Hughes v The State of Western Australia - [2024] WASCA 160

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   HUGHES -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 160
CORAM:   QUINLAN CJ
BUSS P
VANDONGEN JA

HEARD:   6 MAY 2024
DELIVERED          :   13 MAY 2024
PUBLISHED           :   19 DECEMBER 2024
FILE NO:   CACR 116 of 2023
BETWEEN:   MICHAEL ANDREW HUGHES
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   SHEPHERD DCJ
File Number            :   IND 1561 of 2022

Catchwords:

Criminal Law – Appeal against conviction – Indecent dealing – Whether verdict unreasonable or unsupported by the evidence – Turns on own facts

Criminal Law – Appeal against conviction – Edwards lies – Adequacy of trial judge directions

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3)(a)

Result:

Leave to appeal refused on grounds of appeal
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	G N Beggs

Solicitors:

Appellant	:	In Person
Respondent	:	Director of Public Prosecutions (WA)

Cases referred to in decision:

Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123
Rajakovic v The State of Western Australia [2020] WASCA 98
Sturniolo v The State of Western Australia [2023] WASCA 147
Taylor v The State of Western Australia [2020] WASCA 113
Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234

JUDGMENT OF THE COURT:

Introduction and overview

During the Easter holidays in April 2022, the appellant, Michael Andrew Hughes, was staying in his caravan at a caravan park in Gwelup, Western Australia with his two grandsons, Simon and Liam (not their real names). Simon and Liam were nine and seven years old respectively.
While at the caravan park, Simon and Liam befriended another boy, James King (not his real name), who was 10 years old. James was also staying at the caravan park, with his mother and his stepfather.
On 10 April 2022, James' parents agreed that James could have a sleepover with Simon and Liam in the appellant's caravan. James went to the caravan for the sleepover.
Later that night, James returned to his parents' tent and told them that the appellant had been 'massaging my private parts'. James participated in a Child Witness Interview the following morning (11 April 2022), in which he said that the appellant (who he referred to as 'the grandpa') had touched his 'private part' (or his 'dick').
Later on 11 April 2022, the appellant was interviewed by police. When asked who had visited the caravan the day before and slept in his caravan the previous night, he answered 'myself and my grandchildren'. When asked 'who else stayed in the caravan last night', the appellant answered 'Nobody. No comment'. He also said that he did not recognise the name of either James or James' mother and stepfather. The appellant made no admissions of offending in the interview.
The appellant was charged with indecently dealing with James by touching his penis. He pleaded not guilty and was tried by a judge and jury in the District Court of Western Australia from 14 to 21 August 2023.
In opening the State case, the prosecutor submitted to the jury that the appellant had lied when he told police that no one, other than himself and his grandchildren, had visited or stayed in his caravan the day before and when he denied any acquaintance with James or his parents. She submitted that those lies demonstrated a consciousness of guilt. During the course of the trial, however, the learned trial judge ruled that the matters relied upon by the State were either not lies, or 'not a consciousness of guilt lie'.
In addition to the evidence of James (which consisted of his Child Witness Interview and a prerecording of his evidence), the State adduced evidence from James' mother and stepfather, from the investigating police officers and from a DNA expert, Ms Julie Murakami. Ms Murakami identified mixed DNA profiles on James' clothing for which the appellant was highly likely a contributor. The appellant gave evidence in his defence and also called Simon, Liam and their mother. The appellant also adduced evidence of his good character.
On 21 August 2023, the appellant was convicted of the charge of indecent dealing and, on 22 September 2023, sentenced to 20 months imprisonment, which was ordered to have commenced on 21 August 2023. The appellant was made eligible for parole.
The appellant appealed his conviction on two grounds. First, he contended that the verdict of guilty was unreasonable and not supported by the evidence. Secondly, the appellant contended that there was a miscarriage of justice by the prosecution having opened its case on the basis that 'statements of [his] were lies proving he held a consciousness of guilt'.
The appeal was heard on 6 May 2024. In light of the appellant's imminent eligibility for release, the Court made orders on 13 May 2024 refusing leave to appeal on both grounds. The appeal was therefore dismissed. The Court indicated that we would publish our reasons later. What follows are our reasons for making those orders.
Before turning to the grounds of appeal, the evidence at trial may be briefly summarised.

State case at trial

James' evidence

As noted above, James' evidence at trial comprised his Child Witness Interview and his pre‑recorded evidence given on 30 November 2022. The Child Witness Interview commenced at approximately 9.30 am on 11 April 2022. James' evidence was to the following effect.
While on a holiday at the caravan park with his family, James befriended Simon, and his little brother (i.e. Liam). Simon and Liam were also staying at the caravan park. James was staying in a tent and the boys asked James to sleepover at their nearby caravan.[1] James asked his mother, and she told him he could do so as long as she met the boy's grandad.[2] James said that his mother met the boys' grandpa at the swimming pool at the caravan park.[3]
[1] Child Witness Interview Transcript (CWI ts) 6.
[2] CWI ts 6.
[3] CWI ts 7; Pre-record ts 20.
James said that Simon, Liam and their grandpa were at the sleepover. They played board games, played on their iPads and showered.[4] James said that while he was showering, the grandpa kept trying to open the door. James said that the appellant had opened the bathroom door and then tried to open the shower door.[5] He said that he heard the door open because the door had magnets which he could hear. James said that while he was showering, the appellant kept 'trying to open it and I'm grabbing the door handle cos [sic] I see it slowly opening and I'm pulling it closed and I just feel him trying to pull it open even more and then he's looking through the spot that he got open and I keep trying to close it'.[6] James said that the appellant didn't say anything.[7]
[4] CWI ts 8.
[5] CWI ts 8, 27.
[6] CWI ts 8.
[7] CWI ts 9.
In the Child Witness Interview, James said that he couldn't see through the shower door except being able to 'kind of see the outline of people behind it like … their shadow through it'.[8] Similarly, in examination-in-chief, James initially said he could not see through the shower door but agreed he could see through it a little bit and said he could see a shadow of a person.[9] James was taken to a number of photographs in his evidence, including a photograph of the shower in the caravan he used.[10] In cross‑examination, he maintained you could see 'a little bit' through and a shadow of a person.[11]
[8] CWI ts 27 ‑ 28.
[9] Pre-record ts 20.
[10] Exhibit 2, photograph 17.
[11] Pre-record ts 36.
After he and the other boys had showered, James said that the appellant told him to take off his long pants because it was really hot in the caravan, such that he was just wearing his t‑shirt and underpants. He said that this happened while he was on his bed playing with his iPad, after his shower but before going to bed.[12] James said Simon and Liam were also wearing only their underwear and t‑shirts.[13]
[12] CWI ts 15 – 16.
[13] Pre-record ts 20-21.
James described a three‑bed bunk bed in the caravan. He said that he went to bed in the top bunk, that Simon's little brother (i.e. Liam) was on the middle bunk and that Simon was on a bed made by lowering a table so that the couch in the caravan made a bed.[14]
[14] CWI ts 12.
James said that later on the grandpa (i.e. the appellant) came to his bed while both Simon and Liam were sleeping and snoring. James was wearing his t‑shirt, his underwear and had a blanket up to his waist.[15]
[15] CWI ts 14.
James said that the appellant started massaging his back.[16] He said that the appellant told him to flip over, which he did, and the appellant then started to massage James' chest and stomach area, moving down his body until he reached his 'privates'.[17] James said that the appellant pulled James' underpants down 'until he can see my private part'.[18] The appellant then touched James' penis. James said this made him feel uncomfortable.[19] He said that he told the appellant to stop but that he didn't.[20]
[16] CWI ts 16; Pre-record ts, 21.
[17] CWI ts 17.
[18] CWI ts 18-19.
[19] CWI ts 18; Pre-record ts 22. While he used the word 'privates' or 'dick' in the Child Witness Interview, James confirmed that he was talking about his penis in his pre-recorded evidence.
[20] CWI ts,19.
James said that he rolled to the side and pulled the blanket with both hands up over him and jerked away from the appellant so that he was then facing the wall and lying on his side.[21] He said that the appellant stopped, said 'goodnight' and watched television.[22]
[21] CWI ts 19-20, Pre-record ts 55.
[22] CWI ts 21; Pre-record ts 55.
James said that he pulled his pants up underneath the blanket, waited for 10 or 15 minutes and then packed up his things, left the caravan and went back to the tent to his mother and stepfather.[23] When he left, Simon and Liam were asleep.[24]
[23] CWI ts 18, 23; Pre-record ts 22, 56.
[24] CWI ts 46.
James gave evidence that when he came into the tent, he gave his mother a fright.[25] He said that he told his mother and stepfather what had happened and that he felt scared and sad.[26] The police were then called.
[25] Pre-record ts 57.
[26] CWI Ts 24; Pre-record ts 57.
James said that he put the clothes he was wearing in a paper bag and gave them to police. James gave evidence he put all his clothes into the same paper bag.[27] In cross‑examination, he accepted he gave his clothes to his mother who then put them in the bag and gave them to police.[28]
[27] Pre-record ts 23.
[28] Pre-record ts 60.
In cross‑examination, it was put to James that Simon's little brother (i.e. Liam) had been sick during the night. He said that he did not remember that happening. It was further put to James that the appellant rubbed Liam's back while he was on the middle bunk and that James asked for a 'back rub', which he denied. It was put to James that the appellant patted his back with one hand (outside his t‑shirt) while rubbing Liam's back with the other hand. James responded that the appellant rubbed his back inside his t‑shirt and that the appellant was not rubbing Liam's back.[29]

Evidence of Ms King

[29] Pre-record ts 49 - 50.

The State called James' mother, Natalie King (not her real name).
Ms King gave evidence that she stayed in the caravan park with her partner, Dale Jones (not his real name), her son James and another of her children for four days over the Easter holidays.
Ms King said that shortly after arriving, James went off to play and met some children, including Simon and Liam. While Ms King was still setting up their tent, James asked if he could sleepover in their caravan. On that occasion Ms King said that he could not. James slept in their tent that first night.[30]
[30] Ts 184.
The following day, James again went off to play with the other children. Later that day Ms King met the appellant at the pool area at the caravan park and they had a short conversation.[31]
[31] Ts 196.
Back at their campsite later that afternoon, the children again asked Ms King if James could have a sleepover at the appellant's caravan. Ms King agreed. She said that James went to the caravan at around 5.00 pm.[32]
[32] Ts 202 - 203.
Ms King said that she and Mr Jones went inside their tent around 8.00 pm and fell asleep around 9.00 pm.[33] She said that she was woken at about 11:05 pm, when James came rushing into the tent. Ms King said that James was 'breathing heavy' and making 'a little noise, almost like he was scared'. Ms King said that she asked James what was wrong several times, but that initially he didn't respond.[34]
[33] Ts 203.
[34] Ts 204 - 205.
Ms King gave evidence that, eventually, James answered: 'I don't want to be there. The grandad keeps massaging my private parts'.[35] In cross‑examination, Ms King maintained that this was what James had said and disagreed that he had said that the appellant had just 'massaged [him]'.[36] Ms King described comforting James and asking him other questions.
[35] Ts 205.
[36] Ts 216.
Ms King said that Mr Jones became angry and she asked him to be calm.[37] She said that Mr Jones left their tent and that she could hear him outside speaking to the appellant in a raised voice.[38]
[37] Ts 207
[38] Ts 217 ‑ 218.
Ms King said that Mr Jones called the police and then she, Mr Jones and James met with the police at the front of the caravan park.[39] She gave evidence that, when they met with the police, James was wearing the same clothing as when he returned to the tent. The police asked Ms King to collect James' clothing which she did.[40]
[39] Ts 210.
[40] Ts 211.
Ms King gave evidence that the police gave her a brown paper bag and some gloves in which to put James' clothes. She accompanied James into a cubicle where he took his clothes off and she put the clothing into the bag for him. In cross‑examination, Ms King said that she put all the clothing in together and there was nothing separating them.[41] She said that she was wearing gloves during this process, but that James was not.[42]

Evidence of Mr Jones

[41] Ts 221.

[42] Ts 220.

Dale Jones, James' stepfather, gave evidence largely consistent with that of Ms King.
Mr Jones gave evidence that he met the appellant during the day on 10 April 2022. He said that he met him in the morning 'at the pool' and later at the campsite.[43]
[43] Ts 231 ‑ 234.
Mr Jones said that James went to the appellant's caravan for a sleepover at around 4.30 pm or 5.00 pm. He said that at around 11.00 pm, James came back into their tent. Mr Jones said that James was upset and breathing heavily. He said that he heard Ms King asking James questions and that James told Ms King that the grandpa had 'touched [him]'.[44] Mr Jones said that he recalled James saying that '[h]e was trying to massage my back and I told him to go away but he didn't' and '[t]hen he tried to touch my private parts' or '[t]ouched my private parts'.[45]
[44] Ts 238.
[45] Ts 239.
Mr Jones gave evidence he confronted the appellant and that the appellant denied doing anything and started to walk away.[46] Mr Jones walked out to the roadway and rang the police.[47]

Police evidence

[46] Ts 241.

[47] Ts 242.

Three police officers gave evidence.
First Class Constable Stuart Coppock gave evidence of his attendance at the caravan park at approximately 11.53 pm on 10 April 2022. Constable Coppock asked Ms King to collect the clothes James was wearing and put them in a brown bag which he provided. He also provided Ms King with gloves. In cross‑examination, Constable Coppock accepted that placing the three items of clothing into a single bag could potentially give rise to cross‑contamination between the items.[48]
[48] Ts 271 ‑ 272.
Detective Senior Constable Elliot Reid was a member of the Child Abuse Squad on 11 April 2022. He produced various exhibits, including James' birth certificate, a site brochure and map of the caravan park, photographs of the site, a video and photos taken during a search of the appellant's caravan and a certificate of vehicle and caravan registration.
Detective Reid also conducted an Electronic Record of Interview (EROI) with the appellant on 11 April 2022.
The appellant exercised his right to silence with respect to a large number of questions in the EROI, by responding with 'no comment'. He did, however, provide some answers.
The appellant said that he was staying in a caravan at the caravan park the previous day with his grandchildren.[49] He answered questions about how many beds were in the caravan and where his grandchildren slept.[50] Relevantly, the EROI included the following:[51]
[49] EROI page 9.
[50] EROI page 13.
[51] EROI page 12 - 14.
Q:      Okay. Who visited your caravan yesterday?
A: Just the ones who was in – who is on the site. Myself and grandchildren.
Q:      Okay. Who slept in your caravan last night?
A:      Myself and my grandchildren.
Q:      The same two grandchildren that you spoke about earlier?
A:      Yes.
Q:      Who else stayed in the caravan last night?
A:      Nobody. No comment.
Q:      So, nobody or no comment?
A:      Nobody slept in there.
Q:      Nobody. Yep. How many beds are there in the caravan?
A:      Pardon?
Q:      How many beds?
A:      Four, five. Five.
…
Q: And do you ever have anyone else staying apart from yourself and your grandkids?
A:      No comment.
Q: Cool. We've just spoken about your caravan. You told us a bit about the caravan. How you tow it. You said you live in your caravan by yourself, and you've got some visitors there. You tell me – you mentioned your grandchildren, and you're adamant that no‑one else sleeps, uh, in your caravan apart from the three people we've talked about. Uh, and that no‑one else slept in your caravan last night except for you and your two grandchildren. Is that - - -
A:      Correct.
The appellant was asked whether his grandchildren had friends come to the caravan. The appellant said that his grandchildren had friends all over the campsite. When asked whether James was one of those friends (using his full name), the appellant responded 'no idea'.[52]
[52] EROI, page 15.
The appellant was asked about James' family:[53]
Q: Okay. Well, there's also – next to that spot. So, not the one directly next to yours, but the one after that. There's a little tent set up, uh, with a couple and a young boy. [Natalie] - - -
A:      No comment.
Q:      - - - and [Dale].
A:      Never heard of them.
Q:      Never heard of [Natalie] and [Dale].
A:      No.
[53] EROI, page 16.
The appellant was asked again about James and stated that he did not know him:[54]
Q: I've asked you about [James King]. You said you can't – you – you have no comment about that. Um, and that you said that your grandkids have friends that, uh, all over the camp that come and visit. But you don't know [James King].
A:      No
Q:      Is that correct? Never heard of [James King]?
A:      No.
[54] EROI, page 17.
Detective Reid also gave evidence that a DNA sample was collected from the appellant by way of a buccal swab. He also confirmed in cross‑examination that the appellant did not have a criminal record or a traffic record.
Detective Senior Constable Dinesh Perumal gave evidence that a specialist interview was conducted with James and that he attended the caravan park on 11 April 2022, including for the search of the appellant's caravan. Detective Perumal gave evidence he took a buccal swab from James.[55]

DNA evidence

[55] Ts 307 ‑ 309.

The State called Julie Ann Murakami, a senior forensic scientist with the PathWest forensic biology laboratory.
Ms Murakami gave evidence in relation to DNA testing of James' t‑shirt and underwear, and two reference samples. Tape lifts were taken from the t‑shirt and underwear, to obtain samples from areas of interest.
A mixed DNA profile consistent with three individuals was obtained from a tape lift from the outer back of the t‑shirt. Assuming that James was a contributor in the mixed DNA profile, the mixed DNA profile was 16 billion times more likely to occur if James' DNA, the appellant's DNA and another unknown individual contributed than if James and two unknown individuals from the Australian population contributed.[56]
[56] Ts 324.

Six tape lifts were taken from the underpants.[57] Tape lift one was sampled from the waistband region. Tape lift two was sampled from the outer front, which included the crotch region. Tape lift three was taken from the inner front and back, including the crotch. Tape lift four was taken from the inner waist region on both the front and back. Tape lift five was taken from the inside of the front of the underwear, including the crotch. Tape lift six was taken from the inside of the back of the underwear.
[57] Ts 327.
A mixed DNA profile consistent with having come from three individuals was identified in all but one of the tape lifts from the underpants. Assuming that James was a contributor to the mixed profiles:
(a)the DNA profile for tape lift one was 57,000 times more likely to occur if James' DNA, the appellant's DNA and another unknown individual contributed than that if James and two unknown individuals contributed; [58]
(b)the DNA profile for tape lift two was 6.4 billion times more likely to occur if James' DNA, the appellant's DNA and another unknown individual contributed than that if James and two unknown individuals contributed; [59]
(c)the DNA profile for tape lift three was 38 million times more likely to occur if James' DNA, the appellant's DNA and another unknown individual contributed than that if James and two unknown individuals contributed;[60]
(d)the DNA profile for tape lift four was 2.5 billion times more likely to occur if James' DNA, the appellant's DNA and another unknown individual contributed than that if James and two unknown individuals contributed;[61]
(e)the DNA profile for tape lift six was 100 billion times more likely to occur if James' DNA, the appellant's DNA and another unknown individual contributed than that if James and two unknown individuals contributed; and[62]
(f)tape lift five produced a mixed DNA profile consistent with DNA coming from two individuals. James was identified as a contributor to the mixed DNA match but the remaining DNA was not suitable for further interpretation.[63]
[58] Ts 330.
[59] Ts 331.
[60] Ts 332.
[61] Ts 332.
[62] Ts 333.
[63] Ts 333.
In cross‑examination, Ms Murakami accepted that it was possible that DNA could be transferred without a person touching an item because skin cells could flake off and be deposited that way.[64] Ms Murakami agreed that it is likely that the appellant's DNA would be on the surface of things in his caravan if he was living there.
[64] Ts 336.
Ms Murakami also gave evidence that she received the underpants and t‑shirt in separate bags and that items are always put in their own bags to prevent cross‑transfer of DNA.[65] Ms Murakami was not aware that the underpants and t‑shirt were initially collected and put into one bag with a pair of tracksuit pants. She agreed that it was possible that any DNA on one item of clothing could be transferred to another simply by being in the same bag. Ms Murakami also accepted that the DNA could have been transferred via gloves which were worn when handling all three items.[66]
[65] Ts 340.
[66] Ts 341.

Defence case

The appellant elected to give evidence and also called Simon, Liam and the appellant's daughter, Karen Hughes (not her real name).

The appellant's evidence

The appellant was 56 years old at the time of giving evidence, and had three children and 11 grandchildren.
The appellant gave evidence that on 9 April 2022 he had taken Simon and Liam to the caravan park. They found a site and the appellant set up the caravan while the boys were playing. They had a barbeque and Liam asked if a boy could have a sleepover, but the appellant said 'no', as he had not met the boy or his parents.[67]
[67] Ts 371.
The following day, 10 April 2022, at around 10.00 am the appellant and his grandchildren went to the pool at the caravan park. The appellant noticed the 'boy's parents' and had a 'quick general chat' with them.[68]
[68] Ts 373.
While they were at the pool, one of his grandchildren asked if one of the boys, who he thought may have been James, could stay with them while his parents were going somewhere.[69] The appellant said he could stay with them until they left. The appellant, his grandchildren and James stayed another half an hour, until they went back to the caravan and James went back to his tent.
[69] Ts 373.
The boys went out and played again until they went back to the pool where James and his parents were. The appellant said he chatted with the parents about general conversation. After about 40 minutes, the appellant asked Simon and Liam to get out of the pool.[70] After the pool, they went back to the caravan for the children to change and the children kept playing.
[70] Ts 374.
The children were playing at various locations, including James' tent and the appellant's caravan. The appellant checked on them at one point and walked past James' tent where his parents were sitting outside. They invited him to sit with them. He said that he was there for approximately 20 minutes. The appellant mentioned to James' mother that Liam had asked for a boy to stay over and whether that was James. The appellant gave evidence that James' mother confirmed that James had asked to stay over and asked what the appellant thought. The appellant gave evidence that it didn't worry him and told her it was up to her.
The appellant went back to the caravan and James came back later and said 'I'm staying over'. The kids continued to play and at about 7.00 pm the appellant rounded up the kids and got them inside.
They had dinner and the children played games. After the games they were sitting at the dinner table and the appellant told his grandchildren it was time for them to shower. The appellant gave evidence that James said he was first for the shower. The appellant was surprised by this because he wasn't expecting James to have a shower.[71]
[71] Ts 377.
Simon ultimately showered first while James and Liam were sitting at the kitchen table playing on their devices. The appellant continued tidying up and when he turned around, he noticed James was sitting there in his t‑shirt and 'undies'. The appellant grabbed him a towel and told him to put that on until he was ready to shower.
The appellant then sorted the beds out. Simon was still in the shower so he opened the door for a few seconds and told Simon to hurry up as someone else was waiting. Shortly after that Simon got out of the shower.
The appellant said that James went into the shower next. The outside door was open because Simon came out and James went straight in.[72] While James was showering, Liam also got out of his clothes and left them on the floor so that Liam's clothes were by the table and James' clothes were by the door.
[72] Ts 379.
The appellant gave evidence that he picked up James' and Liam's clothes. He put James' clothes on the middle bunk and Liam's clothes in a plastic bag for washing.[73] Liam's clothes consisted of a t‑shirt and shorts as he did not wear underwear. The appellant said that Liam had never worn underwear because of a 'sensory thing'.[74]
[73] Ts 380; Exhibit 2.11.
[74] Ts 381.
The appellant gave evidence that he opened the shower door slightly for a few seconds and said '[James], hurry up' and shut the door again.[75]
[75] Ts 381.
In response to James' evidence, the appellant gave evidence that there was no door handle on the shower door so it was not possible for James to have turned the door handle.[76] The appellant also gave evidence that in order to put one's head around the door, the person would have to open the door at least half‑way due to the configuration of the bathroom. He described that the shower had a solid‑full length door with a mirror on the front. Behind the door, there was a shower curtain.[77]
[76] Ts 382.
[77] Ts 386; Exhibit 2.15 and Exhibit 2.16.
The appellant said that James finished showering and came out with a towel around him. He got his clothes off the bunk and then moved to the back of the caravan near the appellant's bed to get changed. The appellant went with Liam, who was younger, into the shower area and helped him get organised for the shower. He left Liam to shower and James and Simon were both fully dressed and sitting at the dining table playing on their devices. The appellant said he asked James if he had sleeping clothes to which James told him he didn't and he would just sleep in what he was wearing. The appellant told him 'it gets hot on [the bunk]' and James replied that he could just take off his track pants and sleep in his t‑shirt and undies. The appellant told him that was fine.[78]
[78] Ts 388.
The appellant said that sometime around 8.00 pm or 9.00 pm, James said he needed to go get something from his tent and use the toilet. He did that and came back about five minutes later and got into the bunk.
After James came back, Simon yelled out that Liam was being sick. The appellant saw Liam dry retching and then got Liam to put his head out the door where he vomited a bit. The appellant brought him back inside and he laid down in the middle bunk, so that he was closest to the door if he was sick again. Liam was clutching his stomach and was crying.[79] The appellant gave evidence he then patted Liam's back.
[79] Ts 393 ‑ 394.
The appellant said that James was in the top bunk and said 'backrub'. The appellant gave evidence 'for some reason I just patted James' back at the same time.' The appellant told Liam to roll over and to show him where he was sore on his stomach and that James turned over too. The appellant said that he didn't know why James rolled over. The appellant also patted Liam's stomach for a couple of seconds and did the 'same thing with James'.[80] He then told Liam to call him if he needed him or to go outside if he was sick again.
[80] Ts 394.
The appellant then told the boys and Simon, who was sleeping on the couch, to settle down and go to bed.
The appellant gave evidence he was just concerned with Liam. He denied pulling down James' blanket, pulling down his pants and touching his penis. He also denied telling James to flip over.
The appellant turned all the lights off and about 10 minutes later, James said he wanted to go home. He said that was fine and James left. The appellant got up and came out of the caravan to make sure James got back to his tent. The appellant saw him get into the tent and then his stepfather came out and confronted him. The appellant was shocked, said nothing happened and went back to the caravan.
The appellant also gave evidence that Simon and Liam did not snore.
The next morning, the appellant was visited by police before being arrested and conveyed to Perth Watch House and being interviewed. The appellant confirmed he had legal advice before participating in the interview.

Simon's evidence

The appellant's grandson, Simon, gave evidence. He was 10 years old at the time of trial.
Simon gave evidence that he went on a caravan trip with his grandad where he made a friend, James.[81] He said that he had asked his grandad if James could stay over, and the appellant said it was up to James' parents. James did not stay over the first night.
[81] Ts 497 ‑ 499.
Simon said that on the second night James stayed over.[82] Simon said that they all had showers: James had the first shower, he had the second and Liam had the third.
[82] Ts 505.
Simon said that when it came time to go to bed, Liam felt sick and Simon saw Liam run out the front door and vomit a little bit. He said that the appellant rubbed Liam's back when he was at the front of the caravan and the appellant was standing behind him.[83]
[83] Ts 508; 512.
In cross‑examination, Simon said that they did not go to the swimming pool at the caravan park at the time that they met James there. He said also that he did not know whether James was still in the caravan when he fell asleep.

Liam's evidence

The appellant's other grandson, Liam, also gave evidence. He was eight years old at the time of giving evidence.
Liam said that he went to the caravan park with his grandad and Simon. He remembered going in the swimming pool a lot. He also remembered making friends with James.[84]
[84] Ts 526.
Liam remembered James coming over for a sleepover.[85] He remembered showering third and the appellant showering last.[86] Liam said that he wasn't wearing underpants at the time and that he didn't wear underpants because he didn't like how they feel.[87] In cross‑examination, he said he wears shorts or pants instead and would wear shorts if it was hot.
[85] Ts 533.
[86] Ts 534.
[87] Ts 534.
Liam said that after his shower, he felt sick and quickly ran out the door of the caravan and vomited a little bit in his mouth.[88] He said that he went straight back to the middle bunk and lay down. The appellant asked him where he was sick, and he said in the stomach.[89] He said the appellant started rubbing his back.
[88] Ts 540.
[89] Ts 541.
Liam said that James asked the appellant 'if he could rub his stomach – his back'.[90] In cross‑examination Liam said that he remembered the appellant patting his back with one hand and that James asked the appellant if he could pat his back too.[91] Liam later said that he did not remember what James had said but was sure James said something when the appellant was patting his (Liam's) back.[92]
[90] Ts 541.
[91] Ts 548 - 549.
[92] Ts 549.
Liam remembered everyone being awake at the time, including Simon. The last thing he remembered before falling asleep was the appellant standing next to his bed.[93]

Evidence of the appellant's daughter

[93] Ts 549.

The appellant's daughter, Ms Hughes, gave evidence. Ms Hughes is the mother of Simon and Liam.
Ms Hughes gave evidence of being raised by her father and of her childhood.[94] She described the appellant as heavily involved in her children's lives and the special bond they had.[95] Ms Hughes also gave evidence that her father was someone who had clear boundaries and that she had never seen him overstep or observed any inappropriate behaviour with children.[96]
[94] Ts 553 ‑ 555.
[95] Ts 555 ‑ 556.
[96] Ts 556.
Ms Hughes gave evidence that Liam did not wear or own underpants and, as such, she had not packed any for the camping trip in April 2022.[97] She also gave evidence that neither of the boys snored and that Simon is a very light sleeper.[98] In cross‑examination, Ms Hughes accepted that when she had previously slept in the same room as the children she could hear them breathing.[99]

Character evidence

[97] Ts 557.

[98] Ts 557 ‑ 558.

[99] Ts 560.

The appellant also called evidence from three witnesses as to his previous good character.

Reliance on lies as consciousness of guilt

In opening the case for the State, the prosecutor submitted to the jury that the State would rely upon what it submitted were lies told by the appellant in the EROI as evidence of consciousness of guilt. The prosecutor said:[100]
The State will say Mr Hughes had lied when he told police that no one, other than himself and his grandchildren, had visited his caravan the day before. Mr Hughes had lied when he told police that only himself and his grandchildren had stayed in the caravan the night before, and Mr Hughes had lied when he told police that he didn't know [James], or [Natalie], or [Dale].
And the State will say that Mr Hughes lied about these things because [James] had stayed at his caravan the night before, up until at least he ran away after being touched. And Mr Hughes had touched [James'] penis. And by denying all acquaintance, Mr Hughes was trying to distance himself from [James] and his family. People who, after all, he had only just met at this caravan park the day before. Or rather on the 10th, in fact.
So he denied even knowing these people, let alone that [James] had been inside his caravan. But the DNA evidence on [James'] shirt, and on [James'] underwear, the State will say, shows that what Mr Hughes said to police during his interview were lies. Lies that the State will say demonstrate a consciousness of guilt on the part of Mr Hughes.
[100] Ts 93.
As will be apparent, the 'lies' sought to be relied upon by the State included the following:
(a)that no‑one other than the appellant and his grandchildren had 'stayed' or 'slept' in the caravan the previous night (see [45] above); and
(b)his denial of an acquaintance with James or his parents (see [46] to [47] above).
The learned trial judge raised, in the absence of the jury, that part of the State's opening and indicated that she would need to give a ruling 'on whether I consider that they are, in fact, Edwards lies'.[101]
[101] Ts 122. The reference to 'Edwards lies' was a reference to Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 (Edwards v The Queen).
The State contended that it was open to the jury to conclude that these matters were deliberate lies by the appellant and that they were evidence of consciousness of guilt. Whether or not they were in fact deliberate lies was, the State submitted, a question for the jury.[102]
[102] Ts 149.
Prior to the close of the State case, the learned trial judge foreshadowed that her ruling was going to be that none of the alleged lies were capable of being Edwards lies, and that if they were lies, they would be 'Zoneff credit lies only'.[103]
[103] Ts 260 ‑ 261. The reference to 'Zoneff credit lies' was a reference to Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234.
At the close of the State case, and before the appellant gave evidence, the prosecutor sought clarification of the learned trial judge's ruling, given that she proposed to ask the appellant questions in relation to the EROI. The learned trial judge said:[104]
Well, you are entitled to cross‑examine Mr Hughes about whether his responses in the record of interview were, in fact, were the truth or not the truth. And whether they were lies. My ruling about the record of interview doesn't bind you in terms of how you cross‑examine Mr Hughes.
…
At all. I was making a ruling based on the content of the record of interview. And I will go through the reasons, you know, per statement. But, broadly speaking, my view was that the comments made, or the responses made by Mr Hughes, which the State asserted were lies, were capable of more than one interpretation.
Some of them weren't, in fact, lies. They might have been economical with the truth. But that is not a consciousness of guilt lie. And, in my view, some of them, some of the questions asked were about names and the responses given by Mr Hughes might have been such that he could not remember the names of the parents. [Natalie], for example. [Dale].
And so they weren't capable of amounting to consciousness of guilt lies, in and of themselves. And there was one aspect, as well, where I wasn't satisfied that there was independent evidence that proved that it was, in fact, a lie that was a consciousness of guilt lie.
And it has to be a consciousness of guilt lie in respect of the offending. And most of the questions and the answers given, which the State asserted were lies, were not – really went to whether [James] was in the caravan that night, as opposed to whether the offending took place. And so, in my view, it's not in dispute that [James] was in the caravan. So they weren't lies, if the jury find that they were lies, that go to a fact in issue in this trial.
Anyway, I will explain all of that in more detail. But that is the broad kind of process of reasoning for me to have reached the ruling that I made in relation to what Mr Hughes said in his record of interview. Now, of course, you're not constrained in your cross‑examination, [prosecutor].
[104] Ts 362 - 363.
While the learned trial judge in this passage, and earlier, indicated that she would provide further reasons for her ruling, no further reasons were in fact given.
In her closing address, the prosecutor submitted to the jury that the appellant had told lies in the EROI and that the jury could take those lies into account in assessing the appellant's credibility. She continued:[105]
Now, I did say at the start of the trial that the State says that these lies were lies that demonstrated a consciousness of guilt, but I have to tell you now that that is not correct. Her Honour will tell you how you can and cannot use those lies, and you must follow what her Honour says about the law. But in short, you can use these lies only to assess the accused's credibility, and not in any other way. Do you believe Mr Hughes? And that is how you use these lies.
[105] Ts 623.

Similarly, the learned trial judge directed the jury in the following terms:[106]
So I need to give you this specific direction. Now, when [the prosecutor] presented her opening address, and you'll remember that I've told you that whatever counsel says in their opening address and closing address is not the evidence. But [the prosecutor] in her opening address said to you that Mr Hughes told – I think she said three lies to police or a number of lies that were told out of a consciousness of guilt.
Now, I'm going to be directing you, and I do direct you, that you need to ignore that aspect of [the prosecutor's] opening address. It's a matter for you to make up your own mind as to whether Mr Hughes told any lies when he spoke to police and whether he did so deliberately. It's for you to decide what significance any lies have in relation to the issues in this case. The fact that someone has told a lie might be a factor in your assessment of the creditability of Mr Hughes. That's entirely a matter for you. But I direct you as a matter of law that if you find that Mr Hughes told a lie to police, you cannot follow, you must not follow a process of reasoning that just because Mr Hughes has shown to have told a lie about something, that that is evidence of his guilt.
So any lies, any lie or lie that you find Mr Hughes has told, if you find that he's told any lies, are not capable of being used by you to make a finding that they were lies told out of a consciousness of guilt. So you're not permitted to use any lie that you find Mr Hughes has told to reason that that therefore means he's guilty of the offence.
So the fact that a person has told a lie is not evidence that the person is guilty of a crime. There are a lot of reasons why people tell lies; sometimes out of embarrassment, sometimes it might be out of panic to escape an unjust accusation, to protect some other person or for other reasons.
So if you find that Mr Hughes has told a lie, and you'll need to make that determination, you need to decide what significance those lies have. The only way you can use any finding that Mr Hughes has lied to police in his record of interview will be in your assessment of his creditability. But you cannot reason, if you find that he's told a lie, that therefore he's guilty of the offence. So you cannot reason in that way.
So to the extent that there was a suggestion that the lies were told out of a consciousness of guilt, I direct you as a matter of law you cannot use any lies to reason in that way.
[106] Ts 658 - 659.

Grounds of appeal

The grounds of appeal were concise and may be set out in full:
1.The verdict of the jury was unreasonable and not supported by the evidence.
2.There was a miscarriage of justice occasioned by the prosecution opening its case on the basis [that] statements of the appellant were lies proving he held a consciousness of guilt.

Ground 1 – unreasonable verdict

Ground 1 contends that the verdict of guilty was unreasonable and cannot be supported having regard to the evidence.

Ground 1 – legal principles

The principles governing such a ground of appeal are well known. They were summarised by this Court in Sturniolo v The State of Western Australia, as follows:[107]
[107] Sturniolo v The State of Western Australia [2023] WASCA 147 [70] (Quinlan CJ, Beech & Hall JJA).
(1) The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether, as a matter of law, there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
(2) The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(3) That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
(4) In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses. The appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent on the evaluation of the witnesses in the witness box. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness is, and remains, the province of the jury, and not of the appellate court.
(5) The question for the appeal court is whether, upon its examination of the record – by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt.
(6) A doubt experienced by an appeal court would be a doubt that a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
(7) If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appeal court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appeal court must set aside the verdict.
(8) The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over an appeal court that has not seen or heard the witnesses called at trial.
The principles described in (4) to (6) of this summary reflect the functional demarcation between the province of the jury and the province of an appellate court.[108] As the High Court emphasised in Pell v The Queen, the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard in the context of the trial is within the province of the jury as representative of the community.[109] For that reason:[110]
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence … proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
[108] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 (Pell v The Queen) [37] ‑ [38].
[109] Pell v The Queen [37].
[110] Pell v The Queen [39].
We turn then to the inconsistencies, discrepancies and other inadequacies that the appellant submits, in combination, should lead the members of this Court to have a reasonable doubt as to the appellant's guilt.

Ground 1 – alleged inconsistencies, discrepancies and other inadequacies identified by the appellant

The appellant submitted that it was not open to the jury to find that the evidence of James was 'honest, reliable, or accurate enough to support the conviction'.[111] In that regard, the appellant submitted that James' evidence 'about what occurred prior to the touching of his penis and what occurred at the time the act was done to him by the appellant contained numerous statements that were either factually untrue, unlikely, or inconsistent with his other evidence'.[112]
[111] Appellant's Submissions [8].
[112] Appellant's Submissions [9].
In particular, the appellant referred to the following matters in James' evidence:
(a)inconsistencies in James' description of the incident in which he was in the shower, for example, as to the number of occasions he alleged that the appellant tried to open the shower door and whether the appellant spoke to him;[113]
(b)that James' was wrong in his evidence that the 'outline' or 'shadow' of people could be seen through the shower door, which the evidence established was solid;[114]
(c)that James had agreed in his evidence that he had 'made up' an aspect of his Child Witness Interview;[115]
(d)that James had said that Liam was wearing underwear, which was inconsistent with the defence witnesses' evidence that Liam did not wear underwear;[116]
(e)that James did not remember Liam being sick, a matter about which the appellant, Simon and Liam all gave evidence;[117] and
(f)that James had said that Simon and Liam were snoring, when there was evidence that Simon and Liam do not snore.[118]
[113] Appellant's Submissions [24] - [25].
[114] Appellant's Submissions [26].
[115] Appellant's Submissions [28].
[116] Appellant's Submissions [33].
[117] Appellant's Submissions [35] - [36].
[118] Appellant's Submissions [37] - [38].
Against these alleged inconsistencies and discrepancies, the appellant emphasised his own evidence denying the offence.

Ground 1 – disposition

In accordance with the High Court's decision in Pell v The Queen, we proceed upon the assumption that James' evidence was assessed by the jury to be credible and reliable. In light of that assumption, we are not satisfied that the matters relied upon by the appellant, either individually or collectively, are such that, notwithstanding that assessment, the jury, acting rationally, ought nonetheless have entertained a reasonable doubt as to proof of the appellant's guilt of the offence.
We have independently assessed the sufficiency and quality of the evidence before the jury. We are satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence of indecent dealing, in the sense that none of the inconsistencies, discrepancies or other inadequacies identified by the appellant give rise to a doubt in our minds that is not readily resolved by the jury's advantage in seeing and hearing the evidence. Indeed, those matters relied upon by the appellant do not give rise to a reasonable doubt in our minds as to the appellant's guilt.

James' evidence in relation to the indecent dealing was clear in its essential details. His account was consistent in the Child Witness Interview, in examination‑in‑chief and in cross‑examination. In addition, there were other features of his account that bolstered its reliability. The earliest recorded account that he gave (i.e. in the Child Witness Interview), for example, was remarkably close in time to the events themselves, which occurred less than 12 hours earlier. Indeed, James reported the indecent dealing almost immediately after he said that it occurred. In our view, and in keeping with the trial judge's directions,[119] evidence that James was in a distressed state when he made his first report to his mother and to his stepfather was consistent with the allegations he had made, and was a matter that supported the credibility of his account to a significant degree.
[119] Ts 676 ‑ 677.
In addition, while there was clearly a significant potential for cross‑contamination of the items of James' clothing that bore DNA highly likely to have come from the appellant, the DNA evidence nevertheless provided some corroboration of James' account. Indeed, the appellant's own evidence described him patting James' back and stomach, albeit that the appellant said that he did this while Liam was still awake rather than, as James said, when Liam and his brother were asleep. The appellant clearly had an opportunity to commit the offence described by James.
Against this evidence, the alleged inconsistencies, discrepancies or inadequacies identified by the appellant were in our view largely matters of detail in relation to events surrounding the offending. They were not such as to cast any reasonable doubt as to the reliability of James' account of the offending behaviour itself.
Each matter raised by the appellant can be briefly addressed.
The inconsistencies raised in relation to the shower incident are readily explicable. The appellant agreed that he had opened the shower door while James was in the shower. It would not be at all surprising that a 10‑year‑old boy, who hardly knew the appellant, would find such an event unnerving. In those circumstances, it is not surprising that his memory of details, such as the number of times this occurred or the configuration of the shower, might not be clear. It was clear that he recalled the incident itself and it was, in any event, a separate incident to the offending behaviour, which occurred later.
Likewise, James' evidence as to Liam's clothing was unremarkable. Whether Liam was wearing 'undies' or 'shorts', or precisely what James meant by those expressions, is the kind of detail that, in our assessment, was of little consequence in the assessment of James' evidence of the indecent dealing.
The submission that James admitted in cross‑examination that he had 'made up some things he told the police in his interview'[120] mischaracterises his evidence. The context for that submission is as follows.
[120] Appellant's Submissions [28].
In the Child Witness Interview, James was asked about a conversation between Simon and the appellant at which he was not present. James made clear in the interview that he was not present:[121]
[121] CWI ts 7.
Q.… Tell me about the conversation between, um, [Simon] and grandpa.
A.Um, [Simon] went up to his grandpa and said that he made a new friend, his name is [James] and if he – I'm allowed to have a sleepover and - - -
Q.So in - - - .
A.- - - then his grandpa was completely fine with it.
Q.Did you hear that conversation?
A.No.
Q.Okay. So you weren't there - - -
A.That's just - - -
Q.- - - for that conversation.
A.- - - all I know. Yeah.
The relevant portion of James' cross‑examination the subject of the submission that James 'made up some things' was as follows:[122]
[122] Pre-record ts 30.
You said that [Simon] went up to his grandpa and said that he made a new friend:
His name is [James], and if he – I'm allowed to have a sleepover and then his grandpa was completely fine with it.
Can you remember saying that at the start?---Yes.
The truth is though, [James], you didn't actually hear that conversation, did you?---No.
You weren't even there for that conversation, were you?---No.
So, would you agree that you made that bit about that conversation up when you were talking to the lady?---Yes.
In its full context, this exchange was hardly an admission that James had been untruthful. When he first gave an account of the conversation between Simon and the appellant (in the Child Witness Interview), James was clear that he was recounting his understanding of a conversation at which he was not present. In his cross‑examination he simply confirmed what he had already said to be the case. James' guileless acceptance of the proposition that his evidence of that conversation was 'made … up', did not undermine his credibility. On the contrary, his frankness was capable of bolstering it.
Whether James remembered Liam being sick earlier in the night was not a significant matter in the assessment of his evidence. It may have had some significance in the appellant's account, given that the appellant suggested that it was proximate to the time that he 'patted' James' back and stomach. From the perspective of James' account, however, there was no reason why an earlier event in which Liam 'vomited a little bit into his mouth' should stand out in his memory. James' evidence was that the offence was committed after Simon and Liam were asleep.
Finally, the evidence as to whether Simon and Liam did, or did not snore, was, in our view neither here nor there. James' evidence that he could hear Simon and Liam snoring was initially given in response to a question in the Child Witness Interview as to how he knew that Simon was asleep at the time,[123] an answer that was put to him again in cross‑examination. The evidence that Simon and Liam 'did not snore' came from the appellant and his daughter.
[123] CWI ts 13.
The apparent difference in the witnesses' evidence in this regard does not give rise to a reasonable doubt in our minds as to the appellant's guilt. There are in our view many explanations for it. For example, James' evidence in this regard may well have been correct; there is no reason to assume that the evidence of the appellant and Ms Hughes was correct. Similarly, it may be that James' perception or memory of Simon and Liam snoring was mistaken, without it reflecting adversely on the credibility and reliability of his evidence as to the indecent dealing. At the very least, the apparent inconsistency between James' evidence and that of the appellant and Ms Hughes was readily capable of being resolved by the jury without giving rise to a reasonable doubt as to the appellant's guilt of the offence charged.
There was nothing in the evidence in the present case, and in particular James' evidence, such that the jury must have entertained a reasonable doubt about the appellant's guilt. The inconsistencies, discrepancies and other inadequacies identified by the appellant do not, alone or in combination, give rise to a reasonable doubt in our minds as to the appellant's guilt. We are not satisfied that there is a significant possibility that an innocent person has been convicted.
For these reasons, leave to appeal on ground 1 was refused.

Ground 2 – Edwards lies

Ground 2 alleges a miscarriage of justice, not by any alleged error in the directions given to the jury by the learned trial judge, but by the State having opened its case on the basis that it would contend that the appellant had lied in the EROI out of a consciousness of guilt.
Indeed, as set out at [105] above, the learned trial judge gave an emphatic direction that the jury could not rely upon any lies told by the appellant as evidence of consciousness of guilt. The appellant submitted, in essence, that the State's opening gave rise to prejudice that could not be cured by any direction from the trial judge.[124]
[124] Appellant's Submissions [39].
Before turning to that issue, we will address a preliminary point made by the State in response to ground 2. In that regard, the State submitted that the learned trial judge's directions to the jury, as a whole, were 'erroneously favourable' to the appellant. That is because, the State submitted, the matters relied upon by the State as lies by the appellant were capable of being regarded by the jury as lies told out of a consciousness of guilt. The State therefore submitted that had the learned trial judge directed the jury in terms of Edwards v The Queen, no error would have been demonstrated.[125]
[125] Respondent's Submissions [46].
While it is not necessary to finally determine this issue, we are inclined to agree with the State's submissions in this regard. In our view, the answers given by the appellant in the EROI, particularly in relation to whether anyone other than the appellant and his grandchildren had 'stayed' or 'slept' in the caravan the previous night, were capable of being regarded by a jury as lies told by the appellant, in an effort to distance himself from James having been in the caravan (and so told out of a consciousness of guilt). To the extent that the appellant was quite specific in saying that 'nobody slept in there' (given that James left during the night), it would have been open to a jury to conclude that the literal truth of the appellant's answer was, in context, deliberately misleading. Whether or not the appellant in fact lied in the EROI out of a consciousness of guilt would, of course, have been a matter for the jury had they been directed in accordance with Edwards v The Queen.

Whether the learned trial judge's ruling was correct, however, in light of that ruling it was clearly necessary for her Honour to direct the jury, as a matter of law, that they must not use any lies that they might find the appellant had told as evidence of consciousness of guilt. That direction was necessary in the present case given the reference to 'consciousness of guilt' in the State's opening, particularly given the natural tendency that a jury might have had to reason that way in the present case.[126]
[126] As to which see Rajakovic v The State of Western Australia [2020] WASCA 98 [116] - [117] (Quinlan CJ), [226] - [227] (Mazza JA; Buss P agreeing).
That is precisely what the learned trial judge did. Her Honour's directions to the jury as to the permissible, and impermissible, use of any lies that they might find the appellant had told, were unambiguous and emphatic. Those directions were expressly directions as a 'matter of law' and made clear (as did the prosecutor in her closing) that anything the prosecutor had said to the contrary in opening was to be ignored.
The learned trial judge's unambiguous and emphatic directions must be viewed in light of the fundamental tenet of the law, explained in Taylor v The State of Western Australia, that:[127]
With rare exceptions, a criminal trial on indictment proceeds on the fundamental assumption that jurors are true to their oath or affirmation and understand and obey the trial judge's directions. The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. As the High Court observed in Dupas v The Queen, what is vital to the criminal justice system is 'the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations'. That is consistent with the 'experience and wisdom of the law … that, almost universally, jurors approach their tasks conscientiously'.
[127] Taylor v The State of Western Australia [2020] WASCA 113 [78] (Mazza, Mitchell & Beech JJA).
There is nothing in the present case to suggest that this was one of those 'rare exceptions' in which there was a risk that the jury might be unable or unwilling to follow the trial judge's directions. On the contrary, the direction was simple, clear and straightforward.
For these reasons, leave to appeal on ground 2 was refused.

Conclusion

Neither ground of appeal having had a reasonable prospect of succeeding, leave to appeal was refused on both grounds and the appeal dismissed.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
KT
Principal Associate to the Hon Chief Justice Quinlan
19 DECEMBER 2024