Criminal law and procedure - Evidence - Leave to cross­examine complainants concerning sexual experiences - Evidence Act 1906 (WA) s 36BC - Sexual knowledge - Criminal Appeals Act 2004 (WA) s 30(4) - Proviso - Whether substantial miscarriage of justice - Practice of pre­recording evidence

Criminal Appeals Act 2004 (WA), s 30(3), s 30(4), s 39, s 40

Evidence Act 1906 (WA), s 36BC

Appellant : Mr S B Watters (19 August 2008) & Ms F R Veltman (19 November 2008)

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

Bolton v The State of Western Australia [2007] WASCA 277

Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443

Cesan v The Queen [2008] HCA 52; (2008) 83 ALJR 43

CTM v The Queen [2008] HCA 25; (2008) 82 ALJR 978

Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373

Gassy v The Queen [2008] HCA 18; (2008) 82 ALJR 838

Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1

Stack v The State of Western Australia [2004] WASCA 300; (2004) 29 WAR 526

VOT v The State of Western Australia [2008] WASCA 102

Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365

1 MARTIN CJ: The appellant (to whom I shall refer as MNO, which is not his real name) appeals from his conviction after a trial by jury on eight counts of sexual penetration of a child under the age of 16 years and two counts of indecent dealing with a child under the age of 16 years. Only one ground of appeal was pursued, being a ground arising from a ruling made by the judge before whom the evidence of the complainants was pre-recorded, to the effect that the appellant's counsel was precluded from cross-examining the complainants in relation to certain matters arising from their previously recorded interviews with police. The State concedes that the reasons given by the judge presiding over the pre-recording for disallowing cross-examination in relation to those matters were erroneous, but asserts that her ruling can in any event be sustained on the ground that the topics upon which counsel for the appellant sought to cross-examine were irrelevant. That proposition must be rejected for reasons which I will give. Accordingly, the critical question in the appeal is whether, notwithstanding the erroneous disallowance of a cross-examination, the State has established that there was no substantial miscarriage of justice, within the meaning of s 30(4) of the Criminal Appeals Act 2004 (WA) (the proviso). When determining that issue, it is necessary for the appellate court to make its own independent assessment of the evidence in its entirety: Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [43].

2 The indictment brought against the appellant contained 21 counts - 15 counts concerning a child born on 17 June 1994 (who I shall call Diane, which is not her real name) and six counts against another child born on 11 August 1995 (who I shall call Lorraine, which is not her real name). Of the 15 counts involving Diane, 11 alleged sexual penetration (of her mouth, vagina and anus), three alleged indecent dealing, and one alleged a threat to prevent her from doing an act she was lawfully entitled to do. Those offences were alleged to have taken place between September 2003 and January 2006, when Diane was aged between 9 and 11 years of age. Of the six counts brought concerning Lorraine, five alleged sexual penetration (of her mouth and vagina) and one alleged indecent dealing. Those offences were said to have occurred between July 2004 and January 2006, when Lorraine was aged between 8 and 10 years of age. Diane and Lorraine are sisters, and were the step-daughters of the appellant, who commenced living with their mother (who I shall call Jane, which is not her real name) in 1995 when Diane and Lorraine were both very young. The appellant and Jane were married in 1997.

3 On 14 January 2006, Diane told her mother that the appellant had been sexually abusing her. She also told Jane that the appellant had been sexually abusing Lorraine as well. Jane spoke to Lorraine who confirmed this assertion. Jane immediately telephoned the police, who commenced the investigation which resulted in the charges being brought against the appellant.

4 Diane was interviewed by two police officers at the Child Interview Unit in Subiaco on 14 January 2006. That interview was recorded. During that interview, which lasted for about two hours, Diane gave a detailed description of various occasions upon which she asserted that she had been sexually abused by the appellant. Diane described the appellant as her 'dad'.

5 At one point in the interview, Diane was asked if anything similar had occurred with anybody else. That portion of the interview was as follows:

1. So, um, has anything like this or similar happened with anybody else before, apart from your dad?

A. With my real dad and this person that raped me when I was little.

Q. Okay. So it has happened before.

A. Yep.

Q. Okay. Have you spoken about that to anybody?

1. No. My mum told me that I was raped and I heard my brother saying that, yeah, that I was raped when my father was doing it to me.
2. Okay. All right. We might talk about that with your mum to see if that's been dealt with as well then, okay?

6 The interviewer then asked Diane for the name of her biological father (who I will call James, which is not his real name).

7 Diane was interviewed again by police at the Child Interview Unit two days later, on 16 January 2006. That interview was also recorded. In the following portion of the interview, the interviewer returned to the topic of sexual abuse of Diane by other persons:

1. Okay. You know the other night how I asked you if this has happened with anyone else before ...

A. Yeah.

Q. ... and you said that you've been raped ...

A. Yeah.

1. ... and that had happened by your dad. That you've been told that it happened by your dad.
2. No. It was from this other person; my mum wouldn't tell.
3. Okay. Your mum wouldn't tell. Okay. And you said something about your dad then too; what did you say about your dad?
4. That he was doing the same thing that my stepdad's doing to me.
5. Okay.
6. That's making ... making me suck his dick and trying to have sex with me.
7. How do you know that?
8. Because I heard it when mum and dad were ... not mum and dad; when mum and William [her brother, who I shall call William, which is not his real name] were talking about it.
9. Okay. So you've heard it from mum and William. Do you have any memory at all of anything that has happened with you and your dad?
10. No.
11. Do you have any memory at all about anything that's happened with the person that you said has raped you?
12. No.
13. Do you know how old you were when this was meant to have happened?
14. About five.
15. Which one?
16. Me.
17. Yeah. Was the rape when you were five or when your dad was doing this stuff to you when you were five?
18. When I was raped.
19. When you were raped was when you were five.
20. Yeah.
21. And do you remember anything about when your dad was meant to have been touching you?
22. He was still doing it when I was raped; when I was getting raped.
23. Okay. Do you have any memory at all though about anything to do with your dad or the rape?
24. No.

8 Lorraine was also interviewed by police at the Child Interview Unit on 16 January 2006. She also gave a detailed account of sexual abuse by the appellant on a number of different occasions. When she was asked if anything like that or similar had happened with anyone apart from the appellant she answered in the negative.

9 The evidence of each complainant was recorded in advance of trial, before a judge other than the trial judge, on 18 January 2007. Before either complainant was sworn, counsel for the appellant referred the judge to the portions of the police interview of Diane which I have set out above, and indicated that he proposed to ask her of the extent of her recollection of any incident with another man, or her biological father, and of what she was told by her mother. He submitted that evidence of that kind would not fall within the scope of s 36BC of the Evidence Act 1906 (WA), which restricts the admission of evidence of the sexual experience of a complainant in proceedings for a sexual offence. As explained by counsel for the appellant, the evidence was directed to the state of mind of the complainant at the time she made allegations against the appellant, and was intended to establish the extent of information which was available to her in relation to sexual matters at that time. Counsel indicated that he proposed to ask similar questions of each complainant on this topic.

10 Counsel for the State advised the judge that the State opposed the proposal that the complainants be cross-examined on this topic, and relied upon s 36BC of the Evidence Act to sustain this objection.

11 The judge presiding over the pre-recording rejected the submission that the evidence did not fall within the scope of s 36BC of the Evidence Act. She acknowledged the submission made by counsel for the appellant, to the effect that the evidence went to the complainant's state of mind at the time she made the complaint, and in particular, the degree of her knowledge of sexual matters at that time, which was a significant issue given her age. In her Honour's view, the detailed sexual accounts given by Diane went well beyond the sort of information that was said to have been given to her by her mother and her brother. It is not clear from the reasons given by the judge whether she also ruled that the evidence was hearsay. One portion of her reasons suggests that view, but in another portion, she ruled that the evidence had 'some remote relevance'. She applied s 36BC of the Evidence Act, reviewed the factors referred to in that section, and refused leave to adduce the evidence. In the case of Lorraine the judge gave, as an additional reason for her ruling, the lack of any evidentiary basis for the line of questioning proposed.

12 The evidence of each complainant was then recorded. They were each cross-examined at some length about the sexual incidents which they alleged.

13 The trial commenced before another judge and a jury on 11 June 2007. Edited versions of the recorded interviews of each complainant by the police were tendered in evidence and shown to the jury. The portions of Diane's interview which I have set out above, were edited out of the material tendered. However, the portion of the recorded interview where Lorraine replied in the negative to the question of whether 'anything like this or similar happened with anyone else before' was not edited out. The pre-recorded evidence of each complainant was also tendered and shown to the jury.

14 Evidence was led from a number of other witnesses including the mother of the complainants. It was put to Jane in cross-examination that she used sexual language in front of the complainants, and that the complainants had heard sexual words used over a CB radio, which was in the family home. She denied both assertions. The proposition that the complainants' mother used sexual terminology had also been put to each complainant during their cross-examination. Diane denied the assertion. Lorraine stated that her mother did 'not really' say such words and that she had heard her swear (she extrapolated on this assertion by specifying that her mother says 'blooming and that') but that she does not swear often. During re-examination, Lorraine was asked if she remembered whether her mother used the terms 'wank' and 'dick'. She replied that her mother did 'not often' use the word 'wank' and does 'not really' or 'doesn't' use the word 'dick'.

15 The appellant gave evidence in which he denied the allegations made by each complainant. He was cross-examined at considerable length.

16 In the course of his address to the jury, counsel for the State understandably identified a number of reasons why, in his submission, the jury should accept the evidence of the complainants and reject that of the appellant. Amongst the matters to which reference was made was the level of detail to which each complainant descended in their description of the various incidents of sexual activity. It was put to the jury that the complainants would be unlikely to be able to recount that level of detail, or describe the experiences which they said they had undergone, unless they had in fact occurred. Implicit in that line of argument was the proposition that girls of such tender years would be unlikely to have sufficient knowledge of sexual conduct to be able to relate those matters in the detail to which they descended unless they had in fact occurred. It follows that the extent of the knowledge of each complainant of sexual matters and sexual conduct, at the time they made their allegations against the appellant, was relevant to the matters which the jury was obliged to consider.

17 In her charge to the jury, the trial judge also referred to the detail to which each complainant had descended in their description of the alleged offences. Although she did not explicitly put to the jury the proposition that it was unlikely that girls of tender years would have knowledge of such matters unless they had in fact occurred, in my opinion there was a significant prospect that the jury would take such a proposition to be implicit in her observations. This reinforces my conclusion that, in the circumstances of this case, the knowledge of each complainant of sexual matters and sexual conduct was a relevant issue.

18 As I have noted, the jury returned verdicts of 'guilty' on 10 counts and verdicts of 'not guilty' on 11 counts. It can be reasonably inferred from this outcome that the jury was satisfied, to the requisite standard, of the evidence of the complainants in relation to some counts, but not in relation to others.

19 As I have observed, the State concedes that the judge presiding at the pre-recording was wrong to rule that the line proposed to be taken in cross-examination fell within s 36BC of the Evidence Act. This concession was properly made. In Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443 [62], a majority of the High Court considered that a complainant could be cross-examined concerning the extent of his or her sexual knowledge without infringing s 36BC: see also Bolton v The State of Western Australia [2007] WASCA 277 [37], [40]. Counsel for the appellant made it clear that he wished to cross-examine as to the state of knowledge of each complainant at the time they made their allegations against the appellant and in particular, as to the extent of their recollection of sexual matters, and of conversations which they had overheard. That was evidence directed to the issue of their general sexual experience, not any particular sexual activity in which they had engaged. It follows that it did not fall within the scope of s 36BC of the Evidence Act and the judge presiding over the pre-recording was wrong to rule that it did.

20 Nor was the evidence hearsay. The evidence was not being adduced for the purpose of establishing the truth of what each complainant was told, but rather, for the purpose of establishing their state of knowledge of sexual matters at the time they made allegations against the appellant.

21 That state of knowledge was, as I have observed, relevant to the issues to be resolved, because of the particular circumstances of these cases. The inherent nature of the issues which arose for the jury's determination, and the line of argument explicitly enunciated by the State and implicitly contained within the charge given to the jury by the trial judge, made it relevant for the jury to assess the likelihood of each complainant being able to provide a detailed description of sexual conduct, unless they had, as they asserted, experienced that conduct at the behest of the appellant. The extent of their knowledge of sexual matters at the time they made their allegations against the appellant was relevant to that issue.

22 For these reasons the judge presiding at the pre-recording was wrong to rule that counsel for the appellant was unable to cross-examine each complainant on matters which went to the extent of their sexual knowledge or general experience. The question therefore is whether the State has established that notwithstanding the appellant being denied a legitimate and relevant line of cross-examination in respect of each complainant, that there was nevertheless no substantial miscarriage of justice, within the meaning of the proviso. The State must prove that, notwithstanding the erroneous direction, the appellant did not lose a fair chance of acquittal: see Bolton [68].

23 The importance of the right of an accused person to cross-examine any witness giving evidence against him has been referred to in many cases. It is often described as a fundamental right. The cases emphasising the importance of that right have been conveniently collected in the judgment of Steytler J in Stack v The State of Western Australia [2004] WASCA 300; (2004) 29 WAR 526 [77] - [84] and need not be recited here. In the light of those authorities, it is appropriate to commence a consideration of the application of the proviso from the starting point that a denial of the right to fully cross-examine a witness giving evidence supporting the State's case, is a significant departure from the procedures which normally attend a fair trial and is of a character which is inherently likely to give rise to a substantial miscarriage of justice.

24 Where the error which gives rise to the consideration of the application of the proviso has had the result that evidence has not been adduced, it will sometimes be necessary for the court to speculate as to the nature of the evidence which might have been led but for the relevant error: see Stack and VOT v The State of Western Australia [2008] WASCA 102. This is obviously most undesirable. Sometimes it can be avoided by taking the evidence, on a voir dire, in the absence of the jury. In such a case, the appellate court can then assess the effect of the evidence upon the general strength of the State case. The practice of pre-recording evidence in the absence of a jury enables a similar practice to be followed. So, when objection is taken at a pre-recording of evidence, the usual practice should be to note the objection and nevertheless allow the evidence to be led, on the basis that it can always be edited out before the recording is tendered in evidence before the jury. There will of course be occasions when that practice is not appropriate - such as where the contentious evidence would take a great deal of time to adduce and is obviously irrelevant, where the taking of the contentious evidence would prejudice the taking of the non-contentious evidence, or where the taking of the evidence would be likely to cause hardship, emotional trauma or stress to the witness.

25 In the present case, the judge presiding over the pre-recording took the view (erroneously) that the evidence fell within the scope of s 36BC of the Evidence Act. However, that conclusion would not necessarily preclude adoption of the practice to which I have referred - that is, the practice of recording the evidence and leaving its admission to be determined at a later date. As noted above, that course will obviously not be appropriate where the taking of the evidence would be likely to expose the witness to significant hardship or trauma. However, in the present case, it was inevitable that each complainant was going to be cross-examined at length about the various sexual incidents which they alleged. In that context, some further limited cross-examination as to their state of mind at the time they made allegations against the appellant, was unlikely to significantly exacerbate their experience of giving evidence.

26 At all events, cross-examination was precluded, and this court was in the invidious position of having to speculate about the evidence which might have been given if cross-examination had been allowed. In order to overcome that difficulty, the court made directions which resulted in additional evidence being led upon a resumed hearing of the appeal. Evidence was given by Diane, Lorraine, Jane and William

27 At the beginning of Diane's evidence the relevant portion of her recorded interview with police was replayed to her. Her evidence on appeal was that she had a recollection of being told by her mother that she had been 'grabbed' by a man while playing in a park as a result of which she contracted a sexually transmitted disease. She had no recollection of the incident, but only what her mother had told her, and her recollection of that was very vague. She did not think that her recollection of what she had been told by her mother would have been any better if she had been asked about it in 2007, rather than on the hearing of the appeal.

28 Diane's evidence was that she had also overheard a conversation between her mother and her brother to the effect that she may have been sexually abused by her biological father. Again she had little or no recollection of that conversation, and did not think her recollection would have been any better had she been asked about it at the time her evidence was pre-recorded. Her evidence was that she had not discussed these matters with her sister, Lorraine.

29 Lorraine gave evidence that she had overheard the appellant and her mother talking when the appellant said that her biological father had touched her and Diane when they were babies. She overheard the appellant say that her biological father had sexually abused them as babies. Lorraine stated that she had never spoken to her sister, Diane, about the matter. She accepted that she would probably have a better recollection of the conversation she had overheard a couple of years ago.

30 Jane's evidence was that before Diane and Lorraine had made allegations against the appellant, she had never spoken to them about being sexually abused by any other person. However, when Diane was about 3 or 4 years of age, she had a bladder infection which resulted in her hospitalisation. Following tests, Diane was diagnosed with genital herpes. As a result of that diagnosis, the Child Protection Unit visited the family home. In that context, the appellant alleged that Diane's biological father had probably given her the condition when she was a baby. Jane's evidence was that the appellant became very agitated, and required the representatives of the Child Protection Unit to leave the house when they suggested that he might be responsible for Diane's condition. Thereafter, the appellant would assert from time to time that the biological father of each of Diane and Lorraine had sexually touched or abused both of the girls.

31 William's evidence was that he had overheard his mother and the appellant having an argument, during which the appellant yelled out that Diane and Lorraine's biological father had sexually assaulted them.

32 Before this evidence was led, the argument advanced in support of the appeal was to the effect that the evidence was likely to go to the degree of sexual knowledge, sophistication or experience of each of the complainants. Now that the evidence has been led, and even allowing for possible differences between the quality of the evidence led on the hearing of the appeal and the quality of the evidence that might have been led if cross-examination had been permitted in January 2007, it is clear that if the cross-examination had been permitted it would not have adduced evidence which was of any significance to any conclusions that might be drawn with respect to the degree of sexual knowledge, sophistication or experience of the complainants.

33 Further, if that line of cross-examination had been pursued at trial, and evidence had been adduced from the complainants on that topic, there is every prospect that evidence would have been adduced, either by the State or in cross-examination, from the complainants' mother and brother, of the kind that was adduced on the appeal. That evidence would have been devastating to the appellant's case. It would have supported an inference to the effect that when confronted with the fact that one of the children with whom he was living had a sexually transmitted disease, he alleged, without any apparent foundation, that the sexually transmitted disease was likely to have been inflicted by the child's biological father some years earlier. In the context of the issues at trial, the evidence on this issue as a whole casts significant doubt upon the credibility of the appellant.

34 Confronted with these difficulties, the argument advanced on behalf of the appellant changed tack. In written submissions provided after the completion of the resumed appeal hearing, it was submitted that there was a substantial miscarriage of justice because the evidence was not led and the evidence could have been used to impugn the credibility of the complainants. The appellant's written submissions particularly singled out Diane, given the difference between her evidence and that of her mother and brother. It does seem clear that when giving evidence on appeal, Diane was confused about what she had heard from her mother. This is understandable, given that she had been told these things many years earlier and her recollection was understandably vague. The vagueness of her recollection does not, in those circumstances, sustain a significant attack upon her credibility.

35 Perhaps more significantly however, the evidence of Lorraine, Jane and William is consistent and generally to the same effect, and sustains the conclusion to which I have already referred - namely, that when confronted with Diane's diagnosis with a sexually transmitted disease, the appellant sought to conceal his own involvement in her sexual abuse by making baseless allegations against her biological father. The evidence is much more damaging to the credibility of the appellant than it is to either complainant.

36 The forensic reality is that if this evidence had been led at the pre-recording, and had been pursued with other witnesses at trial, steps would have been taken to have it excluded from the trial, because of its highly prejudicial impact upon the appellant's case.

37 This is an unusual case. Although on the face of the material originally available, the appellant was denied the opportunity of pursuing a relevant line of cross-examination which might have assisted his case, after the evidence which was excluded has been called, it is clear that the erroneous ruling by the judge presiding over the pre-recording did not deny the appellant of evidence of any forensic value to his case. Rather, in the unusual circumstances of this case, the erroneous ruling prevented the appellant from pursuing a line which, had it been fully pursued, would have been highly detrimental to his case. Having undertaken the obligation imposed upon an appellate court whenever the proviso is called into consideration, and reviewed the evidence in its totality, there was ample evidence to sustain the jury's verdict of guilt on the 10 counts of which the appellant was convicted. The erroneous ruling by the judge presiding over the pre-recording did not cause the appellant any forensic disadvantage. It follows that there has been no substantial miscarriage of justice, notwithstanding the erroneous ruling of the judge, and the appeal should be dismissed pursuant to the proviso.

38 BUSS JA: I have read the proposed reasons for judgment of the Chief Justice. I agree with his Honour that the appeal should be dismissed. I will, however, state my own reasons for that conclusion.

39 The Chief Justice has recounted the material facts. I will not repeat them, except as necessary to explain my reasons.

The application made to Sweeney DCJ before trial

40 At the commencement of the pre-recording of the evidence of the complainants, 'Diane' and 'Lorraine', the appellant's trial counsel made application to Sweeney DCJ for leave to cross-examine each of them about whether they had heard their mother say that other men than the appellant had engaged in sexual acts with them. The application was based on a passage in each of the video-recorded interviews of 'Diane' with the police. 'Diane' said, in substance, that she had overheard her mother speaking about other men having performed sexual acts upon her.

41 The appellant's trial counsel submitted to her Honour:

[I]t would be appropriate to ask again the complainant ['Diane'] as to whether she does in fact have any recollection at all of any such incident with another man, as he has been described, or the [biological] father, ['James']. If she answers in the negative, in my submission further questioning should follow in respect of what the mother actually told her in terms of detail and in my submission that would not be the subject of an application for section 36B [sic] because it's not actually a sexual experience but rather information introduced to the young mind (ts 20).

42 Although 'Lorraine' did not make similar statements in her video-recorded interview with the police, the appellant's trial counsel submitted that he should be permitted to pursue the proposed line of cross-examination with her on this basis:

There's lots of information in the interviews that show that there's communication between ['Diane'] and ['Lorraine']. Indeed, ['Diane'], according to ['Lorraine'] - this may well be excised in due course - does say to ['Lorraine'] that she has engaged in at the very least oral sex, if you like, fellatio, on the accused man [MNO] to her sister; she has disclosed that information. So not only are they siblings in a family but there's also communication.

The prospect that the mother having spoken with ['Diane'] on this point - the prospect is that it would be likely that the mother would also have spoken with ['Lorraine'] on this point. The prejudice to the defence is simply because this line of questioning to ['Diane'] was not repeated to ['Lorraine'] means that the inquiry is incomplete in that regard (ts 22)

43 The prosecutor opposed the application on the ground that s 36BC of the Evidence Act 1906 (WA) applied to the evidence sought to be adduced, and the evidence in question did not have substantial relevance to the facts in issue.

44 Sweeney DCJ ruled that the topics which the appellant's trial counsel proposed to explore in cross-examination had 'some remote relevance', but did not have 'substantial relevance', to the facts in issue (ts 36). She added that, in any event, the probative value of the evidence sought to be adduced did not outweigh the distress, humiliation or embarrassment which, in her view, was likely to result from the children being questioned about any sexual acts involving their biological father as to which they had been told (ts 36). Her Honour ruled that any such evidence was inadmissible, and therefore refused leave to cross-examine (ts 36). She also said, in relation to the younger child, 'Lorraine', that there was no evidentiary basis for the application (ts 37).

The proper construction and application of s 36BC

45 Section 36BC provides:

(1) In proceedings for a sexual offence, evidence relating to the sexual experiences of the complainant, being sexual experiences of any kind, at any time and with any person, not being part of the res gestae of the proceedings, shall not be adduced or elicited by or on behalf of an accused unless leave of the court has first been obtained on application made in the absence of the jury (if any).

(2) The court shall not grant leave under subsection (1) unless satisfied that -

(a) what is sought to be adduced or elicited has substantial relevance to the facts in issue; and

(b) the probative value of the evidence that is sought to be adduced or elicited outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission.

46 In Bolton v The State of Western Australia [2007] WASCA 277, Steytler P (with whom Buss and Miller JJA agreed) considered various aspects of the proper construction and application of s 36BC. His Honour said [36]:

The words 'sexual experiences' include experiences as the victim of a sexual offence: Hill v The Queen [2003] WASCA 177 [48] (McLure J; Murray & Wheeler JJ agreeing). These words have also been construed as meaning actual sexual experiences, in the sense that the defence cannot, without leave, cross-examine a complainant on the question whether a previous complaint of rape involved consensual sex (see R v Tribe [2001] QCA 206 [22] - [24], [31] - [34] (Mackenzie J, McMurdo P & Williams JA agreeing)) but can, without leave, suggest to the complainant that a previous complaint of rape was false because the sexual act never occurred (R v Stergiou [2004] WASC 172; (2004) 147 A Crim R 120 [16] - [20] (Le Miere J)). The rationale for this distinction is that cross-examination contending that sexual activities did not take place at all is not cross-examination with respect to the complainant's sexual experience: see also R v MAG [2004] QCA 397 [24] - [27] (Williams JA, Cullinane & Jones JJ agreeing); R v Thow [2003] TASSC 16 [9] - [10] (Slicer J). Under Western Australian legislation, the lack of sexual experience is not caught by s 36BC: cf, in this respect, Criminal Procedure Act 1986 (NSW) s 293(3).

47 Later, Steytler P referred to Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443, and noted:

As will be apparent, s 36BC provides that, where the evidence forms part of the res gestae, it will be admissible without leave. The words 'res gestae', in this context, refer to events that are so close in time and space to the offence charged as to be inseparable from it: Bull [110] (McHugh, Gummow & Hayne JJ). After referring to the remarks of Dixon CJ in Dawson v The Queen [1961] HCA 74; (1961) 106 CLR 1, 16, that 'the ingredients of a crime are to be proved by direct or circumstantial evidence of the events, that is to say, the parts and details of the transaction amounting to the crime, and are not inferred from the character and tendencies of the accused', the majority in Bull went on to say [112]:

This statement provides an insight as to what constitutes the 'res gestae' for the purpose of s 36BC. The existence of consent, for example, is not to be 'inferred from the character and tendencies of the [complainant]', but is to 'be proved by direct or circumstantial evidence of the events, that is to say, the parts and details of the transaction amounting to the crime'. Where an act or statement is intimately connected with the particular sexual conduct which is the subject of the charge, or in other words with 'the parts and details of the transaction amounting to the crime', it is part of the res gestae and so is admissible under s 36BC without leave. That applies to acts or matters tending to prove the disposition of the complainant, as well as to other acts or matters relating to the sexual experiences of the complainant.

The majority noted an apparent conflict between s 36B and s 36BC, and also between s 36BA and s 36BC. They said in this respect [64]:

That is because s 36BC allows evidence relating to sexual experiences to be adduced if it is part of the res gestae or if the court is satisfied of certain conditions and gives leave to adduce the evidence. Yet in terms ss 36B and 36BA respectively purport to render inadmissible any evidence relating to the sexual reputation of the complainant or to the disposition of the complainant in sexual matters even when it relates to or is derived from the sexual experiences of the complainant. The conflict between the literal meanings of these sections suggests that the literal meanings of ss 36B and 36BA must be qualified to some extent.

Next, before it can be admitted by leave under s 36BC, the evidence must be of substantial relevance. Evidence which is legally relevant must be excluded if its relevance is not substantial: Hill [58] (McLure J). Finally, if leave is to be given, the probative value of the evidence must not be outweighed by the distress and humiliation that the eliciting of that evidence may have on the complainant [43] - [45].

48 In Bolton, Steytler P also referred to the words 'evidence relating to' in s 36BC, and in s 36B and s 36BA. His Honour observed:

The majority in Bull gave detailed consideration to the meaning of the words 'evidence relating to' in each of the three sections. They said [72]:

Evidence of a fact or matter is testimony that tends to prove that fact or matter. Accordingly, any evidence that tends to prove the disposition of the complainant is evidence relating to his or her disposition. Such testimony does not cease to be evidence relating to the disposition of the complainant because it also tends to prove some other fact or matter in the proceedings. Evidence that on the occasion in question or on other occasions a complainant had used sado­masochistic devices in the course of sexual activity would tend to prove the disposition of that complainant in sexual matters. The validity of the proposition would not be affected by the fact that the evidence was tendered for the purpose of proving a fact in issue such as consent or an honest belief that the complainant had consented. It may be that the natural meaning of the words 'evidence relating to' is wide enough to cover evidence that only incidentally refers to sexual reputation, disposition or experiences, an issue that we must later discuss. But it seems impossible to deny that those words in their ordinary meaning at least cover any testimony which tends to prove any of those matters.

However, they went on to say [75]:

Sometimes, however, testimony of an out-of-court statement is admissible to prove a fact relevant to a fact in issue such as the intention or purpose of the complainant or even the consent of the complainant. If the statement contains material that refers to matters relating to the reputation, disposition or experiences of the complainant in sexual matters, would it be evidence tending to prove those matters and prohibited by one or more of the three sections? We think not.

The majority also compared hearsay statements with evidence of conduct. They said [80] - [81]:

If a hearsay statement is admissible to prove a fact in issue or a fact relevant to a fact in issue, it is evidence of that fact only and the statement cannot be regarded as evidence tending to prove any fact in the statement. It follows that, in a trial to which ss 36B, 36BA or 36BC apply, a statement of the complainant that is admissible to prove a fact in issue or a fact relevant to a fact in issue other than the reputation, disposition or experiences of the complainant in sexual matters, does not become, upon admission, evidence tending to prove those matters even if the contents of the statement refer to them. The statement has no probative value in respect of those matters. Accordingly, it is not evidence tending to prove any of those matters.

But, as we have said, evidence of conduct stands in a different category. The ordinary and natural meaning of the words 'evidence relating to' is that they cover any testimony that tends to prove a fact or matter. If testimony tends to prove the sexual reputation, disposition or experiences of the complainant in sexual matters, it does not matter that it is adduced for some other purpose. It will, by force of ss 36B, 36BA and 36BC, be inadmissible for all purposes [46] - [48]. (original emphasis)

49 At the trial before O'Brien DCJ, edited versions of the video-recorded interviews of the complainants with the police were tendered in evidence and shown to the jury. The passages from the video-recorded interviews on which the appellant's trial counsel had been refused leave to cross-examine were expunged. The pre-recorded evidence of each complainant was also tendered and shown to the jury.

50 The complainants' mother, 'Jane', was called by the prosecution. She denied, relevantly, that she had used sexual terminology (including coarse sexual language) in front of the complainants or that the complainants had heard such language over a CB radio located in the family home. The complainants also denied that their mother used sexual terminology, although 'Lorraine' did give this evidence in re-examination:

One of the words that [the appellant's trial counsel] suggested that your mum used was 'wank'. Can you remember your mum using that word?---Not - not often. She never says that often (ts 196).

51 The complainants' brother, 'William', did not give evidence at the trial. The prosecution called other witnesses, but it is unnecessary to refer to them or their evidence.

52 The appellant gave sworn evidence in his own defence, and denied the complainants' allegations.

53 The complainants' evidence was critical to the prosecution's case. As the prosecutor said, in his closing address:

[I]t is fundamentally the evidence of ['Diane' and 'Lorraine'] and of no-one else that establishes the charges, the counts on the indictment, that you have to consider.

Your decision about their evidence is most fundamental to your decision about each of the charges faced by the accused.

54 The prosecutor also submitted, in his closing address, that children of the age of the complainants would not have been able to describe, as they did, the sexual conduct alleged against the appellant, in graphic detail, unless that conduct had occurred. The prosecutor's contention in this respect was referred to and echoed by O'Brien DCJ in these comments in her summing up:

As young girls, you may think their focus was on what they say the accused did to them, not to the surrounding details of the day, of the week, the weather, the clothes and that sort of thing. Their evidence obviously addressed very intimate sexual matters, some with great detail, which you may not expect if they were lying. For example, in count 8 when ['Lorraine'] was talking about the sweat that came from [the appellant's] penis, that is a detail which you may think wouldn't have been necessary if that account was false. Another example might be in count 19 when ['Diane'] was talking about what happened to her in the bush.

She told you that [the appellant] had split her - he told her that he had split her and if she bled not to tell her mother. The state suggests to you that those sorts of details are indicators of truthfulness. You may think that these girls, young girls, would have to be very sophisticated liars to think up those sorts of details as embellishments for their lies (ts 761 - 762).

The non-application of s 36BC in the present case

55 If the evidence which the appellant's trial counsel had hoped to adduce in cross-examination of the complainants was not for the purpose of establishing the truth of any alleged previous sexual incidents involving the complainants, or the truth of what they may have previously been told, but to establish some other fact that was legally relevant, the evidence would not have been inadmissible under s 36BC(1). See Bolton, where Steytler P said:

However, the appellant did not seek to lead the evidence for the truth of its contents concerning the complainant's sexual disposition or sexual experiences. He sought to rely upon it for three reasons, as I have said. The first was in order to prove the complainant's intention or purpose in going to his house which, in turn, was relevant to the issue of consent. The second was in order to prove the appellant's understanding of what the appellant was willing to do if she came to his house which, in turn, was relevant to the issue of honest and reasonable belief in consent. The third was in order to cast doubt on the complainant's credibility concerning her memory of the conversations, her professed lack of sexual interest in the appellant (which, she said, she had conveyed to him) and her reasons for going to his home.

Applying what was said by the majority in Bull [80], the complainant's hearsay statements were admissible to prove intention or purpose (being relevant to consent) and the appellant's understanding (being relevant to honest and reasonable belief) and could not be regarded as evidence tending to prove the complainant's sexual disposition or sexual experiences, in respect of which they had no probative value. The only other relevance of the statements related to the issue of credit. Consequently, the evidence was not excluded by either of s 36BA or s 36BC, although a strong direction would have been needed in order to make it plain to the jury that the evidence was admissible only for the purposes identified and not for the purpose of proving sexual disposition or experiences and that they should not engage in impermissible reasoning in respect of it [63] - [64].

56 Before this court, counsel for the State conceded that s 36BC was not applicable. The concession was properly made.

57 In my opinion, the evidence which the appellant's trial counsel had hoped to adduce in cross-examination of the complainants was not for the purpose of establishing the truth of any previous sexual incidents involving the complainants, or the truth of what they may have previously been told. Rather, the purpose was to rebut the prosecution's case that children of the age of the complainants would not have been able to describe, as they did, the sexual conduct alleged against the appellant, in graphic detail, unless that conduct had occurred. The line of questioning proposed to be embarked upon by the appellant's trial counsel, if successful, may have provided an alternative explanation for the complainants' detailed knowledge and description (often in coarse language) of a variety of sexual behaviour. The proposed cross-examination was relevant to the source of the complainants' knowledge.

58 In the circumstances, the evidence which the appellant's trial counsel had sought to adduce was relevant to the facts in issue at the trial, and was not inadmissible under s 36BC(1). Sweeney DCJ was, with respect, in error in refusing to permit the proposed cross-examination.

Sections 39 and 40 of the Criminal Appeals Act 2004 (WA)

59 Section 39(1) of the Criminal Appeals Act 2004 (WA) provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. By s 39(3), however, s 39(1) does not affect the power of an appeal court to admit evidence pursuant to s 40 of the Act. Section 40(1) provides, relevantly:

For the purposes of dealing with an appeal, an appeal court may do any or all of the following -

(a) order the production of any record or thing, whether or not an exhibit, that is or may be relevant to the appeal;

(b) order a witness who would have been compellable at the trial in the lower court, whether or not called at the trial, to attend and be examined before the appeal court;

...

(d) subject to the Evidence Act 1906 section 9, admit the evidence of a witness, including a convicted appellant, who is a competent but not compellable witness;

(e) admit any other evidence;

...

60 On 19 August 2008, this court heard oral submissions from counsel for the parties. The proceedings were then adjourned. On 21 August 2008, the Chief Justice wrote to the parties, informing them that the court had given consideration to the making of an order under s 40(1)(b) of the Criminal Appeals Act, directing that the complainants, 'Diane' and 'Lorraine', and their mother, 'Jane', attend and be examined before the court. The solicitors for the appellant informed the court that they did not object to the making of the proposed order, but submitted that the order should also be directed to the complainants' brother, 'William'. The Director of Public Prosecutions also did not object to the proposed order and agreed that the direction should extend to 'William'. The court then made the proposed order. Its object was to endeavour to ascertain the evidence that might have been given by the witnesses I have mentioned if Sweeney DCJ had not disallowed the line of cross-examination proposed by the appellant's trial counsel.

61 On 19 November 2008, the hearing of the appeal was reconvened and the witnesses I have mentioned gave evidence. The Chief Justice's reasons contain a summary of their evidence.

Section 30(3) and (4) of the Criminal Appeals Act

62 Section 30(3) of the Criminal Appeals Act provides that this court must allow an appeal against conviction by an offender if, in its opinion:

(a) the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported;

(b) the conviction should be aside because of a wrong decision on a question of law by the judge; or

By s 30(4), despite s 30(3), even if a ground of appeal might be decided in favour of the offender, this court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

63 In Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, the trial judge had erred in permitting the prosecution to adduce inadmissible evidence. The accused was convicted. The Court of Appeal of Victoria held that the trial judge had made an error of law, but applied the proviso and dismissed the appeal. The High Court reversed the Court of Appeal. Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ enunciated three fundamental propositions in relation to the proviso to s 568(1) of the Crimes Act 1958 (Vic) (a provision indistinguishable, in substance, from s 30(4) of the Criminal Appeals Act) which, their Honours said, must not be obscured:

First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt [39].

Later, their Honours summarised the statutory task which must be performed by an appellate court in deciding whether to dismiss an appeal against conviction on the ground that no substantial miscarriage of justice has occurred:

That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence (Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517 at 524 - 525 per Barwick CJ; Storey [1978] HCA 39; (1978) 140 CLR 364 at 376 per Barwick CJ; Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454; M v The Queen [1994] HCA 63; (1994) 181 CLR 487; Festa [2001] HCA 72; (2001) 208 CLR 593 at 631 - 633 [121] - [123] per McHugh J) and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 125 - 126 [23] per Gleeson CJ, Gummow and Kirby JJ), the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself [41].

64 In Weiss, it was emphasised that it was necessary, in determining whether to apply the proviso or not, to proceed on the basis of the statutory language rather than secondary sources or materials [31] - [33]. The court also emphasised that it is not correct or of assistance to endeavour to articulate absolute rules or singular tests which are to be applied where an appellate court examines the trial record for itself, beyond the three fundamental propositions I have recorded at [63] above. Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ added:

(The appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; the task is an objective task not materially different from other appellate tasks; the standard of proof is the criminal standard.) It is not right to attempt to formulate other rules or tests in so far as they distract attention from the statutory test. It is not useful to attempt that task because to do so would likely fail to take proper account of the very wide diversity of circumstances in which the proviso falls for consideration [42].

Their Honours acknowledged that no single universally applicable description of what constitutes 'no substantial miscarriage of justice' can be given [44]. They said, however, that one negative proposition may safely be offered:

It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty [44].

Also see Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373 [84], [94] - [96] (Gleeson CJ, Gummow, Heydon and Crennan JJ).

65 In AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438, Gummow and Hayne JJ referred to the passages in Weiss which I have set out at [64] above, and said that the negative proposition in those passages (about when the proviso cannot be engaged) must not be treated as if it states what suffices to show that no substantial miscarriage has occurred:

To treat the negative proposition in this way would be to commit the very same error which Weiss sought to correct, namely, taking judicial statements about aspects of the operation of statutory provisions as substitutes for the statutory language [53].

66 In Weiss, the High Court noted that there may be cases where it would be proper to allow an appeal and order a new trial, even though the appellate court is satisfied beyond reasonable doubt of the appellant's guilt. The High Court referred, by way of example, to two categories of case. The first included cases 'where there has been a significant denial of procedural fairness at trial' [45]. The second included cases where the 'errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the common form criminal appeal provision with its proviso' [46].

67 Their Honours then referred to Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 373. Wilde was concerned with an appeal by an offender who had been convicted following a trial before a judge and jury. The Court of Criminal Appeal of New South Wales held that the trial judge had made a serious error of law in the trial in that evidence relating to one count against the appellant was not admissible in proof of some other counts against him, so the first count should have been severed from the indictment and tried separately. Nevertheless, the Court of Criminal Appeal was of the opinion that the evidence in support of the counts upon which the appellant was convicted was so strong, and the defence so weak, that there had been no substantial miscarriage of justice. It dismissed the appeal. The appellant's appeal to the High Court also failed.

68 In Wilde, Brennan, Dawson and Toohey JJ held that the proviso was not intended to apply 'when the proceedings before the primary court have so far miscarried as hardly to be a trial at all'; and also, that the proviso does not apply 'where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings' so that 'the accused has not had a proper trial and ... there has been a substantial miscarriage of justice' (373). Also see Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1, 8 (Mason CJ, Brennan and Toohey JJ).

69 In AK, the High Court heard a criminal appeal from a judge sitting without a jury. The trial judge erred in law by failing to give adequate reasons for his decision to convict the appellant. The trial judge breached the requirement in s 120(2) of the Criminal Procedure Act 2004 (WA) that his reasons articulate the connection identified between the relevant legal principle in AK (proof beyond reasonable doubt) and the relevant findings of fact. The majority of the High Court (Gummow, Hayne and Heydon JJ) held that the trial judge's complete failure to meet the mandatory requirements of s 120(2) of the Criminal Procedure Act, with respect to the central issue in the appellant's trial, constituted a substantial miscarriage of justice. In particular, it was a substantial miscarriage because the Act required that the appellant's trial produce a reasoned decision that met the criteria specified in the statute. Gummow and Hayne JJ said:

When there has been a trial by jury, and an appellate court concludes that the trial judge made a wrong decision on a question of law or that there was some other miscarriage of justice, deciding whether there has been no substantial miscarriage of justice necessarily invites attention to whether the jury's verdict might have been different if the identified error had not occurred. That is why, if the appellate court is not persuaded beyond reasonable doubt of the appellant's guilt it cannot be said that there was no substantial miscarriage of justice. But just as persuasion of the appellate court of the accused's guilt does not in every case conclude the inquiry about the proviso's application in appellate review of a jury trial, inquiring about the weight of the evidence led at a trial by judge alone does not determine whether there was a substantial miscarriage of justice. In a case, like the present, where the Criminal Procedure Act required that the trial yield a reasoned decision, but no reasons were given for the determination of the central issue tried, it cannot be said that there was no substantial miscarriage of justice [59].

70 In Gassy v The Queen [2008] HCA 18; (2008) 82 ALJR 838, Gummow and Hayne JJ said in relation to the observations in Wilde concerning a serious breach of the presuppositions of a criminal trial:

Identifying a priori some kinds of error as precluding application of the proviso presents difficulties of the same kind as are presented by using judicial statements about the application of the proviso as some substitute for the relevant statutory test. That is, it is neither possible nor useful to seek to apply the proviso according to a taxonomy of errors at trial which describes some as 'fundamental' and others as not. And what was said in Wilde v The Queen ([1988] HCA 6; [1988] HCA 6; (1988) 164 CLR 365 at 373 per Brennan, Dawson and Toohey JJ) about 'such a departure from the essential requirements of the law that it goes to the root of the proceedings' is not to be understood as prescribing or defining a class of cases to which the proviso cannot be applied. Rather, what was said in the passage quoted from Wilde is a description, in words other than the statutory words, of one kind of case in which an appellate court could not conclude that there had been no substantial miscarriage of justice. For the reasons given in Weiss, a negative proposition of this kind cannot be taken as a substitute for the statutory language. (original emphasis)

Whether the error constituted by giving the impugned instructions is properly described as 'fundamental' or as an error going 'to the root of the proceedings' would depend upon the content that is given to the expressions used. The statutory question is whether the Full Court considers that 'no substantial miscarriage of justice has actually occurred' (Criminal Law Consolidation Act 1935 (SA), s 353(1)). In answering that question it is necessary to consider the nature of the error and in doing that it will be important to consider the possible effect that the error may have had on the outcome of the trial [33] - [34].

The appellant in Gassy was convicted of murder. The High Court, by a majority (Gummow, Hayne and Kirby JJ; Crennan and Kiefel JJ dissenting) quashed the conviction and ordered a new trial. The majority held that certain instructions given by the trial judge to the jury rendered the trial a miscarriage of justice. The impugned instructions were given after the jury had been deliberating on their verdict for some time. The relevant instructions involved her Honour suggesting an approach the jury might take in an attempt 'to move [their] discussions along' [23]. The instructions occasioned a miscarriage of justice because they were unbalanced; in particular, they contained no substantial reference to the competing arguments and considerations relevant to the appellant's case [31].

71 In AK, Gleeson CJ and Kiefel J accepted, as a matter of principle, that 'some errors are so fundamental or involve such a departure from the essential requirements of a fair trial that they exclude the operation of the proviso, irrespective of the strengths of the prosecution case, or the appellate court's view as to the guilt of the accused' and that 'the proviso cannot be applied where the error at trial denies or substantially frustrates the capacity of an appellate court to decide whether a conviction is just' [23]. Gummow and Hayne JJ held that, although the class is difficult to describe in the abstract, there exists a 'class of ... circumstances' in which 'radical' error at trial renders the application of the proviso all but impossible [54].

72 These observations in AK were referred to by Kirby J in CTM v The Queen [2008] HCA 25; (2008) 82 ALJR 978. His Honour said:

The failure on the part of the trial judge to explain to the jury the legal ingredients of an offence, and to assign correctly the burden and standard of proof in respect of them, seem to me to be 'radical' errors, inconsistent with the requirements of the law. It cannot matter that the law in question is common law and not, as in AK (See [2008] HCA 8; (2008) 82 ALJR 534 at 545 [55]; [2008] HCA 8; 243 ALR 409 at 422 - 423; cf Gassy v The Queen [2008] HCA 18 at [33] - [34]), expressed in a statute. It is still the law [128].

It was also acknowledged in AK that one of the 'two principal safeguards for the accused in a criminal trial' is 'the criminal burden and standard of proof' ((2008) [2008] HCA 8; 82 ALJR 534 at 558 [102] per Heydon J; [2008] HCA 8; 243 ALR 409 at 440). If this is the case, then surely it must be a grave (or 'radical') error for the trial judge to misdirect the jury on each of these considerations, as occurred in the appellant's trial. If this Court is itself to deny relief to an otherwise successful appellant by its own application of the 'proviso', it must, in my respectful opinion, be consistent in doing so [129].

73 In Cesan v The Queen [2008] HCA 52; (2008) 83 ALJR 43, the appellants were convicted, after a trial, of conspiring together and with others to import into Australia a 'commercial quantity' of a prohibited import, namely the narcotic drug commonly known as ecstasy. The High Court allowed the appellants' appeals and ordered a retrial. The trial judge had fallen asleep during some parts of the trial. As a consequence of the trial judge falling asleep, the jury were repeatedly distracted from attending to the evidence at various stages of the trial, including when one of the appellants was giving his evidence. This constituted a miscarriage of justice [119]. A critical issue in the appeal was whether the 'proviso' in s 6(1) of the Criminal Appeal Act 1912 (NSW) was engaged. The Court of Criminal Appeal of New South Wales, by a majority, had applied the proviso.

74 In Cesan, Hayne, Crennan and Kiefel JJ (with whom Gummow J agreed in relation to the application of the proviso, and Heydon J agreed generally) said that the disposition of the appeal depended on the application of established principles to the particular facts and circumstances of the case. No development or amplification of those principles was necessary [110]. Their Honours noted, consistently with the observations of Gummow and Hayne JJ in Gassy, that what was said in Wilde is not to be taken as if it were a judicially determined exception grafted upon the otherwise general language of the proviso [126]. Although the record before the High Court included the jury's verdict of guilty, it was not possible, in the circumstances, to place any weight upon the jury's verdict because the relevant miscarriage involved the jury not paying attention to all of the evidence adduced at the trial [129]. Significantly, their Honours said:

Each accused proffered an explanation of what was put against him. In transcript the explanation may lack persuasion. But whether the evidence as a whole, including what each accused said in explanation, was sufficient to establish guilt beyond reasonable doubt was a question for the jury to decide having regard to more than the words that are recorded in the transcript of the proceedings. But because members of the jury were distracted, they did not perform this task. And more importantly, the Court of Criminal Appeal could not decide from the record alone that the explanations proffered by each accused were in each case to be rejected and the conclusion reached beyond reasonable doubt that each was guilty [130]. (original emphasis)

Their Honours concluded that the proviso was not engaged. It could not be said that no substantial miscarriage of justice actually occurred [132].

75 The authorities do not establish that any denial of procedural fairness to an accused in the course of a criminal trial, at which the accused is convicted, will preclude the application of the proviso by an appellate court. In particular, the High Court in Weiss referred to a 'significant' denial of procedural fairness at trial as an example of a category of case where it would be proper to allow an appeal and order a new trial, even though the appellate court was satisfied beyond reasonable doubt of the appellant's guilt [45]. The word 'significant' and other formulations by the High Court (for example, a 'serious' breach of the presuppositions of a criminal trial: Weiss [46]; such a departure from the essential requirements of the law that it goes to 'the root' of the proceedings: Wilde (373); errors which are 'so fundamental' or involved 'such a departure' from the essential requirements of a fair trial: AK [23]; a 'radical' error at trial: AK [54]; and a 'grave' error by the trial judge: CTM [129]), indicate that questions of degree are involved in determining whether, in the circumstances of a particular case, an appellate court considers that the nature of the error or miscarriage at trial precludes the court from being satisfied, in terms of the proviso, that no substantial miscarriage of justice has actually occurred, irrespective of the strength of the prosecution case or the appellate court's opinion as to the accused's guilt.

The proviso should be applied in the present case

76 The right of an accused in a criminal trial to cross-examine the prosecution's witnesses on any relevant issue is, of course, a fundamental right.

77 Sweeney DCJ's error of law in refusing to permit the appellant's trial counsel to cross-examine on the topics and for the purpose I have mentioned may be characterised as a denial of procedural fairness. It is apparent, however, from the additional evidence admitted by this court in the appeal, that any denial of procedural fairness was insignificant.

78 In my opinion, each of the witnesses in the appeal (that is, 'Diane', 'Lorraine', 'Jane' and 'William') was an honest witness. They endeavoured to assist the court by answering questions in a straightforward and open manner. Their evidence does not establish any arguable basis for contending that the source of the complainants' detailed knowledge and description of a variety of sexual behaviour (as revealed in the video-recorded interviews with the police and their pre-recorded evidence at trial) was conversations between the complainants and their mother; conversations they had overheard between their mother and brother or another person; conversations with another man or men who had engaged in sexual acts with them; or any other source of information unrelated to the appellant. If, at the trial, the appellant's counsel had been permitted to follow his proposed line of cross-examination, it would not have advanced the appellant's defence in relation to the topics or purpose for which he sought leave to cross-examine.

79 The appellant, in his written submissions filed after the witnesses gave evidence on 19 November 2008, sought to broaden his argument based on Sweeney DCJ's error of law. He now asserts that he lost an opportunity to attack the complainants' credibility and that of their mother and brother generally because the accounts given by them in evidence before this court differ among themselves in relation to discussions that the complainants had possibly suffered other (earlier) sexual abuse.

80 Before the commencement of the hearing of the appeal on 19 August 2008, the appellant abandoned ground 1 of his appeal, which had alleged the verdicts of guilty were 'unsafe and unsatisfactory'. The appellant's written submissions appear, in part, to re-agitate the abandoned ground 1. This is not permissible. He did not seek leave to reinstate the ground.

81 In any event, the appellant's submissions as to the credibility of the complainants and their mother and brother are without merit. The conversations referred to in the evidence given to this court were, almost entirely, in very general terms. The only specific abuse revealed by the evidence was an alleged digital penetration of one of the complainants (appeal ts, 19 November 2008, 19 - 20). The appellant was acquitted of the only count on the indictment which alleged a digital penetration.

82 Further, the differences between the evidence given before this court by the complainants and their mother and brother about conversations they had participated in or had overheard were not material. Although the accounts of the witnesses differed, the differences are consistent with those which might be expected from honest witnesses recounting events that occurred many years ago.

83 The video-recorded interviews of the complainants with the police occurred on 14 and 16 January 2006, in the case of 'Diane', and 16 January 2006, in the case of 'Lorraine'. The pre-recorded evidence of the complainants was taken on 18 and 19 January 2007. The trial ran between 11 - 15 and 18 - 21 June 2007.

84 'Diane' accepted, in evidence before this court, that her memory of 'these events' was less clear than it was 'then' (presumably, a reference to when the events happened). She added, however, that if she had been questioned about the events 18 months ago, her memory 'would still be the same' (appeal ts, 19 November 2008, 12). 'Lorraine' was asked, in evidence before this court, whether her memory of the 'rumour' would have been better 'a couple of years ago' (appeal ts, 19 November 2008, 17). She replied, 'probably' (appeal ts, 19 November 2008, 17). The 'rumour' referred to by 'Lorraine' was a rumour she had heard 'about being sexually abused by anyone other than [the appellant]' (appeal ts, 19 November 2008, 13). She said the 'rumour' was that the complainants' biological father had 'touched me and ['Diane'] when babies' (appeal ts, 19 November 2008, 13). 'Lorraine's' evidence in cross-examination that she would probably have remembered better 'a couple of years ago' must be evaluated in the context of this exchange in re-examination:

How much attention did you pay to the conversation that you talked to us about?---Not much. I could only just overhear it.

Okay, and you've said in answer to some questions that the other lady asked that there might have been more than one conversation. Can you remember more than one conversation?---Yeah, but not clearly though.

All right. How much attention did you pay to these conversations when they happened?---Not much.

Did they have any effect on what you said about [the appellant]?---No, because all I know it's a rumour.

Okay. Do you remember anything like that ever happening to you apart from with [the appellant]?---No, nothing I can remember (appeal ts, 19 November 2008, 17).

In my opinion, the passage of time between January 2007 (when the complainants' evidence was pre-recorded) and November 2008 (when they gave evidence before this court) did not diminish materially the accuracy or particularity of their evidence in relation to the matters explored in their evidence before this court.

85 The evidence to which I have referred does not provide any arguable basis (either alone or in combination with the evidence given at the trial) for contending that there is now a reasonable doubt as to the honesty or reliability of the complainants' evidence on the counts in respect of which the appellant was convicted.

86 At all material times, evidence (including documentary records) of the Department for Child Protection and Princess Margaret Hospital, in relation to the matters on which the complainants' mother gave evidence before this court, was available. The appellant's counsel did not put to 'Jane' that her evidence as to 'Diane's' sexually transmitted disease or the involvement of the Department or the Hospital was false or misleading. In the circumstances, evidence relating to these matters must have been within the appellant's knowledge at, and before, the trial. The additional evidence of 'Jane' does not provide any arguable basis (either alone or in combination with the evidence given at the trial) for contending that the appellant was deprived of any material line of inquiry or cross-examination or any material submission that was not available on the evidence given at the trial.

87 Finally, in this context, it would be risible to suggest that the appellant's prospects of acquittal would have been improved if there had been evidence at the trial that 'Diane' had been diagnosed with a sexually transmitted disease when she was 3 or 4 years old. At that time, the complainants were living in a household with the appellant as their stepfather. Further, the sexual abuse by the appellant against 'Diane', as set out in the indictment, was alleged to have occurred when she was aged between 9 and 11 years.

88 The jury's verdicts of guilty on counts 1, 3, 7, 9, 11 and 19 (in relation to 'Diane') and on counts 4, 8, 10 and 13 (in relation to 'Lorraine') were part of the trial record. It is plain from these verdicts that:

(a) the jury was satisfied beyond reasonable doubt that the evidence of the complainants on these counts was truthful and reliable; and

(b) the jury rejected the appellant's evidence (in particular, his denials that the conduct, the subject of the counts in question, had occurred).

89 In the circumstances, great weight must be attached to the jury's verdicts of guilty in determining whether to apply the proviso.

90 I am satisfied beyond reasonable doubt, upon my examination of the trial record and after taking into account the additional evidence given in the appeal, that the appellant was guilty of the counts in respect of which O'Brien DCJ entered verdicts of conviction.

91 The natural limitations of this court as an appellate court, proceeding on the trial record together with the additional evidence given in the appeal, do not, in the present case, preclude the application of the proviso in s 30(4) of the Criminal Appeals Act.