KENNETH EDWARD CULPEPPER (A PSEUDONYM) -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 87
[2026] WASCA 87
Page 1
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : KENNETH EDWARD CULPEPPER
(A PSEUDONYM) -v- THE STATE OF WESTERN
AUSTRALIA [2026] WASCA 87
CORAM : THOMSON P
HALL JA
SWEENEY JA
HEARD : 7 MAY 2026
DELIVERED : 7 MAY 2026
PUBLISHED : 19 JUNE 2026
FILE NO/S : CACR 65 of 2025
BETWEEN : KENNETH EDWARD CULPEPPER
(A PSEUDONYM)
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : CURWOOD DCJ
File Number : 2237 of 2023
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[2026] WASCA 87
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Catchwords:
Recanting witness - Witness recanting evidence after trial - Miscarriage of
justice
Legislation:
Community Protection (Offender Reporting) Act 2004 (WA), s 4, s 6
Criminal Appeals Act 2004 (WA), s 30(3)(c)
Result:
Leave to appeal granted
Appeal allowed
Judgments of conviction and sentence set aside and substituted with judgments
of acquittal on all counts
Category: B
Representation:
Counsel:
Appellant : D J McKenzie
Respondent : K C Cook
Solicitors:
Appellant : David McKenzie Legal Pty Ltd
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in decision(s):
ARK v The State of Western Australia [2014] WASCA 45
Davies and Cody v The King [1937] HCA 27; (1937) 57 CLR 170
Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
Muller v The State of Western Australia [2014] WASCA 81
R v Flower [1966] 1 QB 146
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
Re Gam [2005] VSCA 234; (2005) 12 VR 177
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SPW v The State of Western Australia [2012] WASCA 41
Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769
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[2026] WASCA 87
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Table of Contents
Content s
Overview .................................................................................................................................... 5
Legal principles in relation to a recanting witness ..................................................................... 7
The complainant's evidence ...................................................................................................... 15
Overview .............................................................................................................................. 15
Count 1 - the 'butt' incident................................................................................................... 16
Count 2 - the vagina touching .............................................................................................. 17
Count 3 - the breast touching................................................................................................ 18
Count 4 - the toe touching .................................................................................................... 19
Further evidence at the pre-recording ................................................................................... 20
Other evidence in the prosecution case .................................................................................... 22
The 'creepy' Instagram messages .......................................................................................... 22
The complainant's father....................................................................................................... 23
No defence witnesses................................................................................................................ 26
The retraction of the complainant's evidence ........................................................................... 26
Disposition ................................................................................................................................ 29
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JUDGMENT OF THE COURT
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JUDGMENT OF THE COURT:
Overview
1 On 19 March 2025, the appellant was convicted after a District
Court jury trial of four counts of aggravated indecent dealing with a
child of or over the age of 13 years and under the age of 16 years,
aggravated because she was then under the appellant's care,
supervision, or authority. The offences all involved the appellant's
stepdaughter (the complainant), who was 13 years old at the time of
the incidents and her disclosure to the police.
2 The complainant participated in a recorded child witness interview
and then her further evidence, including cross-examination, was
pre-recorded, with both recordings played during the trial as her
evidence. She was the only prosecution witness who could testify as to
the alleged incidents and whether they occurred.
3 The appellant exercised his right to silence and did not participate
in a police interview, or testify at trial.
4 Following the conviction of the appellant, on 2 May 2025 the
complainant, who was then 15 years old, spoke to the investigating
officer and in effect recanted her testimony.
5 She claimed that her biological father had manipulated her into
making her allegations against the appellant. The investigating officer
took notes of that conversation, which were appropriately disclosed to
the State and the appellant's counsel.
6 On 5 May 2025, the appellant was sentenced to a total effective
term of 18 months' imprisonment, suspended for 12 months. That
suspended term expired two days prior to the hearing of this appeal.
7 On 22 September 2025 the complainant swore an affidavit
confirming her wish to retract her testimony.
8 The appellant appealed his convictions on a single ground to the
effect that the fresh evidence of the retraction, by way of the
investigating officer's notes and the complainant's affidavit, now shows
that the appellant's convictions and resulting sentence amounted to a
miscarriage of justice.
9 The mere fact that a witness has recanted his or her evidence
post-trial will not generally result in the setting aside of a conviction.
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Were it otherwise, the whole administration of our system of law would
be undermined.1 But each case must be determined according to its
individual facts.
10 After initially submitting that the appeal should be dismissed on
the basis that the recantation was not credible, and applying to put
evidence before this court from the investigating officer, the
prosecuting counsel at trial and the complainant's father in rebuttal of
the recantation, the State reconsidered its position. The State conceded
that the appeal should be allowed on the basis that, had the fresh
evidence been available to the jury at trial, there is a significant
possibility that the jury must have had a reasonable doubt as to the
appellant's guilt.
11 The State's concession was influenced by public interest factors.
While there is a public interest in the conviction of those who offend
sexually against children, the State considered that there was no public
interest to be served in insisting that the now 16-year-old complainant
who is, for various reasons, mentally and emotionally vulnerable, be
called by the appellant to testify before this court and be
cross-examined on her recanting affidavit by the State. In those
circumstances, the State did not seek to call evidence by way of rebuttal
from its three witnesses either and no oral evidence was heard by this
court.
12 It is not a prerequisite for this court to make a finding that the
evidence given by the complainant at trial was false, or that the
complainant was manipulated by her father to make her allegations, in
order to allow this appeal.
13 The evidence of the complainant at trial was not conceded by the
State to have been false and, in the absence of hearing from the
complainant, this court has limited ability to make our own assessment
of the veracity and proper interpretation to be placed upon her
recantation. Nevertheless, we accept that, had the fresh evidence been
available to the jury at trial, it was capable of being believed and there
is a significant possibility that the jury would have had a reasonable
doubt as to the appellant's guilt and, therefore, a miscarriage of justice
is established.
14 While this court is not bound by the State's concession, we
consider that, in the particular circumstances of this matter, and
1 Davies and Cody v The King [1937] HCA 27; (1937) 57 CLR 170, 183 - 184.
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particularly given the public interest considerations involved, the State's
concession is appropriate and should be accepted.
15 At the conclusion of the hearing of the appeal on 7 May 2026, we
allowed the appeal and made orders setting aside the convictions and
resulting sentence, with reasons to be later published. It follows from
the setting aside of the convictions that the appellant's status as a
reportable offender pursuant to the Community Protection (Offender
Reporting) Act 2004 (WA) also falls away.2
16 These now are our reasons for allowing the appeal.
Legal principles in relation to a recanting witness
17 This court must decide an appeal against conviction on the
evidence which was before the jury,3 but may admit further evidence.4
18 The State did not oppose the admission of the evidence sought to
be relied upon by the appellant, namely the detective's notes of her
post-trial interview with the complainant and the complainant's
affidavit, and we have had regard to that evidence.
19 An appeal alleging that a conviction should be set aside on the
basis of fresh evidence which was not before the jury at trial is based on
s 30(3)(c) of the Criminal Appeals Act 2004 (WA), which provides that
this court must allow an appeal if, in our opinion, there has been a
miscarriage of justice.5
20 'Fresh' evidence is evidence which was unavailable and could not
with reasonable diligence have been available to the appellant at the
time of trial.6 'New' evidence, then, is additional evidence which is not
fresh evidence.
21 If, acting upon our own view of all of the evidence, including the
additional evidence, this court forms the view that the appellant is
innocent or that there is a such a doubt concerning his guilt that he
2 Section 6(1) of the Community Protection (Offender Reporting) Act provides that a reportable offender is a
person a court sentences for a reportable offence. By s 6(6), a person ceases to be a reportable offender if a
court sets aside the 'finding of guilt' in respect of the offence by which the person became a reportable
offender. By s 4(1) of the Act, a finding of guilt is a reference to a court convicting the person of the offence.
By s 4(2) a finding of guilt does not include such a finding which is subsequently set aside by a court.
3 Criminal Appeals Act 2004 (WA), s 39(1).
4 Criminal Appeals Act 2004 (WA), s 40(1)(e).
5 Muller v The State of Western Australia [2014] WASCA 81 [56] - [57] (Hall J, with whom Buss &
Mazza JJA agreed).
6 Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 [18] - [19] (Barwick CJ) .
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should not have been convicted, then the verdicts of guilty will be set
aside and there will be no question of a new trial.7 If that sort of
miscarriage of justice is established, the distinction between fresh and
merely new evidence is immaterial, and it does not matter that the trial
was conducted fairly and without blemish.8
22 But, if this court's own assessment of the additional evidence does
not so convince the court, then the distinction between 'fresh' and
merely 'new' evidence matters. The absence itself of the additional
evidence at trial will only be a miscarriage of justice if the evidence is
'fresh' evidence which is properly capable of belief, and there is a
significant possibility that, on the basis of all of the admissible evidence
including the fresh evidence a jury, acting reasonably, would have
acquitted the appellant.9
23 It is not in issue that the evidence of the complainant having
recanted her evidence given at trial relates to events post-trial and is
therefore 'fresh' evidence. The question then is whether there is a
significant possibility that, on the basis of all of the evidence including
the fresh evidence, a jury acting reasonably would have acquitted the
appellant.
24 The principles which govern an appeal such as this were
summarised by this court in ARK v The State of Western Australia.10
Buss JA (with whom Mazza JA agreed) observed that the test referred
to above 'must be applied with considerable caution' where the fresh
evidence involves a recantation of evidence given by a witness who
testified at trial.11
25 In the 1937 decision of the High Court in Davies and Cody v The
King,12 quoted in ARK,13 the court explained why that is so:
A declaration by a witness that he has committed perjury cannot
possibly be accepted as a ground in itself for setting aside the result of a
trial in which the witness has given evidence. If the contrary were held,
the whole administration of both civil and criminal justice would be
7 Ratten [23] (Barwick CJ).
8 Ratten [25] (Barwick CJ).
9 ARK v The State of Western Australia [2014] WASCA 45 [137] (Buss JA, with whom Mazza JA agreed);
Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 399 (Gibbs J), 402 (Mason & Deane JJ);
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273 (Mason CJ), 301 - 302 (Toohey &
Gaudron JJ). See also Re Gam [2005] VSCA 234; (2005) 12 VR 177 [27] (Callaway JA).
10 ARK v The State of Western Australia [2014] WASCA 45.
11 ARK [144] (Buss JA).
12 Davies and Cody v The King [1937] HCA 27; (1937) 57 CLR 170, 183 - 184.
13 ARK [145] (Buss JA).
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undermined. The subsequent discovery that some evidence (as in this
case) is said by the witness who gave it to be false, or is actually proved
false, cannot, as a general rule be allowed as a ground in itself for
setting aside a verdict or judgment. But if the verdict is open to
objection upon a ground affected by such evidence, the case is different.
It would not be wise to attempt to frame a universal rule even for such
cases. As the Full Court indicates in its judgment, the subsequent
statement that the original evidence is false may be explainable by
pressure brought to bear upon a witness or by the operation of any one
of an indefinite number of motives. Each case should be treated in
relation to its own facts.
26 Having quoted the above, Buss JA in ARK observed that this court
must decide on the relevance and credibility of the fresh evidence. In
some cases this court will need to decide whether it believes the
additional evidence while, in other cases, it will suffice to decide
whether the evidence is capable of belief, and likely to be believed by
reasonable people.14 This court's assessment of the evidence of the
recanting witness will be influenced significantly by two matters:15
First, the reason or reasons given by the witness for having recanted his
or her evidence. Secondly, the significance of the evidence of the
witness at trial and whether (and, if so, to what extent) the appellant's
conviction was supported by other, apparently reliable, evidence.
27 Three cases, including ARK, will serve to illustrate the varied
circumstances in which the evidence of a recanting witness may be
considered by an appellate court.
28 In Davies and Cody v The King, the two appellants had been
sentenced to death for the murder of the victim during the course of an
armed robbery. Three men, two assailants and one driver, had been
seen by several witnesses to have carried out the robbery. The trial
turned on the question of identification of the two appellants as having
been involved. The two appellants unsuccessfully appealed their
convictions in the Victorian Court of Appeal and then further appealed
to the High Court.
29 The appeals were largely about the unsatisfactory methods by
which the eyewitnesses, none of whom knew either appellant, had been
asked to identify the suspects. The decision predates a considerable
body of case law concerning identification evidence. The High Court
was critical of the identification evidence and the trial judge's directions
14 ARK [139]; Ratten [21] (Barwick CJ).
15 ARK [146] (Buss JA).
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to the jury about that but added that, if that were the only ground of
appeal, the court may have hesitated in intervening.
30 The determining issue, however, concerned the evidence of a
prosecution witness, Mr Stevens, who testified that both appellants had
made admissions to him of their involvement in the murder. Given the
issues with the identification evidence, the court considered that the
evidence, 'if believed, would of course have carried the case against the
prisoners the whole distance',16 and 'if believed, was conclusive of the
guilt of the accused persons'.17
31 Stevens, who was a man 'of very bad character',18 had, post-trial,
sworn a statutory declaration recanting his trial evidence, declaring it to
be false in every particular. He later withdrew his recantation, leading
the Court of Appeal below to take the view that his recantation and
subsequent withdrawal of that recantation threw no light on the
credibility to be accorded to his evidence at the time of trial, the
recantation being subsequent to the trial and therefore only indirectly
relevant.
32 The High Court observed that Stevens' statutory declaration
recanting his evidence could not possibly be accepted as a ground in
itself for setting aside the verdicts, as quoted in full at [25] above.
However, the court also considered that the approach taken by the
Court of Appeal did not sufficiently take into account the 'not remote'
possibility that the jury had accorded definite weight to Stevens'
testimony, and the trial judge did not advise the jury to reject his
evidence, when it 'is now known that it is completely untrustworthy,
and ought not to be allowed to enter into the reasons for any verdict of
guilty'.19
33 Given that the only other evidence implicating the two accused
was the unsatisfactory identification evidence, about which the jury had
been inadequately instructed, the High Court concluded that the facts
related to the evidence of Stevens were sufficient to entitle the
appellants to a new trial, even where the other evidence, without his
testimony, was sufficient to support convictions.
16 Davies and Cody v The King (183).
17 Davies and Cody v The King (184).
18 Davies and Cody v The King (183).
19 Davies and Cody v The King (184).
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34 In the decision of Re GAM,20 the Victorian Court of Appeal
rejected an appeal based upon fresh evidence of a complainant who
recanted her evidence post-trial but then, when interviewed by police,
recanted her recantation. In adopting the 'significant possibility' test
referred to at [22] above, Calloway JA (with whom Chernov &
Vincent JJA agreed) observed:21
The basic test must, however, be applied with considerable caution
where the fresh evidence consists mainly of a recantation, a fortiori if
the recantation is itself withdrawn.
35 The offender in that case was convicted of multiple sexual
offences alleged by his stepdaughter, aged 13 at the time of the
offending. The prosecution case predominantly consisted of her
evidence, although there was also supportive, but inconclusive, medical
evidence consistent with attempted sexual penetration.
36 In her victim impact statement, the complainant had said that she
loved her mother and sisters very much and would hate herself if she
lost them as a result of the offending. She also said that she would
never forgive the offender for the physical and emotional abuse he had
put her through.
37 Two years after the trial, when she must still have been a teenager
based on the dates referred to in the decision, the complainant swore a
statutory declaration, drafted by her mother, to the effect that all of her
allegations of sexual abuse had been false, and only made due to
(a) being pressured by a childcare worker and (b) while angry, because
her grandmother had taken it upon herself to report the child's
allegations to the police.
38 The complainant made the statutory declaration recanting her
allegations on the understanding that she may be interviewed by police.
39 When subsequently interviewed by police, the complainant
immediately retracted her statutory declaration. She recounted a
conversation with her mother, in which her mother had asked her if she
would 'change things' if she could, and advised the complainant that she
had already sought advice as to the preparation of a statutory
declaration and how a judge would stamp it, and the charges would all
'get dropped'. The mother also advised the complainant on what the
statutory declaration should say and, later, drafted the wording for the
20 Re Gam [2005] VSCA 234; (2005) 12 VR 177.
21 Re Gam [27].
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complainant and provided her with a blank statutory declaration form,
which the complainant then filled in by copying the drafted words.
40 The complainant told police that the statutory declaration was in
fact false, and sworn in order to keep her mother happy, so that her
mother could get her husband back home.
41 When interviewed, her mother essentially agreed with the entire
account, except that she insisted that her daughter had agreed with the
contents of the statutory declaration.
42 Counsel for the offender argued that the Court of Appeal should
quash the convictions, even if the court did not accept the truth of the
statutory declaration. Calloway JA observed:22
The difficulty with that approach was expressed by Widgery J in R v
Flower.23 His Lordship said:24
'If the witness's new version of the case is disbelieved this may
very well show he is now unreliable, but it is a fallacy to assume
from this that he was also unreliable at the trial. Witnesses may
have second thoughts for a variety of different reasons. Some
become emotionally disturbed, others brood on the effect of
their evidence, whilst others are subject to more tangible
pressures to induce them to depart from the truth. It is the
witness's state of mind at trial which matters and this ought to be
judged by reference to the circumstances prevailing at that time.
It is trite to say that every case depends on its own facts but in
our view there is no general requirement for a new trial merely
because the witness's account in this court differs from that
given in the court below. So much depends in every case upon
the reason, if any, given by the witness for having changed his
or her testimony.'
Those observations, especially the reference to 'tangible pressures' and
'the reason, if any, given by the witness for having changed his or her
testimony' are relevant to the present case.
43 The court was also invited by counsel to consider whether the
evidence of the recanting witness was now so untrustworthy that it
ought not to be allowed to enter into any reasons for the verdict of
guilty, citing Davies and Cody v The King.
22 Re Gam [28].
23 R v Flower [1966] 1 QB 146.
24 R v Flower 150 - 151.
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44 Without deciding, but assuming in the appellant's favour that it
was appropriate to also consider that question, Calloway JA considered
the evidence of the complainant could not be so described, as she had
withdrawn her recantation and maintained that she had told the truth at
the trial and had lapsed in making the false statutory declaration, at her
mother's instigation, which the complainant immediately regretted and
promptly corrected.
45 The court considered that the recanting statutory declaration could
not be assessed separately from the evidence given at trial, or divorced
from the complainant's explanation for recanting her evidence. The
court did not consider that the fresh evidence of the statutory
declaration, itself 'promptly and convincingly recanted', had the quality
necessary to warrant a retrial.
46 Finally, in ARK this court dismissed an appeal against conviction
brought on the basis that the complainant in a trial concerning child
sexual abuse had recanted following the trial. At trial, the complainant
had testified to multiple occasions of sexual abuse including sexual
penetrations perpetrated against her by her de facto stepfather, the
offender, when she was aged between 11 and 15 years old. He was
convicted of eight counts of aggravated sexual penetration of a de facto
child and one attempt to commit the same.
47 Following the convictions the complainant claimed, and testified
before this court, that she had only had sex with the offender once,
having given him sleeping pills in his beer without his knowledge and
then had sex with him while he was asleep. She claimed to have told
him about the incident the next day, and then threatened to report him
to police for offending against her if he did not comply with her every
wish.
48 This plan had been suggested to her, the complainant claimed, by
her friend B, who had done a similar thing to her own stepfather in
order to blackmail him, but eventually did report him to the police for
having sexually abused her. The complainant in ARK testified to that
effect in the trial of B's stepfather for sexual offences against her friend.
The jury in the trial of B's stepfather was undeterred by her account,
and convicted B's stepfather of offending against B.
49 This court found that the complainant in ARK had thought that her
testimony in that other trial would indirectly result in her own
stepfather being released. This court also found that the complainant
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was unable to give a consistent account in terms of the details of her
new version, and that her evidence before this court was 'new' rather
than 'fresh' evidence because, on her account, she had told the accused
the day after the claimed single occasion of sex, so well prior to his
eventual trial.
50 While, in ARK, the complainant's evidence at trial was the basis of
the allegations of offending, there was significant additional evidence
upon which the prosecution relied. That evidence included contact
from the offender to the complainant using a false name on Facebook,
in breach of bail, apologising to her in terms capable of being regarded
as an admission to having had sex with her. It also included evidence
from his aunt and uncle that he had admitted to them that he had had
sex with the complainant, evidence from his own mother that he had
admitted to her that he had only to enter the complainant's bedroom and
touch her on the shoulder for her to have sex with him, and evidence
from a friend of his that, at a party, the offender had made a very
similar comment, implying that he was having sex with the
complainant.
51 In addition, relevant to the appeal, when the offender,
post-conviction, spoke to a psychiatrist for the purpose of preparation
of a report for sentencing, he admitted to the psychiatrist that three acts
of sexual intercourse with the complainant had occurred, the first when
she was 11 years old.
52 Just prior to trial, the offender had offered to plead guilty to three
consensual acts of sexual intercourse on the basis that the complainant
had instigated the acts, an offer which the State rejected.
53 Extraordinarily, after the complainant in ARK had testified to the
blackmail tale before this court, the offender then testified that he had
had sex with her on three occasions when she was 15 years old. He
denied having admitted to the psychiatrist that he had first had sex with
the complainant when she was only 11.
54 At the time the complainant in ARK recanted her evidence at trial,
she had become homeless and isolated from her family, including her
siblings, and was ostracised by her own mother and grandmother. She
had taken at times to living in parks, or with others. She testified
before this court that she would 'do anything' to be reunited with her
family.
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55 It was in those circumstances that this court25 found that the
complainant had a clear motivation for falsely recanting her evidence.
The court also found that the complainant's new account was
implausible and did not 'taint the credibility or reliability of her
evidence at trial'.26 The court concluded that the convictions were not
unsafe and that no miscarriage of justice had occurred.
56 We turn now to the evidence which was before the jury in this
matter.
The complainant's evidence
Overview
57 On 29 November 2022, the 13-year-old complainant participated
in a child witness interview with police (interview), during which she
alleged that the appellant had indecently dealt with her on four
occasions. The interview constituted part of her evidence-in-chief at
trial. The complainant's further evidence, including her
cross-examination, was pre-recorded in advance of the trial at a special
hearing 18 months later on 13 June 2024 (pre-recording), by which
time she was almost 15.
58 In her interview, the complainant alleged that the appellant had
touched her inappropriately while she sat on the couch with him
watching television at night.27 She described her mother as being in the
bedroom during each of the incidents.
59 She stated that the appellant had touched her, in three separate
incidents, on her 'butt', near her vagina, and on her breasts, respectively.
These three alleged dealings constituted charges 1 to 3 on the
indictment. Count 4 involved an alleged touching of her foot.
60 She also complained that the appellant had sent her 'creepy'
messages via Instagram.28 Screenshots of messages received in the
complainant's mobile phone were put before the jury.29
61 The complainant also expressed general discomfort about being
hugged by the appellant, stating that he often moved his hand close to
25 Buss JA, with whom Mazza JA agreed, and Pullin JA in separate reasons.
26 ARK [190] (Buss JA).
27 Interview BGAB 10 - 11.
28 Interview BGAB 10 - 11.
29 Exhibit 6.
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her butt, and that he is very tall and pulled her up, so her breast was
touching him.30
62 The evidence of the messages and hugging was not the subject of a
charge. It was left to the jury as contextual evidence for the narrow
purpose only of tending to explain why the complainant may not have
realised the seriousness of the charged indecent dealings prior to
discussing them with her father, because touching had been normalised
by earlier innocuous touching, and similarly to explain why she did not
tell her mother about the manner in which the appellant had been
touching her.31
63 The complainant provided the following details of the four
incidents.
Count 1 - the 'butt' incident
64 The first occasion of touching occurred in October 2022, when the
complainant was aged 13, in the lounge room of their family home. It
was just after dinner and she was alone with the appellant, watching
television with him on the couch.
65 She was laying with her head on the appellant's knee. She said
that he did not usually touch her while on the couch but, on this
occasion, he touched her over her clothing, starting at her waist and
moved towards her 'butt', slowly.32 She said he put his hand on her
waist,33 and started moving it towards her butt.34 When he actually
touched her straight on the butt, she stated 'Hey, what are you doing?'.35
The appellant replied 'Oh, I'm sorry',36 and moved his hand back to her
waist.37 She said that, while the appellant's hand was on her butt, his
hand was stationary, but he was moving his thumb back and forth.38
66 She said that, following the incident, the two continued to watch
television.39 When she asked whether it was time for them both to go
to bed, the appellant said, 'Oh, no, don't - I don't want you to get up'.40
30 Interview BGAB 30.
31 Trial judge's charge to jury, trial ts 205 - 206, 210.
32 Interview BGAB 14.
33 Interview BGAB 12.
34 Interview BGAB 12.
35 Interview BGAB 12.
36 Interview BGAB 12.
37 Interview BGAB 15.
38 Interview BGAB 15.
39 Interview BGAB 16.
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67 At her pre-recording she clarified that, when the appellant touched
her butt, it was only for a few seconds before she asked what he was
doing.41
68 She maintained that the appellant had touched her backside, not
just her hip or waist.42 She accepted that sometimes she would change
position,43 but did not accept that the touching on the bottom had just
occurred because she had moved position, in effect shifting the
appellant's hand.44
69 She stated that 'he wouldn't move it so suddenly. He would just
move it, like, slowly and slowlier to that place'.45
Count 2 - the vagina touching
70 The complainant said the second touching occurred the day after,
when the two were again watching television. She lay on the couch
with her head on the appellant's knee, this time laying on her back
rather than her side, with her head turned to face the television.
71 She said the appellant again touched her waist and 'kind of [her]
stomach'46 before his hand slowly moved down towards her vagina.47
She stated that he did not put this hand all the way there, but just 'kind
of put his fingers near that area'48 and she then said to him 'Oi, wait…
Hey, what are you doing?'49 to which he responded 'oh'.50 She said his
fingers were 'kind of just near that sort of area. Just kind of - kind of
close, but not exactly there'.51 When asked to clarify, she said 'It's kind
of just on the top sort of area' of her vagina.52
72 She stated that this touching was over her clothing,53 and that she
was wearing 'sort of thin clothes' as it was getting 'a bit hot'.54
40 Interview BGAB 16.
41 Pre-recording BGAB 53.
42 Pre-recording BGAB 67.
43 Pre-recording BGAB 67.
44 Pre-recording BGAB 68.
45 Pre-recording BGAB 68.
46 Interview BGAB 22.
47 Interview BGAB 22.
48 Interview BGAB 22.
49 Interview BGAB 22.
50 Interview BGAB 24.
51 Interview BGAB 22.
52 Interview BGAB 22 - 23.
53 Interview BGAB 23.
54 Interview BGAB 24.
-- 17 of 34 --
[2026] WASCA 87
JUDGMENT OF THE COURT
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73 Like the prior incident, she stated that they went back to watching
television, and again he did not want her to leave.
74 At her pre-recording, she stated the touching of her vagina 'wasn't
for very long' and that she had 'felt very uncomfortable with that' and so
had 'asked him what he was doing'. The complainant agreed with
counsel's summary that one of the appellant's fingers got a few
centimetres away from her vagina,55 and that was a few centimetres
below her bellybutton.
75 The complainant agreed that the lights were on both in the lounge
room and the bedroom and that she could see the lower half of her
mother on her bed.
76 When asked why she would lay down with her head resting on the
appellant if he had previously touched her bottom, the complainant
stated that she had been tired, and did so to see the screen better and
was not overthinking it at the time.56
77 When counsel suggested that the practice of laying in the
appellant's lap with his hand on her waist was not unusual for them, the
complainant said that she did not think that was too bad at the time and
did not think much of it.57 The complainant said, however, that at the
time she told her father, she decided to tell him about the appellant
touching her private parts, which she thought was a bit concerning,
when she thought about it.58
Count 3 - the breast touching
78 In relation to the breast incident, the complainant stated that she
was again laying on her back on the couch in the loungeroom, with her
head on the appellant's knee.59 She said that, on this occasion, the
appellant placed his hand on her waist as soon as she laid down, and
then started 'crawling' his hand to her breast area.60 When he had fully
put his hand on her breast, she said 'Hey, what are you doing?' Then he
again said 'Oh'.61
55 Pre-recording BGAB 71.
56 Pre-recording BGAB 69.
57 Pre-recording BGAB 71.
58 Pre-recording BGAB 72.
59 Interview BGAB 27.
60 Interview BGAB 27.
61 Interview BGAB 27.
-- 18 of 34 --
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JUDGMENT OF THE COURT
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79 She said that, as opposed to the vagina incident, the appellant was
not just putting his hand 'near it', but 'he was just putting it… actually
on it',62 over her clothing.63 He moved his thumb slightly, and was just
trying to move his hand around when she pointed it out to him.64 She
said the appellant then placed his hand back on her waist area and did
not want her to leave.65
80 In her pre-recording, she said that when the appellant was starting
to touch her breast, she did not let him go further and questioned what
he was doing. She said he 'wasn't directly putting his fingers onto -
like, directly onto it, like, fully' but it was 'slowly starting to get onto it
and so when he was going a bit too far, then I asked him what he was
doing'.66
81 When asked to clarify whether the appellant had put his hand fully
on her breast or just near it, she answered that he was 'not, like, exactly
fully, like, holding it. But it was more, like, kind of, close to it but not
like exactly holding it.' When asked whether, leaving aside 'holding'
her breast, the appellant had actually 'touched' her breast, the
complainant said 'Yeah, he did. He did touch it', but said it was only
for a few seconds.67
82 She denied that she had wriggled or moved her position just prior
to the touching of her chest.68
Count 4 - the toe touching
83 The complainant stated that she recalled a time when she was
sitting on the couch with her legs crossed and the appellant, who was
sitting to her left,69 grabbed her foot and said 'Toes'.70 She moved her
foot away from him and said 'What?' to which he replied: 'I like toes
and their toenails', and 'I like to rub your mum's feet'.71
84 At her pre-recording, she stated that, on the occasion of the
appellant touching her foot, he had only grabbed it for a few seconds.
62 Interview BGAB 28.
63 Interview BGAB 28.
64 Interview BGAB 28.
65 Interview BGAB 28.
66 Pre-recording BGAB 73.
67 Pre-recording BGAB 80.
68 Pre-recording BGAB 72.
69 Interview BGAB 31.
70 Interview BGAB 31.
71 Interview BGAB 31.
-- 19 of 34 --
[2026] WASCA 87
JUDGMENT OF THE COURT
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85 She denied moving her foot close to him as a joke, and said that
she had put her feet onto the coffee table in front of the couch to just
move positions, and the appellant had then grabbed her foot by himself.
She said that she thinks he touched one of her toes, but cannot now
remember exactly what happened when he was doing that.
86 She said that he said 'toes' and that he likes to massage feet, but
said that she could not remember very well. She could not remember
whether he was laughing at that time.
87 The complainant said that she did not tell her mother about the
touching immediately, as at the time she 'didn't think it was too bad'.72
She stated that there were four incidents of touching before she told
someone.73
Further evidence at the pre-recording
88 Early on in her pre-recording in her examination in chief, the
complainant corrected a detail from her child witness interview in
which she had said the touching only occurred when her mother was in
her bedroom with the door closed. By way of correction, the
complainant explained that the door to the bedroom was fully closed on
only one occasion, which she could not now identify, and half-way
closed on the other occasions.74 Other than that correction, the
complainant said that her evidence in the interview was true and
correct.75
89 The complainant also gave further general evidence about her
relationship with the appellant. She agreed that, prior to the allegations,
she had a pretty nice relationship with the appellant. She agreed that,
most nights, she would give him a hug before she went to bed and that,
sometimes, if the appellant had not hugged her before bed, he would
send her a message about missing the hug.76 The complainant also
agreed that sometimes she would cuddle up with him in front of the
television.
90 The complainant stated that, prior to the charged incidents, she
was comfortable laying on the couch with the appellant and had found
it comforting. He had been in a relationship with her mother since
72 Pre-recording BGAB 54.
73 Pre-recording BGAB 54.
74 Pre-recording BGAB 39 - 40.
75 Pre-recording BGAB 40.
76 Pre-recording BGAB 64.
-- 20 of 34 --
[2026] WASCA 87
JUDGMENT OF THE COURT
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before the complainant was born, and she did not recall a time before
living with him.77
91 She stated that the 'creepy' Instagram messages had started from
around October 2022 and prior to the inappropriate touching on the
couch.
92 She was also questioned about her biological father, Mr Burton (a
pseudonym) and the conversation in which she told him about the
touching.
93 She agreed that her father has told her that he does not like the
appellant, and has not liked the appellant for quite a while.78 She
denied, however, that her father would get angry if she mentioned some
trip she was taking with her mother and the appellant. She said that her
father did not mind and did not get angry with her, her mother or the
appellant 'whenever we do kind of travelling related stuff'.79
94 She agreed that her father would sometimes complain about
having to pay child support for her. She agreed that, on the day she told
her father about the incidents, she heard him on the phone with the
child support agency, informing them that he would now have full-time
custody of her.80
95 The complainant denied that her father had initiated the
conversation about the touching, and said that she did, and that she had
wanted to talk to him.81
96 The complainant stated that, when she told her father, she had not
realised how bad it was, and then her father spoke to her for about an
hour about 'how bad that stuff can actually be, touching in bad places',82
before he called child protection.
97 It was suggested to her that, at that point, all she had told her
father about was that she had been resting her head on the appellant's
lap. The complainant denied that and said that she had brought up
where the appellant was touching her, and how she was nervous about
the fact that he was touching her in those areas.83 The complainant
77 Pre-recording BGAB 58.
78 Pre-recording BGAB 59.
79 Pre-recording BGAB 66.
80 Pre-recording BGAB 59.
81 Pre-recording BGAB 66.
82 Pre-recording BGAB 75.
83 Pre-recording BGAB 66.
-- 21 of 34 --
[2026] WASCA 87
JUDGMENT OF THE COURT
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denied that her father had suggested to her that she should exaggerate,
or say something to the police that did not happen. She said that he was
'just really supporting of, like, helping me get this matter reported and it
get worked on'.84
98 The complainant agreed that, since the allegations, she has been
living with her father.
99 She also agreed that, soon after reporting the incident, her father
drove her to meet with her mother, to ensure her mother was aware.
She denied that her father had told her to exaggerate things, and said
that she had told her mother the truth, being exactly what happened.85
100 In re-examination, the complainant said that she told her father
about the appellant touching her because she was a bit concerned about
it, and told him about the time with her butt, her private area, her chest,
and her feet.86
Other evidence in the prosecution case
The 'creepy' Instagram messages
101 The Instagram messages from the appellant87 were obtained from
the complainant's mobile phone, and tendered in the form of
screenshots taken by the complainant. The phone screen mostly
provided the month and day, but not the year, that the message was
sent. The complainant testified that the 'creepy' messages commenced
around October 2022.
102 Assuming then that the messages were sent in 2022, they include
the following, which appeared directly above another message received
on 2 October at 21:39 hours:
- Hi, again, maybe I'm silly, but I want to say not just your hair but you
smell really good and I really like it a lot. Really nice. : DDD
103 The complainant said there was no issue with her hair at the time
of this message.88 She said she had started using expensive shampoo
and 'I guess he liked it'.89
84 Pre-recording BGAB 76.
85 Pre-recording BGAB 77.
86 Pre-recording BGAB 78.
87 Exhibit 6.
88 Pre-recording BGAB 63.
89 Pre-recording BGAB 64.
-- 22 of 34 --
[2026] WASCA 87
JUDGMENT OF THE COURT
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104 Another message received on 4 November at 23:59 hours read:
I love you now and always. I would love to just hug you and hug you
and on and on. You are so good and so precious.
105 Four messages appearing in a single screenshot but with no date or
time of receipt read as follows:
- I guess it shows how selfish and messed up I am because I did not ask
you, would YOU like a hug. That's what I should have said, too.
- I'm still learning [with a face with three love hearts emoji].
- It's funny but I want to squeeze you very hard when I hug you but I
want to be gentler so I'm really careful.
- Sorry, I know I should go to sleep now, Just can't help saying good
night and I love you [complainant's name].
106 Finally, the messages include the following, received 9 November
at 20:26:
OMG I just get so nervous around pretty girls!
107 The evidence was led only for the narrow purpose described at
[62] above.
The complainant's father
108 The State also called the complainant's father, Mr Burton. He
testified that he and his former wife, the complainant's mother,
separated when the complainant was about a month old.90 From shortly
after the separation, the complainant stayed with her mother and the
appellant during the week and came to stay with her father every
weekend. That was still the arrangement in place in 2022.
109 Mr Burton gave evidence of his conversation with his daughter in
which she told him that the appellant had been touching her. He said
that she stayed over that weekend on 18 November 2022 and, that
night, she came out of her room to tell him something.
110 Mr Burton stated that, for the preceding weeks, his daughter had
been complaining about the appellant giving her big hugs. He said the
conversation started out with the complainant telling him that '[the
appellant] is being creepy again',91 and she then said that the appellant
90 ts 158.
91 ts 187.
-- 23 of 34 --
[2026] WASCA 87
JUDGMENT OF THE COURT
Page 24
had wanted to massage her feet, and also explained that the appellant
had put his hands on her butt.92
111 Mr Burton explained that she had said that to him in an amusing
way, because they joke around and use the word 'butt' for a laugh, so it
was dismissive at first.93 He said that he had replied 'No. That's - that's
not right' and she then went on to explain that the appellant had also put
his hand down her shirt onto her chest.94
112 Mr Burton said that he then explained to her that those are
erogenous areas, and that the appellant should not be putting his hands
anywhere near there. Mr Burton said that, in response, the complainant
said 'Well, he also put his hands down my pants'.95 Mr Burton said he
asked whether it was in her erogenous area, to which she said 'Yeah.
Down my pants.' He said he asked 'Well, was it really close to your,
like, private parts?' and she said 'Yes. It was almost right on it'.96
113 We note that the suggestion that the appellant had put his hand
down the complainant's shirt and down her pants was inconsistent with
her evidence that the touching was over clothing.
114 Mr Burton stated that he asked her more questions, and she
explained where it happened and where her mother was at the time. He
testified that they then started talking about her future, because he knew
that she could not return to her mother's house, and so they spoke about
her schooling arrangements and how she would like to live with him.97
He said that the conversation concluded at almost midnight, and so he
did not report it to the police until the next morning.98
115 Mr Burton was cross-examined about his attitude towards the
appellant. He agreed that his wife had left him, against his wishes, and
that he did partly blame the appellant for the break-up of the marriage,
but also himself. He said that his wife had previously been in a
relationship with the appellant, and the appellant was always on the
sidelines.99
92 ts 160.
93 ts 160.
94 ts 160.
95 ts 160.
96 ts 160.
97 ts 161.
98 ts 161.
99 ts 162.
-- 24 of 34 --
[2026] WASCA 87
JUDGMENT OF THE COURT
Page 25
116 Mr Burton agreed that both his former wife and the appellant had
taken out a restraining order against him soon after the separation, but
said that he had got over the breakup, which was years ago now.100
117 He accepted that he may have told the complainant that he was
upset about having to pay child support.101 He said that he was initially
upset and had been struggling to pay off his house and car, but has
more recently got over it as he has become more financially stable.102
118 Mr Burton said that was 'kind of happy' that his daughter had
seemed happy with the appellant, and said that he had come to be
happy about his own life as it is,103 but said that, since he found out
what the appellant did to his daughter, he does not like him.
119 He denied seeing or hearing 'anyone' tell his daughter that she
should make up some sexual allegations or exaggerate things.104
Clearly that was a roundabout way of accusing him of having done so,
which was impliedly denied.
120 Mr Burton stated that he called child protection the day after the
complainant told him the allegations, and they told him to report it to
the police, which he did. He contacted the child support agency later
on in the week,105 as he did not want to keep paying child support while
the complainant was staying with him.106
121 Mr Burton confirmed that he had taken the complainant to the
police so she could do her interview. He agreed that the next day he
had contacted his former wife to arrange a meeting between the
complainant, himself and her.107
122 He said he told his former wife that the complainant had
something to tell her and agreed that, after the complainant had spoken,
he had said the appellant should plead guilty.108
123 He agreed that he may have said 'You can divorce him', and said
this was said in the context of the complainant still being able to live
100 ts 163.
101 ts 164.
102 ts 164.
103 ts 162.
104 ts 165.
105 ts 166.
106 ts 167.
107 ts 167.
108 ts 167.
-- 25 of 34 --
[2026] WASCA 87
JUDGMENT OF THE COURT
Page 26
with her mother, if her mother separated from the appellant.109 He
accepted that he had suggested that his former wife could stay with him
in a spare room. He said that he was trying to work out who was going
to look after the complainant, as he had not finalised the change in his
then full-time work.110 He accepted that, after he said those things to
his former wife, she said 'That's the last thing I want'.111
124 In response to the suggestion that he had wanted to have the
complainant live with him full-time, Mr Burton stated that, when he
found out what the appellant allegedly did to her, he felt that was the
only option.112 He said that it was not something that he wanted, as he
had to go from working full-time to part-time in order to accommodate
her homeschooling,113 but it was his duty as a father and something he
had to do.114
125 He accepted that he has not seen the complainant since
August 2024 and that she was now (at the time of the trial) living with
her maternal grandmother.
No defence witnesses
126 The appellant elected not to give or call evidence in the matter.
The retraction of the complainant's evidence
127 The appellant relies upon two pieces of evidence in support of his
appeal, namely the investigating officer's notes of her interview with
the complainant on 2 May 2025, at the complainant's request, and the
complainant's affidavit of 22 September 2025.
128 Detective Robinson's notes relevantly read as follows:
Discussion in Dinning [sic] room.
- Explaining False report/pervert.
*Curious about legal stuff regarding false report.
*Report made without her permission.
[My father] told me to say [the appellant] touched you.
109 ts 168.
110 ts 168 - 169.
111 ts 169.
112 ts 165.
113 ts 165.
114 ts 165.
-- 26 of 34 --
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JUDGMENT OF THE COURT
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Talking with [my father] he asked me [where] [the appellant] touched
me. I told him the stomach, hip. He twisted my words and said he
touched me inappropriately and said he was reporting it to CPFS.
I am [sensitive] to touch when I don't expect it so I said 'What are you
doing'.
It wasn't in any inappropriate areas. [My father] manipulated me into
thinking it happened.
I only spoke with Nana about the case.
After the case [my father] was very nasty to me and said mean things to
me.
During the trial I was scared if I told the truth [my father] would be
upset with me as I was living with him.
It wasn't sexual touching in any way.
[My father] hates [the appellant] and [believes] he caused the break up.
[My father] wanted to look for proof.
He looked through my phone.
[My father] manipulated me.
[My father] told me to say these things in interview.
I don't think it was in a sexual way.
I feel safe with Nana and I have a chance to think about it.
129 The complainant's subsequent affidavit sworn 22 September 2025
relevantly states:
5. I live with my grandmother, …
…
7. [My father] hated [the appellant], and he believed that [the
appellant] was responsible for the breakup in the relationship
between him and my mother.
…
9. … Sometimes I would have to stop talking about the fun time I
was having with Mum and [the appellant] because [my father]
would not respond positively. I can't remember exactly what
-- 27 of 34 --
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Page 28
[my father] would say, but it would sometimes make me feel
uncomfortable, so I would stop talking about it.
10. In my conversations with [my father], I told him that after mum,
[the appellant], and I were doing fun stuff together as a family, I
would sometimes watch TV with [the appellant] on the couch.
Sometimes I would cuddle up to [the appellant] while we were
both sitting on the couch. During those times, I would cuddle
up to [the appellant] on the couch, it was usually because it was
late and I was feeling tired.
11. When I was on the couch watching TV with [the appellant], my
mum was in her bedroom on her bed with her laptop, and from
there she could still see me and [the appellant] sitting on the
couch. I would lie down on the couch on my side and rest my
head on [the appellant's] knee. [The appellant] would
sometimes rest his hand and arm on my waist above my hip on
top of my clothing. [The appellant's] hand was never placed
anywhere else on my body where I would feel uncomfortable.
If [the appellant] were to place his hands on a part of my body
that would cause me to feel uncomfortable, I would tell him to
stop, and he would do as I said.
12. In the days before 29 November 2022, [my father] asked me
about any touching between me and [the appellant]. There had
never been inappropriate touching from [the appellant] but [my
father] manipulated me into thinking otherwise. I can't
remember exactly what words [my father] used when he spoke
to me, as it was three years ago, and I don't want to say anything
that is not true. The impression I remember of [my father's]
response to me after I was speaking to him about snuggling on
the couch is that he twisted my words to say that [the appellant]
touched me inappropriately. [The appellant] did not touch me
inappropriately, but [my father] told me that he was going to
report it to the CPFS.
13. On 29 November 2022, [my father] took me to a child witness
interview with the Police in which he reported that [the
appellant] had indecently touched me. Before the interview,
[my father] told me what I had to say to the Police about [the
appellant].
14. [My father] told me that I had to tell the police that [the
appellant] had touched me on my chest, bottom and private
parts. [The appellant] did not touch me in any of those areas. I
told the police what [my father] had told me to say because I felt
threatened and did not want [my father] to be angry with me and
call me names, like calling me a retard. There have been times
when [my father] has been so angry with me that he has told me
to go and kill myself.
-- 28 of 34 --
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JUDGMENT OF THE COURT
Page 29
15. On 14 June 2024, at the pre-recording of my evidence, I was
scared that if I told the truth, that there had been no
inappropriate or sexual touching, [my father] would be upset
with me because I had been living with him since
November 2022.
16. To be clear, [the appellant] has never touched me in any sexual
or inappropriate way, and the allegations and charges of which
[the appellant] was convicted after his trial are untrue. [The
appellant] did not touch me on my breast, bottom or near my
vagina, nor touch my toes in any indecent or inappropriate way.
130 After explaining that she contacted a kids' helpline to seek advice,
the complainant continued:
19. When I realised that the kid's helpline could not help me, I
called my mum and told her about everything [my father] had
done to me and pressured me to say about [the appellant].
20. It was then later arranged for me to leave [my father's] house
and move in with my grandmother, … .
21. On 2 May 2025, I had an interview with the investigating police
officer, Hayley Ann Robinson, and explained that my evidence
in this matter was not the truth and that [my father] had
manipulated me into making the false allegations.
Disposition
131 The complainant's evidence in her child witness interview and
pre-recording constituted the entirety of the evidence in the prosecution
case going to prove that the alleged sexual offending occurred. There
was no other eyewitness evidence as to any of the alleged offences, and
no alleged admissions of guilt by the appellant.
132 There was the series of Instagram messages on the complainant's
mobile phone,115 but that was led for the narrow purpose identified in
[62] above.
133 The evidence of the complainant's father constituted 'recent
complaint' evidence, that is to say evidence that his daughter had told
him of the incidents. Such evidence is an exception to the hearsay
rule116 provided the complaint is voluntary and 'recent'.117
115 Exhibit 6.
116 Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769 [4] (Gaudron & Gummow JJ).
117 SPW v The State of Western Australia [2012] WASCA 41 [51] - [57] (Buss JA, with whom Pullin &
Mazza JJA agreed).
-- 29 of 34 --
[2026] WASCA 87
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134 The purpose of such evidence, if it is not led as merely part of the
narrative, is as evidence of consistency of conduct on the part of the
complainant, which consistency, if demonstrated, buttresses her
credibility.118 In this case the evidence was also of use to the defence
case; the appellant's counsel made use of the evidence to suggest that
the complainant's father had instigated and driven the complaint, and
perhaps encouraged exaggeration of innocent events out of an
entrenched hostility toward the appellant.
135 But, in any event, recent complaint evidence does not constitute
evidence of the acts about which complaint is made.119 And, within the
context of this appeal, to the extent that the father's evidence of recent
complaint buttressed the evidence given by the complainant at trial,
which is now recanted, that buttressing evidence came from the very
person who is now said by the complainant to have manipulated her
into making 'false' allegations.
136 The complainant's evidence in her interview and pre-recording, if
accepted as honest and reliable as to the acts complained of, was the
basis of the four charges against the appellant. If accepted, and if the
jury was satisfied that each proved touching was deliberate and
indecent, that evidence established the guilt of the appellant. Clearly,
the jury was so satisfied.
137 It is now known that the complainant has recanted her allegations,
and she has not since withdrawn her recantation.
138 Her affidavit is the obvious starting point, given that she has sworn
to its contents, whereas it does not appear that she was shown
Detective Robinson's notes and asked to confirm their accuracy. Given
the impact of the affidavit, as detailed below, it is unnecessary to also
analyse the notes.
139 The affidavit, relevantly reproduced at [129] - [130] above, raises
a number of questions which cannot be resolved in the absence of the
complainant testifying and being subjected to cross-examination before
this court.
140 Paragraph [11] of the affidavit asserts that the appellant's hand was
never placed anywhere else on the complainant's body (other than her
waist above her hip) where she would 'feel uncomfortable', yet she
118 SPW [67] - [68].
119 SPW [50].
-- 30 of 34 --
[2026] WASCA 87
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continues that, if the appellant 'were to place his hands on a part of my
body that would cause me to feel uncomfortable, I would tell him to
stop, and he would do as I said'.
141 That statement rather suggests that there have been times when the
appellant has touched her in a way which made her feel uncomfortable
and has desisted at her request, consistent with her evidence at trial.
142 As to par [12] of the affidavit, in which the complainant asserts
that her father 'manipulated' her into thinking that she had been
inappropriately touched, the complainant does not explain whether her
father persuaded her that the touching she had described to him was
inappropriate, or whether he had persuaded her, firstly, that she had
been touched and, secondly, that the touching was inappropriate. The
complainant says that she cannot recall what words her father used to
manipulate her.
143 As to par [14] of the affidavit, the complainant says that her father
told her that she had to tell the police that the appellant had touched her
on her chest, bottom and private parts and that she did so, despite the
appellant never having done so. She says she did so because she felt
'threatened'. It is difficult to reconcile that claim with her claim in
par [12] that she had been 'manipulated' her into thinking that she had
been inappropriately touched.
144 The qualification 'inappropriately' is noteworthy in pars [15]
and [16] of the affidavit, to the effect that the complainant now says
there had been no inappropriate or sexual touching. That qualification
lends an ambiguity to the statements and begs the question of whether
the touching occurred, or not.
145 If the touching occurred as described by the complainant in her
interview and her pre-recording, the question of whether each touching
was indecent was for the jury to decide, not the complainant. A child
may well lack the mature understanding of touching which is low on
the scale of seriousness, but still sexual in nature.
146 Had the facts of the offences alleged at trial been more serious,
involving very blatant touching under clothing or even sexual
penetrations, there could be no scope for the ambiguity which we see in
the complainant's affidavit. There could be no possibility of allowing
that such acts had occurred, but not in an inappropriate or sexual way.
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147 As against those ambiguities, in par [14] of her affidavit the
complainant asserts that her father told her 'that I had to tell the police
that [the appellant] had touched me on my chest, bottom and private
parts' and that the appellant 'did not touch me in any of those areas'.
That is the clearest assertion that the touching did not occur at all.
148 Paragraph [16] also states that 'the allegations and charges' of
which the appellant was convicted 'are untrue' and, in par [21], the
complainant refers to her father having 'manipulated' her into making
the 'false allegations'. Those references are more suggestive of an
assertion that she was not touched as she claimed in her evidence at all.
149 These are matters which could readily be addressed by
cross-examination of the complainant before this court. The State
reasons, however, that if it were to now cross-examine the complainant
before this court, it may be assumed that she would adhere to the
retraction of her allegations and maintain that, at the pre-recording, she
was scared to tell the truth 'that there had been no inappropriate or
sexual touching'.
150 On that assumption, which is reasonable, the State concedes that
the unavailability of the fresh evidence in the trial has given rise to a
miscarriage of justice due to the significant possibility that a jury,
acting reasonably, would have acquitted the appellant had the fresh
evidence been before them.
151 The likelihood is that any issues which we see with the affidavit
would resolve in favour of the appellant. Even if they did not resolve
convincingly, however, it must be accepted that, had this evidence been
before the jury at trial, there is a significant possibility that the jury,
acting reasonably, must have had a reasonable doubt as to the
appellant's guilt and returned verdicts of not guilty.
152 In the absence of the complainant testifying and her recantation
being shown to be false, or so implausible that this court should
positively reject it, the significant possibility that a jury would at least
be left with a reasonable doubt about the appellant's guilt must be
accepted.
153 It was common ground that the State's concession does not require
this court to reach a finding that the complainant gave false evidence at
the trial. In the absence of the complainant testifying before this court
as to the recanting of her evidence, this court cannot make that
assessment.
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154 Nor does the State's concession require this court to make a
finding that the complainant's father 'manipulated' her by some means,
or pressured her to exaggerate her account. The complainant was
cross-examined to that effect at her pre-recording, and denied that her
father had done so.
155 Mr Burton also denied during cross-examination at trial that he
had seen or heard 'anyone' tell his daughter that she should make up
some sexual allegations or exaggerate things. He can hardly be
criticised for reporting her allegations to the police, if she told him
those things as both she and he described at trial.
156 In conceding the appeal, the State is not conceding that her father
exerted any improper influence over the complainant in relation to her
allegations. In deciding to not insist upon the complainant being called
to testify at the appeal, the State has also necessarily abandoned the
idea of calling further evidence itself, including from the complainant's
father. The State could not call those further witnesses in the absence
of cross-examining the complainant. And so this court has not had the
opportunity to assess the evidence of any of the witnesses.
157 The factual scenario facing the court in this case is very different
to that of the case of ARK, where there was significant other evidence
in the prosecution case pointing towards guilt, including several
admissions, and every reason to doubt the veracity of the recantation,
including its inherent implausibility.
158 It is also very different to the situation in Re Gam, where the
complainant copied a very minimal and pre-scripted statutory
declaration recanting her trial evidence, which was accepted by her
mother who wrote the script, which the complainant promptly and
convincingly retracted, reverting to her trial evidence.
159 The recantation by the complainant of her evidence in her
interview and pre-recording is capable of belief, and has not itself been
recanted.
160 There is a further, and important, aspect influencing the State's
concession. The complainant is still only 16 years of age. In addition,
the State informs the court that she has significant mental health issues,
including a history of self-harming and is 'vulnerable'. It is unnecessary
to give further details here of the personal challenges the complainant
faces.
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161 The State considers it not to be in the public interest for the
complainant to be required to testify and be subjected to
cross-examination, especially when the State considers its prospects of
successfully undoing the impact of her recanting affidavit to be remote.
162 To that we add that the sentence imposed, namely a total effective
sentence of 18 months' imprisonment, suspended for a term of
12 months, expired two days before the hearing of this appeal. The
sentence imposed reflected the level of seriousness of the described
incidents, as being at the low end of the scale of seriousness.
163 The setting aside of convictions entered following a trial by jury
on the basis of a witness recanting his or her evidence post-trial, when
there is no suggestion that the trial was otherwise unfair, is unusual.
164 The impact of the complainant's affidavit on the convictions,
however, coupled with the priority which the State has placed upon the
mental and emotional welfare of the child complainant in not seeking to
cross-examine her, made the concession appropriate in the
circumstances of this case.
165 We accept the State's concession as having been appropriately
made. The State conceded that there could be no question of a retrial,
which follows from the reasons above.
166 We also accept that, in those circumstances, the appropriate orders
were to grant leave to appeal, allow the appeal and set aside the
convictions and sentence and substitute judgments of acquittal. Once
the convictions were set aside, any reporting conditions pursuant to the
Community Protection (Offender Reporting) Act would also fall away.
I certify that the preceding paragraph(s) comprise the reasons for decision of
the Supreme Court of Western Australia.
NM
Associate to the Hon Justice Sweeney
19 JUNE 2026
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