MHS -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 85 (16 July 2024)

1. The first incident occurred on a date unknown between 3 April 2009 and 10 December 2010. At that time, AB was 6 or 7 years old. On this occasion, the appellant was in his bedroom studying and the rest of the family were outside in the backyard. The appellant called AB into his bedroom.[4]
2. When AB entered the room, the appellant asked her to get onto the bed. The appellant and AB were sitting side by side with their backs against the wall. He placed his hand down the top of AB's pants, inside her underwear, and started rubbing the outside of AB's vagina with his fingers. He did this for about five minutes. This conduct was the subject of count 1 on the indictment, an allegation of indecently dealing with AB.[5]
3. The appellant then took out his mobile telephone and showed AB a pornographic video of a woman masturbating a man's penis. The appellant told AB that she had to do the same thing to him. This is the subject of count 2 on the indictment, a charge of indecently dealing with AB by showing her pornography.[6]
4. The appellant then pulled down his pants and exposed his erect penis. He placed AB's hand on his penis, and she started moving her hand up and down as he requested. He told her that she was not doing it right and he then took hold of her hand and showed her what he required. This conduct is the subject of count 3 on the indictment, a further charge of indecent dealing.[7]
5. At this point, someone knocked on the door and the appellant stopped, pulled up his pants and opened the door. The person at the door told the appellant that AB's grandmother was looking for them. The appellant told AB that what had occurred was their secret and not to tell anyone. It was the State's case that this incident, though not the first of its kind, was the first incident that AB could recall.[8]

1. The second incident occurred on a date unknown between 3 April 2011 and 2 April 2012, when AB was 8 years old. On this occasion, the appellant was in the bedroom of another of his sisters, at his parents' house. He was laying on the bottom bed of a bunkbed and had the bed covers pulled over him.[9]
2. The appellant called out to AB, asking her to get into bed with him under the covers. She complied. Once she was under the covers, the appellant asked her to suck his penis like a lollipop. As he said this, he pulled his erect penis out of his pants. AB complied with the request and took the appellant's penis into her mouth. The appellant placed his hand on the back of her head and started moaning. This conduct was the subject of count 4 on the indictment, a charge of sexual penetration.[10]
3. After a short time, AB's grandmother knocked on the door and told the appellant that there was food ready. The appellant responded by saying that he would come out. As he was talking to his mother, he held AB's head to prevent her from moving. After his mother left, the appellant pulled his pants up and told AB to wait in the room and that he would leave first.[11]

1. The third incident occurred sometime in 2012 or 2013. AB was either 9 or 10 years old. At this time the appellant was living at the house of his sister EF, the mother of AB and CD.[12]
2. On a day when EF was out of the house and the appellant was at home with the children, he called AB into his room. He was sitting on the bed with his back to the wall. AB entered the room and sat on the edge of the bed. The appellant pulled his penis out and asked AB to milk his penis like milking a cow. AB told the appellant she had milked a cow before because she had been on a school excursion to a farm. AB then complied with the appellant's request, took hold of his penis and proceeded to masturbate him. This conduct is the subject of count 5 on the indictment, a charge of indecent dealing.[13]
3. The appellant became frustrated and told AB that she had to do it in a particular way. He then took hold of his penis in his own hand and proceeded to masturbate himself in front of AB. This act is the subject of count 6 on the indictment, a further charge of indecent dealing.[14]
4. AB then again took hold of the appellant's penis in her hand and proceeded to move her hand vigorously up and down as the appellant had shown her. That conduct is the subject of count 7 on the indictment, a further charge of indecent dealing.[15]
5. The appellant became frustrated again and stopped AB. He once again took hold of his penis and proceeded to masturbate himself until he ejaculated. He ejaculated onto a motorcycle helmet. The appellant told AB to clean up his ejaculate with tissues, which she did. This act of masturbating in the presence of AB is the subject of count 8 on the indictment, a further charge of indecent dealing.[16]
6. The appellant then told AB to lie down on the bed. He removed her pants and underwear and placed his head between AB's legs and licked her vagina with his tongue. This act is the subject of count 9 on the indictment, a charge of sexual penetration.[17]
7. The appellant then penetrated AB's vagina with his finger. When AB complained that it hurt, the appellant told her, 'just a few more seconds'. She tried to move her body further up the bed in an effort to get the appellant to stop but he proceeded to push his finger deeper into her vagina. The appellant started counting and when he got to three, he removed his finger. This act is the subject of count 10 on the indictment, a further charge of sexual penetration.[18]
8. The appellant took out his mobile telephone and showed AB a pornographic video. The video showed a man having sexual intercourse with a woman. The appellant told AB that she would have to do this when she was older. The showing of the video is the subject of count 11 on the indictment, a further charge of indecent dealing.[19]

1. The fourth incident occurred on a date unknown between 3 April 2013 and 2 April 2015, when AB was between 10 and 11 years old. At that time, the appellant was still living with the complainants and their mother. The appellant and AB were sitting on a couch watching television with other members of the family. The appellant and AB were sitting next to each other and had a blanket covering them.[20]
2. The appellant placed his hand down the top of AB's shorts and inside her underwear. He then penetrated AB's vagina with his finger, moving his finger back and forth for a few seconds. This act is the subject of count 12 on the indictment, a charge of sexual penetration.[21]
3. The appellant then removed his hand from inside AB's shorts and placed his hand on the top of her vagina, over her clothing, and rubbed her vagina for a few seconds. That act is the subject of count 13 on the indictment, a charge of indecent dealing.[22]

1. The fifth incident occurred on another date unknown between 3 April 2015 and 2 April 2016. At this time, AB was 12 years old. On this occasion, the appellant, AB and CD were sitting on a bed in the children's mother's room. The complainant's mother was not at home at the time. AB was sitting next to the appellant.[23]
2. The appellant took a blanket and pulled it over him. He then took hold of AB's hand and placed it underneath the blanket and down the front of his shorts. He placed AB's hands onto his penis and manipulated her hand up and down. AB tried to pull her hand away but the appellant held her hand on his penis. After a couple of minutes, the appellant removed AB's hand from his shorts. That conduct is the subject of count 14 on the indictment, a charge of indecent dealing.[24]

1. Count 14 was the last charge relating to AB. The prosecution case was that after that incident, the appellant ceased committing contact sexual offences against AB, though he continued to engage in conduct that made her uncomfortable, including walking into her bedroom whilst she was getting changed. AB also said that on one occasion, when she was about 16 years of age, the appellant propositioned her by telling her that he had some Viagra and that he wanted to try it and suggested that they could go to a hotel and have 'sex'. She refused and told him that she had her period.[25]
2. On another occasion, in or about October 2019, AB was at her grandparents' house, sitting on a bed when the appellant walked into the room and started speaking to her. At this time, AB believed that she might be pregnant and told the appellant this, hoping he might be able to help her. The appellant told AB that he could help by putting his penis inside her and that this would remove any semen from her body and stop her becoming pregnant. She refused his suggestion and left the room.[26]
3. The State relied on this other conduct as explaining why the appellant might feel able to act with impunity. It was also said to form an integral part of AB's account of a connected series of events.[27]
4. The remaining counts on the indictment all related to CD. Those counts are not the subject of challenge on this appeal. They were, however, relied on as propensity evidence. That is, that the evidence of the offences against CD was capable of establishing that the appellant had a sexual interest in female children in his family and was willing to act upon that interest.[28] That propensity is one strand of the evidence relied upon by the prosecution in relation to the allegations regarding AB, and, in particular, count 14.
5. It is unnecessary to detail the factual circumstances of the counts relating to CD. It is sufficient to note that the State case was that the offending against CD commenced during the summer school holidays between December 2019 and February 2020. At that time, the appellant, AB and CD were living sporadically at their grandparents' house. The State alleged that the appellant took advantage of the fact that there were no definite sleeping arrangements in place.[29]
6. At the time of counts 15 ‑ 30, CD was 13 years old. Those counts allege various sexual acts, including digital penetration of CD's vagina, an attempt to penetrate CD's vagina by the appellant with his penis, masturbating in the presence of CD, procuring CD to masturbate him, penetration of CD's vagina with his penis, procuring CD to perform fellatio and the appellant rubbing his penis against CD's back.[30]

1. AB said that her grandparents lived at their house in Beechboro from the time she was born, and that her mother lived in Manning from the time AB was in year 1. AB recalls living at her mother's house, her father's house and her grandparents' house when she was in year 1 and year 2.[31]
2. When asked about the first incident, AB said that the appellant had called her into his room, showed her a video and told her to do the same to him. She said that the appellant told her to come to his bed and that he touched her vagina.[32] When asked whether he touched her on or under her knickers AB said:[33]

Okay. And you mentioned the word 'touching' before. What - what - what happened? Tell us because we weren't there?---He put his hands in my pants and then he just like rubbed it for a couple of minutes. And then he showed me a video and he said I had to do what was happening on the video to him.

Okay. When he - when you said he - he put his hand in your pants, do you remember what you were wearing?---I don't remember.

All right. Do you remember whether you were wearing knickers?---Yes.

I'm not saying that - okay. I'm not saying that's the only thing you were wearing, but you were wearing knickers?---Yes.

All right. Was his hand on the inside or the outside of your knickers?---I think on the outside.

All right. I think you used the words 'down there' and was rubbing. Where - can - what can you tell us was the area that he was rubbing? Where was he rubbing?---My vagina.

Okay. And about how long was he doing that for?---A couple of minutes.

Okay?---Maybe like four, five.

Okay. You then said that he showed you a video. What was that on?---It was a girl masturbating a guy.

No, sorry, that's my fault. Maybe I'll just say it a bit louder. What - what did he show you it on? What was he using to show you the video?---His phone.

...

All right. What did he do then? Do you remember what he was wearing?---He was wearing pants.

Yes?---He took off his pants.

Yes. Was he - did he - when he took his pants down, did he have any underwear on?---He took that off as well.

Okay. Did you see his penis?---Yes.

Are you able to describe it or what - what position it was in or how it was?---It wasn't erect.

1. AB said that the appellant took her hand and placed it on his penis and moved her hand up and down. He complained that she was not doing it correctly and then commenced masturbating himself. This was interrupted when someone knocked on the door and said that AB's grandmother wanted everyone to come. The person who knocked did not come into the room.[34]
2. As to the second incident, AB gave evidence that this occurred when she was also in year 1 or 2, and happened in her aunty's room at the Beechboro house. AB said that the appellant was seated on the bottom bunk of a bunkbed and told her to come into the room. He then told her to suck his penis like a lollipop and to go under the blanket. She could not remember what the appellant was wearing and said his penis was already erect when he asked her to suck it. AB said that she did as she was instructed, and that the appellant pushed her head on to his penis and started to moan.[35] AB was then asked how the incident ended:[36]

All right. Now, how did that - how did that situation come to an end? Did you hear anything?---My grandma knocked on the door and said that she made food.

...

Okay. And where were his hands in relation to you when he was - when he said that to your grandma?---It was still on the back of my head. He was holding [my] head down.

All right. And where was his penis?---Still in my mouth.

All right. And what about the bed covers?---It was still over us.

Okay. Could you see your grandmother?---No.

All right. Could you hear your grandmother?---Yes.

Okay. What happened after she went?---We stopped.

Okay?---And then - - -

What did he do? Where - did he move anywhere or what did he do?---He got up and then he said to wait a bit before I go out.

Yes. And did you do that?---Yes.

About how long did you stay in the bed for after he left?---Maybe like a minute.

1. As to the third incident, AB stated that at the time she was living at the Manning house and was in year 5 or year 6 of school. Her mother was working a lot at the time. AB said that on this occasion she was not sure where her mother was, and her sister was watching television when the appellant called her (AB) into his room.[37]
2. AB said that the appellant asked her to milk his penis like a cow. He was sitting on the other side of the room, but she could not remember what he was wearing. He did not remove all of his clothes - he pulled down his pants:[38]

All right. So what could you see?---What part of his body could you see--- His penis.

All right. And what did he ask you to do? We've talked about that school trip. Just tell us again. What did he ask you to do?---He asked me to milk his penis like the cow.

Okay?---And then he got his helmet, like his - [because] he drove - ride a motorbike. And he asked me to do it on top of the helmet.

Okay. Asked you to do what on top of the helmet?---Milk him like a cow.

And when you say he asked you to, 'Milk him like a cow', did you put your hands anywhere?---He grabbed my hand and put it on his penis.

All right. And did he keep his hand on - sorry. Did he keep his hand on your hand or what did he do?---He was at first. And then he was moving it up and down. And then I tried - he let [go] to let me do it on my own and then I wasn't doing it properly. And then he got frustrated, so then he did it.

1. AB said that the appellant ejaculated on to the motorcycle helmet and then asked her to clean it up with tissues. AB said that the appellant then showed her a video on his mobile telephone and asked her to lie down. He took off her pants and licked her vagina. He then placed a finger inside her vagina. She tried to move away and said that it really hurt. The appellant told her that she would have to get used to it as she would have to do it when she was older. AB could not remember how this incident ended.[39]
2. As regards the fourth incident, AB said that this occurred on an occasion when she was watching television at the Manning house. She said that on this occasion the appellant and the appellant's partner at the time, JW, were present. She said that she could not recall her age at the time, but it was when she was in year 5 or 6 at school. A little later in her evidence, she said that her mother and CD were also present in the room. She said that they were sitting in the following order: her mother at one end, CD, JW, the appellant and AB on the other end. She said that there was a big blanket covering CD, JW, the appellant and herself. There was a light on in the room. AB said that the appellant put his hands under her underwear and that the tip of one of his fingers went inside her vagina. He then removed his hand and touched the inside of her leg. She said that they pretended as if nothing had happened.[40]
3. As regards the fifth incident, AB said that she remembered something happening at the Manning house on an occasion when her mother was not at home. She said that she was in her mother's room with CD and the appellant. The appellant was under a blanket and CD was on top of the blanket. The appellant grabbed AB's hand and put it under the blanket on top of his penis. She pulled her hand away and the appellant moved it back. The appellant then got up and left. AB believed that she was in year 5 or 6 at school when this incident occurred.[41]
4. In cross‑examination, AB was asked about her memory. She said that she has 'a lot of anxiety', which plays a big part in her memory, but then when she is able to calm down she can remember 'really well'. She was shown the photograph that she had identified as an aunty and was told it was a photograph of JW. She then conceded that it could be JW but looked more like her aunty. She was shown a photograph of a motorcycle helmet and said it was not the one she had referred to in evidence and that the appellant had two helmets.[42]
5. In cross‑examination regarding the first incident, AB gave conflicting answers regarding whether the appellant had touched her over or under her underwear. When asked whether she had any memory of this incident she said that she remembered it as being something she did not want to remember and that she had 'glimpses' and 'nightmares' of the incident. It was put to AB that at the relevant time the appellant did not possess a mobile telephone on which a video could be displayed. AB responded by saying that the appellant showed her something with a video on it, and she thought it was his mobile telephone. She accepted that in evidence she had said that the appellant's penis was not erect when she first saw it, but that she had said in her police statement that it was. She said that that was what she believed at the time. She said that the appellant did not go to the door when someone knocked, but accepted that she had said that he did go to the door in her police statement.[43]
6. In cross‑examination regarding the second incident, AB gave conflicting answers as to whether her grandmother opened the door of the room. She said that she could not be sure whether her grandmother opened the door because she (AB) was under the covers. However, she conceded that in her police statement she had said that her grandmother did open the door. She then said that she was getting confused and that her grandmother had opened the door but that she did not know whether she came into the room. She said that her grandmother could not see her as she was under the covers and the appellant held her head so she would not move.[44]
7. In cross‑examination regarding the third incident, AB said that the appellant's penis was not erect at the start of the incident. When asked whether the appellant was circumcised she said that he was, that she was sure about that, and that she understood the difference. As to the showing of a video on this occasion, AB said that she was 100% sure that the appellant had a mobile telephone that could show videos. She did not know if it was the same mobile telephone on which he had previously shown her a video.[45]
8. In cross‑examination regarding the fourth incident, AB said that JW was sitting next to the appellant when he touched her (AB).[46]
9. In cross‑examination on the fifth incident, AB said it occurred in her mother's room at a time when her mother was not at home. She accepted that this incident happened in the presence of CD, but that CD was on top of the covers and she was underneath with the appellant. AB said that other things had happened that she did not include in her police statement because she only remembered them later. In regard to one such later incident AB said she could tell that the appellant was circumcised.[47]

1. It is unnecessary to summarise CD's evidence. Her evidence was largely confined to the incidents relating to her. Although AB said CD was present at the time of incidents 4 and 5, CD gave no evidence in regard to those incidents.

1. JW is the former partner of the appellant. She stated that she began a relationship with the appellant at the very beginning of 2012. At that time the appellant was living at the Manning house with his sister, AB and CD. JW moved into the Manning house in February 2012, and she and the appellant shared a room. The relationship finished in December 2017, when JW moved to Tasmania.[48]
2. JW said that she and the appellant stayed together when they were at the house. She said that she and the appellant did not often watch television in the lounge room. She said that the lounge room was mostly used by the girls and their mother and she and the appellant would stay in their room. She said that she had sat on the couch in that room watching television with the girls and their mother on one or two occasions.[49]
3. JW said that the appellant's relationship with AB and CD was a normal family relationship and that she had the impression that he was their favourite uncle.[50]
4. In cross‑examination, JW said that she and the appellant spent a lot of their time together. At that time her English was not good and she did not have a driver's licence, so she depended on the appellant to assist her.[51] JW gave the following evidence:[52]

So there weren't long periods of time, were there, when you were at home alone or [the appellant] was at home alone?---No, we always outside, either at uni, we study uni fulltime and [the appellant] had a part‑time job so we always leave the house together and come back together.

Did you ever see him go into either of the young girl's rooms, [AB]'s room or [CD]'s room?---No. We don't - so I was very grateful for [EF], I was very grateful to [EF] for letting me stay there for free. We were quite respectful to their place and they are very respectful to our space as well so we don't enter each other's rooms unless we're invited.

All right. Did the kids ever come into your room as far as you knew?---No, no, never. If they need to talk to us they always stand at the door. They never entered our room. I think I ask [CD], I said that's okay, you can come to our room and she said, no, our mummy said I'm not allowed to go to your room so they're quite respectful. Same as us, if we need to talk to them we just stand at the door. We don't enter each other's rooms.

All right. Did you ever have occasion to go into [EF]'s room?---Only if I - only if I was asked to go. For example, there was one occasion she wanted to give me some clothes. She said, oh, you can come in, I'll show you, I've got lots of dresses in my - in my wardrobe I can show you so only occasions like this or if she's not home, if I need to borrow her makeup I would get the makeup, but if she's around, she's at home, I've always - I always ask for her permission.

Did you ever see [the appellant] in [EF's] room?---No.

Not the whole time you were there?---I never seen unless - unless [EF] needs to show [the appellant] something or [EF] asks [the appellant] to go, but I've never seen [the appellant] enter the other two bedrooms apart from us.

1. JW gave further evidence in cross‑examination that the appellant appeared to have a good relationship with both AB and CD, and that she and the appellant would sometimes take AB and CD on outings, with their mother's permission. JW also stated that EF, AB and CD spent a lot of time in the living room area, on occasion sleeping on the couch.[53] When JW was asked if she would sit on the couch and watch television, she stated:[54]

---Yes, occasionally, but not that often.

When you did that was there ever an occasion when you had a blanket over you?---No, I never had a blanket over, over me or with [the appellant].

What do you say to the proposition that there may have been a time or times when you were all watching TV and you had a blanket covering your legs?---We don't share the same bedding. [The appellant] and I don't share same bedding with [EF] and the children. I'm quite OCD so I like to have my own sort of personal stuff only to [the appellant] and I so the blankets in the lounge room, sometimes it's on the floor or the pet or the dog has been there so I definitely don't sort of use the same blankets where it - where it is dusty or where it has been, you know, been slept by the pets or the dogs. There was a big heater in the living room, like a [one metre] gas heater, so it heats up the room pretty quickly. We didn't need to have a blanket.

Can you remember any single time when you ever had a blanket over you whilst watching TV?---No.

What do you mean by OCD?---OCD as in I don't - like I'm super sort of hygienic, I don't share, you know, personal sort of blankets or clothes with others except [the appellant] and I. If I'm by myself like I don't share my blankets with anybody else, but because I live with [the appellant] so [the appellant] and I don't share the same blankets with others. I don't use other people's blankets.

So you would be able to confidently say, would you, that there was never any occasion when you sat watching TV and you had a blanket over you and the children?---No.

1. JW said that she never saw the appellant do anything to AB or CD that caused her concern. She had an intimate relationship with the appellant and said that he was not circumcised. She identified a photograph of a motorcycle helmet as a helmet belonging to the appellant and said that she could not recall him having any other helmet at the relevant time. This was the same photograph that had been shown to AB and which she said was not the helmet on to which the appellant ejaculated.[55]
2. In re‑examination, JW said that at the time she worked two to three days a week, for three to six hours at a time. The appellant would sometimes give her a lift. He also worked two to three days per week at an office in the city.[56]

1. EF is the mother of AB and CD and the sister of the appellant. She said that she had moved to the Manning address in late 2008, and that during school holidays AB and CD would go to stay at their grandparents' house in Beechboro. There were no set sleeping arrangements at the Beechboro house.[57]
2. EF said that the appellant lived at her house for a minimum of three years. AB was 6 years old when the appellant first moved in.[58]
3. In cross-examination, EF stated that AB made no earlier complaints about being sexually assaulted.[59] She was asked:[60]

And you'd never seen [the appellant] do anything untoward in relation to the children at all, had you?---I never expected anything like this from my family so I never looked for anything like this. I never looked for signs of any abuse - - -

No?--- - - - from my brother so it was hard to say.

I'm not looking for signs. I'm saying you didn't actually see anything, did you, which alerted you as a mother to the fact that something wrong might have been going on?---Well, there was one time when I was a little bit put off when I saw they were all sleeping in the one bed and they're all a bit close and that's when I just stepped in and told the kids to step out and go sleep in their own rooms and I told myself not to think too much about it [because] it's my brother and I trust him.

Yes. Other than that, nothing?---Not that I know of.

1. In re-examination EF was asked for more details regarding the time she had seen the appellant in bed with the girls. EF said that this happened in the Manning house and that they were in her room. She could not remember when this was, other than to say that the girls were 'just kids'.[61]

1. The investigating police officer produced school attendance records for AB and CD. In cross‑examination he confirmed that the appellant had no prior record of criminal offending and that there were no other charges pending. The appellant's mobile telephone had been seized at the time of his arrest and nothing of interest had been found on it. In particular, no videos of the type described by AB were found. No forensic evidence was obtained. No investigation was conducted into whether the appellant had a mobile telephone in 2009 that had video capacity.[62]

1. The appellant said that he had lived at EF's house in Manning from around 2011. AB and CD were also living there. He formed a relationship with JW whilst he was living in Manning and she moved in and shared his room for two years. He and JW were both studying and had part‑time jobs. JW did not drive so the appellant would drive her about. This left little opportunity for him to be alone at the Manning house. In 2014 he and JW moved out to a unit in Rivervale.[63]
2. The appellant denied that any of the alleged sexual acts with AB and CD had occurred. He said that he had never had a sexual interest in children or young girls or, specifically, in either AB or CD. He denied that he had ever shown AB pornographic videos on his mobile telephone. He denied owning a smartphone or an iPhone in 2009. The mobile telephone that he did have had very limited internet capacity and he never tried to download or show videos on it.[64]
3. The appellant said that he had no cause to go into the bedrooms of others at the Manning house. He said that he would only go to EF's room if she asked him to do so. He could not recall any time that he was alone with AB at either the Manning house or the Beechboro house.[65]
4. The appellant said that he did not own a black motorcycle helmet as described by AB in her evidence. He said that he did own a helmet and it was the one in the photograph that was tendered. The woman wearing the helmet in the photograph was JW.[66]
5. The appellant said that AB had never seen his penis. He said he was not circumcised and produced a certificate from a doctor confirming that fact (which was tendered by consent).[67]
6. The appellant denied that he had ever had a conversation with AB about Viagra or about having sexual intercourse with her to resolve her concern about being pregnant. He was unaware that she had been pregnant at that time until she referred to it in evidence.[68]
7. The appellant denied that he had indecently touched AB under a blanket whilst they were watching television. However, he said that it was possible that they sat together and watched television, though he doubted that it would have been the program that AB referred to as it was not one that EF would have approved the girls watching. He said there was never an occasion when they had a blanket over them whilst watching television. He said JW was very strict on not sharing blankets.[69]

1. GH is the appellant's younger brother. He said that AB and CD visited the Beechboro house in 2019, but he could not recall if they stayed overnight. He never saw the appellant behave inappropriately towards either AB or CD. He gave evidence regarding the rooms that the appellant occupied when he lived at the Beechboro house. In cross‑examination, GH agreed that AB and CD stayed at the Beechboro house on occasion in 2009 and 2010, but said that the appellant was not living there at that time.[70]

1. The appellant's mother (and grandmother of AB and CD) said that she had never seen AB or CD in the appellant's room when he was living at the Beechboro house. She had never seen the appellant behave inappropriately in regard to AB or CD. She could not remember AB staying at the Beechboro house when she was aged between 6 and 11. She said that there was never a time when she knocked on the appellant's bedroom door at the Beechboro house and told him that food was ready.[71]

1. The only other defence evidence was from two character witnesses, both of whom said that the appellant was a man of honesty and integrity and that the allegations were not consistent with the man they knew.

1. In her summing up, the trial judge gave a direction to the jury that each charge on the indictment had to be considered separately, and that only the evidence relevant to that count should be considered when determining the verdict on that count.[72] Her Honour then said:[73]

Again, subject to a direction I'm going to give you about a finding of guilt on one count and how that might be used in this trial, if you find the accused guilty of one charge, it doesn't follow that he is guilty of another charge. You can only find the accused guilty of an offence with which he has been charged if the evidence relevant to that charge satisfies you beyond reasonable doubt that he did commit that offence.

...

However, one thing you must not do is you cannot draw any inference against the accused or make any conclusions against him or be prejudiced against him because there is more than one charge. The State has decided to charge the accused with 30 charges. Your duty in respect of each charge is to consider only the evidence relevant to that charge or each charge on the basis of that evidence, [and] determine whether your verdict is guilty or not guilty on that charge.

1. Specifically, regarding the counts involving AB, the trial judge directed the jury that a finding of guilt on one count could be considered when determining a finding on another count. The trial judge directed the jury that the first verdict of guilty could be used to find the remainder of AB's evidence to be honest, accurate and reliable, or that it could be used to consider whether the appellant had a sexual interest in AB and a tendency to act on that interest.[74] Her Honour then reiterated:[75]

Proof of guilt of one or more offences involving [AB] cannot, of itself, prove the remaining offences involving her. You cannot use a finding of guilt in relation to an offence involving [AB] in substitution in any way for the direct evidence of the incidents charged in relation to the remaining offences against her that you are still considering. Nor does it fill any gaps or make other evidence more reliable. Any finding you make in relation to one offence cannot and must not lead automatically to a finding of guilt on the remaining offences for [AB] you are still considering. You must not reason that simply because the accused did an act of a sexual nature against [AB] on one occasion, or even on more than one occasion, that he must therefore [have] committed the remaining offences against her which you are still considering.

Nor does it follow that because a person has a tendency that they will always act out in accordance with their tendency at every opportunity. So the tendency evidence is capable of doing no more than lending broad support to [AB]'s evidence.

1. Further, the trial judge directed the jury that it was open to them to take into account a finding of guilt on any of counts 15 ‑ 30 when determining the verdicts on counts 1 ‑ 14, if they were satisfied that such findings established that the accused had a sexual interest in young girls, aged between 6 and 13 years, who were in a family relationship with him, and a preparedness to act upon that interest. However, the trial judge again directed the jury that they must not reason that a finding of guilt on one count against one complainant automatically leads to a finding of guilt on a count in respect of another complainant.[76]
2. The trial judge also gave a direction regarding the need for the jury to be satisfied beyond reasonable doubt as to the credibility and reliability of AB's evidence before convicting the appellant on any of counts 1 - 14. As to reliability, her Honour reminded the jury that statements were given to the police 5 ‑ 12 years after the alleged sexual offences were committed and that AB was as young as 6 years old when the alleged offending commenced.[77] Her Honour then said:[78]

So to prove [counts 1 ‑ 14] beyond reasonable doubt, the State relies on [AB] alone. That is, the only evidence the State relies upon to prove beyond reasonable doubt that the accused man engaged in sexual misconduct with [AB] on various occasions over the course of seven years is [AB].

...

So, in relation to counts 1 to 14, inclusive, those that are to do with [AB], you must, firstly and specifically, reject the accused man's denials of any sexual misconduct towards [AB], on the charge before you. And then you must accept the evidence of [AB] beyond reasonable doubt, on that charge.

If you are able to accept the evidence of [AB] beyond reasonable doubt, on any charge that you're considering, and her evidence satisfies each and every element or essential component of the charge before you - which I'll direct you about, shortly - then your verdict on that charge before you must be one of guilty.

On the other hand, if you are unable to accept the evidence of [AB] beyond reasonable doubt, or her evidence, even if you accept it, does not satisfy each and every element or essential component of the charge before you, then your verdict on the charge before you must be one of not guilty. So, in order for you accept the evidence of [AB], you must find [AB] to be honest, accurate and reliable, such that you would accept her evidence beyond reasonable doubt and act upon it.

1. The trial judge also directed the jury regarding any inconsistencies in AB's evidence. Her Honour said:[79]

In addition, when considering whether you accept [AB]'s evidence beyond reasonable doubt, you should keep in mind various aspects of her evidence, including considering if there are any inconsistencies in her evidence and whether those inconsistencies are significant. And if they are, is there an explanation for the inconsistency? And if there is an explanation, does that assist you to resolve the inconsistency or not?

You should also consider if there are any inconsistencies between the evidence of [AB] and any other evidence that you heard, and whether those inconsistencies are significant. And if they are, is there an explanation for the inconsistency? And if there is an explanation, does that assist you to resolve the inconsistency or not?

1. Her Honour instructed the jury to carefully scrutinise the evidence of both complainants and consider what impact the passage of time may have had on their memory. Her Honour also directed the jury to consider other matters that may have impacted on the reliability of the complainants, such as AB's age at the time of the alleged offending.[80]
2. The trial judge then gave a Longman direction regarding the potential forensic disadvantages to the appellant arising from the passage of time between the date of the alleged offences and when the appellant first became aware of those allegations.[81]

1. The grounds of appeal are:[82]
   1. The conviction on count 14 is inconsistent with the verdicts of acquittal on counts 1 ‑ 13 and a miscarriage of justice has thereby occurred.
   2. The conviction on count 14 is, having regard to the evidence, unreasonable and cannot be supported, and a miscarriage of justice has thereby occurred.
2. Although the grounds raise separate issues they were argued together. This is essentially because the central contention in respect of both grounds was that the evidence of AB was incapable of satisfying the jury beyond reasonable doubt that the appellant was guilty of count 14.[83]

1. The appellant submits that the conviction on count 14 is inconsistent with the acquittals on counts 1 ‑ 13. The appellant contends that there was no distinguishing feature of count 14 that made that alleged act more likely to have occurred than those acts that were the subject of counts 1 ‑ 13. Nor was the evidence in respect of count 14 any stronger than in respect of the other counts.[84]
2. The appellant submits that the verdicts on counts 1 ‑ 13 demonstrate that the jury concluded that AB was either not credible or reliable, or that other evidence led them to have a reasonable doubt. Therefore, to reach a verdict of guilty on count 14, the jury must have relied on some other evidence. The only other prosecution evidence that specifically related to count 14 was the evidence of JW and EF. That evidence could not justify a different outcome on count 14.[85]
3. JW said that she never saw the appellant go into EF's bedroom, nor thought there was a reason for the appellant to do so. EF gave evidence of an occasion when she saw AB and CD on the bed in her room together with the appellant but could not give further particulars.[86] It is submitted that this evidence did not make the State's case any stronger than on any of the other counts relating to AB, in respect of which the appellant was acquitted.[87]

1. The respondent submits that a detailed analysis of the evidence demonstrates that the verdicts are not inconsistent. The appellant was found guilty on 15 of the counts relating to CD, therefore the jury were able to find that the appellant had a sexual interest in children of AB's age to whom he was related, and that he was prepared to act on that interest. The evidence of EF also supported AB's testimony in that she had seen the appellant in bed in her room with AB and CD. Although it could not be said that this was necessarily the occasion on which count 14 was alleged to have occurred, it was a basis for rejecting the evidence of JW and the appellant that the appellant had never been in EF's room with the children.[88]
2. The respondent submits that closer analysis of the counts on which the appellant was acquitted reveals that there were inconsistencies relating to each incident that encompassed counts 1 ‑ 13 which could raise a reasonable doubt in respect of those counts, without affecting count 14.[89]
3. The respondent notes that count 14 was the lone count relating to incident 5. That count was also the latest in time of those relating to AB. The respondent submits that it was open for the jury to find AB to be a generally honest and reliable witness, but to give the respondent the benefit of the doubt when approaching all other counts that were subject to inconsistencies.[90]

1. The principles applicable to a ground alleging that a verdict is inconsistent with other verdicts are well established. 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?
2. As was noted by Buss P, with whom the other members of the court agreed, in KND v The State of Western Australia:[91]

It is necessary for the appellant to satisfy this court that the verdicts cannot stand together; that is, that no reasonable jury whose members properly applied their minds to the facts of the case could have arrived at the verdicts in question. If there is a proper way in which this 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. The critical issue is whether it was logically and reasonably open to the jury to acquit on two counts and convict on the other.

1. Although there are no hard and fast rules for determining whether different verdicts can stand together, Owen JA, in DPJB v The State of Western Australia, set out several points that emerge from the authorities:[92]
   1. If a jury returns an acquittal in relation to a count in respect of which a prosecution witness has given evidence, it does not follow that the jury must have concluded that the witness was generally untruthful or his or her credibility was compromised: Markuleski [[2001] NSWCCA 290; (2001) 52 NSWLR 82] [67]; R v KET [1998] VSCA 73 [29]. 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: Duniam v The Queen [1997] TASSC 107. 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: R v LR [2005] QCA 368; [2006] 1 Qd R 435; R v J (No 2) [1998] 3 VR 602, 628.
   2. The court should be aware of the possibility that the jury may have taken a 'merciful' view of the facts and acquitted the accused on some counts for which, on the evidence, the accused ought to have been convicted: Lefroy [[2004] WASCA 266; [2004] WASCA 266; (2004) 150 A Crim R 82] [18]; MacKenzie [[1996] HCA 35; [1996] HCA 35; (1996) 190 CLR 348] (367 ‑ 368). Although the jury's actions may be logically questionable, it is perhaps understandable and the court should not shut its eyes to the fact that it is part and parcel of the administration of justice by juries: Markuleski [227]; R v Kirkman (1987) 44 SASR 591, 593.
   3. In assessing whether differing verdicts can stand together, the presence or absence of corroboration may be a relevant point of differentiation. For example, in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 the accused was charged with nine sexual offences against a male youth. Those offences were said to have occurred on four separate occasions. The jury acquitted the accused on seven counts relating to three of the occasions, but convicted him of two counts committed on the other occasion. The High Court dismissed his appeal on the ground of inconsistent verdicts. The differing verdicts were explicable on the basis that the two counts in respect of which the accused was convicted were the only counts which were substantially supported by the evidence of another witness.
   4. The fourth point is closely related to the third. The presence or absence of evidence adduced by the accused which casts doubt on the prosecution case in respect of a particular count may explain differing verdicts. For example, in Lefroy the accused was charged with six counts of indecent dealing. The complainant was a pupil of the accused, a school teacher. Two of the counts were said to have taken place in the classroom while other students were present, two were said to have taken place at the accused's home and two were alleged to have taken place in a public shower block during a camping trip. The accused was convicted of the two counts which were said to have taken place in his home, but acquitted of the other four. The Court of Criminal Appeal found that the differing verdicts could be explained by the fact that the accused adduced evidence showing that other students had not seen anything untoward happen in the classroom and that the public showers were seldom used during camping trips to that location.
   5. It may be more difficult to reconcile differing verdicts when the offences were said to have occurred at the same time or been part of one course of conduct. For example, in R v LR the accused was charged with six counts of rape. Three counts related to the alleged penetration of the complainant's mouth and three related to the penetration of her vagina. The prosecution case was that the accused had forced himself on the complainant and carried out the offences in one episode. The accused admitted two counts of oral penetration but claimed that it was consensual. He denied any vaginal penetration. The jury convicted the accused of two counts in relation to the oral penetration, but acquitted him in relation to the three counts of vaginal penetration and the remaining count of oral penetration. The court took the view that it was extremely difficult to identify any rational basis upon which the verdicts could be reconciled. If the jury did not regard the complainant's evidence as sufficiently reliable to be satisfied that four acts of non‑consensual penetration occurred, it was difficult to see how they could have been satisfied that the two admitted acts of oral penetration said to have been committed in the same course of conduct were non‑consensual.
   6. 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: Markuleski [70]; Strickland v The Queen [2000] WASCA 68 [10]. The court should also be aware that pauses and other indications of indecision might not have been recorded in the transcript but nevertheless have been observed by the jury: R v J (1994) 75 A Crim R 522, 540. In other words, the appellate court should not ignore the fact that differing verdicts may be explicable by the peculiar advantage that is available to the jury from hearing the evidence first‑hand which is not available to an appellate court.
2. Owen JA then concluded that:[93]

It seems, therefore, that the task of the court in these cases is to review the evidence and to determine whether, as a matter of logic and reasonableness, the different verdicts can stand together. All of the circumstances of the case must be taken into account in making that assessment. It also seems to me that an inability to identify with precision a single factor or a combination of factors that positively explains why the jury acquitted on one or more counts and convicted on others is not necessarily fatal to the integrity of the convictions. The question is whether it was logically and reasonably open to the jury to reach the conclusions that they did.

1. The appellant's argument proceeds upon an assumption that the evidence in respect of count 14 was materially the same as that in respect of counts 1 ‑ 13. That assumption is incorrect. There were aspects of the evidence regarding counts 1 ‑ 13 that related specifically to those counts. That evidence was capable of producing a reasonable doubt as to the reliability of the complainant's evidence in respect of those counts. That evidence provides a logical explanation for the different verdicts. We will deal with the evidence as it relates to each of the incidents.

1. In relation to the first incident (counts 1 ‑ 3), AB said that, at the time, she was very young, in year 1 or year 2 of school. Accordingly, AB must have been 6 or 7 years old at the time of this incident. She had first given an account of it many years later.
2. In evidence, AB gave inconsistent evidence as to whether the appellant had touched her under or over her knickers (or both). AB went on to say, 'I can't remember, but I would feel safe saying that it was under because that would be normal from him'. AB acknowledged that she had said that it was over her knickers during evidence‑in‑chief because, 'I wanted to be safe'. When asked in cross‑examination whether she had any memory of this incident, AB said, 'I have glimpses, yes. I get nightmares. Sometimes things will come up that I did not remember'.
3. AB said that the appellant showed her a pornographic video on his mobile telephone during this incident. Under cross‑examination, AB said that she did not remember what the mobile telephone looked like, or whether it was an iPhone. When counsel suggested that the appellant's mobile telephone at that time did not have internet access, AB said, 'He showed me something. I believed it was a phone at that age. But he showed me something with a video on it, I thought it was his phone ... I believed it was a phone at that age. But I don't know'.
4. AB said that the appellant then took off his pants, put her hand on his penis and moved her hand 'up and down'. Under cross‑examination, AB said that she did not know whether the appellant took his pants off or pulled them down. AB said in evidence‑in‑chief, that his penis was not erect but acknowledged that she had told the police that his penis was erect.
5. AB said that the first incident concluded when someone came to the door and said that her grandmother 'wanted everyone'. Under cross‑examination, AB said that it was a female voice but she could not recall who it was. AB's grandmother denied doing such a thing.
6. These aspects of the evidence relating to counts 1 ‑ 3 were capable of causing the jury to have a reasonable doubt as to the reliability of AB's evidence in respect of those counts. They are matters, self‑evidently, that do not directly relate to count 14.

1. As regards the second incident (count 4), AB said that she was probably in year 1 or year 2 at school at the time it occurred. Again, that must mean that she was 6 or 7 years old when this incident occurred. Under cross‑examination, AB said that she did not know how old she was. It was suggested that AB had told the police that she was about 8 years old, but she repeated that it was when she was in year 1 or year 2. AB could not recall where she was living at the time.
2. AB said that her grandmother knocked on the door, but she did not know whether her grandmother came into the room because she (AB) was under the covers. However, AB agreed that she told the police that her grandmother came into the room. The grandmother gave evidence to the effect that there was never an occasion when she came to the appellant's room and said words to the effect stated by AB.
3. These aspects of the evidence relating to count 4 were capable of causing the jury to have a reasonable doubt as to the reliability of AB's evidence in respect of this count. They are matters, self‑evidently, that do not directly relate to count 14.

1. As regards the third incident (counts 5 - 11), AB said that CD was watching television when the appellant called her into his room. AB did not remember where she was when the appellant called out to her. AB did not recall how the incident came to an end. AB said that the incident occurred when she was in year 5 or year 6. AB could not recall whether the appellant's girlfriend, JW, was living in the house at the time.
2. The nature of this incident was such that AB would have had an opportunity to closely observe the appellant's penis. Under cross‑examination, AB said that the appellant was circumcised, and that she was sure about this. The appellant's girlfriend, JW, testified that the appellant was not circumcised. The appellant gave evidence to the same effect. Defence counsel also tendered a letter from a medical practitioner who had examined the appellant and confirmed that there was no clinical evidence of circumcision.
3. It was put to AB in cross‑examination that when the third incident occurred, the appellant did not have a mobile telephone which could show videos. This was denied by AB. AB also said that she was pretty sure it was an iPhone. AB then said that she knew it was a mobile telephone and that it could have been an iPhone.
4. A series of photographs were shown to AB, in one of which AB identified one of her aunties wearing a motorcycle helmet. When it was put to AB that the person shown was JW, AB said that she did not know. JW identified herself as the person shown in the photograph. AB said that the appellant had two motorcycle helmets but the one shown in the photograph was not the one on which he had ejaculated. JW could only recall the appellant owning one motorcycle helmet, being the one shown in the photograph. The appellant in his evidence confirmed that JW was the person shown in the photograph. The appellant said that he had only owned the helmet which was shown in the photograph and that he did not own a helmet of the kind described by AB.
5. These aspects of the evidence relating to counts 5 ‑ 11 were capable of causing the jury to have a reasonable doubt as to the reliability of AB's evidence in respect of those counts. They are matters, self‑evidently, that do not directly relate to count 14.

1. As regards the fourth incident (counts 12 and 13), AB said that she was watching a television show with CD, her mother, the appellant and JW. AB did not know how old she was but said that she was 'young' and that she was in year 5 or year 6 at school. Under cross‑examination, AB said that she was 10 or 11 years old.
2. AB gave evidence that she was sitting on a couch beside the appellant and that everyone was covered by a blanket. The appellant put his hand into AB's pants and penetrated her vagina with the tip of his finger under the cover of the blanket. JW confirmed that there were occasions on which she and the appellant watched television with AB and CD in the lounge room but it did not happen very often. However, JW said there was never an occasion when they watched television together and were all covered by a blanket. JW said that she was 'quite OCD' and she did not share items like blankets with the children or their mother.
3. This incident was alleged to have occurred whilst the mother of the children (EF), JW and CD were also present in the room and in close proximity. There was no suggestion that anyone present had noticed anything amiss. It was open to the jury to consider that it was unlikely that the appellant would have offended as alleged in these circumstances given the obvious risk of discovery.
4. These aspects of the evidence relating to counts 12 and 13 were capable of raising a reasonable doubt as to the reliability of AB's evidence in respect of those counts. They are matters, self‑evidently, that do not directly relate to count 14.

1. In contrast, count 14 was the last of the offences alleged to have been committed against AB and, thus, the most recent in time and the closest in time to the report made to the police. AB was about 12 years old at the time of this incident. Given what AB said about her memory regarding earlier events, the fact that count 14 was the most recent matter was a relevant consideration for the jury.
2. In addition, EF, the mother of the children, gave evidence that there was an occasion when she saw the appellant in her bedroom on her bed with AB and CD. She said that this was the first time she had any cause for concern. Whilst she could not recall when this occurred, the evidence has significance in respect of count 14. That is because the appellant said that he was never in EF's bedroom with the children and JW said that there was no opportunity for him to be alone with the children. On the basis of EF's evidence, it would have been open to the jury to reject the evidence of the appellant and JW in those respects.

1. As has been previously noted, there were various matters that were capable of affecting the jury's assessment of the reliability of AB's evidence relating to the first, second, third and fourth incidents that were specific to those incidents. A doubt in respect of one count in each of those incidents was capable of casting doubt on the other counts in that incident. Furthermore, the evidence regarding whether the appellant was circumcised was capable of casting doubt not only in respect of incident 3, but also incidents 1 and 2.
2. All those issues were also capable of adversely affecting the jury's assessment of the reliability of AB's evidence more generally. However, they did not logically preclude acceptance of AB's evidence about the offence the subject of count 14.
3. It is also relevant that the jury were given a Longman direction regarding the disadvantages to the appellant flowing from delay. In this regard the trial judge gave the example of the lost opportunity to prove what type of mobile telephone the appellant had at the time of the relevant incidents. It may well be that the jury considered that the lost opportunities were more evident in respect of some incidents than others, particularly those that were earlier in time.
4. It was open to the jury to accept some parts of the evidence of AB and not other parts. The acquittals on counts 1 ‑ 13 do not necessarily mean that the jury must have found that AB was not a credible or reliable witness in any respect. It was open to find that AB was credible and reliable in some respects and not in others. There were material differences in the evidence relating to each incident that could have supported a conclusion that AB was reliable in regard to one of those incidents and not the others. The jury may well have taken a cautious approach, as they were entitled to do. It is also relevant to take into account the advantage that the jury had in seeing and hearing the witnesses.
5. Having reviewed the evidence at the trial, we are satisfied that the verdict on count 14 can, as a matter of logic and reasonableness, stand together with the verdicts on counts 1 ‑ 13. The appellant has not established that the verdict on count 14 was relevantly inconsistent with the verdicts on counts 1 ‑ 13. Leave to appeal in respect of ground 1 should be refused.

1. With regard to ground 2, the appellant submits that the conviction on count 14 was unreasonable and cannot be supported by the evidence. This is said to be due to conflicts in the evidence between the complainant and JW, CD, and EF. The appellant also submits that on the evidence, there was a lack of opportunity for the offence to occur, and that there were other factual obstacles to conviction.[94]
2. The appellant submits that the conflicting evidence at trial must raise a reasonable doubt as to count 14. JW was adamant that she never witnessed any of the conduct alleged, she never saw the appellant enter EF's room, and that they would never have entered the room unless invited to by EF. Also, despite not being directly asked, CD did not give any evidence of any occasion when she was on EF's bed with AB and the appellant. As to EF's evidence, her account of witnessing AB, CD, and the appellant on her bed at some point in time could not have amounted to corroborative evidence, and therefore added little to no weight to the prosecution case.[95]
3. The appellant also submits that the lack of opportunity to commit count 14 supports a conclusion that the conviction was unreasonable. The offending was alleged to have occurred on an ongoing fortnightly basis in the privacy of a number of rooms. Having regard to the testimony of JW, and in particular that she and the appellant spent 'nearly every moment together', the appellant would not have had an opportunity to commit count 14. The appellant also points to the lack of forensic evidence and the delay in complaint by AB as further features that support a conclusion that the verdict was unreasonable.[96]

1. The respondent submits that having regard to the evidence, the appellant has not been able to establish that the verdict of guilty on count 14 was unreasonable.[97]
2. JW's evidence does not compel a conclusion that the appellant could not have been in EF's bedroom with AB. It was open to reject JW's evidence given the evidence of EF. CD was not asked whether she had ever been in EF's bedroom with AB and the appellant and it is unlikely she would have witnessed anything of a sexual nature given that she was on top of the covers and AB and the appellant were underneath. Lastly, the respondent submits that the lack of corroboration, DNA and medical evidence does not suggest that the verdict of guilty was unsafe or unsatisfactory, as these are common features of child sex offence matters.[98]

1. The principles governing a ground of appeal that a verdict is unreasonable or cannot be supported by the evidence are well known. The principles established by the leading High Court decisions have been outlined by this court many times. In Sturniolo v The State of Western Australia,[99] the principles were relevantly summarised as follows:

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

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

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

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

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

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

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

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

1. An appellate court's function is to determine for itself whether the evidence was sufficient in nature and quality to remove any doubt that the appellant was guilty of the offence. The critical issue is whether the court's own independent assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the jury can be taken to have had by reason of having seen and heard the evidence at trial.

1. The appellant contends that the verdict on count 14 is unreasonable and cannot be supported having regard to the evidence. In essence, this is said to be because guilt on that count depended critically on the jury being satisfied beyond reasonable doubt of the evidence of AB. The appellant submits that the inconsistencies in AB's evidence are such that it was not open to the jury to reach the necessary level of satisfaction.
2. AB gave clear and unequivocal evidence regarding count 14. Unlike some of the other incidents, she did not express any difficulty in remembering the material aspects of what occurred. That evidence was sufficient to establish that the sexual act alleged had occurred. It was open to the jury to convict on that evidence, having regard to the direction to consider AB's evidence carefully and the need to be satisfied beyond reasonable doubt that her evidence was credible and reliable.
3. In oral submissions on the appeal, senior counsel for the appellant suggested that the State sought to support the conviction on this count by relying on the evidence of EF regarding seeing the appellant in her bedroom with AB and CD as corroboration. That is not correct. The State accepted that it was not possible to say that EF was referring to the same incident. The State only relied on the evidence in a more general way to show that the appellant and JW's denials of opportunity to commit the offence and of the appellant being in EF's bedroom were untrue. In any event, corroboration of AB's evidence was not required.
4. The matters raised by the appellant do not, either individually or in combination, cause us to conclude that this is a case where a jury must have had a reasonable doubt regarding the guilt of the appellant on count 14. The evidence of JW could have been rejected by the jury for the reasons already given. No inference could be drawn from the fact that CD gave no evidence regarding count 14. It cannot be assumed that CD had any recollection of that incident, which may well have seemed entirely mundane from her perspective. EF's evidence was not inconsistent with that of AB. Those matters are not an obstacle to a finding beyond reasonable doubt that AB was a truthful and accurate witness in regard to count 14. Furthermore, for the reasons given in respect of ground 1, it was open to the jury to accept the evidence of AB on count 14 whilst having a reasonable doubt in respect of counts 1 ‑ 13 due to inconsistencies and discrepancies that related specifically to those counts.
5. The evidence in respect of count 14 does not contain discrepancies or inadequacies, nor is it tainted or lacking in probative force, such as to lead to a conclusion that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted. On the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of count 14.
6. Ground 2 has no reasonable prospects of success. Leave in respect of it should be refused.

1. Grounds 1 and 2 do not have reasonable prospects of success. Leave to appeal should be refused. Since no ground of appeal should be granted leave to appeal, the appeal is taken to have been dismissed.

1. The orders are:
   1. Leave to appeal refused;
   2. Appeal dismissed.

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

[1] See MHS v The State of Western Australia [2023] WASCA 175.

[66] ts 465 - 466. In cross-examination the appellant said that he would occasionally borrow a second helmet, but not one that fit the description given by AB: ts 524.

[70] ts 557 - 559, 563 - 564, 570 - 572.

[86] At the hearing of the appeal, counsel for the appellant said this did not amount to corroborative evidence, however it was never relied on as corroborative evidence: appeal ts 8.

[91] KND v The State of Western Australia [2017] WASCA 36 [36].

[92] DPJB v The State of Western Australia [2010] WASCA 12 [81].

[93] DPJB v The State of Western Australia [82].

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