Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Propensity and relationship evidence - Uncharged acts - Admissibility under s 31A of the Evidence Act 1906 (WA) - Directions of the trial judge about the propensity and relationship evidence

Criminal law - Visually recorded interviews with children - Proper construction of s 106HA and s 106HB of the Evidence Act and reg 5 of the Evidence (Visual Recording of Interviews with Children) Regulations 2004 (WA) - As far as is practicable, statements made by a child in a visually recorded interview are not to be elicited by the use of leading questions - Meaning of 'as far as is practicable' and 'leading questions' in reg 5 of the Evidence (Visual Recording of Interviews with Children) Regulations

Evidence (Visual Recording of Interviews with Children) Regulations 2004 (WA), reg 5

Evidence Act 1906 (WA), s 31A, s 106HA, s 106HB, s 106HC

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79

Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193

R v Wright [1999] VSCA 145; [1999] 3 VR 355

Re an Application by JC [2010] ACTSC 134

2 BUSS JA: On 23 October 2009, the appellant was convicted in the District Court, after a trial before Goetze DCJ and a jury, on nine counts in an indictment which alleged the commission of sex-related offences against his young granddaughter, T, who was born in 2000.

(1) On a date unknown between 30 October 2004 and 18 November 2005 ... [the appellant] sexually penetrated [T], a child who he then knew to be his lineal relative, by penetrating her mouth with his penis

And that [T] was a child under the age of 16 years.

(2) On the same date and at the same place as Count 1, [the appellant] sexually penetrated [T], a child who he then knew to be his lineal relative, by penetrating her vagina with his thumb

And that [T] was a child under the age of 16 years.

(3) On a date unknown between 30 October 2006 and 1 November 2007 ... [the appellant] procured [T], a child who he then knew to be his lineal relative, to do an indecent act, namely touch his penis with her hand

And that [T] was a child under the age of 16 years.

(4) On the same date and at the same place as Count 3, [the appellant] sexually penetrated [T], a child who he then knew to be his lineal relative, by penetrating her mouth with his penis

And that [T] was a child under the age of 16 years.

(5) On the same date and at the same place as Count 3, [the appellant] sexually penetrated [T], a child who he then knew to be his lineal relative, by penetrating her mouth with his penis

And that [T] was a child under the age of 16 years.

(6) On a date unknown between 1 January 2007 and 22 July 2008 ... [the appellant] sexually penetrated [T], a child who he then knew to be his lineal relative, by penetrating her mouth with his penis

And that [T] was a child under the age of 16 years.

(7) On or about 20 July 2008... [the appellant] procured [T], a child who he then knew to be his lineal relative, to do an indecent act, namely touch his penis with her hand

And that [T] was a child under the age of 16 years.

(8) On the same date and at the same place as Count 7, [the appellant] sexually penetrated [T], a child who he then knew to be his lineal relative, by penetrating her mouth with his penis

And that [T] was a child under the age of 16 years.

(9) On the same date and at the same place as Count 7, [the appellant] sexually penetrated [T], a child who he then knew to be his lineal relative, by penetrating her vagina with his penis

And that [T] was a child under the age of 16 years.

4 The appellant appeals to this court against his conviction.

5 The appellant is T's paternal grandfather. The offending commenced when T was aged about 4 years. When the offences occurred, T was in the care and custody of the appellant and his wife, R. T and her sister had been removed from the care and custody of their biological father, who was the appellant's son.

6 The counts in the indictment were representative charges. They occurred between 30 October 2004 and 22 July 2008.

7 The prosecutor said in his opening address that T had been interviewed by two police officers who had received special training in the interviewing of children. Neither of the police officers in question (Christina Herriott-Evans and Nadine Wood) gave evidence at the trial.

8 T's evidence was given by playing three visually recorded interviews between T and the police officers. T then gave some additional evidence-in-chief and was cross-examined before the jury. There was no re-examination.

9 The appellant's trial counsel conceded that T's evidence about other sexual misconduct, not alleged in the counts in the indictment, was admissible as evidence of the appellant's propensity, and also as evidence of the nature of the relationship between the appellant and T.

10 The State also relied, in proof of its case against the appellant, on evidence from the appellant's step-daughter, D. D gave evidence about sexual misconduct engaged in by the appellant against her when she was a child. D was aged 34 at the time of the trial. She spoke of events which had occurred when she was aged 7 or younger. The events in question therefore happened about 27 - 30 years before the commencement of the trial.

11 The appellant's case at trial was that none of the sexual misconduct alleged by T and D (including the counts in the indictment) had ever occurred.

12 The appellant did not give evidence at the trial, and he did not call any witnesses.

13 The appellant relies on four grounds of appeal. Ground 1, as amended at the hearing, alleges that the trial judge erred in law and fact, and there was a miscarriage of justice, when his Honour ruled that the evidence of D was admissible under s 31A of the Evidence Act 1906 (WA). Ground 2 alleges that the trial judge erred in law and fact, and there was a miscarriage of justice, in the directions he gave the jury about the propensity evidence adduced by the State. Ground 3, as amended at the hearing, alleges that the trial judge erred in law and fact, and there was a miscarriage of justice, when he ruled that the three visually recorded interviews were admissible. Ground 4 alleges, in the alternative to ground 3, that the verdicts of guilty on which the convictions are based should be set aside because they are unreasonable or cannot be supported by the evidence.

14 On 4 May 2010, Owen JA referred the application for leave to appeal to the hearing of the appeal.

The merits of ground 1: the nature of D's evidence

15 The evidence of D related to four separate incidents of alleged sexual misconduct by the appellant.

16 First, the appellant showed her a pornographic magazine at their home while her mother was in hospital (ts 141). Secondly, the appellant placed her hand on his penis and made her masturbate him (ts 142). Thirdly, the appellant pushed her head towards his penis and attempted to make her perform fellatio (ts 143). Fourthly, the appellant turned her over after the attempted fellatio and rubbed his penis on her back (ts 143 - 144).

(a) after the masturbation incident, the appellant called her 'a dirty little bitch' and threw her against a wall, which resulted in her suffering a black eye (ts 142);

(b) the appellant permitted her to watch a movie, Jaws, after the attempted fellatio incident, as a treat (ts 144); and

(c) when D was living with the appellant and her mother, the appellant would hit her (ts 144 - 145).

The merits of ground 1: the rulings at trial on D's evidence

18 At a directions hearing before the commencement of the trial, Fenbury DCJ ruled, pursuant to s 98(2) of the Criminal Procedure Act 2004 (WA), that D's evidence, in relation to the appellant's sexual misconduct against her when she was a child, was admissible under s 31A of the Evidence Act as propensity evidence and, also, as relationship evidence. His Honour found that:

(a) the evidence in question was 'propensity evidence' and 'relationship evidence', as defined in s 31A(1);

(b) the evidence had significant probative value; and

(c) the probative value of the evidence, compared to the degree of risk of an unfair trial, was such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial (ts 6).

19 By s 98(6) of the Criminal Procedure Act, the proceedings before Fenbury DCJ are to be taken to be part of the appellant's trial.

The merits of ground 1: the appellant's submissions

20 Counsel for the appellant submitted to this court that D's evidence as to the appellant's alleged sexual misconduct was 'of virtually no probative value' and, in any event, the prejudicial value of the evidence 'far outweighed' its probative value. According to counsel, the risk that the appellant would not receive a fair trial was 'palpable'. This risk lay in the jury using impermissible reasoning, based on D's evidence, to establish the appellant's guilt in relation to the counts in the indictment. The impermissible reasoning was that because the appellant had engaged in sexual misconduct against D some 27 - 30 years earlier, he must have committed the offences against T. Counsel submitted that the risk he had identified was incapable of being guarded against by a suitable direction.

The merits of ground 1: did D's evidence have significant probative value?

21 Although the offences allegedly committed against T did not involve the appellant showing her pornographic material, that act in relation to D was inextricably connected with the appellant's conduct in procuring D to masturbate him. D's evidence in relation to these incidents reads:

Do you recall anything happening between you and [the appellant] whilst you were living at the [South Australian town] address---Yes, he - while Mum was in hospital with Ben, or having Ben, he showed me a porno book in his bedroom - in their bedroom ...

...

It's all right, take your time---Yeah, he tried - he tried to make him[sic] masturbate him while he showed me the centrefold of the magazine.

How did he try to make you masturbate him---With - he grabbed my hand to put on his penis, and tried to - held me to make him masturbate himself. Sorry.

It's all right---I don't know if he ejaculated or anything, so - - -

Did your hand come into contact with his penis---Yes. Yes. Yeah, he made my hand grip onto his penis really hard, and masturbate him. Yes.

And how long did that last---Probably a couple of minutes. I'm not sure how long (ts 141 - 142).

22 Two of the counts in the indictment, namely counts 3 and 7, alleged that the appellant had procured T to touch his penis with her hand.

23 D's evidence in relation to the incident of attempted fellatio reads:

Did anything happen between you and [the appellant] while you were there---Yes. Yes, the next time, one of the nights he had let me go in his bedroom and he was trying to make me give him oral - oral sex. And he kept on pushing on my head down near his penis area saying to suck it, whatever. And I couldn't because he smelled so bad. I'm sorry.

It's all right---I just kept on dry-reaching because he was stinky.

And did your mouth actually come into contact with his penis at any time---No. Nah, I couldn't get near it. It was - no.

And what happened then---He was - he was okay with that. He said, 'That's okay', and just turned me over onto my back and just humped my back - - -

JONES, MR: What do you mean by - - ----- - - from there - - -

Sorry, what do you mean by humped your back---Well, his - his penis was on my back. I don't think I had a t-shirt on and I could feel his hard penis on my back. I don't know if he did anything on it or finished what he was supposed to be doing. Sorry (ts 143 - 144).

24 Five of the counts in the indictment, namely counts 1, 4, 5, 6 and 8, alleged that the appellant had penetrated T's mouth with his penis.

25 The evidence of D was not vague in relation to time or place. As to the pornographic magazine and the masturbation, D gave evidence that these incidents occurred when she and her mother, her brother and the appellant were living together in a house in a particular town in South Australia. They happened while her mother was in hospital giving birth (ts 141). As to the attempted fellatio, D said that this incident occurred when she was aged 7 and while she was visiting the appellant for the purpose of seeing her brothers. She added that, for a couple of days beforehand, she had stayed at the house of the appellant's then girlfriend, Tanya (ts 143).

26 There is a significant coincidence between the circumstances of the sexual misconduct, as described by D, and the circumstances of the sexual misconduct alleged in the counts in the indictment. In particular:

(a) A familial relationship existed between T and the appellant, and also between D and the appellant.

(b) Each of T and D was in the appellant's care when the sexual misconduct occurred.

(c) The sexual misconduct complained about by each of T and D was similar in nature.

(d) T and D were of a similar age when the sexual misconduct took place.

(e) The appellant used both violence and reward in relation to each of T and D during the period when the sexual misconduct occurred.

27 The critical issues of fact at the appellant's trial were whether the appellant had committed the particular acts in relation to T as alleged in the indictment.

28 I am satisfied that the evidence of D, having regard to the evidence adduced or to be adduced from T, had significant probative value. In particular, the evidence of D could rationally affect, directly or indirectly, the probability of the existence of facts in issue at the appellant's trial, namely, whether the conduct alleged in the indictment in relation to T occurred or not.

29 The appellant was born on 12 September 1953. He was aged about 26 - 29 years when the sexual misconduct against D occurred and about 51 - 55 years when the sexual misconduct against T took place. The evidence of T and D, if accepted by the jury, showed that the appellant, as a man of mature years, had a predisposition to paedophilia in relation to young girls in his care, and that he had indulged in this form of depravity over a significant period against each of them. The significant coincidence between the circumstances of the sexual misconduct in each case (see [26] above) requires the conclusion that D's evidence had significant probative value, notwithstanding the very long interval of about 22 years between the cessation of the appellant's sexual misconduct against D and the commencement of his sexual misconduct against T.

The merits of ground 1: the degree of any risk of an unfair trial

30 I am also satisfied that the probative value of D's evidence, compared to the degree of risk of an unfair trial, was such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. In particular, the risk of the jury using impermissible reasoning based on D's evidence, about which counsel for the appellant complained, was able to be guarded against adequately by:

(a) appropriate directions from the trial judge, as to the purposes for which the jury could use D's evidence, in the event the jury found her evidence to be truthful and reliable; and

(b) a Longman warning (Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79).

31 I am of the opinion that the trial judge's directions to the jury ensured that no miscarriage of justice occurred as a result of the admission of D's evidence. There was no risk of the jury using impermissible reasoning, based on D's evidence, to establish the appellant's guilt. His trial was not unfair.

32 The trial judge gave the jury a 'separate consideration' direction in conventional terms. They had to consider each count separately and had to arrive at a separate verdict on the evidence relevant to that count (ts 258 - 259).

33 His Honour told the jury that they could not convict the appellant on any of counts 1, 2, 4, 5, 6, 8 and 9 unless the State had satisfied them beyond reasonable doubt, relevantly, that the appellant had sexually penetrated T as alleged in the particular count (ts 262 - 264). His Honour also told them that they could not convict the appellant on counts 3 or 7 unless the State proved beyond reasonable doubt, relevantly, that the appellant had actually committed the indecent act specified in the particular count (ts 264 - 266).

34 The trial judge directed the jury that they had to accept T's evidence beyond reasonable doubt before they could find the appellant guilty on one or more of the counts in the indictment (ts 266). The trial judge added that if the State did not so satisfy them in relation to any count then the appellant was entitled to the benefit of that doubt, and he must be found not guilty on that count (ts 266).

35 His Honour said, in his summing up, that T's evidence as to other sexual misconduct was adduced for these reasons. First, it was 'impossible for you to understand the context in which the alleged offences are said to have occurred without knowing the full background' (ts 278). Secondly, it shows 'the relationship between [T] and [the appellant] and it shows that this offending that's now the subject of charges, has not happened in a vacuum' (ts 278). Thirdly, it shows, on the State's case, that the appellant 'has an unnatural sexual interest in his granddaughter [T]' (ts 278).

36 His Honour said, in his summing up, that D's evidence was led to show that the appellant had an unnatural sexual attraction towards a person who was his step-daughter (ts 279). He added that D's evidence was also relevant to whether or not the appellant had a sexual interest in young girls (ts 279).

37 The trial judge instructed the jury that they had to decide two issues in relation to T's and D's evidence of other sexual misconduct. He elaborated:

The first is whether you accept the evidence of it or part of it as being true beyond a reasonable doubt. The second is whether on the evidence relating to this other sexual conduct, you accept that [the appellant] has demonstrated beyond reasonable doubt the sexual interest in the complaint [sic: complainant] or a sexual interest in young girls. If you don't accept either of these two issues, then the evidence concerning the other sexual conduct will not have any relevance in this case. But if you accept both issues, then you can consider the evidence of the other sexual conduct to assist you in deciding whether the offences set out in the indictment have been proved. A finding by you that some or all of the other sexual conduct has been proved beyond reasonable doubt may help you because such a finding may show, and it is a matter for you, that [the appellant] had an unnatural sexual interest in the complainant or a sexual interest in young girls. Such that if you are persuaded beyond reasonable doubt that that other sexual conduct or part of it, in fact, occurred, then you may use those findings to assist you in deciding whether [the appellant] is guilty of the present charges in the indictment. If you do so decide beyond a reasonable doubt, then whether you make those findings is, of course, a matter for you (ts 279).

38 His Honour also instructed the jury, in relation to the evidence of other sexual misconduct, that:

(a) The evidence could not be used to make up for any deficiencies in the evidence required to prove each of the elements of the offences in the indictment (ts 280).

(b) If the jury found the evidence to be proved, they could not reason that they should accept, without more, the State's other evidence against the appellant as being truthful and reliable, and thereby conclude that the case against him had been proved (ts 280).

(c) Even if the jury accepted that the evidence had been proved beyond reasonable doubt and that it demonstrated the appellant's sexual interest in young girls, they still may not be persuaded beyond reasonable doubt that the appellant had committed the charges in the indictment. The fact that a person has previously engaged in the 'other conduct' does not, without more, mean that he has followed his sexual interest on the particular occasions alleged in the indictment. People do not act in accordance with all their interests at every opportunity. It was still necessary, therefore, that the jury looked separately at the evidence relating to each count (ts 280).

39 The trial judge directed the jury that they must be satisfied beyond reasonable doubt about the truthfulness, accuracy and reliability of T's evidence before they could convict the appellant of any of the counts in the indictment (ts 282). He told the jury that because of the 'crucial nature' of T's evidence, and because of the seriousness of the allegations she had made, they should 'scrutinise her evidence with special care' (ts 282). There was no corroboration or confirmation of T's evidence and no other evidence that the events in question had actually happened (ts 282 - 283). His Honour directed the jury that if they did not accept T's evidence in relation to the other sexual misconduct then it would be necessary for them to consider what effect that had on their assessment of her credibility as a witness (ts 282).

40 His Honour gave the jury a comprehensive Longman warning in respect of T's and D's evidence (ts 283 - 286).

41 The trial judge gave the jury a 'corroboration warning' (as defined in s 50(1) of the Evidence Act) in relation to the evidence of T. His Honour must have concluded that such a warning was justified in the circumstances. See s 50(2)(b). His Honour also warned the jury that it would be dangerous to act on D's evidence as to the appellant's alleged sexual misconduct unless, amongst other things, having scrutinised her evidence with great care they were satisfied beyond reasonable doubt as to its truth and accuracy. His Honour said this about the uncorroborated character of T's and D's evidence:

[I]t would be dangerous to act on [D's] evidence regarding what [the appellant] is said to have done when that evidence is uncorroborated. Unless having scrutinised [D's] evidence with great care and having considered the matters and circumstances relevant to that evidence to which I've just referred and taking full account of the warning I've just given you, you are satisfied beyond reasonable doubt as to its truth and accuracy. And the same thing applies with respect to [T] and I'm going to say this separately because it is important that you understand it with respect to both. You are at liberty to act on what [T] said, that is to convict [the appellant] if you are satisfied of the truth and accuracy of what [T] has said in evidence. But it would be dangerous to convict [the appellant] on the uncorroborated evidence of [T] unless having scrutinised her evidence with great care, having considered the circumstances relevant to her evidence to which I have just referred and taking full account of the warning I have just given you you are satisfied beyond reasonable doubt as to its truth and accuracy (ts 285 - 286).

42 Several matters should be emphasised from my review of the relevant parts of the trial judge's summing up.

43 First, the jury could not use D's evidence as to other sexual misconduct unless they were satisfied beyond reasonable doubt that her evidence was truthful and reliable.

44 Secondly, if the jury was satisfied beyond reasonable doubt that D's evidence as to other sexual misconduct was truthful and reliable, they could only use that evidence to find or assist them in finding that the appellant had a sexual interest in young girls.

45 Thirdly, if the jury was satisfied beyond reasonable doubt that D's evidence as to other sexual misconduct was truthful and reliable and if the jury used that evidence to find or assist them in finding that the appellant had a sexual interest in young girls, then it was open to them to use that finding to assist them in deciding whether the appellant was guilty of any of the counts in the indictment.

(a) the jury could not convict the appellant on any of the counts in the indictment unless they were satisfied beyond reasonable doubt that T's evidence was truthful, accurate and reliable;

(b) before accepting T's evidence, they should scrutinise her evidence with 'special care';

(c) it would be dangerous to convict the appellant on T's uncorroborated evidence unless, having scrutinised her evidence with 'great care', and having taken 'full account' of the Longman warning, they were satisfied beyond reasonable doubt as to its truth and accuracy;

(d) they could not convict the appellant on any of the counts in the indictment unless they were satisfied beyond reasonable doubt that the appellant had actually committed the act specified in the particular count; and

(e) they could not use D's evidence of other sexual misconduct to make up for any deficiencies in T's evidence in relation to any count in the indictment.

47 There is no merit in counsel for the appellant's submission that there was a risk of the jury using impermissible reasoning, based on D's evidence, to establish the appellant's guilt in relation to the counts in the indictment. Any risk of an unfair trial arising from D's evidence as to the appellant's alleged sexual misconduct against her was more than adequately guarded against by his Honour's comprehensive and, from the appellant's viewpoint, favourable directions to the jury.

49 The trial judge said to the jury in the course of his summing up:

Now, as I say, this other sexual conduct is not the subject of any count in the indictment. And through Mr Sullivan, the accused has denied engaging in this other sexual conduct concerning either or both of [T] and [D]. So you need to decide two issues with respect to this other matter or this other sexual conduct. The first is whether you accept the evidence of it or part of it as being true beyond a reasonable doubt. The second is whether on the evidence relating to this other sexual conduct, you accept that the accused has demonstrated beyond reasonable doubt the sexual interest in the complaint [sic: complainant] or a sexual interest in young girls. If you don't accept either of these two issues, then the evidence concerning the other sexual conduct will not have any relevance in this case. But if you accept both issues, then you can consider the evidence of the other sexual conduct to assist you in deciding whether the offences set out in the indictment have been proved. A finding by you that some or all of the other sexual conduct has been proved beyond reasonable doubt may help you because such a finding may show, and it is a matter for you, that the accused had an unnatural sexual interest in the complainant or a sexual interest in young girls. Such that if you are persuaded beyond reasonable doubt that that other sexual conduct or part of it, in fact, occurred, then you may use those findings to assist you in deciding whether the accused is guilty of the present charges in the indictment. If you do so decide beyond a reasonable doubt, then whether you make those findings is, of course, a matter for you (ts 279). (emphasis added)

50 Counsel for the appellant complained that the jury would have understood his Honour's statement that one of the matters they had to decide was whether they accepted that 'the accused has demonstrated beyond reasonable doubt the sexual interest in the complaint [sic: complainant] or a sexual interest in young girls' (ts 279), as indicating that the appellant 'had to prove something'.

51 His Honour also said to the jury in his summing up:

It is also a matter for you to decide whether such findings, if any, assist you in determining the guilt of or innocent [sic: innocence] of the accused (ts 280).

52 Counsel for the appellant complained that this statement was in error in that the jury should not have been 'looking to determine the appellant's innocence'. It was submitted that his Honour's statement gave rise to the very genuine risk that the burden of proof 'in the eyes of the jury' had 'effectively been reversed regarding the area of uncharged acts'.

53 As Kirby J noted in Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193 [72]:

[I]t is a cardinal principle of appellate scrutiny of judicial instructions to a jury that regard must be had to:

(1) The character of the communication. It obliges a real contact by the judge with the collective mind of the jury fresh from having heard the evidence. It does not call for a convoluted legal essay whose only merit is that it might protect the judge from appellate reversal (Zoneff v The Queen (2000) 200 CLR 234 at 263 [73]); and

(2) The entirety of the communication. Particular passages in the instructions must be read and understood in the light of -

(a) the issues actually fought at the trial;

(b) the addresses to the jury by trial counsel that immediately preceded the judge's instructions;

(c) any consideration and discussion between the judge and counsel prior to the instructions as to their content; and

(d) the entire content of the instructions, taken as a whole. It is a basic mistake to isolate any judicial (or other) utterances and to consider them out of context (cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271 - 272, 291). But it is especially mistaken to take parts of a judicial communication with a jury in a criminal trial in isolation from the context (R v Kanaveilomani [1995] 2 Qd R 642 at 648, 651 - 652).

54 It is necessary, in the present case, to evaluate the impugned passages in the trial judge's summing up by reference to the summing up in its entirety.

55 His Honour made extensive reference to the burden of proof and the presumption of innocence. In particular, his Honour directed the jury:

(a) 'The State has laid the charges. It is for the State to prove the charges, and the State must prove the charges beyond reasonable doubt. The State will seek to do that by calling evidence and placing the evidence before you, the members of the jury' (ts 31).

(b) 'Now, there are some important matters, some fundamental principles of law, that you need to keep in the back of your mind at all times throughout this trial. The first of them is that the accused man is presumed to be innocent. And that presumption carries on throughout the trial until it is proved beyond reasonable doubt that the person is guilty of an offence with which the person has been charged. It is for the State to prove each charge' (ts 34).

(c) 'Now coming back to what I said to you at the start of the trial. The burden is on the State of Western Australia to prove these nine charges. The standard to which it must prove the charge or each charge is beyond reasonable doubt. You cannot convict the accused unless the State has satisfied you beyond reasonable doubt that the accused is guilty of the charge it has presented. And that obviously applies to all nine charges. If you have a reasonable doubt as to whether the accused is guilty of a charge, then it is your duty to acquit him on that charge. The accused does not have to prove anything in this trial. It is also important for you to remember that an accused person is presumed to be innocent of the charges against him. Any person who stands trial in this country is presumed innocent' (ts 260).

(d) 'So the fact that the accused did not give evidence proves nothing one way or the other' (ts 260).

(e) 'Now, the date and place of the offence are only particulars of it. The State does not have to prove beyond a reasonable doubt that the offence was actually committed on the date and at the place specified in the indictment' (ts 262).

(f) 'So the State doesn't have to prove the date and the place beyond reasonable doubt. But everything else that's in this indictment has to be proved beyond reasonable doubt' (ts 262).

(g) 'The first thing that the State has to prove ... The State has to prove these things and I'll pause between each element ... - so the State has to prove each of those things beyond reasonable doubt. The first thing the State has to prove is that [the appellant], the offender, was the accused' (ts 262).

(h) 'Now, what the State has to prove in counts 3 and 7 is that the offender was the accused, that is the accused is the person whom the State alleges did the things that constitute the alleged offending and not some other person' (ts 264).

(i) Now, for you to return a verdict of guilty on any of the nine charges, the State must have proved to your satisfaction beyond reasonable doubt on the evidence produced in this trial that the accused is guilty' (ts 266).

(j) 'So what the defence is saying to you, really, is that in any criminal case, the question always is has the State proved its case beyond reasonable doubt. I've mentioned to you the defence doesn't have to prove anything' (ts 274).

56 In my opinion, counsel for the appellant's complaint about the trial judge's statement that one of the matters they had to decide was whether they accepted that 'the accused has demonstrated beyond reasonable doubt the sexual interest in the complaint [sic: complainant] or a sexual interest in young girls' (ts 279) is without merit. It is plain when the statement in question is read in context that his Honour was referring to the jury considering whether they were satisfied beyond reasonable doubt that the appellant had a sexual interest in T or in young girls. The word 'demonstrated' was used in the sense of whether, on the evidence, the appellant had shown or revealed a sexual interest in T or in young girls. It was not used in the sense that it was necessary for the appellant to prove something. This would have been readily understood by any reasonably sensible person of modest intelligence.

57 In my opinion, counsel for the appellant's other complaint about his Honour's statement that it was a matter for the jury to decide whether particular findings assisted them 'in determining the guilt of or innocent [sic: innocence] of the accused' (ts 280) did not occasion a miscarriage of justice. Although it was inappropriate for his Honour to refer to the innocence of the appellant, the comment came at the end of his Honour's directions as to what use the jury could make of the propensity/relationship evidence of T and D. The comment was directed principally to explaining that it was a matter for the jury as to whether or not any findings that they might make concerning the propensity/relationship evidence would be of any assistance to them.

58 When the impugned passages are evaluated in the context of the trial judge's directions to the jury as a whole there is no reasonable possibility that the passages complained of:

(a) created the impression that the appellant bore any onus in relation to establishing his innocence; or

(b) otherwise confused or misled the jury on the burden of proof.

59 I am satisfied that the jury would have been left in no doubt that it was for the State to prove each element of each count in the indictment beyond reasonable doubt; the appellant was entitled to the presumption of innocence and had nothing to prove; and they were not required to determine the appellant's innocence.

60 It is of some significance that the appellant's trial counsel, an experienced criminal lawyer, did not seek a re-direction from his Honour in relation to either of the impugned passages. See R v Wright [1999] VSCA 145; [1999] 3 VR 355 [2] (Phillips CJ & Charles JA).

The merits of ground 3: the directions hearing before Fenbury DCJ

62 At the directions hearing before Fenbury DCJ, the appellant sought to exclude from the State's case three visually recorded interviews (VRIs) between police and T conducted on 22 July 2008, 23 July 2008 and 12 December 2008. The grounds on which the appellant sought exclusion were that there was encouragement of T, excessive use of leading questions by the interviewer, cross-referencing between the first and second interviews, and coaching of T. It was submitted on behalf of the appellant that if the VRIs were edited they would become meaningless.

63 Fenbury DCJ concluded that what had occurred in the course of the VRIs did not make the evidence in question inadmissible and, also, that the appellant's concerns could be adequately addressed in cross-examination (ts 37).

The merits of ground 3: the appellant's submissions

64 Before this court, counsel for the appellant submitted that the interviewing police officers used poor interviewing techniques during the VRIs. It was submitted that the interviewers asked T leading questions, rehabilitated her when she appeared uncertain or faltered in her recall of events, demonstrated a partisan approach to the plight of T, and evinced a high degree of suggestibility in the manner of their questioning. According to counsel, none of the matters he complained about could be cured at trial by cross-examination, submissions or directions. Further, the VRIs did not meet the 'prescribed requirements' referred to in s 106HA(1)(b) of the Evidence Act. In the circumstances, the VRIs should have been ruled inadmissible and excluded from the evidence at trial.

65 The complaints of counsel for the appellant in relation to the VRIs and the responses of counsel for the State are set out in the schedule to these reasons.

The merits of ground 3: the relevant legislative provisions

66 Section 106HB of the Evidence Act is concerned with the admissibility in criminal proceedings of, relevantly, a visual recording of an interview with a child. Section 106HB provides, relevantly:

(1) In any proceeding for an offence (the proceeding) one or more visually recorded interviews may be admitted as the whole or a part of the evidence in chief of a witness -

(a) irrespective of the age or maturity of the witness at the time of the proceeding; and

(b) even if the witness is capable of giving evidence at the proceeding.

...

(4) A visually recorded interview is admissible under subsection (1) to the same extent as if statements made in it by the witness were given orally in the proceeding in accordance with the usual rules and practice of the court concerned.

(5) If a visually recorded interview is admissible under subsection (1), the judge in the proceeding may give any directions the judge thinks fit as to -

(a) the presentation of it and the excision of matters from it; and

(b) the manner in which further evidence in chief of the witness may be given and in which any cross-examination and any re-examination of the witness is to be conducted in the proceeding.

(6) A visually recorded interview is not to be admitted under subsection (1) if it has been edited or altered otherwise than in accordance with a direction under subsection (5)(a).

...

67 By s 106HA(1) of the Evidence Act, s 106HB applies, relevantly, to a visual recording of an interview with a child if:

(a) the interview was conducted by a person of a prescribed class who had reason to believe that the child, or another child, had, or may have, suffered physical or sexual abuse; and

(b) the manner in which the interview was conducted and recorded meets the prescribed requirements to the prescribed extent.

Section 106HA(3) provides, relevantly, that a visual recording of an interview with a child to which s 106HB applies is referred to as 'a visually recorded interview'.

68 Section 106HC of the Evidence Act empowers the Governor to make regulations about visual recording of interviews with, relevantly, children.

69 The 'prescribed requirements' and the 'prescribed extent', for the purposes of s 106HA(1)(b), are set out in reg 5 of the Evidence (Visual Recording of Interviews with Children) Regulations 2004 (WA). Regulation 5 is headed 'Prescribed requirements and the extent to which they are to be met - s 106HA(1)(b)', and reads:

For the purposes of section 106HA(1)(b) an interview meets the prescribed requirements if it was -

(a) conducted in such a manner that, as far as is practicable, statements made by the child in the interview were not elicited by the use of leading questions;

(b) where the child is under the age of 12 years, conducted in such a manner -

(i) that the child appears to understand that participating in the interview is a serious matter and that in giving the interview the child has an obligation to tell the truth; or

(ii) that it is apparent that the child has reached a level of cognitive development that enables the child to understand and respond rationally to questions and to give an intelligible account of his or her experiences;

(c) conducted or recorded in a manner that provides all, or most, of the following information -

(i) the date on which the recording was made;

(ii) the place at which the recording was made;

(iii) the identity of all persons who were present at any time during the interview; and

(iv) any breaks in the interview, the time the break commenced and concluded and the reasons for the break. (emphasis added)

The merits of ground 3: extrinsic evidence relating to the relevant statutory provisions

70 Sections 106HA, 106HB and 106HC of the Evidence Act and related provisions were inserted by the Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004 (WA), which commenced on 1 January 2005. The provisions have been amended subsequently but it is unnecessary to refer to the amendments.

71 The Attorney General, the Honourable Mr JA McGinty, said in his second reading speech, relevantly:

The process of visually recording a child's evidence was a recommendation of the Joint Response to Child Abuse Taskforce and the Gordon inquiry, and has significant benefits for the child. The interviews are completed by skilled and professional people who are aware of the child's needs, and they are taken in a more conversational style in 'child friendly' surroundings. This allows the child to feel more secure, less distressed by the experience, and hopefully facilitates their delivering a more free-flowing account of what took place. As a result of these reforms, children will be required to describe what happened to them less often, as their accounts can be viewed by professionals who may be treating them, and ultimately used in court proceedings. At the same time, interviews will be more transparent, accurately recording the environment and setting in which the interview took place, thereby reducing the incidence of allegations against the investigating officers about how the evidence was obtained. Interviews will also take much less time to record than they presently take.

The Bill further provides that multiple interviews can be visually recorded and that access to the recordings be restricted. The visual recording may stand as the evidence-in-chief in a trial and the grounds on which courts may exclude visually recorded evidence are limited to when the prejudicial effect of the evidence exceeds its probative force. When a visually recorded interview is used in a trial, a number of judicial directions must be given to the jury. Counsel will also maintain the right to elicit further evidence from the child in some circumstances.

See Western Australia, Parliamentary Debates, Legislative Assembly, 30 June 2004, p 4607c - 4610a.

The merits of ground 3: the proper construction of the relevant legislative provisions

72 Neither counsel for the appellant nor counsel for the State made useful submissions as to the proper construction of s 106HA or s 106 HB of the Evidence Act or reg 5 of the Evidence (Visual Recording of Interviews with Children) Regulations. Despite the absence of any cogent submissions, some observations must be made about the proper construction of these provisions. I will confine my observations to a statement of those principles which are relevant to the disposition of this appeal.

73 By s 106HA(1), s 106HB applies to a visually recorded interview with a child if the conditions in pars (a) and (b) of s 106HA(1) are satisfied. Conversely, s 106HB does not apply to a visually recorded interview with a child unless both of these conditions have been met.

(a) the interview was conducted by a person of 'a prescribed class' who had reason to believe that the child, or another child, had, or may have, suffered physical or sexual abuse; and

(b) the manner in which the interview was conducted and recorded meets 'the prescribed requirements' to 'the prescribed extent'.

75 It is apparent from these references to 'prescribed class', 'prescribed requirements' and 'prescribed extent' that the Parliament decided that the content of the relevant conditions should be specified or elaborated upon in regulations to be made by the Governor under s 106HC.

76 Section 106HB(1) provides for a visually recorded interview with a child to be admitted in evidence as the whole or a part of the child's evidence-in-chief, irrespective of his or her age or maturity at the time of the proceeding and even if he or she is capable of giving evidence in the proceeding. It therefore represents a significant departure from the traditional common law procedure for the giving of evidence by witnesses at a criminal trial.

77 However, s 106HA(1) read with s 106HB, on its proper construction, requires compliance with, relevantly, s 106HA(1)(b) as a pre-condition to the admissibility in a criminal proceeding of a visually recorded interview with a child. A visually recorded interview with a child will not be admissible in a criminal proceeding if, relevantly, the manner in which the interview was conducted and recorded does not meet the 'prescribed requirements' to the 'prescribed extent'.

78 Further, the status which s 106HB(1) confers on a visually recorded interview, namely, that if the conditions in pars (a) and (b) of s 106HA(1) are satisfied then the visually recorded interview is admissible in evidence, is subject to the other provisions of s 106HB, notably, subs (2), (5), (6) and (7).

79 In the present case, it was not alleged by counsel for the appellant that reg 5(b) or reg 5(c) of the Evidence (Visual Recording of Interviews with Children) Regulations had not been complied with in relation to any of the VRIs.

80 The point raised for determination was whether reg 5(a) had been complied with; that is, whether each of the VRIs was conducted in such a manner that, as far as was practicable, statements made by T in the interview were not elicited by the use of leading questions.

81 The regulations do not define the term 'leading question' or the expression 'as far as is practicable'. They are not defined in the Act.

82 A question is leading if it, directly or indirectly, suggests the desired answer or if it assumes the existence of a fact which is in dispute and has not been deposed to by the witness. This is the ordinary meaning of the term 'leading question' at common law.

83 Wigmore on Evidence, Chadbourn rev, 1970, vol III, p 154 - 157, par 769, makes these observations in relation to a leading question which suggests the desired answer:

On the direct examination, ie, by the counsel of the party in whose favor the witness is called, the most important peculiarity of the interrogational system is that it may be misused by suggestive questions to supply a false memory for the witness - that is, to suggest desired answers not in truth based upon a real recollection. The problem is to discriminate between the forms of questions which will too probably have that effect and those which will not. Questions may legitimately suggest to the witness the topic of the answer; they may be necessary for this purpose where the witness is not aware of the next answering topic to be testified about, or where he is aware of it but its terms remain dormant in his memory until by the mention of some detail the associated details are revived and independently remembered. Questions, on the other hand, which so suggest the specific tenor of the reply as desired by counsel that such a reply is likely to be given irrespective of an actual memory, are illegitimate.

The essential notion, then, of an improper (commonly called a leading) question is that of a question which suggests the specific answer desired. It will be seen that a collusive or conscious intention of the witness to answer as desired is here not a necessary assumption. That is a frequent danger, but not the only one; for the known principles of human nature tell us that a witness may also unconsciously accept the suggestion of a question. It is therefore not necessary to attribute a corrupt intention either to witness or to counsel, since the danger has larger aspects than that.

...

This being the broad nature of the evil to be avoided, and the end to be secured, there can be no invariable test for the impropriety, merely so far as the form is concerned. Any question may be or may not be suggestive. The form is immaterial. (footnotes omitted)

84 Wigmore gives this explanation in relation to a leading question which assumes the existence of a fact that is in dispute:

A question which in part assumes the truth of a controverted fact, and inserts the assumption as a part of a question on another fact, may lead a witness to reply without taking care to specify that his answer is based on that assumption, and may thus commit him to an assertion of the assumed fact, though in fact he may not desire or be able to do so. This is obviously a danger to be prevented (p162, par 771).

85 The words 'as far as' are synonymous with 'to the extent that'. The word 'practicable' connotes, relevantly, 'that can be done or used' or 'possible in practice'. See The Australian Oxford Dictionary, (2nd ed), pp 452, 1013.

86 In Re an Application by JC [2010] ACTSC 134, the accused had been charged on indictment with committing an act of indecency on a child (Mary) between 10 and 16 years of age and, further, that he committed an act of indecency in the presence of a child (Michael) under 10 years of age. He pleaded not guilty. Before the trial, an issue arose as to the admissibility of video-taped records of conversation conducted by police with each of the children. The accused sought an order that parts of Mary's interview not be admitted at the trial and that the whole of Michael's interview be rejected. The overriding ground for seeking this order was that the probative value of the evidence was outweighed by its unfairly prejudicial nature, contrary to s 137 of the Evidence Act 1995 (Cth). The application succeeded in part. Mathews AJ set out passages from Michael's interview and then said:

On their face, the questions and answers up to and including question 51 appear to give considerable support to the applicant's submissions. At that point Michael appeared to have no recollection of any particular incident that morning, notwithstanding the leading nature of question 44. Question 52 constituted a further leading question. Had Michael's responses been restricted to agreeing with the proposition which was put to him, I would almost certainly have allowed the application and excluded his answers. However, commencing with answer 53, Michael provided considerable detail about the incident which went significantly beyond the proposition which was put to him in the leading questions. The offending questions (44, 46 and 52) referred only to Michael pulling the accused off Mary because she was yelling. There was no indication as to where this took place or the details of what happened. These were all provided by Michael in answer to later non-leading questions.

It is well established that special considerations apply in relation to the evidence of young children. In particular, leading questions which might not be appropriate for adult witnesses might well be required in order to direct the child's attention to the particular matter at hand. That is precisely what occurred here. Having understood what it was that the questioner wanted him to talk about, Michael, as indicated, gave detailed information which went extensively beyond anything which had been put to him by the questioners.

In my view the asking of the leading questions was permissible in the circumstances. The answers are certainly prejudicial, but only insofar as they support Mary's claims and are therefore probative of the prosecution case. In the circumstances I do not consider that there is any significant unfair prejudice arising from the admission of this evidence [27] - [29].

87 For the purposes of s 106HA(1)(b), the 'prescribed requirements' for an interview, as set out in reg 5(a), are that the interview was conducted in such a manner that statements made by the child in the interview were not elicited by the use of 'leading questions' (emphasis added). For the purposes of s 106HA(1)(b), the 'prescribed extent', as set out in reg 5(a), is that, as far as is practicable, statements made by the child in the interview were not elicited by the use of 'leading questions' (emphasis added).

88 The apparent object of the 'prescribed requirements' specified in reg 5(a) is to ensure that evidence given by the child in the visually recorded interview is based upon his or her real recollection, and not upon:

(a) a false memory induced by suggestive questions;

(b) an unconscious acceptance of the suggestion in a suggestive question; or

(c) an assumption of fact in a question, which assumption has been or may be disputed by the relevant suspect or accused.

89 In my opinion, the apparent object of the 'prescribed requirements' indicates that reg 5(a) is concerned with, and applies to, questions that are leading in substance. It is not concerned with, and does not apply to, questions that are leading in form. The mischief being guarded against involves matters of substance, not form.

90 It may be said, in general, that a question will not be leading in substance merely because:

(a) it suggests to the child the topic of an answer (as distinct from the specific nature of the response evidently desired by the interviewer); or

(b) it embodies material (including material that is or may be adverse to the relevant suspect or accused) which the child has previously given in earlier answers or statements during the interview (if those earlier answers or statements were not made or given in response to questions that were leading in substance).

91 I emphasise, however, that it will be necessary, in any case, where the legitimacy of a particular question is in dispute (that is, whether the particular question is leading in substance or not) to examine the terms of the question in the context in which it appears (including the earlier course of the interview).

92 The apparent object of the 'prescribed extent' specified in reg 5(a) is to ensure that the visually recorded interview will not be inadmissible, merely because some of the child's evidence is elicited by questions that are leading in substance, if an objective assessment of the interview as a whole reveals that the interviewer obtained answers or statements from the child, without resort to questions that were leading in substance, to the extent that this could reasonably be done or was reasonably possible in all the circumstances.

93 If an objective assessment of the interview as a whole reveals that the manner in which the interview was conducted and recorded meets the 'prescribed requirements' to the 'prescribed extent' (and the other condition in s 106HA(1) is met) and, in consequence, the interview is admissible under s 106HB(1), the trial judge may nevertheless, pursuant to the power conferred by s 106HB(5)(a), excise from the visually recorded interview particular answers or statements elicited from the child by questions that were leading in substance.

94 The State, in its responses to the appellant's objections, concedes that the statements in objections B(xvii), (xviii), (xxv) and C(ix) are leading questions. See the schedule to these reasons. The State's concessions relate to very minor matters. They did not occasion a miscarriage of justice.

95 I have viewed several extracts from the VRIs and I have read the transcripts of the interviews. The interviews had a duration of, in total, more than six hours. At the material time, T was aged 7 or 8 years. I am satisfied, on the basis of what I have seen and read, that the appellant's specific objections and his general complaints concern matters which have been selected in isolation. When each of the matters is examined, in the context of the interviews as a whole, it is apparent that the appellant's objections and complaints have no merit, apart from the very minor matters conceded by the State.

96 In my opinion, when the VRIs are evaluated, in their entirety and against the background of the duration of the interviews and the age of T, the only reasonable conclusion is that each interview was conducted in such a manner that the answers and statements made by T in the interview were not elicited by the use of questions that were leading in substance, in the sense I have explained. Further, the only reasonable conclusion is that the interviewer did not rehabilitate T when she appeared uncertain or faltered in her recall of events, did not demonstrate a partisan approach to her plight and did not evince a high degree of suggestibility in the manner in which T was questioned. The State's responses to the appellant's objections, as set out in the schedule, are correct if the State's responses to the effect that questions are 'not leading' are understood as 'not leading in substance'.

98 Counsel for the appellant submitted that the convictions were substantially, if not wholly, based upon statements in the VRIs that were 'significantly infected by suggestibility, the use of leading questions, a partisan approach on the part of the interviewers and a rehabilitating of the child's evidence'. According to counsel, the convictions 'cannot be said to be reasonable or supported by other evidence that was otherwise properly admitted at trial'.

99 For the reasons I have given in the course of considering ground 3, there is no merit in the appellant's submissions in relation to the VRIs. They were admissible. The jury was entitled to rely on T's evidence in the interviews.

101 I would refuse leave to appeal. The appeal should be dismissed.

102 MAZZA J: I agree with the reasons of the Hon Justice Buss.

(first interview - brief due to a technical failure)

These things stop and don't happen again, all right?

Impugned statement is not suggestive in context. Full text of statement is 'its very important that Nadine and I hear what you have to say and that these - whatever it is- these things stop and don't happen again, alright?'

• That appellant and [T] had special secrets which the appellant told her she couldn't tell (Sala interview t-s trial 195B, 196D);
• That when [T] told her friend Ashley her secret, the appellant hit her (Sala interview t-s trial 199C);
• That [T] wanted the appellant not to do it again (Sala interview t-s trial 202E);
• When [T] told appellant to stop he didn't and got angry (Sala interview t-s trial 206B);

• the appellant makes [T] put her mouth over his willy and 'drink the stuff that comes out' (Sala interview t-s trial 207E, 208A);

When [T] is alone with appellant he pulls down his pants and did something that she didn't really want to tell because it wasn't really nice (t-s vri [22.07.08] 9C).

Detective Paul Naylor, during the break, told the complainant she was 'doing good' and that she was safe at the police station (t-s 11E; 12A)

Officer Naylor agreed that police shouldn't usually speak to the child during breaks (t-s 169A). The incident shows partisan support and the improper use of positive encouragement.

Officer Naylor confirmed that the only discussion he had with [T] at the time of the vri on 22.07.08 was his comment to her that she was doing well and that he did not speak to her about the contents of the interview (t-s trial 168D, 169A).

Officer Naylor's comment is minimal and does not show partisan support or improper encouragement. Comment must be seen in light of circumstances that existed at the time, namely that [T] was a 7 year old child who was in fear of the appellant and who, along with her younger sister, had that afternoon been secretly removed from the care of the appellant and his wife.

Anything we can say to make this easier for you to talk about? (t-s vri [23.07.08] 4D).

On any reasonable interpretation the impugned question cannot be said to show partisan support on the part of the interviewer but was appropriate in context.

By this stage of the interview process it was clear [T] reluctant to speak about the sexual abuse of her by the appellant because of her fear of him as demonstrated by her demeanour during Sala interview on 22.07.08 and by what she said in that interview [see Sala interview t-s trial 195B, 196D, 199C, 201D, 202E and 206B]. Those fears were repeated at t-s vri [22.07.08] at 8C reinforced by demeanour of [T] in the vri's.

You said it isn't actually ice-cream (referring to the Appellant's ejaculate) (t-s 4D).

This was incorrect. It was the interviewer who had previously said it wasn't actually ice-cream, not the complainant (see t-s 4C).

The assertion that it was the interviewer who had said it wasn't 'actually ice-cream' is incorrect, it was [T] (see t-s vri [22.07.08] 10D).

He didn't wink at you then but then every time after that he winked at you before he did it? (t-s 20C)

The impugned question is not leading but seeks clarification of evidence already given by [T] immediately prior to the question (t-s vri [23.07.08] 19C to 20B).

Implies there was something on her face - but she never said that.

The objection is unfounded as it ignores evidence of [T] immediately prior to impugned question to effect that the appellant ejaculated in her mouth and ' ... I had to accidentally throw up and then Pop quickly wiped his - wiped himself with tissue and I did as well and then Nan came back.' (t-s vri 26A).

Rehabilitating evidence of [T], who had earlier talked of the weekend.

The impugned question does not seek to rehabilitate the evidence of [T] but simply seeks clarification of [T's] earlier statements that she thought the incident being discussed had occurred on the weekend but then later stated that the television shows she went to watch immediately after the incident screened on weekdays.

He winked at you and that's what he does when he means do you want the ice-cream (referring to swallowing the ejaculate) (t-s 34E & 35E).

The question is leading and it ultimately prompted the answer that was given at (vri t-s 35E).

The impugned question is not leading but simply recapitulates evidence given by [T] earlier in the interview when she first refers to the appellant winking at her and, in response to non-leading questions, volunteers that it meant 'because he wants to keep taking out his willy and doing the ice-cream' (t-s vri 19D).

When he comes down to Corrigin twice a month does it happen every time he comes down? (t-s 36B).

Leading. For example, question should have been 'how often does it occur?'.

The objection is unfounded as it ignores the context in which the question is asked. Immediately prior to the question [T], who had already indicated that the appellant's abuse of her occurred 'heaps' of times (see t-s vri 6E), states that the abuse was more frequent when the appellant and her were living together (t-s vri 36A).

So was it before or after he did the ice-cream thing that he wasn't so angry? (t-s 37C).

Leading. All she had said before that was he asked her and she replied 'I don't know' (t-s 34D & see 40D). The question implied a positive answer had previously been received, when it hadn't.

The objection takes the impugned question out of context and seems to be incorrectly based upon the assumption that the appellant's anger was connected to his conduct towards [T]. In fact, as is clear from the entirety t-s vri 37, the appellant was said to be angry towards [C], [T's] sister, because [C] wouldn't sing him a song.

The objection fails to take into account that immediately preceding the impugned question [T] stated that she got home 'with a car because Pop was up here', when the appellant was not there her grandmother did not have a car and she went home from the disco in 'our car' (see t-s vri 39). In the context of the whole of the evidence the question is not leading.

The night of the disco he didn't do 'the ice-cream thing' (t-s 40E). But she is then questioned and asked - are you sure? (t-s 41).

The line of questioning implies to [T] she is mistaken and that she needs to reconsider her answer.

The objection fails to consider the context in which the impugned question is asked. The question seeks clarity on the issue of whether or not on this particular occasion the appellant 'did the ice-cream thing' with [T] given that certain responses by [T] to earlier questions suggested it had occurred (see t-s vri 34D, 36D, 37E, 39D and 40).

Can you remember any other times he did the ice-cream thing? (t-s 41E).

By this stage of the interview [T] had already given evidence to the effect that the 'ice-cream thing' had happened on a number of occasions (t-s vri 6E, 7A, 19D). The impugned question is not leading.

Happened after lunch but before the party (t-s 46A).

The impugned question is asked when [T] is describing an occasion when her sister, [C], and her 'Nan' left the house. Whilst [C] and Nan were absent the appellant put his penis into [T's] mouth and made her drink his ejaculate (t-s vri 42A). Prior to leaving [C] and Nan had lunch and then returned before [C] went to a birthday party (t-s vri 45D). In the context [of] that evidence it is clear that the incident described by [T] occurred after lunch but before [C] went to the party and the impugned question is not leading but merely reflects [T's] evidence.

The impugned question is not leading in the context of [T's] evidence immediately preceding the question. After [C] and Nan had left, the appellant, who was near the fire place, told [T] to go into his bedroom (t-s vri 46C). The incident that [T] was then describing occurred in the bedroom of the appellant (t-s vri 42A). After telling [T] to go into the bedroom the appellant 'did the ice-cream thing' (t-s vri 47B).

He pulled his jocks down a bit and pulled his willie out? (t-s 49C).

Leading. [T] didn't say he pulled his willie out (t-s 48E).

The impugned question is not leading given the evidence of [T] prior to the question, that the appellant 'just pulled down his pants and got his willy and then he - he got his willy, shook it for five minutes and then ... and he put it in my mouth and then I had to drink it' (t-s vri 42A).

Leading. [T] didn't say she was sitting on the bed (t-s 48C).

The assertion that [T] didn't say that she was sitting on the bed when describing this incident is incorrect. See t-s vri 42A where [T] says ' ... I had to sit on the bed and ... '.

Leading. She had only spoken of three occasions - namely the first time, then at a disco and at a party.

By this stage of the interview process [T] had already given evidence to the effect that the 'ice-cream thing' had happened on a number of occasions. The impugned question is not leading.

It is conceded the impugned question was leading but given that it is hardly likely the appellant would be walking around naked when [T's] sister and Nan returned to the house it is of no significance.

Did he say that afterwards? Does he usually always say that? (t-s 54D).

It is conceded the impugned question is leading but in context this is not significant given that [T] had, by that stage, stated the

appellant's abusive conduct towards her had occurred on a number of occasions and that the appellant had told her she was not allowed to tell anyone (Sala interview t-s trial 195C) and [he had] said the same thing on two identified occasions (t-s vri 29E and 51E).

Your pop only does this when Nan and Chloe go out? (t-s 55E).

Misleading question. [T] had said that on one of the occasions Chloe (her sister) was in the playroom (t-s 34E).

The impugned question which was directed towards possible conduct of the appellant towards [C] was by agreement between the parties edited out of the vri played to the jury at trial.

The impugned words were a comment upon the interviewer's understanding of [T's] account rather than any form of encouragement directed towards [T].

It wasn't on that day that you had a netball game either, was it? (t-s 60E).

Leading & challenging [T] to reconsider her answer.

The objection takes the impugned question out of context. The question is not challenging [T] to reconsider her answer but is simply reiterating what [T] had already told the interviewer (t-s vri 60D).

The question is not leading as [T] had already given evidence that the occasion she was then talking about occurred after school (see t-s vri 59D and 60E).

The assertion that [T] did not say 'straight after' is incorrect (see t-s vri 63A).

In context the impugned question was not leading. The full text of the question is 'So when he sent you to his room do you mean his bedroom that he shares with your Nan?'. That question follows immediately after [T] had said 'he sent me to his room and ... and then he went in the bathroom and did it and then he came back into his room and did it ... ' (t-s vri 65B).

It is conceded that the question is leading but in the context of the case as a whole is of no significance.

So was he shaking his willie when he was standing up (t-s 67A).

The impugned question is not leading but seeks clarification of evidence already given by [T] (see t-s vri 65B and 66E).

I know you said it was a circle with something else coming off of it (t-s 69D).

Misleading. [T] didn't say 'something else coming off of it'.

The objection ignores the context of the impugned question. In particular immediately preceding the question [T] says, when describing the appellant's penis, 'it looks like a sausage but fatter and it has something for ... (indistinct) ... it's a circle and then it has something that you push down and then all the wee comes out of it'. The interviewer then seeks clarification of [T's] description asking if the appellant's penis 'had something else on it?' to which [T] responds 'yes'. The interviewer then asks the impugned question. In the circumstances the impugned question was entirely permissible.

Was it skin or something else? (t-s 73B) - arising from an apparent reference by [T] to the foreskin.

Leading. [T] didn't know what it was made of (see t-s 71A).

The objection takes the impugned question out of context. In this portion of the vri [T] is plainly attempting to describe the appellant's foreskin. That description commences at t-s vri 69C and continues until the end of t-s vri 74. By the time [T] is asked the impugned question she has told the interviewer that the appellant's penis had 'a circle and then it has something that you push down' (69D), it was on the appellant's penis (69E), it had to stay on the appellant's penis (70A), as a result of it she could only see the outside of the penis (70B), it was already on the appellant's penis and was supposed to stay on (70E - 71A), it was supposed to stay on because it was part of

his body (72B), it was a part of the appellant's penis (72E - 73A) and she'd never seen it off (73A). In the context the question was entirely permissible.

Yeah, I understand. Yeah, keep going, we're a bit clearer (t-s 73C).

The objection is misconstrued. The comment complained of was directed by one interviewer to the other interviewer and not to [T].

It's that when it's like a sausage and like skin colour (t-s 73D).

The impugned question is not leading as [T] had already described the appellant's penis as a 'sausage' (see for example t-s vri 69D) and that the appellant's foreskin was skin coloured (see response to B (xxviii) above).

When he asked you to touch it was he still standing up and were you kneeling? (t-s 76C).

Leading. [T] had made reference to him only standing for a short time (t-s 66E).

The objection fails to consider the entire context in which the impugned question came to be asked. In particular [T] had prior to the question being asked indicated that the appellant was standing up for a short time (t-s vri 66E), after that he told [T] to go into the bathroom (t-s vri 68B), at the time [T] was kneeling on the bed (t-s vri 68C), and that the appellant had asked [T] to touch his penis in the bedroom prior to him going into the bathroom (t-s vri 75B). In light of the foregoing the question simply seeks clarification of [T's] evidence and is not leading.

In the context of the evidence given by [T] at this stage the impugned question is not leading but a recapitulation of [T's] evidence that while in the bedroom the appellant put his penis in [T's] mouth and a little bit of ejaculate came out which the appellant required her to drink (see t-s vri 59E, 65B, 65E, 68E, 69B, 78A, 80).

You said it was wee and your pop calls it ice-cream (t-s 82C).

Leading and incorrect. [T] had never linked the two before. She had used two separate words and didn't mistake ejaculate for urine. But later, taking her cue from the leading question asked by the interviewer, she referred to wee and ice-cream as one and the same (t-s second vri [12.12.08] 10C).

The assertion in this objection that [T] had not linked wee and ice-cream together before this question is incorrect. (See t-s vri 7C, 21C, particularly at 23C, 24E, 25C, 26C, 27B, 28B, 49C read with 50A and 50C, 51C, 52A, 53B, 79D read with 80D, 81C and 82B). The impugned question was neither leading nor incorrect.

In the context of the age of [T], the circumstances of her removal from the care of the appellant and his wife and the length of the interview, the impugned comment does not indicate a partisan approach by the interviewer nor is it inappropriately encouraging.

So he tells you when the ice-cream is going to come? (t-s 84E).

The question is entirely appropriate given the response of [T] to the immediately preceding question.

Were you still standing up then when his willie went in your mouth? You kneeled down on the ground? (t-s 86B)

The objection ignores the evidence of [T] given at t-s vri 85C to the effect that both [T] and the appellant were standing close to each other in the bathroom. [T] then describes waiting until the 'ice-cream came out' whereupon the appellant told her to put his penis in her mouth (t-s vri 85E and 86A). At that point as far as [T] had indicated she was still standing and, accordingly, the question was proper. [T] responds to the first impugned question by saying ' ... no, when he said that I kneeled down.' (t-s vri 86B). The second impugned question simply clarifies evidence already given by [T].

Leading & suggesting that [T], a very young child, should re-consider her answer.

The objection takes the impugned question out of context. The question is a natural flow on from the immediately preceding question where the interviewer asks 'and how much of his willy was in your mouth?' to which [T] responds 'The whole lot ... Because he always wants me to eat the whole lot.'. The question is not leading nor does it suggest that [T] should reconsider her answer.

You said it was on your head, was it different this time (t-s 88A).

The impugned question is not leading. [T] had previously stated that on one occasion when the appellant had put his penis in her mouth he had one hand on her head (t-s vri

59B). Immediately before the impugned question at t-s vri 87E the interviewer asks where the appellant's hands were and [T] answers 'my hands ... his hands were ... no his hands ... one of them was on his willy and the second was on ... I don't know'. The impugned question then seeks to clarify the issue.

Can you remember anything about that other time? (t-s 99C).

Suggests there was another time. However, at that point in the vri [T] hadn't said there was 'another time', merely that she had thought of something else to say at one point during the interview (t-s 99B).

The assertion that [T] had merely said she had thought of something else to say is incorrect. [T] said, in response to a question from the interviewer if there was anything else she wanted to say, 'I thought of one but I forgot it'. It is clear that [T] was referring to an instance of sexual misconduct committed against her by the appellant. The impugned question was not suggestive.

So you're in year two now and you're eight years old? (t-s vri [12.12.08] 17B).

The evidence of [T's] age and year of spelling were not controversial and the impugned question is permissible.

The assertion that it was the interviewer who asked the impugned question is incorrect. It is a statement volunteered by [T].

Did you normally live at a house in Perth? You said it was across the road from the school (t-s 19A).

The impugned question does not seek to rehabilitate the witness but simply restates evidence previously given by [T] that in Perth she lived in a residence which was across the road from her school (t-s vri [23.07.08] 10). The impugned question was a preamble to questions that follow designed to ascertain why [T] was at the house she went to when describing an incident of penile penetration (see t-s vri [12.12.08] 10C, 13C).

Like he'd already done it before that? In the same way? (t-s 21B).

The impugned question is not leading but restates the effect of [T's] evidence that the incident of penile penetration at the friend's house was the second such incident (see t-s vri 21A).

Was that all on the same day that he put his thumb on his wee-wee and then he pulled his pants down and told you to touch it? (t-s 22A).

The impugned question is not leading but restates of evidence given by [T] immediately before the impugned question (see t-s vri 21C).

Had you been to Church earlier that day? (t-s 25B).

The objection takes the question out of context. Immediately before the impugned question [T] stated that her family normally went to church on Sundays and that is why she thought the incident then being discussed occurred on a Saturday. The interviewer seeks to clarify that evidence.

Do you know what suburb the house was in? (t-s 26C).

The question is investigatory in nature rather than part of a child interview process.

The impugned question was an appropriate attempt to better particularise the incident then being discussed by seeking to narrow the location of the offence. Ultimately [T] was unable to sufficiently identify the location of the house and the State subsequently discontinued this count on the original indictment.

The question is investigatory in nature rather than part of a child interview process.

The impugned question was entirely proper and was merely seeking to explore the circumstances surrounding the incident then being discussed. [T] had previously indicated that an incident of penile penetration had occurred at a friend's house where they had gone for dinner but the occupants were not present (see, for example, t-s vri 14C).

And you didn't tell your nan what happened? (t-s 48E).

It is conceded the question was leading but was the logical extension of consistent evidence of [T] throughout the interviews that she did not disclose to her 'Nan'. In particular the impugned question is the natural conclusion from [T's] evidence that her Nan 'didn't find, she ... she never knew what ... what happened ... until Tanya told her'. (t-s vri 46C).

What was the first thing he did, making you drink the ice-cream or putting his doodle in your wee-wee (t-s 52B)

The impugned question is not leading but merely seeks to clarify the sequence of events already described by [T] in this and previous interviews.

This time that you're talking about is the very first time that your pop ever touched your wee-wee (t-s 55C).

The impugned question is not suggestive nor leading but recapitulates the fact that the incident then being discussed was the very first thing the appellant did to the complainant's vagina, (see t-s vri 52C where [T] says 'the very first thing um is he's been um pushing his finger onto ... on my wee wee').

The impugned question is not leading in context. The interviewer immediately before asking the question recapitulates the evidence of [T] in the previous interview in which she described an occasion when the appellant made her swallow his ejaculate and she threw up as a consequence.

In the last interview we did this incident and we particularised it and the only bit that was different was that you didn't say that he'd touched you (t-s 4D).

Leading; assisting witness with recollection; pointing out inconsistencies with previous statement to rehabilitate witness.

The impugned question does not have any of the characteristics alleged. It was an appropriate recapitulation of the previous interview in order to form the basis of further questioning particularly in the circumstance of interviewing an eight year old child regarding sexual offending where the child had been first interviewed five and a half months earlier.

So you were standing up and he told you to pull down your pants, is that right? (t-s 5C).

The impugned question is not leading given that [T] had said immediately before the question that the appellant had 'told me to pull down my pants and then he told me to come next to the, um, to the bed so I did and, um, then he ... he ... then he ... he ... then I said 'what are you going to do?' and he said '[you'll] wait and see' and he got his, um, thumb and pushed it on to my wee wee and it

Did he put his thumb in your wee-wee more than one time? Or just one time? (t-s 8C).

You said he did this just before the ice-cream came ... so what made him stop with his thumb in your wee-wee? (t-s 9A).

The impugned question is not leading but reflects the natural import of [T's] evidence on the issue up to that point (see t-s vri [12.12.08] (tape 2) 3A and 5A).

When did the ice-cream come and ... he made you put your mouth on it (t-s 9C).

The question is not leading but recapitulates the consistent evidence of [T] in all of the vri's up to that point.

He took his doodle out ... he made the ice-cream come and put it in your mouth and you threw up and he touched your wee-wee? (t-s 9C).

Refreshing [T's] memory as to her evidence; reconstructing events for her.

The impugned question is an accurate recapitulation of the evidence of [T] up until

that point in the interviews and does not reconstruct events for her.

So this is the ... first time he did anything to you is it? (t-s 10B).

Leading; suggests there was more than one occasion.

The question is not leading in the context of this case but an accurate reflection of the evidence of [T] that she had been offended against on multiple occasions.

Then he said for you to put your mouth on it and it came into your mouth and then you threw up a bit? (t-s 12E).

The question is not leading but an accurate recapitulation of the evidence of [T] given up to that point in the interview process.

So it was while your nan was with Chloe at the party that your pop did it? (t-s 18A).

The impugned question is not leading but a repetition of the evidence of the complainant previously given (see t-s vri 16D).

The impugned question is not leading but a repetition of the evidence of the complainant previously given (see t-s vri 18C to 19A).

The impugned question is not leading given that [T] had described the appellant's penis as feeling soggy (see t-s vri 20C).

The impugned question is not leading given that [T] had described the appellant's penis as feeling soft (see t-s vri 20E).

What about the bit when you said he put his doodle in your wee-wee, when did that happen? (t-s 22C).

He took you into the room, he shut the door, he told you to take down your pants and he took off his pants and then he told you to touch the doodle? (t-s 22D).

The impugned question is not leading but reflects the evidence of [T] up until that point (see t-s vri 18C) and is not an attempt to rehabilitate the witness.

You said other times he would shake his willie, he would shake his doodle to make the ice-cream come. What about when he put his doodle in your wee-wee, did he do anything with it then? (t-s 23D).

The impugned question is not leading but reflects the consistent evidence of [T] up until that point (see, for example, t-s vri [23.07.08] 20A and t-s vri [12.12.08 (tape 2)] 10D) and is not an attempt to rehabilitate the witness.

You said he made you drink the ice-cream and he put his doodle in your wee-wee (t-s 23E).

The impugned question is neither leading nor asked for the purpose of rehabilitating the witness. It accurately recapitulates the evidence of [T] to that point as foundation for the question 'so when did he do that?'.

How did you end up with him putting his doodle in your wee-wee? (t-s 27E).

The impugned question is not leading, [T] had already given evidence to this effect.

What, the ice-cream in your mouth or the putting his doodle in your wee-wee? (t-s 33A).

The objection takes the impugned question out of context. Immediately before asking the question the interviewer asks 'what's he done in the bathroom?' to which [T] replies 'the same stuff what he does in his room'. At that point [T] had already given evidence that the appellant had ejaculated in her mouth and put his penis in her vagina in his room (see t-s vri [12.12.08] (tape 2) 14E).

The impugned question is not leading, [T] having already described violence toward her by the appellant (see t-s vri [12.12.08 (tape 2)] 6B, Sala interview t-s trial 199C).

He hit you across the face (t-s 34B); later clarified to 'she hit you' (t-s 35C). Then, later, erroneously stated again as 'pop hit you across the face' (t-s 37D).

Misleading. [T] stated it was nan who smacked her across the face (t-s 34A).

The objection is unfounded as [T] had stated that both the appellant and his wife had struck her across the face (see t-s vri [12.12.08 (tape 2)] 33E).