Court of Appeal (WA)|2008-06-18|Before: Miller JA, Lure JA

R -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 127 (18 June 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : R -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 127

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal and new trial - Conduct of legal practitioner - Whether incompetent representation - Whether any miscarriage of justice - Whether any departure from the requirements of a fair trial

1 McLURE JA: I agree with the order proposed by Miller JA generally for the reasons he gives.

2 MILLER JA: The appellant was tried before Eaton DCJ and a jury in the District Court at Perth on 2 and 3 August 2004 on an indictment which alleged 11 counts of sexual offences against a child variously under the age of 13 years and between the ages of 13 and 16 years. All offences related to the same complainant and they were alleged to have occurred between 28 April 1994 and 29 April 1997.

3 The appellant was charged with two counts of indecent dealing with a child under the age of 13 years, two counts of sexual penetration of a child under the age of 13 years, three counts of indecent dealing with a child between the ages of 13 and 16 years and four counts of sexual penetration of a child between the ages of 13 and 16 years. The allegations of indecent dealing were three offences of touching the complainant's breasts and two of placing the complainant's hand on the appellant's penis. The allegations of sexual penetration were all charges of penetration of the vagina with the finger.

4 The appellant was convicted on all counts on the indictment. He was sentenced on 4 August 2004 to an aggregate term of imprisonment of 7 years, with eligibility for parole.

5 The appellant applies for an extension of time within which to appeal and for leave to appeal from his convictions. Both of these matters were referred to the Court of Appeal for determination.

6 The appellant was required to file a notice of appeal within 21 days of his conviction on 3 August 2004. He did not file a notice until 19 December 2006. He was, thus, almost one year and four months out of time.

7 In an affidavit sworn 29 March 2007, the appellant seeks to explain the delay. He says that, following his conviction, he informed his counsel that he wished to lodge an appeal against conviction, but was told that he would not be granted legal aid and would need to privately fund his appeal. Some four months after his conviction, he discovered that he could lodge an appeal without legal assistance, and in November 2005 he ascertained that, in some circumstances, legal aid would be granted for

appeals. He then filed an application for legal aid funding, but on 15 December 2005 he received a letter informing him that aid was refused. He thereafter sought reconsideration of his application for legal aid, but was again refused. He made application to the Legal Aid Review Committee, and ultimately succeeded in obtaining legal aid funding on 20 July 2006. A solicitor then acting for the appellant sought various documents which were difficult to obtain and, in consequence, that solicitor was unable to file the notice of appeal until 20 December 2006 (the notice was dated 19 December 2006, but filed the following day).

8 On any view of it, the delay in the filing of a notice of appeal in this matter was a gross delay. So much is conceded by counsel for the appellant. Although it was initially contended in written submissions that the delay in the filing of the notice of appeal was occasioned by exceptional circumstances which warranted the grant of an extension of time, the ultimate submission was that the court needed to consider the merits of the appellant's proposed appeal to determine whether or not an extension of time should, in the circumstances, be granted.

9 The principles upon which an extension of time will be granted where there has been gross delay are clear. They were stated by Burt CJ in Narkle v The Queen (Unreported, WASCA, Library No 6108, 2 December 1985) as follows:

This court has on a number of occasions pointed out that the time limit fixed by s 695(1) of the Code must be taken seriously and every effort must be made to comply with it. The section contains no express criteria controlling the court's discretion to extend time and in that sense it can be said that the discretion is unfettered. But that is not to say that it will be exercised as of course. It should only be exercised upon facts shown which in the judgment of the court appear positively to call for its exercise and the onus upon an applicant for extension of time will of course increase as the time goes by. A delay of four and a half months, as in this case, can only be described as gross and it would be necessary to show very special circumstances indeed to sustain the exercise of this Court's discretion to extend time to that extent. Those circumstances may explain and excuse the delay or they may relate to the grounds of appeal and indeed the latter consideration may become and will become dominant should it appear that there has been a manifest miscarriage of justice. (2)

10 The appellant's entitlement to appeal in this case was governed by the provisions of s 695(1) of the Criminal Code, which required notice of appeal within 21 days of the date of convictions. Section 695 of the Criminal Code has since been repealed and replaced by s 28(3) of the Criminal Appeals Act 2004 (WA). An appeal must still be commenced within 21 days of conviction.

11 The principles set out by Burt CJ in Narkle remain applicable: see Gavin v The Queen (1992) 6 WAR 195, 198 - 199 (Malcolm CJ); Ejueyitsi v Maloney [2007] WASCA 3 [8] (Wheeler JA).

12 For the appellant to succeed with his application for an extension of time in this case, he would need to show that there was a miscarriage of justice if the extension of time was not granted.

13 There is only one ground of appeal. As amended, it is expressed in the following terms:

Grounds of Appeal

Ground 1 - Conviction unsafe and unsatisfactory - A fair trial was not received by the appellant due to incompetent representation by Counsel.

Particulars

Counsel did not prepare a proof of evidence on behalf of the appellant or take full instructions prior to or during the trial and then called the appellant to view evidence without any warning or preparation. Counsel did not attack the credibility of the complainant in cross-examination but rather bolstered her evidence in questioning.

14 The complainant was born in 1983. Her mother remarried after her birth and her second husband was regarded by the complainant as her father, and I shall refer to him in that way. The appellant was married to the mother of the complainant's stepfather. The complainant regarded the appellant as her grandfather and called him by the name 'Poppy [J]'.

15 The complainant lived with her mother and father in the Eastern States until they separated. The complainant, her brother and her mother then came to live in Western Australia. It was then that the complainant came into contact with the appellant. The complainant and her brother often visited the appellant's house to see their father. Their father resided there when he was not working out of Perth.

16 From time to time the complainant and her brother stayed overnight at the appellant's home. This was sometimes on weekends and on other occasions during school holidays.

17 The complainant's testimony at trial alleged a number of acts which were both charged and uncharged acts. She testified that, from the outset of her visits to the appellant's home, she found that, when he greeted her, he was 'very touchy feely', saying that he would hug and kiss her and 'slobber all over you and stuff'. She complained that the appellant would rub his hands over her back and her bottom. She said that he would kiss her with an open mouth on the lips or the face. He did the same when she was leaving the house.

18 The complainant said that the appellant usually gave her money when she was leaving the house. This he would either stick down her knickers, down her bra, or in her hand.

19 The complainant gave evidence that the appellant lived at two different addresses. One was in Pointer Way, Girrawheen and the other Ipswich Crescent, Girrawheen. At Pointer Way, there was a swimming pool, where the complainant and her brother would often go swimming. The complainant testified that the appellant would come into the swimming pool, put the spa on and then call the complainant over to sit on his lap. Whilst sitting on his lap, the complainant could feel the appellant's penis 'going hard' and she complained that he put his hands inside the front of her bathers and touched her vagina. She complained also that the appellant made her put her hand on his penis and 'rub it up and down'. She said that she was between 8 and 12 years of age at the relevant time, and that this conduct occurred on four occasions that she could remember.

20 The complainant said that the appellant often took photographs of people at his house. She complained that he would come into the bathroom and take photographs of her without any clothes on. She complained also that, whilst she was in the bathroom, he would look at her through a window that went to the games room. She said that 'a few times' he stood outside the window and watched her. The complainant described the window as a 'push-out or wind-out one so you could see underneath it'. She said she could not shut the window because she could not reach it.

21 The complainant said that, whilst at the appellant's home, she watched videos. She recalled a particular occasion when she was about 10 years of age when the appellant put on a pornographic video. She described this as a video of 'people having sex'.

22 The complainant said that she and her brother would sleep in the spare room with her father when her father was at the house. There were, however, occasions at Ipswich Crescent when she slept only with her brother and/or her cousin, L. She testified that, when she was about 11 years of age, she had gone to bed early and her father and brother were in the lounge room watching a video. The appellant came into her room and got onto the bed next to her, and played with her breasts. She said that he then rolled her onto her back, took her knickers down and put his fingers inside her vagina. She did not say anything to anybody about the matter because she felt 'dirty and ashamed'.

23 After the appellant and his wife had moved to Ipswich Crescent in Girrawheen, there was an occasion when the appellant asked the complainant to come into his bedroom. She said that he showed her some photographs and then played with her breasts, following which he put his finger inside her vagina again. He told her to say nothing and that it was 'our little secret', or 'our little fun'.

24 The complainant gave evidence that the appellant took her shopping on occasions. There was a particular occasion when she went shopping with her cousin, L, and the appellant. The appellant bought white overalls and a black top for each of them. When they returned to the appellant's home, he asked them to put on the clothing so that he could take photographs. He took photographs, one of which the complainant produced at the hearing.

25 The complainant said that, later on the same day, she and L were watching a video when the appellant came in. When the video stopped, he put in a pornographic video, which showed women and men having sex. He told her not to tell anybody that she was watching it.

26 The complainant testified that, at Christmas 1996, prior to her 14th birthday, she stayed at the home of her grandparents. She was with her brother and they watched a video. Her grandmother was in bed and the appellant was 'milling around until [the complainant] went to bed'. The complainant said that, when she went to bed, the appellant came in and spoke to her. He then got in the bed, under the covers, with her. He was wearing 'one of those tie-up bathroom things'. She was wearing boxer shorts and a top. She said that the appellant began 'feeling [her] up and stuff', touching her breasts and pulling down her knickers, and playing with her clitoris. He then put his finger inside her vagina. He opened his bathrobe, grabbed the complainant's hand and put it on his erect penis. She said that he made her move her hand up and down. The complainant said that he penetrated her vagina with his fingers twice on that occasion, and ended up masturbating himself.

27 The complainant was referred to photographs taken by the appellant. She said that the appellant asked her to 'act like a model and do modelling like the fashion models do'. She identified three photographs taken when she was 10 years of age. She was then shown two photographs taken when she was around 13 or 14 years of age. Further photographs were tendered which (inter alia) showed the complainant wearing a Hanson band T-shirt and photographs of the complainant in a swimming suit. Three polaroid photographs were then produced which showed the appellant and her cousin, L, in the overalls which had been purchased in December 1996. In all, it appears that a total of 19 photographs were tendered.

28 Unfortunately, the photographs tendered at the appellant's trial cannot now be located. Counsel for the respondent advised the court that, at the expiration of the appeal period, the photographs would have been returned to investigating police. Inquiries have since failed to locate them and it is assumed that they were destroyed. Counsel for the respondent tendered to the court photocopies of five of the photographs which are marked respectively, exhibits 7 and 9 (three photographs constituting exhibit 7 and two constituting exhibit 9), but that is all that this court has before it.

29 The complainant was cross-examined by defence counsel. It was first put to her that the allegations of 'slobbery kisses' and the appellant pressing his body against the complainant were really only by way of normal greeting and, in any event, other people were present at the time this occurred. The complainant agreed that other people were present, but said that the appellant would call her aside 'like around the side of the house' where nobody could see. The complainant was asked whether she had ever mentioned the matter to her parents and she said she did not know whether she had or not. She was asked whether it had ever occurred to her to say something about it, and she said that it did, but she questioned counsel, 'How do you do it?'. She was asked whether she thought it was worth telling her mother and father that the appellant acted 'funny with [her]', but she said that she could not and she did not.

30 The complainant was asked about gifts of money. She said that she was quite often given money and it was quite a lot of money. She said she did not get pocket money from her parents, but got it from her Nana. She was asked whether she had explained the money to her parents. She said that she just kept putting it in a pile, and one day, when her mother found it, she had to lie to her. It was then about $60 or $70 that she had. She said she refused to tell her mother where she had got the money. She was asked if she was stealing it, and she said she was not.

31 The complainant was asked whether her brother was present when money was given and she agreed that he usually was. She was asked whether other persons were present when she went to the appellant's home, and she agreed that they were. She said that she did not know whether her parents or relatives ever saw money being given to her, but if they did, they did not say anything.

32 It was put to the complainant that she could have avoided the appellant when arriving at or leaving the appellant's home by 'sticking with them' so that the alleged conduct on the part of the appellant (kissing her and feeling her) could not occur. She answered that people went off in different directions and she could not always tag along with somebody. She agreed, however, that she did not ever say anything to anybody about the appellant's conduct in this respect. She said that she did not think that anybody would believe her.

33 The complainant was questioned about the allegation that the appellant had felt her breasts. She was asked whether she ever told anybody about it and she said that she had not. The complainant was then asked about an incident in the spa section of the swimming pool. She was asked whether there were a lot of people in the house when swimming activities were going on. She agreed that they were. She agreed that she had about 10 cousins, and that the cousins and their parents would come to family gatherings and be around the swimming pool.

34 The complainant was taken specifically to the allegation that the appellant had requested that she sit on his lap while he had an erection, and that he tried to get her to fondle his penis. It was put to her that other people must have been around the swimming pool when this occurred. She said that this conduct had occurred on three occasions that she could recall. She admitted that her brother was in the pool on two occasions, but she was not sure about the third. It was put to her that somebody else was in the pool on that occasion. She said that there could have been somebody else there.

35 The complainant was asked if she knew that what was happening was wrong. She said she did. It was put to her that, notwithstanding this, she still said nothing to anybody about it. She agreed.

36 The complainant was taken to the photographs. It was put to her that, although she had testified that the photographs had been taken in the shower, there were no photographs which had been tendered in evidence which revealed her in the shower. She agreed that there were not.

37 The complainant was then questioned about the bathroom and the bathroom window. She was asked how the window opened: whether it was from the side, or from the bottom or top. She replied that it was from the bottom. She was then asked if it was correct that the window was wound out to open. She said she did not remember how it went out, but it was 'like a push-out or wind-out' window. She was taken to her evidence that she could not shut the bathroom window, and she was asked why not. She said that she could not shut it because the basin was in the way. It was put to her, however, that she was taller than the basin. She responded by saying that she still could not reach the window. She was asked whether the window was always open, and she said it was. It was put to her that if the window opened from the bottom, it would have been very hard to see inside the bathroom. Her response was that she did not know.

38 The complainant was then taken to her evidence in which she said that she saw the appellant looking at her through the bathroom window. She was asked where he was standing, and she said that it was in the middle of the games room. She was questioned how he could see her through a window that opened from the bottom if he was in the middle of the games room. She said he could.

39 The complainant was then asked whether the games room was glazed and whether people outside around the swimming pool area would have been able to see the appellant inside the games room if he had been there. The complainant agreed that they would have been able to do so.

40 The complainant was then taken to her assertion that the appellant had put on a pornographic video. She was questioned whether her brother was present, and also whether the appellant's wife was present. She said her brother was not present, and she was not sure about the appellant's wife. She was asked whether she had ever told anybody about watching the pornographic video, and she said she had not.

41 The complainant was then questioned about the incident that occurred in the bedroom. She was asked about the location of the bedroom within the house. The following exchange occurred:

Okay. How do you get to the spare bedroom from the lounge? Do you remember?---I don't know how to explain it. You walk out the lounge and down the little bit of the corridor sort of thing and then grandma and Poppy [J's] room was right in front and then it was to the right, the door.

Right, so [Mrs R] and Poppy [J's] room was next to the spare bedroom?---Yes.

Do you remember whether [Mrs R], that's Poppy [J's] wife, was in bed at the time as well?---Probably.

...

How many paces do you think you would need, if you can remember, to get from the lounge room to the spare bedroom?---Six or seven

So it was very close to the lounge?---Yeah.

And even closer to the master bedroom where Poppy [J] and his wife used to sleep?---Yes.

And you say that while you were in there, a few minutes after you had gone to bed or a few minutes after you had gone to bed he came in and molested you?---Yeah.

Did he turn the light on, do you remember?---No.

Do you remember whether he opened the door and left it open or did he shut it after him?---He closed it.

Did he? Is there a latch on the door? Do you remember that?---I don't remember.

You don't remember?---No.

So you say that while other members of the family were so close to you he came into your bedroom and molested you? ---Yes.

How long do you think he would have been in the room with you?---Not even five minutes.

Not even five minutes. Was there any conversation between you and Poppy [J] during this time?---No,

None at all?---No.

Did you say anything to him?---No.

Did you tell him that you didn't want it to happen?---No.

Why not?---Because I was pretending I was asleep.

What about when it was happening? Did you say anything to him then like, 'Don't do it' or 'Stop'?---No.

42 The complainant was asked whether she had ever made any complaint to anybody about what had been done to her, and she said she had not.

43 The complainant was taken back to the photographs, and it was put to her that she looked fairly happy in the photographs. She said that she did. It was then put to her that she was in the house of a man whom she claimed had abused her on a regular basis. She replied that she was. She was asked whether she was happy that the appellant had bought her the overalls and she agreed that she was.

44 There was reference to the second occasion upon which a pornographic video was allegedly shown. The questions suggested that the complainant had been in bed and had come out:

Are you sure you didn't go to bed and then come out and see something like that on the TV?---No.

Are you sure about that?---It was straight after our movie.

45 The complainant was asked whether she had ever told her cousin, L, about the appellant's behaviour. She said that she had not. She was asked why not, and the complainant said that she did not know how to tell anybody.

46 The complainant was taken to the last occasion upon which it was alleged that the appellant had sexually assaulted her. This was before her 14th birthday. She was asked why she went to the appellant's home, and whether she had put up any protest. She said she had not protested, and had just gone there. She was questioned in some detail about the interior of the house and how far away from the bedroom of the appellant and his wife the spare bedroom was. Her answer was that it was about four or five metres away. She was asked whether, by going to bed before her brother, she would be in danger, and she responded that she did not think about it. She was asked about the alleged incident, and asked whether she had said anything to the appellant to stop what he was doing. She said she did not. When asked why not, she said that she did not know what to do.

47 The complainant was then asked whether she had been questioned by members of her family about the appellant's conduct. The following exchange occurred:

You were asked twice by members of your family after this whether or not he had molested you, whether Poppy [J] had molested you, weren't you?---Yes.

And you said no both times?---Yes.

How old were you the first time that somebody asked you?---I was 14.

14. How long had it been since you saw Poppy [J]?---I'm not sure.

You're not sure? What about the next occasion, how old were you then?---18.

18; and you denied it again?---Yeah.

How long had it been since you'd been to Poppy [J's] when you were 18?---Quite a while.

Quite a while. Can you remember? Was it years, months?---I tried to avoid going after that last incident and when I did go I made sure that I'd take a friend with me, but I only remember going back once or twice afterwards.

Once or twice. So in the four years between - or four or five years between the ages of 13 and 18 you say you only went back once or twice?---I could have gone back other times, I don't remember.

But when you were 18 years of age and you were asked whether he'd ever done anything to you you said no?---Yes.

At 18 you were an adult, why didn't you say something then?---Because I thought I'd dealt with it, like inside, I didn't want to bring it back up again, let sleeping dogs lie.

[Complainant], can I suggest to you that the events you've described didn't take place?---How can you say that?

I'm suggesting to you they didn't?---I'm telling you they did.

Yet at no stage between the ages of, what, 11 or 12 when it started until the age of 18 did you ever say anything to any member of your family?---No.

48 There was only one other witness called for the prosecution. This was Ms W, who was the mother of the complainant's cousin, L.

49 Ms W gave evidence that she could recall being at both houses occupied by the appellant at Girrawheen; namely, the house at Pointer Way and that at Ipswich Crescent. She recalled seeing children in the swimming pool at Pointer Way and, in particular, her daughter and the complainant. She said she also saw the appellant in the swimming pool. She described him as wearing Speedo bathers. She was then asked the following questions:

And can you tell us, can you recollect any occasion on which you saw, and I'm only interested really in [the complainant], in the pool at the same time [the appellant] was there?---Yes.

How close together were they?---Very close.

And what was [the complainant] doing when you saw her?---Sitting on his lap.

That's in the swimming pool?---In the swimming pool.

And where would he be sitting in the swimming pool?---Sitting on the step, all over the pool.

50 Ms W said that she was at the appellant's home on the occasion of her daughter, L's, 12th birthday. She recalled that the appellant offered to take L and the complainant out for their birthday and to buy them presents. She said that he had taken them to the movies and he had bought each of them a set of white overalls. She identified these overalls in photographs which were exhibit 7.

51 Photocopies of these photographs were produced to this court and they show the two girls in short, white overalls. Two of the photographs could be said to concentrate on the areas of the thigh and groin.

52 Ms W was cross-examined by counsel for the appellant. It was put to her that family gatherings were large and busy affairs, and that the swimming pool would have been a popular focal point for activity. To both of these propositions, Ms W agreed. It was put to her that the pool would, at all times, have been full of kids, but Ms W said that this was not so all the time. She said, 'Sometimes he was in the pool with the girls on their own'.

Developments after close of prosecution case

53 The prosecution case concluded on the afternoon of 2 August 2004. The following morning, prosecuting counsel advised the trial judge (in the absence of the jury) that a man, FS, had approached a detective, who was an investigating officer in the case. FS was a friend of the appellant's family. He told Detective Barry that there had been a conversation between himself and the appellant at a party, when the appellant had said that the complainant used to get in the swimming pool, back up to him and take his penis out of his swimming shorts.

54 Prosecuting counsel said that he was bringing this matter to the attention of the defence. He did not intend to call FS himself. Defence counsel said that he had already discussed the matter with the appellant and the appellant denied the conversation, although he had told defence counsel that the complainant had acted inappropriately with him, swimming between his legs on occasions and grabbing at his genital area. Defence counsel said that he had no intention of calling FS.

55 The trial judge then raised the issue of the appellant giving evidence. Counsel for the appellant responded by saying, 'I can indicate at this stage he will'.

56 There was then an adjournment to enable the prosecutor to consider the matter. When the court resumed, the prosecutor told the trial judge that he wished to lead evidence from FS. This, in turn, led to debate as to whether or not there would need to be an adjournment. Counsel for the appellant said that he would need to speak to the appellant in detail, to discuss the implications of either proceeding with the trial, or adjourning. He said, 'I have to canvass all possibilities with him'. The matter was then adjourned to enable instructions to be taken.

57 Upon resumption, counsel for the appellant said to the trial judge:

KEELEY, MR: If it please your Honour, I have taken my client's instructions. His instructions are that he wishes to proceed with the trial so essentially my application is that the trial should not be adjourned but should proceed and that it should proceed upon the basis of the evidence which has been heard to date and that there should be no question of the introduction of any fresh evidence at this stage. That is our position.

58 The trial judge then ruled against the prosecutor's application for an adjournment of the trial, and the jury was recalled. It appears from times shown on the transcript of the proceedings, that approximately one and a half hours had elapsed between the time the matter was first mentioned and the time the trial resumed.

59 After the resumption of the trial, counsel for the appellant announced that he would call the appellant. The appellant went into the witness box and gave evidence. He testified that he had lived at two addresses in Girrawheen during the period referred to in the indictment. He said that he had heard the allegations made by the complainant, and he then dealt with them.

60 The appellant first turned to the question of the swimming pool incident. He said that there was a swimming pool at Pointer Way. He said it was what was called a 'patio pool'. He said that family gatherings occurred at the house, and that there was 'always someone there'.

61 The appellant described the layout of the house, and its immediate vicinity. He described, in particular, a games room that looked out towards the backyard and the swimming pool. He said that the games room had Perspex windows and that if he was standing in the games room, he could see the swimming pool. He said that there was a bathroom in the house, and that, in effect, the games room was added to the bathroom.

62 The appellant said that there was a window to the bathroom, which was made of frosted glass. It had a latch on it, and it was pushed out. It had a rod which had two positions only, so that the window did not open right out. It only opened partly out. Its fullest opening extent would have been about eight inches. In front of the window in the games room, there was a bar and a bar fridge. The window could be opened, but it was never opened. In explanation for this, the appellant said:

Why not?---For two reasons, one it opened up and if someone did stand at an angle in the games room they could see into part of the bathroom and the other reason was the fact that when it was first - when the bar was first put in I hit my head on the window going to the bar fridge so it was kept closed after that and I put some little ornamental things along a shelf which was part of the foundation of the house.

Were those ornamental things placed in the path of the opening window?---Yes, they were.

63 The appellant denied that he had delivered 'slobbery kisses' and had inappropriately touched the complainant on any occasion when she came to the house. He also denied that he had ever put money down the front of her bra, or in her pants. He said that he had given her money on odd occasions, 'just the odd time $5'.

64 The appellant said that at times when the complainant came to his house, his wife was there and at different times, the complainant's stepfather. He denied that there had ever been any improper incident in the swimming pool, saying:

You've also heard the complainant saying that she sat on your lap in a swimming pool. Did she ever sit on your lap in the swimming pool?---She didn't actually sit on my lap. Yes, you could say she did sit on my lap, yeah.

You heard her make allegations that while she was sitting on your lap she, or you rather, had an erection and you encouraged her to fondle your penis and to take it out of your bathers?---That's untrue.

65 The appellant denied that he had ever played pornographic videos to the complainant. He also denied that he had ever entered her room and interfered with her, saying that because of the layout of the house, this would have been impossible. He said that if anybody had entered the spare room, it would be visible from the lounge room.

66 The appellant dealt with the photographs which had been tendered in evidence. He admitted having taken the two girls shopping at Galleria Shopping Centre and having bought them outfits. He said he had taken photographs of them, but that he had taken hundreds of photographs of family members. He had stacks of albums of these photographs. He said that the children asked him on many occasions to take photographs and that they did poses, and wanted photographs of themselves. Quite often, he would give them photographs, and he would take two or three photographs so that he could do this.

67 The appellant said that he had never watched the complainant in the shower, and that he was positive he had never been alone with the complainant. He said there were always lots of people in the pool.

68 The prosecutor first took the appellant to the photographs of the complainant. He asked the appellant why the complainant was in the poses shown in the photographs. The appellant was unable to answer, but he challenged the evidence that the complainant had given that he had told her to pose in that way, saying that he would not have told her. He could see nothing wrong with the photographs. He could not see why that might be thought objectionable by other persons.

69 It was put to the appellant that exhibit 5 had initially been a photograph of the complainant with her brother, but it revealed only the complainant who had been 'extracted' from the initial photograph. The appellant agreed that this was correct and said that the explanation for it would have been that the complainant had asked for that photograph of herself, in particular.

70 The appellant was asked whether he saw 'something a bit off' in the photograph. He said he did not. He was asked whether the photograph focussed on the legs and middle body of the complainant and he denied it. He was asked why he would have selected that photograph, which was not a particularly flattering photograph of the complainant, when he took hundreds of photographs. He answered that it would have simply been amongst all of the other photographs.

71 The appellant was then asked to examine exhibit 4. It was put to him that this photograph focussed on the genital area of the complainant, looking up her legs. The appellant answered that this photograph 'just focussed on her'.

72 The prosecutor put to the appellant that he deliberately took photographs at an angle which showed the midriff area of the complainant. He was taken, particularly, to exhibit 7, and it was put to him that this photograph showed 'a lot of leg and a bit of underwear'. The appellant responded that he could not see any underwear. It was then put to him that the angle of the legs and the groin areas was such that 'a lot of thigh' was being shown, and it was suggested that the photographs were deliberately taken for the appellant's pleasure. He denied this, and said that he only took the photographs because the girls had asked him to take them in their outfits.

73 Exhibit 7 comprises three photographs, two of which reveal, particularly, the midriff area of two girls. One of them shows only torsos and the heads are, effectively, cut off. Another shows two girls sitting on a sofa and it can fairly be said that the photograph concentrates on the midriff area of both of them.

74 The appellant was asked whether he kept the photographs in a briefcase in his vehicle. He said that he did. He was asked why he did that, and he said that he had 'stacks of photographs in there' and took them out at different times. It was then put to the appellant that 90% of the photograph were of female members of his extended family. He denied this.

75 The appellant was challenged about his claim that it was impossible to sexually interfere with the complainant whilst she was in the spare room at his house. He answer that 'nobody in their right mind' would go into the room, shut the door and get into bed, knowing that, at any moment, the complainant's father might come in. He added that he could have been seen from the lounge room, had he done so.

76 The various assertions of the complainant were put to the appellant, but he denied that they had occurred.

77 The appellant denied that when he greeted the complainant, he had ever kissed her on the mouth, hugged her, or pressed his body up against her. He admitted that, on saying goodbye, there may have been a hug, or a kiss on the cheek, but denied that there had ever been any inappropriate kissing as alleged.

78 The appellant was asked whether he had ever said to the complainant that she was 'turning into a beautiful young woman', and he said he had not done so to his knowledge. When pressed, he said he did not know whether he had said this or not.

79 The appellant was taken to the question of the window. He was asked about his evidence that ornamental things had been put along the outer ledge of the window. He said that these were put there when the bar had been put into the games room. He admitted that, prior to this time, the window opened out on its vertical axis. At that time, it was possible to see into the bathroom to the wall where the towels were hanging.

80 The appellant was questioned about the swimming pool. He was asked whether if he was in the pool, he would be able to see whether anybody was in the games room. He said that he would. He agreed that, on occasions, the complainant and 'all the other kids' sat on his lap in the pool. He agreed that he usually wore Speedo-type bathers. He denied that he asked the complainant to sit on his lap, or that he wriggled around until he had an erection. He denied that he asked the complainant to touch his penis.

81 The prosecutor turned his attention to the question of videos. He asked the appellant whether any videos had ever been shown in which men and women were having sexual intercourse, and whether, at any time, the complainant had watched such videos. He denied that there was ever any such occasion.

82 When questioned generally about watching videos, the appellant made mention of the complainant coming from the bedroom. He was questioned as follows:

Did [the complainant]- was [the complainant] ever watching any of those videos with you?---Not exactly, no.

What do you mean, not exactly. She either was or wasn't?---She came from the bedroom into the lounge room when I was watching one, her and [L], and I sent them both back to bed and that was the day that I'd bought their overalls for them.

83 The prosecutor then returned to the question of photographs, asking the appellant why it was necessary for him to carry around photographs of the complainant in his briefcase. He was asked why he did not leave the photographs at home in places that his wife stored photographs. He said that he could not answer the question, because he did not know. It was put to him that he carried the photographs around because they gave him some sort of sexual pleasure, but he denied it.

84 The specific allegations were then put to the appellant. Each of them, he denied. He did admit that on the occasion upon which the complainant said she was alone with the appellant on a Saturday, the appellant's wife would not be at home.

85 There was a short re-examination of the appellant. It related to the question of photographs. It was put to the appellant that they were 'snapshots'. The appellant said that they were snapshots and not posed photographs. He said that the existence of the photographs was not kept secret from his wife, and that some of the photographs were 'second shots' of the photographs which had been given to others.

86 The appellant's ground of appeal is supported by affidavit evidence of the appellant. In an affidavit sworn 5 February 2008 (supplementary to an earlier inadequate affidavit), the appellant contends that some time after 4 March 2003, after having been advised by Legal Aid that Mr Rod Keeley would be his lawyer for his forthcoming trial, he went to Perth to drop off papers for his trial at the Legal Aid office. He then met briefly with Mr Keeley and gave him:

The Prosecution brief, including witness statements;
Some pages of hand written notes I made with points ranging from 1 to 32. These were points I thought were important to my trial and points that Mr Keeley should be aware of and should raise at trial; and

Some diagrams I had hand drawn of the unit and house where the offences were alleged to have occurred, showing the floor plans.

87 The appellant says that there was no detailed discussion with Mr Keeley at this point, but that Mr Keeley said that he would go through the material. He said that he did not speak to Mr Keeley again until he was told to come to Perth to look at some photographs at the office of the Director of Public Prosecutions. An arrangement was made for this to be done, and the appellant, with Mr Keeley, looked at about 90 photographs at the office of the Director of Public Prosecutions. The appellant says that, after this, when leaving the office of the Director, Mr Keeley said to him that he was not to worry about the case because he had a good defence. The appellant also says that Mr Keeley told him that he would not be giving evidence. The words used were said to be, 'You don't have to give evidence, so don't worry about it'. The appellant says he did not question this because he trusted that Mr Keeley knew what he was doing.

88 The appellant says that, between this date and the time of his trial which commenced on 2 August 2004, he rang Mr Keeley a number of times to speak to him about the trial, but Mr Keeley was generally unavailable. When he did speak to him, he was told that everything would be okay, and that he was not to worry. The appellant complains that, during the calls, there were no specific details of the case discussed.

89 The appellant contends that at no time did Mr Keeley ever take a 'witness statement' from him and nor did he ever provide Mr Keeley with one. The only things he gave to Mr Keeley were the documents that he had earlier provided. The appellant says that he is unable to recall all the points that he had written down for Mr Keeley and that he was only provided by Legal Aid with one page of the notes that he had given to Mr Keeley.

90 The appellant complains that a number of points were not put to the complainant in cross-examination. Summarised, they are as follows:

(a) There was no cross-examination about the fact that the appellant and his wife did not move into the house in Ipswich Crescent until February 1996. This was a year after the complainant contended certain offences occurred there.

(b) There was no way that the appellant could have seen the complainant through the bathroom window at Pointer Way, because the window was always kept closed. In any event, a 5-year-old could have closed the window, had it been open.

(c) Whenever the complainant arrived at the complainant's house, there were other people present and there was no opportunity for him to take her aside and greet her, as she claimed. Further, the layout of the house was such that it was impracticable for this to be done.

(d) No pornographic video was ever put on whilst the complainant was at the house. A movie rated for mature audiences was all that was put on, and the complainant was told she had to go to bed once the movie started.

(e) The alleged incident at the house in Pointer Way, when the complainant had gone to bed early and her father and brother were in the lounge room, could not have occurred because it would have been 'very risky' for the appellant to have gone into the bedroom by reason of the visibility of the bedroom door from the lounge room. Further, the house was brick veneer with thin internal walls, and anything happening in the room could have been heard. [Because Mr Keeley did not discuss this with the appellant, he knew nothing about thin walls. Further, he made no mention of people being able to see the bedroom door from the lounge room.]

(f) The appellant was never in the swimming pool alone with the complainant. There was always somebody else present, usually the complainant's brother, but often other grandchildren, or even adult family members. [Although Mr Keeley asked some general questions about other people being around, he did not explore the layout of the back area of the house, or the size/layout of the pool.] There were always people sitting around in the vicinity of the pool.

(g) There was nothing exceptional about the appellant wearing Speedo bathers, because all the men in the family did that. If anything untoward happened in the pool, it would have been clearly visible to anybody. [Mr Keeley did not go into the size of the pool, the number of steps, or the layout of it.]

(h) The complainant testified that she had not told anybody about the appellant touching her because she was uncomfortable and scared. She gave evidence that she did not like the appellant and yet she had invited the appellant to her 18th birthday, and she visited the appellant whilst he was in hospital. [Had Mr Keeley discussed this with the appellant, he would have been able to rebut the complainant's assertion that she was scared of him and did not like him.]

91 The appellant also contends that he was taken by surprise when Mr Keeley told the trial judge that the appellant would be giving evidence. He claims that he was 'absolutely shocked'. He says that Mr Keeley had never mentioned to him that there was 'a change in plan and that I would now have to give evidence'. The appellant says that he went along with Mr Keeley's decision and just answered his questions as best he could. However, because Mr Keeley had not discussed the case with him, the appellant was not asked to explain or explore various points he had raised in notes, nor other matters that the complainant had testified about. Specific matters which the appellant says he could have explained are:

(a) The context in which various photographs were taken.

(b) The layout of the unit at Pointer Way and the house at Ipswich Crescent.

92 There is also a complaint by the appellant that no other witnesses were called in his defence, and yet there were many witnesses whom Mr Keeley could have spoken to. This latter issue was not the subject of any complaint at the hearing of the appeal.

93 In the appellant's initial affidavit sworn 29 March 2007, he annexed a letter to Legal Aid dated 3 April 2006 in which his complaints were also summarised. In this letter, there is an indication that, since his trial, the appellant has made further investigations. He says, in relation to the issue of acquisition of the property at Ipswich Crescent, Girrawheen:

As I have set out in my earlier letters to Legal Aid, since the trial I have raised that there is undeniable proof that the complainant lied about some of the allegations that she made against me. This proof demonstrates that at the time that the alleged offences were meant to occur, during 1995 ... I had not even purchased the residence where the offences are alleged to have taken place. I now have the transfer document which shows I did not purchase the property at Ipswich Crescent, Girrawheen until 9 January, 1996. In the complainant's evidence, she makes it clear that if these offences did not occur at that address in that year they did not happen.

94 The contentions contained within this paragraph reveal only that since the trial documentation has been obtained to verify the date of acquisition of the Ipswich Crescent property. There is nothing to suggest that this information was provided to defence counsel when instructions were given.

95 A complaint which is not made in the affidavit of the appellant, but in supplementary submissions filed on behalf of the appellant, is that during the course of the trial, defence counsel raised the issue of 'molestations' with the complainant, putting to her that she had been asked twice by members of her family whether the appellant had molested her. This was said to be a serious error, because the prosecution had not raised the issue and there was no forensic advantage to be gained from the cross-examination.

The relevant test: incompetence of legal practitioner

96 In Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614, Gleeson CJ, at [2], pointed out that an appellant's criticisms of his trial counsel may be relevant to the issue whether there was a miscarriage of justice, but the real issue is whether there was, in fact, a miscarriage of justice. Relevant passages from Nudd were summarised in Rinaldi v The State of Western Australia [2007] WASCA 53 by Steytler P, as follows:

Ground 3 asserts that the conduct of the appellant's defence by his trial counsel was such that he did not have a fair trial, leading to a miscarriage of justice. The High Court has stressed, in Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614, that the statutory ground of appeal, when a contention of this kind is advanced, is that the events complained of resulted in a miscarriage of justice: see at [2] per Gleeson CJ, at [24] per Gummow and Hayne JJ, at [59], [81] per Kirby J, at [158] per Callinan and Heydon JJ and s 30(3) of the Criminal Appeals Act. Gleeson CJ said at [7], in this respect, that:

'The concept of miscarriage of justice is as wide as the potential for error. Indeed, it is wider; for not all miscarriages involve error ... An unjust conviction is one form of miscarriage. Another is a failure of process of such a kind that it is impossible for an appellate court to decide whether a conviction is just. Another is a failure of process which departs from the essential requirements of a fair trial.'

'Alleging that trial counsel was incompetent does not reveal what is said to be the miscarriage of justice. That requires consideration of what did or did not occur at the trial ... of whether there was a material irregularity in the trial ... and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial ... '

(See also Kirby J at [87], [95] and [100].)

When considering a ground alleging incompetence of counsel, regard must be had to the adversarial context of a criminal trial, involving the principle 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': Nudd at [9] per Gleeson CJ (who added that the law 'does not pursue that principle at all costs' and that it recognises the possibility that justice may demand exceptions) and see also at [79] per Kirby J; R v Birks (1990) 19 NSWLR 677 at 682 - 685; TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [8]; Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662 at [7]. [124] - [125]

Has the appellant established that there was a miscarriage of justice?

Alleged failure to take proof of evidence or otherwise take full instructions

97 The appellant says that Mr Keeley did not at any time take a 'witness statement' from him, and nor did he provide him with one. Assuming that a witness statement is the same thing as a proof of evidence, there is no evidence that any such document was prepared by Mr Keeley.

98 However, whether or not the appellant's counsel took a proof of evidence is not the relevant question. The question is whether there was a miscarriage of justice occasioned by any failure on the part of the appellant's counsel to properly present his case: Nudd per Gleeson CJ at [2]. It can sometimes be disadvantageous for defence counsel to take a 'proof of evidence' or 'witness statement' from an accused person. Views about the wisdom of doing so differ. Some defence counsel take the view that it is better that the accused should not commit himself one way or the other by written statement until the evidence has been heard. Others take the view that a properly prepared proof of evidence is vital to preparation of a defence case. Whichever it is, defence counsel need to be fully instructed and fully prepared to defend the allegations against the accused and to mount his case in reply.

99 In the present case, the appellant made available to Mr Keeley the prosecution brief (which included the various witness statements of the persons the prosecution proposed to call), a number of pages of handwritten notes commenting on the assertions contained within the witness statements and some hand-drawn diagrams of the locations where the offences were alleged to have occurred. This material may have been sufficient to fully instruct the appellant's counsel. It appears that the handwritten notes contained 32 points, because the appellant in his supplementary affidavit speaks of '[making] ... points ranging from 1 to 32'.

100 Counsel for the appellant met with Mr Keeley on two occasions prior to the trial and spoke with him by telephone. The first meeting was the occasion upon which the papers were made available by the appellant. Mr Keeley is alleged to have told the appellant that he would go through all of the papers.

101 Mr Keeley later telephoned the appellant to say that he needed him to come to Perth to look at photographs at the office of the Director of Public Prosecutions. This illustrates a desire on the part of Mr Keeley to ensure that he knew what photographs were being held by the prosecution, and a desire to ensure that the appellant himself could give instructions in relation to them. Mr Keeley and the appellant went to the office of the Director of Public Prosecutions, where about 90 photographs were collected. The appellant says that Mr Keeley and the prosecutor went through the photographs together and selected a number from them, but he complains that he was not involved in the process, nor asked to make any comment on the photographs.

102 As there is no answering affidavit from Mr Keeley, it must be taken that this is what occurred. Nevertheless, it may be that Mr Keeley did not consider it necessary to take any specific instructions on any of the photographs which the prosecution indicated would be used. It may be that in the written notes of instructions provided by the appellant, there was commentary in relation to the photographs. There is no evidence in relation to the matter. In any event, at the conclusion of the meeting at the office of the Director of Public Prosecutions, Mr Keeley assured the appellant that he had no need to worry, and had a good defence. It was at this point that he is also alleged to have told him that he did not need to give evidence. I will deal with that issue under a separate heading.

103 Between the date of the conference at the office of the Director of Public Prosecutions and the date of the trial, the appellant spoke to Mr Keeley, although it is unclear on how many occasions. He says that he was assured that everything was in order, and that he had no need to worry. Again, this must be taken to be the position.

104 There is nothing to suggest that there was anything that the appellant could particularly instruct Mr Keeley about which required any further conference with him. He had provided handwritten instructions and other materials, and it is open to conclude that defence counsel was satisfied that he had sufficient information and material with which to conduct the defence.

105 The cross-examination of the complainant appears to me to have covered the essential aspects of the appellant's defence. Much of the content of the cross-examination was entirely consistent with the examination-in-chief of the appellant, indicating that defence counsel understood the appellant's answers to the allegations which were made against him. The cross-examination indicated also that defence counsel had (either from instructions and/or from his own assessment of the case) appreciated what the relevant points were to make in cross-examination of the complainant. In dealing with this issue, I shall therefore make reference to the evidence-in-chief of the appellant.

106 Counsel for the appellant began with a number of questions about the circumstances in which the alleged 'slobbery kisses and pressing of the body' by the appellant against the complainant had occurred on occasions when she visited the appellant's residence. The point was made that other people would have been present on these occasions. The complainant was also asked whether she had ever thought about commenting to her parents about what had occurred. Similar questions were put in relation to the allegation that money had been put down her bra and into her knickers. The complainant was specifically questioned about how she explained to her parents that she had as much money as she did. She said that she had to lie about it. There was considerable questioning about whether others would have seen money being exchanged.

107 All of this indicates to me that counsel for the appellant understood what the relevant issues were in relation to these allegations. He made much of the fact that other persons would have been present and ought to have seen what was going on, if it was going on. Further, the collection of a substantial amount of money must have been something that the complainant had to explain, and she was asked how she did it.

108 It may be that counsel for the appellant did not go into any detail about the circumstances in which the appellant was alleged to have taken the complainant aside where nobody could see. Nevertheless, he had been provided with a sketch of the general layout of the two houses in question, and it was for him to decide whether, from the sketches, anything could be made of this issue.

109 When the appellant came to give evidence, he said that the complainant's mother would usually drop the complainant off at his home, and that, as far as he knew, the complainant's stepfather was always there. He was asked whether he had ever greeted her inappropriately, and he said he had not. He gave evidence about how he had greeted the complainant, saying that perhaps there had been a peck on the cheek on the odd occasion. He said that he had never put money down the front of her bra, or in her pants, but agreed that he had given money, although it was just on the odd occasion and it was $5 or so. The issue was sufficiently covered in cross-examination and in the appellant's testimony.

110 Questions relating to activity in the swimming pool were specifically raised in cross-examination of the complainant. She was asked whether there would have been a lot of people in the house when there was activity in the swimming pool. She agreed that there would have been. She recalled that she had about 10 cousins, and that they and their parents would generally be at family gatherings. She agreed that there would be adults supervising children if they were in the swimming pool. When it was put to her that the alleged incident of sitting on the appellant's lap must have occurred at a time when there were others around the pool, the complainant answered that she and her brother had been in the pool on occasions when there were not others present.

111 The appellant in examination-in-chief agreed that the complainant did sit on his lap in the pool, but he denied that there was any occasion when he had an erection, or when he encouraged the complainant to fondle his penis. He also said that there were always lots of people in the swimming pool, and (by inference) he had no recollection of ever being in the swimming pool alone with the complainant. The issue of whether others would have been at or around the pool at the time the alleged incidents in the pool had occurred was, thus, covered.

112 The question of the bathroom window was clearly raised in cross-examination of the complainant. There were questions about how the window wound out, whether it could be shut, whether the complainant could have reached the window to close it, and whether it would have been difficult to have seen into the bathroom through the window. It was put to the complainant that from the swimming pool, persons could see into the games room where the appellant was alleged to have been standing when he looked at the complainant, and the complainant agreed that, had he been in there looking into the bathroom, persons outside could have seen him.

113 The appellant was extensively questioned about the bathroom window in evidence-in-chief. He gave detailed evidence about the circumstances in which an extension had been built onto the bathroom. He made it clear that if he had been standing in the games room, he could have been seen from the swimming pool (and vice versa). He explained what sort of window the bathroom had to the games room. He described how it opened, and how far out it opened. He said that it could be opened, but that it was never opened. He gave reasons why this was so, including the fact that there was a bar in the way which caused him to hit his head on the window when it was open (in apparent contradiction that it was always kept closed) and that there were also ornamental things on a shelf which meant that the window could not be opened. The issue was, in my view, sufficiently covered.

114 The question of photographs was also raised in cross-examination of the complainant. It was put to the complainant that she looked fairly happy in the photographs. She was also asked whether the police had ever shown her any photographs which had been taken of her in the shower. She agreed that there were none.

115 The appellant gave considerable evidence about the taking of photographs. He gave evidence of the circumstances in which he had photographed the complainant and her cousin. He gave evidence in relation to other photographs (polaroid photographs). He said that he had taken hundreds of photographs of family members during the time he was a Pointer Way. Some of these were kept in albums, but most were in their original folders. He said that he regularly took photographs of the kids. There were photographs not only of the complainant, but also of others. He referred to the fact that the complainant's brother was shown in one of the photographs where the complainant was in the pool. He also gave evidence about the photograph in which the complainant's brother had been taken out of a photograph. He said that the children used to ask him to take photographs of them, and they did poses for him and wanted to see the photographs. Sometimes, he would cut off sections in the photographs. He said, too, that he took many photographs. They were not just photographs of family members, but also photographs which were taken when he was working in the bush, or otherwise when he needed them for work purposes. It seems to me that the issue of photographs was adequately covered.

116 The complainant was questioned about the circumstances of the watching of videos which she alleged were pornographic videos. She was asked (in relation to one occasion alleged) whether she had gone to bed, and then come out and seen something on the television. She denied this, and said that it had occurred straight after the movie.

117 She was asked in relation to the watching of television on another occasion whether she had been watching television with her brother. She responded that she had. She agreed that the appellant was watching television with them as well.

118 The question asked of the complainant about going to bed, and then coming out and seeing something on the television suggests that counsel for the appellant was questioning from instructions. The question was, 'Are you sure you didn't go to bed and then come out and see something like that on the TV', which suggests a specific instruction to that effect. In any event, it seems to me that the issue of pornographic videos was sufficiently raised with the complainant. The appellant gave evidence-in-chief that he had never played pornographic videos in the presence of the complainant.

119 The thrust of the cross-examination of the complainant was that if the offences alleged had occurred, she might have been expected to have complained to somebody - particularly her parents. Further, it was put to her that when the alleged incidents occurred, there were always people about who could, and presumably would, have seen what was happening - yet, the complainant had never told anybody about what had occurred. This included not only her parents, but also her friends. It was put to the complainant that, despite her allegations about what had happened, she was prepared to stay for whole weekends at the appellant's house (at both addresses). Further, at no time between the ages of 11/12 and the age of 18, did the complainant ever say anything to any member of her family about what had occurred.

120 Other aspects of the defence were clearly put. For example, the question of the layout of the house, and the location of the spare room in relation to the lounge room, was clearly raised. The question whether others would have seen the appellant had he endeavoured to enter the complainant's room was also raised. It is true that there was no question raised about the thinness of the walls, but there is nothing to suggest that the appellant had given his counsel instructions about this aspect of the matter. Rather, it seems that this is something that may have been raised for the first time in the appellant's supplementary affidavit sworn 5 February 2008, where the appellant argues that 'because the house was brick veneer, it had very thin internal walls - you could hear everything. She never said anything or called out. It would have been very risky - given that her father and brother could have come in at any time'.

121 On the whole of the cross-examination of the complainant, it seems clear to me that counsel for the appellant appreciated that the strength of the defence case relied upon:

(a) the failure of the complainant to complain to anybody for several years about any incident that had allegedly occurred; and

(b) the fact that on all occasions when the complainant was at the appellant's house, there were people around - often many people, and, yet, none of these people saw anything occur.

122 It was finally put to the complainant that none of the alleged incidents had ever occurred. When the complainant replied that they had, it was put to her that she had never complained between the ages of 11/12 and 18 about any incident that had occurred. To this, she agreed. That, it seems to me, was the gist of the defence case, and it was adequately put.

123 One of the complaints made in the amended submissions of the appellant is that during the trial, counsel for the appellant raised with the complainant the question whether she had been asked by members of her family whether the appellant 'had molested her'. It is said that counsel for the appellant 'effectively signalled to the jury' that, at two distinct points of time, other family members had expressed concerns about the appellant molesting the complainant and, despite her denials at the time, the fact that other family members had asked her about it, was consistent with the allegations that she was bringing against the appellant.

124 However, the questions about 'molestation' need to be seen in the context in which they were asked. The passage has already been quoted. It indicates that counsel for the appellant was at pains to point out that, despite being asked twice by family members whether the appellant had ever molested her, she denied it. On the first occasion, she was 14 years of age, and on the second, she was 18 years of age. At this latter time, it had been 'quite a while' since the complainant had been near the appellant's house. She was then an adult, and, yet, she had said nothing about it.

125 Far from this being disadvantageous to the appellant, it seems to me that it was a necessary line of questioning by his counsel. It established that, when it was specifically put to the complainant at the ages of 14 and 18 years respectively that the appellant had interfered with her, she had unequivocally denied it. When she was aged 18, she was an adult, and she had not been near the appellant for some time. She still denied that he had done anything to her. This was powerful evidence in support of the appellant's contentions that there had been no sexual interference with the complainant. I do not agree that, by raising the issue, counsel for the appellant behaved incompetently.

126 In his supplementary affidavit, the appellant raises some other matters. They include a complaint that it was not put to the complainant that there was a time discrepancy in the complainant's allegations, because she alleged an incident at Ipswich Crescent in 1995, and, yet, the appellant and his wife were not living at Ipswich Crescent until 1996. As I have previously pointed out, the evidence about this issue appears to have become available to the appellant after the trial, because in his letter to Legal Aid of 3 April 2006, he speaks of obtaining proof 'since the trial' that he had not purchased the Ipswich Crescent property until 9 January 1996. In any event, whether or not the appellant had been instructed about the precise dates upon which the appellant had lived at the two respective addresses, it could not be said that any failure to raise with the complainant the specific location at which an incident was alleged to have occurred constituted a miscarriage of justice. The allegation was that there had been an incident. Whether the complainant had it at the wrong location was only of marginal relevance to the question whether the incident itself had, in truth, occurred.

127 The appellant also raises the question whether his counsel adequately cross-examined the complainant about a movie which was alleged by her to be pornographic. The appellant says in his supplementary affidavit that he did put on a movie, and that it was not pornographic, but was rated for mature audiences. He says that he had told the complainant she was to go to bed once he started the movie.

128 It seems to me to be questionable whether, even if counsel for the appellant had been instructed about this, he erred in failing to put it in those terms. To put to the complainant that the movie was, in fact, a movie for mature audiences, and not a pornographic one, was of marginal value. It may have backfired in the sense that the jury may have considered a mature audience video to have been sufficiently capable of being described by a young girl as a pornographic video.

129 The appellant complains that his counsel did not sufficiently cross-examine the complainant about 'the size of the pool, the number of steps, or the layout of it'. However, as I have already indicated, there were sufficient questions about the circumstances of others being in the pool, or around the pool, at the time incidents were alleged to have occurred to have covered this issue.

130 There is an assertion in the appellant's supplementary affidavit that, although the complainant said she did not like the appellant, she had invited him to her 18th birthday, and, in 2002, visited the appellant with a girlfriend whilst he was in hospital having a hip operation. The appellant says that this could have rebutted her assertion that she was scared of him, and did not like him.

131 The appellant says that, had he discussed this matter with Mr Keeley, it would have been an important aspect of the defence case. For my own part, I do not see it as a central issue. Whether the complainant later saw the appellant after incidents of alleged sexual conduct had occurred, or whether she did not was only marginally relevant to the case. What was relevant was that she had never complained about anything between the ages of 11/12 and 18. This was what counsel for the appellant concentrated upon, and, in my view, rightly so.

132 The appellant says in his supplementary affidavit that he was 'absolutely shocked' when Mr Keeley told the trial judge that he was going to give evidence. He says that he had always been told that he would not be giving evidence, and that the 'change in plan' completely surprised him. He says that, given what Mr Keeley had said to the trial judge, he did not know what else to do, so 'went along with his decision'. He complains that he did not know what questions Mr Keeley was going to ask him, and he just answered his questions as best he could.

133 However, the appellant had stood trial in the District Court at Perth in October 2003, when he was charged with a number of counts of sexual offences against a different child. He was convicted of one count of indecent dealing with a child under the age of 13 years. On this occasion, he elected not to give evidence. When the commissioner asked his counsel whether the accused wished to give and/or call evidence, his counsel said, 'No, your Honour, he has elected not to'. This suggests that the appellant understood the nature of the criminal trial process, and the question whether he was or was not obliged to give evidence.

134 In the present case, it was apparent that there were two adjournments on the morning of the trial before the appellant was called to the witness box. The appellant was aware of the fact that his counsel had informed the trial judge that he (the appellant) would be giving evidence. He was opposed to any adjournment of the proceedings and instructed his counsel to say so. If he was taken by surprise by Mr Keeley's announcement that he would be giving evidence, it seems strange that he did not instruct Mr Keeley to seek an adjournment, rather than have him enter the witness box unprepared.

135 In any event, a perusal of the appellant's evidence-in-chief (and his cross-examination) indicates that he was well prepared for the questions which were asked of him. He had answers to all of the questions and never at any stage suggested that he was unprepared to be giving evidence, and was taken by surprise by his counsel's announcement that he would be. For these reasons, I can find no substance in this assertion.

The rule in Browne v Dunn (1893) 6 R 67

136 This issue was not specifically raised in the appellant's affidavits, but is the subject of a contention in the amended submissions filed on behalf of the appellant. It is put that the appellant specifically referred to a number of pieces of evidence in his evidence-in-chief which were not put to the complainant. They were:

(a) whether the bathroom window opened on a vertical or horizontal axis;

(b) whether the bathroom window could not be opened because of small ornaments on a shelf in its path;

(d) whether the appellant ever had pornographic videos in his possession;

(e) whether the lounge room door was always open and so anybody entering the complainant's bedroom would be visible from the lounge;

(f) whether children would repeatedly ask for copies of photographs; and

(g) whether the appellant was ever at home alone with the complainant.

137 It should be said immediately that the trial judge made no remarks adverse to the interests of the appellant consequential upon failure of his counsel to put any matters to the complainant in cross-examination. The question of 'the rule in Browne v Dunn' was never raised.

138 In any event, the appellant's counsel did raise sufficiently the opening/closing of the bathroom window; the question whether it was true that slobbery kisses were given; the question whether any pornographic videos were shown; the question whether anybody could have observed the appellant entering the complainant's room; and the circumstances in which the photographs were taken.

139 It was not put to the complainant that she was never at home alone with the appellant, but, when the appellant was cross-examined, the prosecutor put to him that he was not in a position to deny the complainant's evidence that there was an occasion on which he was alone in the house with her, and he said he could not say whether that was true or not. He also agreed that if it was a Saturday during the day, his wife would not be at home. In these circumstances, there is nothing in the assertion that the rule in Browne v Dunn was breached.

140 The submissions filed on behalf of the appellant do not raise the question of calling other witnesses. The appellant's supplementary affidavit does raise the issue, contending that Mr Keeley failed to contact his wife, or other family members, or friends, to discuss their willingness, or ability, to give evidence at his trial. There is, however, no evidence to indicate what, if any, evidence they could give which went to the issues at trial. Unless counsel for the appellant had been specifically instructed that a particular witness could give evidence which would throw light on those issues, it was not incumbent upon counsel for the appellant to question everybody associated with the appellant to see what they could say.

141 The appellant complains that, because of incompetent representation by his counsel, he did not receive a fair trial. The question is whether, in all the circumstances, the appellant has been able to demonstrate that, by reason of the conduct of his trial counsel, there was a miscarriage of justice.

142 In Nudd, Gleeson CJ, at [10] - [12], made a number of observations about the need for caution in setting out to measure the performance of counsel in a criminal trial. His Honour pointed to the fact that counsel whose conduct is in question is not a party to the appellate proceedings, is unrepresented and may be in a position of conflict of interest with his or her client. A court of criminal appeal is an unsatisfactory forum for assessing the performance of trial counsel, and appellate courts seek to

avoid that assessment unless it is unavoidable. To the extent to which it is reasonably possible, the focus of attention should be the objective features of the trial process. Further, criminal trials are conducted as a contest, and the adversarial system does not require that adversaries be of equal ability. His Honour made the following observation:

Nowadays, when most criminal trials and appeals are funded by legal aid, appellants are often represented by counsel who did not appear at the trial. By hypothesis, trial counsel lost; an appellant supported by legal aid will often want new counsel to conduct the appeal. The client may well be dissatisfied with the performance of trial counsel. Appeal counsel will have his or her own ideas about the way the defence case should have been conducted. Inevitably, in some cases, trial counsel will be blamed for failure. Such blame is pointless unless it can be related to a legal rubric of relevance to the jurisdiction being exercised by the court of criminal appeal. The relevant rubric is miscarriage of justice. [12]

143 Counsel for the appellant adequately cross-examined the complainant in this case and put to her all factors relevant to the appellant's interests. Counsel for the appellant properly called the appellant to give evidence, and there is nothing to suggest that the appellant was unprepared and incapable of putting his answers to the complainant's allegations. To the contrary, he answered each and every allegation in a manner which indicated that he understood what the relevant issues were.

144 The appellant had been involved previously in a criminal trial, and understood the difference between giving evidence and not giving evidence. In this case, he clearly had to give evidence. The allegations and assertions of the complainant needed to be answered.

145 The appellant may well be dissatisfied with the way in which his counsel both approached and conducted the case. Other counsel may have done it differently. The appellant's counsel at the hearing of the appeal may have so advised the appellant. Nevertheless, upon a reading of the transcript of the trial process, I am unable to see that the appellant's trial counsel did anything, or failed to do anything, which, in turn, led to a miscarriage of justice. When tested, the contentions of the appellant have not been shown to have created that miscarriage of justice which is necessary to sustain the appeal. I would therefore refuse the extension of time to appeal.

146 MURRAY AJA: In this matter I have had the advantage of reading in draft the reasons published by Miller JA with which I entirely agree.

147 For myself, I think that this case amply demonstrates what is often, I think, insufficiently understood about cases where the essential complaint on appeal is that counsel at trial has behaved incompetently, thus causing a miscarriage of justice by denying the appellant a chance of acquittal which was fairly open.

148 The principles are clear. They were most recently laid down by the High Court in Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614. That decision was applied in Rinaldi v The State of Western Australia [2007] WASCA 53 where Steytler P discussed relevant authorities and tied them back to the provisions of the Criminal Appeals Act 2004 (WA) s 30(3)(c) which relevantly provides that such an appeal must be allowed where a miscarriage of justice has been demonstrated.

149 The authorities mentioned make clear the essential point that a criminal trial is an adversarial process under our system of criminal justice. At many points during that process counsel must accept the onerous obligation of making a judgment about the best course to take in the interests of the client, and very often the reasons why the judgment is made may not be able to be shared with, and would probably not be understood by, the client. The difficulty is compounded in the context of a jury trial where consideration must be given to the impact which the exercise of the judgment may have upon the jury's perception of the client's case.

150 This case provides many examples of the sort of difficulties which may arise. It was essentially a case of oath against oath. So far as the appellant was concerned that was at the one time a possible strength, as counsel appears to have observed to the appellant before the trial, because to convict the jury would have to accept the evidence of the complainant as not only truthful, but reliable and accurate, and be persuaded on that basis of the appellant's guilt beyond reasonable doubt. The case stood or fell, effectively, upon the jury's conclusion about the credibility of the complainant. On the other hand, therein lay a potential weakness so far as the appellant's case was concerned, if he lost the credibility contest, so to speak, and the jury rejected his evidence, if the decision was made that he should give evidence. In that event the decision whether to rely upon the complainant would be made by the jury without regard for his competing version of the facts, which was a blanket denial that he was guilty of any act which would constitute an element of any offence with which he was charged.

R -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 127 (18 June 2008)

At a glance

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Before

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Judgment (205 paragraphs)

R -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 127 (18 June 2008)

Developments after close of prosecution case

Alleged failure to take proof of evidence or otherwise take full instructions

Legislation Cited (1)

Cases Cited (5)