RHU -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2023] WASCA 49 | Case summary | Zoe

WAWASCA

RHU -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2023] WASCA 49 (29 March 2023)

[2023] WASCA 49

Court of Appeal (WA)|2023-03-29|Before: Quinlan CJ

View original source

At a glance

Source facts

Court

Court of Appeal (WA)

Decision date

2023-03-29

Before

Quinlan CJ

Source

Original judgment source is linked above.

Judgment (137 paragraphs)

[1]

The appellant was convicted after trial of eight counts of sexually penetrating a child under the age of 13 years, contrary to s 320(2) of the Criminal Code (WA) (Criminal Code), and one count of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code. He seeks leave to appeal against his conviction.
The offences were alleged to have taken place on three occasions between 29 October 2019 and 16 November 2020. The offences all related to one complainant, IW, who is the daughter of the appellant's de facto partner. IW was 5 years old at the relevant time.
The appellant was originally charged with a further count relating to HW, IW's younger brother. The evidence of both HW and IW was pre‑recorded prior to the trial. In his pre‑recorded evidence HW made inconsistent statements as to whether the alleged offending against him had occurred. He also appeared to agree with a proposition put to him in cross‑examination to the effect that he had been told what to say by his biological father. Following the pre‑recordings, and prior to the trial, the State discontinued the count relating to HW. Thus, at the trial there was no allegation relating to HW. He was not called as a witness, nor was his pre‑recorded evidence played to the jury.
There are three grounds of appeal. The first ground contends that there was a miscarriage of justice arising from the failure of defence counsel to adduce the pre‑recorded evidence of HW at the trial. Alternatively, it is said that there was a miscarriage of justice arising from the prosecutor referring to the evidence of HW in his closing address without having adduced that evidence. The second ground contends that there was a miscarriage of justice arising from the failure of defence counsel to cross‑examine IW on a statement made by her to the prosecutor in proofing. The statement was to the effect that she knew her complaint was true because HW had told her what the appellant did to him. The third ground contends that there was a miscarriage of justice arising from the failure by the prosecution or the defence to call DW, the appellant's partner and mother of the children, as a witness. It is submitted that had DW been called, she could have given evidence of a potential motive for the biological father of the children, GW, to coach IW to make a false complaint.

[5]

IW's evidence was pre‑recorded on 25 November 2021. Her evidence‑in‑chief consisted of her recorded child witness interview of 18 November 2020. She confirmed that the contents of the interview were true. She was then cross‑examined.[10]
The child witness interview began by IW being asked what she had come to talk about. IW said that [the appellant] 'puts his fingers in [her] girly bits and his mouth, and he also one time put, um, his willy in [her] mouth too'. When asked when these things had happened, IW said 'it happened, like, um, when [she] always [goes] to mummy's house'. She said that these things took place 'anywhere where we are', such as on the couch and bed, 'when mummy's doing one of her jobs like making lunch or dinner'.[11]
When asked about the last time something like this had happened, IW said 'He, um, like, um, did it, like - he first, put it in his mouth on there, and then put his finger on it'. She gestured towards her genitals as she said this. IW said that the appellant first 'put it in his mouth on there, and then put his finger on it and circled it around'. She described how the appellant picked her up and lay her down on the couch, with her bottom and back touching the couch. The appellant pulled down IW's knickers to her feet and then 'put his mouth on [her] girly bits and his finger and then he circled it around'.[12]
When asked what she meant by 'going in a circle', IW said, 'It means you're, like, making it really sore'. When asked what part of her the appellant was putting his finger on, IW gestured to her genitals and said 'Here, inside it'. The interviewer asked IW how she knew it was inside, and IW said, 'Because I always see [the appellant] do it to me'.[13]
When asked what the appellant did next, IW said that a 'little bit later he put me on his bed and then did the same thing to me'. She said this happened on the same day. She said that the appellant called her from his room, and she went to him. He put her down on the bed. Her back and bottom were touching the bed. He then 'put his mouth on [her] girly bits in the inside'. The interviewer then clarified with IW, 'you said that he's put his mouth on your girly bits'. IW replied, 'And then he put his finger in the inside ... he was ... making it go in a circle, and it hurted [sic]'. IW then said that the very next thing that happened was that the appellant made her sit down and watch movies again.[14]
When asked whether this sort of thing ever happened anywhere other than the couch and the bed, IW said that on one occasion it happened in the toilet, specifically the toilet she shared with her brother. She said that on this occasion the appellant 'put his mouth and his finger on [her] girly bits ... in the inside again'. She said that the appellant made her bend over and that her hands, her legs and her feet were touching the floor. The appellant was 'bending doing - and, like, putting his mouth and finger on [her genitals] and making it go around in a circle'. He was 'going in a circle with his tongue'. When he put his finger in her [genitals], he was 'circling around ... making it really sore'. He then 'also puts [sic] his mouth and his finger in my bum'. He made his tongue 'go in a circle' and 'also then he put his finger' in a circle.[15]
IW said that the appellant had only put his penis in her mouth on one occasion and said, 'he was putting his willy in [her] mouth, like, near [her] throat' and then went on to say, 'it was really not nice. I didn't like it. It was really yucky'. When asked where she was when this happened, IW said she was on the couch in the front room of her mother's house. Her mother was cooking lunch at the time and her brother was playing. When asked what she was doing before this happened, IW said she was on the floor when the appellant 'picked [her] up and made [her] lay down'. He then pulled his shorts down and '[put] his willy in [her] mouth'. When the appellant's penis was in her mouth 'he was still pushing it a bit more further [sic]', towards her throat. She could 'feel the yuckiness and the hair on it'. When asked where she could feel the hair, she pointed to her throat. The interviewer asked whether the appellant said anything, and IW replied that the appellant told her to 'be quiet' when she was talking to her mother.[16]
When asked who was the first person was she told, IW replied 'daddy'. She said she 'told daddy all the things that [the appellant] did to [her]'. She said she had also told her grandmother at the same time, which was the day before the interview took place.[17]
In cross‑examination IW maintained her account of each of the incidents. She was unable to give the dates or times but was otherwise unshaken. She agreed with a suggestion that she could tell her mother anything. She disagreed with a suggestion that she had ever told her mother that her father had touched her on the genitals, stating that it was the appellant who had done that.[18]
IW agreed that she had spoken to her father about what the appellant had done to her. Defence counsel then asked:[19]

[8]

GW said that he was in a relationship with DW for about four‑and‑a‑half years until they separated on 1 October 2017. There have been various Family Court orders in respect of custody.[21]
In 2020, DW commenced a new relationship with the appellant. The appellant had been a friend of DW and GW before they separated.[22]
At about 7.30 pm on Monday 16 November 2021, GW was at home with the children (IW and her brother HW). GW's mother, SW, was also present. The children had been staying with GW since the previous Friday. IW was restless and having difficulty going to sleep. In an effort to establish the usual bedtime routine GW asked IW some questions. She said the name of the appellant and began to cry. She used her hand and put it on her mouth and then moved the same hand down to her vagina. IW then said, '[the appellant] used his mouth on my girly bits'. She started crying hysterically.[23]
On hearing this, GW called out to his mother (SW), who was in the living room. IW then told SW what the appellant had done, expressing herself in similar terms.[24]
SW contacted the police the next morning. IW was interviewed by the child assessment team on 18 November 2021.[25]
Under cross‑examination, GW agreed that the relationship between him and DW was a difficult one. He agreed that during their relationship there were arguments about many things relating to the children. He was referred to incidents involving both DW and her father and accepted that those incidents had occurred.[26]
GW agreed that DW's relationship with the appellant began not long after his relationship with DW ended. In October 2017 there was an informal agreement between him and DW whereby GW had the children every second weekend and DW would have them for the rest of the time. GW would also have the children on some other weekends by agreement. GW felt as though DW had more power in relation to the custody arrangements and wanted more time with his children so he took the matter to the Family Court.[27]
GW agreed that the custody arrangements changed in November 2017 because of an allegation that the appellant had assaulted IW. GW agreed that he contributed to bringing that allegation. As a result of the allegation the Family Court gave him primary custody of the children. DW was only permitted supervised visits once or twice a week. GW did not agree that he manufactured the allegation of assault, or that he did so to gain custody of the children.[28]
The charge of assault occasioning bodily harm against the appellant was later dropped by police. GW agreed that in July 2018, new Family Court orders were made in relation to custody which resulted in a 'much more shared custody arrangement'. In 2019 the orders changed again, which resulted in 'somewhat shared' custody of the children.[29]
On 27 July 2020, GW received an email from DW requesting his consent to an amendment to the parenting orders. DW said that she wanted to move to the appellant's house and for the children to go to a new school in the same area. GW did not agree to those changes.[30]
GW rejected a suggestion that in around November 2020 he began coaching HW to make allegations about the appellant:[31]

[32]

In his affidavit Dr Hampson states that he acted for the appellant on a grant of legal aid that was assigned on 30 November 2020. He met with the appellant and took a proof of evidence from him. Amongst other things, the appellant instructed Dr Hampson that he believed that IW and HW may have been coached by their father to make up the allegations.[66]
Dr Hampson represented the appellant at the pre‑recordings of the evidence of IW and HW on 25 November 2021. He states that he cross‑examined IW and HW in accordance with the appellant's instructions. In particular, he put to both witnesses that they had been told by GW to make the allegations. He states that, given HW's concessions in cross‑examination, he made a forensic decision not to ask further questions, including whether HW had spoken to IW about the allegations.[67]
Dr Hampson states that he received the letter from the DPP dated 24 November 2021 by email on the same day (that is, the day prior to the pre‑recordings). As regards the appellant's criticism that he did not cross‑examine IW on the matters raised in the letter, Dr Hampson says that the objective factors that he was aware of at the relevant time included:[68]
1. That his instructions were that IW had been coached by her father. Those instructions included a motive for why the father might do this. The instructions did not include any material to suggest that IW made a complaint as a consequence of speaking to HW.
2. That IW's demeanour in court was that of a compelling witness. She gave a detailed account of each allegation. Her account was independent and completely different from the alleged offending against HW. IW confirmed that HW did not witness the abuse. Her evidence at the pre-recording was largely consistent with the evidence she gave in her child witness interview.
3. That he was not aware of any information that might suggest that HW had witnessed the abuse of IW or spoken of it to IW or anyone else.
As regards DW, Dr Hampson received a letter from her on or about 17 November 2021, which provided a useful chronology, though much of it focussed on the character of GW. The letter did not expressly refer to any allegations of sexual abuse of IW by GW, but the appellant had previously referred to that allegation and it was mentioned in the proof of evidence. Dr Hampson put that allegation to IW in cross‑examination, and it was rejected by her.[69]
Dr Hampson did not represent the appellant at the trial as he was unavailable.[70]
In cross‑examination Dr Hampson accepted that if he had spoken to the appellant about the letter from the DPP it is likely that he would have made a file note about such a discussion. There is no note of that kind on the file. He agreed that there is a chance that he did not speak to the appellant about the letter.[71]

[39]

In the email of 14 March 2022 Mr Kraus goes on to refer to the potential negative consequences of this strategy, including that it would bring the appellant's character into issue, which could result in the allegation being raised by the prosecution that the appellant had previously assaulted IW. There was also a danger in cross‑examining GW on matters that had not been put to IW at the pre-recording. Mr Kraus noted that this might result in an adverse direction by the trial judge to the jury.[79]
Mr Kraus states in his affidavit that he initially entertained the idea of 'in some way' adducing HW's apparent evidence that he had disavowed his previous allegation and had agreed to the suggestion that GW had asked him to make the allegation. He sought advice from colleagues and ultimately concluded that the evidence was inadmissible as it was collateral. He was also of the view that there was a real risk that, even if he was mistaken and HW's pre‑recorded evidence was adduced at the trial, the State may recall HW and ask him to explain his previous answers and this might lead to HW reiterating his original allegation. Mr Kraus states that, having watched the pre-recording, he was of the view that HW's answers regarding the allegation of concoction were not reliable. In this regard he notes that HW was very young and answered the relevant questions before they were fully articulated.[80]
Mr Kraus states that he told the appellant that he considered HW's evidence to be inadmissible and 'dangerous besides'. The appellant, however, was adamant that HW's evidence 'be included'. Mr Kraus considered that the only way he could adduce any evidence on this issue was to obtain a concession from the State that the appellant had been originally charged with a sexual offence against HW but that that charge had been discontinued after HW gave evidence. He could also put the discontinuation of the charge to GW in cross‑examination and suggest that GW had a motive to lie and to have HW lie.[81]
Mr Kraus says that he made the decision to follow the course described in the last paragraph. In pursuance of this he cross‑examined the investigating officer as to the discontinuance of the charge relating to HW and cross‑examined GW as to his awareness of HW's evidence. In following this course he accepts that he disregarded the appellant's desire to call HW as a witness or to play his pre‑recorded evidence.[82]
As regards DW, Mr Kraus states that after meeting her he formed a view that as a witness she may well attempt to avoid answering difficult questions. Some of the information that she gave to him contradicted information provided by the appellant. Mr Kraus was concerned that she would not perform well under cross‑examination and would not create a favourable impression with the jury. He spoke to the appellant about his concerns. He told the appellant that information about the history of the relationship between DW and GW could likely be obtained through cross‑examination of GW. The appellant also expressed concerns about calling DW, saying that he thought she might become angry or emotional in cross‑examination. Mr Kraus and the appellant agreed that this would be negative to the defence case.[83]
Mr Kraus states that he and the appellant discussed a 'warts and all' strategy that involved bringing out all of the prior allegations, including the allegation of assault of IW by the appellant, the allegation of sexual abuse of IW by GW and the allegation of sexual abuse of HW by the appellant. As to the latter, Mr Kraus had a concern that this could lead to HW being recalled as a witness and that the jury might believe the original allegation. This was in a context where the State did not intend to raise the allegation regarding HW due to the likely prejudice to the appellant. On the other hand, the allegation fitted into the case theory that GW had a motive to coach the children to bring false allegations. Despite the risks, the appellant was adamant that the allegation involving HW should be brought to the attention of the jury.[84]
As to bringing out the allegation that GW had sexually abused IW, this would necessitate DW giving evidence, as it was to her that a complaint had allegedly been made. Mr Kraus considered that this course would be 'disastrous' as police records indicated that DW lied about this allegation. There was, therefore, a risk that if DW gave evidence as to this issue she would be cross‑examined to the effect that she had concocted an allegation against DW. The appellant said that he did not want to pursue this aspect of the strategy but did wish to pursue the other two aspects.[85]
As a result of these discussions Mr Kraus prepared written instructions regarding the trial strategy, which the appellant signed on 15 March 2022, confirming that he wished to pursue the aspects referred to. These instructions relevantly state:[86]

[45]

The appellant submitted that for the purposes of ground 1 this court should only have regard to the transcripts of the child witness interview and the pre-recording of the evidence of HW. It was not appropriate, according to the appellant, for this court to view the recordings to form any view as to the cogency of the evidence of HW. The suggested rationale for this position was that the transcript was clear, that the evidence should be viewed in its most favourable light from the perspective of the appellant and that it was not necessary for this court to form any view as to the cogency of the evidence.[90]
The appellant relied on a statement made by the High Court in Pell v Queen[91] to the effect that, in an appeal against conviction where the ground is that the verdict is unreasonable or unsupported by the evidence, the appeal court should not impinge upon the province of the jury by viewing any recording of evidence.[92]
The appellant's position is untenable. This is not a case where the jury saw the evidence in question and made its own assessment of it. In this case the whole point of the appeal is that the jury did not see the evidence of HW. No question of impinging on the role of the jury arises.
In this case one of the essential issues is whether defence counsel, in not adducing evidence from HW, caused a miscarriage of justice. Any assessment of that forensic decision requires this court to consider the material that was available to counsel at the relevant time. An objective assessment of the decision not to adduce evidence from HW (either by tendering the pre-recording or calling him to give evidence at the trial) requires this court to view the pre-recording.
The pre‑recorded evidence of HW was provided to the court on the hearing of the appeal so that it could be viewed in the event that the appellants submissions in this regard were not accepted. Having viewed the pre-recording (and, in particular, the cross‑examination) we make the following observations:
1. HW was 4 years and 2 weeks old at the time of the child witness interview and just under 5 years and 1 month old at the time of the pre‑recording.
2. As might be expected of child of that age, his pronunciation is not always clear and he expresses himself in ungrammatical terms.
3. At times during the pre-recording his concentration wanders and he does not always appear to understand the questions.
4. At the pre-recording he says that he cannot remember the specific incident but does say that everything said in the child witness interview was the truth.
5. He answers 'yes' to many questions, often before the questioner has finished asking a question. This gives the impression that he is being agreeable to the questioner, but not necessarily accepting the proposition that is being put to him.
6. The answers in cross‑examination upon which the appellant relies have a number of ambiguous features. In particular:

[48]

The appellant submits that the pre‑recorded evidence of HW was admissible as evidence capable of supporting the defence case that GW had coached IW to make a false allegation. That is, that evidence made it more probable that GW had coached IW to make similar allegations. This, it is said, was relevant to the assessment of the evidence of IW and was the 'sole way that the appellant could impeach that evidence'. For these reasons the appellant contends that, considered objectively, no competent counsel would have failed to adduce the pre‑recorded evidence of HW and the failure to do so was a miscarriage of justice.[93]
At the appeal hearing counsel for the appellant was asked to explain the basis for suggesting that the pre‑recorded evidence of HW was admissible at the trial, given that at the trial there was no allegation of offending against HW. The concern was that the provisions of the Evidence Act 1906 (WA) pursuant to which the recording had been made did not appear to allow for such a situation. Counsel responded by saying that, if the pre-recording was not admissible, then the obligation of defence counsel was to request an adjournment and make an application for HW to be declared a special witness. The implication was that the evidence of HW would then be called as a witness to give evidence again, either in person or by way of a fresh pre-recording.[94]
The appellant submitted that the relevance of the evidence was not confined to the credibility of GW (that is, to rebut his denial that he had coached HW). Rather, the appellant says that the evidence establishes bias or a motive to provide false evidence and, therefore, falls within the bias exception to the collateral evidence rule. The appellant submits that evidence that GW had coached HW is evidence of bias on the part of a witness regarding the matters in issue at the trial. Counsel said that this only applied to 'a witness whose evidence shines sufficient candlepower' upon the crucial issues in the case.[95] Counsel accepted that there was no evidence that IW had been coached, but said that the evidence of HW was relevant in this way:[96]

[51]

The respondent submits that the pre‑recorded evidence of HW regarding the possibility of coaching was of minimal cogency. The concessions apparently made by HW could be discounted by the jury as concessions easily obtained from a young child by an experienced advocate in the course of a skilful, albeit gentle, cross‑examination. There was no other evidence of coaching and the concessions form a very insubstantial foundation for the appellant's submission that HW had been coached by his father. Furthermore, none of HW's evidence related to the offending against IW. There was no evidence at all that IW was coached.[102]
The respondent submits that the assessment of trial counsel, Mr Kraus, that the evidence of HW was likely to be inadmissible as collateral evidence was correct. Furthermore, counsel's view was that even if admissible the evidence was dangerous.[103]
The respondent says that there were rational forensic reasons for not adducing the evidence of HW:[104]
1. The evidence before the jury was that the appellant had been charged in respect of HW but that the charge had been discontinued after HW gave evidence.
2. Counsel had put to GW in cross‑examination that HW had accepted that the allegation regarding him was untrue and that he had been told by his father to say it. Whilst GW did not accept those propositions, no evidence to the contrary was led by the prosecution.
3. The cogency and reliability of the pre‑recorded evidence of HW was dubious. There was a risk that if that evidence was tendered it might result in the jury concluding that the appellant had offended against HW and that the apparent concessions were not reliable. This could result in prejudice to the appellant that could not be guarded against by a direction.
4. If HW was called to give evidence at the trial there was a real risk that in cross‑examination by the prosecutor HW might resile from any suggestion of coaching and affirm the truth of his original allegation.
The respondent submits that the only possible relevance of HW's evidence would have been to contradict GW's evidence that he had not coached HW. Whether or not HW had been coached was not an issue that had any direct relevance to whether IW's evidence was truthful. It was a matter going only to the credibility of GW on a collateral issue and was therefore inadmissible. GW's evidence that he had not coached HW was final and not open to be contradicted by further evidence.[105]
The respondent submits that the position might well have been different if the appellant sought to adduce evidence that IW was coached. Such evidence could well have been admissible because it would go to the motivation of the critical witness in the trial: See R v Phillips,[106] R v LSS[107] and R v BBQ.[108] In each of those cases the evidence in question was to the effect that a complainant had been coached. In contrast, the evidence of HW was not evidence that IW had been coached.[109]
The respondent submits that the US case of Haggett is inconsistent with the established authority of Attorney-General v Hitchcock[110] and represents a 'remarkable extension' of the corruption exception. Furthermore, what was said in Haggett has not found support in any Australian or English appellate authority.[111]
The respondent submits that the suggestion that if GW coached HW, then he also coached IW, is pure speculation. The denials of coaching by GW and IW did not render the evidence of HW admissible and, in any event, there were rational forensic reasons for not seeking to adduce that evidence.[112]

[53]

There is a threshold question regarding the admissibility of the pre‑recorded evidence of HW at the trial. That evidence was pre‑recorded pursuant to orders made by a District Court judge on 17 September 2021. The orders included an order that the evidence of HW be taken at a special hearing and recorded on a visual recording, made pursuant to s 106I(1)(b)(i) of the Evidence Act. There was also an order that the recording of the child witness interview be presented as part of the evidence in chief at the special hearing, made pursuant to ss 106HB and 106K(4) of the Evidence Act.
Section 106I(1)(b) provides that, where a Schedule 7 proceeding has been commenced in a court, the prosecutor may apply to a judge of that court for an order directing that the whole of the 'affected child's' evidence be taken at a special hearing and recorded on a visual recording. A Schedule 7 proceeding includes a proceeding in which a person stands charged with an offence under ch XXXI of the Criminal Code. That chapter relates to sexual offences and includes the offences charged in this case.
The term 'affected child' is defined in s 106A to mean, relevantly for present purposes, the child upon or in respect of whom it is alleged that an offence was committed, attempted or proposed.
Section 106T(1) provides that the evidence of an affected child recorded on a visual recording under s 106K or s 106N in relation to a Schedule 7 proceeding is admissible in any hearing in relation to that proceeding to the same extent as if it was given orally in the hearing in accordance with the usual rules and practices of the court concerned. For the purposes of that section 'hearing' is defined to include the trial of the proceeding.
The admissibility of pre‑recorded evidence under s 106T(1) depends on the evidence being that of an affected child in respect of the proceeding in which its admission is sought. In the present case the issue is whether HW was an affected child in respect of the trial. HW was an affected child at the time his evidence was recorded because at that time he was a child in respect of whom it was alleged that an offence was committed. However, by the time of the trial the charge relating to HW had been discontinued and there was no allegation of any offence in respect of him. Thus the pre‑recorded evidence of HW was not admissible under s 106T(1) of the Evidence Act.

[54]

The collateral evidence rule provides that answers given by a witness to questions put to him or her in cross‑examination concerning collateral facts are final. Those answers cannot be contradicted or rebutted by other evidence. Collateral facts are facts that do not relate directly to the matters in dispute between the parties. In most cases a fact that affects the credibility of a witness is a collateral fact, hence an answer given by a witness to a matter that relates to credibility only is final and cannot be rebutted.[113]
There are exceptions to the collateral evidence rule. Evidence rebutting a witness's evidence may be adduced where the witness is affected by bias, interest or corruption. Bias is concerned with hostility or prejudice against the opponent personally, or in favour of the proponent personally. Interest is concerned with a specific inclination on the part of the witness as to the cause in issue in the litigation. Corruption is concerned with conscious false intent on the part of the witness, which can be inferred from conduct such as the giving or taking of a bribe. The essential element of evidence showing corruption is a willingness to obstruct the discovery of the truth by manufacturing or suppressing testimony.[114]
The bias and interest exceptions to the collateral evidence rule are typically limited to evidence about the feelings of the witness towards a party or the cause in issue. The corruption exception is not so confined. An offer to testify corruptly has been described as a clear example of the corruption exception.[115]
Evidence of bias or corruption of a witness has been said to be admissible in several cases. These cases include Phillips; Lawrence; LSS; Smith v The Queen[116] and R v De Angelis.[117] In Phillips the English Court of Appeal held that evidence ought to have been admitted to prove that a child who was a victim of, and witness to, an alleged act of incest had admitted that her mother had put her up to making the allegations. The court held that the evidence of two women to whom the child had allegedly made the statements went directly to the appellant's defence and not merely to the credibility of the child.[118]
In Lawrence the Queensland Court of Appeal held that evidence ought to have been admitted to prove that the complainant had told a witness that she was going to set the witness up by telling the police that he had propositioned her for sex. The evidence was characterised as an offer to testify corruptly. In that case McPherson JA said that it was a noteworthy feature of all the cases in which the collateral rule has been relaxed that emphasis had been placed on the fact that the matter of credibility was inextricably linked with the principal issue in the case.[119]
In LSS the Queensland Court of Appeal held that evidence ought to have been admitted to prove that a child who was the victim of incest had been seen being coached by her mother. The person who had seen the coaching was the victim's brother. The Court said that the brother's evidence was inextricably linked to the appellant's defence. In that case Thomas JA said that evidence demonstrating the coaching of a witness, when there is clear opportunity for a person apparently hostile to the accused to influence the witness, ought to be able to be called by an accused person.[120]
In Smith this court's predecessor, the Court of Criminal Appeal of the Supreme Court of Western Australia, held that evidence ought to have been admitted in a sexual offence case of out-of-court statements made by the complainant that suggested bias on her part against the appellant. In cross‑examination the complainant, the foster daughter of the appellant, had denied making a statement that she had been ejected from the home of her foster family for drug taking and had said to the witness 'Don't worry. They will pay for it'. The court held that the evidence that such a statement had been made was capable of proving bias on the part of the complainant leading to the fabrication of the allegations.[121]
In De Angelis the Full Court of the Supreme Court of South Australia upheld the admission of evidence from police officers that a defence witness had said that if required to go to court he would lie in order to avoid offending the appellant. The Full Court held that the evidence was admissible under the common law rule which allows statements by witnesses indicating bias or partiality to be proved.[122]
To the extent that any common themes can be drawn from these cases, all of them related to evidence that suggested a reason why a witness may have given false testimony as to a matter directly in dispute at the trial. Those cases involving allegations of coaching all related to evidence that the complainant had been coached. None of them related to evidence that another person, who was not a complainant or a prosecution witness, had been coached. In any event, it has been observed that the law as it stands does not permit any relaxation of the traditional rules merely on the ground that the particular witness's credibility is inextricably linked with the principal issue in the case.[123]
No authority has been cited to support the proposition that evidence of coaching or suborning of a person who is not a witness is admissible, other than the decision in the US case of Haggett. That case involved allegations of fraud by a former bank officer. In cross‑examination, the principal prosecution witness, another bank officer, denied suggestions that he had promised favoured treatment to three bank customers in return for giving perjured evidence. The appellant was not permitted to call those customers to rebut that denial, because any alleged bias revealed by the evidence was of a general nature since none of the charges related to the three customers in question. The appeal court disagreed and held that the bias revealed by the proposed evidence was not merely collateral and that it was irrelevant that the loans of the proposed witnesses were not the subject of the indictment. The rationale for this conclusion was that proof that a prosecution witness had unsuccessfully attempted to suborn perjury of other persons could have led the jury to doubt the veracity of prosecution witnesses, 'the jury perhaps suspecting that these witnesses were successfully bribed to testify falsely'.[124]
The reasoning in Haggett has not been adopted in any Australian or English case. That is unsurprising as it represents a significant extension to the bias, interest and corruption exceptions. Indeed, it might be viewed as not merely an extension but the endorsement of a form of reasoning that would undoubtedly be viewed in this jurisdiction as improper speculation.

[56]

The relevant principles regarding a claim that a miscarriage of justice has been occasioned due to the conduct of defence counsel were conveniently and comprehensively set out in Huggins v The State of Western Australia.[125] Those principles can be summarised as follows:
1. Incompetence of counsel is not itself a ground of appeal, rather the ground of appeal is that there has been a miscarriage of justice.[126]
2. An appellant who claims that the conduct of their counsel has caused a miscarriage of justice bears a heavy burden which is not easily discharged.[127]
3. Ordinarily, an accused is bound by the way the trial is conducted by counsel, even if that was not in accordance with their wishes.[128]
4. 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.[129]
5. It is not the role of an appeal court to review the wisdom or prudence of counsel's conduct of a trial. For example, an apparently rational decision of counsel to call or not call evidence does not give rise to a miscarriage of justice simply because the appeal court thinks it was to the disadvantage of the appellant.[130]
6. The focus of the inquiry must be on the consequences of the alleged incompetence and the extent to which it caused or contributed to a miscarriage of justice. The focus is on what happened or did not happen, not on why any error occurred.[131]
7. The inquiry on appeal has an objective character. The appeal court does not examine whether a decision taken by counsel at the trial was taken for the purpose of obtaining a forensic advantage or a forensic disadvantage. Rather, the appeal court is concerned only with whether the decision is capable of explanation on that basis. That is, could there be any reasonable explanation for the decision?[132]
8. Generally, an appeal of this nature is not an investigation into the performance of counsel. The subjective views or reasoning of counsel are not relevant. Thus, the evidence of the appellant and counsel as to the reasons for their conduct at the trial are of very limited assistance and it is not necessary to resolve conflicts in that evidence.[133]
9. A miscarriage of justice arising from the conduct of counsel can occur because it has deprived the appellant of a fair trial. In this category, a complete failure to cross‑examine a complainant, a complete failure to address the jury or wrong advice that the accused is not entitled to give evidence may result in an unfair trial.[134]
10. In most cases the issue is whether there has been a material irregularity. It is difficult to establish such an irregularity where the alleged error of counsel involves forensic choices upon which competent counsel could have different views. In this category the appellant must show that there was a material irregularity arising from counsel's conduct and that there is a significant possibility that the irregularity affected the outcome.[135]
The principles referred to in Huggins have been approved by this court in RMM v The State of Western Australia[136] and Jeffery v The State of Western Australia.[137]

[57]

There are two limbs to this ground of appeal. The first limb relates to the alleged failure to adduce the evidence of HW at the trial. The second limb relates to the reference to HW in the prosecutor's closing address.
In order for the first limb to succeed the appellant must establish two things: first, that the evidence of HW was admissible at the trial, and second, that the failure by defence counsel to adduce it occasioned a miscarriage of justice.
The appellant's submissions proceeded on an assumption that the pre‑recorded evidence of HW would have been admissible if relevant. That assumption was not well-founded. A recording of statements made by a person is inadmissible hearsay unless it falls under some common law or statutory exception to the rule against hearsay. The only relevant exception in this case was s 106T(1) of the Evidence Act, which, for the reasons earlier stated, could not be utilised because HW was not an affected child in respect of the trial (or, for that matter, the appeal).
As to the appellant's alternative fallback position that HW should have been called to give evidence at the trial, that will be considered in the context of the forensic decision made by trial counsel.
There was another barrier to admissibility. To be admissible, evidence must be capable of meeting the threshold requirement of relevance. Evidence is relevant if it is capable of rationally affecting the assessment of the probability of a fact in issue. The evidence of HW went only to the issue of whether he had been told to make an allegation. It could not rationally affect an assessment of whether the evidence of IW was true and accurate. It is not, therefore, evidence that was admissible in the positive defence case.
The fact that in cross‑examination GW denied coaching HW does not assist the appellant. That was an issue that was relevant only to the credibility of GW. The answers of witnesses to questions going only to credit are final and it is not open to call evidence to rebut those answers. There are exceptions to the collateral evidence rule, but none of them can apply in the circumstances of this case.
Evidence that a complainant has been coached to make false allegations may well be admissible as falling within the bias, interest or corruption exceptions to the collateral evidence rule. However, HW's evidence was not of that nature - viewed most favourably to the appellant it was only evidence regarding the allegation that HW made, which was materially different to the allegations made by IW. HW said nothing in the pre-recording about the allegations made by IW, far less that she had been coached.
The process of reasoning inherent in the appellant's submissions is that if GW did something in relation to HW he is likely to have done something similar in respect of IW. This form of reasoning invites speculation. That would occur in the absence of any direct evidence that IW was coached (and in the face of denials by both GW and IW). Evidence that GW coached HW cannot prove that he coached IW to make false allegations about entirely separate matters. There is no logical connection between proof of the one thing and proof of the other. Any invitation to the jury to reason in the way suggested would have been improper.
At best the evidence of HW might show some general disposition on the part of GW as regards the appellant, but the relevance of that was very limited. There was other evidence of animosity between GW and the appellant. Furthermore, GW's evidence was confined to evidence of recent complaint by IW. GW gave no direct evidence as to whether the alleged sexual acts had occurred. In that regard the prosecution case depended entirely on the evidence of IW. Evidence of GW's disposition towards the appellant could say nothing useful about IW's evidence.
In the face of firm denials of coaching by both GW and IW, the suggestion that it occurred was, at best, a mere assertion. Whether GW had coached HW (which GW also denied) was a collateral issue as it was a matter going only to the credit of GW. In those circumstances, GW's answers were final and it was not open to the appellant to adduce evidence on a collateral issue.
The inadmissibility of the pre-recording is sufficient to dispose of the first limb of this ground of appeal. There could not possibly be a miscarriage of justice arising from the failure of defence counsel to adduce evidence that was not admissible. However, even if the pre‑recording was admissible this ground would not succeed.
The playing of the recording would mean that the jury would hear, in detail, the nature of the allegation made by HW. The danger of that is that the jury might conclude that that allegation was true notwithstanding the apparent acceptance by HW in cross‑examination that he had been told by his father to say these things. Any benefit derived from obtaining support for an allegation of coaching would have been very much outweighed by the risk of prejudice from adducing evidence of another allegation of sexual offending by the appellant in respect of a different child.
However, as previously explained, in the circumstances of this case, it was not open to the appellant (or the State) to adduce the pre‑recording of HW's evidence at the trial. If the appellant wished to adduce evidence from HW at the trial this would have required calling HW in person or making a fresh application to pre-record the evidence of HW as a special witness (which would have necessitated adjourning the trial). Those possibilities place the forensic decision regarding the evidence of HW into its proper context.
The calling of HW to give evidence at the trial (either in person or by way of a fresh pre-recording) would entail significant risk for the appellant that HW would not give the desired evidence or may say that the original allegation in respect of him was true and that he had never been coached. The ambiguity of the answers given at the pre-recording could not inspire any confidence that HW would necessarily give the desired evidence. The risk was also heightened by the fact that if called by the defence it would not be possible to ask leading questions in examination in chief, but it would be open to the prosecutor to cross‑examine in that manner.
There were obvious dangers in proceeding on an assumption that HW would give the same evidence as he had given previously (even accepting that the appellant's interpretation of that evidence is correct). The prejudice to the appellant if HW gave evidence that a sexual offence had occurred in respect of him and that he had not in fact been told by his father to make a false allegation would have been overwhelming. The risk of that occurring was readily apparent.
It is hard to imagine that any competent defence counsel would have taken the view that calling HW to give evidence at the trial was in the best interests of the appellant. The reasons not to do so were abundantly clear and powerful. The claim that a miscarriage of justice occurred because defence counsel did not adduce evidence from HW can only succeed if, objectively, the decision has no rational explanation. The appellant has fallen well short of meeting that standard. Indeed, in the circumstances, for the reasons already given, in our view the decision by defence counsel not to call HW to give evidence was the only rational forensic decision.
As to the second limb of this ground, the suggestion appears to be that there was unfairness in the prosecutor referring to possible explanations for why HW may have changed his story. The context of this is that the prosecutor was responding to an issue raised in the cross‑examination of GW. The prosecutor's comments about HW were favourable to the defence in that he effectively conceded that HW had changed his story (a matter about which there was no evidence). All the prosecutor then did was refer to HW's age, a matter that was uncontentious. The reference by the prosecutor to looking at HW was a mere slip that was immediately corrected. There is no merit in this limb of the ground.

[59]

The respondent submits that the decision on what matters to pursue and what questions to ask is for counsel alone.[140] The decision not to cross‑examine IW on this issue is rationally explicable having regard to the following:[141]
1. Counsel cross‑examined IW generally on her interactions with her father. She agreed that she had spoken to her father about what the appellant did, but denied that he had told her to say 'these things'.
2. The defence case theory was that the allegations arose from coaching by GW, not from IW copying HW. If IW had been coached by her father she would know this and her belief as to the offending against her would not be based on HW having also complained. Cross‑examination to the effect that IW believed that she had been offended against because she wrongly believed that HW had been offended against would make no sense on the defence case theory.
3. There was material on the brief that made it clear that IW would have been aware of HW's allegation from the time it was first made. This was established from the evidence of SW. A suggestion that IW was copying HW could be made on the basis of this evidence had it been thought useful to do so.
4. There was nothing in the letter to suggest coaching. Rather it merely suggested that HW had complained to family members more than once.
5. It was understandable that IW and HW as young siblings living in the same house would communicate with each other.
6. At the time of the cross‑examination of IW the cross‑examination of HW had occurred. Counsel would be conscious of the possibility that the charge relating to HW may be discontinued and that it may be prejudicial to the appellant to raise HW's allegations in the cross‑examination of IW.
7. If questions regarding the DPP letter had been put the likely outcome would be that IW would repeat her initial complaint or give evidence of HW's complaint.
The respondent submits that if it is suggested that IW's knowledge of the offending against her was literally dependent upon her knowledge of HW's allegation, there is a competing construction of what IW said. It is suggested that the obvious competing construction is that what IW meant was that she should be believed because she was not the only one the appellant had done it to.[142]

[66]

The question of whether DW should be called as a witness was considered by counsel and discussed with the appellant prior to the trial. One reason for calling her was to establish the acrimonious history of custody arrangements involving the children. However, that history could be and had been established in cross‑examination of GW. There is no basis for suggesting that a decision that, in the circumstances, it was not necessary to call DW was not a rational forensic decision.
It is suggested that another reason to call DW was to prove that she had previously made an allegation of sexual misconduct by GW. That evidence could only prove that such an allegation was made, not that it was true. The only possible relevance of such evidence was to show GW might have a reason for feeling animosity towards DW. Exactly how that could support a conclusion that GW had a motive to lie about whether IW had made a complaint to him about the appellant several years later is not clear. Furthermore, the allegation by DW was not believed by the police and never resulted in a charge. This aspect of the case strategy was discussed with the appellant and, on the evidence of Mr Kraus, which we accept, it was agreed that it should not be pursued. The test, however, is an objective one, and we will consider that shortly.
As regards the evidence that DW could give about the assault allegation, it is difficult to see how that could be anything other than collateral evidence. The assault allegation was not in issue at the trial. The evidence that GW gave about it in cross‑examination was relevant only to his credibility. It was not open to adduce evidence to contradict that evidence.
The opinion of DW that IW was not her usual self in the child witness interview was merely vague inadmissible opinion. Furthermore, DW, who plainly continues to support the appellant, would hardly have been seen as a disinterested witness. Any evidence she could give in this regard would likely be accorded little weight by the jury.
The decision not to call DW as a witness was made by defence counsel. He did so with the concurrence of the appellant. The agreed position was that she would only be called if it had not been possible to obtain evidence of the history of the custody disputes from GW. The matters raised by the appellant were known to counsel and a considered decision was made not to call DW. At that time the facts known to counsel included: that the appellant did not want DW called because she might become emotional and perform badly; that that was counsel's own view having met DW; and that there was a risk in calling DW that evidence prejudicial to the appellant might be given.
The claim that a miscarriage of justice occurred because defence counsel did not call DW to give evidence can only succeed if, objectively, the decision has no rational explanation. The appellant has fallen well-short of meeting that standard. There were plainly good reasons not to call DW. This ground cannot succeed.