, in his charge to the jury, summarised the defence case consistently with the closing address of the appellant's counsel.[58] No complaint was made about that summary by the appellant's counsel at the conclusion of the judge's charge. There is no merit in ground 4, and leave to appeal on that ground should be refused.
5. Ground 5 fails for the same reasons. The appellant's submissions in relation to ground 5 again contain little more than extracts of various passages of the transcript which are said to be either inconsistent with other evidence, or which could have been disproved by evidence that was not led at trial. It is in relation to that latter proposition that the application to adduce additional evidence in the form of a book referred to by S in her evidence is directed. To the extent that the appellant's submissions assert that the judge did not adequately explain the alleged discrepancies between L's evidence and S's evidence, we would reject the submissions for the same reason that we have rejected ground 4. To the extent that the submissions relate to evidence which might have been disproved by evidence not adduced at trial, no complaint can be made as to the judge's address to the jury. The judge could not have addressed the jury in relation to matters which were not in evidence and of which, obviously, he could have no knowledge. There is no merit in ground 5, and leave to appeal on that ground should be refused. Similarly, the application to adduce further evidence in the form of the book entitled 'Where Did I Come From' should be refused.
6. Ground 6 asserts that the presence of motive to lie by S was not given sufficient consideration by the judge in his summing up the jury.
7. In relation to the appellant's case that S had a motive to lie, the trial judge said:[59]

Now, there's another aspect to the defence case and that is that she may have had a motive to lie to you in bringing these allegations because they may have assisted her and her mother move to [another regional town] with her siblings to get away from [where they presently lived] and for [S] to get away from boarding school. Now, you need to remember that there's no onus on [the appellant] to prove anything in this trial. There is no obligation or burden to provide a reason why [S] might have fabricated these allegations, but counsel has cross-examined [S] and has raised these matters with you as to why they might be false allegations.

You must consider what counsel, Ms Hamilton, has said. If you don't find any reason for [S] to have lied, that doesn't mean she's telling the truth. If you reject the defence submissions then you put them to one side and you return to your task of deciding has the State on evidence that you do accept proved its case beyond reasonable doubt. So you need to scrutinise [S]'s evidence with special care.

1. Earlier in his charge, when summarising the defence case, the trial judge referred to the defence's submissions as to the existence of Family Court proceedings and S's desire to leave boarding school and to be able to move to the other regional centre with her mother.[60] The trial judge was not obliged to do any more than he did. The judge correctly emphasised that it was not for the appellant to prove that the complainant had a motive to lie. His direction in relation to S's potential motive to lie was entirely adequate. There is no merit in ground 6, and leave to appeal on that ground should be refused.
2. Ground 7 complains that the judge erred in directing the jury that there were no 'embellishments' made by S and her mother. There is no merit in this ground.
3. In the course of her closing address, in addressing S's motivation for her complaints against the appellant, the appellant's counsel said:[61]

Members of the jury, as I put it to [S] yesterday - and you heard her categorically deny this - that this all started as a germ of an idea to reinforce her friendship with [K], to make [K] feel more empathy for her, because she was a greater victim than [K]'s family member. Then it became the perfect trump card to bring about the relocation.

I suggest that it was told to her mother, despite [S] asserting otherwise, for that very purpose, that is, the issue of relocation. [S] would get what she wanted; her mother would get what she wanted. And as time went on, it became further and further embellished. More statements, more detail, more drama. And just like the bullying video and the Sticks and Stones video, it was written and it was directed by [S], and she was the main character.

1. At the conclusion of that address, and in the absence of the jury, the trial judge queried the statement that, as time went on, S's statements had been embellished. He enquired what the embellishment was said to be, and whether that had been put to S. The appellant's counsel responded that she was fairly confident that she had put to S that as time was going on she was adding to things.[62] The trial judge suggested that that was quite different from 'saying embellishment', and counsel agreed to correct herself in the presence of the jury. There then followed a discussion with the prosecutor as to whether or not anything said in statements taken after the initial complaint to the police by S could be properly described as embellishment. In the course of the subsequent exchange, counsel for the appellant agreed that nothing said in statements taken from S subsequent to her initial statement could properly be described as embellishment.[63] When the jury returned, the trial judge said to the jury:[64]

And also, Ms Hamilton referred to [S] having given the police further statements after November last year. There was a statement on 8 November this year and you heard in evidence, I think, that that simply provided some more detail about the five separate matters that you are to consider. It also made reference to the fact of threats from - allegedly made by [the appellant] to [S] concerning his consumption of alcohol, but that was a matter that was never discussed by the child police interviewer and in the - on 22 November this week there was a further statement about telephone calls.

Now, this was a new matter that only arose in the last few days. Ms Hamilton - sorry - [S] made comment about telephone call matters. Ms Hamilton referred to that statement made on the 8th and the statement on the 22nd as being embellishments. I just want to correct that. It was simply providing new information as distinct from an embellishment.

1. The appellant's submissions make reference to a passage in the transcript where, under cross-examination, S agrees that when initially interviewed by police she provided more information than had been given to her mother in the initial disclosure, and that she had provided more detail to police in a subsequent statement.[65] S agreed that she had provided additional information. It was never put to her in cross-examination that she was 'embellishing' her account of events.
2. The concern expressed by the trial judge was entirely reasonable. Counsel for the appellant at trial properly accepted that her assertion of embellishment was, having regard to the evidence, erroneous. The trial judge did not err in correcting the misstatement of the position by counsel. Ground 7 is without merit, and leave to appeal on that ground should be refused.
3. The appellant applied for leave to adduce a statement made by L to police on 8 November 2016 as evidence in this appeal. That statement was the subject of cross-examination of L by the appellant's counsel at trial.[66] It is said by the appellant to be relevant to grounds 1, 3, 4, 6 and 7. Its relevance to those grounds is not apparent. No reference is made to the statement in the appellant's submissions on ground 1 or 4. The appellant's submissions on ground 3 recite the cross-examination on the statement but do not explain what is to be made of that cross-examination.[67] The appellant's submissions in relation to ground 6 refer to the fact of the statement being made by L on 8 November 2016 as part of a 'significant timeframe',[68] but its significance is not readily apparent, and in any event, L accepted in evidence that she made a statement on that day.
4. The appellant's submissions on ground 7 also refer to L's statement of 8 November 2016.[69] However, ground 7 concerns the challenges at trial in relation to the appellant's counsel's use of the word 'embellishment'. That word was used in connection with the evidence of S, not the evidence of L. L's statement has no relevance to that ground. We would refuse the application to adduce L's statement of 8 November 2016 as evidence in the appeal.
5. Ground 19 asserts that the trial judge erred in providing an example to the jury about why they did not see the police interview of the appellant.
6. After the jury had been retired for over two and a half hours, the trial judge received a request to 'have the transcript of the judge's wind up at the end of the Thursday'. The jury was recalled and the trial judge sought clarification as to what the jury was seeking. It became apparent that the jury was seeking clarification about a comment made by the prosecutor that the video record of interview of the appellant could not have been tendered in evidence. The trial judge said:[70]

This is about the video record of interview but let me - there are a couple of things. I will just run through them. The first is the State has to prove the case. Well, I will go back a step further. [The appellant] is presumed to be innocent. It's for the State to prove the charges. The State has to prove the charges beyond reasonable doubt. [The appellant] doesn't have to prove anything. I said that to you this morning.

There was some question, then, raised because Ms Hamilton said that the police had interviewed [the appellant] on a video and you hadn't seen that video. Well, sometimes that does happen. It happened here. But the State only plays that video if an accused - and I'm talking generally - if an accused person makes admissions against interest which the State says is relevant to its case and, on that basis, the State is able to play what it is that an accused person has said previously.

Now, in this case, you don't have any evidence in a video because there's nothing that was said in that video which is against interests so, therefore, it is not played. It doesn't help you determine your verdicts. They might as well have been talking about the cricket or the football. Do you understand? Is that what you needed to know? I did explain that to you yesterday. I said there a legal reason why you don't get to see it and I asked Mr Davidson if that covered the point and he said it's not - and that it's not inappropriate for the State not to play it.

That's expressed as a series of negatives but it's not inappropriate for the State not to play it. The State could play it if it wanted to but it doesn't have anything said by [the appellant] which is against his interests. So let me use a neutral example. A policeman is walking down the street at night past a house. He sees someone breaking into the window and, you know, the sort of things you see on English TV shows, 'You got me clean, Guv'. That sort of evidence would be admissible because that's an admission against interests. Okay. Nothing like that in that video so you didn't get to see it.

1. The appellant's complaint in relation to this passage is that it 'may have misled the jury by implying that the appellant's police interview did not contain information relevant to the trial'. The trial judge's observation was based on the proposition that the out of court statement by the appellant was inadmissible, for the reasons explained earlier in relation to grounds 10, 11 and 12. The example used by the trial judge simply illustrated that the contents of the video record of interview were not part of the evidence, and were irrelevant to the jury's deliberations. He made no error in conveying that to the jury. The judge told the jury, twice, that in the interview, the appellant had not made any admisions against his interests. There is no merit in ground 19, and leave to appeal on that ground should be refused.

1. It follows that there is no merit in any of the grounds of appeal, leave to appeal on each ground should be refused, and the appeal should be dismissed.

1. The appellant's appeal notice in the sentence appeal identified as a single ground of appeal that the sentence was manifestly excessive compared with sentences imposed on other people for similar offences and circumstances. The appellant's case identified two grounds of appeal. The first was that the sentence imposed was manifestly excessive; the second was that the verdict of guilty is not supported by the evidence. The appellant's written submissions on the sentence appeal focused only on the proposition that the verdict was not supported by the evidence. That ground, and the submissions in relation to it, simply repeated in summary form matters which were the subject of the conviction appeal and must necessarily fall away in light of the conclusion we have reached that the conviction appeal should be dismissed.
2. At the hearing of the appeal, the appellant raised other concerns in relation to the sentencing process, and was given leave to amend his grounds of appeal to add a ground that there was a miscarriage of justice by reason of:

(i) no pre-sentence report being obtained before sentencing;

(ii) there were contradictions in the victim impact statement of S and the evidence given by S at trial; and

(iii) the incompetence of defence counsel by failing to produce character references.

1. The total effective sentence imposed on the appellant was 6 years and 8 months' imprisonment. The individual sentences imposed were as follows:
   • count 1 - indecent dealing with child lineal relative under 16 years - 20 months' imprisonment cumulative;
   • count 2 - indecent dealing with child lineal relative under 16 years - 20 months' imprisonment concurrent;
   • count 3 - sexual penetration of a child lineal relative under 16 years - 30 months' imprisonment concurrent;
   • count 4 - sexual penetration of a child lineal relative under 16 years - 30 months' imprisonment concurrent; and
   • count 5 - sexual penetration of a child lineal relative under 16 years - 60 months' imprisonment.
2. The maximum penalty for the indecent dealing counts was 10 years' imprisonment,[71] and for the sexual penetration counts, 20 years' imprisonment.[72]

1. After the discharge of the jury, the trial judge discussed when sentencing should occur. The prosecutor indicated that he would make an enquiry as to whether or not S wished to make a victim impact statement, saying that hopefully that would be able to be produced within a short time. The appellant's counsel advised the trial judge that she would be seeking a pre-sentence report. The trial judge enquired whether the appellant had been on parole or under any community-based orders. Upon being told that the appellant had not been subject to any such orders, the sentencing judge observed 'then that's all a pre-sentence [report] will tell me, that you can't tell me'. The appellant's counsel responded 'All right. I can address you about his personal circumstances'.[73]
2. After discussion of the date upon which sentencing would occur, the trial judge asked the appellant's counsel whether there was any application pending sentencing.[74] The appellant's counsel responded in the negative. The matter was adjourned to 29 November 2016 for sentencing.
3. On 29 November 2016, the appellant's counsel sought an adjournment of the sentencing on the basis that she had only received a victim impact statement late the previous day and had had limited opportunity to discuss it with the appellant. She said that she needed an opportunity to deal with a challenge to some of the contents of the victim impact statement. After some discussion as to the nature of the proposed challenge to contents of the victim impact statement, the adjournment was granted. In the course of the trial judge's exchanges with counsel, the prosecutor raised the issue of a pre-sentence report being obtained. The appellant's counsel advised the judge that she was not seeking a pre-sentence report.[75]
4. The trial judge then drew the appellant's counsel's attention to an apparent consistency between the statements made in the victim impact statement and the observations of the Court of Appeal in VIM v The State of Western Australia.[76] His Honour said:

So all the effects that are referred to in that victim impact statement, by and large, are what's reflected in VIM, of which the courts are now well informed as a general proposition.[77]

1. Both parties filed written submissions on sentencing. The prosecutor's submissions referred to the victim impact statement and to the recognition in VIM that offending of this kind has a 'destructive effect on a child's ability to form long-term trusting relationships, and upon their self-worth. The whole of the child's childhood and potential for normal development has often been taken away from them in such circumstances'.[78]
2. The appellant's counsel's written submissions made no express reference to the victim impact statement, but submitted that the defence took no objection to the prosecution's submissions nor the authorities referred to, other than as expressly dealt with in the written submissions.
3. The sentencing proceeded on 22 December 2016. The appellant's counsel made relatively brief oral submissions, dealing essentially with the appellant's personal circumstances. The prosecutor simply relied on the written submissions.

1. The sentencing judge referred to the facts of the offending and to the appellant's personal circumstances. He then referred to the victim impact statement and noted that the appellant's counsel had wished to take instructions in relation to that statement, but had not mentioned it in her submissions. He enquired as to the position in that regard, to which the appellant's counsel responded:

No, your Honour, I have managed to clarify those matters with my learned friend, Mr Davidson, and I don't think there was any need to further address them.[79]

1. His Honour then observed that S's victim impact statement reflected many of the problems that the courts now well understand arise from this kind of offending as explained in VIM. The sentencing judge then outlined the difficulties suffered by S as recorded in her victim impact statement. The sentencing judge referred to the need for both personal and general deterrence and the need to impose a penalty that would operate to protect the vulnerability of young children. He observed those considerations meant that some mitigatory matters carry less weight than they might do in respect of other offences. He noted that there was 'not a high degree of perversion' in the offending, but that there was a significant age disparity and S was the appellant's biological daughter, both being aggravating factors. His Honour noted that it was a mitigating factor that the offender stopped the offending of his own volition. The judge noted the seriousness of the offending and the serious effects which such offending has on young children. He referred to the need to have regard to the totality principle, namely the need to ensure that the total effective sentence bears a proper relationship to the overall criminality and the need to avoid the imposition of a crushing sentence.

1. Although the appellant continues to dispute the verdicts of the jury and the facts which underlie those verdicts, it is not suggested that the facts identified by the sentencing judge are inconsistent with the evidence and the verdicts of the jury. The sentencing judge outlined the facts as follows:

[S], the complainant, was your eight-year-old biological child. She turned nine on 17 November 2009. The offending against [S] was after [another child] was stillborn on 16 July 2009 but before Christmas 2009.

Count 1 occurred when you had just tucked [S] into bed. You reached in and you stroked the outside of her vagina. You kissed her on the forehead. On the second occasion, this was an unusual occasion because it was in the daytime, [S] was in her bedroom, you lifted her onto the bed, you removed her pants, you touched the outside of her vagina and you digitally penetrated her and said, 'Ssh, don't tell mum'.

On the third occasion, [S] was in bed, you tucked her in, you reached in and you digitally penetrated her then you removed her pants and you sexually penetrated her with your penis. You told her that it was normal, to be quiet, and that you were just being silly.

Now, this period, 2008 2009 was the period in which you were drinking. [S] had reason to not complain. She was terrified about what might happen to her, her siblings and her mother. You had threatened to kill her if she'd said anything to her mother about your drinking and she was worried that you might do the same thing with respect to the offending for which I now have to sentence you.

These charges are representative of other occasions. She could recall the first time, the last time and the unusual circumstances of count 2 in the middle. She told her mother that this had happened about five or six times and the mother also gave evidence that [S] had said she hadn't complained as the offending stopped.[80]

1. The appellant was 35 at the time of sentencing. The appellant was in a relationship with L, and they had two daughters S and D, and two sons, B and P (born after these offences occurred). At the time of sentencing, the appellant had commenced a new relationship which had produced a child. The appellant's new partner remained supportive of him and wished to continue her relationship with the appellant.
2. The appellant left school after Year 9 and began a four-year apprenticeship. He worked in his chosen field in Perth and Melbourne. An attempt to commence a business in a regional town had not been a financial success.
3. The appellant was in satisfactory health and had no relevant prior convictions. He had never been sentenced to imprisonment.

1. Although framed as an assertion of manifest excess, ground 1 in substance complains that the total effective sentence is excessive. Thus it is a complaint of infringement of the first limb of the totality principle. The general principles governing appeals on the ground of totality are well-established, and were recently reiterated by this court in Salkilld v The State of Western Australia in the following terms:[81]

(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.

(2) In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.

(3) The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.

(4) The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.

(5) When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.

(6) Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is outside the available sentencing range.

1. As this court has stated on many occasions, there is no tariff for sexual offences involving children.[82] As Steytler P pointed out in The State of Western Australia v Akizuki, the circumstances of sexual offending, and of sexual offenders, are almost infinitely variable.[83] The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Rather, sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and the fact that there is no single correct sentence.[84]
2. In an analysis of the sentences customarily imposed in relation to multiple counts of sexual offences involving children, the court in VIM identified sentences around 6 years and 8 months' imprisonment as the most common sentence one would expect to see where there had been a plea of guilty.[85] In The State of Western Australia v Prince,[86] McLure P described VIM as the starting point, but undertook an analysis of comparable cases decided after VIM. That analysis revealed a broad range of cases involving pleas of not guilty of between 6 years and 14 years and 6 months' imprisonment.
3. In sentencing the appellant, the sentencing judge referred to two cases, being DKA v The State of Western Australia[87] and The State of Western Australia v PJW.[88]
4. In DKA v The State of Western Australia, the appellant had been convicted of seven counts of indecently dealing with a child who he knew to be his de facto child and two counts of sexually penetrating that child. The total effective sentence was 7 years and 8 months' imprisonment. Leave to appeal in relation to that sentence was refused.
5. In The State of Western Australia v PJW, the respondent had been convicted of seven counts of sexual penetration of a de facto child under 16 years and two counts of indecent dealing with that child. The total effective sentence imposed was 6 years and 6 months' imprisonment. The appeal by the State was allowed, and a new total effective sentence of 9 years' imprisonment was imposed.
6. The appellant did not identify any case which was said to demonstrate that the sentence imposed upon him was outside the range of sentences generally imposed for offences of this kind. The cases referred to above demonstrate that that proposition is untenable. Leave to appeal against sentence on the ground of totality should be refused.

1. There is no merit in the additional grounds of appeal raised by the appellant in the course of oral submissions.
2. The appellant's counsel did not pursue any application for the provision to the judge of a pre-sentence report. Given the absence of any previous history of parole or community-based orders, a pre-sentence report could only have addressed the personal circumstances of the appellant, and expressed a view as to his suitability to be made eligible for parole. Parole eligibility was not in issue, and was ordered by the sentencing judge. As the appellant's counsel acknowledged, she was in a position to provide the court with information concerning the appellant's personal circumstances, and she did so. There is no basis to conclude that the absence of a pre-sentence report could have affected the sentence imposed or led to any error by the sentencing judge.
3. Counsel's decision not to challenge factual matters emerging from S's victim impact statement was clearly a forensic decision open to her. It can be readily appreciated that challenging the assertions made by S in her victim impact statement as to her state of mind could well have been counterproductive. The difficulties which she recited were, as the sentencing judge observed, commonly found in victims of sexual abuse, particularly children. Challenging those matters, however that might have been undertaken, would simply have served to reinforce the appellant's lack of remorse, and potentially have been seen to cause greater stress to S. On the other hand, any advantage which might flow from challenging factual matters in S's victim impact statement may have had little mitigatory effect on the sentence imposed. There is no basis to interfere with the sentence by reason of the lack of a challenge to the victim impact statement.
4. Finally, there is no merit in the appellant's contention that counsel was incompetent in failing to produce character references. There is no evidence as to what may have been contained in any character references that might have been obtained. In any event, the sentencing proceeded on the basis that the appellant had no relevant previous criminal convictions, and was generally of good character. The fact that an offender is otherwise of good character can carry only limited weight in offences of this kind, because such offences often go undetected and, until revealed, generally do not impact on other people or on their perception of the offender.[89] The content of any further character references, having regard to the dominant considerations of personal and general deterrence and protection of children, would be unlikely to have affected the sentence imposed.
5. It follows that leave to appeal in relation to each of the additional grounds of appeal should be refused. The appeal against sentence should be dismissed.
6. In CACR 8 of 2017, the orders we would make are as follows:

(1) The application dated 1 June 2017 to adduce additional evidence in the form of internet posting and articles is allowed.

(2) All other applications to adduce additional evidence are dismissed.

1. In CACR 2 of 2017, the orders we would make are as follows:

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

[16] Exhibits 5.1 - 5.10; ts 116 - 117.

[32] Combined Blue and Green Appeal book, page 20.

[36] Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96 [88] - [105].

[37] Smith v The State of Western Australia [2014] WASCA 90 [159] - [160].

[39] Wells v The State of Western Australia [2017] WASCA 27 [13] (Mazza, Mitchell JJA & Beech J).

[40] Kochnieff v The Queen (1987) 33 A Crim R 1, 3 - 4; Peck v The State of Western Australia [2005] WASCA 20 [70] (Roberts-Smith JA, Steytler P & Wheeler JA agreeing).

[41] Mule v The Queen [2005] HCA 49; (2005) 221 ALR 85; Ritchie v The State of Western Australia [2016] WASCA 134 [38] (McLure P, Buss JA agreeing).

[42] Peck v The State of Western Australia [71]; Ritchie v The State of Western Australia [39].

[50] R v Glennon [1992] HCA 16; (1992) 173 CLR 592, 603; Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 [13].

[51] McMahon v The State of Western Australia [2010] WASCA 143 [24] - [27].

[52] Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96 [113] - [115].

[53] Craig v The Queen [2018] HCA 13 [34].

[54] See LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178 [299] - [338] (Buss JA, Mazza JA agreeing).

[55] Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, 560 - 561.

[56] RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [42].

[71] Criminal Code (WA), s 329(4) and s 329(10).

[72] Criminal Code (WA), s 329(2) and s 329(9).

[76] VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [289] - [292].

[78] VIM v The State of Western Australia [291].

[81] Salkilld v The State of Western Australia [2017] WASCA 168 [48].

[82] The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [3]; RFS v The State of Western Australia [2012] WASCA 58 [39]; WRN v The State of Western Australia [2017] WASCA 145 [29].

[83] The State of Western Australia v Akizuki [68].

[84] WRN v The State of Western Australia [28].

[85] VIM v The State of Western Australia [309].

[86] The State of Western Australia v Prince [2011] WASCA 22 [19] - [20].

[87] DKA v The State of Western Australia [2015] WASCA 112.

[88] The State of Western Australia v PJW [2015] WASCA 113.

[89] MPD v The State of Western Australia [2008] WASCA 57 [58]; WRN v The State of Western Australia [32].