KHL v The State of Western Australia - [2022] WASCA 122

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   KHL -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 122
CORAM:   BUSS P
MAZZA JA
BEECH JA

HEARD:   2 MAY 2022
DELIVERED          :   2 MAY 2022
PUBLISHED           :   3 OCTOBER 2022
FILE NO/S:   CACR 189 of 2021
BETWEEN:   KHL
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

FILE NO/S: CACR 192 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant

AND

KHL
Respondent

ON APPEAL FROM:
For File No:   CACR 189 of 2021
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   LEVY DCJ
File Number            :   IND 1171 OF 2019
For File No:   CACR 192 of 2021
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   LEVY DCJ
File Number            :   IND 1171 OF 2019

Catchwords:

Criminal law - Appeal against conviction - Appellant and his wife convicted after a joint trial - Appellant convicted of numerous sex offences against his daughters - Appellant's wife, being a person having the care or control of a child, convicted of engaging in conduct knowing that it may result in the child suffering harm as a result of sexual abuse - Prosecutor adduced evidence at the trial that was admissible against the appellant's wife but not against the appellant - Evidence prejudicial to the appellant - Trial judge failed to direct the jury that the evidence was irrelevant to the State's case against the appellant and that the jury must not take the evidence into account in deciding whether the State had proved beyond reasonable doubt that the appellant had committed any of the offences alleged against him

Legislation:

Nil

Result:

Leave to appeal granted
Appeal allowed
Judgments of conviction entered by the trial judge in respect of the appellant set aside
There be a new trial of the appellant on counts 1 to 21 inclusive of the indictment

Category: B

Representation:

CACR 189 of 2021

Counsel:

Appellant	:	Mr T R Stephenson
Respondent	:	Mr L M Fox SC

Solicitors:

Appellant	:	T R Stephenson
Respondent	:	Director of Public Prosecutions (WA)

CACR 192 of 2021

Counsel:

Appellant	:	Mr L M Fox SC
Respondent	:	Mr T R Stephenson

Solicitors:

Appellant	:	Director of Public Prosecutions (WA)
Respondent	:	T R Stephenson

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

Auons v The Queen [2010] VSCA 223
Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50
Banks v The State of Western Australia [2018] WASCA 130
Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314
CDO v The State of Western Australia [2022] WASCA 58
Dawson v The Queen [1961] HCA 74; (1961) 106 CLR 1
De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1
Hall v Braybrook [1956] HCA 30; (1956) 95 CLR 620
Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 394 ALR 194
Hill v The State of Western Australia [2019] WASCA 209
JEL v The State of Western Australia [2022] WASCA 32
LNN v The State of Western Australia [2021] WASCA 39
LNV v The State of Western Australia [2019] WASCA 180
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457
Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45
R v Dolan (1992) 58 SASR 501
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Seymour v The Queen [2006] NSWCCA 206; (2006) 162 A Crim R 576
The Queen v GW [2016] HCA 6; (2016) 258 CLR 108
TSP v The State of Western Australia [2021] WASCA 224
Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234

BUSS P:

KHL (the appellant in CACR 189 of 2021) has appealed against conviction.
The State (the appellant in CACR 192 of 2021) has appealed against sentence.
KHL and his wife, LML, were charged on an indictment which contained 22 counts. Counts 1 to 21 related to KHL. Count 22 related to LML.
The counts relating to KHL alleged sex offences against his daughters. The count relating to LML alleged that LML, being a person having the care or control of a child, namely SLL, engaged in conduct knowing that it may result in the child suffering harm as a result of sexual abuse (as defined in s 28(1) of the Children and Community Services Act 2004 (WA)), contrary to s 101(1)(a) of that Act.
KHL and LML pleaded not guilty.
After a joint trial in the District Court before Levy DCJ and a jury, the jury returned verdicts of guilty on all of the counts relating to the appellant and on the single count relating to LML.
The trial judge sentenced KHL to a total effective sentence of 12 years' imprisonment. A parole eligibility order was made.
On 2 May 2022, at the hearing of the appeals, the State conceded that KHL's appeal against conviction should be allowed, the judgments of conviction should be set aside and a new trial of KHL on counts 1 to 21 inclusive should be had.
At the conclusion of the hearing, this court made orders in KHL's conviction appeal, relevantly, as follows:
(1)Leave to appeal granted.
(2)Appeal allowed.
(3)The judgments of conviction entered by the trial judge in respect of KHL are set aside.
(4)There be a new trial of KHL on counts 1 to 21 inclusive of the indictment.
Also, at the conclusion of the hearing, this court ordered that the State's appeal against sentence be dismissed.
When making the orders at the conclusion of the hearing we said that reasons would be published at a later date. These are my reasons.

KHL's conviction appeal: the ground of appeal

KHL's ground of appeal alleged, in essence, that a miscarriage of justice occurred at the trial in that:
(a)the trial judge failed to give any direction, alternatively gave an inadequate direction, on the evidence given by the State's witness, MAH, that MAH borrowed a laptop computer from KHL and LML, that MAH found child pornography on the laptop and that MAH had conversations about those matters with LML and, further, the trial judge failed to direct the jury that MAH's evidence about those matters was relevant solely to LML's state of mind (or to LML's failure to act to protect SLL) and the jury should not have regard to MAH's evidence about those matters in considering any of the counts relating to KHL;
(b)the trial judge failed to give any direction, alternatively gave an inadequate direction, on MAH's evidence that, on a mobile telephone allegedly belonging to KHL, MAH found a search history of child pornography and on MAH's evidence of conversations between MAH and LML at the time MAH found the search history and, further, the trial judge failed to direct the jury that MAH's evidence about those matters was relevant solely to LML's state of mind (or to LML's failure to act to protect SLL) and the jury should not have regard to MAH's evidence about those matters in considering any of the counts relating to KHL.

KHL's conviction appeal: the State's pre‑trial application to adduce propensity evidence

On 21 January 2021, before the trial began, Bowden DCJ heard an application by the State to adduce propensity evidence.
The propensity evidence sought to be adduced by the State included evidence from MAH.
The State anticipated that MAH would give evidence to this effect:
(a)MAH borrowed a laptop computer from KHL and LML.
(b)MAH found on the laptop child pornography depicting girls and boys aged between 4 and 9 years being orally, vaginally and anally penetrated by adult men.
(c)After he found the child pornography, MAH telephoned LML and abused her. About one hour later, MAH confronted KHL and LML about the child pornography. They told him that the laptop belonged to KHL's father.
The State submitted to Bowden DCJ that KHL's possession of the laptop showed that KHL had a propensity to engage in fellatio with young girls and that this evidence was significantly probative in relation to at least some of the charged offences.
On 9 February 2021, Bowden DCJ dismissed the State's application to adduce propensity evidence. His Honour was of the view that MAH's evidence was incapable of establishing that KHL had in fact possessed child exploitation material. His Honour considered that MAH's evidence was not sufficient to enable an inference to be drawn that KHL knew or believed that there was a significant or real chance that the laptop computer contained child exploitation material. Absent any evidence showing that KHL had used or accessed the laptop, his Honour was of the view that MAH's evidence was not capable of establishing that KHL had knowingly possessed child exploitation material and consequently could not form the basis from which any propensity could be found. His Honour ruled that the evidence in question was inadmissible against KHL. His Honour added that if he was wrong in his conclusions then MAH's evidence was capable of constituting propensity evidence having significant probative value only in relation to proof of the counts which alleged that KHL had engaged in indecent dealing.
During the hearing before Bowden DCJ on 21 January 2021, the prosecutor informed his Honour as follows:
The State intends to lead that evidence [being the evidence concerning the laptop computer] in relation to [LML] anyway, because the State says that [MAH] telling [LML] about the child exploitation material on the laptop goes to her state of mind and what she knew in failing to protect her children. So I just wanted, out of fairness, to make sure that my learned friend is aware of that, because there may well be an application to sever [KHL] and [LML] depending on your ruling. It obviously doesn't affect your ruling because it's an irrelevant consideration to whether it's admissible…. It would actually be a question for [counsel for KHL at trial]. Because in the event your Honour rules that this evidence is inadmissible in relation to [KHL], it would be [KHL] that's prejudiced at trial potentially if we use that evidence … against [LML], because a jury will hear it. It can probably be cured by a direction. We don't need to address that now (ts 248). (emphasis added)
Bowden DCJ did not comment upon the State's proposed use of MAH's evidence in that manner.
The trial began on 14 June 2021. KHL did not apply to sever the indictment before the trial began.

KHL's conviction appeal: MAH's evidence

At the trial, MAH gave evidence as a State witness in relation to, relevantly, four matters.
First, in mid to late 2013, while MAH was travelling in a motor vehicle driven by LML, one of the complainants (SLL) was also in the vehicle. SLL volunteered to MAH and LML that KHL 'fucks' her and that KHL 'tried to fuck her and put it in her bum' (ts 449). LML stopped the vehicle when she heard SLL make those statements. LML was shocked. LML then drove to her home with MAH and SLL. LML confronted KHL who denied any offending. LML told SLL to enter the house with KHL. LML then drove MAH to his home. (It was the State's case that, while LML was driving MAH to his home, KHL told SLL that she should not have revealed 'their secret' and that KHL forced SLL to perform fellatio on him (that offending having been charged in count 4).)
Secondly, MAH gave evidence about the contents of a laptop computer. He said that, a few months after SLL's statements (referred to at [22] above), MAH borrowed 'their' laptop (meaning KHL and LML's laptop) (ts 451). Later, MAH told LML that he had found 'child pornography' on the laptop (ts 452). No evidence was given as to the content of the child pornography. It was merely stated that the child pornography was in a 'folder' (ts 452). MAH said he was angry about having found the child pornography and was 'very blunt, [and] very forward' in telling LML about it (ts 452). He returned the laptop to KHL and LML and had a discussion with them about it. According to MAH, he was 'pretty much told that the laptop belonged to [KHL's] father' (ts 452). MAH repeated, in cross‑examination by defence counsel for LML, that he was 'told' that the laptop belonged to KHL's father (ts 461).
Thirdly, MAH gave evidence as to the contents of a mobile telephone. The State did not rely upon this evidence for the purposes of its pre‑trial application before Bowden DCJ to adduce propensity evidence. MAH said that a 'few weeks' (ts 452) or 'two, [or] three weeks' (ts 454) after he had borrowed the laptop computer, he had borrowed KHL's mobile telephone. MAH said he knew the mobile telephone belonged to KHL because '[he] asked [KHL] directly if [he] could borrow it before [he] used it' (ts 453). MAH gave evidence in cross‑examination by defence counsel for LSL that 'it was [KHL's] phone' (ts 461). The first search term in the Google search bar of the mobile telephone was 'child pornography' (ts 453). MAH said that he showed this search term to LSL. He said LSL then showed the mobile telephone to KHL and asked him why the search term was on his telephone. The search history on the telephone was then deleted in MAH's presence. LSL had asked KHL to delete it. MAH did not give evidence that KHL had made an admission against interest (ts 453 ‑ 454).
Fourthly, MAH gave evidence that later in 2017, during a visit to KHL and LML's home, MAH saw KHL taking the complainants to a shower (ts 454 ‑ 455). The alleged relevance of the shower was that four of the counts against KHL concerned offending that allegedly occurred against all of the complainants while they were having a shower.

KHL's conviction appeal: the approach of defence counsel for KHL to MAH's impugned evidence

Defence counsel for KHL did not object to any of MAH's evidence, apart from two objections to two questions which the prosecutor then rephrased (ts 453 ‑ 454).
Defence counsel for KHL did not put to MAH that he was mistaken or lying about his evidence concerning the laptop computer or the mobile telephone.
Defence counsel for KHL's questions in cross‑examination of MAH were confined, in essence, to the number of bathrooms in KHL and LML's home at a Perth suburb and SLL's pre‑recorded evidence that MAH had told her, after she had disclosed KHL's sexual offending to MAH, '[d]o you want Mum's baby to die because if you don't have Dad then her baby is going to die' (ts 172). MAH denied having made that statement to SLL (ts 456).

KHL's conviction appeal: the State's case against KHL

The State's case against KHL, as closed by the prosecutor, relied upon the evidence of the three complainants. It was necessary, in order for the jury to convict KHL, that the jury be satisfied beyond reasonable doubt as to the truth and accuracy of each complainant's evidence in relation to each element of each charged offence involving that complainant (ts 23). There were no eyewitnesses, apart from the other complainants, to any of the offending alleged in respect of each complainant.

KHL's conviction appeal: the State's case against LML

The State's case against LML, as opened by the prosecutor, was that from the time that SLL disclosed KHL's sexual offending to LML and MAH (see [22] above) up to the time that MAH told LML about seeing child pornography on the laptop computer and continuing up to the later time that MAH told LML about finding the search term 'child pornography' on the mobile telephone, LML failed to protect SLL against the risk of sexual abuse (ts 298 ‑ 299, 304).

KHL's conviction appeal: the approach of the prosecutor to the impugned evidence

As I have mentioned, the prosecutor informed Bowden DCJ on the hearing of the State's pre‑trial application to adduce propensity evidence that in the event that his Honour ruled (as he did) that the impugned evidence was inadmissible in relation to KHL, then KHL would potentially be prejudiced at the trial by the State's use of that evidence against LML (ts 248). The prosecutor added that the potential prejudice could probably be cured by a judicial direction to the jury.
At the trial, the prosecutor told the jury during her opening address that what MAH told LML about the contents of the laptop computer and the mobile telephone was relevant to the State's case against LML (ts 298 - 299). The prosecutor said that some of the evidence that the jury would hear would only be relevant or admissible in relation to one or the other accused (ts 299). The prosecutor then said that the trial judge would give the jury 'detailed directions' about that evidence (ts 299).

KHL's conviction appeal: discussions between the trial judge and counsel, in the absence of the jury, about the impugned evidence

During a discussion between the trial judge and counsel, in the absence of the jury, the prosecutor confirmed that the impugned evidence was not relied upon as propensity evidence in respect of KHL and also confirmed that propensity evidence was not part of the State's case (ts 333 ‑ 334).
After MAH gave his evidence, there was a discussion between his Honour and defence counsel for KHL, in the absence of the jury, as follows:
DIXON, MR: As I understand the position, the evidence the jury has heard from [MAH] in respect of child exploitation material on a laptop and search terms on a mobile phone is not admissible in respect of [KHL]. I was never instructed to seek separate trials, but that's probably going to be a challenge for the jury. I'm just curious I suppose ‑ ‑ ‑
LEVY DCJ:   Well, from memory his evidence went further because his evidence was that at one stage, I think when he says that he was looking at the phone and there were the search terms of child exploitation material or child pornography, [LML] called [KHL] outside from inside the house and told him to delete it.
DIXON, MR:   Yes.
LEVY DCJ:   There's that evidence that [KHL] in fact was called outside and told to delete it.
DIXON, MR:   I left it alone because as I said, I understood that the evidence was only admissible in respect of [LML].
LEVY DCJ:   Well, the conversations can only be admissible, but conduct where he says your client was present and involved would have to be admissible against him.
DIXON, MR:   I think that's right.
LEVY DCJ:   But as far as I remember, it wasn't any acknowledgement of wrongdoing by your client. It wasn't, for example, he said, 'Sorry. I'll get rid of my child exploitation material.' It was simply in the context of he was told to delete it.
DIXON, MR:   Yes.
LEVY DCJ:   I'll check that but I'll obviously need to say something about that (ts 546 ‑ 547). (emphasis added)

KHL's conviction appeal: the trial judge's directions

The trial judge did not, at any stage during the trial, direct the jury that:
(a)MAH's impugned evidence was irrelevant to the State's case against KHL; or
(b)MAH's impugned evidence was relevant only to the State's case against LML in relation to LML's state of mind.
By contrast, his Honour did identify, in the course of the trial and in his summing up, particular items of evidence, and instructed the jury that they were not admissible as against KHL or LML, as appropriate. See, for example:
(a)his Honour's directions to the jury in relation to certain evidence given by LML's sister (ts 428 ‑ 430);
(b)his Honour's directions in relation to a video record of a police search during which LML but not KHL was present (ts 480 ‑ 481);
(c)his Honour's directions to the effect that admissions made by each of KHL and LML, pursuant to s 32 of the Evidence Act, were not admissible against the other (ts 464, 466);
(d)his Honour's directions that LML's electronically recorded interview with police, which was tendered by the prosecutor, was admissible only in respect of the State's case against LML and not in respect of the State's case against KHL (ts 497); and
(e)sundry items of evidence that were subject of specific directions by his Honour in his summing up in relation to whether the items were admissible against KHL or LML (ts 573, 593, 599, 628, 629, 630 ‑ 632).
Defence counsel for KHL did not seek any redirection or additional direction from the trial judge in relation to the impugned evidence.

KHL's conviction appeal: KHL's submissions

Counsel for KHL submitted, in effect, that the absence of any direction from the trial judge as to how the jury could use MAH's impugned evidence occasioned a miscarriage of justice.
It was submitted, in effect, that there was a real risk that the jury, in the absence of any direction in relation to the impugned evidence, may have reasoned that KHL was a person who was at least interested in looking at child pornography and, consequently, that his interest in child pornography made it more likely that KHL had committed the charged offences.
Further or alternatively, it was submitted, in effect, that there was a real risk that, absent any direction from his Honour in relation to the impugned evidence, the jury may have taken the impugned evidence into account in evaluating the State's case against KHL and did not confine its use of the impugned evidence to the evaluation of LML's state of mind in the course of considering the charged offence against her.

KHL's conviction appeal: the State's submissions

Counsel for the State conceded that the ground of appeal had been made out, leave to appeal should be granted, the appeal allowed, the judgments of conviction in respect of KHL set aside and there be a new trial of KHL on the offences charged against him in the indictment. Counsel accepted, in essence, that a miscarriage of justice occurred at the trial as a result of the matters set out at [39] ‑ [40] above.

KHL's conviction appeal: its merits

A trial judge's fundamental duty is to ensure a fair trial of the accused. 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. A judicial warning may be required, in some cases, about how the jury should not reason in the course of considering their verdict. See Carr v The Queen;[1] Longman v The Queen;[2] RPS v The Queen;[3] and Tully v The Queen.[4]
[1] Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, 324 ‑ 325 (Brennan J).
[2] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, 86 (Brennan, Dawson & Toohey JJ).
[3] RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41] (Gaudron A‑CJ, Gummow, Kirby & Hayne JJ).
[4] Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234 [123] (Callinan J), [158] (Crennan J).
The general rule that a jury responsible for determining the guilt or innocence of an accused should not be informed of the accused's criminal record, bad character or antecedents before the jury returns its verdict permeates the law governing the conduct of criminal proceedings. See Hall v Braybrook;[5] Dawson v The Queen;[6] and Phillips v The Queen[7] and see the discussion by Hunt AJA (Simpson & Rothman JJ agreeing) in Seymour v The Queen.[8]
[5] Hall v Braybrook [1956] HCA 30; (1956) 95 CLR 620, 627 ‑ 628 (Dixon CJ), 648 (Fullagar J).
[6] Dawson v The Queen [1961] HCA 74; (1961) 106 CLR 1, 16 (Dixon CJ).
[7] Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45, 50 ‑ 51, 55 (Mason, Wilson, Brennan and Dawson JJ), 59 ‑ 60 (Deane J).
[8] Seymour v The Queen [2006] NSWCCA 206; (2006) 162 A Crim R 576 [46] ‑ [48].
In R v Dolan,[9] King CJ (Mullighan J agreeing) observed:
In all but the most exceptional cases in which evidence of criminal conduct other than that which is the subject of the charges before the court, is allowed to go before a jury, it is encumbent upon the trial judge to direct the jury as to the use which they are entitled to make of such evidence and, even more importantly in most cases, the uses to which such evidence must not be put.
See also Auons v The Queen;[10] and TSP v The State of Western Australia.[11]
[9] R v Dolan (1992) 58 SASR 501, 503.
[10] Auons v The Queen [2010] VSCA 223 [63] (Bongiorno JA; Buchanan JA & Habersberger AJA agreeing).
[11] TSP v The State of Western Australia [2021] WASCA 224 [48] (Buss P).
Those observations apply not only to evidence of criminal conduct by the accused other than that which is the subject of the charges before the court, but also to evidence of disreputable conduct by the accused other than that which is the subject of the charges before the court. See CDO v The State of Western Australia.[12]
[12] CDO v The State of Western Australia [2022] WASCA 58 [81] (Buss P).
Ordinarily, where it is necessary to guard against a jury impermissibly using evidence for the purpose of propensity or tendency reasoning, the direction must inform the jury that:
(a)the jury must not reason, on the basis of the evidence, that the accused was the kind of person who was likely to have committed the charged offence; and
(b)the jury must not take the evidence into account in deciding whether the State has proved beyond reasonable doubt that the accused committed the specific offence charged in the indictment.
See Hill v The State of Western Australia;[13] and JEL v The State of Western Australia.[14]
[13] Hill v The State of Western Australia [2019] WASCA 209 [73] (Buss P & Mazza JA).
[14] JEL v The State of Western Australia [2022] WASCA 32 [141] (Buss P, Mazza & Beech JJA).
The risk of a jury engaging in propensity or tendency reasoning has been recognised as 'peculiarly strong' in cases involving alleged sex offences. See De Jesus v The Queen;[15] Hamilton (a pseudonym) v The Queen.[16]
[15] De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1, 3 (Gibbs CJ).
[16] Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 394 ALR 194 [43] (Kiefel CJ, Keane & Steward JJ), [62] (Edelman & Gleeson JJ).
In the present case, Bowden DCJ ruled that MAH's evidence in relation to the laptop computer was not admissible against KHL.
Further, the prosecutor disavowed at the trial any reliance upon MAH's evidence concerning the laptop computer and the mobile telephone in the State's case against KHL. The prosecutor relied upon that evidence solely in relation to the State's case against LML.
In the circumstances, the trial judge should have directed the jury to the effect that:
(a)MAH's impugned evidence was irrelevant to the State's case against KHL;
(b)MAH's impugned evidence was relevant only to the State's case against LML in relation to LML's state of mind;
(c)the jury must not reason, on the basis of the impugned evidence, that KHL was the kind of person who was likely to have committed any of the offences alleged against him; and
(d)the jury must not take the impugned evidence into account in deciding whether the State had proved beyond reasonable doubt that KHL had committed any of the offences alleged against him.
Unfortunately, his Honour failed to give the jury any directions to the effect set out at [50] above.
Absent any directions to the effect set out at [50] above, there was a real risk that the jury may have reasoned, on the basis of the impugned evidence, that:
(a)KHL was a person who was interested in child pornography and had a sexual attraction to underaged children; and
(b)KHL's interest in child pornography and his sexual attraction to underaged children made it more likely that KHL had committed the charged offences.
Further, absent any directions to the effect set out at [50] above, there was a real risk that the jury may have taken the impugned evidence into account, in the manner I have indicated at [52] above, in deciding whether the State had proved its case against KHL.
The real risk to which I have referred at [52] above was reinforced by the trial judge's directions that other items of evidence were not admissible as against KHL or LML, as appropriate (see [36] above) combined with his Honour's failure to give any of the requisite directions in relation to the impugned evidence. There was a perceptible risk that the jury may have thought that the absence of the requisite directions in relation to the impugned evidence meant that the jury was entitled to take that evidence into account in considering the State's case against KHL.
I am satisfied that there was no legitimate forensic purpose to be advanced by defence counsel for KHL's failure to seek any redirection or additional direction from his Honour in relation to the impugned evidence. The likely explanation is that defence counsel for KHL, like his Honour, overlooked the necessity for appropriate directions.
Finally, I note that it is unnecessary to determine, in the present case, whether it was essential for the trial judge to give all of the directions set out at [50] above or whether the giving of some of those directions would have been sufficient to avoid the real risk that the jury may have taken the impugned evidence into account, in the manner I have indicated at [52] above, in deciding whether the State had proved its case against KHL.
The absence of any directions to the effect set out at [50] above occasioned a miscarriage of justice.
The ground of appeal has been made out.

KHL's conviction appeal: conclusion

Accordingly, for the reasons I have given, I joined with the other members of the court, at the conclusion of the hearing of the appeals, in making the orders set out at [9] above.

The State's sentence appeal

As I have mentioned, at the conclusion of the hearing of the appeals, this court ordered that the State's appeal against sentence be dismissed. I joined with the other members of the court in making that order because, having regard to the outcome of KHL's conviction appeal (in particular, the allowing of the appeal, the setting aside of the judgments of conviction and the ordering of a new trial), it was unnecessary and undesirable for this court to resolve the State's sentence appeal.

MAZZA JA:

On 2 May 2022, I joined with Buss P and Beech JA in making the orders set out in the separate reasons of their Honours at [9] and [62]. In my opinion, for the reasons each of them gives, which I view as complementary, the absence of any directions to the effect set out at [50] of Buss P's reasons gave rise to a miscarriage of justice.

BEECH JA:

At the conclusion of the hearing of this appeal, in KHL's conviction appeal, the court ordered as follows:
(1)Leave to appeal granted.
(2)Appeal allowed.
(3)The judgments of conviction entered by the trial judge in respect of KHL are set aside.
(4)There be a new trial of KHL on counts 1 to 21 inclusive of the indictment.
I joined in making these orders for the reasons that follow and for the reasons given by Buss P. I regard my reasons as being by way of elaboration of, not qualification to, my agreement with his Honour's reasons.
All of the background, including the ground of appeal, the pre‑trial hearing, the course of the trial, the judge's direction and the parties'

submissions on appeal are set out in the reasons of Buss P, in terms which I gratefully adopt.

The ground of appeal complains of the absence of a direction that MAH's evidence about the laptop computer and the mobile phone was evidence only against LML and was irrelevant to the charges against KHL.
In directing the jury, the judge must give the jury such warnings as may be called for by the circumstances of the particular case, including warnings against following impermissible paths of reasoning.[17] The judge must give a warning to the jury whenever a warning is necessary in order to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case.[18]
[17] Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 [49].
[18] Carr v The Queen (1988) 165 CLR 314, 330; Longman v The Queen (1989) 168 CLR 79, 86; The Queen v GW [2016] HCA 6; (2016) 258 CLR 108 [50]; Banksv The State of Western Australia [2018] WASCA 130 [42].
Generally speaking, where evidence is admissible for one purpose but inadmissible for another, the trial judge should direct the jury that they must not use the evidence for the purpose for which it is inadmissible, at least where the use of the evidence for the impermissible or irrelevant purpose would be adverse to the accused.[19] Where evidence is relevant and admissible for other reasons, but incidentally discloses the accused's propensity, a warning to the jury not to engage in propensity reasoning is ordinarily required.[20] Such a warning is required whenever there is a perceptible risk that, absent a warning, the jury may engage in impermissible propensity reasoning.
[19] Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 [22]; Banks [42]; LNV v The State of Western Australia [2019] WASCA 180 [103]; LNN v The State of Western Australia [2021] WASCA 39 [177]; CDO v The State of Western Australia [2022] WASCA 58 [129].
[20] Noto [22]; LNN [177]; CDO [129].
I will refer to the evidence given by MAH about the laptop computer and the mobile phone, as referred to in the ground of appeal and summarised in [23] ‑ [24] of Buss P's reasons, as the impugned evidence.
There are, as the respondent pointed out in submissions, matters that tend against a conclusion that the absence of a direction that MAH's impugned evidence was relevant solely to the case against LML and was irrelevant to the prosecution case against KHL gave rise to a miscarriage of justice. The prosecutor made clear that the case against KHL rested on the evidence of the complainants and at no point suggested that the impugned evidence had any relevance to the case against the appellant. The judge directed the jury that they could not convict the appellant, KHL, unless they were satisfied beyond reasonable doubt as to the truthfulness, accuracy and reliability of the complainant's evidence in relation to the count under consideration.[21] The judge told the jury that the charges against the appellant 'stand or fall' on the evidence of the respective complainant.[22] The judge gave a warning of the kind referred to in Longman v The Queen, that it would be dangerous to convict the appellant of a charge unless, having considered the child's evidence with great care, the jury was satisfied beyond reasonable doubt as to its truthfulness, accuracy and reliability.[23]
[21] ts 572, 654.
[22] ts 571 - 572.
[23] ts 658.
Moreover, the trial judge gave a conventional separate trials direction, telling the jury that their duty was to consider each charge, and the evidence that relates to each charge, separately.
Notwithstanding these matters, I am satisfied that there was a real risk that, based on the impugned evidence, the jury may have reasoned that KHL was a person with a sexual attraction to underaged children and with an interest in child pornography, and that this made it more likely that he had committed the charged offences. In my view, this conclusion derives strong support from the manner in which the State case was put against the co‑accused, LML, and the central significance of the impugned evidence to the case against her.
The State relied upon three matters in support of the charge against LML that she failed to protect SLL against the risk of sexual abuse. The first was SLL's statement to LML and MAH that KHL 'fucks' her and that KHL 'tried to fuck her and put it in her bum'.[24] Significantly, the other two matters on which the State relied in the case of SLL were the impugned evidence; namely, in broad summary, MAH's evidence that he told LML that there was child pornography on the laptop computer he had borrowed from KHL and LML, and his finding of the internet search term 'child pornography' on the mobile phone he understood to belong to KHL.
[24] ts 449.
It is apparent from these matters that the harm in respect of which LML was reckless was the risk of sexual abuse against SLL at the hands of KHL. In order to conclude that such a risk existed, the jury would logically need to be satisfied that the child pornography was possessed by KHL and that it was KHL's phone on which the words 'child pornography' had been searched.
The judge directed the jury that it had to be satisfied beyond reasonable doubt of at least one of these three matters in proof of the case against LML. Consequently, there was an appreciable risk that the jury was satisfied beyond reasonable doubt that KHL was the person responsible for obtaining the child pornography on the laptop or that he carried out the search for child pornography on the mobile phone. On that basis, there is a real risk that the jury may, consciously or otherwise, have reasoned that KHL was a person with a sexual attraction to underaged children and with an interest in child pornography, and that this made it more likely that he had committed the charged offences. In so reasoning, the jury would thereby have engaged in propensity reasoning, in circumstances where such reasoning was impermissible.
Given its central significance to proof of the case against LML, I am satisfied that there was a real risk that, even if unconsciously, the impugned evidence may have influenced the jury's consideration of the case against KHL.
As Buss P notes, the trial judge did not give any of the directions set out at [50] of his Honour's reasons. While the failure of the appellant's counsel to have complained of an inadequacy in the judge's direction tends against a conclusion that there was a miscarriage of justice, that is by no means conclusive. There is no evident forensic purpose to be served in failing to seek a direction limiting the use of MAH's evidence to the case against LML. Moreover, as Buss P's reasons demonstrate, it appears that the trial judge foreshadowed, and intended to give, a direction along these lines, but omitted to do so by oversight.
In allowing the appeal I did not reach a concluded view on the question of whether, in the circumstances of this case, it was necessary to give all of the directions set out in [50] above or whether giving some of those directions would have been sufficient to avoid the risk of impermissible propensity reasoning. I was and am satisfied that, in the circumstances of this case, the absence of any of the directions set out in [50] gave rise to a miscarriage of justice.
For these reasons, I joined in the court's orders upholding the conviction appeal and dismissing the State's sentence appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KW
Associate to the Honourable Justice Buss
3 OCTOBER 2022