TDB -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 29 (27 February 2026)

[T]here is no proper basis for the jury to have considered the complainant to have been honest, reliable and accurate as to two counts but not the third where there was no material difference alleged between any count such that there is a high likelihood there was a compromise of the performance of the jury's duty. (appellant's submissions par 12(c))

Applicable principles: release on bail pending appeal

1. The principles relating to the granting of bail pending the determination of an appeal are well established. The court must be satisfied that there are exceptional reasons why the appellant should not be kept in custody. Also, it must be proper to grant bail having regard to the provisions of cl 1 and cl 3 of pt C to sch 1 of the Bail Act 1982 (WA): Bail Act sch 1 pt C cl 4A.
2. The word 'exceptional' is not to be equated with 'rare' or 'remarkable'. Instead it signifies something which is unusual or out of the ordinary; it is, in some way, an exception to the general run of cases. What might constitute exceptional reasons will depend on the circumstances of the particular case. It might be constituted by a combination of factors. See ZHA v The State of Western Australia.[2]
3. An appeal's prospects of success is often a very significant factor in assessing whether exceptional reasons exist for the grant of bail.
4. Something more than a reasonably arguable case must be shown. The appeal must be demonstrated to have strong prospects of success, ie it must be strongly arguable. That formulation is predicated on the notion that the prospects of success must be sufficiently likely to give rise to a real concern that the appellant would suffer injustice by being kept in custody on the basis of an unsound conviction: Serukai v The State of Western Australia;[3] Shepherd v The State of Western Australia;[4] Noormets v The State of Western Australia;[5] Frigger v The State of Western Australia.[6]
5. Accordingly, I will evaluate the appellant's application for bail having regard to whether the single proposed ground of appeal is strongly arguable.
6. Ordinarily, for the purpose of a bail application, the conclusion that the appeal is likely to succeed should be demonstrable without detailed argument: Downes v The State of Western Australia.[7]

1. The court's view as to the apparent merits of an appeal are necessarily preliminary in nature at the stage of a bail application. That is the position in the present case. I have not heard full argument. Nor can it be said that I have been taken to all of the evidence that may bear on the proposed ground of appeal. It is, in the circumstances, appropriate to state my views in a relatively conclusionary fashion with limited elaboration. This is consistent with the general approach of this court in dealing with an application for release on bail pending appeal. See eg Serukai [16] ‑ [19]; Shepherd [43] ‑ [44]; Noormets [38] ‑ [40]; Frigger [33] ‑ [35].
2. That said, while the appellant's argument in support of the proposed ground of appeal does not require me to descend into the detail of the trial record, the State's answer to that argument is more intensive. It requires a more detailed consideration of the evidence and the course of the trial. Accordingly, what follows is more involved than might ordinarily be expected in reasons dealing with a bail application.
3. An appellant alleging that factual inconsistency vitiates a verdict of the jury faces a high hurdle. It is accepted that:
   1. The appellant must satisfy the court that, as an exercise of fact‑finding, in logic and reasonableness, the verdicts cannot stand together, meaning that no reasonable jury who had applied their minds properly to the facts of the case could have arrived at the conclusion: MacKenzie v The Queen.[8]
   2. If there is a proper way by which an appeal court may reconcile the verdicts, allowing the court to conclude that the jury performed their functions as required, the verdicts will not be inconsistent in the relevant sense: MacKenzie (367).
   3. If there is some evidence to support the verdicts said to be inconsistent, it is not the role of an appeal court, upon this ground, to substitute its opinion of the facts for one which was open to the jury: MacKenzie (367).
4. Importantly, where a jury returns an acquittal in relation to a count in respect of which a prosecution witness has given evidence, it does not follow that the jury must have concluded that the witness was generally untruthful or his or her credibility or reliability was compromised: DPJB v The State of Western Australia.[9]
5. The State's case at trial, consistent with MHW's evidence, was that MHW was a friend of the appellant's daughter. At the time of the alleged offending MHW was 14 years old. The appellant was 45 years old. MHW and the appellant's daughter had, in the months prior to the alleged offending, been engaging in sexual activity for drugs and money. This was known to the appellant. MHW and the appellant's daughter had been living with the appellant's former partner. Shortly prior to the offending there was an argument which resulted in MHW and the appellant's daughter leaving that home. On 9 October 2021 the appellant's daughter arranged for the appellant to collect her and MHW with the intention that they would stay with the appellant for a period. However, in the events that happened, arrangements were made for the appellant's daughter to stay in youth services accommodation while MHW stayed with the appellant. Later that day the appellant accompanied MHW and the appellant's daughter to a shopping centre. While shopping MHW bought three outfits.
6. That night, after the appellant's daughter returned to the youth services accommodation, MHW stayed in the appellant's bedroom in a share house. When inside the appellant's bedroom MHW and the appellant smoked methylamphetamine together. The appellant and MHW spoke about MHW engaging in sexual activity for drugs and money. The appellant asked MHW whether she would have sex with him. MHW agreed on the condition that the appellant paid her. Thereafter, on the State's case, the appellant and MHW engaged in penile/vaginal sexual intercourse for approximately 2.5 hours. There were breaks during the sexual activity. During the breaks the appellant requested that MHW try on the three different outfits she had purchased while shopping earlier that afternoon. Each time MHW changed into a new outfit the appellant had penile/vaginal sexual intercourse with her while she wore the outfit.
7. MHW described four different outfits:
   1. A red/orange skirt with a matching red/orange top (CWI‑1[10] pp 13 ‑ 15; ts 217 ‑ 218; Ex 3.1).
   2. A black skirt with a black top (CWI‑1 pp 13 ‑ 15; ts 217 ‑ 218; Ex 3.3, Ex 4.6, Ex 4.7).
   3. A white denim skirt with a blue top (CWI‑1 pp 13 ‑ 15; ts 217 ‑ 218; Ex 3.4, Ex 3.5).
   4. A white denim skirt with a black top (being the black top from sub‑par (2) above and the white denim skirt from sub‑par (3) above) (ts 221 ‑ 223; Ex 4.6, Ex 4.7).
8. MHW's evidence was that she wore the white denim skirt with the black top during the morning of the next day (ie 10 October 2021) and that she and the appellant did not have sex while she was wearing that outfit (ts 219). Accordingly, it was the other outfit combinations that were, according to MHW's evidence, worn during the three acts of sexual intercourse. The order in which the outfits were worn is unclear. Different orders appear throughout MHW's evidence (compare CWI‑1 pp 13 ‑ 15 and ts 217 ‑ 219). But the substance of MHW's evidence was that the appellant asked her to put each outfit on; each time MHW put a different outfit on the appellant wanted to have sex with her in the outfit; and the appellant did have sex with her in each outfit (CWI‑1 pp 13 ‑ 14). MHW stated:

Like, maybe change the outfit, then he would have sex with me with that outfit on. And then change that outfit and have sex with me with the other outfit on. And then the other outfit on. (CWI‑1 p 14)

1. Counts 1 to 3 reflected the three occasions of alleged sexual activity between the appellant and MHW relating to each of the three outfits worn by MHW - the prosecutor confirmed as much in the prosecutor's closing address to the jury (ts 1778 - see also ts 1251).
2. The appellant gave evidence at the trial. The appellant admitted that he had spent the night with MHW and smoked methylamphetamine with her. However, the appellant denied that any sexual activity occurred between him and MHW. The appellant also denied that MHW had changed outfits during the night at his request (ts 1656 ‑ 1657, 1659 ‑ 1661, 1664, 1668, 1684 ‑ 1685, 1689).
3. Accordingly, as counsel for the appellant emphasised in oral submissions, it was the defence case that MHW had no outfit changes during the night of 9 October 2021.
4. The jury sought clarification from the trial judge in the course of their deliberations. Specifically, as to the 'three charges on the indictment' the jury asked whether it was sexual penetration 'in and out' three times or three sexual occasions on the night with a break in between each occasion (MFI 'H'; ts 1882). The trial judge directed in a way that tied each count to an alleged change in outfit. His Honour stated:

The way the State have run their case is that what's alleged - so count 1, the State say there is a sexual penetration of [MHW's] vagina by the accused's penis. She then changes her clothes. Then it says there's a separate sexual penetration after the change of the clothes. She changes her clothes again, and then there's a third sexual penetration.

So it's not each in‑and‑out action of the penis which constitutes a sexual penetration. There are separate and distinct occasions. Count 1 is a sexual penetration, she changes her clothes. Count 2 is a second sexual penetration. And then count 3 - she changes her clothes in between the second and the third, and there's a third sexual penetration. So I trust that clarifies it. (ts 1882)

1. The way in which the State put its case, and MHW's evidence as to the outfit combinations, acquires significance - and is capable of reconciling the jury's different verdicts - once there is consideration of evidence given by the appellant's daughter.
2. In the preceding paragraph I use the word 'capable' advisedly. I am conscious that I am evaluating the strength of the appellant's single proposed ground of appeal for the purpose of a bail application. Were this the final hearing of the appeal it would be necessary to determine whether there is a proper way by which the court may reconcile the verdicts. However, when evaluating the strength of the appellant's single proposed ground of appeal, a conclusion that there are circumstances which are capable of reconciling the jury's different verdicts means that the appeal has not been demonstrated to have the strong prospects of success in the sense required by the authorities.
3. The appellant's daughter was described as being MHW's best friend. The appellant's daughter had been with MHW and the appellant during the shopping expedition earlier on 9 October 2021. During the appellant's daughter's evidence she was asked about some of the outfits. The appellant's daughter identified the red/orange skirt with the matching red/orange top (ts 443 ‑ 444). However, the appellant's daughter did not recognise the blue top referred to at [30](3) above. When shown a photograph of the blue top there was an exchange between the appellant's daughter and then counsel for the State as follows:

You mentioned earlier that [MHW] had bought a blue top. Do you recognise this top?---No, it - I don't recognise this one.

Okay?---I was thinking it - the blue one that I was thinking of (indistinct) the same as the orange one, but blue.

...

... you were saying that the blue - the blue - - -?---There was - - -

The blue outfit you're referring to ---?---So there was - the blue shirt that [MHW] bought that day was the same as the orange one but different colour, so blue, and I - I've never seen her wear this shirt, never seen her buy this shirt, I don't know where the shirt came from. (ts 444 ‑ 445)

1. Accordingly, although it was not something that was emphasised by defence counsel at trial, there was an evidentiary difficulty with MHW's evidence that the appellant had penile/vaginal sexual intercourse with her while wearing the white denim skirt and blue top outfit. The appellant's daughter - MHW's best friend who had accompanied MHW shopping that day - did not recognise the blue top that MHW said she was wearing during one of the acts of sexual intercourse.
2. The jury, acting rationally, might have been satisfied beyond reasonable doubt as to the truthfulness, reliability and accuracy of MHW's evidence as to the appellant having had penile/vaginal sexual intercourse with her while wearing the other outfits. However, given the appellant's daughter's evidence, whether or not the jury accepted that evidence, the jury, acting rationally, might not have been satisfied beyond reasonable doubt as to the truthfulness, reliability and accuracy of MHW's evidence as to the appellant having had penile/vaginal sexual intercourse with her while wearing the white denim skirt and blue top outfit. In those circumstances, the jury, acting rationally, might have found the appellant guilty of two of the counts of sexual penetration of a child contrary to s 321(2) of the Code but not have been satisfied that the appellant was guilty of a third count of sexual penetration of a child contrary to s 321(2) of the Code.
3. It may be accepted that the appellant's contention of factual inconsistency has force if the argument is evaluated solely by reference to MHW's evidence. But, given the trial record, MHW's evidence cannot be considered in isolation. The evidence given by the appellant's daughter is capable of reconciling the jury's different verdicts having regard to MHW's evidence as to the outfit combinations and the way in which the State put its case.
4. In the circumstances I am not satisfied that the appellant has demonstrated that the appeal is strongly arguable, or that there are strong prospects of success on appeal, in the sense required by the authorities.
5. In oral submissions counsel for the appellant urged against the preceding analysis. Counsel argued, with some justification, that the outfit combinations were not a central issue at trial. But even accepting, favourably to the appellant, that this was so, it does not mean that the jury, acting rationally, could not have reasoned in this way. The jury were directed in orthodox terms that they were the judges of the facts and it was their exclusive responsibility to come to their own conclusions as to the facts of the case (ts 1844 ‑ 1845). There was also a separate trials direction (ts 1846 ‑ 1847). I do not accept that the course of the trial precluded the jury, acting rationally, from evaluating the truthfulness, reliability and accuracy of MHW's evidence by reference to the evidence that the appellant's daughter gave as to the blue top.
6. Counsel for the appellant also argued that, if this is how the jury reasoned, the jury would have acquitted the appellant of count 1 rather than count 3. The argument relied on a particular reading of MHW's evidence. During MHW's pre‑recorded evidence she was asked which of the four outfits she wore when the appellant had sex with her. MHW replied:

So I wore the blue top and the black - not the black skirt. The blue top and the white skirt, the black top and the black skirt and then the orange set. (ts 218 ‑ 219)

1. Counsel for the appellant contended that, in so answering, MHW identified the order in which she changed outfits. Counsel relied, in particular, on the word 'then' in the passage as reproduced. If so, as a matter of logic and reasonableness, the jury would have acquitted on count 1 (which related to the blue top) rather than count 3 (which did not relate to the blue top). But this was not what happened; and this meant, according to counsel's submission, that the jury could not, in logic and reasonableness when conducting their fact‑finding, have reasoned to their verdicts by finding the appellant guilty on counts 1 and 2 and not guilty on count 3.
2. I do not accept that this evidence of MHW means that the evidence given by the appellant's daughter is incapable of reconciling the jury's different verdicts having regard to MHW's evidence as to the outfit combinations and the way in which the State put its case. MHW was not asked to state the order of the outfit changes. The appellant's argument requires that a lot be read into the word 'then'. There are other possible meanings including an infelicitous use of language or simply that this is the remaining outfit to be mentioned. Elsewhere MHW described the outfits in a different order (see eg CWI‑1 pp 13 ‑ 15). And at no time was there any detailed exploration of the order in which MHW changed outfits. Nor did the State seek to tie a particular outfit to a particular count. It is also significant that in the trial judge's direction to the jury his Honour, in recounting the substance of MHW's evidence, stated conformably with MHW's evidence given in the initial child witness interview:

She testified the sex went on and off for about two and a half hours, maybe three. She said that he got her to put the outfits that she put [sic - meaning 'bought'] earlier that day on, which she described as a matching red top, a black one with a black top and a white denim skirt and a blue top. She said each time she put an outfit on, he had sex with her in that outfit. (ts 1856 ‑ 1857)

1. The jury, acting rationally, might have reasoned to their verdicts based on MHW's evidence in the child witness interview as summarised in the trial judge's direction. As such, it remains the case that the evidence given by the appellant's daughter is capable of reconciling the jury's different verdicts.
2. The application for release on bail pending appeal relied on more than the appeal's prospects of success. The appellant also relied on his personal circumstances. These do not, individually or in combination (including in combination with the appeal's prospects of success), constitute exceptional reasons. It is to be expected, on the evidence, that arrangements may be made for the appellant's spinal fusion surgery notwithstanding his imprisonment. The appellant has not explained why his children cannot live at the home of his former partner. While the appellant relied on his business, suggesting that it might fail if he was to remain imprisoned, in referring to the business for the purpose of sentencing the appellant said that it pretty much ran itself (Sentencing ts 9). In any case the appellant was afforded nearly two months after his convictions to get his affairs in order. The failure to do so cannot amount to an exceptional reason for release on bail pending the determination of an appeal. Loss of employment is not an unusual or out of the ordinary consequence of imprisonment pending the determination of an appeal.
3. For these reasons I am not satisfied that any of the matters raised by the appellant, either individually or in combination, constitute exceptional reasons for the grant of bail pending determination of his appeal against conviction.

1. The application in an appeal dated 3 February 2026 must be refused.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] 'MHW' are not the complainant's real initials.

[2] ZHA v The State of Western Australia [2019] WASCA 160 [41].

[3] Serukai v The State of Western Australia [2020] WASCA 127 [13] - [14].

[4] Shepherd v The State of Western Australia [2022] WASCA 152 [33] - [34], [44].

[5] Noormets v The State of Western Australia [2021] WASCA 90 [36] - [37].

[6] Frigger v The State of Western Australia [2025] WASCA 184 [32].

[7] Downes v The State of Western Australia [2025] WASCA 194 [12].

[8] MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, 366.

[9] DPJB v The State of Western Australia [2010] WASCA 12 [81](1).

[10] Referring to the child witness interview conducted with MHW on 13 October 2021.