Criminal law - Appeal against conviction - Sex offences against children - Doctrine of recent complaint - Whether complaint was made at the first reasonable opportunity - Whether complaint was elicited by questions of an inducing character - Defence counsel decided for tactical reasons not to object to complaint evidence - Whether trial judge erred in his directions to the jury on complaint evidence - Whether a miscarriage of justice occurred as a result of inadmissible evidence, not objected to by defence counsel, being adduced at the trial

Criminal Appeals Act 2004 (WA), s 30(3)(b), s 30(3)(c)

Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19

Birks v The State of Western Australia [2007] WASCA 29; (2007) 33 WAR 291

Daniels v The Queen (1990) 1 WAR 435

DS v The State of Western Australia [2008] WASCA 182

Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460

LBC v The State of Western Australia [2011] WASCA 201

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

McKinnon v The State of Western Australia [2010] WASCA 51

R v Bertrand [2008] VSCA 182; (2008) 20 VR 222

R v Birks (1990) 19 NSWLR 677

R v EF [2008] VSCA 213; (2008) 189 A Crim R 463

R v Freeman [1980] VicRp 1; [1980] VR 1

R v GG [2004] VSCA 238; (2004) 151 A Crim R 92

R v HRA [2008] VSCA 56; (2008) 183 A Crim R 91

R v Norcott [1917] 1 KB 347

R v Soma [2003] HCA 13; (2003) 212 CLR 299

R v Taufahema [2007] HCA 11; (2007) 228 CLR 232

R v The State of Western Australia [2006] WASCA 101

R v W [1996] QCA 246; [1996] 1 Qd R 573

Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115

Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769

T v The Queen [2000] WASCA 153

TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124

2 BUSS JA: The appellant was convicted, after a trial in the District Court before Stavrianou DCJ and a jury, of six counts in an indictment.

Count 1: Between 12 April 2009 and 24 July 2009, the appellant indecently dealt with TS, a child under the age of 13 years, by touching her on the vagina, contrary to s 320(2) of the Criminal Code (WA) (the Code).

Count 2: Between 12 April 2009 and 24 July 2009, he indecently dealt with TS, a child under the age of 13 years, by touching her on the vagina, contrary to s 320(2) of the Code.

Count 3: On or about 15 May 2009, he indecently dealt with AOT, a child under the age of 13 years, by touching her on the buttocks, contrary to s 320(4) of the Code.

Count 4: On or about 15 May 2009, he indecently dealt with AOT, a child under the age of 13 years, by touching her on the breast, contrary to s 320(4) of the Code.

Count 5: On or about 15 May 2009, he indecently dealt with AOT, a child under the age of 13 years, by permitting her to touch his penis, contrary to s 320(4) of the Code.

Count 6: On or about 15 May 2009, he procured AOT, a child under the age of 13 years, to do an indecent act, namely to expose her breasts, contrary to s 320(5) of the Code.

4 The trial judge imposed a total effective sentence of 2 years 9 months' immediate imprisonment and made a parole eligibility order.

5 The appellant appeals to this court against his conviction.

6 The State's case at trial was that the appellant had a predilection for young girls. Although the appellant was in a relationship with a young woman, his real interest lay in children. The State contended that the appellant befriended women who had, or had access to, young girls, and he committed unlawful sexual acts against the children when the opportunity arose.

The State's case in relation to TS - counts 1 and 2 TS's evidence

7 TS's evidence was visually recorded prior to the trial. Her evidence was taken on 10 August 2009 (evidence-in-chief) and 10 November 2010 (cross-examination and re-examination).

8 TS's evidence on 10 August 2009 was, relevantly, as follows:

(b) The incident occurred at her mother's house (t 8).

(c) One night she and her mother were sleeping in the same bed, and she realised that the appellant was in the bed. Her mother had fallen asleep because she had been drinking a lot.

(d) On the night that this occurred she was with her sisters - J (aged 7) and P (aged 6) - who were on the floor in her mother's bedroom. Her mother was on the bed. The appellant was the only other occupant of the house (t 9).

(e) TS had met the appellant about 12 times (t 10).

(f) She was sleeping on the right-hand side of the bed and her mother was sleeping on the left-hand side (t 14, 15).

(g) TS had gone to bed about 7 pm. Her mother received a telephone call from the appellant. The appellant dropped around and came into the bedroom (t 16).

(h) TS had been asleep. Her mother and the appellant were talking. Her mother was drinking and took something and then fell asleep (t 16).

(i) TS was wearing long pyjamas, knickers and a singlet (t 18).

(j) The appellant hopped into the middle of the bed. TS pretended to be asleep. Her mother got out of bed to have a shower for about two minutes, then came back to bed and fell asleep about 20 minutes later (t 19, 20).

(k) After her mother fell asleep, the appellant started touching TS (t 20).

(l) The appellant touched her on the body part she uses to 'go to the toilet', to 'wee' (t 12, 13).

(m) The appellant put his hand down TS's pants. It was his right hand; he reached out, lifted up her pants and put his hand down her pants; his hand went to her vagina; he was rubbing his hand up and down her vagina in the middle part. He was using his finger-tips, rubbing up and down on her vagina (t 21 - 23).

(n) TS said that the appellant then started using his left hand in exactly the same way he had used his right hand (t 23).

(o) He used both his left hand and his right hand to do the same thing, that is, rub the outside of her vagina (t 24, 25).

(p) His left hand moved slowly up her body. His right hand touched her chest (t 26).

(q) She told him three times to stop. The appellant persisted (t 5, 25, 26).

(r) Her mother was under the blankets. The appellant was on top of the blankets and no blankets were on TS (t 28).

(s) It was a 'bit painful' when the appellant was rubbing her vagina. The appellant was 'pushing a bit hard'. It was hurting the middle of her vagina (t 28).

(t) He was using two fingers. He used them for a couple of seconds (t 29).

(u) TS made an excuse, saying she had to get a drink of water, and he let her go (t 5, 25).

(v) The next morning TS stayed in her bedroom, not eating until the appellant left the house. She locked herself in the bedroom and has not seen him since (t 5, 31).

(w) She called her friend, T, the next morning, but did not tell T what had happened (t 32).

(x) She spoke to her mother at 12.30 pm (on the day after the incident). She did not say anything to her mother about the incident (t 33).

(y) The first person she told about the incident was her 'step mum' (t 35).

(z) She was unsure when she told her step mum (t 36).

9 TS's evidence on 10 November 2010 was, relevantly, as follows:

(a) TS was asleep when the appellant arrived. She awoke when she heard the appellant speaking to her mother.

(b) When the appellant got on the bed, he had his back facing away from her. She was basically back to back with the appellant. She was facing the window (t 51).

(c) Before she went to sleep the television had been turned off and the candles blown out (t 52).

(d) TS disagreed with the proposition that both the appellant and her mother were still awake when she said that she wanted to go and get a glass of water and that her mother had asked her, 'Where are you going?' or 'Where are you going to T?'. Her mother was asleep at the time (t 52).

(e) TS told the appellant that she was going to get a glass of water so that she could get away. She got off the bed and went to get a glass of water, and never came back to the bedroom (t 54).

(f) The appellant looked after her the following morning for about half an hour to 45 minutes while her mother took the other children to school (t 55).

(g) The appellant was lying on his back after TS's mother had fallen asleep. TS said this is when things happened to her (t 59).

10 TS's mother, TB, gave evidence about the events on the evening in question. TB's evidence did not support the State's case.

11 TB said that she was in bed with TS and the appellant when the offences allegedly occurred. She did not hear or see any of the alleged acts constituting the offences.

12 TS's stepmother, SS, was married to TS's father, DS.

13 SS gave evidence about a conversation she had with TS on 24 July 2009. It took place in the upstairs area of her home (t 163).

14 At that stage she had known TS for about 18 months (t 163).

15 SS said that on 24 July 2009 she was upstairs chatting with TS. TS had been 'quite adamant about not wanting to return home to her mother's house', and she 'was scared about going back'. TS said she wanted to stay living with her and DS (t 164).

16 SS said she asked TS whether anything had happened that had made her feel uncomfortable at her mother's house. TS told her that:

(a) The appellant always tried to get her to sit on his lap.

(b) On one occasion, she was laying in her mother's bed because she had been unwell during the day; the appellant and her mother had come to bed; they were laying in bed, that is, her mother, the appellant and her; the appellant touched her on her 'private spot' (t 164); she told him to stop and he wouldn't (t 165).

(c) Eventually, she got away from the appellant by saying that she was thirsty and needed to get a glass of water. (In cross-examination, SS confirmed that she had not mentioned this in her police statement (t 169)).

The defence case in relation to TS - counts 1 and 2

17 The appellant gave sworn evidence in his own defence. He admitted attending TS's home at the relevant time and lying on the bed with TS. But he denied having committed the alleged offences.

18 The appellant also relied upon the evidence led by the State from TS's mother, TB, to the effect that she did not see or hear anything consistent with the behaviour constituting the offences, as alleged by TS.

The State's case in relation to AOT - counts 3 to 6 AOT's evidence

19 AOT's evidence was visually pre-recorded prior to trial. The recording of her evidence-in-chief took place on 1 June 2009. Her evidence-in-chief was, relevantly, as follows:

(b) She had known the appellant for a while. She had met him 'last year or the start of this year' (t 9).

(c) The appellant had a girlfriend called T (not her mother's best friend T, but another girl) (t 8).

(d) AOT said that during the weekend before the incident with the appellant they had stayed at her mother's best friend's place. Her mother's best friend was T (NC) who was married to CC (t 3, 5).

(e) She referenced the timing of the events to her mother's toothache and a time after her mother had come back from Sydney (t 5).

(f) AOT went to the house with her sister, BT, who is aged 11 (t 7).

(g) They were in a room watching movies on the television. She described this room as 'the theatre room' (t 11).

(h) While they were watching the movies she was 'sort of cuddling up to' the appellant (t 29).

(i) AOT said there was just the four of them in the room (t 30).

(j) AOT said that NC (her mother's best friend), her sister BT (who was sleeping) and the appellant were in the theatre room (t 30).

(k) CC was in the computer room playing on the computer.

(l) At this stage the appellant was trying to unhook her bra and he was putting his hands down her pants, the back part where her 'bum' was (t 29, 34).

(m) He was also putting his hands down the front of her t-shirt and was 'sort of squeezing her nipples' (t 29).

(n) He did this after his girlfriend had gone home (t 29).

(o) AOT said that the appellant was tickling her bottom when he had his hands inside her pants (t 36).

(p) Later, AOT said that the appellant was trying to unhook her bra strap with his right hand. Then AOT went over to NC and he used his left hand to try and unhook her bra strap (t 36).

(q) She also later described him using 'his four fingers' to touch her 'boob' and squeeze her nipple (t 36).

(r) He stopped because she was moving a lot (t 38).

(s) Her sister fell asleep during the first movie (t 10) at about 8.00 pm (t 15).

(t) AOT fell asleep at about midnight. The appellant woke her up at about 3 am (t 10).

(u) She was sleeping on the lounge with a cushion and blankets (t 10).

(v) She was wearing short pyjamas that were black in colour. She also had on a pink night gown (t 13). She had underwear and a singlet on underneath as well (t 14).

(w) AOT said 'he put my hands down his pants' (t 16).

(x) The appellant grabbed her hand and he was sliding it down his pants (t 16).

(y) When this occurred she was lying on her right-hand side on the couch facing the far wall (t 16).

(z) She thought that he used his left hand to grab her right hand (t 18).

(aa) The appellant put her hand on top of his pants and then slid it underneath his pants (t 19).

(bb) When he slid her hand down his pants he put his penis in her hand (t 20).

(cc) He held her hand on his penis for about 30 seconds to a minute (t 21).

(dd) When this occurred he said to her, 'Do you know what this is?' and she nodded (t 4, 21).

(ee) He asked if she could keep secrets, and she nodded (t 4, 21).

(ff) He also asked, 'Do you know what it does?' and she said, 'Yes' and then said, 'No', and she was confused (t 4, 21).

(gg) He then asked her, 'Well would you like me to show you want it does?', and she said, 'No' (t 4, 22).

(hh) Next, he took her hands out of his pants and said, 'I'm going to go into the study now'. He then walked into the computer room and asked her to follow. She did not think of saying no, and went into the computer room (t 22).

(ii) He asked her various 'strange questions' (t 22).

(jj) He told her to lift up her t-shirt. She lifted it up to her belly and he then asked her to lift it higher (t 22).

(kk) AOT said she was in the computer room for about three minutes (t 23).

(ll) When she lifted up her t-shirt the appellant was 30 to 60 cm away from her. She pulled it up to her chest (t 26).

(mm) She lifted up her singlet as well; her 'boobs' were exposed; her 'boobs' could be seen (t 27).

(nn) He told her to keep her tongue out, close her eyes and move closer to him (t 28).

(oo) She yawned and he told her to go back to bed; she then went back to bed (t 28).

(pp) For a week after the incident she did not tell her mother. Then two weeks passed and she had not told her. She thought it was on a Tuesday that they went to the Police Station to report the matter (t 4).

(qq) The first person she told about the incident was her sister BT (t 41).

(rr) AOT confirmed that she did not tell her mother until the Tuesday (t 29, 41).

20 AOT was cross-examined on 11 November 2010. She gave evidence, relevantly, as follows:

(a) AOT confirmed that the appellant's girlfriend, T, was present in the theatre room earlier in the evening. T was present when they were eating pizzas. T stayed for at least the first two of the three movies they watched that evening (t 78 - 79).

(b) She agreed that she (AOT) and NC were involved in tickling the appellant during the first and second movies (t 82).

(c) AOT denied suggestions from the appellant's counsel that the acts alleged by her did not take place.

21 In addition to the evidence of the two complainants, the State adduced evidence from AOT's younger sister, BT, as recent complaint evidence (although only in relation to count 5).

22 BT's evidence-in-chief was recorded on 1 June 2009. A summary is as follows:

(a) BT was 11 years old (BT was born in January 1998).

(b) Her sister (AOT) told her the next day, which was a Saturday in April, about the incident with the appellant (t 4).

(c) BT did not believe AOT because the appellant had a girlfriend (t 4).

(d) AOT kept telling her, and then 'ran up to [her] mum ... and that's it' (t 4). BT said it happened in April of that year, 2009 (t 4).

(e) BT said AOT told her that she had watched a 'Simpson[s]' movie, and that the appellant came in and lay next to her and said, 'Do you know what a doodle is?'. AOT told her that she had replied 'yes', and that the appellant made her touch it. That is all that AOT told her (t 5).

(f) They were in NC's friend's car when AOT told her that (t 5).

23 In cross-examination, which occurred on 11 November 2010, BT said that when AOT told her what had happened, it was on a Sunday and they were at NC's house (t 101 - 102, 11 November 2010).

24 NC gave evidence that she met the appellant in about December 2008. She and her husband, CC, formed a friendship with him (t 182 - 183).

25 The appellant moved in with them in about October/November 2009 (sic) and moved out in July 2009 (t 183 - 184).

26 NC gave evidence about an occasion when AOT and BT had stayed with her and her husband. It occurred when the girls' mother, SD, had returned from a conference in Sydney, but was suffering from toothache (t 184 - 185).

27 The people present in her house were NC, CC, the appellant, his girlfriend AG (known as T to AOT), AOT and BT (t 185 - 186).

28 She confirmed that she, the appellant, the appellant's girlfriend AG, AOT and BT ate pizzas and watched DVDs in the home theatre room.

29 At about midnight, the appellant took his girlfriend home. After he returned, AOT was sitting in/under his arms. This was the only interaction she noticed between AOT and the appellant (t 190, 191).

30 She went to bed at about 4 am. She said goodnight to the appellant, AOT and BT. AOT and BT were sleeping on the couch in the theatre room.

31 The following day, NC took the girls swimming (t 189, 193). She did not notice any difference in behaviour between AOT and the appellant the next day (t 194).

32 In cross-examination, NC confirmed that during the evening there had been 'tickling' and 'bantering' between AOT and the appellant (t 198).

33 NC had previously described the manner of AOT's behaviour with the appellant that evening as 'almost flirting' (t 199).

34 SD confirmed in evidence that her daughters stayed with NC and CC on the weekend of Friday 15 May 2009 to Sunday 17 May 2009. She collected them on the Sunday (t 210).

35 On 27 May 2009, AOT gave her a letter disclosing the appellant's sexually inappropriate behaviour (t 210).

The defence case in relation to AOT - counts 3 to 6

36 As I have mentioned, the appellant gave sworn evidence in his own defence. He denied committing the alleged offences. He also relied upon his video record of interview with police conducted on 5 June 2009.

37 The appellant said that at the time of the alleged events he was living at NC's and CC's house. He was in a relationship with AG.

38 On the evening in question, he watched DVDs in the theatre room with NC, AG, BT and AOT. CC was using the computer in his room.

39 During the evening he was involved in a bit of joking and tickling with NC, AOT and BT (t 232).

40 On one occasion he attempted to undo NC's bra strap by plucking it (t 233).

41 He took his girlfriend home at about midnight and then returned to the theatre room. NC, AOT and BT were there (t 235, 236).

42 He sat with NC and AOT, who had their heads on the crook of his arm or shoulder (t 237).

43 AG was called as a witness by the defence. She confirmed that she was present on the relevant evening. AG corroborated the appellant's evidence that there had been general 'horseplay' while they were in the theatre room watching DVDs. AG said:

(a) There was a 'tickling incident where we were all jumping around on the couch, [NC] was tickling [the appellant], [AOT] was tickling [the appellant], [the appellant] was tickling [NC]' (t 271).

(b) During the tickling incident the appellant went to unhook or flick NC's bra-strap (t 271).

(c) They were all enjoying themselves and having a good time (t 272).

44 The appellant relies on four grounds of appeal. The grounds, with supporting particulars, read:

1. The appellant's trial miscarried in relation to Counts 1 and 2 on the indictment as a result of the admission into evidence of the complaint allegedly made by [TS] to [SS] in circumstances where the statement did not qualify as 'recent complaint' evidence and was therefore inadmissible hearsay evidence.

1. the complaint was not made at the first reasonable opportunity; and
2. the complaint was not made voluntarily as it was elicited by questions of an inducing character.

1. The trial of the appellant miscarried in relation to Counts 3, 4, 5 and 6 on the indictment as a result of the admission into evidence of the complaint made by [AOT] to [SD] in circumstances where the complaint was not led for the purposes of establishing 'recent complaint'.
2. The learned trial judge erred in law by failing to give the jury any directions about how they were able to use the evidence of the complaint made by AOT to [SD] in circumstances where the complaint was not led for the purposes of establishing 'recent complaint' evidence.
3. The combined effect of wrongly admitted evidence and other prejudicial evidence caused the appellant's trial to miscarry.

Particulars

The appellant's trial ... miscarried as a result of:

1. the complaint allegedly made by [TS] to [SS].
2. the complaint made by [AOT] to [SD]

1. the appellant's comments during the electronically recorded interview on 5 June 2009 (at the end) wherein he referred to previous dealings with police.

1. the evidence from [TS] that the appellant had previously done similar things to other girls.
2. [SS's] comments during cross-examination that '[TS] also told me that [the appellant] would run his hands up the girls dresses when they went to a wedding' (t 169).

45 On 19 June 2011, Mazza J granted leave to appeal on grounds 2, 3 and 4 and referred the application for leave to appeal on ground 1 to the hearing of the appeal.

46 Counsel for the appellant submitted that evidence of the complaint made by TS to SS was inadmissible. It was not a 'recent complaint' in that the complaint was not made at the first reasonable opportunity, further or alternatively, the complaint was not made voluntarily in that it was elicited by questions of an inducing character.

Ground 1: no objection by defence counsel at the trial

47 At the trial, defence counsel did not object to the admissibility of the evidence in question.

48 Where inadmissible evidence is given at a criminal trial without objection, and the accused is convicted, an appeal based on the receipt of that evidence will not be allowed unless this court is satisfied that the admission of the relevant evidence constituted a 'miscarriage of justice', within s 30(3)(c) of the Criminal Appeals Act 2004 (WA). A trial judge does not make a 'wrong decision on a question of law', within s 30(3)(b) of the Criminal Appeals Act, by failing to exclude inadmissible evidence to which no objection is made. See R v Soma [2003] HCA 13; (2003) 212 CLR 299 [79] (McHugh J); Birks v The State of Western Australia [2007] WASCA 29; (2007) 33 WAR 291 [45] (Buss JA, Steytler P & Pullin JA agreeing); LBC v The State of Western Australia [2011] WASCA 201 [10] (Martin CJ, Hall J agreeing).

Ground 1: the doctrine of recent complaint: applicable legal principles

49 The doctrine of recent complaint is an exception to the rule against prior consistent statements and the rule against hearsay. See Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769 [4] (Gaudron & Gummow JJ); R v Bertrand [2008] VSCA 182; (2008) 20 VR 222 [95] (Vincent, Redlich & Weinberg JJA).

50 When evidence of a complaint is admissible under this doctrine, it is not admissible as evidence of the facts in issue. Rather, it is admissible to buttress the complainant's credit as a witness by demonstrating consistency of conduct. See Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460, 472 (Barwick CJ, McTiernan, Stephen & Mason JJ agreeing); Suresh [4]; R v Freeman [1980] VicRp 1; [1980] VR 1, 5 (Starke, McInerney & Murphy JJ).

51 The notion of 'recent', in the context of recent complaint, refers to the temporal proximity between the occurrence of the alleged offence and the making of the complaint. A condition of admissibility is that the complaint was made at the first reasonable opportunity after the occurrence of the alleged offence. See Freeman (8); R v W [1996] QCA 246; [1996] 1 Qd R 573, 574 - 575 (Pincus, Davies & McPherson JJA); Suresh [4]; Bertrand [95].

52 In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 514 - 515, Gaudron J challenged the traditional assumption that the victim of a sexual offence will complain at the first reasonable opportunity and that a later complaint is likely to be false. Her Honour said that the assumption that the victim of a sexual offence will complain at the first reasonable opportunity is of doubtful validity, especially in cases of child sexual assault. See also Suresh [5].

53 A trial judge, in deciding whether a complaint was made at the first reasonable opportunity, must take into account all the relevant facts and circumstances of the case.

54 In Freeman, Starke, McInerney and Murphy JJ said:

'Reasonable' must, we think, take into account the subjective situation in which the prosecutrix was placed, and have regard to such factors as were operating on her at the material time after the events (8).

55 In R v HRA [2008] VSCA 56; (2008) 183 A Crim R 91, Kellam JA (Neave JA & Curtain AJA agreeing) made these observations about the making of a complaint at the first reasonable opportunity where the complainant is a young child who has allegedly been sexually assaulted:

A young child may not understand the wrongfulness of an offence or may be much more inhibited than an adult in such circumstances. Furthermore, it is the experience of the courts that it is not uncommon for a child to be told that the sexual conduct is a secret and indeed on some occasions to be told that disclosure should not be made. In Suresh Kirby J observed that a delay of approximately seven months in complaint being made by a nine year old girl was a relatively short interval (Suresh v The Queen [1998] HCA 23; (1998) 102 A Crim R 18 at 31) [75].

56 A cautionary note was, however, expressed by Eames JA (Warren CJ & Batt JA agreeing) in R v GG [2004] VSCA 238; (2004) 151 A Crim R 92:

The situation of a child victim of sexual assault might well be such as to cause delay in making complaint, where an adult would be less inhibited (See M v The Queen [1994] HCA 63; (1994) 181 CLR 487, at 514 - 515 per Gaudron J). Care needs to be taken by the trial judge, however, when considering such factors. As Winneke P makes clear in R v Knigge ((2003) 6 VR 181, at [19] - [20]), the fact that the making of complaint is delayed for good reason, in particular because of the age of the complainant, cannot be used to convert what is not a 'recent' complaint into what is a 'recent' complaint [45].

57 A decision, in a particular case, as to whether a complaint has been made at the first reasonable opportunity is an evaluative judgment and, often, will involve questions of fact and degree. As Eames JA noted in GG:

There is no set rule as to when delay is too long to enable a complaint to be deemed 'recent' [46].

58 Another condition of admissibility is that the complaint was made freely and voluntarily. The complaint must not have been elicited by questioning that was, in substance, suggestive, inducing or leading.

59 In Freeman (4), Starke, McInerney and Murphy JJ approved the following statement of the Court of Criminal Appeal (Viscount Reading LCJ, Darling & Atkin JJ) in R v Norcott [1917] 1 KB 347:

The Court in R v Osborne, supra, meant to guard against admission in evidence of statements which have been put into the mouth of the prosecutrix by questions of a leading or suggestive character. The Court is concerned to see that in the present case the statement made by the girl was spontaneous in the sense that it was her unassisted and unvarnished statement of what happened. That she may have been persuaded to tell her unassisted and unvarnished story is no reason why the evidence of her having made the statement should be rejected (350).

60 In DS v The State of Western Australia [2008] WASCA 182, the appellant was convicted of indecent dealing with his de facto child, an 11-yearold girl. The complainant made a complaint to her mother. The mother's evidence about the facts and circumstances of the complaint was as follows:

So then you went into [the complainant's] room; and what do you say you said to her? - What did I say to her?

To [the complainant]? - I asked her if he'd been in the room.

Right? - And she nodded yes or said yes and I said - I said, 'Did he touch you?' because she was crying.

Yes? - She didn't answer -

What did she say? - She didn't answer me initially and I said, 'Did he touch you on the wee?' and she said, 'Yes,' and just burst into tears.

She burst into tears, did she? - Yes, she did [15].

61 This court held that the mother's evidence as to complaint had been properly admitted under the doctrine of recent complaint. Miller JA (Wheeler JA & Murray AJA agreeing) said:

The complainant's 'complaint' was, in fact, only a nod. No words were used. Nevertheless, it was the complainant's nod to her mother's question which constituted the complaint.

I do not consider that the complainant's mother put anything into the complainant's mind. Nor do I consider that the nod of the complainant in response to her mother's question was the product of a 'suggestive question to a suggestible mind' (Freeman at (5)). I do not consider, either, that the complainant was induced to nod in response to her mother's question in consequence of the relationship between her mother and herself (Freeman at (5)). Rather, I consider that all of the evidence points to the complainant's response as being spontaneous and in no way contrived or induced.

The facts of every case are different, but the circumstances in which complaints were made in each of the cases of Roberts and Azarian make it quite clear that, very often, questions asked of a complainant merely accelerate the making of a complaint that would otherwise be made. In many cases, the questions dissolve the barrier that might otherwise exist between the questioner and the complainant [27] - [29].

62 In HRA, the complainant, who was the granddaughter of the appellant, was aged 6 years when she made a complaint to her mother about the appellant's sexual offending. The complainant told her mother of a 'silly secret' she had with the appellant [15]. This secret was that the appellant took her to his room and licked her vagina. The next day the mother took the complainant to a hospital. The complainant was examined by a medical practitioner. After the examination, the mother and the complainant went to a restaurant at the hospital. The mother gave evidence-in-chief at the trial as follows:

QUESTION: After she had been medically examined did you go somewhere with her?

ANSWER: Yes, I took her down to McDonald's at the Royal Children's and we had - I ordered her some food, and I just wanted to ask her some more questions, because by this stage, I still hadn't found out a lot about what had happened.

QUESTION: Did she elaborate on what she'd told you the night before?

ANSWER: She did, she did.

QUESTION: What did she say to you?

ANSWER: Well, I said to her, 'You know, how often did it happen?' She said her that it happened every time she went to stay or she was - every time she went to stay at poppy's. She said that - she repeated the line that it was when poppy took her to his room and licked her pee pee, and I said, 'Well, what else happened?' She said well, she licked his pee pee and he rubbed cream on her and she rubbed cream on him and then they rubbed cream into each other's pee pees [80].

63 Kellam JA held that this evidence was properly admitted at the trial. The complainant's disclosures to her mother did not lack spontaneity. The disclosures were not 'extracted' from the complainant. His Honour said:

Whilst it is true that the complaint was made in answer to questions asked by the complainant's mother, there is no evidence that those questions were suggestive, intimidating or leading or that she was interrogated in a forceful manner by her mother. As stated in De B v De B ([1950] VLR 242 at 246) the mere fact that a statement is made in response to questions does not rule it out of the category of complaint. Indeed, even if it could be said that the complainant's mother persuaded the complainant to tell her what had happened, as long as she did not do so by asking questions in a leading or suggestive manner, the answers given would not be inadmissible [82].

64 In R v EF [2008] VSCA 213; (2008) 189 A Crim R 463, the appellant was convicted on three counts of having committed an indecent act with a child under the age of 16 years and two counts of sexual penetration of a child under the age of 16 years. The offending occurred between 23 February 2005 and 1 June 2005. The appellant was the complainant's step-grandfather. The complainant was aged 7 years throughout most of the period of the offending. Her 8th birthday was on 21 May 2005.

65 The trial judge in EF permitted evidence of 'recent complaint' to be led from the complainant's step-father, DT. In the Court of Appeal of Victoria, Weinberg JA (Nettle JA substantially agreeing and Mandie AJA agreeing) recounted the relevant evidence given by DT:

DT described how, on Sunday 5 June 2005, he had gone to Flinders St station to collect the complainant and her brother from their father, DS, who had been looking after them. BT, the complainant's mother, was with him. According to DT, DS said something to the mother about her daughter having 'issues' with the applicant having showered her. That caused DT to raise that very matter with the complainant while they were travelling back to Geelong by train.

According to DT, he asked the complainant whether the applicant had 'ever been rude to her'. Initially, she said nothing. Then she started to cry. Finally, she shook her head and said 'yes'.

DT said that he questioned the complainant about the applicant showering her. He then asked her for a second time: 'Has EF ever been rude to you?' She replied 'yes'. He said: 'What has he been rude, what has he done?' She said: 'He's made me suck his thing.' She added: 'He played with my "rudie" and he had one time hurt me.' She also told DT that EF had shown her rude pictures [38] - [40].

66 In EF, the Court of Appeal rejected submissions made on behalf of the appellant to the effect that DT's questions to the complainant were 'leading' and that her responses to those questions were not 'spontaneous'. Weinberg JA said that the question put by DT, 'has EF ever been rude to you?', in the context of the complainant having previously indicated that she had 'issues' with EF showering her, 'can hardly be regarded as "leading"' [53]. His Honour added that the form of that question did not detract from the spontaneity of the answer given [53]. Finally, his Honour observed:

It was submitted on behalf of the applicant that DT had gone too far, and that he ought simply to have asked something along the lines of whether there was anything wrong at home. That submission seems to me to lack reality. It must be remembered that the complainant had, by that stage, already indicated to DS, in broad terms, the nature of the problem. In answering the questions put by DT, she was essentially elaborating upon what she had previously said [54].

67 In Freeman, Starke, McInerney and Murphy JJ held that, at least on the facts of that case, the following was an appropriate framework for deciding whether a complaint was admissible:

(1) how proximate was the complaint when first made to the event;

(2) what happened in the interval between the events complained of and the making of the complaint;

(3) what likelihood there was that the 'complaint' was not the spontaneous and unvarnished narrative of the prosecutrix either because the statement had been put into the prosecutrix's mind and mouth by questions of such a character as to have suggested to the prosecutrix the answer she in fact gave, or that the questioner desired the answer given rather than another, or that the circumstances indicated that the answer given was the product of a suggestive question to a suggestible mind;

(4) whether the complaint could have been induced as a consequence of the relationship existing between the prosecutrix and the person to whom the complaint was made (cf R v Adams and Ross, [1965] Qd R 255) so that it was not spontaneous but contrived or induced;

(5) all the circumstances alleged to exist; and

(6) whether the 'complaint' in those circumstances had or tended to have the effect of buttressing the complainant's credit by demonstrating consistency (5).

See also Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19 [122] - [124] (Miller JA).

68 Starke, McInerney and Murphy JJ emphasised in Freeman that the ultimate question must always be whether the complaint, in the circumstances in which it was made, tends to buttress the complainant's credit as a witness (5).

69 As Vincent, Redlich and Weinberg JJA stated in Bertrand, the mere fact that a complaint might have been made earlier to another person, does not preclude an actual complaint made later from being received in evidence, if the conditions for admissibility under the doctrine of recent complaint are satisfied [95].

70 Evidence of two complaints may be admissible if each complaint was made at the first reasonable opportunity after the occurrence of the alleged offence. See Freeman (8); Daniels v The Queen (1990) 1 WAR 435, 443 (Kennedy J, Malcolm CJ & Seaman J agreeing).

Ground 1: tactical decision by defence counsel not to object: applicable legal principles

71 The Australian criminal justice system involves a contest between the State or the Crown and the accused. In general, the accused is bound by the conduct of his or her counsel. The accused's counsel has a broad discretion in the conduct of the defence. As Gleeson CJ (McInerney J agreeing) noted in R v Birks (1990) 19 NSWLR 677:

Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case (683).

See also TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [8] (Gleeson CJ); R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [168] (Kirby J).

72 An apparently rational decision made by the accused's counsel in the course of the trial will not result in an unfair trial or a miscarriage of justice merely because it may appear then, or later on appeal, that the decision was not carefully considered, was unwise, or produced consequences which operated to the disadvantage of the accused. See TKWJ, where Gleeson CJ explained:

It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks. In the present case, the decision not to adduce character evidence was made for an obvious reason: to avoid the risk that the prosecution might lead evidence from K.

Trial counsel made a decision not to call certain evidence. Viewed objectively, it was a rational tactical decision, made in order to avoid a forensic risk. It did not make the trial unfair, or produce a miscarriage of justice [16] - [17].

See also Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115 [21] (Gaudron, Kirby & Callinan JJ); TKWJ [95] (McHugh J), [107] (Hayne J, Gummow J agreeing).

73 An appellate court does not examine whether a decision taken by the accused's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage. Rather, the appellate court is concerned only with whether counsel's decision is capable of explanation on that basis. That is, could there be any reasonable explanation for the decision? The test is objective in character. See TKWJ [17] (Gleeson CJ), [27] (Gaudron J, Gummow J agreeing), [95] (McHugh J), [107] (Hayne J, Gummow J agreeing).

74 In McKinnon v The State of Western Australia [2010] WASCA 51, the appellant appealed against his conviction after trial on six counts of sexual penetration of his daughter, contrary to s 329(2) of the Code. One of the grounds of appeal was that the evidence of a witness, Brown, was wrongly admitted because it did not satisfy the conditions of admissibility in relation to complaint evidence. Defence counsel did not object to this evidence at the trial. McLure P (Wheeler & Pullin JJA agreeing) said that the only inference to be drawn from the conduct of the appellant's case at trial was that a forensic decision had been made not to object to the complaint evidence because it was to be relied on as part of the defence case that the complainant's allegations had been fabricated, so as to facilitate her goal of cohabiting with Brown [11]. In these circumstances, no miscarriage of justice had occurred.

[B]y not objecting to the admission of the statement and then using it to support the defence theory of the case, the appellant exercised his right to a fair trial. It would undermine the system of adversarial criminal justice if the admission of technically inadmissible evidence, not objected to for rational forensic reasons, could result in the quashing of a conviction because the forensic tactics had failed to bring about the accused's acquittal [23].

See also T v The Queen [2000] WASCA 153; R v The State of Western Australia [2006] WASCA 101.

76 In a visually recorded interview on 10 August 2009, which formed part of her evidence at trial, TS was asked:

And how long after, um - - when [the appellant] touched you did you tell your step-mum? (VRI ts 36)

It was pretty - - I can't remember that because I've been, like, ... (indistinct) ... like, not last month, not the month - - month before. No. Probably ... (indistinct) ... probably a month and a couple of weeks or something (VRI ts 36).

78 TS's evidence was, in substance, that the complaint she made to her stepmother, SS, was not made 'last month' (that is, July 2009) or the month before (that is, June 2009). Therefore, on the basis of TS's evidence, the complaint was made not later than 31 May 2009. Accordingly, the effect of TS's evidence was that the complaint was made, at the latest, not later than about six weeks after the offending conduct occurred (each of counts 1 and 2 alleging that the indecent dealing occurred between 12 April 2009 and 24 July 2009).

79 SS gave this evidence about the conversation she had with TS in which the complaint was made, and the date on which the conversation occurred:

I'm going to ask you, you understand in general terms what this trial is all about, do you---Yes.

I'm going to ask you about an occasion when you had a particular conversation with [TS]---Yes.

Can you recall the date on which that conversation took place---It was a Friday, 24 July.

Of which year---2009.

Okay. And as at 24 July 2009, how long had you known [TS]---About 18 months.

And how would you describe your relationship with her---I hadn't seen her for quite some time, but before that we had just a normal - I didn't know her really well, but I knew her reasonably well.

This conversation, whereabouts did it take place---Upstairs, in our home ... (trial ts 163). (emphasis added)

80 Therefore, on the basis of SS's evidence, the complaint was not made until up to about 15 weeks after the commission of the offences.

81 When the offending conduct occurred, and when the complaint was made, TS was aged 8 years. TS resided with her mother, TB, and TS's two younger sisters. TS's father, DS, resided with her stepmother, SS.

82 TS's visually recorded interview on 10 August 2009 reveals that her relationship with her mother, TB, was dysfunctional. I refer, in particular, to the following:

Q. Okay. Are you staying with your dad and step-mum because of what's happened with [the appellant]?

A. No. It's cos I don't like being with my - - around my mum cos she's an alcoholic and she smokes and she takes drugs.

...

Q. [TS], who was the first person you told in relation of what happened with [the appellant]?

A. My step-mum, then my dad, and then my mum. Well, she didn't - - I didn't, ah, actually tell her, but then she - - then I was kind of saying it in a different way, then she understood. But I think she just blamed - - she pretended to understand cos she always used to do that to me. Always.

Q. Yeah. So who's the very first person you told?

A. My step-mum.

...

Q. Mm. And what made you tell your step-mum?

A. Because I knew that I - - they would believe me and I knew my dad was saying not to get in with them cos they're bad people ... (indistinct) ... trust ... (indistinct) ...

...

Q. Mm hm. And when you told your step-mum what made you tell her at that time?

A. Because I felt like I needed to tell somebody and I was ... (indistinct) ... so I wanted to tell her so she knew ... (indistinct) ... probably get some help or something (VRI ts 8, 35, 36, 37).

83 Defence counsel did not cross-examine TS as to whether she had an opportunity to complain earlier. Also, defence counsel did not cross-examine TS about her relationship with her mother or why she had not promptly disclosed the offending to her mother.

84 SS said in evidence that TS's complaint to her, in the course of their conversation on 24 July 2009, was preceded by TS telling her that she did not want to return to her mother's home, and that she was scared about returning home. TS added that she wanted to live with SS and DS (trial ts 164). Defence counsel did not cross-examine SS on this evidence.

85 In my opinion, on the evidence at trial, the only reasonable inference was that TS's failure to disclose the offences to her mother, TB, immediately or shortly after their commission was attributable to her unsatisfactory relationship with her mother and the difficult family dynamics. TS was only comfortable disclosing them to her stepmother, SS, when she had the opportunity to do so. SS gave unchallenged evidence that she had not seen TS 'for quite some time' before the disclosure on 24 July 2009 (trial ts 163).

86 On the facts and circumstances of the present case, the delay of between about six weeks and about 15 weeks in making the complaint was not an unreasonable interval, after taking into account TS's age and the subjective situation in which TS was placed, and the factors that were operating on her, after the occurrence of the offending conduct. It is proper to characterise the complaint as having been made at the first reasonable opportunity.

87 After SS completed her evidence, the trial judge raised with the prosecutor whether he intended to rely on her evidence about the complaint as recent complaint evidence. The following exchange occurred:

STAVRIANOU DCJ: ... The other thing was, Mr Whalley, I assume that the evidence of [SS], it's not sought to be relied upon as recent complaint evidence, is it?

WHALLEY, MR: No.

STAVRIANOU DCJ: No. Just for the context, wasn't it? Is that the case?

WHALLEY, MR: Just as part of the narrative, that's right (trial ts 179).

88 This concession was made at 11.38 am on 25 January 2011. His Honour then adjourned the trial briefly. When the trial resumed at 12.05 pm, the prosecutor immediately withdrew his concession, and explained that the concession had been made as a result of a misunderstanding. The relevant passage in the transcript reads:

WHALLEY, MR: ... There's a quick matter I wish to raise - -

STAVRIANOU DCJ: Yes?

WHALLEY, MR: - - - before the jury comes back and it was really about the inquiry your Honour made before the morning tea break about the - a particular witness and whether the State relied upon that witness as recent complaint. Can I ask your Honour which witness your Honour was referring to there?

STAVRIANOU DCJ: It was the - the witness who's already given evidence, [SS] - [SS] said that she saw the complainant on 24 July. The complainant didn't say when she had spoken to [SS] at all and I was just wondering, in the circumstances, whether the State maintained that it was recent complaint evidence.

WHALLEY, MR: Sorry, your Honour. I misunderstood. I thought your Honour was - I was getting mixed up with the [SD] - - -

STAVRIANOU DCJ: With [BT]?

WHALLEY, MR: Yes. The short answer to that is yes, your Honour, the State ultimately will - - -

STAVRIANOU DCJ: Does rely - - -

WHALLEY, MR: - - - be relying on that.

STAVRIANOU DCJ: All right then (trial ts 180).

89 As I have mentioned, SS said in evidence that TS's complaint to SS happened in the course of a conversation between them on 24 July 2009. The complaint was preceded by TS spontaneously informing SS that she did not want to return to her mother's home, she was scared about returning home and she wanted to live with SS and DS.

90 SS then gave this evidence, without relevant objection:

So I said - I said to her, I said, '[TS]', I called her into the office where I was sitting and I said, 'Has anything' - she'd mentioned before that she found her mother's current boyfriend a bit creepy. And so I said to her, 'Has anything happened that's made you feel a bit - a bit uncomfortable, like what you said about Shaun [the mother's current boyfriend] being creepy,' and she says, 'Well, [the appellant] always tries to get me to sit on his lap.' And, I said, 'Oh, that - that's pretty awful when grown up men try to get you to do things like that,' trying to empathise with her. And it is. And I said, 'Did anything else happen?' and she said - she said, 'He touched me on my private spot,' and I just said, 'Did it happen one time or lots of times? What happened?' She said that it happened one time and she was laying in bed. She'd been unwell during the day and she was lying in her mother's bed and [the appellant] and [TB] had come to bed. She said something about [TB] had a shower and came to bed and - and they were laying in bed, her mother, then [the appellant] and then her which is how she said it (trial ts 164).

91 It is apparent from this evidence that there had been an earlier conversation between SS and TS in which TS had told SS that her mother's boyfriend, 'Shaun', was 'creepy'. However, SS was not cross-examined on this issue. No evidence was adduced at trial in relation to this earlier conversation.

92 None of the questions put by SS to TS about the appellant was, in substance, suggestive, inducing or leading. The questions merely accelerated the making of a complaint. There was nothing of an inducing character in SS raising with TS their earlier conversation about TS's feelings of discomfort and her perception of 'creepiness' in relation to 'Shaun'. The statements made by TS to SS were the product of TS's own mind. These statements did not involve the acceptance by TS of suggestions implanted in her mind or words put into her mouth. For example, SS did not ask TS, in substance, whether the appellant had touched her on her 'private spot'. TS made the complaint freely and voluntarily.

93 In my opinion, the complaint demonstrated consistency with TS's evidence at the trial. The complaint therefore buttressed her credit. The complaint was admissible for that purpose at the trial.

94 In any event, I am satisfied that defence counsel's decision not to object to the complaint evidence being adduced at the trial is reasonably capable of explanation on the basis of a decision taken for the purpose of obtaining a forensic advantage. At the hearing of the appeal, counsel for the appellant conceded (properly, in my opinion) that defence counsel had made a tactical decision not to object to the admissibility of the complaint evidence (appeal ts 2). The failure to object related both to TS's account and SS's account of the disclosure. Indeed, before the closing addresses and the trial judge's summing up, defence counsel conceded, in substance, that TS's disclosure to SS was a recent complaint. This is revealed in the following exchange between the trial judge, the prosecutor and defence counsel, in the absence of the jury:

WHALLEY, MR: I was wondering what your Honour was going to say about the issue of complaint? Had your Honour formed a view on that in terms of particularly in relation to the - [SS's] evidence?

STAVRIANOU DCJ: Well, the position seems to be that the evidence was admitted without objection, insofar as [SS's] concerned - [SS's] concerned, so I'll just tell the jury that that's the position: that it is evidence which they can consider as recent complaint and it's ... a matter for them as to how they deal with it.

I think that's the position, isn't it, Mr Crispe?

CRISPE, MR: That is the position, your Honour (trial ts 275 - 276).

95 The complaint evidence given by SS was contained in her witness statement. This statement formed part of the prosecution brief of evidence that was served on the defence before the trial. Defence counsel therefore had advance notice of the complaint evidence.

96 At trial, defence counsel raised the possibility that TS may have been confusing the appellant with her mother's boyfriend, 'Shaun'. This is apparent from defence counsel's cross-examination of SS:

Now, this all started, this conversation [with TS] you've told us about, because of someone called Shaun who was then [TB's] boyfriend---Yes.

...

Okay. All right. But the conversation started as - as - with the mention of someone called Shaun, you told us---Yes, I said that - - -

Told us - - ----Did anything happen that had made you feel uncomfortable.

Hang on, I'll come to all that. But the actual name of the person - [TS] didn't want to go back - she was obviously staying with you guys at that stage, wasn't she---For about - - -

She was - - ----- - - four days, she was with us.

Yes, okay. And she didn't want to go back, and she'd already mentioned to you this - something about Shaun---Yes.

And Shaun was the then boyfriend of [TB]---Yes.

...

Yes. So nobody's getting mixed up here with Shaun, are they? Or anything like this? That is a - - ----?---She was very clear. She said his name was [the appellant]. Doesn't sound anything to me like [Shaun] (trial ts 167 - 170).

97 Also, defence counsel, in his closing address, sought to gain some advantage from what he asserted was an inconsistency between TS's evidence about the complaint on the one hand, and SS's evidence about that issue on the other:

The mention of that [the appellant] tries to get me to sit on my lap was something that was said. Now, we haven't heard [TS] say anything about that in any of the evidence in her pleas to the police. The police didn't suggest, in questioning [TS], there was something about sitting on his lap or anything like that and yet [SS] just says that. So you have to wonder about the independence and the whole purpose of [SS] giving evidence. Now, if [TS] did say that to her then she's distorting [or] being untruthful (trial ts 402).

98 Even if, contrary to my opinion, the complaint evidence was not admissible, defence counsel's failure to object to it did not occasion a miscarriage of justice.

100 Counsel for the appellant submitted that the appellant's trial in relation to counts 3, 4, 5 and 6 miscarried as a result of the admission into evidence of the complaint made by AOT to her mother, SD, in circumstances where the evidence was not adduced for the purposes of establishing a recent complaint.

101 In a visually recorded interview on 1 June 2009, which formed part of her evidence at trial, AOT's younger sister, BT, gave this evidence of complaint in relation to count 5:

Q. Okay. Now, tell me all about what your sister told you this day? What was it that she told you?

A. She said that after she was - - had watched the Simpson movie that [the appellant] came in and laid next to her on the other side of me and said 'Do you know what a doodle is?' and [AOT] said 'Yes' and then he made her touch it and that's all she told me.

Q. Okay. And are they the words [AOT] used?

A. Yeah (VRI ts 5).

Now, I'm going to move on to something else. I'm going to ask you this: for legal reasons we can't go into details of specifically anything [AOT] may have said or disclosed to you. Okay---Mm hmm.

If you'd bear that in mind but is it the case that [AOT] made a disclosure to you about some sexually inappropriate behaviour by [the appellant]---Yes, she did. She wrote me a letter with that in it.

Okay. And how long after, approximately, this weekend when they'd stayed with [NC], did that happen---?---I think the date that - we went straight [to] the police station, I think that was on 25 May so about 10 days (trial ts 210 - 211).

103 Defence counsel did not object to this evidence, and he did not cross-examine SD at all (trial ts 212).

104 The appellant's defence at trial was that none of the offending conduct had occurred. Defence counsel sought to advance scenarios as to why each of TS and AOT would fabricate her allegations.

105 Before the commencement of the trial, the prosecutor sent a letter dated 20 January 2011 to defence counsel. In the letter, the prosecutor said, relevantly:

The State does not propose to lead evidence of the details of the disclosure made by [AOT] to [SD] (Brief p 73) to which [SD] refers in paragraphs 28 - 39 of her statement ...

The State will lead evidence of the fact of this disclosure to [SD] (without reference to its contents) since that is an [sic] necessary part of the narrative to explain how this matter came to the attention of police. (original emphasis)

106 Defence counsel did not object to this course of action.

107 The prosecutor, in his opening and closing addresses, emphasised the State's contentions that TS and AOT were unknown to each other and that there had been no collusion between them. He said in his opening:

The State will ultimately point to the inherent improbability of two people, apparently unconnected with each other, making such similar allegations against [the appellant]. The State case is that the explanation for this is that [the appellant] has a sexual interest in young girls and he's prepared to act on that sexual interest when circumstances permit (trial ts 136).

108 No evidence was given as to the specific content of the letter referred to by SD or the specific content of any conversation between AOT and SD in relation to the offending. Evidence of the disclosure by letter was not sought to be adduced as complaint evidence. Rather, it was adduced as part of the narrative, and for the purpose of explaining how the allegations came to the attention of the police and to rebut any suggestion of collusion between AS and AOT. SD gave unchallenged evidence that immediately after AOT made the disclosure to her, SD drove with AOT to the Cannington Police Station (trial ts 120 - 211).

109 The trial judge gave this direction to the jury, in his summing up, in relation to TS's complaint to SS:

Proof that a complaint was made can never be proof that the event actually occurred. Evidence of proper complaint is not to be taken as proof that the conduct complained of did occur. It's not separate or additional, corroborative or confirmatory evidence that the crimes were committed. The State led the evidence to show consistency of the conduct. The time and nature of the complaint may assist you in determining the consistency, believability and credibility of the complainant. It's something you can take into account in considering the complainant's credibility and the truthfulness of her evidence. But you cannot and must not treat it as separate or additional to her evidence. It's the evidence of the complainant of what happened, which you saw and heard her give, which you must consider. The fact she told someone else the same thing cannot add to the truthfulness of her evidence. If the story's not true, the repetition of it will not make it true.

However, in judging her credibility and the truthfulness of her evidence you're entitled to know how she acted immediately after the events to see whether she acted in a way that you might expect a person in her position to act after the events of which she's given evidence (trial ts 310 - 311).

110 His Honour then dealt with the complaint made by AOT to BT:

Now, in relation to [AOT], you heard evidence that [AOT] made a complaint about the accused's conduct to her sister, [BT]. Now, the complaint that she made to [BT], and I've already outlined to you the evidence, but I'll just remind you of that evidence again: 'Do you know what a doodle is?' And [AOT] said, 'Yes,' and then he made her touch it. And that's all she told me. So the complaint in this case, members of the jury, only relates to count 5 on the indictment, which is the charge that he permitted her to touch his penis. That's the only part of [BT's] evidence that can serve as evidence of recent complaint. There's no evidence of any recent complaint in relation to any of the other charges involving [AOT]. As in the case of what I've told you about [TS] and recent complaint, proof that a complaint was made can never be proof that the event occurred. Evidence of prompt complaint is not to be taken as proof that the conduct complained of did occur. It's not separate, additional, corroborative or confirmatory evidence that the crimes were committed. The State led the evidence to show consistency of conduct. The time and nature of the complaint may assist you in determining the consistency, believability and credibility of the complainant. It's something you can take into account in considering the complainant's credibility and the truthfulness of her evidence in relation to count 5, but not in relation to other counts. You cannot treat it as separate or additional to her evidence. It's her evidence of what happened which you saw and heard her give that you've got to consider. The fact she told someone else the same thing cannot add to the truthfulness of her evidence. If the story's not true, repetition of it will not make it true. However, in judging her credibility and the truthfulness of her evidence you are entitled to know how she acted immediately after the events to see whether she acted in a way which you might expect a person in her position to act after the events of which she's given evidence (trial ts 311 - 312). (emphasis added)

111 In my opinion, SD's evidence as to the letter she received from AOT, and defence counsel's failure to object to the evidence, did not result in a miscarriage of justice in relation to count 3, 4, 5 or 6. My reasons are as follows. First, the trial judge instructed the jury that BT's evidence as to complaint was confined to count 5 and that there was no evidence of any recent complaint in relation to any of the other counts involving AOT. Secondly, his Honour instructed the jury that evidence of prompt complaint is not proof that the conduct complained of in fact occurred, and evidence of prompt complaint is not separate, additional, corroborative or confirmatory evidence that the alleged offences were committed. Thirdly, the prosecutor did not refer, in his opening or closing address, to SD's evidence about the letter from AOT. Also, the trial judge did not refer to the letter in his summing up or at any other time in the presence of the jury. Fourthly, in any event, the jury would necessarily have understood from his Honour's summing up (in particular, his instructions as to the complaint evidence of TS to SS and AOT to BT) that SD's evidence about the letter from AOT was, at best, evidence which showed consistency of conduct on the part of AOT. The absence of any evidence as to the specific content of the letter would necessarily have resulted in the jury giving limited weight to SD's evidence on this issue. Fifthly, his Honour instructed the jury that they must decide the facts of the case on the basis of the evidence they had heard, and they must not 'guess or speculate about matters that are not in evidence' (trial ts 293). The jury would necessarily have understood that this direction applied to the content of the letter. There is no reason to suspect that the jury would not have acceded to and faithfully applied his Honour's direction. Sixthly, defence counsel, who is a very experienced criminal defence lawyer, did not request his Honour to give the jury a redirection or an additional direction about SD's evidence.

113 Counsel for the appellant submitted that the trial judge made an error of law in failing to direct the jury as to how it was able to use the evidence of complaint made by AOT to SD, in circumstances where the complaint was not led for the purpose of establishing a recent complaint.

114 I am satisfied, for the reasons I have given at [111] above in the context of ground 2, that the trial judge was not bound to give the jury a specific direction as to what use, if any, it might make of SD's evidence about the letter from AOT and that, in any event, no miscarriage of justice arose from the absence of such a direction.

116 For the reasons I have given, in the course of considering ground 1, there is no merit in ground 4(a).

117 For the reasons I have given, in the course of considering ground 2, there is no merit in ground 4(b).

118 Counsel for the appellant submitted that the appellant's trial miscarried as a result of the appellant's reference, in his video-recorded interview with police, to his previous dealings with police being admitted into evidence at the trial.

119 The video-recorded interview happened on 5 June 2009. The transcript of the interview comprises 25 pages. At the conclusion of the interview, the following question and answer appear:

Q. Okay. Have you got any complaints at all with the way you've - - -

A. No, you guys have probably [been] - one of the better ones [I have dealt with over] the years. Even though it's the worse [sic] situation I've ever had it was done (indistinct) (VROI ts 24).

120 The video-recorded interview with the appellant was tendered in evidence by the prosecutor at the trial. Defence counsel did not object to the inclusion of the passage in question. He did not request its excision. This appears to have been an oversight by defence counsel.

121 Before the closing addresses and the trial judge's summing up, the following exchange occurred, in the absence of the jury:

STAVRIANOU DCJ ... The other thing which arises is in the accused's record of interview. Would you both, actually, look at that? If you could both have the transcript there? It's right at the end of the accused's record - - -

CRISPE, MR: I know exactly what you're going to say.

STAVRIANOU DCJ: All right. Well, perhaps, I better identify it so let me just find it. I can't find it now but I'll identify it so for the transcript. It's the section where he says, in fact, I've now found it.

CRISPE, MR: Because I have issues, is it? Is it on page 22, your Honour?

STAVRIANOU DCJ: There's that - no, not specifically. I thought there was an indirect reference to his dealings with the police beforehand.

CRISPE, MR: Yes.

STAVRIANOU DCJ: Is that the same passage?

CRISPE, MR: No. It's - now, that passage, your Honour, is where you guys have been pretty - I noticed - - -

STAVRIANOU DCJ: That's it. Yes. That is the passage at the top of - that was the passage - I'll come back to 22 in a moment. But at 24, the third question.

CRISPE, MR: Yes.

STAVRIANOU DCJ: The police officer says: Have you got any complaints at all with the way you've- - - And the answer of the accused is: No, you guys have probably been - have probably one of the better ones.

STAVRIANOU DCJ: And, I think, it says indistinct there but my note was, 'I have dealt with.'

CRISPE, MR: Yes. 'Over the years.'

STAVRIANOU DCJ: Yes.

CRISPE, MR: Yes. Look, I've obviously - - -

STAVRIANOU DCJ: Even though it's a worse situation I ever and had it was - - -

CRISPE, MR: Yes. Now, I've missed that, your Honour, when we've looked at it and obviously my friend did looking at the deletions as it - so - - -

STAVRIANOU DCJ: Do you want me to say something? I can say something, again, it's a forensic decision on - - -

CRISPE, MR: Yes.

STAVRIANOU DCJ: It doesn't actually say what he - the nature of the dealings.

CRISPE, MR: No, no.

STAVRIANOU DCJ: So, to some extent, it'd be covered by the don't guess or speculate about what's not in evidence but if you want me to specifically say something I will.

CRISPE, MR: My experience is that, on balance, it's best to not say anything.

STAVRIANOU DCJ: All right.

CRISPE, MR: That's how I'd probably prefer it, your Honour. I did hear it as it came out and it surprised me that it was still there but it doesn't really - yes. I think the best idea is to simply say nothing.

STAVRIANOU DCJ: All right. Content with that, Mr - - -

WHALLEY, MR: It's really a matter for Mr Crispe and for you, your Honour.

STAVRIANOU DCJ: But from the State's point of view?

WHALLEY, MR: The State's happy with that, your Honour (trial ts 278 - 280).

122 In my opinion, the inclusion of the evidence in question did not occasion a miscarriage of justice. I am of that opinion for these reasons. First, the appellant's reference to his previous dealings with the police was brief and non-specific. Secondly, no reference to any previous criminal charges or convictions relating to the appellant was given in evidence. Thirdly, the evidence in question was not referred to, at any stage of the trial, by the trial judge, the prosecutor or defence counsel, in the presence of the jury. Fourthly, defence counsel, on the basis of his experience, thought it best if nothing was said to the jury about the relevant evidence. He requested his Honour, in substance, not to give the jury a direction on the point. Fifthly, as I have mentioned, his Honour instructed the jury that they must not 'guess or speculate about matters that are not in evidence' (trial ts 293). The jury would necessarily have understood that this instruction applied to the appellant's comments in his video-recorded interview. There is no reason to suspect that the jury would not have acceded to and faithfully applied his Honour's directions.

124 Counsel for the appellant submitted that the appellant's trial miscarried as a result of evidence having been received from TS to the effect that the appellant had previously done similar things to other girls.

125 In TS's visually recorded interview, which formed part of her evidence at trial, the following question and answer appear:

Q. Has every - - has anything else or similar happened with [the appellant] before?

A. I think he's done it to some other girls, too (VRI ts 37).

126 Defence counsel did not object to this evidence, and he did not cross-examine TS on it.

127 As I have mentioned, it was an important part of the State's case at trial that TS and AOT were unknown to, and unconnected with, each other. See [107] above.

128 Defence counsel referred to the evidence in question in his closing address. He said:

Now, in the DVD right at the end, there's also just a point, you might have heard it as it went through, I won't read it out, but it's page 37. She says when she's interviewed, just as a throwaway comment, 'He's done it to some other girls too.' Now, all I wanted to say about this, is clearly she knew at the time she was giving this statement about the other allegation. Now, that's clear from what she said. So that's a matter you need to take into account, in a general appreciation of her evidence, what she may be trying to achieve (trial ts 396). (emphasis added)

129 After the prosecutor and defence counsel completed their closing addresses and before the trial judge commenced his summing up, his Honour referred to the evidence in question in a discussion with the prosecutor and defence counsel, in the absence of the jury:

CRISPE, MR: Sir, I'm just trying to turn it up.

STAVRIANOU DCJ: Yes, I think you expressed it on the basis that she knew about [AOT's] allegations.

CRISPE, MR: Well, I wouldn't want to be able to say - I wouldn't want to---

STAVRIANOU DCJ: I don't know if you could say that, that's all.

CRISPE, MR: I couldn't - I wouldn't want to say that she knew about other allegations, it'll only make sense in the context of this trial because that's where it is and it does have - well, for whatever probative worth it is - yes, here it is, it's at page 37.

STAVRIANOU DCJ: Yes.

CRISPE, MR: I think he's done it to some other girls too. And I really, I suppose it's the direct result of the question that was asked. These are things that obviously my friend and I didn't see before, but has anything else happened with [the appellant] before and she's thought outside the box by the sound of it but she knew at the time. So to what the jury make of it I don't know but I didn't try and draw an inference other than describe that it was there.

STAVRIANOU DCJ: Yes, all right. Have you got anything to say about it, Mr Whalley?

WHALLEY, MR: Your Honour, my note of that by Mr Crispe was that it wasn't clear she knew about the other allegations, and I just don't think that's appropriate. They may - I mean that infers she knew about [AOT] and [AOT's] allegations; it may be completely unrelated allegations for [sic] other girls. I mean, it's - I don't - I mean, again, perhaps it doesn't require---

STAVRIANOU DCJ: A comment at all.

WHALLEY, MR: - - - being highlighted, the jury will make it of it what they make of it (trial ts 286).

130 In my opinion, for the reasons which follow, the admission of the evidence in question at the trial did not occasion a miscarriage of justice. First, the relevant evidence was brief and non-specific. Secondly, the evidence was not referred to by the prosecutor at any stage of the trial. Thirdly, defence counsel accepted, in the discussion with the trial judge and the prosecutor which occurred in the absence of the jury, that his Honour should not refer to the relevant evidence in his summing up. Fourthly, defence counsel did not request any direction or redirection from his Honour in relation to the relevant evidence. Fifthly, defence counsel, who is, as I have mentioned, a very experienced criminal defence lawyer, had a number of possible courses of action available to him when he realised that the relevant evidence had been admitted. Defence counsel could have applied to abort the trial; alternatively, he could have sought a direction about the relevant evidence; alternatively, he could have said nothing about it; alternatively, he could have attempted to obtain some forensic advantage from it. In the event, defence counsel decided to use the relevant evidence to suggest to the jury in his closing address, in substance, that TS knew about AOT's allegations before TS gave her visually recorded evidence and, by implication, that this knowledge may have contaminated TS's allegations.

132 Counsel for the appellant submitted that the appellant's trial miscarried as a result of SS's comments during cross-examination that TS had told her that the appellant had 'run his hands up the girls' dresses when they went to a wedding' (trial ts 169).

133 The comments made by SS were unresponsive to defence counsel's question, and were inadmissible.

134 Defence counsel, in his closing address, made a non-specific reference to SS's comments, and endeavoured to demonstrate that SS was biased against the appellant and to impugn her evidence. He said:

[SS]. Again, we say you need to be cautious with this lady. She's not an independent witness, she has an interest. She was not objective and not trying to be helpful in the process. She was not objective, she used any opportunity to gratuitously even throw another allegation. You heard that. It's really outrageous in a trial but can't stop a person gratuitously suddenly adding words. It just reflects on her. There's no other allegation otherwise you would have heard all about it and had a trial and be part of the trial. But it's just the sort of thing that indicates the witness is not being objective and is just prepared to throw mud ...

I just want to emphasise it's quite clear this lady is not independent, she's got an axe to grind and she used the opportunity she could to denigrate the accused as she gave her evidence gratuitously (trial ts 383 - 384).

135 I am satisfied that no miscarriage of justice arose as a result of SS's comments during cross-examination. In particular:

(a) the evidence was not referred to by the prosecutor at any stage of the trial;

(b) defence counsel did not request any direction or redirection from the trial judge in relation to the comments;

(c) defence counsel decided to use the comments for the forensic purpose of submitting to the jury that SS was biased against the appellant and that they should approach her evidence generally with caution.

137 Counsel for the appellant sought to rely on the 'combined effect' of grounds 4(a) to 4(e). For the reasons I have given, each of these grounds is unmeritorious. The absence of merit is not improved upon or redressed when they are considered in combination. No miscarriage of justice is discernible. The appellant did not lose a fair chance of an acquittal.

138 I would grant leave to appeal on ground 1, but none of the grounds has been made out and the appeal must therefore be dismissed.