PATERSON (a pseudonym) -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 64

[2026] WASCA 64 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PATERSON (a pseudonym) -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 64 CORAM : HALL JA ARCHER JA FORRESTER J HEARD : 10 APRIL 2026 DELIVERED : 11 MAY 2026 FILE NO/S : CACR 69 of 2025 BETWEEN : BEVAN DIRK PATERSON (a pseudonym) Appellant AND THE STATE OF WESTERN AUSTRALIA Respondent ON APPEAL FROM: Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : PRIOR DCJ File Number : IND XXX of XXXX Catchwords: Criminal law - Appeal against conviction - Indecent dealing - Whether verdict on count 2 unreasonable or unsupported by the evidence - Adequacy of trial judge's direction on indecency -- 1 of 17 -- [2026] WASCA 64 Page 2 Legislation: Nil Result: Application for an extension of time within which to appeal refused Leave to appeal refused Appeal dismissed Category: B Representation: Counsel: Appellant : H W Glenister Respondent : T B L Scutt Solicitors: Appellant : William Gerard Legal Pty Ltd Respondent : Director of Public Prosecutions (WA) Case(s) referred to in decision(s): Agnew v The King [2024] NSWCCA 5 Fitzgerald v The State of Western Australia (No 2) [2025] WASCA 99 HTD v The State of Western Australia [No 2] [2019] WASCA 39 Huynh v The Queen [2013] HCA 6; (2013) 87 ALJR 434 Kalbasi v The State Western Australia [2018] HCA 7; (2018) 264 CLR 62 M v The Queen (1994) 181 CLR 487 ONQ v The State of Western Australia [2026] WASCA 5 R v ZT [2025] HCA 9; (2025) 281 CLR 137 -- 2 of 17 -- [2026] WASCA 64 JUDGMENT OF THE COURT Page 3 JUDGMENT OF THE COURT: Overview 1 A jury found the appellant guilty of indecently dealing with his two daughters when they were under the age of 13 years. He received a total effective sentence of 2 years 2 months' imprisonment. 2 The appellant appeals against his conviction on two grounds. By ground 1, he contends that the judgment of conviction on count 2 (indecently dealing with his elder daughter by putting her hand on his genital area) was unreasonable or unsupported by the evidence. Ground 2 alleges that the learned primary judge failed to adequately direct the jury in relation to the element of indecency. 3 For the reasons that follow, we would dismiss the appeal. 4 It is convenient to begin with ground 2. Ground 2 - Were the directions about the element of indecency inadequate? 5 By ground 2, the appellant alleges that the learned trial judge failed to adequately direct the jury in relation to the element of indecency. During the hearing of the appeal, the appellant withdrew one of the particulars of this ground. What remained was the appellant's contention that the learned primary judge failed to direct the jury that, for an act to be indecent, it must be unbecoming or offensive to ordinary standards of propriety and have a sexual connotation. The prosecution case 6 The appellant was charged with two counts of indecently dealing with his elder daughter and one count of indecently dealing with his younger daughter, contrary to s 320(4) of the Criminal Code (WA). We will refer to the appellant's elder daughter as 'Nina', and to his younger daughter as 'Claire' (not their real names). Nina was born in November 2001, and Claire was born in January 2006. 7 The prosecution called four witnesses at trial: Nina and Claire, their mother (and the appellant's wife), and the investigating officer, Detective First-Class Constable Marie Brown. 8 Nina's evidence consisted of oral evidence pre-recorded on 26 February 2024. -- 3 of 17 -- [2026] WASCA 64 JUDGMENT OF THE COURT Page 4 9 Claire's evidence consisted of two child witness interviews conducted in September 2020 and September 2023, and oral evidence pre-recorded on 23 February 2024. 10 The recordings of their evidence were edited by consent. Counts 1 and 2 - Nina 11 Between 2011 and 2015, the period of the alleged offending, the appellant lived with his wife and their two daughters. Their family home was a four-bedroom house with a theatre room and a study. 12 The appellant was a fly-in/fly-out worker on a roster of two weeks on and one week off. 13 Nina's evidence was that, when she was between the ages of 10 and 12, she started sleeping in the spare room with the appellant when he was home because he would invite her into his room and offer her massages.1 She would enter the room dressed and then undress for bed.2 When undressed, she would be wearing her underwear and no shirt.3 She undressed herself so that some parts of her body could be exposed for the massages.4 Nina also felt most comfortable in her underwear when she was going to sleep.5 14 At the time of the offending in counts 1 and 2, Nina was in the spare room with the appellant. She was wearing her underwear. Nina could not see what the appellant was wearing because the lights were off.6 15 Nina said that, on this occasion, the appellant asked her to get on the bottom of the bed with her head oriented towards the top of the bed. She climbed onto the bed on her hands and knees. The appellant asked her to stretch her arms out and lower her head so that her bottom was higher than her head. Nina did this, and the appellant positioned himself standing behind her. Nina said that the appellant then massaged her by rubbing her back and her buttocks for about 15 minutes (count 1).7 1 BGAB 25 - 27. 2 BGAB 29. 3 BGAB 27 - 28. 4 BGAB 29. 5 BGAB 27 - 28. 6 BGAB 29. 7 BGAB 29 - 30. -- 4 of 17 -- [2026] WASCA 64 JUDGMENT OF THE COURT Page 5 16 Nina said that the appellant then asked her to massage his thigh. The appellant got on the bed under the sheets and lay on his back. Nina lay on her side next to him and began massaging his thigh. The appellant grabbed her wrist and slowly moved it higher towards his penis. Nina felt bare skin in the area which would normally be covered by underwear, and she said she thought she had touched his testicles or maybe his penis. She pulled her hand back (count 2).8 17 When Nina pulled her hand back, the appellant let go of her wrist. Nina then continued to massage his lower thigh for around 10 minutes, and she then fell asleep.9 18 When Nina awoke the next morning, the appellant told her not to tell her mother and to keep it a secret between them. After the incident, Nina realised that what the appellant was doing was wrong and she did not sleep in the spare room with him again.10 Count 3 - Claire 19 Count 3 alleged that the appellant indecently dealt with Claire when she was aged 7 or 8 years on an occasion where they were both in the theatre room. 20 It occurred on the morning of a day that Claire and her mother were going to go to the beach. Before they were to go, the appellant was in the room with Claire. He took off her clothes, and she was naked for a while before he dressed her in her bathers. 21 The appellant sat Claire on the couch and told her to grab his penis. She refused, and he said, 'Just do it'. She picked his penis up in her hand through his clothing, and he told her to start moving her hand around. She then stopped and left the room. Before she left the room, the appellant told her not to tell her mother what had happened.11 Defence case 22 The defence case at trial was that the appellant did not act in the manner alleged and that none of the offences occurred. 23 The appellant elected not to give evidence at trial. However, his interview with the police was tendered by the State as part of its case. 8 BGAB 31 - 33. 9 BGAB 32 - 33. 10 BGAB 33 - 34. 11 BGAB 155 - 157. -- 5 of 17 -- [2026] WASCA 64 JUDGMENT OF THE COURT Page 6 In the interview, the appellant denied the offences. He also repeatedly denied having ever shared a bed with either child, having ever massaged Nina at all, having ever helped Claire to get changed in the theatre room, or having dressed or undressed either child after the age of 18 months.12 24 In cross-examination of Nina, defence counsel put to Nina that she had never slept in the appellant's room. Defence counsel also put to Nina that the appellant had never given her a massage, had never asked her to give him a massage, and had never moved her hand upwards towards his groin area.13 25 In cross-examination of Claire, defence counsel put to Claire that the appellant had never asked her to touch his penis and that she had never touched his penis.14 26 The defence did not dispute at trial that the charged acts, if they had in fact occurred, were indecent. Indeed, in opening, defence counsel told the jury it could 'cross indecency off the list'.15 In closing, defence counsel told the jury that the sole 'live' question was whether the appellant had committed the acts at all.16 The meaning of 'indecent' in the context of an indecent dealing offence 27 The appellant in HTD v The State of Western Australia [No 2]17 had been charged with three counts of indecent dealing. In relation to count 1, he admitted the alleged conduct, that of massaging a child's buttocks, but claimed it had been done for therapeutic reasons. He denied the conduct alleged in counts 2 and 3. HTD was convicted of count 1 and acquitted of counts 2 and 3. On appeal, HTD contended that the trial judge ought to have directed the jury that, in order to be satisfied of the element of indecency in count 1, it needed to be satisfied that HTD had a sexual motivation for what he did, and the jury could only reach that conclusion if it was satisfied that it was the only reasonable inference to be drawn from the evidence.18 12 BGAB 210 - 211, 215 - 216, 223 - 225, 240. 13 BGAB 57 - 58. 14 BGAB 122. 15 Trial ts 178 - 179. 16 Trial ts 270. 17 HTD v The State of Western Australia [No 2] [2019] WASCA 39. 18 HTD [67], [83]. -- 6 of 17 -- [2026] WASCA 64 JUDGMENT OF THE COURT Page 7 28 Mazza and Beech JJA endorsed the directions given by the trial judge in that case, which were as follows:19 The third element the State must prove then is that the dealing was indecent. Now, something is indecent if it is unbecoming or offensive to common propriety. Now, this term doesn't have any definite or fixed legal meaning. A touching which is sexual and which contravenes a right thinking person's standards can be indecent. It's determined by the context of the act in light of the time, place and circumstances. Now, the State case here suggests that either [the accused] did in fact have some kind of sexual motivation or sexual curiosity for doing what he did and if you were satisfied beyond reasonable doubt of that then that would plainly have a bearing on whether the acts were indecent or not. Sometimes a sexual motive can turn what would otherwise be a seemingly innocent act into an indecent one. But the State doesn't have to prove a sexual motive in order to prove the element of indecency. Sometimes in some cases the motivation or reason for doing the act doesn't have to enter into the question as to whether the act was indecent. If the act itself is so blatantly, so obvious - so obviously indecent then motivation may not matter. Let me give you an example. It's possible to - to commit an indecent act or an indecent dealing - indecent dealing with the idea that it was a joke. So plainly there was no sexual motive but nonetheless depending on context, time, circumstances and other matters, it may nonetheless fall within the category of indecency. Now, in this case, [defence counsel] doesn't say that the kinds of acts alleged in counts 2 and 3 would not be - would not be indecent. That is, [defence counsel] doesn't accept that such acts took place or that the evidence establishes that they did, but acknowledges that if you are satisfied beyond reasonable doubt that they had occurred, you would be entitled to conclude that acts of that kind in the circumstances alleged are rightly described as indecent. In those circumstances you'd have no difficulty finding that element proved if you were satisfied that the acts alleged occurred for counts 2 and 3. So it's the dealing itself that is really the issue for counts 2 and 3. With respect to count 1, [the accused] admitted touching [E's] buttocks. [Defence counsel] says look at the context. He says you're entitled to accept that this was a proper therapeutic massage and so a touching of the child's naked buttocks, which in another context you might conclude was indecent, here has an innocent character or at least you can accept that, he said, as a reasonable possibility. 19 HTD [73] - [74], [89]. -- 7 of 17 -- [2026] WASCA 64 JUDGMENT OF THE COURT Page 8 The trial judge's directions in relation to indecency 29 The adequacy of the trial judge's directions on indecency must be assessed in the context of what was in issue at trial. Whether the alleged acts, if committed, were indecent was not in issue in this case. 30 Earlier in the learned trial judge's directions, his Honour referred to indecency in the context of his direction on drawing inferences. His Honour said (emphasis added):20 So why am I talking to you about inferential reasoning in this case? This case relies, of course, on direct evidence. [Claire] said this, [Nina] said that, [Mr Paterson] told the police this and that. But in this case, the State says an inference to be drawn is the way [Mr Paterson] acted towards [Nina] and [Claire] in the various incidents, the subject of the three charges on the indictment, had a sexual connotation. So the way he touched them, or got them to touch him, and I pause there, because [Mr Paterson's] position is, "I didn't touch them in the first place". And you'll understand this a bit more when I tell you about what an indecent dealing involves. But the State says if you are satisfied those acts occurred, for example, massaging the buttocks, to use the count 1 in the circumstances, you could then infer in all the circumstances they had a sexual connotation, so they're indecent. 31 Later, the learned trial judge directed the jury as to the elements that the State needed to prove. As to the element of indecency, the learned trial judge told the jury that, while the element of indecency was not in dispute, it was nevertheless a matter for the jury.21 His Honour said (emphasis added):22 The State must prove that the accused indecently dealt with the named child. So if there was a dealing, so if you find element 2 proved, it needs to be indecent dealing. Something is indecent if, in all of the circumstances on which it occurred, it is unbecoming or offensive to common propriety. Now, an act which is sexual and which contravenes a right-thinking person's standards, can be indecent. An act to a child which is unbecoming, or offensive to common propriety, and which contravenes a right-thinking person's standards is indecent. If I was changing - if I had a baby, and I was changing my baby's nappy, by wiping the baby's bottom, I don't think you'd find that was indecent, in the circumstance. For an act towards, or involving, a child to amount to indecent dealing, as I said, must have been deliberately done. 20 Trial ts 308. 21 See trial ts 317. See also trial ts 184 and 298. 22 Trial ts 316 - 318. -- 8 of 17 -- [2026] WASCA 64 JUDGMENT OF THE COURT Page 9 But in the context of this case, you must decide whether the acts alleged by the State happened, first. So the bits at the end of each count, as described by the child, whether it be [Claire] or [Nina]. And then, if you find in relation to the count that you're considering the act occurred, if you find that, whether that act has a sexual character. And that is something to be judged by you, in all of the circumstances, taking a look at the context in which the act or conduct occurred. So that's to be viewed in light of all the circumstances, including the location, time of day, the part of body touched or towards which the act is directed, the nature of the conduct, the situation it occurred, and whether there was any words or gestures accompanying the act or the touching. So indecency must always be judged in light of time, place and circumstance. Now, in relation to this third element, it's a matter for you, but the jury are required to set the standard of what constitutes an indecent dealing in the context of this particular trial. But [defence counsel] told you on Monday, so she acts for [Mr Paterson], if, and only if, you're satisfied beyond reasonable doubt each of these three acts occurred, you'll probably find them to be indecent. So element three, the indecency element, is not really in issue, or context, in this trial. 32 In summarising the closing addresses, the learned trial judge noted that the State 'says to you that each of those counts in the way [Nina] and [Claire] described the dealing, had a sexual nature to it'.23 Was the direction on indecency inadequate? 33 The appellant submits the direction was inadequate because the learned trial judge failed to direct the jury that, for an act to be indecent, it must be unbecoming or offensive to ordinary standards of propriety and have a sexual connotation. 34 The appellant submits that there was no clear direction that the act had to have a sexual connotation to be indecent.24 The appellant submits:25 The learned trial judge came closest to making such a direction by directing 'an act which is sexual, and which contravenes a right-thinking person's standards, can be indecent'. (emphasis added) 35 The appellant submits that there is a real risk that the jury understood that it was sufficient if the dealing was unbecoming or offensive to ordinary standards of propriety.26 23 Trial ts 320. 24 WAB 14 - 15 [29], [31]. 25 WAB 15 [31]. -- 9 of 17 -- [2026] WASCA 64 JUDGMENT OF THE COURT Page 10 36 We do not accept this. The learned trial judge told the jury that the first thing it had to decide was whether the alleged acts had occurred. His Honour expressly told the jury that, if it was satisfied that an alleged act had occurred, it would need to decide whether that act had a sexual character. 37 This is sufficient to dispose of ground 2. However, we make three further observations. 38 First, the word 'can', which the appellant emphasises, was contained in the direction given by the trial judge in HTD, in a case in which the critical issue was whether the admitted touching was indecent, and the direction was endorsed by this court. In our view, having regard to the context, 'can' was used in that direction to mean 'will'. 39 Second, the learned trial judge in this case had also referred to the requirement that there be a sexual connotation in his Honour's inference direction. His Honour told the jury that he was directing it about inferential reasoning because the State alleged that the way the appellant acted towards his daughters had a sexual connotation and that, if the jury was satisfied that the acts occurred, it could then infer in all the circumstances that they had a sexual connotation, so they were indecent.27 40 Third, the defence did not dispute at trial that, if the alleged acts had occurred, they would have been indecent. It will rarely, if ever, be a miscarriage of justice for a trial judge not to direct a jury about an element of an offence that is not in dispute in the trial.28 41 For these reasons, we would refuse leave to appeal on ground 2. Ground 1 - Was the verdict of guilty on count 2 unreasonable or unsupported by evidence? Legal principles 42 The legal principles governing this court's task in determining whether a conviction is unreasonable, or could not be supported, are 26 WAB 15 [31]. 27 Trial ts 308. See also trial ts 184. 28 Kalbasi v The State Western Australia [2018] HCA 7; (2018) 264 CLR 62 [149] (Edelman J), and see also [58] (Kiefel CJ, Bell, Keane & Gordon JJ). See also Huynh v The Queen [2013] HCA 6; (2013) 87 ALJR 434 [31] - [32] and Agnew v The King [2024] NSWCCA 5 [45] - [48] (Price J, with whom Lonergan & Dhanji JJ agreed). -- 10 of 17 -- [2026] WASCA 64 JUDGMENT OF THE COURT Page 11 well established. The principles were recently discussed by the High Court in R v ZT.29 43 The appellate court is required to ask itself 'whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'.30 44 In essence, a two-step process is required. The first step requires the court to ask whether, on an examination of the record, it has a reasonable doubt as to the appellant's guilt, by reason of inconsistencies, discrepancies or other inadequacies, or in light of other evidence. If so, the second step requires the court to ask whether, after paying full regard to the advantages enjoyed by the jury, the jury should have shared that doubt.31 Because it is the jury which is primarily responsible for determining whether an accused has been proved guilty, an appellate court will only set aside a conviction if both questions are answered 'yes'. 45 Differently framed, the central question is whether the assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt, and that doubt remains even after full allowance is made for the advantages enjoyed by the jury.32 46 Ground 1 alleges that the verdict of guilty on count 2 was unreasonable or unsupported by evidence, and is particularised as follows: a. The State's case was that the Appellant had grabbed [Nina's] wrist and placed her hand onto his genital area. b. The only evidence tending to prove this fact was the evidence of [Nina]. c. [Nina's] evidence was equivocal as to whether her hand had been placed onto the Appellant's genital area and incapable of satisfying the jury beyond reasonable doubt of the same. 47 As the particulars make clear, the appellant does not challenge the jury's acceptance of Nina as a credible and reliable witness. The only challenge is as to what her evidence was. The appellant contends that 29 R v ZT [2025] HCA 9; (2025) 281 CLR 137 [7] - [10], [15], [53] (Gageler CJ, Gleeson, Jagot & Beech-Jones JJ). See also ONQ v The State of Western Australia [2026] WASCA 5 [170] - [177]. 30 R v ZT [7], citing M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson & Toohey JJ). 31 See M v The Queen, cited in R v ZT [7] (Gageler CJ, Gleeson, Jagot & Beech-Jones JJ). 32 Fitzgerald v The State of Western Australia [No 2] [2025] WASCA 99 [93]; R v ZT [53] (Gageler CJ, Gleeson, Jagot & Beech-Jones JJ). -- 11 of 17 -- [2026] WASCA 64 JUDGMENT OF THE COURT Page 12 Nina did not give unequivocal evidence that she had touched the appellant's genital area. 48 In light of these particulars, we are required, as the first step, to decide whether we are left with a reasonable doubt as to whether Nina's evidence was that her hand touched the appellant's genital area. Nina's evidence as to what she touched (count 2) 49 Nina's evidence as to what she had touched relevantly to count 2 was as follows:33 All right. And what happened next? - - - He instructed me to massage his thigh. All right. And what did you do? - - - I started massaging his thigh and he - - - Well, so it sounds like a silly question, perhaps, to you, [Nina], what did you use to massage his thigh? - - - My - my hand. All right? - - - And - - - Then what happened? - - - He - he instructed me to massage my - his - his thigh, then he slowly moved it towards higher. And - - - All right. So when you say, 'he moved it higher', how did that happen? - - - He grabbed my wrist. All right. And what happened? - - - And at the time, he moved my hand higher and I pulled back because I thought I - I realised that he wasn't wearing any pants. All right. And when you say you pulled back, what - what happened? - - - I - I felt that his thigh was [bare34]. Yes. And then what happened? - - - I thought I grabbed possibly his - his testicle or his - I - I'm unsure of what I grabbed, because it was under the blankets. Yes? - - - But I felt his thigh [bare] where his underwear would have been. Okay. So you're gesturing there that you're talking - you're - where did he gesture, what part of your body did he gesture at? - - - My - where my - where my hips are, so when you - so I was moving up, and I felt 33 BGAB 31 - 33. 34 It was common ground that the transcript was erroneous, and that the witness had said 'bare'. -- 12 of 17 -- [2026] WASCA 64 JUDGMENT OF THE COURT Page 13 the skin bare, and I thought I touched what could have been - so - and - - - What - what did you think you'd touched? - - - His testicles or maybe his penis, but I pulled back. All right. So when that happened, was any - you - you've said that you were touching an area that you - you felt was - - - ? - - - Bare. - - - bare, and upper sort of your hip area, what you've described as your hip area, yes? - - - Yes. Was any other part of his body touching yours at that time? - - - Well, his hand was. All right. So where was his hand in relation to your hand? - - - On my wrist. All right. So holding your wrist, you say? - - - Yes, guiding me towards - guiding - guiding me higher towards the hip. All right. So your evidence earlier was that you - I think your evidence was that you pulled away? - - - Yes. I - I was disturbed because I felt that the skin was bare. All right. But as - as a result of the wrist resistance that you gave, did any - did you cease contact with him or did you - - - ? - - - Yes. I - I - I - I - I assumed that I touched something. All right. No, that's not - just listen to the question. You've said that you tried to - you - that you pulled away. And you've also said that your hand was going higher. So in terms of your - of [the appellant's] hand touching your hand, did that hand stay in contact with your hand, or did it break contact? - - - When I resisted - - - Yes? - - - When I pulled back, he let go and I continued massaging. Where did you continue massaging? - - - His thigh. Whereabouts on his thigh did you continue massaging? - - - His lower thigh. His lower thigh, all right. So I just want to get your evidence clear, [Nina]. You're saying that he had his hand on your hand, and you had your hand on his thigh. Then he had - and then he had his hand on your wrist, is that right? - - - So at the - at the start when I started massaging him, he had - he had moved my hand up towards his penis. All right. And your hand - so his hand was on yours - - - ? - - - But before - before I could - I resisted because I felt the bare skin - - - -- 13 of 17 -- [2026] WASCA 64 JUDGMENT OF THE COURT Page 14 Yes? - - - - - - before I could - but I - what I'm trying to say is that before I - I - I - I assumed I felt something because I felt something bare. Yes? - - - So it was skin. Yes? - - - So what I'm saying is that when I was under the sheets, I couldn't - I - it was when I was moving towards his higher up where his hip is, I realised that he wasn't wearing underwear. Yes? - - - And that's when I resisted. Okay. And when you resisted, did his hand stay connected to your hand or did it stop being connected to your hand? - - - It breaked. Okay. And did there - was there any resumption of his hand connecting to your hand? - - - Can you - can you - - - Yes. I'll say that again. So did his hand touch your hand again in that incident? - - - Well, he directed me more. He directed me back to the thigh. All right. To where on your - to which part of the thigh did he direct you? - - - Back down. So he directed your hand back down the thigh, did he? - - - Yes. All right? - - - After - after - you know, the fact that it could have - which at - at the time I wasn't - I was unsure of what I had touched, and I - - - All right. Now, after that incident, moving away from that incident - actually, after that - after that massaging of the thigh, you've gone down to massaging his thigh, how long did you then continue to touch his thigh? - - - Around 10 minutes. 50 In cross-examination, Nina agreed that her evidence was that the appellant 'led [her] hand up towards his groin area'.35 51 Nina expressly disagreed with the propositions put to her in cross-examination that the appellant had never given her a massage, had never moved her hand towards his penis, and had never moved her hand upwards towards his groin area.36 35 BGAB 55. 36 BGAB 58. -- 14 of 17 -- [2026] WASCA 64 JUDGMENT OF THE COURT Page 15 Amendment to indictment 52 The indictment originally particularised the indecent dealing in count 2 as being 'by causing her hand to touch his thigh and move it towards his genitals'. After the pre-recordings, and just prior to the commencement of the trial, the learned trial judge granted a prosecution application to substitute an amended indictment. The amended indictment particularised the indecent dealing in count 2 as being 'by putting her hand on his genital area'. The application was not opposed. 53 Consistent with the amended indictment, the State opened on the basis that, while Nina was massaging the appellant's thigh, the appellant grabbed her wrist and placed her hand onto his genital area.37 Was Nina's evidence equivocal? 54 The appellant asserts that Nina's evidence was equivocal as to whether she made contact with the appellant's genital area. He submits that her evidence about contact with the appellant's penis or testicles was always qualified and essentially amounted to conjecture. He submits that it was therefore not open to the jury to be satisfied beyond reasonable doubt that Nina had touched the appellant's genital area.38 55 We do not accept this. 56 It is true that, as the extract of her evidence shows, Nina said, on two occasions, that she 'assumed' something. However, the extract also shows that Nina struggled to verbalise aspects of what had occurred. In addition, it was common ground that Nina showed evident distaste when giving this evidence. Read as a whole, Nina's statements as to assumptions she had made were related to her inability to identify precisely what part of the appellant's body she had touched. It was dark in the room, and both she and the appellant were under the blankets. She thought she had 'grabbed possibly his - his testicle or his - I - I'm unsure of what I grabbed, because it was under the blankets'. She said she thought that she had touched his testicles or maybe his penis. However, she consistently said that she had touched the appellant's skin, as he lay on his back, in the area which would ordinarily be covered by underpants. Her uncertainty was, in our view, as to what she had grabbed in that area. 37 Trial ts 171. 38 WAB 13 [24] - [25]. -- 15 of 17 -- [2026] WASCA 64 JUDGMENT OF THE COURT Page 16 57 The effect of Nina's evidence was that her hand was moved up the appellant's body from his thigh as he lay on his back, and that she had touched something on his body which was not covered by any clothing, but was in an area which ordinarily would be covered by underwear, and which caused her to recoil. 58 The appellant contends that this would not exclude the possibility that Nina may have touched an area outside the meaning of 'genital area', as it was possible that she touched the area over the hip bone. 59 The respondent submitted that Nina's hand and finger position when giving this evidence suggested that the contact may have been simultaneously with the hip and the genitals. The respondent invited this court to watch that part of Nina's evidence to see how she held her hand and fingers when giving the evidence. In circumstances where the appellant contends that Nina's evidence was equivocal, there was plainly a real forensic purpose for doing so. The only way in which this court could know what the entirety of Nina's evidence was on this point was to watch how she held and moved her hand and fingers when describing how her hand had moved. In such circumstances, it was open to the appellate court to watch the recording,39 and we did so. 60 On the recording, Nina moved her hand upwards, with her palm facing the camera and perpendicular to the floor, and her fingers pointing upwards and spread outwards from her palm.40 Of course, at the time of the offence, Nina was 10 to 12 years old, and would have had a smaller hand than she did at the time of the recording. Nevertheless, even allowing for this, it is difficult to see how her hand, with her fingers spread, moving upwards from the appellant's thigh to the area of his body that would normally be covered by underwear, would not have touched his genital area. In this respect, we observe that the expression 'genital area' is broader than 'genitals'. 61 Further, and in any event, Nina's evidence was that she had 'grabbed' something. This could only have been the appellant's penis or a testicle. 62 Having regard to the totality of the evidence, we are not left with a reasonable doubt as to whether Nina's hand touched the appellant's genital area. Accordingly, we would refuse leave to appeal on ground 1. 39 R v ZT [14] - [21]. 40 MFI B at 10:39:00 - 10:39:15. Timestamp of 21:21 - 21:36. -- 16 of 17 -- [2026] WASCA 64 JUDGMENT OF THE COURT Page 17 Extension of time 63 The last day for the appellant to commence an appeal within time was on or about 27 January 2025. The appeal was not filed until 5 June 2025. The delay has not been adequately explained.41 As there is no merit in either ground of appeal, we would refuse the application for an extension of time within which to appeal. Orders 64 For these reasons, we would make the following orders: 1. The application for an extension of time within which to appeal is refused. 2. Leave to appeal is refused. 3. The appeal is dismissed. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. NC Associate to the Hon Justice Archer 11 MAY 2026 41 See WAB 4. -- 17 of 17 --