WARREN (A PSEUDONYM) -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 89

[2026] WASCA 89 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WARREN (A PSEUDONYM) -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 89 CORAM : MITCHELL JA HALL JA SEAWARD JA HEARD : 14 MAY 2026 DELIVERED : 24 JUNE 2026 FILE NO/S : CACR 24 of 2026 BETWEEN : MITCHELL WARREN (A PSEUDONYM) Appellant AND THE STATE OF WESTERN AUSTRALIA Respondent ON APPEAL FROM: Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA Coram : QUAIL P File Number : PE 2715, 2716 and 2718 of 2024 Catchwords: Criminal law - Sexual offences - Alleged offending by 12 or 13-year-old accused - Whether it was open to the trial judge to be satisfied that the presumption of incapacity in s 29 of the Criminal Code (WA) was rebutted - Whether guilty verdicts are unreasonable or unsupported by the evidence -- 1 of 24 -- [2026] WASCA 89 Page 2 Legislation: Criminal Code (WA), s 29, s 320(2) Result: The appellant's application for an extension of time in which to appeal is dismissed Leave to appeal is refused The appeal is dismissed Category: B Representation: Counsel: Appellant : K Kumar Respondent : B M Murray Solicitors: Appellant : Kaminni Kumar Respondent : Director of Public Prosecutions (WA) Case(s) referred to in decision(s): BDO v The Queen [2023] HCA 16; (2023) 277 CLR 518 Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651 Hargraves v The Queen [2011] HCA 44; (2011) 245 CLR 257 KNL v The State of Western Australia [2023] WASCA 72 M v The Queen (1994) 181 CLR 487 RP v The Queen [2016] HCA 53; (2016) 259 CLR 641 RYE v The State of Western Australia [2021] WASCA 43; (2021) 288 A Crim R 174 TPL v The State of Western Australia [2025] WASCA 195 -- 2 of 24 -- [2026] WASCA 89 MITCHELL & SEAWARD JJA Page 3 MITCHELL & SEAWARD JJA: Introduction 1 The appellant was convicted after trial by judge alone of three counts of sexually penetrating the complainant, a child under the age of 13 years, contrary to s 320(2) of the Criminal Code (WA). These offences were alleged to have occurred between 16 May 2017 and 1 October 2017, when the appellant was 12 or 13 years old, and the complainant was 7 years old. 2 The alleged offending occurred at the house in a metropolitan suburb (House) where the complainant resided with her aunt and uncle,1 who were treated as her adoptive parents. We will refer to them as the complainant's parents. The complainant's cousin, who will be referred to as Carol (a pseudonym), also lived at the house. The appellant, who grew up in a regional town (Town), was staying at the House at the time of the alleged offending. The complainant's parents were the appellant's grandparents. The complainant and appellant regarded each other as cousins. 3 The charged offences were alleged to have occurred in the context of repeated sexual offending by the appellant against the complainant. Charge PE/2715/2024, which we will refer to as count 1, concerned the first of a repeated series of occasions on which the complainant awoke to find the appellant penetrating her vagina with his penis. Charge PE/2716/2024, which we will refer to as count 2, concerned an occasion a few days after the first incident when the complainant awoke to find the appellant digitally penetrating her vagina. Charge PE/2718/2024, which we will refer to as count 3, concerned an incident about a week after the first incident, when the appellant penetrated the complainant's mouth with his penis in the playroom of the House. 4 The appellant was also convicted of a fourth sexual penetration offence, which occurred when he was over 14 years of age, and which is not the subject of the current appeal. 5 The appellant appeals against his convictions of counts 1, 2 and 3 on the sole ground that the guilty verdicts are unreasonable or unsupported by the evidence. The appellant accepts, and we agree, that it was open to the trial judge to reject the appellant's evidence denying 1 The complainant's mother's evidence was that the complainant was her 'niece's baby': trial ts 56. -- 3 of 24 -- [2026] WASCA 89 MITCHELL & SEAWARD JJA Page 4 that the offending conduct occurred and to be satisfied beyond reasonable doubt that he sexually penetrated the complainant, a child under the age of 13 years, on each of the occasions charged in counts 1, 2 and 3. However, the appellant contends that it was not open on the evidence for the trial judge to be satisfied, beyond reasonable doubt, that the presumption of incapacity in s 29 of the Criminal Code had been rebutted. 6 On 20 May 2025, the appellant was sentenced to a total effective sentence of 2 years 3 months' imprisonment for all four offences, with eligibility for parole. The sentences were backdated to commence on 15 March 2025. The appeal was not instituted until 25 March 2026, so the appellant requires an extension of time in which to appeal. 7 For the following reasons, the sole ground of appeal is not established. General principles 8 Section 29 of the Criminal Code provides: 29. Immature age A person under the age of 10 years is not criminally responsible for any act or omission. A person under the age of 14 years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission. 9 The relevant legal principles concerning the application of this provision are set out in TPL v The State of Western Australia,2 and KNL v The State of Western Australia.3 In essence, the question for this court is whether the evidence at trial establishes, beyond reasonable doubt, that the alleged offender, at the time of doing the relevant act or making the relevant omission, had capacity to know that the conduct in question was seriously wrong according to the ordinary standards of reasonable adults. 10 The general principles governing an appeal on the ground that a verdict of a jury is unreasonable or unsupported by the evidence, derived 2 TPL v The State of Western Australia [2025] WASCA 195 [115] - [126] and cases there cited. 3 KNL v The State of Western Australia [2023] WASCA 72 [75] - [84]. -- 4 of 24 -- [2026] WASCA 89 MITCHELL & SEAWARD JJA Page 5 from the decision of the High Court in M v The Queen,4 are well established. In summary: 1. The appellate court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether, as a matter of law, there was evidence to support the verdict. Rather, the appellate court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand. 2. The question for the appellate court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. 3. That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt. 4. In answering that question, the appellate court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses. 5. A doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt. 6. If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict. 7. The setting aside of a jury's verdict on the ground that it is unreasonable is a serious step, not to be taken without regard to the advantage enjoyed by the jury over the appellate court which has not seen or heard the witnesses called at trial. 4 M v The Queen (1994) 181 CLR 487. -- 5 of 24 -- [2026] WASCA 89 MITCHELL & SEAWARD JJA Page 6 11 The above principles continue to apply in an appeal from a verdict delivered after a trial by judge alone. As the High Court observed in Dansie v The Queen:5 [T]he function of a court of criminal appeal determining an appeal on the unreasonable verdict ground is to be performed under the guidance of M in exactly the same way where the trial has been by judge alone as where the trial has been by jury. In each case, the court must conduct an independent assessment of the whole of the evidence to ask itself the question of fact whether it thinks it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty. In each case, the court 'will conclude that it was not open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty if its own [assessment] of the evidence leads it to have a reasonable doubt that the accused was guilty, unless that tribunal's advantage in seeing and hearing the evidence is capable of resolving that doubt'. Where the trial has been by judge alone, the reasons of the trial judge must be approached by the court of criminal appeal performing that function with circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the evidence. The court will be required to consider the arguments of the parties in the appeal and will be entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings. But the question for the court in every case will remain whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the trial judge can be taken to have had by reason of having seen and heard the evidence at trial. (citations omitted) Evidence at trial 12 Because the only contentious issue raised by the ground of appeal concerns the appellant's capacity at the time of the alleged offending, it is unnecessary to refer to all the evidence led at trial. It will suffice to summarise the evidence relevant to capacity, including the complainant's account of the offences charged in counts 1, 2 and 3 which the trial judge accepted and was entitled to accept in its essential aspects. When the alleged offending occurred 13 The complainant, the complainant's mother and the appellant all appeared to have considerable difficulty in reliably recalling dates and times. However, there was objective evidence in the form of school and 5 Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651 [15] - [16]. -- 6 of 24 -- [2026] WASCA 89 MITCHELL & SEAWARD JJA Page 7 migration records which assists in identifying the dates of the alleged offending. 14 The complainant was born in October 2009.6 The appellant was born in July 2004.7 15 The relevant offences were alleged to have been committed while the appellant was staying at the House before he travelled to New Zealand with the complainant and her mother. The appellant was staying at the House because of difficulties he was having at his parents' home in the Town. 16 School records show that the appellant attended year 7 of a regional government high school near the Town until 16 May 2017. He then attended year 7 at a metropolitan high school near the House from 24 May 2017 to 28 July 2017. He again attended the regional high school near the Town from 28 July 2017 until 22 September 2017. 17 Border Control records show that the appellant, the complainant and the complainant's mother travelled from Perth to New Zealand on 1 October 2017. 18 Therefore, the offending described by the complainant which was the subject of counts 1 - 3 must have occurred, as alleged in the amended prosecution notices, between 16 May 2017 and 1 October 2017. It seems most likely that the conduct occurred between 16 May 2017 and 28 July 2017 (ie the period the appellant was attending the metropolitan high school near the House). As noted above, the appellant's 13th birthday was in July 2017, and the complainant was 7 years old throughout this time. Circumstances of the offending 19 Count 1 related to the first occasion on which something happened. At that time, the complainant was sleeping in the master bedroom with her parents, while the appellant slept in a separate bedroom. The complainant's parents followed their usual practice of going outside for an early morning smoke while the complainant was still asleep. At about 7.00 am, the complainant, who went to bed wearing a nightie and underwear, woke to find her underwear down on her knees and the appellant on top of her. The appellant was penetrating her vagina with his penis in a thrusting motion. The appellant covered the complainant's 6 Trial ts 33; exhibit 4. 7 Trial ts 85. -- 7 of 24 -- [2026] WASCA 89 MITCHELL & SEAWARD JJA Page 8 mouth with his hand when she woke up and told her to be quiet. He said, 'Nan and pop are out for a smoke, but [Carol's] in the other room, so you got to be quiet'. The complainant wriggled and squirmed around and tried to push him off. The appellant told the complainant to push through and find something to help her like it. The appellant got off and ran to his room when they heard the back sliding door open. As he did so, the appellant said, 'hurry up and pull your underwear up'.8 20 The complainant said that this type of incident occurred between 20 and 40 times while the appellant stayed at the House. In cross-examination, she accepted that the number was closer to 20 than 40 and that the incidents were all quite close in time.9 The complainant could not specifically recall other incidents.10 21 Count 2 occurred a few days after the first incident. The complainant awoke in the master bedroom of the House to find her shorts and underwear pulled down and the appellant's fingers inside her vagina. The complainant said, 'What are you doing? Can you stop?'. The appellant said, 'You'll like it eventually. Just, you know, keep on going'. The complainant said, 'No, I don't like it. Can you please stop?'. The complainant then heard the sliding door open, and the appellant left.11 22 Count 3 occurred about a week after the first incident, in the afternoon of a weekend. The complainant was in the playroom of the House watching her iPad. The appellant said, 'You know the amount of times that I've done, like, this to you?'. The complainant responded, 'Yes, and I don't like it. I need you to stop'. The appellant said, 'Well, can you do one little thing for me?' The complainant responded, 'What is it?'. The appellant said, 'Can you suck my dick?' The complainant responded, 'No. I don't even know what that is. Like, I'm not doing that.' The appellant said, 'Oh, I could just show you what it is'. The complainant replied, 'No, I don't want to.' The appellant then said: Well, if you don't, I'm going to tell nan that you're doing all this and that you're starting all of this and making me do everything. The complainant said, 'But that's not true. You can't do that.'12 23 The appellant then grabbed the complainant by the head and forced her to 'suck his dick', penetrating her mouth with his penis. The incident 8 CWI, pages 25 - 29. 9 Trial ts 42, 44. 10 CWI, page 33. 11 CWI, pages 33 - 35. 12 CWI, page 39. -- 8 of 24 -- [2026] WASCA 89 MITCHELL & SEAWARD JJA Page 9 stopped when the complainant went into the lounge room, and the appellant left her alone. The complainant's parents were outside, and Carol was in the bathroom when this occurred.13 School records 24 The school records show that the appellant attended the State primary school in the Town from kindergarten in 2009 to year 4 in 2014. He attended the first semester of year 7 at the regional high school near the Town. The appellant's attendance rate was between 75 - 90%. The records do not indicate what schooling the appellant received in years 5 and 6 in 2015 - 2016. The appellant's evidence was that he attended a school in New Zealand and a regional Catholic primary school during this time.14 25 The appellant had received various disciplinary sanctions for misconduct at the State schools, including a half-day and a two-day suspension at the Town primary school in year 4, and a three-day suspension between April - May 2017 at the regional high school in year 7.15 None of the incidents involved inappropriate sexual behaviour. An incident in 2014 in year 4 involved threats to have a teacher fired for touching a student.16 26 The school records generally show the appellant to have been a poor student in terms of grades and assessments. Evidence of the complainant's mother 27 The evidence of the complainant's mother was of limited relevance to the issue of the appellant's capacity at the time of the alleged offending. Her evidence was that the appellant, complainant and Carol each had their own bedrooms at the time the appellant stayed at the House, but that the complainant slept in the master bedroom at that time.17 It was a house rule that the appellant stay out of the girls' bedrooms, and they would stay out of his. The appellant followed this rule as far as the complainant's mother was aware.18 The appellant went 13 CWI, pages 39 - 45. 14 Trial ts 85. 15 Exhibit 5, pages 11 - 12. 16 Exhibit 5, page 14. 17 Trial ts 57 - 58. 18 Trial ts 59 - 60. -- 9 of 24 -- [2026] WASCA 89 MITCHELL & SEAWARD JJA Page 10 to school, and did not require any assistance at school, but 'he didn't like learning'.19 Cross-examination of appellant 28 The appellant, who gave evidence denying that any of the alleged sexual offending occurred, was cross-examined about his knowledge of right and wrong at the time of the alleged offending:20 Have you ever thought that it was okay to have sex with your cousin?--- No. And why is that?---Because it never happened. But the concept of having sex with your cousin, have you ever thought that's okay?---No. And why?---Because it's - that's just not all right. I don't know. Why is it not all right?---Because the age, and she's my - my cousin. Is that not right because it's wrong - - -?---Yes. - - - to do that?---Yes. Seriously wrong to do that?---Seriously wrong. And did you have that opinion when you were younger?---No. Never. Did you have the opinion that it was wrong to do that to your cousin when you were younger?---I don't really understand that question. So you've said that it wasn't all right to have sex with your cousin because of her age and because she's a cousin?---Yes. Did you think that when you were younger?---Yes. Did you think that when you were 12 years old?---Yes. Did you think that when you were 13?---Yes. Did you think when you were 12 and 13 that it was seriously wrong to do that?---Yes. And why is it seriously wrong?---I can't - I don't know how to really answer that. Yes. 19 Trial ts 61. 20 Trial ts 96 - 98. -- 10 of 24 -- [2026] WASCA 89 MITCHELL & SEAWARD JJA Page 11 Is it because you shouldn't touch another person like that if they don't want to be touched?---Yes. And I think you said as well that because it's your cousin?---Yes. And because of the age?---Yes. And is it because there are serious consequences if you were to do that?- --Yes. It's like - yes. And did you think that it was - that there would be serious consequences if you did that when you were 12 years old?---Yes. … And so is your evidence that the reason why you didn't do it is because it's seriously wrong?---No. It just - it - it just didn't - it never happened. 29 The appellant was asked about his schooling and said that he never had an education assistant. He accepted that he got into trouble at school and would receive different consequences depending on the conduct.21 The cross-examination continued:22 And you knew that people shouldn't touch each other without permission?---Yes. And you knew - and that included sexually touching them? And that included putting your penis into someone's - - -?---Yes, yes. Or your finger into her vagina?---Yes. Or forcing them to - or forcing your penis into their mouth?---Yes. And you knew that when you're 12?---Yes. And you knew it was seriously wrong to do that at 12?---Yes, I did. 30 This cross-examination occurred on 11 February 2025, when the appellant was 20 years old, nearly eight years after the relevant alleged offending. 31 The appellant also gave evidence about the house rule that the 'girls' room is the girls' room and the boys' room is the boys' room'.23 21 Trial ts 98 - 99. 22 Trial ts 99 - 100. 23 Trial ts 87. -- 11 of 24 -- [2026] WASCA 89 MITCHELL & SEAWARD JJA Page 12 Trial judge's approach24 32 The trial judge identified four sources of 'capacity evidence': 1. The surrounding circumstances of the offending. 2. The complainant's mother's evidence. 3. The school records. 4. The appellant's evidence in cross-examination. 33 In relation to the surrounding circumstances of the offending, his Honour observed:25 [The appellant's] ceasing offending and leaving the bedroom on [counts 1 and 2] when he heard the back door open suggests he knew he would be in trouble if he was caught. Further, his persistence over [the complainant's] resistance, especially on [count 3], and putting his hand over her mouth on the first charge, suggests capacity. Further, as I've already found, [the appellant] threatened [the complainant]. He did so because he didn't want her to tell anybody, because he knew he would [be] in trouble and that what he was doing was seriously wrong. In saying further that he would blame it on her, [the appellant] demonstrated not only capacity, but that he knew that what he was doing was seriously wrong by the ordinary standards of a reasonable adult. 34 The trial judge considered that the complainant's mother's evidence did not significantly add much. His Honour also referred to school records as showing the appellant was 'average academically, but there is no indication of any learning difficulties before or in 2017'.26 The trial judge said:27 While there is a picture of disruption in class and breaching behavioural rules, it shows teenage rebellion, rather than any lack of capacity or understanding of the rules. 35 In relation to the appellant's evidence, the trial judge observed:28 I do accept that [the appellant] is able to, and presently has, a reliable memory of himself when he was 12 years old about whether he knew 24 Trial ts 197 - 198. 25 Trial ts 197. 26 Trial ts 197. 27 Trial ts 198. 28 Trial ts 198. -- 12 of 24 -- [2026] WASCA 89 MITCHELL & SEAWARD JJA Page 13 what was right or wrong – right and wrong. His evidence about his capacity when he was 12 and 13 was clear. He knew it was very wrong to have any form of sexual relationship with someone who was a child or someone who was his cousin when he was 12 and 13 years old. I accept [the appellant's] evidence that he had capacity at those ages. 36 The trial judge concluded that, having regard to all the circumstances considered together, he was satisfied beyond reasonable doubt that the appellant's capacity was proved. Disposition School records and evidence of complainant's mother 37 The evidence of the complainant's mother and of the appellant's school records were of little significance in the assessment of the appellant's capacity at the time of the alleged offending in 2017. They indicated that he did not suffer from an intellectual disability that required educational assistance, but that he received generally poor grades and was not interested in learning. The school disciplinary history related to conduct that was very different from, and much less serious than, the charged acts. Much of that conduct occurred well before the alleged offending. This evidence says little about the appellant's capacity, at the time of the alleged offending in 2017, to know that he should not do the charged sexual acts to his 7-year-old cousin for the purposes of s 29 of the Criminal Code. 38 The lack of contemporaneous evidence about the appellant's moral development at the ages of 12 and 13, such as from his parents or teachers, makes rebutting the presumption of incapacity in s 29 of the Criminal Code more difficult. However, for the reasons explained below, that difficulty is not insurmountable. Evidence of circumstances surrounding the charged acts and the appellant's own evidence about his knowledge at the relevant time can, in combination, be sufficient to rebut the presumption. Evidence of surrounding circumstances of alleged offending 39 Evidence of the circumstances surrounding the offending alleged in counts 1 and 2 indicate an appreciation by the appellant of a need for secrecy. At the time of count 1, the appellant told the complainant to be quiet, persisted in the face of the complainant's resistance, ran back to his room when he heard the complainant's parents come back into the house -- 13 of 24 -- [2026] WASCA 89 MITCHELL & SEAWARD JJA Page 14 and told her to pull her underwear up as she did so. At the time of count 2, the appellant persisted in the face of the complainant's resistance and again went back to his room when the complainant's parents came back into the House. 40 This evidence of the circumstances surrounding counts 1 and 2 supports an inference that the appellant appreciated that his conduct was wrong. However, it does not, of itself, establish the level of moral understanding required to rebut the presumption of incapacity in s 29 of the Criminal Code. As the plurality reiterated in BDO v The Queen,29 there is a need for caution against too quickly drawing an inference concerning secrecy and children: An appreciation by the child that they should not be discovered doing the act or acts might be consistent with a sense of it being wrong, but the question is to what extent? The appellant may have appreciated that he would be in trouble with his parents for doing what he did, but it is not clear whether that would have been because it was naughty. To be capable of rebutting the presumption, the evidence must be such as to enable a conclusion that the appellant was able to understand that it was morally wrong. That is not a low standard. 41 The threat made to the complainant just prior to the conduct alleged in count 3 is of greater significance. This was not just a threat to harm the complainant if she did not comply with the appellant's demands, or to blame the complainant if she told her parents what was occurring. Nor was it a threat to bring about harm unconnected with the offending if the complainant did not comply.30 Rather, the appellant threatened the complainant that, if she did not comply with his demands, he would tell the complainant's mother that 'you're doing all this and that you're starting all of this and making me do everything'. The appellant used the threat of his disclosure of the conduct to the complainant's mother as a means of coercing compliance by the complainant. 42 In our view, this conduct strongly indicates that the appellant appreciated that his actions were seriously wrong according to ordinary adult standards. The appellant could only have perceived the efficacy of the threat if he had that understanding. The nature and content of this threat, and the circumstances in which it was made, strongly supports the inference that the appellant then knew that his conduct was seriously wrong according to the ordinary standards of reasonable adults. 29 BDO v The Queen [2023] HCA 16; (2023) 277 CLR 518 [48]. 30 Compare BDO [49] - [50]. -- 14 of 24 -- [2026] WASCA 89 MITCHELL & SEAWARD JJA Page 15 43 Even allowing for some imprecision in the complainant's time estimates, the temporal proximity of the conduct alleged in counts 1, 2 and 3 was such that a capacity possessed at the time of count 3 was highly unlikely to be different from the capacity possessed by the appellant at the time of counts 1 and 2. Admissions in appellant's evidence 44 Further, the appellant's admissions in cross-examination, set out at [28] - [30] above, indicate that he knew when he was 12 and 13 years old, and therefore must have had the capacity at that time to know, that sexual activity with his 7-year-old cousin was seriously morally wrong. That evidence supports the inference about the appellant's knowledge drawn from the circumstances surrounding the charged conduct. It excludes contrary inferences that might otherwise be drawn from the conduct. 45 We do not accept the criticism of the prosecutor's cross-examination of the appellant made by the appellant's appeal counsel in oral submissions. The questions were fairly directed to the appellant's knowledge rather than his capacity to know. While the questions were generally leading, they left open either a 'yes' or 'no' response. The critical questions made it clear that the time being spoken of was when the appellant was 12 years old. 46 It is also significant that the appellant's evidence as to his knowledge at age 12 was not mere speculation about what he would have thought at that time about conduct in which he never engaged and never had occasion to consider at that age. While the appellant denied committing the offences, the evidence accepted by the trial judge indicated that the appellant had engaged in persistent sexual activity with his 7-year-old cousin at around the time of his 13th birthday. The evidence, taken as a whole, established that the appellant's answers to the questions posed in cross-examination concerned conduct in which he had persistently engaged at that time and which he must have thought something about at the time. Evidence of the appellant's state of mind at the time when he engaged in the charged conduct is less likely to reflect a reconstruction of childhood knowledge through the projection of his adult moral understanding onto his younger self. 47 Our reading of the transcript of the appellant's cross-examination does not support the proposition advanced by his appeal counsel that the appellant's answers were 'simply vacuous adoptions of the propositions -- 15 of 24 -- [2026] WASCA 89 MITCHELL & SEAWARD JJA Page 16 put to him by the prosecutor'.31 The appellant answered questions in a responsive way. He said when he did not understand a question. He volunteered, without prompting, that the charged conduct was morally wrong because of the complainant's age and the fact they are cousins. 48 In our view, if the appellant's admissions as to this earlier state of knowledge are accepted as reliable, those admissions, taken together with the surrounding circumstances, leave open only one reasonable inference. That inference is that, at the time of doing the acts charged in counts 1, 2 and 3, the appellant knew, and therefore had the capacity to know, that the charged conduct was seriously morally wrong according to the ordinary standards of reasonable adults. 49 The appellant's appeal counsel submitted, in effect, that the appellant's interest in the outcome of the trial provided a reason for rejecting his evidence about his knowledge. The appellant might, it was postulated, have 'said what he thought he should have been saying to obtain a favourable view of himself as the accused'.32 Or, in a context where the appellant gave evidence that the charged conduct never occurred, he might have thought that his chances of acquittal were improved by evidence that he never would have engaged in that conduct because he knew it to be seriously morally wrong.33 However, these propositions advanced by appeal counsel were never put to or adopted by the appellant in his evidence. To regard the interest which an accused has in the outcome of the trial as a sufficient basis for rejecting their evidence as unreliable would be inconsistent with the presumption of innocence and the onus of proof which the prosecution bears.34 The mere fact that the appellant might have perceived an interest in misrepresenting his knowledge at the age of 12 when giving evidence in his own criminal trial does not, without more, require that evidence to be rejected as unreliable. 50 However, the reliability of the appellant's evidence about his knowledge cannot be fully assessed on the written record. Matters such as tone, confidence and responsiveness may bear significantly on the assessment of reliability. 51 We do not have the trial judge's advantage in having seen and heard the witnesses, particularly the appellant, give evidence. Without that 31 Appeal ts 6. 32 Appellant's written submissions, par 52; appeal ts 10 - 11. 33 Appeal ts 19. 34 See the discussion in Hargraves v The Queen [2011] HCA 44; (2011) 245 CLR 257 [34] - [46]. -- 16 of 24 -- [2026] WASCA 89 MITCHELL & SEAWARD JJA Page 17 advantage, we cannot be satisfied that the only reasonable inference open on all of the evidence considered as a whole is that, when he engaged in the conduct charged in counts 1, 2 and 3, the appellant had the capacity to know that the conduct in which he was engaging was seriously morally wrong according to the ordinary standards of reasonable adults. 52 This is a case in which the limitations of appellate review preclude this court from independently concluding, on the written record alone, that the appellant's evidence and the surrounding circumstances leave the inference of capacity as the only reasonable inference. However, these doubts arising from the natural limitations of an appellate court proceeding on the trial record are, by definition, capable of being assuaged by the advantage which the trial judge had in seeing and hearing the evidence as it was given. Conclusion 53 For the above reasons, our assessment of the totality of the evidence at trial does not leave us with a reasonable doubt as to guilt that cannot be assuaged by having regard to the trial judge's advantage of having seen and heard the evidence, particularly the evidence of the appellant, at trial. 54 It was open to the trial judge to accept the complainant's evidence as to the circumstances of the alleged offending. It was also open to the trial judge to reject the appellant's denials that the charged conduct ever occurred, but to accept the appellant's evidence as to his state of knowledge at the relevant time. 55 The complainant's evidence of those circumstances, together with the appellant's evidence of his knowledge at the relevant time, if accepted, combine to leave open only one reasonable inference. That inference is that, when he engaged in the charged conduct, the appellant knew, and therefore had the capacity to know, that the conduct was seriously morally wrong according to the ordinary standards of reasonable adults. 56 In these circumstances, it was open to the trial judge to be satisfied, beyond reasonable doubt, that the presumption of incapacity in s 29 of the Criminal Code was rebutted. The sole ground of appeal, alleging that the guilty verdicts on counts 1, 2 and 3 were unreasonable or unsupported by the evidence, is not established. -- 17 of 24 -- [2026] WASCA 89 MITCHELL & SEAWARD JJA HALL JA Page 18 Orders 57 As noted above, the appellant requires an extension of time in which to appeal. The delay of about 10 months in instituting the present appeal has not been adequately explained. As the appeal lacks merit, no miscarriage of justice arises from refusing an extension. The appropriate orders are: 1. The appellant's application for an extension of time in which to appeal is dismissed. 2. Leave to appeal is refused. 3. The appeal is dismissed. HALL JA: 58 I agree that this appeal should be dismissed. My own reasons for coming to that conclusion can be briefly stated. 59 Mitchell and Seaward JJA have set out the relevant factual background, trial evidence and legal principles. I only differ in regard to the application of those principles to the present case. In my view, on the evidence led at the trial, it was open for the trial judge to be satisfied beyond reasonable doubt of the appellant's capacity. I do not need to rely on the advantages of the trial judge in seeing and hearing the evidence to resolve any doubt in that regard. 60 Section 29 of the Criminal Code ameliorates the harshness of the application of the criminal law to children by providing that children under 10 years of age are not criminally responsible, and that children between 10 and 14 years are only criminally responsible if it is proved that at the time of the act the child had the capacity to know that he or she ought not to do that act.35 The rationale for that presumption is that a child under 14 years of age will generally not be sufficiently intellectually or morally developed to appreciate the difference between right and wrong, unless the contrary is proved.36 What is required to be proven is the capacity to know the wrongfulness of the act and not actual knowledge.37 However, evidence of actual knowledge will invariably prove the existence of capacity. 35 BDO [4]. 36 BDO [5]. 37 BDO [6]. -- 18 of 24 -- [2026] WASCA 89 HALL JA Page 19 61 The knowledge on the part of a child that is necessary to rebut the presumption is that the alleged act is wrong according to the standards or principles of reasonable adults. The knowledge required is of the moral wrongness of the act, not that it is an offence against the law. Because it is knowledge of a child that is in question, it is necessary to prove knowledge that the act is seriously wrong, as distinct from being merely naughty, mischievous or rude.38 62 The distinction between knowing that conduct is merely wrong or naughty as opposed to morally or seriously wrong is complicated by the relative imprecision of those terms and that they involve a question of degree. It is not enough to prove that conduct is objectively seriously wrong. What must be proven is that the particular child had the capacity to understand that to be so. As the moral development of children will vary, the focus must always be on the particular child.39 Moral development may involve a growing awareness of the seriousness of particular conduct. A child may commence by believing that some acts are naughty because they lead to punishment by adults and later learn that the same acts are seriously wrong and carry moral opprobrium in addition to any punishment. 63 The capacity of a child to know that conduct is morally wrong will usually depend on an inference to be drawn from evidence of the child's intellectual and moral development. The presence of some cognitive impairment may be relevant to capacity, but the absence of such an impairment will not be sufficient to prove capacity.40 What will often be more significant is evidence of the surrounding circumstances of the alleged offences. The behaviour of a child at or around the time of the relevant act may reveal knowledge that the act was seriously wrong. 64 Some behaviour by a child may be equally consistent with a belief that the relevant acts are simply wrong or naughty, as a belief that they are seriously or morally wrong. For example, concealment or secrecy may be equivocal. In RP, the High Court cautioned against too quickly drawing an inference from secrecy because it may indicate some belief as to the wrongfulness of the conduct but not the extent of that belief.41 65 Much will depend on the particular circumstances and a consideration of the evidence when viewed as a whole. A single request 38 RP v The Queen [2016] HCA 53; (2016) 259 CLR 641 [9] (Kiefel, Bell, Keane & Gordon JJ); RYE v The State of Western Australia [2021] WASCA 43; (2021) 288 A Crim R 174 [51] (Buss P & Mazza JA). 39 RP [12] (Kiefel, Bell, Keane & Gordon JJ); RYE [55] (Buss P & Mazza JA). 40 BDO [23]. 41 RP [33] (Kiefel, Bell, Keane & Gordon JJ). See also BDO [48]. -- 19 of 24 -- [2026] WASCA 89 HALL JA Page 20 for secrecy may not indicate knowledge that the act was seriously wrong, but repeated requests, accompanied by threats or coercion, together with efforts at concealment, use of force or expressions of concern regarding possible serious consequences, may be much more significant. 66 In the present case, there were two primary sources of evidence in respect of the capacity issue. The first was the circumstances of counts 1 - 3 and the second was the admissions made by the appellant in his evidence at the trial. In my view, the circumstances of the offences, in particular count 3, provide strong evidence of the appellant's capacity to understand that his actions were seriously wrong. 67 In respect of count 1, the appellant went into the master bedroom, where the complainant was sleeping, at a time when he knew her parents had gone outside. He did this despite a house rule that he was not to enter the bedroom in which the complainant slept. He pulled down the complainant's underwear and penetrated her vagina with his penis whilst she was sleeping.42 When she awoke, the appellant covered her mouth with his hand and told her to be quiet. The appellant persisted, despite resistance from the complainant. He stopped and ran from the room when he heard the rear sliding door open, indicating that the complainant's parents were coming back into the house. He told the complainant to pull her underwear up. 68 Count 2 occurred a few days later. The appellant again entered the master bedroom and pulled down the complainant's shorts and underwear whilst she was asleep. He penetrated her vagina with his fingers. When she awoke and told him to stop, the appellant persisted and told the complainant that she would like it eventually.43 The complainant maintained that she did not like it and that she wanted him to stop. The appellant desisted when the sliding door opened, again indicating that the complainant's parents were returning. 69 Count 3 occurred about a week after the first incident. The complainant was in a playroom of the house when the appellant approached her and said, 'You know the amount of times that I've done, like, this to you?'.44 The complainant responded, 'Yes and I don't like it. I need you to stop'. The appellant said, 'Well, can you do one little thing for me?'. The complainant responded, 'What is it?'. The appellant said, 'Can you suck my dick?'. The complainant responded, 'No. I don't 42 CWI, pages 25 - 29. 43 CWI, pages 33 - 35. 44 CWI, pages 39 - 43. -- 20 of 24 -- [2026] WASCA 89 HALL JA Page 21 even know what that is. Like, I'm not doing that'. The appellant said, 'Oh, I could just show you what it is'. The complainant replied, 'No, I don't want to'. The appellant then said, 'Well if you don't, I'm going to tell nan that you're doing all this and that you're starting all of this and making me do everything'. The complainant said, 'But that's not true. You can't do that'. The appellant then grabbed the complainant by the head and forced her to perform fellatio. 70 These three incidents occurred in close temporal proximity. It is important to view the conduct of the appellant as a whole and not in a piecemeal fashion. There was a tendency in the appellant's submissions to treat each incident separately and dismiss his efforts at concealment and secrecy as being insufficient to establish capacity. 71 The first two incidents show that the appellant entered the room where the complainant was sleeping, contrary to house rules, removed the complainant's underwear and commenced acts of penetration whilst the complainant was sleeping. The appellant plainly understood that secrecy was required because he covered the complainant's mouth and told her to be quiet on the first occasion. The second incident could have left the appellant with no illusion that the complainant was enjoying or consenting to what he was doing. On both occasions, he also desisted when he heard the adults returning to the house. He plainly appreciated that what was occurring was wrong according to the standards of adults. 72 The most significant evidence is the threat that the appellant employed in respect of count 3. The threat to reveal the sexual activity to the complainant's parents and attribute blame to the complainant could only have force if the appellant appreciated that what he was doing was not simply wrong but seriously wrong. This threat was used not merely to get the complainant into trouble with her parents but to secure her compliance in a different sex act - compliance which the appellant then obtained by use of force. In making this threat, the appellant showed an appreciation of the fact that his past conduct was so seriously blameworthy that by falsely attributing responsibility to the complainant, he could induce her to continue to act in the same manner and not reveal what was occurring. This involved forethought and consideration of the degree of wrongfulness of both the past and present conduct. 73 When taken as a whole, the circumstances of the offending provide strong evidence that the appellant had an appreciation of the moral wrongfulness of his actions. He knew that his actions were not merely wrong because they broke some arbitrary adult rule but because they -- 21 of 24 -- [2026] WASCA 89 HALL JA Page 22 were attended with moral blameworthiness. My conclusion in that regard is reinforced by the appellant's admissions in cross-examination. 74 Mitchell and Seaward JJA have reproduced the relevant parts of the cross-examination. The appellant gave clear and unequivocal answers to questions regarding his appreciation of the moral wrongfulness of the alleged actions when he was 12 years of age. He repeatedly said that he understood when he was 12 that these acts were seriously wrong. That evidence was not the result of any obvious misunderstanding or 'mindless adoptions of the propositions'45 put to him by the prosecutor. 75 It is doubtful that a person could accurately say what their moral understanding was when they were at a particular age without some event to which they can relate the question. It must, however, be remembered that the age of 12 was not randomly chosen by the prosecutor. That was the age the appellant was when the alleged acts occurred. Though he denied those acts, the evidence given by the complainant that they had occurred was accepted by the primary judge and has not been challenged on appeal. Accordingly, the effect of the cross-examination was to ask the appellant what his state of understanding was at the time these events occurred. 76 It may well be, as counsel for the appellant suggested, that the appellant had a motive to put himself in the best light. He may well have viewed his statements that, at the age of 12 he knew that acts of this type were seriously wrong, as supporting his claim that he did not do the alleged acts. To that extent, he may not have seen his answers as being admissions against interest. They were, however, statements made on oath that the appellant plainly wanted the primary judge to accept. 77 The appellant's appeal counsel submitted that the appellant was confused or failed to appreciate the significance of the questions because he was embarrassed and had to answer the questions quickly. She submitted that the appellant did not explain why, as a 12-year-old, he considered that his actions were seriously wrong. She said that the appellant's references to the complainant's age and that she was his cousin did not engage with concepts of consent, bodily autonomy or imbalance of power.46 The failure of the prosecutor to explore these issues was said to leave a real possibility that the appellant's responses were unreliable. 45 Appeal ts 6. 46 Appeal ts 13 - 14. -- 22 of 24 -- [2026] WASCA 89 HALL JA Page 23 78 I am unable to accept those submissions. To suggest that the appellant's answers were somehow inadvertent or did not reflect his true understanding is unsupported by the transcript. Nor is there any additional evidence on the appeal to support that suggestion. His answers that the conduct was seriously wrong because the complainant was his cousin and due to her age were not the only matters referred to. He also agreed that he knew as a 12-year-old that it was wrong to touch another person in this manner without permission.47 79 It is unrealistic to expect a child (or even a young adult of 20, as the appellant was when cross-examined) to express themselves in terms such as power imbalance or bodily autonomy, or for a prosecutor to ask questions in those terms. The questions that were asked were simple and apt to be easily understood. In my view, the trial judge was entitled to accept the evidence of the appellant on the issue of capacity as credible and reliable. The advantages of the trial judge in seeing and hearing the evidence are not needed in order to dispense with suggestions regarding the appellant's intentions or state of mind that are merely speculative. 80 In my view, it was open to the trial judge, on the whole of the evidence, to be satisfied beyond reasonable doubt that the appellant had the capacity to know that he ought not to do the act constituted by each of counts 1 - 3. On my own independent assessment of the whole of the evidence, I am not left with a doubt as to the appellant's guilt. In my view, the evidence does not contain discrepancies or inadequacies, or is tainted, or otherwise lacks probative force in such a way as to lead me to conclude that there is a significant possibility that an innocent person has been convicted. 81 In these circumstances, it is unnecessary for me to consider whether any doubt arising from the evidence can be resolved having regard to the trial judge's advantage in seeing and hearing the evidence. However, I would note that if any doubt had arisen from the evidence of the admissions due to the possible significance of the manner and tone of the answers, then any such doubt would be resolved by taking into account the advantages enjoyed by the trial judge. 47 Trial ts 99. -- 23 of 24 -- [2026] WASCA 89 HALL JA Page 24 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. LK Associate to the Hon Justice Mitchell 24 JUNE 2026 -- 24 of 24 --