Green v The State of Western Australia - [2025] WASCA 76

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   GREEN -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 76
CORAM:   MAZZA JA
MITCHELL JA
ARCHER JA

HEARD:   9 MAY 2025
DELIVERED          :   22 MAY 2025
FILE NO/S:   CACR 78 of 2024
BETWEEN:   JASON ANDREW GREEN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BLACK DCJ
File Number            :   IND 467 of 2021

Catchwords:

Criminal law - Appeal against conviction - Sexual offences - Where complainant gave evidence of the appellant's discreditable conduct - Whether trial judge gave inadequate directions as to the use of the evidence of the appellant's discreditable conduct - Where no realistic possibility that the jury would use the evidence in an improper way - Turns on own facts

Legislation:

Criminal Code (WA), s 321(3), s 323, s 325

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	R G Wilson
Respondent	:	G N Beggs

Solicitors:

Appellant	:	William Gerard Legal
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Banks v The State of Western Australia [2018] WASCA 130
Brawn v The King [2025] HCA 20
Crofts v The Queen (1996) 186 CLR 427
KHA v The State of Western Australia [2022] WASCA 173; (2022) 305 A Crim R 265
Kitto v The State of Western Australia [2019] WASCA 161
Kuc v The State of Western Australia [2021] WASCA 101; (2021) 289 A Crim R 547
LNN v The State of Western Australia [2021] WASCA 39

JUDGMENT OF THE COURT:

Introduction

The appellant was convicted, after trial by jury, of:
(a)five counts of sexual penetration without consent, contrary to s 325 of the Criminal Code (WA) (counts 1 and 3 - 6);
(b)one count of indecent assault, contrary to s 323 of the Criminal Code (count 2); and
(c)one count of encouraging a child of or over the age of 13 years and under the age of 16 years to engage in sexual behaviour, contrary to s 321(3) of the Criminal Code (count 8).
The offending related to three different complainants, and was alleged to have occurred at the appellant's Parkwood house. The appellant was acquitted of a charged offence against a fourth complainant. He was sentenced to a total effective sentence of 13 years' imprisonment in respect of this offending.
The appellant now appeals against his convictions on the sole ground that a miscarriage of justice arose when the jury were directed about the use which could be made, and must not be made, of evidence of certain conduct of the appellant. The evidence to which the ground relates was evidence given by the complainant for count 8, who it is convenient to refer to as KC, of the appellant's possession of six knives and two black toy guns, and a statement made by the appellant to KC about killing people and putting them in his back yard (relevant conduct evidence).
For the following reasons, leave to appeal should be refused and the appeal should be dismissed.

Prosecution case at trial

In broad terms, the prosecution case in relation to counts 1 - 6 was that the appellant knew the two complainants, who were teenage girls, through his activities in dealing illicit drugs. He sexually penetrated them on the occasions the subject of counts 1 and 3 - 6, and touched the breast of the complainant for count 2, without their consent.
The prosecution case in relation to count 8 was that, on 6 September 2019, KC and another of the complainants went to the appellant's house to get drugs. KC was just under 16 years of age at this time. This was the only occasion on which KC went to the appellant's house. The appellant and KC exchanged phone numbers for the purposes of future drug deals. While the three people were sitting on the appellant's bed, the appellant sent text messages to KC's phone, which in effect stated that if KC had sex with the appellant, he would give her a phone, drugs or shoes. KC indicated that she would not do this, and the appellant should leave her alone.

The relevant conduct evidence

The evidence which is the subject of the ground of appeal was given during a child witness interview with KC conducted on 9 June 2020. In that interview, KC had been asked to describe the appellant's bedroom, and gave a description of a big bed, a TV and two speakers, bedside tables and lamps and a sliding mirror. The following exchange then occurred:[1]
[1] Blue/Green AB 180 - 181.
Q. Did you notice anything?
A. Mm. Knives and like guns and stuff.
Q. Knives and guns and stuff?
A. Yeah.
Q. What do you mean?
A. He had like - he had like six knives in his room on this desk thing and then he had like two guns just sitting there in his - on his bedside table with him.
Q. Describe those for me.
A. Um, they were just like toy guns.
Q. Were they?
A. Yeah.
Q. What colour?
A. Black.
Q. Did you see any markings or labels, anything like that?
A. (No audible answer).
Q. And you mentioned some knives - - -
A. Yeah.
Q. - - - on his desk.
A. Yeah.
Q. Well, just describe that to me.
A. Just these like - well, there was different sizes - - -
Q. Mm hm.
A. - - - but there was like one really big one.
Q. Mm hm.
A. And then the rest were kind of small, but like really sharp.
Q. Did he say anything about them?
A. Pardon?
Q. Did he say anything about any of those things?
A. Uh, yeah. He was like - he went on about how apparently he kills people and puts them in the thing in his backyard and like, urn, it goes somewhere, their bodies go somewhere, something like that.
We have viewed the footage of the child witness interview where this exchange occurs, for the purpose of assessing whether the jury might have taken that evidence to be suggesting that KC took the appellant's statement about the appellant killing people and disposing of their bodies in his back yard seriously. At the hearing of the appeal, counsel for both parties accepted that this court could view the video recording for that purpose. KC's demeanour does not suggest that she was frightened by the appellant's statement or took it seriously. Rather, she rolls her eyes as she is speaking and smiles slightly at two points.
In cross-examination during her pre-recorded evidence on 21 January 2022, it was put to KC that she had never been in the appellant's bedroom, which she denied. She was asked to describe the sliding mirror and indicated she was referring to a floor-to-ceiling mirrored wardrobe. She confirmed that the appellant had two bedside tables, one on either side of the bed, and two bedside lamps. She was asked how long she was in the appellant's bedroom, and said it was for about 30 ‑ 40 minutes.[2]
[2] Trial ts 145 - 146.
The appellant's counsel at the pre-recording of KC's evidence then showed her three photographs which counsel suggested were taken by police and were of the appellant's bedroom. Counsel put to KC some differences between the photographed room and what KC had described. KC indicated that the photographed room was not the room she was in with the appellant. Counsel for the appellant then tendered the photographs, which were received as exhibits 4.4 - 4.6.[3] The exhibited photographs depicted two model guns in the room which were plainly not real guns. The photographs did not depict any knives in the room.
[3] Trial ts 146 - 148, 644; colour copies of these photographs are exhibits 4.1 - 4.3.
During the subsequent trial, the trial judge asked counsel about the reference to the guns and knives in KC's child witness interview. The prosecutor indicated that it had no relevance, but he understood that 'defence want things in there for inconsistencies of describing the bedroom' and that the reference was left in because 'the defence wanted it'.[4] The appellant's trial counsel (who was not counsel at the pre-recording) said she was not aware because she did not do the edits, but that:[5]
I don't particularly care about the guns and the colours, because you can see that in the photographs about the description of the room.
[4] Trial ts 538.
[5] Trial ts 539.
The following exchange then took place:[6]
BLACK DCJ: I'm just trying to think of the way to neutralise it in terms of any prejudice to the accused. So how about we just resolve it in this way? Unless either counsel tells me otherwise, I'll tell the members of the jury that the reference to it is really neither here nor there.
They obviously ought not be prejudiced against the accused and the State doesn't say there's anything sinister or untoward about the existence of the plastic gun and the knife. Are you happy with that?
[TRIAL COUNSEL]: I'm happy with that, your - - -
BLACK DCJ: All right.
[TRIAL COUNSEL]: - - - Honour.
BLACK DCJ: So I'll just make sure I include that when I speak to the jury. All right.
[6] Trial ts 539.
Later in the trial, when discussing her proposed directions with counsel before their closing submissions, the trial judge observed:[7]
The guns, knife, killing people, bodies being buried, all of those things [are] all topics that I've noted as we've gone through the trial that came out from various witnesses, so I'm just going to tell the jury to put all those aside.
[7] Trial ts 723.
The prosecutor's closing submissions to the jury made the following point about evidence of the appellant's bedroom:[8]
In relation to [KC] getting the accused's bedroom wrong, you might remember she was shown those photographs, she said, 'That's not the room that I was in'. Well, we don't know if the accused took [KC] into a different bedroom. We also don't know if that's how the accused's bedroom appeared on 6 September 2019.
Now, even if [KC] got the room wrong I'd suggest that that doesn't mean that she's lying. Particularly when you consider she was shown the photographs in black and white mind you some two and a half years after she was in the bedroom. I'd suggest that in those circumstances you could see how she may have incorrectly recalled or remembered what the bedroom looked like.
Now, you might recall [KC] did say that there were guns and knives in the accused's bedroom. Well, if you look at exhibit 4.1 there's a gun up there. I'm not suggesting it's a real gun, it's most likely a toy gun. There isn't an issue about that. There's a gun up there on the air conditioning unit.
When you look at [exhibit] 4.3 there's a wooden type gun as you walk in the door. I'm not suggesting that this is a smoking gun but the point I'm making is that some witnesses are going to get some things wrong and they're going to get some things right with the passage of time.
[8] Closing ts 18.
In contending that the incident the subject of count 8 never occurred, defence counsel submitted to the jury that:[9]
[KC] was never at his house. So she may have gone to his house we may not know. We don't know. But he never - she was never there. And you've also got the evidence of [KC] giving a description of a completely different room or room that could be, you know, Fred, Joe Blow's room. It could be somebody else's, it could be a different house. We don't know.
[9] Closing ts 37.
The trial judge gave the following direction to the jury in relation to evidence of the accused's discreditable conduct:[10]
[10] Trial ts 849 - 850.
But, in essence, members of the jury, as I'm sure by now you know, this trial is fundamentally about you determining whether or not the evidence proves that what the complainants say on each occasion happened. And you will need to give very considerable consideration to the question of consent and what it means in the context of this trial.
You've heard evidence in this trial about the sorts of things that sound discreditable or bad. Things like people supplying drugs to others. The accused, on much of the evidence, appears to be a person who gave drugs to other people, used an illegal drug himself.
…
You heard evidence of the accused being apprehended and got in trouble with the police in relation to the small amounts of methylamphetamine that he was found with.
You've heard about him having smoking pipes. You've heard about him having what appears to be a fake gun, and you heard something about knives. I should just say, the State don't rely on the gun or knives as being remotely relevant to anything the State alleges, to make that clear. You also heard, I think, one of the witnesses talk about the accused having threatened or made threats along the lines of burying bodies in backyards.
All of those matters, members of the jury, are really matters that you've only heard about to give context to the allegations that were made, but I direct you as a matter of law that you should not use any of those matters that I have just referred to as matters that lead you to be prejudiced against the accused or to somehow say, 'Well, we don't really care whether [or] not these girls consented, we just think he was behaving was [sic] disgusting, so he's guilty anyway.'
You must put your moral views on this case to one side. I told you what you need to not leave at the door and take into the jury room. We all have a moral reaction to this kind of trial. We all have personal views about whether grown adults should be providing serious and harmful drugs to young kids, in any event, from troubled home environments. I'm sure all of you would share similar views on that, but those of sort views are not going to help you decide the issues in this case.
We are not a court of morals. We don't want you to come in here and bring in a moral judgment on the accused more generally. You're asked to consider whether or not the State has proven these particular counts on the indictment, and therefore I direct you as follows. You must determine this trial only on the evidence. You must assess the evidence dispassionately. You cannot decide the case on prejudice, nor on sympathy.
(emphasis added)
When asked by the trial judge at the conclusion of her Honour's direction, neither counsel sought to raise any concern about the direction.[11]
[11] Trial ts 854.

Admissibility of the relevant conduct evidence

KC's evidence of seeing knives and toy guns in the appellant's bedroom was relevant and admissible at trial, given the challenge by the appellant as to whether KC had ever been in his bedroom. The fact that KC described the presence of toy guns in a room which contained toy guns made it more likely that she had been in the room and supported the credibility and reliability of her evidence. The fact that KC described knives and other items which did not appear in the photograph of the appellant's bedroom made it less likely that she had been in the room and could adversely affect the assessment of the credibility and reliability of her evidence. In these ways the evidence of what KC observed in the appellant's bedroom was relevant to the jury's assessment of whether they were satisfied beyond reasonable doubt that the conduct the subject of count 8, which KC described as happening in the appellant's bedroom, ever occurred. In any event, that evidence was admitted with the consent of the appellant, through his counsel, so the reception of that evidence could not have occasioned any miscarriage of justice or involve a wrong decision on a question of law by the trial judge.
The evidence of the appellant stating that he kills people and puts their bodies in his back yard was not relevant to any issue at trial and was inadmissible. However, the inclusion of that evidence, whether through inadvertence or otherwise, could not constitute a miscarriage of justice as there was no realistic possibility that the admission of that evidence could have affected the reasoning of the jury to its verdicts.[12] There was no suggestion, and the jury could not possibly have thought, that the appellant might actually be a person who killed people and disposed of their bodies in his back yard. Nor, given the way the evidence was given, was there any realistic possibility that the jury might have apprehended that KC believed this might be the case. There could be no realistic possibility that the jury might reason that because the appellant made this statement, he was the kind of person who was more likely to have committed the charged sexual offences, or otherwise made it more likely that he committed those offences.
[12] See Brawn v The King [2025] HCA 20 [3], [10].

Disposition

The appellant's ground of appeal concerns the directions that ought to have been given about the relevant conduct evidence rather than its admission at trial.
A judge is bound to give a direction to the jury if, in the circumstances of the particular case, the direction is necessary to avoid a perceptible risk of a miscarriage of justice. This is an incident of the judge's duty to ensure a fair trial for the accused.[13]
[13] Kuc v The State of Western Australia [2021] WASCA 101; (2021) 289 A Crim R 547 [124] and cases there cited.
Where evidence is admitted for a limited purpose and there is a perceptible risk that, absent a direction, the jury will use the evidence for an improper purpose, then a direction as to the permissible uses will be required to avoid a miscarriage of justice. This will ordinarily involve directing the jury, with the authority of the trial judge, as to the ways in which the evidence may be, and more importantly must not be, used.[14]
[14] See, for example, KHA v The State of Western Australia [2022] WASCA 173; (2022) 305 A Crim R 265 [44].
In the present case, the appellant contends that evidence of the appellant's statement about the appellant killing people and disposing of their bodies in his back yard was not admissible for any purpose. The appellant therefore contends that the jury should have been given a direction to ignore the evidence and treat the case as if the evidence had never been given.
In support of this submission, counsel for the appellant relies on the decision of this court in Kitto v The State of Western Australia,[15] where it was said:
[W]here there is an inadvertent reception of inadmissible, prejudicial evidence, the trial judge has a discretion as to whether to discharge the jury or allow the trial to continue, with or without directions. The techniques for dealing with such prejudicial evidence, apart from discharging the jury, include (1) telling the jury to ignore the evidence, and (2) telling the jury to treat the case as if the evidence had not been given. Directions in this context are an aspect of the general law's requirement that a warning should be given whenever a warning is necessary 'to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case'. The 'possibility of a miscarriage of justice' is both the occasion for giving a warning to the jury and the determinant of its content.
The majority in Crofts v The Queen observed:
'No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.' (emphasis omitted)
(original emphasis, citations omitted)
[15] Kitto v The State of Western Australia [2019] WASCA 161 [67] - [68], citing Crofts v The Queen (1996) 186 CLR 427, 440 - 441.
As this passage indicates, there is no universal rule that a trial judge must direct a jury to ignore inadmissible evidence. Whether a direction is required, and if so the kind of direction that should be given, will depend upon the evaluation of the risk of the evidence being misused. In our view, there was no perceptible risk of the evidence of the appellant's statement to KC being used in a way that required a warning beyond that set out at [16] above. We are reinforced in that conclusion by the absence of any objection by trial counsel, indicating that those in the best position to appreciate the atmosphere of the trial also perceived no risk of a miscarriage of justice which required a further direction.

The appellant's central contention was that the trial judge's direction told the jury that the relevant conduct evidence had a role in the trial and had work to do, but the trial judge did not explain what that role was or give the jury sufficient direction about it. This submission focussed on the use of the word 'context' in the passage of the trial judge's direction quoted at [16] above.
There is no merit to that submission. When the quoted passage is read fairly and as a whole, it does not suggest that evidence of the appellant's discreditable conduct, including the relevant conduct evidence, can be used in support of the prosecution case in any way. The analogy which counsel for the appellant sought to draw between the present case, and the decision in Banks v The State of Western Australia,[16] is entirely inapt. In Banks, the court considered that repeated remarks by the trial judge about the accused's drug use and employment as a prostitute, using intemperate language, could be taken by the jury to invite them to engage in propensity reasoning.[17] The trial judge in the present case did nothing of the sort.
[16] Banks v The State of Western Australia [2018] WASCA 130.
[17] Banks [56].
Further, this was not a case such as LNN v The State of Western Australia,[18] where the relevant evidence is of criminal conduct of the same kind as that charged and is led for a specific purpose other than inviting the jury to engage in propensity reasoning. In those circumstances a reference to the evidence showing the 'context' of the charged offences may be insufficient to convey to the jury the uses to which the evidence may and may not be put.[19] But in the present case, there was no realistic prospect that the jury might adopt propensity reasoning from evidence that the appellant had said to KC that he killed people and disposed of their bodies in his back yard. Nor was there any reasonable possibility that the jury might consider that the contextual uses of other kinds of evidence described in the trial judge's direction[20] applied to evidence of the appellant's statement.
[18] LNN v The State of Western Australia [2021] WASCA 39.
[19] LNN [157] - [160].
[20] See trial ts 823 - 824, 830.
As counsel for the respondent correctly submitted, it is fanciful to suggest that the jury might actually believe that the appellant had killed people and put them in his back yard and even more fanciful to suggest that the jury would find this made it more likely that the appellant would sexually offend against the complainants. The only possible misuse to which the jury could realistically put the evidence of the appellant making this outlandish statement was to conclude that the appellant had engaged in discreditable conduct in saying this to a 15‑year‑old girl. The risk that the jury might use their moral disapproval of that conduct against the appellant was addressed by the direction which the trial judge gave.
Nor is there any realistic possibility that the jury might use evidence of the presence of knives and toy guns in the appellant's bedroom in an improper way. The guns described by the complainant were not real, and it was made plain by the prosecutor that the State did not contend they were real. There was no detail as to the kind of knives in the appellant's bedroom, nor any evidence to indicate that the appellant's possession of those knives would be illegal. Evidence of the presence of those items in the appellant's bedroom did not suggest any propensity of the appellant to engage in violent behaviour.
The appellant contends that there was a real risk the jury would believe that the appellant was generally of bad character, and to reason that he had a propensity for unlawful behaviour (generally speaking), so that the relevant conduct evidence operated to rebut his denial of the alleged offences. The appellant also contends that there was a real risk that the jury might believe that the appellant had a propensity to behave in a particular way including, for example, a propensity to use or threaten violence, and so may reason that it was more likely that he committed the alleged offences.
This submission is without merit. The possible impact of the relevant conduct evidence must be assessed in the context of the trial in which it was admitted. There was evidence at trial of the appellant engaging in non-consensual sexual behaviour with multiple teenage girls to whom he supplied illicit addictive drugs. The jury were directed that they could not use that evidence in the way described at [31] above, and no complaint is made about the efficacy of that direction. In this context, evidence of the appellant's possession of knives and toy guns and an outlandish comment about bodies in his back yard could not have had the predominant impact which the appellant now seeks to attribute to it. The prospect that the jury, understanding that they could not use propensity reasoning in relation to evidence of other sexual offending and drug supply to children, would use the relevant conduct evidence for that purpose must be exceedingly remote. In that context, the direction quoted at [16] above was sufficient to guard against possible misuse of the relevant conduct evidence.
For the reasons explained above there was no realistic possibility that the jury might use the relevant conduct evidence in the way suggested by the submissions referred to at [31] above. The direction given by the trial judge was sufficient to guard against any perceptible risk of a miscarriage of justice.

Orders

The appellant requires a relatively short extension of time in which to appeal which is not opposed and which we would grant in all the circumstances. However, the appellant's sole ground of appeal has no reasonable prospect of succeeding. We would therefore refuse leave to appeal and dismiss the appeal.
Therefore, the following orders should be made:

1.The appellant's application for an extension of time in which to appeal is granted.
2.Leave to appeal is refused on the sole ground of appeal.
3.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KP
Associate to the Hon Justice Mitchell
22 MAY 2025