The appellant was convicted of all 12 charges and sentenced to a total effective sentence of 14 years.

TURNER (A PSEUDONYM) -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 31 | Case summary | Zoe

WAWASCA

TURNER (A PSEUDONYM) -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 31 (11 March 2026)

[2026] WASCA 31

Court of Appeal (WA)|2026-03-11|Before: Quinlan CJ

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General information, not legal advice.

At a glance

Source facts

Court

Court of Appeal (WA)

Decision date

2026-03-11

Before

Quinlan CJ

Source

Original judgment source is linked above.

Judgment (129 paragraphs)

[1]

On 22 March 2023, a 13-year-old girl, who we will call Sarah (not her real name), told police that the appellant (her stepfather) had raped her the previous day, 21 March 2023. Sarah said that this was not the first time that the appellant had sexually interfered with her. She described a number of occasions upon which the appellant sexually penetrated her vagina with his penis or otherwise indecently dealt with her. The first occasion described by Sarah was when she was 10 years old, at an address where her family lived at the time (which we will call Address 1).
All told, in both this and a subsequent interview on 24 March 2023, Sarah described at least 12 occasions between 16 January 2020 and 21 March 2023 upon which the appellant had either sexually penetrated her or indecently dealt with her.
The appellant was also interviewed by the police on 22 March 2023. He denied the allegations that he had sexually penetrated or indecently dealt with Sarah. In the course of his interview, the appellant said that this was 'not the first time' he had dealt with allegations of abuse by Sarah, that he had previously dealt with 'DCP' (the Department of Child Protection) and that he 'thought it was all done and dusted'. The appellant was specifically asked how long he had been aware of allegations of abuse. He said 'since DCP contacted us' and that 'we were living in [Address 1] when DCP first came'. The appellant agreed that the allegations went back 'a few years'.
The appellant was charged with eight counts of sexual penetration of a child and four counts of indecently dealing with a child. The date range of the charges was 16 January 2020 to 17 January 2021, in relation to the first count, and 21 March 2023, in relation to the final count.
The charges against the appellant were tried before Egan DCJ and a jury from 9 April 2024 to 15 April 2024. While the appellant elected not to give evidence, the State adduced evidence of the appellant's interview with police on 22 March 2023 and a subsequent interview on 6 April 2023. The records of the interviews adduced in evidence, however, were redacted by agreement of the parties to remove the references to the appellant having been informed, or aware, of allegations by Sarah prior to 22 March 2023.

[41]

As part of its case, the State also led evidence of recent complaint by Sarah to three persons: her sister, Jane; her aunt, Ms Smith; and Senior Constable Jones.
Jane is Sarah's older sister. She was 16 years old when she participated in a child witness interview with police on 23 March 2023. That child witness interview was adduced as part of her evidence‑in‑chief at trial. Jane said that on the previous Tuesday (21 March 2023), Sarah spoke with her and Ms Smith on the telephone after Sarah had been locked out of the house at Address 6. Jane called the police and she said that, while waiting for the police, Sarah said to her, 'When the police get here, should I tell them that he rapes me?'[23] Jane said that later that night, Sarah told her that 'when my mum was in the shower that night ... my stepdad came into her room, pulled her underwear down and put his penis inside her'.[24]
Ms Smith gave evidence that she received a telephone call from Sarah on 21 March 2023, after which she picked Sarah up from the Holiday park at Address 6. She said that, as they were driving away from the Holiday park, Sarah said to her that 'she had to get out of there, because he had been raping her'. Ms Smith said that Sarah told her that it had happened 'earlier that night' in the bedroom when her mother was in the shower.[25]
Senior Constable Jones gave evidence that on 22 March 2023 she attended at Address 3 (where Ms Smith was living) and spoke with Sarah. Senior Constable Jones said that Sarah described an incident on 21 March 2023 at the Holiday park in which 'he had sex with me' in her room while her mother was in the shower and 'everyone else was in the lounge room'.[26]
The State did not lead any other evidence of prior complaint from Sarah. In particular, it did not lead evidence of anything that Sarah may have previously said to the Department of Child Protection (DCP). In the course of cross-examination, however, counsel for the appellant put to Sarah that DCP had previously come to Address 2 and wanted to speak to her. Sarah agreed that was the case. Counsel did not ask Sarah what, if anything, was said to the persons from DCP.[27]

[54]

The ground of appeal is in the following terms:
1. The learned trial judge made a wrong decision on a question of law by:
  1. failing to warn the jury that because of the delay between the date of the offences alleged to have been committed by the appellant and the time at which he first became aware of the allegations the appellant was forensically disadvantaged by losing a chance to adequately test the complainant's evidence or to adequately marshal a defence; or, alternatively,
  2. failing to warn the jury that the appellant suffered from forensic disadvantages because of the complainant's failure to make a prompt complaint, which warning was necessary in order to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case, or that failure occasioned a miscarriage of justice.
The ground of appeal appears to be modelled upon a ground of appeal upheld (in part) by this Court in DWM v The State of Western Australia [No 2].[38] By an apparently minor change in formatting, however, the appellant substantially changed the meaning of the ground. In DWM v The State of Western Australia [No 2], the final words in the ground ('or that failure occasioned a miscarriage of justice') were expressed as an alternative to the entirety of the words that proceeded them, such that the ground pleaded 'a wrong decision on a question of law' (pursuant to s 30(3)(b) of the Criminal Appeals Act 2004 (WA)) or, alternatively, a 'miscarriage of justice' (pursuant to s 30(3)(c) of the Criminal Appeals Act 2004).[39] By contrast, the ground in the present case appears, on its face, to plead only 'a wrong decision on a question of law'.
The difficulty with the ground, so framed, is that the learned trial judge in the present case did not make a decision on a question of law in relation to forensic disadvantage. As noted above, trial counsel for the appellant did not seek any direction to the jury to the effect that the appellant had suffered from any forensic disadvantage as a consequence of delay. Nor was his Honour asked to rule upon whether such a direction was necessary or appropriate.
At the hearing of the appeal, counsel for the appellant was content to rely upon the ground as alleging, by the final words in ground 1(b), that the failure to give a warning that the appellant suffered from forensic disadvantage in the present case occasioned a miscarriage of justice.[40]
As the appellant's submissions made clear, he contended that a Longman direction was necessary as there was 'a real risk that the jury would overlook or fail adequately to appreciate the forensic disadvantages without a warning or direction from the learned trial judge' such that his Honour was obliged to give the jury a warning drawing the jury's attention to those forensic disadvantages.[41]
In his written submissions, the appellant submitted that 'some' of the forensic disadvantages in the present case were:[42]

[57]

(a) in relation to the whereabouts of the appellant and other members of the family at the time of the events the subject of the charges, that any inability of witnesses to recall precise details of their everyday movements and otherwise unremarkable interactions with family members more than a week or two after the fact would have been readily apparent to the jury from their common experience;[44]

(b) that whether there was a lock on the door in the room at Address 1 was a matter in relation to which the appellant could have given evidence. Any other loss of opportunity to lead evidence in relation to that matter was not the product of delay;[45]

(c) in relation to whether Sarah had suffered any injuries (in relation to count 1), that it was speculative as to whether there would have been any evidence of injury, in light of Dr Johnson's evidence that in the vast majority of cases (perhaps 85 to 95 per cent) children who report sexual abuse will not have genital injuries (even where such abuse has actually occurred);[46]

(d) in relation to whether there was a condom buried in the backyard (in relation to count 2), that Detective Harris in fact gave evidence that the relevant area of the backyard was dug up, and no condom was found,[47] a matter which trial counsel for the appellant used to reasonable effect in his address to the jury (emphasising that a condom, being latex would not 'just dissolve into nothing');[48]

(e) that whether there might have been any of the appellant's spermatozoa in the bedroom in relation to count 4 was ultimately speculative (as Sarah did not say that it fell anywhere other than on her person) and that, in any event, such evidence would be lost within weeks, if not days, of the offence occurring and so was not the type of prejudice to which a Longman warning is directed;[49] and

(f) in relation to whether Sarah had suffered any bruising as a result of the appellant punching or kicking her (as alleged in relation to count 6), that such bruising would only be discernible within days or weeks of the offence occurring and so also was not the type of prejudice to which a Longman warning is directed.[50]

[63]

Significantly in this context, it is for the accused, in each particular case, to identify the forensic disadvantage said to arise from any delay between the events the subject of a charge and the complaint by the complainant. As Pritchard JA observed in DWM v The State of Western Australia [No 2], while it is not necessary that an accused give evidence as to the forensic disadvantage he or she has suffered, 'it is the accused who will be in a position to identify the actual forensic disadvantages that any delay, in all the circumstances, has caused'.[57]
As a consequence of the practical onus on the accused to identify any forensic disadvantage he or she has suffered as a consequence of delay, the failure by counsel at trial to make reference to any forensic disadvantages, while not determinative, may nevertheless lend support to the conclusion that there were none.[58] That is, while it is possible to establish a miscarriage of justice notwithstanding the failure of trial counsel to seek a Longman direction,[59] the failure to do so may serve to inform whether, in all of the circumstances, an appellant had, in fact, suffered forensic disadvantage of a kind that a jury would fail to appreciate in the absence of a warning.
In that regard, the forensic choices of trial counsel that will be relevant to an assessment of whether an accused suffered forensic disadvantage, or the perceptible risk of a miscarriage of justice, will extend beyond whether a Longman direction is sought. As Beech J said in RMD v The State of Western Australia, the potential forensic disadvantages of the appellant are to be assessed having regard to, amongst other things, 'the course of the trial, including the defence case at trial'.[60]
In TWR v The State of Western Australia [No 2], for example, the appellant had conducted the defence case on the basis that he had a good memory of, and was able to verify, the times when the complainant came to his house for a sleep over. As the Court remarked in that context:[61]

[66]

For the reasons that follow, in our view the learned trial judge was not required to warn the jury that the appellant suffered from any forensic disadvantage relating to the timing of Sarah's complaints in relation to the appellant or otherwise give the jury any form of Longman direction. Indeed, we are not satisfied that the appeal has a reasonable prospect of success and so would refuse leave to appeal.
Beginning with the question of delay itself, it should immediately be noted that, in relation to a number of the charges, there was no delay in Sarah's complaint, let alone a substantial delay. Counts 8 to 12 were all alleged to have occurred since the family were evicted from Address 2, 'just before Christmas' in 2022, a period of approximately three months prior to the complaint. Indeed counts 11 and 12 were said by Sarah to have been committed within days of the appellant's first interview with police (and in the case of count 12, the day before). It is highly unlikely that a 'delay' of this duration could ever give rise to forensic disadvantage.
Counsel for the appellant accepted at the hearing of the appeal that the appellant's submissions were really directed at forensic disadvantages in relation to counts 1 to 7 (although if the convictions on those charges were overturned, the permissible use of tendency reasoning at trial would be such that all of the convictions would be affected).[62]
Even confined to counts 1 to 7, the period of time between the offences alleged by Sarah and her complaint on 22 March 2023 (between five months and three years) was not what could properly be described as a 'substantial delay', as that expression is used in many of the authorities. That is, the delay was not of a length that readily supports the inference that the accused would be forensically disadvantaged (such as a delay of 19 or 20 years).[63] This, of course, is not determinative; a shorter delay may well, in the circumstances of a particular case, require a warning to the jury. Nevertheless, as Crennan J observed in Tully v The Queen, '[t]he shorter the delay, the more difficult it is to assert that an accused has lost the ability to adequately test the evidence of the complainant or to adequately marshal his defence'.[64]
In our view, none of the alleged forensic disadvantages asserted by the appellant on appeal (although not at trial) required any particular warning by the learned trial judge in the present case.
In relation to the inevitable impact of time on the ability of the appellant and other persons to recall their movements on the days of the alleged offences, we accept the State's submission that impacts of this kind would be readily apparent to the jury from their common experience. In addition, of course, the charges in this case, particularly in relation to counts 1 to 7, were representative and were alleged to have occurred over relatively broad periods of time. That was obvious from the indictment itself and, to the extent that the appellant faced any disadvantage from uncertainty in the dates of offences, was not a disadvantage that a jury would fail to appreciate in the absence of a warning.[65] In this regard, the present case is to be contrasted with DWM v The State of Western Australia [No 2], where the alleged offences occurred during a brief episode on a single day up to three years and seven months earlier.[66]
As to whether there was a lock on the door in Sarah's bedroom at Address 1, the suggestion that the appellant was forensically disadvantaged in relation to that issue is entirely speculative. In fact, there appears to have been no issue in the trial as to whether Sarah's bedroom at Address 1 had a lock on the door. Sarah was not cross‑examined in relation to her evidence that there was a lock on the door.[67] Sarah's sister, Jane, who also lived at Address 1 for a time, was not asked in cross-examination whether there was a lock on Sarah's door at Address 1. Significantly, Jane was asked whether there was a lock on her own door at Address 2 (a matter relevant to count 6), so it is clear that trial counsel was alive to the significance of such details.[68] And yet, the lock on Sarah's door at Address 1 was never put in issue.
Similarly, the suggestion that investigations could have been done in relation to whether Sarah suffered discernible injuries in relation to counts 1 and 6, and whether the appellant's spermatozoa might have been found in the bedroom in relation to count 4, does not reveal forensic disadvantage as a result of delay. It is entirely speculative what the results of those investigations might have been and at best (from the perspective of the appellant) those investigations would have revealed no evidence of injury or spermatozoa. Given the evidence that was led at trial (including from Dr Johnson), however, the absence of such evidence would not have been significantly probative of whether the offences were, or were not, committed.
Finally, in relation to Sarah's evidence that she observed the appellant bury a condom in the backyard of Address 2, far from a forensic disadvantage, the appellant had the forensic advantage that the police had in fact searched that area and no condom was found. Not only would a direction to the jury to the effect that a search could have been conducted at an earlier time have involved telling them something that would have been obvious, it might have caused them to speculate that, if an earlier search had been conducted, perhaps a condom might have been found.
For these reasons, in our view, none of the matters now relied on by the appellant required a Longman direction in the present case.
There is, however, a more fundamental reason why, in the present case, it was not only unnecessary, but would have been inappropriate, to give the jury a Longman direction.
That is because there was evidence, that could potentially have been placed before the jury, to the effect that the appellant was aware, from an early stage, that Sarah had alleged that he had sexually interfered with her, in relation to which he had contact with DCP. As the passages referred to at [54] to [57] above reveal, the appellant had been made aware of allegations by Sarah, as far back as the time that the family were living at Address 1, the location of the first alleged offence. While the appellant said that dates like that '[are] irrelevant for me', it is clear that his knowledge of allegations went back a 'few years' and at least to the time that the family were living at Address 1. While the detail of the allegations considered by DCP was not clear, it can at least be said that 'it would have been possible to explore in detail the alleged circumstances attendant upon [the alleged events] and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming [the[69]ppellant's] denial'.69
This is not to say that prior and timely notice of an allegation of wrongdoing will always avoid forensic disadvantage from a delayed police complaint. Depending upon the circumstances, including the nature and extent of any prior notice, an accused person could well suffer forensic disadvantage by the delay in the reporting allegations to the authorities, notwithstanding such prior notice.
In the present case, however, not only was the appellant aware, for years, that Sarah had alleged that he had sexually interfered with her, the evidence of his awareness was not presented to the jury, as a consequence of forensic decisions made by counsel for the appellant, including the edits made to the appellant's electronic records of interview. To have directed the jury in those circumstances that the appellant did not become aware of the allegations until 22 March 2023 would have been misleading. At the hearing of the appeal, counsel for the appellant responded to this hurdle by submitting that the Longman direction could have been 'worded carefully', to the effect that 22 March 2023 was the first time the appellant had heard 'of the specific details' of the allegations.[70] Apart from the potential confusion that the adjective 'specific' was apt to create, in circumstances in which there was otherwise no evidence that the appellant had heard any details of the allegations at all (given the edits to the interviews), there was in fact no evidence as to how much detail he was given in relation to the allegations on the earlier occasions. Again, that was because no issue was taken in relation to his prior knowledge of the allegations at trial.
Had the appellant sought to assert that he was forensically disadvantaged by the delay between the date of the alleged offences and 22 March 2023, the State would have been entitled to rely upon the redacted portions of the appellant's records of interview, in order to put such an assertion in its proper context. That evidence might also have assisted the State case by corroborating Sarah's evidence that she had informed her mother of the appellant's abuse 'the day after he did it the very first time' and also by providing a possible explanation for the apparent brazenness of some of the later alleged offending.
In short, had the appellant conducted his defence on the basis that he was forensically disadvantaged by the timing of Sarah's complaint to police, the trial in this matter may well have looked very different. As it was, the conduct of trial counsel, in agreeing to the edits to the appellant's records of interview and by applying a 'light touch' in his references to DCP in his cross-examination of Sarah, not only reflected sound judgment, they were consistent with trial counsel not having sought a Longman direction.
This is, accordingly, one of those cases in which the failure of defence counsel to seek a Longman direction supports the conclusion that the appellant did not suffer any forensic disadvantage of a kind that a jury would fail to appreciate in the absence of a warning. It also supports the conclusion that there has been no miscarriage of justice.