LTC -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 60 (14 April 2021)

1. The defence case was that none of the six offences happened. The appellant did not dispute that E stayed at the appellant's house at times when the appellant was there but said that he did not do any of the things alleged against him (ts 32 - 33, 228). Senior counsel for the appellant emphasised the onus and burden of proof (ts 32, 35, 228) and the timing of the allegations (ts 33, 229). The appellant was said to be without a relevant criminal record (ts 34, 229). Senior counsel for the appellant foreshadowed that the appellant would give evidence (ts 34) and asked the jury to consider his and E's evidence carefully (ts 35).
2. In his closing address senior counsel for the appellant relied on the appellant's evidence (which was said to be consistent) as against E's evidence (which was said to be inconsistent, unreliable and lacking in detail) (ts 228 - 230). The point was made that with the passage of time there was no further evidence the defence could adduce (ts 229). Senior counsel referred to inconsistencies in E's child witness interviews and her oral evidence at trial (ts 229), inconsistencies between the evidence of E and her mother (ts 229), the delay in the complaint (ts 230) and the implausibility of the alleged offending - especially when E said that the appellant and his wife treated her well (ts 230).

1. The prosecution relied on evidence from E, E's mother and the police investigating officer.
2. From the commencement of the trial, the prosecutor made it clear that his case very much rested on E's evidence and whether the jury found her evidence credible and reliable (ts 28, 31 - 32). So too, in charging the jury, the trial judge emphasised that before convicting the appellant of any count the jury would have to satisfied beyond reasonable doubt as to the credibility and reliability of E's evidence relevant to the count (ts 191, 234, 236, 239). The trial judge gave a Longman direction to the effect that E's evidence should be scrutinised with special care - and especially so given the forensic disadvantage the appellant was under by reason of the delay in the complaint (ts 236 - 239).

1. E's evidence was in two parts. The first consisted of two visually recorded child witness interviews (both recorded on 21 August 2018)[1] which were edited by consent and played to the jury. E also gave oral evidence via video-link at the trial. It is convenient to summarise the evidence by reference to the three incidents drawing together both sources of evidence.
2. At the time of the child witness interviews, E was 16 years of age.[2] E had turned 18 shortly before she gave oral evidence at the appellant's trial (ts 41).
3. In terms of general evidence, E was unable to say how old she was when she first started sleeping at the appellant's house; nor how often she would sleep over (ts 55). When pressed E suggested that she slept over at the appellant's house a few times a month as it was easier for E's mother with her work (ts 55 - 56). The appellant was not always there when E stayed at the appellant's house - he worked FIFO (ts 56 - 57, 59 - 60). Whenever E stayed at the appellant's house at least the appellant's wife and his brother-in-law (who lived with the appellant and his wife) were in the house (ts 44, 60). The appellant's brother-in-law died in 2018 (ts 44, 58). E said that she had a pretty close relationship with the appellant's wife and often slept in the appellant's wife's room when she stayed at the appellant's house (ts 56, 60). Other times E slept in a spare room (ts 56, 60, 69). The appellant slept apart from his wife - he slept on the couches in the TV room (ts 49 -50, 56, 60, 69).
4. Photographs of the appellant's home were in evidence.[3] The TV room in which the offences allegedly occurred was next to a dining area - the two being separated by a low wall that allowed anyone in the dining room to see into the TV room. A door from the TV room led to the bedrooms in the house. The distance from the door to exit the TV room to the appellant's wife's bedroom was a couple of metres - the wall behind the TV was one of the walls to the appellant's wife's bedroom.[4]
5. E said that, as a couple, the appellant and the appellant's wife treated her well (ts 89). She accepted that the appellant and his wife looked after her when E's mother and grandmother were unable to do so (ts 89). E acknowledged that the appellant and his wife had given her a place to stay and occasional presents (ts 90 - 91) - it was the appellant who gave her the presents (ts 93).

The first alleged incident the subject of counts 1 and 2 - when E was 6 years old (between February 2008 and February 2009)

1. E commenced the child witness interview stating that when she was young her mother's uncle (that is, the appellant) had sexually assaulted her. E said it happened when she was six years old (CWI-1 pages 4, 11, 25) - she was in kindy (CWI-1 page 25). However, E explained that: 'it's kind of - [a] bit blurry, cos I don't really remember' (CWI-1 page 4). When the interviewer returned to this incident E said that it was 'kind of a bit fuzzy' (CWI-1 page 11) and later, when asked whether she remembered anything else, again said '[e]verything's a bit fuzzy' (CWI‑1 page 12).
2. The substance of E's evidence as to the first alleged incident was that she was sitting directly in front of the TV watching a fishing channel (CWI-1 page 12; ts 53). The appellant was on another couch facing an outdoor area (ts 53). The appellant asked E to come and sit with him (CWI-1 pages 12 - 13). E went and laid with the appellant on the other couch - she was facing away from the appellant with her legs towards his stomach and the appellant was 'kerbed' around her, although she was 'not 100 per cent sure' how her legs and feet were arranged (CWI-1 page 13).
3. The appellant then started touching E's thigh with his hand rubbing up and down under her clothes from above the knee to her hip (CWI‑1 pages 11 - 14). He moved slowly to E's vagina and touched her clitoris with his hand and finger in an up and down and around motion. E was not able to say how long that lasted. When it finished the appellant rolled back, took his hand out of E's pants and faced the back of the couch (CWI-1 pages 11 - 12, 14).
4. E said that she walked off (CWI-1 page 12). When asked what she then did, E initially said she thought she started watching TV (CWI-1 page 12). E immediately corrected herself stating that she got up to see her aunt, upstairs, and sat with her at the computer for a bit (CWI-1 pages 12, 14).
5. In cross-examination at trial E confirmed her statements that her recollection was 'blurry', 'fuzzy' and 'uncertain' because she did not really remember the first alleged incident (ts 60). E could not say what school she was at when the incident occurred (ts 60). E accepted that there was an inconsistency in what she said at the child witness interview as to whether, after the incident, she started to watch TV or instead went upstairs to see the appellant's wife (ts 66 - 67). E said she went straight upstairs to see her aunt but did not tell her what had happened (ts 67).
6. At one point, however, when being cross-examined about the first alleged incident, E accepted that her difficulty in being precise about any of the incidents was because it was all a bit blurry to her (ts 61). Also, she was not sure whether part of what had been said at the child witness interview about it being really blurry was in reference to all three incidents (ts 61).
7. This was apparently a reference to what E said after an initial break in the child witness interview. The following exchange occurred:
   1. He was - mm, I knew - only remember certain, like - only three or - like, three times that - that I remember. Like, it - there - - -
   2. Mm hm.
   3. - - - but it's, like, really, really blurry. Like, fuzzy. Like, my brain's, like, decided to be, like, 'No, not going to remember that.'[5]

The second alleged incident the subject of counts 3 and 4 - when E was 12 years old (between February 2014 and April 2014)

1. E said that she thought - but was not 100 per cent sure - that she was living at the appellant's house when the second alleged incident happened; she had been staying at the house for a lengthier period of time, not just a sleepover, because her mother was living somewhere else, at a named Perth suburb, where she could not have children (CWI‑1 pages 26 - 27). The incident occurred a while after E's 12th birthday (ts 69). E said that she had just turned 12 (CWI-1 page 15). However, she was unable to remember what time of year it was (CWI‑1 page 27).
2. On this occasion E stated that: 'I (indistinct) uh this time I can remember very, very like - - -' (CWI-1 page 15).
3. E said that the appellant had been drinking all day. It was around 9 or 10 pm at night. E was going to bed with her aunt. The appellant asked E if she wanted to watch TV. She said yes. E sat on the couch opposite the TV. The appellant grabbed her forearm, very tightly, and pulled E over to the couch he was on, pushing her down to face the window. The appellant and E watched TV for about 10 - 15 minutes. The appellant then started rubbing his hand up and down E's thigh, slowly moving his hand down her pants, and started rubbing E's clitoris and vagina. The appellant moved his hand further down and put one of his fingers inside her vagina and moved it up and down for a few minutes (CWI-1 pages 15 - 19; ts 53 - 54).
4. When the appellant stopped he acted like nothing was happening. The appellant continued to watch TV. After about 10 - 15 minutes E went up to the appellant's wife's room and went to sleep. E's aunt was in bed already asleep when E arrived at the room (CWI-1 page 16).
5. The child witness interview then records the following:
   1. ... And what's the first thing you remember when you woke up?
   2. I woke up, and I was - and I was - it felt like I was dreaming that night.
   3. Mm.
   4. Like, it felt - I felt very groggy when I woke up - - -
   5. Mm hm.
   6. - - - and very, like, sick. Like, I just wanted - like, I vomited when I, like (indistinct) but I, like, stood up and I walked around for a bit, and then I vomited a few minutes later. It could - I don't know if it was involving that. I could have been sick or something, but, like, that's what I remember. I remember waking up, walking around for a bit and then vomiting.[6]
6. As the child witness interview went on, E gave more details. E said that the appellant was initially rubbing over her clothes. He was going up and down but on a side angle. However, later the appellant put his hand under E's pants. He started rubbing E's clitoris and vagina using his fingers and his hand. The appellant moved his hand down, put a finger in E's vagina going up and down for a few minutes, and stopped. The appellant did not say anything while he was doing this (CWI-1 pages 18 - 19).
7. E gave other details of what had occurred that day. She said that the appellant had been drinking all day. When asked whether she remembered what she was doing that day, E said that she had been cooking with her aunt all day making bread and baked goods. She also mentioned that they (E and her aunt) had watched TV together. E thought that they had watched the Disney channel. E said that the appellant had gone out in the morning and got a really big box of beer and was drinking it outside in the pool area (CWI-1 pages 16 - 17, 26).
8. In cross-examination E confirmed that when the second incident happened she was living at the appellant's house for a longer period (ts 68). However, she was 'not sure' whether it was a few months. (ts 68). E was challenged about her recollection of the timing and whether the incident occurred while she was living at the appellant's house:

Okay. I'm - I'm not going to hold you to a number of days or number of nights - - -?---Mm hmm.

- - - but it wasn't just a sleepover for one night, you were actually staying there for a lengthier period of time?---Yes.

Have I got that right? Okay. Are you sure you've got that detail correct? Are you sure you didn't live at the house when you were actually only eight years old back in 2010?---I'm not sure, I'm sorry.

Okay. And the reason I'm asking you about that is - - -?---Mm hmm.

- - - are you sure this event that you say happened when you were 12 actually occurred?---Yes, I'm sure it occurred.

Okay. And you're sure it occurred when you were living there at the house?---Yes.[7]

1. E rejected the suggestion, in cross-examination, that the allegations were not actually real and part of a bad dream. She said: 'I know it's real' (ts 70) and, in re-examination, recalled the events actually happening (ts 93). Otherwise in cross-examination, apart from saying that she could not remember what she was wearing that evening, E in substance confirmed the truth of what had been said at the child witness interview (ts 68 - 72).

The third alleged incident the subject of counts 5 and 6 - when E was allegedly 13 years old (in December 2015)

1. The interviewer questioned E on a number of occasions about the timing of the third alleged incident. E initially said she had just turned 13 (CWI-1 page 4). It was the school holidays and E had been dropped at the appellant's house (CWI-1 page 4). E later clarified that it was the summer school holidays over the long Christmas break but could not initially remember the month (CWI-1 pages 23, 25). E said that she had 'just turned 13' (CWI-1 page 25). When asked whether she had turned 13 before or after the events happened E said:

I'm not sure. Like, I knew I was 13, but I don't know if it was, like, just before my birthday or just, like - bit - that make sense?[8]

1. E then said she was definitely 13; it was just as E turned 13 or a few months after E turned 13 (CWI-1 page 25).
2. After a break, and resumption of the interview, E said that the alleged incident happened before Christmas. E said that she could remember having Christmas a few days after the incident happened (CWI-1 page 29). The interview concluded. There was, however, a short further interview the same day in which the interviewer sought to clarify the timing of the alleged incident. E was asked whether the alleged incident occurred before Christmas when she was 12 turning 13 the following year or whether she was already 13 turning 14 in February. E said that she was 13 turning 14 (CWI-2 page 3).
3. E had been swimming in the pool at the appellant's house and had changed into clothes (CWI-1 page 4; ts 54). The appellant was on the couch in the TV room facing the window. E said that the appellant was drunk. The appellant asked E to come and sit with him. E refused and said she did not want to sit with the appellant. The appellant grabbed E's wrist, with his hand, and pulled E towards him to try and get E to sit down. E sat down but ended up forced into a lying position with her back and legs towards the appellant. The appellant lay down towards E, and the TV, in a kind of spooning position. The appellant made E watch TV with him for about 10 minutes (CWI-1 pages 5 - 8, 21).
4. The appellant started rubbing E's thigh under her clothes with his hand - although E said it was more like a 'grab' than rub. E said that the appellant then put his hand down her pants. He started touching E's vagina and trying to finger her. E said that the appellant was touching her clitoris with his finger and hand. She described the appellant applying a 'round-and-round motion'. E was trying to move away. After rubbing E's clitoris the appellant moved slowly down and went to put his fingers in E's vagina. However, he did not put his fingers into E's vagina (CWI-1 pages 5, 8 - 10).
5. Early in the interview E said that the appellant did not put his fingers in her vagina this time because 'I ... got up and walked away' (CWI-1 page 5). When the interviewer was breaking down E's recollection, E gave different evidence. This exchange occurred:
   1. Did he put his fingers in your vagina?
   2. No.
   3. No.
   4. And then, um, he heard my aunty coming, so he kind of, like - like, moved everything.
   5. Mm hm.
   6. And then she, like, came and sat with us, and she's, like, '[E], do you want to come sit with me?' And - - -
   7. What was happening when your aunty came in?
   8. Um, he was kind of move - like, he, like, pulled his arm out and then, like, put it behind me - - -
   9. Mm hm.
   10. - - - and, like (indistinct) how to put it(?) - arranged himself to not look as - I don't even know what the word for it - - -
   11. So you said he arranged himself. So tell me what he did when he arranged himself.
   12. So he kind of - he was - went from, like, in the - like, a spooning position to flipped back over on his back, and he had his legs, like, kind of, like, bent with his knees up to the ceiling.
   13. Mm hm.
   14. And then I was kind of, like - kind of swung myself back around and sat up, and I was, like, just sitting there.
   15. Mm hm.
   16. And then my aunty's like, 'Oh, [E], come sit with me,' and I was, like, 'Yeah, sure.'[9]
6. E stated that, after the incident when the appellant's wife entered the TV room, E went to sit with her (CWI-1 page 5; ts 74). E sat with the appellant's wife until E was picked up by her grandmother that night. After being picked up, E got in the car, did not talk, got back to her grandmother's house and had a shower before going to bed. In the morning E felt really sick and wanted to vomit every 10 minutes. E ignored the incident and tried to pretend it did not happen (CWI‑1 pages 5 - 6).
7. E told the interviewer that the appellant's brother-in-law was in the house when the third alleged incident happened - although he might have been walking the dogs (CWI-1 page 24).
8. In cross-examination at trial E accepted that when she first spoke about this alleged incident in the child witness interview she said that she had just turned 13 - by which she meant in February or March 2015 (ts 72 ‑ 73). E accepted, however that she later changed her recollection to December 2015 (ts 73). E confirmed that the third alleged incident occurred in the middle of December 2015 (ts 73). E said that she was not making it up and remembered the events because it was the last day she had slept at the appellant's house. However, she was unsure whether it was a weekday or a weekend (ts 73).
9. E also accepted that there was an inconsistency in what she said at the child witness interview as to how the third alleged incident ended. Initially E said that she got up and walked away. Later E said that it stopped because the appellant's wife came into the TV room and the appellant moved his position. E said that she did not know, and was not really sure, which version was correct because it 'happened years ago' (ts 75 - 76).
10. E was cross-examined about the details of what happened in this alleged incident. E accepted that, in the child witness interview, she added some details about how she came to be sitting with the appellant. Moreover, there was, in cross-examination, an incidental discrepancy exposed as to whether E had been sitting on the other couch or was walking past the appellant when she was pulled over to sit with the appellant. Eventually E said she had been walking past the appellant. E said she 'was just confused' about whether she had been sitting or walking past but denied making up a story. Otherwise E was unable to recall what she had been wearing at the time of the third alleged incident (ts 86 - 89).

Evidence that the appellant said inappropriate things to E

1. E stated at the child witness interview that the appellant used to whisper 'really inappropriate stuff' to her (CWI-1 page 20). In cross‑examination E denied making up that the appellant said inappropriate things to her (ts 66). However, E accepted that at the child witness interview she had said, in substance, that she could remember some of the things the appellant said to her and then said, almost immediately, that she could not remember them (ts 66).

1. E said, on a couple of occasions, that the first time she spoke to anyone about the alleged incidents was in May 2018 when she spoke to a school counsellor having started at a new school in 2018 (ts 77, 94). She did not, however, provide anyone with any details about the alleged incidents until the child witness interviews in August 2018 (ts 94). When senior counsel for the appellant was given leave to raise the matter after re-examination, E confirmed discussing the allegations with her mother before the child witness interviews but said that she did not discuss the details of the alleged incidents with her mother (ts 101 ‑ 103).
2. When asked why she did not tell anyone about the alleged incidents before May 2018, E said that she did not feel comfortable telling anyone before the counsellor (ts 95).

1. E's mother explained that she was a single mother when E was growing up. E spent time at the appellant's home - partly because the appellant and the appellant's wife were family, had a pool and lived nearby E's grandmother. E started spending nights at the appellant's house when she was less than 1 year old. E's mother would drop E off in the late afternoon and pick her up in the morning. The arrangement continued as E got older. It was a regular thing (ts 107 - 109).
2. When E was 6 years of age she was staying at the appellant's home once a fortnight - sometimes for two nights. The arrangement continued as E got older (ts 109). However, E started to reduce the occasions she slept over at the appellant's house from roughly September 2013 or early 2014 and then stopped doing so (ts 114 - 115). E's mother had no recollection of the last time E slept at the appellant's house (ts 115).
3. E's mother gave evidence that there was one (and only one) occasion when E lived at the appellant's home for a period of time. E's mother was between rentals. E ended up staying at the appellant's home for maybe six to eight weeks. E's mother said this would have been in 2010 when E was 8 years old. E's mother identified it as 2010 as that was about the time she had started a relationship with her now husband (ts 109 - 113, 118).
4. E's mother thought, however, that it was possible that there were occasions where E spent more than a few nights at the appellant's house - maybe during school holidays - as that had happened in the past (ts 113).
5. In cross-examination E's mother confirmed that she had contacted the police about having discussions with E concerning the allegations in August 2018. E's mother confirmed informing the police that E had confirmed sexual harm in indecent sexual touching; but she, E's mother, also informed the police that no penetration occurred (ts 120 - 121). When, however, senior counsel for the appellant asked whether, in having the conversation with E, E's mother got to the understanding that no penetration had occurred, E's mother said that in fact she did not ask that specific question. E's mother had been told by the police to ask but she just could not ask E and did not ask E whether there had been sexual penetration (ts 122).

1. The investigating police officer was Detective Sergeant Biggs. He provided some information as to the appellant's work records and proved E's birth certificate. In cross-examination the investigating officer confirmed that the appellant had no criminal record in Western Australia (ts 135 - 136). He also confirmed that police records demonstrated that E's mother telephoned the police on 8 August 2018. E's mother was recorded to have discussed the matter with E who had 'confirmed sexual harm in indecent/sexual touching and confirmed no sexual penetration occurred' (ts 137 -138).

1. The appellant gave evidence in his defence.
2. The appellant was 59 at the time of trial. His wife was 68. They had been married since 1992. The appellant had served an apprenticeship as a fitter turner machinist and had thereafter worked in a variety of roles in the mining industry. From 1998 to 2016 the appellant had worked on a FIFO basis. Initially, as a supervisor, the appellant had worked two weeks on and one week off. Later, in other managerial roles, he had worked nine days on and five days off. The appellant and his wife had never had children. Her health was not very good at the time of trial. The appellant was his wife's primary care giver.
3. When asked about sleeping arrangements, the appellant said that he slept on a lounge in the TV room. His wife slept in the master bedroom. The appellant was a loud snorer and he changed rooms to keep the peace. When asked about his drinking habits, the appellant admitted to drinking at home. He might have anywhere between two beers to a dozen. The appellant denied drinking to excess or ever getting drunk at home - except perhaps late at night as no one came to the house then. The appellant said that 12 beers would have no or not much effect on him. The appellant might start drinking after lunch but he never drank to the point where he was drunk. The appellant had ceased drinking altogether from 13 June 2018.
4. When asked about his relationship with E, the appellant described her in positive terms. There were no arguments, no ill-will and no falling out (ts 159). The relationship was 'good' and 'close'; the appellant treated E like a niece (ts 164, 169). The appellant occasionally bought E gifts (ts 150 - 151, 165 - 166).
5. The appellant accepted that E had slept over at his house from when she was very young (ts 147, 159 - 160). She did so from 2002 to 2016 (ts 147) - although later the appellant qualified that recollection stating that he had no memories of E sleeping over pre-Christmas in 2016 but maybe had memories of E sleeping over in 2015 (ts 164). There were times when E stayed while the appellant was away at work and times when he was at home (ts 149). E sometimes slept in his wife's bed but had her own bedroom (ts 147, 161). The appellant recalled E living with him and his wife for a number of weeks on one occasion. The appellant said that this happened in 2008 (ts 149). He thought E might have been in grade 3 or 4, although she was held back a year (ts 150).
6. The appellant denied all allegations of sexual offending against E, using force in relation to E or whispering inappropriate things to E (ts 152, 169 - 171).

Ground 1: convictions unreasonable or cannot be supported The parties' submissions on ground 1

1. By ground 1 the appellant contended that the verdicts of guilty on counts 3 and 4 'were unsupported by the evidence and/or were unreasonable'. In other words, the appellant invoked s 30(3)(a) of the Criminal Appeals Act 2004 (WA).
2. The appellant's submissions touched on some of the legal principles applicable to when this court must allow an appeal because, having regard to the evidence, a verdict of guilty is unreasonable or cannot be supported. Otherwise all that was said in the appellant's written submissions in support of ground 1 was that:

A close analysis of the evidence at trial reveals the jury, even one acting cautiously and unwilling to act on the complainant's word alone, must have had a reasonable doubt in relation to count 3 and 4 in the same way they had a doubt about counts 1, 2, 5 and 6.[10] (original emphasis)

1. As the State submitted, ground 1 is unparticularised. It is unclear from the appellant's written submissions whether ground 1 is merely a variant of ground 2 or whether it has independent content.[11] To the extent that ground 1 had independent content, the State pointed out, correctly, that there was no complaint as to the trial judge's direction to the jury.[12] The State also relied on E's detailed evidence as to the offending the subject of counts 3 and 4 and the limited cross‑examination as to that evidence by comparison to the cross‑examination the subject of the other counts.[13] The State submitted that there was nothing in the evidence that gave rise to a reasonable doubt with respect to counts 3 and 4.[14]
2. Immediately before the appeal hearing, by email, the appellant's solicitors provided particularisation of what was relied upon in support of ground 1. As so particularised ground 1 relies on the circumstance that E's evidence was to the effect that the incident that is the subject of counts 3 and 4 occurred during the occasion when E was living at the appellant's home - at a time when E said she was 12 years old. However, E's mother's evidence was to the effect that E would have been around 8 years old during the period when she resided with the appellant and his wife. It was said, moreover, that there was no evidence given by either E or E's mother regarding any other period of time when E resided at the appellant's house.
3. Referring to the four year differential, counsel for the appellant submitted that there was such a significant or marked disparity in the evidence as to when the alleged offending occurred that the jury should 'full stop' have had a reasonable doubt about the reliability of E's evidence.[15] In substance the appellant argued that the four year disparity meant it was not open to convict him on counts 3 and 4 - the alleged inconsistency in the prosecution's evidence as to when the offending occurred meant that the jury must have had a reasonable doubt as to the reliability of E's evidence as to the alleged offending.[16]
4. Accordingly, ground 1 was wholly dependent on the alleged inconsistency in the evidence as to when the alleged events the subject of counts 3 and 4 were said to have occurred and E's age at the time of the events.[17]

Verdict unreasonable or cannot be supported having regard to the evidence: the applicable legal principles

1. Whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported, is a question of fact.[18]
2. In MEN v The State of Western Australia[19] this court recently summarised the general principles governing the determination of appeals alleging that a jury's verdict is unreasonable or cannot be supported having regard to the evidence. Relevantly:

(a) 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.

(b) 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.

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

(d) 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.

(e) 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.

(f) 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.

(g) 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 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.[20]

1. The critical question for this court - whether on this court's assessment it was open to the jury, acting rationally, to be satisfied beyond reasonable doubt that the accused was guilty - involves an assessment of the whole of the evidence. In answering the critical question, this court must bear steadily in mind the jury's advantage in resolving conflicts in the evidence of various witnesses.[21]
2. The court's reasons must disclose its assessment of the capacity of the evidence to support the verdict. The nature and extent of the court's task, in a particular case, will be informed by: (1) the elements of the offence; (2) the accused's defence; (3) the issues in contest at the trial; (4) the manner in which the trial was conducted; (5) the way in which the case was ultimately left to the tribunal of fact; (6) whether the tribunal of fact was a judge (who must state the principles of law that he or she has applied and the findings of fact on which he or she has relied) or a jury (which does not give reasons); and (7) the particulars of the ground of appeal.[22]
3. The functional demarcation between the province of the jury and the province of an appellate court was described by the High Court in Pell v The Queen.[23] The High Court emphasised that the assessment of the credibility (and, we would add, the reliability) of a witness by the jury on the basis of what it has seen and heard in the context of the trial is within the province of the jury as representative of the community.[24] By contrast:

The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence ... proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.[25] (emphasis added) (citations omitted)

1. In both Pell and MEN it was recognised that an appellate court should view a video-recording of a witness's evidence only where there is a real forensic purpose in doing so - something which is likely to arise only in exceptional cases.[26] MEN mentioned, by way of example of a legitimate forensic purpose, where the viewing of a video would assist the court in understanding precisely the effect of a witness's evidence so far as gestures had been made such that what it was that the witness was indicating could only be discerned visually.[27]
2. In this appeal the State invited the court to view two portions of the video recording of E's child witness interviews.
3. The State said that it was necessary for the court to do so to enable the court to understand the effect of parts of E's evidence. The State submitted that viewing the two passages would enable the court to view gestures used by E which clarified the otherwise unclear meaning of words used in the child witness interviews. The relevant passages are reproduced at [28] and [30] above.
4. Counsel for the appellant was content for the court to view the recording of the child witness interviews on that basis.[28]

1. The initial question for consideration in relation to ground 1 is whether the court should view the video of E's child witness interviews.
2. Two observations should be made at the outset. First, any such viewing cannot be for the purpose of assessing E's credibility and reliability. We must proceed on the assumption that E's evidence the subject of counts 3 and 4 was assessed by the jury to be credible and reliable. Viewing the video is suggested as being necessary only for the limited purpose of understanding the effect of part of E's evidence which is said to be unclear. Second, as a corollary to the first point, it is not necessary to consider the whole of the video of E's child witness interviews. The most that ought to be viewed is the part of the video referrable to those passages said to be unclear and in respect of which E's gestures may assist the court in understanding the effect of the evidence.
3. For ease of reference we will repeat the relevant passages from the first child witness interview. The relevant passages in relation to which the court is invited to view the transcript are those where E states:

I (indistinct) uh this time I can remember very, very like - - -[29]

He was - mm, I knew - only remember certain, like - only three or - like, three times that - that I remember. Like, it - there - - -[30]

1. We accept that, on the face of the transcript, the effect of that evidence is unclear. The State contends that viewing the video will assist the court to understand the effect of the evidence as what is said is clarified by gestures. Counsel for the appellant was content for the court to view the relevant portions of the video to enable the court to understand the effect of the evidence by reference to the gestures. In the circumstances we have viewed the relevant portions of the video.
2. It is apparent from the transcript of the first child witness interview that the first passage occurs in a context where E is moving from her recollection about the first alleged incident to her recollection about the second incident. As E states the words, 'this time I can remember very, very', she nods her head. At about the time E says 'like' her right hand sweeps from her lap across to her right so that, arm partially extended, with an open hand E gestures to the space immediately to her right. The State submits that the meaning conveyed by the gesture is that, in relation to the second incident, E was in effect saying that she could remember as if the events were 'right here'.
3. We accept that this is the substance of E's evidence when the passage in the transcript is read with the benefit of viewing the relevant portion of the video of the child witness interviews.
4. The second passage occurs after a break in the first child witness interview. As E says '[l]ike, it there - - -' her right hand gesticulates, moves in front of her face, pauses, and then moves forward to emphasise the word 'there'. The State submits that the meaning conveyed by the gesture is that E was in effect saying that on these three occasions she could directly recall the events 'in front of her' or she was able to 'see [the events] in her mind's eye'. We do not accept that submission. It overreaches. As we view the video, E's gestures signify little more than her endeavouring to find appropriate words to emphasise - through the word 'there' - that these, and these alone, are the three incidents she remembers.
5. We turn then to consider the sufficiency and quality of the evidence in relation to the second incident.
6. Before the jury could convict the appellant of the offences the subject of counts 3 and 4 it was necessary for the jury to positively reject the appellant's evidence denying that he committed the offences. If the jury believed those denials, or thought there was a reasonable possibility that the appellant's denials might be true, the jury was required to deliver verdicts of not guilty. It was not in contest, on appeal, that it was open to the jury to reject the appellant's denials having seen and heard him give evidence. Plainly, by their verdicts of guilty on counts 3 and 4, the jury must have rejected the appellant's evidence in relation to those counts.
7. E's evidence in relation to the second incident the subject of counts 3 and 4 has already been referred to (see [29] - [37] above). E's evidence in relation to counts 3 and 4 was particularly clear and detailed. It was, on E's account when understood by her accompanying gesture, something that she remembered as if it was before her - in this respect to be distinguished from E's 'blurry' or 'fuzzy' recollection about the first alleged incident when E was only 6 years old. While, in this respect, there was a general attack at trial on the integrity of E's recollection (see [27] - [28] above), E's evidence taken as a whole distinguished between her recollection as to the first alleged incident and the other incidents.
8. There were, as has been seen and will be the subject of further consideration in relation to ground 2, some inconsistencies in E's evidence concerning the third alleged incident. On counts 3 and 4, however, the challenge to E's evidence was limited. There was a suggestion in cross-examination and the defence's closing address that E was unable to distinguish between dream and reality. That forms no part of the appellant's argument on appeal in support of ground 1. By the verdicts of guilty on counts 3 and 4 the jury accepted as credible and reliable, beyond reasonable doubt, E's evidence that the events were real rather than a dream. That conclusion was reasonably open to the jury. The contention that the verdicts of guilty are unreasonable or cannot be supported rests solely on an alleged inconsistency as to when the second incident was said to have occurred (ie when E was living at the appellant's house) and E's age at the time of the second incident (12 years old).
9. The inconsistency arises on a comparison of E's evidence and E's mother's evidence.
10. In evaluating the significance of the suggested inconsistency it is important to understand how the question arises. In the course of the first child witness interview E was asked about the time when the appellant fingered her. E responded that she had just turned 12. E then makes the statement which, by reference to her gesture, is to be understood as E saying that she could remember the occasion as if the events were 'right here'. E goes on to give the detailed account that has been reproduced at [31] - [35]. That account refers to the approximate time of the incident, a precise narrative account of what occurred and what E, the appellant and the appellant's wife had been doing at the appellant's house that day. There was then a 10 minute break in the interview.
11. Well into the resumption of the child witness interview, having raised a number of other matters, the interviewer went back to the second incident. This exchange then occurs:
    1. ... And you said you were 12. Do you remember anything else that was happening around that time that you were 12?
    2. I were - would have - I think - I'm not 100 per cent sure - but - I think I was living there at the time, cos mum was living somewhere else, and they couldn't have kids there.
    3. Okay. Do you remember where your mum was living?
    4. She was living in [a Perth suburb] at the time.

1. Okay. And so you were staying - - -
2. Yeah.
3. - - - at their house. Okay. Do you remember what time of the year that was?
4. Um, yeah, not sure.[31]

1. The substance of E's evidence was that the offending the subject of the second incident occurred when she was aged about 12. E was quite definite about her age at the time of the second incident. By contrast, E's recollection that she was living at the appellant's house at the time of the second incident is extracted well after her initial evidence as to the events. And it is prefaced by E saying that she is 'not 100 per cent sure'.
2. This is not a case where E, as complainant, confidently stated that the offending had definitely occurred during the period that she was living at the appellant's house because E's mother was living somewhere else where she could not have children living with her. E's evidence connecting the second incident to the period when she was living at the appellant's house was tentative. There was nothing inherent in E's recollection of the events which meant that it had to have occurred during the period that she lived with the appellant and the appellant's wife or that this lengthier stay was integral to E's evidence of the offending.
3. The time period at which E lived at the appellant's house was the subject of E's mother's evidence. On E's mother's recollection - based on other events - this would have been about 2010,[32] a year when E was 8 years old rather than 12 years old. E's mother mentioned that she was then living for a short time in the same Perth suburb as was mentioned by E.[33] Two further things should be said about E's mother's evidence. First, in her evidence E's mother had some difficulties in fixing dates. For example, when asked when the appellant's brother‑in‑law passed away, E's mother initially could not remember and then mentioned 2016 or 2017. In fact the brother-in-law had died in mid‑2018 some 21 months before the trial.[34] Second, even though this was the only occasion on which E lived at the appellant's house for a lengthy period of time, E's mother confirmed that it was possible that there were other occasions on which E spent more than a few nights at the appellant's house.[35]
4. Accordingly, it was possible that E's mother was mistaken in identifying 2010 as being the year in which E lived at the appellant's house for a period. It was also possible that E was mistaken about the incident occurring while she was living at the appellant's house when E's mother was living in a location where she could not have children, there being other occasions into 2014 where E stayed over at the appellant's house and the offending could have occurred. On this possibility E was mistaken as to the nature of her presence at the appellant's home rather than the timing of the offending or whether the offending in fact occurred. Against these possibilities, at its highest from the appellant's perspective insofar as the verdicts of guilty mean that E's evidence of the offending was assessed to be credible and reliable, it was possible that the second incident did not occur when E was 12 years of age - as she recalled - but instead occurred when she was 8 years of age.
5. In a case of this nature, the jury's advantage in seeing and hearing the complainant give her evidence is considerable. So too the jury had a considerable advantage in seeing and hearing E's mother give her evidence. The timing discrepancy evinced by comparing the evidence of E and E's mother was quintessentially a matter for the jury in weighing the credibility and reliability of E's evidence concerning the second incident.
6. We are satisfied that it was reasonably open to the jury to take the view that any inconsistency inherent in E's tentative statement that the second incident occurred when she was living in the appellant's house concerned E's recollection as to the reason for her presence in the appellant's house rather than the offending itself. It was reasonably open to the jury to conclude that the alleged inconsistency was not of material significance having regard to the whole of E's evidence. We are satisfied that the alleged inconsistency does not, either alone or in combination with any other evidence, give rise to a reasonable doubt as to whether the offending the subject of counts 3 and 4 occurred.
7. In our opinion, after evaluating and weighing the competing evidence at the trial, in the context of the trial record as a whole, the jury was entitled:
   1. To accept E's evidence, beyond reasonable doubt, that, when she was 12 years old, the appellant rubbed her thigh with his hand and penetrated her vagina with his finger.
   2. To reject, as mistaken, E's tentative evidence that this occurred when she was living at the appellant's home because her mother was living somewhere else where she could not have children - there being evidence, which the jury was entitled to accept, that E continued to stay over at the appellant's home into 2014 after turning 12.
   3. To reject the appellant's evidence that he did not commit the offences.
8. A jury, acting reasonably, was entitled to be satisfied beyond reasonable doubt, upon the combined force of evidence which they were entitled to accept, that the appellant had rubbed E's thigh with his hand and digitally penetrated her vagina as alleged by counts 3 and 4 of the indictment.
9. Having undertaken an independent assessment of the whole of the evidence at trial, both its sufficiency and quality, we are satisfied that the verdicts of guilty on counts 3 and 4 were not unreasonable. Nor were the verdicts of guilty unsupported by the evidence. To the contrary, the verdicts of guilty on counts 3 and 4 were supported by evidence that the jury was entitled to accept. Our assessment of the single matter complained about by the appellant in support of ground 1 does not persuade us that the jury, acting rationally, should have decided that the prosecution had not proved counts 3 and 4 beyond reasonable doubt. On the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences the subject of counts 3 and 4. After paying full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and that the jury had the benefit of having seen and heard the witnesses, we do not have a reasonable doubt as to the appellant's guilt or the correctness of his convictions on counts 3 and 4.
10. It would not be dangerous, in all the circumstances, to allow the verdicts of guilty on counts 3 and 4 to stand. The evidence, on the record, is not such as would permit a conclusion that there is a significant possibility that an innocent person has been convicted.
11. Ground 1 fails.

1. By ground 2 the appellant contended that the verdicts of guilty on counts 3 and 4 were inconsistent with the verdicts of not guilty on the other counts. It was said that there was no evidence to distinguish the verdicts of guilty on counts 3 and 4 so as to support a finding of guilt beyond reasonable doubt over and above that concerning the other counts in the indictment.
2. Counsel for the appellant accepted, correctly, that ground 2 could be viewed as a subset of ground 1.[36] The complaint of inconsistent verdicts was a specific instance that fitted within the broader ground that the verdicts of guilty on counts 3 and 4 were unreasonable or could not be supported having regard to the evidence. However, ground 2 was presented independently of ground 1. It is convenient to evaluate ground 2 in the same way.

1. Apart from summarising some of the applicable legal principles, the appellant made only two submissions in support of ground 2:[37]
   1. The appellant contended that there was nothing that distinguished counts 3 and 4 from the other charges for which acquittals were entered.
   2. Counts 3 and 4 were not the most recent in time such that they would arguably be the freshest in E's mind - something which might ordinarily explain why an accused person was convicted of one sexual offence against a complainant despite being acquitted of another.
2. The State contended that the verdicts are easily reconciled. The State said that there were particular issues with counts 1, 2, 5 and 6 that did not arise in relation to counts 3 and 4. The State pointed out, correctly, that the jury was directed to give separate consideration to each count based on the evidence that was relevant to that count (ts 194, 232 ‑ 233). The State submitted that the differing verdicts were consistent with the jury following that direction.[38]

Inconsistent verdicts: the applicable legal principles

1. This court recently reviewed the principles applicable to an appeal brought on the ground that a verdict is inconsistent with other verdicts of the jury in LNN v The State of Western Australia.[39] The court stated:

The test to be applied by an appellate court is whether the inconsistency is of such a character that the verdicts cannot stand together as an exercise in fact finding based on logic and reasonableness. In other words, can it be concluded that the different verdicts cannot have been the product of the deliberations of a reasonable jury applying their minds properly to the fact-finding process in relation to each of the counts?[40]

1. The critical issue is whether it was logically and reasonably open to the jury to acquit on counts 1 - 2 and 5 - 6 but convict on counts 3 and 4. It is necessary for the appellant to satisfy the court that the verdicts cannot stand together. If there is a proper way in which the court may reconcile the verdicts, and thereby conclude that the jury performed its functions as required by law, the verdicts will not be inconsistent in the relevant sense.[41]
2. If there is some evidence to support the verdicts said to be inconsistent, it is not the role of an appellate court, upon this kind of ground, to substitute its opinion of the facts for one which was open to the jury.[42]
3. The court has observed on numerous occasions that there are no hard and fast rules for determining whether different verdicts can stand together.[43] There are, however, various matters that have been accepted in the authorities. Many were collected by Owen JA in DPJB v The State of Western Australia.[44] Where, as here, the alleged inconsistency in verdicts is based on suggested factual inconsistency, the points that emerge include:
   1. A verdict of acquittal on some counts does not necessarily reflect a view that a complainant was generally untruthful or unreliable.[45] As Owen JA explained:

The jury might not have disbelieved the witness but thought the evidence lacked the requisite particularity as to time, place or circumstances to justify a conviction. Similarly, the jury might have regarded the witness's evidence as generally credible but thought that, in relation to some issues, the witness's recollection was faulty.[46] (citations omitted)

1. A verdict of not guilty may simply reflect a cautious approach on the part of the jury there being, in an individual case, any number of matters that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to a particular aspect of a complainant's evidence.[47]
2. In reconciling verdicts the court should have regard to the way in which evidence was given by the witnesses. There may be subtle differences in the way the evidence was presented that led to differing verdicts. An appellate court should not ignore the fact that differing verdicts may be explicable by the peculiar advantage that is available to the jury from seeing and hearing the evidence first-hand.[48]
3. Finally, before applying these principles to the circumstances of the appellant's verdicts of acquittal and conviction, it is useful to recall two fundamental propositions. First, where there are multiple counts, it is necessary for the jury to consider each count separately and to assess it only by the evidence that applies to that count. Second, a jury as the trier of fact is at liberty to accept some parts of a witness's evidence but decline to accept other parts of his or her evidence. It follows, insofar as either or both of these matters are integral to a jury's fact-finding deliberations, that where a single complainant gives evidence as to multiple counts it is not the case that the verdicts must all go one way.

1. The task of the court is to review the evidence and determine whether, as a matter of logic and reasonableness, the different verdicts can stand together taking into account all the circumstances of the case.
2. In the present case the differing verdicts are readily reconciled. E gave detailed evidence concerning the offending the subject of counts 3 and 4 (relating to the second incident) and the cross-examination on behalf of the appellant in relation to the second incident was relatively confined. Counsel for the appellant accepted, correctly, that E was firm and unmoved in her evidence in relation to the second incident including her evidence in cross-examination.[49] The only real point of substance concerning the verdicts of guilty on counts 3 and 4 was that raised and disposed of in relation to ground 1. In this respect there were features of the evidence concerning each of counts 1 and 2 (relating to the first alleged incident) and counts 5 and 6 (relating to the third alleged incident) that were materially different from the evidence concerning counts 3 and 4.
3. In turning to now review the evidence it is convenient to consider the materials incident-by-incident, as has been done in [22] - [48] above, rather than count-by-count. That is how counsel for the appellant approached the appeal in relation to both grounds. As can be seen by the way the evidence unfolded, the two counts the subject of each alleged incident were part of one course of conduct (occurring at the one time and place) but the three incidents themselves were quite separate.
4. The following aspects of E's evidence concerning counts 1 and 2 (the first alleged incident) were materially different from the evidence in relation to counts 3 and 4:
   1. On her evidence, E was 6 years old at the time of the first alleged incident but 12 years old at the time of the second incident. Accordingly, in relation to counts 1 and 2 E was recounting alleged events that had occurred either 10 or 12 years earlier (referring to the child witness interview and the trial respectively), when she was a young child. By contrast the evidence in relation to counts 3 and 4 concerned events that had occurred only 4 or 6 years earlier at a time when E was considerably more advanced in age and schooling, being close to her teenage years.
   2. E was open and candid about her imperfect recollection of the first alleged incident - referring to it as 'blurry', 'fuzzy' and 'uncertain'. Indeed, E said that she did not really remember the first alleged incident. As has been seen, E's evidence as to the second incident was qualitatively different. E was able to give relatively precise details as to the time at which the offending the subject of counts 3 and 4 had occurred and what she and other members of the household had done that day as well as a detailed account of the offending itself.
   3. There was an inconsistency in E's evidence as to how the first alleged incident ended, ie whether E started to watch TV or whether E went to see the appellant's wife. E accepted in her evidence at trial that there was such an inconsistency.
5. In his closing address to the jury, senior counsel for the appellant referred to E's evidence as to her recollection of the first alleged incident being blurry and fuzzy. Senior counsel did so in the context of identifying 'markers or indicators' in assessing whether E's evidence was reliable.[50]
6. In the circumstances - particularly given the argument made by defence counsel in closing - the jury may have adopted a cautious approach in relation to counts 1 and 2. The jury may not have been satisfied beyond reasonable doubt as to the reliability of E's evidence in relation to counts 1 and 2 taking into account one of more of: (1) E's then age; (2) the passage of time between the historical events and the timing of E's evidence; (3) E's own evidence as to her imperfect recollection (this being, in our view, the most important of the differentiating features of the evidence); and (4) the inconsistency in E's evidence. In each of these respects there was a material difference in the evidence between counts 1 and 2, in relation to the first alleged incident, and counts 3 and 4, in relation to the second incident. Once those material differences are recognised there is, in our view, no relevant factual inconsistency between the verdicts of acquittal on counts 1 and 2 and the verdicts of guilty on counts 3 and 4.
7. Similarly, various features of the evidence concerning counts 5 and 6 (the third alleged incident) were materially different from the evidence in relation to counts 3 and 4. The first such material difference concerns whether the prosecution proved, in terms of s 321(4) of the Code, that at the time of the alleged offending the subject of counts 5 and 6 the complainant E was a child of or over the age of 13 years and under the age of 16 years.
8. The trial judge directed the jury that E's age at the time of the various offences was an element of each offence and that each element had to be proved by the State beyond reasonable doubt.[51] In relation to counts 5 and 6 the trial judge pointed out that E turned 13 in February 2015 and the State case was that the alleged offending occurred around Christmas 2015.[52] Accordingly, the jury would have understood that they had to be satisfied beyond reasonable doubt that the third alleged incident occurred on or after E's 13th birthday.
9. There were, however, inconsistencies in E's evidence as to her age at the time of the third alleged incident. Specifically:
   1. Initially E said that she had just turned 13. However, when asked whether she had turned 13 before or after the events, E's response was equivocal. E said she was 'not sure' and did not know whether it was 'just before my birthday'. Later, however, E was definite that she was 13 - stating that the events happened just as she turned 13 or a few months after she turned 13.
   2. Subsequently, E put the events as occurring a few days before Christmas in the long school holidays. E clarified that this was when she was already 13 and turning 14 the following February. That was inconsistent with the events occurring just after E turned 13 as was stated initially: E turned 13 in February 2015. Senior counsel for the appellant highlighted this inconsistency in E's evidence in his cross-examination of E. E accepted in cross-examination that she had initially been referring to the events as having occurred in February or March 2015 but had changed her recollection to December 2015.
10. It was, in the circumstances, open to the jury to conclude on E's evidence that she was giving an honest account of the third alleged incident but that her evidence as to when the incident occurred (and in particular her age at the time it occurred) was unreliable. The jury may not have been satisfied beyond reasonable doubt that the third alleged incident occurred when E was 13 years of age. On E's evidence it was open to the jury to conclude (or to not exclude as a reasonable possibility) that E was 12 years of age at the time of the third alleged incident. That possibility was also consistent with E's mother's evidence to the effect that E stopped sleeping over at the appellant's house sometime following September 2013 to early 2014.
11. There was no similar problem with counts 3 and 4. There was, as mentioned in relation to ground 1, an issue about whether E was living at the appellant's home at the time of the second incident. However, it was always E's evidence that she was 12 at the time of the second incident. Moreover, to the extent there was any issue as to the timing of the second incident, there was no competing possibility where E was over the age of 13 years.
12. In his closing address to the jury, senior counsel for the appellant raised the inconsistency in E's evidence as to the timing of the third alleged incident.[53] Senior counsel also raised two further inconsistencies in E's evidence as to this alleged incident:
    1. The inconsistency in E's evidence as to whether, when she was grabbed by the appellant, E had been sitting on the other couch or was walking past the appellant.[54]
    2. The inconsistency in E's evidence as to whether the incident ended because E walked away or whether it was because the appellant heard his wife coming into the TV room and he moved his position.[55]
13. It will be recalled that, as to the inconsistency at [124.2] above, in cross-examination E was asked which of the two different versions was true. E's response was candid: 'I'm really not sure. It happened years ago, unfo[56]unately'.56 Senior counsel reminded the jury of that evidence in his closi[57] address.57
14. One logical and reasonable basis for the acquittal on counts 5 and 6 has already been identified: the jury might have considered E's evidence about the timing of the third alleged incident to be insufficient to convict. A further logical and reasonable basis for acquittal arises from the inconsistencies in E's evidence about counts 5 and 6. The jury may have adopted a cautious approach. The jury may not have been satisfied beyond reasonable doubt as to the reliability of E's evidence in relation to counts 5 and 6 taking into account the inconsistencies in E's evidence as were highlighted by senior counsel for the appellant in cross-examination and his closing address. Indeed, when the various inconsistencies in E's evidence as to counts 5 and 6 were identified at the appeal hearing, counsel for the appellant accepted that those inconsistencies alone might have been enough for the jury to decide to acquit the appellant in relation to counts 5 - 6.[58]
15. The verdicts of guilty on counts 3 and 4 but not guilty on counts 1 - 2 and 5 - 6 are capable of being reconciled. There is no difficulty in the verdicts of guilty and not guilty standing together as an exercise in fact finding based on logic and reasonableness. The verdicts are not inconsistent. On the evidence, for the reasons given above, a reasonable jury applying their minds properly to the fact‑finding process in relation to each of the counts could have arrived at verdicts of guilty on counts 3 and 4 and not guilty on the other counts.
16. Ground 2 fails.

1. The appeal was wholly devoid of merit. Neither ground of appeal had a reasonable prospect of succeeding. Leave to appeal should be refused in relation to both grounds. It follows that the appeal should be dismissed.[59]
2. We would order that:
   1. Leave to appeal on grounds 1 and 2 is refused.
   2. The appeal is dismissed.

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

Research Associate to the Honourable Justice Vaughan

[1] To be referred to as 'CWI-1' and 'CWI-2'.

[4] Exhibits 1.11 - 1.14 BAB 16 - 19; ts 48 - 50, 65, 74.

[10] Appellant's submissions par 80 WAB 15.

[11] Respondent's submissions par 34 WAB 50.

[12] Respondent's submissions par 35 WAB 50 - 51. At the appeal hearing counsel for the appellant confirmed that there was no complaint about the trial judge's direction: Appeal ts 12.

[13] Respondent's submissions par 36 WAB 51.

[14] Respondent's submissions par 46 WAB 53 - 54.

[18] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492; Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482 [56]; GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698 [25].

[19] MEN v The State of Western Australia [2020] WASCA 118 (MEN) [403] - [410].

[22] Dayananda v The State of Western Australia [2021] WASCA 11 [52] - [53]; Smith v The State of Western Australia [2021] WASCA 17 [42] - [43].

[23] Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394 (Pell) [36] - [39]. See also Fennell v The Queen [2019] HCA 37; (2019) 93 ALJR 1219 [81].

[26] Pell [36]; MEN [415] - [418], [708] - [709].

[29] CWI-1 page 15. The parties informed the court that this occurs at timestamp 10:09:41 within the video.

[30] CWI-1 page 20. The parties informed the court that this occurs at timestamp 10:28:04 within the video.

[37] Appellant's submissions par 79 WAB 15.

[38] Respondent's submissions par 10 WAB 44.

[39] LNN v The State of Western Australia [2021] WASCA 39 (LNN) [99] - [101].

[40] LNN [99]. To similar effect see Bailey v The State of Western Australia [2018] WASCA 169 [40].

[41] KND v The State of Western Australia [2017] WASCA 36 [36] (quoted with approval in LNN [99]). See also NTH v The State of Western Australia [2020] WASCA 22 [60].

[42] DPJB v The State of Western Australia [2010] WASCA 12 [78] - [79]; NTH v The State of Western Australia [60].

[43] See eg: DPJB v The State of Western Australia [79] - [80]; LNN [100].

[44] DPJB v The State of Western Australia [81] (adopted in: Bailey v The State of Western Australia [42] ‑ [43]; NTH v The State of Western Australia [61]).

[45] DPJB v The State of Western Australia [81.1]. See also NTH v The State of Western Australia [67].

[46] DPJB v The State of Western Australia [81.1].

[47] NTH v The State of Western Australia [67].

[48] DPJB v The State of Western Australia [81.6].

[59] Criminal Appeals Act s 27(3).