OTR -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 200 (30 November 2021)

5 Her Honour found the appellant not guilty of counts 2 and 3 in relation to GN and count 14 in relation to CT.

6 The trial judge published written reasons. See The State of Western Australia v [OTR].[1]

7 The appellant was represented by lawyers at the trial but was self‑represented in the appeal.

8 The appellant relied upon seven grounds of appeal.

9 Ground 1 alleges, in effect, that the verdicts of guilty on which the convictions are based should be set aside because, having regard to the evidence, they are unreasonable or cannot be supported.

10 Ground 2 alleges, in effect, that the manner in which the appellant's lawyers prepared for and conducted his trial occasioned a miscarriage of justice.

11 Ground 3 alleges, in effect, that various deficiencies in the evidence relied upon by the State should have given rise to a reasonable doubt as to the appellant's guilt on the counts of which he was convicted.

12 Ground 4 alleges, in effect, that defence counsel's failure at the trial to apply for CT to be recalled to give further evidence occasioned a miscarriage of justice.

13 Ground 5 alleges, in effect, that the appellant's lawyers failed to follow his instructions and consequently a miscarriage of justice has occurred.

14 Ground 6 alleges, in effect, that the trial judge evinced bias against the appellant.

15 Ground 7 alleges, in effect, that the appellant was denied procedural fairness in that he was not given personal access to various records relating to counselling undertaken by CT.

16 The appellant and the State filed applications in the appeal for leave to adduce additional evidence.

(a) an application filed 12 April 2021 in respect of numerous affidavits of the appellant sworn 24 March 2021; and

(b) an application filed 2 June 2021 in respect of the appellant's affidavit sworn 2 June 2021 to which were attached three affidavits of the appellant's mother, LM, sworn 30 March 2021.

(a) an application filed 15 June 2021 in respect of an affidavit of Alana Mariamma Padmanabham sworn 8 June 2021 and an affidavit of Ashanti Jaide White sworn 9 June 2021; and

(b) an application filed 18 June 2021 in respect of an affidavit of Mara Rita Barone sworn 18 June 2021 and a supplementary affidavit of Ms White sworn 16 June 2021.

19 Ms Barone was the appellant's trial counsel. Ms Barone was senior counsel at the time of the trial and a District Court Judge when the appeal was heard. Ms Padmanabham and Ms White were the appellant's solicitors in connection with his trial. Ms Padmanabham was a Magistrate when the appeal was heard. In these reasons we will, for consistency, refer to Judge Barone as Ms Barone and Magistrate Padmanabham as Ms Padmanabham.

20 The appellant and LM gave oral evidence at the hearing of the appeal and were cross-examined. Ms Barone, Ms Padmanabham and Ms White also gave oral evidence at the hearing of the appeal and were cross-examined.

21 The appeal was heard on 6 July 2021. At the conclusion of the hearing the court reserved judgment on the appeal, including on the applications for leave to adduce additional evidence.

22 On 15 July 2021, the court made orders as follows:

(1) The appellant's applications in an appeal filed 12 April 2021 and 2 June 2021 for leave to adduce additional evidence in the appeal are granted, subject to the court's rulings in its reasons for judgment as to admissibility under the law of evidence.

(2) The State's applications in an appeal filed 15 June 2021 and 18 June 2021 for leave to adduce additional evidence in the appeal are granted, subject to the court's rulings in its reasons for judgment as to admissibility under the law of evidence.

(3) Leave to appeal on grounds 1 and 3 granted.

(4) Leave to appeal on grounds 2, 4, 5, 6 and 7 refused.

(5) Appeal dismissed.

23 When we made those orders we said that reasons for decision would be published at a later date. These are our reasons.

24 An overview of the State's case at trial is as follows.

25 GN was the complainant in relation to counts 1, 2 and 3.

26 In the early 1980s, the appellant lived with his parents in Claremont. GN is the appellant's second cousin.

27 When counts 1 and 2 were allegedly committed, the appellant was aged 19 and GN was aged about 10.

28 Counts 1 and 2 alleged that, on an unknown date between 30 April 1982 and 1 July 1982, the appellant unlawfully and indecently dealt with GN by touching GN's penis with the appellant's hand and engaging in fellatio.

29 When count 3 was allegedly committed, the appellant was aged 24 and GN was aged about 15.

30 Count 3 alleged that, on an unknown date between 28 February 1987 and 1 October 1987, the appellant unlawfully and indecently assaulted GN by touching GN's penis.

31 JP is the appellant's nephew by marriage. When counts 4, 5, 6 and 7 were allegedly committed, JP was over the age of 13 and under the age of 16.

32 Each of counts 4, 6 and 7 alleged that, on an unknown date between 11 May 1999 and 13 May 2001, the appellant unlawfully and indecently dealt with JP by masturbating in JP's presence.

33 Count 5 alleged that, on an unknown date between 11 May 1999 and 13 May 2001, the appellant unlawfully and indecently dealt with JP by placing JP's hand on the appellant's penis.

35 Counts 8 to 18 inclusive related to CT and allegedly occurred on various unknown dates between 30 July 2001 and 1 August 2006. CT was born in 1998.

36 Counts 8, 9, 10 and 15 alleged that the appellant penetrated CT's vagina with his finger. Count 11 alleged that the appellant procured CT to engage in sexual activity. Counts 12, 13 and 17 alleged that the appellant sexually penetrated CT by introducing his penis into her mouth. Counts 14 and 18 alleged that the appellant penetrated CT's vagina with an object or thing. Count 16 alleged that the appellant penetrated CT's vagina with his penis.

37 An overview of the appellant's case at trial is as follows.

38 The appellant gave sworn evidence at the trial. He denied that any of the alleged offending had occurred. The appellant admitted in evidence that he had a sexual interest in young boys. He said that the interest had existed since he was aged 19. The appellant denied any sexual interest in young girls.

39 Defence counsel did not call any other witnesses.

Previous trials and acquittals of the appellant in 1989 and 2010

40 In 1989 the appellant was charged with one count of sex offending against GN. The charge alleged that on an unknown date between 1 November 1987 and 30 November 1987 at a rural location (Town M) the appellant unlawfully and indecently assaulted GN, who was then under the age of 16 years. The appellant pleaded not guilty. After a trial in 1989, the appellant was acquitted.

41 In 2010 the appellant was charged with sexual offending against a boy, TH. The offences allegedly occurred in another rural location (Town D). The appellant pleaded not guilty. After a trial in 2010, the appellant was acquitted.

Propensity and relationship evidence adduced by the State

42 At the trial, the State adduced evidence of the appellant's prior convictions in 2019 for sex offending against two boys, AB and LW. The offending against AB and LW occurred between August 2016 and August 2017. At the time of the offending, AB was aged 11 or 12 and LW was aged 11. Counts 1 to 8 related to AB. Counts 9 and 10 related to LW. The appellant was convicted of all of the offences on his pleas of guilty.

43 The State adduced the evidence of the prior convictions, pursuant to s 31A of the Evidence Act 1906 (WA), as relationship evidence and propensity evidence. The State relied upon the evidence in relation to all of the charged offences involving GN, JP and CT.

44 The tendering of the evidence of the appellant's conduct, the subject of the prior convictions, was not opposed.

45 The facts relating to the prior convictions were agreed between the parties. A statement of those facts became exhibit 1A at the trial. The statement reads, relevantly:

Count (1) - indecent dealing with a child under 13 years

Over a period of some 10 months commencing in September 2016, [the appellant] developed a friendship with [AO], the mother of the victim, a boy named [AB] ... [AB] was aged 11-12 years at all relevant times.

The [appellant] and the victim went ... on a fishing trip in the first quarter of 2017. [The appellant] and [the] victim stayed in [a] caravan park.

During the course of the trip, [the appellant] took the victim to the shower block. Both of them removed their clothing then proceeded to shower together. [The appellant] washed the victim's legs, arms, stomach and hair using soap. [The appellant] hugged the victim pulling his head onto his chest. [The appellant] dried the victim with a towel when they got out of the shower.

Count (2) - indecent dealing with a child under 13 years

[The appellant] worked as a tradesman/handyman. On an unknown date between September 2016 and July 2017, [the appellant] took the same victim to a work address in [a Perth suburb] where he was contracted to work. The house at the address was unoccupied.

[The appellant] retrieved some toiletries from his vehicle and told the victim they were going to have a shower in the house. [The appellant] took the victim's shirt off, following which the victim took the rest of his own clothes off. [The appellant] washed the victim's arms, stomach and chest. [The appellant] hugged the victim in the shower, pulling his head to [the appellant's] chest and the victim placed his arms around [the appellant]. The victim felt nauseous and vomited in the toilet.

Count (3) - indecent dealing with a child under 13 years

On another occasion during the same period as in Count (2), [the appellant] again took the victim to the address in [a Perth suburb], where he was contracted to work. The house was again unoccupied.

[The appellant] took the victim for a shower. [The appellant] took the victim's shirt off before the victim took his own pants off. [The appellant] washed the victim's arms with soap. [The appellant] hugged the victim, who placed his head on [the appellant's] chest. The victim felt nauseous.

Count (4) - sexual penetration of a child aged under 13 years

Count (5) - indecent dealing with a child under 13 years

Count (6) ‑ indecent dealing with a child under 13 years

Count (7) - attempted sexual penetration of a child aged under 13 years

Count (8) - indecent dealing with a child under 13 years

Counts (4) to (8) were committed consecutively on the same day as one another. On Wednesday 26 July 2017, [the appellant] was present with the same victim [that is, AB] at the victim's home [in a Perth suburb] ... No one else was at home.

[The appellant] placed a mattress in the lounge-room as both the victim and [the appellant] were going to lie down together to watch a movie. [The appellant] was drinking alcohol and provided an alcoholic drink to the victim. The victim undressed himself, intending to change into his pyjamas. [The appellant] told the victim to stay undressed, and then undressed himself.

[The appellant] and victim lay on the mattress on the floor. [The appellant] placed his mouth around the victim's penis and performed fellatio on him: Count (4)

[The appellant] took hold of the victim's hand and placed it on his [the appellant's] penis. [The appellant] encouraged the victim to masturbate him: Count (5).

[The appellant] placed his hand on the victim's buttocks in a sexual manner: Count (6), and the victim pulled away.

After a time, the victim got into the shower, naked. [The appellant], also naked, got into the shower with the victim. [The appellant] turned the victim about so that he was facing away from [the appellant]. [The appellant] rubbed the victim's buttocks and attempted to insert his penis into the victim's anus. He pressed his penis against the victim's anus and thrust forward: Count (7) The victim spun back around to face [the appellant].

[The appellant] lathered some soap between his hands and began to wash the victim. [The appellant] hugged the victim tightly against his naked body: Count (8).

Watching from outside the house, three witnesses ([the appellant's] daughter [CT], [the appellant's] son [MT] and a friend of theirs) saw part of the incident between [the appellant] and the victim. They telephoned the police. Police officers attended and arrested the accused.

Count (9) - indecent dealing with a child under 13 years

The offences the subject of Counts (9) and (10) were committed on two different unknown dates between 1 June 2017 and 30 July 2017. The victim was a boy named [LW]. He was 11 years old.

During that period, [the appellant] lived at [a Perth suburb] with his wife and three children. The victim was school friends with [the appellant's] 12 year old daughter, [KT]. On an unknown date the victim came over to [the appellant's] home to play with [KT].

[The appellant], [KT] and the victim were in the theatre room of the house playing video games. [The appellant] asked the victim to sit on his lap. [The appellant] placed his arms around the victim's waist, pulling him onto his lap. [The appellant] grabbed the victim's hand and attempted to kiss it. [The appellant] placed his hands over the victim's groin area, and used his thumbs to stimulate the victim's penis.

Count (10) - indecent dealing with a child under 13 years

On another unknown date between 1 June 2017 and 30 July 2017, the victim again came over to [the appellant's] house to play with [KT]. The victim and [KT] were in the theatre room playing video games. [The appellant] entered the room and sat down on a chair. He made the victim come over and sit on his lap.

[The appellant] placed his arms around the victim's waist and clasped his hands to the front of the victim's body. The victim felt [the appellant] shifting his hands closer to the victim's groin area. [The appellant] rested his hands on the victim's penis (over his clothing) and moved his thumb over the victim's penis. [The appellant] then left the room.

The organisation of the balance of these reasons

46 The witnesses at the trial comprised GN, JP, CT, PT (who is the mother of CT, a boy MT and a girl KT and the former wife of the appellant), RN (who is GN's father), SS (who lived with the appellant and GN in Town M) and the appellant.

47 We will summarise various aspects of the evidence given at the trial by GN, JP, CT, PT and the appellant. It is unnecessary to summarise the evidence of RN and SS.

48 We will then summarise various aspects of the proposed additional evidence, sought to be adduced in the appeal, from the appellant, LM (who is the appellant's mother), Ms Padmanabham, Ms White and Ms Barone.

49 We will then deal with the merits of the grounds of appeal.

50 GN's evidence was pre‑recorded on 23 May 2019 before Vernon DCJ. He was the complainant in counts 1, 2 and 3.

51 In examination‑in‑chief, GN gave evidence to this effect:

(1) He was born in 1972. His parents are RN and JN. He grew up in Perth suburbs. He lived with his parents, but was, for a short time, a boarder at a private school.[2]

(2) The appellant is GN's second cousin. JN is the appellant's great‑aunt.[3] GN was aged about 10 when he first met the appellant. At this time, the appellant was old enough to drive and GN thought that he was working as a teacher. The appellant would pick him up on weekends and take him to water slide parks, cable water‑skiing, the beach and other activities. GN described the appellant as being 'like a big brother'. GN enjoyed spending time with him.[4]

(3) GN said that he spent a lot of time at the appellant's house in Claremont. The appellant lived there with his mother and his father. GN often stayed overnight at the appellant's house.[5]

(4) GN gave evidence as to an occasion about a week after his 10th or 11th birthday. In the afternoon, he and the appellant went to the beach and paddled on boards. Afterwards, the appellant bought some Coopers ale and they went back to the appellant's house. There was no‑one else at home. The appellant told GN that his parents had gone away for the weekend.

At the house, the appellant poured beer into what GN described as shot glasses or small glasses. They played a game where each of them had to drink as many glasses of beer as possible in a short period of time. GN said he became 'very drunk'.[6] He felt dizzy and slightly ill. He had not been drunk before.[7]

(5) The appellant took a mattress from a bedroom and put it on the floor of the living room in front of the television. They lay down on the mattress to watch a movie. GN recalled that he was lying on his left side and was facing the television. The appellant was lying behind him and was 'spooning' him. The appellant and GN were, by this time, wearing only their briefs. GN could not recall how this happened.[8]

The appellant touched GN's penis over his briefs in an action which he described as 'a caress' (count 1). GN said that he froze in fear, but rolled onto his stomach, so that the appellant could not reach his penis, and pretended to be asleep. The appellant then turned off the television, picked GN up and lay him on the mattress on his back. The appellant then lay down on his stomach between GN's legs, removed GN's briefs, put his mouth over GN's penis and performed oral sex for about five minutes.[9] GN said that he was frightened and did not say anything (count 2).

After performing oral sex on GN, the appellant went into the spare room.[10] GN indicated, on a diagram he had drawn, where the lounge room, spare room and other locations in the appellant's house were (exhibit 1).

The following morning, the appellant took GN skindiving at a beach. GN did not tell anyone about what had happened the previous night because he was 'confused', 'scared' and he was 'trying to rationalise it as a 10‑year‑old'.[11]

(6) On other occasions GN stayed at the appellant's house he slept on the floor of the appellant's bedroom. GN said that the appellant would, in the mornings, take him into his bed and there would be kissing and cuddling.[12]

(7) GN said that he continued to see the appellant but, not very long after the incident referred to above, GN saw less of him.[13]

(8) GN said that in year 8 he was expelled from the private school he attended and that the appellant 'appeared around the same time again after a long period of not seeing him'.[14] At this time, GN was about 14 years old. His school grades were 'really bad' and he had been caught smoking. He had also been caught throwing a toilet roll, which was on fire, around suburban shops.

GN recalled that, at the end of the school year (apparently year 8), he went and stayed with the appellant at Town M. At the time, the appellant was a teacher at the local district high school. When GN returned to Perth, he asked his parents whether he could live with the appellant in Town M and resume his schooling there. Eventually, his parents agreed.[15] GN rationalised the appellant's earlier sexual behaviour towards him as, in effect, a drunken mistake. GN thought the appellant was 'a really nice, caring guy towards me' and he did not think that the appellant would do anything to hurt him. These were his thoughts both as a 10‑year‑old and as a 14‑year‑old.[16]

(9) GN said that he began year 9 at Town M, and lived in Department of Education housing with the appellant. Initially, only GN and the appellant lived in the house, but eventually another person closer to the appellant's age moved in. The appellant and this person (SS) got on very well. GN noticed that the appellant became more of an 'authoritarian' towards him. He described the appellant as being 'very strict about chores' and about where GN went and who he spent time with.[17] Despite this, the appellant allowed GN to drink alcohol with him on a few occasions.[18]

(10) GN said that conduct similar to that he had described occurring at the appellant's house in Claremont happened twice at Town M.[19] The appellant was asked about one of those occasions which occurred one evening after a football grand final at Town X (count 3).[20]

GN recalled that, upon returning to Town M after the football grand final, he and the appellant were drinking beer, together with GL (who was a friend of GN). GL was 14 or 15 years old. GN recalled that they were drinking beer and listening to music. At about 10.00 pm, GL went home. GN then went to bed. SS was in Perth.[21]

(11) The next thing GN recalled after he went to bed was waking up and seeing the appellant sitting on the left‑hand side of the bed. The appellant had his hand down GN's pants and was playing with GN's penis. GN said that he was 'petrified'.[22] GN rolled onto his stomach in an effort to make the appellant think that he was asleep.[23] The appellant stopped touching GN and walked out of the bedroom.[24] GN indicated various locations in the Town M house on a diagram he had drawn.[25]

(12) GN said that the next morning 'everything seemed normal' and they both carried on as though nothing had happened.[26]

(13) The second occasion of sexual misconduct at Town M occurred in what GN described as 'very similar' circumstances. GN recalled that he was at the Town M house with others, including the appellant and GL, drinking tequila and beer. GL stayed overnight on this occasion. At some point in the night, GN felt ill as a result of the alcohol he had drunk and went into his bedroom. GN said he slept that night in his bed, head to tail with GL.

GN woke up in the middle of the night to find the appellant sitting on the side of his bed 'doing the same thing'. GL was asleep. GN said that he 'took the same [evasive] measures'; that is, he coughed and, when that did not work, he rolled over. The appellant got up and left the house.[27]

GN was unable to say precisely when, by reference to the first incident, the incident when GL was in the bed occurred. He thought the interval was 'one or two months'. GN said that sometime after returning to Perth from Town M, in around 1987, the police approach him about this incident.[28]

(The incident in which GN alleged that the appellant touched his penis, while GN was in bed with GL, was the offence with which the appellant was charged in 1989 and in respect of which he was tried and acquitted in 1989).

(14) GN said that '[a]fter the last time that it happened' he told SS what had occurred. GN said that he 'basically broke down crying and told him what had happened'. SS told him to tell someone straight away. In response, GN telephoned his father from a payphone.[29] The following weekend, GN left Town M and never returned.[30]

52 GN was cross‑examined at some length and in detail by the appellant's then counsel, Mr Tyers. Mr Tyers, who is now a Magistrate, was an experienced and competent criminal lawyer.

53 GN refuted Mr Tyers' suggestions that he was aged about 12 and not 10 when the appellant took him on activities at water parks, the beach and the surf club.[31]

54 GN described the appellant as '[f]eigning to be a big brother figure, wanting to help me out'.[32]

55 In response to a question from Mr Tyers suggesting that the appellant had been very helpful, GN said, 'No. I say in the capacity of grooming'.[33]

56 GN denied Mr Tyers' proposition that he had never slept over at the appellant's house in Claremont. GN said that he slept there 'quite often' and that the appellant's parents were there 'often'.[34]

57 GN agreed with Mr Tyers' question that the appellant's grandparents lived in a house which adjoined the appellant's house in Claremont.[35]

58 GN confirmed the evidence he gave in examination‑in‑chief that, when he went to live with the appellant in Town M, the appellant was stricter than when he was in Perth. GN agreed that while in Town M he smoked, which upset the appellant.[36]

59 GN agreed that he got into trouble at school in Town M and that the appellant tried to keep him 'in line'.[37] GN said that, nevertheless, the appellant permitted him to drink alcohol in Town M on a monthly basis.[38] GN estimated that he drank alcohol with the appellant 'five or six times'.[39] GN denied Mr Tyers' proposition that, apart from having a few sips from the appellant's stubby of beer from time to time, he was not permitted to drink alcohol in Town M.[40] Specifically, GN denied propositions that the appellant did not provide him with either beer or tequila.[41] GN said that the appellant did not like him drinking alcohol unless it was with him.[42]

60 In respect of the first incident (count 1 and 2) and the events surrounding it:

(a) GN said that, despite it being winter, he and the appellant went to the surf club and paddled together. GN said that each of them wore a wetsuit.[43]

(b) GN confirmed that the beer that the appellant purchased was Coopers.[44]

(c) The bottle shop at which the beer was purchased was on Stirling Highway next to Charlie Carters. GN denied that the bottle shop was 'past where [the appellant's] parents' house was'.[45]

(d) GN agreed that the appellant rarely drank alcohol.[46]

61 GN confirmed that the incident at the appellant's house occurred when he was aged 10, but he conceded that he may have been 12 when it occurred.[47]

62 GN denied Mr Tyers' proposition that the events GN said happened in the lounge room did not occur.[48]

63 GN agreed that when he gave his statement to the police about the incident which occurred in Town M (being the alleged offence with which the appellant was charged, tried and acquitted in 1989), and when he spoke to the prosecutor, Ms Deane, about that incident, he made no mention of the first incident (counts 1 and 2) at the appellant's house in Claremont.[49] GN explained:[50]

... I didn't want to talk about it or something. I was still trying to work [it] out in my head. I didn't like talking about the occasion that he was going to trial for.

64 In respect of the evidence GN gave at the trial in 1989, Mr Tyers asked this question:[51]

And have you ever specifically denied that [the appellant] had done anything of this sort to you before?

I believe I did in court to [the prosecutor] when she asked me the question and she - the way she phrased it, she said, have you had any dealings like this before. And I didn't understand what she meant by that. It was the first time in the trial it had been referred to as dealings and I said no.

[W]hen you did understand, have you ever specifically denied that [the appellant] gave you a head job when you were younger?

68 Mr Tyers then referred GN to a page in what appears to have been the transcript of the appellant's 1989 trial. After GN had read it, Mr Tyers said to GN:[55]

So I'll put it to you again, have you specifically denied that [the appellant] has given you a head job when you were younger?

Yes, I have, and that would have been out of embarrassment and not wanting ... to talk about the incident at all. I was 16 years old.

GN then went on to explain that at the time he was in an open courtroom full of people and that his father was in the courtroom.[57]

70 When Mr Tyers put to GN that he had deliberately lied, GN responded that he was 'very, very embarrassed' and that he just wanted 'it all to end'.[58]

71 Mr Tyers then asked if GN had mentioned that the appellant 'had actually put his hand on your penis when you were younger?' to which GN replied, 'No, I don't believe so'.[59] Later, in the cross‑examination, GN confirmed that at the appellant's 1989 trial GN had said that the appellant had previously (before the Town M incidents), put his hand on GN's penis.[60]

72 Mr Tyers sought to highlight in cross‑examination an asserted contradiction between GN's evidence that he was too embarrassed to speak at the appellant's 1989 trial about the oral sex incident, but he was able to speak about the appellant having rubbed GN's penis. GN responded to the effect that he found talking about the appellant giving him oral sex too traumatic.[61]

73 GN refuted the suggestion that the appellant did not take him into his bed and kiss and cuddle him at the appellant's house in Claremont, but agreed that he did not mention this to the police when he spoke to them in connection with the 1989 trial.[62]

74 GN refuted the suggestion that he would not have gone to Town M if the appellant had touched him inappropriately in the Claremont house as he alleged.[63]

75 GN agreed that one of the two incidents he described as having occurred at Town M was one of the incidents 'where [the appellant] has already had a trial'.[64] GN acknowledged that he was aware the appellant had been acquitted of that charge.[65]

76 GN said that he became aware in 2017 that the appellant 'was standing trial again', so he approached the police and 'offered to give corroborative evidence'.[66] GN added, 'I wasn't under the impression they were going to press charges on my evidence or the statement I gave'.[67]

77 GN described the incidents which occurred in Town M as 'identical', apart from '[GL] being in the bed'.[68] GN said that the incident with GL being in the bed occurred first in time.[69]

78 GN agreed that in 1989 he did not mention to the police that there had been two occasions in Town M on which the appellant had touched him inappropriately.[70]

79 GN denied Mr Tyers' suggestion that the two incidents were in fact the one incident and that the reason GN was saying there were two incidents is because the appellant was acquitted in 1989.

80 GN agreed that, under oath at the 1989 trial, he had said that when the appellant touched him he left town straight away.[71] GN also agreed that, having regard to the evidence he had given at the pre‑recording for the current trial, he did not leave town straight away.[72] GN explained that he did not leave Town M the first time it occurred because he 'forgave him for it'.[73]

81 GN agreed that he had a long‑standing and consistent drug problem, mostly with marijuana. GN agreed that he had convictions for possession of drugs, including methylamphetamine.[74] GN said that he was not a regular user of methylamphetamine.[75]

82 GN agreed that he 'took it really hard' when the appellant was acquitted at the 2010 trial of charges allegedly committed in Town D.[76]

83 It is clear that towards the end of GN's cross‑examination he became argumentative with defence counsel. See, for example, ts 226.

84 GN agreed that he had 'a shocking [criminal] record', including for burglary, stealing, and possession of stolen or unlawfully obtained property.[77]

85 Towards the end of the cross‑examination, GN refuted the proposition that the appellant never touched him inappropriately at Town M.[78]

86 GN agreed that shortly after leaving Town M he wrote the appellant a letter, part of which read:[79]

Thanks for having me. Thanks for all your help, trying so hard with me.

87 The prosecutor did not re‑examine GN.[80]

88 JP gave evidence on 8 and 9 April 2020 at the trial. He was the complainant in counts 4 to 7.

(1) He was born in 1986. PT is his paternal aunt. He is married and has one child, H, who was, at the time he gave evidence, 4 1/2 years old.[81]

(2) JP went to a Perth high school. He left school halfway through year 9.[82]

(3) When he was growing up, JP spent a lot of time with the appellant, who is his uncle by marriage. JP spent most weekends with the appellant and PT when he was in year 8. At that time, the appellant and PT were living in a two‑storey house in Karrinyup. JP was aged about 13.[83]

(3) At the start of year 9, JP was suspended from school. He spent the week at the appellant's house. Prior to that, he had stayed there on 'various nights'.[84]

(4) At this time, the appellant was a father figure to JP. He described his parents as 'simple' and said that they were struggling to raise him. It was thought best if he spent time with the appellant and PT 'to shape [him] into a man and help [him] through [his] teenage years'.[85]

(5) JP recalled that, when he was about 13, he spent some Saturdays at the appellant's house. On most of these occasions, PT was out playing softball or with friends. He recalled that, at this time, CT was a baby or a toddler.[86]

(6) JP said there were occasions where he and the appellant went four‑wheel driving together at Hillarys. Sometimes he sat on the appellant's lap to drive the vehicle. He said that nothing of a sexual nature happened on these occasions.[87]

(7) JP recalled an occasion that occurred in the living room of the appellant's house. He said that he and the appellant were watching television. CT was there, but she was barely walking and was around a year old. JP said that he and the appellant were sitting on a couch with the appellant sitting on his left.[88]

JP did not recall how the incident started, but he said that somehow his hand was on the appellant's penis over his clothing and that he masturbated the appellant until he ejaculated. At that point, the appellant got up to get tissues. JP said that he was 13 and at that time he knew what masturbation was.[89]

(8) JP said that 'it happened a few times' on that couch. He recalled an occasion when CT was present and she grabbed the appellant's penis as he was walking to get tissues from the kitchen area.[90]

(9) JP recalled another incident in the living room of the appellant's house. He said that the appellant asked him to strip to his underwear so that he (the appellant) could take his skinfolds.[91]

The prosecutor did not at this time in the examination‑in‑chief pursue this incident. Rather, JP mentioned another incident '[w]hen we measured our penises'.[92] This, he said, was a different incident from the first incident of masturbation that he had referred to.[93]

(10) As to the incident when they measured each other's penises, JP said this occurred in the living room at the appellant's house while they were watching television. JP was unclear as to how it came about, but he said that he and the appellant were always talking about sexual things. He said that he asked the appellant if his (JP's) penis was 'the right size or too small'. The appellant responded, 'Well, let's measure them and find out'.[94]

JP said that the appellant went and got a ruler. They then pulled their pants down and measured each other's penises. Both of them had erections. JP remembered that his penis was 16 cm in length and the appellant's penis was 14 or 14 1/2 cm. JP said he made a comment to the effect that the appellant had a small penis, as a result of which the appellant became quite angry.[95]

JP said that the process of measuring their penises involved them 'taking our pants off, pulling our underwear down, [and] stroking our penises'. JP elaborated that they stroked their penises 'to get them hard, to measure'.[96]

(11) JP recalled an occasion when he and his father, along with the appellant and a couple of other boys, went to JP's uncle's farm in Serpentine to work. On one such occasion JP, at the appellant's request, brought a pornographic magazine which he placed under the driver's seat of his father's car.[97] JP said he obtained the magazine from a friend's father's garage. His father did not know that he had taken the magazine to the farm.[98]

JP recalled that he and the appellant drove together to buy lunch at a lunch bar. The appellant pulled into a side street. The appellant asked him to get the magazine out. Once he had done this, the appellant pulled down his pants and 'started masturbating to a girl in the magazine'. JP said that the appellant's penis was fully exposed. The appellant grabbed some tissues from his pocket and ejaculated in the tissues. The appellant then pulled his pants back up, threw the tissues out the window and drove off.[99]

(12) JP referred to an occasion between 1999 and 2001 at his grandparents' house in a Perth suburb. At the time, he was between the ages of 13 and 14. JP said that his grandparents, PT and the appellant were present. He recalled that his grandparents and PT left the house, leaving him and the appellant alone.[100]

JP had brought with him to the house the pornographic magazine referred to earlier. He did so at the appellant's request. JP said the appellant put the pornographic magazine inside another magazine 'so no one could tell that we were looking at it'.[101]

(13) JP and the appellant were sitting in the TV room looking at the magazine. He was seated to the appellant's right. After everyone had left and after he had been looking at the pornographic magazine, the appellant pulled his pants down, pulled his penis out and started 'playing' with it. The appellant ejaculated, went and cleaned himself and then returned to watch television. JP then hid the magazine.[102]

(14) JP recalled that when he was staying at the appellant's house, he and the appellant spoke about sexual things 'all the time'.[103] The appellant told JP that, when he was younger, he experimented sexually with a female cousin. JP said the appellant told him that he should start experimenting and that the safest way to do so was with a boy and not a girl. He said the appellant told him:[104]

You - you should definitely wait till you're 18 years old and do your experimenting with boys, friends of yours. So, you know, you should always try doing everything, even try taking it up the bum and vice versa.

(15) The prosecutor returned to the skinfold test incident. JP said that the appellant took skinfolds all over his body, including his arms, legs, stomach, chest and bottom. JP said that his mother contacted PT about the incident.[105]

(16) JP said that he and the appellant had played squash together. After they played a game of squash, they used the communal showers at the squash courts. JP said that he felt 'a bit funny' about it, but the appellant told him that it was perfectly normal to be naked in the shower area.[106]

(17) JP said that when he was aged 15, he got a girlfriend and spent less time with the appellant.[107] After he commenced this relationship, he lost his virginity and rang the appellant 'just to let him know'.[108] JP said the appellant got 'quite angry at [him] for losing [his] virginity at such a young age'.[109]

(18) Towards the end of the examination‑in‑chief, the prosecutor asked JP if, apart from the occasions specified in his evidence, other things of a sexual nature had occurred with the appellant, to which JP replied:[110]

There were various times. I've blanked a lot of it out of my memory and just being so along ago I just - I struggle to bring back a lot of memories but they are ones that just really I just can't leave, just don't leave me.

90 JP's examination‑in‑chief concluded at about 3.18 pm on 8 April 2020. Defence counsel, Ms Barone, asked the trial judge if her cross‑examination could commence the following morning. Her Honour agreed. The cross‑examination resumed at about 9.36 am on 9 April 2020.[111]

91 JP agreed that, after he began his relationship with the girl who became his wife, JP, his wife, the appellant and PT became good friends. They spent time at each other's houses and would, for example, go to restaurants together. They shared Christmases, Easter, birthdays and that sort of thing.[112]

92 As a result, from about 2009 onwards, he developed a close relationship with CT.[113] He and his wife asked CT to be a godparent to H, but the offer was later withdrawn.

93 JP confirmed that the appellant had always been a father figure to him, more so after 2009.

94 In 2010, JP became aware that the appellant faced charges relating to events in Town D involving a young boy. JP agreed that he supported the appellant during the trial process, although he was not 100% clear that he knew the trial concerned sexual allegations.[114]

95 JP agreed that from 2009 onwards, the appellant was not only a father figure to him, but was also one of his closest friends.[115] JP agreed that he had sought the appellant's assistance in relation to the significant decisions in his life for the past 10 years.[116] JP also agreed that from time to time after his child, H, was born, the appellant and PT would babysit the child.[117] JP said that that occurred, at the most, six times at the appellant and PT's home.[118]

96 JP agreed that until 2016 (initially he had said 2017) he had consulted the appellant about 'pretty much every single major event' in his life.[119] JP accepted that in 2016 and 2017, his relationship with CT was very close.[120]

97 JP agreed that in 2016 he had face‑to‑face and text conversations with CT about whether or not the appellant had done sexual things to her as a child. According to JP:[121]

[CT] never, ever said it was not her dad, but she never said it was her dad.

98 Ms Barone put to JP that the reason he withdrew the offer to CT to be H's godparent was because she would not admit that she had been sexually abused by her father. JP replied:[122]

No, I blamed it on that, that's not why I withdrew it. I withdrew it because my wife and I decided that [CT] was not the right person.

99 JP elaborated that when he said 'I blamed it on that', he meant that he may have used that as an excuse, but that was not the real reason for withdrawing the invitation to CT. JP said that was what he told CT, but the real reason was because his wife did not want her to be H's godmother.[123]

100 JP agreed that he and CT made their complaint to the police on the same day by pre‑arrangement between them. He agreed that he encouraged her to go the police. He denied that he tried to convince her that it was her father who had sexually interfered with her.[124]

101 JP agreed that he visited CT at the Marian Centre. He also agreed that he and his aunt, AP, had conversations with CT. Ms Barone suggested that he and AP tried to convince CT that it was her father who had done sexual things to her. JP denied this. He said:[125]

I have never suggested it was her dad, I would never put the words into her mouth, ever. I said to her, when she's ready to tell me who it is, then that's when we will talk about it. But [CT] is the one that always said to me that it only makes sense that it could be her father, being at home, because that was the only male, besides her brother, that lived in the house.

102 JP agreed that, at one point, CT told him that she did not think it was her dad.[126]

103 Ms Barone then asked questions about JP spending time with the appellant when he was a younger person. JP said that he first started spending time with the appellant and his wife at the appellant's house, before CT was born, when he was about 13 years old. When it was pointed out to him that that would have been in 1999 and CT was born in July 1998, he said he was not 100% on dates.[127]

104 JP confirmed the evidence he gave in examination‑in‑chief that when he was in year 8 or year 9, the appellant took him driving in a vehicle in the Hillarys area and that somehow his hand went on the appellant's upper thigh so that he could feel (the appellant's) testicles.[128] JP agreed that he did not tell the police or the prosecutors that this occurred at Hillarys or while they were driving a silver four‑wheel drive or that he felt the appellant's testicles. JP agreed that what he told the police was:[129]

[he] would drive me around and place my hand on his upper inner thigh near his testicles.

105 Ms Barone asked the appellant about the incident in the living room at the appellant's house when he masturbated the appellant over his clothing (count 5). JP confirmed that CT, who was only about 1‑year‑old, grabbed the appellant's penis when the appellant got up to get tissues.[130] JP then said that he was confused and that it was not on this occasion that CT had grabbed the appellant's penis.[131]

106 JP agreed that he told police that his memory was blurry about the details of the events and that he had tried to erase it after all those years. He added that:[132]

There was just so many different times. These are just specific times that I remember.

107 JP denied Ms Barone's proposition that the events he was describing were imaginary and did not happen.[133]

108 JP said that the very first sexual touching that occurred was in the appellant's car, a red Berlina.[134] JP accepted that there was no reference in his police statement to the red Berlina.[135]

109 Ms Barone then returned to the circumstances of count 5 and put to JP that there was no mention in his police statement on 13 July 2017 of the appellant's getting up and getting tissues. Nor did he tell the prosecutors about this. Nor did he mention in either the statement or to the prosecutors anything about the television. JP accepted these propositions.

110 Ms Barone then turned her attention to count 4, which is the penis measuring incident. JP agreed that he had a particular memory that CT was present in the house at that time.[136] JP agreed that he told the police that CT grabbed the appellant's penis when he went to get the ruler, not when he went to get tissues.[137] JP said that what he told the police was correct.[138]

111 JP refuted Ms Barone's suggestions that the masturbation incident (count 5) and the penis measuring incident (count 4) never happened.[139]

112 JP agreed that he did not tell the police or the prosecutors that the penis measuring incident (count 4) started because he asked the question about whether his penis was the right size or too small.[140]

113 With respect to count 4, JP agreed that in his police statement - unlike his evidence - he did not mention stroking his own penis or making any reference to precise measurements.[141] JP explained that, as he had said before, he tried to blank out from his memory these events. He also said that he thought the statement he had signed was 'a rough draft'.[142]

114 After the mid‑morning break, Ms Barone cross‑examined JP about count 6 (the Serpentine incident). JP essentially confirmed what he had said in examination‑in‑chief about this incident. Ms Barone cross‑examined him about some of the detail, but he essentially maintained what he had said. Ms Barone put to him that he had not told the police that the appellant had ejaculated into the tissues and had then thrown the tissues out the window. Rather, he told the police that once the appellant ejaculated, he cleaned himself with a tissue. JP agreed that he did not say anything about the appellant ejaculating into the tissues but, for him, the point was that he had taken tissues from his pocket.[143] JP agreed that he did not tell the police or the prosecutors that when the appellant ejaculated he yelled out the name of the girl whose photograph was in the magazine.[144]

115 JP denied the suggestions that the farm paid for any lunches that were purchased at the lunch bar and that those lunches were picked up, not by the appellant, but by the owners of the farm.[145]

116 Ms Barone cross‑examined JP about count 7 (the incident at JP's grandparents' house).[146] JP agreed that he told the police in his statement that the appellant had the pornographic magazine, but he did not know how he got it, and that this was different from his evidence which was to the effect that he (JP) gave it to the appellant.[147] JP denied Ms Barone's suggestion that the reason for the difference was that the event never happened.[148] JP confirmed that he and the appellant were on a couch looking at the pornographic magazine while other people were still in the house.[149] JP argued that it was only after the other people in the house left 'that penises were pulled out'.[150]

117 Ms Barone also asked JP questions about the skinfold test. JP agreed that he was self‑conscious about his body and that he was worried that he had put on some weight and that he spoke to the appellant about this.[151] JP agreed with Ms Barone that he asked the appellant for advice about how he could lose weight, eat better and live a better lifestyle.[152] JP agreed that on this occasion the appellant did not touch his penis or testicles or rub his genitals.[153]

118 JP refuted Ms Barone's suggestions that the appellant never suggested to him that he should experiment with boys. JP agreed that when he was about 13 or 14 years old, the appellant told him that if he was going to have sex he should use a condom, but added that he should not be having sex at this age.[154]

119 Ms Barone cross‑examined JP about text messages he exchanged with CT. JP agreed that in the course of those messages they discussed her allegations against the appellant.[155] JP said that, as far as he could recall, he never suggested that the appellant was the person who had sexually interfered with CT.[156] He was adamant, 'I would not put words into her mouth'.[157]

120 Ms Barone confirmed that JP had before him a bundle of text messages that were between pages 232 and 341 of the prosecution brief and an Excel spreadsheet which had apparently been prepared at the behest of the appellant.[158]

121 Out of the hearing of JP, Ms Barone told the trial judge that the purpose of putting the text messages to JP was to demonstrate inconsistency in his evidence and that there had been collusion between JP and CT.[159]

122 JP denied that he had made up his allegations to help CT and that he was willing to do anything to help her.[160]

123 JP agreed that he sent a text message to CT asking:[161]

124 JP said 'no' when questioned whether he sent the text message because of what he had been hearing about CT. JP said 'I just had doubts'.[162]

125 At one point in the cross‑examination, JP agreed with Ms Barone's proposition that he was conducting his own 'little investigation'. JP explained:[163]

I wanted to know if everyone was safe and I wanted to get to the bottom of it.

126 JP said that when CT was at the Marian Centre he cut himself off from the appellant and PT 'because they knew I knew too much and no one else knew except for me cos [CT] was talking to me'.[164]

127 JP agreed that he sent a text to CT in which he said:[165]

I promise I'm going to do everything I can and more.

JP denied that the words 'and more' meant that he and CT were going to hatch a plan and that he was going to lie for her.[166]

128 JP agreed that he had an interest in knowing what had happened to CT.[167] He also agreed that he texted this to her:[168]

JP explained that the 'plan' was to get justice for CT.[169]

129 JP agreed that, by 2016, he had formed the view that something must have happened to CT's sister, KT, but he did not know whether what happened was sexual or whether the appellant was responsible.[170]

130 Ms Barone cross‑examined JP at length about JP's use of the words 'the plan' in the text messages. In essence, JP answered that he did not recall what the plan was.[171]

131 JP confirmed that he had come to believe that the appellant and PT had taken CT's phone and were sending false messages.[172]

132 JP agreed that the plan involved going to the police and making complaints.[173]

133 JP agreed that he and his aunt, AP, had talked about CT's sexual abuse prior to CT making a complaint to the police.[174]

134 JP was adamant that he never suggested to CT that the perpetrator of the abuse was the appellant.[175]

135 JP said that the only thing he told CT that the appellant had done to him was the skinfold test.[176]

136 Ms Barone returned to this idea of 'a plan'. JP said the plan that he had for CT was to help her and to give her the encouragement to step forward. It was not a conspiracy.[177]

137 JP agreed that he went to see CT at the Marian Centre. He agreed that he did this, in part, 'to get a story straight together'.[178]

138 JP explained what he meant by this. He said:[179]

What we would have had to have got straight was how much [CT] had actually told me so they couldn't sugar-coat everything like they usually do.

The reference to 'sugar‑coating' was a reference to the appellant and PT 'sugar‑coating' things.[180] He said that he was trying to get CT to believe that her parents were downplaying or sugar‑coating things. One of those things was whether the appellant 'was involved'.[181] For this reason, JP explained that he did not want the appellant and PT being informed of the meeting at the Marian Centre.[182] JP believed that the appellant and PT 'were going to convince [CT] that nothing happened to her'.[183]

139 JP agreed that he texted CT to encourage her to tell people at the Marian Centre about her allegations.[184] JP agreed that he sent a text message to CT while she was at the Marian Centre, urging her to '[t]ry and visit your childhood memories like you did with me last night'.[185] He also agreed that he and CT 'went through allegations which relate to those age ranges' and that he was imploring her to 'visit her memories'.[186]

140 JP agreed that CT ran briefly through 'things happening to her as a child'. She did not specifically say that the perpetrator was her father.[187]

141 In re‑examination, JP said that, when H was babysat, the impression he had was that H was left with PT and CT.[188]

142 The prosecutor asked JP why he invited the appellant to his wedding if the appellant sexually abused JP as a child. JP replied:[189]

'Cos he was a father figure to me. I just never believed or wanted to believe that the things that he did to me were wrong and that I really believed that what he was showing me and talking to me about was what a normal father would - have conversations with their son.

143 The prosecutor also asked JP why he and his wife socialised with the appellant and PT. JP replied:[190]

I honestly believe that what happened to me during my childhood was normal. I never wanted to believe that anything that happened was a lie. I - that's all I had. I had [PT and the appellant] that was - that's all I had.

144 The prosecutor asked JP what his reasons were for leaving H with PT and the appellant. JP replied:[191]

My wife was going through postnatal depression, just struggling a bit 'cos we have no help with us. So when [PT] contacted us and said as a family they'd decided to take [H] one day every weekend so that we could have a break, that was my reasoning. And because it was distinctively said that [CT] - before I knew anything about [CT] was going to be the one mainly babysitting him.

145 The prosecutor also asked JP why he did not report the appellant to the police sooner. JP replied:[192]

'Cos I didn't want to believe what happened was wrong.

146 CT's evidence was pre‑recorded before Goetze DCJ on 11 and 12 December 2019.

147 CT's examination‑in‑chief was, relevantly, to this effect:

(1) CT was born in July 1998. Her parents are the appellant and PT. She has two younger siblings, her brother MT, and her sister KT.[193]

(2) The first house she remembers living in was in Karrinyup. From there, she and her family moved to a house in Gwelup. She remembered living there between the ages of 3 and 7.[194] When she was 7 years old the family moved to Churchlands.[195]

(3) The offences allegedly committed by the appellant against her all occurred at the Gwelup house.[196]

(4) CT said that the Gwelup house comprised four bedrooms and two bathrooms. She always had her own bedroom. The two bathrooms comprised an ensuite bathroom to her parents' room and a bathroom at the back of the house. There was a separate toilet at the back of the house. She and her siblings were bathed in the ensuite bathroom. In the ensuite bathroom there was a spa bath at the back and a shower at the front. In between the shower and the spa were two sinks.[197]

(5) As to count 8 (the 'shower head incident'), CT said that this offence occurred while she was being showered in the ensuite bathroom. The appellant detached the shower head and moved it down her back and asked her if it felt nice. The appellant then moved the shower head with the water coming out of it onto her vagina and held it there.[198] He then put his pointer finger in her mouth and put it inside her vagina and moved it in and out.[199] As he did so, the shower head was still on her vagina. CT said that she was 6 years of age when this occurred. No‑one apart from her and the appellant were in the bathroom.[200]

(6) CT gave a detailed description of the ensuite bathroom, including the colour of the tiles. She remembered that heat lights (which are transcribed as 'head lights') were installed in the ceiling of the room at some point.[201]

(7) As to count 9 (the 'conditioner incident'), CT said that this offence also occurred in the ensuite bathroom when she was having a shower. On this occasion, there was a white bottle of conditioner in the shower. The appellant rubbed the conditioner on her body and then rubbed it on her vagina. He then put his finger into her mouth and then into her vagina. She did not remember him moving his finger in and out. She said that: 'It hurt a lot, it felt like it went - it felt like it went all the way in and was held there for quite some time, but didn't come in and out'.[202]

(8) Counts 10 and 11 (the 'lip gloss' incident), followed sometime after count 9 and on the same day as count 9. CT said that, after the commission of count 9, her vagina was stinging a lot. She told her parents that her vagina was stinging. CT went into her bedroom. The appellant came into her bedroom with some Savlon. When he entered her bedroom, she had some lip gloss which she was moving in and out of her vagina (in cross‑examination, she accepted that she was masturbating). The appellant left the room, but returned. He asked her to show him what she had been doing before and that he wanted to show her 'how to do it'.[203]

CT said that the appellant moved his pointer finger in and out of her vagina. He then asked her to show him again what she was doing with the lip gloss. CT said that she then moved the lip gloss in and out of her vagina. The appellant then told her to feel his penis, which she did.

CT recalled that the lip gloss was pink, it had a roller so that it could be unwound and it had cherries on it. CT recalled this incident happening at the end of year 1 at school.[204]

(9) As to count 18 (the 'toothbrush incident'), CT recalled an occasion in the ensuite bathroom after she had a bath. Heat lamps had just been installed. After she got out of the bath, she put on an old towel. The appellant told her to stand under the heat lamps to help her dry. As she stood under the lamps, the appellant placed the end of an electric toothbrush against her vagina onto what she now knew to be her clitoris. She felt the plastic pressed against it and the bristles 'on the outside' of her vagina.[205]

When this offence was committed, she was in pre‑primary school.

(10) As to counts 15 and 16 (the 'bedroom incident'), both of these counts occurred in the one incident in CT's bedroom.[206] CT recalled that she was in her bed at night. She was distracted and she thought that she was peeling off nail polish. The appellant came into her bedroom. She pretended to be asleep. The appellant got into her bed and lay next to her. He rubbed his fingers in a circular way on the outside of her vagina. At this point, her undies were still on. He then pulled down her undies, but not all the way, and inserted his finger into her vagina and moved it in and out. The appellant then lay on top of her and inserted his penis into her vagina. She said that he did not insert it 'very far' and that he did not move it in and out. She said that it hurt more than when he penetrated her vagina with his finger. There was no‑one else in the room at the time and this was the first time he had penetrated her vagina with his penis. She did not recall how this incident ended.[207]

(11) CT said that something happened on more than one occasion in the back toilet. One of the things that happened was count 12, which came to be known at the trial as the 'boy dance' incident. CT said she was aged 5 years when this incident occurred.[208]

CT said that she was in the back toilet and that 'he wanted to show me how to go to the toilet like a boy'.[209] She described how the appellant stood next to her on her right. She described how he 'was going to the toilet' and he told her to urinate 'like this'. Then, according to CT, she 'tried to do it', that is, urinate standing up.[210] However, her urine was not going into the toilet bowl. CT described how the appellant cupped his hands underneath her vagina, which caused urine to 'splash onto my vagina'. CT recalled the appellant had his boxer shorts on. When the splashing stopped, he took his penis out and put it into her mouth. She said that he had one hand on her head and one on his penis. She said:[211]

I felt what I thought was urine in my mouth. I didn't want to swallow it, but - but I did.

CT said that the appellant described urinating standing up as the 'boy dance'. She said she did the 'boy dance' quite a lot. She recalled that her grandmother and brother saw her doing it once and they asked what she was doing and she told them it was the 'boy dance'.[212]

(12) Another incident which occurred in the back toilet was count 13 (the 'toilet stool' incident). She described the appellant as being 'quite angry'.[213] She said that her brother was in the toilet. She remembered that a stool that her brother used to go to the toilet was there. CT said that the appellant was pulling her hair hard and held her mouth onto his penis. She recalled that she could not breathe and she felt like she was going to be sick, but she was not. On this occasion, the appellant did not have his hand on his penis. While his penis was in her mouth, she felt what she thought was urine in her mouth.[214] After he took he penis out of her mouth, the appellant held her head near the toilet bowl and flushed the toilet. She recalled that at the time she was 5 years of age.[215]

(13) As to count 17 (the 'running shower' incident), this occurred in the ensuite bathroom while she and the appellant were naked in the shower together. She said that this was one of the earliest incidents and that it occurred when she was 4 years old.[216] CT said the appellant put his finger into her mouth and he then held her head and put his penis into her mouth.[217] She recalled that he moved her head. She also recalled that the shower was still on.[218]

(14) As to count 14 (the 'guinea pig' incident), CT said that the appellant took her to the back of the Gwelup house and showed her four or five guinea pigs in a box.[219] He showed her how to use her fingers to push their penises out.[220] Although she did not remember how this happened, she recalled that her skirt and underwear were down around her ankles. She said that the appellant pressed the guinea pigs against her vagina.[221] She felt the guinea pigs between the 'two outer lips and on the outside skin [of her vagina]'. CT said that the appellant did this one guinea pig at a time. She recalled that the feeling was '[w]riggling and it was very warm'.[222]

The next thing she remembered was that the appellant got her to hold the guinea pigs in a bucket of water and drown them. She recalled that '[t]hey wriggled quite a bit when they were first going in, but once their whole body was under, they didn't wriggle very much'.[223]

CT said that she had not seen the guinea pigs at her home before and that she thought that the incident occurred 'before the age of 6' and before some changes were made to the backyard.[224]

(15) CT said that the particular occasions she described were not the only times when something happened between her and the appellant, but they were the only times she could remember 'very clearly'.[225] She said that things between her and the appellant happened '[o]ften, from as early as I can remember'.[226] She explained that by 'often' she meant '[t]wice a week at least'.[227] She said that the appellant stopped when her family moved to Churchlands when she was halfway through year 2.[228]

(16) Her examination‑in‑chief concluded with CT saying that, apart from 'these things', she recalled her relationship with her father was 'good'. She said that it was not until year 6 'there were issues', but during the time frame being spoken of, 'aside from the things that were happening, it seemed like a normal relationship'.[229]

(17) CT said that she did not tell anybody what was happening at the time. She said that the first time she spoke about what was happening was to some friends in year 9, who told an adult, who then contacted her parents.

The first time that she spoke to the police about the matters was in 2017.[230]

148 CT was cross‑examined at length and in detail by Ms Boston, a competent and experienced criminal lawyer, who was then acting for the appellant.

149 The cross‑examination took place on 12 December 2019, the day after the examination‑in‑chief.

150 Ms Boston began the cross‑examination by reminding CT that, in her evidence‑in‑chief, she had said that the first time that she spoke about what had occurred to her was to her friends in year 9. CT agreed that was her testimony. Ms Boston suggested that in fact the first time CT said that she had been sexually abused by the appellant was in 2016 when CT was as an in‑patient at the Marian Centre. CT agreed that this was the first time she spoke 'to any adults about it'.[231] CT then agreed that when she spoke to her friends in year 9, it was about the appellant physically abusing her, not sexually abusing her. She then accepted that the first time that she had spoken about the appellant sexually abusing her was in 2016.[232]

151 CT agreed that the first time that she spoke about the matters in detail to the police was on 13 August 2017 and that she provided a statement to the police.[233]

152 CT agreed that for many years she had had significant mental health issues and that she had been treated by psychiatrists and psychologists. She also agreed that she had had significant amounts of counselling over a long period of time.[234]

153 CT said that she had been diagnosed with depression and an eating disorder. She said that she had been treated for the eating disorder since she was 16 years old.[235] She also agreed that she had self‑harmed.

154 CT denied that she had no memory before 2016 of the sexual abuse which she said had occurred between the ages of 3 or 4 and 7 years.[236] CT said that she had had memories of the abuse 'for as long as I can remember'.[237] However, the first time that she started to talk to psychologists and psychiatrists about the abuse was in 2016 when she started having 'flashbacks' of the abuse.[238]

155 CT said that the sexual abuse had always been on her mind, but in 2016 it became a significant issue to the point where she could not get it out of her head.[239]

156 CT agreed that she told psychologists and psychiatrists that she was not sure whether or not her flashbacks were real. However, that was a lie.[240]

157 CT agreed that she told people that the person who had sexually abused her was 'a big boy from the neighbourhood', but that was not true. She agreed that statements to that effect were a lie.[241]

158 CT said that, towards the end of 2016, she was an in‑patient at the Marian Centre for a period 'longer than a month'.[242] While she was there, her aunt AP, and her cousin (AP's son) JP, were visitors.[243]

159 CT agreed that she spoke to AP and JP about her father's sexual abuse of her. CT said that she thought she spoke to them about it first and that they agreed with her and supported her.[244] CT explained:[245]

We weren't speaking about whether or not it was my father. We were just speaking about it being my father ...

160 CT agreed that she frequently spoke to AP and JP about the matter.[246] CT denied that she started to believe that her father had sexually abused her because AP and JP had suggested that he was the perpetrator.[247]

161 CT agreed that she had lied when she told psychologists, psychiatrists and her mother that she nominated the appellant as the perpetrator because AP and JP suggested it.[248] CT said she had believed that the appellant had sexually abused her 'for a long time before that'.[249]

162 CT specifically denied propositions put to her by Ms Boston that the appellant had never sexually assaulted her, that he had never penetrated her vagina with his finger or his penis, that he had never put a guinea pig near her vagina or on her vagina and that he had never put a toothbrush on her vagina.[250]

163 CT also denied the proposition put to her by Ms Boston that, if she had been sexually assaulted, it was by 'the big boy that you talked about who was at your kindergarten or in the neighbourhood'.[251]

164 CT also denied the proposition put to her by Ms Boston that her memories of abuse by the appellant had been confused with other sexual assaults that had happened to her.[252]

165 CT witnessed the appellant's sexual abuse of AB when she was 18 years old. She denied, regarding the various sexual assaults upon her and the incident she witnessed involving AB, that her memories had been jumbled up and that she had come to believe that the appellant had sexually abused her.[253]

166 Ms Boston asked CT about the events the subject of the individual charges. She commenced with count 8 (the 'showerhead incident').[254] CT agreed with Ms Boston that she told the police in her statement dated 13 August 2017 that she was 7 years old when the appellant committed count 8. Ms Boston put to her that in her evidence she said that she was 6. As to this inconsistency, CT said:[255]

I clearly remember what happened. I don't clearly remember that I was 7 years old though. I knew I was older.

167 CT denied the proposition put to her by Ms Boston that she did not remember, for many years, that the appellant had put his finger in her vagina.[256] CT also denied propositions put to her that she nearly always had baths, not showers, and that if she had a shower it was in the main bathroom, not the ensuite.[257]

168 Ms Boston put to CT that there was no door between the master bedroom and the ensuite bathroom. CT said she remembered that there was a door,[258] but later said she did not remember whether there was a door.[259]

169 As to the installation of the heat lamp in the ensuite bathroom, CT said that she did not know when it was installed.[260] CT confirmed that the heat lamp was in the ensuite bathroom when count 8 was committed.[261]

170 CT agreed with Ms Boston that she was aware that when she was a baby she had a very serious urinary tract infection that affected her kidneys and, as a result, she nearly died.[262] She denied that she was told, from a very young age, that she needed to keep her vagina and vaginal area clean to ensure that she did not get a urinary tract infection.[263]

171 As to count 9 (the 'conditioner incident'), CT denied the proposition put to her by Ms Boston that the appellant did not rub conditioner into her vagina.[264]

172 As to counts 10 and 11 (the 'lip gloss' incident), CT confirmed that she was given Savlon to rub on her stinging vagina.[265] CT confirmed that it was her father who put the Savlon on her vagina.[266] CT denied the proposition put to her by Ms Boston that the appellant never put Savlon on her vagina.[267]

173 CT said she understood that what she had been doing with the lip gloss was masturbating.[268] She denied the proposition put to her by Ms Boston that the appellant did not put his fingers into her vagina on this occasion.[269]

174 As to count 12 (the 'boy dance' incident), CT agreed that she had previously said that this incident occurred when she was 7 years of age. She acknowledged that she had said in her evidence that it occurred when she was 4 or 5.[270]

175 CT explained that the appellant followed her into the back toilet. She recalled the incident occurred during the day. She did not know where her mother or brother were at that time. CT said the first thing that happened was that the appellant urinated in the toilet.[271]

176 CT confirmed that the appellant showed her how to urinate standing up, that he cupped his hands under her urine, that her urine splashed into her vagina and that as this happened the appellant was masturbating with his hand.[272] CT agreed that the back toilet was a very tight space and that what was happening would have been clearly visible to anyone else in the household as the toilet door was open.[273]

177 Ms Boston asked CT whether her father was circumcised or uncircumcised, to which CT replied:[274]

I don't know what an uncircumcised or circumcised penis looks like.

She denied that this answer was a lie.[275] She also denied that she was telling the lie because she had, in fact, never seen the appellant's penis.[276]

178 CT confirmed that her grandmother LM, and her brother MT, had seen her urinating like a boy.[277]

179 As to count 13 (the 'toilet stool' incident), CT said that this offence occurred during the day when the toilet door was open. She did not know where her mother and brother were.[278] She denied the proposition put to her by Ms Boston that the events were 'pure fantasy'.[279] She denied the proposition that she did not remember for many years the events that constituted count 13.[280] To the contrary, it was a constant memory and it was not a situation where there had been a period of time that she had not recalled the events.[281]

180 As to count 14 (the 'guinea pig' incident), CT denied the proposition put to her by Ms Boston that what she had said was 'just a bizarre fantasy'.[282] She also denied that she had not remembered 'for over 10 years' this event occurring.[283] She said that the incident was a constant memory.

181 CT agreed that when she was about 18 and living in Churchlands, she and a friend bought some guinea pigs and kept them in the backyard at Churchlands for about six months.[284] When Ms Boston put to her that if a guinea pig had been held up to her vagina in the manner she described as a child, there would have been no way she would have wanted anything to do with a guinea pig, CT said:[285]

I didn't want to. It was their [her friend's] idea.

182 As to the incident itself, CT confirmed that the guinea pigs had already been brought home by the appellant. She said that the incident happened during the day. She said that she did not know where her mother and brother were.[286] CT said that her father never showed her mother and her brother the guinea pigs and that the appellant brought the guinea pigs to the house in secret.[287]

183 CT agreed that when she was 18 she knew how to tell the sex of a guinea pig. She said that the penis of a guinea pig was 'small, red and it comes out of the skin'.[288] CT said that there was nothing distinctive about the penis of a guinea pig. When Ms Boston said that the penis of guinea pig has two prongs, CT said, 'I don't remember that'.[289]

184 CT confirmed that after the appellant put the guinea pigs near her vagina, he forced her to drown them. She agreed that this was 'very traumatic'.[290]

185 CT denied the proposition put to her by Ms Boston that the reason that she did not refuse to have guinea pigs when she was 18 years old was because nothing involving a guinea pig happened to her as a child.[291]

186 Ms Boston put to CT that when she spoke to the police she did not tell them that the appellant had put more than one guinea pig on her vagina. CT agreed that when she said in her evidence‑in‑chief that multiple guinea pigs were held against her vagina, that was the first time she had mentioned more than one guinea pig in this context.[292]

187 As to counts 15 and 16 (the 'bedroom incident'), CT agreed that she did not mention these offences the first time she spoke to police, but she did mention them on the second occasion.[293] She confirmed that she was 6 years old at the time of the incident and in her bed. CT confirmed that she remembered that she was peeling pink nail varnish. When Ms Boston put to her that she was not allowed to wear nail varnish when she was 6, CT said, '[w]ell, I had it on'.[294]

188 Ms Boston suggested that the bed she slept in at the Gwelup house 'was not a standard single bed, but like a cot‑sized bed', to which CT said, 'I remember it being a single'.[295] Further, CT denied that she did not get a regular single‑sized bed until she moved to Churchlands.[296] In substance, CT rejected the proposition that counts 15 and 16 could not have happened because the appellant was too big for the bed she was sleeping in.[297]

189 As to count 17 (the 'running shower' incident), CT said that she was 6 years of age when this occurred. CT said that, '[i]n the order of events, that's one of the later ones'.[298]

190 Ms Boston referred to CT's examination‑in‑chief[299] where CT had said that this was one of the earliest offences. When Ms Boston asked whether CT was younger or older or she just did not know, CT responded, 'I don't know. Ages are hard to remember'.[300]

191 CT confirmed that on this occasion the appellant was in the shower with her and was naked.[301]

192 CT denied that she had no memory for 'more than 10 years' of this event.[302] CT denied that this incident never happened.[303]

193 As to count 18 (the 'toothbrush incident'), Ms Boston referred CT to the contents of what appears to be her police statement which suggested that count 18 occurred shortly after count 17. CT agreed with this proposition put to her by Ms Boston:[304]

Isn't that what you said about this toothbrush incident [count 18], that it all happened on the same day as when you were naked in the shower with your dad?

194 CT said that her memory was not accurate and the toothbrush incident (count 18) occurred on an occasion when she had come out of the bath.[305]

195 CT denied the proposition that the toothbrush incident never happened and that her memory of it changed because it was fiction.[306]

196 Ms Boston put to CT text messages that she sent to JP between 24 November 2016 and (it appears) December 2016 in which she said that her memories had been suppressed for a very long time and that recent events had triggered those memories.[307] CT agreed that these statements were a lie.[308] CT agreed that she lied when she said that she knew the appellant was not the perpetrator.[309]

197 CT agreed that on 29 November 2016, she emailed Dr M, a psychologist, in these terms:[310]

My auntie and cousin keep asking me if I think it was dad and I said, 'No, no. It's not dad'. But they keep asking and they offer all these scenarios that they think might have happened and it makes sense.

CT agreed that she lied in this email in that AP and JP were not asking her if she thought the perpetrator was the appellant.[311] CT said that AP and JP were not making the suggestion that the perpetrator was the appellant. Further, they were not offering scenarios they thought might have happened which made sense to her. What she said to Dr M was a lie.

198 CT agreed that on 2 December 2016 she sent an email to Dr M which said, in part:[312]

I'm not in a good place and that doesn't excuse my actions. But I'm not in a good place, not at all. Why would they say those things to me? They know I'm not in a good place. I absorb other's - other's ideas like a sponge because I'm so, God damn, dependent.

199 CT agreed that when she wrote, 'Why would they say those things to me?', she was referring to AP and JP[313] and that she was suggesting in the email that they were saying to her, 'Dad was the person who did it' and that CT agreed that this was not true.[314] CT also said that when she wrote, 'I'm not in a good place. I absorb other ideas like a sponge because I'm so, God damn, dependent', she was not telling the truth.[315]

200 CT agreed that what she was conveying to Dr M in the email of 2 December 2016 was that she was worried that what AP and JP were suggesting was something that she was going to absorb and adopt as the truth.[316]

201 Ms Boston referred CT to another email she sent to Dr M dated 5 December 2016 in which she wrote, 'They are ignoring me because I won't believe them when they say it was dad and they don't know what to say'.[317]

202 CT agreed that at the time AP and JP were ignoring her '[b]ecause I was telling them that it wasn't dad'.[318]

203 Ms Boston concluded her cross‑examination of CT by confirming with her that, between 2014 and 2016, she had been seen by Dr C (two or three times a month) about her mental health issues; she had been admitted to Bentley Hospital; she had seen a psychologist, Dr J, at the Child and Adolescent Mental Health Service on a fairly regular basis; she had seen Dr M, and yet she did not disclose to any of them that she had been sexually abused by her father.

204 CT agreed that over the years there had been countless hours in which she had described her difficulties[319] and that she had 'enormous opportunity to disclose that the person who had abused her was [her] father'.[320] She also agreed that she had 'enormous opportunity' to disclose what had happened to people with whom she had a long patient‑medical provider relationship, and yet she did not disclose it.[321] Ms Boston put to CT that the reason she did not disclose it was because it never happened, a proposition CT denied.[322]

205 CT's re‑examination was, relevantly, to this effect:

(1) CT said that, from 2013, she 'had a really firm understanding of what had happened [to her] and that it was really not normal'.[323] In 2013, CT was 14 or 15 years of age and in year 9 at school.

(2) CT said that there were some times (by this, apparently, she meant incidents) which she recalled better than others.[324]

(3) When she referred to having 'a flashback' about a certain time, she was referring to something that was in addition to the memory of the particular incident as opposed to remembering something for the first time.[325]

(4) CT agreed that she lied in 2016 when she told mental health professionals that she did not know if the flashbacks she was experiencing were real.[326] CT explained that the issue of allegations of sexual abuse had previously caused stress in her family (a reference to the charges which had been brought against the appellant for which he had been acquitted) and that she did not speak about what the appellant had done to her at first in order to protect her family unit and her relationship with her immediate and extended family.[327]

(5) CT said she told Dr C that she believed the appellant had sexually abused her. Dr C told her to speak to her mother. CT said that she spoke to her mother. Her mother did not say that she did not believe her. However, her mother, who was a teacher, told her about a young girl at her school who had been sexually abused by a year 7 boy and asked CT if that is what had happened to her. CT said at first she told her mother she did not know, but later she said it was a big boy.[328]

(6) CT said the story that she told her mother was that AP and JP had suggested to her that it was the appellant who had sexually abused her.[329] She was about 18 years old when she saw the appellant and AB. At this point, she had spoken about the sexual abuse that she had experienced, but she had not spoken to the police.[330]

(7) Relevantly to count 14, CT said she did not tell her friends that she did not want guinea pigs because 'I didn't want them to ask why'.[331] She did not give the police more detail about this incident because 'I just find that particular instance to be very hard to talk about and I didn't want to talk about it anymore'.[332]

(8) CT said she did not tell Dr C, Dr J or Dr M what had happened because:

I didn't think I would be believed and I didn't want - I didn't want to harm the family.

(9) The prosecutor asked CT about some of the text messages she had exchanged with JP. Amongst these text messages were messages at brief page 254 (BGAB 92) in which CT wrote:[333]

I'm telling myself it's someone from the outside, but lots of them are around toilets, being pinned to the bathroom floor, being made to do things to guinea pigs and then being made to drown them, things like that that deep deep down I know it couldn't have been a stranger because it happened at multiple times.

[A]nd it couldn't have been someone outside because they had access to the bathroom and other things.

[W]ow, ok, I need to stop thinking.

And then at brief page 259 (BGAB 93), CT wrote, on 24 November 2016:[334]

I think I just want to drop it

For now I just want to focus on getting better

Without worrying about someone telling someone etc

If you can understand what I'm saying haha

[T]he talk about the sexual abuse, especially that revolving around [d]ad.

It's way too much

(10) CT agreed that in an email she had sent to a mental health professional she had said:[335]

Maybe the reason I don't know who it was is because I don't want to know who it was.

CT said she expressed sentiments like that to Dr M.[336]

206 At all material times, PT was married to the appellant. By the time of the appellant's trial, they were divorced and PT had remarried.

207 In evidence‑in‑chief, PT gave evidence to the following effect:

(1) PT and the appellant met in Town M in 1987, when she was posted there as a teacher. They married in 1991, and separated in 2017.[337] After they married, they lived for about 15 months in a house at Balga. They then purchased a house in Karrinyup, where they lived for about five years. In about 2000, after their son, MT, was born, they moved to the Gwelup house.[338] PT gave evidence, with the assistance of a diagram, as to the layout of the Gwelup house, including the ensuite bathroom.[339]

PT said that the shower in the ensuite bathroom had a detachable shower head.[340]

(2) The children were bathed or showered in the ensuite bathroom.[341]

(3) She and the appellant shared bathing the children. She worked part‑time, including for a period on weekends.[342]

(4) There was a toilet near the back bathroom of the Gwelup house.[343]

(5) In about 2003 or 2004, heat lights were installed in the ensuite bathroom.[344]

(6) While they were living at the Gwelup house, she played indoor netball one night a week, and softball on Saturdays, for a short period.[345]

(7) When CT was in year 2 or year 3, the family moved to Churchlands.[346]

(8) When the family lived at the Gwelup house they had some pets, including a dog, some hermit crabs, perhaps some bobtails, and maybe some quails. She remembered that the school sent home, on a roster, for a weekend or perhaps a night, guinea pigs and chickens.[347]

(9) JP is PT's nephew. His father is PT's brother.[348] When JP was 13, he spent a lot of time at PT's home and would occasionally stay overnight, while PT was living in Karrinyup. JP would help with the children and he helped the appellant with a lot of 'handyman stuff'.[349]

(10) JP finished high school at year 9, when he got into some serious trouble. After he left school, JP got a job.[350]

(11) PT said that her twin brothers owned a farm in Serpentine. The appellant worked on the farm on Saturdays and school holidays. JP was also employed there for 'a couple of formal days'.[351] PT worked at the turf farm for a short period, before she had children.[352]

208 In cross-examination, PT gave evidence to the following effect.

(1) PT did not play sport in the period between the birth of CT and the birth of MT.[353]

(2) The appellant worked at the farm both before and after he and PT had children.[354]

(3) The appellant and JP went to the farm together to catch yabbies 'and stuff like that'.[355] This was at a time when JP was 13 or 14.[356]

(4) PT agreed that, at one point, her sister‑in‑law contacted her about JP watching pornography, when JP was about 13 or 14. PT denied that she and the appellant spoke to JP about this.[357]

(5) PT agreed that she and the appellant were parental figures to JP, when he was aged 13 and 14.[358] PT denied that her sister‑in‑law spoke to her about JP having girls in his room, when he was 13 and 14, although there was a discussion to this effect when JP was 19 or 20.[359]

(6) PT agreed that after JP married, she, the appellant, JP and his wife would spend time together. She agreed that JP and the appellant appeared to be 'good friends'.[360] PT added that there was a period, in 2010, where, for the first five or six months, they did not catch up.[361] However, before the Town D trial in 2010, their relationship was better.[362] Indeed, JP supported the appellant during the Town D trial.[363]

(7) In the few months leading up to July 2017, PT and the appellant babysat JP's child, H.[364]

(8) PT confirmed that CT was in year 2 or year 3 at school when they moved from the Gwelup house.[365]

(9) PT accepted that, for a little while in the Gwelup house, CT slept on a toddler bed, but at the age of about 3 she became too big for that bed and moved to a single bed, which was part of a bedroom suite PT purchased on Gumtree.[366]

(10) PT agreed that at the Gwelup house there were no guinea pigs, apart from the time CT looked after them for a weekend or a weeknight when she was at kindergarten or pre‑primary.[367] Later, when CT was 18, CT brought guinea pigs to the house. PT thought that it was CT's friends who had brought them, but they stayed at PT's house because CT's friends' parents were likely to be angry about them.[368]

(11) PT said that she did not know what the allegations were in relation to CT, and she had not spoken to CT about them.[369]

210 In evidence-in-chief, the appellant gave evidence in relation to his alleged offending against GN to the following effect:

(1) The appellant was born in 1962.[370] At the time of the trial he was aged 58.[371]

(2) The appellant worked as a teacher for 27 or 28 years.[372] In 1985 the appellant commenced teaching at a school in a rural town (Town M), where he worked for just over four years.[373]

(3) Prior to moving to Town M, the appellant had only ever lived at his parents' house in Claremont.[374]

(4) The appellant said that he lived in three different locations in Town M.[375] He lived in the first house from 1985 to 1987, when he moved to the second house.[376]

(5) The appellant and his former wife, PT, met in Town M at the start of the 1986 school year when they were both working as teachers at the same school.[377] PT was living next door to the second house.[378] The appellant and PT got married in 1991. They are no longer married.[379]

(6) The appellant said that he first met GN in 1983, when GN and his mother visited the appellant's parents' house.[380] At this time the appellant was aged 20 and GN was aged 10.[381]

(7) The appellant's mother and GN's mother are cousins.[382] On more than one occasion, GN and GN's mother visited the appellant's parents' house. During these visits, the appellant would mostly spend time talking to GN's mother, 'but also to [GN]'.[383]

(8) Towards the end of 1984, GN's mother was having issues with GN at home and GN was having troubles at school.[384] GN's mother knew that the appellant was a qualified teacher and talked to him about GN's problems.[385] The appellant had a good rapport with GN's mother.[386] The appellant spoke to GN about his problems and recalled that he and GN 'had a bit of a rapport going on towards the end of 1984'.[387] In 1984, the appellant and GN spent time together 'every couple of weeks or so', including going to the beach together 'a couple of times'.[388]

(9) The appellant said that GN never stayed the night at his parents' house, nor did the appellant and GN ever share a bedroom at the appellant's parents' house.[389] When asked by defence counsel, Ms Barone, whether GN ever had 'reason to sleep on a mattress, at any point, in [the appellant's] parents' house', the appellant said no.[390]

The appellant denied touching GN's penis with his hand or engaging in fellatio with GN whilst at the appellant's parents' house.[391] The appellant also denied doing anything sexual to GN or taking GN's pants off (counts 1 and 2).[392]

(10) The appellant said that it was GN's mother's idea, and not his idea, for GN to come and live with him in Town M for the 1987 school year.[393]

Prior to 1987, the appellant had never 'been in a parental role for any child'.[394] The appellant had never lived with any other children (other than his siblings) or had any children of his own.[395]

The appellant said that he agreed to let GN live with him in Town M because, in essence, the appellant was 'fairly close' to GN's mother, GN was struggling at school having been excluded from one school and, the appellant thought, was going to be excluded from a second school. The appellant thought he was helping out.[396]

When asked by Ms Barone about his role with GN, the appellant responded: 'I knew that I was helping out. I knew I had a responsibility and I believe I had even talked to [GN] about the role being of one of responsibility...'[397]

Initially, the appellant and GN lived together alone in Town M. In the second half of the year (1987), SS moved in with them.[398] GN, SS and the appellant had their own rooms in the house.[399]

When GN first moved to Town M, the appellant's relationship with GN was 'very good', 'apart from a few settling in issues'.[400]

The appellant said he was GN's teacher during the time GN lived and went to school in Town M.[401]

The appellant recalled that during the year GN would go back to Perth during the school holidays and on some weekends.[402] When GN returned to Town M, following the holidays between term 2 and term 3 (July 1987), GN had a 'slightly different attitude, and then it got worse'.[403] The appellant said that during term 3 GN got into trouble and 'it was causing some issues'.[404] After the term 3 holidays (September - October 1987), GN's attitude changed for the worse again and he came back from Perth with a 'dreadful' attitude.[405]

The appellant said he did not tolerate GN smoking, drinking or sneaking out when he lived with him in Town M.[406] He said that he disciplined GN for these behaviours. He and GN argued. GN denied these behaviours.[407]

GN left Town M in November 1987 with SS.[408]

When asked by Ms Barone whether the appellant had ever put his hand down GN's pants and played with GN's penis, the appellant denied it.[409] The appellant denied doing anything sexual to GN in Town M at all.[410] The appellant also denied ever getting GN drunk at any point (count 3).[411]

211 In evidence-in-chief, the appellant gave evidence in relation to his alleged offending against JP to the following effect:

(1) JP is the appellant's nephew through marriage, and the appellant has known him for as long as the appellant has been married to PT.[412]

(2) PT's brothers owned a farm in Serpentine. In 1989 and 1990 the appellant spent most weekends working at the farm.[413]

There was only one occasion that the appellant recalled that JP worked on the farm.[414] The appellant said he remembered that it was only once because after JP worked on the farm, he 'got into trouble' and was not asked to come back.[415]

The appellant denied that he had ever done anything sexual to JP in Serpentine on a day when the appellant was working at the farm.[416] He never took JP on a lunchbreak to a dirt track, and gave further evidence that the appellant rarely ever went on lunchbreaks off the farm.[417] The appellant never asked JP to bring pornography to the farm, nor did he ever look at pornography with JP (count 6).[418]

The appellant recalled driving to the farm with JP and JP's father on one occasion. JP was sitting in the backseat and caught the appellant's eye so the appellant turned around and saw JP 'pretending to play with himself or something'.[419] JP's father asked the appellant what JP was doing because JP was 'giggling and carrying on', and the appellant responded 'nothing... he's not doing anything. Don't worry about it'.[420] The appellant was not aware that anything else was made of this occasion.[421] The appellant denied ever masturbating in front of JP in a car in Serpentine, or ever (count 6).[422]

(3) After 1998, the appellant, PT and their family started spending more time with JP.[423] JP's mother called PT on multiple occasions over about a year to tell PT that JP was getting into trouble at school.[424] JP's mother relied on the appellant and PT's family to help out.[425] During this time, the appellant spent time with JP at the appellant's house.[426]

From 1998 to 1999, JP spent the night at the appellant's house '[m]aybe once a month'.[427] The appellant recalled that JP 'may well have stayed for a few extra nights on a school holidays', but JP never lived with the appellant and his family for any period more than a few nights.[428]

When asked by Ms Barone whether the appellant had ever sat on the couch next to JP and measured the appellant and JP's penises, the appellant said he had not.[429]

The appellant denied ever masturbating in front of JP or touching JP, or any part of his body, in a sexual way.[430] The appellant also denied that there was ever an occasion where he needed to clean up ejaculate while JP was around, or that CT grabbed his penis when he was cleaning up ejaculate.[431]

When asked by Ms Barone whether the appellant ever took JP's hand and put it on his penis, over his clothing, the appellant said he had not.[432] The appellant also denied ever masturbating to the point of ejaculation using, in effect, JP's hand (counts 4 and 5).[433]

(4) The appellant said he had never masturbated in front of JP, or looked at pornography in a magazine with JP, at his parents-in-laws' house.[434] The appellant recalled one Easter when the appellant, PT, PT's parents, PT's four brothers and their respective wives and children, went to church together and then went to PT's parents' house.[435] The appellant and JP drove to PT's parents' house together and were the first to arrive.[436] The appellant and JP entered the house and the appellant went into the kitchen alone. The appellant then went into the lounge room, where he found JP sitting on a lounge chair masturbating.[437] The appellant said he then 'walked back out into the kitchen and kept fossicking around in the kitchen until someone arrived'.[438] The appellant did not talk to JP about the event or confront him about it.[439] The appellant did not tell anyone else about the event (count 7).[440]

(5) The appellant recalled an occasion where JP's parents called PT and told her that JP had been watching 'very X-rated pornography'.[441] The appellant said that JP watched the pornography 'with [JP's] father's permission, if not with [JP's] father'.[442] JP's parents asked the appellant and PT to talk JP about this incident, which they did.[443] JP's father promised to lock away the pornography 'and that would be the end of the matter', but the appellant recalled that 'not too long later we were told that it had happened again'.[444]

The appellant said that he and PT had to discipline JP on multiple occasions in relation to other issues including school related matters, smoking and 'being naughty at home'.[445]

(6) When asked by Ms Barone whether the appellant had ever discussed sexual matters with JP, the appellant said that when JP was aged 13 or 14 he told the appellant 'that he was in a relationship with a girl and that it was sexual'.[446] JP's mother was upset that JP had girls staying overnight, so the appellant told JP that he should not be doing it and spoke to him about 'being safe and careful' if he was.[447] The appellant said that he never suggested to JP that he should 'take it up the bum or give other boys head jobs',[448] nor did he ever suggest to JP that he should have sex with other people.[449]

(7) The appellant said he never spoke to JP about bringing pornography to the appellant or getting pornography from JP's friend's father's house, nor did the appellant request that JP bring pornography to JP's grandparents' house (count 7).[450]

(8) The appellant said that when JP was aged 13 or 14 he conducted a skinfold test on him.[451] This was the appellant's idea.[452] When asked about the circumstances of this, the appellant said it was because JP was interested in getting fit and had 'been to [the appellant] quite a bit to help him with it'.[453] The appellant said JP was 'quite chubby',[454] and had asked the appellant about losing weight and getting healthier. The appellant said that JP might have taken his shirt off during the test.[455] The appellant conducted the skinfold test in order to 'give [JP] an idea that he needed to change his... [Body Mass Index (BMI)]'.[456] The appellant conducted the skinfold test on his 'mid-biceps, mid-triceps, scapula, subscapular, just above the hip at the acromion process and mid-quads'.[457] When asked by the trial judge whether there was a simpler way to calculate someone's BMI, the appellant responded that he was a 'phys‑ed and health ed teacher' and he had been trained to do it that way.[458]

The appellant denied that there was anything sexual about the skinfold test.[459] The appellant also denied touching JP's genitals during the skinfold test.[460]

(9) The appellant said he took JP to play squash on one occasion and may have showered at the squash courts afterwards.[461] The appellant recalled that the showers were in a public change room, but he could not recall whether there were individual shower stalls or open communal showers.[462] The appellant denied ever telling JP that it was perfectly normal to be naked in the shower area, or that it was nothing to be ashamed of.[463]

(10) The appellant denied ever putting JP on his lap while driving, or taking JP's hand and putting it on the appellant's inner thigh or moving it such that JP could feel the appellant's testicles whilst he was driving.[464] The appellant could not recall ever owning a silver hatchback, or going to the Hillarys harbour area with JP.[465]

(11) The appellant was charged with indecently dealing with a boy and was acquitted following a trial in 2010.[466] Shortly after returning to Perth in 2010, the appellant told JP that '[the boy] had alleged that [the appellant] went into his bedroom at night and touched him on the penis'.[467] The appellant recalled that prior to the trial (at which the appellant was acquitted) JP was supportive of the appellant and they started seeing each other again socially.[468] The appellant said that PT, JP, JP's partner and the appellant continued to spend time together and that his relationship with JP was 'very good' until the end of 2016.[469] During this time the appellant and PT also babysat JP's son.[470]

212 In evidence-in-chief, the appellant gave evidence in relation to his alleged offending against CT to the following effect:

(1) The appellant had never 'conducted any sexual activity between [himself] and [CT]'.[471] The appellant said that he never touched CT in a sexual way; masturbated in front of CT in a sexual way, or at all; procured or asked her to do anything sexual in front of him; put any part of his genitalia into her body; or put any part of his body into any genital or other orifice of her body.[472]

(2) The appellant had never showered with CT, nor had he ever taken a detachable shower head and moved it down her back and asked CT if it felt nice.[473] The appellant denied ever holding a detachable shower head on CT's vagina or asking her whether it felt good.[474] The appellant said he never put his pointer finger in CT's mouth and then put that finger inside her vagina and moved it inside and out (count 8).[475]

(3) The appellant denied ever rubbing conditioner onto CT's body or her vagina.[476] The appellant said he never penetrated CT's vagina with his finger or put his finger inside CT's mouth (count 9).[477]

(4) The appellant could not recall CT ever telling him and PT that her vagina was stinging.[478] The appellant denied ever going into CT's bedroom with savlon cream and finding CT masturbating with a lip gloss.[479] The appellant said he never asked CT to show him what she was doing and he never said he wanted to show CT how to masturbate.[480] The appellant further denied putting his pointer finger into CT's vagina and moving it in and out.[481] The appellant said he did not ask CT to show him 'again with the lip gloss', or ask her to masturbate with lip gloss.[482] The appellant was never on the bed with CT while she moved lip gloss in and out of her vagina.[483] The appellant never told CT to feel his penis nor did he ever have an erection in her presence (counts 10 and 11).[484]

(5) The appellant denied that he had ever penetrated CT's vagina with a toothbrush or encouraged CT to dry herself under the heat lamps in the appellant's ensuite bathroom (count 18).[485] The appellant said the heat lights had not been installed in the bathroom when count 18 was alleged to have occurred.[486]

(6) The appellant said that CT did not have nail polish when she was a young child. The first time CT was allowed to have nail polish was when she was aged 8.[487]

When asked by Ms Barone whether he ever went into CT's room and got into bed with her, the appellant said no.[488] The appellant also denied ever rubbing his hand on the outside of CT's vagina.[489] The appellant did not pull CT's underwear down, nor all the way off, and try to penetrate her vagina with his penis, nor did he put his fingers into CT's vagina and move them in and out.[490]

The appellant denied ever putting his penis inside CT's vagina, or touching CT's vagina with his hand when her underwear was down and 'moving it in circles and in and out of her vagina with one finger'.[491] The appellant said he would not have been able to fit in CT's bed, unless he 'was very curled up' (counts 15 and 16).[492]

(7) The appellant denied ever showing CT how to 'go to the toilet like a boy'.[493] CT never went to the toilet like a boy in the appellant's presence, and the appellant did not refer to this as 'the boy dance'.[494] The appellant denied ever splashing urine onto CT's vagina, or pulling his penis out and putting it in his hand and then into CT's mouth.[495] The appellant said he never moved his penis up and down 'and either urine, or...ejaculate, went into [CT's] mouth' (count 12).[496]

The appellant recalled that CT's brother was toilet trained when he was aged 2, so the stool he used for toilet training would not have been in the back toilet at the time count 12 allegedly occurred.[497] The appellant gave evidence that he did not pull CT's hair and hold his penis into CT's mouth, nor did he take his penis out of her mouth and hold her face over the toilet bowl while flushing the toilet close to her face.[498]

(8) When asked by Ms Barone whether the appellant had 'ever been naked in the shower with [CT]', the appellant responded that he had 'never, ever been naked with [CT] anywhere, but certainly not in the shower'.[499] The appellant said he did not put his finger into her mouth, nor did he put his erect penis into CT's mouth while he held her head.[500] When asked by Ms Barone whether he had ever committed 'any form of sexual act upon [CT]', the appellant responded that he had '[n]ever, ever done anything like that', at the age of 4 or at any age (count 17).[501]

(9) The appellant recalled that the family had owned various pets throughout the years, but not guinea pigs.[502] The appellant recalled that CT had pet guinea pigs when she was aged 17 or 18.[503] The appellant did not recall whether or not guinea pigs were ever brought home from school, but he did not deny that that happened.[504]

When asked by Ms Barone whether the appellant ever showed CT 'how to use your fingers to get [the guinea pigs'] penises out by pushing and moving your fingers up and down', the appellant responded '[n]o, never'. The appellant never taught CT how to 'sex a guinea pig', nor had he ever done so or known how to do so.[505] The appellant also denied ever pressing a guinea pig on CT's vagina.

213 In cross-examination, the appellant gave evidence to the following effect:

(1) The prosecutor put to the appellant that he had 'been attracted to young boys for a long time', to which the appellant responded:[506]

I honestly cannot tell when that attraction became problematic or sexual. But, yes, you are correct. I have always had an affinity with children and, yes, I always have had an affinity in particular with boys.

The prosecutor asked the appellant whether his physical attraction to young boys was 'an issue that [the appellant] struggled with for a very long time', to which the appellant responded:[507]

I'm aware of certain thoughts and feelings that I have had issues with for quite a long time but I - they've never - they've never been problematic for me until 2016, '17.

The appellant admitted to having a sexual interest in boys since he was aged around 19.[508]

The appellant gave evidence that the first time he ever acted on his sexual interest in boys was in 2016, during which time he was suffering from depression and his sex life with his wife (PT) had diminished significantly.[509]

(2) The appellant met GN in around 1982, when GN was aged about 10.[510]

(3) When asked by the prosecutor whether the appellant was physically attracted to GN, the appellant said:[511]

[H]e was a good kid and we got on well together but physically attracted to him implies a sexual connotation and I don't believe that that was the case at the time.

The appellant admitted to thinking that GN was a 'handsome lad',[512] but he was not sexually attracted to him.[513]

(4) The appellant said that in 1982 his parents were retired, but he had no recollection of them ever going away on holiday.[514] The appellant denied ever inviting GN to stay at his parents' house while his parents were away, or watching a movie with GN at his parents' house. In 1982 the appellant did not have any direct contact with GN at all.[515]

The appellant admitted that his recollections of 1984 and 1986 were not clear, however he recalled that he saw his grandparents a few times each day in 1984, because they 'were always in and out of' the appellant's parents' house.[516]

When asked by the prosecutor whether he had ever kissed GN on the lips or cuddled with him, the appellant said he had not.

The appellant said he had never touched GN's penis while lying on a mattress in the living room of his parents' house or sucked GN's penis.[517]

The appellant said that, in the 4 years he knew GN prior to moving to Town M, he spent time with GN 'maybe 30 times'.[518]

(5) The appellant recalled that GN came to Town M when he was aged 14 or 15 and the appellant was aged 24.[519]

The appellant admitted that, towards the end of GN's stay in Town M, he allowed him to have some alcohol.[520] GN was aged 15 at this time.[521]

The appellant said he never bought beer for GN, but there were a few occasions towards the end of 1987 that GN drank alcohol in front of the appellant.[522] The appellant denied providing GN with alcohol so that he could engage in sexual activity with him, to lower his inhibitions, or to reduce the likelihood of GN having a memory of what happened.[523]

The appellant admitted that there was an occasion when GN's friend came over, but he denied that there was ever an occasion where it was just the three of them together, drinking alcohol.[524] The appellant recalled others being present when GN and his friend drank alcohol at the appellant's house in Town M.[525] The appellant recalled that this happened in November 1987 and that GN went to sleep before the appellant.[526] The appellant went into GN's room 'as a matter of course' to check that he was asleep because he had 'snuck out' a few times.[527] The appellant did not believe that GN was affected by alcohol on this occasion.[528]

The appellant said that on this same occasion in November 1987, GN consumed the equivalent of two glasses of beer in sips from the appellant's 'stubbie'.[529] When taken to the witness statement that the appellant provided to police in which he said that GN would have had a couple of glasses of beer, the appellant said that he 'was asked to estimate how much beer was drunk', and admitted that he did not refer in the witness statement to GN sipping from his stubbies.[530]

(6) The appellant said that JP often visited his house and sometimes stayed over, but he stopped visiting the appellant when he was aged about 15.[531] When JP was aged 13, the appellant would do activities with him, but this did not include playing video games.[532] The appellant recalled that he and JP played squash once when JP was aged about 14.[533]

(7) When asked by the prosecutor whether the appellant had seen JP masturbating in the back of his car on one occasion, the appellant said JP was not masturbating. However, JP had 'his hand in his crotch, but his pants were up' and he was just 'messing around'.[534]

(8) The prosecutor put to the appellant in relation to count 7 that 'there were a number of people [at the appellant's parents' house] initially ... but they left and it was you and [JP] alone. What do you say to that proposition?'. The appellant responded that 'it was the other way around... [JP] and I arrived first and other people arrived shortly afterwards' (count 7).[535]

When asked why he did not tell PT that he had seen JP masturbating at the appellant's parents' house, given PT was aware of the event involving JP and his father watching pornography together, the appellant said 'I can't be sure'.[536] The appellant recalled that JP's pants were partly down and he could see his penis 'at a glance'.[537]

(9) The appellant admitted that from time to time, when dealing with JP's behavioural issues following term 3 of school, he would ground him so that he was prohibited from leaving the house.[538]

(10) The appellant gave evidence that CT was bathed with her brother until she turned 5, at which point she started showering alone.[539] The appellant and PT would share the bathing duties and mostly washed the children together until they were old enough to shower alone.[540]

When asked by the prosecutor whether the appellant ever bathed the children on his own while PT was at netball training, the appellant said he did not recall.[541]

The appellant would occasionally check that CT had washed the conditioner out of her hair, but he was not responsible for showering and washing her after she turned 5.[542]

When the prosecutor pressed that the appellant would wash [CT] when she showered, the appellant said:[543]

No. When she was showering she was old enough to wash herself and I never got in the shower with her and washed her.

(11) The prosecutor asked the appellant whether he had ever heard CT refer to the 'boy dance', to which the appellant responded 'I have never heard of that before'.[544]

When asked whether he taught CT 'how to go to the toilet to urinate while standing like a boy', the appellant said he had not.[545]

The appellant also denied ever going to the toilet to urinate in front of CT.[546]

(12) The prosecutor asked the appellant whether he was ever naked in front of CT when she was a young girl, to which the appellant responded, 'I do not believe [CT] has ever seen me naked'.[547]

(13) The appellant said that PT and the children brushed their teeth in the same bathroom. However, when asked whether there was an electric toothbrush in the bathroom the appellant said '[n]ot that I'm aware of'.[548]

The appellant denied holding an electric toothbrush against CT's vagina.

When the prosecutor asked the appellant whether the heat lights were on in the bathroom when the appellant allegedly held a toothbrush against CT's vagina, the appellant said '[n]o, that didn't happen'.[549] The appellant had 'purchased the heat lights about a year earlier and they had been sitting around waiting to be installed'.[550]

214 Defence counsel conducted a very brief re-examination of the appellant. It is unnecessary to reproduce any of the questions and answers.

The appellant's proposed additional evidence in the appeal

215 The appellant's affidavits sworn 24 March 2021 contained evidence to the following effect:

(1) 'Many critical elements' of the appellant's written and verbal instructions for the trial were not followed and the time available for Ms Barone to prepare was insufficient for trial.[551]

(2) The fact CT's protective behaviours were not 'explored' at trial was of relevance to the appeal.[552]

(3) It was the appellant and Ms Barone's intention to call AP as a witness, but this did not occur.[553]

(4) The appellant knew, as 'a financial and active member of [the surf club]' from 1977 until 1986, that the surf club was closed and 'out of bounds' to members of the club during the winter months and that 'as such no access would be permitted or granted to the club for use of facilities or amenities'. The appellant further stated that he 'would not have considered nor participated in any beach activities during Winter months'.[554]

(5) The appellant also sought to adduce the following additional evidence:[555]

(i) Police statements and written notes / extracts from AP's diary that were obtained from AP and which formed part of the prosecution brief at the trial.

(ii) SnapChat messages between CT, JP and AP, for the period from February 2016 to February 2017 inclusive, and which formed or should have formed part of the prosecution brief at the trial.

(iii) The Department of Children Services screening results from January 2010 for CT to clear the appellant and release CT into the appellant's care, which formed or should have formed part of the prosecution brief at the trial.

(iv) The Princess Margaret Hospital medical records for CT from 1999 and any medical records from follow up specialist visits, as well as any medical records for day procedures to test for kidney reflux in the years 2000 to 2005 inclusive, which formed or should have formed part of the prosecution brief at the trial.

(v) The psychological records for CT that were part of the prosecution brief at the trial.

(vi) Text messages between CT, AP and JP, which formed or should have formed part of the prosecution brief at the trial.

(vii) The written instructions to AP Legal Criminal Lawyers Pty Ltd (AP Legal) for the appellant's trial case.

216 The appellant's affidavit sworn 2 June 2021 (Exhibit A2) sought leave to adduce additional evidence comprising three affidavits sworn by his mother (LM) on 30 March 2021.

Affidavits of LM sworn 30 March 2021 (Exhibit A4 in the appeal)

217 LM gave affidavit evidence that, contrary to GN's testimony, GN never stayed at her residence. Further, LM and her late husband did not go away during the relevant time frame as they were supporting the appellant while he was studying at Secondary Teachers' College from 1980 to 1984 inclusive.

Affidavit of Ms Padmanabham sworn 8 June 2021 (Exhibit R1 in the appeal)

218 Ms Padmanabham's affidavit contained evidence to the following effect:

(1) Ms Padmanabham was the director of AP Legal and accepted a grant of Legal Aid to act on behalf of the appellant. Ms Padmanabham was assisted by an employee, Ashanti White, who was a restricted practitioner at the time [1] ‑ [2].

(2) The appellant instructed Ms Padmanabham to enter pleas of not guilty in relation to the counts in the indictment [3].

(3) Due to the complexity of the matter, Ms Padmanabham advised the appellant to brief counsel. [3]

(4) The trial was originally listed to commence on 20 May 2019 and Mr Tyers was instructed to appear as counsel. However, the trial could not proceed and instead a pre‑recording of the evidence of GN proceeded on 23 May 2019 [4].

(5) The trial was relisted to commence on 16 March 2020. Ms Boston was briefed to be counsel. Ms Boston appeared at a pre‑recording of CT's evidence, instructed by Ms White, on 11 December 2019 [5] ‑ [7].

(6) On 13 March 2020, Ms Boston came off the record as the appellant's counsel and was no longer prepared to attend the trial due to issues relating to the COVID-19 pandemic [8] ‑ [9].

(7) The appellant was not willing to proceed to trial on the 16 March 2020 with new counsel [10]. Instead, Ms Barone was briefed. Ms Barone accepted the brief on the condition that the trial be listed to begin on 6 April 2020, to allow her sufficient time for preparation [11].

(8) On 19 March 2020, the trial was relisted to commence on 6 April 2020 [13].

(9) On 26 March 2020, Ms White provided Ms Barone with the brief for the appellant, including advice that the appellant had provided his factual instructions in 'books' [14]. Ms Padmanabham stated that she was aware that 'Ms White had prepared a detailed draft proof of evidence from the material contained in the "books" of factual instructions', and this draft was revised with the appellant via Skype prior to its provision to Ms Barone on 1 April 2020 [15].

(10) Ms Barone appeared as counsel at the trial. Ms Padmanabham's affidavit attached a copy of Ms Barone's final invoice and noted that Ms Barone had charged for 90 hours of preparation, including a review of the appellant's draft proof of evidence [16] ‑ [17].

(11) Ms Padmanabham appeared for the appellant at his sentencing hearing. She had read and considered the trial judge's reasons for decision prior to her appearance [18].

Affidavit of Ashanti Jaide White sworn 9 June 2021 (Exhibit R3 in the appeal)

219 Ms White's affidavit contained evidence to the following effect:

(1) Ms White confirmed Ms Padmanabham's evidence about her employment at AP Legal as a restricted practitioner [2], [5].

(2) Ms White 'did not work on the [appellant's] file the entire time, but [she] was the instructing solicitor at the time of each pre‑recording and at the trial' [6].

(3) Ms White elaborated that the reason the first trial date was vacated was due to late prosecution disclosure [8]. As then counsel, Mr Tyers, was not available for the new trial dates, Ms Padmanabham briefed Ms Boston [9] ‑ [10].

(4) Ms White remained instructing solicitor throughout this time and assisted Ms Boston with the preparation of the matter as well as appearing as instructing solicitor at the pre‑recording of CT's evidence [11].

(i) Summonsing the telecommunication records of CT, KT and JP [12].

(ii) Summonsing as witnesses CT's treating general medical practitioner and one of her treating psychologists [12].

(iii) Drafting witness statements for potential defence witnesses. These draft proofs were provided as an annexure to the affidavit [13].

(6) Prior to the trial Ms White discussed with the appellant the calling of certain witnesses, including AP, KT and MT, however '[n]o firm instructions were given by the appellant during these discussions' [14]. Further, at a Skype meeting on 30 March 2020, Ms White discussed with the appellant whether calling AP would be 'more damaging than beneficial' to the appellant's case [15].

(7) In early March 2020, Ms Boston advised AP Legal that she was no longer able to appear as counsel at the trial listed for 16 March 2020. The trial was re‑listed for 6 April 2020, with Ms Barone acting as counsel and Ms White remaining as the instructing solicitor. Ms White sent Ms Barone a briefing email on 26 March 2020 [16] ‑ [17].

(8) At Ms Barone's request, Ms White completed a draft proof of evidence for the appellant, based on the appellant's notes and Ms White's notes from meetings with the appellant. Ms White confirmed the details of the draft proof with the appellant via Skype and telephone conferences prior to providing it to Ms Barone [18].

(9) During the trial, Ms Barone and Ms White met regularly with the appellant during the breaks and after court [19].

(10) On 8 April 2020, Ms Barone and Ms White met with the appellant after court and discussed which defence witnesses he wished to call [20].

(11) On 9 April 2020, Ms Barone and Ms White met with the appellant and discussed the strengths and weaknesses of the prosecution case. A note relating to this meeting says 'not calling any witnesses' and 'only calling [LM]' [21].

(12) On 14 April 2020, Ms Barone and Ms White met with the appellant and discussed the 'pros and cons' of the appellant giving evidence. The State closed its case and the appellant elected to give evidence [22]-[23].

(13) The appellant completed his evidence on 16 April 2020. Ms Barone and Ms White discussed with the appellant the potential positive and negative aspects of calling LM to give evidence at trial, and the appellant decided that she would not give evidence. A signed authority to this effect was obtained [24].

(14) Ms Padmanabham appeared at the sentencing hearing because Ms Barone had been appointed as a Judge of the District Court [25].

Supplementary affidavit of Ashanti Jaide White sworn 16 June 2021 (Exhibit R4 in the appeal)

220 Ms White's affidavit contained evidence to the following effect:

(1) Pursuant to s 19C of the Evidence Act, CT's medical history was a protected communication [4].

(2) An order was made preventing the appellant from viewing or having direct access to the protected communication [5].

(3) In 2019, Ms White viewed the protected communication and drafted a summary of the relevant material [6].

(4) Ms White did not have a specific recollection of the discussions she had with the appellant in relation to the protected communication, however she 'would have used the summary table' she drafted or 'summarised the content of the protected communication' when discussing it with the appellant [7].

(5) Ms White was not instructed to make an application to vary the order to allow the appellant to have direct access to the protected communication [8].

(6) Ms White was responsible for summonsing the mobile telephones of KT, CT and JP. She engaged Richard Boddington as an expert to download the mobile telephones and produce excel documents for each device. Ms White sent two emails to Ms Barone outlining her findings on the mobile telephone material [9] ‑ [10].

Affidavit of Ms Barone sworn 18 June 2021 (Exhibit R11 in the appeal)

221 Ms Barone's affidavit contained evidence to the following effect:

(1) Ms Barone was counsel for the appellant at his trial from 6 April 2020 to 17 April 2020. Ms Barone was instructed by AP Legal pursuant to a grant of Legal Aid, with Ms Padmanabham and Ms White acting as instructing solicitors [1] ‑ [2].

(2) Ms White attended each day of the trial and attended upon the appellant with Ms Barone during the trial. Ms White was 'the main scribe' when Ms Barone and Ms White spoke with the appellant [3].

(3) Ms Padmanabham first discussed the appellant's matter with Ms Barone in early March 2020 after Ms Boston withdrew as counsel. Ms Barone provided Ms Padmanabham with ongoing advice in that capacity, and on 16 March 2020 Ms Barone indicated that she could act as counsel if the trial did not commence until 6 April 2020 to allow her time to prepare [4] ‑ [5].

(4) Ms Barone told Ms Padmanabham that she was not prepared to attend Acacia prison personally due to COVID-19 concerns, but would conduct a visit by video [6].

(5) On 20 March 2020, from 3.00pm to 4.00pm, Ms Barone, Ms Padmanabham and Ms White met. Ms Barone was given a 'verbal overview' of the matter including its history, the nature of the charges and the work conducted on the file. Ms Barone requested that Ms Padmanabham and Ms White provide her with a briefing note setting out a summary of the charges, the State and defence cases; that a client proof be prepared; and that she be given a copy of all of the court transcripts [7] ‑ [9].

(6) On 26 March 2020, Ms White sent Ms Barone an email containing the briefing note and several electronic attachments. The attachments included chronologies relating to CT, GN and JP; a combined chronology relating to all complainants; a summary of the medical and psychological notes relating to CT; draft witness proofs from three potential witnesses including LM; and a table of the appellant's instructions in respect of JP's statement [10] ‑ [11].

(7) Ms Padmanabham delivered to Ms Barone the boxes of files referred to in the briefing note, as well as additional files that were not attached electronically to the briefing note [12].

(8) On 1 April 2020, Ms White emailed Ms Barone a 19 page client proof, which was used as the client proof during the trial [13].

(9) On 2 April 2020, Ms Barone met with the appellant via Skype. The appellant spoke for most of the appointment and focused entirely on providing instructions in respect of the charges relating to JP. Towards the end of the appointment, Ms Barone raised the topic of giving evidence and they discussed whether the appellant had thought about giving evidence at the trial. Ms Barone emailed the notes she made during this appointment to Ms White on 8 April 2020 [14].

(10) During the trial, but prior to the appellant giving evidence, Ms Barone spoke to the appellant and obtained further instructions from him. Ms Barone made notes of these additional instructions on her copy of the client proof. Ms Barone also made notes on the client proof during the course of the trial [15].

(11) Prior to cross-examining JP, Ms Barone took additional instructions from the appellant and made a note of these instructions in one of her trial notebooks [16].

(12) During the trial, Ms Barone and Ms White took additional instructions from the appellant regarding PT [17].

(13) The only written instructions the appellant gave Ms Barone were signed instructions not to call the appellant's mother, and signed instructions that he would give evidence [18].

(14) Ms Barone did not receive instructions from the appellant to call any particular defence witness other than the appellant's mother [19].

(15) The appellant did not instruct Ms Barone to call AP, nor did Ms Barone refuse to call AP [20].

(16) The prosecution brief contained a statement of AP which Ms Barone had read. The State did not call AP as a witness, nor did they indicate any intention to do so [21].

(17) Ms Barone understood that her instructors and the appellant believed that AP was likely to be damaging to the appellant's case. This accorded with Ms Barone's understanding that the appellant believed that AP and JP had suggested to CT that he was the perpetrator, and was consistent with Ms Boston's cross‑examination of CT on that topic [22].

(18) The only communications between AP and CT that Ms Barone was informed of were in-person conversations. Ms Barone did not refuse to enter these into evidence. CT gave evidence that she accepted speaking with AP about the appellant [23].

(19) During the first week of trial, at the end of a court day, Ms Barone and Ms White discussed with the appellant whether Dr C, Dr M, MT, AP and LM should be called as defence witnesses, and which exhibits should be tendered as part of the defence case. The appellant did not raise the issue of the tender of any medical records relating to CT's urinary tract infection. The appellant instructed Ms White and Ms Barone that Dr C and MT were not to be called as witnesses. Ms Barone advised the appellant that if AP was called by the defence she would not be able to cross‑examine her, and that it would be 'unwise to call a witness who the [a]ppellant believed was partly responsible for him being falsely accused', in circumstances where the witness could speak in response to non-leading questions. The appellant gave instructions that AP was not to be called as a witness. The appellant did not give instructions to call Dr M and the possibility of calling her was left open. Dr M had received emails from CT containing diary entries about her conversations with CT's aunt and cousin, which CT confirmed during cross‑examination that she wrote and sent. Ms Barone advised the appellant that CT's history of mental illness cut both ways and this accorded with the material contained in the medical and psychological records. Ms Barone, Ms White and the appellant also discussed whether LM would be called as a defence witness. Ms White and Ms Barone both took notes of this conversation [24] ‑ [34].

(20) After the appellant gave evidence‑in‑chief on 14 March 2020 regarding how often he spent time with GN, Ms Barone asked Ms White to speak to LM again and ask for more detail about when the appellant spent time with GN. Ms White emailed Ms Barone outlining what LM had told her [36] ‑ [37].

(21) During the trial, but after the discussion between Ms White and LM, Ms Barone and Ms White spoke to LM together to get a sense of how she would present as a witness. Ms Barone formed the impression that LM would present 'as very partisan in favour of the [a]ppellant' and that LM did not recall the appellant spending time with GN prior to the appellant moving to Town M in 1985, which was inconsistent with the evidence that the appellant had given at trial [38] ‑ [39].

(22) After speaking to LM, but prior to the close of the defence case, Ms Barone and Ms White spoke to the appellant and further discussed whether LM would be called as a witness. The appellant instructed them not to call her. Ms White made notes of this conversation [41] ‑ [42].

(23) In accordance with her usual practice, Ms Barone wrote an instruction not to call LM as a witness, which the appellant signed. Ms Barone only took written instructions if there was a joint expectation between herself and the client that a defence witness would be called and a last minute change of instructions had occurred [43] ‑ [45].

(24) At the pre-recording of the evidence of CT, Ms Boston advised the court that in her view this was a 'suppressed memory case', and cross-examined CT regarding the potential for 'confabulation with other later topics'. Ms Boston had reference to the medical and psychological notes relating to CT in preparation for and in conduct of the cross-examination of CT. By the time Ms Barone became counsel for the appellant, the reliance on suppressed memories had been abandoned by the defence [47] ‑ [49].

(25) Ms Barone received emails regarding Dr Brett, a potential State witness, and emails in respect of the earlier decisions made by the defence [50].

(26) Ms Barone did not recall being provided with a 2010 DCP screening report, nor was she instructed by the appellant to tender such a report. Ms Boston did not ask CT any questions about a DCP assessment conducted in 2010 [51] ‑ [52].

(27) AP Legal issued summonses to CT, KT and JP seeking production of their mobile telephones for the purpose of examining the contents of the telephones to look for evidence of collusion between them. Ms Padmanabham sought information from the State about the process that the police had used to download the telephones. Ms White reviewed the downloads produced by an expert, Mr Boddington. No evidence supporting collusion was found in the downloads. No relevant messages other than the messages between JP and CT that were already part of the prosecution brief were located [53] ‑ [60].

(28) Ms Barone was informed by her instructors that the appellant had been charged with offences relating to his other daughter, KT, after CT's pre-recording of evidence had been conducted. KT participated in a child witness interview the day before the pre-recording of CT's evidence, which Ms Boston was not aware of at the time of conducting the pre‑recording. Ms Barone understood that KT's allegation of sexual offending did not factually involve CT [61] ‑ [65].

(29) Ms Barone understood at the commencement of the trial that the defence were looking for tangible evidence to ground an application to recall CT, if appropriate. This was the reason the mobile telephones were summonsed and why the defence sought a more detailed examination of the telephones than the police had conducted [66].

(30) During the trial Ms Barone discussed with the appellant the recalling of CT; that there was no evidence of collusion between KT and CT found in the telephone downloads; that CT was not swayed in cross‑examination by Ms Boston; and that without tangible evidence of collusion, recalling CT would likely result in further evidence from her that the allegations did occur. Ms Barone did not make notes of this conversation because it took place in the courtroom unexpectedly. The appellant did not instruct Ms Barone to recall CT [67] ‑ [70].

(31) Ms Barone did not pursue recalling CT to cross‑examine her regarding protective behaviours because she thought that the line of cross‑examination concerning protective behaviours flagged by Ms Boston was not necessarily attractive, given that CT had not acted to protect herself and because she had a long history of ongoing mental health problems. Ms Barone also thought that it would risk confirming that the offending had occurred [71].

(32) Ms Barone was not aware of any psychological evaluation of the appellant. The prosecutor's cross‑examination of the appellant regarding his sexual interest in young children was based on inferences arising from propensity evidence [72].

(33) In cross‑examination, Ms Barone did not ask PT about how the appellant entered her parents' house because she did not consider the method of entry to be of significance, given that the client proof and the table of instructions regarding JP's statement referred to the appellant having keys [73].

(34) Ms Barone recalled forming the impression that the appellant's instructions and evidence had changed regarding how much time he spent with GN. Ms Barone discussed this impression with Ms White during and after the appellant's evidence [75].

(35) Ms Barone was hesitant to ask questions in re‑examination in case the appellant gave inconsistent evidence which could damage his credit as a witness [76].

222 The appellant gave oral evidence at the hearing of the appeal to the following effect:

(1) The appellant had inspected the AP Legal file in the court registry and located the 'copious written instructions' that he referred to in his appellant's case.[556] The appellant produced these written instructions, which comprised a two-page document in his handwriting, in court. This was the only document in the bundle that was in the appellant's handwriting, and it was marked for identification as MFIA3.[557]

(2) The appellant admitted having provided written instructions to his lawyers to call his mother to give evidence at the trial, but during the course of the trial 'things changed' and a decision was made not to call his mother as a witness.[558]

(3) The appellant recalled a Skype meeting he had with Ms Barone on 30 March 2020.

(i) A 'facet' of this meeting had been about whether calling AP as a witness would be more damaging than helpful. The appellant denied that this was the 'conclusion' of the meeting.[559]

(ii) Whether or not Ms Barone would call KT as a witness at trial was not discussed.[560]

(iii) The appellant agreed with counsel for the State's characterisation of the discussion in relation to MT that 'he could perhaps be helpful' but that the appellant's instructions went no further than that.[561]

(iv) It was agreed that ER (CT's friend) could be a harmful witness if she was still friends with CT.[562]

(v) It was recommended to the appellant that Dr C would be more damaging than helpful. The appellant did not accept this recommendation, nor did he expressly dispute it.[563] When asked by counsel for the State whether he told his lawyers, 'I disregard your advice. I want her called, in any event', the appellant responded '[n]o, I didn't'.[564]

(vi) The last witness discussed during this meeting was the appellant's mother, LM. The appellant agreed that the conclusion of this discussion was that they would not call the appellant's mother unless Dr N gave evidence that GN stayed at the appellant's parents' house.[565] The appellant said that 'on balance' the reason his mother was never called to give evidence was because Dr N never gave evidence.[566]

(4) Counsel for the State referred the appellant to a meeting he had with Ms Barone and Ms White on about the third day of trial, and put to the appellant that the decision was reached in this meeting not to call Dr C, MT or AP. The appellant did not agree with this.[567]

(5) The appellant admitted that he had never told his lawyers or indicated in his proof of evidence that the surf club was closed during winter.[568] The appellant recalled that in Mr Tyers' cross-examination of GN, he asked GN about going to the beach in winter, and GN said they had wetsuits.[569] The appellant also mentioned wetsuits in his appellant's case.[570] Further, the appellant agreed that he had prepared the proof of evidence with Ms White after GN was cross-examined.[571]

(6) The appellant said that he wrote the three affidavits annexed to the appellant's affidavit sworn 2 June 2021 that were signed by his mother. A member of the prison staff emailed these affidavits to the appellant's brother to print off for his mother. The appellant spoke to his mother about the contents of the affidavits.[572]

(7) When asked whether the appellant wished to elaborate or explain any of the points raised in cross-examination at the appeal hearing, the appellant said that the affidavits he had typed which were signed by his mother were 'done with consultation' and were done 'on the very full understanding that if she was unhappy with any of them, that she would not sign them'.[573] When asked to explain what he meant by 'consultation', the appellant said that there were telephone calls and a face-to-face visit at Acacia prison in the lead up to the affidavits being written.[574]

The appellant's mother's oral evidence in the appeal

223 The appellant's mother, LM, gave oral evidence at the hearing of the appeal to the following effect:

(1) The appellant's mother wrote the affidavit sworn 30 March 2021, which was annexed to the appellant's affidavit sworn 2 June 2021. The appellant's mother said she 'would have written it in [her] own handwriting'.[575]

(2) The appellant's mother recalled meeting with the lawyers acting for the appellant before the trial commenced, but could not remember who she met with or what she discussed with them.[576] She said she could not remember being asked questions about GN.[577]

(3) The appellant's mother recalled telling the appellant's lawyers that she and her husband rarely went away between 1980 and 1984, and that on the occasions they did go away, the appellant's grandparents were next door and 'came in and out' of the appellant's mother's house 'all the time'.[578]

(4) The appellant's mother agreed that the only time GN and the appellant spent time together was when they were in Town M.[579]

224 Ms Padmanabham gave oral evidence at the hearing of the appeal to the following effect:

(1) Ms Padmanabham recalled that she and Ms White visited the appellant 'quite a number of times in custody'.[580] Another solicitor, Raquel Woodcock, also visited the appellant in custody in the early stages of his matter, but later ceased employment with the practice.[581]

(2) The appellant put to Ms Padmanabham that she and Ms White had expressed concerns about Ms Woodcock's instructions or taking of instructions from the appellant, but Ms Padmanabham said she had no recollection of this.[582]

(3) Ms Padmanabham said that Mr Tyers appeared as counsel for the pre‑recording of GN's evidence, but the trial was relisted on dates when Mr Tyers was not available and so AP Legal had to brief different counsel.[583] Ms Boston appeared as counsel for the pre-recording of CT's evidence, but had to withdraw from the case on 12 March 2020.[584] Ms Boston recommended Tony Hagar to pick up the brief, however the appellant expressed concerns with this, at which point discussions turned to Ms Barone.[585]

(4) Ms White provided Ms Barone with the brief on 26 March 2020.[586]

(5) Ms Padmanabham was not involved in the matter during the course of the trial or in the decision-making process.[587]

225 Ms White gave oral evidence at the hearing of the appeal to the following effect:

(1) Ms White took the proof of evidence from the appellant's mother, LM, on 2 December 2019 after speaking with her many times. She typed the document while the appellant's mother was present.[588]

(2) Ms White prepared the appellant's proof of evidence from her own notes, notes from visits with the appellant and the appellant's books of notes of which there was more than one but less than five.[589] Ms White discussed the proof with the appellant a number of times throughout the entire proceedings, including during visits to the prison, telephone calls and Skype calls.[590]

(3) Ms White prepared the summary of the section 19C protected communication records and went through each table or section with the appellant and took instructions in relation to each section.[591] This document was tendered at the appeal hearing and became Exhibit R6.

(4) Ms White looked through the downloaded mobile telephone material from KT, CT and JP's telephones for evidence of collusion because it had come to the defence's attention that KT had made allegations about the appellant just before the trial.[592]

(5) Referring to her notes from a meeting on 12 March 2020 between the appellant, Ms Padmanabham, Gary Rodgers and herself at Acacia prison, Ms White recalled that the appellant had not been '100% confident and ready' to proceed with Lisa Boston, and that he was not happy to proceed with Tony Hager.[593]

(6) Ms White recalled finalising the appellant's proof by telephone with the appellant prior to the trial commencing.[594]

(7) Ms White had a discussion with the appellant and Ms Barone about the pros and cons of calling the appellant's mother as a witness and wrote out the pros and cons. Ms Barone wrote the witness authority for the appellant to sign.[595]

(8) The appellant referred to the psychiatric report compiled by Dr M that was contained within the protected communications and asked Ms White whether she recalled any instructions from him not to call Dr M. Ms White responded that she had a note that they were not calling anyone else, but she was not sure and did not have any independent recollection of specific instructions not to call Dr M.[596]

(9) Ms White said that AP had always been 'flagged' as a potential witness after the appellant told her that he believed AP had 'put the ideas in CT's head'.[597]

(10) When asked by counsel for the State what the reasons were for deciding not to call AP to give evidence, Ms White responded:[598]

That ‑ well, the main reason was [the appellant] thought that she ‑ she put the ideas into CTs head when she went and saw her at the Marian Centre and he believed that she was the one that fabricated the allegations. The State were not going to call AP. We asked the State if they were going to call AP. She wasn't going to be ‑ well, this is my understanding. She wasn't going to be subject to cross-examination and we didn't know what kind of witness she would be. If she had made up these lies and allegations, we don't know ‑ [the appellant] thought that she would lie on the stand and that she would be very damaging.

226 Ms Barone gave oral evidence at the hearing of the appeal to the following effect:

(1) Ms Barone asked Ms White to speak to the appellant's mother again after the appellant gave evidence-in-chief on 14 April 2020. This was because the evidence that the appellant gave about the time he spent with GN did not match what Ms Barone had expected the evidence to be according to the appellant's proof.[599] The appellant's evidence at trial was that he had spent time with GN every couple of weeks in 1984, whereas based on the proof Ms Barone expected him to say that he had spent some time with him in 1984 with increasing frequency at the end, but overall they had made perhaps one trip to the beach together.[600]

(2) Ms Barone did not recall having discussions with the appellant about the draft proof prior to the trial. When asked by the appellant whether a proof is something that Ms Barone would ordinarily develop with a client over time, she responded:[601]

If I had been acting for you from the very first moment then it would depend if I was the solicitor or if I was acting solely as counsel.

(3) The appellant asked Ms Barone whether she recalled expressing any issues regarding the cross-examination of CT as conducted by Ms Boston, to which Ms Barone responded that she and the appellant had discussed that she 'perhaps, might have asked more questions in relation to the text messages'.[602]

(4) Ms Barone said she was not aware of any request by the appellant to call Dr M or PS as witnesses at the trial.[603] (The appellant described PS as an expert on memory recall, but accepted that PS was not mentioned by name in any of the materials he had filed in the appeal).[604]

(5) Ms Barone recalled that at the end of the court day during trial she would spend time with the appellant in the cells. In the first week of trial Ms Barone and the appellant had a discussion about witnesses and about which exhibits would be tendered at the trial.[605]

(6) The appellant asked Ms Barone whether it was correct that she could not take his case on if the trial began before 6 April, to which Ms Barone responded:[606]

No. It's not that I couldn't take it on. It's that when Ms Padmanabham was talking to me about the matter she originally discussed it with me in the context of me giving her advice as a senior counsel and the issue she was having in relation to your previous counsel and her withdrawal and as it came in that discussion, Ms Padmanabham asked me if I would take on the matter as counsel and over text message I indicated to her that I wouldn't be able to take it on until a date ‑ I think it was 6 April ‑ because otherwise there wouldn't be sufficient time to prepare.

(7) Ms Barone said the first time she had heard PS's name was in court that day at the appeal hearing.[607]

(8) Counsel for the State asked Ms Barone whether, during a meeting with the appellant in the cells following a court day, she was ever given direct instructions to call any particular witness. Ms Barone responded that, excluding the appellant's mother, she received no direct instructions to call any particular witness.[608]

Findings of fact in relation to the additional evidence sought to be adduced in the appeal

227 It is well established that, as a matter of law, this court does not examine whether a decision taken by defence counsel at trial was, in fact, taken for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage. Rather, this court is concerned only with whether defence counsel's decision is capable of reasonable explanation on that basis. The test is objective in character. See, for example, Jeffery v The State of Western Australia.[609]

228 The nature and extent of any findings of fact which it is necessary and appropriate for this court to make in relation to the proposed additional evidence adduced in the appeal must be determined having regard to that overriding principle of law in the context of the relevant grounds of appeal.

229 Ms Barone, Ms Padmanabham and Ms White were impressive witnesses. They were, without doubt, honest. They endeavoured to assist the court. The evidence they gave was cogent and reliable. Where the evidence of Ms Barone, Ms Padmanabham or Ms White is materially different from the evidence of the appellant, we prefer the evidence of Ms Barone, Ms Padmanabham or Ms White, as the case may be.

230 We are satisfied, on the basis of Ms Padmanabham's and Ms White's evidence in the appeal, that Mr Tyers and Ms Boston were properly instructed.

231 We are satisfied, on the basis of Ms Barone's, Ms Padmanabham's and Ms White's evidence in the appeal, that Ms Barone was properly instructed.

232 We are satisfied, on the basis of our review of the trial record, that Mr Tyers' cross-examination of GN and Ms Boston's cross‑examination of CT was competent.

233 We are satisfied, on the basis of Ms Barone's and Ms Padmanabham's evidence in the appeal, that Ms Barone spent 90 hours preparing for the appellant's trial. Further, we are satisfied, based on our review of the trial record, that Ms Barone's representation of the appellant and her performance as defence counsel at the appellant's trial was competent.

234 We are satisfied, on the basis of Ms Barone's and Ms White's evidence in the appeal and based on our review of the trial record and the information and material available to the defence, that the defence case theory at the trial was appropriate.

235 We are satisfied, on the basis of Ms White's evidence in the appeal, that prior to the trial Ms White discussed with the appellant the calling of certain witnesses, including AP, KT and MT, but the appellant did not give any firm instructions during those discussions. Further, at a Skype meeting on 30 March 2020, Ms White discussed with the appellant whether calling AP would be more damaging than beneficial to the appellant's case.

236 We are satisfied, on the basis of Ms Barone's and Ms White's evidence in the appeal, that:

(a) During the trial, Ms Barone and Ms White met regularly with the appellant during adjournments including after each hearing day.

(b) On 8, 9 and 16 April 2020, Ms Barone and Ms White met with the appellant and discussed whether the defence should call any witnesses apart from the appellant.

(c) The appellant instructed Ms Barone and Ms White, before the close of the defence case, not to call any witnesses apart from the appellant. In particular, the appellant instructed Ms Barone and Ms White in writing not to call his mother, LM, as a witness.

237 We are satisfied, on the basis of Ms Barone's evidence in the appeal, that:

(a) During the trial Ms Barone discussed with the appellant whether an application should be made to recall CT.

(b) The appellant did not instruct Ms Barone to recall CT.

(c) Ms Barone did not pursue recalling CT to cross‑examine her regarding protective behaviours because she thought that the line of cross‑examination concerning protective behaviours flagged by Ms Boston was not necessarily attractive, given that CT had not acted to protect herself and because she had a long history of ongoing mental health problems. Also, Ms Barone thought that recalling CT would risk confirming that the offending had occurred.

238 We are satisfied, on the basis of Ms White's evidence in the appeal and our review of the protected communications, that the summary prepared by Ms White of the protected communications did not contain any material errors or omissions. Also, we are satisfied, based on Ms White's evidence in the appeal, that Ms White would have used her summary in any discussions that may have occurred with the appellant in relation to the protected communications. Further, we are satisfied, on the basis of Ms Barone's and Ms White's evidence in the appeal, that no evidence of collusion between any of CT, KT and JP was found in the downloads of the mobile telephones of CT, KT and JP.

239 The oral evidence of the appellant's mother, LM, at the hearing of the appeal was vague. It was apparent, especially in cross-examination, that she did not have a reliable recollection of relevant events or circumstances in relation to the appellant or GN during the early 1980s. We would not accept or rely upon her evidence in determining the merits of any of the grounds of appeal.

Relevant legal principles applicable in an appeal to this court from a judgment of conviction entered after a trial before a judge alone

240 In Wark v The State of Western Australia,[610] Buss P set out relevant legal principles applicable in an appeal to this court from a judgment of conviction entered after a trial before a judge alone. It is unnecessary to reproduce Buss P's statement of those principles.

241 Ground 1 alleges, in effect, that the verdicts of guilty on which the convictions are based should be set aside because, having regard to the evidence, they are unreasonable or cannot be supported.

242 It is a question of fact whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported. See M v The Queen;[611] Zaburoni v The Queen;[612] GAX v The Queen.[613]

243 An intermediate court of appeal (the appellate court) must decide that question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in all the circumstances to permit the verdict to stand. See M (492 ‑ 493); SKA v The Queen.[614]

244 The appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the whole of the evidence (in particular, the competing evidence). See SKA [22], [24].

245 The appellate court's task is not to consider, as a question of law, merely whether there was sufficient evidence to sustain a conviction. See Morris v The Queen.[615]

246 The appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, 'must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations': M (493); R v Nguyen;[616] SKA [13].

247 The ultimate question for the appellate court must always be whether the appellate court thinks that upon the whole of the evidence it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty: M (494 ‑ 495). See also R v Hillier;[617] Fitzgerald v The Queen;[618] R v Baden‑Clay.[619]

248 The setting aside of a tribunal of fact's verdict of guilty because, having regard to the evidence, it is unreasonable or cannot be supported is a serious step. Trial by the appellate court is not to be substituted for trial by the tribunal of fact. See Baden‑Clay [65] ‑ [66].

249 The appellate court's reasons must disclose its assessment of the capacity of the evidence to support the verdict. See SKA [22] ‑ [24]; BCM v The Queen;[620] GAX [25].

250 The nature and extent of the appellate court's task, in a particular case, will be informed by:

(e) the way in which the case was ultimately left to the tribunal of fact;

(f) whether the tribunal of fact was a judge (who must state the principles of law that he or she has applied and the findings of fact on which he or she has relied) or a jury (which does not give reasons); and

Ground 1: the trial judge's findings of fact in relation to counts 1, 4 to 7, 8 to 13 and 15 to 18

251 The trial judge set out, in a schedule to her reasons, the findings of fact she had made in relation to the counts on which she found the appellant guilty, namely on counts 1, 4 to 7, 8 to 13 and 15 to 18. The schedule reads as follows:

Offending against [GN]

Count 1

1. The offender and the victim, [GN] are second cousins. They met through their mothers when [GN] was aged 10 and the offender aged 19. The offender and [GN] began spending time together doing activities including going to the beach (the offender being a member of a local surf club) and water parks.

2. At the time of count 1, in mid 1983, [GN] was 11 years old and the offender was 20 years. (I make that finding based on the evidence from both [GN] and the offender that they met when [GN] was 10 years old, and that this incident occurred about a year after meeting him.) It was around the time of [GN's] birthday and the offender suggested that they could celebrate his birthday and could have a few drinks. The offender took [GN] to the beach during the afternoon to a local surf club, going for a paddle on the club boards there. The offender drove back to his parents' home, where he then lived, with [GN] in the passenger seat. The offender stopped and bought some beer on the way back to his parent's home. The offender told [GN] that his parents were away for the weekend and they could have a few drinks. [GN] had never drunk alcohol before. In the living room of the house the offender poured drinks into small glasses and he and [GN] played a game where they had to drink as much as possible in a short period of time. G was drunk, feeling dizzy and a little bit ill.

3. The offender pulled out a mattress from the bedroom and put that on the floor in front of the television and the two of them sat or laid on the mattress to watch a movie. While G lay on his left hand side facing the television, the offender lay behind [GN] 'spooning' him. Somehow, although [GN] could not remember how, both he and the offender were only wearing briefs. The offender put his hand on [GN]'s penis and started stroking it, over his briefs, moving it up and down.

Offending against [JP]

4. [JP] is the nephew of the offender. At the time of these offences [JP] was aged between 13 and 14 and the offender was aged between 36 and 38.

Count 4

5. [JP] and the offender were in the living room of the offender's house watching TV. [JP] and the offender would often talk about sexual things. On this occasion, [JP] asked the offender whether his penis was the right size or too small. The offender suggested that they measure it and find out. The offender got up to get a ruler and came back to the couch. Both the offender and [JP] both pulled their pants down and measured each other's penises. As this occurred both [JP's] and the offender's penises were erect. Each stroked their own and each other's penises to get them hard in order to measure them. The offender masturbated to ejaculation.

Count 5

6. [JP] was at the offender's home, in the living room sitting on a couch watching tv when 'one thing led to another' and his hand was on the offender's penis. [JP] started to masturbate the offender on top of his clothes. The offender remained seated until he ejaculated - he told [JP] that he had ejaculated. The offender then got up to get tissues.

Count 6

7. Count 6 occurred when the offender and [JP] travelled to a farm owned by the offender's wife's brothers (also [JP's] uncles, [JP's] father's brothers). [JP], his father and the offender drove to the farm together in [JP's] father's car, with [JP's] father driving.

8. [JP] had taken a pornographic magazine on that trip which he had placed under the driver's seat. This was a magazine which [JP] had obtained from a friend's father's garage and which the offender had asked him to bring on the trip.

9. At lunchtime, the offender and [JP] went together to get lunch from a lunch bar down the road. The offender drove. Before reaching the lunch bar, he pulled the car over to a side street or gravel track and asked [JP] to get the magazine. [JP] got the magazine out. The offender then pulled down his pants and while looking at the magazine masturbated to ejaculation, calling out the name of one of the girls in the magazine. The offender grabbed some tissues from his pocket, ejaculated into the tissues, then pulled his pants back up, threw the tissues out the window and drove off.

Count 7

10. [JP], the offender, [JP's] grandmother and grandfather and also the offender's wife, P were at [JP]'s grandparents' house. They all went out and left [JP] and the offender at the house. The two of them were in the tv room. [JP] had the same pornographic magazine as count 6, which the offender had told him to bring with him. [JP] had put this magazine inside another magazine so no one could tell what they were looking at it.

11. [JP] sat next to the offender, on the offender's right. Together they looked at the magazine which was an x rated magazine. One of the photos in the magazine was of a man with red testicles having sex with a woman. [JP] asked the offender why the man in the photo had red balls. The offender told [JP] that this was because the man was about to ejaculate. The offender, who had pulled his pants down once everyone had left and started playing with his penis, then ejaculated. The offender went and cleaned himself up and [JP] then hid the magazine. The two of them returned to watching tv. There was no discussion about what had happened.

Offending against [CT]

12. [CT] is the offender's biological daughter. At the time of these offences [CT] was aged between 4 and 7 and the offender was aged between 37 and 43.

Count 8

13. At the time of count 8, [CT] was 6 years old. She was inside the shower of the ensuite bathroom in the family home and the offender was standing outside the shower. The shower had a detachable showerhead which could be removed from its fitting and be hand held. The offender took the showerhead and moved it down [CT's] back, asking her if it felt nice. He then moved the showerhead onto her vagina and held it there. The part of the showerhead on her vagina was the shower rose. The offender then put his index finger in her mouth and then put his finger inside her vagina and moved it in and out. The detachable showerhead remained on her vagina.

Counts 9, 10 and 11

14. Counts 9, 10 and 11 occurred on the same day, although counts 10 and 11 occurred some hours after count 9. [CT] was 7 years old.

15. Count 9 occurred in the ensuite bathroom of the family home. [CT] was inside the shower and the offender stood on the outside of the shower, with the door open. The offender had a bottle of conditioner and first rubbed some onto his hands, then rubbed it on [CT's] body and then on her vagina. He then put his finger in her mouth and then into her vagina. As the offender's finger went into [CT's] vagina, it stung and hurt her because as she explained it, 'it felt like it went all the way in and was held there for quite some time'. After the offender removed his finger from her vagina it was stinging a lot.

16. Counts 10 and 11 followed count 9, on the same day. After [the] shower, when [CT] was in bed, her vagina was stinging. She got out of bed and told her mother and father, the offender, who were both in the kitchen/living area of the family home, that her vagina was stinging. They told her to go back to bed and they would bring something in, so she went back to bed. The offender came back with some Savlon cream. When he came into her bedroom she had a stick of lip gloss. She did not know why she was doing it, but she was moving this in and out of her vagina. The offender did not say anything, but just left. He came back and she was not doing this anymore. He got onto the bed next to [CT] and asked her to show him what she was doing before, and said he wanted to show her how to do it. He inserted his index finger into her vagina and moved his finger in and out of her vagina. This is the conduct the subject of count 10.

17. After a while the offender asked [CT] to show him again what she had done with the stick of lip gloss. She used the lip gloss as he asked and moved it in and out of her vagina. This is the conduct which is the subject of count 11. He then told her to feel his penis. He was wearing boxers. She felt his penis, it was hard and the offender told her it was good that it was hard.

Count 12

18. Count 12 occurred in the toilet at the back of the house when [CT] was 5 years old. She and the offender were in the back toilet - she went into the toilet first and the offender followed her. The offender wanted to show her how to go to the toilet like a boy. He called it the 'boy dance'. He showed her how to stand up and lean over the toilet. He stood next to her on her right and he went to the toilet and said 'like this'. Then she tried to do it but not much of it went into the toilet bowl. The offender cupped his hands underneath her vagina and splashed her urine back up onto her vagina. Once the splashing stopped, the offender, took his penis out of his boxer shorts. He held it in his hand, moving his hand up and down and then inserted his penis into her mouth. He pushed her head onto his penis. He had one hand on her head and one hand still on his penis, moving her head. She felt what she thought was urine in her mouth. She did not want to swallow it but she did.

Count 13

19. Count 13 was another incident in the back toilet, when [CT] was 5 years old, when the offender inserted his penis in her mouth. This time the offender was angry. [CT] had to bend over a little bit and saw that her brother's stool, that he used when using the toilet, was still in the toilet. The offender pulled her head and hair hard, holding her mouth onto his penis. His penis was inside her mouth; he had his other hand on his penis. She could not breathe. She felt like she was going to be sick, but she was not sick. When he took his penis out of her mouth, he did not let go of her hair but kept his hands on her head, holding it tightly, over the toilet bowl, and he then flushed the toilet close to her face. She could not remember how this incident ended, however, she felt what she thought was urine in her mouth.

Counts 15 and 16

20. Counts 15 and 16 occurred during the same incident in [CT's] bedroom. At the time [CT] was 7 years old. She was in her bed, meant to be asleep. She was upset about something and distracted, and was peeling nail polish off her nails. The offender came in and [CT] pretended to be asleep, on her back. The offender got into bed with her, under the covers, then started rubbing his hand on the outside of her vagina in a circular motion. He pulled her underwear down and rubbed her vagina again, in circles and then he put his finger in and out of her vagina. He then moved on top of her, with his body on top of hers. She felt like she was being pinned down. The offender then inserted his penis into her vagina. She felt it go in, but not very far, and it hurt.

Count 17

21. Count 17 was another incident in the ensuite bathroom when [CT] was 4 years old. The offender was in the shower with her, both of them were naked. The offender put his finger in her mouth. His penis was hard. He held her head and put his penis in her mouth. He moved her head. While this was happening the shower was still on.

Count 18

22. Count 18 was another occasion in the ensuite bathroom when she was in pre-primary, about 5 or 6 years old. She had an old towel around her, which was stained. A heat lamp had just been installed in the bathroom. The offender was standing in the bathroom with her and told her that the heat lamp would help her dry, so she stood under the heat lamp. The offender had an electric toothbrush, which he placed on the outside of [CT's] vagina. He used the end of the toothbrush which had bristles, but flipped it over to place the plastic non bristle side against what she now knows is her clitoris. She felt the bristles from the toothbrush touching the surrounding areas. She felt what she thought of at the time were shivers and tingles. (ts references omitted)

Ground 1: the trial judge's adverse credibility findings in relation to the appellant

252 The trial judge made numerous adverse findings in relation to the appellant's honesty and reliability. The appellant does not challenge those findings on appeal. Rather, the appellant seeks to impugn the honesty and reliability of the evidence given by GN, JP and CT.

253 Her Honour said that the appellant's evidence on critical issues at trial was unbelievable and unreliable [406]. Her Honour did not accept the appellant's denials about having committed the charged offences [406].

254 The trial judge's reasons for arriving at those conclusions were, in summary, as follows:

(a) There was an inconsistency between the appellant's evidence at trial, compared to what he had told police in 1989, as to whether GN would drink alcohol in his presence: [389] read with [149] ‑ [150].

(b) There were inconsistencies between the appellant's evidence and the evidence of PT [390], a witness whom her Honour found to be truthful and reliable [391], namely:

(i) The appellant's incredible and implausible account as to the size of the bed that CT slept in at relevant times, compared to PT's evidence on that issue which accorded with 'common sense and experience' [390(a)].

(ii) The appellant's evidence at trial that JP was aged 13 or 14 when JP's mother spoke to PT about JP having girls stay overnight (which, on the appellant's evidence, happened at the time of the alleged offences), compared to PT's evidence which was (consistently with JP's evidence) that this event happened when JP was in his late teens [390(b)].

(iii) The appellant's evidence at trial that he and PT both spoke to JP and his father about JP viewing his father's pornography, compared to PT's evidence that she did not speak to JP or his father about that issue.

(c) There were a number of internal inconsistencies in the appellant's evidence at trial, including:

(i) A statement by the appellant in his evidence‑in‑chief that he did not tolerate GN drinking alcohol at all, compared to a statement by the appellant in cross‑examination to the effect that he supplied GN with alcohol towards the end of 1997: [393] read with [149].

(ii) The appellant, in denying that he had acted upon his sexual interest in young boys, asserted that he had 'good, solid, sexual relationships' with his girlfriends and wife. When it was put to the appellant that he had offended against AB and LW while he was married to his wife, the appellant responded that he had been depressed and that medication which he had been taking had interfered with his sex life with his wife. Her Honour found that this response was contrary to the evidence the appellant had given about enjoying a healthy sex life with his wife, and was also inherently implausible. On the appellant's account, his depression and medication had interfered with his sexual interest in his wife, but not with his sexual interest in the two boys (AB and LW) against whom he was offending [394].

(iii) The appellant's evidence as to the size of CT's bed was adduced by the appellant to suggest that CT's account of him lying on her bed, when he committed a number of counts, was impossible. Her Honour rejected that evidence in that it was contrary to PT's evidence on the issue (which her Honour accepted) and was also inherently incredible [396].

(iv) The appellant's refusal to admit that he had ever bathed his children in the absence of his wife was inconsistent with PT's evidence and defied logic and common sense [397].

(v) The appellant's account as to why he performed a skinfold test on JP strained credulity and was inherently implausible [398].

(vi) The appellant's account of JP masturbating at the home of his grandparents was incredible and was inconsistent with the appellant's claim that he would be prepared to speak to JP about pornography and other sexual matters, while not saying anything about the masturbation incident to either JP or PT [399].

(d) Her Honour formed the distinct impression, both from the appellant's accounts and his demeanour in telling them, that the appellant was attempting to portray himself in the best possible light and, in the case of the allegation that JP masturbated at his grandparents' home, attempting to portray JP in the worst possible light and deflect from JP's evidence [400].

(e) During cross‑examination the appellant often avoided answering questions put to him by the prosecutor [401] ‑ [404]. By contrast, there was not the same difficulty when the appellant was answering questions put by defence counsel [405].

Ground 1: the verdict of guilty in relation to count 1

255 As we have mentioned, the trial judge convicted the appellant on count 1 in relation to GN and acquitted the appellant on counts 2 and 3 in relation to GN.

256 Her Honour's reasons for her conclusion that she was satisfied beyond reasonable doubt that the appellant was guilty of count 1 were as follows [409] ‑ [419]:

[GN] appeared to be giving his evidence honestly and he was willing to make concessions against his own interest. For example he readily accepted his troubles at school, and that it was his idea to go and live with the accused in the country town in 1987. He also candidly admitted his past drug use and his criminal record.

I can well understand and I accept that [GN] remembers the occasion the subject of counts 1 and 2 for a number of reasons. First it was around his birthday, secondly it was the first time he had drunk alcohol, and thirdly he can recall what he had done on the day, namely visiting a surf club with the accused.

The accused confirmed the opportunity for counts 1 and 2 when he admitted in cross examination that there was an occasion he had gone to the surf club, just him and [GN]. While the accused's evidence was that this was in 1984, and not 1982 as set out in the indictment, the State does not have to prove precisely when this offence was committed, or the precise age of the complainant at the time.

I also accept [GN's] evidence that before counts 1 and 2 the accused had cuddled and kissed him. While this is not something which he raised until just before the trial, I accept the explanations which [GN] gave, as I have set out in [113]. I had a number of problems with the accused's denials of the kissing and cuddling. For the reasons I have already discussed when discussing the accused's credibility, I do not believe his denials.

The accused's own admission of having a sexual interest in young boys at the time and the evidence of the prior convictions, which establishes not only that he had that sexual interest but also was prepared to act upon it, establishes that the accused is the type of person who is likely to have committed the acts in counts 1 and 2. This is particularly the case given the facts of the accused's prior convictions concerning A. For this reason and the other reasons I have already discussed when discussing the accused's credibility, I do not believe his claim that he had no sexual interest in [GN]. I do not believe the accused's evidence that despite having a sexual interest in young boys, he did not act on that until 2016 and 2017. I do not believe the accused's denials in relation to counts 1 and 2.

I must still scrutinise [GN's] evidence with special care, and there are a number of factors I must consider.

The first is the fact that [GN] made no immediate complaint about counts 1 and 2. This does not indicate his evidence is false or that he is not telling the truth about what happened. I found [GN's] explanations as to why he made no complaint at the time of counts 1 and 2, that he was confused, scared, and trying to rationalise it, both believable and credible, particularly having regard to his young age at the time.

However, [GN] had the opportunity to make a complaint about both counts 1 and 2 when he spoke to police about the 1989 charge, but he did not. He also had the opportunity to say something about the accused's conduct the subject of counts 1 and 2 during the trial of the 1989 charge. I find that he did say something about count 1 at that trial, but did not say anything about count 2.

During the trial of the 1989 charge, [GN] gave evidence that the accused had touched him before, and that is consistent with count 1. I accept [GN's] evidence in this trial and find that here he was talking about the act the subject of count 1. I do not consider that the difference in the ages he gave - 10 or 11 in this trial as opposed to 12 in the 1989 trial - causes problems with his credibility or reliability.

Notwithstanding the opportunity for error in recalling, over 30 years later, some of the details of count 1, [GN] has been consistent in his account of the act the subject of this charge, and I find that [GN's] evidence is credible and reliable.

I have scrutinised [GN's] evidence with great care. Having done so, and even after taking into account the forensic disadvantages for the accused because of the delay and paying heed to the Longman warning, I am satisfied as to the truth, accuracy and reliability of [GN's] evidence about count 1.

257 The trial judge gave the following reasons for acquitting the appellant on counts 2 and 3 [420] ‑ [433]:

In relation to count 2, I found [GN's] evidence about the accused engaging in fellatio was believable. His evidence included the sort of details a child of this age might remember in relation to an incident which he said was for him at the time, a traumatic one. The fellatio performed by the accused on A, the subject of the prior convictions also makes it more likely that the accused performed fellatio on [GN]. Nonetheless I need to scrutinise [GN's] evidence with special care and in the particular circumstances of this charge, there are a number of reasons why I have a reasonable doubt that the fellatio occurred.

First, I am troubled by the inconsistencies between [GN's] evidence in this trial and the evidence he gave, on oath, at the trial of the 1989 charge, when the fact that the accused had given him a 'head job' was expressly put to him and denied. While he was still a child during the 1989 trial, he was 17 years old and as he admitted in his evidence in this trial, he appreciated then the importance of telling the truth. I am not satisfied that embarrassment had anything to do with his denial. Embarrassment did not prevent [GN] from telling the court (including his father who was present) about other things which he said the accused had done to him, both the conduct the subject of the 1989 charge and the previous incident when the accused had played with his penis which I accept and have found is the conduct the subject of count 1.

When it was put to [GN] in cross-examination in this trial that he had lied in court about the head job during the trial of the 1989 charge, [GN] did not admit that he had lied (ts 193). Logically, however, either [GN] lied on oath during the trial of the 1989 charge, or he lied on oath in this trial. Either way, this reflects poorly on the credibility and reliability of [GN] in relation to count 2.

This is a discrepancy or inconsistency of such a character that it causes me to wonder whether I can safely rely on [GN's] account in this trial as to the happening of count 2.

Having scrutinised his evidence with special care, I consider there are significant issues with the credibility and reliability of [GN's] evidence. Accordingly, I cannot be satisfied beyond reasonable doubt that the accused did perform fellatio on [GN] as alleged and I find the accused not guilty of count 2.

As to count 3, there are a number of inconsistencies, both internal and external, in [GN's] evidence and also another lie, which means that, once again, I am unable to find his evidence to be truthful, accurate and reliable.

First, I have concerns about the fact that [GN] did not make any complaint about the conduct of the accused the subject of count 3 at the time he spoke to the police regarding the 1989 charge, particularly when the act the subject of count 3 was very similar behaviour, and was said to have occurred reasonably close in time to the 1989 charge. While conscious of the direction I have given myself pursuant to s 36BD of the Evidence Act, as a matter of logic, common sense and experience, if the conduct of the accused in count 3 was the last thing to happen before [GN] left the country town, one would expect that this would be uppermost in [GN]'s mind when he made his statement to the police. Yet he did not mention it.

Secondly, like count 2, a significant matter which affects [GN's] credibility and reliability concerning count 3 is the fact that [GN] did not mention the conduct of the accused the subject of count 3 during his evidence on oath at the trial of the 1989 charge. There is no good explanation as to why [GN] failed to mention the incident the subject of count 3 at that trial. It cannot have been due to embarrassment, since [GN] gave evidence about the conduct the subject of the 1989 charge, as well as the conduct the subject of count 1, and in each case the type of touching was the same as now alleged in count 3.

Thirdly, as I have set out in [117] above, [GN] admitted during cross examination that he had lied on oath at the trial of the 1989 charge, when he said that he left the country town immediately after the incident the subject of the 1989 charge. I am unable to accept his explanation that he lied on oath because he was traumatised. For the same reasons I have already discussed in relation to count 2 in [421] above, the evidence he gave on oath in the trial of the 1989 charge cannot be explained or justified by either [GN's] youth at the time or being traumatised. The fact that he lied on oath is serious and a significant matter of such a character that it affects [GN's] credibility about count 3.

The complaints that [GN] made to both S and his father do not, in my view, support [GN's] credibility or reliability. With the complaint evidence of S and [GN's] father, as well as S's evidence about [GN's] distress, the question arises whether this evidence relates to the 1989 charge, or count 3 in the present indictment, or both. The State submitted that the complaint evidence relates to both incidents. However, the same complaint evidence was relied upon in the trial of the 1989 charge, with the sequence of events being as I have set out in [56] and [57] above.

I accept the defence submission that in the trial of the 1989 charge the State case was run on the basis that [GN] made a complaint to S and [GN]'s father about something that had happened, and within the week he went home. That is exactly the same position which the State has taken in this trial in relation to count 3. S agreed that he was giving evidence about the same thing he gave evidence about in 1989. [GN's] father spoke to his son only on the one occasion after which his son came home for good. In the circumstances there are, in my view, real difficulties with the State's reliance upon the complaint and distress evidence as relating to both the 1989 charge and count 3 in the present indictment.

The concerns which I have about the credibility and reliability of [GN's] evidence about count 3 increase when I take into account:

(a) his uncertainty, later in his evidence, as to which of the incidents in the house in the country town occurred first, as I have set out in [118];

(b) the evidence which [GN] gave to the effect that the two incidents were very similar and 'some of them have meshed', as I have reproduced in [115] above.

While [GN] was certain in his evidence that there were two separate incidents of touching while he was living with the accused in the country town, the matters I have identified raise, in my mind, a reasonable doubt as to whether the touching which [GN] described the subject of count 3 actually occurred.

Having scrutinised [GN's] evidence with special care, I cannot be satisfied beyond reasonable doubt that his evidence about count 3 is truthful, accurate and reliable. I cannot, therefore, be satisfied beyond reasonable doubt that the accused is guilty of count 3.

258 Her Honour then revisited her findings and conclusion in relation to count 1 having regard to her findings in relation to counts 2 and 3, as follows [435] ‑ [436]:

Finally, given my findings in relation to counts 2 and 3, and the issues relating to [GN's] evidence which I have outlined relevant to those two charges, I have taken another look at count 1 and whether the problems with the credibility and reliability of [GN's] evidence also affects the truthfulness, accuracy and reliability of his evidence concerning count 1 - particularly as counts 1 and 2 arise out of the same incident. As I have set out in [410], I accept [GN's] evidence about the occasion of counts 1 and 2. Two different types of conduct are, however, alleged in relation to each count. In my view, the same credibility issues about count 2 do not arise in relation to count 1. I do not consider it to be inconsistent to accept [GN's] evidence that the accused touched his penis on that occasion, while having a reasonable doubt that the accused went further and performed an arguably more serious act of fellatio.

Having scrutinised [GN's] evidence about count 1 again, I am satisfied beyond reasonable doubt that count 1 did occur as he described it. His evidence was believable and there are not the same significant discrepancies in and difficulties with his evidence about count 1 as exist in relation to counts 2 and 3. I am satisfied beyond reasonable doubt that [GN's] evidence about count 1 was truthful accurate and reliable. I find that the accused did touch [GN's] penis.

259 The appellant has not directly challenged the trial judge's reasons for finding the appellant guilty on count 1. Also, the appellant has not submitted that there is any relevant inconsistency between her Honour's reasons for convicting on count 1 and her Honour's reasons for acquitting on counts 2 and 3.

260 The appellant argues that, on the basis of other aspects of the evidence, the trial judge must have had a reasonable doubt as to his guilt on count 1.

261 First, the appellant asserts that, on the basis of his evidence, GN never stayed overnight at his house in Claremont. The sole basis for that assertion is the appellant's evidence at trial. However, her Honour rejected the appellant's evidence in relation to critical issues. Accordingly, the appellant's assertion based on his own evidence is insufficient to impugn the verdict of guilty on count 1.

262 In any event, the appellant acknowledged in evidence that he had been alone with GN on occasions on and after GN was aged 10. That period appears to have included the time when count 1 was allegedly committed. The appellant's argument that GN's father did not believe that GN had ever stayed overnight at the appellant's house in Claremont cannot be accepted. GN's father had been told by his wife about interaction between GN and the appellant, but the father had no direct knowledge of any such interaction. What the father had been told by his wife was not in evidence.

263 Secondly, the appellant's assertion that the 'pub' which GN identified as the source of the alcohol did not exist depends upon acceptance of the appellant's own evidence. However, her Honour was unwilling to accept the appellant's evidence on any critical issue. In any event, any error by GN as to the location of the bottle shop from which alcohol was purchased was not a fact of particular significance.

264 Thirdly, the appellant's assertion that he was 'not in the habit of drinking' when he was aged 18 to 20 depends upon the cogency and reliability of his evidence. As we have mentioned, her Honour concluded that the appellant's account on critical issues was unbelievable and unreliable. In any event, the relevant issue was whether the appellant gave alcohol to GN (when GN was aged 10 to 12), shortly before the offending, and not the appellant's drinking habits.

265 Fourthly, the appellant's assertion in relation to GN's failure to complain earlier than he did was dealt with by her Honour as follows [415] ‑ [416]:

[GN] made no immediate complaint about counts 1 and 2. This does not indicate his evidence is false or that he is not telling the truth about what happened. I found [GN's] explanations as to why he made no complaint at the time of counts 1 and 2, that he was confused, scared, and trying to rationalise it, both believable and credible, particularly having regard to his young age at the time.

However, [GN] had the opportunity to make a complaint about both counts 1 and 2 when he spoke to police about the 1989 charge, but he did not. He also had the opportunity to say something about the accused's conduct the subject of counts 1 and 2 during the trial of the 1989 charge. I find that he did say something about count 1 at that trial, but did not say anything about count 2.

266 Her Honour's reasoning in that passage is persuasive and does not reveal any error.

267 We note, in particular, her Honour's finding that the circumstances the subject of count 1 were referred to by GN in evidence during the 1989 trial, even though they were not the subject of a charge at that trial [417].

268 Fifthly, the appellant's assertion that GN's evidence about the activities at the beach at the time of GN's birthday was false because those activities would not have occurred during winter (GN's birthday being 16 June), is undermined by the following:

(a) GN gave evidence that he and the appellant went for a paddle on the surf club's boards during the afternoon. He did not give any evidence of any interaction with others at the surf club on that occasion.

(b) GN said that he and the appellant wore wetsuits.

269 In any event, the circumstances of significance were those which commenced with the purchase of the alcohol on the way home.

270 None of the appellant's arguments cast any material doubt on any of the trial judge's findings of fact which underpinned her conclusions in relation to the appellant's guilt on count 1.

271 As we note at [322] ‑ [324] below, the appellant has not established that the verdict of guilty on which the conviction for count 1 is based is unreasonable or cannot be supported having regard to the evidence.

Ground 1: the verdicts of guilty in relation to counts 4, 5, 6 and 7

272 As we have mentioned, the trial judge convicted the appellant on counts 4, 5, 6 and 7 in relation to JP.

273 Her Honour found that JP was an impressive witness who was telling the truth. In particular, her Honour found that JP's evidence concerning counts 4, 5, 6 and 7, as well as the other conduct of the appellant (the thigh touching, the skinfold incident, the sexual talk and the squash court incident) was compelling and believable [438].

274 The trial judge gave these reasons for her satisfaction beyond reasonable doubt that the appellant was guilty of counts 4, 5, 6 and 7 [442] ‑ [462]:

The submission on behalf of the accused was that [JP's] evidence should not be accepted, particular given the details in his evidence which [JP] did not previously give to the police or prosecutors, I have set out in [179] ‑ [181] and [185].

In relation to count 4, I have summarised the inconsistencies in [179]. In closing submissions, counsel for the accused has relied, in particular, on [JP's] failure to mention before that he and the accused stroked each other's penises, and the failure to mention what measurements were taken. This does not, in my view, indicate that [JP's] evidence is false or that he is not telling the truth about what happened. These are not inconsistences which make me doubt [JP's] account of the specific act the subject of this charge. The stroking of each other's penises and the evidence of the actual measurements are not material or essential facts, and as a matter of common sense and experience I do not consider these would be matters that [JP] would necessarily think were important when talking to the police.

On the essential facts required to establish the elements of count 4, [JP] has always consistently given evidence of the accused masturbating in his presence in the context of the measuring [incident]. Indeed when cross examined about what he had told police, the whole of [JP's] description in his police statement was read out (ts 717 ‑ 718). In my view [JP's] evidence of the measuring incident was consistent, in all material particulars, with his evidence at trial. [JP's] evidence was not shaken in cross-examination and there was no sign of evasiveness or uncertainty in his evidence about the elements of this incident.

In relation to count 5, [JP] readily conceded that he had become confused about whether or not [CT] was present. This and the other inconsistencies which I have set out in [180], even when combined, are not such as to cause in my mind any reasonable doubt that this incident occurred as [JP] said it did. I found [JP's] evidence about count 5 to be inherently credible and reliable.

For both counts 4 and 5 there was evidence of opportunity. As the accused himself admitted, there were many occasions when he was alone with [JP]. On [PT's] evidence, there were many Saturdays when she was not home - she was at work, rather than playing softball as [JP] thought, but this is a detail that I would not expect to be a matter of importance to a 13 or 14 year old boy.

In relation to count 6, the farm incident, in respect of opportunity, there is support for [JP's] evidence that he was there in the school holidays from the evidence of [PT]. Counsel for the accused has, however, pointed to [PT's] evidence that her brother, [JP's] father, did not drive, as support for the accused's evidence and submitted that I therefore cannot accept [JP's] evidence that this occurred in [JP's] father's car. However, [PT] did not accompany the accused and [JP]. [JP's] evidence of his father driving, and how he hid the magazine under the driver's seat is in my view, believable and I accept it.

Counsel for the accused submitted that hiding it under the seat of the car was an illogical place, and logically it would be easier for a grown man to bring pornography if he is going to use that in relation to a child. However, [JP']s evidence was that he had found the magazine and told the accused about it, and the accused asked him to bring it. It is logical that [JP] brought the magazine and hid it somewhere his father was unlikely to look (and as a matter of common sense and experience, looking under the driver's seat is not a place one generally looks unless something is dropped, for example, down the side of the seat).

In closing submissions much was made of [JP's] evidence that the accused called out the name of the girl in the magazine. That detail was, in my view compelling and a detail which I believe actually happened during the course of this incident. Counsel for the accused submitted that calling out the name of the girl 'flies in the face' of the accused having a sexual interest in boys. However, that submission in turn flies in the face of the accused's evidence that he had normal sexual relationships with his girlfriends and wife.

Similarly in relation to count 7, [JP's] evidence about asking why the man in the photograph had red testicles was inherently credible and I believe it.

Counsel for the accused submitted that there was an element of 'ridiculousness' about count 7, because of the fact that the same magazine was brought to the grandparents' house, and there was also an inconsistency as to whether or not [JP] brought it there or the accused directed him to bring it there. That is not, in my view, an inconsistency which affects my assessment of [JP's] credibility.

The descriptions which [JP] gave of what the accused did in each of the charges were clearly from a person who actually experienced each of those incidents. He did not seek to embellish or exaggerate, but gave his evidence as best as he was able to remember.

The evidence of the prior convictions and the accused's own admission of having a sexual interest in young boys at the time, together with my finding of guilt on count 1, establishes that the accused is the type of person who is likely to have committed all of the acts the subject of counts 4 to 7. I do not believe the accused's evidence that, despite having a sexual interest in young boys, he did not act on that until 2016 and 2017.

It was suggested by counsel for the accused that as a matter of common sense there was no truth to the allegations made by [JP] against the accused given that the closeness of their relationship from 2010 onwards, and it is impossible to reconcile their later friendship (including the babysitting of H) with these allegations and the delay in [JP's] complaint. I do not agree. The accused was [JP's] uncle, and a father figure. It is clear that apart from the sexual abuse, they had a close relationship for many years. It is understandable that in these circumstances, [JP] would hesitate to make a complaint. [JP's] explanations, as I have set out in [194], are believable and compelling, and I accept them.

There are two further matters I need to address, arising out of the cross examination of [JP] about the text messages he had with his cousin [CT].

First, there was a suggestion that [JP] was not a witness of truth because of his reaction of disbelief to a text which [CT] had sent him, and his evidence that he thought someone was at that stage writing [CT's] texts for her or at least influencing what she wrote. This arose because after [CT] told [JP] that she had been abused by her father, she changed her story and said it was not her father. I can well understand why [JP] sent a cynical response to this change in [CT's] position.

Secondly, there was a suggestion during the cross examination of [JP] relating to the text messages that there had been some collusion between him and [CT]. During closing submissions the suggestion was made that I could infer that [JP] and [CT] had discussed their allegations with each other. After discussion with counsel for the accused, however, the suggestion of collusion was withdrawn, although the accused maintained that [JP] had a motive to lie.

I have considered the possibility that [JP] and [CT] 'put their heads together' or discussed their allegations with each other which might, of course, impact on the assessment of their credibility and reliability, either on the basis of collusion, or upon the basis of having a motive to lie (in relation to collusion see Huggins v The State of Western Australia [2018] WASCA 61). It is true that during the text messages [JP] told [CT] he would support her and go with her to the police when she was ready. However that does not, in my view, show any collusion.

From the text messages and the evidence I heard from [JP] and [CT], in my view it was not reasonably possible that [JP] and [CT] had either deliberately colluded or been influenced by each other's memories. There is no similarity in their accounts given in this trial. In my view it could not be said that [JP] and [CT's] allegations have been the result of them either deliberately or subconsciously influencing each other's accounts, or deliberately lying.

I do not accept that [JP's] texts are anything sinister or demonstrate anything other than a concerned older cousin saying he would support [CT], if and when she needed it.

I have scrutinised [JP's] evidence with great care. Having done so, and even after taking into account the forensic disadvantages for the accused because of the delay and paying heed to the Longman warning, I do not believe the accused's denials and I am satisfied beyond reasonable doubt as to the truth, accuracy and reliability of [JP's] evidence about each of counts 4 to 7.

I am satisfied beyond reasonable doubt that the accused is guilty of each of counts 4 to 7 inclusive.

275 Her Honour recorded that, for the reasons she had previously given, both generally and in relation to counts 1, 2 and 3, her Honour did not believe the appellant's denials in relation to the sexual conduct about which JP had given evidence [440].

276 The appellant asserts, on appeal, that the evidence of JP was attended by 'numerous and serious inconsistencies' and that JP's account in his evidence was 'demonstrably false'.

277 The appellant complained in relation to count 4 (which was referred to at trial as the 'measuring incident') that it would have been impossible for CT, when she was a toddler, to have reached the appellant's penis while she was standing.

278 According to the appellant, CT would have been aged no more than 15 months when the incident the subject of count 4 happened. It is implicit in the appellant's contention that:

(a) JP claimed that the incident occurred at the Karrinyup house;

(c) the appellant and his family moved from the Karrinyup house to the Gwelup house in November 1999.

279 It is true that JP alleged that the incident occurred at the Karrinyup house. It is also true that CT was born in July 1998. However, there was evidence from PT, who the trial judge found was an honest and reliable witness, that the appellant and his family moved from the Karrinyup house to the Gwelup house in the 2000 calendar year. PT said that CT's younger brother, MT, was born in November 1999 and had a nursery in the Karrinyup house. So, on the basis of PT's evidence, CT would have been aged at least 18 months when the appellant and his family moved from the Karrinyup house to the Gwelup house.

280 The appellant's evidence at trial was that the family moved from the Karrinyup house to the Gwelup house when MT was 'just a baby' (ts 891). As we have mentioned, her Honour made numerous adverse findings in relation to the appellant's honesty and reliability.

281 In any event, it is not inherently incredible that a toddler aged between 15 months and 21 months would be able to stand and walk and would be sufficiently tall to reach an object at the height of the groin of an adult male who was of about average height. The appellant said in evidence at the trial that he is six feet in height (ts 937).

282 The appellant also complained that JP's evidence that at material times PT was playing softball while JP was at home with the appellant was false in that PT gave evidence that she was often not at home because she was at work rather than playing softball. According to the appellant, PT's evidence supported the appellant's evidence that JP was a dishonest and unreliable witness.

283 The trial judge found that there was evidence of opportunity for the offending alleged in counts 4 and 5. Her Honour said [446]:

As the accused himself admitted, there were many occasions when he was alone with [JP]. On [PT's] evidence, there were many Saturdays when she was not at home - she was at work, rather than playing softball as [JP] thought, but this is a detail that I would not expect to be a matter of importance to a 13 or 14-year-old boy.

284 The critical point is that there were many occasions when, on JP's evidence and PT's evidence, PT was not at home and JP was alone with the appellant.

285 The appellant also complained that there was 'no prosecution evidence produced to support JP's story of a silver 4WD, nor was there evidence to verify the existence of the said "magazine"'.

286 JP described the appellant's vehicle as a 'silver hatchback'. He was unsure as to the vehicle's make or model (ts 657). JP mentioned the vehicle in the context of recreational driving in sand dunes. JP's evidence was to the effect that he would sit on the appellant's lap while JP was driving the vehicle, so that the appellant could continue to control the vehicle as necessary.

287 In any event, there was no evidence at the trial to the effect that anything of a sexual nature occurred during the trips in the 4WD vehicle. Defence counsel accepted the trial judge's comment that the 4WD driving incidents were not matters which needed to be addressed because of the absence of any evidence that anything of a sexual nature had occurred during the incidents (ts 1118).

288 The appellant also complained about JP's delay in making complaint and about alleged collusion between JP and CT. The trial judge dealt with these matters at [453] ‑ [460]. See the extract from her Honour's reasons which we have reproduced at [274] above. The appellant's submissions on appeal do not provide any reason to doubt the findings made by her Honour in relation to the delay in making complaint or the alleged collusion.

289 None of the appellant's arguments cast any material doubt on any of the trial judge's findings of fact which underpinned her conclusions in relation to the appellant's guilt on counts 4, 5, 6 and 7.

290 As we note at [322] ‑ [324] below, the appellant has not established that the verdicts of guilty on which the convictions for counts 4, 5, 6 and 7 are based were unreasonable or cannot be supported having regard to the evidence.

Ground 1: the verdicts of guilty in relation to counts 8 to 13 inclusive and 15 to 18 inclusive

291 As we have mentioned, the trial judge convicted the appellant on counts 8 to 13 inclusive and 15 to 18 inclusive in relation to CT and acquitted the appellant on count 14 in relation to CT.

292 Her Honour made findings in relation to CT's credibility and reliability, and reiterated her Honour's previous finding that she did not believe the appellant's denials in relation to any of counts 8 to 18, as follows [464] ‑ [472]:

I found that [CT] was generally a credible witness who appeared to be truthfully describing incidents which had actually happened to her. As the State pointed out, there were many times during the course of her evidence where [CT] appeared to have great difficulty in giving it, however, her demeanour is not necessarily the best guide to her accuracy and reliability.

Counsel for the defence submitted that [CT] was not a credible and reliable witness due mainly to the inconsistencies in her evidence, her admitted lies in the text messages and the fact that she had lied to psychologists and psychiatrists who were treating her in 2016. The defence specifically relied on the evidence that [CT] gave in the course of cross‑examination which I reproduced in [272]. These matters, it was submitted, cast considered doubt on the reliability of [CT's] evidence both that these things happened and that it was her father who did these things to her.

I need to remember that these inconsistencies all relate to cross‑examination on a prior out of court statement. What [CT] said in text messages and emails to doctors, is not evidence of the facts in those text messages and emails. It is only relevant to an assessment of her credibility.

I should note that what the defence has termed a lie is really only a partial lie. [CT] has consistently said all along that she was sexually abused. What she lied about was whether her father had sexually abused her.

[CT] gave an explanation as to why she lied about who had abused her and also why she had not made any earlier complaint. It was to protect her family. [CT's] evidence about her reasons for both saying what she did and her delay in making a complaint to the police - protecting her family - is both inherently credible and plausible, and I accept it. Of course by mid July 2017 [CT] had witnessed her father sexually offending against [AB]. At about this time her mother separated from her father. The family unit was damaged, there was nothing further to protect, and it was shortly after this, in August 2017, that [CT] went to the police to make her complaint.

It is important to note that while there were some inconsistencies in her evidence and what she had earlier said to the police (which I will discuss when looking at each charge), [CT] did not make any prior inconsistent statement to the police about the accused's offending, or say something completely contrary on oath to a court (such as in the case of [GN]). The previous out of court statements are only admitted for the purpose of assessment of [CT's] credibility.

On the issue of identity, I am satisfied beyond reasonable doubt that it is the accused who is the alleged offender and not somebody else (such as the 'big boy from the neighbourhood'). Given the description of all of these incidents given by [CT], most of which happened inside her home and many of which occurred at her shower time and bedtime, the offender could only have been the accused. There was no other adult male living in the house. There is no other adult male who supervised bath time. There is, in fact, no evidence about the 'big boy from the neighbourhood'. In her evidence at trial [CT] clearly identified the person who did these things to her as her father.

For the reasons I have previously discussed in relation to the accused's credibility, I do not believe the accused's denials in relation to any of counts 8 to 18.

It is still necessary to scrutinise [CT's] evidence with special care in relation to each charge, to see whether what she said happened did in fact happen, taking into account any evidence from the accused which I am prepared to accept.

293 The trial judge gave these reasons for her satisfaction beyond reasonable doubt that the appellant was guilty of counts 8 to 13 and 15 to 18 and her failure to be satisfied beyond reasonable doubt of his guilt on count 14 [473] ‑ [512]:

Count 8

In relation to count 8, the showerhead incident, I believe [CT's] evidence and I am satisfied beyond reasonable doubt as to the truthfulness, accuracy and reliability of [CT's] evidence of what happened to her. She was clearly describing something she had experienced, including being digitally penetrated by her father. In observing her demeanour she was obviously embarrassed and a little upset when describing this.

There is support for [CT's] account about the existence of the detachable showerhead from [PT's] evidence about the change in showerhead in the ensuite bathroom, and the fact that the detachable showerhead was used to make it easier to wash the children's hair. For the reasons I have given when discussing the accused's credibility, I prefer [PT's] evidence about when the detachable showerhead was in place. I am unable to accept the accused's evidence that he changed the showerhead only a matter of months before the family moved house and I am also unable to accept that timing wise count 8 was not possible. It was possible, and I am satisfied beyond reasonable doubt that count 8 happened as [CT] described.

There was only one inconsistency in [CT's] evidence about count 8, and that relates only to her age; on an earlier occasion she had said she was 7 years old, while in her evidence at trial she said she was 6 years old. I do not consider this to be an inconsistency which casts any doubt on [CT's] credibility and reliability about the specific act the subject of this count. There was no inconsistency in relation to what she said the accused had done. As she said in her evidence on oath 'I clearly remember what happened'. I found [CT's] evidence about this and the showerhead incident to be truthful, accurate and reliable.

Having scrutinised [CT's] evidence with great care, and after taking into account the forensic disadvantages for the accused because of the delay and paying heed to the Longman warning, I am satisfied beyond reasonable doubt as to the truth, accuracy and reliability of [CT's] evidence about count 8. Accordingly I find the accused guilty of count 8.

Counts 9, 10 and 11

In relation to counts 9, 10 and 11, the conditioner incident and the subsequent lip gloss incident, once again I am satisfied beyond reasonable doubt as to the truthfulness, accuracy and reliability of [CT's] evidence that the accused did the specific act the subject of each of these charges.

While there was an inconsistency between her evidence at trial and her previous out of court statement about the age she was at the time, this is not something which leads me to conclude that [CT's] evidence of the specific acts which she alleged the accused had done is neither credible nor reliable. In addition, it is the evidence on oath given by [CT] which I am to proceed upon, and not what she has said in any earlier out of court statement.

As I have already observed, in cross examination [CT] did not deviate in her evidence about what the accused had done. Her evidence about how her vagina was stinging after the digital penetration in the conditioner incident is inherently credible. Another mark of [CT's] credibility is how she spoke honestly about how she was masturbating with the stick of lip gloss. As to what happened subsequently the subject of counts 10 and 11, I am satisfied beyond reasonable doubt that she was describing things she had experienced at the hands of her father, the accused.

My finding of guilt in count 8, another occasion where the accused digitally penetrated [CT], increases the likelihood that the accused committed the specific act the subject of count 9.

For the reasons I have discussed at [396] above, I do not accept any suggestion from the accused that it was impossible for the accused to commit counts 10 and 11 because [CT] was not sleeping in a single bed at the time, and the accused was too tall and would not have fit on the bed. The evidence from the accused about [CT] not sleeping in a single bed until she was 7 or 8 years old is, as I have found, inherently incredible and I reject it.

There is an issue about whether there was a sexual penetration in count 10. Having accepted [CT's] evidence and having regard to the law that any penetration of the outer lips of the vagina is sufficient to establish a sexual penetration, I am satisfied beyond reasonable doubt that there was a sexual penetration in count 10.

My finding of guilt in counts 8 and 9, two other occasions where the accused digitally penetrated [CT], increases the likelihood that the accused committed the specific act the subject of count 10.

I have scrutinised [CT's] evidence with great care. I have taken into account the forensic disadvantages for the accused because of the delay and the other matters I have directed myself pursuant to the Longman warning. Having done so, I am satisfied beyond reasonable doubt as to the truth, accuracy and reliability of [CT's] evidence about counts 9, 10 and 11. I find the accused guilty of these counts.

Count 12

Moving on to count 12, the boy dance incident, the only inconsistency in relation to [CT's] evidence about this incident is her age at the time. She previously said she 7 years old at the time, while in her evidence on oath she said she was 4 or 5 years old. In my view that inconsistency does not indicate that [CT's] evidence is false or that she is not telling the truth about what happened. There is, otherwise, no inconsistency between any out of court statement and her evidence at trial.

[CT] was clearly describing something she had experienced, and that experience of both having her father's penis in her mouth, and swallowing what she thought was urine at the time, was not something which she has made up or is likely to forget.

In discussing this incident during his evidence, the accused suggested he would never have done what [CT] said he did, in splashing urine back up onto her vagina, because she might end up with another urinary tract infection. However, when I heard the evidence from the accused about [CT's] history of urinary tract infections, it became apparent to me that this had not been an issue for [CT] from the ages of 3½ to 4 years old. By that time, as the accused himself said, [CT's] kidneys and bladder had returned to normal, there was no surgery required and no follow-up required. However, when I sought to confirm this at the time, as I have set out in [295], the accused suggested that [CT's] kidneys and bladder were still an issue until she reached puberty. I do not believe it. As a matter of logic and common sense, if there was any issue about [CT's] kidney or bladder until puberty, her parents would have made that clear to her. [CT] was not aware of any such issue when this was put to her in cross examination. Accordingly, I do not believe the accused's evidence that he would not have splashed urine onto [CT] as she described because of any ongoing issues with urinary tract infections or her kidney condition.

Having scrutinised [CT's] evidence with great care, and after taking into account the forensic disadvantages for the accused because of the delay and paying heed to the Longman warning, I do not believe the accused's denials and I am satisfied beyond reasonable doubt as to the truth, accuracy and reliability of [CT's] evidence about count 12. I find the accused guilty of count 12.

Count 13

As to count 13, the toilet stool incident, [CT's] evidence as to the specific act by the accused the subject of this count, namely introducing his penis into her mouth, was unshaken during cross-examination.

Much was made in cross-examination about the type of the stool which had been used by [CT's] brother. In my view, nothing turns on the type of stool and thus there has been no forensic disadvantage for the accused here. Whatever type of stool it was, [CT] gave evidence that it was in the back toilet and she saw it at the time of count 13. As a matter of common sense and experience, given [CT's] age at the time, 5, and the 16 months age difference between [CT] and her brother, it is likely that he would still be using a stool in order to get up to use or sit on the toilet.

[CT's] evidence of how, when the accused's penis was in her mouth, she could not breathe and felt like she was going to be sick is believable and credible. I am once again satisfied beyond reasonable doubt that she was describing things she had experienced at the hands of her father, the accused.

My finding of guilt in count 12, another occasion where the accused introduced his penis into [CT's] mouth, increases the likelihood that the accused committed the specific act the subject of count 13.

I have taken into account the forensic disadvantages for the accused because of the delay and I have also applied the Longman warning. Having scrutinised [CT's] evidence with great care, I am satisfied beyond reasonable doubt that [CT's] evidence about the count 13 was truthful, accurate and reliable. I find the accused guilty of count 13.

Count 14

In relation to count 14, the guinea pig incident, while [CT] described this incident as traumatic and a constant memory for her, when I look at her evidence with special care as I am required to do, there are some matters which give rise to a reasonable doubt in my mind as to whether this incident in fact occurred.

The main reason for my reasonable doubt arises from [CT's] evidence that she was shown by the accused how to get the penises of the guinea pigs out, and her evidence in cross-examination when asked to describe a guinea pig's penis, together with saying that she could not remember whether a guinea pig's penis had two prongs. The accused has produced in evidence a photograph of a penis of a guinea pig, and an extract from a text book which describes that part of the male guinea pig's anatomy. The penis does have two distinct prongs. Had [CT] in fact seen the penis of a guinea pig, this is not something she was likely to forget.

There are other reasons why, in relation to this particular count, I am unable to accept [CT's] evidence:

(a) First, [PT's] evidence supports the accused's evidence that the family never kept guinea pigs. It is inherently unlikely that any guinea pigs from school would be drowned as [CT] described.

(b) Secondly, I am not satisfied from all of the evidence I have heard in this case that the accused drowned either hermit crabs or guinea pigs. There is no evidence of any other act of animal cruelty by the accused.

(c) Thirdly, there were some internal inconsistencies in [CT's] evidence about the number of guinea pigs which she said were held up to her vagina and what she could see (as to which, see [263] above).

Accordingly, I am not satisfied beyond reasonable doubt that the accused committed count 14, and I find him not guilty.

Counts 15 and 16

In relation to the bedroom incident, counts 15 and 16, it was apparent to me that that [CT] found difficulty giving evidence about this and I noticed her become particularly upset in describing what occurred. The evidence she gave, in particular her description of how the accused penetrated her vagina with his penis, was in my view inherently credible. It was the first time the accused had penetrated her with his penis; something she would not forget.

For counts 15 to 16, like counts 10 and 11, the suggestion was made that it would have been impossible for the accused to have committed these acts because of the size of [CT's] bed. For the reasons I have already given in relation to counts 10 and 11, I do not believe the accused's evidence that [CT] was in a three quarter sized bed until she was 7 or 8 at the time of the family's move to their new home.

Another submission made by counsel for the accused is that it was unlikely that [CT] was using nail polish at the age she said she was at the time of this incident. I am unable to agree. If she had a stick of lip gloss at the time of counts 10 and 11, when she was 7 years old, then as a matter of logic, common sense and experience, it is likely that she also had nail polish, including nail polish which is suitable for a child, at the time of these counts, when she was also 7 years old.

The inconsistencies between [CT's] evidence at trial and her statement to the police, as I have set out in [264] do not, in my assessment, detract from [CT's] general credibility or the reliability of her account of this incident.

My finding of guilt in counts 8, 9 and 10, other occasions where the accused digitally penetrated [CT], increases the likelihood that the accused committed the specific act the subject of count 15. I do not believe the accused's denials in relation to either count 15 or count 16.

After taking into account the forensic disadvantages for the accused because of the delay and applying the Longman warning, and scrutinizing [CT's] evidence with special care I am satisfied beyond reasonable doubt as to the truth, accuracy and reliability of [CT's] evidence about each of counts 15 and 16. I therefore find the accused guilty of these counts.

Count 17

I am also satisfied beyond reasonable doubt, and find, that [CT's] evidence about count 17, the running shower incident, was truthful, accurate and reliable. As I have noted, [CT] maintained her evidence about this during her cross-examination, explaining that in this incident, the accused was showering with her.

My finding of guilt in counts 12 and 13, two other occasions where the accused introduced his penis into [CT's] mouth, increases the likelihood that the accused committed the specific act the subject of count 17.

I do not believe the accused's denial and, notwithstanding the delay and forensic disadvantages to the accused, applying the Longman warning, I am satisfied beyond reasonable doubt as to the truth, accuracy and reliability of [CT's] evidence about count 17. I therefore find the accused guilty of this count.

Count 18

Finally as to the toothbrush incident, count 18, having heard all of the evidence, contrary to the submissions on behalf of the accused, I find that there is no difficulty timing wise in relation to the heat lamp. The submissions made on behalf of the accused depend on my accepting his evidence about when the heat lamp was installed, and I am unable to accept his evidence.

[CT] was consistent in her evidence about the existence of the heat lamp and the incident generally. She did say she was in pre-primary, which would place the incident occurring during 2004, the year she turned 6. [PT] gave evidence that the heat lamp was installed when the kids were little, in probably 2004, maybe 2003. For the reasons I have already given, where there is a conflict between the evidence of [PT] and the evidence of the accused, I prefer [PT's] evidence. Accordingly there is support for [CT's] evidence about the existence of the heat lamp at the time of count 18.

While I am conscious of the forensic disadvantage in relation to count 18 in relation to proving or disproving the existence of the electric toothbrush, I do not believe the accused's denial of this incident. I am satisfied beyond reasonable doubt of the truth, accuracy and reliability of [CT's] evidence about this incident.

My finding of guilt in count 11, where the accused's conduct involved procuring [CT] to use a stick of lip gloss to masturbate herself increases the likelihood that the accused himself used an object, this time a toothbrush, to commit the specific act the subject of count 18.

Finally, I am satisfied beyond reasonable doubt that the placing of the toothbrush onto what she now knows to be her clitoris, constitutes a sexual penetration within the legal definition of that term.

I have scrutinised [CT's] evidence with great care. Having done so, and even after taking into account the forensic disadvantages for the accused because of the delay and paying heed to the Longman warning, I am satisfied beyond reasonable doubt as to the truth, accuracy and reliability of [CT]'s evidence about count 18. I find the accused guilty of this count.

294 The appellant asserts, on appeal, that her Honour must have had a reasonable doubt about the reliability and validity of CT's evidence and, consequently, that the verdicts of guilty in relation to the counts concerning CT should be set aside because they are unreasonable or cannot be supported.

295 The appellant complained that CT's identification of the appellant as the offender was the result of collusion or suggestion by others. As we have mentioned, her Honour dealt with the appellant's assertion of collusion between JP and CT at [453] ‑ [460]. See the extract from her Honour's reasons which we have reproduced at [274] above. As we have mentioned, the appellant's submissions on appeal do not provide any reason to doubt the findings made by her Honour in relation to the alleged collusion.

296 The appellant complained that CT had told lies, had not made a prompt complaint against the appellant and was not a credible witness.

297 As to CT's lies, her Honour said that CT's lies were 'really only a partial lie' in that CT had asserted consistently that she was abused sexually [467]. The relevant lie concerned the appellant being the perpetrator [467]. The truth, as found by her Honour, was that the appellant was in fact the perpetrator.

298 Her Honour accepted CT's explanation for the lie about the identity of the perpetrator (as distinct from whether the alleged sexual abuse had occurred). The explanation concerned the maintenance of cohesion in the family unit [468].

299 As to CT's delay in making complaint against the appellant, CT's delay must be evaluated in the context of two events which occurred on 26 July 2017, namely:

(a) CT, MT and a friend saw the appellant sexually abusing AB; and

(b) PT separated from the appellant.[621]

300 Her Honour observed that on and after 26 July 2017 there was, as regards the family unit, 'nothing further to protect' by CT continuing to conceal that the appellant had sexually abused her [468].

301 In August 2017, CT complained to the police [468].

302 Her Honour said that there were no prior inconsistent statements by CT to the police and no contrary evidence on oath from CT about the appellant being the perpetrator [469]. The sexual abuse occurred in a family or domestic setting [470]. At all material times, the appellant was the sole adult male living in the family home [470].

303 The trial judge was satisfied that CT was 'generally a credible witness who appeared to be truthfully describing incidents which had actually happened to her' [464]. Her Honour was satisfied beyond reasonable doubt that the appellant was the perpetrator of the sexual abuse suffered by CT and not someone else (such as the 'big boy from the neighbourhood') [470]. In her evidence at the trial, CT clearly identified the appellant as the perpetrator of the sexual abuse [470].

304 The appellant also complained that her Honour did not consider, in her reasons, text messages that had been exchanged between CT and JP. In particular, the appellant complained that CT did not disclose the identity of the perpetrator in her text messages and even made statements that might suggest she did not know the perpetrator's identity.

305 However, there were some text messages which, when read in context, suggested that the appellant was the perpetrator, but that she did not wish to reveal that fact. See, in particular, exhibit 8 on the page numbered 254.

306 In any event, her Honour acknowledged, in her reasons, that CT had told lies repeatedly as to the identity of the perpetrator. Her Honour accepted CT's explanation for telling those lies. There is no basis for suspecting that her Honour did not consider all of the text messages that had been exchanged between CT and JP. It was unnecessary, in the circumstances, for her Honour to reproduce all of the text messages in her reasons.

307 The appellant referred to CT's mental health issues, including her depression and long term eating disorder, and suggested that her mental health issues undermined CT's reliability as a witness.

308 However, there was no evidence at trial to the effect that any of CT's mental health conditions may have affected adversely her honesty or reliability in recollecting the events about which she gave evidence.

309 It is true that CT spoke to mental health professionals about 'flashbacks' she had experienced of the sexual abuse. However, her evidence did not indicate that CT was referring to other than actual memories which she had of the abuse. It appears that, in referring to 'flashbacks', CT was describing memories that were intrusive and vivid.

310 There is no basis in the evidence for suspecting that CT's reference to these 'flashbacks' indicated that she was recollecting false memories which had been implanted or created in some manner.

311 The appellant complained about CT's evidence to the effect that she did not know whether the appellant's penis was circumcised. The appellant asserted that CT must have known whether he was circumcised or not and her professed lack of knowledge on this issue indicated that she was dishonest or unreliable.

312 However, there was nothing in the evidence to indicate that, when the offending occurred, a child of CT's age should be able to distinguish between a circumcised and an uncircumcised penis. Also, there was nothing in the evidence to indicate that a child of that age should have a memory of that characteristic of a penis.

313 CT's inability to give evidence about whether the appellant's penis was circumcised or not does not, on any reasonable view of the evidence, adversely affect her honesty or reliability.

314 As we have mentioned, her Honour found the appellant not guilty of count 14.

315 It is convenient to repeat the trial judge's reasons in relation to count 14 [494] ‑ [497]:

In relation to count 14, the guinea pig incident, while [CT] described this incident as traumatic and a constant memory for her, when I look at her evidence with special care as I am required to do, there are some matters which give rise to a reasonable doubt in my mind as to whether this incident in fact occurred.

The main reason for my reasonable doubt arises from [CT's] evidence that she was shown by [the appellant] how to get the penises of the guinea pigs out, and her evidence in cross-examination when asked to describe a guinea pig's penis, together with saying that she could not remember whether a guinea pig's penis had two prongs. [The appellant] has produced in evidence a photograph of a penis of a guinea pig, and an extract from a text book which describes that part of the male guinea pig's anatomy. The penis does have two distinct prongs. Had [CT] in fact seen the penis of a guinea pig, this is not something she was likely to forget.

There are other reasons why, in relation to this particular count, I am unable to accept [CT's] evidence:

(a) First, [PT's] evidence supports [the appellant's] evidence that the family never kept guinea pigs. It is inherently unlikely that any guinea pigs from school would be drowned as [CT] described.

(b) Secondly, I am not satisfied from all of the evidence I have heard in this case that [the appellant] drowned either hermit crabs or guinea pigs. There is no evidence of any other act of animal cruelty by [the appellant].

(c) Thirdly, there were some internal inconsistencies in [CT's] evidence about the number of guinea pigs which she said were held up to her vagina and what she could see (as to which, see [263] above).

Accordingly, I am not satisfied beyond reasonable doubt that [the appellant] committed count 14, and I find him not guilty.

(a) her Honour was conscious of the need to evaluate CT's evidence with 'special care', having regard to the Longman warning which her Honour had mentioned earlier [494];

(b) her Honour enumerated the facts which gave rise to a reasonable doubt about the appellant's guilt on count 14 [495] ‑ [496];

(c) CT's failure to recall the distinctive two prongs on the penis of a guinea pig was the 'main reason' why her Honour had a reasonable doubt [495]; and

(d) there were also other factors which resulted in her Honour having a reasonable doubt 'in relation to this particular count' [496].

317 Count 14 is materially distinguishable from the other counts involving CT in that PT's evidence on surrounding facts and circumstances relating to the existence of the guinea pigs or the manner in which the hermit crabs were disposed of did not support CT's account. That discrepancy did not exist to any material extent in relation to PT's evidence concerning the other counts.

318 The appellant complained about the trial judge having accepted CT's evidence as to the existence within the Gwelup house of various items used in connection with some of the offending; for example, the electric toothbrush, nail polish and lip gloss. The appellant referred to his denial of the existence of these items and to the absence of any evidence from PT on this issue. However, the electric toothbrush, the nail polish and the lip gloss were items ordinarily found in a domestic setting. Her Honour was entitled to accept CT's evidence about them. As we have mentioned, her Honour made numerous adverse findings in relation to the appellant's honesty and reliability.

319 The appellant also complained about her Honour's findings concerning the size of the bed in which CT was sleeping at material times. However, her Honour rejected, as 'incredible and implausible' the appellant's evidence as to the size of CT's bed. Her Honour preferred, and was entitled to prefer, PT's evidence on that issue which, her Honour said, accorded with 'common sense and experience' [390(a)].

320 None of the appellant's arguments cast any material doubt on any of the trial judge's findings of fact which underpinned her conclusions in relation to the appellant's guilt on counts 8 to 13 inclusive and 15 to 18 inclusive.

321 As we note at [322] ‑ [324] below, the appellant has not established that the verdicts of guilty on which the convictions for counts 8 to 13 inclusive and 15 to 18 inclusive are based were unreasonable or cannot be supported having regard to the evidence.

322 We are satisfied, after reviewing the trial record and weighing the evidence, that it was reasonably open to the trial judge to reject the appellant's defences and to be satisfied beyond reasonable doubt that he was guilty of the offences charged in counts 1, 4 to 7, 8 to 13 and 15 to 18.

323 A tribunal of fact, acting reasonably, was not precluded by the state of the evidence at trial from convicting the appellant on those counts. A tribunal of fact, acting reasonably, was entitled to be satisfied beyond reasonable doubt, upon the combined force of all of the facts and circumstances established by the evidence in relation to each of counts 1, 4 to 7, 8 to 13 and 15 to 18, that the appellant committed each of those offences.

324 The trial record does not require the conclusion that her Honour must necessarily have entertained a doubt about the appellant's guilt on any of the counts on which he was convicted. The verdicts of guilty were not unreasonable. Each verdict was supported by evidence that her Honour was entitled to accept and inferences that her Honour was entitled to draw. After paying full regard to consideration that her Honour was the tribunal of fact entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that her Honour had the benefit of having seen and heard the witnesses, we do not have a reasonable doubt as to the appellant's guilt on any of the counts of which he was convicted or as to the correctness of his conviction on any of those counts. It would not be dangerous to permit the verdicts of guilty to stand.

326 Ground 2 alleges, in effect, that the manner in which the appellant's lawyers prepared for and conducted his trial occasioned a miscarriage of justice.

327 The appellant complains about a number of issues concerning the continuity of defence counsel and the conduct of his defence at the trial. In particular, he complains about:

(b) an inadequate timeline as to the occasions on which CT was admitted to hospital;

(c) Ms Barone's failure to recall CT during the trial as a consequence of the appellant subsequently having been charged with sexual offending against his other daughter, KT;

(d) the failure of his legal representatives to call various witnesses as part of the defence case, including an expert witness in relation to CT's mental health issues and state of mind;

(f) his legal representatives' failure to obtain or refer to 'SnapChat' messages; and

(g) Ms Barone's failure to object to the prosecutor's cross‑examination of the appellant in relation to his having had a sexual interest in young boys since the age of 19.

328 In McMahon v The State of Western Australia,[622] McLure P (with whom Buss P agreed) summarised the law relating to a ground of appeal which alleges a miscarriage of justice by reason of defence counsel's conduct of the defence case, as follows:

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

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

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

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

329 In Colley v The State of Western Australia,[623] McLure P referred to the extract which we have reproduced from her Honour's reasons in McMahon, and then said:

The appellant's claims in this case fall within the 'process' category. That is, the appellant claims he was deprived of a fair trial according to law.

As is clear from the use of the word 'ordinarily' in the first paragraph of the extract, it is a general rule that an accused is bound by the way a trial is conducted by counsel. In particular, not all decisions made by counsel contrary to instructions will bind the accused. The point is made clearly by Gleeson CJ in Nudd v The Queen [2006] HCA 9:

A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions [9]. (emphasis added)

For example if, as the appellant says in this case, he instructed trial counsel not to defend the charge on the basis of self‑defence because he (the appellant) did not at any stage hit the deceased, to do so would be outside the scope of any implied power in the retainer to make decisions on behalf of the appellant.

Moreover, it is outside the scope of any implied retainer for trial counsel to conduct a positive defence that is inconsistent with the accused's instructions as to what had actually occurred. A 'positive defence' includes cross‑examination of witnesses for the prosecution suggesting, expressly or impliedly, that counsel is putting his or her client's instructions as to relevant factual matters.

It is unnecessary to determine whether trial counsel may, with the client's consent, put in cross‑examination a positive defence that is inconsistent with his or her client's instructions as to what actually occurred. Even if permissible, the client would have to be informed by trial counsel that he or she could not lead evidence from the accused that was inconsistent with his or her instructions as to what actually occurred. That is, prior to the cross‑examination the client would have to elect not to give evidence at trial. In that way there would be no breach of the first aspect of the rule in Browne v Dunn (Browne v Dunn (1893) 6 R 67 HL). As to which, see Merrey v The State of Western Australia [2010] WASCA 62 [12].

330 In Morgan v The State of Western Australia [No 2],[624] this court stated the relevant general principles which govern the determination of whether the conduct of defence counsel has caused a miscarriage of justice, as follows:

The relevant general principles as to when a miscarriage of justice may arise through incompetent representation were recently summarised by this court in Huggins v The State of Western Australia (Huggins v The State of Western Australia [2018] WASCA 61 [375] ‑ [401]). We adopt that comprehensive analysis without repeating it, noting the following passage of the reasons in that case (Huggins [376]):

An appellant who seeks to demonstrate that the conduct of his or her counsel caused a miscarriage of justice undertakes a heavy burden which is not easily discharged. This is a consequence of the adversarial nature of a criminal trial and the role played by counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel even if that was not in accordance with the wishes of the client. It is not a ground for setting aside a conviction that decisions made by counsel were made without or contrary to instructions or involved errors of judgment or even negligence. It is not the province of appellate courts to review the wisdom or prudence of the conduct of a trial by trial counsel. For example, an apparently rational decision by trial counsel as to what evidence to call or not to call does not give rise to a miscarriage of justice simply because an appellate court thinks it worked to the probable disadvantage of the appellant. (citations omitted)

Further, as was recently reiterated in Jeffery v The State of Western Australia (Jeffery v The State of Western Australia [2018] WASCA 219 [104] (citing Buss P in Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96 [115]), this court does not examine whether a decision taken by the appellant's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage. Rather, the court is concerned only with whether counsel's decision is capable of explanation on that basis. That is, could there be any reasonable explanation for the decision? The test is objective in character.

(a) We are satisfied, on the basis of Ms Barone's, Ms Padmanabham's and Ms White's evidence in the appeal, that Ms Barone was properly instructed.

(b) We are satisfied, on the basis of Ms Barone's and Ms Padmanabham's evidence in the appeal, that Ms Barone spent 90 hours in preparing for the appellant's trial. Further, we are satisfied, based on our review of the trial record, that Ms Barone's representation of the appellant and her performance as defence counsel at the appellant's trial was competent.

(c) We are satisfied, on the basis of Ms Barone's and Ms White's evidence in the appeal and based on our review of the trial record and the information and material available to the defence, that the defence case theory at the trial was appropriate.

332 There is no merit in the appellant's complaint that Ms Barone's preparation for the trial was inadequate.

333 In our opinion, a more detailed and precise timeline in relation to the occasions on which CT was admitted to hospital would not have materially advanced the defence case. The relevance of CT's admissions to hospital was that she suffered from depression and an eating disorder at various times and required treatment for those conditions. The appellant does not explain by reference to expert evidence how CT's mental health conditions would or might have adversely affected her honesty or reliability as a witness. There is no merit in the appellant's complaint.

334 Ms Boston cross-examined CT on 12 December 2019. The appellant was charged with offences relating to his other daughter, KT, after CT's evidence had been pre-recorded. KT participated in a child witness interview the day before the pre-recording of CT's evidence. When Ms Boston cross-examined CT she was not aware that KT had participated in the child witness interview.

335 On 10 March 2020, at a directions hearing, Ms Boston informed the presiding judge that the appellant would be making an application for CT to be recalled as a result of the information that had been disclosed in relation to KT.[625]

336 On 11 March 2020, at the resumed directions hearing, the prosecutor noted that one of the lines of questioning identified by Ms Boston the previous day concerned 'a lack of protective behaviours by [CT] towards her younger siblings'.[626] The prosecutor submitted that any questioning of CT about 'a lack of protective behaviours' was not something which arose solely from the recent disclosure.[627] At all material times, the appellant and his legal representatives had been aware that CT had younger siblings who lived in the family home.[628]

337 It is not apparent how the issue of 'protective behaviours' or the fact that KT had recently complained of sexual abuse by the appellant would or might have materially advanced the defence case. In particular, it is not apparent that either of those matters would or might have had a material impact upon CT's cross-examination.

338 Ms Barone gave evidence in the appeal that it was her understanding that KT's allegation of sexual offending by the appellant did not factually involve CT.

339 As we have mentioned, the appellant did not instruct Ms Barone to recall CT.

340 Ms Barone's decision not to recall CT was, objectively, a rational forensic decision.

341 If CT had been recalled and cross-examined about the issue of 'protective behaviours' and about KT's allegation of sexual offending by the appellant there was a risk (which could not be dismissed as fanciful) that CT might have given evidence that reinforced her earlier evidence that the appellant had offended against her and that implicated the appellant in offending against KT.

342 There is no merit in the appellant's complaint about Ms Barone's failure to recall CT during the trial.

343 As we have mentioned, prior to the trial Ms White discussed with the appellant the calling of certain witnesses, including AP, KT and MT. Also, as we have mentioned, on 8, 9 and 16 April 2020, Ms Barone and Ms White met with the appellant and discussed whether the defence should call any witnesses apart from the appellant. The appellant instructed Ms Barone and Ms White, before the close of the defence case, not to call any witnesses apart from the appellant. In particular, the appellant instructed Ms Barone and Ms White in writing not to call his mother, LM, as a witness. Further, as we have mentioned, the appellant does not explain by reference to expert evidence how CT's mental health conditions would or might have adversely affected her honesty or reliability as a witness. In any event, a decision as to which witnesses (apart from the accused) should or should not be called is within the authority of defence counsel. No miscarriage of justice has been established in relation to Ms Barone's decision not to call other witnesses. There is no merit in the appellant's complaint about the failure of his legal representatives to call various witnesses as part of the defence case.

344 During Ms Barone's closing address at the trial, there was an exchange between the trial judge and Ms Barone concerning the suggestion that CT had been sexually assaulted on a beach while she was in year 12 at school.[629] During that exchange, Ms Barone said in effect that the suggestion of that sexual assault had been the subject of limited cross‑examination.[630] It is not apparent that a more detailed cross‑examination on this issue (on the assumption that it would have been permissible having regard to s 36BC of the Evidence Act) would or might have materially advanced the defence case. As we have mentioned, we are satisfied, on the basis of our review of the trial record, that Ms Boston's cross‑examination of CT was competent. The appellant's complaint about the extent of CT's cross‑examination is without merit.

345 As to the appellant's complaint concerning SnapChat messages, Ms White arranged for the mobile telephones of CT, KT and JP to be examined by an expert, Mr Boddington. He downloaded the mobile telephones. No evidence supporting collusion between CT, KT and JP was found in the downloads. No relevant messages other than the messages between JP and CT that were already part of the prosecution brief were located. There was no evidence that any relevant SnapChat messages continued to exist. The appellant's complaint that his legal representatives failed to obtain or refer to SnapChat messages is without merit.

346 The earliest offending charged in the indictment was alleged to have occurred in about mid 1982 in relation to GN. At that time the appellant was aged 19. The cross‑examination reads, relevantly:[631]

In 2016 and 2017 you had a sexual interest in children?---I can't deny that. Yes.

Both boys and girls?---No.

...

Just boys?---Yes.

Boys aged about 11 to 14?---Around about 12 years of age, yes.

You've been attracted to young boys for a long time, haven't you?---I honestly cannot tell when that attraction became problematic or sexual. But, yes, you are correct. I have always had an affinity with children and, yes, I always have had an affinity in particular with boys.

Well, when you refer to "affinity" I'm referring to you being physically attracted to young boys?---Only in my later years I believe.

Well, isn't it an issue that you struggled with for a very long time?---I'm aware of certain thoughts and feelings that I have had issues with for quite a long time but ... they've never been problematic for me until 2016, '17.

I'm not asking you about it being problematic, I'm asking you about sexual interest. You've had a sexual interest in boys since you were around 19 years of age. Isn't that so?---I wouldn't - I won't deny that.

And you acted upon that sexual interest with [GN]?---No, I didn't.

347 A little later, the prosecutor cross‑examined the appellant about his sexual interest in young boys in the context of his convictions in 2019 for sexual offending against AB and LJ between August 2016 and August 2017. As we have mentioned, at the trial the State adduced evidence of those prior convictions, pursuant to s 31A of the Evidence Act, as relationship evidence and propensity evidence. The State relied upon the evidence in relation to all of the charged offences involving GN, JP and CT.

348 The prosecutor's cross‑examination of the appellant regarding his sexual interest in young children was based on inferences arising from the relationship or propensity evidence.

349 The prosecutor's cross‑examination of the appellant in relation to his having had a sexual interest in young boys or young children since the age of 19 was permissible. If the appellant had a sexual interest in young boys or young children at the age of 19 then that fact, combined with his subsequent admitted offending against AB and LJ, would have increased the likelihood that he had offended against GN as alleged.

350 The appellant's complaint about Ms Barone's failure to object to the prosecutor's cross‑examination of the appellant in relation to his having had a sexual interest in young boys since the age of 19 is without merit.

352 Ground 3 alleges, in effect, that various deficiencies in the evidence relied upon by the State should have given rise to a reasonable doubt as to the appellant's guilt on the counts of which he was convicted.

353 The appellant enumerated 10 points in his written submissions which, he contended, should have given rise to a reasonable doubt as to his guilt.

• North Cottesloe Surf Club was closed during winter and it would not have been possible to obtain surf boards for use at that time.
• The bottle shop next to Charlie Carter's on Stirling Hwy did not exist in the 80's, however does now exist.
• That the route to the appellant's parent's property in Claremont from North Cottesloe did not include the bottle shop as described by GN, and in fact was well out of the way, with other options much closer at hand within this route.
• [CT] was not allowed, nor did she possess lip gloss or nail polish at the ages specified/claimed, a fact that could easily have been confirmed or denied by her mother, at evidence.
• That the silver 4WD referred to by [JP] did not exist nor was it owned by the appellant in that time frame specified.
• That [CT] was not physically capable of performing the action claimed by [JP] in his evidence about occurrences at Karrinyup, i.e. reaching up to grab at the appellant's penis.
• That the electric toothbrush referred to by [CT] [ts 281] did not exist in the timeframe alleged, another fact that could easily have been confirmed or denied by her mother, at evidence.
• That the evidence provided by the appellant does make sense and is credible when statistics are applied to the evidence about [CT] having a cot sized homemade bed until the age of 6 or 7. This was one of the elements of the appellant's evidence upon which the Judge found the appellant to be unreliable, however when tested is credible. If considered with the testimony regarding the timing of the heat lamp installation and the shower head installation, this would make the appellant's evidence more credible. In any case the use of conditioner on [CT's] vagina and the use of forceful spray from a shower head are elements of [CT's] evidence that are inherently problematic and do not make sense.
• The issue of spare keys and methods of entry into [CT's] grandparents' house.
• That [CT's] mother's evidence directly conflicts with complainants' testimony in several respects, e.g. [JP's] father never drove nor did he take his vehicle to the ... farm and that the appellant only played squash infrequently and that [JP] did in fact attend the same church and did in fact attend the grandparents' house during the Greek Easter weekend celebrations.

355 The 10 points enumerated by the appellant in his written submissions are, in substance, particulars of matters which he asserts should have resulted in the trial judge having a reasonable doubt about his guilt.

356 We have dealt with the substance of the first eight points in the course of dealing with ground 1.

(a) Those points concerned the appellant's version of the events the subject of count 7 relating to JP.

(b) It was put to JP in cross‑examination that 'one Easter time [JP] went to church with the family, went in a car with the accused back to his grandparents' house, and the accused found him masturbating in the back room' [186]. JP denied that version of events.[632]

(c) The trial judge made these findings [216] ‑ [217]:

The accused gave evidence of a time when [JP] had masturbated at that house. The accused's evidence was that one Easter the family went to church and there was to be lunch at his parents‑in‑law's house after church. He drove there in his car with [JP], and others followed in other cars. He and [JP] arrived at the house first. The accused retrieved the key, went to the front, unlocked the door, and turned off the alarm. He went to the kitchen and put the kettle on and got a few things organised and then unlocked the door between the kitchen and the lounge. When he opened the door [JP] was sitting in the lounge and it looked like he was masturbating. The accused said and did nothing, except to back out into the kitchen, where he stayed until everyone else arrived (ts 905).

In cross-examination there were questions asked about how [JP] had got into the lounge room. The accused gave evidence that hidden with the key to the front door, was also a back door key, and [JP] used that to go in through the back way and [JP] was in the lounge room, 'the back room'. The accused said that while he caught [JP] masturbating in that room before anyone else had arrived back at the house, he did not confront [JP] about what he was doing, did not tell him off and did not tell anyone else about it. He did not think that he even told [PT] (ts 995 ‑ 997).

(d) As we have mentioned, her Honour found that JP was an impressive witness who was telling the truth. By contrast, her Honour made numerous adverse findings in relation to the appellant's honesty and reliability.

(e) Her Honour preferred, and was entitled to prefer, JP's evidence and to reject the appellant's evidence.

359 Ground 4 alleges, in effect, that defence counsel's failure at the trial to apply for CT to be recalled to give further evidence occasioned a miscarriage of justice.

360 We have dealt with the substance of this ground in the course of addressing ground 2.

361 For the reasons we have given at [334] ‑ [342] above, ground 4 is without merit.

362 Ground 5 alleges, in effect, that the appellant's lawyers failed to follow his instructions and consequently a miscarriage of justice has occurred.

363 The appellant complains about a number of issues concerning his lawyers' alleged failure to follow his instructions. In particular, he complains about:

(a) contrary to his written instructions, defence counsel did not call any witnesses apart from the appellant;

(c) elements of the defence case were not run according to the appellant's instructions; in particular, the appellant's belief that CT was not telling lies in making the complaints against the appellant, but on the basis that CT had come to believe that the complaints were true because of the influence of AP and JP while CT was mentally unwell and unstable combined with CT having seen the appellant engaging in sexual behaviour with AB;

(d) the text messages between CT and JP that were relied upon by Ms Boston in her cross-examination of CT were insufficient;

(e) defence counsel failed to tender hospital records concerning CT's admission for pyelonephritis;

(f) defence counsel failed to tender expert evidence concerning CT's mental health issues; and

(g) defence counsel failed to tender a Department of Child Protection child screening report.

364 As to the complaints specified in pars (a) to (d) of [363] above, we have already dealt with the substance of those complaints in the course of addressing earlier grounds of appeal.

365 As to CT's pyelonephritis, it was common cause at the trial that CT had suffered from that condition as a young child [295]. The appellant relied upon the condition to explain why he would not have splashed urine against CT's vagina [299]. He may also have relied upon the condition to explain why he would not have applied the shower head or creams to CT's vagina.

366 Her Honour made findings in relation to the appellant's explanations as follows [487]:

In discussing this incident during his evidence, the accused suggested he would never have done what [CT] said he did, in splashing urine back up onto her vagina, because she might end up with another urinary tract infection. However, when I heard the evidence from the accused about [CT's] history of urinary tract infections, it became apparent to me that this had not been an issue for [CT] from the ages of 3½ to 4 years old. By that time, as the accused himself said, [CT's] kidneys and bladder had returned to normal, there was no surgery required and no follow-up required. However, when I sought to confirm this at the time, as I have set out in [295], the accused suggested that [CT's] kidneys and bladder were still an issue until she reached puberty. I do not believe it. As a matter of logic and common sense, if there was any issue about [CT's] kidney or bladder until puberty, her parents would have made that clear to her. [CT] was not aware of any such issue when this was put to her in cross examination. Accordingly, I do not believe the accused's evidence that he would not have splashed urine onto [CT] as she described because of any ongoing issues with urinary tract infections or her kidney condition.

367 In our opinion, the trial judge did not make any material error in making those findings.

368 In any event, the appellant has not produced any hospital records concerning CT's admission for pyelonephritis or explained how the contents of those records would impugn or tend to impugn any of her Honour's findings.

369 As to the complaint specified in par (f) of [363] above, we have already dealt with the substance of that complaint in the course of addressing earlier grounds of appeal.

370 As to any child screening report from the Department of Child Protection, the appellant has not produced any such report. Even if the Department of Child Protection child screening report was admissible in evidence, the document is unlikely to establish any relevant facts except that CT did not make a complaint to employees of the Department in 2010 about the appellant's sexual abuse. Any failure by CT to make a complaint to employees of the Department in 2010 would not materially advance the appellant's case having regard to CT's failure to make complaints to other people including medical professionals.

372 Ground 6 alleges, in effect, that the trial judge evinced bias against the appellant.

373 The appellant's complaints, as set out in his written submissions, are as follows:

(a) The trial judge 'supported the prosecution' by interrupting while the appellant gave evidence and, on more than one occasion, directed the appellant to answer questions 'directly'.

(b) The opportunity given by her Honour to defence counsel to re‑examine the appellant was 'unrealistic because counsel did not have the information and was not fully across the brief and/or the appellant's instructions in order to do so'.

(c) Her Honour instructed defence counsel not to interrupt JP while he was responding to defence counsel's question.

(d) Her Honour interrupted defence counsel in the course of her cross‑examination of JP by stating erroneously that a question she had put to JP was unfair (ts 766).

(e) Her Honour was 'hypercritical' in her reasons of the appellant's evidence and 'disregarded his testimony without giving due regard to his meaning, experience or qualifications'. Her Honour 'misinterpreted' some of the appellant's evidence (ts 1027) and her Honour gave effect to prejudicial or preconceived ideas in relation to the text messages between JP and CT (ts 1089).

(f) Her Honour interrupted defence counsel's line of questioning (ts 715) and told defence counsel to 'move on' (ts 731). Her Honour interrupted and rephrased an important line of questioning when defence counsel was cross‑examining JP (ts 690) and 'further cut across lines of questioning put to JP about CT's denials that it was her father, the appellant, when JP had testified that CT had never said that to him'.

(g) Her Honour made comments to defence counsel in response to defence counsel's arguments about collusion which appeared to show 'a bias or opinion formed earlier in the case' that cut across a significant line of defence (ts 1089).

(h) Her Honour appeared to dismiss defence counsel's arguments about collusion (ts 1094, 1095, 1096).

(i) Her Honour appeared to be confused about the timeline of events surrounding CT, stating that, in her mind, the appellant was the perpetrator (ts 1090, 1093).

374 The test for actual bias in relation to a judge requires the party who asserts actual bias to show that:

(a) the judge's mind was so committed to a conclusion already formed as to be incapable of alteration, regardless of the evidence or the submissions;

(b) the judge prejudged the case against the party; or

(c) the judge acted with such partisanship or hostility as to reveal that the judge's mind was made up against the party and was not open to persuasion in favour of the party.

See Chin v Legal Practice Board of Western Australia[633] and the cases there cited. See also Smart v Albuquerque.[634]

375 The test for apprehended bias in relation to a judge is whether or not a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. See Webb v The Queen;[635] Ebner v Official Trustee in Bankruptcy;[636] Johnson v Johnson;[637] Michael Wilson & Partners Limited v Nicholls.[638]

376 The application of the test does not involve a prediction about how the judge will in fact approach the resolution of the question. The issue is one of possibility (real and not remote), not probability. See Ebner [7].

377 Apprehended bias is concerned with whether there is a reasonable apprehension that the judge might not decide the case impartially or without prejudice and not with whether the judge might decide the case adversely to one party. See Re JRL; ex parte CJL;[639] Re Polites; ex parte The Hoyts Corporation Pty Ltd.[640]

378 The test for apprehended bias is objective. This is founded in the need for public confidence in the judiciary and gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. The neutrality of a judge is fundamental to the administration of justice. See Webb (68); Johnson [12]; British American Tobacco Australia Services Limited v Laurie;[641] Michael Wilson & Partners [32].

379 The determination of whether a fair‑minded lay observer might reasonably apprehend that the judge might not act impartially and without prejudice raises largely a factual issue, but one which must be considered in the legal, statutory and factual contexts in which the judge is required to make the decision. See Isbester v Knox City Council.[642].

380 Although the hypothetical fair‑minded lay observer is not to be taken to have a detailed knowledge of the law, the observer is presumed:

(c) to know that the judge is required, by his or her training, tradition and oath or affirmation, to discard the irrelevant, the immaterial and the prejudicial; and

(d) to be aware of the nature of the decision which the judge is required to make, what is involved in making the decision and all the objective circumstances of the case.

See Livesey v The New South Wales Bar Association;[643] Laws v Australian Broadcasting Tribunal;[644] Re JRL (368, 371 ‑ 372); Webb (67 ‑ 68); Johnson [12] ‑ [14]; Isbester [23].

381 None of the passages in the trial transcript referred to by the appellant establish even an arguable case that the trial judge evinced actual bias or that there was apprehended bias. The passages in question merely reveal customary exchanges that occur regularly between a judge and counsel during a trial. The appellant's competent and experienced defence counsel made no complaint about her Honour's conduct of the trial.

382 The appellant's complaints in relation to bias are in reality complaints about her Honour having made findings, including credibility findings, that were adverse to the appellant. As we have explained, in dealing with earlier grounds of appeal, her Honour was entitled to make adverse findings against the appellant.

384 Ground 7 alleges, in effect, that the appellant was denied procedural fairness in that he was not given personal access to various records relating to counselling undertaken by CT.

385 The appellant complains that he was not given access, at all before the trial, to a bundle of 574 pages of various records relating to counselling undertaken by CT.

386 The appellant asserts that, prior to the commencement of the trial, the trial judge ruled that defence counsel could have access to the bundle of 574 pages, but the appellant could not.

387 The appellant described her Honour's ruling as 'absurd' because he could not give instructions to defence counsel without having access to the bundle. According to the appellant, the 'failure to disclose' was highly prejudicial to him. In particular, the appellant asserts that he was unable to 'to formulate a full and proper defence', in particular in relation to the state of CT's mental health at relevant times.

389 On 21 May 2019, there was a directions hearing before Vernon DCJ in relation to the bundle of 574 pages of various records relating to counselling undertaken by CT.

390 Vernon DCJ noted that there was no dispute that the documents were protected communications within the definition of 'protected communication' in s 19A(1) of the Evidence Act. Consequently, s 19C of the Evidence Act and related provisions applied to the documents.

391 Section 19A(1) includes relevant definitions as follows:

(a) The term 'counselling communication' includes a communication 'made in confidence by a person upon or in respect of whom sexual assault was committed or is alleged to have been committed (the complainant) to another person (the counsellor) who is counselling the complainant in relation to any harm the complainant may have suffered' and a communication 'made in confidence by or to the counsellor to or by another person who is counselling, or has at any time counselled, the complainant'.

(b) The term 'protected communication' is defined to mean 'a counselling communication made by, to or about a complainant and includes ... a counselling communication made before the commission, or alleged commission, of sexual assault' and also includes 'a counselling communication made before [s 19A to s 19M] were inserted into this Act'.

(c) The term 'protected person', in relation to a protected communication, is defined to include the complainant.

392 By s 19C(1), a person cannot disclose or require disclosure of a protected communication in, or in connection with, any criminal proceedings except with, and in accordance with, the leave of the court.

393 Section 19G(1) provides that, in determining an application for leave, the court may grant leave to disclose, or require the disclosure of, the protected communication if, and only if, the court determines that it is in the public interest to do so. By s 19G(2), for the purposes of s 19G(1), the court must have regard to the matters specified in s 19G(2).

394 Section 19J(b) provides that, without limiting any action the court may take to limit the possible harm, or extent of the harm, likely to be caused by the disclosure of evidence of, or the contents of a document recording, a protected communication, the court may make any orders relating to the production, inspection, copying or reproduction of the document that, in the opinion of the court, are necessary to protect the safety and welfare of any protected person.

395 In her reasons for decision on the appellant's application for disclosure of the bundle of 574 pages Vernon DCJ said that disclosure of the protected communications was necessary 'to allow [the appellant] to make a full defence' (ts 85). The protected communications were 'likely to have substantial probative value and affect the outcome of the trial' (ts 85). Her Honour then said 'subject to making an order under [s] 19J(b) that the disclosure be limited to [the appellant's] counsel ... and his instructors, and not be disclosed to [the appellant]', her Honour would grant leave under s 19C(1).

396 After hearing further submissions her Honour said that, in addition to ordering that the protected communications be disclosed to defence counsel and instructing solicitors, her Honour would grant leave for the appellant's lawyers 'to discuss, in general terms, the contents [of the protected communications] without showing him the actual documents' (ts 90). Her Honour explained that the appellant's lawyers had to be able to discuss the contents of the documents sufficiently with the appellant in order to take instructions (ts 90). Her Honour then informed defence counsel that if there was 'any particular document you feel the need to show [the appellant] then [that is] something that you can raise with me' (ts 90).

397 In 2019, Ms White viewed the protected communications and drafted a summary of the relevant material. As we have mentioned, we are satisfied, on the basis of Ms White's evidence in the appeal and our review of the protected communications, that Ms White's summary did not contain any material errors or omissions. Further, we are satisfied, based on Ms White's evidence in the appeal, that Ms White would have used her summary in any discussions that may have occurred with the appellant in relation to the protected communications.

398 In our opinion, the appellant was not denied procedural fairness as a result of the orders which Vernon DCJ made in relation to the protected communications. Her Honour ordered that the protected communications be disclosed to defence counsel and instructing solicitors. Also, her Honour granted leave for the appellant's lawyers to discuss, in general terms, the contents of the protected communications without showing him the actual documents. Her Honour indicated to defence counsel that if there was any particular document which defence counsel needed to show the appellant then the matter could be raised with the court. In the circumstances, nothing further was required to ensure that the appellant received a fair trial. The appellant was not relevantly prejudiced or denied procedural fairness by Vernon DCJ's decision not to permit the appellant to have direct access to the bundle of 574 pages of various records relating to counselling undertaken by CT.

400 For these reasons, on 15 July 2021 we made the orders referred to at [22] above.

Postscript: appellant's application in an appeal to inspect and take copies of the protected communications

401 Prior to the hearing of the appeal a witness summons was issued on the application of the State to Ms Padmanabham. The witness summons required, relevantly, Ms Padmanabham to produce her file in relation to the appellant. On 3 June 2021, a lawyer acting on behalf of Ms Padmanabham appeared in answer to the witness summons. He produced five boxes of documents. The court ruled that legal professional privilege in relation to the documents had been impliedly waived. The court indicated that the documents produced on behalf of Ms Padmanabham may be inspected by the appellant and the State's lawyers by prior arrangement with a Registrar of the court.

402 Subsequently, the court was informed that the documents produced in answer to the witness summons issued to Ms Padmanabham included the protected communications the subject of ground 7.

403 On 21 June 2021, the court held a directions hearing to consider what orders should be made in relation to the leave which had been given to the appellant to inspect the documents produced on behalf of Ms Padmanabham. The appellant and counsel for the State made submissions. At the conclusion of the directions hearing, the court reserved its decision.

404 On 22 June 2021, the court made orders as follows:

1. Notwithstanding any previous order or direction of this court, the appellant is not entitled to inspect, copy or reproduce the whole or any part of any document contained in the health records of the complainant, comprising 574 pages.

2 The appellant may under the supervision of the Court of Appeal Office inspect and make notes (but not take copies) of:

(a) the presentence report dated 11 July 2018 relating to the appellant;

(b) the psychological report dated 9 July 2018 relating to the appellant; and

(c) the psychiatric report dated 4 September 2019 of Dr Adam Brett, apart from pars 17 to 60 (inclusive) of that report.

When we made those orders we said that reasons for decision would be published at a later date.

406 First, as to order 1, the bundle of 574 pages of various records relating to counselling undertaken by CT were a 'protected communication' as defined in s 19A(1) of the Evidence Act. Consequently, by s 19C(1), relevantly, a person cannot require disclosure of a protected communication in, or in connection with, any criminal proceedings except with, and in accordance with, the leave of the court. It was not appropriate to grant the appellant leave to inspect, copy or reproduce any of the documents in question. There was no legitimate forensic purpose for granting leave. A grant of leave was not necessary to enable the appellant to advance or make submissions on any of his grounds of appeal. In particular, ground 7 asserted that the appellant had been denied procedural fairness because he was not given personal access to the relevant documents. The proper determination of ground 7, including a proper assessment of the merits of the appellant's contentions in relation to the ground, depended upon an examination of the relevant statutory provisions and their application having regard to the orders made and the reasons given by Vernon DCJ. That process did not require that the relevant documents be disclosed to the appellant.

407 Secondly, as to order 2, the making of that order was appropriate for the purpose of enabling the appellant to make submissions in support of his case. The interests of justice did not require any further or other order in relation to the reports the subject of order 2.

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

[1] The State of Western Australia v [OTR] [2020] WADC 65.

[609] Jeffery v The State of Western Australia [2018] WASCA 219 [104] ‑ [105].

[610] Wark v The State of Western Australia [2020] WASCA 19; (2020) 284 A Crim R 449 [277] ‑ [303].

[611] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 ‑ 493 (Mason CJ, Deane, Dawson & Toohey JJ).

[612] Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482 [56] (Gageler J).

[613] GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698 [25] (Bell, Gageler, Nettle & Gordon JJ).

[614] SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).

[615] Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, 473 (Deane, Toohey & Gaudron JJ). See also M (492 ‑ 493); SKA [20].

[616] R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ).

[617] R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [20] (Gummow, Hayne & Crennan JJ).

[618] Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779 [5] (Hayne, Crennan, Kiefel, Bell & Gageler JJ).

[619] R v Baden‑Clay [2015] HCA 35; (2016) 258 CLR 306 [66] (French CJ, Kiefel, Bell, Keane & Gordon JJ).

[620] BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101 [31] (Hayne, Crennan, Kiefel, Bell & Keane JJ).

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

[623] Colley v The State of Western Australia [2015] WASCA 79 [29] - [33].

[624] Morgan v The State of Western Australia [No 2] [2019] WASCA 185 [205] - [206].

[633] Chin v Legal Practice Board of Western Australia [2011] WASCA 110 [5] (Newnes JA).

[634] Smart v Albuquerque [2011] WASCA 231 [8] (McLure P, Buss JA & Mazza J).

[635] Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 67 ‑ 68 (Deane J).

[636] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6] (Gleeson CJ, McHugh, Gummow & Hayne JJ).

[637] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).

[638] Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [31] (Gummow A‑CJ, Hayne, Crennan & Bell JJ).

[639] Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352 (Mason J).

[640] Re Polites; Ex parte The Hoyts Corporation Pty Ltd [1991] HCA 31; (1991) 173 CLR 78, 86 (Brennan, Gaudron & McHugh JJ).

[641] British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283 [139] (Heydon, Kiefel & Bell JJ).

[642] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 [20] (Kiefel, Bell, Keane & Nettle JJ).

[643] Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, 293 ‑ 294 (Mason, Murphy, Brennan, Deane & Dawson JJ).

[644] Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, 87 ‑ 88 (Mason CJ & Brennan J), 95 (Deane J).